• by Karlene Lukovitz  @KLmarketdaily, April 17, 2023

The judge in the Dominion Voting Systems defamation lawsuit against Fox announced Sunday that he will delay the trial’s start for one day, until 9 a.m. Tuesday. 

Delaware Superior Court Judge Eric Davis did not explain the reasons for the delay, even in a follow-up statement at 9 a.m. on Monday morning. “This does not seem unusual to me,” he said, noting that most trials involve some kind of delays, in his experience. “I am continuing the matter until tomorrow.” 

On Sunday, The Wall Street Journal, owned by Fox Corp. Chairman Rupert Murdoch, reported that Fox has made a “late push” to settle the lawsuit out of court, citing “people familiar with the matter.” 

Fox had not commented on the delay by early this morning, and a Dominion spokesperson declined to comment. 

Meanwhile, in an email sent to press this morning, Fox sent a copy of a motion for clarification that it filed with the court Sunday night.

The background: Last Tuesday, Judge Davis ruled that Fox could not claim “newsworthiness” as a defense. “Just because someone is newsworthy doesn’t mean you can defame someone,” he said. “It’s a publication issue, not a who-said-it issue.”

In a hearing last week, the judge also granted Dominion’s motion to preclude Fox from “arguing that defamatory statements made by individuals or organizations other than Fox rebut or reduce Dominion’s damages.”

Fox's motion now asks the court to clarify whether Fox can use such statements -- including ones by then-President Donald Trump -- outside of damages arguments, supposedly only for purposes of arguing that these statements influenced the mindsets of Fox hosts, rather than to argue the already excluded newsworthiness defense. Fox also asks for clarification or reconsideration regarding whether such evidence is admissible "to assist the jury in assessing whether the specific statements Dominion challenges were a 'substantial factor' in causing Dominion’s claimed economic damages."

In the filing, Fox claims that “This clarification is important for many reasons, not the least of which is that Dominion informed Fox on April 14 that it is walking away from lost profit damages and will pursue only 'lost enterprise value' damages —  knocking more than half a billion dollars off the damages claimed in its complaint.” 

Dominion's original damages claim included lost profits of not less than $600,000, lost enterprise value of not less than $1 billion, security expenses of not less than $600,000, and expenses incurred "combatting the disinformation campaign" of not less than $700,000.

Mediaite reports that last Friday, one of the attorneys representing Dominion, Brian Farnan, confirmed by email to Fox’s counsel that “Dominion will not be presenting its claim for lost profits damages to the jury, given that it is duplicative of the lost enterprise value damages.”*

However, asked this morning about Fox’s claim that Dominion had dropped the claim for lost profit damages, a Dominion spokesperson replied in an email: "The damages claim remains. As Fox well knows, our damages exceed $1.6B." 

Fox has asserted that its airing of claims that Dominion participated in voter fraud during the 2020 election was covered by First Amendment protections, and that the $1.6 billion in damages being sought by Dominion are “wildly inflated.” 

It's possible that Fox may be more open to a settlement based on recent developments.

Going into the trial, Fox is up against a series of damaging headlines generated by the public release of emails and deposition statements by Fox executives, including Fox Corp. Chairman Rupert Murdoch. 

Judge Davis also has made several rulings that seriously undermine key Fox defense arguments.

In early April, he ruled that all statements aired by Fox about Dominion’s supposed collusion in supposed voter fraud were false, leaving only the question of whether Fox aired them knowing they were false, or with reckless disregard for the truth -- that is, with malice.

Following last Tuesday's ruling precluding the “newsworthiness” defense, on Wednesday, he sanctioned Fox News for its handling of documents discovery and said that he will likely appoint a special master to investigate whether Fox had deliberately withheld evidence. 

The sanction came in part because of the emergence of more potentially damaging evidence from Abby Grossberg, a former Fox News producer.

As part of her separate lawsuit against Fox for discrimination, Grossberg submitted recordings of Fox News host Maria Bartiromo conducting preparatory interviews with Donald Trump lawyers Sidney Powell and Rudy Giuliani. Grossberg accused Fox of trying to make her the scapegoat for false statements aired on the network. And Davis challenged Fox about the true scope of Rupert Murdoch’s involvement in Fox News operations as well.

Also last week, Fox settled a separate, $250-million defamation lawsuit with Venezuelan businessman Majed Khalil, who charged that after the 2020 election, Lou Dobbs, a Fox News host at the time, falsely accused Khalil and three other Venezuelans of participating in a “nonexistent scheme to rig or fix the election” against Donald Trump.

*Information added after original post.