"Potential for criminal penalties": Experts warn judge could punish Fox for "engaging in misconduct"

Judge Eric Davis ordered an investigation into whether Fox improperly withheld evidence in discovery process

By Areeba Shah

Staff Writer

Published April 13, 2023 3:02PM (EDT)

Fox Corp. Chairman Rupert Murdoch. (Drew Angerer/Getty Images)
Fox Corp. Chairman Rupert Murdoch. (Drew Angerer/Getty Images)

The judge overseeing Dominion Voting Systems' defamation lawsuit against Fox News on Wednesday sanctioned the network for withholding evidence during discovery and said he's considering launching an investigation into Fox's legal team for not being "straightforward" with him, The New York Times reported

Dominion is suing the right-wing outlet for $1.6 billion for repeatedly airing false statements after the 2020 presidential election suggesting the election software company changed or deleted votes to help President Joe Biden get elected.

Abby Grossberg, a former Fox producer who is suing the network, recently revealed that the network has recordings of Trump campaign lawyers Rudy Giuliani and Sidney Powell admitting they had no evidence to support their Dominion election fraud lies. The recordings hadn't been turned over to Dominion's lawyers until a week ago, according to The Times.

"Engaging in misconduct in the discovery process can result in discipline for the lawyers and sanctions for the company," former U.S. Attorney Barb McQuade, a law professor at the University of Michigan and MSNBC contributor, told Salon. "Sanctions could include monetary fines, or even adverse decisions about the case, such as allowing the jury to draw an inference in favor of Dominion as to particular issues."

The network has claimed that it complied with all of its obligations in discovery.

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

Delaware Superior Court Judge Eric Davis ruled that if Dominion had to redo any depositions, then Fox would have to "do everything they can to make the person available, and it will be at a cost to Fox."

He added that he would likely appoint a special master to investigate Fox's legal team's actions and look into whether Fox had inappropriately withheld details about the scope of Fox Corp. Chairman Rupert Murdoch's officer role at Fox News.

"This is a problem," Davis said, according to a court transcript. "I need to feel comfortable when you represent something to me that is the truth."

Since Dominion filed its suit in 2021, Fox had argued that Murdoch and Fox Corporation should be excluded from the case because Murdoch and other senior executives had nothing to do with running Fox News. But in the past few days, Fox disclosed to Dominion that Murdoch was a corporate officer at Fox News, The New York Times reported. 

"The revelation that Murdoch is an officer of Fox News should eliminate any argument that his testimony is not relevant in this case," McQuade said. 

"Rupert Murdoch has been listed as executive chairman of FOX News in our SEC filings for several years and this filing was referenced by Dominion's own attorney during his deposition," a Fox spokesperson said in a statement.

The recordings as well as Judge Davis' sanctions on Fox come days before the trial is scheduled to begin in the most significant defamation case in recent years.

The imposition of sanctions on Fox could lead to "potential consequences of monetary penalties, ethics issues for the lawyers and even has the potential for criminal consequences if there were knowing and deliberate falsehoods made to the court," John Kaley, former assistant U.S. attorney in the Southern District of New York, told Salon.

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Whether Murdoch made decisions as a corporate officer of Fox News or not is a key detail in Dominion's case. The voting technology company has tried to prove that Rupert and Lachlan Murdoch, the chief executive of Fox Corporation, were involved in making decisions about what Fox broadcast as part of its coverage of the 2020 election.

Dominion argues that their decisions pushed Fox News hosts to broadcast a series of lies in support of Trump's stolen election conspiracy theory as part of a plan to keep viewers from turning to other networks. 

Fox has denied any wrongdoing, arguing that they were reporting on notable allegations protected by the First Amendment. But some legal experts argue that Fox can no longer rely on the First Amendment as a defense since they have "satisfied the actual malice standard" for holding a news organization to account for falsehoods

Jury selection for the case starts on Thursday with the trial scheduled to begin on Monday.

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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