Fox Corporation has called on attorneys for Dominion Voting Systems to launch an investigation into how several documents provided by the broadcaster made their way into the public domain.
The documents include text messages from its former prime-time commentator, Tucker Carlson, that were fodder for several stories published by the New York Times and the Daily Beast into the host’s off-air behavior. Carlson was fired by Fox News Media last month.
On Friday, attorneys for Fox Corporation fired off two letters to counsel of record for Dominion, arguing that the material could only have been made public to reporters at the Times and Daily Beast if someone had leaked them.
The leaks would almost certainly violate a protective order issued by a judge that granted permanent confidentiality to some records disclosed by both Fox and Dominion during the lengthy defamation case, which centered on election-related misinformation floated by Fox commentators and some of their guests immediately after the 2020 presidential election.
Fox settled the case last month for $787.5 million, bringing an end to what could have been a long and drawn out trial that would have had swift and immediate impacts on free speech protections in the United States.
During the deposition phase of the case, Fox and Dominion provided both sides with “discovery evidence,” or records that were germane to each side’s case. Those records included text messages, e-mails and other documents that were made public by the court, as well as some records that were not.
The Fox records that were not made public were protected by an order issued by the Delaware Superior Court judge overseeing the case. Such protective orders are not uncommon in both civil and criminal cases (the defamation case against Fox was a civil matter), and are meant to protect sensitive business records, personal effects and other documents that could justifiably be argued as not in the public interest.
Whether the material leaked to the Times and the Daily Beast are in the public interest is debatable. But, according to Fox, the records were provided to Dominion under the protective order signed by the judge, should not have been disclosed, and could only have been given to the news outlets if someone at Dominion did so.
“Fox takes these improper disclosures seriously, and requests that you and your clients investigate and confirm that you are not the source of these improper disclosures,” Dan Webb, an attorney representing Fox Corporation, wrote in a letter sent to Dominion’s attorneys of records on Friday.
Webb pointed out that at least one attorney representing Dominion in the case, Steven Shackleford, had made public comments that he “hope[s] it all gets unredacted at some point,” referring to some of the evidence that was protected in the case.
Webb and another Fox attorney, Katherine Mowery, didn’t accuse any individual person of leaking the material, but did argue that the disclosures went against the spirit of the protective order and could impact the network’s settlement with Dominion.
“Sharing confidential material with the media could never be said to be ‘for purposes of litigation,’ nor are members of the media included among the persons…with whom the confidential discovery material may be shared,” Mowery wrote in a separate letter sent to other Dominion attorneys on Friday. She continued: “Such disclosure by your clients would not only be a violation of the [protective] order, but also a breach of the parties’ Release and Settlement Agreement, which requires full return or destruction of all of Fox’s confidential or ‘Attorneys’ Eyes Only’ discovery material within 30 days of dismissal of the case.” (In most cases, a judge-approved settlement is legally recognized as a dismissal.)
Through its attorneys, Fox has requested Dominion’s counsel of record conduct an internal investigation into how the protected documents made their way to the press, and report back to the network by the end of Monday.
In a separate matter, attorneys for Fox issued a cease-and-desist order to watchdog organization Media Matters for America that published videos of comments made by Carlson while he was in his studio and off the air.
The videos mostly showed Carlson engaging in light-hearted banter with colleagues, either before the start of his “Tucker Carlson Tonight” show or during commercial breaks. They were used by Media Matters to demonstrate apparent “creepy” behavior, though none of the clips generated as much controversy as the text messages published by the Times and Daily Beast earlier in the week.
Still, Fox attorneys warned Media Matters and its CEO, Angelo Carusone, that the videos were property of Fox Corporation, and said the company didn’t agree to their disclosure.
“This proprietary material was given to you without Fox’s authorization,” a letter sent to Carusone and provided to The Desk by a Fox spokesperson said. “Fox demands that Media matters cease and desist from distribution, publication and misuse of Fox’s misappropriated proprietary footage, which you are now on notice was unlawfully obtained.”
News organizations and publishers generally have First Amendment protections with respect to the distribution of newsworthy material. Even if the material is proprietary, an exemption in the federal copyright law allows for its redistribution under certain “fair use” principles, including news reporting.
Late Friday afternoon, Carusone issued a statement that largely rejected the demand from Fox that his organization stop distributing the Carlson videos.
“Reporting on newsworthy, leaked material is a cornerstone of journalism,” Carusone said. “For Fox to argue otherwise is absurd, and further dispels any pretense that they are a news operation.”