WILMINGTON, Del. – The judge presiding over a defamation case against Fox News admonished its attorneys Wednesday for potentially withholding evidence and said he is inclined to order an independent review by a special master that could lead to sanctions.
The move by Delaware Superior Court Judge Eric Davis came amid a burst of fresh revelations in the $1.6 billion defamation case filed by Dominion Voting Systems against the conservative network and its parent company, Fox Corp.
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The judge expressed anger and frustration during a pretrial hearing after learning that Fox only recently turned over recordings of Fox Business host Maria Bartiromo talking with two lawyers for then-President Donald Trump, Sidney Powell and Rudy Giuliani. That came after the disclosure a day earlier that Fox lawyers had withheld critical information about the role company founder Rupert Murdoch, who is chairman of Fox Corp., played at Fox News.
“I am very concerned that … there have been misrepresentations to the court,” Davis said.
The judge had expressed his displeasure at the late disclosure regarding Murdoch and became even more perturbed Wednesday when he was told that Fox also did not reveal the recordings made by a former producer for Bartiromo. The recordings were of conversations the host had with Giuliani and Powell before and after her show. Their existence surfaced in a lawsuit the former producer, Abby Grossberg, has filed against Fox alleging that the network’s attorneys forced her to give misleading deposition testimony in an effort to protect the company in the defamation case.
In one pre-show conversation on Nov. 8, 2020, just days after the presidential election, Bartiromo asked Giuliani whether he had information about Dominion’s software, which some people had alleged could be manipulated.
“That’s a little harder. It’s being analyzed right now,” Giuliani responded.
A week later, Giuliani said on Bartiromo’s show that the software had been developed by a company founded by Venezuelan strongman Hugo Chavez and had been used to cheat in elections in South America.
Colorado-based Dominion alleges that Fox damaged the company by repeatedly airing false allegations that its machines and the software they used rigged the 2020 presidential election to prevent Trump’s reelection. Records produced as part of the lawsuit show many executives and hosts didn’t believe the claims, but aired them anyway.
There was no indication that the recent developments would delay the trial, which is scheduled to start Thursday with jury selection, but they dealt additional blows to Fox in a lawsuit that already has embarrassed the network. In part, it has revealed how Fox used the false election claims to win back viewers who were angered after the network correctly called Arizona for Joe Biden on election night.
The judge on Wednesday said he was considering asking a special master to investigate actions taken by Fox attorneys after they had certified to the court in December that they had complied with their obligations to produce documents. That could include Fox failing to disclose the Grossberg recordings and a Bartiromo email.
Dominion attorney Davida Brook told the judge that Dominion only recently learned that Powell had forwarded to Bartiromo an email Powell received in November 2020 from a woman who described a wide range of conspiracy theories, including those involving claims of election fraud.
In her deposition, Bartiromo said she didn’t know if she even saw the email. “It’s not anything I looked at or considered real,” she said under oath.
But on Wednesday, the judge was shown an email confirming that Bartiromo not only read Powell’s email, but apparently discussed its contents with Trump’s son, Eric Trump, and sent a reply to Powell: “I just spoke to Eric & told him you gave very imp info,” Bartiromo wrote Powell.
Davis said he would allow Dominion to question Bartiromo under oath again, at Fox’s expense, though there was no immediate indication from Dominion that it would do so.
The judge said he also was likely to ask a special master to investigate how Fox attorneys handled the issue of Rupert Murdoch’s role at Fox News.
Fox Corp. had asserted since Dominion filed its lawsuit in 2021 that Murdoch had no official role at Fox News. In its filings, it had listed Fox News' officers as Jay Wallace, Joe Dorrego and Suzanne Scott, who is the network’s chief executive officer. But on Sunday, Fox disclosed to Dominion’s attorneys that Murdoch also is “executive chair” at Fox News.
The judge Wednesday ordered Fox attorneys to collect and preserve all internal communications regarding the matter. Earlier in the day, he denied Dominion's request to hold separate trials based on the new information about Murdoch's roles — one for Fox News and another for the network's parent company.
Murdoch’s role and those of other top Fox executives are at the heart of Dominion’s defamation case. Fox attorneys have argued that executives’ roles at the parent company, Fox Corp., removed them from the day-to-day decisions that allowed the false election claims to be aired on various Fox News programs.