A Delaware Superior Court judge on Tuesday ruled that Dominion Voting Systems cannot bring up the Jan. 6 insurrection during the trial over the $1.6 billion defamation lawsuit it has lodged against Fox News and its parent company.
Dominion lawyers during a pretrial hearing also accused Fox of withholding information about Fox News’ corporate structure, revealing that on Sunday, Dominion learned Rupert Murdoch is also considered a corporate officer for the cable news network.
Judge Eric Davis called this a “credibility problem” for Fox, adding that knowing this information could have changed aspects of his March summary judgment ruling. He too felt Fox had misrepresented Murdoch’s role in Fox News.
It’s not immediately clear the impact this could have on the rest of the trial.
The trial, which begins Monday, will likely be one of the most important defamation cases in years. Dominion filed the lawsuit against Fox News in 2021 after the cable news network aired false claims about the company rigging the election.
The outcome could have colossal financial implications for the country’s most-watched cable news network. Fox has argued it did not defame the company but rather, that it was covering the most important news story of the day.
During the pretrial hearing Tuesday, Davis set the groundwork for the upcoming trial, as well as ruled on a number of motions for what arguments and information each side can and cannot use during the course of the six-week trial.
The Delaware judge also revealed that he has received threats as a result of presiding over the case.
The role of Jan. 6 in this case
Davis said the Jan. 6 insurrection is not relevant to the case since the statements Dominion claims are defamatory were made before the insurrection occurred. The key issue, he said, is whether Fox defamed Dominion.
Dominion lawyer Justin Nelson said the company is not going to argue Fox News caused the insurrection. But he did note that Jan. 6 has come up in Dominion’s “evidentiary presentation.”
Davis told Dominion to “stay far away” from mentioning the insurrection.
READ MORE:Delaware judge rules $1.6 billion Fox News defamation case to head to trial in April
The judge, several times during the hearing, warned lawyers for both sides to not make statements in their opening or closing arguments that are contrary to the summary judgment rulings Davis made in March.
“I will stop you and instruct the jury to disregard what you said,” Davis said. “You can’t do that. You all know this.”
This includes Davis’ ruling on falsity, which was a key win for Dominion. He ruled the company proved that Fox aired false information about the company and its role in the outcome of the election on its broadcasts.
Davis warned Fox lawyers against arguing that newsworthiness is a defense against defamation. But witnesses, the judge clarified, can testify that they brought guests such as Sidney Powell because they thought they were newsworthy.
Threats made to Dominion – and now, this judge
Davis also ruled that Dominion lawyers can tell the jury about the threats the company and its employees have received as a result of the false claims Fox News aired, but it cannot get into specifics. The judge said he didn’t want the jury to be persuaded by a threat from a third party.
Davis said he too had received threats.
“I’m not downplaying it,” he said of the threats. “I know how serious it is.”
Last-minute reveal of Murdoch as a corporate officer
Nelson, the Dominion lawyer, revealed near the end of the Tuesday hearing that Dominion learned on Easter Sunday that Fox considered Murdoch to be a corporate officer of Fox News – information they were not told about for the last two years of litigation.
Fox, Dominion said, has maintained for the last two years that its Fox News corporate officers were CEO Suzanne Scott, COO and CFO Joe Dorrego and President and Executive Editor Jay Wallace.
On Sunday, Fox sent a list that added Murdoch to this group. As a result, Nelson said Dominion is missing a “whole bunch” of documents relating to the Fox chairman.
“It is very troubling that this is where we are,” Nelson said. He has asked Fox for an explanation of how this happened.
BACKGROUND:Delaware judge won’t stop Rupert Murdoch from being called to testify in Fox News case
Fox lawyers, who were different counsel from the start of litigation two years ago, said they were not trying to hide anything. Murdoch, they said, spoke about his role at Fox News during his deposition.
Davis said he also felt Fox misrepresented Murdoch’s role within Fox News. Lawyers previously argued that Murdoch, as Fox Corp. chairman, was not intimately involved with cable news programming and therefore he should not have to testify at trial.
“I could have made a different decision on if he should be made available,” Davis said. “I could have made a different decision on summary judgment.”
Davis said he needs to feel “comfortable” that when Fox lawyers represent information to him it is the truth. The judge said he will need to figure out what to do with this information.
“I’m mad at the situation,” he said.
Jury selection to begin April 13
One of the major questions jurors will have to decide is if Fox committed “actual malice,” a legal standard that is key to proving Dominion was defamed. The voting machine company needs to prove Fox knowingly published false information about the company or recklessly disregarded information showing that the claims were not true.
The jury will be chosen from a pool of hundreds of New Castle County residents, who will then get weeded down to 36 people. From this group, each side will be granted six strikes. Ultimately, there will be 12 jurors and 12 alternates.
Davis, during the hearing, said that he is very concerned about the number of jurors because the trial will be six weeks long and it’s likely some people will drop out. Jury selection begins Thursday.
