A second day of pre-trial hearings in the billion-dollar Fox defamation lawsuit on Wednesday featured a Delaware judge declaring he would sanction Fox News and launch an investigation into Fox’s apparent failures to disclose information.
The trial, one of the most significant defamation cases in many years, is set to begin on Monday. Dominion Voting Systems, one of the leading makers of voting equipment, sued the conservative cable outlet in 2021 after it aired numerous false statements by guests and hosts baselessly claiming that the company somehow rigged voting machines to help Joe Biden steal the election from then-President Trump.
Numerous post-election lawsuits and audits confirmed that Biden’s win was legitimate.
Delaware Superior Court Judge Eric M. Davis warned Fox “I need people to tell me the truth.”
“And, by the way, omission is a lie,” he said. Last week, Davis ruled that Dominion had already proved the contested statements’ falsity and that jury won’t have to weigh their validity; instead, the judge will instruct them that the statements are false.
The comments Wednesday follow a bombshell disclosure to Davis on Tuesday about Rupert Murdoch’s particular role as executive chairman of Fox News — in addition to chair of its parent company Fox Corp. — that left the judge questioning whether he could have made earlier judicial decisions differently.
Davis on Tuesday said Fox lawyers previously had “represented to him more than once” that Murdoch was not an officer for the subsidiary cable network.
“People need to understand. Don’t play games with this stuff,” Davis said, directing his frustrations toward Fox’s attorneys.
Dominion’s attorneys on Wednesday urged Davis to respond to the apparent misstatements about Murdoch’s role. They suggested the court either strip apart Dominion’s claims against Fox News and Fox Corp so they are two separate lawsuits, or instruct the jury in a forthcoming trial to take an “adverse inference” because of the confusion over Murdoch’s role.
Such an inference could lead the jury to believe that Fox had purposely kept information hidden from the court.
Dominion attorney Justin Nelson argued that his team had “been litigating on a false premise,” and consequently missing out on information during earlier stages of the lawsuit because of apparent misunderstandings of Murdoch’s role.
“There’s no way to fix it on the eve of trial,” Nelson said.
Responding to the claims, Fox attorney Dan Webb said no one at Fox had intentionally withheld information. He also said any assertion that Dominion didn’t know about Murdoch’s role with Fox was unbelievable, because the company’s attorneys had asked Murdoch about his Fox News role during a deposition.
Furthermore, Webb argued, Murdoch’s role is largely irrelevant because there is not “a shred of evidence” showing he managed operations at the network during the wake of the 2020 presidential election.
Still, Dominion’s attorneys also claimed that a failure to share all relevant evidence in the case extends beyond Rupert Murdoch.
Citing revelations from a separate lawsuit against Fox filed last month by a former producer, Dominion attorney Davida Brook said recordings of conversations featuring Fox host Maria Bartiromo, among others, were never released to Dominion’s side. Brook further said there were thousands of message sent to or from Bartiromo’s personal email account that weren’t provided to Dominion in a timely manner.
The comments prompted clear discomfort from Davis. Such unease appeared to cause a bout of sarcasm from the judge when he said unprovoked to a Fox attorney that Bartiromo is “clearly neutral.”
“I’m sorry,” the attorney said, confused. “She’s clearly neutral,” the judge repeated.
“I’m being sarcastic,” he said after a pause.
Moving forward, Davis announced he would appoint a so-called “special master” to investigate Fox’s apparent failure to share all information. Davis also allowed Dominion to re-depose some witnesses from Fox, including Bartiromo, at Fox’s expense.
Davis did not indicate a timeline for the special master’s investigation.