Judge in Dominion defamation case scolds Fox attorneys: 'You have a credibility problem'
Attorneys defending Fox in a defamation case related to false claims about the 2020 election withheld critical information about the role company founder Rupert Murdoch played at Fox News, a revelation that angered the judge when it came up at a Tuesday hearing.
Campaign ActionIt was not clear whether the development would affect a trial scheduled to begin Thursday with jury selection. Dominion Voting Systems is suing Fox for $1.6 billion, saying it damaged its reputation by repeatedly airing false claims that the company helped orchestrate a fraud that cost former President Donald Trump re-election.
The role of Fox executives is at the heart of the case. The company’s attorneys have sought to insulate members of the Murdoch family and to keep them from testifying live before a jury, arguing that their roles at the parent company, Fox Corp., put them at a distance from the Fox News shows that aired the bogus claims.
Fox Corp. had asserted since Dominion filed its lawsuit in 2021 that Rupert Murdoch had no official role at Fox News. In its filings, it had listed Fox News officers as Suzanne Scott, Jay Wallace and Joe Dorrego. But on Easter Sunday, Fox disclosed to Dominion’s attorneys that Murdoch also is “executive chair” at Fox News. The disclosure came after Superior Court Judge Eric Davis wondered aloud during a status conference last week who Fox News’ officers were.
Davis was clearly disturbed by the disclosure, coming on the eve of the trial.
“My problem is that it has been represented to me more than once that he is not an officer,” the judge said.
Davis suggested that had he known of Murdoch’s dual role at Fox Corp. and Fox News, he might have reached different conclusions in a summary judgment ruling he issued last month. In that ruling, the judge said there was no dispute that the statements aired by Fox were false, but that a jury would have to decide whether Fox News acted with actual malice and whether Fox Corp. directly participated in airing the statements.
To Fox attorney Matthew Carter, Davis said: “You have a credibility problem.”
In response, Carter said he believed Murdoch’s title at Fox News was only “honorific.”
“I’m not mad at you,” the judge later told Carter. “I’m mad at the situation I’m in.”
In a statement issued after Tuesday's pretrial hearing, Fox 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.”
It’s unclear whether the judge will take any action in response to the late disclosure. But an attorney for Dominion said he wanted Fox to further explain Murdoch's role with the network, indicating the issue could come up when the pretrial hearing continues Wednesday.
Dominion attorney Justin Nelson told the judge the disclosure has “a big impact” on the case. He said Fox’s failure to disclose Murdoch’s status at Fox News has deprived Dominion of “a whole bunch” of information from Murdoch as a custodian of Fox News records that it was entitled to have.
“It is something that really has impacted how we have litigated this case,” he said.
Tuesday's development was the latest to turn an uncomfortable spotlight on the network.
Information obtained by Dominion as part of its lawsuit has shown that some network hosts harbored off-camera doubts about election fraud claims but nevertheless allowed program guests to repeatedly make them in the aftermath of the 2020 election. The case also has drawn scrutiny of various emails and text messages shared among Rupert Murdoch, his son Lachlan Murdoch and Scott, the Fox News CEO, about election coverage and the allegations by Trump and his allies that he was cheated.
They revealed a chorus of voices, from Rupert Murdoch and top network hosts to producers and publicists, who internally cast the election-stealing conspiracy claims as crazy even as the network repeatedly gave them a platform. Internal communications also showed that at the time, major players at Fox were deeply worried about retaining pro-Trump viewers.
In a ruling earlier Tuesday, the judge denied a motion by Fox seeking to bar any reference at trial to matters involving the Murdoch family, which owns Fox Corp. The judge also said he would allow jurors to hear some testimony about threats directed at the voting machine company, but only to a point.
The judge granted a motion by Fox to prohibit any reference to specific threats or harassment directed at Dominion, saying he did not want the jury to be prejudiced against Fox because of threats made by people with no connection to the network. But he said he would allow Dominion to talk generally about threats it had received to show how it has been damaged by the Fox broadcasts.
“It has decimated Dominion’s ability to attract and retain employees, because the company is under siege,” said Megan Meier, an attorney for the voting machine company.
The judge already decided last week there would be no testimony about the Jan. 6, 2021, attack on the U.S. Capitol.