On Monday, a lawyer representing Fox had submitted a letter to the judge requesting that Murdoch, along with his son Lachlan Murdoch, Fox Corp. chief legal and policy officer Viet D. Dinh, and former House speaker Paul D. Ryan, a board member, not be compelled to testify at the trial, which is scheduled to begin on April 17.
“The court should decline to compel their appearance at trial due to the hardships on those witnesses, and the undue burden given their limited knowledge of pertinent facts,” the lawyer argued.
But on Wednesday morning, Dominion lawyer Justin A. Nelson argued that the elder Murdoch is extremely relevant to its case that Fox defamed the company by airing baseless allegations that its voting machines helped steal the 2020 election from Donald Trump. In particular, Dominion has argued that Murdoch understood the allegations of voter fraud made on Fox’s airwaves to be false but chose not to stop them for business reasons.
Despite Fox’s claims that Murdoch delegates decision-making about the network’s programming, Dominion has surfaced examples of him weighing in on editorial matters, such as a decision to part ways with Fox Business Network host Lou Dobbs.
In a Jan. 19 deposition, Murdoch said he had “only recently” learned about Dominion. But, Nelson argued, the chairman was well aware of the allegations being made against the company. “He’s following it, he’s straddling the issue, and he’s mad that it’s still going on because, on one hand, he knows the truth,” Nelson said on Wednesday. “But, on the other hand, he has to appeal to the viewers.”
“This case is Mr. Murdoch making a decision over and over again that they’re going to allow these folks on the air and they’re going to spew these false conspiracy theories until they wouldn’t,” Nelson said.
Wednesday’s hearing was a continuation of Tuesday’s all-day summary judgment oral argument session, in which both Dominion and Fox News lobbied for the judge to decide the case in their favor before it goes to a jury trial. The judge did not issue a ruling on the matter, but indicated that he would do so before a pretrial conference that is scheduled for the week of April. 10.
Erin E. Murphy, who presented Fox’s case in the hearings, restated the network’s contention that Rupert and Lachlan Murdoch were not direct participants in the statements that Dominion has alleged are defamatory — largely on-air comments by Fox’s hosts and guests. “There’s nothing directly connecting these individuals at Fox Corporation to these 20 challenged statements,” she said. “It’s not enough for them to show that they have the ability to step in. They have to be involved.”
Judge Davis agreed that Dominion will have to show “actual participation” by executives like Rupert Murdoch to prove the company’s guilt.
While Dominion has emphasized Murdoch’s acknowledgment that some Fox hosts “endorsed” election fraud conspiracies, Fox’s lawyer Murphy argued that he was speaking in generalities, not referring to the Dominion allegations specifically.
Near the end of the hearing, the judge addressed a legal dispute involving Abby Grossberg, who served as a top producer for Maria Bartiromo’s Sunday show before taking on a new role working for Tucker Carlson. Grossberg filed suit on Monday in Delaware, as well as a separate case in New York, alleging that lawyers for Fox coached her to make misleading statements ahead of her deposition in the Dominion case to help the company deflect blame.
While Davis said on Tuesday that he has been assigned the case, he said during Wednesday’s session that the case — which had “blindsided” him — has been pulled from his docket for now so he can focus on the larger Dominion matter. “I don’t want a lawsuit making allegations about attorneys,” he said. “I just want to deal with my trial.”
The judge also laid out his expectations for the length of the trial, down to half-hour chunks. Assuming that the jury will take two days for deliberations, he said that the parties will have 137.5 business hours to make their presentations between the start of the trial on Monday, April 17, and Friday, May 26.