Judge Rules Rupert Murdoch, Lachlan Murdoch, Other Top Fox Execs Must Testify Live at Dominion Defamation Trial
During a Wednesday afternoon hearing, Delaware Superior Court Judge Eric M. Davis ruled that top Fox executives Rupert Murdoch, Lachlan Murdoch, and Paul Ryan will have to testify live at the trial in the defamation lawsuit filed by Dominion Voting Systems.
The $1.6 billion complaint 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 presidential 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 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.
Dominion had argued that Fox had conceded it would have to produce for live testimony News Corp. (Fox Corp.’s parent company) owner Rupert Murdoch, his son and co-chairman Lachlan Murdoch, former Speaker of the House and Fox Corp. board member Paul Ryan, and Fox Corp. chief legal and policy officer Viet Dinh.
Dominion also argued that six additional high-ranking Fox employees — Jerry Andrews, Irena Briganti, Tom Lowell, Ron Mitchell, Gary Schreier, and Raj Shah — should also have to travel to Delaware to testify live.
As a Delaware corporation, Fox Corp. is legally treated as having consented to the jurisdiction of the Delaware courts (which is why this case is in Delaware, and not New York City, etc.) and under Delaware law, that consent extends to those people who are the directors, officers, or managing agents of the corporation.
Davis addressed this legal issue early in the hearing, remarking that the Murdochs, Ryan, and Dinh clearly were “directors, officers, or managing agents of a Delaware corporation,” and “both parties have made these witnesses very relevant.” The judge was not persuaded by Fox’s arguments about it being inconvenient for the Murdochs to travel from overseas or the fact that these witnesses had been previously deposed. He also rejected Fox’s position that they “were not in control over what was published at Fox News,” finding that Dominion had presented enough evidence on that issue to get past summary judgment and proceed to trial.
“Corporations don’t raise their hand on the stand,” said Davis to explain his decision. “Their officers and directors raise their hand on the stand. It’s the only way to get a corporation to testify. And not only are these people officers and directors, but they’re relevant to the case.”
He directed Dominion to issue trial subpoenas for these witnesses to testify live and said he would not quash it, even though he knows it is “difficult” and they “have very large workloads,” but the court would try to create the “least amount of inconvenience on them as possible.”
Davis then directed the discussion to the remaining Fox employees on Dominion’s list.
Dominion presented arguments that these witnesses should be viewed as high-ranking enough to be forced to testify live on behalf of the corporation. For example, regarding Briganti, the senior executive vice president of corporate communications, Dominion’s attorney argued that “her only direct report is Suzanne Scott,” the Fox News CEO, and she had been listed as part of the Fox “executive leadership.”
After hearing the arguments from counsel for both parties, Davis ruled that only Lowell, senior executive vice president and managing editor of news, could be compelled to travel to Delaware to testify in person.
The key issue, the judge explained, was that there was a difference “between compelling somebody to talk on behalf of a company at a deposition and making them travel from New York City to Wilmington, Delaware, under the authority of a Delaware court.”
Because of “the notion that corporations act through their officers,” courts can compel the testimony of those officers at trial, he continued, and by incorporating in Delaware, those officers had “consented to the jurisdiction” of the Delaware courts.
Only Lowell can be compelled to travel to Delaware to testify, said Davis, because there was “a distinction” between “somebody who is a powerful person at Fox but doesn’t take on the role of as an officer like president, chairman, CFO, those types of things,” and the other five witnesses did not meet that standard.
These employees all were “invested with a lot of power” at Fox, but did not “operate independently” and were not “invested with the power to exercise personal judgment and discretion in corporate matters.”
Thus, these remaining Fox witnesses could be compelled to testify virtually, over Zoom, the judge said, but Dominion could not force them to testify live.
Davis added that if Fox was going to object to these witnesses testifying over Zoom, “I find that inconsistent with their approach during the discovery process,” indicating he would almost certainly rule against their objections on that matter.
UPDATE 4:20 pm ET: A Fox Corp. spokesman issued the following statement to Mediaite: “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.” A spokesperson for Dominion declined to comment.
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