Judge Says He Plans To Appoint Special Master To Investigate Whether Fox Withheld Evidence After Dominion Attorneys Cite Recently Revealed Maria Bartiromo Audio Recordings
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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 Wednesday that he would appoint a special master to investigate Fox’s representations to the court, including those made in December that it had complied with its discovery obligations to Dominion Voting Systems in their $1.6 billion defamation case.
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Davis said that he was “very concerned” that the Bartiromo recordings were only turned over to Dominion’s attorneys last week. Dominion attorney Davida Brook claimed that Fox withheld key evidence until the last minute, and 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 her lawsuit, she claims discrimination and retaliation, charges that the network denies. But she also claimed that the Fox legal team failed to produce the recordings to Dominion’s attorneys during the discovery process.
On Fox News and other outlets like Newsmax and One America News, Powell and Giuliani were central figures in promoting Donald Trump’s unfounded claims that the 2020 presidential election was rigged.
In one of the recordings, on November 15, 2020, Bartiromo is heard talking to Giuliani before he guested on her Sunday show that week 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?” the Fox host asked.
“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.
After the Nov. 15 show, Bartiromo is heard asking Powell, “Is there anything more I can do for you?”
Powell asks, “You could put 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.
In legal filings, Grossberg also has cited other excerpts, including one in which Bartiromo asked Powell, before an interview, “You want to go into the software? What is your most compelling evidence?” Powell answered that the Trump campaign had a “witness who’s given a foreign declaration about how [the voting software] was created, why it was created, and watched it work.” Bartiromo did not press the matter further, according to Grossberg.
In another conversation with a high ranking adviser to Trump, conducted in December, 2020, Bartiromo asked about potentially fraudulent voting machines in Georgia. The adviser told Bartiromo that there were no issues with the machines.
Dominion’s Brook said the recordings are “obviously relevant” to the case, but the were only turned over to them by Fox’s team last week.
Davis agreed on the importance of the recordings, as they go to questions of actual malice, and ordered that Fox make Bartiromo available for an additional deposition at the network’s cost. Bartiromo also is 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 not try to conceal Murdoch’s role and that it was available in public SEC documents.
Dominion also claimed that there was other potential evidence that has yet to be produced, including any documents related to Bret Baier’s suggestion in November 2020 that the network devote a Sinday evening special program to debunking the election fraud claims. Dominion’s Brook cited an NPR report this week that Baier had offered the suggestion but never got an answer.
Fox’s attorney Michael Skokna argued that they only learned of Grossberg’s recordings after she filed her lawsuit last month and then sought to amend her deposition testimony. Last year, Grossberg turned over her phone to Fox lawyers and its contents were imaged for use in discovery, but the recordings were not found then, according to Skokna. Fox’s 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 Skokna, “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 recording of Bartiromo, made in December, 2020, on the grounds that the conversation was with a confidential source and is protected by reportorial privilege.
A Fox spokesperson said in a statement, “As counsel explained to the court, Fox produced the supplemental information from Ms. Grossberg when we first learned it.”
Grossberg’s attorneys, Parisis Filippatos and Tanvir Rahman, said in a statement, “Ms. Grossberg remains committed to speaking the truth in all appropriate forums, including before a Special Master appointed by the court, while our firm will continue to ensure that she obtains the justice she deserves.”
Jury selection in the trial is scheduled to begin on Thursday, and the trial is to start on Monday.
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