The trial in the closely watched $1.6bn defamation lawsuit between Dominion Voting Systems and Fox will begin a day later than scheduled, the judge overseeing the case announced on Sunday evening, hours before opening arguments were set to begin on Monday and amid reports of settlement talks.
The trial was rescheduled to begin on Tuesday. Eric Davis, the Delaware superior court judge overseeing the case, did not say why the trial was being delayed. “The court has decided to continue the start of the trial, including jury selection, until Tuesday, April 18, 2023 at 9am. I will make such an announcement tomorrow [Monday] at 9am in Courtroom 7E,” he said in a statement released through a court spokesperson.
The Wall Street Journal, citing a person familiar with the matter, reported on Sunday that Fox had made a late push to settle the case out of court. Reuters also reported that the delay was due to settlement talks, according to a source familiar with the situation, as did the Washington Post, citing two sources. Spokespeople for Fox and Dominion did not immediately return a request for comment. A settlement could theoretically come at any time.
In a brief court hearing on Monday morning, Davis offered no more details on his decision to push back the start date.
“This is not unusual,” he said to a courtroom filled mostly with reporters. “I have not gone through a trial longer than two weeks that has not had a day delay.”
Only one lawyer from each side was present in the courtroom on Monday. Davis spoke privately with them in a corner of the room as white noise was played over a loudspeaker.
The announcement of a delay came on a quiet Sunday evening in Wilmington, the venue for the trial because Fox, like many US corporations, is incorporated in Delaware, where there are generous tax benefits. A reporter or two could be seen doing a television standup outside the courthouse on Sunday afternoon.
A Fox spokesperson claimed on Monday that Dominion was reducing the amount of money it was seeking in damages. The spokesperson pointed to a Friday email in which a Dominion lawyer said that the company would not present a claim on “lost profit damages” to the jury because it was duplicative of “the lost enterprise value damages”. In its original 2021 complaint, Dominion claimed $600m in lost profit damages in addition to $1bn in lost enterprise value. Fox has argued that Dominion is inflating the financial damage it suffered.
“The damages claim remains. As Fox well knows, our damages exceed $1.6bn,” a Dominion spokesperson said in a statement.
Lee Levine, an attorney who has defended media companies, said it was “a little surprising to change or amend damages theories so late in the game” but that Dominion’s move was not “earthshaking”.
“Typically, the plaintiff would have nailed down its damaged theories by this time but it’s really no big deal,” he said.
Dominion is asking a Delaware jury to award damages because it says Fox knowingly or recklessly disregarded the truth when it broadcast outlandish lies about its voting equipment. US law sets a very high bar to win a defamation lawsuit and cases rarely go to trial.
Dominion’s case, experts say, is unusually strong. It has drawn national attention because it amounts to one of the most aggressive efforts to hold Fox, or anyone, responsible for spreading misinformation about the 2020 election. Over the last several months Dominion has produced a trove of internal communications from Fox employees showing they knew what they were broadcasting was false.
The trial has been expected to be a blockbuster, with top Fox executives Rupert and Lachlan Murdoch expected to testify in person, along with top Fox hosts Sean Hannity, Tucker Carlson, Maria Bartiromo and Jeanine Pirro.
Fox accuses Dominion of cherrypicking evidence and has argued that it is defending the first amendment, and that a win for Dominion would lead to more lawsuits against media outlets and weaken press protections in the US. Some experts share that concern. “Unfortunately, I’d predict if Fox loses, we’ll see a significant uptick in libel cases against all news organizations,” Jane Kirtley, a professor at the University of Minnesota and former executive director of the Reporters Committee for Freedom of the Press, wrote in an email.
Other experts say the evidence against Fox is so strong that this case could show existing media standards still provide workable protections under which outlets can be held accountable.
“The key question here is whether Dominion is asking for a watering down of the constitutional standard. Or whether it is arguing that it can clear even the staggeringly high constitutional barrier as it now exists. Everything that I have heard and read from Dominion suggests that it is the latter,” said RonNell Andersen Jones, a first amendment scholar at the University of Utah.
