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Mar 21, 2023
Fox News Fate in Dominion Case in Hands of ‘Rock-Steady’ Judge
(Bloomberg) -- Emails and texts by Tucker Carlson, other Fox News hosts and executives were shown to the judge overseeing Dominion Voting Systems’s $1.6 billion defamation suit against the network for broadcasting 2020 election-fraud claims.
Justin Nelson, one of the voting machine maker’s lawyers, on Tuesday projected several internal communications on a courtroom screen to argue before Delaware Superior Court Judge Eric Davis that key players at Fox never believed the fraud allegations but sat on their hands while Sidney Powell and other allies of then-President Donald Trump went on air to accuse Dominion of conspiring with Democrats and foreign governments to rig the vote.
Powell’s claims are “obviously untrue” and “unbelievably offensive,” Carlson wrote in emails shown in court. “Our good people are going to believe them,” the host added.
“We have — in their own words — evidence they knew the theories were false and they just continued to recklessly ignore the truth” to pander to hard-right viewers, Nelson said. And the lies caused “real harm” to Dominion in the form of lost sales, he added.
Tuesday’s hearing is for Davis to decide whether he should decide the case without the trial scheduled for April 17. The internal communications cited by Dominion have led some legal experts to suggest it could be the rare defamation case resulting in summary judgment against the defendant.
But Charles Elson, a lawyer and retired University of Delaware professor, said it was extremely unlikely that Davis would decide the case on summary judgment and rule from the bench. “This case has been going on for about two years and the judge has had lots of opportunities to make a case-decisive ruling,” Elson said in an interview. “The chances he’s going to take it away from a jury three weeks before trial are pretty slim.”
Fox’s legal team contends the network was simply reporting issues tied to a story of national importance and that its actions are protected free speech under the First Amendment. The network is also asking Davis for summary judgment, arguing that Dominion’s theory that newsworthiness didn’t justify publication of allegations that turned out to be false would have a chilling effect on US journalism.
Erin Murphy, one of Fox’s lawyers, zeroed in on idea the network did nothing wrong by focusing on what she called newsworthy allegations by Trump and his allies about Dominion’s role in the election. She said hosts including Maria Bartiromo repeatedly pushed Powell and ex-New York Mayor Rudy Giuliani to provide evidence of their claims the manufacturer rigged the outcome. “Fox didn’t make the allegation up,” Murphy noted. “It was a true statement to say the allegations had been made.”
Davis said emails and tweets from ex-Fox host Lou Dobbs — uncovered by Dominion in pre-trial information exchanges in the case — weren’t helpful to Fox’s argument that Dominion wasn’t defamed. “There seems to be a Dobbs problem,” the judge said.
Murphy countered that Dobbs’ statements about Dominion and its alleged election rigging amounted to “protected opinions” and the average viewer understood that from the context of his shows. Murphy argued the evidence didn’t show the long-time conservative commentator adopted an attitude of “willful blindness” to the untruth of the Dominion allegations.
Davis announced Tuesday he’d been assigned to oversee a newly filed lawsuit in Delaware by a Fox producer who alleges network officials prompted her to give false testimony in the Dominion case. Abby Grossberg, who worked with Carlson and Bartiromo, said Fox’s lawyers “coerced, intimidated, and misinformed” her as they prepared her testimony, according to court filings. The Delaware case has been sealed, according to court officials. Grossberg made similar allegations in a separate complaint in federal court in Manhattan. Fox called them baseless.
Read More: Fox News Producer Says She Was Pushed to Lie About Dominion
Davis, a 12-year veteran of the Delaware bench, has kept his cool as lawyers for both sides have ramped up the rhetoric in the politically charged case.
“He’s a rock-steady judge who calls cases as he sees them without any preconceived agendas or notions,” said Wilmington lawyer Sid Liebesman. “He maintains a level playing field in the courtroom without a hint of drama. This case won’t get to him one bit.”
Given the political overtones of Dominion’s defamation case, Davis will be closely scrutinized by political pundits from both sides of the aisle. He’s a registered Democrat, but that’s hardly unusual in a deep-blue state where the judges are appointed by the governor.
Davis is no stranger to high-profile litigation. A former Delaware partner at top New York law firm Skadden, Arps, Slate, Meagher & Flom LLP, he spent 10 years as a lawyer battling over bankruptcy and business-law disputes. He left Skadden for the Delaware bench in 2010, spending two years handling misdemeanor cases and traffic violations before moving to the Superior Court. He’s now part of the court’s five-member panel that oversees complex commercial litigation.
“He’s got the right kind of experience to handle those tougher cases,” said Tony Clark, an ex-Skadden partner who mentored Davis. “Eric is a very even-keeled person,” Clark added. “He’s not going to lose his temper on the bench and I think many people would describe him as very steady and solid.”
In a hearing earlier this month, the judge said he’d been getting questions about whether he will question potential jurors in the Dominion about their political leanings as part of the selection process.
“I don’t care who they voted for,” Davis said, according to a hearing transcript. “That’s not an issue in this case. The issue in this case is whether Fox Corp. and Fox News defamed Dominion and caused Dominion damages.”
The case is Dominion Voting Systems v. Fox News, N21C-03-257 EMD, Delaware Superior Court (Wilmington)
--With assistance from Erik Larson.
(Updates with Fox lawyer’s arguments starting in eighth paragraph)
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