Lawyers for Dominion Voting Systems last week questioned hosts Jeanine Pirro and Tucker Carlson, while Sean Hannity and former Fox Business Network host Lou Dobbs are scheduled for depositions Tuesday, according to court filings.
They are among the on-air personalities that Dominion says defamed it either by falsely claiming the company conspired to rig the election against Donald Trump or by repeatedly hosting guests who made such claims.
But Dominion has also deposed former and current Fox personnel who never subscribed to such claims — including longtime news anchor Shepard Smith, who left Fox nearly three years ago and now works for CNBC, as well as behind-the-scenes players like producers and bookers — in what appears to be an effort to probe the internal culture and reporting practices of the highest-rated cable news network.
Dominion’s lawyers “seem to want to show a pattern of practice of Fox disregarding the facts,” said a person with knowledge of the deposition process, who spoke on the condition of anonymity to preserve a confidential process.
The company has obtained reams of internal emails and text messages sent by Fox employees, some of which it claimed in one filing provided “evidence that Fox knew the lies it was broadcasting about Dominion were false.” Fox denies this, saying Dominion “cherry-picked” the evidence. Lawyers have posed questions to interviewees that center on the gaps between what they said privately in those messages and what they said on the air to millions of viewers.
Representatives for Dominion declined to comment on the purpose of the depositions.
Fox, meanwhile, is vigorously defending itself against the company’s charges. Dan Webb, a veteran trial lawyer recently added to Fox’s defense team, said the network was merely reporting on a hugely important story that was propelled by Trump and his allies’ loud allegations of a rigged election.
“There are very few events in the last 50 years in this country that I think are more newsworthy than our president alleging that our entire Democratic system was put on its head by a voting machine company stealing votes,” Webb told The Post.
In a statement, Fox News said, “We are confident we will prevail as freedom of the press is foundational to our democracy and must be protected, in addition to the damages claims being outrageous, unsupported and not rooted in sound financial analysis.”
After the 2020 election, Trump maintained that he was the rightful winner and blasted Fox for calling Arizona for Joe Biden early on election night. The network experienced a brief dip in the ratings, as some Trump supporters abandoned it for more right-wing television channels.
In its suit, Dominion argues that Fox management “cynically exploited” the wild claims of fraud floated by Trump lawyers Rudy Giuliani and Sidney Powell in a bid to win back those viewers.
But to meet the standard of “actual malice” necessary to prove a case of defamation, Dominion must demonstrate that Fox hosts and executives were aware that allegations of election fraud were untrue and chose to disregard the facts, or that they were reckless in not ascertaining the truth of the matter.
“Actual malice is a subjective standard,” said Joseph Tomain, a media law attorney who teaches at Indiana University. “It’s possible that somebody could confess that they knew what they were saying was false, but that’s unlikely; so what you have to do is talk to a lot of people and try to figure out if you can prove that somebody knew what they were saying was false or entertained serious doubts.”
For its depositions, Dominion seems to have zeroed in on former Fox employees who have expressed criticisms of the network, including Chris Stirewalt, a longtime political editor who was dismissed last year, and former contributor Jonah Goldberg. But it also deposed current employees, such as “Fox & Friends” co-host Steve Doocy, who rejected claims of election fraud. In November 2020, Doocy had pushed back on a guest’s assertion that Dominion software had thrown the election.
“I looked into it,” Doocy told viewers, noting that in the few localized cases where Dominion software was linked to faulty results, “largely, it was human error — a problem that the software did not affect the vote counts.”
According to court records, Dominion has also deposed former Fox host Jillian Mele, who once told a guest that “it’s not exactly factual to say this election is stolen”; and former weekend co-host Jedediah Bila, who said on air that Trump should concede to Biden and acknowledge “that the process is done.”
Dominion may be attempting to discover whether Fox personalities who challenged election fraud claims on air faced any repercussions.
Yet some of those on Dominion’s interview list have expressed confusion about why they were brought in. “I literally don’t know anything,” said one person, who spoke on the condition of anonymity to avoid legal liability.
Maria Bartiromo, another prominent host that Dominion accused in its lawsuit of “defamatory falsehoods,” has not yet been scheduled for a deposition. She and other on-air personalities accused in the lawsuit are likely to be asked by Dominion’s lawyers what they knew at the time they made the claims and whether they made any effort to correct errors after Dominion had provided evidence to counter them.
Because Dominion sued not just Fox News but its parent company, Fox Corp., it’s expected that the company will depose both Fox Corp. chief executive Lachlan Murdoch and chairman Rupert Murdoch.
Lawyers will probably be interested in the Murdochs’ conversations, if any, with Fox hosts. Carlson in particular has drawn interest because he initially expressed skepticism about the election fraud claims and criticized Powell for not providing evidence for them — but later began airing some false claims about Dominion on his show, the suit alleges. Dominion lawyers probably pressed him on why he changed course and whether he discussed the matter with executives before the about-face.
If the two sides decide to settle the case, it would probably be for far less than the $1.6 billion Dominion is asking for. Neither Dominion nor Fox has indicated that a settlement is in the offing. (While the value of the privately held Dominion is unknown, Fox has argued that it’s worth far less than the company claims, a point that would be argued in determining a damages award or settlement amount.)
If the case doesn’t settle, a trial is scheduled to begin in Delaware in April. Separately, Dominion has also sued several Fox guests, the founder of one of the network’s biggest advertisers, MyPillow’s Mike Lindell, and competing conservative broadcast outlets Newsmax and One America News as part of a sweeping effort against those who made the obscure company the villain of stolen election tales.
Fox is also facing a lawsuit from another election technology company, Smartmatic, which argued that personalities on the network “decimated its future business prospects” by falsely accusing it of rigging the 2020 election against Trump. That case, which passed a key hurdle in March, is in the discovery phase.
Lawyers for Fox News are also deposing employees of Dominion and have asked for the company to hand over communications that reference “Chavez,” “Venezuela,” “malware” and “tampering,” among other phrases that might lend credence to the theories floated by Fox guests.
In response, Dominion has protested that “Fox is shooting in the dark” and searching for a “distraction.” But Tomain, of Indiana University, said such broad requests were “perfectly fair.” Fox, he said, would want to know “what were the internal conversations at Dominion when these allegations surfaced.”