In a blow to Fox News, judge rules network withheld evidence in Dominion case
Fox News was cited for “discovery misconduct” by the judge in the $1.6-billion defamation case filed by Dominion Voting Systems after he learned that recorded conversations with former President Trump’s attorneys were not turned over as evidence.
The potentially significant revelation that such tapes exist — which could affect the upcoming trial — came to light in a revised legal complaint filed Tuesday by Abby Grossberg, who worked as a producer for Fox anchor Maria Bartiromo.
Grossberg is suing the network for discrimination and wrongful termination.
Abby Grossberg, a former producer for Maria Bartiromo’s “Sunday Morning Futures,” has corrected her deposition testimony in the $1.6 billion defamation lawsuit filed by Dominion.
An excerpt of the tapes was played by Dominion attorney Davida Brook during a pretrial hearing Thursday in Delaware. Superior Court Judge Eric Davis said the recordings belonged as evidence and admonished Fox News attorneys for withholding the information. Davis said he is also considering the appointment of a special master to determine whether other relevant material has been withheld.
Dominion also can conduct another deposition with Fox News picking up the tab.
In a statement, a Fox News representative said the company “produced the supplemental information from Ms. Grossberg when we first learned it.”
Davis also entered into the record a recent NPR report that said Fox News chief political anchor Bret Baier proposed a special master to fact-check and debunk the voter fraud claims that had been spread by other programs on the network. The idea was not considered, according to the report, but there is no documentation in the evidence that shows it was discussed.
The sanction was the second time this week that Fox News attorneys have run afoul of Davis. On Tuesday, the judge expressed frustration over how counsel “represented to him” that Fox Corp. Executive Chairman Rupert Murdoch was not an officer of Fox News. Murdoch is executive chairman of the news outlet.
Davis said that knowledge could have influenced the previous rulings he has made in the case.
In a statement, Fox News said Murdoch has been listed as executive chairman of Fox News in its Securities and Exchange Commission filings since 2019 and that the filing was referenced by Dominion’s attorney during his deposition.
Fox News and Dominion are heading to trial on Monday. A jury will be asked to decide whether the network acted with malice when it presented the false allegations in the months after the 2020 election when Trump was promoting false claims of voter fraud as the reason for his loss to President Biden.
Grossberg said taped conversations with Trump ally Rudolph W. Giuliani and lawyer Sidney Powell occurred before they appeared on the Nov. 15, 2020, edition of Bartiromo’s program “Sunday Morning Futures,” where the legal duo made false statements about voter fraud claims promoted by Trump. In one conversation, Giuliani acknowledges that he had little evidence to back up the claims he discussed on the program.
Giuliani is a target of a Georgia criminal investigation into possible illegal attempts by Trump and others to interfere in the 2020 general election in the state where Biden won by a slim margin. The former New York City mayor has denied any wrongdoing.
Grossberg said the recordings were on her mobile phone, which were taken by Fox News lawyers so that her texts and emails could be submitted as evidence last year ahead of her deposition testimony. Her complaint said the conversations were not included because they would hurt the network’s defense in the case.
“Fox News knew that these recordings went against its interests in relation to the claims in the Dominion Lawsuit, particularly with respect to proving actual malice, and therefore, upon information and belief, intentionally or recklessly withheld and/or failed to produce this damaging discovery,” the court filing said.
Dominion alleges the conservative-leaning network aired Donald Trump’s false claims of voter fraud in the 2020 election.
Grossberg’s complaint, originally filed March 20, cites a recording made on or about Nov. 15, 2020, when Giuliani admitted to Bartiromo that the Trump campaign could not prove some of the allegations regarding Dominion. Giuliani and Powell had gone on “Sunday Morning Futures,” in which they said the company’s machines used software that manipulated votes to rig the election for President Biden.
Murdoch’s testimony reveals he was aware falsehoods were running after the 2020 election, but the network was also concerned about losing its Trump-loving viewers.
The filing said that in the same recording, Bartiromo also questioned Powell before she taped an interview for the program.
“What’s most important and most compelling that you would like to — that you can get out this morning? Tell me. We’re not rolling yet,” Bartiromo said.
Powell presented nothing of substance, and Bartiromo did not press her further.
Grossberg’s phone also contained a conversation with an official from the Trump campaign who said there was no evidence that there was any problem with the voting machines in Georgia. The official urged Bartiromo to discuss the Jan. 6, 2021, vote by Congress to certify the election and how it was the last chance to reverse the outcome in favor of Trump.
The Jan. 6 vote was interrupted by rioting Trump supporters who stormed the U.S. Capitol. Davis ruled Tuesday that Dominion attorneys cannot discuss the insurrection in their presentation.
The conversations were held in front of David Clark, the Fox News executive in charge of Bartiromo’s program at the time, and a control room full of staffers, according to the complaint.
Grossberg, who most recently worked for the Fox News show “Tucker Carlson Tonight,” was fired by Fox News after she filed her lawsuit. The company said she was free to make a legal claim but was in possession of privileged information and was not authorized to disclose it publicly. Once she did so in her lawsuit, her employment ended.
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