// The trial hasn’t even started in Dominion Voting Systems’s $1.6 billion defamation suit against Fox News, but already Fox is in major hot water.

Yesterday, as the parties convened in Delaware Superior Court for pre-trial hearings before jury selection commences next week, it emerged that Fox had failed to disclose that Fox Corp chairman Rupert Murdoch also held an official position at Fox News. This distinction matters because Fox Corp, the parent company and the one with the biggest pockets, has disclaimed responsibility for the defamatory statements made on Fox News. In fact, after the court granted a partial summary judgment to Dominion finding that all 20 of the statements pointed to in the complaint are defamatory, Fox Corp’s vicarious liability is one of the only issues remaining for the jury.

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“You have a credibility problem,” Judge Eric Davis told Fox’s lawyers at yesterday’s hearing, according to CNN, adding, “I need to feel comfortable that when you represent something with me that it’s the truth — and that was not true.”

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For its part, the company defended itself by saying that “Rupert Murdoch has been listed as executive chairman of Fox News in our SEC filings since 2019 and this filing was referenced by Dominion’s own attorney during his deposition.” Which is … not the same things as having disclosed the information in discovery.

And things did not get better for Fox today when Dominion’s lawyers argued that they’d been deliberately deceived by Fox and would have conducted much more extensive discovery had the truth been clear from the outset.

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“We have been litigating based upon this false premise that Rupert Murdoch wasn’t an officer of Fox News,” attorney Justin Nelson told the court, according to the New York Times.

Then Dominion, which claims it is still receiving documents from Fox’s lawyers, played a tape of Rudy Giuliani telling Maria Bartiromo “I can’t prove that yet” in response to a question about the false claim that Rep. Nancy Pelosi was connected to Dominion. The recording only came to light when revealed by Bartiromo’s former producer Abby Grossberg in her discrimination suit against Fox.

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“We keep on learning about more relevant information from individuals other than Fox,” Davida Brook, another Dominion attorney, told the court. “And to be honest we don’t really know what to do about that, but that is the situation we find ourselves in.”

“I am very concerned… that there have been misrepresentations to the court. This is very serious,” Judge Davis said, ordering Fox to preserve “any and all communications” relating to the Murdoch issue and to make additional witnesses available to Dominion immediately.

“Fox will do everything they can to make the person available, and it will be at a cost to Fox,” Judge Davis said from the bench, adding that he will likely appoint a special master to investigate Fox’s multiple discovery failures.

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And to top it all off, the court also ruled that Fox cannot defend itself before the jury by arguing that the defamatory broadcasts were newsworthy. Similarly, it will be barred from holding up non-defamatory broadcasts in its defense because “you can’t absolve yourself of defamation by putting someone else on at a different time.”

Why didn’t this case settle already? 

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Judge rules Dominion can’t bring up January 6 at Fox News defamation trial, scolds Fox attorneys over Rupert Murdoch’s role [CNN]
Dominion judge likely to appoint special master to investigate if Fox withheld evidence [CNN]
Judge Imposes Sanction on Fox for Withholding Evidence in Defamation Case [NYT]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

Topics

Defamation, Dominion Voting Systems, Government, Susman Godfrey