Lawyers spar over evidence ahead of Smartmatic's election defamation case against Newsmax

Attorneys for the voting machine company Smartmatic and the cable channel Newsmax argued at a hearing Monday over evidence and witnesses expected to be presented when Smartmatic's defamation case against the news channel goes to trial later this month.

Smartmatic has accused Newsmax of publishing dozens of false reports claiming that Smartmatic helped rig the 2020 election. Newsmax has argued, in part, that they were reporting on newsworthy claims of fraud.

Howard Cooper, an attorney for Newsmax, argued at Monday's hearing that the news channel should be able to introduce videos of broadcast segments that he says rebut Smartmatic's argument that "Newsmax took this position of election fraud [and] not calling the election" for winner Joe Biden.

"One of the ways that we can rebut that theory is by showing shows that were contrary to President Trump's position," Cooper said of former President Donald Trump, who falsely claimed there had been massive election fraud.

The two sides also argued over the inclusion of witnesses who would testify about whether Newsmax, in the course of its reporting, reached out to Smartmatic -- or instead only reached out to Dominion, another voting machine company that was falsely accused of wrongdoing.

Dominion, in a separate case last year, reached a $787 million settlement with Fox News in a $1.6 billion defamation lawsuit.

Newsmax officials have said under oath that the company contacted or attempted to contact Smartmatic during its coverage of the election and its aftermath.

"We're not disputing that Dominion and Smartmatic are not the same," said an attorney for Newsmax. "Some of these Newsmax personnel did get to contact Dominion. It is relevant to the case. It's relevant to their state of mind."

"I'd love for you to make that argument if I'm on the other side," Delaware Superior Court Judge Eric Davis said in response. "Here is the executive producer of this show, and he doesn't know the difference between Exxon and Chevron."

After a lengthy argument about other types of evidence the parties would like to introduce at the trial, the judge reviewed the potential witness list and emphasized the need for clear and concise jury instructions.

At one point during the hearing, an attorney for Newsmax requested permission to depose Smartmatic's damages expert, arguing that the expert's "reports and charts" on the damages have changed frequently.

"I would only add they were looking for somewhere, and we don't know yet, between $400 and $600 million in this case," an attorney for Newsmax said, criticizing "the idea that we would go to a trial without having a full opportunity to do an up-to-date examination of their damages expert."

An attorney for Smartmatic pushed back, saying that Newsmax attorneys have previously deposed the expert and that "none of the information has changed."

Judge Davis said he would rule soon on each of the motions.

The trial is scheduled to begin on Sept. 30 in Delaware.