Dominion's defamation case against Fox poised for trial after delay

[April 18, 2023]  By Helen Coster and Jack Queen

WILMINGTON, Delaware (Reuters) - The courtroom showdown in the $1.6 billion defamation lawsuit by Dominion Voting Systems against Fox Corp and Fox News is set to get underway on Tuesday, with jury selection due to be completed and opening statements delivered in a trial putting one of the world's leading media properties in the crosshairs.

Anticipation has been building for this day since Denver-based Dominion sued in 2021 over Fox's airing of false claims that the Denver-based company's ballot-counting machines were used to rig the 2020 U.S. presidential election in favor of Democrat Joe Biden over Republican then-President Donald Trump.

After a one-day delay ordered by Delaware Superior Court Judge Eric Davis, selection of the jury is set to resume at 9 a.m. EDT (1300 GMT) in Wilmington. That process is expected to go quickly, setting the stage for lawyers representing the two sides to make opening statements to the 12-member panel.

Adding to the drama is the fact that 92-year-old media mogul Rupert Murdoch, who serves as Fox Corp chairman, is due to testify during the trial, along with a procession of Fox executives such as CEO Suzanne Scott and on-air hosts including Tucker Carlson, Sean Hannity and Jeanine Pirro.

The judge did not disclose the reason for the 24-hour delay, but two sources told Reuters that Fox and Dominion had been holding last-minute settlement talks. Fox and Dominion could still settle the case. Fox faces a potentially enormous judgment because Dominion is also asking for punitive damages in any amount jurors deem appropriate.

Dominion in 2021 sued Fox Corp and Fox News, contending that its business was ruined by the false vote-rigging claims that were aired by the influential American cable news outlet known for its roster of conservative commentators.

The primary question for jurors will be whether Fox knowingly spread false information or recklessly disregarded the truth, the standard of "actual malice" that Dominion must show to prevail in a defamation case. Based on a slew of internal communications, Dominion alleges that Fox staff, ranging from newsroom employees all the way up to Murdoch, knew the statements were false but continued to air them out of fear of losing viewers to media competitors on the right.

 A person walks by Fox News signage posted on the News Corporation building in New York City, U.S. April 12, 2023 REUTERS/Andrew Kelly/File Photo

The trial is considered a test of whether Fox's coverage crossed the line between ethical journalism and the pursuit of ratings, as Dominion alleges and Fox denies. Fox has portrayed itself in the pretrial skirmishing as a defender of press freedom.

The stakes are even higher considering that another U.S. voting technology company, Smartmatic, is pursuing its own defamation lawsuit against Fox seeking $2.7 billion in damages in a New York state court.

Fox has called Dominion's $1.6 billion damages claim unrealistic and based on flawed economic modeling. An expert report commissioned by Dominion attributed scores of lost contracts to Fox's coverage, though much of the report remains under seal.

Fox claimed in a filing on Sunday that Dominion had agreed to knock off more than $500 million of its damages claim. A Dominion spokesperson disputed that claim and said its damages claim remained unchanged.

Fox Corp reported nearly $14 billion in annual revenue last year.

Dominion has said defamatory statements about it aired on Fox shows including "Sunday Morning Futures," "Lou Dobbs Tonight" and "Justice with Judge Jeanine."

Dominion also has cited evidence that some hosts and producers thought the guests spreading the false statements, including former Trump attorneys Rudy Giuliani and Sidney Powell, could not back up their allegations.

Fox had argued that coverage of the vote-rigging claims was inherently newsworthy and protected by the U.S. Constitution's First Amendment guarantee of press freedom. Davis rejected that argument in a ruling last month.

(Reporting by Helen Coster in Wilmington and Jack Queen in New York; Editing by Will Dunham)

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