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UPDATE, 12:39 PM ET: The judge presiding over Dominion’s defamation case against Fox pushed back on the network’s attorneys for their argument that Rupert Murdoch would be unable to testify live in the upcoming trial.
In a hearing on Tuesday, Delaware Superior Court Judge Eric Davis cited a letter he received from the Fox legal team arguing that “under Covid, he couldn’t travel, that he doesn’t have knowledge, that it can be difficult for him to come down.”
“Mr. Murdoch has claimed that he is traveling and that it would be an inconvenience,” Davis said. “But I also have people telling me that he has done some things recently that show he is hardly infirm and unable to travel around.”
Davis referred to reports of Murdoch’s engagement on St. Patrick’s Day, and his talk of traveling “between his various residences between L.A., Montana, New York and London.”
“That doesn’t sound like someone who can’t go from New York to Wilmington,” the judge told attorneys. “So let’s get the story straight on these types of things so I don’t look like an idiot.”
He referred to a letter he received from Fox’s lawyers, arguing that “under Covid, he couldn’t travel, that he doesn’t have knowledge, that it can be difficult for him to come down.”
Davis said that he had the ability to compel officers, directors and managing agents to testify, depending on the reason their testimony would be needed in a trial. Just who will give live testimony — and whether they will be compelled to do so — is an issue as attorneys and the judge plan out the trial.
Matthew Carter, attorney for Fox, told the judge that there could have been a bit of miscommunication in their letter. “We are not arguing that Mr. Murdoch is infirm or unable to travel.” He said that they were pointing out that given his seven hour deposition, there was no reason to “force him to come and testify live.”
In the letter to the judge, Fox’s legal team argued that Murdoch, son Lachlan Murdoch, Fox Corp. executive Viet Dinh and board member Paul Ryan should not be compelled to testify because of “hardships on those witnesses, and the undue burden given their limited knowledge of pertinent facts.”
“Mr. Murdoch was in Great Britain under COVID-19 lockdown during the entire relevant time-period,” the attorneys wrote, adding that during his deposition, he “repeatedly stated he had little knowledge of Dominion, no opinion on Dominion, and no understanding of Dominion’s possible role in the 2020 election.” The attorneys also argued that the others had limited roles in the case.
PREVIOUSLY: Dominion Voting Systems’ upcoming defamation trial against Fox News and Fox Corp., scheduled to begin on April 17, may very well feature a parade of the network’s news personalities taking the stand, with both sides in the case planning to call figures including Tucker Carlson, Sean Hannity and Bret Baier.
They are among the personalities and executives appearing on both parties proposed live witness lists, filed in Delaware Superior Court on Monday. Also named: Maria Bartiromo, Dana Perino and Jeanine Pirro, as well as former host Lou Dobbs. Also listed: Fox News Media CEO Suzanne Scott, Fox News president Jay Wallace, COO and CFO Joe Dorrego, executive vice president Meade Cooper, Tucker Carlson Tonight senior executive producer Justin Wells and Fox Business Network president Lauren Petterson. Also listed are Dominion CEO John Poulos, CFO Michael McGee and State Street Capital co-founder Hootan Yaghoobzadeh.
Dominion lists Fox Corp. chair Rupert Murdoch and CEO Lachlan Murdoch on its live witness list, but Fox’s side has them marked down to appear via video deposition testimony. Dominion also names fired producer Abby Grossberg as a live witness, but Fox has her on its deposition list. She has filed suit against the network, claiming that she was coerced by Fox lawyers in her testimony, and she is seeking to amend it. Fox said that she was dismissed for failing to protect privileged company information, and said that her lawsuit was “riddled with false allegations.”
Dominion also lists former House Speaker Paul Ryan, a board member of Fox Corp., as a live witness, while Fox has him for video deposition testimony. Both sides also list Bill Gates as a deposition witness.
The lists are included with both sides’ proposed pre-trial stipulation and order, which must be approved by the judge, Eric M. Davis. He is holding a pre-trial hearing on Tuesday afternoon, where a number of issues for the pending trial are expected to be raised.
Last week, Davis told attorneys that he faced some limits on compelling witnesses to testify so “don’t ask me to issue a subpoena.” But said that there were some exceptions for officers and directors of corporations. He also signaled that he did not want a witness appearing via video deposition expert and, as a follow up, via live and in person testimony. He did raise the prospect of some Zoom testimony.
Typically witness lists are ultimately pared down by the time of a trial, due to time constraints and a judge’s ruling. Davis is estimating a trial of 25 business days, or 137.5 hours. “That is, if everything works perfectly,” he said.
Dominion accuses Fox of amplifying and endorsing false claims that the voting systems company rigged the 2020 presidential election results. The network contends that it was merely covering and commenting on “undeniably newsworthy allegations” by Donald Trump and his lawyers.
Davis has yet to issue a ruling on each side’s motions for summary judgment.
A Fox News spokesperson said in a statement, “Dominion’s needlessly expansive live witness list is yet another attempt to generate headlines and distract from the many shortcomings of its case. Ultimately, this case is about the First Amendment protections of the media’s absolute right to cover the news.”
More to come.
