The judge overseeing Dominion Voting Systems’ massive defamation case against Fox News said Wednesday that he plans to appoint an outside attorney to investigate whether the right-wing network lied to the court and withheld key evidence, and sanctioned Fox over the matter.
“I am very concerned… that there have been misrepresentations to the court. This is very serious,” Delaware Superior Court Judge Eric Davis said Wednesday at a pretrial hearing in Wilmington, where he repeatedly expressed exasperation and frustration with Fox’s attorneys.
The sanction Davis imposed against Fox will allow Dominion to conduct additional depositions of some Fox witnesses, if they want to, at this late stage in the case. Fox must make those witnesses available and pay for the depositions.
These extraordinary moves, on the brink of trial, are the latest blows to Fox News as it tries to fend off the $1.6 billion defamation lawsuit that Dominion filed over the network’s promotion of the false claim that its voting software rigged the 2020 election. Jury selection is set to begin Thursday, with opening statements following on Monday.
Davis said he would appoint a so-called “special master” to investigate whether Fox previously made assertions to the court that were “untrue or negligent.” The special master’s inquiry appears to be twofold: First, Did Fox withhold key materials from Dominion during the discovery process? And second, did Fox mislead the court by obfuscating Rupert Murdoch’s role at Fox News?
Fox had previously told Dominion and the judge that Murdoch was only an officer at Fox Corporation and didn’t have any role in Fox News. Dominion says this distinction may have narrowed what Fox turned over as part of the discovery process – like internal emails, text messages and other material.
Fox denies that it ever defamed Dominion, and says it properly disclosed Murdoch’s roles in its public financial filings. Fox attorney Dan Webb said at Wednesday’s hearing that “nobody intentionally withheld information” from Dominion.
The special master will look into what sanctions might be appropriate against Fox, including potentially instructing jurors that Fox inappropriately blocked Dominion from obtaining key evidence. Fox said it would oppose this move, and the judge said he’ll decide later in the case.
I’m very uncomfortable right now,” Davis said, after dressing down Fox’s lawyers from the bench.
The judge ordered Fox lawyers to preserve “any and all communications” related to the Murdoch issue, expressing alarm that they may have deliberately provided him with inaccurate information.
The 11th-hour drama escalated Wednesday when Dominion played previously unaired tapes of Fox News host Maria Bartiromo talking in November 2020 with then-Trump attorneys Rudy Giuliani and Sidney Powell.
In the tapes, Giuliani told Bartiromo he “can’t prove” some of his allegations about Dominion, and Bartiromo expressed interest in promoting Powell’s fundraising website on her broadcast.
Dominion lawyer Davida Brook said Fox had only turned over the material last week, after Bartiromo’s former senior producer Abby Grossberg revealed in a lawsuit that the recordings existed.
“We keep on finding out about missing documents in this case, not from Fox, but from others,” Brook said.
The judge agreed that the material was “extremely relevant” and chided Fox yet again, in what has become a near-daily occurrence as the case careens toward trial.
“Abby Grossberg is not Dominion’s problem. It’s not my problem. Abby Grossberg is a Fox problem. She was an employee at Fox. She is relevant to the case,” Davis said. “These tape recordings… they relate directly to one of the statements we are litigating… The question is, are there other documents like that out there?”
A Fox lawyer said that the company had given Dominion more than a million documents and denied that it tried to suppress any evidence in the case.
“As counsel explained to the Court, Fox produced the supplemental information from Ms. Grossberg when we first learned it,” a Fox spokesperson said in a statement after the hearing.