• by Karlene Lukovitz  @KLmarketdaily, April 13, 2023

Fox’s string of setbacks in the Dominion Voting defamation suit continues.

On Wednesday, Judge Eric M. Davis of the Delaware Superior Court said he was sanctioning Fox News for its handling of documents discovery and will likely appoint a special master to investigate whether Fox had deliberately withheld evidence.

Dominion’s legal team told the court that they have continued to find out about relevant evidence, including from sources other than Fox, long after the pretrial period in which evidence is supposed to be exchanged. Jury selection begins today, and the trial is set to begin on Monday.  

Dominion’s lawyers cited tapes of Fox News host Maria Bartiromo talking with Donald Trump lawyers Rudy Giuliani and Sidney Powell, which they received a week ago, and a disclosure made this past Sunday about the scope of Fox Corp Chairman Rupert Murdoch's role in regard to the network. 

In response, the judge said he will allow Dominion’s lawyers to conduct new witness depositions or redo depositions as they see fit. Fox will have to “do everything they can to make the person available, and it will be at a cost to Fox,” he said.

It is not yet clear whether Dominion will opt to conduct more depositions.

Dominion’s lawyers said they were provided with the Bartiromo recordings — preparatory interviews conducted prior to her televised interviews with Powell and Giuliani — only after their existence was revealed in filings in a separate action by Abby Grossberg, a former Fox News producer who is suing the company for discrimination.

In a statement to the press, Fox said that, as its counsel had explained to the court, Fox had provided Dominion with the tapes and other supplemental information from Grossberg when Fox first learned of it.  

In one recording, made on Nov. 8, 2020, Giuliani admits to Bartiromo that he doesn’t have hard evidence to back up a claim that Dominion’s voting software could be manipulated, or evidence to back a conspiracy theory that Dominion was working with then Speaker of the House Nancy Pelosi to perpetrate voting fraud.

In a Nov. 7, 2020 email to Bartiromo, Powell forwarded information from a source who claimed she knew about voter fraud because of possessing special powers, including time travel. In an email reply, Bartiromo described this as “very impt info.”

In addition, the judge admonished Fox — which has argued that Rupert Murdoch and Fox Corp CEO Lachlan Murdoch should not be part of the case because they are not actively involved in running the network — for only recently disclosing that Rupert is a corporate officer of the network.

"My problem is that it has been represented to me more than once that he is not an officer," Judge Davis said.

In court, Fox attorneys responded that even Murdoch did not realize that he is executive chair of Fox News, and again insisted that Murdoch “has nothing to do with what goes on the air on Fox News” on a day-to-day basis, according to a New York Times report.

"Rupert Murdoch has been listed as executive chairman of Fox News in our SEC filings for several years and this filing was referenced by Dominion’s own attorney during his deposition,” Fox News said in a subsequent statement to the press.

Dominion has tried to prove that the Murdochs were actively involved in overseeing Fox News’s 2020 election coverage, which would strengthen its defamation case against Fox News parent Fox Corp.

Judge Davis said he was concerned that there had been “misrepresentations to the court,” and that he would consider whether additional sanctions on Fox are appropriate, per the Times. “This is very serious,” he said.