Fox News and Dominion defamation trial delayed ahead of opening arguments

WILMINGTON, Del. — Opening arguments were delayed Tuesday in the Dominion Voting Systems' defamation lawsuit accusing Fox News of spreading the damaging falsehood that the company rigged the 2020 election.

The lawsuit was ultimately settled before opening arguments would begin.

The beginning of the civil trial in Delaware Superior Court came more than two years after Dominion, which sells voting machines and election software, first accused Fox of knowingly airing lies about the company in order to boost its ratings.

The network "intentionally and falsely" blamed Dominion for former President Donald Trump's loss to President Joe Biden by broadcasting unsubstantiated claims about the company, including that it meddled with vote tallies, Dominion alleged.

Fox maintained that the statements made about Dominion on its air were protected by the First Amendment, which shields the freedoms of speech and press. The network also argued that Dominion's suit does not establish that the claims were aired with "actual malice," a requirement to meet the legal standard for defamation.

Jury selection in the case wrapped up late Tuesday morning, but not without its fireworks. Just as the 12-member jury and 12 alternates were set and about to receive instructions, an alternate juror interrupted.

"Sir, I can't do this. I've been up all night. I can't do this," the alternate juror said, shaking his head.

Davis also reminded the courtroom earlier on Tuesday that photos or live Tweets or blogs were not permitted from inside the main room. He noted that earlier on Tuesday someone was removed from the courtroom for taking photos. The person, a Fox News representative, was forced to delete the photos and permanently exit the courtroom.

The Fox representative misunderstood the courtroom rules and apologized, adding that the pictures were deleted immediately, the company told CNBC.

The judge said the person was removed and "turned on everybody else," and said others in the courtroom were live-tweeting. Davis said he wouldn't tolerate this from anyone. "If it's flagrant, you may be held in contempt," he said.

The trial was expected to last up to six weeks, and Judge Eric Davis appeared determined to stick to that timeframe.

"I'm going to keep it strict. I'm not going to give you an extra day," Davis told attorneys for both camps.

Davis later told jurors not to be concerned with the delayed start to the trial, which began a day later than previously planned: "I will control the time. Don't concern yourself with that, it is my job," he said.

Opening statements were slated to kick off Tuesday afternoon, meaning witnesses would likely have taken the stand starting Wednesday.

CNBC's Eamon Javers reported Tony Fratto was slated to take the stand. Fratto, who is currently the head of communications for Goldman Sachs, was an external crisis communications expert for Dominion at the time of the 2020 election. Fratto was often in contact with producers, on-air talent and reporters at Fox News.

The judge ruled earlier this month that the 92-year-old Murdoch and his son, Fox Corp. CEO Lachlan Murdoch, could be forced to testify in court. Other witnesses included Carlson, Fox News CEO Suzanne Scott, Sean Hannity and other top TV personalities at Fox.

In the backdrop on Tuesday, Davis appointed a special master to investigate and determine whether Fox and its networks complied with discovery obligations, according to court papers. The investigation and communications to and from the special master will remain confidential.

The judge gave special master John Elzufon a May 15 deadline to send a written report on his investigation.

The move came after last week's pretrial hearing, when Davis sanctioned Fox and its parent company for withholding evidence from Dominion during the discovery process, NBC News reported.

The trial's unusual circumstances — most defamation cases settle out of court, and few promise in-person testimony from a parade of well-known media figures — along with a 10-figure claim for damages generated cacophonous media buzz. But it's far from clear what impact, if any, the case will have on Fox's reputation or its bottom line.

Dominion has also filed defamation lawsuits against Trump's former attorney Rudy Giuliani, his ex-campaign lawyer Sidney Powell, right-wing news networks and other figures. Smartmatic, another elections technology firm, has filed similar defamation lawsuits demanding billions of dollars in damages.

But the case against Fox has seized the spotlight in recent months — especially following the release of troves of private messages and testimony from top Fox News talent and executives, including Fox Corp. Chairman Rupert Murdoch and opinion host Tucker Carlson.

The communications have cast a shade of scandal over the legal battle, revealing how some Fox personnel and other high-profile figures reacted behind the scenes to the events following the 2020 election. News outlets were quick to contrast some Fox personalities' private remarks about the election fraud claims with what was being said on air at the same time.

Dominion and Fox clashed Monday on how much money is actually at stake, with Fox stating Dominion had slashed its damages claim from an original amount of $1.6 billion and Dominion holding firm that "the damages claim remains."

One piece of the lawsuit was previously decided: Davis last month ruled that the statements flagged by Dominion were, indeed, false. "The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true," Davis wrote.

His ruling clarified that the trial jury would determine who is responsible for publishing the false claims, and if those people acted with actual malice. That legal standard means proving that the claims were published with the knowledge they were false, or with reckless disregard for the truth.

The lead-up to the trial was marked by major twists, only heightening public interest.

Recordings made by former Fox producer Abby Grossberg in 2020, which allegedly show Giuliani and Fox host Maria Bartiromo talking about voting software, were not handed over to Dominion, according to NBC. Grossberg sued the network last month, alleging she was coerced into giving misleading testimony in the Dominion case.

A Fox spokeswoman said after the hearing that it had "produced the supplemental information from Ms. Grossberg when we first learned it."

— Kevin Breuninger reported from Wilmington, Delaware. Lillian Rizzo reported from Englewood Cliffs, New Jersey.