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Dominion awaits key ruling from judge in its defamation suit against Fox News

A Delaware judge will decide how much of Dominion Voting Systems' case moves forward and what a jury trial would look like.
Rupert Murdoch in New York on Oct. 30, 2018.
Rupert Murdoch in New York on Oct. 30, 2018.Mary Altaffer / AP file

WILMINGTON, Del. — A judge will soon decide how much of Dominion Voting Systems' defamation case against Fox News and Fox Corp. heads to a jury next month after two days of hearings on dueling motions seeking pretrial rulings.

In a sedate, partly empty courtroom here, attorneys for both sides made the case that the evidence produced in a year of discovery and depositions was so clear and convincing that Superior Court Judge Eric Davis could weigh in now.

“The parties demonstrated to me this is a very difficult case," Davis said from the bench Wednesday, adding that he'd rush to complete a summary judgment ruling before the planned April trial. “Instead of losing my trial date, I agreed I’d work harder with respect to summary judgment."

Any rulings — both partial or complete summary judgment — at this stage could sharply limit and shape the historic defamation case on topics from what claims are considered to who can be held liable. Davis said he wouldn't rule Wednesday, but he indicated his decision will come soon.

Dominion sued Fox News and Fox Corp. for $1.6 billion, arguing that certain Fox News broadcasts and hosts' tweets that included conspiracy theories about Dominion voting systems — like the claim that the machines were used to rig the election for Joe Biden — were defamatory.

“Despite the noise and confusion that Dominion has generated by presenting cherry-picked quotes without context, this case is ultimately about the First Amendment protections of the media’s absolute need to cover the news," a Fox News spokesperson said in a statement. "FOX will continue to fiercely advocate for the rights of free speech and a free press.”

In hours of arguments and question-and-answer sessions, lawyers for both sides sparred over tweets, broadcasts and what it means for something to be an allegation.

Calling something an allegation isn't "legal fairy dust" that makes factual claims into opinions, Dominion attorney Rodney Smolla argued, pushing back against Fox News' arguments.

Erin Murphy, an attorney for Fox News and Fox Corp., spoke quickly in her presentations Tuesday and Wednesday, claiming that reporting on newsworthy allegations from newsworthy people isn't defamation. Executives’ simply being aware of a guest's planned appearance, she said, isn't direct involvement in the production of that show.

“The ability to step in is different from proving you were involved,” she said.

A jury trial is scheduled to begin April 17. The judge said the lawyers would have to agree on whether they'd have testimony from live or video witnesses for their jury presentations.

"I prefer live witnesses," he added. “This is supposed to be a truth-seeking situation, not a game of gotcha.”