Buz­zFeed’s me­di­a­tion snub sends dossier law­suit to trial

The Washington Times Daily - - FRONT PAGE - BY ROWAN SCAR­BOR­OUGH

The first face-to-face en­counter be­tween anti-Trump dossier pub­lisher Ben Smith and one of its tar­gets, Rus­sian en­tre­pre­neur Alek­sej Gubarev, was set to hap­pen last month in a New York City law of­fice.

Mr. Gubarev ar­rived with his at­tor­neys, who sued Buz­zFeed, which Mr. Smith leads, for pub­lish­ing the in­fa­mous dossier: 35 pages of memos writ­ten by for­mer British in­tel­li­gence of­fi­cer Christo­pher Steele.

Mr. Steele’s fi­nal memo in De­cem­ber 2016 ac­cused Mr. Gubarev of a charge that even the for­mer spy later ad­mit­ted in court he didn’t con­firm: that Mr. Gubarev, the cre­ator of We­bzilla Inc., a com­puter server sup­plier, had bom­barded Demo­cratic Party com­put­ers with pornog­ra­phy and spy­ware.

Weeks af­ter Mr. Smith made the mo­men­tous de­ci­sion to post Mr. Steele’s hand­i­work on Buz­zFeed, a shell­shocked Mr. Gubarev filed li­bel law­suits against the pub­li­ca­tion in Florida and against Mr. Steele in Lon­don.

The planned Gubarev-Smith tete-a-tete on June 27 was U.S. District Judge Ur­sula Un­garo’s at­tempt to see whether the two sides could set­tle through a me­di­a­tor.

Mr. Smith never showed up. A Buz­zFeed spokesper­son told The Wash­ing­ton Times that Mr. Smith’s at­ten­dance was not re­quired.

Val Gurvits, the Rus­sian en­tre­pre­neur’s at­tor­ney, protested. He con­tended that the edi­tor of the po­lit­i­cal and so­cial news web­site had vi­o­lated the judge’s or­der.

Judge Un­garo’s me­di­a­tion or­der seemed clear: “The ap­pear­ance of coun­sel and each party is manda­tory.”

The Gubarev law­suit now is headed for

trial in Florida in Novem­ber — un­less Judge Un­garo dis­misses the case based on a le­gal doc­trine known as “fair re­port­ing priv­i­lege.”

The me­di­a­tion ses­sion ended with no set­tle­ment. Its fail­ure is noted in a brief court fil­ing by Rodolfo Sorondo, the me­di­a­tor. He said Judge Un­garo in­structed him: “The me­di­a­tor shall re­port non-at­ten­dance and may rec­om­mend im­po­si­tion of sanc­tions by the court for non-at­ten­dance.”

Mr. Sorondo added: “In com­pli­ance with this sec­tion I ad­vise the court that De­fen­dant Ben Smith did not at­tend the me­di­a­tion. His ab­sence was ques­tioned and ob­jected to by [the Gubarev le­gal team] so [his at­tor­ney] called Mr. Smith on the tele­phone and put him on speaker so he could hear plain­tiff’s coun­sel open­ing state­ment.”

Mr. Gurvits told The Times, “He should have been there as per the court or­der. Can’t com­ment be­yond that.”

Buz­zFeed’s gen­eral coun­sel, Al­li­son Lu­cas, said she had full author­ity to set­tle on be­half of both the news site and Mr. Smith.

Mr. Sorondo con­tem­plated im­pos­ing a penalty against Mr. Smith.

“Given the cir­cum­stances de­scribed above, as well as the way the me­di­a­tion played out, the un­der­signed does not rec­om­mend the im­po­si­tion of sanc­tions,” Mr. Sorondo wrote. “The par­ties en­gaged in ne­go­ti­a­tions but the case did not set­tle. Ac­cord­ingly, I de­clare an im­passe.”

Of his de­ci­sion to post Mr. Steele’s dossier, Mr. Smith has said, “I’m proud we pub­lished.”

Buz­zFeed has hired a con­sult­ing firm, com­plete with a for­mer FBI cy­ber­sleuth, to try to con­firm Mr. Steele’s claims.

Mr. Steele has said in a court fil­ing in Lon­don, where Mr. Gubarev is su­ing him for li­bel, that he did not con­firm un­so­licited Gubarev re­ports. He sim­ply added them to his fi­nal memo of De­cem­ber 2016 and left it to oth­ers to con­firm.

Mr. Gurvits has said that any Buz­zFeed in­ves­ti­ga­tion will turn up no ev­i­dence be­cause Mr. Gubarev played no role in Rus­sian com­puter hack­ing.

‘Fair re­port­ing’

Be­fore post­ing the dossier, Buz­zFeed said, it tried to ver­ify the charges but never con­tacted Mr. Gubarev. It later apol­o­gized for not re­mov­ing his name be­fore pub­li­ca­tion.

Un­der a British judge’s or­der, Mr. Steele re­luc­tantly un­der­went a de­po­si­tion in Lon­don last month by a host of at­tor­neys. His an­swers re­main con­fi­den­tial.

In the Gubarev case, the next key phase is for Judge Un­garo to rule on whether Buz­zFeed was sim­ply fol­low­ing what is called “fair re­port­ing priv­i­lege” when it posted the dossier.

Buz­zFeed ar­gues that since the dossier be­came part of the FBI’s crim­i­nal in­ves­ti­ga­tion, it was en­ti­tled to pub­lish.

In a sig­nif­i­cant pre-de­ci­sion on June 4, Judge Un­garo said she would fol­low New York law, not Florida’s.

This is a po­ten­tial boon to Buz­zFeed be­cause New York em­bed­ded “fair re­port­ing” into its statutes and Florida did not. New York courts have ex­tended “fair re­port­ing” to mean sto­ries on of­fi­cial pro­ceed­ings.

Judge Un­garo ap­peared to sig­nal that she would rule in fa­vor of Buz­zFeed and pos­si­bly dis­miss the law­suit if the me­dia com­pany can prove that a CNN hy­per­link ac­com­pa­ny­ing the Jan. 17, 2017, re­port is true. CNN re­ported on the dossier’s over­all charges of Rus­sia-Trump col­lu­sion and the fact that Pres­i­dent-elect Don­ald Trump was briefed by FBI Di­rec­tor James B. Comey on a sala­cious ac­count about him.

“Re­gard­less of the broad scope of the priv­i­lege, its pro­tec­tion is avail­able only if an or­di­nary reader of the Ar­ti­cle would have con­cluded that there was a clas­si­fied brief­ing or an FBI in­ves­ti­ga­tion con­cern­ing the truth of the Dossier’s al­le­ga­tions,” Judge Un­garo wrote.

The FBI not only used the Demo­cratic Party-funded dossier, but it also em­braced it. The bureau cited the ac­cu­sa­tions to a judge to win a year’s worth of wire­taps against Trump cam­paign vol­un­teer Carter Page. The sur­veil­lance be­gan in Oc­to­ber 2016, months be­fore Buz­zFeed posted the doc­u­ment.

Agents also re­lied on it to fol­low leads and ques­tion wit­nesses. Mr. Comey has said his mis­sion was to try to con­firm Mr. Steele’s Rus­sian col­lu­sion charges against Mr. Trump and his peo­ple.

Said Mr. Gurvits: “It’s not clear ex­actly what they did, but it is clear they did noth­ing with the De­cem­ber memo — and that’s the only doc­u­ment that ref­er­ences my clients.”

To date, not one of Mr. Steele’s col­lu­sion charges against Trump peo­ple has been con­firmed pub­licly.

It is un­clear whether the FBI ever in­ves­ti­gated the De­cem­ber memo. Mr. Gubarev told Fox News’ Tucker Carl­son that he has never been con­tacted by spe­cial coun­sel Robert Mueller.

Mr. Gurvits has de­ter­mined the iden­tity of the per­son who pro­vided the dossier copy to Buz­zFeed but is un­der a gag or­der not to dis­close it.

At one time, seven li­bel law­suits stemmed from dossier charges. To­day, there are two: Mr. Gubarev’s and one brought by two Rus­sian oli­garchs.

Mr. Page’s defama­tion law­suit against Ya­hoo News was thrown out by a judge, though there was no rul­ing on the case’s li­bel part it­self.

Michael Co­hen, Mr. Trump’s per­sonal at­tor­ney, filed suit against Buz­zFeed and Fu­sion GPS, which paid Mr. Steele and pro­moted his charges. He dropped the law­suits once he found him­self un­der crim­i­nal in­ves­ti­ga­tion for his busi­ness prac­tices.

AS­SO­CI­ATED PRESS

GO­ING TO COURT: Alek­sej Gubarev ar­rived with his at­tor­neys in a New York law of­fice to reach a set­tle­ment with Buz­zFeed over false charges in the Rus­sia dossier, but the pub­lisher didn’t show up.

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