“This alone has meant that we are missing a whole bunch of Rupert Murdoch documents that we otherwise would have been entitled to,” Nelson said. “It’s very troubling that this is where we are. It’s something that has really affected how we have litigated this case.”
Judge Eric M. Davis echoed Nelson’s frustration with Fox, saying that the missing information about Murdoch’s title may have affected his decision-making regarding a recent ruling that narrowed the scope of the case. “I could have made an entirely wrong decision,” Davis said.
Addressing a lawyer for Fox News, the judge said the network has a “credibility problem,” based on the last-minute revelation.
“My problem is that it’s been represented more than once to me that he’s not an officer of Fox News,” he said. “I need to feel comfortable that when you represent something to me, it’s the truth. I’m not very happy right now. I don’t know why this is such a difficult thing.”
Dominion is suing Fox over false claims that allies of Donald Trump made on its programs alleging that the company rigged its voting machines to flip the 2020 election to Joe Biden. Internal Fox communications made public as part of the discovery process showed Murdoch, among many other Fox executives and hosts, expressing deep skepticism over these claims, even as the network continued to air them.
It remains unclear whether the 92-year-old billionaire mogul will testify during the trial, which starts with jury selection Thursday. Davis said at a previous hearing that he believes Murdoch is relevant enough to the case to be compelled to testify, but no appearance has been scheduled yet.
A lawyer for Fox said that Murdoch’s Fox News officership was an “honorific” title, and pointed out that Murdoch gave his corporate title, chair of Fox Corp, during his deposition.
Because Dominion sued Fox Corporation as well as Fox News, the voting technology company had the opportunity to interview Murdoch and to obtain some of his communications, though Nelson claimed that more documentation should have been forthcoming. Nelson said that Dominion is “still evaluating our options.”
Ultimately, the judge said on Tuesday that he doesn’t anticipate that the revelation will derail the case, though he still needs to determine how to handle the matter.
“I don’t know if this is something we have to turn the battleship around, that it’s that big of a deal,” he said. “We’ll deal with it.”
But at the end of the hearing, the judge circled back to the new revelation. “I’m not mad at you,” he told Fox’s lawyer. “I’m mad at the situation I’m in. So, I have to figure out how I deal with that.”
