UPDATE, 2 PM PT: A Delaware judge on Tuesday expressed anger over recent disclosure made by Fox that Rupert Murdoch is listed as an officer of Fox News, not just Fox Corporation.
“This is a problem,” Judge Eric M. Davis told Fox attorneys, saying that it could have impacted his previous rulings in the case.
A Dominion attorney argued that the last-minute disclosure, made by Fox to Dominion on Sunday, has had an impact on the way that the case has been litigated. He said that it means that they would be entitled to a wider set of documents from Fox, including from Murdoch, during the discovery phase of the case.
Fox has previously argued that Fox Corporation and its officers, including Murdoch and his son, CEO Lachlan Murdoch, did not have daily operational roles at the network.
“It is very troubling that this is where we are,” said Justin Nelson, attorney for Dominion, adding that it is “something that has very much affected how we have litigated this case.”
Nelson showed court filings from two years ago in which Fox listed Fox News Media CEO Suzanne Scott, COO and CFO Joe Dorrego and Fox News President Jay Wallace as officers.
In a pre-trial conference last week, Davis asked about who the Fox News officers were, but the company’s attorneys did not provide a definitive answer.
“To say we don’t know who our officers are seems extremely bizarre, and now we find out,” Davis said.
A Fox attorney said that while Murdoch is listed as a Fox News officer, as executive chairman, it is an “honorific” position. The attorney also said that Murdoch acknowledged in a deposition that he was an officer.
But Davis said “you don’t escape responsibility as an officer by saying he doesn’t do anything.”
He also said that it was represented to him that Murdoch was not an officer of Fox News, telling the company attorneys that there was a “credibility problem.”
Dominion’s attorneys have not yet said whether they will ask the court to make some sort of ruling based on the new information, and the judge has not said what he would do. “We’ll deal with it,” Davis said at one point.
Later in Tuesday’s hearing, Davis brought up the matter again to Fox’s attorneys, telling them, “I’m not mad at you. I am mad at the situation I am in based on the representations that have been made to me.”
The judge said that Murdoch’s role at Fox News could have been a fact that he included in his summary judgment decision, in which he ruled that that the jury should decide whether Fox Corporation was liable for defamation, not just the news network.
Davis said that, had he known that Murdoch was an officer of Fox News, it still would not be enough for him to have decided summary judgment in favor of Dominion, but it “could have gone the other way, and that would have been a problem.”
Davis already ruled that the Murdochs could be subpoenaed to testify live in the trial. Fox attorney Katharine Mowery had previously written in a letter to the judge that Murdoch should not be compelled to testify because he “was far-removed from the events in dispute.” He sat for a deposition earlier this year and “repeatedly stated he had little knowledge of Dominion, no opinion on Dominion, and no understanding of Dominion’s possible role in the 2020 election.”
“There is no reason to subject Mr. Murdoch to the burdens of testifying live at trial,” Mowery wrote.
In a statement issued after the hearing, a Fox spokesperson said, “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.”
PREVIOUSLY: As Dominion Voting Systems’ $1.6 billion lawsuit against Fox News heads to a trial next week, the judge in the case placed limits on what attorneys can and cannot bring up before the jury.
Judge Eric M. Davis said that he would restrict references to the January 6th attack on the Capitol, saying that they would be prejudicial and were not relevant to the case.
“Stay far away from it,” he told attorneys at a pre-trial hearing on Tuesday.
Dominion’s attorneys argued that the references were important because of messages showing that, after the attack on the Capitol, Fox executives wanted to “pivot” away from Donald Trump’s stolen election claims.
But Davis said that attorneys could still question a figure like Rupert Murdoch more generally on why the network wanted to veer away from Donald Trump and his vote rigging allegations. In messages previously disclosed in the case, Murdoch wrote on January 8 to former executive Preston Padden that Fox News is “very busy pivoting. We want to make Trump a non person.” Several days later, Murdoch told son Lachlan to tell a Fox Corp. board member that “Fox News, which called the election correctly, is pivoting as fast as possible. We have to lead our viewers which is not as easy as it might seem.”
The judge also limited what Dominion could say to the jury about threats that the company received as Trump and his allies made numerous false allegations that it was involved in vote rigging. Dominion attorneys have argued that, amid the allegations made against the company and amplified on Fox News, it was forced to increase security and harmed its ability to recruit employees.
Davis said that he was not downplaying the threats, but “I don’t want the jury to be completely swayed by a person who is not in control of Fox.” He said that he would allow references to the threats generally, but cautioned Dominion attorneys not to go into specifics unless Fox made an issue of them.
The judge indicated that he, too, has received threats and sent them to the attorneys in the case.
As he went through a series of motion, Davis also ruled in favor of Dominion on a number of points. He said that Fox could not argue that a defense in the case was over the newsworthy value of the election rigging claims. The judge noted that he already rejected that defense in a summary judgment ruling last month.
That said, Davis indicated that Fox News personalities who appear as witnesses could not be stopped from saying that they invited certain guests on their shows because they thought they were of newsworthy value. Dominion, Davis argued, could then easily counter the witness in cross examination. “I love that cross,” the judge said, noting that the election company’s lawyers could merely ask the witness why they invited Sidney Powell or Rudy Giuliani, two Trump allies who guested multiple times on the network in the immediate aftermath of the 2020 election, but not others, like experts in election security.
Davis also said that Fox could not defend itself by introducing evidence that it presented segments elsewhere on the network that pushed back against the claims made by Trump allies.
“You can’t absolve yourself of defamation by merely putting someone on at a different time to say a different statement,” Davis said.
Dominion sued Fox News and later Fox Corp. over unfounded claims amplified by personalities and guests that the company was involved in rigging the 2020 presidential election.
The jury will have to decide whether Fox News engaged in actual malice, or that it knew the claims about Dominion were false or showed reckless disregard as to whether it was. The jury also will have to decide whether parent Fox Corp. is liable, as well as what level of damages the company must pay if it rules in Dominion’s favor.
Fox News has said that it was covering the undoubtedly newsworthy allegations being made by Trump and his allies.
Jury selection in the case is scheduled to start on Thursday.