WILMINGTON, Del. — An attorney for Dominion Voting Systems alleged that Fox News withheld information that would have entitled Dominion to obtain more of network co-founder Rupert Murdoch’s communications in the election-technology company’s $1.6 billion defamation lawsuit.
Justin Nelson, an attorney for Dominion, had told the court Tuesday that the company had only belatedly learned that Murdoch holds a title as an officer of Fox News as well as the larger Fox Corporation, which should have made more of his business communications accessible to the plaintiff.
“This alone has meant that we are missing a whole bunch of Rupert Murdoch documents that we otherwise would have been entitled to,” Nelson said. “It’s very troubling that this is where we are. It’s something that has really affected how we have litigated this case.”
Judge Eric M. Davis echoed Nelson’s frustration with Fox, saying the missing information about Murdoch’s title may have affected his decision-making regarding a recent ruling that narrowed the scope of the case. “I could have made an entirely wrong decision,” Davis said.
Davis noted that “it’s been represented more than once to me that he’s not an officer of Fox News,” adding that, “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.”
But when the hearing continued Wednesday, Davis said the new information about Murdoch’s role “doesn’t warrant deconsolidation” and that he will not split the case in two, particularly with jury selection scheduled to begin on Thursday.
Still, he cautioned that lawyers from both sides must correctly answer his questions when asked. “Omission is a lie,” he said. “People need to understand: Don’t play games with this stuff.”
And he delayed a decision on whether Dominion’s attorneys can inform jurors about the missing Murdoch documents, saying that he needs more specifics on what Dominion thinks it might have obtained if it knew more about Murdoch’s role.
Dan Webb, an attorney for Fox, said on Wednesday that he doesn’t know of any Murdoch-related documents that Dominion has not been denied.
Dominion is suing Fox over false claims that allies of Donald Trump made on its programs alleging that the company rigged its voting machines to flip the 2020 election to Joe Biden. Internal Fox communications made public as part of the discovery process showed Murdoch, among many other Fox executives and hosts, expressing deep skepticism over these claims, even as the network continued to air them.
It remains unclear whether the 92-year-old billionaire will testify during the trial, which starts with jury selection Thursday. Davis said at a previous hearing that he believes Murdoch is relevant enough to the case to be compelled to testify, but no appearance has been scheduled yet.
An attorney for Fox said Murdoch’s Fox News officership was an “honorific” and pointed out that Murdoch gave his corporate title, chair of Fox Corp., during his deposition. A spokesperson for Fox Corp pointed out that “Rupert Murdoch has been listed as executive chairman of Fox News in our [Securities and Exchange Commission] filings for several years and this filing was referenced by Dominion’s own attorney during his deposition.”
In court on Wednesday, Nelson countered that “a reference in the public domain is no excuse for not telling us the truth or producing the documents.”
Because Dominion sued Fox Corp. as well as Fox News, the voting-technology company had the opportunity to interview Murdoch and to obtain some of his communications, though Nelson claimed that more documentation should have been forthcoming.
And on Wednesday, Dominion raised additional concerns about new revelations from a former Fox News producer.
Abby Grossberg, who has said she was fired after accusing Fox’s lawyers of improperly coaching her for her deposition in the case, disclosed in a separate court filing this week that she had recordings of off-camera conversations between Fox host Maria Bartiromo and Trump-affiliated lawyers Rudy Giuliani and Sidney Powell regarding their claims of voter fraud.
In one of the recordings, which was played in court Wednesday, Giuliani hedged when Bartiromo asked about proof of certain claims he was making about Dominion. (“That’s a little harder,” Giuliani replied.)
Davida Brook, another lawyer for Dominion, said it was “concerning” that Dominion didn’t know about the recordings earlier.
“That’s a very important document, and the question is whether there’s other documents out there,” Davis agreed. The judge was unmoved by a Fox lawyer’s argument that it didn’t know about Grossberg’s recordings. “They are recordings by a Fox employee. How could Fox not know?” he asked.
Davis also said that he will ask the special master in the case to investigate the question of documents Dominion thinks it had a right to obtain and whether Fox gave incorrect information. He also said he has no objections if the new information means Dominion needs to conduct additional depositions. “If Maria Bartiromo needs to be re-deposed, then she will be,” he said.
Expressing frustration with the last-minute issues, he added: “I’m very uncomfortable right now,” he said.
correction
A previous version of this story mistakenly attributed a quote about “whether there’s other documents out there” to an attorney for Dominion Voting Systems. It was actually spoken by Judge Davis. The file has been updated.