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Judge threatens Fox News with sanctions for withholding evidence on eve of trial

ANDREW LIMBONG, HOST:

A Delaware judge is ordering an investigation into how Fox News' lawyers have handled a major defamation case on the eve of the trial. He is also threatening sanctions against Fox News.

NPR media correspondent David Folkenflik joins us now. Hey, David.

DAVID FOLKENFLIK, BYLINE: Hey, Andrew.

LIMBONG: So what is the judge saying?

FOLKENFLIK: The judge is essentially saying that he's going to rebuke Fox News. He is going to demand that they allow one of their star hosts at the center of these allegations of defamation to be deposed once more under oath by lawyers for Dominion Voting Systems. Let's not forget that they are accusing Fox of defaming them by claiming, having guests on and, even in some cases, having their hosts endorse the idea that Dominion's election machines switched votes over from then-President Trump to Joe Biden in 2020. Well, they're saying Maria Bartiromo has got to come back. He is concerned that Fox News' legal team and Fox News has withheld evidence from Dominion in this case. And he's said he would appoint a special court officer called a special master to investigate the legal team's handling of the case. In addition, he would consider whether there are other ways he might balance the scales to accommodate for what he is strongly suggesting he believes may well be unfair play by Fox's legal team by instructing the jury that they can conclude that Fox acted improperly in how they dealt with evidence in this case.

LIMBONG: So what led the judge to sort of take these steps?

FOLKENFLIK: Well, there's been a number of incidents accreting. You know, on Sunday evening, Fox's legal team informed Dominion's lawyers that, in fact, Rupert Murdoch - the founder of Fox News, the chief at the top of the parent company, Fox Corp. - was, in fact, an official, an officer of Fox News itself. And why that matters is it's saying that it suggests strongly that he has agency or influence over Fox News' decisions and how they covered key things like the 2020 race even despite the fact that Fox's legal team has been saying no, he's just, you know, an older, wiser figure who offers advice, but he doesn't really have any influence. The fact that after months of seeking this information, Dominion is only being told that now on the cusp of the trial, has struck the judge clearly as very poor form. And he's rebuked Fox's legal team in court over this issue.

In addition, evidence that surfaced in the case of Abby Grossberg, a producer for Fox who's now suing the network, involves audiotape of Maria Bartiromo's conversations with former President Trump's then-campaign lawyers. That evidence wasn't provided to Dominion. So, again, the judge is asking, why is this stuff surfacing now?

LIMBONG: All right. So big picture, what does this mean in terms of the trial?

FOLKENFLIK: Well, look; Fox says, look, it doesn't really affect the nature of the trial itself - that Rupert Murdoch, to give one example, you know, still didn't have any real agency or influence here. But I think the real question is one of credibility. And that's really at the core of this trial. Is what Fox presented to its viewers and to the world credible? Well, the judge has already ruled that it was false and defamatory. The real question for the jury is, is it something that Fox should be held accountable for or liable for?

Fox is now being questioned whether it's been credible in the information it's provided to Dominion. And also, now, Fox's own legal team, involving some of the top corporate litigators in the country, are being challenged by the judge, effectively, for their integrity and their credibility. You know, it's a strong blow and it's right on the cusp of jury selection tomorrow and the jury trial, which is still scheduled to begin next Monday.

LIMBONG: NPR's David Folkenflik. Thanks, David.

FOLKENFLIK: You bet.

(SOUNDBITE OF NXWORRIES, KNXWLEDGE, ANDERSON .PAAK & H.E.R.'S SONG, "WHERE I GO") Transcript provided by NPR, Copyright NPR.

David Folkenflik was described by Geraldo Rivera of Fox News as "a really weak-kneed, backstabbing, sweaty-palmed reporter." Others have been kinder. The Columbia Journalism Review, for example, once gave him a "laurel" for reporting that immediately led the U.S. military to institute safety measures for journalists in Baghdad.