Gubarev v. Buzzfeed, Inc. (In re Third Party Subpoena to Fusion GPS )
Gubarev v. Buzzfeed, Inc. (In re Third Party Subpoena to Fusion GPS )
Opinion of the Court
On August 31, 2017, Fusion GPS ("Fusion") filed a motion in the United States District Court for the District of Columbia seeking to quash a third-party subpoena issued in connection with a defamation action currently pending in the United States District Court for the Southern District of Florida. On January 3, 2018, Fusion sent a letter to me asking that I consider disqualifying myself, and on January 8, 2018, I invited Fusion to submit formal briefing on the matter. Now before the Court is Fusion's motion for recusal, which argues that my impartiality in deciding its motion to quash might reasonably be questioned because a shareholder of one of my former clients and President Trump have purported interests in the matter. Because a reasonable person who was informed of all the surrounding facts and circumstances would not believe that such an interest exists nor that such an interest, if it existed, would create an appearance of bias, the motion for recusal will be denied.
I. BACKGROUND
In the underlying litigation, Aleksej Gubarev, XBT Holdings S.A., and Webzilla, Inc., (collectively, "the Plaintiffs") are suing Buzzfeed, Inc., and its editor in chief for defamation. As quoted in their complaint, their defamation claim arises out of Buzzfeed's publication of the following statement:
[Redacted] 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 Aleksei 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. In Prague, COHEN agreed [to] contingency plans for various scenarios to protect the operations, but in particular what was to be done in the event that Hillary CLINTON won the presidency. It was important in this event that all cash payments owed were made quickly and discreetly and that *309cyber and that cyber [sic] and other operators were stood down / able to go effectively to ground to cover their traces.
Mot. Quash Ex. 6 ¶ 26. This statement appeared in the last of a series of memoranda written by Christopher Steele after he was retained by Fusion to investigate Donald Trump's ties to Russia.
Fusion is not a party to the underlying litigation, but it is the recipient of a third-party subpoena from the Plaintiffs with which it does not wish to comply. In light of Fusion's concerns about disclosing the information requested by the subpoena, the Plaintiffs in the underlying case have agreed that any information Fusion produces will be designated "Attorneys' Eyes Only," meaning that "it will not be shared with anyone other than the lawyers working on the underlying case in Florida" and that it will not be shared with any of the parties or with lawyers working on related matters. Opp. to Mot. Quash Ex. 5. Notwithstanding that agreement, Fusion has moved to quash the subpoena. Fusion now asks that I disqualify myself from consideration of its motion to quash.
II. LEGAL STANDARD
III. ANALYSIS
Notably, Fusion does not argue that any of the disqualifying circumstances enumerated in § 455(b) are present in this matter. Instead, it argues that there are two *310grounds on which my impartiality might reasonably be questioned under § 455(a). First, "Mikhail Fridman-the Court's recent former client-has a significant interest in the outcome of Fusion's motion to quash." Reply ISO Mot. Recuse at 1. Second, "the Court's recent former employer, President Donald Trump, also has an interest in the outcome of the motion."
A. Both Mikhail Fridman's Connection to the Court and His Alleged Interest in This Matter Are Too Attenuated to Raise Reasonable Doubt Regarding My Impartiality
As an initial matter, Fusion is simply incorrect in characterizing Mikhail Fridman as my former client. The fact of the matter is that I do not know, have not met, and have never worked for Mr. Fridman. Nor has Fusion even alleged facts to support its description of Mr. Fridman as my former client. Rather, Fusion notes that I was previously part of the legal team providing compliance advice to VimpelCom Ltd.
By no stretch of the imagination is VimpelCom a mere shell company serving as Mr. Fridman's alter ego. It is one of the world's largest publicly traded companies, with nearly 42,000 employees and a market cap of $6.8 billion, and it provides telecommunications services to customers in 17 countries around the world.
Fusion offers no authority for the proposition that a judge should disqualify himself based on the interests of a person with such an attenuated connection to the judge's time in private practice.
*311Section 455(b)(2) specifically addresses private-practice-related conflicts, and it limits disqualification to situations in which the judge "served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it." This is not such a situation, and Fusion does not claim otherwise. The matter in which I advised VimpelCom is not the matter raised by the motion to quash and is not related to it.
Even if there were some connection between me and Mr. Fridman, there is no cognizable connection between Mr. Fridman and the motion to quash. Fusion argues that, although Mr. Fridman is not a party to the case before me or to the underlying litigation, he is "interested" in the case due to the fact that he has filed a separate defamation claim against Fusion.
Mr. Fridman's alleged interests in this case are not cognizable for purposes of § 455(a). Fusion relies on two cases to establish that a judge may be disqualified based on a third party's interests, but both cases concern financial interests that were far more direct than Mr. Fridman's alleged interests here. Mot. Recuse at 9; Reply ISO Mot. Recuse at 3-4. First, Fusion cites Preston v. United States , in which the Ninth Circuit found a judge disqualified based on his relationship with a third party that had contracted to indemnify one of the parties before him. See
B. Both President Trump's Connection to the Court and His Alleged Interest in This Matter Are Too Attenuated to Raise Reasonable Doubt Regarding My Impartiality
Fusion's view that "the Court's recent former employer, President Donald Trump, also has an interest in the outcome of the motion" is similarly factually misinformed and legally unpersuasive. See Reply ISO Mot. Recuse at 1. Fusion's characterization of President Trump as my recent former employer appears to be based on public documents reflecting the fact that I "volunteered as a vetter for President Trump's transition team." Mot. Recuse at 6; see also id. at 7-8, 10-11; Reply ISO Mot. Recuse at 1, 4. However, my sporadic and unpaid volunteer activity during the fall of 2016 did not make President Trump my employer. See Employer , Black's Law Dictionary (10th ed. 2014) ("A person, company, or organization for whom someone works; esp., one who controls and directs a worker under an express or implied contract of hire and who pays the worker's salary or wages.").
Fusion cites two cases in its effort to suggest that this tenuous connection with President Trump provides grounds for disqualification, neither of which are binding in this circuit or in any other. First, it cites United States v. Fiske , in which a district judge disqualified himself with extreme reluctance based on his understanding of *313Eighth Circuit precedent, his friendship with the Clintons, and the possibility that one of the parties might eventually be alleged to have connections with the Clintons.
These cases do not support the view that my attenuated connection with President Trump provides grounds for disqualification. As for Fiske , the district judge in that case disqualified himself in the interest of judicial economy because he interpreted the Eighth Circuit's decision in United States v. Tucker expansively and was concerned that, if some connection between a party and the Clintons were alleged after he decided the case, the Eighth Circuit might determine that he was disqualified and vacate his decision. Fiske ,
Even if there had been some reasonably strong connection between the President and me, it is far from clear that President Trump has the type of legally-cognizable interest in this case that would call my impartiality into question. Fusion argues that President Trump has an interest in the motion to quash because he has tweeted criticisms of Fusion and of the memoranda that Christopher Steele wrote after he was retained by Fusion to investigate President Trump's ties to Russia. Mot. Recuse at 10-11; Reply ISO Mot. Recuse at 4. According to Fusion, denying the motion to quash would further President Trump's "political interests." Mot. Recuse at 11. However, a reasonable observer would not question my ability to remain impartial based on the possibility that discovery in this case might help the Plaintiffs show that they were defamed and that this, in turn, might further the President's political interests by indirectly justifying his criticisms of a detractor.
*314Even a personal friendship with a politician is generally not grounds for disqualification unless "the personal fortune or the personal freedom of the friend" is at issue. See Cheney ,
* * *
"It is, of course, an inescapable part of our system of government that judges are drawn primarily from lawyers who have participated in public and political affairs. The fact of past political activity alone will rarely require recusal ...." Higganbotham v. Okla. Transp. Comm'n ,
IV. CONCLUSION
For the foregoing reasons, Fusion's arguments for disqualification do not demonstrate *315an appearance of bias, whether taken individually or as a whole. Accordingly, Fusion's motion for recusal will be denied.
"It would obviously be wrong, for example, to hold that 'impartiality could reasonably be questioned' simply because one of the parties is in the fourth degree of relationship to the judge. Section 455(b)(5), which addresses the matter of relationship specifically, ends the disability at the third degree of relationship, and that should obviously govern for purposes of § 455(a) as well. Similarly, § 455(b)(1), which addresses the matter of personal bias and prejudice specifically, contains the 'extrajudicial source' limitation-and that limitation (since nothing in the text contradicts it) should govern for purposes of § 455(a) as well."
VimpelCom has since been renamed Veon but is referred to as VimpelCom in this opinion.
Forbes, "Veon on the Forbes Global 2000 List," May 2017. Available at https://www.forbes.com/companies/veon/ (last accessed Feb. 16, 2018).
Fusion cites three state rules for the proposition that a judge should disqualify himself from cases in which a recent former client is an actual party and cites a recommendation in an advisory opinion by the Committee on Codes of Conduct that a judge consider disqualifying himself from cases involving a firm at which he recently worked.
Fusion asserts that my role in VimpelCom's representation is "relevant" to a different lawsuit that Mr. Fridman has brought against Fusion because, in that case, Fusion referenced VimpelCom's FCPA settlement as part of an effort to show that Mr. Fridman is a public figure. Mot. Recuse at 9-10. My representation of VimpelCom did not begin until after the settlement in question. Even if I had represented VimpelCom in the settlement, Fusion's assertion that the settlement is relevant to Mr. Fridman's case would have nothing to do with the case presently before me.
Fusion also makes passing reference to the fact that my former firm also represented the Alfa Group, alleging that Mr. Fridman is one of the Alfa Group's three primary owners. Mot. Recuse at 10 n.18. This alleged connection between me and Mr. Fridman is even more attenuated than the connection through VimpelCom and does nothing to change the fact that I have no relationship with him.
Fusion also notes that Mr. Fridman has a case pending against Buzzfeed in New York state court. See Fridman et al. v. Buzzfeed et al. , Index No. 154895/2017 (N.Y. Sup. Ct).
In 2017, I did serve as a Deputy Assistant Attorney General in the U.S. Department of Justice, but Fusion's briefing has not claimed that my government employment made the President my employer, nor that my service there raises any grounds for disqualification.
This case is particularly unlikely to become a leading source of information that is of interest to the President in light of the "Attorneys' Eyes Only" agreement. Of course, any question about the eventual disclosure of information at trial would be decided by the District Court for the Southern District of Florida, not me.
Reference
- Full Case Name
- IN RE THIRD PARTY SUBPOENA TO FUSION GPS, c/o Zuckerman Spaeder LLP 1800 M Street, N.W. Washington, D.C. 20036 Aleksej Gubarev v. Buzzfeed, Inc.
- Cited By
- 2 cases
- Status
- Published