Request for Tucker Carlson’s Performance Review Is ‘Intrusive,’ Judge Says

(Bloomberg) -- The judge in Dominion Voting Systems Inc.’s $1.6 billion defamation suit against Fox News balked at ordering the network to turn over performance reviews of Tucker Carlson and other hosts who aired false election-fraud claims.

Reviews are “about as personal as it gets,” Judge Eric Davis said at a discovery hearing Tuesday in Delaware state court. The request is “too intrusive” without further explanation on why the reviews might help Dominion’s case, he said.

According to Dominion, the reviews would bolster its claim that Fox maliciously booked former President Donald Trump’s attorney Rudy Giuliani and former Trump campaign lawyer Sidney Powell to appear on its top-rated shows, where they spread false claims that the company rigged the 2020 presidential election.

Fox has moved to dismiss the suit and argues its reports on Dominion are protected by the First Amendment.

Dominion is also seeking Fox’s reviews of Sean Hannity, Maria Bartiromo, Jeanine Pirro and Lou Dobbs. The judge ordered the parties to meet and try to narrow Dominion’s requests for other categories of evidence before getting to the reviews.

Wild Assertions

The judge’s skepticism about disclosing its performance reviews was the rare issue on which Davis seemed to side with Fox. The judge spent much of the hearing criticizing the network for wildly asserting attorney client privilege to avoid disclosing other information sought by Dominion, including whether Fox had joint-defense agreements with Giuliani, Powell and MyPillow Inc. Chief Executive Officer Mike Lindell, who also spread the conspiracy theory on-air.

“The existence of a joint defense agreement is not privileged,” Davis said. “We all know that’s not true.”

Davis also said it was reasonable for Dominion to request information about Fox’s advertising deals with Lindell. MyPillow commercials ran frequently on Fox during the election dispute, and a jury would reasonably want to know if Fox had any economic motive for allowing Lindell to spread his conspiracy to millions of its viewers, the judge said. 

Fox had asserted attorney-client privilege over the advertising agreements and data on the grounds that a lawyer may have been involved in drafting them.

“They’re not your attorney and they’re not your client,” Davis said.

Discovery Halted

Also on Tuesday, Davis granted Newsmax Media Inc.’s request to temporarily halt further evidence exchange in Dominion’s parallel defamation suit against the conservative network. Newsmax, which is also accused of knowingly or recklessly spreading false claims about Dominion and creating an “alternate reality” for Trump’s voters to live in, had asked for a stay on the process until the network gets a ruling on its Oct. 11 motion to dismiss the suit.

In that filing, Newsmax argues it had a right to report extensively on the claims Trump and his legal team made at the time for why he refused to concede his loss -- claims that Trump made with “the full support of the President’s party” as well as his lawyers who were former prosecutors. Trump and his team claimed to “have sworn witness testimony and other evidence to back it up,” Newsmax said.

Dozens of lawsuits filed by Trump supporters challenging the results of the election were tossed by judges for lack of evidence to support them.

“Dominion asks the court to find that its right to earn large profits administering publicly funded elections outweighs the right of the public to be informed about, and news organizations like Newsmax to report on, accusations made by public officials and contestants in such elections,” the network said.

The case is US Dominion Inc. v. Fox News Network LLC, N21C-03-257, Delaware Superior Court (New Castle County).

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