Judge in Dominion Lawsuit Likely to Block Mentions of Jan. 6: Not ‘Relevant’ and Would Be Prejudicial to Fox News
AP Photo/Mark Lennihan, File
During a Wednesday afternoon hearing, Delaware Superior Court Judge Eric M. Davis indicated that he is likely to block mentions of the Jan. 6, 2021 attack on the U.S. Capitol in the defamation lawsuit filed by Dominion Voting Systems against Fox News, commenting that he viewed it as both irrelevant to the issues in the case and likely to be unfairly prejudicial to Fox.
The $1.6 billion lawsuit filed by Dominion accuses Fox of airing false claims on the Fox News Channel and Fox Business Network about Dominion’s voting machines related to former President Donald Trump’s baseless claims of fraud in the 2020 election. Pre-trial discovery in the litigation has revealed a trove of documents in which Fox’s on-air personalities and top executives exchanged emails and text messages acknowledging Trump had lost the 2020 presidential election, that his claims the election was stolen from him via fraud were unfounded, and lamenting the Jan. 6, 2021 attack on the U.S. Capitol. A new trove of documents with previously redacted comments was released last month.
On March 31, Judge Davis issued a summary judgment ruling that was broadly viewed as devastating to Fox, finding that all twenty of the “Statements” made on air (on either FNC or FBN) about Dominion were statements of fact and not protected opinion and it was “CRYSTAL clear” (emphasis in original) that they were all false and constituted defamation per se. The judge also rejected several legal defenses Fox wished to assert as well as the media giant’s efforts to limit damages, finding it a matter for the jury.
That jury is scheduled to hear the case later this month, and Wednesday’s hearing dealt with which Fox witnesses would be compelled to testify live.
Before ruling that top Fox executives including Rupert Murdoch and Lachlan Murdoch would have to travel to Delaware to testify in person during the trial, Davis spoke briefly about several outstanding motions in limine (motions to limit what evidence can be admitted and what topics can be broached during testimony at trial), and specifically addressed the issue of January 6.
“I don’t see January 6th as relevant in this case,” said Davis. “I know that probably shocks everyone, but in developing this case and developing the opinion and developing the decisions, this court is very focused on a specific time, and I am aware of only one statement that was made subsequent to January 6th, and I don’t think it related to January 6th.”
In Dominion’s legal pleadings, the company identified twenty “Statements” made on FNC or FBN that it argued were defamatory. Davis correctly noted that only one of these Statements occurred after Jan. 6, 2021, a Jan. 26, 2021 episode of Tucker Carlson Tonight in which host Tucker Carlson interviewed pillow-and-conspiracy monger Mike Lindell, who made comments accusing Dominion of hiring “hit groups, bots and trolls” to go after his “vendors, big box stores to cancel me out” and claimed to have “all the evidence” to prove there was “machine fraud” (See section T in the Appendix to the Summary Judgment ruling, page 127).
“What parties were thinking in January is not very relevant, if at all, to what happened in November and December,” said Davis, referring to the dates of the other nineteen Statements at issue in the case, and “whether there’s actionable defamation in this case.”
“I’m also very concerned that there would be unfair prejudice to Fox,” the judge added, because “Fox is not the cause of the January 6th — I mean in its relation to Dominion.”
He mentioned that he would be willing to hear some argument on the issue but “would really have to change my mind,” because he “just [didn’t] see how it’s relevant” — meaning January 6 — “as to allegations of defamation that happened in November and December as to whether Fox had actual malice with respect for those and whether damages may be something.”
It should be noted this was not an official ruling by Davis, but him voicing a strong indication of how he is likely to rule regarding the parties’ outstanding motions, or respond to objections during trial if witnesses are asked about the events of Jan. 6.
Davis also mentioned that he did not think certain matters were relevant to be included in voir dire (the questioning of potential jurors) like January 6, how a potential juror may have voted, or their personal views of the 2020 election.
“The question is whether they can be fair and impartial in this case,” he said, and be able to not “prejudge issues in this case,” specifically, “whether there’s actionable defamation.”
A Fox Corp. spokesman issued the following statement to Mediaite regarding the judge’s ruling regarding the witnesses: “Dominion clearly wants to continue generating misleading stories from their friends in the media to distract from their weak case. Demanding witnesses who had nothing to do with the challenged broadcasts is just the latest example of their political crusade in search of a financial windfall.” Mediaite did not receive a comment regarding the expected restrictions on mentions of Jan. 6. A spokesperson for Dominion declined to comment.
