Jury selection begins on Thursday in the $1.6bn defamation lawsuit by Dominion Voting Systems against Fox News over the 202o presidential election results, ahead of the expected trial opening on Monday.
The judge presiding over the case has indicated that he plans to appoint an investigator to look into whether Rupert Murdoch’s media empire lied to the court over the extent of his involvement in programming.
In heated exchanges with Fox lawyers on Wednesday, Judge Eric Davis of the Delaware superior court vented deep frustration about how Fox News and its parent company Fox Corporation had conducted themselves. The defamation suit is set to go to trial next week in what promises to be one of the most closely watched and consequential media court battles in recent times.
Davis said that he was minded to appoint a “special master” to look into whether Fox had given information to the court that was “untrue or negligent”. Prompting the judge’s anger was the claim that Fox had been dragging its feet in handing over critical evidence to Dominion as it was obliged to do under discovery rules.
“I need people to tell me the truth,” he said. “And by the way, omission is a lie.”
The trial set to start next week will have potentially profound implications for the reputation of America’s most popular cable news channel as well as for the first amendment rights of US media more generally. Dominion argues that its business was damaged by the airing by Fox News of untrue conspiracy theories related to its vote counting machines during Donald Trump’s attempt to subvert the 2020 presidential election result.
Fox is defending its broadcasting by saying it was covering newsworthy comments from a sitting US president and his close advisers that could not be ignored.
A leading Dominion lawyer, Justin Nelson, complained to the court on Wednesday that Fox had been less than fully cooperative during the discovery process. He said that only recently had the firm divulged that Murdoch was not only executive chairman of Fox Corp but also the executive chair of Fox News.
That role would suggest a much more intimate relationship between the 92-year-old media tycoon and Fox News output than had previously been admitted. Dominion argued that by failing to disclose Murdoch’s Fox News position, the firm had also limited the scale of the information it was obliged to hand over to the voting company under discovery.
“We have been litigating based upon this false premise that Rupert Murdoch wasn’t an officer of Fox News,” Nelson said.
In evident frustration, the judge said: “I’m very uncomfortable right now.”
Fox’s legal team countered that the late disclosure of Murdoch’s Fox News role was due to ignorance rather than duplicity.
A Fox lawyer, Dan Webb, told the court that in terms of daily output, “Mr Rupert Murdoch has nothing to do with making decisions with what goes on the air on Fox News”.
Dominion complained that it was still receiving vital evidence from Fox just days away from trial. That includes recordings of conversations between the Fox Business and Fox News host Maria Bartiromo and two lawyers at the center of Trump’s campaign to prove the lie that the election had been stolen from him – Sidney Powell and Rudy Giuliani.
Davis instructed Fox lawyers to keep “any and all communications” relating to Murdoch’s role in the channel. He also stipulated that if Dominion had to hold extra depositions as a result of the late disclosure of evidence, the cost of the proceedings would fall squarely on Fox.
Fox refuted the confusion. “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,” read a company statement.
