Judge Imposes Sanction on Fox for Withholding Evidence in Defamation Case
Judge Eric Davis also said an investigation was likely into Fox’s handling of documents and whether it had withheld details about Rupert Murdoch’s corporate role.
Fox’s lawyers had only recently disclosed that Rupert Murdoch, the executive chairman of Fox Corp., was also the executive chair of Fox News, a role that pointed to more responsibility for its broadcasts . Credit…Mike Segar/Reuters
WILMINGTON, Del. — The judge overseeing Dominion Voting Systems’ lawsuit against Fox News said on Wednesday that he was imposing a sanction on the network and would very likely start an investigation into whether Fox’s legal team had withheld evidence, scolding the lawyers for not being “straightforward” with him.
The rebuke came after lawyers for Dominion, which is suing for defamation, revealed a number of instances in which Fox’s lawyers had not turned over evidence in a timely manner. That evidence included recordings of the Fox News host Maria Bartiromo talking with former President Donald J. Trump’s lawyers, Sidney Powell and Rudy Giuliani, which Dominion said had been turned over only a week ago.
In imposing sanction on Fox, Judge Eric M. Davis of the Delaware Superior Court ruled that if Dominion had to do additional depositions or redo any already done that “Fox will do everything they can to make the person available, and it will be at a cost to Fox.”
He also said he would very likely appoint a special master to investigate Fox’s handling of discovery of documents and the question of whether Fox had inappropriately withheld details about Rupert Murdoch’s role as a corporate officer of Fox News.
Dominion, a voting technology company, accused Fox and some of the network’s executives and hosts of smearing its reputation by linking it in a series of broadcasts to a baseless conspiracy of mass voter fraud in the 2020 presidential election. Fox said that it was just reporting on newsworthy allegations from Mr. Trump, who was then the president, as well as his lawyers and supporters.
The trial is scheduled to begin on Monday, with jury selection starting on Thursday. It wasn’t immediately clear that Dominion would avail itself of the judge’s ruling that its lawyers could conduct additional depositions.
The judge told Fox’s lawyers to retain all internal communications between themselves relating to the officer issue from the time of March 20. He said he would weigh whether any additional sanctions should be put on Fox.
He said he was very concerned that there had been “misrepresentations to the court.”
“This is very serious,” Judge Davis said.
Davida Brook, a lawyer for Dominion, told the court that they were still receiving relevant documents from Fox, with the trial just days away.
“We keep on learning about more relevant information from individuals other than Fox,” she said. “And to be honest we don’t really know what to do about that, but that is the situation we find ourselves in.”
She pointed to one email that had recently been handed over, between Ms. Bartiromo and Ms. Powell on Nov. 7, 2020. In the email, Ms. Powell was forwarding evidence to Ms. Bartiromo that Dominion said was proof that Fox had acted recklessly: an email from a woman Ms. Powell relied on as a source who exhibited signs of delusion, claiming, for instance, that she was aware of voter fraud because she had special powers, including the ability to time travel.
“I just spoke to Eric and told him you gave very imp info,” Ms. Bartiromo wrote back to Ms. Powell, most likely referring to Eric Trump, Mr. Trump’s son.
Ms. Brook also played two recordings for the court of pre-interviews, a preliminary conversation before an on-air interview, done by Ms. Bartiromo that she said were received only after they were revealed in legal complaints filed by Abby Grossberg, a former Fox News producer who is suing the network.
In one of the recordings, on Nov. 8, 2020, Ms. Bartiromo asks Mr. Giuliani about the Dominion software. He says that “it’s being analyzed right now.” When she asks about a false connection to Nancy Pelosi, Mr. Giuliani says: “Yeah, I’ve read that. I can’t prove that yet.”
Justin Nelson, another lawyer for Dominion, asked Judge Davis to deconsolidate the case, focusing solely on Fox News at the trial and excluding Fox Corporation, its parent company, because Fox’s lawyers had only recently disclosed that Mr. Murdoch, the executive chairman of Fox Corp., was also the executive chair of Fox News, a role that pointed to more responsibility for its broadcasts.
Mr. Nelson said had that information been given earlier, the scope of the discovery of documents would have been much larger and relevant documents could be missing.
“We have been litigating based upon this false premise that Rupert Murdoch wasn’t an officer of Fox News,” he said.
Judge Davis declined to deconsolidate the case but expressed concern that Fox’s legal team had not been forthcoming with the information, despite being asked multiple times whether or not Mr. Murdoch was a corporate officer for Fox News.
“I need people to tell me the truth,” he said. “And by the way, omission is a lie.”
Dan K. Webb, a lawyer for Fox, pushed back on the assertion from Dominion, saying that both he and even Mr. Murdoch himself didn’t realize he also held the executive chair role at Fox News.
“On a day-to-day basis, Mr. Rupert Murdoch had nothing to do with making decisions with what goes on the air on Fox News,” Mr. Webb said.
In an emailed statement, a Fox News spokeswoman said: “Rupert Murdoch has been listed as executive chairman of Fox News in our S.E.C. filings since 2019 and this filing was referenced by Dominion’s own attorney during his deposition.”
Judge Davis admonished Fox’s lawyers, saying he had previously asked for clarity on who had corporate responsibilities at Fox News but had not heard back.
“What do I do with attorneys that aren’t straightforward with me?” he asked.
Katie Robertson is a media reporter. She previously worked as an editor and reporter at Bloomberg and News Corporation Australia. Email: katie.robertson@nytimes.com @katie_robertson
