Dominion Voting Systems was set to lay out its case to a newly selected jury on Tuesday in its $1.6 billion defamation lawsuit against Fox Corp (FOXA.O) and Fox News in a trial putting one of the world’s top media companies in the crosshairs over its coverage of false vote-rigging claims in the 2020 U.S. election.
In one of the biggest U.S. defamation trials in decades, the jury will determine if Fox is liable for airing the false claims that Denver-based Dominion’s ballot-counting machines were used to manipulate that election in favor of Democrat Joe Biden over Republican then-President Donald Trump.
After a one-day delay ordered by Delaware Superior Court Judge Eric Davis in Wilmington, lawyers representing the two sides completed selection of the 12 jurors and 12 alternates from a pool of 58 potential jurors, paving the way for the two sides to make their opening statements to the panel. Davis implored lawyers on both sides to move quickly through what he said would be a six-week trial.
“We are going to keep it strict. I am not going to give you extra time,” judge said.
Davis told the jurors they need to “fight human nature” and not discuss the case with anyone. The judge called it “the hardest thing you’re going to have to do during trial.”
Prior to opening statements, expected to begin later on Tuesday, both parties were due to confer with the judge over their objections to slides intended to be used by the two sides in their presentations to jurors.
Dan Webb, a lawyer for Fox, told Davis that Dominion is objecting to “huge amounts,” which he said if excluded would “cripple” a key part of the media company’s defense.
Around 200 people packed the courtroom. Journalists and members of the public began lining up outside the courthouse hours before it opened. A protester in front of the building held a “Fox is Guilty” sign.
The trial is set to feature testimony from Rupert Murdoch, the 92-year-old media mogul, who serves as Fox Corp chairman, along with Fox CEO Suzanne Scott and on-air hosts including Tucker Carlson, Sean Hannity and Jeanine Pirro.
The judge did not disclose the reason for the 24-hour trial delay, but two sources told Reuters that Fox and Dominion had been holding last-minute settlement talks. Fox and Dominion could still settle the case.
Dominion in 2021 sued Fox Corp and Fox News, contending that its business was ruined by the false vote-rigging claims that were aired by the influential American cable news outlet known for its roster of conservative commentators.
The primary question for jurors will be whether Fox knowingly spread false information or recklessly disregarded the truth, the standard of “actual malice” that Dominion must show to prevail in a defamation case. Based on a slew of internal communications, Dominion alleges that Fox staff, from newsroom employees all the way up to Murdoch, knew the statements were false but continued to air them out of fear of losing viewers to media competitors on the right.
The trial is considered a test of whether Fox’s coverage crossed the line between ethical journalism and the pursuit of ratings, as Dominion alleges and Fox denies. Fox has portrayed itself in the pretrial skirmishing as a defender of press freedom.
Adding to the legal risks for Fox, another U.S. voting technology company, Smartmatic, is pursuing its own defamation lawsuit seeking $2.7 billion in damages in a New York state court.
In what could be a prelude to lawsuits seeking to make directors liable for any verdict or settlement, Fox Corp shareholders are demanding company records that may show whether directors and executives properly oversaw the Fox News coverage of Trump’s election-rigging claims, sources told Reuters.
Fox has called Dominion’s $1.6 billion damages claim unrealistic and based on flawed economic modeling. An expert report commissioned by Dominion attributed scores of lost contracts to Fox’s coverage, though much of the report remains under seal.
Fox Corp reported nearly $14 billion in annual revenue last year.