The Dominion lawsuit is not going well for Fox News
A judge slapped the network with sanctions just ahead of trial.
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By Lisa Needham
The Fox News/Dominion lawsuit isn’t going as the network likely planned. On the eve of the trial beginning, they’ve been slapped with sanctions after playing fast and loose by trying to conceal Rupert Murdoch’s role with Fox News. There’s a Rudy Giuliani problem too.
(As this newsletter was being finalized Sunday evening, news broke that the start of the trial has been delayed until Tuesday, and that Fox News is reportedly making a late push the settle out of court — developments that say something about the state of the defense.)
In March 2021, Dominion Voting Systems filed a defamation lawsuit seeking $1.6 billion over Fox News’ willingness to air statements that Dominion’s voting machines were rigged to throw the election to President Joe Biden. Since then, it’s been one blow after another to the network.
In late 2021, the network tried — and failed — to get the lawsuit thrown out. Delaware State Court Judge Eric Davis ruled that the court “can infer that Fox intended to avoid the truth,” which is a polite way of saying he would not toss out the lawsuit.
Earlier this year, both parties moved for summary judgment. In a summary judgment motion, a party asks the court to resolve the issue without a trial, arguing that what has already been learned about the case leaves no doubt about significant facts, and the judge can just make a legal ruling.
Fox argued their statements were protected by the First Amendment and that Dominion had suffered no damages. Dominion argued there could be no disputing that claims made about the company on the network were false. Judge Davis agreed with Dominion, resulting in a lengthy smackdown where he said the evidence was “crystal clear that none of the statements relating to Dominion about the 2020 election are true.” This means that at trial, Dominion will not have to prove the statements made by Fox talking heads were false. The only issues at trial will be the state of mind of the Fox defendants — were they deliberately making statements they knew to be false? — and what damages Dominion suffered. The jury will be specifically instructed the statements were false and defamed Dominion.
This brings us to the most recent developments, which are also not great for Fox. Trial is right around the corner. By this time in a case, the parties usually aren’t engaged in any further discovery. However, Fox played some games about the role of Rupert Murdoch at the company.
Why Fox News got hit with sanctions
It’s undisputed Murdoch is the chair of Fox Corporation. Throughout the lawsuit, however, Fox was cagey about whether he also had a role at Fox News. If Murdoch only had a role at Fox Corporation, he wouldn’t have been required to turn over as much documentation as if he was at Fox News, as the news side of things was responsible for pushing the big lie about Dominion helping steal an election. Two years into the litigation and after literally hundreds of filings in court, Fox admitted that Murdoch was also a corporate officer for Fox News.
And Fox wasn’t just deceiving Dominion. They also told the judge on more than one occasion that Murdoch wasn’t an officer and had no official role with the news side. Then, on the eve of trial, Fox told Dominion and the court that Murdoch is a corporate officer at Fox News. Dominion said this may have allowed Fox to withhold material like texts and emails relevant to the lawsuit. Fox was also attempting to prevent Rupert Murdoch and other Murdoch family members from being required to testify at trial.
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Judges do not enjoy being lied to, and the judge was, understandably, livid. He told Fox they had a “credibility problem.” He also sanctioned Fox at a pre-trial last Wednesday, telling them that if Dominion had to do additional depositions of Fox personnel or redo any previous depositions, Fox would have to foot the bill.
That might seem like nothing more than a slap on the wrist, but it’s a pretty big deal. Both sides have enormous teams of high-powered lawyers, and Fox now has to cover the cost of Dominion’s for any additional discovery. It’s impossible to say precisely what kind of money that means, but just as a benchmark: Partners at big fancy law firms currently bill as much as $2,000 per hour while associates come in around $500 an hour or so. Fox is looking at paying Dominion several thousand dollars for every hour needed for additional depositions and fact-finding — and that doesn’t include Fox needing to pay their own attorneys to attend.
Newly unearthed tapes are also bad for Fox
Fox also didn’t turn over recordings of Rudy Giuliani talking with on-air host Maria Bartiromo and Sidney Powell in November 2020, when Giuliani and Powell were still representing Trump in his post-election challenges. On the tapes, Bartiromo specifically asked about Dominion and Giuliani admitted he had no evidence showing the company’s software could be used to flip votes, but it was “being analyzed right now.” Bartiromo also asked about the wild conspiracy theory that Nancy Pelosi was somehow involved with Dominion and had used the software to steal votes from Trump and other Democrats. Giuliani said he’d heard of that but “can’t prove that yet.” Undeterred, Bartiromo ran with the story, letting Sidney Powell talk at length about it on November 8, 2020.
Fox had these recordings because they were pre-interview footage filmed before an on-air interview. However, Fox didn’t give them to Dominion until a few days ago when, Fox said, they learned of their existence when they were produced in a separate lawsuit where a former senior producer for Bartiromo is suing the network. Fox tried to tell the judge that they had only just learned of this as well, and the judge was having none of it, telling the attorneys the recordings were directly related to statements being argued about in litigation and should have been turned over. The judge then asked, “The question is, are there other documents like that out there?” (MSNBC host Alex Wagner played the recordings on her show last week, and you can listen to them below.)
This isn’t the judge musing hypothetically. He’s genuinely unhappy with Fox and concerned they may have withheld other things. Because of that, he’s appointing a special master to determine whether Fox withheld information from Dominion and whether they told the court things that were “untrue or negligent.” There’s speculation the special master may also look into how Murdoch’s role at the network was concealed and whether that limited the material provided to Dominion.
Special masters were in the news recently because Donald Trump asked one be appointed in the Mar-a-Lago classified documents case. Special masters are typically attorneys but don’t have to be. They’re neutral in that they don’t represent either party. Rather, they act as a helper to the court in difficult cases. They often function as investigators, which is their most likely role here in the Fox case — investigating whether Fox’s attorneys deliberately withheld information from the court and Dominion or whether these were just things that were overlooked in a long, complex case. The latter is somewhat forgivable, but the former is deeply problematic.
Thus far, the entire lawsuit has been an embarrassment for Fox, both in and out of the courtroom. Having the world find out that the anchors and executives thought Trump was a buffoon and that Powell’s election fraud claims were “just mind-blowingly nuts” has not been great for Fox. But irking the judge overseeing a trial in which Fox could be hit with a ten-figure damages award is far, far worse.
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