June 13, 2024

(AP Photo/Yuki Iwamura, File)

Lawyers representing Fox have sent letters to legal counsel for Dominion Voting Systems, with whom the company settled a defamation suit for nearly $800 million last month.

The letters called on the company to immediately investigate several leaks to the media of redacted material Dominion obtained in the discovery period of the defamation lawsuit. It’s not clear where these leaks have come from, but Fox and their legal counsel are asking Dominion to investigate with alacrity.

Since that settlement was announced, however, the drama at Fox News has not abated, most notably due to the firing of top-rated prime time host Tucker Carlson. No specific reason for his ouster has been provided. In that vacuum, several theories have cropped up, fueled in part by many leaks of personal texts and emails of Tucker Carlson (and many other Fox News talent and executives) in discovery.

The court ordered the vast majority of these details to be redacted, but in recent days several embarrassing leaks have emerged and been reported by The Washington Post, The New York Times, and The Daily Beast. Carlson’s use of the “c-word” and racialized comments about how “White men fight,” have made a lot of news.

In this context, Fox News is asking Dominion to investigate these leagues as “Disclosure of these documents would violate the Protective Order and the Agreement” of the settlement agreed to roughly three weeks ago. Fox News has given Dominion’s legal counsel to look at the “inexcusable release of confidential discovery material and report back to Fox by the close of business on May 8, 2023.”

The first letter is from Katharine Mowery at Richards, Layton & Finger and addresses Brian Farnan and Michael Farnan:

Katharine L. Mowery 302-651-7623 [email protected]
May 5, 2023
BY EMAIL
Brian E. Farnan, Esq.
Michael J. Farnan, Esq.
Farnan LLP 919 N. Market St., 12th Floor
Wilmington, Delaware 19801
Counsel:

I write on behalf of Fox News Network, LLC and Fox Corporation (together, “Fox”). Fox has become aware that documents Fox produced to your clients in discovery in this litigation have been shared with members of the media. See, e.g., https://www.nytimes.com/2023/05/02/business/media/tucker-carlson-text-message-white-men.html; https://www.thedailybeast.com/tucker-carlsons-c-word-use-on-display-in-unredacted-dominion-docs. To our knowledge, portions of documents described and quoted in these articles were never made public on the docket, and, notably, three of the documents cited in The Daily Beast were only exhibits at Mr. Carlson’s deposition (not in any Court filings). Additionally, the testimony from Mr. Carlson’s confidential deposition quoted in the Daily Beast article was never made public on the docket.

As you must be aware, such disclosure by your clients would be a violation of the Court’s Amended Order Governing the Production and Exchange of Confidential Information. For example, paragraph 10 of that Order provides that “Discovery Material shall be used solely for purposes of this Litigation and shall not be used for any other purpose.” Particularly now that the action has been settled and is no longer active, sharing confidential discovery material with the media could never be said to be “for purposes of this Litigation.” Nor are members of the media included among the persons (listed in paragraphs 6 and 7 of that Order) with whom confidential discovery material may be shared. See also Order ¶ 27. Moreover, paragraph 23 expressly provides that the terms of the Order “continue to be binding throughout and after the conclusion of the Litigation.”

Moreover, such disclosure by your clients would not only be a violation of the Order but also a breach of the parties’ Release and Settlement Agreement, which requires return or destruction of all of Fox’s Confidential or Attorneys’ Eyes Only Discovery Material within 30 days of dismissal of the case.

Accordingly, Fox requests that you and your clients immediately make an investigation into the circumstances surrounding this inexcusable release of confidential discovery material and report back to Fox by the close of business on May 8, 2023.
Please let me know if you have any questions.

Very truly yours,

Is/ Katharine L. Mowery
Katharine L. Mowery

The second letter is from trial lawyer Dan Webb and addresses Justin Nelson and Thomas Clare:

WINSTON &STRAWN LLP
May 5, 2023
NORTH AMERICA SOUTH AMERICA EUROPE ASIA
Justin A. Nelson Susman Godfrey L.L.P.
1000 Louisiana, Suite 5100 Houston, TX 77002

Thomas A. Clare Clare Locke LLP
10 Prince Street Alexandria, VA 22314
35 W. Wacker Drive Chicago, IL 60601
T +1 (312) 558-5600 F (312) 558-5700

DAN WEBB Co-Executive Chairman (312) 558-5856 [email protected]
Re: US Dominion, Inc., et al. v. Fox News Network, LLC and Fox Corporation C.A. No. N21C-03- 257 EMD, C.A. No. N21C-11-082 EMD

Dear Justin and Tom:

I write on behalf of Fox News Network, LLC and Fox Corporation (together, “Fox”) regarding provisions of the Amended Order Governing the Production and Exchange of Confidential Information (the “Protective Order”) and the April 18, 2023 Release and Settlement Agreement (the “Agreement”). The Protective Order and the Agreement both contain provisions governing the handling, disclosure, and destruction of documents produced and exchanged in the above captioned litigation.

Over the last several days, Fox has learned that documents which Fox produced in this litigation were disclosed to media organizations and published for mass consumption. See, e.g., https://www.nytimes.com/2023/05/02/business/media/tucker-carlson-text-message-white-men.html; https://www.thedailybeast.com/tucker-carlsons-c-word-use-on-display-in-unredacted-dominion-docs. To our knowledge, portions of documents described and quoted in these articles were never made public on the docket, and, notably, three of the documents cited in The Daily Beast were only exhibits at Mr. Carlson’s deposition (not in any Court filings). Additionally, the testimony from Mr. Carlson’s confidential deposition quoted in the Daily Beast article was never made public on the docket.

Disclosure of these documents would violate the Protective Order and the Agreement. In particular, paragraph 10 of the Protective Order provides that “Discovery Material shall be used solely for purposes of this Litigation and shall not be used for any other purpose.” Paragraph 25 also specifically prohibits the disclosure of such Discovery Material “to any person except pursuant to a court order or agreement by the Producing Party or except as otherwise required by law.” There is no exception for members of the media. Moreover, the Protective Order’s obligations “continue to be binding … after the conclusion of the Litigation.” Order
These disclosures also violate the text and spirit of the parties’ Agreement, which requires return or destruction of all of Fox’s Confidential or Attorneys’ Eyes Only Discovery Material within 30 days of dismissal of the case.

Fox takes these improper disclosures seriously and requests that you and your clients investigate and confirm that you are not the source of these improper disclosures. This is not a baseless request considering your colleague Stephen Shackelford’s comment to the press that he “hope[s] it all gets un-redacted at some point.” See https://www.axios.com/2023/05/01/fox-news-dominion-lawsuit-history. By close of business on May 8, 2023, please let me know the nature and conclusions of the investigation you conducted. Please also confirm that you, your firm, and your clients understand the full extent of their obligations under the Protective Order and the Agreement.
Best regards,
Dan Webb
¶ 23.

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