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Judge prepares for start of Dominion v. Fox trial amid settlement talks

A person walks past the Fox News Headquarters in New York on April 12.
Yuki Iwamura
A person walks past the Fox News Headquarters in New York on April 12.

Delaware Superior Court Judge Eric M. Davis says he's still planning for the biggest media trial in decades to start on Tuesday, even as the parties engage in talks toward a potential settlement.

Dominion Voting Systems is suing Fox News over baseless claims it broadcast about the election tech company after the conclusion of the 2020 presidential race. The trial was supposed to start Monday. Late Sunday, the court announced a one-day delay.

On Monday morning, in a hearing that barely lasted a few minutes, Davis told a courtroom packed with reporters and almost totally bereft of attorneys that a delay is "not unusual."

"I have not gone through a trial longer than two weeks that has not had some delay," Davis said. He said he had built in a few excess days for the trial, which is scheduled to last six weeks.

A last-ditch effort at settlement

Fox News filed a motion late Sunday evening asking the judge to reconsider restrictions that he had placed on its case that would have barred Fox from using evidence that other parties, including former President Donald Trump, were making the same claims about Dominion that the network aired in its defense.

In its lawsuit, Dominion originally had asked for $1.6 billion in damages. In its motion filed Sunday night, Fox said Dominion had knocked off more than half a billion dollars from that figure.

The motion referred to an email Dominion lawyer Brian Farnan sent to Fox's legal team on Friday afternoon. "Dominion will not be presenting its claim for lost profits damages to the jury, given that it is duplicative of the lost enterprise value damages," Farnan said.

Taken literally, the email suggests a honing of the case for the jury's consideration. It also served potentially as a message to Fox that Dominion might be receptive to negotiation talks at the eleventh hour.

Dominion struck back against that notion later Monday morning.

In a statement released through a spokesperson, Dominion said, "The damages claim remains. As Fox well knows, our damages exceed $1.6 billion."

Dominion wants a public apology from Fox

Fox programs amplified, and at times endorsed, groundless claims that Dominion threw votes from former President Donald Trump to Democratic challenger Joe Biden. The voting-tech company argues it has suffered grave damage to the perception of its credibility and lost contracts. Its employees have been targets of harassment and threats. Fox says it was reporting newsworthy allegations from a sitting president and his allies.

Dominion has amassed a wealth of evidence suggesting producers, opinion hosts, journalists, executives and corporate bosses at Fox knew the claims of election fraud were meritless. Much of it already has been made public.

Any settlement would avert further embarrassment for the network, its stars and its ultimate bosses, Rupert and Lachlan Murdoch, who have proven willing to pay hundreds of millions of dollars in corporate funds to settle damaging cases.

Perhaps the stickiest point of negotiation: Dominion has said from the outset it would demand a public acknowledgement of wrongdoing — and presumably some form of explicit apology — on Fox's airwaves commensurate with the cascade of false claims. The more grudging the apology, the higher the settlement cost.

But outside media lawyers say Dominion has strong reason to want to settle: The math behind its argument for damages is somewhat nebulous. And were the company to win a jury verdict that finds Fox liable, the network's lawyers could tie up the case — and the payments — in appeals for years. Any figure awarded could be reduced in that appeals process as well.

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Corrected: April 17, 2023 at 12:00 AM EDT
An earlier version of this story misspelled Dominion attorney Brian Farnan's name.
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.
Mary Yang
Mary Yang is an intern on the Business Desk where she covers technology, media, labor and the economy. She comes to NPR from Foreign Policy where she covered the beginning of Russia's war in Ukraine and built a beat on Southeast Asia, Asia and the Pacific Islands.