Gubarev v. Buzzfeed, Inc.
Gubarev v. Buzzfeed, Inc.
Opinion of the Court
*1255THIS CAUSE comes before the Court upon intervenor The New York Times Company's ("The Times") Motion for Access to Judicial Records (D.E. 254).
For the reasons discussed below, the motion is granted as prescribed below.
I. INTRODUCTION
The salient facts of this case are set forth in the Court's Order on the cross-motions for partial summary judgment on public figure status (D.E. 385) and the Court's Order on Defendants' Motion for Summary Judgment (D.E. 388), both of which are incorporated by reference herein.
"For obvious reasons, courts have uniformly approved the practice of provisionally sealing documents pending assessment of justification for a request to seal." In re Reporters Comm'ee for Freedom of the Press ,
The Court has issued final judgment in this case, has followed the procedures required for potential unsealing (see, e.g., Rushford v. New Yorker Magazine, Inc. ,
II. LEGAL STANDARD ON SEALING JUDICIAL RECORDS
A. As to Civil Pretrial Matters, Generally
"The operations of the courts and the judicial conduct of judges are matters of utmost public concern." Landmark Commc'ns, Inc. v. Virginia ,
The right of access is not absolute. For example, the right of access does not apply to discovery. Romero v. Drummond Co. ,
The right of access creates a rebuttable presumption in favor of openness of court records. Rossbach v. Rundle ,
(1) whether allowing access would impair court functions or harm legitimate privacy interests,
(2) the degree of and likelihood of injury if made public,
(3) the reliability of the information,
(4) whether there will be an opportunity to respond to the information,
(5) whether the information concerns public officials or public concerns,
(6) the availability of a less onerous alternative to sealing the documents,
(7) whether the records are sought for such illegitimate purposes as to promote public scandal or gain unfair commercial advantage,
(8) whether access is likely to promote public understanding of historically significant events, and
(9) whether the press has already been permitted substantial access to the contents of the records.
A party's privacy or proprietary interest in information sometimes overcomes the interest of the public in accessing the information. Romero ,
B. Allegedly Libelous or Scandalous Material, Specifically
A district court is afforded discretion in weighing the relative interests, but that discretion "is guided by the presumption of public access to judicial documents."
It is true that "court files that instigate public scandal or libel may be sealed." See Romero ,
The seminal case supporting the sealing of allegedly libelous or scandalous material is In re Caswell's Request , a one paragraph opinion from 1893 where the Supreme Court of Rhode Island precluded a newspaper reporter from examining a divorce petition.
To publish broadcast the painful, and sometimes disgusting, details of a divorce case, not only fails to serve any useful purpose in the community, but, on the other hand, directly tends to the demoralization and corruption thereof, by catering to a morbid craving for that which is sensational and impure."
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III. DISCUSSION
The Court finds that continued sealing of the court filings in this case would contravene the presumption of the common law right of access. The Court further finds that, with the limited exception explained below, the parties and objecting non-parties have failed to show good cause to rebut the presumption.
A. The Presumption of Access Has Attached to All the Sealed Filings
As an initial matter, the Court notes that all the sealed filings are (1) motions, (2) documents filed in relation to motions, or (3) court orders. The motions are subject to the public right of access because they were presented to the court to invoke its powers or affect its decisions. Romero ,
So too with the documents filed in relation to the motions; they also were presented to the court to inform the court's decisions. See, e.g.,
Finally, "a presumption of public access attaches to a court's decisions. '[A] court's decisions are adjudications-direct exercises of judicial power the reasoning and substantive effect of which the public has an important interest in scrutinizing.' " Under Seal v. Under Seal ,
B. With One Limited Exception, the Presumption of Access Has Not Been Rebutted
1. The Public Should Have Full Access to the Parties' Legal Briefings
The parties filed their papers relating to their motions for summary judgment, supporting memoranda of law, Daubert motions, and motions in limine under seal. These matters were submitted to the Court for adjudication, and the Court finds that unsealing of these papers is critical for the public to be able to understand the reasoning and substantive effect of the Court's orders herein.
For Plaintiffs' part,
*1259the references to pornography and webmaster conferences is irrelevant and unduly prejudicial, and do not relate to public officials or public concerns; (2) the references to internal private business communications, finances, and/or personal relationships are irrelevant to public parties or concerns; (3) references various non-parties' testimony should be redacted to protect those non-parties or Defendants; and (4) references to alleged unlawful acts of third parties and "Methbot" are hearsay and unreliable.
None of these grounds is persuasive. First, the Dossier at the heart of this case states, in pertinent part, that a source:
reported that over the period March-September 2016 a company called XBT/Webzilla and its affiliates had been using botnets and porn traffic to transmit viruses, plant bugs, steal data, and conduct "altering operations" against the Democratic Party leadership. Entities linked to one Alexei GUBAROV [sic] were involved and he and another hacking expert, both recruited under duress by the FSB, Seva KAPSUGOVICH were significant players in this operation.
Plaintiffs brought this defamation action to challenge Defendants' report of the Dossier without independently verifying the truth of the Dossier's contents. Thus, the allegations and evidence about pornography, "bots" and non-party "wrongdoing" directly flow from the Dossier and speak to key issues in the case. Further, Plaintiffs' alleged connections to pornography and webmaster conferences (including sponsors and attendees of the conferences) were used by Defendants-albeit unsuccessfully-in support of their public figure analysis. Even though Plaintiffs deny the legal significance of these allegations (and appear to be embarrassed by them), the allegations and evidence also help explain the Court's Order on the cross-motions for summary judgment on public figure status (D.E. 385). The Court is guided by Romero and the Eleventh Circuit's caution that a party's "denial" of allegations "is not a legitimate basis for sealing the evidence."
Moreover, as Defendants correctly point out, many of the sealed briefings are Plaintiffs' own filings. Plaintiffs framed the issues and brought to the Court's attention subjects they now object to as irrelevant or inflammatory. It is only natural that Defendants referenced these subjects in their opposition papers and their primary filings-Plaintiffs themselves placed the subjects at issue. The relevance of these subjects cannot be disputed in good faith.
As to the claim that publication would taint the potential jury pool, this claim is moot because this Court has already entered final judgment. True, the final judgment is pending appeal. But even if the judgment were reversed and the case were to be tried, the Court would follow the Eleventh Circuit's rationale in Romero : (1) pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically to an unfair trial; and (2) because the media has already reported on the sealed information, sealing could not remedy any of the highly unlikely harms that could be caused by pretrial publicity. See
Next, as to the briefings' references to non-parties' testimony, the Court has been advised that only Messrs. Kramer and Steele designated their testimony as confidential and objected to the unsealing of this testimony. Fusion GPS failed to timely file a position statement on unsealing, despite receiving notice of its right to do so. Any claim by Fusion GPS of a continued confidentiality interest, then, is waived. The objections of Messrs. Kramer and Steele are discussed in more detail below. For now, it suffices to say that any alleged harm to non-parties is conclusory and speculative.
Finally, the parties' exhibit lists and pretrial stipulations should be subject to public inspection. The trial would have been open to the public anyway. There is no good cause to conceal these critical parts of the pretrial process.
2. The Public Should Have Full Access to the Materials Filed in Support of the Parties' Legal Briefings, Particularly Where Those Materials Were Claimed to Be Confidential by Only a Party or Parties
Applying the good cause balancing test for the materials filed along with the parties' briefings, the balance tips in favor of disclosure. As to the Times' motive for seeking access to the sealed documents, news reporting is a "legitimate purpose" for granting access to sealed court records, as it tends to "promote the public's understanding of the proceedings." United States v. Abegg ,
On the other side of the scale, the degree and likelihood of potential injury is negligible, particularly where the parties have had, and continue to have, ample opportunity to respond to the information in the court of public opinion. Further, the media has already reported on much of the underlying information. Indeed, many of the sealed filings are internet publications (even if not currently publicly accessible)-for example, articles by CNN, Gizmodo, BBC News, Slate, Newsweek, Forbes, and the Washington Post; archived AWM Open webpages; and a "year in review" publication by PornHub. Others are publicly-available government reports or press releases; it makes no sense for this Court to seal something that other government actors have made public.
Additionally, the "private information" cited by Plaintiffs is not, in the Court's view, so sensitive as to warrant shielding from the public's view.
3. The Court Overrules the Objections of Non-Parties Christopher Steele and David Kramer, But Sustains in Part the Objections of Non-Party Bitly, Inc.
a. Christopher Steele's Objections Are Overruled
Non-party Christopher Steele objects to unsealing his deposition testimony for two reasons. D.E. 407. First, he argues that unsealing his testimony in this case would allow Plaintiffs to avoid certain procedural and substantive discovery limitations in their parallel lawsuit against Mr. Steele in Britain. He argues that British law forbids Plaintiffs from taking and using Mr. Steele's testimony in their British lawsuit. Unsealing the deposition here, he argues, would amount to an "end-run" around this limitation. Second, Mr. Steele argues that unsealing his deposition would invite unwanted attention and potential danger.
Mr. Steele's first argument is without merit and does not overcome the presumption of public access. See Perez-Guerrero ,
Mr. Steele's second argument is similarly unavailing. He conclusorily states that unsealing his deposition testimony would subject him to unwanted attention and potential danger. He explains that in the wake of the publication of the Dossier, he received death threats and went into hiding. He fails, however, to explain how unsealing his deposition testimony here would expose him to further danger. Confronted with a similar situation, the Eleventh Circuit in Perez-Guerrero refused to conceal a plaintiff's identity.
b. David Kramer's Objections Are Overruled
Non-party David Kramer objects to unsealing his deposition testimony and declaration because it would expose him to danger. D.E. 411. One year ago, Magistrate *1262Judge O'Sullivan ruled that Mr. Kramer's deposition testimony should remain sealed because Mr. Kramer faced potential danger if he was exposed as "the cause-in-fact of the publication of the Dossier." D.E. 144, p. 7.
Circumstances have changed since Judge O'Sullivan entered his order. When Judge O'Sullivan sealed Mr. Kramer's testimony, Mr. Kramer's role in disseminating the Dossier was not known. See
c. Bitly, Inc.'s Objections are Sustained as to D.E. 275-19
Non-party Bitly, Inc. objects to unsealing the records it produced because the records reflect Bitly's internal processes and techniques for identifying abuses of its link shortening platform. D.E. 416. Bitly's records were used by Defendants' expert Anthony Ferrante to conclude that Plaintiffs' infrastructure was likely used by Russian cyber-espionage groups to attack Democratic party leadership. See D.E. 275. Specifically, as Defendants explained, Mr. Ferrante reviewed the Bitly data and "determined that the same user account that successfully hacked [John] Podesta created four nearly identical malicious links that were encoded to appear onscreen as a Google security alert prompting Mr. Podesta to change his Gmail password-and that one of those four phishing links was created using an IP address registered to XBT subsidiary Root S.A." See
This Court is unsealing the Ferrante report, but not the underlying Bitly records. The Ferrante report itself will sufficiently explain Bitly's investigation of the spear phishing attack. And, as Bitly admits, media coverage already has discussed how hackers used Bitly services in connection with the attack. D.E. 416, p. 4. But unsealing the Bitly records would not add anything that is not generally known to the public; instead, it would reveal "additional technical detail of how Bitly can detect potential abuses of its services."
*12634. The Court Will Unseal All Filings Pertaining to Unsealing
To help the public understand this decision, the Court will unseal all documents regarding sealing, including the Court's sealing orders, the inventory of previously-sealed documents (D.E. 378) and the non-parties' position statements. The Court permitted these documents to be filed under seal to maintain the status quo. The public has a right to access the parties' and non-parties' rationales for sealing to see what the Court found persuasive (and what it did not).
IV. CONCLUSION
For these reasons, it is hereby ORDERED AND ADJUDGED that the Times' Motion, D.E. 254, is GRANTED. The Clerk of Court is hereby DIRECTED to UNSEAL all filings in this case EXCEPT FOR D.E. 212-15, D.E. 212-110, D.E. 214-13, and D.E. 275-19. To give the parties the opportunity to seek meaningful appellate review, the Clerk SHALL undertake the unsealing not earlier than March 14, 2019. After that date, Defendants SHALL file versions of D.E. 212-15, D.E. 212-110, and D.E. 214-13 that redact only the personal contact information (addresses and telephone numbers) contained therein.
DONE AND ORDERED in Chambers, Miami, Florida, this _28th_ day of February, 2019.
On December 18, 2018, the Court granted the Motion in part, granting The Times's request to intervene, and deferred ruling on unsealing. D.E. 392. Further, on January 30, 2019, the Court ordered the unsealing of certain documents or portions of documents by consent of the parties and those non-parties who had designated material as confidential. D.E. 421. This Order addresses all remaining issues on unsealing.
See D.E. 384; D.E. 398; D.E. 407; D.E. 410; D.E. 411; D.E. 415; D.E. 416; D.E. 417.
This presumption is further embodied in the Local Rules of this District. Local Rule 5.4(a) reflects a "General Policy" that "Unless otherwise provided by law, Court rule, or Court order, proceedings in the United States District Court are public and Court filings are matters of public record." As such, any motion to seal materials "must set forth the factual and legal basis for departing from the policy that Court filings be public." S.D. Fla. L.R. 5.4(b)(3). The motion also must "describe the proposed sealed filing with as much particularity as possible without revealing the confidential information[ ] and specify the proposed duration of the requested sealing."
Or, as in the case of Nixon , the records would become publicly available through alternative means (there, through operation of the Presidential Recording Act).See 435 U.S. at 597-606,
Though the Court did not rule on the Daubert motions nor motions in limine, as they were rendered moot by the entry of final summary judgment, the public nevertheless should know what issues the parties expected to address (or challenge) if the case had gone to trial.
Defendants generally consent to all unsealing and defer to the Court's balancing, pressing for continued sealing only to the extent the Court deems it necessary to protect non-party interests. See generally D.E. 285; D.E. 378.
Plaintiffs' conclusory claims of "trade secret," see D.E. 378, are not supported by the record evidence.
This Order was entered under seal. Just as there is no longer any reason to keep the Kramer information under seal, there is no longer any reason to keep the Order under seal. The Order, D.E. 144, accordingly will be unsealed.
Bitly also asks this Court to continue sealing D.E. 275-21, the declaration of its CEO authenticating the Bitly data. The declaration reveals no confidential information. The Court finds no good cause to seal the declaration.
Reference
- Full Case Name
- Aleksej GUBAREV v. BUZZFEED, INC.
- Cited By
- 27 cases
- Status
- Published