High-stakes trial in Dominion v. Fox News suit gets underway in Delaware court
Update: Fox News and Dominion Voting Systems reached a settlement just as the trial was getting underway. Read the latest here. Our earlier story is below.
Wilmington, Delaware — Lies about the 2020 presidential election spread in the wake of former President Donald Trump's loss are taking center stage in Delaware state court Tuesday, with Dominion Voting Systems pressing its claims before a jury that Fox News aired baseless accusations about the company that the network knew were false.
The high-stakes trial began Tuesday morning with selection of the jury, and lawyers for both sides are due to deliver their opening statements in the afternoon. The 12-person jury includes six men and six women, and 12 others were selected as alternates. The jurors and alternates were sworn in just before 11 a.m., but one of the alternates said he could not participate.
"I can't do this," the alternate juror said. "I've been up all night."
A new alternate was sworn-in in his place. Delaware Superior Court Judge Eric Davis, who is presiding over the case, instructed the jurors to avoid talking about the case or conducting independent research.
"It's hard, but you just have to fight human nature," he said.
The two sides were set to deliver opening statements after a lunch break, but Dominion and Fox News reached a settlement before they could do so.
Before the settlement was announced, Davis had appointed a special master, John Elzufon, to conduct an investigation into whether Fox withheld evidence during the discovery process, as Dominion alleged during a pre-trial conference last week. The judge had forecasted then that he was likely to take such a step, and issued a four-page order Tuesday formally doing so.
Elzufon, who was appointed in December 2021 during an earlier stage in the case, is "further authorized and empowered to investigate matters related to discovery issues/matters" involving whether Fox News and Fox Corporation, the network's parent company, complied with their obligations in turning over information, according to Davis's order.
The special master is also tasked with investigating declarations by Fox's attorneys and Fox Corporation's chief ethics and compliance officer filed in March and representations made about co-founder Rupert Murdoch's position with Fox News.
Davis's order instructs that Fox News is responsible for paying for the special master's work. Elzufon has until May 15 to submit a written report regarding his investigation.
The trial comes two years after Dominion filed its lawsuit against Fox News, and the case tests the bounds of the First Amendment while highlighting unfounded allegations amplified by a former president and his allies that the 2020 presidential election was stolen. While the trial was set to kick off Monday with the final round of jury selection and opening statements, Davis announced Sunday night that the start would be postponed until Tuesday. He did not cite a reason.
The key issue for the 12 jurors weighing Dominion's defamation case against the cable news giant is whether Fox News defamed the company when it broadcast claims that the electronic voting company helped orchestrate a campaign to rig the election against Trump.
For Dominion to succeed, the company's lawyers must convince the jury that Fox News acted with actual malice, the legal standard that requires a public figure to prove the publisher knew the offending statements were false or acted with reckless disregard for the truth. If Dominion succeeds in clearing that high bar, the jury will then decide how much in damages they believe the company is entitled to.
Dominion is suing Fox and its parent company, Fox Corporation, for $1.6 billion and has pointed to 20 statements — many made by conservative lawyers Sidney Powell and Rudy Giuliani — aired on shows hosted by Maria Bartiromo, Lou Dobbs, Jeanine Pirro, Tucker Carlson and Sean Hannity or on Twitter that they argue were defamatory.
"In the coming weeks, we will prove Fox spread lies causing enormous damage to Dominion. We look forward to trial," a Dominion spokesperson said in a statement before the start of the trial.
Fox News argues that the claims involving Dominion were newsworthy given who made the statements, when they were made and what they concerned, and that the broadcasts are protected by the First Amendment.
"Dominion's lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights," a Fox spokesperson said in a statement. "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."
The case has already brought into the public view reams of internal text messages and emails exchanged by Fox's hosts, producers and executives, many of which showed they had doubts about the veracity of the allegations being spread by Trump and his allies.
Both Dominion and Fox News asked Davis to rule in their favor based on the evidence presented in the case. But Davis said in an opinion late last month that a jury will decide whether Fox acted with actual malice in broadcasting the unfounded allegations about Dominion.
The judge also said it is "oxymoronic" to call the challenged 20 statements opinions while also asserting they're newsworthy allegations. Davis, who reviewed all 20 broadcasts and tweets where the falsehoods about Dominion were made, said it's "crystal clear" that none of the statements relating to the electronic voting company are true.
Davis last week sanctioned Fox's attorneys after Dominion alleged the network withheld evidence and information it should have turned over. A Fox attorney apologized to the judge in a letter Friday, writing the network's legal team is "committed to clear and full communication with the Court moving forward."
A number of Fox News' top hosts, including Carlson, Hannity and Baritromo, are expected to testify during the course of the roughly six-week trial, along with co-founder Rupert Murdoch.
Nicole Sganga contributed to this report.
