Judge Rebukes Fox News for Deceit in Defamation Case
WILMINGTON, Del. — Accusations of wrongdoing ahead of a trial next week in Dominion Voting Systems’ lawsuit against Fox News shifted to the attorneys for the television network on Wednesday.
The Delaware judge accused the attorneys of hiding evidence and of deceit in misrepresenting Fox Corp. Chief Executive Rupert Murdoch’s dual role in overseeing Fox News.
He sanctioned Fox News by requiring it to pay for another deposition of a key witness who might have evidence the news network knowingly reported false allegations from former President Donald Trump that voter fraud led to his defeat in the 2020 election.
Trump’s most severe allegations fell on Dominion Voting Systems, the company that provided most of the voting machines for the election. Trump said Dominion altered the vote to show Joe Biden won the election.
Dominion is suing Fox News and its parent company Fox Corp. for defamation, claiming $1.6 billion in damages.
Jury selection for the civil trial started Thursday. Opening arguments from the attorneys are scheduled for Monday.
Superior Court Judge Eric M. Davis said he is considering additional sanctions against Fox News and its attorneys. He said he might appoint a special master to review the company’s pretrial conduct.
At issue are recordings that show television host Maria Bartiromo and other reporters and editors knew there was no proof of voter fraud before they reported that it appeared to be true. A former producer for Bartiromo, Abby Grossberg, said Fox News repeated the allegations in an attempt to boost its television market share.
Fox fired Grossberg after she went public with her allegations. She is suing the network.
Fox News and its attorneys did not reveal the recordings to Dominion’s legal team until Grossberg and others mentioned them in court filings. Only after the judge ordered Fox News to turn the recordings over were they revealed to the court.
In one November 2020 video clip, Bartiromo asked former Trump attorney Rudy Giuliani about whether the Dominion software could have been used to change the vote counts.
Giuliani replied, “That’s a little harder to tell you — it’s being analyzed right now.”
Giuliani also admitted that he “can’t prove” Trump’s allegation that then-Democratic House Speaker Nancy Pelosi, D-Calif., held an interest in Dominion.
A second clip in December 2020 shows a Trump administration official telling Fox News the Dominion voting machines were inspected but “there weren’t any physical issues with the machines.”
Fox News omitted the recordings from its reports on the election.
Other comments from the judge imply Fox News attorneys were trying to protect Murdoch from responsibility for the Fox News reports.
Murdoch is chairman and chief executive of Fox Corp. but his attorneys implied in the pretrial exchange of evidence with Dominion that he had no active role in Fox News. Evidence mentioned at a pretrial hearing Wednesday showed Murdoch is Fox News’ executive chairman.
As a result, he might be forced to testify at the trial along with other Fox News executives, editors and reporters.
Davis said Wednesday he “didn’t realize how evasive” Fox and its attorneys were in characterizing Murdoch’s relationship with Fox News.
Fox News denied evasiveness or deceit, saying in a statement Wednesday, “Rupert Murdoch has been listed as executive chairman of Fox News in our SEC filings for several years and this filing was referenced by Dominion’s own attorney during his deposition.”
The trial is not expected to reach into the truth or falsity of allegations of voter fraud. More likely it will focus on whether Fox News knew the voter fraud accusations were false and on Dominion’s claim of $1.6 billion in damages.
Fox News is claiming First Amendment free speech rights of the news media. Dominion argues that knowingly broadcasting false accusations is the same as the legal standard of “actual malice” required to successfully sue the media.
Fox News also says the damages claim exceeds the value of Dominion as a company and cannot be proved.
In an earlier summary judgment ruling that favored Dominion, Davis wrote, “The evidence developed in this civil proceeding demonstrates that it is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true.”