The judge overseeing Dominion Voting Systems' $1.6 billion defamation lawsuit against Fox News called out the network's "credibility problem" after a last-minute revelation about billionaire media mogul Rupert Murdoch's role at the company.
Justin Nelson, an attorney for Dominion, alleged on Tuesday that Fox News withheld information that would have allowed the voting machine company to obtain more of Murdoch's communications in the lawsuit, according to The Washington Post.
Nelson told Judge Eric Davis that the company was led to believe that Murdoch was only an officer at Fox News' parent company, Fox Corp., but in recent days the company learned that he also has an officer title at Fox News.
"This alone has meant that we are missing a whole bunch of Rupert Murdoch documents that we otherwise would have been entitled to," Nelson said. "It's very troubling that this is where we are. It's something that has really affected how we have litigated this case."
Davis "echoed Nelson's frustration," according to the Post, and said the missing information about Murdoch's title may have affected his decision-making in limiting the scope of the case.
"I could have made an entirely wrong decision," Davis said before calling out the network's "credibility problem."
"My problem is that it's been represented more than once to me that he's not an officer of Fox News," Davis said. "I need to feel comfortable that when you represent something to me, it's the truth. I'm not very happy right now. I don't know why this is such a difficult thing."
Legal experts observed that it was unusual for the "mild-mannered" judge to be "fairly steaming."
"Wow," tweeted attorney George Conway. "The judge is pissed, as he should be," he wrote.
Dominion is suing Fox over false claims made by Trump allies that the company rigged the election against former President Donald Trump. Internal messages released in the lawsuit show that Murdoch, executives and hosts trashed the conspiracy theories they aired and Murdoch acknowledged in his deposition that some hosts "endorsed" the false claims.
An attorney for Fox said that Murdoch's title at Fox News was an "honorific," according to the Post.
"Rupert Murdoch has been listed as executive chairman of Fox News in our [Securities and Exchange Commission] filings for several years and this filing was referenced by Dominion's own attorney during his deposition," a spokesperson for Fox said in a statement.
Dominion sued Fox Corp. as well as Fox News and were able to depose Murdoch and obtain some of his internal communications but Nelson argued that the company should have received additional documents, adding that Dominion is "still evaluating our options."
The judge said that he does not anticipate the revelation to derail the case but would need to determine how to handle the issue, according to the Post.
"I don't know if this is something we have to turn the battleship around, that it's that big of a deal," he said. "We'll deal with it."
At the end of the hearing, Davis told a Fox attorney, "I'm not mad at you."
"I'm mad at the situation I'm in," he said. "So, I have to figure out how I deal with that."
Jury selection in the trial is slated to begin on Thursday.
Former federal prosecutor Elie Honig, a CNN legal analyst, said he would "feel queasy" heading into the trial if he was an attorney for Fox.
"I would not want to be in the position of defending Fox here. I think they're headed for a full-blown journalistic and legal disaster. It is very difficult to successfully sue a media outlet for defamation in this country… that's a very high bar," he said. "But here we have Fox's own texts in black and white, where they call the election fraud claims, and I quote, 'nuts,' 'insane,' 'B.S.'"
