On the heels of a ruling advancing Smartmatic’s multibillion-dollar lawsuit against Fox News months earlier, a Manhattan judge on Tuesday ordered the conservative network to start turning over files from a pool of millions of documents that the voting machine company demanded.
More than a year has passed since Smartmatic filed a $2.7 billion complaint against Fox News; the network’s personalities (current) Maria Bartiromo, Jeanine Pirro, (and former) Lou Dobbs; and former President Donald Trump’s lawyers Sidney Powell and Rudy Giuliani.
As that case played out in New York, Dominion has advanced a $1.6 billion complaint against Fox Corporation and Fox Broadcasting Company in Delaware. Both lawsuits took aim at the pro-Trump conspiracy theories involving the voting machine companies related to the election. The network failed to dismiss both lawsuits earlier this year, though Powell and Pirro succeeded in booting the Smartmatic’s claims.
Inside a small civil courtroom in lower Manhattan, Smartmatic’s lawyer Edward C. Wipper complained that Fox News has dragged its feet in sharing documents that it will need for a trial.
“It’s about delay,” Wipper thundered. “This is the strategy here.”
Later in the hearing, Wipper warned that Fox’s schedule would allow two election cycles to pass before resolution.
“We’re going to be barrelling into another election cycle where my client’s name is going to be besmirched,” Wipper said.
A Delaware judge already has ordered broad discovery against Fox Corporation in the Dominion litigation.
“Numerous Fox witnesses are being deposed, including defendants in this case,” Wipper said.
Fox estimates that it has produced 4.3 million documents in that case, but the network complains that the Delaware judge has not allowed for a review to protect their First Amendment rights as a news network.
“The judge in that case hasn’t even allowed us to do a responsiveness review,” remarked Fox’s attorney K. Winn Allen, referring to the Dominion case.
“Every incremental release is harmful to us from a First Amendment perspective,” Allen added, requesting discovery that’s “tailored” to the case.
Smartmatic wants the Manhattan judge to order Fox to turn over equivalent discovery in both cases, arguing that the conspiracy theories regarding one voting machine company sprang from the other.
In the broadcasts at issue, Wipper said, Giuliani and Powell falsely claimed that Smartmatic owned Dominion.
“That was the whole arc of their lie,” Wipper noted.
Manhattan Supreme Court Justice David Cohen ordered Fox to turn over the discovery haul that it gave Dominion, subject to any claims of privilege or disputes about relevance. The judge added that Fox must turn over many of the depositions taken in the Delaware case.
“My ruling on the depositions is named defendants and common witnesses,” Cohen said.
Under the terms of the ruling, Fox’s productions of documents must start on Sept. 30, and all fact discovery must be completed by the last business day in March 2023.
Smartmatic and Fox are likely going to dispute what documents they deem to be relevant for the litigation.
For Smartmatic’s lawyer, the information can broadly include anything pertaining to what he described as “the Big Lie that caused the riot in the Capitol on Jan. 6.”
Judge Cohen appeared unlikely to agree to that definition of relevance, asking Smartmatic’s counsel whether he was making Fox’s point for them.
“This case is about Smartmatic,” Cohen emphasized.
For Smartmatic, the company itself fit into the network’s “larger election narrative.”
“The people who were advancing this narrative […] they weren’t only speaking about Smartmatic,” he said.
The network and the voting machine company likely will hash out any disputes in a follow-up conference that has been slated for Nov. 15, 2022 at 9:30 a.m. Eastern Time.
FOX News Media said in a statement to Law&Crime that the Smartmatic lawsuit is a threat to freedom of the press.
“We are confident we will prevail as freedom of the press is foundational to our democracy and must be protected, in addition to the damages claims being outrageous, unsupported and not rooted in sound financial analysis, serving as nothing more than a flagrant attempt to deter our journalists from doing their jobs,” the statement said.
(File photo by Drew Angerer/Getty Images.)
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