Word just came at about noon, PDT, that Judge Eric Davis has in fact decided to appoint a special master to investigate Fox News’ handling of discovery, an issue he had raised at an earlier hearing. It’s now official, per the New York Times.
What led to such a decision? The best speculation at this point is that Rupert Murdoch did what a lot of powerful clients do, which is not listen to their own counsel. In this case, the big sticking point, one which pushed this particular judge too far, as that there was ambiguity about what role Murdoch played with respect to Fox. Murdoch apparently did not want the court to know that he was in fact an officer at Fox News, which is a very basic fact. Concealing it was stupid.
Doubtlessly, some counsel of Murdoch had advised him to not attempt to conceal that fact and that is what led to the big explosion a few days ago where Judge Davis said, in essence, that he had no confidence in Fox News’ lawyers. That is a catastrophic way to begin a trial. New York Magazine:
As a rule, it is generally not a great idea for lawyers to antagonize the presiding judge in the days leading up to a major trial. So Fox News’ lawyers could not have been feeling particularly good last week when, during the homestretch of pretrial hearings in the defamation case brought by Dominion Voting Systems, Delaware judge Eric M. Davis told them that they had a “credibility problem.” This is how a judge tells lawyers that he does not trust them, and for a party to high-profile litigation, the credibility of the lawyers in the courtroom is an essential asset — hard to acquire, closely guarded, and easily lost — that can subtly but crucially affect the proceedings.
This was an undoubtedly dramatic last-minute turn of events, but Fox has been on the ropes for weeks now in the run-up to the Tuesday start of the trial, which finds the network in a conspicuously weak position as it begins its defense against Dominion in what is expected to be a roughly six-week-long proceeding. The trial was supposed to begin Monday, but on Sunday evening the judge delayed the start of the case amid reports of a last minute push by Fox to settle.
The election-technology company is looking for $1.6 billion in damages as a result of 20 episodes of alleged defamation that largely occurred during a monthlong period from mid-November to mid-December 2020 during segments in which crank lawyers Rudy Giuliani and Sidney Powell claimed that Dominion was part of an elaborate — and entirely fictional — conspiracy to steal the 2020 presidential election from Donald Trump. The segments mostly aired on shows hosted by Lou Dobbs, Maria Bartiromo, and Jeanine Pirro, on both Fox News and Fox Business.
So now they’ve got the special master, and they did it to themselves.
The trial begins Tuesday, but after two years of litigation, Fox News’ lawyers had revealed for the first time in the case that Rupert Murdoch, the chair of parent company Fox Corporation, also officially holds a position at Fox News as “executive chair.” This may seem like a small and perhaps inconsequential point — Fox News’ lawyers called the title an “honorific” — but it is not. The reason is that Fox’s lawyers have fought hard throughout the litigation to insist there is a clear distinction — both legally and factually in their day-to-day operations — between Fox News and Fox Corporation. Both are defendants in the case, but Fox Corporation has deeper pockets and a large portfolio of media properties in addition to the network. As it happens, though, Murdoch himself provides an even more direct and formal link between the governance of the parent and the subsidiary than we all previously knew.
Judge Davis, a former corporate litigator himself, was understandably angry with Fox’s lawyers, who, like their adversaries working on behalf of Dominion, will be spending the weeks ahead in trial asking the judge to make countless evidentiary and procedural rulings in their favor — about what evidence the jurors should be allowed to hear, what sorts of arguments the lawyers can make in front of them, and what legal instructions will guide their final decision. “My problem,” Davis reportedly said after learning about Murdoch’s dual role, “is that it has been represented to me more than once that he is not an officer” at Fox News.
Things managed to get worse the next day, when Davis announced that he would appoint an outside lawyer to determine whether Fox had tried to mislead Dominion and the court; he left open the possibility that he would tell the jury that Fox had tried to withhold unhelpful information during the case. “I need people to tell me the truth,” he told Fox’s lawyers, which is not exactly an encouraging sign of things to come when the case is nominally about whether the media outlet is populated and run by a bunch of liars.
This does make sense, though. Rupert Murdoch has made a fortune out of spinning the truth the way he wants to spin it. He’s not used to the rigorous standards of honesty that are commonplace in a courtroom. He’s going to get a crash course in these matters in the days to come.
It’s approximately 3:15 EDT in the trial and the judge and jurors are nowhere to be seen. Opening statements have not begun, perhaps they won’t this late in the day. As the Times reports, “The courtroom is packed and sweltering and welling with anticipation as no word comes about why there is a delay.”
Stay tuned.
Fox has settled.
Who got to the judge? He sounded like a reasonable person. He even lowered the fine!! What is with this BS? We need to hear their lame testimony on the stand.
I had blocked my calendar out for the next 6 weeks!! So bigly disappointed!!!
Ooh, ooh….would this clown be like one of those “inspector generals” that appear to be easily bought off? You do realize that 700 million is chump change to these criminals don’t you? I bet the “special master” can be bought off cheaper than the cost of one of those fancy electric cars….
Not if the special.master wants to keep his law license. This judge has had Faux up to here. He has already made findings of fact that show Faux’s “anchors” knew they were lying when they claimed Dominions machines were hacked because Trump.lost so.must be fraud…I think this judge wants to nail Murdoch with the lust Junior Trump.feels when he bags an endangered species driven toward him.by beaters.