Things were already looking rough for Fox News before this week, ahead of its defamation trial set to begin Monday. The Delaware judge overseeing the case, Eric Davis, previously narrowed the legal issues that Dominion Voting Systems has to prove in its suit over the network’s promotion of 2020 election lies.
Then on Wednesday, Davis said he's sanctioning Fox for withholding evidence and, according to NBC News, "considering appointing a special master to investigate the Fox legal teams’ actions."
According to NBC News:
According to a person present in the courtroom, lawyers for Dominion Voting Systems played recordings Fox News producer Abby Grossberg made during 2020, which were not handed over to Dominion’s lawyers during discovery.
Grossberg, a former producer for Fox hosts Maria Bartiromo and Tucker Carlson, has sued Fox News and said her deposition was coerced. In an amended filing Tuesday, she said she had recorded conversations with Rudy Giuliani, Sidney Powell and others.
The sanction gives Dominion a chance to conduct another deposition, at Fox’s expense.
Things didn't go much better for Fox in court a day earlier. According to The Washington Post, a lawyer for Dominion told Judge Davis at a hearing Tuesday that Fox had led Dominion to believe that Rupert Murdoch was an officer only for Fox Corp., Fox’s parent company. But, as Dominion reportedly said it just learned, Murdoch is actually an officer for Fox News as well.
The Dominion v. Fox News defamation trial is expected to begin Tuesday. Follow our live blog for the latest updates and expert analysis at msnbc.com/dominiontrial.
Why does that matter?
Well, the Post reported that Dominion lawyer Justin Nelson told Davis on Tuesday that the voting company is "missing a whole bunch of Rupert Murdoch documents that we otherwise would have been entitled to." The lawyer said it's "very troubling that this is where we are. It’s something that has really affected how we have litigated this case.”
Davis was frustrated as well, telling a Fox News lawyer that the network has a “credibility problem.” Obviously, that’s not what Fox lawyers want to hear heading into a trial that already seems relatively difficult to defend — relatively because defamation cases are notoriously difficult for plaintiffs to prove. But as litigation in the case has shown so far, Dominion has an unusually strong hand to play in front of the jury, given the unusual degree of evidence that it has amassed that the network knowingly aired false claims about the company’s (nonexistent) involvement in (nonexistent) widespread fraud during the 2020 election.
“My problem is that it’s been represented more than once to me that he’s not an officer of Fox News,” Judge Davis said, according to the Post. “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 he would very likely appoint a special master to investigate Fox’s handling of discovery of documents and the question of whether Fox had inappropriately withheld details about Rupert Murdoch’s role as a corporate officer of Fox News," The New York Times reported Wednesday.
And the Murdoch issue wasn’t even the only bad news for Fox in court on Tuesday. Davis also said the network can’t bring up at trial other broadcasts where reporters fact-checked Trump’s 2020 election lies. The judge explained that telling the truth sometimes doesn’t absolve Fox of defamation at other times. All in all, it was a terrible couple of days in court for Fox before the start of a historic defamation trial that could be a reckoning for the network.