Former Fox host Lou Dobbs interviews Sidney Powell. (Fox News screengrab via Dominion lawsuit)
As the network gears up for a high-stakes trial, Fox has been slapped with sanctions for flouting discovery obligation to Dominion Voting Systems on Wednesday. A Delaware judge found that Fox failed to turn over pre-recorded interviews with election deniers Rudy Giuliani and Sidney Powell, among other evidence.
It’s the latest setback that Fox has faced on the road to trial that could cost them $1.6 billion if a jury finds that they knowingly or recklessly broadcast false claims about Dominion after the 2020 presidential election. Dominion claims that Fox feared their viewers would flock to more right-wing alternatives like Newsmax and One America News — and aired outlandish theories that they privately ridiculed with an eye for their bottom line.
Former Fox producer Abby Grossberg apparently alerted Dominion to some of the missing evidence when she wrote in court papers that the network had access to the transcription software Otter on her phone. She said that she used that app to record and quickly transcribe pre-broadcast interviews with Giuliani, Powell and “other high-ranking members of the Trump presidential campaign.” She says they were recorded when she was working for Maria Bartiromo’s show.
In these chats, Grossberg said, Giuliani acknowledged that he didn’t have evidence for some of his election conspiracy theories.
“During one of these recordings, on or about November 15, 2020, Mr. Giuliani admitted to Ms. Bartiromo that the Trump campaign could not prove some of the allegations that it was making regarding Dominion, and when asked by Ms. Bartiromo what evidence he had implicating Dominion, he replied, ‘that’s a little harder,’ without giving any specific sources for the fraud accusations,” Grossberg’s second amended complaint states. “When further pushed by Ms. Bartiromo regarding whether Nancy Pelosi had an interest in Dominion, Mr. Giuliani responded, ‘I’ve read that. I can’t prove that.'”
Fox insists that they never tried to hide evidence from Dominion.
“As counsel explained to the Court, FOX produced the supplemental information from Ms. Grossberg when we first learned it,” a spokesperson said.
Grossberg used to be a producer for Bartiromo and Tucker Carlson before she sued the network alleging religious and gender discrimination. She also claimed that Fox scapegoated her and Bartiromo for their post-election coverage and “coerced” misleading testimony for her deposition, which cleared some of the network’s most powerful men.
Her attorneys Parisis G. Filippatos and Tanvir H. Rahman celebrated the sanctions order in a statement.
“We are pleased that the Court recognized the very serious apparent discovery-related and other gross misconduct perpetrated by Fox News and its team of high-powered attorneys in relation to the Dominion v. Fox lawsuit that our client, Abby Grossberg, has courageously and repeatedly revealed in her lawsuits against the network,” they wrote, adding that Judge Davis found the network’s conduct “deeply troubling.”
Judge Davis also questioned whether Fox concealed that Rupert Murdoch was an officer of Fox News. The News Corp chief is also the chairman of the Fox Corporation, the parent corporation of Fox News.
Fox denied any wrongdoing on this question.
“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 spokesperson said.
Delaware Superior Court Judge Eric M. Davis issued his sanctions order less than two weeks after granting Dominion a rare legal victory on summary judgment, finding that Fox’s broadcasts in question are false as a matter of law.
The order hangs Fox’s hopes for avoiding liability almost entirely on the doctrine of actual malice, established by the Supreme Court more than half a century ago in New York Times v. Sullivan. That standard imposed a high bar for litigants suing news organizations, by forcing them to prove that the outlets knowingly published false information or acted with reckless disregard for the truth.
For Fox, the pretrial defeats keep racking up: On Tuesday, Judge Davis further limited the network’s defenses by finding that they cannot argue that the false allegations were newsworthy, according to the New York Times.
Davis also ruled that Fox cannot blame Giuliani and Powell for the false statements, finding the network ultimately published them, the Times said.
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