Fox News was cited for “discovery misconduct” by the judge in the $1.6 billion defamation case filed by Dominion Voting Systems after learning that recorded conversations with former president Donald Trump’s attorneys were not turned over as evidence.
The potentially significant revelation that such tapes exists — which could impact the upcoming trial on the case — came to light in a revised legal complaint filed Tuesday by Abby Grossberg, who worked as a producer for the network’s anchor Maria Bartiromo.
Grossberg is suing the network for discrimination and wrongful termination.
An excerpt of the tapes was played during a pretrial hearing Thursday in Delaware. Superior Court Eric Judge said the recordings belonged as evidence and admonished Fox News attorneys for withholding the information. Davis said he is also considering the appointment of a special master to determine whether other relevant material has been withheld.
Dominion can also conduct another deposition with Fox News picking up the tab.
Fox News had no comment on the judge’s ruling. The company previously said it complied with the discovery obligations in the case.
Davis also entered a recent NPR report into the record that said Fox News chief political anchor Bret Baier proposed a special to fact check and debunk the voter fraud claims that had been spread by other programs on the network. The idea was not considered according to the report, but there is no documentation in the evidence that shows it was discussed.
Fox News and Dominion are heading to trial on Monday, where a jury will be asked to decide whether the network acted with malice when it presented the false allegations in the months after the 2020 election when Trump was promoting false claims of voter fraud as the reason for his loss to President Joe Biden.
Grossberg said taped conversations with Giuliani and Powell occurred before they appeared on the Nov. 15, 2020, edition of Bartiromo’s program “Sunday Morning Futures” where the legal duo made false statements about voter fraud claims promoted by Trump. In one conversation, Giuliani acknowledges that he had little evidence to back up the claims he discussed on the program.
Giuliani is a target of a Georgia criminal investigation into possible illegal attempts by Trump and others to interfere in the 2020 general election in the state where Biden won by a slim margin. He has denied any wrongdoing.
Grossberg said the recordings were on her mobile phone, which were taken by Fox News lawyers so that her texts and emails could be submitted as evidence last year ahead of her deposition testimony. Her complaint said the conversations were not included because they would hurt the network’s defense in the case.
“Fox News knew that these recordings went against its interests in relation to the claims in the Dominion Lawsuit, particularly with respect to proving actual malice, and therefore, upon information and belief, intentionally or recklessly withheld and/or failed to produce this damaging discovery,” the court filing said.
Grossberg’s complaint, originally filed March 20, cites a recording made on or about Nov. 15, where Giuliani admitted to Bartiromo that the Trump campaign could not prove some of the allegations regarding Dominion. Giuliani and Powell had gone on “Sunday Morning Futures,” where they said the companies machine used software that manipulated votes to rig the election for Biden.
The filing said in the same recording Bartiromo also questioned Powell before she taped an interview for the program.
“What’s most important and most compelling that you would like to — that you can get out this morning? Tell me. We’re not rolling yet,” Bartiromo said.
Powell presented nothing of substance and Bartiromo did not press her further.
Grossberg’s phone also contained a conversation with an official from the Trump campaign who said there was no evidence that there was any problem with the voting machines in Georgia. The official urged Bartiromo to discuss the Jan. 6 vote by Congress to certify the election and how it was the last chance to reverse the outcome in favor of Trump.
The Jan. 6 vote was interrupted by rioting Trump supporters who stormed the Capitol. Davis ruled Wednesday that Dominion attorneys cannot discuss the insurrection in their presentation.
The conversations were held in front of David Clark, the Fox News executive in charge of Bartiromo’s program at the time, and a control room full of staffers, according to the complaint.
Grossberg, who most recently worked for the Fox News show “Tucker Carlson Tonight,” was fired by Fox News after she filed her lawsuit. The company said she was free to make a legal claim but was in possession of privileged information and was not authorized to disclose it publicly. Once she did in her lawsuit, her employment ended.
