Newly revealed recordings of Maria Bartiromo’s conversations with Sidney Powell, Rudy Giuliani and others have left a Delaware judge again upset with Fox’s legal team.
Judge Eric M. Davis indicated that he would appoint a special master to investigate Fox’s representations to the court, including declarations made in December over the extent of discovery materials that have been produced to Dominion Voting Systems in their $1.6 billion defamation case.
Davis said that he was “very concerned” that Fox made it seem as if it had met its discovery obligations.
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On Wednesday, Dominion’s attorneys claimed that Fox withheld key evidence that can be used at the upcoming trial until the last minute or that there may be more that needed to be produced.
Last week, Fox produced recordings made by Bartiromo’s former producer, Abby Grossberg, who has filed a separate lawsuit against Fox claiming she was instructed to mislead in her deposition testimony.
In one of the recordings, on Nov. 8, 2020, Bartiromo is heard talking to Rudy Giuliani before he guested on her Sunday show to talk about Donald Trump’s election fraud claims.
“Well, that’s what I was going to ask you about. Is this multiple lawsuits or one lawsuit. What about this software, this Dominion software?”
“That’s a little harder,” Giuliani said.
“Okay, and then this Dominion software, does Nancy Pelosi have an interest in it?” Bartiromo said.
“I have read that. I can’t prove that,” Giuliani said.
In another conversation, with Sidney Powell after her appearance on Nov. 15, Bartiromo asked, “Is there anything more I can do for you?”
Powell asks, “You could out a chyron on the bottom that mentioned our defense fund for this.”
Grossberg is heard saying, “We can’t do that.” But Bartiromo takes down the information, as if it is a possibility.
A Dominion attorney said the recordings are “obviously relevant” to the case, but they did not get them until last week.
Davis agreed, as they go to questions of actual malice, and ordered that Fox make Bartiromo available for an additional deposition at the network’s cost. She is also on the witness list to testify in the trial.
“If there is a deposition that needs to be done, it will be done and it will be done at the cost of Fox,” Davis said.
The judge also suggested that Fox attorneys could face additional sanctions based on the special master investigation, and that they should preserve emails and other documents related to another recent disclosure in the case, that Rupert Murdoch serves as an officer of both Fox News and Fox Corp. Fox attorney Dan Webb said that it did disclose Murdoch’s role and that it was available in public documents.
Dominion also cited other evidence that it claims may still need to be produced, including any documents related to Bret Baier’s suggestion in November, 2020, that the network devote special programming to debunking the election fraud claims. NPR reported on Baier’s suggestions in a story earlier this week.
Fox’s attorneys said that they only learned of Grossberg’s recordings after she filed her lawsuit and sought to amend her deposition testimony. Last year, Grossberg turned over her phone to Fox attorneys last year and its contents were imaged for use in discovery, but Fox attorneys say that the recordings were not found then. The network attorneys are also balking at what they see as late production of financial documents on the part of Dominion.
But the judge was clearly irked by the latest revelations in the case. He even mocked Bartiromo at one point, telling another Fox attorney, “she is clearly neutral.” The attorney paused for a bit before Davis said, “I am being sarcastic.” The judge said that he was referring to Bartiromo’s conduct on the call with Powell.
“This is a Fox problem,” Davis said. “These tape recordings, even in a proper context, they relate directly to one of the statements that was litigated.” He said that there was a “question of fact as to timing,” or “when did people know what.”
“This would be relevant to that inquiry even if put in full context,” the judge said.
Fox is withholding an additional Bartiromo recording, made in December, on the grounds that the conversation was with a confidential source and is protected by reportorial privilege.
Jury selection in the trial is scheduled to begin on Thursday, and the trial is to start on Monday.
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