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Judge rebukes Fox attorneys ahead of defamation trial: 'Omission is a lie'

The Fox News studios and headquarters in New York on March 21.
Ted Shaffrey
The Fox News studios and headquarters in New York on March 21.

Updated April 12, 2023 at 6:02 PM ET

At Wednesday's pre-trial hearings in the billion-dollar Fox defamation lawsuit, the Delaware judge overseeing the case declared he would sanction Fox News and launch an investigation into Fox's apparent repeated failures to disclose information, including about the role of Fox founder Rupert Murdoch.

The trial, one of the most significant defamation cases in many years, is set to begin on Monday. Dominion Voting Systems, one of the leading makers of voting equipment, sued the conservative cable outlet in 2021 after it aired numerous false statements by guests and hosts baselessly claiming that the company somehow rigged voting machines to help Joe Biden steal the election from then-President Donald Trump.

Numerous post-election lawsuits and audits confirmed that Biden's win was legitimate and no evidence has surfaced that Dominion's machines altered the vote.

Delaware Superior Court Judge Eric Davis sternly warned Fox and its legal team that its veracity was in doubt in his courtroom.

"I need people to tell me the truth," Davis said as he dressed down the network's attorneys. "And, by the way, omission is a lie."

Last week, Davis ruled that Dominion had already proved the contested statements' falsity and that the jury won't have to weigh their validity; instead, the judge will instruct them that the statements are false and defamatory.

Abby Grossberg, a Fox producer who is suing the network, recently revealed the existence of audiotapes of Fox host Maria Bartiromo talking to Trump campaign lawyers Rudy Giuliani and Sidney Powell, who had fanned wild conspiracy theories about Dominion on the air. Fox had not turned over the audio to Dominion's lawyers.

"As counsel explained to the Court, FOX produced the supplemental information from Ms. Grossberg when we first learned it," a Fox News spokesperson said in a statement.

Wednesday's actions by the judge follow a bombshell courtroom disclosure Tuesday that Rupert Murdoch is formally designated as executive chairman of Fox News in addition to serving as the chair of its parent company Fox Corp.

Judge Davis on Tuesday said Fox lawyers previously had "represented to him more than once" that Murdoch was not an officer for the subsidiary cable network. The issue holds great import for the media magnate and the parent company as its lawyers argue he had no influence over Fox's broadcasts amplifying the lies about Dominion.

Tuesday, in the Delaware Chancery Court, a shareholder sued Murdoch and four other members of Fox Corp's board, alleging that they had abdicated their responsibility to protect its most important asset's reputation. Instead, the shareholder alleged, echoing Dominion's allegations, that Fox had sought to appease Trump supporters with false broadcasts.

The judge publicly mused whether he could have made earlier judicial decisions differently.

"People need to understand. Don't play games with this stuff," Davis said, directing his frustrations toward Fox's attorneys.

Fox says Murdoch's role with the news side of the company was public knowledge via filings over several years with the Securities and Exchange Commission.

Dominion attorney Davida Brook also cited a story broken by NPR earlier this week: NPR disclosed that Fox's chief political anchor, Bret Baier, had unsuccessfully lobbied from late November 2020 to January 2021 to host an hour-long special debunking election fraud myths for its viewers. According to five sources, Baier never received an anchor. (A Fox executive, speaking on condition of anonymity, say it was a "nascent" idea that became irrelevant after the Jan. 6, 2021, attack on the U.S. Capitol. All attention turned to the Biden transition, the executive said.)

Dominion's attorneys on Wednesday urged Judge Davis to respond to the apparent misstatements about Murdoch's role. They suggested the court either strip apart Dominion's claims against Fox News and Fox Corp so they are two separate lawsuits, or instruct the jury in a forthcoming trial to take an "adverse inference" because of the confusion over Murdoch's role.

Such an inference could lead the jury to believe that Fox had purposely kept information hidden from the court.

Dominion attorney Justin Nelson argued that his team had "been litigating on a false premise," and consequently missing out on information during earlier stages of the lawsuit because of apparent misunderstandings of Murdoch's role.

"There's no way to fix it on the eve of trial," Nelson said.

Responding to the claims, Fox's chief attorney, Dan Webb, said no one at Fox had intentionally withheld information. He also said any assertion that Dominion didn't know about Murdoch's role with Fox was unbelievable, because the company's attorneys had asked Murdoch about his Fox News role during a deposition.

Furthermore, Webb argued, Murdoch's role is largely irrelevant because there is not "a shred of evidence" showing he managed operations at the network during the wake of the 2020 presidential election.

Still, Dominion's attorneys also claimed that a failure to share all relevant evidence in the case extends beyond Rupert Murdoch.

Citing the separate lawsuit against Fox filed last month by former producer Grossberg, Dominion attorney Brookalso said there were thousands of message sent to or from Bartiromo's personal email account that weren't provided to Dominion in a timely manner.

The comments prompted clear discomfort from Davis. Such unease appeared to cause a bout of sarcasm from the judge when he said unprovoked to a Fox attorney that Bartiromo is "clearly neutral."

"I'm sorry," the attorney said, confused. "She's clearly neutral," the judge repeated.

"I'm being sarcastic," he said after a pause.

Moving forward, Davis announced he would appoint a so-called "special master" to investigate Fox's apparent failure to share all information. Davis also allowed Dominion to re-depose some witnesses from Fox, including Bartiromo, at Fox's expense.

Davis did not indicate a timeline for the special master's investigation.

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Corrected: April 12, 2023 at 12:00 AM EDT
The headline on an earlier version of this story said "Fox attorneys under investigation for lying in court on brink of blockbuster trial." The investigation has not yet begun and the headline has been changed.
Karl Baker
David Folkenflik was described by Geraldo Rivera of Fox News as "a really weak-kneed, backstabbing, sweaty-palmed reporter." Others have been kinder. The Columbia Journalism Review, for example, once gave him a "laurel" for reporting that immediately led the U.S. military to institute safety measures for journalists in Baghdad.