Fox News defamation trial will begin Tuesday, judge says, without explaining one-day delay

By Marshall Cohen, CNN

Delaware Superior Court Judge Eric Davis said Monday that the delay in the Fox-Dominion defamation trial “is not unusual” and told the parties that he expects them back on Tuesday to finish jury selection and start the trial.

“I made the decision to delay the start of the trial until tomorrow,” Davis said in court, later adding that “it’s a six-week trial. Things happen… this is not unusual… This does not seem unusual to me.”

The Monday morning hearing was only about four minutes long, and there was no mention of potential settlement talks.

The high-stakes defamation trial against Fox News, initially set to begin with opening statements on Monday, was abruptly delayed on Sunday evening, in an eleventh-hour twist.

Speculation around a potential out-of-court settlement has reached a fever pitch because of the delay and comes after the Wall Street Journal reported Sunday night that Fox was pushing for a last-second deal to avoid trial. The newspaper is controlled by Rupert Murdoch, whose media empire includes Fox News. If the trial happens as planned, Dominion has the power to force Murdoch to testify in-person.

The proceedings are scheduled to reconvene Tuesday at 9 a.m. in Wilmington, Delaware.

What to know about the high-stakes trial

The historic defamation lawsuit brought against Fox News by Dominion Voting Systems could have significant ramifications for the right-wing cable channel.

Dominion, an election technology company, sued Fox News in 2021 over the network’s repeated promotion of false claims about the company, including that its voting machines rigged the 2020 election by flipping millions of ballots from Donald Trump to Joe Biden.

The company alleges that people at Fox News acted with actual malice and “recklessly disregarded the truth” when they spread this disinformation about Dominion. To prove “actual malice,” Dominion must convince a jury that people at Fox News who were responsible for these broadcasts knew the Dominion claims were false or recklessly disregarded evidence of falsity — but put them on-air anyway.

Dominion will now need to convince the jury that Fox acted with “actual malice” — showing the right-wing network’s hosts and executives knew what was being said on-air was false but broadcast it anyway, or acted with such a reckless disregard for the truth that they should be held liable.

Dispute over damages

Dominion will no longer try to prove that it lost $600 million in contracts and profits because of Fox News’ election lies — but the company is still seeking $1.6 billion in overall damages and is adjusting how it will pursue that eye-popping payout at trial.

Earlier on Monday, Fox News publicly asserted that Dominion had reduced its damages claims, down to roughly $1 billion, citing an email that Dominion sent Friday to Fox’s lawyers. But the voting technology company said in a statement Monday that the topline number hasn’t changed.

But what has apparently changed is how Dominion will try to win those damages with the jury, by focusing on the claimed reputational losses that tanked the company’s value.

Fox has aggressively pushed back on the $1.6 billion figure, which it says is massively inflated. Fox lawyers have argued that Dominion can’t prove the lost contracts that it is claiming.

“There’s also a problem that a huge chunk of their lost profits is coming from business they haven’t actually lost,” Fox lawyer Erin Murphy said during a hearing last month.

Fox has said it didn’t defame anyone and that the case is a meritless assault on press freedoms. A spokesperson for Fox has said the network “is proud of our 2020 election coverage” and that its coverage “stands in the highest tradition of American journalism.” The company also said “Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights.”

Fox has also accused Dominion of generating “noise and confusion” around the case, stating, “the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution,” specifically the First Amendment.

Judge appreciates Fox’s apology

The judge said Monday that he appreciates Fox’s recent apology for providing him with inaccurate information about Murdoch’s role at the network, and will decide later if any punishment is necessary.

Davis — who last week said he would bring in a special master to investigate if Fox intentionally lied to the court about Murdoch — said in a letter that he considers the matter “to be closed.”

“I appreciate the detailed explanation and the apology,” Davis wrote in a letter to Fox’s attorneys. “As it concerns the Court, I consider the disclosure matter regarding officers of Fox News Network, LLC and/or Rupert Murdoch to be closed. With regards to any prejudice suffered by Dominion, I will address that later, if necessary.”

Fox apologized to Davis in a letter on Friday, days after he lashed out at the network’s attorneys for repeatedly providing incomplete and inaccurate information about Murdoch’s dual roles at Fox News and its parent corporation.

The network’s lawyers say the spat was a “misunderstanding” and wasn’t an intentional attempt to deceive the judge or hide evidence from Dominion.

CNN’s Jon Passantino, Ramishah Maruf, and Catherine Thorbecke contributed

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