Filing In December 2020, Dominion sent a similar letter demanding retractions to Trump attorney Sidney Powell, who had promoted the allegations on Fox programs. On March26, 2021, Dominion filed a $1.6billion defamation lawsuit against Fox News, alleging that Fox and some of its pundits spread conspiracy theories about Dominion, and allowed guests to make false statements about the company. On May18, 2021, Fox filed a motion to dismiss the lawsuit, asserting a
First Amendment right "to inform the public about newsworthy allegations of paramount public concern." The motion to dismiss was denied on December16, 2021 by Davis. Specifically, Dominion focused on allegations made between November 2020 and January 2021 by Maria Bartiromo on her show
Sunday Morning Futures with Maria Bartiromo and
Fox & Friends; by Carlson on
Tucker Carlson Tonight; by Dobbs on
Lou Dobbs Tonight and on Dobbs's Twitter account; by Hannity on
Hannity; and by Pirro on
Justice with Judge Jeanine. Guests who often appeared during these segments included Rudy Giuliani and Sidney Powell. Dominion was represented by law firms
Clare Locke, FarnanLLP, and
Susman Godfrey. Fox retained Clement & Murphy,
DLA Piper, Ellis George
Cipollone, Lehotsky
Keller, Richards Layton & Finger, and
Winston & Strawn. In addition to asserting First Amendment protection, Fox News cited the landmark 1964 Supreme Court decision
New York Times Co. v. Sullivan, which found a
public figure seeking to prove defamation must demonstrate that a publisher acted with actual malice: that they knew what they published was false or recklessly disregarded whether it might be false. In June 2022, Davis again declined to dismiss the Dominion suit against Fox News, and also allowed Dominion to sue the network's corporate parent, Fox Corporation. Davis ruled that Fox Corporation chairman
Rupert Murdoch and CEO
Lachlan Murdoch may have acted with actual malice because there was a reasonable inference they "either knew Dominion had not manipulated the election or at least recklessly disregarded the truth when they allegedly caused Fox News to propagate its claims about Dominion." He noted a report that Rupert Murdoch spoke with Trump a few days after the election and informed him that he had lost.
Discovery The New York Times reported in December 2022 that Dominion had acquired communications between Fox News executives and hosts, and between a Fox Corporation employee and the
Trump White House, showing they knew that what the network was reporting was untrue. Dominion attorneys said hosts Sean Hannity and Tucker Carlson, and Fox executives, attested to this in sworn depositions. In November 2020, Sidney Powell appeared on
Hannity and asserted Dominion machines had been rigged, but Sean Hannity said in his deposition, "I did not believe it for one second." A February 2023 Dominion court filing showed Fox News primetime hosts messaging each other to insult and mock Trump advisers, indicating the hosts knew the allegations made by Powell and Giuliani were false. Rupert Murdoch messaged that Trump's voter fraud claims were "really crazy stuff", telling Fox News CEO
Suzanne Scott that it was "terrible stuff damaging everybody, I fear." As a
January 2021 Georgia runoff election approached that would determine party control of the Senate, Murdoch told Scott, "Trump will concede eventually and we should concentrate on Georgia, helping any way we can."
The New York Times, on August13, 2022, noted that there had been no movement towards settlement from either Dominion or Fox, and both "are deep into document discovery, combing through years of each other's emails and text messages, and taking depositions". They reported that sources "expected Rupert and Lachlan Murdoch, who own and control the Fox Corporation, to sit for depositions as soon as this month".
The New York Times commented that in most defamation cases settlements are reached before any depositions are taken. As an example, they pointed to how Fox News had settled in 2020 after the parents of
Seth Rich sued due to Hannity and other Fox personnel trying to link Rich's death to
an email hack. In that case, Fox settled the case before Hannity could be deposed. Also in early December 2022, the Delaware Superior Court filed a notice that Rupert Murdoch would be deposed under oath on December 13–14 via video conference. Previously Fox's lawyers had stated that any efforts to depose the Murdochs and put them at the center of the case would just be a "fruitless
fishing expedition". They showed several prominent network hosts and senior executives—including Fox Corporation chairman Rupert Murdoch and Fox News CEO Suzanne Scott—discussing their knowledge that the allegations of election fraud they were reporting were false. The communications showed their concerns that if they did not continue to report these falsehoods, viewers would be alienated and switch to rival conservative networks like
Newsmax and
OANN, impacting corporate profitability. Internal texts and other products of discovery against Fox revealed that Tucker Carlson privately doubted the false claims that the 2020 election was stolen and mocked Trump advisors, including Rudy Giuliani and Sidney Powell. Less than three weeks after the 2020 presidential election, Carlson also publicly cast doubt on Powell's claims pointing out on his show that she never provided his producers or Trump campaign officials with any evidence to support her allegations against Dominion. Carlson texted to
Laura Ingraham, "Sidney Powell is lying by the way. I caught her. It's insane" and "Our viewers are good people and they believe it." Carlson texted to Sean Hannity, saying Fox News White House correspondent Jacqui Heinrich should be fired for tweeting a fact-check of false claims Trump made about Dominion. He wrote "Please get her fired. Seriously ... What the fuck? I'm actually shocked ... It needs to stop immediately, like tonight. It's measurably hurting the company. The stock price is down. Not a joke", and said he "just went crazy on" a Fox executive over Heinrich's reporting. Hannity replied that he had already spoken to Fox News CEO Suzanne Scott. By the next morning, Heinrich's tweet had been deleted. In early 2023, Rupert Murdoch acknowledged in a deposition that some Fox News personalities were endorsing
election fraud claims they knew were false. Former Fox producer Abby Grossberg filed a lawsuit against Fox News in March 2023, alleging she had been pressured by Fox attorneys to provide misleading testimony to implicate herself and her manager Bartiromo.
Summary judgment On March31, 2023, Delaware Superior Court judge Eric Davis ruled in a
summary judgment that it "is
crystal clear that none of the statements relating to Dominion about the 2020 election are true" and ordered the case to trial on April17 to determine if the network had acted with actual malice. Davis rejected the assertion of Fox News that the content in question should be treated as "pure opinion" protected by the First Amendment, ruling that the content was either assertions of fact or "mixed opinion." He added that even if the content were pure opinion, "accusations of criminal activity, even in the form of opinion, are not constitutionally protected." Davis forbade Fox News from invoking at trial the
fair report privilege that protects journalists from liability for reporting on what they observe others say. Dominion expected to question several prominent hosts and executives, whom Fox News later said it "intends to make available" at trial. Judge Davis said on April5 that he would not quash a Dominion subpoena for the testimony of Rupert Murdoch, Lachlan Murdoch, or
Paul Ryan, who is a Fox Corporation board member. He further ruled that no testimony during the trial should mention the
January6 attack, calling it "a really big issue that has to be stayed away from" and noting that only one of the broadcasts in question had occurred after that date. "I don't see January6 as relevant in this case," he said, adding "I know that probably shocks everyone". However, Davis said witnesses could be asked about strategic decisions made after the attack; he noted an email in which Rupert Murdoch said Fox was "pivoting as far as possible" after January6. Davis also prohibited Fox News from telling the jury the network's coverage had
news value, an argument Fox had intended to emphasize, warning that if it was mentioned "I would have to tell the jury that newsworthiness is not a defense to defamation." Davis said the next day that he planned to appoint a
special master to investigate whether Fox News had lied to the court to withhold evidence; Davis also sanctioned Fox by allowing Dominion to depose additional witnesses. In an April 14 letter to Davis, a Fox News attorney apologized for the "misunderstanding" regarding Murdoch's role, saying Fox "never intended to omit information ... to mislead the Court or evade the question." Davis appointed the special master on the first day of the trial. ==Trial==