The decision represented a victory for Smartmatic, which has argued that the four board members are relevant to the case the company is trying to make: that executives at Fox knew that claims of election fraud made by Donald Trump allies were false but did nothing to stop the network’s coverage, out of a desire to protect the company’s business fortunes.
Smartmatic has also claimed the board members are relevant because they have a close proximity to the Murdochs.
“The Board members witnessed Rupert and Lachlan Murdoch’s control of Fox News; exchanged relevant emails that Smartmatic has used in depositions and will mark as trial exhibits; attended meetings during and after Fox News broadcast the defamatory publications; and discussed the 2020 election and the competitive threats Fox News faced to its brand,” Smartmatic lawyers wrote to the Judge David B. Cohen earlier this year.
In particular, Smartmatic flagged specific meetings that board members had attended, conversations they participated in, and documents they received that the company viewed as important for their case.
Dias, who runs an investment firm, was an internal critic of Fox’s handling of the post-election period. For its own defamation lawsuit against Fox, election technology company Dominion Voting Systems obtained email evidence showing that Dias had protested to the Murdochs to step in after the Jan. 6 Capitol insurrection and call out Trump, whom she said “has willfully incited acts of violence and desecration.” “It is an existential moment for the nation … and for Fox News as a brand,” she wrote in a January 2021 email. “I do not believe that the company can stay silent on this matter.” (Dias and Nasser opted not to run for reelection to the Fox Corp. board last year.)
Smartmatic has already obtained relevant communications from the other three members of the Fox Corp. board, including the Murdochs and former House speaker Paul D. Ryan.
“Accountability and responsibility do not stop with Rupert and Lachlan Murdoch,” said J. Erik Connolly, the lead attorney representing Smartmatic, in a statement to The Washington Post on Monday. “Smartmatic plans to pursue Fox’s board members as well to determine why they allowed the company’s most valuable asset, Fox News, to spread disinformation about the 2020 election.”
Smartmatic sued Fox in February 2021, arguing that comments made by Fox personalities and guests — including Trump-affiliated attorneys Rudy Giuliani and Sidney Powell — destroyed the company’s reputation as an election technology provider.
Fox, throughout the case, has argued that such comments were part of the network’s First Amendment-protected coverage of newsworthy happenings related to the election, including the Trump campaign’s protestations about potential voting fraud. Fox has also argued that Smartmatic is inflating the potential loss to the company’s value.
The Murdochs were deposed by attorneys for Smartmatic last fall. Both sides are close to finishing the process of discovery, in which they seek and obtain relevant communications and documents from the other side, a process that is normally contentious and marked by battles over access.
The next step in the case will occur sometime this fall, when both Smartmatic and Fox will submit motions requesting that the judge decide the case in their favor ahead of a trial that is tentatively slated for 2025.
In early 2023, Dominion used their motion to dismiss the case as a vehicle for revealing email and text communications providing evidence that, they said, showed conclusively that Fox executives chose not to act on their knowledge that the 2020 election was not stolen. Those filings generated waves of negative media coverage for Fox, which eventually agreed to settle the case for $787.5 million right before the April 2023 trial was scheduled to begin.
Neither Fox nor Smartmatic has given any indication that they intend to settle the lawsuit. If Fox were to move for a settlement, it would likely do so ahead of any release of sensitive internal documents that could hurt the network’s public image or embarrass network hosts and executives.
