By Randall Chase

The upcoming trial in a voting machine company’s defamation lawsuit against Fox News for airing false allegations of vote fraud in the 2020 presidential election will not include testimony about the Jan. 6 uprising at the U.S. Capitol, a judge ruled Wednesday.

Denver-based Dominion Voting Systems claims that Fox program hosts, with the knowledge of executives for both Fox News and parent company Fox Corp., repeatedly allowed allies of former President Donald Trump to falsely claim that the machines and the software the company used were responsible for Trump’s election loss. Documents released during the lawsuit have shown that top Fox executives and personalities didn’t believe the claims but aired them anyway.

“I don’t see Jan. 6 as relevant in this case,” Superior Court Judge Eric Davis said during a hearing Wednesday. “I know that probably shocks everyone.”

The trial is set to begin April 17. Davis ruled last week that the statements that were aired were false, but he said a jury must decide whether Fox News acted with actual malice, whether Fox Corp. participated in the publication of the statements, and whether Dominion is entitled to any damages. Dominion is seeking $1.6 billion.

Dominion has specifically alleged that it was defamed by comments made on 17 programs that aired between Nov. 8, 2020, and Jan. 26, 2021, and in three tweets from former Fox Business Network host Lou Dobbs.

Davis noted that only one of the challenged programs aired after Jan. 6, and that it contained no mention of the uprising. That show was a Jan. 26 Tucker Carlson program in which My Pillow CEO Mike Lindell complained that he was the victim of “cancel culture” and asserted that he had found evidence of “machine fraud.”

“What parties were thinking in January is not very relevant, if at all, to what happened in November and December,” the judge said, adding that allowing any testimony about Jan. 6 could result in unfair prejudice to Fox.

“Fox is not the cause of Jan. 6 in its relation to Dominion,” Davis added. “I do think that’s a really big issue that has to be stayed away from.”

Dominion alleged in its complaint that some Fox viewers believed the lies about the company "with such devotion that they took the fight from social media to the United States Capitol and at rallies across the country to #StopTheSteal, inflicting violence, terror, and death along the way."

In another ruling, Davis denied requests from Dominion attorneys to compel certain executives for Fox News and Fox Corp., including several producers, to testify in person at the trial.

Under Delaware law, Davis can compel officers, directors and managing agents of a Delaware corporation to appear in court to testify. He has already indicated that he can compel court appearances by Fox Corp. chairman Rupert Murdoch, CEO Lachlan Murdoch, director Paul Ryan, and Viet Dinh, chief legal and policy officer. Fox attorneys have nevertheless argued that 92-year-old Rupert Murdoch should not be forced to testify in person after having been deposed for seven hours.

Meanwhile, Dominion asked Davis to compel live testimony of six other Fox officials, arguing that their high-level positions and discretionary acts made them “managing agents” for the defendants. The judge said he could compel the appearance only of Tom Lowell, senior executive vice president and managing editor for both Fox News and Fox Business. In doing so, he noted that Lowell had previously been chosen by Fox News to be deposed as a representative of the company.

Dominion was unsuccessful in seeking to compel live testimony from Fox officials including Jerry Andrews, executive producer of the Justice with Judge Jeanine Pirro show, and Gary Schreier, senior vice president of programming for Fox Business. They also sought to force live testimony from Irena Briganti senior vice president of corporate communications for Fox News Media; Ron Mitchell, vice president of primetime programming and analytics, and Raj Shah, a senior vice president at Fox Corp. who is responsible for “brand protection.”

Davis refused to force those officials to travel to Delaware, but noted that Dominion could still seek to introduce their testimony through depositions, or even remotely through Zoom.

The judge ended the hearing by encouraging attorneys to make final decisions on whom they plan to call as live witnesses, so that court personnel can begin making any necessary security preparations.

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