Judge Sanctions Fox News for Withholding Evidence in Dominion Defamation Suit

Eric Davis, the Delaware Superior Court judge, imposed a sanction on Fox News Wednesday for withholding evidence in Dominion Voting Systems’ $1.6 billion defamation lawsuit. The judge added that he would likely start an investigation into the matter.

Dominion will have the opportunity to conduct additional depositions or redo any deposition that’s already been done. “Fox will do everything they can to make the person available, and it will be at a cost to Fox,” Davis ruled during a pretrial hearing, per the New York Times. 

The move came after Abby Grossberg, a former Fox News producer who worked with top Fox stars, said in an amended legal complaint that she had secret Fox audio recordings of Rudy Giuliani and other Trump allies admitting that they could not prove some of the allegations they were making about Dominion, as The Daily Beast reported Tuesday. Grossberg has alleged that she was “coerced into giving incomplete and shaded testimony” in the Dominion suit. (“Like most organizations, FOX News Media’s attorneys engage in privileged communications with our employees as necessary to provide legal advice,” Fox said in a statement regarding Grossberg’s claims, which it said were “riddled with false allegations.”) Grossberg’s lawyers wrote that despite having access to Grossberg’s devices, “Fox News and the Fox News Attorneys either intentionally or recklessly failed to disclose these significant recordings and transcripts that went directly to the issue of whether Fox News acted with malice in publishing defamatory statements about Dominion to Dominion in the course of the Dominion Lawsuit.” In one of the recordings, from mid-November 2020, Giuliani admits to Fox host Maria Bartiromo that the Trump campaign could not prove some of the allegations it was making involving Dominion. “When further pushed by Ms. Bartiromo regarding whether Nancy Pelosi had an interest in Dominion, Mr. Giuliani responded, ‘I’ve read that. I can’t prove that,’” the filing states. 

On Wednesday, Fox attorney Dan Webb said “nobody intentionally withheld information” from Dominion.

During Wednesday’s pretrial hearing—the second this week, with jury selection set to begin Thursday—Dominion lawyers “gave a presentation asserting that the company had found out about documents and material that they should have received in discovery but did not get them,” according to the Washington Post’s Erik Wemple, reporting from Wilmington, Delaware. Grossberg’s recordings from 2020, “which Dominion said had been turned over only a week ago,” were part of the presentation, according to the Times. “We keep on learning about more relevant information from individuals other than Fox,” Dominion lawyer Davida Brook told the court. “And to be honest we don’t really know what to do about that, but that is the situation we find ourselves in.”

Fox’s handling of information has already come up during this week’s pretrial hearings. Davis didn’t hide his frustration Tuesday, when he learned that Fox had delayed the full disclosure of Fox Corp chairman Rupert Murdoch’s role at Fox News. A Dominion lawyer told Davis that Fox had disclosed only this week that Murdoch was an officer not only of Fox’s parent company Fox Corp, but for Fox News itself—a technicality that previously prevented them from obtaining certain communications during discovery that they would have otherwise been entitled to. Turning to a Fox News attorney, Davis said his team had “a credibility problem.” “I need to feel comfortable that when you represent something to me, it’s the truth. I’m not very happy right now. I don’t know why this is such a difficult thing,” Davis said.

In an emailed statement on Tuesday, Fox said 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.” 

Davis’ decision to sanction Fox News is a stunning development just days before the massive defamation trial is set to begin. The judge also said Wednesday that he plans to appoint a special master to look into whether Fox made “untrue or negligent” assertions to the court when it said that Murdoch did not have any role in Fox News and was only an officer at Fox Corp, and when it said it had fulfilled all of its obligations in the discovery process, CNN reports. “I am very concerned… that there have been misrepresentations to the court. This is very serious,” Davis said. “I’m very uncomfortable right now.” Davis also ordered Fox’s lawyers to preserve “any and all communications” related to the Murdoch officer issue.