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A Delaware judge overseeing a $1.6 billion defamation lawsuit against Fox News on Tuesday didn’t buy founder Rupert Murdoch’s argument that he was too weak to testify at trial next month.
The judge told Fox’s lawyers not to make him “look like a fool.”
Judge Eric M. The comments came early in a pretrial hearing when Davis noted that Murdoch, 92, had received a letter saying he “cannot travel” to the trial in Delaware because of Covid.
“People tell me he’s done some things lately [show] He’s sick,” said Davis, adding that Murdoch recently announced he is getting married for the fifth time and plans to travel between his homes in Los Angeles, Montana, New York and London.
It was the first of many in which the usually unemotional Davis warned Fox attorneys to “be careful.”
It foreshadowed a key dispute in the widely watched libel suit brought by Dominion Voting Systems against Fox News: Are top executives, including controlling owner Murdoch, responsible for airing unsubstantiated election fraud claims in late 2020?
Dominion’s lawyers allege the company suffered reputational damage after Fox — from individual hosts to the C-suite — when false claims abounded at the network, encouraging or willfully turning a blind eye — including claims the voting machine software company confirmed was involved. A conspiracy to steal the 2020 election from then-President Donald Trump.
Fox lawyers deny the lawsuit’s allegations on their face, arguing that the network airs newsworthy claims made by an intrinsically newsworthy figure — the incumbent president — and his representatives in the wake of a heated election.
Officials at Fox said this week that Dominion sought to limit the network’s First Amendment arguments, pointing to sealed motions that Fox claims would restrict its lawyers from citing newsworthiness in the network’s defense.
Still, Fox lawyers are pushing back against Dominion’s claim that the culpability could extend specifically to executives and board members of Fox News’ parent company, Fox Corp.
The lawsuit, filed last year, has so far revealed thousands of documents that prosecutors want to use as trial exhibits and has prompted numerous depositions.
On Tuesday, Fox attorney Matthew Carter pointed to Murdoch’s affidavit when responding to Davis’ credibility regarding the media mogul’s ability to travel.
Carter said there was a miscommunication. His defense did not argue that Murdoch was ill, but said there was no reason for his trial testimony, which Murdoch had already submitted to a seven-hour trial.
In his deposition, Murdoch insisted that he knew Trump had lost the 2020 election, but some Fox hosts, including Maria Bartiromo and Lou Dobbs, “supported” the story of a stolen election.
He also acknowledged that he had the authority to block Fox News executives and stars from giving airtime to Trump lawyer Rudy Giuliani, who has lied.
“I can,” Murdoch said in his affidavit. “But I didn’t.”
Eventually, Davis indicated that he had the authority to compel Murdoch to appear in court.
Discussion of making emails, texts and legal documents public
It’s not yet clear whether Davis can do the same for executives down the Fox chain, including those directly involved in producing specific segments.
Prosecutors at Tuesday’s hearing asked that question and others about topics that can be discussed during testimony, the types of exhibits that can be shown and how many days’ advance notice must be given before testimony.
The latter point frustrated the judge, who was described by Delaware lawyers as “cool-handed Luke” for his demeanor.
“Have you been fighting for more than 24 hours?” Davis asked hopefully again.
The trial turned into a heated debate about the public release of court documents. (Lawyers for NPR and other media organizations are challenging widespread redactions throughout the documents.)
Dominion lawyers have shown a pattern of trying to shield the Fox documents from public view, saying its lawyers were fighting an “asymmetrical battle” by opposing their use in open court.
The statement again prompted an animated reaction from the judge, who asked Fox if they were actually objecting to “every exhibit.” Fox lawyers confirmed they had, to which Davis later said, “It’s not a game.”
In response, Fox’s attorney made a major effort for their side by adding 1,000 more exhibits than Dominion had on their side. Fox’s lawyers objected to everything because they didn’t want to give up their right to object in the future.
“It’s simply a matter of volume,” he said.
As discussions continued, Davis told Fox’s attorneys one last thing to “be careful.”
Fox attorney Catherine Mowery argued that the court should redact court documents about the network’s fact-checking process, known as the “brain room.”
As a theme for the day, the judge expressed skepticism, saying, “They were used in my courtroom, and I didn’t seal the courtroom.”
Also, he said his upcoming opinion on separate motions from Dominion and Fox, ruling in their favor before trial, would include references to Brain Room.
“I haven’t changed my mind.” Davis said.
David Folkenfilik contributed to this story.