The presiding judge over the $1.6 billion defamation lawsuit against Fox News by Dominion, a voting machine company, 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. Judge Eric Davis of the Delaware superior court expressed deep frustration about how Fox News and its parent company, Fox Corporation, had conducted themselves in heated exchanges with Fox lawyers on Wednesday. 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 considering appointing a “special master” to investigate whether Fox had provided the court with information that was “untrue or negligent”. The judge was prompted to take this action due to Fox’s alleged delay 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 Fox News airing 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. 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. Even Murdoch had no idea until recently that he was the channel’s executive chair. 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.