BuzzFeed’s Ben Smith mediation snub sends dossier lawsuit to trial

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.