Dominion accuses Fox News of redacting 'embarrassing' materials in defamation case

Dominion filed a trove of internal Fox News documents earlier this month.

March 22, 2023, 10:05 PM

An attorney for Dominion Voting Systems accused Fox News on Wednesday of improperly redacting internal materials that the network was forced to hand over as part of Dominion's billion-dollar defamation suit against it.

"They're essentially redacting embarrassing information," attorney Davida Brook told the judge hearing the case.

The claim came during a pivotal summary judgment hearing in which each side has asked the judge to rule in their favor before the case is set to head to trial next month.

Dominion's $1.6 billion suit accuses Fox News of knowingly pushing false conspiracy theories about the voting machine company in the wake of the 2020 election, in order to combat concerns over ratings and viewer retention.

In February and March, Dominion filed bombshell findings from the discovery process containing a trove of emails, texts, testimony, and other private communications from some of Fox's biggest stars and executives, privately bashing Trump and his election fraud claims while they continued to broadcast them on air.

"I hate him passionately," Tucker Carlson privately said of Trump, according to Dominion's filings.

An attorney for Fox defended Fox's redactions and pointed to the hundreds of communications that have already been entered into the public record.

A worker passes a Dominion Voting ballot scanner while setting up a polling location at an elementary school in Gwinnett County, Ga., Jan. 4, 2021.
Ben Gray/AP, FILE

"I don't think there any lack of public access here," the attorney, Katharine L. Mowery, said.

Earlier this month, Dominion filed a motion with the judge pushing back on some of Fox's redactions, calling them "not warranted."

"Dominion does not challenge Fox's decision to redact contact information such as phone numbers and emails provided," the filing states. "As for Fox's substantive redactions ... Dominion hereby brings this notice of challenge to the confidential treatment of these redacted briefs, certifications, affidavits, exhibits, declarations, and appendices."

In its own filing, Fox said "almost all" relevant materials had been unsealed "after a careful redaction process consistent with Court rules and Delaware law."

"Throughout three rounds of briefing, Dominion jammed the record with 700 exhibits, many of which were personal text messages between Fox employees with no connection to any of the challenged broadcast or statements," Fox wrote in its filing. "On top of this, Dominion attached other internal Fox communications -- often inflammatory and headline-grabbing, but irrelevant to any issue in dispute."

After the hearing, a Fox spokesperson said in a statement, "There are more than 900 documents filed as exhibits to the summary judgment motions, only a fraction of which are redacted on the basis of proprietary confidential business information. Furthermore, we will review the filings as necessary to release additional information as appropriate. There is no lack of public access."

Fox attorneys also sought Wednesday to distance parent company Fox Corporation and its chairman, Rupert Murdoch, from the ongoing suit as part of a broader effort to narrow what aspects of the case head to a jury.

Fox attorney Erin Murphy told the judge that Fox Corporation and its board members, including Rupert and Lachlan Murdoch and Paul Ryan, did "not belong in the case at all" because there was no evidence that they were directly involved in the news content in question.

"There's zero evidence that someone from Fox Corporation was reviewing the tweets of Lou Dobbs," Murphy said. "There's simply nothing connecting the individuals at Fox Corporation to these shows [at Fox News]."

Dominion, however, has claimed Rupert Murdoch did participate directly in Fox's coverage of the 2020 election. In its earlier brief, Dominion wrote that Murdoch was in "close contact" with Fox News CEO Suzanne Scott "multiple times a week, via phone calls and emails with 'suggestions' on hosts, narratives, topics, and guests."

"I'm a journalist at heart," Murdoch himself testified during his deposition. "I like to be involved in these things."

Exterior view of News Corp. Building and Fox News Headquarters, New York, NY, February 28, 2023.
Anthony Behar/Sipa USA via AP, FILE

Dominion's attorneys argued in court that Murdoch was "following" the issues being discussed on air.

"On one hand he knows the truth, but on the other hand, he has to appeal to the viewers," said Dominion attorney Justin Nelson. "That is exactly why he is responsible here."

The judge, however, said that Dominion "has to demonstrate that there is an actual participation" -- which the Fox attorney said was "welcome news."

Dominion is seeking to show that Fox is liable for defamation because the network's stars and executives knew many of the claims broadcast on the network were false -- yet they still pushed them out anyway.

"Unlike almost every single other defamation case, we have in their own words the fact that they knew it was false or in some cases that they were recklessly disregarding the truth," Dominion attorney Justin Nelson said Tuesday during the hearing. "It is rare for a defendant to admit, because it would show such liability, and here we have that, for multiple people, on multiple shows."

"There was a deliberate decision by those responsible for the broadcasts, a decision that went all the way up the chain of command, to let the story be out there, to let loose the hosts," said another Dominion attorney, Rodney Smolla.

Fox attorneys, however, said they were appropriately reporting on Trump's allegations, saying, "All we ever did was provide viewers with the true fact that those allegations were being leveled."

"These are not [allegations] that Fox News made up. These are allegations that were coming from the president, the president's legal team," Murphy said.

The judge overseeing the case, Eric Davis, said his ruling on the summary judgment motions would come later in writing.