Opening statements begin in the defamation trial of Dominion vs. Fox News

Inside the courtroom: Lawyers packed in like sardines

The court prohibits reporters from sending dispatches in real-time while inside the courtroom, but Jane C. Timm offers this view from the room while on lunch break.

The Delaware Superior Court’s largest courtroom is packed to the gills for the first day of trial, with lawyers, reporters, publicists and members of the public filling the long rows of wooden benches.

While the top lawyers sit at cushy chairs in front of large desks inside the well of the court, more than a dozen of their law firm colleagues are in the first rows behind the bar. Those colleagues — a mix of lawyers and support staff — are packed so tightly that some have arms around their colleagues.

Rows of reporters sit behind them clacking away on keyboards, earning a request from Davis that reporters attempt to type more quietly so as not to make the jurors think one moment is more noteworthy than others. In this room, the typing itself can cause quite a din and the judge said he worried it would influence the jury.

HBO documentary included in Fox’s list of exhibits

No. 4,787 on Fox’s list of exhibits is the HBO documentary film “Kill Chain: The Cyber War on America’s Elections,” which premiered in March 2020.

The 90-minute film “takes a chilling look into the vulnerability of election technology,” according to a summary on HBO Max’s website. The film prominently features Harri Hursti, a leading voting security expert.

It was not immediately clear why Fox put “Kill Chain” on its list of exhibits. The document shows that Dominion’s lawyers objected to its inclusion on hearsay grounds.

The judge said the court will resume at 1:30 p.m. ET and hear first from Dominion’s team.

Court breaks for lunch

The court just started a lunch break that is expected to last approximately an hour.

Judge lays out trial days for jurors

Davis gave jurors a preview of what the days in court would look like.

He said the days’ proceedings would begin at 9:30 a.m. each day, and would wrap up at about 4:30 p.m., though he indicated they could go a little longer or shorter depending on the flow of the trial.

Opening statements to take up most of the afternoon

The judge told jurors opening statements will begin after they have lunch.

Each side is expected to take 90 minutes, so the statements are expected to take up most of the afternoon session.

The judge said the first witness in the case will be called Wednesday.

Judge calls jury in for instructions

The judge called in the jury to deliver instructions on their use of notes, impartiality and what to expect moving forward.

He will allow jurors to take notes to help with recollection. The judge also said it would be a violation of their sworn duty to base their decision on anything besides evidence presented in the case.

He also told the jurors not to read the coverage of the trial.

The court will break for lunch after instructions, which will be followed by opening statements.

Judge warns courtroom not to take photos or record proceedings

The judge began by announcing that one person in the courtroom had been forced to leave after being caught taking photos — in violation of the rules set forth for the trial. The removed attendee was a Fox News PR representative.

The judge said that person told court officials that others were posting on Twitter — also a violation of the rules — from inside the courtroom.

The judge warned that anyone who was found breaking the rules would be removed and could be held in contempt of court.

D’oh-minion: Fox’s exhibit list includes four clips from ‘The Simpsons’

Fox’s lengthy list of trial exhibits includes four clips from “The Simpsons,” a cornerstone of the Fox broadcasting network’s prime-time lineup for more than 30 years.

The clips in question each include scenes in which Homer Simpson votes in a presidential election:

— Season 20’s “Treehouse of Horror XIX” shows him attempting to cast a ballot for Barack Obama.

— The promotional short “Homer Votes 2012” shows him voting for Mitt Romney.

— The YouTube short “Homer Votes 2016” features Russian President Vladimir Putin disguising himself as an American voter and trying to convince Homer to vote for Trump.

— Season 32’s “Treehouse of Horror XXXI” finds Homer unsure whether to vote for Trump or Biden.

It was not immediately clear why the clips were included in Fox’s list of exhibits. The half-hour prime-time version of “The Simpsons” has aired on Fox since 1989, although the series is now technically produced by Disney, which acquired Murdoch’s entertainment assets in 2019.

What we learned from Murdoch’s deposition

Murdoch is expected to be called to take the stand; his previous testimony in the case has already been made public in court filings.

Fox News was “trying to straddle the line between spewing conspiracy theories on one hand, yet calling out the fact that they are actually false on the other,” the News Corp. executive chairman said in his deposition.

Murdoch acknowledged in testimony that some hosts, including Sean Hannity, Dobbs and Bartiromo, had done more than just give a platform to baseless claims of voter fraud.

“Yes,” the media magnate said, according to the filings. “They endorsed.”

Read the full story here.

Dominion exhibit list is really long

Dominion submitted its list of trial exhibits to the court, and it’s lengthy — more than 7,000 exhibits.

The list of 7,021 exhibits includes videos and transcripts from Fox, emails and text exchanges involving Fox employees, Trump tweets and a variety of other documents.

Fox’s exhibit list is not short either — it includes 5,169 items.

The jury is in place

The court has now seated 12 jurors and selected 12 alternates.

ICYMI: The judge rebuked Fox last week

Davis scolded Fox’s lawyers last Wednesday, sanctioning the media company for withholding evidence in the trial. He said he was considering an investigation and formal censure.

Davis was frustrated that Fox had not turned over evidence in a timely manner, including recordings of Bartiromo speaking with longtime Trump lawyer Rudy Giuliani about Dominion.

In one audio clip, a Trump official can be heard telling Fox News “there weren’t any physical issues with the [voting] machines” during inspections.

The day before Davis sanctioned Fox, the judge appeared frustrated that the network had not been straightforward about Rupert Murdoch’s role as leader of the media giant.

“This is a problem,” the judge said, according to a court transcript. “I need to feel comfortable when you represent something to me that is the truth.”

Fox lawyers later apologized in a letter to the judge for the “misunderstanding.”

The jury is seated

Twelve jurors have been seated. The court is now moving to seat the 12 alternate jurors.

The judge told the court that new exhibits were filed overnight. Opening statements are expected to begin soon.

Jury selection has begun.

The lawyers have arrived

In a scene straight out of a movie, a flock of lawyers for Dominion arrived at the Leonard L. Williams Justice Center here in Wilmington minutes ago. They were followed by a gaggle of lawyers for Fox.

Who owns Dominion?

Dominion is at the center of one of the biggest media trials in decades. But you have probably heard considerably less about Staple Street Capital, the New York private equity firm that owns it.

Staple Street Capital paid $38.3 million for a roughly 75% majority stake in Dominion in July 2018. The firm valued the technology vendor at roughly $80 million at the time, Fox has said in legal filings.

Stephen D. Owens and Hootan Yaghoobzadeh, the co-founders of Staple Street, both used to work at the Carlyle Group, one of the most powerful private equity firms in the world.

Street Street says it has roughly $900 million in assets under management, with a portfolio that includes an IT services provider, a payroll reporting service, a natural gas compression company and a New Jersey-based flower bulb distributor.

What the jury will be asked to consider

The jury will be asked to consider whether Fox News journalists acted with actual malice — knowing falsity or reckless disregard for the truth — in publishing the claims and whether damages are due.

It will also be asked to weigh Fox Corp.’s involvement in the publication of the alleged defamatory statements.

Fired Fox News producer says she found more evidence relevant to Dominion case

Ex-Fox News producer Abby Grossberg said she recently found more evidence relevant to Dominion’s defamation suit against her former employer and plans to turn it over to the court.

Grossberg, who worked as a senior producer for hosts Maria Bartiromo and Tucker Carlson, alleged in a new sworn statement obtained by NBC News that Fox lawyers ignored repeated reminders about an additional cellphone in her possession and did not search it during court-ordered discovery. 

In the statement, Grossberg said she repeatedly told Fox lawyers that she had an inoperable company-issued cellphone that she used during 2020 election coverage. Fox lawyers told her to hang on to the device but never searched it or copied her files, as they did with her other phones, according to the statement. 

Read the full story here.

Why Dominion won’t have to prove to the jury that the claims Fox aired are false

In allowing the case to go to trial last last month, Davis handed Dominion a major win when he agreed that the challenged statements are false.

The ruling spares Dominion from having to litigate baseless conspiracy theories about its role in the 2020 election.

“The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true,” the judge wrote in his 81-page ruling, emphasizing the word “crystal” in bold.

Fox News had argued that the challenged comments were opinion and protected as such, but Davis disagreed.

“The Court finds, as a matter of law, that the Statements are either fact or mixed opinion,” he wrote. “The Statements were capable of being proven true, and in fact the evidence that would prove the Statements was discussed many times (but never presented).”

In private, Fox News stars and staffers blasted election fraud claims as bogus, court filings show

Court filings unsealed leading up to the case going to trial gave the public an unprecedented look behind the scenes at Fox News after the 2020 election.

The filings, along with the underlying exhibits, showed that executives, stars and producers of the network knew the claims about Dominion were without merit.

The trove of internal communications also suggested that Fox News zeroed in on fraud claims to boost ratings and appease its core viewers, who executives feared were abandoning the channel for other conservative media outlets — particularly after Fox News was the first network to project that Biden had won the key battleground state of Arizona on his way to winning the White House in 2020.

Read the full story here.

What you need to know about the Dominion v. Fox News trial

As then-President Trump and his allies relentlessly pushed the lie that the 2020 election he legitimately lost to Biden was stolen from him, baseless conspiracy theories about the voting machines made by Dominion proliferated.

In 2021, Dominion filed a defamation suit against Fox News and its parent company, challenging a number of statements made on air by hosts and guests and seeking $1.6 billion in damages for harm it said was caused by lies about its machines.

The judge has already agreed with Dominion that the statements were wrong. However, Fox News has argued that the network was reporting on Trump’s extraordinary claims of election fraud. In defending against the claims, Fox says that it is fighting to protect press freedoms and that the U.S. Constitution shields its work.

Read more about the case, and what’s at stake, here.

Spokespeople for Dominion and Fox put out new statements over the weekend ahead of the trial’s start.

“In the coming weeks, we will prove Fox spread lies causing enormous damage to Dominion. We look forward to trial,” a spokesperson for Dominion said.

A spokesperson for Fox said: “Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights. While Dominion has pushed irrelevant and misleading information to generate headlines, Fox News remains steadfast in protecting the rights of a free press, given a verdict for Dominion and its private equity owners would have grave consequences for the entire journalism profession.”