2023 02 16 Redacted Dominion Opening SJ Brief 18

IN THE
IN THE SUPERIOR COURT OF

SUPERIOR COURT OF THE
THE STATE
STATE OF
OF DELAWARE
DELAWARE
US DOMINION, INC., DOMINION
VOTING SYSTEMS, INC. and
INC.,
DOMINION VOTING SYSTEMS
CORPORATION,
Case No. N21C-03-257 EMD
Plaintiffs,
CONSOLIDATED
CONSOLIDATED
v
v.
PUBLIC
PUBLIC VERSION
VERSION FILED
FILED ON
ON
FOX NEWS NETWORK, LLC, FEBRUARY
FEBRUARY 16,
16, 2023
2023
Defendant.
US DOMINION, INC., DOMINION

VOTING SYSTEMS,
SYSTEMS, INC., and
DOMINION VOTING SYSTEMS
CORPORATION,
CORPORATION,
Case No. N21C-11-082-EMD
Plaintiffs,
v
v.
FOX CORPORATION and FOX

BROADCASTING COMPANY,
BROADCASTING COMPANY, LLC,
LLC.
Defendants.
Defendants.
DOMINION’S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY

JUDGMENT ON LIABILITY OF
OF FOX NEWS
NEWS NETWORK, LLC AND FOX
CORPORATION
Dated: January 17,
17, 2022 Brian E. Farnan (Bar No. 4089)
Michael J. Farnan (Bar No. 5165)
FARNAN LLP
N. Market St., 12th
919 N. 12th Floor
Wilmington, Delaware
Wilmington, Delaware 19801
19801
(302) 777-0300
bfarnan @ farnanlaw.com
bfarnan@farnanlaw.com
mfaman@farnanlaw.com
mfarnan@farnanlaw.com
Rodney Smolla
Rodney Smolla (Bar
(Bar No.
No. 6327)
6327)
164 Chelsea
164 Street
Chelsea Street
South Royalton,
South Royalton, Vermont
Vermont 05068
05068
373-3882
(864) 373-3882
(864)
rodsmolla@gmail.com
rodsmolla@gmail.com
Of Counsel:
Of Counsel:
Justin A.
Justin A. Nelson
Nelson
Thomas
Thomas A.A. Clare,
Clare, P.C.
P.C. Jonathan J.J. Ross
Jonathan Ross.
Megan L.
Megan L. Meier
Meier Katie Sammons
Katie Sammons
Dustin A.
Dustin Pusch
A. Pusch Laranda Walker
Laranda Walker
Daniel P.
Daniel P. Watkins
Watkins Elizabeth Hadaway
Elizabeth Hadaway
CLARE LOCKE LLP
CLARE LOCKE LLP Florence Chen
Florence Chen
10 Prince
10 Prince Street
Street Kate Farley
Kate Farley
Alexandria, Virginia
Alexandria, Virginia 22314
22314 SUSMAN GODFREY
SUSMAN GODFREY LLP LLP
(202) 628-7400
(202) 628-7400 1000 Louisiana Street,
1000 Louisiana Street, #5100
#5100
tom@clarelocke.com
tom@clarelocke.com Houston, Texas
Houston, 77002
Texas 77002
megan@clarelocke.com
megan@clarelocke.com (713) 651-9366
(713) 651-9366
dustin@clarelocke.com
dustin@clarelocke.com jnelson@susmangodirey.com
jnelson@susmangodfrey.com
daniel @clarelocke.com
daniel@clarelocke.com jross@susmangodfrey.com
jross@susmangodfrey.com
ksammons@susmangodfrey.com
Iwalker@susmangodirey.com
lwalker@susmangodfrey.com
chadaway @susmangodfrey.com
ehadaway@susmangodfrey.com
fehen@susmangodfrey com
fchen@susmangodfrey.com
Kfarley @susmangodirey.com
kfarley@susmangodfrey.com
Stephen Shackelford,
Stephen Shackelford, Jr.
Jr.
Mark-Hatch-Miller
Mark-Hatch-Miller
Zach Savage
Zach Savage
Christina M.
Christina M. Dieckmann
Dieckmann
SUSMAN GODFREY
1301 6th
1301 6th Avenue
Avenue
New York,
New York, New
New York
York 10019
10019
336-8330
(212) 336-8330
(212)
sshackelford@susmangodiey.com
sshackelford@susmangodfrey.com
mhatch-miller@susmangodfrey.com
savage @susmangodfrey.com
zsavage@susmangodfrey.com
cdieckmann@susmangodfrey.com
Davida Brook
Davida Brook
Jordan Rux
Jordan Rux
SUSMAN GODFREY
1900 Avenue
1900 Avenue of
of the
the Stars,
Stars, Suite
Suite 1400
1400
Los Angeles,
Los Angeles, California
California 90067
90067
789-3100
(310) 789-3100
(310)
dbrook@susmangodfrey.com
jrux@susmangodirey.com
jrux@susmangodfrey.com
Edgar Sargent
Edgar Sargent
Katherine Peaslee
Katherine Peaslee
SUSMAN GODFREY
401 Union
401 Union Street, Suite 3000
Street, Suite 3000
Seattle, Washington
Seattle, Washington 98101
98101
(206) 516-3880
(206) 516-3880
esargent@susmangodfrey.com
kpeaslee@susmangodfiey.com
kpeaslee@susmangodfrey.com
Attorneysfor
Attorneys for Plaintiffs
Plaintiffs
TABLE OF
TABLE CONTENTS
OF CONTENTS
TABLE
TABLEOFAUTHORITIES...
OF AUTHORITIES ..................................................................................... v
INTRODUCTION .....................................................................................................
INTRODUCTION coments 1
FACTUAL BACKGROUND
FACTUAL BACKOROUND nmin
.................................................................................. l
14
A. Dominion
A. DOMINION Voting VOUNg Systems
SYSEMSrrr ..................................................................15
15
B. Prior
B. Prior to to Election
Election Day: Day: Setting
Setting Up Up the the False
False Narrative
Narrative of of
FRU. ...................................................................................................16
Fraud. 16
C. Fox’s
C. Fox's Election
Election Day Day Coverage
Coverage and and Backlash.
Backlash. ......................................
...........c.coovrru 18 18
D. Election
D. Election Fraud Fraud Conspiracy
Conspiracy Theories Abound—and Soon
Theories Abound—and Soon
TAFGe Dominion.
Target DOMINION. ................................................................................
covers 20
20
E. Fox
E. Fox Calls
Calls thethe Election
Election for for Biden—and
Biden—and Mainstreams
Mainstreams the the False
False
Narrative that
Narrative that Dominion
Dominion Rigged Rigged the the Election.
Icon... ....................................23
23
FE. Fox
F. Fox Continues
Continues to to Woo
Woo Back Back Viewers
Viewers and and Goes
Goes on on “War
“War
LEFooting” with SR Newsmax...................................................................... 26
G. “This
G. “This Dominion
Dominion shit shit isis going
going to to give
give me me aa fucking
fucking aneurysm.”
aneurysm.”
ter
.............................................................................................................29
29
H. The
H. The Pressure
Pressure on on FoxFox Grows—Even
Grows—Even As As Dominion
Dominion Puts Puts FoxFox
on Notice. ............................................................................................ 32
I.IL Fox Participated
Fox Participated in
in the
the Narrative.
NarTative. .......................................................
.......o.ormssrssms:39 39
LEGAL STANDARD
LEGAL STANDARD ..............................................................................................
mmm 44
ARGUMENT.
ARGUMENT tn 36
........................................................................................................... 46
I.
I. The Defamatory
The Defamatory StatementsStatements Fox Fox Published
Published About About Dominion
Dominion Are Are
FASC. corns
False. .............................................................................................................. 46
46
A.
A. Undisputed Evidence
Undisputed Evidence Proves Proves the the Falsity
Falsity of of Fox’s
Fox's Statements.
Statements.
tts
.............................................................................................................49
49
1.
1. Dominion Did
Dominion Did Not
Not Commit Election Fraud
Commit Election Fraud by by Rigging
Rigging
the 2020
the 2020 Presidential
Presidential Election.
EIECtion. .................................................
orcs: 50
50
2.
2. Dominion’s Software
Dominion’s Software and and Algorithms
Algorithms Did Did Not Not
Manipulate Vote
Manipulate Vote Counts
Counts inin the the 2020
2020 Presidential
Presidential
Election. .................................................................................... 63
3.
3. Dominion IsIs Not
Dominion Not Owned
Owned by by aa Company
Company Founded Founded in in
Venezuela toto Rig
Venezuela Rig Elections
Elections for for thethe Dictator
Dictator Hugo Hugo
Chavez. ...................................................................................... 73
4.
4. Dominion Did
Dominion Did Not
Not Pay
Pay Kickbacks
Kickbacks to to Government
Government
Officials Who
Officials Who Used
Used Its Its Machines
Machines in in the the 20202020
Presidential
Presidential EICCON.....cvverrrrrsrrriisrrn 16
Election. ................................................................ 76
B.
B. Fox's Accused
Fox’s Accused Statements
Statements Are Are Actionable
Actionable Allegations
Allegations of of
Fact. ..................................................................................................... 78
IL
II. The Accused
The Accused Fox
Fox Statements
Statements Are
Are “Of
“Of and
and Concerning”
Concerning” Dominion.
Dominion..........82
............ 82
HL
III. Fox Published
Fox Published the
the Defamatory
Defamatory Statements.
Statements.............wwrrr82
................................................... 82
IV.
IV. The Statements
The Statements Are
Are Defamatory
Defamatory Per
Per Se.
Se.....owrirrie8
....................................................... 85
V.
V. Fox Acted
Fox Acted with
With Actual
ACtal Malice.
Malice... ......................................................................887
A.
A. The Public
The Public Record
Record and and Dominion’s
Dominions Communications
Communications
Demonstrate Fox’s
Demonstrate Fox's Knowledge
Knowledgeofor Reckless Disregard
of or Reckless Disregard for for
the Truth. ............................................................................................. 92
B.
B. It Was
It Was Widely
Widely Known Known within within Fox Fox thatthat the
the Allegations
Allegations were were
False..................................................................................................... 96
C.
C. Executives Responsible
Executives Responsible for
for Fox
Fox Programming
Programming and and Content
Content
Acted with Actual
Acted with Actual Malice.
Malice. ....... rnin 101
................................................................ 101
1.
1. Fox Has
Fox Has Admitted
Admitted that
that Its
Its Executives
Executives Participated
Participated inin
the Editorial
the Editorial Process
Process for
for the
the Accused
Accused Broadcasts
Broadcasts
During the Relevant TIMeframe. ..........crecce
During the Relevant Timeframe. ............................................ 101
101
2.
2. Fox Has
Fox Has Admitted
Admitted Editorial
Editorial Discussion
Discussion ofof the
the Accused
Accused
Programs Occur
Programs Oceur atat Fox’s
Fox's Twice-Daily
Twice-Daily MeetingsMeetings
Among Senior
Among Editorial Leadership.
Senior Editorial Leadership. ......................................
........covscs 102 102
3.
3. Specific Evidence
Specific Evidence Confirms
Confirms These
These Fox Fox Executives
Executives
ActedWith
Acted With Actual Malice. .....................................................
Actual Malice. .errsrrsrrrsees 104 104
D.
D. Hosts, Producers,
Hosts, Producers, andand Executives
Executives with with SpecificSpecific
Responsibility for
Responsibility for Each
Each Broadcast
Broadcast Knew
Knew the
the Statements
Statements were were
False or
False or Recklessly
Recklessly Disregarded
Disregarded the
the Truth. ..........cooore
Truth. ...................................... 117
117
1.
1. Sunday Morning
Sunday Futures with
Morning Futures with Maria
Maria Bartiromo.
Bartiromo. ...................
...............117
117
2.
2. LOU Dobbs
Lou D0bbS Tonight.
TORght. ................................................................
oes 123
123
3.
3. Justice with
Justice with Judge
Judge Jeanine...
Jeanine......................................................135
135
4.
4. Fox && Friends.
Fox Friends... nmmmmrndl39
........................................................................ 139
5.
5. Hannity's November
Hannity’s November 30
30 Broadcast.
Broadeast.............orrrre
........................................141
141
6.
6. Tucker Carlson
Tucker Carlson Tonight’s
Tonight's January 26 Broadcast.
January 26 Broadcast................ 144
................... 144
E.
E. Additional Evidence
Additional Evidence Indicates
Indicates that that Fox’s
Fox's Executives
Executives Acted Acted
With Actual
with ACHE! Malice.
MACE. ...........................................................................
rrr 148
148
I.
1. Inherent Improbability/Reliance
Inherent Improbability/Reliance on on Obviously
Obviously
UIEIiable Sources.
Unreliable SOUICES. .................................................................
rrr 148 148
2.
2. Financial Motive
Financial MOVE to(0 Lie.
Lie.rvs 153
.......................................................... 153
3.
3. Departure from
Departure from Journalistic Standards. ..................................
Journalistic Standards. ................o... 158
158
4.
Preconceived
4. Narmative......
Preconceived Narrative. SR 159
..........................................................
5. Rebroadcast
5. Rebroadcast and and Refusal
Refusal to React...
to Retract. .......................................161
161
VI. Affirmative
VI. Affirmative Defenses:
Defenses: Dominion
Dominion IsIs Entitled
Entitled to to Summary
Summary Judgment Judgment
on Fox’s “Neutral Reportage” or “Newsworthiness” Defense and
on Fox’s “Neutral Reportage” or “Newsworthiness” Defense and itsits
PR Report Delerium
Fair Report Defense. .................................................................................... 61
161
A. The
A. The Neutral
Neutral Reportage
Reportage PrivilegePrivilege Does Does Not Not Apply
Apply As As AA
MAUEE
Matter OFLAW rrr 163
of Law .................................................................................... 163
1.
1. The Neutral
The Neutral Reportage
Reportage Privilege
Privilege IsIs Foreclosed
Foreclosed by by New
New
YOIK Law.
York LAW. ...............................................................................
corrtritsmsittnssssrrns 163 163
2.
2. Federal Constitutional
Federal Constitutional Law
Law Does
Does Not Not Recognize
Recognize AA
“Neutral Reportage”
“Neutral RepOHage” Privilege.
PHVlege. ...............................................
rrr 165
165
3.
3. Fox's Case
Fox’s Case for
for Neutral
Neutral Reportage
Reportage Has
Has Only
Only Gotten
Gotten
Weaker Since
Weaker Since the
the Court’s
Court’s Motion
Motion to
to Dismiss
Dismiss Ruling.
Ruling. ...........
.........167167
B.
B. Even ifif the
Even the Edwards
Edwards Doctrine
Doctrine Did Did Apply,
Apply, Fox Fox Cannot
Cannot Meet Meet
TESREQUITCIIENLSrrr:
Its 69
Requirements ................................................................................ 169
C.
C. The Narrow
The Namow and Well-Defined “Fair
and Well-Defined “Fair Report”
Report” Privilege
Privilege
Likewise Does
Likewise DOES Not
NOUADPY Apply
rrr | 12
................................................................. 172
1.
1. The Court
The Court Already
Already Correctly Held That
Correctly Held That the the Fair
Fair Report
Report
Privilege Applies
Privilege Applies Only
Only toto Substantially
Substantially AccurateAccurate
Reports of
Reports of Pending
Pending Proceedings.
Proceedings. ............................................
en 172
172
2.
2. None of
None of the
the Defamatory
Defamatory Statements
Statements IsIs aa Substantially
Substantially
Accurate Report
Accurate ReportofPending Proceedings. ..............................
of Pending Proceedings. ..................|74 174
CONCLUSION...
CONCLUSION 16
...................................................................................................... 176
TABLE OF AUTHORITIES
TABLE OF AUTHORITIES
Page(s)
Page(s)
Cases
Cases
Bose Corp.
Bose Corp. v.v. Consumers
Consumers Union,
Union,
692 F.2d
692 F.2 189 189 (1st
(St Cir.
Cif. 1982)
1982). ...............................................................................88
88
Brian v.v. Richardson,

Brian Richardson,
660 N.E.2d
660 NE2d 1126
1126 (N.Y.
(N.Y. 1995)
1995)..............................................................................19
79
Celle v.v. Filipino

Celle Filipino Rep.
Rep. Enterprises
Enterprises Inc.,
Inc.,
209 F.3d
209 F.3d 163
163 (2d
(2d Cir.
Cir. 2000)
2000) ...................................................................
css 35, 88, 89
85, 88, 89
Cholowsky v.v. Civiletti,
Cholowsky Civiletti,
69 A.D.3d
69 AD3d 110 110 (N.Y.
(N.Y. 2d
2d Dep’t
Dep't 2009)
2009)... 12, 173
.......................................................172, 173
Cholowsky Civilerti,
69 AD3d
69 AD3d 110 110 (2d
(2d Dept
Dept 2009)
2009) .............................................................................
vse ||
11
Cianci v.v. New

Cianci Times Pub.
New Times Pub. Co.,
Co.,
639 F.2d
639 F.2d 5454 (2d
2d Cir. 1980) .............................................................................
Cir. 1980) vcr mmm 7, 50 50
Corporate Training
Corporate Training Unlimited,
Unlimited, Inc.
Inc. v.v. National
National Broadcasting
Broadcasting Co., Co.,
868 F.Supp.
868 F.Supp. 501
S01 (E.D.N.Y.
(EDN.Y. 1994)
1994)... ....................................................................173
13
Crane v.v. New
Crane New York
York World
World Telegram
Telegram Corp.,Corp.,
308 N.Y.
308 N.Y. 470 (N.Y. 1955)
470 (N.Y. 1955) ............................................................................
coms 10, 71
70, 71
Davis v.v. Boeheim,

Davis Boeheim,
22NE3d999
22 (N.Y. 2014)
N.E.3d 999 (N.Y. 2014).................................................................................19
79
DiBella v.v. Hopkins,

DiBella Hopkins,
403 F.3d
403 F.3d 102102 (2d
(2d Cir.
Cir. 2005)
2005) ...............................................................................
wos 45
45
Dickey v.v. CBS

Dickey CBS Inc.,
Inc.,
$83 P20 1201 (3d
583 F.2d 1221 CIC Cir. 1978)
IIB ...........................................................................
women 51
167
Edwards v.v. Nat’l

Edwards Nat'l Audubon
Audubon Soc, Inc.,
Soc., Inc.,
556 F.20 113 (2d CIF. 1977) wosPASS
556 F.2d 113 (2d Cir. 1977) ........................................................................passim
Elias v.v. Rolling

Elias Rolling Stone
Stone LLC,
LLC,
872 F.3d
872 F.34 97
97 (2d
2d Cir. 2017) .................................................................................
Cir. 2017) ccc tis 82
82
Eramo v.v. Rolling
Eramo Rolling Stone, LLC,
Stone, LLC,
209 F. Supp. 3d34 862
86(W.D. Vit. 2016)
(W.D. Va. 2006).....comsssssssmmmsssrsmmmmsssssssmmmmssassrmmeoessssBY
................................................................ 89
v. ESPN, Inc.,
Fine v.
11F.F. Supp.
11 34 209
Supp. 3d 209 (N.D.N.Y.
(N.DN.Y. 2014)
2014). 1, 173
..........................................................11, 173
Franklin v.v. Daily
Franklin Daily Holdings, Inc.,
Holdings, Inc.,
135 A.D.3d
135 ADB 87 (N.Y. (NY. 1st
15tDEP
Dep’t E2005
2015)ucnncmmsssssssmmmmsssssrmmmmnsssrmmmssssmrimisssedy
................................................................ 49
v. Otis Ford, Inc.,

Gatz v.
262 AD2d 280 (1st(15t Dept 1999)
1999) ....................................................................
..covvvvvvvvvvmmmmmsssssssssssssssssssssssssssssssssssssssssssssssss
83,
85, 86
v. Probst,
Geraci v.
ISN.Y.30336
15 02010)...comusmmmmummmmmirmmasssssmmmussmmssinS
N.Y.3d 336 (2010) Sy 86
...................................................................................83,
v. Robert
Gertz v. Welch, Inc.,
Robert Welch,
QIBUS.
418 3I3(N9).......cconmmssssssmmmmssssssssmmmmmssassssssrssssumsssssressanss
U.S. 323 S—
(1974) .....................................................................................passim
v. Jones,
Gilmore v.
2021 WL 68684 (W.D.
2021 {W.D. Va.
Vai. Jan. 8, 2021)
2020)..ccccsssssmmmssssssommmssssrrmmmssasrrmminsssSS
........................................................... 88
Greenberg v.v. Spitzer,

Greenberg Spitzer,
155
155 A.D.3d
A D.3A 27 (2dCADPDep’tt 2017)
00 ................................................................
Tmmmsssssssssssssssssssisisissimmmimsrmssmrrmssssssrerreesss 162,
163; 174
174.
CityofSeattle,
Harris v. City of Seattle,
152
152 F. App’x 565 (9th Cir. 2005) (unpublished)
(unpublished). ................................................
ern 89
Harte-Hanks Communications,
Harte-Hanks Communications, Inc.Inc. v.v. Connaughton,
Connaughton,
A910.
491 C5T (1989)
U.S. 657 IBD......................................................................................
ssrncmssmmmmmmmssssmmmssssmsmsssssrsemssrmmmsnnS Sy 89
88,
Harwood Pharmacal Co.
Co. v.
v. Nat’l
Nat'l Broad.
Broad. Co.,
99NY24
NY2d 460 (CL. App.
460 (Ct. APP. 1961)
1961) ..............................................................................
ssn 86
86
v. Lando,
Herbert v.
441 U.S.
441 US. 153
15309719) cconmmusmrimmsssssrons sm
(1979) ............................................................................................ 3S
88
Hogan v.v. Herald

Hogan Herald Co.,
Co., 84
84 A.D.2d
A.D.2d 470 (N.Y. 4th
470 (N.Y. 4h Dep’t
Dep't 1982),
1982),
aff’d,
aff'd, 444
444 N.E.2d 1002 (N.Y) ccovvvvvmmmmmmmmmsmsssssssssssssssssssssssssssssssssssssssssssssssssssnss
1002 (N.Y.) .......................................................................... 64
164
v. Guillot,
Horton v.
2016 WL 4444875 (N.D.N.Y. Aug. 23, 2016).......cooumsmrrrrrrrrssssssssssssssssssssssssnn
2016) ................................................... 82
vi
Karedes v.v. Ackerly
Karedes Group, Inc.,
Ackerly Group, Inc.
423 F.3d
423 F340 107107 (2d
2 Cir.
CIF. 2005)
2005) .............................................................................
corte |13
173
Kasavana v.v. Vela,

Kasavana Vela,
172 AD3d
172 AD3d 10421042 (2d
24 Dept
DEPL 2019)
2019)...
.............................................................10, 82, 85
10, 82, 85
Khalil v.v. Fox
Khalil Fox Corp.,
Corp.,
2022 WL
2022 4467622 (S.D.N.Y.
WL 4467622 (SDNY. Sep.
Sep. 26,
26, 2022)
2022) .............................................passim
cctv PASI
Merrill v.v. Crothall-Am.,
Merrill Crothall-Am., Inc.,
Inc..
606 A.2d
606 A.2d 96 96 (Del.
(Del. 1992)
1992) .....................................................................................
sri 44
Merritt
Merritt v. v. United
United Parcel
Parcel Service,
Service,
956 A.2d
956 A.2 1196 1196 (Del.
(Del. 2008)
2008).................................................................................
cocci 14
74
New York Times

New York Times v.v. Sullivan,
Sullivan,
367 U.S.
367 US. 254258 (1964)
(1964)... PASSIN
.....................................................................................passim
Nolan
Nolan v. v. State,
State,
158 AD3d
158 AD3d 186 186 (1st
(150 Dept
DEPL 2018)
2018) ..........................................................................
corr 81
87
Norton v.v. Glenn,

Norton Glenn,
860 A.2d
860 A.20 48 48 (Pa.
(PA. 2004) ccc
2004) ..................................................................................... 67
167
Nunes
Nunes v. v. Lizza,
Lizza,
12 F.4th
12 F.dth 890890 (8th
(8th Cir. 2021).........
Cir. 2021) _—
............................................................................... 89
89
Osorio v.v. Source

Osorio Enterprises, Inc.,
Source Enterprises, Inc.,
2006 WL
2006 2548425 (S.D.N.Y.
WL 2548425 (SDNY. Sept. SEL. 5,5, 2006)
2006) .....................................................
crv 8 84
Ostrowe v.v. Lee,

Ostrowe Lee,
175 N.E.
175 NE, 505 508 (N.Y.
QUT 1931)M03 ...................................................................................
msm 84
Page v.v. Oath

Page Oath Inc.,
Inc.,
270 A3d 833 (Del.
270 A.3d 833 (Del. 2022)
2022) .....................................................................
cover rien 90, 91, 168
90, 91, 168
Palin v.v. New
Palin New York
York Times
Times Co.,
Co.,
940 F.3d 804 (2d Cir. 2019) ...................................................................
940 F.3d 804 (2d Cir. 2019) corre32, 87, 89
82, 87, 89
Penn Warranty
Penn Warranty Corp. Corp. v.v. DiGiovanni,
DiGiovanni,
10 Misc.3d 998 (N.Y. Sup.
10 Misc.3d 998 (N.Y. SUP. Ct. CL 2005)
2005) .................................................................
covers 3 84
vii
vii
Pisani v.v. Staten
Pisani Staten Island
Island Univ.
Univ. Hosp.,
Hosp.,
440 F.Supp.2d
440 F.Supp.2d 168
168 (E.D.N.Y.
(EDN.Y. 2006)
2006)... 4,
........................................................ 176
174, 176
Rosenbloom v.v. Metromedia,

Rosenbloom Metromedia, Inc.,
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403 U.S.
403 U.S. 29
29 (1971)
(1971) (Marshall,
(Marshall,J,diSSenting).........orvrrrrn:
J., dissenting) ...........................................166, 167
166, 167
Ruder && Finn

Ruder Finn Inc.
Inc. v.v. Seaboard
Seaboard Sur. Co.,
Sur. Co.,
52NY2d
52 663 (Ct.
NY2d 663 (CL App.
APP. 1981)
1981) ............................................................................
ccs 81
87
Seymour v.v. New

Seymour New York
York State Elec. && Gas
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627 NY2 466 (3 Dept
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rrr 82
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Smartmatic USA
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2022 WL 685407
WL 685407
ONY Sup.
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08, 2022) commen, 20, 165
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Snowden v.v. Pearl
Snowden Pearl River
River Broad.
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251 (La. Ct.
So. 2d 405 (La. App. 1971)
Ct. App. 1971)... SR
.................................................................... 83
Solano v.v. Playgirl,

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292 F.3d 1078
1078 (9th
(91h Cir.
Cir. 2002)
2002)............................................................
ch,4, 88, 88, 90,
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St. Amant
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...................................................................................... 89
88, 89
Stern v.v. Cosby,

Stern Cosby,
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(S.D.N.Y. 2009)
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Time, Inc.
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Torati v.v. Hodak,

Torati Hodak,
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47 N.Y.S.3d DIA 2017) ......................................................................
288 (1st Dep’t srs 84
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viii
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549 NEA LSB OLY. 1989)
453 (N.Y. 198mmm 4
............................................................................. 164
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814 F.2d 1066
1066 (5th
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crests 89
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2022) .................................................50, 88, 89
50, 88, 89
Statutes
AZ Rev.
Ariz. REV. Stat.
SUL §16-449
$16-449 ..........................................................................................
ots 36
56
Gi. Coe
Ga. §21-2-374(D) ............................................................................................
Code §21-2-374(b) crits 36
56
Ga. Coe
Ga. §21-2-39.6(C) .........................................................................................
Code §21-2-379.6(c) crits 36
56
Mich. COMP.
Mich. LAWS §168.37
Comp. Laws $168.37. .....................................................................................36
56
MI Comp
Mich. Lens §168.794
Comp. Laws SHIM ...................................................................................
mms 56
Mich. COMP.
Mich. LAWS §168.795
Comp. Laws §168.795....cccvrrrrtrs
...................................................................................556
6
N.Y. CivilRIghtS
N.Y. Law §74
Civil Rights Law §74 ............................................................................
vocrcrsrrtsissrisne 172, 12, 173
173
N.Y.Y. Civil
N. Civil Rights
Rights Law
LAW§75 corre 164,
§ 75 .......................................................................... 164, 165
163
N.Y. Civil
N.Y. Civil Rights
RIGS Law
LW §76-a.2
§76-0.2 ................................................................................
.ccvrrrrrrtsssrsinid 45
Pa Stat.
Pa. SL §3006
$3006 .........................................................................................................
crests 36
56
Pa. Stat.
Pa. Stat. §3007
§3007 .........................................................................................................
r— mms 56
P0800
Pa. SILL .........................................................................................................
Stat. §3011 conmmmmmmmsmmsmmmmmns38 56
PA Stat.
Pa. SUL §3015
$3015 .........................................................................................................
rrr: 56
56
PBI
Pa. SIBLE ......................................................................................................
Stat. §3031.5 cnr 56
Pa Stat.
Pa. SUL §3031.14
$3031.14 ....................................................................................................
ort 56
56
ix
ix
A, Stat.
Pa. SU §3031.17
BI0BLIT ....................................................................................................
mmm 55
Rules
Rules
CHV. R.
Civ. Re 36(b)
36D). 4
............................................................................................................. 74
CHV. R.
Civ. R56 ots
56 .................................................................................................................43
45
Constitional Provisions
Constitional Provisions
FIISUAIENAMENL
First rrr PASS
Amendment...............................................................................................passim
Other Authorities
Other Authorities
Restatement (Second)of
Restatement (Second) Torts §580A
of Torts §580A Ct.
cmt.(4)...
(d) .......................................................8989
Restatement (Second)
Restatement (Second)ofTOMS §581 cmt.
of Torts §581 CML. ...............................................................
rrr 83
83
xx
INTRODUCTION
INTRODUCTION
“Sidney Powell
“Sidney is lying.”
Powell is Tucker Carlson
lying.” Tucker Carlson to
to his
his producer
producer Alex
Alex Pfeiffer,
Pfeiffer,
November 16,
November 16, 2020
2020 (Ex.150)
(Ex. 150)
“TE
EE
I
I
I
“Sidney Powell
“Sidney is aa bit
Powell is bit nuts. Sorry but
nuts. Sorry but she is.” Laura
she is.” Laura Ingraham
Ingraham to
to Tucker
Tucker
Carlson and
Carlson and Sean
Sean Hannity,
Hannity, November
November 15,
15, 2020
2020 (Ex.155
(Ex. 155 atat FNN035_03890539)
FNN035_03890539)
“Really crazy
“Really crazy stuff.” Rupert Murdoch,
stuff.” Rupert Murdoch, November
November 19,
19, 2020
2020 (Ex.156)
(Ex. 156)
“Q: Do
“Q: Do you believe as
you believe as ofNovember
of November 66 that
that going on television
going on television to
to say
say that
that the
the
election isis being
election being stolen would be
stolen would be aa conspiracy
conspiracy theory?
theory? A:
A: II agree that that
agree that would
that would
not be based
not be based in in fact
fact at that point.”
at that Meade Cooper,
point.” Meade Cooper, Fox
Fox News
News Executive
Executive Vice
Vice
President for
President for Primetime
Primetime Programming
Programming (Ex.108,
(Ex.108, Cooper
Cooper 194:1-6)
194:1-6)
“Q: [Y]ou
“Q: [Y]ou believe, since at
believe, since least the
at least the time
time that
that Fox
Fox News
News called
called the
the election
election
on November
on November 7th,
7th, that
that Joe Biden was
Joe Biden was legitimately
legitimately elected
elected the
the President
President of
of the
the
United States, correct?....A: Yes, I believe that.” Suzanne Scott, Fox News CEO
United States, correct?....A: Yes, I believe that.” Suzanne Scott, Fox News CEO
(Ex. 143, Scott 365:10-19)
(Ex.143, Scott 365:10-19)
“71 million
“71 million voters
voters will
will never
never accept
accept Biden.
Biden. This
This process
process is to destroy
is to destroy his
his
presidency
presidency before
before it
it even
even starts; IF itit even
starts; IF even starts….We
starts.....We either
either close
close on Trumps
on Trumps
victory or delle]gitimize Biden....THE PLAN.” Steve Bannon to Maria
victory or del[e]gitimize Biden….THE PLAN.” Steve Bannon to Maria
Bartiromo, November
Bartiromo, November 10, 10, 2020
2020 (Ex.157)
(Ex.157)
“It’s dangerously
“It’s dangerously insane
insane these
these conspiracy theories.” Fox
conspiracy theories.” Fox reporter
reporter Lucas
Lucas
Tomlinson to
Tomlinson to Bret
Bret Baier,
Baier, Fox’s
Fox’s Chief
Chief Political
Political Correspondent, December 1,1, 2020
Correspondent, December 2020
(Ex.367)
(Ex.367)
11
“[TJhe whole
“[T]he whole theory
theory isis absolutely ludicrous to
absolutely ludicrous to anyone
anyone whowho bothers
bothers
researching elections for
researching elections for more
more than
than five
five minutes or speaking
minutes or with any
speaking with any elections
elections
professional.” Stephen Richer,
professional.” Stephen Richer, Republican,
Republican, County
County Recorder
Recorder in
in Maricopa
Maricopa County,
County,
Arizona (Ex.139,
Arizona (Ex.139, Richer
Richer 22:6-23:11)
22:6-23:11)
I
EE
I
“Incorrect” and
“Incorrect” and “not
“not evidence
evidence of
of widespread
widespreadfraud.” Fox's internal
fraud.” Fox’s internal “fact
“fact
checks” regarding
checks” regarding the
the Dominion
Dominion allegations,
allegations, November
November 13
13 and
and November
November 20,20,
2020 (Ex318;Ex.159)
2020 (Ex.318; Ex.159)
I1 —
EE
1
I
“[That whole
“[T]hat whole narrative
narrative that
that Sidney
Sidney was
was pushing.
pushing. IIdid not believe
did not believe itfor one
it for one
second.” Sean Hannity
second.” Sean Hannity (Ex.122,
(Ex.122, Hannity
Hannity 322:19-21)
322:19-21)
“[NJo reasonable
“[N]o reasonable personwould
person would have
have thought
thought that.” Fox Politics
that.” Fox Politics Editor
Editor
Chris Stirewalt,
Chris Stirewalt, on
on whether
whether the
the allegation
allegation that
that Dominion
Dominion rigged
rigged the
the election
election was
was
true. (Ex.146,
true. (Ex. 146, Stirewalt
Stirewalt 154:18-19,
154:18-19, 153:24-157:11)
153:24-157:11)
Fox knew.
Fox knew. From
From the
the top
top down,
down, Fox
Fox knew
knew “the
“the dominion stuff” was
dominion stuff” was “total
“total bs.”
bs.”
Ex.162. Yet
Ex.162. Yet despite knowing the
despite knowing the truth—or
truth—or at
at minimum,
minimum, recklessly
recklessly disregarding
disregarding that
that
truth—Fox spread
truth—Fox spread and
and endorsed
endorsed these
these “outlandish
“outlandish voter
voter fraud claims” about
fraud claims” about
Dominion even
Dominion even as
as itit internally
intemally recognized
recognized the
the lies
lies as
as “crazy,”
“crazy.” “absurd,”
“absurd.” and
and
“shockingly reckless.”
“shockingly Ex.163; Ex.165;
reckless.” Ex.163; Ex.165; Ex.166.
Ex.166."1 The colorful choices
The colorful choices of
of words
words
"Appendix
1
Appendix AA lists
lists abbreviations
abbreviations used
used in
in this
this brief.
brief. All
All bold
bold and
and italics
italics inin quotes
quotes
throughout this
throughout this brief
brief are
are added
added unless
unless otherwise
otherwise noted.
noted. CAPS
CAPS are
are how
how they
they appear
appear
22
used by
used by so
so many
many Fox
Fox employees all try
employees all ry to
to capture
capture the same basic
the same basic truth
truth about
about these
these
inherently improbable
inherently improbable allegations:
allegations: These claims were
These claims were false,
false, and
and obviously
obviously so.
so.
A mountain
A mountain of
of direct
direct evidence demonstrates actual
evidence demonstrates actual malice
malice without
without resort
resort toto
motive or
motive or other
other circumstantial factors. But
circumstantial factors. But why
why did
did Fox
Fox peddle
peddle this
this false
false narrative
narrative
0 its
to its viewers?
viewers? Fox’s
Fox’s correct
correct call
call of Arizona for
of Arizona for Joe
Joe Biden
Biden triggered
triggeredaa backlash
backlash
among its
among its audience
audience and
and the
the “network
“network [was]
[was] being
being rejected.”
rejected” Ex.555 atat
Ex.555
FNN35_03890498. Rival
FNN35_03890498. Rival networks
networks such
such as
as Newsmax
Newsmax took
took advantage
advantageof the opening
of the opening
by promoting
by promoting “an
“an alternative
aliemative universe”
universe” of
of election fraud.
election fraud. Ex223 atat
Ex.223
FNNO71_04502926. So
FNN071_04502926. So Fox
Fox went
went on
on “war
“war footing,”
footing,” caring more about
caring more about protecting
protecting
its own
its own falling
falling viewership
viewership than
than about
about the
the truth.
truth. Id.
/d. EEG
I BE.. In
[0 the
thc words
words of Fox News’
of Fox News’ SVP
SVP
and Managing
and Managing Editor
Editor of the Washington,
of the Washington, D.C.
D.C. Bureau
Bureau Bill
Bill Sammon,
Sammon, “It’s
“If’s
remarkable how weak
remarkable how weak ratings
ratings make[]
make[] goodjournalists
good journalists do
do bad
bad things.” Ex.167.
things.” Ex.167.
‘The consequences to
The consequences to Dominion—and
Dominion—and to
to democracy—did
democracy—did not
not matter.
mater.
This case
This differs from
case differs from nearly
nearly any
any defamation
defamation case before it.
case before it. Normally
Normally
plaintiffs prove
plaintiffs prove defendants’
defendants’ actual
actual malice—whether
malice—whether they
they knew
knew itit was
was false
false or
or “in
“in
fact entertained
fact entertained serious
serious doubts
doubts as
as to
to the
the truth
truth of
of the
thestatement”—"by inference, as
statement”—“by inference, it
as it
in the
in the document.
document. “Fox” refers to
“Fox” refers to Fox
Fox News
News Network
Network and
and Fox
Fox Corporation,
Corporation, except as
except as
specifically noted.
specifically noted. All
All exhibits
exhibits cited
cited inin this
this Brief
Brief are
are attached
attached to
to the
the Affidavit
Affidavit of
of
Katherine Peaslee
Katherine Peaslee filed
filed herewith.
herewith.
33
would be
would rarefor
be rare for aa defendant
defendant to
to admit
admit such
such doubts” Solano v.v. Playgirl,
doubts.” Solano Playgirl, Inc.,
Inc., 292
292
F.3d 1078,
F.3d 1078, 1085
1085 (9th
(9th Cir. 2002) (citation
Cir. 2002) (citation omitted).
omitted). Here,
Here, however,
however, overwhelming
overwhelming
direct evidence
direct establishes Fox’s
evidence establishes Fox’s knowledge
knowledge of
of falsity,
falsity, not
not just
just “doubts.”
“doubts.”
Normally defamation
Normally defamation cases
cases involve
involve aa single
single defamatory statement. Here,
defamatory statement. Here, Fox
Fox
defamed Dominion
defamed Dominion not
not once. Not twice.
once. Not twice. Not
Not three
three times.
times. But
But continually.
continually. Over
Overaa
‘months-long timeframe.
months-long timeframe. And
And while
while defamation
defamation cases
cases often
often involve
involve matters
matters of
of public
public
concer, the
concern, the false
false statements
statements here—in
here—in the
the words
words of Fox host
of Fox host Tucker
Tucker Carlson—
Carlson—
“would amount
“would amount to
to the
the single
single greatest crime inin American
greatest crime American history.
history. Millions
Millions of votes
of votes
stolen in
stolen in aa day.
day. Democracy
Democracy destroyed.
destroyed. The end of
The end of our
our centuries’
centuries” old system of
old system self-
of self-
government.” Ex.170
government.” Ex.170 atat FNN018_02408904.
FNNOIS_02408904.
Normally defamation
Normally defamation cases
cases involve
involve the
the state
state of mind of
of mind of one person, or
one person, or
sometimes aa handful,
sometimes handful, as
as the
the law
law only requires that
only requires that one person with
one person with editorial
editorial
responsibility have
responsibility have the requisite actual
the requisite actual malice.
malice. Here,
Here, however,
however, literally
literally dozens
dozens of
of
people with
people with editorial
editorial responsibility —from the
responsibility—from the top
top of the organization
of the to the
organization to the
producers of
producers of specific
specific shows
shows to
to the
the hosts
hosts themselves—acted
themselves—acted with
with actual
actual malice.
malice.
Normally multiple
Normally multiple public
public sources,
sources, credible third parties,
credible third parties, and
and governmental
governmental
agencies atat all
agencies all levels
levels do not debunk
do not debunk the
the lies
lies in
in real
real time.
time. Here,
Here, however,
however, they
they all
all did
did
so—and Fox
so—and Fox knew
knew about
about them.
them.
Normally the
Normally the plaintiff
plaintiff does not inform
does not inform the
the defendant
defendant about
about the
the falsity
falsity of
of the
the
allegations during
allegations the course
during the course of the defamation
of the itself. Here,
defamation itself. Here, however,
however, Dominion
Dominion
4
4
repeatedly told
repeatedly told Fox
Fox and
and urged
urged itit toto stop
stop publishing
publishing these
these “debunked” and
“debunked” and
“completely false”
“completely false” claims.
claims. E.g.,
E.g.. Ex.339;
Ex339; Ex.340;
Ex340; see, infra, §V.A.
see, infra, §V.A. Fox
Fox admits
admits
Sidney Powell
Sidney Powell and
and her
her team
team never
never provided
provided Fox
Fox with
with any
any evidence. Ex.128, Lowell
evidence. Ex.128, Lowell
30(b)(6) 285:10-13,
30(b)(6) 285:10-13, 286:3-13.
286:3-13. Dominion,
Dominion, by
by contrast,
contrast, made
made over
over 3,600 separate
3,600 separate
communications to
communications to Fox
Fox with
with atat least
least aa dozen
dozen separate
separate and
and widely-circulated
widely-circulated fact
fact
check emails—each
check emails—each pointing
pointing to
to verifiable
verifiable third-party
third-party information
information debunking
debunking the
the
claims.
claims. Ex.128, Lowell
Ex.128, Lowell 30(b)(6)
30(b)(6) 544:6-13,
544:6-13, 389:5-391:25.
389:5-391:25. Fox's research
Fox’s research
department itself—along
department itself—along with
with multiple
multiple Fox
Fox employees—debunked these claims
employees—debunked these claims inin
real time.
real time. See,
See, e.g., Ex.168; Ex.160;
e.g., Ex.168; Ex. 160; Ex.318.
Ex.318. No
No credible
credible evidence
evidence ever existed for
ever existed for
these “absurd”
these allegations against
“absurd” allegations against Dominion.
Dominion. Ex.169
Ex.169 atat FNN035_03890644.
FNN035_03890644. Fox
Fox
witness after
witness afer Fox
Fox witness
witness has
has admitted
admitted as
as much,
much, consistent
consistent with
with every
every single
single
reputable third
reputable party and
third party stacks of
and stacks of public
public record
record documents.
documents. See, infra, nn.12-13.
See, infra, nn. 12-13.
Normally aa defendant
Normally does not
defendant does not continue
continue to
to broadcast
broadcast lies
lies even
even after
after the
the
plaintiff sends
plaintiff sends verifiable
verifiable information
information demonstrating
demonstrating their
their falsity.
falsity. Here,
Here, however,
however,
Fox continued
Fox continued to
to broadcast
broadcast these
these debunked
debunked claims even after
claims even after Dominion
Dominion sent
sent
notification after
notification after notification
notification toto Fox.
Fox. Indeed, nineteen
Indeed, nineteen of
of the twenty accused
the twenty accused
statements occurred
statements occurred after Dominion alerted
after Dominion alerted Fox
Fox that
that these
these wild
wild allegations were lies
allegations were lies
and pointed
and pointed Fox
Fox to
to the
the correct
correct information.
information. See,
See, infra,
infra. §§V.A,
§§V.A, V.D.
V.D.
And normally
And normally plaintiffs
plaintiffs in
in defamation cases do
defamation cases do not
not move
move for
for summary
summary
judgment of liability,
judgment of liability, let
let alone file aa 40,000-word
alone file 40,000-word opening
opening brief.
brief. Here,
Here, however,
however,
55
Dominion details
Dominion details some
some of the extensive
of the extensive record
record evidence demonstrating Fox’s
evidence demonstrating Fox’s
liability on
liability on every point—covering this
every point—covering this months-long
months-long period
period involving
involvingfourcategories
four categories
of lies
of lies in
in twenty
twenty accused
accused statements
statements across six different
across six different shows
shows with
with the
the active
active
involvement of
involvement of numerous
numerous Fox
Fox Executives.
Executives.
Dominion understands
Dominion understands and
and embraces
embraces the
the heavy
heavy burden
burden of
of plaintiffs
plaintiffs moving
moving
for summary
for summary judgment
judgment on liability inin defamation
on liability defamation cases. Here, however,
cases. Here, the facts
however, the facts
demonstrate why
demonstrate why no
no reasonable
reasonable juror could find
juror could find in
in Fox’s
Fox’s favor
favor on
on each
cach element
element of
of
Dominions defamation
Dominion’s defamation claim.
claim.
First, falsity.
First, falsity. Fox
Fox broadcast
broadcast false
false information.
information. These
These lies
lies fall
fall into
into four
four
categories, each
categories, each provably
provably false
false atat the
the time.
time. Fox
Fox falsely
falsely claimed:
claimed: (1)
(1) Dominion
Dominion
committed election
committed election fraud
fraud by
by rigging
rigging the
the 2020
2020 Presidential
Election. (2)
(2) Dominion’s
Dominion’s
software and
software and algorithms
algorithms manipulated
manipulated vote
vote counts
counts in
in the
the 2020
2020 Presidential
Election.
(3) Dominion
(3) Dominion isis owned by aa company
owned by founded inin Venezuela
company founded Venezuela to
to rig
rig elections for the
elections for the
dictator Hugo
dictator Hugo Chavez.
Chavez. (4)
(4) Dominion
Dominion paid
paid kickbacks
kickbacks to
to government officials who
government officials who
used its
used its machines
machines in
in the
the 2020
2020 Presidential
Election.
Numerous
Numerous public
public sources
sources and
and fact
fact checks
checks debunked
debunked thethe lies
lies
contemporancously with
contemporaneously with Fox’s
Fox’s multiple
multiple broadcasts.
broadcasts. Recount after
Recount after recount
recount
confirmed the
confirmed the accuracy
accuracy of
of the
the counts. Dominion did
counts. Dominion not pay
did not pay kickbacks.
kickbacks. Smartmatic
Smartmatic
does not
does not own Dominion, nor
own Dominion, nor was
was Dominion
Dominion formed
formed inin Venezuela
Venezuela toto rig
rig elections for
elections for
Hugo Chavez.
Hugo Chavez. All
All these
these sources—and
sources—and more—have
more—have established
established that
that Dominion
Dominion did
did
66
not participate
not participate inin some
some massive
massive criminal conspiracy. Joe
criminal conspiracy. Biden legitimately
Joe Biden legitimately won
won
the 2020
Election. And
And as
as this
this Court
Court already correctly concluded,
already correctly concluded, these
these
factual assertions
factual assertions constitute actionable non-opinion
constitute actionable non-opinion statements.
statements. If
If nothing
nothing else,
else, this
this
Court should
Court should rule
rule that
that the
the statements
statements are
are false
false and
and grant
grant partial
partial summary
summary
judgment
judgment onfalsity. No reasonable
on falsity. No reasonable juror could find
juror could find otherwise.
otherwise. See,
See, infra,
infra, pp.46-82.
pp46-82.
Second, publication
Second, about Dominion.
publication about Dominion. ItIt isis legally
legally irrelevant
irrelevant that
that many—
many—
but not
but not all—of
all—of the
the accused
accused statements
statements relate
relate to
to false
false charges
charges made
made by
by aa guest
guest and
and
not aa host.
not host. Fox
Fox isis deemed
deemed the
the “publisher”
“publisher” of every statement
of every statement those
those guests
guests aired
aired
against Dominion.
against Dominion. ItItisis aa “black-letter
“black-letter rule
rule that
that one
one who
who republishes
republishes aa libel
libel isis subject
subject
to liability
to liability just as ifif he
just as he had published itit originally,
had published originally, even
even though
though he
he attributes
auributes the
the
libelous statement
libelous statement to
to the
the original publisher, and
original publisher, and even
even though
though he expressly disavows
he expressly disavows
the
the truthof
truth of the
the statement.” Cianci v.v. New
statement.” Cianci New Times
Times Pub.
Pub. Co.,
Co., 639
639 F.2d
F.2d 54,
54, 60-61
60-61 (2d
(2d
Cir. 1980)
Cir. 1980) (citation
(citation omitted).
omitted). Moreover,
Moreover, liability
liability attaches
attaches to
to all
all those
those who
who share
share
responsibility for
responsibility for the
the decision
decision to
to publish
publish the
the statements.
statements. The
The broadcasts
broadcasts on
on their
their
face also
face also refer
refer toto Dominion
Dominion and
and connect
connect Dominion
Dominion toto the
the lies
lies and
and the
the far-fetched
far-fetched
conspiracy theories
conspiracy regarding the
theories regarding the “massive”
“massive” but
but non-existent
non-existent fraud
fraud that
that supposedly
supposedly
flipped millions
flipped millions of votes from
of votes from Trump to Biden.
Trump to Biden. See,
See, infra,
infra, pp.82-85.
pp.82-85.
Third, actual
Third, malice. Actual
actual malice. Actual malice
malice requires
requires aa showing
showing that
that those
those responsible
responsible
for the
for the publication
publication either
either knew
knew or “recklessly disregarded”
or “recklessly disregarded” the
the truth. Here, literally
truth. Here, literally
dozens of
dozens of Fox
Fox employees
employees had
had responsibility
responsibility for
for atat least
least one
one of the defamatory
of the defamatory
77
statements. Prevailing
statements. Prevailing on summary judgment
on summary requires finding
judgment requires finding that
that just one person
just one person
met the
met the required
required actual
actual malice
malice standard
standard for
for each.
each. The evidence demonstrates
The evidence demonstrates much
much
more.
more. Each person
Each person with
with responsibility
responsibility either
either knew
knew the
the truth
truth or
or recklessly
recklessly
disregarded the
disregarded the truth.
truth. Normally, aa plaintiff
Normally, plaintiff proves
proves actual
actual malice
malice through
through
circumstantial evidence
circumstantial and aa variety
evidence and variety of
of factors—such
factors—such as
as inherent
inherent improbability,
improbability,
reliance on
reliance on unreliable
unreliable sources,
sources, departure
departure from
from journalistic standards, financial
journalistic standards, financial
motive to
motive to lie,
lie, deliberately turning aa blind
deliberately turning blind eye
eye to
to contradictory evidence, adherence
contradictory evidence, adherence
toaa preconceived
to preconceived narrative,
narrative, republication
republication of
of false
false statements,
statements, or
or refusal
refusal to
to retract—
retract—
because direct
because evidence of
direct evidence of actual
actual knowledge
knowledge of falsity rarely
of falsity rarely exists.
exists.
Each circumstantial
Each circumstantial factor
factor cuts
cuts strongly
strongly inin Dominion’s
Dominion’s favor.
favor. But
But here,
here, the
the
words of
words of multiple
multiple Fox
Fox employees
employees provide
provide overwhelming
overwhelming direct
direct evidence
evidence of actual
of actual
malice. In
malice. In addition to the
addition to the evidence
evidence cited above, the
cited above, the excerpts
excerpts below
below feature
feature just some
just some
of the
of the additional
additional examples
examples showing
showing Fox
Fox employees
employees knew
knew at
at the
the time that these
time that these
claims—and the
claims—and the guests
guests promoting
promoting them—were:
them—were:
•« “ludicrous”
“ludicrous” –“Tucker Carlson, 11/20/20
Tucker Carlson, 11/20/20 (Ex.171)
(Ex.171)*2
•« “totally
“totallyoff
off the
the rails”
rails” ~Tucker Carlson, 12/24/20
–Tucker Carlson, 12/24/20 (Ex.172)
(Ex.172)
•« “F’ing
“Fling lunatics” -Sean Hannity,
lunatics” –Sean Hannity, 12/22/20
12/22/20 (Ex.122,
(Ex.122, Hannity
Hannity 321:3-14)
321:3-14)
2 Fox
2
Fox produced many text
produced many text messages
messages with
with aa date
date stamp
stamp inin “UTC”
“UTC”time. Because UTC
time. Because UTC
time is 5 hours ahead of Eastern time, any time before 5 AM UTC occurred on the
time is 5 hours ahead of Eastern time, any time before 5 AM UTC occurred on the
night before.
night before.
88
•« “nuts”
“nuts” –Dana
-Dana Perino,
Perino, 11/16/20
11/16/20 (Ex.173)
(Ex.173)
•« “complete
“complete bs” ~Producer John
bs” –Producer John Fawcett
Fawcett to
to Lou
Lou Dobbs,
Dobbs, 11/27/20
11/27/20 (Ex.174)
(Ex.174)
•« “kooky”
“kooky” –Maria
Maria Bartiromo,
Bartiromo, regarding
regarding email
email received
received from
from Powell
Powell 11/07/20
11/07/20
(Ex.98, Bartiromo
(Ex.98, Bartiromo 141:18-24)
141:18-24)
•« “MIND
“MIND BLOWI NGLY NUTS”
BLOWINGLY NUTS” Raj Shah, Fox
–Raj Shah, Fox Corporation
Corporation SVP,
SVP, 11/21/20
11/21/20
(Ex.175)
(Ex.175)
The body of
The body of the
the brief
brief provides
provides even
even more
more evidence
evidence along
along the
the same
same lines.
lines.
By the
By the time
time Fox
Fox called the election
called the election on November 7,7, numerous
on November numerous Fox
Fox employe es
employees
knew that
knew that Joe
Joe Biden
Biden had
had legitimately
legitimately prevailed
prevailed over Donald Trump
over Donald and the
Trump and the charges
charges
against Dominion
against Dominion could
could not
not be
be true.
true. As
As Fox
Fox Chief
Chief Political
Political Correspondent
Correspondent Bret
Bret
Baier stated
Baier stated on
on November
November 5,5, “There
“There is
is NO
NO evidence
evidence offraud.
of fraud. None.” Ex.176.
None.” Ex.176.
As for
As for those
those who
who claimed that they
claimed that they did
did not
not know
know atat the
the time
time whether
whether the
the
charges were
charges were true,
true, any
any reasonable
reasonable juror would find
juror would find that
that they
they acted
acted atat least
least with
with
reckless disregard
reckless disregard of the truth.
of the truth. And
And any
any cursory
cursory investigation
investigation would
would have
have quickly
quickly
revealed that
revealed that the
the charges were false.
charges were false. The unreliability
The unreliability of the sources;
of the sources; the
the
preconceived narrative
preconceived narrative of
of fraud;
fraud; the
the inherent
inherent implausibility
implausibility of
of the
the allegatio
allegations; the
ns; the
public evidence
public evidence refuting
refuting fraud
fraud prior
prior to
to November
November 88 and
and only
only growing
growing stronger
stronger
thereafter; the
thereafter; the thousan of communications
ds of
thousands communications from
from Dominion
Dominion starting
starting on November
on November
12 pointing
12 pointing to
to numerous
numerous public
public statements
statements and investigations refuting
and investigations refuting the
the charges;
charges;
EE
I; and
od the multiple Fox
the multiple Fox employees
employees (and
(and others) who
others) who
99
actually investigated
actually investigated the
the charges
charges and
and quickly
quickly concluded they were
concluded they were absurd
absurd all
all require
require
the conclusion
the conclusion that
that Fox
Fox acted,
acted, atat minimum,
minimum, with
with reckless
reckless disregard
disregard for
for the
the truth.
truth.
Indeed, multiple
Indeed, multiple Fox
Fox witnesses
witnesses called the allegations—and
called the allegations—and the
the people
people making
making
and repeating
and repeating them
them such
such as
as Sidney
Sidney Powell
Powell and
and Jeanine
Jeanine Pirro—“reckless”
Pirro—*reckless” at
at the
the time.
time.
As Tucker
As Tucker Carlson
Carlson told
told Sidney
Sidney Powell
Powell on
on November
November 17:
17: “You
“You keep
keep telling
telling our
our
viewers that
viewers that millions
millions of
of votes
votes were
were changed by the
changed by the software.
software. II hope
hope you
you will
will prove
prove
that very
that very soon.
soon. You’ve
You've convinced them that
convinced them that Trump
Trump will
will win.
win. IfIf you
you don’t
don’t have
have
conclusive evidence
conclusive evidence of
of fraud
fraud atat that
that scale,
scale, it’s
it’s aa cruel
cruel and
and reckless
reckless thing
thing to
to keep
keep
saying.” Ex.177. And

saying.” Ex.177. And on November
on November21,
21, Carlson textedI
Carlson texted _——
ME that
tht itit was
was “shockingly
“shockingly reckless” to claim
reckless” to claim that
that Dominion
Dominion rigged
rigged the
the
election “[i]f
election “[i]f there’s
there’s no
no one
one inside
inside the
the company willing to
company willing to talk,
talk, or
or internal
internal Dominion
Dominion
documents or
documents or copies
copiesofthe software showing
of the software showing that they did
that they did it”
it” and
and “as
“as you
you know
know
there isn’t.”
there isn’t.” Ex.166.
Ex.166. See,
See, infra,
infra, pp.87-161.
pp.87-161
Fourth, defamation
Fourth, defamationperse. A statement
per se. A statement isis per
perse defamatory “if
se defamatory “ifitit (1)
(1) charges
charges
the plaintiff
the plaintiff with
with aa serious
serious crime; [or] (2)
crime; [or] (2) tends
tends to
to injure
injure the
the plaintiff
plaintiff inin her
her or
or his
his
trade, business
trade, business or
or profession.”
profession.” Kasavana
Kasavana v.v. Vela,
Vela, 172
172 AD3d
AD3d 1042,
1042, 1044
1044 (2d
(2d Dept
Dept
2019). Where
2019). Where aa defendant’s
defendant’s statements
statements are
are per se defamatory,
per se defamatory, the
the plaintiff
plaintiff need
need not
not
prove damages
prove damages to
to establish
establish liability.
liability. Whether
Whether particular
particular statements
statements are
are considered
considered
defamatory per
defamatory se isis aa question
per se question of
of law.
law. Here,
Here, every statement isis per
every statement per se defamatory.
se defamatory.
10
10
They allege massive
They allege massive frauds,
frauds, criminal conspiracies, and/or
criminal conspiracies, and/or illegal
illegal kickbacks.
kickbacks. They
They
£0 to
go to the
the very
very core
core of
of Dominion’s
Dominion’s business. See, infra,
business. See, infra, pp.85-87.
pp.85-87.
Finally, no
Finally, no affirmative defense protects
affirmative defense protects Fox. Fox’s defenses
Fox. Fox’s fail on
defenses fail on the
the
merits as
merits as aa matter
matter of
of law
law even
even assuming it has
assuming it has properly
properly preserved
preserved them.
them. This
This Court
Court
addressed both
addressed both the
the neutral
neutral and fair report
and fair report privileges
privileges inin its
its Order
Order on
on Fox’s
Fox’s Motion
Motion to
to
Dismiss. Since
Dismiss. Since this
this Court's decisions in
Court’s decisions in both
both these cases, another
these cases, another court applying
court applying
New York
New York law
law has
has allowed
allowed claims
claims based
based on
on the
the accused
accused December
December 10
10 broadcast
broadcast here
here
and rejected
and rejected application
application of
of the
the neutral
neutral and
andfair report privileges.
fair report privileges. Khalil
Khalil v.v. Fox
Fox Corp.,
Corp.,
2022 WL
2022 WL 4467622 at *4-*10
4467622 at *4-*10 (S.D.N.Y.
(S.D.N.Y. Sep.
Sep. 26,
26,2022). See, infra,
2022). See, infra, pp.161-176.
pp.161-176.
With respect
With to the
respect to the fair
fair report
report privilege,
privilege, this
this Court
Court previously
previously held
held that
that itit “is
“is
not triggered
not triggered unless
unless the
the report
report comments
comments on
on aa proceeding.” FNN MTD
proceeding.” FNN MTD Order,
Order, p.45
p.43
(quoting Cholowsky
(quoting Civileti, 69
Cholowsky v.v. Civiletti, 110, 114
AD3d 110,
69 AD3d Dept 2009))
(2d Dept
114 (2d up).
(cleaned up).
2009) (cleaned
“If context
“If indicates that
context indicates that aa challenged
challenged portion
portion of
of aa publication
publication focuses
focuses exclusively
exclusively
on underlying
on underlying events, rather than
events, rather than an
an official proceeding relating
official proceeding relating toto those
those events,
events, that
that
portion isis insufficiently
portion insufficiently connected
connected to
to the
the proceeding
proceeding to
to constitute
constitute aa report
report of
of that
that
proceeding.” Fine
proceeding.” Fine v.v. ESPN,
ESPN, Inc.,
Inc.. 11
11 F.
F. Supp.
Supp. 3d
3d 209,
209, 217
217 (N.DN.Y. 2014). Here
(N.D.N.Y. 2014). Here
the broadcasts
the broadcasts refer
refer to
to underlying
underlying events—i.e.,
events—i.c., fraud;
fraud; vote-flipping;
vote-flipping; ownership;
ownership;
kickbacks—and not
kickbacks—and not any
any official proceeding. This
official proceeding. This Court previously recognized
Court previously recognized that
that
the privilege
the privilege does
does not
not apply
apply to
to those
those statements made before
statements made before Sidney
Sidney Powell
Powell filed
filed her
her
first lawsuit
first lawsuit on November 25.
on November 25. FNN
FNN MTD
MTD Order,
Order, p.46.
p46. And
And of the five
of the five statements
statements
1
11
that occurred
that occurred during the pendency
during the pendency of
of Powell’s
Powell's suits,
suits, no
no reasonable
reasonable juror
juror could find
could find
that they
that they were
were true
true and fair reports
and fair reports of
of an
an official
official proceeding.
proceeding,
With respect
With respect to
to the
the neutral
neutral report
report privilege
privilege (or
(or “newsworthiness,”
“newsworthiness,” as
as Fox
Fox also
also
has termed
has termed it),
it), no
no such
such privilege
privilege exists
exists under
under New
New York
York law
law or
or the
the First
First Amendment.
Amendment.
This Court
This Court “question[ed] whether Fox
“question[ed] whether Fox can
can raise
raise neutral
neutral reportage
reportage doctrine
doctrine or
or
analogous newsworthiness
analogous newsworthiness privilege
privilege as
as an
an absolute
absolute defense”
defense” under
under New
New York
York law.
law.
FNN MTD
FNN MTD Order, pp.41-42. ItIt cannot.
Order, pp.41-42. cannot. And
And evenifthe privilege applied,
even if the privilege applied, Fox
Fox cannot
cannot
meet its
meet its requirements.
requirements. The
The neutral
neutral report
report privilege
privilege cannot apply ifif the
cannot apply the publisher
publisher
endorses or
endorses or distorts
distorts the
the charges
charges or
or otherwise
otherwise fails
fails to
to provide
provide “accurate
“accurate and
and
disinterested reporting.”
disinterested reporting” Edwards
Edwards v.v. Nat’l
Nat'l Audubon
Audubon Soc.,
Soc., Inc.,
Inc., 556
556 F.2d
F.2d 113,
113, 120
120
(2d Cir.
(2d Cir. 1977).
1977). Here,
Here, an
an examination
examination of
of the
the transcripts
transcripts shows
shows the
the exact
exact opposite of
opposite of
aa neutral
neutral report,
report, and
and no
no reasonable
juror could find otherwise. Fox admits
otherwise. Fox admits “shows
“shows
like Dobbs,
like Dobbs, Hannity,
Hannity, etc.”
etc.” did
did not
not “challenge
“challenge the
the narrative”
narrative” that
that Dominion
Dominion was
was
“responsible for
“responsible for switching
switching votes
votes and/or
and/or producing
producing inaccurate
inaccurate results.”
results.” Ex.178.
Ex.178.
Moreover, as
Moreover, as SVP
SVP for
for Primetime
Programming Meade
Meade Cooper
Cooper recognized,
recognized, “there
“there
are ways
are ways to
to cover
cover the
the allegations
allegations without
without giving
giving aa platform
platform to
to the
the people
people spewing
spewing
lies.” Ex.108,
lies.” Ex.108, Cooper 284:22-25. |
Cooper 284:22-25.
EE
EE
I Exactly.
ocly.
12
12
***
Broadcasters make
Broadcasters make choices
choices about
about what
what to
to air.
air. While
While that
that platform
platform comes
comes with
with
tremendous power,
tremendous power, itit also
also carries an obligation
carries an obligation toto tell
tell the
the truth.
truth. Fox,
Fox, “oneofthe
“one of the
most influential
most influential news
news properties
properties in
in history,”
history,” Ex.128,
Ex.128, Lowell
Lowell 30(b)(6)
30(b)(6) 624:20-25,
624:20-25,
decided to
decided to use
use its
its megaphone
megaphone to
to spread
spread falsehoods.
falsehoods. ItIt deceived millionsofpeople.
deceived millions of people.
‘The First Amendment

The First Amendment not
not only
only allows defamation claims
allows defamation claims inin these instances, New
these instances, New
York Times
York Times v.v. Sullivan and its
Sullivan and its progeny
progeny make
make clear that aa broadcaster
clear that broadcaster does
does not
not have
have
an unfettered
an unfettered license
license to lie. When
to lie. When Rupert
Rupert Murdoch
Murdoch asked
asked Suzanne
Suzanne Scott
Scott whether
whether itit
was “unarguable
was “unarguable that
that high-profile Fox voices
high-profile Fox voices fed
fed the
the story
story that the election
that the was
election was
stolen
stolen and
and that
that January
January 66 an
an important chance toto have
important chance have the
the results
results overturned,”
overturned,”
Fox executives
Fox executives responded
responded with
with 50examples—including broadcasts accused
50 examples—including broadcasts accused here.
here.
Ex.179 atat FNN019_03736521.

Ex.179 FNNO19_03736521.
Fox knew
Fox knew the
the truth.
truth. It knew
It knew the
the allegations
allegations against
against Dominion
Dominion were
were
“outlandish” and
“outlandish” and “crazy”
“crazy” and
and “ludicrous”
“ludicrous” and
and “nuts.”
“nuts.” Yet
Yet itit used
used the
the power
power and
and
influence of
influence of its
its platform
platform to
to promote
promote that false story.
that false story. Fox
Fox knew
knew better.
better. As
As Rupert
Rupert
Murdoch told
Murdoch told Suzanne
Suzanne Scott
Scott inin the
the aftermath of January
aftermath of January 6,
6, “All
“All very
very well
well for
for Sean
Sean
to tell
to tell you
you he
he was
was in
in despair about Trump
despair about Trump but
but what
what did he tell
did he tell his
his viewers?”
viewers?” Ex.180.
Ex. 180.
When Rupert
When Rupert Murdoch
Murdoch watched
watched Rudy
Rudy Giuliani
Giuliani and
and Sidney
Sidney Powell
Powell spew
spew their
their lies
lies on
on
November 19,
November 19, he
he told
told Suzanne
Suzanne Scott:
Scott: “Terrible stuff damaging
“Terrible stuff damaging everybody,
everybody, II fear.”
fear.”
Scott concurred:
Scott concurred: “yes
“yes Sean
Sean and
and even
even Pirro
Pirro agrees.” Ex.I81. Instead
agrees.” Ex.181. Instead of
ofcalling
calling out
out
13
13
the truth,
the truth, however, Fox continued
however, Fox to “damage
continued to “damage everybody”—not
everybody”—not only
only continuing
continuing to
to
invite these
invite these guests
guests onto
onto its
its shows
shows but
but endorsing
endorsing these
these lies.
lies. Fox
Fox duped its audience.
duped its audience.
And Dominion
And Dominion paid
paid the
the price.
price.
FACTUAL BACKGROUND
FACTUAL BACKGROUND
Bartiromo: Sidney,
Bartiromo: Sidney, we
we talked
talked about the Dominion
about the Dominion software.
software. II know
know that
that there
there
were voting irregularities. Tell me about that.
were voting irregularities. Tell me about that.
Powell: That’s
Powell: That's putting
putting itit mildly.
mildly. TheThe computer
computer glitches could not
glitches could not and
and should
should
not have
not have happened
happened atat all.
all. That
That isis where
where the
the fraud
fraud took
took place,
place, where
where they
they were
were
flipping votes
flipping votes in
in the
the computer
computer system
system oror adding
adding votes
votes that
that did
did not
not exist.
exist.
179).
¶179(a).3
When Maria
When Maria Bartiromo
Bartiromo interviewed
interviewed Sidney
Sidney Powell
Powell on
on November
November 8,
8, 2020,
2020, Fox
Fox
placed Dominion
placed Dominion atat the
the center
center of
of aa wide-ranging
wide-ranging and inherently implausible
and inherently implausible
conspiracy theory
conspiracy theory designed to perpetuate
designed to perpetuate the
the “myth” that Donald
“myth” that Donald Trump—and
Trump—and not
not
Joe Biden—legitimately won
Joe Biden—legitimately won the
the 2020
2020 Presidential
Election. See
See Ex.182.
Ex.182. As
As Rupert
Rupert
Murdoch and
Murdoch and Suzanne
Suzanne Scott
Scott recognized
recognized on
on November 6, 2020,
November 6, 2020, itit was
was “very
“very hard
hard to
to
credibly cry
credibly cry foul
foul everywhere”
everywhere” with
with Trump
Trump losing
losing multiple
multiple swing
swing states.
states. Ex.151.
Ex.151.
Conveniently for
Conveniently for conspiracy
conspiracy theorists,
theorists, however,
however, Dominion
Dominion operated
operated in
in many
many (but
(but
3
This Brief cites
This Brief to accused
cites to accused broadcasts
broadcasts asas ¶179(#),
f179(#. referring
refering toto sub-sections
sub-scctions of
of
Paragraph 179
Paragraph 179 of
of Dominion’s
Dominion’s Complaint
Complaint against Fox News
against Fox News Network,
Network, LLC
LLC (the
(the
“Complaint”). Appendix
“Complaint”). Appendix BB to
to this
this Brief
Brief identifies
identifies exhibits
exhibits corresponding
corresponding to to each
each
accused broadcast’s
accused broadcast’s transcript
transcript and
and video.
video. Dominion
Dominion relies
relies onon its
its certified
certified
transcriptions, though
transcriptions, though Appendix
Appendix BB identifies
identifies exhibit
exhibit references
references for
for both
both parties’
parties”
transcripts.
transcripts.
14
14
not all)
not all) of these jurisdictions.
of these jurisdictions. Dominion became
Dominion became the
the connective
connective thread in aa
thread in
prefabricated election
prefabricated election fraud
fraud story
story that
that needed
needed aa villain.
villain. Fox,
Fox, the
the highest-rated
highest-rated cable
cable
news channel
news in America,
channel in America, chose
chose to
to legitimize,
legitimize, endorse,
endorse, and broadcast these
and broadcast false
these false
claims into
claims into millions
millions of
of American
American homes.*
homes.4
A.
A. Dominion Voting
Dominion Voting Systems
Systems
Dominion CEO
Dominion CEO John Poulos founded
John Poulos founded aa voting
voting technology
technology business
business in
in Toronto
Toronto
and incorporated
and incorporated itit in
in 2003
2003 in
in Ontario
Ontario as
as Dominion
Dominion Voting
Voting Systems
Systems Corporation.
Corporation.
Ex.183, Poulos
Ex.183, Poulos Aff.,
Aff., ¶2;
42: Ex.184.
Ex.184. Dominion
Dominion developed
developed voting
voting technology
technology designed
designed
to generate
to generate an
an auditable, paper record
auditable, paper record backup.
backup. Ex.183,
Ex.183, Poulos
Poulos Aff.,
Aff., 3; Ex.138,
¶3; Ex.138,
Poulos 30(b)(6)
Poulos 30(b)(6) 638:3-10.
638:3-10. Dominion’s
Dominion’s voting
voting technology
technology has
has been
been certified
certified under
under
standards promulgated
standards promulgated by
by the
the U.S.
U.S. Election
Election Assistance
Assistance Commission
Commission (“EAC”),
(“EAC”), and
and
reviewed and
reviewed and tested
tested by
by independent
independent testing
testing laboratories
laboratories accredited
accredited by
by the
the EAC
EAC
(“VSTLs”). Ex.185
(“VSTLs”). Ex.185 atat p.2;
p.2; Ex.186,
Ex.186, Hovland
Hovland Decl.,
Decl., ¶¶18-32
1418-32 &
& Exs.A-P.
Exs.A-P.
By the
By the end
end of
of 2009,
2009, Dominion
Dominion had
had entered
entered into
into its
its first
first contract
contract to
to provide
provide
voting technology
voting technology in
in the
the U.S.
U.S. market
market and
and had
had incorporated
incorporated aa subsidiary,
subsidiary, Dominion
Dominion
Voting Systems,
Voting Systems, Inc.,
Inc., inin Delaware.
Delaware. Ex.183,
Ex.183, Poulos
Poulos Aff.,
Aff. $4; Ex.187. Today,
¶4; Ex.187. Today,
Dominion’s headquarters
Dominion’s headquarters isis inin Denver,
Denver, Colorado.
Colorado. Ex.188;
Ex.188; Ex.183,
Ex.183, Poulos
Poulos Aff.,
Aff., 6.
¶6.
Dominion’ majority
Dominion’s majority owner
owner isis aa U.S.-based
U.S.-based private
private equity firm Staple
equity firm Staple Street
Street Capital,
Capital,
+4 Appendix
Appendix CC identifies
identifies by
by name
name and
and title
titleceach
ach individual
individual mentioned
mentioned in
in this
this brief.
brief.
15
15
and Mr.
and Mr. Poulos
Poulos retains
retains approximately
approximately aa 12%
12% stake
stake inin the
the company.
company. Ex.439.
Ex.439.
Dominion’s business
Dominion’s business isis organized
organized as
as U.S.
U.S. Dominion,
Dominion, Inc.,
Inc., aa Delaware
Delaware corporation,
corporation,
and its
and its two
two wholly
wholly owned
owned subsidiaries,
subsidiaries, Dominion
Dominion Voting
Voting Systems, Inc. and
Systems, Inc. and
Dominion Voting
Dominion Voting Systems
Systems Corporation
Corporation (collectively
(collectively “Dominion”).
“Dominion”). Ex.188
Ex.188
(Georgia proposal,
(Georgia proposal, Section
Section 1),
1), p.1;
p.1; Ex.183,
Ex.183, Poulos
Poulos Aff.,
Aff., 15.
¶5.
In the
In the 2020
2020 Presidential
Presidential Election,
Election, Dominion
Dominion served
served customers
customers (typically
(typically
counties) within
counties) within 28 states and
28 states and Puerto
Puerto Rico.
Rico. Ex.183,
Ex.183, Poulos
Poulos Aff.,
Aff., ¶7;
17; Ex.189
Ex.189 atat
FNNO0S_00026258. The
FNN008_00026258. 2020 Presidential
The 2020 Presidential Election
Election received
received praise
praise as
as “the
“the most
most
secure inin American
secure American history.”
history.” Ex.190.
Ex.190. But
But the
the election’s
election’s success
success turned
tumed into
into aa
nightmare as
nightmare as Fox
Fox gave
gave wide
wide prominence
prominence to
to the
the lies
lies and
and false
false claims of fraud
claims of fraud against
against
Dominion inin twenty
Dominion twenty defamatory
defamatory broadcasts
broadcasts spanning
spanning from
from November
November 8,8, 2020
2020 until
until
January 26,2021.
January 26, 2021.
B.
B. Prior to
Prior to Election
Election Day:
Day: Setting
Setting Up
Up the False Narrative
the False Narrative of
of Fraud.
Fraud.
Before the
Before the 2020
2020 Presidential
Election, Donald
Donald Trump made clear
Trump made he would
clear he would
claim fraud
claim fraud ifif he
he lost.
lost. In
In the
the words
wordsof Chris Stirewalt,
of Chris Stirewalt, Fox’s
Fox’s Politics
Politics Editor
Editor during
during
the relevant
the relevant timeframe:
timeframe: “Long before” the
“Long before” the election,
election, Trump
Trump “started
“started making
making the
the claim
claim
that the
that the only
only way
way that
that he
he could
could lose
lose the
the election
election was
was by
by fraud,
fraud, or
or that
that the only way
the only way
that he
that he would
would not
not prevail
prevail would
would be
be ifif itit was
was stolen.
stolen. He
He had
had laid
laid that
that predicate
predicate down
down
throughout the
throughout the spring
spring and
and into
into the
the summer.
summer. And
And itit was
was very
very well-known
well-known and
and
understood by
understood by everybody
everybody inin the
the business
business that
that this
this was
was the
the gambit that he
gambit that was
he was
16
16
making.” Ex.146,
making.” Ex.146, Stirewalt
Stirewalt 16:2-15
16:2-15 (cleaned
(cleaned up);
up); see
see also id. 28:23-29:4.
also id. 28:23-29:4. Others
Others
testified likewise.
testified likewise. See
See Ex.106,
Ex.106, Clark
Clark 141:21-142:1;
141:21-142:1; Ex.108,
Ex. 108, Cooper
Cooper 116:10-20.
116:10-20. In
In
short, Trump
short, was “very
Trump was explicit inin terms
“very explicit terms of
of laying
laying down this preconceived
down this preconceived narrative
narrative
that there
that there would
would be
be fraud
fraud inin the
the election.”
election.” Ex.146,
Ex.146, Stirewalt
Stirewalt 123:3-18.
123:3-18.
Also prior
Also prior to
to the
the 2020
2020 Presidential
Election, itit was
was well
well known
known that
that because
because
of COVID concerns,
of COVID concerns, the
the election
election would
would feature
feature an
an unusually
unusually large
large number
number of
of mail-
mail-
in ballots.
in ballots. And
And because
because of
ofpartisan differences in
partisan differences in who
who cast
cast mail-in
mail-in ballots
ballots and
and when
when
states counted
states counted those
those votes,
votes, the
the early leader after
early leader after polls
polls closed
closed would
would not
not necessarily
necessarily
reflect the
reflect the eventual
eventual winner.
winner. Again,
Again, Chris
Chris Stirewalt:
Stirewalt: “[E]lection
“[E]lection day
day votes
votes are
are going
going
to skew
to skew heavily
heavily Republican.
Republican. Early
Early and
and absentee
absentee votes
votes are
are going
going toto skew
skew heavily
heavily
Democratic. IfIf you
Democratic. you stretch
stretch out the period
out the period of
of time
time over
over which
which that’s
that’s going
going to
to be
be
counted, it’s
counted, it’s going
going to
to create
create aa false—it
false—it could
could tend
tend to
to create
create aa false
false impression
impression about
about
the direction
the direction that
that the
the election
election was
was going
going toto go
go overall.”
overall.” Id.
Id. 20:17-25.
20:17-25. “[P]olitical
“{Plolitical
professionals and
professionals and political
political journalists” including those
journalists”—including those atat Fox—“universally
Fox—universally
understood” this
understood” this phenomenon,
phenomenon, also
also termed
termed the
the “red
“red mirage”
mirage” and
and the
the “blue
“blue shift.”
shift.” Id.
Id.
21:6-12. Fox
21:6-12. Fox Executive
Executive David
David Clark
Clark confirmed
confirmed itit was
was “widely
“widely understood”
understood” that
that
‘mail-in balloting
mail-in balloting “would
“would lead
lead to
to aa shift
shift inin the
the final
final vote
vote tally.”
tally.” Ex.106,
Ex.106, Clark
Clark 142:11-
142:11-
143:
143:1.
EE
EE
17
17
EE
EE
I
C.
C. Fox's Election
Fox’s Election Day
Day Coverage
Coverage and
and Backlash.
Backlash.
On election
On election day,
day, Fox
Fox was
was the
the first
first outlet
outlet to
to call
call Arizona
Arizona for
for Biden—a
Biden—a call that
call that
infuriated viewers,
infuriated viewers, conservative
conservative activists,
activists, and
and the
the White
White House.
House. Within
Within minutes
minutes of
of
the 11:20
the 11:20 pm
pm Arizona
Arizona call,
call, Fox
Fox News’
News’ SVP
SVP and
and Managing
Managing Editor
Editor of
of the
the Washington
Washington
Bureau Bill
Bureau Bill Sammon
Sammon received
received an
an angry
angry text
text from
from aa member
member of
of Trump’s
Trump's team
team
claiming itit was
claiming was “WAY
“WAY too
too soon
soon toto be
be calling
calling Arizona.”
Arizona.” Ex.192;
Ex.192; Ex.140,
Ex.140, Sammon
Sammon
107:8-108:11. Minutes
107:8-108:11. Minutes later
later Sammon
Sammon received
received aa similarly
similarly angry
angry phone
phone call
call from
from
White House
White House Chief
ChiefofStaff Mark Meadows.
of Staff Mark Meadows. Ex.140,
Ex.140, Sammon
Sammon 108:12-110:4.
108:12-110:4,
And itit was
And was not
not just the White
just the White House.
House. Other
Other viewers
viewers were
were livid.
livid. Within
Within an
an
hour of
hour Fox calling
of Fox calling Arizona,
Arizona, inin early
early morning
morning on November 4,4, Suzanne
on November Suzanne Scott
Scott
forwarded Jay
forwarded Jay Wallace
Wallace an
an email from Fox
email from Fox Corporation
Corporation Executive
Executive Raj
Raj Shah noting
Shah noting
“Lots of
“Lots of conservative
conservative criticism
criticism of
of the
the AZ
AZ call,”
call.” Ex.193;
Ex.193; see
see also
also Ex.194.
Ex.194. Fox’s
Fox's
senior executives
senior discussed the
executives discussed the heavy
heavy backlash
backlash from
from the
the Arizona
Arizona call
call atat their
their daily
daily
editorial meeting
editorial meeting that
that morning.
morning. Ex.126,
Ex.126, Komissaroff
Komissaroff 121:25-123:16.
121:25-123:16. On
On November
November
5, Fox’s
5, Fox’sChief White House
Chief White House Correspondent
Correspondent told
told Sammon
Sammon and
and FNC
FNC President
President Jay
Jay
Wallace, “we
Wallace, “we are
are taking
taking major
major heat
heat over
over the
the AZ
AZ call…Our
call...Our viewers
viewers are
are also
also chanting
chanting
“Fox News
‘Fox News sucks’,
sucks’, something
something II have
have never
never heard
heard before.”
before.” Ex.195;
Ex.195; see
see also Ex.196;
also Ex.196;
18
18
Ex.197; Ex.198
Ex.197; Ex.198 (internal
(internal Fox
Fox emails
emails stating
stating “Holy
“Holy cow,
cow, our
our audience
audience isis mad
mad at
at the
the
network,” and
network,” and “They're FURIOUS”); Ex.126,
“They’re FURIOUS”); Ex.126, Komissaroff
Komissaroff 121:25-122:9;
121:25-122:9; Ex.147,
Ex.147,
Wallace 113:3-13.
Wallace 113:3-13.
The backlash was so strong that EEG
EE
1
I
Fox Hosts
Fox Hosts Tucker
Tucker Carlson,
Carlson, Laura
Laura Ingraham,
Ingraham, and Sean Hannity
and Sean Hannity immediately
immediately
understood the
understood the threat
threat to
to them
them personally.
personally. Carlson
Carlson wrote
wrote his
his producer
producer Alex
Alex Pfeiffer
Pfeiffer
on November
on November 5:
5: “We
“We worked
worked really
really hard
hard to
to build
build what
what we
we have.
have. Those
Those fuckers
fuckers are
are
destroying our
destroying credibility. ItIt enrages
our credibility. enrages me.”
me.” Ex.199
Ex.199 at
at FNN035_03890623.
FNN035_03890623. He
He added
added
that he
that he had
had spoken
spoken with
with “Laura
“Laura and
and [S]ean
[Slean aa minute
minute ago”
ago” and
and they
they are
are “highly
“highly
upset.” Id.
upset.” Id. atat FNN035_03890624.
FNN035_03890624. Carlson
Carlson noted:
noted: “At
“At this
this point
point we’re
we're getting
getting hurt
hurt
no matter
no matter what.”
what.” Id.
Id. atat FNN035_03890625.
FNN035_03890625. Pfeiffer
Pfeiffer responded:
responded: “It’s
“It’s aa hard
hard needle
needle
to thread,
to thread, but
but II really
really think
think many
many on
on ‘our
‘our side’
side” are
are being
being reckless
reckless demagogues right
demagogues right
now.” Id.
now.” Id. Tucker
Tucker replied:
replied: “Of
“Ofcourse they are.
course they are. We’re
We're not
not going
going to
to follow
follow them.”
them.”
Id. And
Id. And he
he added:
added: “What
“What [Trump]’s
[Trump]’s good
good atat isis destroying
destroying things.
things. He's the
He’s the
undisputed world
undisputed world champion of that.
champion of that. He
He could
could easily
easily destroy us ififwe
destroy us play itit wrong.”
we play wrong.”
Id. at
Id. at FNN035_03890626.
FNNO35_03890626.
19
19
Hannity faced
Hannity faced aa similar
similar dilemma.
dilemma. On November 5,
On November 5, Hannity
Hannity told
told his
his audience
audience
that “it
that will be
“it will be impossible
impossible to
to ever
ever know
know the
the true,
true, fair,
fair, accurate
accurate election
election results,
results, that’s
that’s
aa fact.”
fact” Ex.200.
Ex.200. Producer
Producer Robert
Robert Samuel
Samuel told
told the
the team:
team: “My
“My two
two cents—gotta be
cents—gotta be
super careful
super careful on
on any allegations” since
any allegations” since people
people can say “you’re
can say “yow're pushing
pushing that
that
American democratic
American system can’t
democratic system can’t be
be trusted.
trusted. Just
Just have
have to
to be
be 1000
1000 percent
percent sure
sure and
and
very careful.”
very careful” Ex.201
Ex.201 atat FNN055_04461236.
FNNOS5_04461236.
D.
D. Election Fraud
Election Fraud Conspiracy
Conspiracy Theories Abound—and Soon
Theories Abound—and Target
Soon Target
Dominion.
Dominion.
As election
As election conspiracies
conspiracies and
and false
false claims
claims of
of fraud
fraud began
began to
to emerge
emerge in
in the
the days
days
following the
following the election,
election, Fox
Fox knew
knew the
the truth.
truth. Fox
Fox Chief
Chief Political
Political Correspondent
Correspondent Bret
Bret
Baier stated
Baier stated privately
privately on November 5:
on November 5: “There
“There isis NO evidence offraud.
NO evidence of fraud. None.
None.”
Ex.176; Ex.97,
Ex.176; Ex.97, Baier
Baier 39:3-41:1.
39:3-41:1
On November
On November 5,5, Maria
Maria Bartiromo
Bartiromo posted
posted unfounded
unfounded allegations
allegations of
of vote
vote
“dump(s]” on
“dump[s]” on social
social media.
media. Ex.204.
Ex.204. Baier
Baier alerted
alerted Sammon:
Sammon: “We
“We have
have to
to prevent
prevent
this stuff…We
this stuff... We need
need to
to fact
fact check,”
check,” Ex.205;
Ex.205; and
and separately
separately told
told Fox
Fox President
President Jay
Jay
Wallace,I
Wallace, E—
ME Ex.158
Ex.158 atat FNN051_04432225-26.
FNNOSI_04432225-26.
By November
By November 6,6, Rupert
Rupert Murdoch
Murdoch told
told Suzanne
Suzanne Scott
Scott “very
“very hard
hard toto credibly
credibly
claim foul
claim foul everywhere.” Supra, p.14
everywhere.” Supra, p.14 He
He also wrote: “if
also wrote: Trump becomes
“if Trump becomes aa sore
sore loser
loser
we should
we should watch
watch Sean
Sean especially and others
especially and others don’t sound the
don’t sound the same.”
same.” Ex.151.
Ex.151. Scoit
Scott
20
20
then forwarded
then forwarded that
that email
email to
to Meade
Meade Cooper,
Cooper, the
the EVP
EVP of
of Primetime
Programming inin
charge of
charge Hannity, Carlson,
of Hannity, Carlson, and
and Pirro
Pirro (among
(among others). Cooper agreed.
others). Cooper agreed. Ex.108,
Ex.108,
Cooper 186:4-187:5.
Cooper 186:4-187:5. Indeed,
Indeed, Cooper
Cooper testified
testified that
that as
as of
of November
November 6,6, “going
“going on
on
television toto say
television say that
that the
the election
election isis being
being stolen”
stolen” “would
“would not
not be
be based infact
based in fact at that
at that
point” Id. 194:1-6.

point.” Id. 194:1-6.
On November
On November 6,6, Sidney
Sidney Powell
Powell appeared
appeared on
on Lou
Lou Dobbs
Dobbs Tonight
Tonight and
and told
told
viewers about
viewers about an
an implausible
implausible conspiracy
conspiracy theory—not
theory—not yet
yet tied
tied to
to Dominion--
Dominion-
involving aa secret
involving secret CIA
CIA program
program called
called “Hammer
“Hammer and
andScorecard”—Hammer being aa
Scorecard”—Hammer being
government supercomputer
government supercomputer and
and Scorecard
Scorecard aa software
software program
program run
run on
on that
that computer
computer
to change
to votes—that “explains
change votes—that “explains aa lot
lot ofwhat we're seeing”
of what we’re with vote
seeing” with vote tallies.
tallies. Ex.206
Ex.206
at FNN018_02260592-93;
at FNNOI8_02260592-93; Ex.462
Ex 462 (describing
(describing allegations
allegations and
and their implausibility);
their implausibility);
see also Ex.281

see also Ex281 (debunking
(debunking theory).
theory). Immediately
Immediately after
after the
the appearance, Baier
appearance, Baier
received an
received an email
email about Hammer and
about Hammer and Scorecard
Scorecard from
from aa viewer:
viewer: “Sydney Powell just
“Sydney Powell just
broke the
broke the story
story on Dobbs.” Ex.279.
on Dobbs.” Ex.279. Baier
Baier immediately
immediately asked Fox President
asked Fox President Jay
Jay
Wallace: “What
Wallace: is this?
“What is this? Oh
Oh man.”
man.” Id.
Id.
Nearly just
Nearly just as immediate as
as immediate as election
election fraud
fraud claims
claims were
were the
the public
public statements
statements
from credible
from sources debunking
credible sources those claims.
debunking those claims. On
On November
November 66 alone,
alone, Michigan
Michigan
Secretary of
Secretary of State
State Jocelyn
Jocelyn Benson
Benson publicly
publicly stated that an
stated that an issue
issue that
that occurred in
occurred in
Antrim County
Antrim County was
was the
the result
result of
of human
human error
error by
by the
the County
County Clerk
Clerk and
and not
not fraud,
fraud,
Ex282; and
Ex.282; and Georgia Secretary of
Georgia Secretary of State
State Brad
Brad Raffensperger
Raffensperger publicly
publicly stated
stated “that
“that
21
21
every legal
every legal vote
vote was
was cast
cast and
and accurately
accurately counted.”
counted.” Ex.284,
Ex.284, p.2.
p.2. See
See also
also Ex.286;
Ex.286;
Ex287; Ex.288.
Ex.287; Ex288.
On November
On November 7,7, Fox
Fox Business
Business News
News President
President Lauren
Lauren Petterson
Petterson and
and others
others
within Fox
within Fox received
received an
an alert
alert that
that the
the website
website 4chan
dchan was
was “call[ing]
“calling] on
on users
users toto spread”
spread”
conspiracy theories
conspiracy theories about
about Dominion’s
Dominions supposed
supposed involvement
involvement in
in the
the fraud.
fraud. Ex.285.
Ex.285.
Also on
Also on November
November 7,7, the New York
the New York Post—controlled
Post—controlled by the Murdoch
by the Murdoch
family—wrote an
family—wrote an editorial
editorial asking
asking Trump to “stop
Trump to “stop the
the ‘stolen
‘stolen election’ rhetoric” and
election’ rhetoric” and
“[glet Rudy
“[g]et Rudy Giuliani
Giuliani off
off TV.”
TV.” Ex.289,
Ex289, pp.1,
pp.1, 4.
4.
I. Scott
Sc! made
mad sure
sure
that the
that the editorial
editorial received
received wide
wide distribution. Ex.200-291. Murdoch
distribution. Ex.290-291. Murdoch thanked
thanked her
her for
for
doing so.
doing so. Ex.290
Ex.290 atat FoxCorp00056537.
FoxCorp00056537.
During this
During this November
November 44 toto November
November 77 timeframe,
timeframe, Fox
Fox made
made atat least
least some
some
effort to
effort to prevent
prevent false
false charges
charges from
from spreading.
spreading. On
On November
November 6—after
6—after Cooper
Cooper
received the
received the forwarded
forwarded email
email from
from Rupert
Rupert Murdoch
Murdoch stating
stating itit was
was “very
“very hard
hard toto
credibly cry
credibly cry foul”
foul” and
and warning
warning of
of Trump
Trump becoming
becoming aa “sore loser,” Ex.151—Cooper
“sore loser,” Ex.151—Cooper
and Fox
and Fox Executive
Executive Ron
Ron Mitchell
Mitchell discussed whether their
discussed whether their primetime
primetime hosts
hosts Hannity,
Hannity,
Carlson, and
Carlson, and Ingraham
Ingraham would
would push
push false
false claims
claims of
of election
election fraud:
fraud: “I
“I feel
feel really
really good
good
about Tucker
about Tucker and Laura. II think
and Laura. think Sean
Sean will
will see
see the
the wisdom
wisdom of this track
of this track eventually,
eventually,
but even
but even this
this morning
morning he
he was
was still
still looking
looking for
for examples
examplesoffraud.” Ex.191; Ex.108,
of fraud.” Ex.191; Ex.108,
Cooper 188:6-189:4.
Cooper 188:6-189:4.
2
22
That same
That same day,
day, Cooper
Cooper and
and Executive
Executive David
David Clark
Clark cancelled
cancelled Jeanine
Jeanine Pirro’s
Pirro’s
November 77 show
November show[EEG |x.293. As
Ex.293. As
Clark told
Clark told Cooper, “Her guests
Cooper, “Her guests are
are all going to
all going to say
say the
the election
lection isis being
being stolen
stolen and
and
ifshe pushes back
if she pushes back at
at all
all itit will
will just be token.…
just be token... | EG
”|.
Id.;x.106,
Ex.106,
Clark 151:22-157:19,
Clark 151:22-157:19, 160:7-163:11.
160:7-163:11. As
As Fox
Fox producer
producer Justin Wells described,
Justin Wells described, “They
“They
took her
took her off
off cuz she was
cuz she was being
being crazy. Optics are
crazy. Optics are bad.
bad. But
But she is crazy.”
she is Ex.294 atat
crazy.” Ex.294
FNN079_04550507.
FNN079_04550507.
E.
E. Fox Calls
Fox Calls the
the Election
Election for
for Biden—and
Biden—and Mainstreams
Mainstreams the
the False
False
Narrative that
Narrative that Dominion
Dominion Rigged
Rigged the
the Election.
Election.
On November
On November 7,
7, Fox
Fox called
called the
the 2020
2020 Presidential
Presidential Election
Election for
for Biden—this
Biden—this
time carefully
time carefully waiting
waiting until
until other
other networks
networks went
went first.
first. The viewer backlash
The viewer backlash that
that Fox
Fox
Executives had
had hoped would fade, however, only
only became worse. Ex.295 (11/8/20,
Rupert Murdoch
Rupert Murdoch to
to Suzanne
Suzanne Scott,
Scott, “Getting
“Getting creamed
creamed by
by CNN!
CNN! Guess
Guess our
our viewers
viewers
don’t want
don’t want to
to watch
watch it.”).
it.”). And
And reality
reality began
began to
to set
set in.
in. Fox
Fox Senior
Senior Vice President for
Vice President for
Corporate Communications
Corporate Communications Irena
Irena Briganti
Briganti wrote
wrote on
on the
the evening
evening of
of November
November 7,
7,
“our viewers
“our viewers left
left this
this week
week after
after AZ.”
AZ” Ex.296.
Ex296. I_—S
I
I
I Carlson
C::lson also texted his
also texted his producer:
producer: “Do
“Dothe executives
the executives
23
23
understand how
understand how much
much credibility
credibility and
and trust
trust we’ve
we've lost
lost with
with our
our audience?
audience? We’re
We're
playing with
playing with fire,
fire, for
for real....an
real....an alternative
alternative like
like newsmax
newsmax could be devastating
could be devastating toto us.”
us.”
Ex.298. Carlson
Ex.298. Carlson agreed.
agreed. Id.
Id.
Enter Maria
Enter Maria Bartiromo.
Bartiromo. On
On Sunday
Sunday November
November 8,8, Bartiromo
Bartiromo hosted
hosted Sidney
Sidney
Powell on
Powell Sunday Morning
on Sunday Morning Futures
Futures where
where Powell
Powell claimed
claimed that
that Dominion’s
Dominion’ software
software
had an
had an “algorithm”
“algorithm” used
used as
as part
part of
ofaa “massive
“massive and coordinated effort
and coordinated effort toto steal
steal this
this
election” from
election” from Trump.
Trump. ¶179(a).
§179(a). Bartiromo
Bartiromo told
told Powell,
Powell, “I
“I know
know that
that there
there were
were
voting irregularities.
voting irregularities. Tell me about
Tell me about that.”
that.” Id.
Id.
Bartiromo knew
Bartiromo knew Powell
Powell would
would respond
respond with
with conspiracy
conspiracy theories
theories about
about
Dominion. On
Dominion. On November
November 7,
7, Bartiromo
Bartiromo had
had interviewed
interviewed Powell,
Powell, I
EE
yon [i]s
I Everyone (ils excluding me
excluding me
from meetings.”
from meetings.” Ex.207.
Ex.207. [1EN
EE
EE .
What was
What was the
the evidence
evidence for
for these
these far-fetched
far-fetched claims
claims that
that Powell
Powell sent
sent toto
Bartiromo the
Bartiromo the day
day before
before the
the broadcast?
broadcast? An
An email
email entitled
entitled “Election
“Election Fraud
Fraud Info”
Info”
Powell had
Powell had received
received from
from aa “source”
“source” which
which the
the author
author herself describes as
herself describes as “pretty
“pretty
FNNOO1_0000009-11. This
wackadoodle.” Ex.154 at FNN001_0000009-11. This email—also received by
Dobbs—alleged Dominion
Dobbs—alleged Dominion was
was the
the “one
“one common
common thread”
thread” inin the
the “voting
“voting
24
24
irregularities in
irregularities in aa number
number of
of states.”
states” Ex.I54 atat FNN001_00000009;
Ex.154 FNNOOI_00000009; Ex.98,
Ex.98,
Bartiromo 123:19-134:13.
Bartiromo 123:19-134:13. In
In addition
addition to
to promoting lies about
promoting lies about Dominion,
Dominion, the
the sender
sender
claimed that
claimed that Justice
Justice Scalia
Scalia “was
“was purposefully
purposefully killed
killed atat the
the annual
annual Bohemian
Bohemian Grove
Grove
camp...during aa weeklong
camp…during weeklong human
human hunting
hunting expedition,”
expedition,” and
and that
that former
former Fox
Fox News
News
CEO Roger
CEO Roger Ailes (who died
Ailes (who died inin 2017)
2017) and
and Rupert
Rupert Murdoch
Murdoch “secretly
“secretly huddle
huddle most
most
days to
days to determine how best
determine how best to
to portray
portray Mr.
Mr. Trump as badly
Trump as badly as
as possible.”
possible.” Ex.154
Ex.154 atat
FNN001_00000010. The
FNN001_00000010. The author
author continued: “Who am
continued: “Who 1? And
am I? And how
how do
do II know
know all
all of
of
this?...I've had
this?…I’ve had the
the strangest dreams since
strangest dreams since II was
was aa little
little girl….I
girl...I was
was internally
internally
decapitated, and
decapitated, and yet,
yet, II live….The
live....The Wind
Wind tells
tells me
me I’m
I'm aa ghost,
ghost, but
but II don’t
don’t believe
believe it.”
it.”
Id. atat FNN001_00000011;
Id. FNNOO1_0000001 1; Ex.98,
Ex.98, Bartiromo
Bartiromo 133:25-134:13.
133:25-134:13. The full force
The full force of the
of the
email’s lunacy
email’s lunacy comes
comes across
across by reading itit inin its
by reading its entirety.
entirety. Ex.154.
Ex.154.
Bartiromo agreed
Bartiromo agreed atat her
her deposition that this
deposition that this email
email was
was “nonsense.” id. 134:11-
“nonsense,” id. 134:11-
13, and
13, and inherently
inherently unreliable,
unreliable, id.
id. 141:18-24.
141:18-24. Yet
Yet Bartiromo
Bartiromo (and
(and Dobbs)
Dobbs) never
never
reported on
reported on the
the existence
existence of
of this email. Nor
this email. Nor did Bartiromo tell
did Bartiromo tell her
her viewers
viewers about
about the
the
source of
source Powell's claims
of Powell’s claims or
or that
that Trump’s
Trump's own Senior Advisor
own Senior Advisor and son-in-law
and son-in-law
rejected the
rejected the allegations
allegations as
as conspiracy theories. While
conspiracy theories. While the
the claims were laughable
claims were laughable on
on
their face,
their face, Bartiromo
Bartiromo gave them credibility.
gave them As Tucker
credibility. As Carlson texted
Tucker Carlson texted that
that night,
night,
“[tJhe software
“[t]he software shit
shit isis absurd.…Half
absurd... Half our
our viewers
viewers have
have seen
seen the
the Maria
Maria clip.”
clip.” Ex.169
Ex.169
at FNN035_03890644.
at FNN035_03890644.
25
25
Meanwhile, on
Meanwhile, on Monday,
Monday, November
November 9,
9, Maricopa
Maricopa County,
County, Arizona
Arizona completed
completed
its hand
its hand count
count audit
audit of
of paper
paper ballots.
ballots. ItIt showed
showed aa “100
“100 percent
percent match”
match” with
with the
the
counts from
counts from Dominion
Dominion machines.
machines. Ex.210;
Ex.210; see Ex.209 atat 2.2.
see Ex.209
F.
F. Fox Continues
Fox Continues to
to Woo Back Viewers
Woo Back and Goes
Viewers and Goes on
on “War
“War Footing”
Footing”
with Newsmax
with Newsmax
Also on
Also November 9,9, the
on November the impact
impact of
of Fox’s
Fox's Arizona
Arizona call
call became
became more
more evident
evident
to Fox
to Fox executives.
executives. Carlson told Scott
Carlson told Scott directly: “Ive never
directly: “I’ve never seen
seen aa reaction
reaction like
like this,
this,
to any
to any media
media company.
company. Kills
Kills me
me to
to watch
watch it.”
it.” Ex.211.
Ex.211. Scott
Scott immediately
immediately relayed
relayed
the email
the email toto Lachlan
Lachlan Murdoch.
Murdoch. Ex.212.
Ex212. She told Briganti
She told Briganti that
that Sammon
Sammon did not
did not
understand “the
understand impact to
“the impact to the
the brand
brand and
and the
the arrogance
arrogance in
in calling
calling AZ,”
AZ.” which
which she
she
found “astonishing”
found “astonishing” given that as
given that as aa “top
“top executive”
executive” itit was Sammon’sjob
was Sammon’s “to protect
job “to protect
the
the brand” Ex213. And
brand.” Ex.213. And on
on that
that day—*day one.” as
day—“day one,” as Scott termed it—Fox
Scott termed it—Fox
executives made
executives made an
an explicit
explicit decision
decision to
to push
push narratives
narratives to
to entice their audience
entice their audience back.
back.
Ex214 atat FoxCorp00056542.
Ex.214 FoxCorp00056542. Scott and Lachlan
Scott and Lachlan Murdoch
Murdoch exchanged texts about
exchanged texts about
the plan
the plan going
going forward:
forward: Scott:
Scott: “Viewers
“Viewers going
going through
through the
the 55 stages
stages of
of grief.
grief. It’s
It’s aa
question of
question of trust—the AZ [call]
trust—the AZ [call] was
was damaging but we
damaging but we will
will highlight
highlight our
our stars
stars and
and
plant
plant flags
flags letting the viewers
letting the viewers know we hear
know we hear them
them and
and respect
respect them.” Id. atat
them.” Id.
FoxCorp00056541. Murdoch:
FoxCorp00056541. Murdoch: “Yes.
“Yes. But
But needs
needs constant
constant rebuilding
rebuilding without
without any
any
missteps.”
missteps.” Id.
Id. Scott: “Yes
Scott: today isis day
“Yes today day one
one and it’s aa process.”
and it’s process.” Id. atat
Id.
FoxCorp00056542.
FoxCorp00056542.
26
26
Wallace likewise
Wallace likewise knew
knew viewers
viewers were
were upset
upset by
by the
the Arizona
Arizona call and discussed
call and discussed
itit with
with Scott.
Scott. Ex.147,
Ex.147, Wallace
Wallace 163:8-12,
163:8-12, 113:10-13;
113:10-13; Ex.193.
Ex.193. Scott
Scott told
told Wallace
Wallace on
on
November 11
|1|
EE
EE
_—
Fox executives
Fox also began
executives also began to
to criticize
criticize Fox
Fox hosts
hosts for
for truthful
truthful reporting.
reporting. On
On
November 9,
November 9, Fox
Fox anchor Neil Cavuto
anchor Neil Cavuto cut away from
cut away from aa White
White House
House Press
Press
Conference when
Conference when Press
Press Secretary
Secretary Kayleigh
Kayleigh McEnany
McEnany began
began making
making unsubstantiated
unsubstantiated
allegations about
allegations about election fraud. As
election fraud. As Cavuto
Cavuto told
told viewers,
viewers, “Whoa,
“Whoa, whoa,
whoa,
whoa....She’s charging
whoa.…She’s charging the
the other
other side
side as
as welcoming
welcoming fraud
fraud and
and illegal
illegal voting,
voting, unless
unless
she has
she has more
more details
details to
to back
back that
that up,
up, II can’t
can’t in
in good
good countenance
countenance continue
continue to
to show
show
you this,”
you this,” and
and “that’s
“that’s an
an explosive
explosive charge
charge to
to make.”
make.” Ex.217
Ex.217 at
at 1:05;
1:05; see
see Ex.98,
Ex.98,
Bartiromo 170:24-171:25.
Bartiromo 170:24-171:25. The brand team
The brand team led
led by
by Raj
Raj Shah
Shah atat Fox
Fox Corporation
Corporation
notified senior
notified senior Fox
Fox News
News and
and Fox
Fox Corporation
Corporation leadership
leadership of
of the
the “Brand
“Brand Threat”
Threat”
posed by
posed by Cavuto’s
Cavuto’s action.
action. Ex.218.
Ex.218. Scott
Scott wrote
wrote Wallace
Wallace and
and Briganti:
Briganti: IS
IE
I
27
27
Fox Executives
Fox Executives also
also observed
observed with
with concern
concern the
the rise
rise of
of Newsmax,
Newsmax, aa far-right
far-right
network attempting
network attempting to capitalize on
to capitalize viewer dissatisfaction
on viewer dissatisfaction with
with Fox.
Fox. Prior to
Prior to
November 8,8, Fox
November Fox Executive
Executive David
David Clark
Clark testified
testified that
that Newsmax
Newsmax was
was not
not aa credible
credible
media outlet
media outlet because
because “their
“their hosts
hosts were
were extremely
extremely one sided, ignored
one sided, ignored the
the facts,
facts, they
they
did not
did not seem
seem toto care about telling
care about telling the
the truth,
truth, they
they seemed
seemed to
to invest
invest truly
truly in
in conspiracy
conspiracy
theories versus
theories versus fact.”
fact.” Ex.106,
Ex.106, Clark
Clark 178:3-18.
178:3-18. On
On November
November 10,
10, Scott
Scott pointed
pointed
senior Fox
senior Fox executives (0 aa note
executives to note from
from analyst
analyst Kyle
Kyle Goodwin
Goodwin on
on Newsmax’s
Newsmax’s rise.
rise.
Ex220. Fox
Ex.220. Fox Executive
Executive Porter
Porter Berry
Berry responded:
responded: “Just
“Just pulled
pulled up
up [Newsmax’s]
[Newsmax’s] show-
show-
and they’re
and they're hitting
hittingCavuto... They are
Cavuto….They are just whacking us.
just whacking us. Smart
Smart on
on their
their part.” Id.
part.” Id.
Lauren Petterson
Lauren Petterson added:
added: “They
“They definitely
definitely have
have aa strategy
strategy across
across all
all shows
shows to try toto
to try
target
target and
and steal
steal our viewers.” Id.
our viewers.” Scott told
Id. Scott told Goodwin: “Keep an
Goodwin: “Keep an eye
eye and
and continue
continue
to report
to report on Newsmax.” Ex.221.
on Newsmax.” Ex221.
Also on
Also November 10,
on November 10, Scott
Scott and Wallace texted
and Wallace texted about
about the
the numbers
numbers they
they had
had
just received. Wallace:

just received. Wallace: “The
“The Newsmax
Newsmax surge
surge isis aa bit
bit troubling—truly
troubling—ruly isis an
an
alternative universe when

alternative universe whenyou watch, but
you watch, it can’t
but it can’t be
be ignored.”
ignored.” Scott:
Scott: “Yes.”
“Yes.” Ex.223
Ex.223
at FNN071_04502926.
at FNNO71_04502926. Wallace:
Wallace: “Trying
“Trying to
to get
get everyone
everyone to
to comprehend we are
comprehend we are on
on
warfooting.”
war Id.
footing.” Id.
While the
While the Executives
Executives were waking up
were waking up to
to the
the “war
“war footing”
footing” by
by November
November 10,
10,
key Fox
key Fox hosts
hosts had
had understood
understood the
the crisis immediately after
crisis immediately after Election
Election Night.
Night. On
On
November 5,5, Tucker
November Carlson texted
Tucker Carlson texted regarding
regarding election
election coverage, “We've got
coverage, “We’ve got to
to be
be
2
28
incredibly careful
incredibly careful right
right now.
now. We
We could
could get hurt.” Ex.224.
get hurt.” Ex.224. On November 7,
On November 7, David
David
Clark told
Clark told Lauren
Lauren Petterson
Petterson that
that Jeanine
Jeanine Pirro
Pirro was
was “[a]ngling
“[a]ngling for
for aa job somewhere
job somewhere
else. 100%.”
else. 100%.” Ex.225;
Ex.225; Ex.106,
Ex.106, Clark
Clark 176:16-22.
176:16-22. By
By November
November 11,
11, Sean
Sean Hannity
Hannity
recognized the
recognized the critical
critical role
role the
the Dominion
Dominion fraud
fraud narrative
narrative would
would play
play inin winning
winning back
back
viewers,|
viewers,
I
EE x26 atat FNN022_03852183.
Ex.226 FNN022_03852183
Hannity told
Hannity told Carlson
Carlson and
and Ingraham
Ingraham on
on November
November 12:
12: “In
“In one
one week
week and
and one
one
debate they
debate they destroyed
destroyed aa brand
brand that
that took
took 25
25 years to build
years to build and
and the
the damage
damage isis
incalculable.” Ex.230
incalculable.” Ex.230 atat FNN035_03890510.
FNN035_03890510. Tucker
Tucker responded:
“I’s vandalism.”
vandalism.”
Id. The
Id. The hosts
hosts also
also discussed
discussed the
the possibility
possibility of
of competition
competition toto Fox
Fox emerging.
emerging. Hannity
Hannity
told them:
told them: “[S]erious
“[S]erious $$
$$ with
with serious
serious distribution
distribution could
could be
be aa real
real problem.
problem. Imho
Imho
they need
they need to
to address
address but
but wtf
wifdo
do I| know.”
know.” Id.
Id. Tucker:
Tucker: “That
“That could
could happen.”
happen.” Id.
Id. atat
FNN035_03890511
FNN035_03890511.
As Irena
As Irena Briganti
Briganti said
said on
on November
November 12,
12, “glad
“glad the
the panic
panic button
button was
was hit
hit 22 days
days
ago” Ex.227.
ago.” Ex.227.
G.
G. “This Dominion
“This Dominion shit
shit isis going
going to
to give
give me
me aa fucking
fucking aneurysm.”
aneurysm.”
By November
By November 12,
12, Dominion
Dominion became
became aa focal
focal point
point of discussion within
of discussion within
multiple shows
multiple shows atat Fox.
Fox. Spurred
Spurred by
by the
the November
November 88 Bartiromo
Bartiromo broadcast,
broadcast, the
the wild
wild
Dominion allegations
Dominion allegations entered
entered the
the mainstream.
mainstream. That day, Ingraham’s
That day, Ingraham’s producer
producer
29
29
Tommy Firth
Tommy Firth texted
texted Ron
Ron Mitchell,
Mitchell, one of the
one of the Fox
Fox executives
executives responsible
responsible for
for
overseeing Ingraham’s
overseeing Ingraham’s show.
show. Firth
Firth bluntly
bluntly captured
captured the
the dilemma:
dilemma: “This
“This dominion
dominion
shit
shit is
is going
going to
to give
give me
me afucking
a fucking aneurysm—as many times
aneurysm—as many times as
as I’ve
I've told
told Laura
Laura it’s
it’s
bs, she
bs, she sees
sees shit
shit posters
posters and
and trump
trump tweeting
tweeting about
aboutit—
it— EG
IE EE EE EE
ME Mitchell
Mitchell responds:
responds: “This
“This isis the
the Bill
Bill Gates/microchip
Gates/microchip angle
angle to
to voter
voter fraud.”
fraud.”
Id. Firth
Id. Firth replies:
replies: NESS Id.
/d. Later
Later inin the
the day,
day, Ron
Ron checks
checks in:
in
“How's itit going
“How’s going [with]
[with] the
the kooks?”
kooks?” Id.
/d. EEG
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I Id.
Lou Dobbs
Lou Dobbs chose
chose aa different
different strategy.
strategy. That
That night—November
night—November 12—he
12—he invited
invited
Rudolph Giuliani
Rudolph Giuliani on his show.
on his show. When
When Giuliani
Giuliani spewed
spewed lies
lies about
about Dominion,
Dominion, Dobbs
Dobbs
responded: “It’s stunning…they
stunning...they have
have no
no ability
ability to
to audit meaningfully the
audit meaningfully the votes
votes that
that
are cast
are cast because
because the
the servers
servers are
are somewhere
somewhere else... This looks
else….This looks to
to me
me like
like itit isis the
the end
end
of what
of what has
has been
been aa four-and-a-half—the
four-and-a-half—the endgame to aa four-and-a-half
endgame to four-and-a-half year-long
year-long
effort to
effort to overthrow the president
overthrow the presidentofthe United States.”
of the United States.” §179(b). Dobbs continued
¶179(b). Dobbs continued
30
30
to broadcast
to broadcast these
these false
false charges
charges throughout the week
throughout the week and
and for
for nearly
nearly aa month—until
month—until
December 10.
December 10. See, infra, §V.D.2.
See, infra, §V.D.2.
Meanwhile, later
Meanwhile, later that
that night
night of
of November
November 12,
12, Ingraham
Ingraham was
was still
still texting
texting with
with
Hannity and
Hannity and Carlson.
Carlson. In
In their
their group
group text
text thread, Carlson pointed
thread, Carlson pointed Hannity
Hannity toto aa tweet
tweet
by Fox
by Fox reporter
reporter Jacqui Heinrich. Ex.230
Jacqui Heinrich. Ex.230 atat FNN035_03890511.
FNN035_03890511. Heinrich
Heinrich was
was “fact
“fact
checking” aa tweet
checking” tweet by
by Trump that mentioned
Trump that mentioned Dominion—and
Dominion—and specifically
specifically mentioned
mentioned
Hannity's and
Hannity’s and Dobbs’
Dobbs’ broadcasts
broadcasts that
that evening
evening discussing Dominion.
discussing Dominion. Ex.232;
Ex.232;
Ex231. Heinrich
Ex.231. Heinrich correctly
correctly fact-checked
fact-checked the
the tweet,
tweet, pointing
pointing out
out that
that “top election
“top election
infrastructure officials”
infrastructure officials” said
said that
that “‘There
““There isis no
no evidence
evidence that
that any
any voting
voting system
system
deleted or
deleted or lost
lost votes,
votes, changed
changed votes,
votes, or was in
or was in any
any way
way compromised.’”
compromised.” Id.;
Id.; Ex.232.
Ex.232.
Carlson told
Carlson told Hannity:
Hannity: “Please
“Please get
get her
her fired.
fired. Seriously….What
Seriously... What the
the fuck?
fuck? I’m
I'm
actually shocked…It
actually shocked. Jt needs
needs to
to stop
stop immediately,
immediately, like
like tonight. It’s measurably
tonight. It’s measurably
hurting
hurting the
the company. The stock
company. The stock price
price is
is down.
down. Not
Not aa joke” Ex230 atat
joke.” Ex.230
FNN035_03890511. Tucker
FNN035_03890511. Tucker added:
added: “I
“I just went crazy
just went crazy on
on Meade
Meade over
over it.”
it.” Id.
Id. atat
FNN035_03890512. Hannity
FNN035_03890512. Hannity said
said he
he had
had “already
“already sent
sent to
to Suzanne
Suzanne with
with aa really?”
really?”
He then
He then added:
added: “I'm
“I’m 33 strikes.
strikes. Wallace
Wallace shit
shit debate[.]
debate[.] Election
Election night
night aa disaster[.]
disaster[.]
Now this
Now this BS?
BS? Nope.
Nope. Not
Not gonna fly.Did
gonna fly. Did II mention
mention Cavuto?” d.
Cavuto?” Id.
Hannity indeed
Hannity indeed had
had discussed with Scott.
discussed with Scott. Hannity
Hannity texted
texted his
his team:
team: “I
“I just
just
dropped aa bomb.”
dropped bomb.” Ex.292
Ex.292 atat FNN055_04455643.
FNNOSS_04455643. Suzanne
Suzanne Scott
Scott received
received the
the
message. She
message. She told
told Jay
Jay Wallace
Wallace and
and Fox
Fox News’
News’ SVP
SVP for
for Corporate
Corporate Communications
Communications
31
31
Irena Briganti:
Irena Briganti: “Sean texted me—he’s
“Sean texted me—he’s standing
standing down
down on
on responding
responding but
but not
not happy
happy
about this
about this and
and doesn’t
doesn’t understand
understand how
how this
this isis allowed
allowed to
to happen
happen from
from anyone
anyone inin
news. She
news. She [Heinrich]
[Heinrich] has
has serious
serious nerve
nerve doing
doing this andifif this
this and this gets
gets picked up, viewers
picked up, viewers
are going
are going to
to be
be further
further disgusted.” Ex.233. By
disgusted.” Ex.233. By the
the next
next morning,
moming, Heinrich
Heinrich had
had
deleted her
deleted her fact-checking
fact-checking tweet.
tweet. Ex.283.
Ex.283.
H.
H. The Pressure
The Pressure on
on Fox Grows—Even As
Fox Grows—Even As Dominion
Dominion Puts
Puts Fox
Fox on
on
Notice.
Notice.
Also beginning
Also beginning on
on November
November 12,
12, 2020,
2020, Dominion
Dominion sent
sent Fox
Fox “Setting the
“Setting the
Record Straight”
Record Straight” emails
emails providing facts about
providing facts about Dominion
Dominion and
and links
links to
to public
public
information debunking
information debunking the
the lies
lies about
about Dominion.
Dominion. See, infra, §V.A.
See, infra, $V.A. Fox’s
Fox’s Corporate
Corporate
Representative, EVP
Representative, EVP and
and Managing
Managing Editor
Editor of
of News
News Tom
Tom Lowell
Lowell testified
testified that
that inin the
the
few months
few months following
following the
the election
election various
various Fox
Fox addressees
addressees received
received over
over 3,600
3,600 such
such
communications from
communications from Dominion
Dominion correcting
correcting false
false allegations
allegations and
and also
also were
were
circulated widely
circulated widely within
within Fox,
Fox, even
even to
to those
those who
who did
did not
not directly
directly receive
receive notice.
notice.
Ex.128, Lowell
Ex.128, Lowell 30(b)(6)
30(b)(6) 420:10-13;
420:10-13; 431:11-15; 544:6-21. Indeed,
431:11-15; 544:6-21. Indeed, executive David
executive David
Clark received
Clark received Dominion’s
Dominion’s fact
fact check
check so
so many
many times
times that
that on
on November
November 14
14 he
he wrote
wrote
aa colleague:
colleague: “I
“1 have
have itit tattooed
tattooed on my body
on my at this
body at this point.”
point.” Ex.106,
Ex.106, Clark
Clark 285:7-10;
285:7-10;
Ex234.
Ex.234.
In addition
In addition to
to its
its correspondence
correspondence highlighting
highlighting the
the truth, Dominion’
truth, Dominion’s
communications consultant
communications consultant Tony
Tony Fratto,
Fratto, former
former Deputy
Deputy White
White House
House Press
Press
32
32
Secretary under
Secretary under President
President George
George W.
W. Bush,
Bush, personally
personally reached
reached out
out to
to his
his contacts
contacts
among the
among the hosts
hosts and
and executives
executives atat Fox
Fox starting
starting on
on November
November 12.
12. On
On November
November 16,
16,
he wrote
he wrote Suzanne Scott and
Suzanne Scott and Jay Wallace directly:
Jay Wallace Dominion, “as
directly: Dominion, “as you
you know,
know, has
has
received aa great
received great deal
deal of
of attention
attention on
on FoxNews
FoxNews [sic]
[sic] and
and from
from the
the President.
President. An
An
enormous amount
enormous amount of
of misinformation—actually,
misinformation—actually, completely and verifiable
completely and verifiable wrong
wrong
information—is finding
information—is finding its
its way
way on-air.”
on-air.” Ex.235.
Ex.235. Fratto
Fratto offered to provide
offered to provide the
the two
two
of them
of them aa briefing
briefing about
about Dominion
Dominion and
and concluded:
concluded: “I
“I think
think this
this situation
situation isis crossing
crossing
dangerous lines.” Id.
Id. Wallace and Fratto then spoke over the phone.
phone. Ex.147,
Wallace 209:21-211:3;
Wallace 209:21-211:3; 217:12-218:6;
217:12-218:6; Ex.119,
Ex.119, Fratto
Fratto 229:24-235:22.
229:24-235:22.
After another
After another Lou
Lou Dobbs
Dobbs broadcast
broadcast that
that same
same night,
night, Fratto
Fratto reached
reached out
out again
again
to Wallace.
to Wallace. Fratto
Fratto forwarded
forwarded part
part of
of the
the transcript
transcript to
to Wallace
Wallace and
and told
told him:
him: “More
“More
fucking
fucking[]lies. Honestly. He
[] lies. Honestly. He isis aa disgrace.”
disgrace.” Ex.236.
Ex.236.
Fox also
Fox also has
has its
its own
own internal
internal fact-checking
fact-checking department,
department, the
the Brainroom,
Brainroom, that
that
could and
could and did
did investigate
investigate the
the truth
truth about
about Dominion.
Dominion. Ex.106,
Ex.106, Clark 127:4-9, 270:7-
Clark 127:4-9, 270:7-
20,271:19-21;
20, Ex.168. The
271:19-21; Ex.168. The Brainroom
Brainroom isis “the
“the centralized
centralized research
research department
department for
for
Fox News.”
Fox News.” Ex.101,
Ex.101, Bruster
Bruster 30(b)(6)
30(b)(6) 147:3-7.
147:3-7. | _—
1
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33
33
EE
EE
EE
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Meanwhile, Fox
Meanwhile, Fox continued
continued to
to broadcast
broadcast its
its lies
lies about
about Dominion
Dominion as
as itit
nervously eyed
nervously eyed Newsmax.
Newsmax. In
In aa November
November 16
16 email,
email, Rupert
Rupert Murdoch
Murdoch told
told Scott
Scott to
to
read aa Wall
read Wall Street
Street Journal piece about
Journal piece about Newsmax,
Newsmax, telling
telling her:
her: “These
“These people
people should
should
be watched,
be watched, ifif skeptically.
skeptically. Trump will concede
Trump will eventually and
concede eventually and we
we should
should
concentrate on
concentrate on Georgia,
Georgia, helping
helping any
any way
way we
we can.
can. We
We don’t
don’t want
want to
to antagonize
antagonize
Trumpfurther,
Trump further, but
but Giuliani
Giuliani taken with aa large
taken with large grain
grain of
of salt. Everything at
salt. Everything stake
at stake
here” Ex239.
here.” Ex.239.
I
EE
EE
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EE
Carlson told
Carlson told his
his producer
producer Alex
Alex Pfeiffer
Pfeiffer that
that night:
night: “Sidney
“Sidney Powell
Powell isis lying.
lying.
Fucking
Fucking bitch.” Ex.150.
Ex.150.
34
34
By November
By November 18,
18, Carlson
Carlson told
told Ingraham
Ingraham “Sidney Powell isis lying
“Sidney Powell lying by
by the
the way.
way.
II caught her. It’s
caught her. It's insane” Ex.241. Ingraham
insane.” Ex.241. Ingraham responded:
responded: “Sidney
“Sidney isis aa complete
complete
nut. No one
nut. No one will
will work
work with
with her.
her. Ditto
Ditto with
with Rudy.”
Rudy.” Id.
Id. Carlson
Carlson replied:
replied: “It’s
“It’s
unbelievably offensive
unbelievably offensive to
to me.
me. Our
Our viewers
viewers are
are good
good people
people and
and they
they believe it.”
believe it.”
Id. atat FNN035_03891092.

Id. FNN035_03891092. |
1
EE
I
Also on
Also on November
November 18,
18, SVP
SVP of
of Primetime
Programming and
and Analytics
Analytics Ron
Ron
Mitchell sent
Mitchell sent aa memo
memo to
to Scott
Scott and Wallace stating,
and Wallace stating, with
with respect
respect to
to Newsmax:
Newsmax:
[Tlhe lack
[T]he lack of
of any
any meaningful
meaningful editorial
editorial guidance
guidance may may be
be aa positive
positive for
for
them atat least
them least in
in the
the short
short term.
term. For
For example,
example, lastlast night
night on
on Stitchfield
Stitchfield
(who?) at
(who?) at 8pm,
8pm, the
the show
show sourced
sourced websites
websites like
like Gateway
Gateway Pundit
Pundit while
while
talking about
talking about voter
voter fraud.
fraud. This
This type of conspiratorial
type of reporting might
conspiratorial reporting might
be exactly what
be exactly what the
the disgruntled
disgruntled FNC viewer isis lookingfor.
FNC viewer looking for.
Ex.243 at
Ex.243 at FNN011_00096238.
FNNO11_00096238. Mitchell
Mitchell concluded that “viewers
concluded that “viewers are
are watching
watching less”
less”
Fox News,
Fox News, and
and suggested
suggested “fix[es]”:
“fix(es]": “Do
“Do not
not ever
ever give
give viewers
viewers aa reason
reason to
to turn
tum us
us
off. Every
off. Every topic
topic and
and guest
guest must
must perform,”
perform,” and
and “‘No
““No unforced
unforced errors’
errors’ in
in content–
content—
example: Abruptly
example: Abruptly turning
turning away
away from
from aa Trump campaign press
Trump campaign press conference.”
conference.” Id.
Id.
On November
On November 19,
19, Fox
Fox broadcast
broadcast the
the entiretyofa “crazy” press
entirety of a “crazy” press conference
conference
where Giuliani
where Giuliani and
and Powell
Powell spewed
spewed lies
lies about
about Dominion.
Dominion. Ex.156
Ex.156 (Rupert
(Rupert Murdoch
Murdoch
email, Subject:
email, Subject: “Watching
“Watching Giuliani!”
Giuliani!” Text:
Text: “Really
“Really crazy
crazy stuff.
stuff. And
And damaging.”).
damaging.”).
35
35
But while
But while Fox
Fox did
did not
not cut away this
cut away this time,
time, then-White
then-White House
House correspondent
correspondent Kristen
Kristen
Fisher did
Fisher fact-check the
did fact-check the claims
claims made
made by
by Powell
Powell and
and Giuliani.
Giuliani. Fox’s
Fox’s executives
executives
were not
were not pleased.
pleased. See
See Ex.118,
Ex.118, Fisher
Fisher 68:20-69:8;
68:20-69:8; Ex.244.
Ex.244. Fisher
Fisher received
received aa call
call
from her
from her boss,
boss, Bryan
Bryan Boughton,
Boughton, immediately
immediately after
after in
in which
which he
he “emphasized that
“emphasized that
higher-ups atat Fox

higher-ups Fox News
News were
were also
also unhappy
unhappy with
with it,”
it,” and
and that Fisher “needed
that Fisher “needed toto do
do aa
better job
better of... —this isis aa quote—
job of…—this respecting our
quote—‘respecting audience.” Ex.118,
our audience.’” Ex. 118, Fisher
Fisher 35:21-
35:21-
36:24; see
36:24; see Ex.245
Ex.245 &
& Ex.246
Ex.246 (Fisher
(Fisher texts
texts about
about being
being “punished
“punished for
for doing
doing my
my job”
job”
after fact-checking
after fact-checking Giuliani).
Giuliani).
Fox anchor
Fox anchor Dana
Dana Perino
Perino noted
noted that
that the claims atat the
the claims the press
press conference
conference could
could
be enough
be enough to
to prompt
prompt Dominion
Dominion to
to sue.
sue. Ex.247
Ex.247 atat FNN001383083-84.
FNN001383083-84. This
This
comment resulted
comment resulted inin Scott “screaming about
Scott “screaming about Dana’s
Dana’s show
show and
and their
their reaction
reaction to
to the
the
Rudy presser.”
Rudy presser.” Ex.248 atat FNN032
Ex.248 03869379.
FNN032_03869379. Scott explained
Scott in an
explained in an email
email
regarding both
regarding both Perino
Perino and
and Fisher’s
Fisher's coverage,
coverage, “[Y]ou
“{Y]ou can’t
can’t give
give the crazies an
the crazies an inch
inch
right now…they
right now...they are
are looking
looking for
for and
and blowing
blowing up
up all
all appearances of disrespect
appearances of disrespect to
to the
the
audience.” Ex.249.
audience.” Ex.249. Scott
Scott separately noted, “The
separately noted, “The audience
audience feels
feels like
like we
we crapped on
crapped on
[them] and
[them] and we
we have
have damaged
damaged their trust and
their trust and belief
belief in
inus... We can
us....We fix this
can fix this but
but we
we
cannot
cannot smirk
smirk at
at our viewers any
our viewers any longer.” Ex.250.
longer.” Ex.250.
Fox Executive
Fox Executive Ron
Ron Mitchell
Mitchell commented:
commented: “I’m
“I'm not
not mad
mad atat either
either of
of them.
them. I’m
I'm
mad atat those
mad clowns atat the
those clowns the conference
conference who put us
who put us inin aa terrible
terrible place.”
place.” Ex.251.
Ex.251. That
That
afternoon, Mitchell
afternoon, Mitchell asked
asked Firth:
Firth: “Will
“Will you
you be
be mentioning
mentioning the
the international
international crime
crime
36
36
conspiracy to
conspiracy to steal
steal the
the election
election featuring
featuring Soros,
Soros, Maduro,
Maduro, Chavez,
Chavez, Antifa,
Antifa, Cuba,
Cuba, and
and
China?” Ex.252.
China?” Ex252. Firth
Firth responded:
responded: “Haha nope—basically want
“Haha nope—basically want to
to wrangle
wrangle the
the
argument away
argument away from
from the
the crazy that was
crazy that was today—it’s
today—it’s easy
easy to
to dismiss legitimate
dismiss legitimate
complaints when
complaints when you
you can
can lump
lump them
them inin with
with the
the circus.”
circus.” Id.
Id. Mitchell responded:
Mitchell responded:
“Yes. But
“Yes. But those
those clowns
clowns put
put us
us [in]
[in] an
an awkward
awkward place
place where
where we’re
we're going
going to
to need
need to
to
thread the
thread the needle.”
needle.” Id.
Id.
EE
EE
EE
“I mean
“I meanifif they
they cant
cant take
take the
the time
time to
to do
do the
the press
press this
this will
will die
die faster.”
faster.” Id.
Id. Dobbs
Dobbs
continued airing
continued airing these
these defamatory
defamatory statements,
statements, hosting
hosting Powell
Powell and
and Giuliani
Giuliani
throughout this
throughout this timeframe.
timeframe.
Dominion sent
Dominion sent Fox’s
Fox’s General
General Counsel
Counselaa letter
letter on
on November
November 20
20 directly
directly
addressing Fox’s
addressing Fox’s defamation
defamation and
and asking
asking Fox
Fox to
to stop
stop spreading
spreading lies.
lies. Ex.237.
Ex.237. On
On
November 24,
November 24, Tony
Tony Fratto
Fratto wrote
wrote to
to Jay
Jay Wallace
Wallace personally
personally after
after another
another Lou
Lou Dobbs
Dobbs
show where
show where Fox
Fox lied
lied about
about Dominion:
Dominion: “You
“You guys
guys know
know this
this isis all
all bullshit.
bullshit. Everyone
Everyone
knows it.
knows it. II honestly
honestly thought,
thought, whatever...at
whatever...at least
least Powell
Powell won’t
won't be
be on
on credible
credible TV
TV
anymore. This
anymore. This isis reckless.”
reckless.” Ex.238
Ex.238 (alteration
(alteration in
in original).
original).
Yet the
Yet appearances continued.
the appearances continued. EGG
EE
37
37
Ex.164. That day, both Dobbs and Hannity hosted Sidney Powell.
Ex.164. Powell. Powell told
Hannity: “The
Hannity: “The machine
machine ran
ran an
an algorithm
algorithm that
that shaved
shaved votes
votes from
from Trump
Trump and
and awarded
awarded
them to
them to Biden.
Biden. They
They used
used the
the machines
machines to
to trash
trash large
large batches
batches of
of votes
votes that
that should
should
have been
have been awarded
awarded to
to President
President Trump. And they
Trump. And they used
used aa machine
machine to
to inject
inject and
and add
add
massive quantities
massive quantities of votes for
of votes for Mr.
Mr. Biden.”
Biden.” §179(n). Even into
¶179(n). Even into December,
December, Dobbs
Dobbs
continued hosting
continued hosting Powell
Powell and
and endorsing
endorsing those
those lies
lies himself,
himself, describing
describing. these
these
debunked falsehoods
debunked falsehoods as
as “a
“a broadly
broadly coordinated
coordinated effort
effort to—to
to—to actually
actually bring
bring down
down
this President
this President by
by ending
ending his
his second
second term
term before
before itit could
could begin.”
begin.” 179(q).
¶179(q).
Suzanne Scott’s
Suzanne Scott’s December
December 22 email
email to
to Meade
Meade Cooper
Cooper after
after Fox
Fox host
host Eric
Eric
Shawn fact-checked
Shawn fact-checked Sean
Sean Hannity’s
Hannity’s claimsofelection fraud says
claims of election fraud says itit all:
all:
| —
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Ex254. That
Ex.254. That very
very same
same day,
day, Bill
Bill Sammon
Sammon commented
commented on Fox’s coverage
on Fox’s coverage of
of
“supposed election
“supposed election fraud”
fraud” to
to Chris Stirewalt, stating
Chris Stirewalt, stating “It’s
“It’s remarkable
remarkable how
how weak
weak
ratings make[] goodjournalists
ratings make[] good journalists do
do bad
bad things.” Ex.167
things.” Ex.167.
Fox lied
Fox lied about
about Dominion—over
Dominion—over and
and over
over again.
again. As
As Briganti
Briganti said
said in
in mid-
mid-
December: “Gave
December: “Gave Powell
Powell &
& Giuliani
Giuliani platform
platform with
with reach—all
reach—all true
true they
they said crazy
said crazy
things.” Ex256.
things.” Ex.256.
38
38
I
I. Fox Participated
Fox Participated in
in the
the Narrative.
Narrative.
Fox did
Fox did not
not merely
merely report
report on
on the
the claims
claims made
made about
about the
the 2020
2020 Presidential
Presidential
Election; itit actively
Election; actively participated
participated in
in shaping
shaping them.
them.
I
EE
EE
EE
EE
I
I Dobbs
Dobbs and
and his
his team
team understood
understood their
their role
role in
in promoting
promoting
the narrative.
the narrative. |
|
Also on
Also on November
November 7,
7, Bartiromo
Bartiromo and
and Dobbs
Dobbs received
received the
the “wackadoodle”
“wackadoodle”
email authored
email authored by
by the
the person
person who
who received
received messages
messages from
from “the
“the wind.”
wind.” Ex.154.
Ex.154.
now calls it “nonsense,” at the time she told Powell: “I
Although Bartiromo now “I just
spoke to
spoke to Eric
Eric [Trump]
[Trump] &
& told
told him
him you
you gave
gave very
very imp[ortant]
important] info.”
info.” Ex.259.
Ex.259.
Bartiromo also
Bartiromo also provided
provided information
information directly
directly to
to Powell.
Powell. See
See Exs.260-262;
Exs.260-262; Ex.98,
Ex.98,
Bartiromo 291:17-292:14,
Bartiromo 291:17-292:14, 293:1-295:2.
293:1-295:2.
1
I EE
39
EE
EE
EE
EE
I
Some of
Some of Fox’s
Fox's involvement
involvement in
in shaping
shaping the
the narrative
narrative around
around Dominion
Dominion
demonstrates that
demonstrates that Fox
Fox knew
knew the
the claims
claims were
were false.
false. |G_——
EE
I As
/s Suzanne
Suzanne Scott
Scott said,
said, “Privately,
“Privately, II had
had aa number
number of
of
conversations with Sean

conversations with where he
Sean where wanted the
he wanted the President
President to
to accept
accept the results” and
the results,” and
Hannity had
Hannity had understood
understood that
that Joe
Joe Biden
Biden legitimately
legitimately won
won the
the election “for some
election “for some
time.” Ex.143,
time.” Ex.143, Scott
Scott 362:5-363:19.
362:5-363:19.
On November
On November 19,
19, after
after the
the Giuliani/Powell
Giuliani/Powell press
press conference,
conference, Carlson
Carlson very
very
carefully tried
carefully tried to
to thread
thread his
his own
own needle.
needle. On
On one
one hand,
hand, he
he said
said publicly
publicly on
on his
his show
show
that what
that what “Powell
“Powell was
was describing
describing would
would amount
amount to
to the
the single
single greatest
greatest crime
crime inin
American history”
American history” but
but “she
“she never
never sent
sent us
us any
any evidence,
evidence, despite
despite aa lot
lotofrequests.”
of requests.”
Ex.170 atat FNN018_02408904-05.

Ex.170 ENNOI8_02408904-05. On
On the
the other,
other, however,
however, he
he did
did not
not say
say what
what he
he
believed privately—that
believed privately—that she
she was
was “lying.”
“lying” Ex.150.
Ex.150. Instead,
Instead, he
he closed
closed by
by saying,
saying,
“Maybe Sidney
“Maybe Sidney Powell
Powell will
will come
come forward
forward soon
soon with
with details
details on
on exactly
exactly how
how this
this
40
40
happened, and
happened, and precisely
precisely who
who did
did it.…We
it....We are
are certainly
certainly hopeful
hopeful that
that she
she will.”
will.”
Ex.170 atat FNN018_02408905.
Ex.170 FNNOIS_02408905.
Carlson’ broadcast
Carlson’s broadcast still
still caused
caused viewer
viewer backlash.
backlash. So
So he
he and
and Fox—including
Fox—including
Fox Corporation
Fox Corporation employee
employee Raj
Raj Shah—mobilized.
Shah—mobilized. As
As Shah
Shah told
told Lachlan
Lachlan Murdoch,
Murdoch,
Viet Dinh,
Viet Dinh, and
and Suzanne
Suzanne Scott
Scott afterwards:
afterwards: “After
“After criticism
criticism from
from social
social media
media for
for
Tucker's segment
Tucker’s segment questioning
questioning Attorney
Attorney Sidney
Sidney Powell’s
Powell's outlandish
outlandish voter
voter fraud
fraud
claims,
claims,
EE
EE
I
EE
EE
EE
EE
I EE
I
EE
EE
I
EE
41
41
I EE
I
I
EE
EE
IE
EE
EE
1
EE
I
Shah also
Shah also texted
texted with
with Pfeiffer.
Pfeiffer. On
On November
November 22,
22, Shah
Shah wrote:
wrote: “shit
“shit isis so
so crazy
crazy
right now.
right now. so
so many
many people
people openly
openly denying
denying the
the obvious
obvious that Powell isis clearly
that Powell clearly full
full
of
of it.”it” Ex.271.
Ex271. Pfeiffer:
Pfeiffer: “She
“She isis afucking
a fucking nutcase.” Id.
nutcase.” Id.
That day,
That day, Trump
Trump disavowed
disavowed Powell
Powell and
and stated
stated that
that she
she did
did not
not represent
represent
Trump or
Trump or the
the campaign.
campaign. Ex.273.
Ex.273. Carlson
Carlson told
told Ingraham:
Ingraham: Powell’s
Powell's “a nut, as
“a nut, as you
you
said atat the
said the outset.
outset. ItIt totally
totally wrecked
wrecked my
my weekend.
weekend. Wow…
Wow... II had
hadtoto try
try to make the
to make the
WH disavow
WH her, which
disavow her, which they
they obviously should have
obviously should have done
done long
long before.” Ex.274
before.” Ex.274.
42
42
In graham
In graham responds:
responds: “No
“No serious
serious lawyer
lawyer could believe what
could believe what they
they were
were saying.”
saying.” Id.
Id.
Carlson replies:
Carlson replies: “But
“But they
they said
said nothing
nothing in
in public.
public. Pretty
Pretty disgusting.”
disgusting.” Id.
Id.
That same
That same weekend,
weekend, Tucker
Tucker texted
texted his
his Executive
Executive Producer
Producer Justin
Justin Wells:
Wells: “We
“We
won the
won the battle
battle with
with Powell.
Powell. Thank
Thank god.
god. EEEG—
I Carlson,
C150, ofof course,
course,
said nothing
said nothing in
in public
public about
abouthis
his own role in
own role in this
this affair
affairoror that
that he
he EET
believed the
believed the claims
claims were
were “reckless
“reckless and
and unsubstantiated.”
unsubstantiated.” But
But the
the blowback
blowback
continued and
continued and the
the pressure
pressure increased.
increased. [EG
EE
EE
I EE
EE
I
After January
After January 6,
6, trying
trying to
to thread
thread the
the needle
needle between
between the
the truth
truth and
and pressure
pressure
from his
from his viewers
viewers and
and sponsors
sponsors became
became even more difficult.
even more difficult. Late
Late on
on January
January 6,
6,
Carlson texted
Carlson texted with
with Pfeiffer
Pfeiffer that
that Trump
Trump isis “a
“a demonic
demonic force,
force, aa destroyer.
destroyer. But
But he’s
he’s
not going
not going to
to destroy
destroy us.”
us.” Ex.276
Ex.276 atat FNN035_03890858.
FNN035_03890858. On
On January 26, Carlson
January 26, Carlson
invited his
invited his leading
leading sponsor
sponsor Mike
Mike Lindell
Lindell on
on his
his show,
show, where
where Lindell
Lindell spouted
spouted these
these
same conspiracies
same conspiracies on
on air
air after
after previewing
previewing them
them for
for Carlson’s
Carlson’s staff
staff during
during aa pre-
pre-
interview. See,
interview. See, infra,
infra, §V.D.6.
§V.D.6.
43
43
***
Privately, Fox’s
Privately, Fox’s hosts
hosts and
and executives knew that
executives knew that Donald
Donald Trump lost the
Trump lost the
election and
election and that
that he needed to
he needed to concede.
concede. But
But Fox
Fox viewers
viewers heard
heard aa different
different story—
story—
repeatedly. On
repeatedly. On January 5, Rupert
January 5, Rupert Murdoch
Murdoch told
told Suzanne
Suzanne Scott,
Scott, “It’s
“It’s been
been suggested
suggested
our prime
our time three
prime time three should
should independently
independently or together say
or together say something
something like
like ‘the
‘the
election isis over
election over and
and Joe
Joe Biden
Biden won,’”
won,” and
and that
that such
such aa statement
statement “would
“would go
go aa long
long
way to
way to stop
stop the Trump myth
the Trump myth that
that the election stolen.”
the election Ex.277. Scott
stolen.” Ex.277. Scott forwarded
forwarded the
the
email to
email to Cooper,
Cooper, stating
stating “I told Rupert
“I told Rupert that
that privately
privately they
they are
are all
all there—we
there—we need
need to
to
be careful
be careful about
about using
using the
the shows
shows and
and pissing
pissing off the viewers
off the viewers but they know
but they know how
how to
to
navigate.” Id.
navigate.” Despite the
Id. Despite the internal
internal recognition
recognition that
that the
the election
election was
was over,
over, Fox
Fox did
did
not retract
not retract its
its claims
claims about
about Dominion.
Dominion. Instead,
Instead, itit kept
kept defaming
defaming Dominion.
Dominion. To
To this
this
day, Fox
day, Fox has
has never
never retracted
retracted the
the false
false statements
statements itit broadcast
broadcast about Dominion.
about Dominion.
LEGAL STANDARD
LEGAL STANDARD
‘The Court
The should grant
Court should grant summary
summary judgment where, after
judgment where, viewing the
after viewing the record
record inin
aa light
light most
most favorable
favorable to
to the
the non-moving
non-moving party,
party, no
no genuine
genuine issues
issues of
of material
material fact
fact
exist. Merrill
exist. Merrill v.v. Crothall-Am.,
Crothall-Am., Inc., 606 A.2d
Inc., 606 A.2d 96,
96,99 (Del. 1992).
99 (Del. 1992). The
The movant
movant bears
bears
the initial
the initial burden
burden of
of showing
showing that
that undisputed
undisputed material
material facts
facts support
support its
its motion,
motion, but
but
once that
once that burden
burden isis met,
met, the
the burden
burden shifts
shifts to
to the
the non-movant,
non-movant, who
who must
must show
show
material issues
material issues of
of fact
fact exist
exist and
and who
who “may
“may not
not rest
rest upon
upon the
the mere
mere allegations
allegations or
or
44
44
denials of
denials the adverse
of the adverse party’s
party's pleading,”
pleading,” but
but instead
instead “must
“must set
set forth
forth specific
specific facts
facts
showing that
showing that there
there isis aa genuine
genuine issue
issue for
for trial.”
trial.” Del.
Del. Super.
Super. Ct. Civ. R.
Ct. Civ. R. 56.
56.
Dominion’ per
Dominion’s se defamation
per se defamation claims
claims contain
contain the
the following
following elements: “(i) aa
elements: “(i)
false statement;
false statement; (ii)
(ii) publication;
publication: (iii)
(iii) fault;
fault; and
and (iv)
(iv) one
one of
of four
four per se injuries,
per se injuries,
including, as
including, as relevant
relevant here,
here, (a)
(a) an
an accusation
accusation of
of aa serious
serious crime or (b)
crime or (b) business
business
harm.” FNN
harm.” FNN MTD
MTD Order,
Order, p.38. “In addition,
p.38. “In addition, the
the alleged
alleged defamation
defamation must
must be
be ‘of
‘of or
or
concerning [Dominion].’”
concerning [Dominion].” Id.
Id. (citation
(citation omitted). A broadcast
omitted). A broadcast isis defamatory
defamatory ifif itit
contains even
contains even one actionable statement
one actionable statement within
within it.
it. As explained
As explained below,
below, each
each
broadcast includes
broadcast includes multiple
multiple defamatory
defamatory statements.
statements.
Dominion must
Dominion must ultimately
ultimately prove
prove fault—i.e.,
fault—i.., actual
actual malice—by
malice—by clear
clear and
and
convincing evidence.
convincing N.Y. Civil
evidence. N.Y. Civil Rights
Rights Law
Law §76-a.2.
§76-a.2. Dominion
Dominion further
further assumes,
assumes,
for purposes
for purposes of
of this
this motion,
motion, that
that itit must
must also
also prove
prove the
the falsity
falsity of
of the
the statements
statements by
by
clear and
clear and convincing
evidence.®5 But
But those
those heightened burdens make
heightened burdens make no
no difference
difference
on this
on this motion
motion because
because to
to prevail
prevail here,
here, Dominion
Dominion must
must demonstrate that no
demonstrate that no genuine
genuine
issue of
issue of material
material fact
fact exists—a higher burden
exists—a higher burden than
than clear
clear and
and convincing
evidence.
As explained
As below, Dominion
explained below, Dominion has
has done
done so.
so.
5 Though
5
Though the
the New
New York
York Court of Appeals
Court of Appeals has
has not
not ruled
ruled on the question,
on the question, the
the Second
Second
Circuit
Circuit has held that
has held that that
that court
court would
would likely
likely hold
hold that
tha falsity
falsity must
must be
be proved
proved byby clear
clear
and convincing
and convincing evidence for public
evidence for public figures.
figures. See
See DiBella v. Hopkins,
DiBella v. Hopkins, 403 F.3d 102,
403 F.3d 102,
110-115 (2d
110-115 (2d Cir.
Cir. 2005).
2005). Dominion
Dominion assumes
assumes for
for purposes
purposes of
of this
this motion
motion that
that itit must
must
ultimately prove
ultimately prove falsity
falsity by
by clear
clear and
and convincing
evidence.
45
45
ARGUMENT
ARGUMENT
I.
I. The Defamatory
The Defamatory Statements Fox Published
Statements Fox Published About
About Dominion
Dominion Are False.
Are False.
As Fox’s
As Fox's Political
Political Editor
Editor Chris
Chris Stirewalt
Stirewalt acknowledged,
acknowledged, inin November
November and
and
December 2020,
December 2020, “no reasonable person
“no reasonable person would
would have
have thought”
thought” the
the allegations
allegations against
against
Dominion were
Dominion were true.
true.Ex.146,
Ex.146, Stirewalt 154:10-19. Denying
Stirewalt 154:10-19. Denying summary
summary judgment on
judgment on
falsity requires
falsity requires this
this Court to find
Court to find that
that aa reasonable
reasonable juror today could
juror today could think
think that
that
Dominion actually
Dominion actually committed
committed election fraud by
election fraud by rigging
rigging the
the 2020
2020 Presidential
Presidential
Election, through
Election, through software
software and
and algorithms,
algorithms, nefarious
nefarious ties
ties to
to Venezuela,
Venezuela, kickbacks
kickbacks to
to
government officials,
government officials, or
or otherwise. Denying summary
otherwise. Denying summary judgment on falsity
judgment on falsity would
would
effectively result
effectively result inin aa trial regarding the
trial regarding the legitimacy
legitimacy of
of the
the 2020
2020 Presidential
Election.
No reasonable
No reasonable juror could dispute
juror could dispute falsity
falsity here.
here. Fox
Fox published four categories
published four categories
of inherently
of inherently improbable
improbable and proven falsehoods
and proven falsehoods about
about Dominion
Dominion (FNN
(FNN Compl.
Compl. ¶2):
12):
(1)
(1) Dominion committed
Dominion committed election
election fraud
fraud by
by rigging
rigging the
the 2020
2020 Presidential
Presidential
Election (the
Election (the “fraud” lic).
“fraud” lie).
(2)
(2) Dominion’s software
Dominion’s software and
and algorithms
manipulated vote
vote counts
counts in
in the
the
2020 Presidential
2020 Presidential Election
Election (the
(the “algorithm”
“algorithm” lie).
lic).
(3)
(3) Dominion isis owned
Dominion owned by
by aa company founded inin Venezuela
company founded Venezuela to rig elections
to rig elections
for the
for the dictator
dictator Hugo
Hugo Chavez
Chavez (the
(the “Venezuela”
“Venezuela” lie).
lie).
(4)
(4) Dominion paid
Dominion paid kickbacks
kickbacks toto government officials who
government officials who used
used its
its
‘machines in
machines in the
the 2020
2020 Presidential
Election (the
(the “kickbacks”
“kickbacks” lie).
lie).
“This false
This false narrative
narrative portrayed
portrayed Dominion
Dominion as
as aa villain
villain in
in aa grand scheme to
grand scheme to steal
steal
the 2020
Election. That larger narrative
That larger narrative also
also contained separately
contained separately
46
46
actionable individual
actionable individual claims,
claims, which
which themselves
themselves are
are also false. Appendix
also false. Appendix DD of this
of this
Brief reprints
Brief reprints the
the pertinent statements inin each
pertinent statements each accused
accused broadcast
broadcast and
and tweet (herein
tweet (herein
“broadcasts”) and
“broadcasts”) and identifies
identifies the
the categories
categories of
of falsehoods
falsehoods included
included in
in each.
each.
A summary
A of the
summary of the accused
accused broadcasts identified in
broadcasts identified in Paragraph
Paragraph 179
179 of
of the
the
Complaint6 follows:
Complaint, follows:
Complaint “Fraud” Lie “Algorithm” “Venezuela” “Kickbacks”
Statements
Statements Lie
Lie Lie
Lie Lie
Lie
fw[x[x
¶179(a) X X [|
[oe[x
¶179(b) X [x X [1]
¶179(c) X X X X
foe[xTx[x
¶179(d) X X X [|
[we [xTx[x
¶179(e) X X X [|
¶179(f) X X X X
¶179(g) X X X X
[oom[x[x[x
¶179(h) X X X [1]
fue[x
¶179(i) X x[xX X [|
fu
¶179(j) [xTx[x X X X [|
foe
¶179(k) [x[x[x X X X [|
fav [x
¶179(l) X x[xX X [|
foe [xTx
¶179(m) X X [x X |
[mow[x[x
¶179(n) X X [1]
[me [x[x
¶179(o) X X [1]
foe
¶179(p) [x X x X [|
foe[xTx[x
¶179(q) X X X [|
owe
¶179(r) x X [0]
foe[x
¶179(s) X
wo[x1
¶179(t) X [ [ ]
Figure 1:
Figure 1: Summary ofFalsehood
Summary of in the
Falsehoods in the Fox
Fox Accused Broadcasts
Accused Broadcasts
©6 Paragraph
Paragraph 224
224 of
of the
the US
US Dominion
Dominion Inc.
Inc. etet al.
al. v.v. Fox
Fox Corporation
Corporation Complaint (“Fox
Complaint (“Fox
Corp. Compl”) contains the same accused statements. Appendix D identifies the
Corp. Compl.”) contains the same accused statements. Appendix D identifies the
cross-references to
cross-references to that
that complaint.
complaint.
47
47
Recounts and
Recounts and audits
audits conducted
conducted by
by election
election officials
officials across
across the U.S. repeatedly
the U.S. repeatedly
confirmed the
confirmed the election’ outcome, including
election’s outcome, including specifically
specifically that
that Dominion’s
Dominion’s machines
machines
accurately counted
accurately counted votes.
votes. That
That evidence
evidence alone
alone more
more than
than suffices
suffices for
for summary
summary
judgment on the
judgment on the falsity
falsity of
of the
the claims
claims that
that Dominion
Dominion rigged
rigged the
the election
election and
and its
its
software manipulated
software manipulated vote
vote counts. Fox's admissions
counts. Fox’s admissions and
and Dominion’s
Dominion’s corporate
corporate
documents and
documents and testimony
testimony show
show Dominion
Dominion isis not
not owned by Smartmatic
owned by Smartmatic or
or formed
formed to
to
rig elections.
rig elections. Not
Not aa shred
shred of
of evidence suggests Dominion
evidence suggests Dominion paid kickbacks to
paid kickbacks any
to any
govemment officials,
government officials, which Dominion’s and
which Dominion’s and government
goverment officials’
officials’ sworn
swom
statements confirm.
statements confirm. This
Thisproof ends the
proof ends the inquiry.
inquiry.
Section AA addresses
Section addresses the
the four
four categories
categories of falsehoods in
of falsehoods in the
the accused
accused
broadcasts, establishing
broadcasts, with undisputed
establishing with undisputed evidence
evidence that
that each
each isis false.
false. Hand
Hand recounts
recounts
and audits
and confirmed the
audits confirmed the election
election results
results time
time and again. Certification,
and again. Certification, testing,
testing, the
the
existence of
existence of paper
paper ballots,
ballots, and
and Dominion’s
Dominion’ source
source code,
code, among
among other
other evidence,
evidence, only
only
further confirm
further confirm this point. Corroborating
this point. Corroborating this
this evidence,
evidence, Dominion’s
corporate
representative, other
representative, other Dominion
Dominion employees,
employees, and
and elections
elections officials who lived
officials who lived through
through
the 2020
Election have
have testified
testified under
under oath
oath that
that the
the statements
statements are
are
false—testimony that
false—testimony that Fox
Fox has
has not
not rebutted.
rebutted. Every
Every credible
credible source—at the time
source—at the time and
and
since—has rejected
since—has rejected all
all four
four categories of falsehoods
categories of falsehoods that
that Fox
Fox espoused.
espoused.
Fox has
Fox zero evidence
has zero evidence to
to raise
raise aa genuine
genuine issue
issue of
of material
material fact
fact on
on falsity.
falsity. In
In
discovery responses
discovery responses and
and binding
binding corporate
corporate representative
representative testimony,
testimony, Fox
Fox has
has
48
48
conceded falsity
conceded falsity on
on Smartmatic
Smartmatic ownership
ownership and
and Venezuela
Venezuela connections.
connections. On all other
On all other
statements, Fox
statements, Fox says
says itit does not plan
does not plan to
to contest
contest falsity,
falsity, except to say
except to say itit plans
plans “to
“to
introduce evidence
introduce evidence atat trial
trial that
that some
some votes
votes were
were flipped,”
flipped,” without
without further
further
explanation.
explanation. Ex.127, Lowell,
Ex.127, Lowell, 53:5-13;
53:5-13; see
see generally id. 52:4-192:12.
generally id. 52:4-192:12. Fox's
Fox’s
witnesses consistently
witnesses consistently confirmed
confirmed under
under oath
oath the
the statements’
statements’ falsity
falsity or lack of
or lack of
evidence. See,
evidence. See,e.g.
e.g.,infra. §V.B..nn.12-13.
infra, §V.B., Noevidence
nn.12-13. No exists to
evidence exists to suggest
suggest otherwise.
otherwise.
Section BB explains
Section explains that
that the
the accused
accused broadcasts
broadcasts contain
contain actionable
actionable defamatory
defamatory
statements because
statements because they
they are
are not
not mere
mere opinion. On this
opinion. On this question of law,
question of law, inin denying
denying
Fox’s motion
Fox’s motion toto dismiss,
dismiss, the
the Court
Court already
already rejected
rejected Fox’s
Fox’s contention
contention that
that the
the
statements were
statements were mere
mere opinion
opinion and
and correctly
correctly determined that the
determined that the statements
statements
themselves, as
themselves, well as
as well as context
context of the broadcasts,
of the signaled to
broadcasts, signaled to viewers
viewers that what was
that what was
heard was
heard was likely
likely to be fact.
to be fact. FNN
FNN MTD
MTD Order,
Order, pp.47-50.
pp.47-50. At
At this
this stage,
stage, aa review
review of
of
each statement
each statement confirms
confirms that
that each
each reasonably
reasonably appears to state
appears to state or
or imply
imply assertions
assertions of
of
objective fact,
objective fact, which
which discovery has only
discovery has only confirmed.
confirmed.
A.
A. Undisputed Evidence
Undisputed Proves the
Evidence Proves the Falsity
Falsity of Fox’s Statements.
of Fox’s Statements.
To prove
To falsity, Dominion
prove falsity, Dominion must
must establish
establish that
that Fox’s
Fox’s statements
statements are
are
“substantially false.”
“substantially false.” Franklin
Franklin v.v. Daily
Daily Holdings,
Holdings, Inc.,
Inc. 135
135 A.D.3d
A.D.3d 87,
87,94 (N.Y. 1st
94 (N.Y. Ist
Dep't 2015).
Dep’t 2015). To determine whether
To determine whether aa statement
statement isis substantially
substantially false,
false, “[c]ourts
“(courts
typically compare
typically compare the
the complained of language
complained of language with
with the
the [][] truth
truth to
to determine
determine whether
whether
the truth
the truth would
would have
have aa different
different effect
effect on the mind
on the mindof the average
of the average reader.”
reader.” Id.
Id.
49
49
Significantly, substantial
Significantly, substantial truth
truth (or
(or substantial
substantial falsity)
falsity) “refers
“refers to the content
to the of
content of
an allegedly
an allegedly defamatory
defamatory statement,
statement, not
not the
the act
act of
of republishing
republishing it.”
it.” Zuckerbrot v.
Zuckerbrot v.
Lande, 167
Lande, 167 N.Y.S.3d
N.Y.S3d 313,
313, 334
334 (N.Y.
(N.Y. Sup.
Sup. Ct.
Ct. 2022).
2022). In
In other
other words,
words, Fox
Fox cannot
cannot
establish the
establish the “substantial
“substantial truth”
truth” of its statements
of its statements by
by claiming that itit accurately
claiming that accurately
repeated statements
repeated statements that
that others
others made.
made. fd.
Id. “[Ulnder New York
“[U]nder New York law,
law, aa speaker
speaker who
who
repeats another’s
repeats another’s defamatory
defamatory statements
statements isis not
not made
made immune
immune from
from liability
liability for
for
defamation merely
defamation merely because
because another person previously
another person previously made
made the
the same
same demeaning
demeaning
claim.” Watson
claim.” Watson v.v. NY
NY Doe
Doe 1,1, 439
439 F.
F. Supp. 3d 152,
Supp. 3d 152, 161
161 (S.D.N.Y.
(S.D.N.Y. 2020)
2020) (internal
(internal
quotation marks
quotation marks omitted).
omitted). Rather,
Rather, itit isis aa “black-letter
“black-letter rule
rule that
that one who republishes
one who republishes
aa libel
libel isis subject
subject to
to liability
liability just as ifif he
just as he had
had published
published itit originally,
originally, even though he
even though he
auributes the
attributes the libelous
libelous statement
statement to
to the
the original publisher, and
original publisher, and even though he
even though he
expressly disavows
expressly disavows the
the truth
truth of the statement.”
of the Cianci, 639
statement.” Cianci, 639 F.2d
F.2d atat 60-61.
60-61.
‘The following
The following addresses
addresses the
the falsity
falsity of
of each lie category
each lie category in
in turn.
turn.
1.
1. Dominion Did
Dominion Did Not
Not Commit
Commit Election
Election Fraud
Fraud by
by Rigging
Rigging the
the
2020 Presidential Election.
The fabricated
The fabricated storyline
storyline that
that Dominion
Dominion committed fraud by
committed fraud by rigging
rigging the
the 2020
2020
Presidential Election—a
Presidential Election—a lie
lie that
that runs
runs through
through each
each of the accused
of the accusedbroadcasts—was
broadcasts—was
verifiably false
verifiably false when
when Fox
Fox first
first published
published itit and
and repeatedly
repeatedly disproven
disproven as
as source
source after
after
source confirmed
source confirmed the election’s outcome.
the election’s outcome. See
See Appendix
Appendix DD (Category
(Category #1).
#1).
50
50
a.
a. State audits and
State audits and recounts
recounts
State audits
State audits and
and recounts
recounts of
of auditable
auditable paper
paper ballots
ballots confirmed
confirmed the
the 2020
2020
Presidential Election’s
Presidential Election’s results
results and the fact
and the fact that
that Dominion
Dominion did not rig
did not rig the
the election.
election.
‘This undisputed evidence
This undisputed standing alone
evidence standing alone warrants
warrants summary
summary judgment.
judgment.
In the
In the 2020
2020 Presidential
Election, Dominion’s
Dominion’s voting
voting systems
systems generated
generated an
an
auditable paper
auditable paper ballots
ballots or
or aa paper
paper trail
trail for
for each vote cast
each vote cast in
in contested
contested swing-state
swing-state
jurisdictions that Fox’s

jurisdictions that Fox's broadcasts
broadcasts claimed Dominion rigged.
claimed Dominion rigged. Ex.183,
Ex.183, Poulos
Poulos Aff.,
Aff.,
99: Ex.138, Poulos
¶9; Ex.138, Poulos 30(b)(6)
30(b)(6) 699:23-700:25
699:23-700:25 (Georgia),
(Georgia), 766:7-19 (Antrim County,
766:7-19 (Antrim County,
Michigan), 626:15-20
Michigan), (Pennsylvania); see,
626:15-20 (Pennsylvania); see, e.g.,
eg., Ex.139,
Ex.139, Richer
Richer 59:22-60:7
59:22-607
(Maricopa
(Maricopa County,
County, Arizona);
Arizona); Ex.100,
Ex.100, Boockvar
Boockvar 30:10:21,
30:10-21, 41:25-42:4
41:25-42:4
(Pennsylvania).”7 Paper ballots protect against election rigging because “[y]ou

(Pennsylvania). “[yJou can’t
flip aa paper
flip paper ballot.”
ballot.”Ex.138, Poulos 30(b)(6)
Ex.138, Poulos 30(b)(6) 568:6-10.
568:6-10. Importantly,
Importantly, they
they also
also ensure
ensure
aa back-up
back-up to check the
to check the results
results of an electronic
of an electronic machine.
machine. Id.
Id. 640:14-17;
640:14-17; Ex.183,
Ex.183, 13.
¶3.
7 Dominion
7
Dominion machines
machines are are designed
designed toto Aeperate
generate anan auditable
auditablepaper trail. Ex.138,
paper trail. Ex.138,
Poulos 30(b)(6)
Poulos 30(b)(6)639:7-640:3.
639:7-640:3. In Tnthe 2020 Presidential
the 2020 Presidential Election,
Election,tthe
he non-swing
non-swing state
staté
of Louisiana
of Louisiana still required the
still required the use
use of
of direct recording electronic
direct recording electronic (“DRE”) machines,
(“DRE”) machines,
and thus
and thus continued
continued to to use
use legacy
legacy machines
machines built
built and
and sold
sold by
by Sequoia,
Sequoia, aa company
company
from which
from which Dominion
Dominion acquired
acquired certain
certain assets
assets in
in 2010.
2010. For
For early
early voting,
voting, Louisiana
Louisiana
also used
also used aa limited
limited number
number of of newer
newer Dominion
Dominion machines,
machines, which
which are
are designed
designed toto
generate a paper record, but Louisiana used the machines without a printer, to
generate a paper record, but Louisiana used the machines without a printer, to
comply with
comply with the
the state’s
state’s existing
existing requirements.
requirements. In In addition,
addition, most
most voters
voters inin New
New
Jersey used mail-in
Jersey used mail-in paper ballots in
paper ballots in the
the 2020
2020 Presidential
Election, though
though some
some
legacy Sequoia
legacy Sequoia DREDRE machines
machines werewere available
available for
for accessibility
accessibility purposes.
purposes. See See
Ex.109, Cramer
Ex.109, 278:9-279:8; Ex.137,
Cramer 278:9-279:8; Ex.137, Poulos
Poulos 30(b)(6)
30(b)(6) 437:7-13.
437:7-13.
51
51
As designed,
As designed, paper ballots inin the
paper ballots the contested
contested swing-state
swing-state jurisdictions that used
jurisdictions that used
Dominion’s voting
Dominion’s voting machines
machines validated
validated the
the 2020
2020 Presidential
Presidential Election’s
Elections outcome
outcome
through hand
through hand counts, audits, and
counts, audits, and recounts.
recounts. See Ex.299
See Ex299 (listing
(listing state
state audit
audit
requirements). Examples
requirements). Examples from
from jurisdictions to which
jurisdictions to which the
the accused
accused Fox
Fox broadcasts
broadcasts
referred prove
referred prove the
the point:
point:
Arizona: In the
Arizona: In the 2020
2020 Presidential
Election, only
only one
one jurisdiction in Arizona
jurisdiction in Arizona
used Dominion
used Dominion voting
voting systems:
systems: Maricopa
Maricopa County. Ex.183, Poulos
County. Ex.183, Poulos Aff.,
Aft., 910. In
¶10. In
swom testimony,
sworn Maricopa Board
testimony, Maricopa Boardof Supervisors Chairman
of Supervisors Chairman Bill
Bill Gates
Gates and
and County
County
Recorder Stephen
Recorder Stephen Richer
Richer confirmed
confirmed they
they did
did not
not believe
believe Dominion
Dominion had
had manipulated
manipulated
vote counts
vote in the
counts in the county
county or
or anywhere
anywhere and
and had
had seen
seen no
no evidence of that.
evidence of that. Ex.120,
Ex.120,
Gates 35:5-36:12,
Gates 35:5-36:12, 97:3-13; Ex.139, Richer
97:3-13; Ex.139, Richer 22:14-23:11.
22:14-23:11.
Copious evidence
Copious evidence buttresses
buttresses that
that conclusion.
conclusion. On November
On November 9,9, 2020,
2020,
Maricopa completed
Maricopa completed aa hand
hand count
count audit that confirmed
audit that confirmed the
the election’s
election's results.
results.
Ex.209. In
Ex.209. Inaa November
November 17,
17, 2020
2020 letter
letter toto Maricopa
Maricopa voters,
voters, then-Maricopa
then-Maricopa Board
Board of
of
Supervisors Chairman
Supervisors Chairman Clint
Clint Hickman
Hickman advised
advised that
that the
the hand
hand recount
recount “yielded
“yielded aa 100
100
percent
percent match
match to
to the
the results
results produced
produced by the tabulation
by the tabulation equipment.” Ex.210. By
equipment.” Ex.210. By
November 18,
November 18, Maricopa
Maricopa held
held its
its post-election
post-election logic
logic and
and accuracy
accuracy test,
test, which
which again
again
“showed that
“showed that the
the machines,
machines, the
the tabulation
tabulation machines,
machines, had
had operated
operated properly.”
properly.”
Ex.120, Gates
Ex.120, Gates 32:2-8;
32:2-8; see Ex.139, Richer
see Ex.139, Richer 85:8-22.
85:8-22.
52
52
To assuage
To assuage voters,
voters, Maricopa
Maricopa then
then had
had Pro
Pro V&V
V&V and
and SLI, two accredited
SLI, two accredited
independent testing
independent testing laboratories,
laboratories, each
each complete
complete an
an additional
additional audit,
audit, which
which
confirmed again
confirmed again that
that “there
“there was
was no
no evidence
evidence of
of manipulation
manipulationofthe software or
of the software the
or the
hardware as
hardware as certified
certified by
by the
the EAC
EAC and
and the
the Secretary of State,
Secretary of State, that
that the
the systems
systems
performed as
performed as they
they should
should have…[and
have...[and that]
that] no
no files,
files, electronic files, were
electronic files, were
inappropriately deleted
inappropriately or inin any
deleted or any way
way manipulated,
manipulated, and
and that
that the
the machines
machines were
were still
still
reading ballots
reading ballots as
as was proper and
was proper accurately.” Ex.139,
and accurately.” Ex.139, Richer
Richer 53:14-56:23;
53:14-56:23; see
see
Ex.300 (Pro
Ex.300 (Pro V&V
V&V Report);
Report): Ex.301
Ex.301 (SLI
(SLI Report).
Report).
Georgia: Every
Georgia: Every county
county in
in Georgia
Georgia used
used Dominion
Dominion voting
voting systems
systems in
in the
the 2020
2020
Presidential Election. Ex.183,
Ex.183, Poulos
Poulos Aff.,
Aff., 910. As with
¶10. As with Arizona,
Arizona, here,
here, too,
too,
undisputed evidence
undisputed shows that
evidence shows that Dominion’s
Dominion’ voting
voting machines
machines did
did not
not rig
rig Georgia’s
Georgia's
election. Even
election. Even before
before Georgia
Georgia finished
finished its
its hand
hand recount,
recount, Georgia’s
Georgia’s Republican
Republican
Secretary of
Secretary State Brad
of State Brad Raffensperger
Raffensperger commissioned
commissionedaa forensic
forensic audit
auditofofaa sampling
sampling
of Dominion
of Dominion voting
voting machines
machines by
by Pro
Pro V&V,
V&V, and
and by
by November
November 17,
17, 2020,
2020, that
that audit
audit
concluded with
concluded with Raffensperger’s
Raffensperger’s Office
Office reporting
reporting “Pro
“Pro V&V
V&V found
found no
no evidence
evidence of
of
the machines
the machines being
being tampered.”
tampered.” Ex.303-A;
Ex.303-A; Ex.222,
Ex.222, 4.
¶4.
On November
On November 19,
19, 2020,
2020, Secretary
Secretary Raffensperger
Raffensperger announced
announced that
that Georgia’s
Georgia’s
statewide 100%
statewide 100% hand
hand recount,
recount, ordered as part
ordered as part of
of aa risk-limiting
risk-limiting audit
audit (“RLA”),
(“RLA”),
“upheld and
“upheld and reaffirmed
reaffirmed the
the original outcome produced
original outcome produced by
by the
the machine
machine tally
tally of
of votes
votes
cast” Ex.303-D;
cast.” Ex.303-D; see
see Ex.303-B
Ex.303-B (RLA
(RLA Report).
Report).
53
53
Georgia then
Georgia then conducted
conducted an additional recount
an additional recount atat the
the request
request of
of the
the Trump
Trump
campaign, and
campaign, and on
on December
December 7,
7, 2020,
2020, Secretary
Secretary Raffensperger
Raffensperger recertified
recertified the
the
accurate results
accurate results of
of the
the 2020
2020 Presidential
Election. Ex.303-E.
Ex.303-E.
Michigan: Michigan conducted
Michigan: Michigan conducted extensive
extensive post-election
post-election audits,
audits, and
and these
these
audits verified
audits verified the
the election
election results
results across
across the
the state.
state. Ex.306-B
Ex.306-B (Michigan
(Michigan audits
audits
report). The
report). Republican-led Michigan
The Republican-led Michigan Senate
Senate Oversight
Oversight Committee
Committee then
then conducted
conducted
its own
its own comprehensive investigation and
comprehensive investigation and again
again “found
“found no
no evidence
evidenceofwidespread
of widespread or
or
systematic fraud
systematic fraud inin Michigan’s
Michigan's prosecution
prosecution of
of the
the 2020
2020 election.”
election.” Ex.306-C
Ex.306-C atat p.3
p.3
(Michigan State
(Michigan State Senate
Senate Oversight
Oversight report).
report). Michigan officials
Michigan officials also
also repeatedly
repeatedly
debunked rumors
debunked rumors arising from the
arising from the human
human error
error by
by the
the county clerk that
county clerk that led
led to
to
inaccurate unofficial
inaccurate unofficial reporting
reporting in
in Antrim
Antrim County,
County, which
which was
was quickly
quickly caught
caught and
and
fixed, was
fixed, was an
an isolated
isolated incident,
incident, and
and was
was not
not part
part of
of any
any fraud
fraud on the part
on the part of Dominion
of Dominion
to steal
to steal the
the election—a
election—a point
point Fox
Fox does
does not
not contest. See, infra,
contest. See, infra, §I.A.2.c.
SLA 2.c.
Pennsylvania: Former Secretary
Pennsylvania: Former Secretary of
of the
the Commonwealth
Commonwealth Kathy
Kathy Boockvar
Boockvar
explained under
explained under oath
oath that
that she
she did
did not
not believe
believe Dominion
Dominion stole
stole the
the election and had
election and had
seen no
seen no evidence
evidence to
to suggest
suggest itit id. Ex.100, Boockvar
did. Ex.100, Boockvar 45:21-46:14,
45:21-46:14, 50:7-16,
507-16, 178:13-
178:13-
17. Her
17. Her conclusion accords with
conclusion accords with the
the facts.
facts. Contrary to Fox’s
Contrary to Fox's reporting,
reporting, Philadelphia
Philadelphia
and Allegheny
and Allegheny County
County did
did not
not use
use Dominion
Dominion in
in the
the 2020
2020 Presidential
Presidential Election;
Election;
however, 14
however, 14 of
of 67
67 counties
counties in
in the
the State
State did.
did. Id.
/d. 35:25-36:3,
35:25-36:3, 79:5-11,
79:5-11, 150:17-21.
150:17-21.
After the
After election, counties
the election, completed aa statutorily
counties completed statutorily mandated
mandated statistical
statistical sampling
sampling
54
54
audit as
audit as part
part of
of canvassing,
canvassing, and then 63
and then 63 of
of 67
67 counties in the
counties in the state
state completed
completed aa risk-
risk-
limiting audit—both
limiting audit—both of which confirmed
of which confirmed the
the accuracy
accuracy of
ofthe state’s vote
the state’s vote counts.
counts. See
See
id. 46:19-49:5;
id. 46:19-49:5; 25
25 Pa.
Pa. Stat.
Stat. §3031.17
§3031.17 (requiring
(requiring counties
counties to
to conduct
conduct aa “statistical
“statistical
recount of
recount of aa random
random sample
sample of
of ballots”);
ballots”); Ex.354
Ex.354 (election
(election results
results certification
certification
announcement).
announcement).
b.
b. Certification and
Certification and testing
testing
In the
In words of
the words of Maricopa
Maricopa County
County Recorder
Recorder Stephen
Stephen Richer,
Richer, Fox’s
Fox’s “whole
“whole
theory isis absolutely

theory absolutely ludicrous
ludicrous to
to anyone
anyone who
who bothers
bothers researching
researching elections for more
elections for more
than five
than five minutes
minutes or speaking with
or speaking with any elections professional.”
any elections professional.” Ex.139,
Ex.139, Richer
Richer 22:6-
22:6-
23:11. Indeed,
23:11. Indeed, as
as the
the Cybersecurity
Cybersecurity and Infrastructure Security
and Infrastructure Security Agency
Agency (“CISA”)
(“CISA”)
made clear
made in its
clear in its November
November 4,4, 2020
2020 public
public advisory,
advisory, “every
“every state
state has
has voting
voting system
system
safeguards to
safeguards to ensure cach ballot
ensure each ballot cast
cast inin the
the election
election can
can be
be correctly
correctly counted.”
counted.”
Ex.556-A; Ex.556-B.
Ex.556-A; Ex.556-B. Such safeguards include
Such safeguards include certification
certification and
and testing,
testing, which
which
together formed
together formed aa bulwark
bulwark of
of protection
protection that
that made
made Fox’s
Fox's election rigging statements
election rigging statements
implausible from
implausible from the
the outset.
outset.
State certification
State certification laws
laws require
require voting
voting systems
systems to
to go
go through
through testing
testing and
and meet
meet
standards of
standards of accuracy
accuracy before
before use,
use, with
with many
many states
states requiring
requiring federal
federal testing
testing and/or
and/or
certification by
certification by the Election Assistance
the Election Assistance Commission
Commission (“EAC”).
(“EAC”). See Ex.308 atat pp.3-
See Ex.308 pp.3-
44 (EAC
(EAC state
state certification
certification requirements
requirements report);
report); Ex.186,
Ex. 186, Hovland
Hovland Decl.,
Decl., Ex.A,
Ex.A, §§1.5,
§§1.5,
45-48 & Appx.C
4.5-4.8 & Appx.C (EAC(EAC manual
manual outlining
outlining source
source code
code and
and tabulation
tabulation accuracy
accuracy
55
55
testing).
testing). As part
As part of
of Pennsylvania’s
Pennsylvania’s 2019
2019 certification
certification process, for example,
process, for example,
Secretary Boockvar
Secretary Boockvar explained
explained that
that the
the Dominion
Dominion system
system went
went through
through “penetration
“penetration
testing, access-control
testing, access-control testing,
testing, and
and testing
testing to
to ensure that every
ensure that every access
access point,
point, software
software
and firmware
and firmware are
are protected
protected from
from tampering.”
tampering.” Ex.100,
Ex.100, Boockvar
Boockvar 38:23-41:24;
38:23-41:24; see
see
Ex350 atat p.2
Ex.350 p.2 (state
(state senate
senate testimony);
testimony); Ex.309
Ex.309 &
& Ex.405
Ex.405 (certification
(certification documents
documents
and announcement).
and announcement).
Every state
Every state that
that used
used Dominion
Dominion voting
voting machines
machines inin the
the 2020
2020 Presidential
Presidential
Election certified
Election certified them
them prior to the
prior to the election. See Ex.183,
election. See Ex.183, Poulos
Poulos Aff.,
Aff., 18; Ex.185 atat
¶8; Ex.185
p:2. Dominion
p.2. Dominion also
also completed
completed federal
federal testing
testing and
and had
had federal
federal certification
certification for
for its
its
systems prior
systems prior to
to the
the 2020
2020 Presidential
Election. See Ex.186, Hovland
See Ex.186, Hovland Decl.,
Decl., ¶¶18-
§918-
32 &
32 & Exs.A-P.
ExsAP.
Other measures,
Other measures, such
such as
as pre-election
pre-election logic
logic and
and accuracy
accuracy testing
testing of voting
of voting
equipment, afforded
equipment, afforded additional
additional assurances.
assurances. Such testing isis often
Such testing often required
required by
by law.
law.
See,e.g.,
See, Ariz. Rev.
e.g., Ariz. Rev. Stat.
Stat. §16-449;
§16-449; Ga.
Ga. Code §§21-2-374(b), 21-2-379.6(c);
Code §§21-2-374(b), 21-2-379.6(c); Mich.
Mich.
Comp. Laws
Comp. Laws §§168.37,
§§168.37, 168.794,
168.794, 168.795;
168.795; 25
25 Pa.
Pa. Stat.
Stat. §§3006,
§§3006, 3007,
3007, 3011,
3011, 3015,
3015,
3031.5, 3031.14.
3031.5, 3031.14. These requirements meant
These requirements meant that
that inin Maricopa
Maricopa County,
County, Arizona, for
Arizona, for
example, the
example, the Dominion
Dominion voting
voting machines
machines used
used in
in the
the 2020
2020 Presidential
Election “met
“met
mandatory requirements
mandatory requirements during
during logic
logic and
and accuracy
accuracy testing
testing before the Presidential
before the Presidential
Preference Election,
Preference Election, the
the Primary
Primary Election
Election and the General
and the General Election.”
Election.” Ex.210;
Ex210; see
see
Ex.310 (Maricopa
Ex.310 (Maricopa Pre-Logic
Pre-Logic and Accuracy Testing
and Accuracy Certificate).
Testing Certificate).
56
56
For government
For goverment officials
officials who
who administered
administered the
the 2020
2020 Presidential
Election,
measures like
measures like certification and testing
certification and testing provided
provided additional
additional confirmation
confirmation that
that
Dominion’s voting
Dominion’s voting machines
machines had
had not
not manipulated
manipulated votes
votes in
in the
the 2020
2020 Presidential
Presidential
Election. See
Election. See Ex.139,
Ex.139, Richer
Richer 22:6-27:22
22:6-27:22 &
& Ex.120,
Ex.120, Gates
Gates 23:5-30:4
23:5-30:4 (Maricopa
(Maricopa
County, Arizona);
County, Arizona); Ex.100,
Ex.100, Boockvar,
Boockvar, 23:3-25:11, 36:4-37:3 (Pennsylvania).
23:3-25:11, 36:4-37:3 (Pennsylvania).
c.
c. Other public record
Other public record evidence
evidence
Extensive evidence
Extensive from other
evidence from other credible
credible public
public sources
sources made
made the
the falsity
falsity of
of
claims about
claims about Dominion
Dominion rigging
rigging the
the election
election widely
widely known
known immediately
immediately after
after the
the
election and
election and confirmed their falsity
confirmed their falsity in
in the
the weeks
weeks and
and months
months that
that followed.
followed.
On November
On November 4,4, 2020,
2020, aa coalition of nonpartisan
coalition of nonpartisan elections officials from
elections officials from the
the
National Association
National Association of
of State
State Election
Election Directors
Directors (“NASED”) and the
(“NASED”) and the National
National
Association of
Association of Secretaries
Secretaries of
ofState (“NASS”) issued
State (“NASS”) issued aa statement
statement that
that “more than 100
“more than 100
million ballots
million ballots were
were safely
safely and
and securely
securely cast.”
cast.” Ex.311.
Ex.311. The
The same
same day,
day, CISA
CISA updated
updated
its public
its public advisory
advisory to
to reject
reject the
the notion
notion that
that bad
bad actors
actors could
could change
change millions
millions of
of votes
votes
without detection
without detection due to state
due to state “voting system safeguards.”
“voting system safeguards.” Ex.556-A;
Ex.556-A; Ex.556-B.
Ex.556-B.
In the
In the weeks
weeks after
after the
the election, reputable source
election, reputable source after
after reputable
reputable source
source
confirmed what
confirmed what was
was plain
plain from
from the
the outset:
outset:
•«11/12/2020:
11/12/2020: InIn aa joint statement issued
joint statement issued by
by CISA,
CISA, Trump
Trump appointees,
appointees, election
election
security experts,
security experts, and state and
and state local elections
and local elections officials
officials stated:
stated: “All
“Allofthe states
of the states
with close
with close results
results inin the
the 2020
2020 presidential
presidential race
race have
have paper
paper records
records of
of each
each
vote, allowing
vote, allowing the
the ability
ability to
to go
go back
back and
and count
count each
each ballot
ballot ifif necessary.
necessary. This
This
is an
is an added
added benefit
benefit forfor security
security and resilience. This
and resilience. process allows
This process allows for
for the
the
57
57
identification and
identification and correction
correction of
of any
any mistakes
mistakes oror errors.
errors. There is no
There is no evidence
evidence
that any
that voting system
any voting system deleted
deleted or
or lost
lost votes,
votes, changed votes, or
changed votes, or was
was in
in any
any
way compromised.”
way Ex.190 (emphasis
compromised.” Ex.190 (emphasis inin original).
original).
•«11/14/2020: U.S. EAC
11/14/2020: U.S. EAC Commissioner
Commissioner Benjamin
Benjamin Hovland
Hovland stated
stated there
there was
was “no
“no
widespread fraud
widespread fraud or
or malfunction
malfunction that
that would
would change
change the
the result
resultof the election.”
of the election.”
Ex.186, Hovland
Ex.186, Hovland Decl.,
Decl. ¶5.
15.
•« 11/16/2020:
11/16/2020: 5959 election
election security
security and
and computer
computer science
science experts,
experts, including
including
Fox's expert in this case Dan Wallach, jointly announced: “We are aware
Fox’s expert in this case Dan Wallach, jointly announced: “We are aware of
of
alarming assertions being made that the 2020 election was ‘rigged’ by
alarming assertions being made that the 2020 election was ‘rigged’ by
exploiting technical
exploiting technical vulnerabilities.
vulnerabilities. However,
However, inin every
every case
case of which we
of which we are
are
aware, these
aware, these claims
claims either have been
either have been unsubstantiated
unsubstantiated or are technically
or are technically
incoherent. To
incoherent. To our collective knowledge,
our collective knowledge, nono credible evidence has
credible evidence has been
been put
put
forth
forth that supports aa conclusion
that supports conclusion that the 2020
that the 2020 election
election outcome
outcome in in any
any state
state
‘has
has been
been altered
altered through
through technical
technical compromise.” Ex.315.
compromise.” Ex.315.
•«11/17/2020:
11/17/2020: Then-Maricopa Board of
Then-Maricopa Board of Supervisors
Supervisors Chairman
Chairman Clint
Clint Hickman
Hickman
wrote in
wrote in aa public
public letter
letter to
to Maricopa
Maricopa voters:
voters: “The
“The evidence overwhelmingly
evidence overwhelmingly
shows the
shows the system
system used
used inin Maricopa
Maricopa County
County isis accurate
accurate and provided voters
and provided voters
with aa reliable
with reliable election... More than
election….More than 22 million ballots were
million ballots were cast
cast in
in Maricopa
Maricopa
County and
County and there is no
there is no evidence
evidence offraud
of fraud or
or misconduct
misconduct oror malfunction.”
malfunction.”
Ex210.
Ex.210.
•«12/1/2020: U.S. Attorney

12/1/2020: U.S. Attorney General
General William Barr announced
William Barr announced that
thatU.S.U.S. attorneys
attorneys
and FBI
and FBI agents
agents had
had investigated
investigated claims
claims of election fraud,
of election fraud, and
and “to
“to date, we
date, we
have not seen fraud on a scale that could have effected a different outcome
have not seen fraud on a scale that could have effected a different outcome
in
in the election.” Barr
the election.” Barr continued:
continued: “There’s
“There’s been
been one assertion that
one assertion that would
would be
be
systemic fraud and that would be the claim that machines were programmed
systemic fraud and that would be the claim that machines were programmed
essentially to
essentially to skew
skew the
the election results. And
election results. And the DHS and
the DHS and DOJ
DOJ have
have looked
looked
into that, and so far, we haven't seen anything to substantiate that.” Ex.316
into that, and so far, we haven’t seen anything to substantiate that.” Ex.316
atpp.l.
at pp.1, 4.
4.
Most recently,
Most recently, aa bipartisan
bipartisan committee
committee concluded
concluded an
an 18-month
18-month expansive
expansive
government investigation
government investigation into
into the
the circumstances surrounding the
circumstances surrounding the January 6, 2021
January 6, 2021
attack on
attack the United
on the United States
States Capitol:
Capitol: conducting nine public
conducting nine public hearings,
hearings, presenting
presenting
testimony from
testimony from over 70 witnesses,
over 70 witnesses, and
and reviewing
reviewing voluminous
voluminous stacksofdocumentary
stacks of documentary
58
58
evidence and
evidence media. See
and media. Ex.317 atat pp.3-8.
See Ex.317 pp.3-8. In
In their
their December
December 22,
22, 2022
2022 final
final report,
report,
the Select
the Select Committee to Investigate
Committee to Investigate the January 6th
the January 6th Attack
Attack on
on the
the United
United States
States
Capitol confirmed
Capitol confirmed that
that Dominion
Dominion did
did not
not rig
rig the
the 2020
2020 Presidential
Election and
and the
the
election was
election was not
not stolen:
stolen:
Not aa single
Not single witness—nor
witness—nor any
any combination
combination ofwitnesses—provided
of witnesses—provided thethe
Select Committee
Select with evidence
Committee with evidence demonstrating that fraud
demonstrating that fraud occurred
occurred on
on
aa scale
scale even
even remotely
remotely close
close to
to changing the outcome
changing the outcome in in any
any State.
State.
Ex317 atat p.20;
Ex.317 p20; see
see id.
id. atat pp.216-224
pp.216-224 (debunking
(debunking claims about Dominion).
claims about Dominion).
Federal and
Federal and local
local government
goverment officials,
officials, cybersecurity
cybersecurity experts,
experts, and
and Trump
Trump
appointees agreed:
appointees agreed: Dominion
Dominion did
did not
not rig
rig the
the 2020
2020 Presidential
Election.
d.
d. EAC Commissioner
EAC Commissioner Benjamin
Benjamin Hovland’s
Hovland’s sworn
sworn
declaration
declaration
In aa sworn
In swom declaration
declaration dated
dated November
November 28,
28, 2022,
2022, EAC
EAC Commissioner
Commissioner
Benjamin Hovland
Benjamin Hovland attested
attested to
to the
the fact
fact that
that there is no
there is no evidence
evidence Dominion
Dominion voting
voting
systems deleted,
systems deleted, lost,
lost, changed,
changed, or
or compromised votes inin the
compromised votes the 2020
2020 Presidential
Presidential
Election:
Election:
As of
As November 14,
of November 14, 2020,
2020, the
the EAC
EAC had not received
had not received credible
credible or
or
substantiated reports
substantiated reports which
which indicated
indicated aa Dominion
Dominion voting
voting system
system error
error
related to
related to the
the deletion,
deletion, loss,
loss, change,
change, oror compromise
compromise of ofaa vote
vote during
during the
the
2020 presidential
2020 presidential election.
election. In In the
the months
months that
that followed
followed the
the 2020
2020
presidential election
presidential election and
and to
to date,
date, the
the EAC
EAC has
has not
not received
received any credible
any credible
or substantiated
or substantiated reports
reports of this nature.
of this nature.
Ex.186, Hovland
Ex.186, Hovland Decl.,
Decl, 136.
¶36.
59
59
‘This evidence,
This evidence, provided
provided by
by the
the Commissioner
Commissioner of
of the
the federal
federal agency
agency tasked
tasked
with ensuring
with ensuring election
election integrity,
integrity, overseeing federal certification,
overseeing federal certification, and
and monitoring
monitoring for
for
instances of
instances irregularities in
of irregularities in accredited
accredited voting
voting systems,
systems, further
further confirms
confirms what
what was
was
known from
known from the
the start.
start.
e.
e. Dominion’s source
Dominion’s source code
code
The evidence
The identified above
evidence identified above more
more than
than suffices to disprove
suffices to disprove that
that Dominion
Dominion
rigged the
rigged the election. Seeing the
election. Seeing the source
source code
code from
from Dominion’s
machines isis not
not
necessary to
necessary to disprove
disprove that
that sensational
sensational lie.
lie. But
But Dominion
Dominion left
left no
no room
room for
for even
even
unfounded doubt.
unfounded doubt.
Beyond opening
Beyond opening up
up its
its books,
books, answering
answering dozens
dozens of interrogatories, and
of interrogatories, and
producing millions
producing millions of
of pages
pages of
of its
its business
business records,
records, Dominion
Dominion provided
provided its
its source
source
code to
code to Fox’s
Fox's expert
expert Dr.
Dr. Seth Nielson, as
Seth Nielson, as well
well as
as its
its own expert Dr.
own expert Dr. Aviel
Aviel Rubin.
Rubin.
Following review
Following review of
of that
that source
source code,
code, Dr.
Dr. Rubin
Rubin concluded:
concluded:
We were
We were unable
unable to
to detect
detect any
any mechanism
mechanism or functionality for
or functionality for switching
switching
votes, deleting votes, or manufacturing additional fraudulent votes.
votes, deleting votes, or manufacturing additional fraudulent votes.
Vote manipulation algorithms or interfaces for users to manually
Vote manipulation algorithms or interfaces for users to manually
change votes
change votes were
were not
not found
found inin any
anyofDominion’s tabulation software
of Dominion’s tabulation software
(ICC, ICP
(ICC, ICP and
and ICX)
ICX) which
which count
count votes
votes and
and generate
generate election results.
election results.
Ex.548, Rubin
Ex.548, Rubin Aff.,
Aff., 44; Ex.548-A, §146.
¶4; Ex.548-A, ¶146.
In response,
In response, no
no Fox
Fox expert
expert has
has identified
identified any vote-manipulating algorithm
any vote-manipulating algorithm in
in
the source
the source code or any
code or any other
other Dominion
Dominion document—because
document—because none
none exists.
exists. Though
Though
unsurprising, Dominion’s
unsurprising, Dominion’s source
source code
code corroborates the falsity
corroborates the falsityof Fox’s claims.
of Fox’s claims.
60
60
f.
f. Dominion’s contemporaneous
Dominion’s contemporaneous and
and sworn
sworn statements
statements
On top
On of this,
top of this, since
since the
the beginning,
beginning, Dominion
Dominion not
not only
only has
has denied
denied the
the
ludicrous claim
ludicrous that itit rigged
claim that rigged the
the election,
election, itit pointed
pointed out
out how the allegation
how the allegation was
was
absurd and
absurd and verifiably
verifiably false.
false. As
As shown
shown inin Section
Section V.A.,
V.A., infra,
infra, in
in real-time
real-time Dominion
Dominion
sent thousands
sent thousands of communications toto Fox
of communications Fox denying those accusations
denying those accusations and
and providing
providing
links to
links to third-party
third-party sources
sources verifying
verifying its
its statements.
statements.
In this
In this lawsuit,
lawsuit, Dominion’s
representative and
and CEO
CEO John
John Poulos
Poulos
has confirmed
has that Dominion
confirmed that Dominion did
did not
not rig
rig the
the 2020
2020 Presidential
Election. Ex.138,
Ex.138,
Poulos 30(b)(6)
Poulos 30(b)(6) 895:5-9.
895:5-9. Other
Other Dominion
Dominion employees
employees confirmed
confirmed likewise
likewise under
under
oath. See,
oath. e.g.. Ex.131,
See, e.g., Ex.131, Noell
Noell 68:18-69:5
68:18-69:5 (“Dominion
(“Dominion doesn’t
doesn’t flip
flip votes.
votes. We
We don’t
don’t
steal elections.”);
steal elections.”); Ex.109,
Ex.109, Cramer
Cramer 55:13-24
55:13-24 (“The
(“The conspiracy theory that
conspiracy theory that was
was
repeated by
repeated by Fox
Fox News
News that
that somehow
somehow Dominion
Dominion Voting
Voting was
was able to flip
able to flip votes
votes or
or inin
some fashion
some fashion move
move votes….It
votes....It was
was just absurd and
just absurd and yet
yet that
that lie
lie still
still echoes in the
echoes in the
industry”). Fox
industry”). Fox has
has not
not rebutted
rebutted this
this testimony,
testimony, nor
nor could it
could it.
g
g. Fox's lack
Fox’s lack of evidence
of evidence
Because Fox
Because Fox has
has zero
zero evidence
evidence to
to dispute the falsity
dispute the falsity of this claim,
of this Fox cannot
claim, Fox cannot
raise any
raise any issue
issue of
of material
material fact.
fact. Fox
Fox already
already admitted
admitted that
that itit isis “not
“not planning
planning to
to assert
assert
the truth
the truth or
or falsity”
falsity” of
of the
the assertion
assertion that
that Dominion
Dominion rigged
rigged the
the election
election atat trial
trial and
and
does not
does not “have
“have evidence
evidence to
to prove”
prove” its
its truth.
truth. Ex.127,
Ex.127, Lowell
Lowell 30(b)(6)
30(b)(6) 41:22-42:4,
41:22-42:4,
177:13-19. Fox’s
177:13-19. Fox's responses
responses to
to Requests
Requests for
for Admission
Admission similarly
similarly do
do not
not deny
deny the
the
61
61
falsity of
falsity the fraud
of the fraud lie.
lie. See
See Ex.319,
Ex.319, Nos.192
Nos.192 &197.
&197. And
And Fox
Fox admits
admits that
that “President
“President
Trump did not

Trump did not win
win by
by millions
millions of votes that
of votes that were
were shifted
shifted by
by DOMINION
DOMINION software
software
that was
that was expressly
expressly designed
designed for
for that
that purpose.” Id. atat No.209.
purpose.” Id. No.209. Indeed,
Indeed, as
as early as
early as
November 5,5, Fox’s

November Fox’sChiefPolitical
Chief Political Correspondent Bret Baier
Correspondent Bret Baier stated
stated privately
privately “There
“There
is NO
is NO evidence
evidence of fraud. None.”
of fraud. None.” Ex.176.
Ex.176.
Fox cannot
Fox cannot point to witness
point to witness testimony
testimony either. None of
either. None of Fox’s
Fox's witnesses
witnesses have
have
even asserted
even asserted that
that Dominion
Dominion rigged
rigged the
the election in depositions.
election in depositions. Instead,
Instead, Fox
Fox witness
witness
after witness
after witness has
has admitted under oath
admitted under oath that
that they
they have not seen
have not seen evidence
evidence proving
proving
Dominion stole
Dominion stole the
the 2020
2020 Presidential
Election or
or that they do
that they do not
not believe
believe Dominion
Dominion
did. See,
did. See, infra,
infra, §V.B.
§V.B. And
And as Fox itself
as Fox itself has
has conceded in binding
conceded in binding corporate
corporate
representative testimony,
representative testimony, the
the reporting
reporting Fox
Fox has
has “done up until
“done up until now
now has
has shown
shown no
no
credible evidence
credible evidence of
of massive
massive election
election fraud.”
fraud.” Ex.127,
Ex.127, Lowell
Lowell 30(b)(6)
30(b)(6) 132:11-17.
132:11-17.
Not aa single
Not single Fox
Fox witness
witness has
has presented
presented evidence that Dominion
evidence that Dominion rigged
rigged the 2020
the 2020
election because
election because no
noevidence—documentary
evidence—documentary or otherwise—suggests it.
or otherwise—suggests it
Dominion isis therefore
Dominion therefore entitled to summary
entitled to summary judgment on the
falsity of
of all
all of
of
the accused
the accused broadcasts,
broadcasts, 9179(2)-179(t), as they
¶¶179(a)-179(t), as they all
all stated
stated the
the false
false claim
claim that
that
Dominion rigged
Dominion rigged the
the election.
election.
62
62
2.
2. Dominion’s Software
Dominion’s Software and
and Algorithms
Algorithms Did
Did Not
Not Manipulate
Manipulate
Vote Counts
Vote Counts in the 2020
in the 2020 Presidential
Election.
Itisis untrue
It untrue that
that Dominion’s
Dominion’s software
software or
or algorithms manipulated votes
algorithms manipulated votes in
in the
the
2020 Presidential
Election. See Appendix DD (Category
See Appendix (Category #2).
#2). Within
Within the
the broader
broader
narrative about
narrative about aa rigged
rigged election, Fox cast
election, Fox cast Dominion
Dominion and its software
and its software as
as the
the engine
engine
of nationwide
of nationwide fraud,
fraud, broadcasting
broadcasting assertions
assertions that
that Dominion,
Dominion, through
through its
its software
software and
and
algorithms, flipped,
algorithms, flipped, manipulated,
manipulated, dumped,
dumped, added,
added, or
or deleted votes, and
deleted votes, that
and that
Dominion monitored
Dominion monitored votes
votes inin real
real time
time and
and notified
notified officials if aa preferred
officials if preferred candidate
candidate
was behind
was behind inin jurisdictions across the
jurisdictions across the country. A few
country. A few examples
examples illustrate:
illustrate:
•« “[Bartiromo:]
“[Bartiromo:] Sidney,
Sidney, wewe talked
talked about
about the
the Dominion
Dominion software.
software. I1know that
know that
there were voting irregularities. Tell me about that. [Powell:]... That is where
there were voting irregularities. Tell me about that. [Powell:]…That is where
thefraud
the fraud took
took place, where they
place, where wereflipping
they were votes in
flipping votes in the computer system
the computer system
or
or adding votes that
adding votes that did
did not exist.” §179(a);
not exist.” see also
¶179(a); see §§179(1), 179(q).
also ¶¶179(l), 179(q).
•« “[Powell:]…all
“[Powell:]...all the
the machines
machines are infected with
are infected with the
the software code that
software code that allows
allows
Dominion
Dominion to to shave votes for
shave votes for one
one candidate
candidate andand give
give them
them to to another and
another and
other features
other features that
that do
do the
the same
same thing….Different
thing....Different states
states shaved
shaved different
different
amounts of
amounts of votes,
votes, or
or the
the system
system was
was set
set up
up toto shave
shave and
and flip
flip different
different votes
votes inin
different states.”
different states.” §179(m); see also
¶179(m); see also 179).
¶179(n).
•« “[Powell:]…We’re
“[Powell:]... We're talking
talking about
about the
the alteration
alteration and changes in
and changes in millions
millions of—
of—
of votes; some
of votes; being dumped
some being that were
dumped that were for
for President
President Trump,
Trump, some
some being
being
Slipped that were
flipped that were for
for President
President Trump...
Trump…. AllAll kinds
kinds ofdifferent
of different means
means ofof
‘manipulating
manipulating thethe Dominion
Dominion and Smartmatic software
and Smartmatic that, of
software that, of course, we
course, we
would not
would not expect Dominion or
expect Dominion or Smartmatic
Smartmatic toto admit.”
admit.” §179(e).
¶179(e).
•« “[Giuliani:]
“[Giuliani:] Every
Every ballot
ballot they
they could see just
could see had Biden’s
just had Biden’s name
name on
on it,
it, nobody
nobody
else, not
else, not even
even another Democrat. Now,
another Democrat. Now, whywhy does that happen?
does that happen? ItIt happens
happens
because you
because you know
know you're behind. Dominion--
you’re behind. Dominion-- [Bartiromo:]
[Bartiromo:] Yeah.
Yeah. [Giuliani:]
[Giuliani:]
notifies you,
notifies you, you
you calloff
call off the
the counting
counting and
and then
then you
you start
start doing
doing ballots
ballots like
like
this. [gesturing] You
this. [gesturing] You can’t
can’t –— you
you can’t
can’t do
do the
the downticket.”
downticket.” §179(g).
¶179(g).
63
63
•« “[Powell:]
“[Powell:] They
They can
can watch
watch votes
votes in
in real
real time. They can
time. They can shift votes in
shift votes in real
real
time. We've identified
time. We’ve identified mathematically
mathematically thethe exact
exact algorithm
algorithm they
they used
used and
and
planned
planned to
to usefrom
use from the
the beginning
beginning toto modify the votes
modify the votes in
in this
this case to make
case to make
sure
sure Biden won...” ¶179(g).
Biden won….” {179(g).
•« “[Dobbs:]
“[Dobbs:] But
But concomitantly,
concomitantly, Dominion
Dominion Voting
Voting Systems,
Systems, which
which you
you have
have
described it with algorithms in which—which were designed to be
described it with algorithms in which—which were designed to be
inaccurate rather than
inaccurate rather than to
to be
be aa secure
secure system.”
system.” §179(c).
¶179(o).
A strain
A strain of
of this
this lie
lie was
was that
that Dominion
Dominion voting
voting machines
machines used
used Smartmatic
Smartmatic
software, and
software, that Dominion/Smartmatic
and that Dominion/Smartmatic software
software was
was designed
designed to
to rig
rig elections.
elections.
See, e.g.,
See, e.g.. 179d). 179(0), 179(g),
¶¶179(d), 179(f), 179(2). 179(h),
179(h). 179(i),
179). 179(j),
179). 179(q).
179(q). Various
Various Fox
Fox
broadcasts asserted
broadcasts asserted that
that the software had
the software hadaa “backdoor,”
“backdoor,” 9f179(2), 179(k), and
¶¶179(g), 179(k), and aa
“controller,” §179(p),
“controller,” 179(q), and
¶¶179(p), 179(q), and was
was “designed in aa way
“designed in way that
that the
the system
system could
could
change the
change the vote
vote of
of each voter without
each voter without being
being detected,”
detected.” §179(h).
¶179(h).
Undisputed evidence
Undisputed evidence shows
shows that
that these
these statements
statements were
were false.
false.
a.
a. State audits, recounts,
State audits, recounts, certification, testing &
certification, testing & other
other
public record
public record evidence
evidence
‘The evidence
The evidence that
that shows
shows Dominion
Dominion did not rig
did not rig the
the election
election also
also disproves
disproves the
the
more specific
more specific claim that Dominion
claim that Dominion stole
stole the
the election
election through
rough its
its software
software or
or
algorithms. As
algorithms. As explained in Section
explained in Section I.A.1.a.,
1.A.1.a., contested
contested jurisdictions
jurisdictions across the U.S.
across the U.S.
that used
that used Dominion’s
software and
and auditable
auditable paper
paper ballot
ballot system
system conducted
conducted audits
audits
and recounts
and that verified
recounts that verified the
the results
results of
of the
the 2020
2020 Presidential
Election. As
As explained
explained
in Section
in Section I.A.1.b.,
LA. 1.b., safeguards
safeguards from
from certification
certification and
and testing
testing further
further ensured
ensured that
that the
the
voting systems
voting counted votes
systems counted votes accurately. Numerous public
accurately. Numerous public sources,
sources, including
including those
those
64
64
cited inin Section
cited Section I.A.1.c.,
LA. 1.c.. also
also debunked
debunked the algorithm lie
the algorithm lie inin real
real time.
time. Commissioner
Commissioner
Hovland has
Hovland has confirmed
confirmed that
that there
there isis no
no evidence Dominion voting
evidence Dominion voting systems
systems deleted,
deleted,
lost, changed,
lost, changed, or
or compromised votes, as
compromised votes, as stated
stated inin Section
Section I.A.1.d.
LA.1.d.
b.
b. Nature
Nature of election administration
of election administration
General knowledge
General knowledge about
about how
how elections work further
elections work further demonstrates
demonstrates that
that the
the
asserted forms
asserted formsof vote manipulation
of vote manipulation and,
and, inin particular,
particular, external
external control
control by
by Dominion,
Dominion,
were not
were not feasible.
feasible. Dominion
Dominion does
does not
not “run
“run elections.” Ex.138, Poulos
elections.” Ex.138, Poulos 30(b)(6)
30(b)(6)
785:15. “Local
785:15. “Local jurisdictions have the
jurisdictions have primary responsibility
the primary responsibilityofadministering state
of administering state
and federal
and federal elections and of
elections and of tabulating,
tabulating, reporting,
reporting, and
and certifying
certifying results”
results” according
according
to applicable
to applicable law.
law. Ex.320
Ex.320 atat p.2
p.2 (EAC
(EAC 2020
2020 election
election report);
report); see Ex.100, Boockvar
see Ex.100, Boockvar
18:25-20:12 (confirming
18:25-20:12 (confirming counties administer elections).
counties administer elections). Dominion
Dominion does
does not
not see
see
votes, nor
votes, nor does
does itit have
have aa way
way toto monitor
monitor votes
votes during
during elections.
elections. See Ex.183, Poulos
See Ex.183, Poulos
AE, §11.
Aff., As John
¶11. As John Poulos
Poulos explained to the
explained to Michigan State
the Michigan State Senate
Senate Oversight
Oversight
Committee in
Committee in December
December 2020
2020 in
in sworn
sworn testimony,
testimony, “It
“It isis technologically
technologically impossible
impossible
to see
to see votes
votes being
being counted
counted inin real
real time
time or
or to
to flip
flip them.”
them.” Ex.183-A;
Ex.183-A; see Ex.183,
see Ex.183,
Poulos Aff.,
Poulos Aff, §16; Ex.136, Poulos
¶16; Ex.136, Poulos 128:5-23.
128:5-23.
c.
c. Antrim County and
Antrim County and other
other counties
counties
Numerous official
Numerous official sources
sources debunked
debunked the the specific
specific instances
instances of
of claimed vote-
claimed vote-
flipping or
flipping or dumping by Dominion
dumping by Dominion or or its
its software,
software, and
and in
in so
so doing further confirmed
doing further confirmed
that Dominion’s
that Dominion’s software
software did not flip
did not flip votes
votes inin the
the 2020
2020 Presidential
Election.
65
65
Antrim County: InIn the
Antrim County: the 2020
2020 Presidential
Election, Antrim
Antrim County, Michigan
County, Michigan
used Dominion
used Dominion voting
voting systems.
systems. Although
Although human
human error by the
error by the county
county clerk
clerk led
led to
to
incorrect unofficial
incorrect unofficial reporting
reporting of
of vote
vote tallies,
tallies, by
by November
November 6,6, 2020,
2020, officials had
officials had
identified, investigated,
identified, investigated, corrected,
corrected, and
and explained the error,
explained the with the
error, with the Michigan
Michigan
Department of
Department of State
State reporting
reporting that
that the
the Dominion
Dominion “equipment
“equipment and
and software
software did
did not
not
malfunction and
malfunction and all
all ballots
ballots were
were properly
properly tabulated.”
tabulated.” Ex.282.
Ex.282.
The Michigan
The Michigan Department
Department of State confirmed
of State on November
confirmed on November 7,7, 2020,
2020, “The
“The
error
error in
in reporting
reporting unofficial
unofficial results
results in
in Antrim County Michigan
Antrim County Michigan was
was the
the result of
result of
aa user
user error that was
error that was quickly
quickly identified
identified and
and corrected;
corrected; did not affect
did not affect the way ballots
the way ballots
were actually tabulated; and would have been identified in the county canvass
before official
before official results
results were
were reported
reported even
even ifif itit had
had not
not been
been identified
identified earlier….
earlier...
‘These errors can
These errors can always
always be
be identified
identified and
and corrected
corrected because every tabulator
because every tabulator prints
prints aa
paper totals
paper totals tape
tape showing
showing how
how the
the ballots
ballots for
for each
cach race
race were
were counted….
counted... Again,
Again, all
all
ballots wereproperly
ballots were properly tabulated.” Ex.306-D,
tabulated.” Ex.306-D.
Directorof
Michigan Director of Elections Jonathan Brater attested in December 2020 in
a declaration that the human error “did not affect how tabulators counted
ballots... Further, there is no evidence leading me to believe that this was the result
ballots....Further,
of intentional misconduct by an election official, was a result of software or
equipment malfunction,
equipment malfunction, or was caused
or was by some
caused by some sort
sort of tampering.” Ex.306-A,
of tampering.” Ex.306-A, 11;
¶11;
see
see also Ex.306, Brater Aff., {7
¶7 (sworn affidavit confirming above).
66
66
As described,
As supra, Michigan
described, supra, Michigan also conducted aa complete
also conducted complete hand
hand recount
recount that
that
confirmed Antrim
confirmed Antrim County’s
County’s election
election results,
results, Ex.306-B,
Ex.306-B, and
and the
the Republican-led
Republican-led
Michigan Senate
Michigan Senate Oversight
Oversight Committee
Committee conducted
conducted its
its own
own comprehensive
comprehensive
investigation and
investigation and found
found with
with respect
respect toto Antrim
Antrim County
County that
that “the
“the official
official vote
vote count
count
was never
was never in
in doubt and was
doubt and was validated
validated several
several times,
times, including
including during
during aa complete,
complete,
hand recount,”
hand recount,” Ex.306-C
Ex 306-C atat p.19.
p.19.
Simply put,
Simply put, there
there isis no
no genuine dispute about
genuine dispute what happened
about what happened inin Antrim.
Antrim
Detroit: In addition
Detroit: In to debunking
addition to debunking the
the Antrim
Antrim County fraud claim,
County fraud both the
claim, both the
Michigan Department
Michigan Department of State and
of State and the
the Michigan
Michigan Senate
Senate Oversight
Oversight Committee
Committee
debunked claims
debunked claims of
of Dominion
Dominion “dumping” ballots as
“dumping” ballots part of
as part ofaa supposed
supposed election fraud
election fraud
in Detroit,
in Detroit, Michigan.
Michigan. See
See Ex.306-B
Ex.306-B atat pp.19-23;
pp.19-23; Ex.306-C
Ex.306-C atat pp.26-27.
pp.26-27. Dominion’s
Dominion’s
CEO John
CEO Poulos has
John Poulos has also
also denied
denied itit under
under oath.
oath. Ex.183,
Ex.183, Poulos
Poulos Aff.,
Aff., ¶12.
§12.
Georgia: Georgia
Georgia: Georgia debunked
debunked claims related to
claims related to particular
particular counties through its
counties through its
100% hand
100% hand recount
recount and
and forensic
forensic audit
audit of Dominion machines.
of Dominion machines. See, supra, §I.A.1.a.
See, supra, §LA.1.a.
For example,
For as stated
example, as stated in
in an
an official
official publication of the
publication of the Office
Office of
of Georgia
Georgia Secretary
Secretary
of State
of State concerning
concerning claims
claims of vote-flipping in
of vote-flipping in Ware
Ware County,
County, Georgia, “No one
Georgia, “No one has
has
unearthed evidence
unearthed evidence of “vote flipping’
of ‘vote flipping’ because
because itit didn’t
didn’t happen.
happen. And
And no
no one has
one has
discovered some
discovered some secret
secret algorithm
algorithm for
for altering
altering the
the election
election outcome
outcome because
because that’s
that’s
nonsense.” Ex.303-F.
nonsense.” Ex.303-F.
67
67
d.
d. Dominion’s contemporaneous
Dominion’s contemporaneous and
and sworn statements
sworn statements
Dominion’s corporate representative
representative and
and CEO
CEO John
John Poulos
Poulos has
has also
also
confirmed under
confirmed under oath
oath that
that Dominion’s
software and
and algorithms
algorithms used
used inin the
the 2020
2020
Presidential Election did not manipulate
did not manipulate vote
vote counts,
counts, and
and Dominion’s
Dominion’s voting
voting
machines did
machines did not
not run
run or
or use
use Smartmatic
Smartmatic software
software or
or technology.
technology. Ex.137,
Ex.137, Poulos
Poulos
30(b)(6) 430:7-21;
30(b)(6) 430:7-21; Ex.138,
Ex.138, Poulos
Poulos 30(b)(6)
30(b)(6) 895:10-14;
895:10-14;Ex. 183, Poulos
Ex.183, Poulos Aff.,
Aff., ¶13.
§13.
Similarly, inin sworn
Similarly, swom testimony
testimony before
before the
the Michigan
Michigan Senate
Senate Oversight
Oversight
Committee, Poulos
Committee, Poulos stated
stated inin December
December 2020,
2020, “Additionally,
“Additionally, Dominion
Dominion does
does not
not
have any
have any servers
servers inin Germany
Germany or Spain. No
or Spain. No votes
votes are
aresent
sent overseas. Let me
overseas. Let me be
be clear.
clear.
Ballots aren’t
Ballots aren’t sent
sent anywhere, not overseas,
anywhere, not overseas, not
not over state lines,
over state lines, and
and not
not even over
even over
county lines.
county lines. All
All the
the votes
votes are
are counted
counted by
by local
local bipartisan
bipartisan US
US election
election officials in
officials in
the United
the United States.”
States.” Ex.183-A;
Ex.183-A; see
see Ex.183,
Ex.183, Poulos
Poulos Aff.,
Aff., ¶16.
§16. Former
Former Pennsylvania
Pennsylvania
Secretary of
Secretary of Commonwealth
Commonwealth Kathy
Kathy Boockvar
Boockvar likewise
likewise verified:
verified: the
the claim
claim that
that
“Dominion sends
“Dominion sends everything
everything to
to Smartmatic”
Smartmatic” and
and “votes
“votes are
are sent
sent overseas”
overseas” isis
“[albsolutely 100
“[a]bsolutely 100 percent false.” Ex.100,
percent false.” Ex. 100, Boockvar
Boockvar 56:11-18.
56:11-18.
e.
e. Fox's lack
Fox’s lack of
of evidence
evidence
Fox has
Fox has nothing
nothing toto rebut
rebut this
this evidence.
evidence. Its
Iis corporate representative offered
corporate representative no
offered no
evidence of
evidence of vote
vote flipping,
flipping, manipulating,
manipulating, dumping,
dumping, adding,
adding, or
or deleting by Dominion
deleting by Dominion
or its
or its software
software and
and has
has conceded that he
conceded that he has
has not
not seen
seen evidence
evidence of
of votes
votes for
for Donald
Donald
Trump blowing up
Trump blowing up the
the algorithm
algorithm or the vote-flipping
or the vote-flipping evidence
evidence that
that Powell
Powell
68
68
referenced on
referenced on air,
air, Ex.127,
Ex.127, Lowell
Lowell 30(b)(6)
30(b)(6) 127:6-14,
127:6-14, 179:3-180:5,
179:3-180:5, 185:19-186:5,
185:19-186:5,
and conceded
and conceded that Fox does
that Fox does not
not have
have evidence to support
evidence to support that
that Dominion
Dominion had
had an
an
algorithm used
algorithm used to
to modify
modify the
the votes
votes to
to make
make sure
sure Biden
Biden won,
won, id.
id. 126:5-127:5.
126:5-127:5.
Indeed, Fox
Indeed, Fox appears
appears not
not toto contest numerous statements
contest numerous statements that
that fall
fall under
under the
the
algorithm lie.
algorithm lie. For
For example,
example, inints responses to
its responses to Dominion’s
Dominion’s Requests
Requests for
for Admissions,
Admissions.
Fox does
Fox not contest
does not (instead claiming
contest (instead claiming itit can
can neither
neither admit
admit nor
nor deny) that “there
deny) that “there isis
not an
not an algorithm
algorithm that
that Dominion
Dominion used
used and
and planned
planned to use from
to use from the
the beginning
beginning toto
modify the
modify the votes
votes inin this
this case
case to
to make
make sure
sure Biden
Biden won,”
won,” Ex.319,
Ex.319, No.212
No.212 (¶¶179(a,
(44179. g,g.
jn, 0, @));
j, n, o, “Dominion does
q)); “Dominion does not
not allow
allow votes
votes to be mirrored
to be mirrored and
and monitored,”
monitored,” id.
id.
No.208 (¶179(g));
No.208 (§179(g)): “Dominion
“Dominion did not run
did not run an
an algorithm
algorithm that
that shaved
shaved votes,”
votes,” id.
id.
No.219 (¶179(m,
No.219 (4179(m, n));
n)); “Dominion
“Dominion did not use
did not use an
an algorithm to calculate
algorithm to calculate the
the votes
votes they
they
would need
would need to flip and
to flip and use
use computers
computers to
to flip
flip those votes from
those votes from Trump
Trump toto Biden,”
Biden,” id.
id.
N0.202 (¶179(a));
No.202 (§179(a)): and
and “Dominion
“Dominion did not have
did not have algorithms
algorithms that
that would
would stop
stop the
the vote
vote
count and
count and go
go in
in and
and replace
replace votes
votes for
for Biden
Biden and
and take
take away Trump votes,”
away Trump votes,” id.
id. No.204
No.204
(9179): see
(¶179(a)); see also
also No.225
No.225 (admitting
(admitting Trump
Trump did not “blow
did not “blow up”
up” the
the algorithm)
algorithm)
179).
(¶179(q)).
Nor could
Nor could Fox
Fox credibly
credibly argue
argue otherwise.
otherwise. Multiple Fox
Multiple Fox witnesses
witnesses have
have
admitied under
admitted under oath
oath atat depositions
depositions that
that the
the algorithm
algorithm lie
lie was
was false
false or
or lacked
lacked
evidentiary support.
evidentiary support. See,
See, e.g.,
e.g.. Ex.96,
Ex.96, Andrews
Andrews 31:22-32:2;
31:22-32:2; Ex.111,
Ex.111, Dobbs
Dobbs 87:13-
87:13-
69
69
25, 90:15-91:15;
25, 90:15-91:15; Ex.105,
Ex.105, Carlson 163:21-24; Ex.121,
Carlson 163:21-24; Ex.121, Grossberg 263:5-10; Ex.135,
Grossberg 263:5-10; Ex.135,
Pirro 89:3-13;
Pirro 89:3-13; Ex.146,
Ex. 146, Stirewalt 154:20-155:17; Ex.145,
Stirewalt 154:20-155:17; Ex.145, Smith
Smith 34:15-22,
34:15-22, 35:14-22.
35:14-22.
Nonetheless, Fox
Nonetheless, Fox has
has said
said that it plans
that it plans to
to offer
offer evidence
evidence that
that “some votes were
“some votes were
flipped,” though
flipped,” though Fox
Fox couldn’t
couldn’t say
say what
what evidence
evidence that
that might
might be.
be. Ex.127,
Ex.127, Lowell
Lowell
30(b)(6) 53:5-13.
30(b)(6) 53:5-13. To
To the
the extent
extent Fox’s
Fox’s focus
focus appears
appears to
to be
be the
the isolated
isolated incident
incident in
in
Antrim County,
Antrim Michigan, that
County, Michigan, that was
was human error by
human error by aa local
local election
election official; it
official; it
caused inaccuracies
caused inaccuracies in
in unofficial
unofficial election
election results
results of
of the
the Presidential
Election; and
and
government officials
government officials repeatedly
repeatedly confirmed Dominion’s system
confirmed Dominion’s system had
had correctly
correctly
tabulated votes.
tabulated votes. See,
See, supra,
supra, §I.A.2.c.
SLA. 2.c. Michigan
Michigan officials
officials also
also confirmed they would
confirmed they would
have caught
have caught the
the error
error during
during canvassing,
canvassing, ifif not
not caught
caught earlier (as itit was).
earlier (as was). See
See id.
id.
But even
But even assuming
assuming that
that inadvertent
inadvertent human
human error
error by
by an
an election
election official that
official that
caused erroneous
caused unofficial reporting
erroneous unofficial reporting constitutes
constitutes “vote
“vote flipping”
flipping” by
by Dominion,
Dominion, that
that
proposition would
proposition would not
not avoid
avoid summary
summary judgment on the
judgment on the lie
lie that
that Dominion’s
software
and algorithms
and manipulated vote
algorithms manipulated vote counts
counts in
in the
the 2020
2020 Presidential
Election. Fox’s
Fox’s
statements did
statements did not
not charge
charge Dominion
Dominion with
with merely
merely having
having software
software susceptible
susceptible to
to user
user
error that
error that could
could cause
cause inaccurate
inaccurate unofficial
unofficial reporting.
reporting. The algorithm lie
The algorithm lie isis far
far
broader. And
broader. And “[a]
“{a] plea
plea of truth as
of truth as justification must be
justification must be as
as broad
broad as
as the
the alleged
alleged libel
libel
and must
and must establish
establish the
the truth
truthof the precise
of the precise charge
charge therein
therein made.”
made.” Crane
Crane v.v. New York
New York
World Telegram
World Telegram Corp.,
Corp., 308
308 N.Y.
N.Y. 470,
470, 475 (N.Y. 1955).
475 (N.Y. 1955).
70
70
Beyond asserting
Beyond that Dominion
asserting that Dominion flipped
flipped votes,
votes, Fox
Fox falsely
falsely stated
stated that
that
Dominion designed
Dominion designed aa vote-flipping
vote-flipping algorithm,
algorithm, used “backdoors” and
used “backdoors” and “embedded
“embedded
controllers,” and
controllers,” and for
for the
the purpose
purpose of
of committing
committing fraud monitored, flipped,
fraud monitored, flipped. added,
added,
and/or deleted
and/or deleted votes,
votes, and
and not
not just
just “some votes,” inin an
“some votes,” an isolated
isolated county,
county, but
but “millions”
“millions”
of votes
of votes across
across the
the country.
country. None
None of
of that
that isis true
true for
for all
all the
the reasons
reasons explained
explained above.
above.
Thus, even setting
Thus, even setting aside
aside all
all references
references to
to Antrim
Antrim County,
County, or even more
or even more broadly
broadly
references toto “vote
references “vote flipping,”
flipping,” the
the statements
statements remain
remain absolutely
absolutely false.
false.
Fox’s other
Fox’s other apparent
apparent critique is that
critique is that Dominion
Dominion voting
voting systems
systems have
have
“Vulnerabilities” that
“vulnerabilities” that could
could allow
allow aa malicious
malicious actor
actor to breach the
to breach the system
system under
under some
some
circumstances. But
circumstances. But that
that isis aa red
red herring:
herring: Dominion
Dominion has
has not
not sued
sued for
for defamation
defamation
about any
about any statement
statement asserting
asserting that
that Dominion
Dominion voting
voting systems
systems had alleged
had alleged
vulnerabilities.
vulnerabilities.
Furthermore, the
Furthermore, the existence
existence of
of vulnerabilities
vulnerabilities does
does not
not cover
cover the breadth of
the breadth of the
the
false charges
false in two
charges in two ways.
ways. Crane, 308 N.Y.
Crane, 308 N.Y. atat 475. First, this
475. First, this category's statements
category’s statements
indicated Dominion
indicated flipped votes,
Dominion flipped votes, 179(e),
¶179(e), Dominion could watch
Dominion could watch votes,
votes, ¶179(g),
§179(g).
Dominion notifies government
Dominion notifies government officials,
officials, §179(g), and Dominion
¶179(g), and sent votes
Dominion sent votes
overseas, §179(i)—all
overseas, of which
¶179(i)—all of which link
link supposed
supposed action
action by
by Dominion to the
Dominion to the flipping
flipping of
of
votes. Security
votes. vulnerabilities that
Security vulnerabilities that theoretically
theoretically could be breached
could be breached by
by an
an unknown
unknown
individual are
individual are far
far different, and not
different, and not “as
“as broad,”
broad,” as
as Fox’s
Fox's false
false charges about
charges about
Dominion.
Dominion.
71
71
Second, Fox
Second, Fox did
did not
not frame
frame the
the lies
lies as
as aa hypothetical.
hypothetical. Unlike
Unlike the
the assertion
assertion that
that
voting machines
voting machines have
have vulnerabilities,
vulnerabilities, Fox’s
Fox’s statements
statements alleged
alleged manipulation
manipulation
actually
actually occurred
occurred through software, algorithms,
through software, algorithms, and
and extemal control by
external control by Dominion.
Dominion.
For example,
For example, Sidney
Sidney Powell
Powell declared on aa December
declared on December 10,
10, 2020
2020 airing
airing of
of Lou
Lou Dobbs
Dobbs
Tonight, “We
Tonight, now have
“We now have reams
reams and
and reams
reamsofactual documents from
of actual documents from Smartmatic
Smartmatic and
and
Dominion, including
Dominion, including evidence that they
evidence that they planned
planned and
and executed
executed all
all ofthis...We have
of this....We have
evidence of
evidence of how
how they
they flipped
flipped the
the votes,
votes, how
how itit was
was designed
designed to
to flip
flip the
the votes.
votes. And
And
that all
that all of it has
of it has been
been happening
happening just as we’ve
just as we've been
been saying
saying itit has
has been.”
been.” §179(q).
¶179(q).
These statements do
These statements do not
not concern
concern “vulnerabilities.”
“vulnerabilities.” They
They revolve
revolve around
around the
the false
false
chargeofplanned
charge and designed
of planned and designed vote
vote flipping
flipping that
that actually
actually occurred.
occurred. As
As Maricopa
Maricopa
County Recorder
County Recorder Stephen
Stephen Richer
Richer put
put itit when
when asked
asked by
by Fox
Foxifif “concerns”
“concems” about
about “the
“the
use of
use of voter tabulation” were
voter tabulation” were new
new in
in 2020:
2020: “I
“1 think
think we went pretty
we went pretty quickly from
quickly from
saying crime
saying crime could
could be
be aa problem
problem to
to person
person X,
X, Y,
Y, ZZ to
to Mrs.
Mrs. White
White with
with the
the rope
rope in
in
the study
the study committed
commitied the crime.” Ex.139,
the crime.” Ex.139, Richer
Richer 108:15-22.
108:15-22.
To be
To be clear, as explained
clear, as above, Fox
explained above, Fox has
has zero
zero evidence to suggest
evidence to suggest Dominion
Dominion
used its
used its software
software to
to manipulate
manipulate votes.
votes. And
And in
in particular,
particular, Fox
Fox has
has admitted
admitted Powell
Powell
never provided
never provided the
the “reams”
“reams”ofproof claimed on
of proof claimed on air.
air. See Ex.128, Lowell
See Ex.128, Lowell 30(b)(6)
30(b)(6)
285:6-13; see
285:6-13; also Ex.319,
see also Ex319, RFA
RFA No.222
No.222 (not
(not denying
denying that
that Powell
Powell lacked
lacked credible
credible
evidence of
evidence of how Dominion flipped
how Dominion flipped votes).
votes). In
In fact,
fact, Fox
Fox host Lou Dobbs
host Lou Dobbs admitted
admitted
7
72
that Powell
that Powell did
did not
not reveal
reveal such
such evidence
evidence on his show
on his show or
or anywhere else. Ex.111,
anywhere else. Ex.111,
Dobbs 269:2-271:5.
Dobbs 269:2-271:5.
And inin fact,
And fact, there
there isis zero
zero evidence that any
evidence that security breach
any security breach related
related toto
Dominion’s systems
Dominion’s systems actually occurred in
actually occurred in the
the 2020
2020 Presidential
Election. In
In fact,
fact,
Fox’s own
Fox’s own expert
expert Dan
Dan Wallach confirmed inin aa November
Wallach confirmed November 16,
16, 2020
2020 letter,
letter, signed
signed by
by
himself
himself and 58 other
and 58 other scientists,
scientists, that
that there
there was
was “no
“no credible
credible evidence”ofthe claim of
evidence” of the claim of
rigging through
rigging through exploitation
exploitation of
of technical
technical vulnerabilities.
vulnerabilities. Ex.315
Ex.315 (“Merely
(“Merely citing
citing the
the
existenceoftechnical
existence flaws does
of technical flaws not establish
does not establish that
that an
an attack
attack occurred,
occurred, much
much less
less that
that
it altered
it altered an election outcome.”).
an election At his
outcome.”). At his deposition, Professor Wallach
deposition, Professor Wallach maintained
maintained
that this
that this letter
letter was
was correct. Ex.95, Wallach
correct. Ex.95, Wallach 7:12-9:5.
7:12-9:5.
No reasonable
No reasonable juror
juror could find that
could find that Dominion
Dominion or its software
or its software flipped
flipped votes
votes in
in
the 2020
Election. Summary
Summary judgment of the
judgment of the falsity
falsity of all accused
of all accused
broadcasts containing
broadcasts containing the
the algorithm
algorithm lie,
lie, 1§179(a), 179(c)-179(q). isis thus
¶¶179(a), 179(c)-179(q), thus also
also proper.
proper.
3.
3. Dominion Is
Dominion Is Not
Not Owned
Owned by by aa Company
Company Founded
Founded inin
Venezuela to Rig Elections for the Dictator Hugo Chavez.
Venezuela to Rig Elections for the Dictator Hugo Chavez.
Another outlandish
Another outlandish componentofFox’s false narrative
component of Fox’s false narrative was the fiction
was the fiction that
that
Dominion was
Dominion was owned
owned by
by aa company founded in
company founded in Venezuela
Venezuela to
to rig
rig elections for Hugo
elections for Hugo
Chavez.
Chavez. See Appendix DD (Category
See Appendix (Category #3).
#3). Fox
Fox repeatedly
repeatedly broadcast
broadcast this
this lie,
lie,
publishing the
publishing the fable
fable that
that Dominion
Dominion was
was owned by aa company
owned by founded inin Venezuela,
company founded Venezuela,
Smartmatic, $179(b).
Smartmatic, 179(c), 179(f),
¶¶179(b), 179(c), 179(f). 179(g),
179(g). 179(h),
179(h), 179(k),
179(k), that
that Dominion
Dominion and/or
and/or
73
73
its supposed
its supposed owner
owner Smartmatic
Smartmatic were
were formed
formed to
to rig
rig elections in Venezuela
elections in Venezuela and
and
elsewhere, §179(b),
elsewhere, 179(c), 179(e),
¶¶179(b), 179(c), 179(e), 179(g),
179(2), 179(i),
1790), 179(j),
1796). 179(q),
179(q), and that
and that
Dominion machines
Dominion machines used
used Smartmatic
Smartmatic software
software to
to count votes, 4179(b),
count votes, 179(d),
¶¶179(b), 179(d),
179(g), 179(i),
179(g), 1796), 179(j),
179()), 179(l).
1790).
None of
None of those
those statements
statements isis true—which
true—which Fox
Fox knows
knows and
and has
has conceded
conceded
expressly: first
expressly: first in
in its
its RFA
RFA responses
responses and
and then
then in
in binding
binding corporate
representative
testimony confirming
testimony confirming its
its admissions.
admissions.
In Fox
In Fox News’
News’ responses
responses to
to Dominion’s
Dominion’s Requests
Requests for
for Admission
Admission (Ex.319),
(Ex.319), Fox
Fox
admitted:
admitted:
•« “FNN...admits
“FNN..admits ‘DOMINION
‘DOMINION isis not not owned
owned byby aa company
company founded
founded inin
Venezuela toto rig
Venezuela rig elections
elections for
for the
the dictator
dictator Hugo
Hugo Chavez,’”
Chavez,” No.
No. 176;
176;
“FNN_..admits ‘DOMINION
‘DOMINION isis not
not aa company
company that
that isis currently
currently owned
owned by
by
Smartmatic,” No.
Smartmatic,’” No. 180;
180; and
and
“FNN_..admits ‘DOMINION
“DOMINION waswas not
not created
created for
for the
the express
express purpose
purposeofbeing
of being
able to
able to alter votes and
alter votes and secure
secure the reelection of
the reelection Hugo Chavez
of Hugo Chavez and
and then
then
Maduro, No.
Maduro,’” No. 194.
194.
These RFA
These RFA admissions
admissions by
by themselves have “conclusively
themselves have established” the
“conclusively established” the
falsity of
falsity of these
these statements.
statements. See
See Del.
Del. Super.
Super. Ct.
Ct. Civ. R. 36(b);
Civ. R. 36(b); Merritt
Merritt v.v. United
United
Parcel Service,
Parcel Service, 956 A.2d 1196,
956 A.2d 1196, 1201
1201 (Del.
(Del. 2008).
2008). Fox’s
Fox’s Corporate
Corporate Representative
Representative
Tom Lowell eliminated
Tom Lowell eliminated any
any doubt as to
doubt as to whether
whether Fox
Fox would
would contest
contest these
these statements.
statements.
Ex.127, Lowell
Ex.127, Lowell 30(b)(6)
30(b)(6) 67:2-25;
67:2-25; see id. 108:14-19
see id. 108:14-19 (not
(not founded
founded in
in Venezuela),
Venezuela),
7%
74
134:15-17; id.
134:15-17; id. 138:13-22
138:13-22 (not
(not contending
contending Dominion
Dominion owned
owned by
by Smartmatic);
Smartmatic):; id.
id.
181:4-18 (the
181:4-18 (the Chavez
Chavez connection “proved false”).
connection “proved false”).
Accordingly, the
Accordingly, the Court should find
Court should find no
no genuine
genuine issue
issue of material fact
of material fact and
and grant
grant
summary judgment
summary on the
falsity of each of
of each the accused
of the accused statements
statements espousing
espousing the
the
Venezuela lie
Venezuela lie based on this
based on this evidence
evidence alone.
alone.
Regardless, no
Regardless, no reasonable
reasonable juror would find
juror would find that
that Dominion
Dominion isis owned
owned by
by aa
company formed
company formed toto rig
rig elections
elections inin Venezuela
Venezuela on this record
on this record even
even without
without Fox’s
Fox’s
admissions.
admissions. Dominion’s corporate
Dominion’s corporate documents
documents®8 and
and statements
statements made
made toto
governmental entities,
governmental entities, Ex.354
Ex.354 atat pp.225-226
pp.225-226 (4/15/2020 letter from
(4/15/2020 letter from Dominion
Dominion toto the
the
Commitiee on
Committee on House
House Administration);
Administration); Ex.188
Ex.188 (Georgia
(Georgia proposal,
proposal, Section
Section 1),
1),
confirm that
confirm that Dominion
Dominion was
was not
not formed
formed inin Venezuela
Venezuela and
and has
has never
never been
been owned
owned by
by
Smartmatic or
Smartmatic any company
or any designed toto rig
company designed rig elections.
elections. Dominion’s
Dominion’s CEO
CEO and
and
corporate representative John
John Poulos
Poulos confirmed
confirmed under
under oath that Dominion
oath that Dominion isis not
not
“owned by
“owned by aa company
company founded
founded inin Venezuela
Venezuela toto rig
rig elections
clections for
for the
the dictator Hugo
dictator Hugo
Chavez” Ex.138,
Chavez,” Ex.138, Poulos
Poulos 30(b)(6)
30(b)(6) 895:15-18,
895:15-18, and
and that
that Dominion’s
Dominion’s products
products did
did not
not
CE a SDS ALE ShPee

8
See Ex.325 (2018 Staple Street Purchase Agreement); Ex.326 (US Dominion, Inc.,
Certificate of Incorporation, 6/22/2018); Ex.187 (Dominion Voting Systems, Inc.,
Certificate of
Certificate of Incorporation,
Incorporation, 7/07/2009);
7/07/2009); Ex.327
Ex.327 (Dominion
(Dominion Voting
Voting Systems
Systems
Corporation (“DVSC”),
Corporation (“DVSC”), Articles
Articles of
of Amendment,
Amendment, 6/04/2020);
6/04/2020); Ex.328
Ex.328 (DVSC,
(DVSC.
Articlesof
Articles Amalgamation, 7/13/2018);
of Amalgamation, 7/13/2018); Ex.329
Ex.329 (same,
(same, 12/31/2009);
12/31/2009); Ex.184
Ex.184 (DVSC,
(DVSC,
Articles of
Articles Incorporation 1/14/2003).
of Incorporation 1/14/2003).
7s
75
run or
run or use
use Smartmatic
Smartmatic software
software or
or technology
technology inin the
the 2020
2020 Presidential
Election,
Ex.137, Poulos
Ex.137, Poulos 30(b)(6)
30(b)(6) 430:7-21; Ex.183, Poulos
430:7-21; Ex.183, Poulos Aff.,
Aff, §13.
¶13.
No evidence
No suggests otherwise.
evidence suggests otherwise. Indeed,
Indeed, the
the testimony
testimony from
from Fox’s
Fox's employees
employees
and former
and former employees
employees was
was that
that they
they did
did not
not believe
believe the
the claims
claims or they had
or they had seen
seen no
no
evidence toto support
evidence support them.
them. See,
See, e.g.,
e.g., Ex.102,
Ex. 102, Briganti
Briganti 26:23-25,
26:23-25, 309:6-11;
309:6-11; Ex.105,
Ex.105,
Carlson 163:17-20;
Carlson 163:17-20;Ex.108, Cooper 130:4-12,
Ex.108, Cooper 130:4-12, 136:7-11;
1367-11; Ex.147,
Ex.147, Wallace
Wallace 72:4-12.
72:4-12.
Government officials
Government officials deposed
deposed in
in this
this case testified similarly.
case testified similarly. See
See Ex.100,
Ex.100, Boockvar
Boockvar
55:21-56:18 (Pennsylvania);
55:21-56:18 (Pennsylvania); Ex.139,
Ex.139, Richer
Richer 112:12-113:13
112:12-113:13 (Arizona).
(Arizona).
Summary judgment
Summary judgment on all statements
on all statements inin the
the accused broadcasts containing
accused broadcasts the
containing the
Venezuela lie,
Venezuela lie, ¶¶179(b)-179(l),
§9179(b)-179(1), 179(q),
179(q). isis proper.
proper.
4.
4. Dominion Did
Dominion Did Not
Not Pay
Pay Kickbacks
Kickbacks toto Government
Government Officials
Officials
‘Who Used
Who Used Its
Its Machines
Machines in
in the
the 2020
2020 Presidential
Election.
‘The claim
The that Dominion
claim that Dominion paid
paid kickbacks
kickbacks toto government
officials who used its
its
machines in
machines in the 2020 Presidential
the 2020 Presidential Election
Election isis also
also false.
false. See
See Appendix
Appendix DD
(Category #4).
(Category #4).
Dominion’s CEO
Dominion’s CEO and corporate representative
and corporate representative John
John Poulos
Poulos confirmed
confirmed under
under
cath that
oath that Dominion
Dominion did
did not
not “pay
“pay kickback[s]
kickbackls] to
to government
officials who
who used
used its
its
machines in
machines in the
the 2020
2020 presidential
presidential election.”
election.” Ex.138,
Ex.138, Poulos
Poulos 30(b)(6)
30(b)(6) 895:19-22.
895:19-22.
Dominion’s EVP
Dominion’s EVP of
of Sales
Sales Waldeep
WaldeepSingh, who has
Singh, who has worked
worked for
for Dominion
Dominion since
since 2010
2010
and has
and has overseen customer sales
overseen customer sales and
and contracts, likewise confirmed
contracts, likewise confirmed under
under oath that
oath that
76
76
throughout his
throughout his time
time with
with the
the company
company no
no one
one atat Dominion,
Dominion, including
including himself,
himself, had
had
“ever bribed
“ever bribed aa government official.” Ex.144,
government official.” Ex.144, Singh
Singh 57:4-7.
57:4-7.
Elections officials
Elections officials from
from Pennsylvania
Pennsylvania and
and Arizona
Arizona who were involved
who were involved in
in the
the
certification or
certification selection of
or selection Dominion voting
of Dominion voting systems
systems used
used in
in the
the 2020
2020 Presidential
Presidential
Election similarly
Election similarly confirmed,
confirmed, inin depositions taken pursuant
depositions taken pursuant toto subpoenas
subpoenas in
in this
this
matter, that
matter, that they
they did not receive
did not receive kickbacks
kickbacks from
from Dominion
Dominion and
and had
had no
no reason
reason to
to
believe Dominion
believe Dominion paid
paid kickbacks
kickbacks to any government
to any official. Ex.100,
government official. Ex.100, Boockvar
Boockvar
49:23-50:6 (Pennsylvania Secretary
49:23-50:6 (Pennsylvania Secretary of
of State
State who
who certified
certified Dominion
Dominion voting
voting
systems); Ex.120,
systems); Ex. 120, Gates
Gates 34:22-35:4
34:22-35:4 (Maricopa
(Maricopa Board
Board of Supervisors Chairman
of Supervisors Chairman who
who
Voted toto authorize
voted authorize contract with Dominion).
contract with Dominion).
With respect
With to Georgia,
respect to Georgia, where
where Fox
Fox published
published the
the false
false claim that Dominion
claim that Dominion
engaged in
engaged in “corruption”
“corruption” and provided “significant
and provided “significant benefits”
benefits” toto Georgia
Georgia officials
officials in
in
exchange for
exchange for “rushing]”
“rush[ing]” through
through aa contract
contract with
with Dominion,
Dominion, 179(m), Dominion has
¶179(m), Dominion has
denied the
denied the claim under oath,
claim under oath, Ex.183,
Ex. 183, Poulos
Poulos Aff.,
Aff., 14, as have
¶14, as have Georgia
Georgia Secretary
Secretary of
of
State Brad
State Brad Raffensperger
Raffensperger and
and Chief Operating Officer
Chief Operating Officer of
of the
the Secretary
Secretary of
of State’s
State’s
Office Gabe
Office Sterling. Ex.222,
Gabe Sterling. Ex.222, Raffensperger
Raffensperger Aff.,
Aff., §3; Ex.303, Sterling
¶3; Ex.303, Aff., 3.
Sterling Aff., ¶3.
The fabrication
The fabrication that Dominion provided
that Dominion provided “election
“election insurance”
insurance” to
to any
any elected
elected
official or
official or provided
provided aa way
way to
to “make
“make sure
sure their
their election
election was
was successful,”
successful,” §179(g). as
¶179(g), as
aaform
form of kickback isis also
of kickback also demonstrably
demonstrably false,
false, for
for the
the same
same reasons
reasons that
that the
the lies
lies about
about
Dominion stealing
Dominion stealing the
the election
election and
and flipping
flipping votes
votes are
are false.
false. See,
See, supra,
supra, §§I.A.1,
SSLA.1, 2.2.
7
77
Fox has
Fox has produced
produced no
no evidence
evidence to
to rebut
rebut any
any of
of this evidence. In
this evidence. In fact,
fact, Fox
Fox has
has
made no
made no effort
effort to
to contest
contest the
the falsity
falsity of the kickbacks
of the kickbacks lie
lie atat all
all (refusing
(refusing to
to admit
admit or
or
deny), as
deny), as reflected
reflected inin its
its RFA
RFA responses,
responses, Ex.319,
Ex.319, No.195,
No.195, and
and as
as confirmed in its
confirmed in its
corporate representative’s
corporate representative’ deposition
deposition testimony,
testimony, Ex.127,
Ex.127, Lowell
Lowell 30(b)(6)
30(b)(6) 73:12-19
73:12-19
(“neither are
(“neither are we planning to
we planning to assert
assert at trial that
at trial that that’s true or
that’s true or false”);
false”; see
see id.
id. 111:6-20,
111:6-20,
119:5-12, 159:17-23.
119:5-12, 159:17-23. And
And numerous
numerous Fox
Fox employees
employees and former employees
and former employees have
have
already admitted
already admitted under
under oath that they
oath that they do
do not
not believe
believe or
or have not seen
have not seen any
any evidence
evidence
to support
to support the
the claim
claim that
that Dominion
Dominion paid
paid kickbacks
kickbacks to
to government
government officials.
officials. See, .g.,
See, e.g.,
Ex.108, Cooper
Ex.108, Cooper 128:12-16;
128:12-16; Ex.147,
Ex.147, Wallace
Wallace 73:11-17;
73:11-17; Ex.97,
Ex.97, Baier
Baier 20:13-18,
20:13-18,
21:2025; Ex.135,
21:20-25; Ex.135, Pirro
Pirro 97:7-13,
97:7-13, 99:12-16; Ex.143, Scott
99:12-16; Ex.143, Scott 308:4-12;
308:4-12; Ex.130,
Ex.130, L.
L.
Murdoch 323:2-9.
Murdoch 323:2-9.
Based on
Based this undisputed
on this undisputed evidence that the
evidence that the allegations
allegations were
were false,
false, this
this Court
Court
should grant
should grant summary
summary judgment to Dominion
judgment to Dominion on the falsity
on the falsity of
of each
each accused
accused
statement inin the
statement the accused
accused broadcasts
broadcasts containing
containing the
the kickbacks
kickbacks lie,
lie, see
see 9179(c).
¶¶179(c),
179(0), 179(g),
179(f), 179(g), 179(m).
179(m).
B.
B. Fox's Accused
Fox’s Accused Statements
Statements Are
Are Actionable
Actionable Allegations
Allegations of
of Fact.
Fact.
The defamatory
The defamatory statements
statements are
are factual
factual allegations.
allegations. The Court has
The Court has effectively
effectively
already concluded
already concluded as
as much
much on this question
on this of law.
question of law. FNN
FNN MTD
MTD Order,
Order, pp.48-50.
pp.48-50.
This Court
This Court delineated
delineated the three-factor test
the three-factor test that
that New
New York
York courts apply to
courts apply to
distinguish between
distinguish between aa pure
pure opinion
opinion and
and aa statement
statementoffact: “(1) whether
of fact: “(1) whether the
the specific
specific
78
78
language in
language iin issue
issue has
has aa precise
precise meaning
meaning that
that isis readily
readily understood;
understood; (2)
(2) whether
whether the
the
statements are
statements are capable
capable of
of being
being proven
proven true
true or
or false;
false: and
and (3)
(3) whether
whether the
the full
full context
context
ofthe communication in
of the communication in which
which the
the statement
statement appears…signals
appears... signals to
to readers
readers or
or listeners
listeners
that what
that what isis being
being read or heard
read or [is] likely
heard [is] likely to
to [be]
[be] opinion,
opinion, not
not fact.”
fact.” Id.
Id. (quoting
(quoting
Brian v.v. Richardson,
Brian 660 N.E.2d
Richardson, 660 N.E.2d 1126,
1126, 1129
1129 (N.Y.
(N.Y. 1995)).
1995)). The
The Court
Court rejected
rejected Fox’s
Fox’s
“context” argument,
“context” instead concluding
argument, instead that statements
concluding that statements themselves,
themselves, as
as well
well as the
as the
context of
context of the
the broadcasts,
broadcasts, signaled
signaled to
to viewers
viewers that
that what
what was
was being
being heard
heard was
was likely
likely
Id.”9
to be fact, not opinion. Id.
A careful
A review of
careful review each statement
of each statement confirms
confirms that
that each
each one “reasonably
one “reasonably
appears] to
appear[s] to state
state or
or imply
imply assertions
assertionsofobjective fact.” Id.
of objective fact.” (citation omitted).
Id. (citation Itisis
omitted). It
impossible to
impossible to conclude that the
conclude that the statements
statements that
that Dominion
Dominion rigged
rigged the
the election;
election;
Dominion’s software and algorithms manipulated vote counts in the election;
Dominion isis owned

Dominion owned by
by aa company founded in
company founded in Venezuela
Venezuela to
to rig
rig elections
elections for
for Hugo
Hugo
Chavez; and
Chavez; and Dominion
Dominion paid
paid kickbacks
kickbacks to government officials
to government officials are
are anything
anything other
other
than verifiable
than verifiable statements.
statements. See Appendix D
See Appendix D (listing
(listing accused
accused statements).
statements).
99 The
The Court
Court also
also accepted
accepted Dominion’s
Dominion’s alternative argument that
alternative argument that even
even ifif the
the
statements were
statements were not
not statements
statementsoffact, they could
of fact, they be considered
could be “mixed opinions.”
considered “mixed opinions.”
FNN MTD
FNN MTD Order, pp.49-50 (citing,
Order, pp.49-50 inter alia,
(citing, inter alia, Davis
Davis v.v. Boeheim,
Boeheim, 22 22 N.E.3d
N.E.3d 999,
999,
1004 (N.Y.
1004 (N.Y. 2014)).
2014)). IfIf the
the Court
Court does
does not
not conclude that the
conclude that the statements
statements are
are factual,
factual,
they are
they are at least opinions
at least opinions “based
“based onon either
either false
false or
or incomplete
incomplete facts
facts unknown
unknown toto the
the
reasonable viewer,”
reasonable viewer,” which
which are
are actionable.
actionable. Id.
Id.
9
79
Fox's witnesses
Fox’s witnesses agree. In the
agree. In the words of Fox’s
words of Fox's corporate witness, “This
corporate witness, “This isis not
not
aa subjective
subjective determination.”
determination.” Ex.127,
Ex.127, Lowell
Lowell 30(b)(6)
30(b)(6) 127:6-128:3.
127:6-128:3. “It’s
“It’s aa question
question
of facts”
of facts” on
on whether
whether evidence
evidence “exists
“exists or
or doesn’t exist.” Id.
doesn’t exist.” Id. 128:4-9;
128:4-9; see
see Ex.130,
Ex.130, L.
L.
Murdoch 320:14-322:6
Murdoch 320:14-322:6 (Powell’s
(Powell's claims are “factual
claims are “factual allegations”
allegations” that
that are
are either
either
“true or
“true or false”).
false”). And
And because
because the
the statements
statements were
were factual
factual assertions,
assertions, “it
“it was
was evident”
evident”
that people
that people who
who heard
heard Fox’s
Fox's statements
statements believed
believed them
them to
to be
be true.
true. Ex.146,
Ex.146, Stirewalt
Stirewalt
160:8-13.
160:8-13. In fact,
In fact, inin Fox’s
Fox's corporate
corporate testimony,
testimony, Fox
Fox never
never asserted
asserted that
that the
the
statements were
statements were mere
mere opinion.
opinion. As
As EVP
EVP of
of Primetime
Programming Meade
Meade Cooper
Cooper
confirmed, “whether
confirmed, “whether Dominion
Dominion stole
stole the
the election
election isis aa factual
factual matter
matter that
that can
can be
be
verified one
verified way or
one way or the
the other.”
other.” Ex.108,
Ex.108, Cooper
Cooper 175:11-16.
175:11-16.
If the
If the statements
statements themselves
themselves were
were not
not enough,
enough, discovery
discovery has only confirmed
has only confirmed
the Court’s
the Court's initial
initial conclusion
conclusion concerning
concerning the
the “context”
“context” inin which
which the
the statements
statements were
were
made. The
made. two channels
The two on which
channels on which the
the statements
statements were broadcast—Fox News
were broadcast—Fox News and
and
Fox Business—are
Fox Business—are “news
“news organization[s],”
organization[s].” to
to which
which “journalistic
“journalistic standards
standards apply.”
apply.”
Ex.97, Baier
Ex.97, Baier 12:8-13,
12:8-13, 24:4-6.
24:4-6. And as Cooper
And as agreed, “even
Cooper agreed, “even on
on opinion shows,
opinion shows,
factual accuracy
factual accuracy matters.”
matters.” Ex.108,
Ex.108, Cooper
Cooper 175:7-10.
175:7-10. Indeed,
Indeed, multiple
multiple witnesses
witnesses
confirmed that
confirmed that viewers
viewers relied
relied on
on each
each show
show for
for accurate,
accurate, factual
factual information.
information.
Specifically:
Specifically:
•« Sunday
Sunday Morning
Morning Futures: Host Maria
Futures: Host Maria Bartiromo
Bartiromo confirmed
confirmed that
that she
she isis aa
“newsperson” and
“newsperson” and that
that she
she “reports
“reports on
on the
the news.”
news.” Ex.98,
Ex.98, Bartiromo
Bartiromo 344:19-
344:19-
23. Her
23. Her show’s producer, Abby
show’s producer, Abby Grossberg,
Grossberg, similarly
similarly confirmed that the
confirmed that the show
show
80
80
is “a
is “a news
news show.”
show.” Ex.121,
Ex.121, Grossberg
Grossberg 66:10-11.
66:10-11. See
See also Ex.127, Lowell
also Ex.127, Lowell
30(b)(6) 223:8-10
30(b)(6) 223:8-10 (“Maria
(“Maria isis aa well-respected
well-respected business
business reporter
reporter with
with deep
deep
experience reporting”).
experience reporting”). Tucker
Tucker Carlson
Carlson lamented
lamented false
false claims
claims on
on Bartiromo’s
Bartiromo’s
show, stating,
show, stating, “Our
“Our viewers
viewers are
are goodpeople
good people and
and they
they believe
believe it.” Ex.241, atat
it.” Ex.241,
FNN035_03891092
FNN035_03891092.
•«Lou
Lou Dobbs Tonight: Dobbs
Dobbs Tonight: Dobbs confirmed
confirmed that
that his
his show
show was
was aa place
place for
for viewers
viewers
to get
to get “accurate information to
“accurate information to inform
inform themselves,”
themselves,” and
and that
that “viewers
“viewers were
were
entitled toto believe
entitled believe the
the things
things [he]
[he] said.”
said.” Ex.111,
Ex.111, Dobbs
Dobbs 19:18-20:17;
19:18-20:17; see
see id.
id.
18:69.
18:6-9.
•« Fox
Fox and
and Friends: Meade Cooper
Friends: Meade Cooper testified
testified that
that she
she expects
expects viewers
viewers rely
rely on
on
Fox and
Fox and Friends
Friends and Fox and
and Fox and Friends
Friends Weekend
Weekend as as aa source
source of
of credible
credible news.
news.
Ex. 108, Cooper
Ex.108, Cooper 198:25-199:14.
198:25-199:14.
•« Hannity: Hannity agreed
Hannity: Hannity that his
agreed that his show
show “is
“isaa credible
credible source
source ofof news,”
news,” and
and
confirmed that,
confirmed that, atat least
least in
in his
his view,
view, atat least
least some
some people
people “believed Sidney
“believed Sidney
Powell’s lies
Powell’s lies about Dominion.” Ex.122,
about Dominion.” Ex.122, Hannity
Hannity 32:20-22,
32:20-22, 376:16-20;
376:16-20; see
see
also Ex.108,
also Ex. 108, Cooper
Cooper 197:8-10,
197:8-10, 198:13-17
198:13-17 (Hannity
(Hannity show
show “is
“is aa credible news
credible news
source” and
source” and Cooper expects “viewers
Cooper expects “viewers whowho hear
hear the
the information
information presented
presented on
on
Sean Hannity
Sean Hannity rely
rely on Sean Hannity
on Sean Hannity toto provide
provide credible news”).
credible news”).
•« Tucker
Tucker Carlson
Carlson Tonight:
Tonight: Carlson
Carlson testified
testified that
that his
his show
show has has “viewers
“viewers and
and
they expect
they us to
expect us to bring
bring as
as much
much information
information asas we
we can,
can, toto be
be as
as honest
honest as
as we
we
can” Ex.105,
can.” Ex.105, Carlson
Carlson 33:16-19;
33:16-19; Ex.148,
Ex.148, Wells
Wells 72:20-23
72:20-23 (senior
(senior producer
producer
testifying that
testifying that “we’re
“we’re making
making the
the appropriate decisions for
appropriate decisions for our
our audience,
audience, and
and
what we
what we believe
believe to
to be
be true,
true, and
and providing
providing our
our assessment
assessmentof the news
of the news events”);
events”);
Ex.108, Cooper 197:5-7, 198:4-11 (Carlson’s show is “a credible news
Ex.108, Cooper 197:5-7, 198:4-11 (Carlson’s show is “a credible news
source” and she believes “viewers who hear the information presented on the
source” and she believes “viewers who hear the information presented on the
Tucker Carlson show rely on Tucker Carlson to provide credible news”)
Tucker Carlson show rely on Tucker Carlson to provide credible news”).
•« Justice with Judge

Justice with Judge Jeanine: Ex.108, Cooper
Jeanine: Ex.108, Cooper 197:11-13,
197:11-13, 198:19-23
198:19-23 (Justice
(Justice
with Judge
with Judge Jeanine is “a
Jeanine is “a credible
credible news
news source”
source” and
and Cooper
Cooper believes
believes “viewers
“viewers
who hear
who the information
hear the information presented
presented on the Justice
on the Justice with
with Judge
Judge Jeanine show
Jeanine show
rely on
rely on Jeanine
Jeanine Pirro
Pirro to
to provide
provide credible
credible news”).
news”).
81
81
These statements
These statements constitute
constitute “false assertions of
“false assertions fact” that
of fact” that “can
“can readily
readily be
be
proven true
proven true or
or false
false and…signal[]
and...signalf] to
to the
the average
average reader
reader or
or listener
listener that
that the
the defendant
defendant
was conveying
was facts about
conveying facts the plaintiff.”
about the plaintiff.” Kasavana,
Kasavana, 172
172 AD3d
AD3d atat 1046.
1046.
IL
II. The Accused
The Accused Fox
Fox Statements
Statements Are
Are “Of
“Of and
and Concerning”
Concerning” Dominion.
Dominion.
Each of
Each the twenty
of the twenty broadcasts
broadcasts isis “of
“ofand concerning” Dominion.
and concerning” Dominion. To satisfy
To satisfy
this element,
this Dominion “need
element, Dominion “need not
not be
be named
named inin the
the publication.”
publication.” Seymour v. New
Seymour v. New
York State
York Elec. && Gas
State Elec. Gas Corp.,
Corp., 627
627 NY2d
NY2d 466, 468 n.1
466, 468 n.1 (3d
(3d Dept
Dept 1995).
1995). Instead,
Instead,
Dominion need
Dominion need only
only prove
prove that
that an individual “familiar
an individual “familiar with
with [Dominion]
[Dominion] would
would
identify [it]
identify [it] as the subject
as the subject of
ofthe statements atat issue.”
the statements issue.” Palin
Palin v.v. New York Times
New York Times Co.,
Co.,
940 F.3d
940 F.3d 804,
804, 816
816 (2d
(2d Cir.
Cir. 2019)
2019) (internal
(internal quotation marks omitted).
quotation marks omitted). In
In doing
doing so,
so,
Dominion may
Dominion may rely
rely on
on “extrinsic facts” and
“extrinsic facts” and the
the statements’
statements’ “surrounding
“surrounding
circumstances.” Elias
circumstances.” Elias v.v. Rolling
Rolling Stone
Stone LLC,
LLC, 872
872 F.3d
F.3d 97,
97, 105
105 (2d
(2d Cir.
Cir. 2017);
2017); Horton
Horton
v. Guillot,
v. Guillot, 2016
2016 WL
WL 4444875,
4444875, atat *3
*3 (N.D.N.Y.
(N.D.N.Y. Aug.
Aug. 23,
23,2016). No genuine
2016). No genuine dispute
dispute
exists that
exists that the
the statements
statements meet
meet this
this standard.
standard. Every
Every accused
accused broadcasts
broadcasts “refers
“refers to
to
[Dominion] specifically”
[Dominion] specifically” by
by name.
name. Palin,
Palin, 940
940 F.3d
F.3d atat 816.
816.
IIL
III. Fox Published
Fox Published the Defamatory Statements.
the Defamatory Statements.
Fox isis responsible

Fox responsible for
for all of the
all of the statements
statements that
that itit broadcasts—not
broadcasts—not just the
just the
words spoken
words spoken by
by its
its hosts.
hosts. Indeed,
Indeed, aa New
New York
York court
court applying
applying New
New York
York law
law inin the
the
parallel litigation
parallel litigation currently
currently underway
underway inin Smartmatic’s
Smartmatic’s suit
suit against
against Fox
Fox News
News and
and
Fox Corporation
Fox Corporation has
has definitively
definitively held
held that
that the
the statements
statements made
made by
by the
the guests
guests Fox
Fox
82
82
repeatedly booked
repeatedly booked on
on its
its broadcasts,
broadcasts, including
including Powell
Powell and
and Giuliani,
Giuliani, are
are toto be
be treated
treated
as statements
as statements by
by Fox
Fox itself.
itself. Smartmatic
Smartmatic USA
USA Corp.
Corp. v.v. Fox
Fox Corp.,
Corp., No.
No. 151136/2021,
151136/2021,
2022 WL
2022 WL 685407, at *22
685407, at *22 (N.Y.
(N.Y. Sup.
Sup. Ct.
Ct. Mar.
Mar. 08,
08, 2022)
2022) (“Fox
(“Fox News’ contention that
News’ contention that
the claims
the claims against
against itit must
must be
be dismissed
dismissed because
because plaintiffs
plaintiffs failed
failed to
to plead
plead that
that the
the
network itself
network itself made
made any
any specific
specific defamatory
statements about
about SUSA
SUSA isis without
without
merit. This
merit. is because
This is because one
one who ‘repeats [a]
who ‘repeats [a] defamatory
defamatory statement is responsible
statement is responsible for
for
the resulting
the resulting damages.’”)
damages.) (quoting
(quoting Geraci
Geraci v.v. Probst,
Probst, 15
15 N.Y.3d
N.Y.3d 336,
336, 342
342 (2010));
(2010));
see
see also Khalil, 2022
also Khalil, 2022 WL
WL 4467622,
4467622, atat *4-10
*4-10 (Fox
(Fox News
News and
and Fox
Fox Corporation
Corporation
responsible for
responsible for statements
statements by
by Dobbs
Dobbs and
and Powell)
Powell) (S.D.N.Y.
(S.D.N.Y. Sept.
Sept. 26, 2022);
26, 2022);
Snowden v.v. Pearl

Snowden Pearl River
River Broad.
Broad. Corp.,
Corp., 251
251 So.
So. 2d
2d 405,
405, 408 (La. Ct.
408 (La. Ct. App.
App. 1971)
1971)
(holding broadcaster
(holding broadcaster liable
liable for
for defamation
defamation for
for statements
statements made
made by
by aa live
live anonymous
anonymous
audience caller
audience and noting
caller and noting that
that “the
“the publication...is
publication...is done
done by
by the
the station”);
station”);
Restatement (Second)
Restatement (Second) of
of Torts
Torts §581
§581 cmt.
cmt. gg (1977)
(1977) (radio
(radio and
and television
television broadcasters
broadcasters
responsible for
responsible for material
material “prepared
“prepared and
and controlled by others”
controlled by others” because
because they,
they, “[f]or
“[flor
their own
their own business
business purposes…initiate,
purposes...initiate, select
select and
and put
put upon
upon the
the air their own
air their own
programs”).
programs”).
To be
To be sure,
sure, ifif aa guest
guest without
without warning
warning spontaneously
spontaneously blurts
blurts out
out aa false
false and
and
defamatory statement
defamatory statement unanticipated
unanticipated by
by the
the broadcaster
broadcaster and
and isis not
not re-aired,
re-aired, the
the
broadcaster may
broadcaster may argue
argue itit did not act
did not act with
with actual
actual malice.
malice. But
But that
that broadcaster
broadcaster will
will
still have
still have published
published the
the guest’s
guest's statements.
statements.
83
83
Moreover, “all
Moreover, who take
“all who take part
part inin the
the procurement,
procurement, composition
composition and publication
and publication
ofaa libel
of libel are
are responsible
responsible inin law
law and
and equally
equally so.”
so.” Fox
Fox Corp.
Corp. MTD
MTD Order,
Order, p.15.
p.15. AA
defendant isis therefore
defendant therefore responsible
responsible for
for the
the publication
publication of
of aa defamatory
defamatory statement
statement so
so
long as
long as itit “participated
“participated inin the
the creation
creation or the publication
or the publication of
of the
the statements
statements atat issue.”
issue.”
Id.
Id. Put differently,
Put differently, the
the question is whether
question is whether aa person
person atat the
the company
company shared
shared
responsibility for
responsibility for the
the broadcast.
broadcast. See, e.g., New
See, e.g., New York
York Times
Times v.v. Sullivan,
Sullivan, 367
367 U.S.
U.S. 254
254
(1964); infra,
(1964); infra, §V,
§V. pp.89-90.
pp.89-90. The Souther District
The Southern District of New York
of New York recently
recently reaffirmed
reaffirmed
this principle
this principle and
and denied
denied Fox
Fox Corporation’s
Corporation’ Motion
Motion to
to Dismiss
Dismiss on
on underlying
underlying facts
facts
virtually identical
virtually identical to this case.
to this case. Khalil,
Khalil, 2022
2022 WL
WL 4467622
4467622 at *4-10 (allowing
at *4-10 (allowing
defamation claim
defamation claim against Fox News
against Fox News and
and Fox
Fox Corporation to proceed
Corporation to proceed brought
brought by
by
individual mentioned
individual mentioned inin Lou
Lou Dobbs’
Dobbs’ December
December 10
10 broadcast).
broadcast).
Finally, publication
Finally, publication isis aa “term
“term of art” that
of art” that simply
simply means
means “communication
“communication of
of
the defamatory
the statement to
defamatory statement to aa third party.” Osorio
third party.” Osorio v.v. Source
Source Enterprises,
Enterprises, Inc., 2006
Inc., 2006
WL 2548425,
WL 2548425, atat *6
#6 (S.D.N.Y.
(S.D.N.Y. Sept.
Sept. 5,
5, 2006)
2006) (citing
(citing Ostrowe
Ostrowe v.v. Lee, 175 N.E.
Lee, 175 NE. 505,
505,
505 (N.Y.
505 (N.Y. 1931)).
1931)). “Publication to even
“Publication to one person
even one person other
other than
than the
the defamed is
defamed is
sufficient.” Torati
sufficient.” Torati v.v. Hodak,
Hodak, 47
47 N.Y.S.3d 288, 290
N.Y.S.3d 288, 290 (1st
(1st Dep’t
Dep’t 2017);
2017); see
see also Penn
also Penn
Warranty Corp.
Warranty Corp. v.v. DiGiovanni,
DiGiovanni, 10
10 Misc.3d
Misc.3d 998,
998, 1004
1004 (N.Y.
(N.Y. Sup.
Sup. Ct.
Ct. 2005)
2005) (single
(single
posting on
posting on website
website sufficient
sufficient to
to prove
prove publication).
publication).
Fox—both Fox
Fox—both Fox News
News and Fox Corporation—published
and Fox the defamatory
Corporation—published the defamatory
statements. The
statements. unrefuted evidence
The unrefuted establishes that
evidence establishes that Fox
Fox News
News broadcast
broadcast each
each of the
of the
84
84
twenty statements
twenty statements over ts vast
over its vast media
media network,
network, including
including on its television
on its television broadcasts
broadcasts
and social
and social media
media platforms.
platforms. See, e.g. Exs.21-37;
See, e.g., Exs.21-37; Ex.55-69,
Ex.55-69, Ex.4;
Ex; Ex.16;
Ex.16; Ex.18.
Ex.18.
Seventeen of
Seventeen of the
the statements
statements were
were first
first broadcast
broadcast on
on Fox
Fox News
News or
or Fox
Fox Business,
Business, with
with
most of
most of those
those statements
statements then
then reposted
reposted on
on Fox’s
Fox’s websites
websites and
and social
social media
media
platforms. The
platforms. The three
three remaining
remaining statements
statements were
were published
published on Lou Dobbs’s
on Lou Dobbs’s Twitter
Twitter
account, which
account, Dobbs confirmed
which Dobbs confirmed isis “the shows handle
“the show’s handle as
as well
well as
as mine.”
mine.” Id.;
Id;
Ex.111, Dobbs
Ex.111, Dobbs 74:13-18.
74:13-18. Individuals
Individuals atat Fox
Fox News
News and
and Fox
Fox Corporation
Corporation participated
participated
in the
in the creation and publication
creation and publication of the statements
of the statements and shared responsibility
and shared responsibility toto do
do so,
so,
as discussed
as below. See,
discussed below. infra, §V.C-D.
See, infra, §V.C-D. Dominion
Dominion isis entitled
entitled to
to summary
summary judgment
judgment
on the
on the publication
publication element
element of
of its
its claims.
claims.
IV.
IV. The Statements
The Statements Are
Are Defamatory
Defamatory Per Se.
Per Se.
Under New
Under New York
York law,
law, aa statement
statement isis per
per se defamatory “if
se defamatory “if itit (1)
(1) charges
charges the
the
plaintiff with
plaintiff with aa serious
serious crime;
crime; [or]
[or] (2)
(2) tends to injure
tends to injure the
the plaintiff
plaintiff inin her
her or
or his
his trade,
trade,
business or
business or profession.”
profession.” Kasavana,
Kasavana, 172
172 AD3d
AD3d atat 1044.
1044. Where
Where aa defendant’s
defendant's
statements are
statements are per
per se
se defamatory, the plaintiff
defamatory, the plaintiff need
need not
not prove
prove damages
damages to
to establish
establish
liability. Instead,
liability. Instead, in
in per se defamation
per se cases, “injury
defamation cases, “injury isis assumed.” Celle v.v. Filipino
assumed.” Celle Filipino
Rep. Enterprises
Rep. Enterprises Inc.,
Inc., 209 F.3d 163,
209 F.3d 163, 179
179 (2d
(2d Cir. 2000; see
Cir. 2000); see also Kasavana, 172
also Kasavana, 172
AD3d atat 1046
AD3d 1046 (reversing
(reversing trial
trial court’s
court’s denialofsummary
denial of summary judgment on liability
judgment on liability and
and
explaining that
explaining that “in
“in cases involving defamation
cases involving defamation per
per se, the law
se, the law presumes
presumes that
that
damages will
damages will result,
result, and
and special
special damages
damages need
need not
not be
be alleged
alleged or
or proven”);
proven”); Gatz
Gatz v.v.
85
85
Oris Ford,
Otis Ford, Inc.,
Inc., 262
262 A.D.2d
A.D.2d 280,
280, 281
281 (1st
(Ist Dept
Dept 1999)
1999) (affirming
(affirming trial
trial court’s
court’s grant
grant
of summary
of summary judgment on per
judgment on se defamation
per se defamation claim).
claim). “Whether
“Whether particular
particular statements
statements
are considered
are considered defamatory
defamatory per se isis aa question
per se question of law.” Geraci,
of law.” Geraci, 15
15 N.Y.3d
N.Y 3d atat 344.
344.
As discussed
As discussed above,
above, Dominion’s
Dominion’s defamation
defamation claim
claim isis based
based onfourcategories
on four categories
of statements:
of statements: (1)
(1) statements
statements charging
charging Dominion
Dominion with
with committing election fraud
committing election fraud by
by
rigging the
rigging the 2020
2020 Presidential
Election; (2)
(2) statements
statements claiming that Dominion’s
claiming that Dominion’s
software and
software and algorithms
manipulated vote
vote counts
counts inin the
the 2020
2020 Presidential
Election;
(3) statements
(3) statements alleging
alleging that
that Dominion
Dominion isis owned by aa company
owned by founded inin Venezuela
company founded Venezuela
to rig
to ig elections
elections for
for the
the dictator
dictator Hugo
Hugo Chavez; and (4)
Chavez; and (4) statements
statements that Dominion paid
that Dominion paid
kickbacks to
kickbacks to government officials who
used its
its machines
machines in
in the
the 2020
2020 Presidential
Presidential
Election. See,
Election. See, supra, $1, pp.46-47.
supra, §I, pp.46-47.
Each of
Each the four
of the four categories
categories of
of statements
statements isis defamatory
defamatory per
per se.
se. A statement
A statement
charging aa company
charging company with
with fraud,
fraud, deception,
deception, or
or other
other misconduct
misconduct inin its
its business—as
business—as
all four
all four categories of statements
categories of statements against
against Dominion
Dominion do—is
do—is unquestionably
unquestionably
defamatory per
defamatory per se.
se. See, e.g. Harwood
See, e.g., Pharmacal Co.
Harwood Pharmacal Co. v.v. Nat’l
Nat'l Broad.
Broad. Co.,
Co.,9N.Y.2d
9 N.Y.2d
460, 463 (N.Y.

460, 463 (N.Y. 1961)
1961) (statement
(statement was
was defamatory
defamatory per se where
per se where itit charged
charged
manufacturer “with
manufacturer “with fraud
fraud and
and deceit in putting
deceit in putting on
on the
the market
market an unwholesome and
an unwholesome and
dangerous product”);
dangerous product”); Gatz,
Gatz, 262
262 A.D.2d
AD.2d atat 281
281 (statement that business
(statement that business “was
“was
dishonest [and]
dishonest [and] committed
committed fraud”
fraud” was
was per se defamatory).
per se defamatory). The statements go
The statements gototo the
the
“basic integrity”
“basic integrity” of
of Dominion’s
Dominion’s business,
business, namely,
namely, providing voting systems
providing voting systems and
and
86
86
services to
services to state
state and
and local
local governments.
governments. Ruder
Ruder && Finn
Finn Inc.
Inc. v.v. Seaboard
Seaboard Sur.
Sur. Co.,
Co., 52
52
N.Y.2d 663,
N.Y.2d 663, 670
670 (N.Y.
(N.Y. 1981).
1981). AA New
New York
York court recently held
court recently held that
that allegations
allegations
virtually identical
virtually identical to
to the
the ones
ones made
made against
against Dominion
Dominion (plus
(plus some
some other, ess serious
other, less serious
allegations) were
allegations) were per se defamatory
per se defamatory as
as made
made against
against Dominion’s
Dominion’s competitor,
competitor,
Smartmatic. See
Smartmatic. See generally Smartmatic USA
generally Smartmatic USA Corp.
Corp. v.v. Fox
Fox Corp.,
Corp., 2022 WL 685407
2022 WL 685407
(N.Y. Sup.
(N.Y. Ct. Mar.
Sup. Ct. Mar. 8,8, 2022).
2022). The
The Smartmatic
Smartmatic court
court concluded
concluded that
that allegations
allegations that
that
Smartmatic committed
Smartmatic election fraud,
committed election fraud, manipulated
manipulated vote
vote counts, and was
counts, and was founded
founded inin
Venezuela to
Venezuela fix elections
to fix elections were
were defamatory
defamatory per
per se. Id. atat *22–23,
se. Id. ¥22-23, *28.
28. That
That
conclusion was
conclusion was unassailably
unassailably correct,
correct, as it isis here.
as it here. ‘The allegations against
The allegations against Dominion
Dominion
charge itit with
charge with “committing
“committing aa crime” and “tend
crime” and “tend to
to injure
injure [it]
[it] inin its
its trade,
trade, business
business or
or
profession.” Id.
profession.” Id. atat *22
*22 (citing
(citing Nolan
Nolan v.v. State,
State, 158
158 A.D.3d
A.D.3d 186,
186, 195
195 (1st
(1st Dept
Dept 2018).
2018)).
‘They are defamatory

They are defamatory per
per se.
se.
V.
V. Fox Acted
Fox Acted with
with Actual
Actual Malice.
Malice.
Over and
Over and over
over again—as
again—as the
the Introduction
Introduction and
and Factual
Factual Background
Background
demonstrate—Fox witnesses
demonstrate—Fox witnesses have
have admitted
admitted in
in their
their own
own words
words they
they knew
knew the
the
allegations about
allegations about Dominion
Dominion were
were “false”
“false” or
or “crazy”
“crazy” or
or “reckless”
“reckless” or
or “nuts”
“nuts” or
or “bs.”
“bs.”
Yet Fox
Yet Fox continued
continued to
to broadcast
broadcast them.
them. Repeatedly.
Repeatedly. Over
Over nearly
nearly three
three months.
months.
Actual malice
Actual malice exists
exists when
when aa statement
statement isis made
made with
with “knowledge
“knowledge that
that itit was
was
false or
false or with
with reckless
reckless disregard
disregard of
of whether
whether itit was false or
was false not.” Palin,
or not.” Palin, 940
940 F.3d
F.3d atat
809 (internal
809 (internal quotation marks omitted).
quotation marks omitted). Of
Of course,
course, aa plaintiff
plaintiff can prove actual
can prove actual
87
87
malice “through
malice “through the
the defendant’s
defendant's own
own actions
actions or
or statements.”
statements.” Celle,
Celle, 209
209 F.3d
F.3d at
at 183
183
(internal alterations
(internal alterations and
and quotation
quotation marks
marks omitted).
omitted). “The subjective determination
“The subjective determination of
of
whether [the
whether [the defendant] in fact
defendant] in fact entertained
entertained serious
serious doubts
doubts as
as to
to the
the truth
truth of
of the
the
statement may
statement may be
be proved
proved by
by inference,
inference, as
as itit would
would be
be rare
rare for
for aa defendant
defendant to
to admit
admit
such doubts.”
such doubts.” Solano, 292 F.3d
Solano, 292 F.3d atat 1085
1085 (quoting
(quoting Bose Corp. v.v. Consumers
Bose Corp. Consumers Union,
Union,
692 F.2d
692 F.2d 189,
189, 196
196 (1st
(1st Cir.
Cir. 1982);
1982); see
see also
also Herbert
Herbert v.v. Lando,
Lando, 441 USS. 153,
441 U.S. 153, 170
170
(1979) (noting
(1979) (noting that
that “plaintiffs
“plaintiffs will
will rarely
rarely be
be successful
successful in
in proving
proving awareness
awareness of
of
falsehood from
falsehood from the
the mouth
mouth of
of the
the defendant himself” in
defendant himself” in the
the context
context of
of allowing
allowing
plaintiffs to
plaintiffs to explore
explore circumstantial
evidence of knowledge of
of knowledge of falsity).
falsity). This is the
This is the
rare case
rare where such
case where such direct evidence exists.
direct evidence exists.
A plaintiff
A plaintiff also can prove
also can prove actual
actual malice
malice through
through circumstantial
circumstantial evidence,
evidence,
rather than
rather than “from
“from the
the mouth
mouth of
of the
the defendant,”
defendant,” because
because defendants
defendants “are
“are prone
prone to
to
assert their
assert their good-faith
good-faithbelief in the
belief in the truth
truth of
of their
their publications.”
publications.” Lando,
Lando, 441 U.S. atat
441 U.S.
170. Circumstantial
170. Circumstantial evidenceofactual malice comes
evidence of actual malice comes in
in many
many forms.
forms. Categories of
Categories of
such evidence
such evidence include
include evidence
evidence that
that the
the defendant:
defendant: (1)
(1) relied
relied on
on inherently
inherently
improbable or
improbable or obviously
obviously unreliable
unreliable sources,
sources, see
see St.
St. Amant v. Thompson,
Amant v. Thompson, 390
390 U.S.
U.S.
727, 732
727, 732 (1968);
(1968); Zuckerbrot v. Lande,
Zuckerbrot v. Lande, 167
167 N.Y.S.3d
N.Y.S.3d 313,
313, 335-336
335-336 (N.Y.
(N.Y. Sup.
Sup. Ct.
Ct.
2022); (2)
2022); (2) possessed
possessedaa financial
financial motive
motive to
to lie
lie about
about the
the plaintiff,
plaintiff, see
see Harte-Hanks
Harte-Hanks
Communications, Inc.
Communications, Inc. v.v. Connaughton,
Connaughton, 491 U.S. 657,
491 U.S. 657, 668
668 (1989);
(1989); Gilmore
Gilmore v.v. Jones,
Jones,
2021 WL
2021 WL 68684,
68684, atat *8
*8 (W.D.
(W.D. Va.
Va. Jan.
Jan. 8,8, 2021);
2021); (2)
(2) relied
relied on
on inherently
improbable
88
88
or obviously
or unreliable sources,
obviously unreliable sources, see
see St. Amant, 390
St. Amant, 390 U.S.
U.S. atat 732;
732; Zuckerbrot v. Lande,
167 N.Y.S.3d
167 N.Y.8.3d 313,
313, 335-336
335-336 (N.Y.
(N.Y. Sup.
Sup. Ct.
Ct. 2022);
2022); (3)
(3) departed from journalistic
departed from journalistic
standards, see
standards, Harte-Hanks, 491
see Harte-Hanks, 491 U.S.
U.S. atat 667-68;
667-68; Eramo
Eramo v.v. Rolling
Rolling Stone,
Stone, LLC, 209
LLC, 209
F. Supp.
F. 3d 862,
Supp. 3d 862, 872
872 (W.D.
(W.D. Va.
Va. 2016);
2016); (4)
(4) conceived
conceived of
ofthe false narrative
the false narrative before
before
publication, see
publication, see Palin,
Palin, 940
940 F.3d
F.3d atat 813;
813; Harris
Harris v.v. City
CityofSeattle, 152 F.
of Seattle, 152 F. App’x
App’x 565,
565,
568 (9th
568 (9th Cir.
Cir. 2005)
2005) (unpublished);
(unpublished); and
and (5) refused to
(5) refused to retract,
retract, and
and continued
continued to
to repeat,
repeat,
statements that
statements that had
had been
been proven
proven false,
false, see
see Nunes
Nunes v.v. Lizza,
Lizza, 12
12 F.4th
F.4th 890,
890, 900-901
900-901 (8th
(8th
Cir. 2021);
Cir. 2021); Zerangue v. TSP
Zerangue v. TSP Newspapers,
Newspapers, Inc.,
Inc., 814
814 F.2d
F.2d 1066,
1066, 1071-1072
1071-1072 (5th
(Sth Cir.
Cir.
1987). See
1987). See generally Restatement (Second)
generally Restatement (Second) of
of Torts §580A emt.
Torts §580A (d). No
cmt. (d). No one
one factor
factor
need be
need be conclusive,
conclusive, and
and actual
actual malice
malice can be demonstrated
can be demonstrated by
by the
the “accumulation”
“accumulation”
ofcircumstantial
of evidence. Celle,
circumstantial evidence. Celle, 209
209 F.3d
F.3d atat 183;
183; see
see Stern v. Cosby,
Stern v. Cosby, 645
645 F.
F. Supp.
Supp.
24258,
2d 278 (S.D.N.Y.
258, 278 (S.D.N.Y. 2009).
2009).
An organizational
An organizational defendant,
defendant, just like any
just like any other,
other, isis subject
subject to
to liability
liability when
when itit
acts with
acts with actual
actual malice.
malice. Because an
Because an organization necessarily acts
organization necessarily acts through
through
individuals, in
individuals, in such
such cases,
cases, “the stateofmind
“the state required for
of mind required for actual malice” must
actual malice” must “be
“be
brought home
brought home toto the
the persons
persons inin the
the [defendant’s]
[defendant’s] organization
organization having
having responsibility
responsibility
for the
for the publication.”
publication.” Sullivan,
Sullivan, 376
376 U.S.
U.S. atat 287.
287. This requirement, which
This requirement, which stems
stems from
from
Sullivan itself,
Sullivan itself, prevents
prevents the
the imposition
imposition of
of liability
liability against
against aa corporate entity solely
corporate entity solely
because some
because some person,
person, somewhere
somewhere within
within aa vast
vast media
media organization, possesses
organization, possesses
knowledge that
knowledge that contradicts the defamatory
contradicts the defamatory allegations.
allegations. Id. (concluding that
Id. (concluding that the
the
89
89
“mere presence”
“mere presence” of
of news
news stories
stories inin the
the Times’
Zimes files
files that
that contradicted
contradicted details in the
details in the
accused advertisement
accused advertisement did not establish
did not actual malice,
establish actual malice, as
as no
no individual
individual responsible
responsible
for the
for the advertisement
advertisement copy
copy would
would have
have had
had knowledge
knowledge of
of the
the prior
prior news
news stories).
stories)
But so
But so long
long as
as actual
actual malice
malice isis brought
brought home
home to
to “at
“at least”
least” one
one individual
individual who
who isis
responsible for
responsible for the
the publication
publication of
of the
the defamatory
defamatory statement,
statement, the
the actual
actual malice
malice
requirement isis satisfied.
requirement satisfied. Page
Page v.v. Oath
Oath Inc.,
Inc., 270
270 A.3d
A.3d 833,
833, 850
850 (Del.
(Del. 2022);
2022); see
see also
also
Solano, 292
Solano, 292 F.3d
F.3d atat 1086
1086 (editorial
(editorial staff
staff members’
members’ concerns
concerns about
about defamatory
defamatory
statements satisfied
statements satisfied actual
actual malice
malice even
evenifstaffers were not
if staffers were not “the
“the final
final decisionmakers
decisionmakers
as to
as to the
the content”).
content”).
As discussed
As discussed extensively in the
extensively in the Introduction
Introduction and
and Factual
Factual Background,
Background, supra,
supra,
this case
this case isis the
the rare
rare defamation case with
defamation case with extensive
extensive direct
direct evidence
evidence of
of actual
actual malice.
malice.
“The very
The very fact
fact that
that Fox
Fox understood
understood itit had
had to
to “thread
“thread the
the needle”
needle” of
of appeasing
appeasing viewers
viewers
on the
on the one
one hand,
hand, and
and not
not spreading
spreading election
election fraud
fraud conspiracy theories on
conspiracy theories on the
the other,
other,
demonstrates that
demonstrates that Fox
Fox knew
knew these
these claims
claims about
about Dominion were false.
Dominion were Ex.252.
false. Ex.252.
EE
EE
I|:330. Fox's many,
Ex.330. Fox’s many, many
many
other documents
other documents and
and testimony
testimony all
all confirm the same.
confirm the same.
Section AA below
Section below establishes that Fox
establishes that Fox had
had the
the facts
facts necessary
necessary toto debunk
debunk the
the
accused statements
accused statements about Dominion, from
about Dominion, from extensive
extensive public
public record
record sources
sources and
and direct
direct
90
communications from
Dominion pointing
pointing toto that
that evidence, and Fox
evidence, and Fox either
either
knowingly or
knowingly or recklessly
recklessly disregarded those facts.
disregarded those facts.
Section BB explains
Section explains how
how individuals
individuals throughout
throughout Fox’s
Fox’s organization
organization knew
knew the
the
statements were
statements were false,
false, illustrating
illustrating atat minimum the reckless
minimum the reckless disregard
disregard of their
of their
colleagues who
colleagues who nevertheless
nevertheless broadcast
broadcast those
those lies.
lies. Together, parts
Together, parts AA and
and BB
sufficiently establish
sufficiently establish Fox’s
Fox's actual
actual malice;
malice; but
but the
the evidence does not
evidence does not stop
stop there.
there.
Section CC discusses
Section discusses the
the executives
executives responsible
responsible for
for the
the accused
accused programs’
programs’
knowledge or
knowledge or reckless
reckless disregard
disregard of
of the
the truth,
truth, and
and Section D walks
Section D walks through
through the
the team
team
of hosts
of hosts and
and producers,
producers, as
as well
well as
as the
the aforementioned
aforementioned executives,
executives, responsible
responsible for
for
each program
each program and
and highlights
highlights additional
additionalevidence—on
evidence—on fop
top of what has
of what has already
already been
been
set forth
set forth inin the
the Factual
Factual Background
Background above
above and
and Sections
Sections AA and B below—
and B below—
demonstrating they
demonstrating they likewise
likewise knew
knew or
or recklessly
recklessly disregarded
disregarded the
the truth.
truth.
Though unnecessary
Though unnecessary in
in light
light of
of the
the overwhelming
overwhelming evidence in Sections
evidence in Sections AA
and B,
and B, plus
plus the
the additional
additional evidence in Sections
evidence in Sections CC and
and D,
D, Section
Section EE provides
provides
circumstantial further underscoring
evidence further underscoring Fox’s
Fox’s actual
actual malice.
malice.
Actual malice
Actual malice requires
requires knowledge
knowledge of
of falsity
falsity or reckless disregard
or reckless by any
disregard by any one
one
of the
of the people
people sharing
sharing responsibility
responsibility for
for aa broadcast.
broadcast. Page,
Page, 270
270 A.3d
A.3d atat 850;
850; Solano,
Solano,
292 F.3d
292 F.3d atat 1086;
1086; Speer
Speer v.v. Ottaway
Ottaway Newspapers, Inc., 828
Newspapers, Inc., 828 F.2d
F.2d 475, 477 (8th
475, 477 (8th Cir.
Cir.
1987). Here,
1987). Here, every
every person
person acted
acted with
with actual
actual malice.
malice.
91
91
A.
A. The Public
The Public Record
Record and
and Dominion’s
Dominion’s Communications
Communications Demonstrate
Demonstrate
Fox’s Knowledge
Fox’s Knowledge of
of or
or Reckless
Reckless Disregard
Disregard for
for the
the Truth.
Truth.
Fox knew
Fox knew the
the falsity
falsity of
of the
the statements
statements itit aired
aired about
about Dominion.
Dominion. Fox
Fox knew
knew itit
because—very early
because—very on—the public
early on—the public record
record made
made abundantly
abundantly clear
clear that
that Dominion
Dominion
did not
did not steal
steal the
the election.
election. Bipartisan election
Bipartisan officials, security
election officials, security experts,
experts, and
and
Democratic and
Democratic and Republican
Republican appointees
appointees alike
alike repeatedly
repeatedly debunked
debunked provably
provably false
false
claims and
claims and confirmed
confirmed there
there was
was no
no evidence
evidence of
of widespread
widespread electoral
electoral fraud
fraud inin the
the
2020 Presidential
Election. See, supra, §I.A;
See, supra, §LA; e.g.
e.g. Ex.331
Ex331 (forwarding
(forwarding CISA’s
CISA’s
11/12/20 statement
11/12/20 statement to
to Fox
Fox listservs).
listservs).10 Not
Not surprisingly,
surprisingly, numerous
numerous other
other news
news
outlets readily
outlets readily determined
determined the
the falsity
falsityof these election
of these election fraud
fraud claims.
claims. IEEEG_G_G_
EE
I
Fox had
Fox had actual
actual knowledge of much
knowledge of much of
of this
this evidence
evidence because
because Fox
Fox personnel
personnel
read, heard,
read, heard, and/or
and/or received
received notice
notice of
of it,
it, from
from Fox’s
Fox’s own
own internal
fact-checking
department. See,
department. See, infra,
infra, §§V.B-D.
$§V.B-D. They
They also
also received
received the
the facts
facts from
from Dominion
Dominion itself,
itself,
through literally
through literally thousands
thousands of
of direct
direct communications:
communications: Soon
Soon after
after the
the first
first time
time Fox
Fox
broadcast the
broadcast the allegations—on
allegations—on Fox’s
Fox's November
November 88 Maria
Maria Bartiromo
Bartiromo show—
show—
Dominion began
Dominion began sending
sending regular
regular “Setting
“Setting the
the Record
Record Straight”
Straight” (“STRS”)
(“STRS”) emails
emails
detailing all
detailing the public
all the public source
source evidence
evidence refuting
refuting these
these charges.
charges. In
In other words,
other words,
10 See
10
See Ex.351&
Ex.351&Ex352 (Fox's listservs’
Ex.352 (Fox’s listservs’ members).
members).
92
92
Dominion did
Dominion not simply
did not simply deny
deny the
the charges.
charges. It provided
It provided public
public evidence
evidence
demonstrating those
demonstrating those charges
charges were
were false
false (and
(and inherently
inherently improbable).
improbable). These
These
communications started
communications started on November 12,
on November 12, 2020,
2020, and
and continued through the
continued through the
following weeks
following weeks and
and months.
months.
•« November
November 12,12, Ex.338:
Ex.338: Dominion
Dominion sentsent its
its first
first STRS
STRS email
email that Fox admits
that Fox admits “is
“is
approximately three
approximately three pages
pages of
of fact
fact versus
versus rumors
rumors listing
listing inin detail why the
detail why the
allegations against Dominion are false.” Ex.128, Lowell 30(b)(6) 394:22-
allegations against Dominion are false.” Ex.128, Lowell 30(b)(6) 394:22-
395:5. Among
395:5. Among other
other things,
things, the
the email pointed to
email pointed DHS’s CISA
to DHS’s CISA Rumor
Rumor Control
Control
Page. The
Page. The email
email stated:
stated: “No credible reports
“No credible reports oror evidenceofany software
evidence of any software
issues exist,” and linked to statements by the Michigan and Georgia
issues exist,” and linked to statements by the Michigan and Georgia
Secretaries of State. Ex.338 at FNN007_0001899.
Secretaries of State. Ex.338 at FNN007_0001899.
•« November
November 13, 13, Ex.339:
Ex.339: Dominion
Dominion quoted
quoted and linked to
and linked to the
the 11/12/20
11/12/20 Joint
Joint
Statement from
Statement from CISACISA stating,
stating, “There
“There isis no
no evidence
evidence that
that any
any voting
voting system
system
deleted or
deleted or lost
lost votes,
votes, changed
changed votes,
votes, or
or was
was in in any
any way
way compromised.”
compromised.” The The
email linked
email linked toto and
and described
described multiple
multiple third-party
third-party factfact checks (including from
checks (including from
the Michigan
the Michigan Secretary
Secretary of State) debunking
of State) debunking those those allegations
allegations along
along with
with the
the
ownership issue,
ownership issue, stating
stating that
that Dominion
Dominion hashas no no ownership relationships with
ownership relationships with
“Smartmatic, or
“Smartmatic, orany
anyties to Venezuela.”
ties to Venezuela.” Id.Id. atat FNN011_00094719.
FNNOI1_00094719. The The email
email
concluded by
concluded by stating
stating what
what already
already was
was obvious:
obvious: “Assertions
“Assertions of of voter
voter fraud
fraud
conspiracies are
conspiracies are 100%
100% false,”
false,” again
again linking
linking to to multiple
multiple records
records from
from CISA
CISA
and other
and other government
government agencies.
agencies. Ex.339
Ex.339 showsshows thethe email was forwarded
email was forwarded
widely within
widely within Fox,
Fox, and
and Fox’s
Fox’s corporate
representative confirmed
confirmed that
that was
was the
the
case for
case for the
the STRS
STRS emails.
emails. Ex.128,
Ex.128, Lowell
Lowell 30(b)(6)
30(b)(6) 420:10-13.
420:10-13.
•« November
Ex340: Dominion
Dominion quoted
quoted and
and linked
linked the
the same
same public
public
information provided
information provided on November 13.
on November 13.
•« November
Ex.433: Dominion
Dominion again
again provided the same
provided the same publicly
publicly sourced
sourced
information, adding
information, adding that
that “Dominion
“Dominion is is not,
not, and
and has
has never
never been,
been, owned
owned by
by
Smartmatic” and
Smartmatic” and explaining that to
explaining that to the
the contrary,
contrary, Dominion
Dominion andand Smartmatic
Smartmatic
were previously
were previously opposing
opposing parties
parties in
in aa lawsuit.
lawsuit.
•« November
November 17,
17, Ex.342:
Ex.342: Dominion
Dominion again
again provided
provided the
the same
same information.
information.
93
93
•« November
Ex.343: Dominion
Dominion sent
sent an
an editorial
editorial inin the
the Wall
Wall Street
Street
Journal—controlled
Journal—controlled by by the
the Murdochs—“emphasizing
Murdochs—‘emphasizing aa complete
complete lack
lack of
of
evidence to
evidence to support
support recent
recent claims against Dominion.”
claims against Dominion.”
•« November
Ex.344: Dominion
Dominion again
again provided
provided the
the same
same information
information and
and
sources cited on November 16.
sources cited on November 16.
•«November
Ex.345: Dominion
Dominion responded
responded to
to the
the crazy press conference
crazy press conference on
on
November 19
November 19 by Rudy Giuliani
by Rudy Giuliani and
and Sidney
Sidney Powell:
Powell: “These conspiracy
“These conspiracy
theories have
theories have no
no basis
basis inin truth
truth and
and have
have been
been debunked
debunked by by independent
independent fact-
fact-
checkers, government
checkers, government officials from both
officials from both sides
sides of
of the
the aisle,
aisle, and
and publicly
publicly
available documents.”
available documents.” The The email
email then
then discussed
discussed andand linked
linked to
to that
that
information.
information.
•« November
Ex.346: Dominion
Dominion pointed
pointed to
to pieces
pieces by
by conservative
conservative leaders
leaders
debunking the
debunking the claims,
claims, including
including noting
noting the
the results
results of
of the
the Georgia statewide
Georgia statewide
hand recount
hand recount that
that confirmed the accuracy
confirmed the accuracy of
of Dominion’s
machines and
and noting
noting
the implausibility
the implausibility of
of the
the claims
claims.
•« November
Ex.347: Dominion
Dominion pointed
pointed out that in
out that in the
the 14
14 counties where itit
counties where
operated inin Pennsylvania,
operated Pennsylvania, Trump
Trump exceeded
exceeded his
his 2016
2016 margin
margin in
in 11
11 of
of them,
them,
and again linked to public sources.
and again linked to public sources.
•« November
Ex.348: Dominion
Dominion gave details about
gave details about Arizona,
Arizona, noting
noting that it
that it
only operated
only operated inin one county and
one county and that the “post-election
that the hand count
“post-election hand audit
count audit
showed aa 100%
showed 100% match
match with
with the
the counts
counts from
from Dominion
Dominion machines,”
machines,” pointing to
pointing to
public records
public along with
records along with statements from aa Republican
statements from Republican official affirming that
official affirming that
“no evidence
“no evidenceoffraud or misconduct”
of fraud or misconduct” exists.
exists.
•« November
Ex.349: Dominion
Dominion gave
gave details about Michigan,
details about Michigan, explaining
explaining
among other
among other things
things the
the “isolated
“isolated human
human error”
error” in
in Antrim
Antrim County and pointing
County and pointing
out that
out that the
the Michigan
Michigan Secretary
Secretary of
of State
State said
said “the
“the user
user error was quickly
error was quickly
identified and
identified corrected.” The
and corrected.” The email
email also
also quoted
quoted the
the Michigan
Michigan Bureau
Bureau of
of
Elections stating,
Elections stating, “There
“There isis no
no evidence voting machines
evidence voting machines inin Michigan
Michigan have
have
ever been
ever been compromised
compromised or that votes
or that votes have
have been
been changed,”
changed,” and
and further
further pointed
pointed
to public
to public sources
sources about
about the
the pre-election
pre-election logic
logic and
and accuracy
accuracy testing.
testing. The
The email
email
continued to
continued to provide third-party links
provide third-party links and
and evidence
evidence about
about the
the false
false rumors
rumors
regarding Dominion generally.
regarding Dominion generally.
9%
94
Dominion continued
Dominion continued to
to send
send emails flagging public
emails flagging public sources
sources debunking
debunking the
the
election fraud
election fraud claims
claims throughout December and
throughout December and into
into January, providing detailed
January, providing detailed
information and
information and public source documents
public source documents that
that any
any person
person could
could easily
easily verify.
verify."11
Fox’s corporate
Fox’s representative testified
corporate representative testified there
there was
was aa “general
“general awareness”
awareness” atat
Foxof
Fox the CISA
of the CISA statement
statement linked
linked inin Dominion’s
Dominion’s November
November 13
13 STRS
STRS email, which
email, which
was “widely
was “widely circulated”
circulated” within
within Fox.
Fox. Ex.128,
Ex.128, Lowell
Lowell 30(b)(6)
30(b)(6) 413:6-24,
413:6-24, 420:5-13;
420:5-13;
Ex331; Ex.339.
Ex.331; Ex.339. In
In total,
total, Dominion
Dominion sent
sent 3,682 emails to
3,682 emails to Fox
Fox recipients,
recipients, which
which on
on
its own
its own makes
makes this
this case truly unique
case truly unique inin the
the amount
amount of
of corrective
corrective correspondence
correspondence
provided, see
provided, see id.
id. 541:13-544:21;
541:13-544:21; but,
but, on
on topof
top of that, Fox's corporate
that, Fox’s corporate representative
representative
further agreed
further agreed that
that Dominion’s
Dominion’s emails
emails were
were then
then “widely
“widely circulated” within Fox.
circulated” within Fox. Id.
Id.
420:10-13,
420:10-13, 431:8-22, 521:20-541:19, 542:17-20,
431:8-22, 521:20-541:19, 542:17-20, 544:6-21.
544:6-21. Fox’s
Fox's hosts,
hosts, producers,
producers,
and executives
and executives had
had the
the facts
facts inin their
their inboxes.
inboxes. Indeed,
Indeed, David
David Clark
Clark joked he had
joked he had them
them
“tattooed on
“tattooed [his] body.”
on [his] body.” Ex.234.
Ex.234.
Any Fox
Any Fox employee could readily
employee could readily ascertain
ascertain the
the falsity
falsity of
of this
this information—
information—
and many
and many did
did so.
so. As
As Chris
Chris Stirewalt
Stirewalt testified,
testified, “no
“no reasonable
reasonable person”
person” would
would have
have
believed the
believed the claims—the
claims—the allegations
allegations were
were “nuts.”
“nuts.” Ex.146,
Ex. 146, Stirewalt
Stirewalt 154:10-156:13,
154:10-156:13,
E56 ible Showin a1recipients

ofDemons comesinecommamicaions
11
See, e.g., Ex.353; Ex.355; Ex.357; Ex.358; Ex.359; Ex.360; Ex.361; Ex.362; see
Ex.363 (table showing all recipients of Dominion’s corrective communications,
including over
including over 3,600
3,600 emails
emails to
to Fox);
Fox); see
see also Ex.364 (providing
also Ex.364 (providing Dominion
Dominion CEO’s
CEO’s
testimony). Fox’s
testimony). Fox's corporate representative testified
corporate representative testified about
about Fox’s
Fox's receipt
receipt of
of many
many of
of
these and
these and other communications sent
other communications sent by
by or
or on
on behalf
behalf of Dominion. See
of Dominion. Ex.128,
See Ex.128,
Lowell 30(b)(6)
Lowell 30(b)(6) 390:13-559:8.
390:13-559:8.
95
95
234:25235:11. Fox
234:25-235:11. Fox Executives
Executives understood
understood the
the ease of fact
ease of fact checking
checking and
and the
the
importance of
importance of doing
doing so.
so. On
On November
November 5,5, Gary
Gary Schreier
Schreier told
told Lauren
Lauren Petterson
Petterson that
that
the Dobbs
the Dobbs team
team made
made “a
“a pretty
pretty bad
bad mistake”
mistake” by
by running
running information
information from
from aa Trump
Trump
tweet that
tweet that had
had been
been “proved
“proved false”
false” about
about votes
votes incorrectly
incorrectly showing
showing up
up for
for Biden.
Biden.
Ex.356 atat FNN022_03852657.
Ex.356 FNN022_03852657. Petterson
Petterson responded,
responded, “Jesus
“Jesus Christ.
Christ. Does
Does anyone
anyone
do
do afucking
a fucking simple
simple google
google search
search or
or read emails?” Id.
read emails?” In that
Id. In instance—and unlike
that instance—and unlike
the Dominion
the Dominion claims—Fox
claims—Fox corrected
corrected the
the information
information prior
prior toto its
its rebroadcast
rebroadcast later
later
that night.
that night. Id.
Id. And
And of
of course
course the
the evidence described inin detail
evidence described detail above demonstrates
above demonstrates
that many
that many Fox
Fox employees
employees easily
easily concluded that the
concluded that the claims were transparently
claims were transparently
false—as had
false—as had the
the Fox
Fox Brainroom.
Brainroom. See,
See, supra, pp.33-34.
supra, pp.33-34.
B.
B. It Was
It Was Widely
Widely Known
Known within
within Fox
Fox that
that the
the Allegations
Allegations were
were False.
False.
Not aa single
Not single Fox
Fox witness
witness testified
testified that
that they
they believe
believe any
any of
of the
the allegations
allegations about
about
Dominion are
Dominion are true.
true. Indeed,
Indeed, Fox
Fox witness
witness after
after Fox
Fox witness
witness declined
declined to
to assert
assert the
the
allegations” truth
allegations’ truth or
or actually
actually stated
stated they
they do
do not
not believe
believe them,
them,"12 and
and Fox
Fox witnesses
witnesses
© See,
12
e.g, Ex.99,
See, e.g., Ex.99, Bila
Bila 50:21-51:21;
50:21-51:21; Ex.102,
Ex, 102, Briganti
Briganti 27:9-28:21;
27:9-28:21; Ex.110,
Ex. 110, DiBella
DiBella
451847553; Ex. 111, Dobbs
45:18-47:23; Ex.111, Dobbs 22:17-22,
22:17-32, 38:11-16;
38: 11-161 Ex.112,
Ex.112, Doocy
Dooey 18:2-25;
18:3-25; Ex.106,
Ex.106,
Clark 215:11-231:4;
Clark 215:11-231:4; Ex.108,
Ex. 108, Cooper, 127:18-140:14; Ex.116,
Cooper, 127:18-140:14; Ex.116, Field
Field 134:6-135:25;
134:6-135:25;
Ex.117, Firth
Ex.117, Firth 38:16-43:7;
38:16-43:7; Ex.118,
Ex.118, Fisher
Fisher 25:24-27:2;
25:24-27:2; Ex.122,
Ex.122, Hannity
Hannity 322:15-25;
322:15-25;
Ex.124, Hooper
Ex.124, Hooper 52:14-19,
52:14-19, 54:23-55:3,
54:23-55:3, 59:17-22;
59:17-22; Ex.125,
Ex.125, Ingraham
Ingraham 95:10-99:11;
95:10-99:11;
Ex.126, Komissaroff
Ex.126, Komissaroff38:2-19, 38:23-40:1; Ex.130,
38:2-19, 38:23-40:1; Ex. 130, L.
L. Murdoch
Murdoch 249:4-7;
249:4-7; 269:15-20;
269:15-20;
321:16-323:22; Ex.129, Mitchell 256:10-259:11, 386:6-387:19, 388:8-12, 391:2-
321:16-323:22; Ex.129, Mitchell 256:10-259:11, 386:6-387:19, 388:8-12, 391:2-
392:14; Ex.132,
392:14; Ex.132, Perino
Perino 30:6-34:15;
30:6-34:15; Ex.133,
Ex.133, Petterson
Petterson 55:20-72:17;
55:20-72:17; Ex.140,
Ex.140,
Sammon 55:6-18,
Sammon 55:6-18, 56:16-18;
56:16-18; Ex.143,
Ex.143, Scott
Scott 306:24-310:20;
306:24-310:20; Ex.146,
Ex.146, Stirewalt
Stirewalt
153:24-157:11;Ex.148,
153:24-157:11; Ex.148, Wells 70:18-25.
Wells 70:18-25.
96
96
repeatedly testified
repeatedly testified that
that they
they have
have not
not seen
seen credible
credible evidence
evidence to support them.
to support them."13
Fox’s corporate
Fox’s representative likewise
corporate representative likewise testified
testified that
that Sidney
Sidney Powell
Powell never
never provided
provided
Fox with
Fox with evidence
evidence of
of her
her claims,
claims, Ex.128,
Ex. 128, Lowell
Lowell 30(b)(6)
30(b)(6) 285:10-13,
285:10-13, 294:22-295:6;
294:22-295:6;
could point
could point to
to no
no evidence to support
evidence to support the
the claim
claim that
that Dominion
Dominion rigged
rigged the
the election,
election,
id. 298:24-299:13,
id. 298:24-299:13, 323:8-324:5,
323:8-324:5, 335:15-24,
335:15-24, 362:12-25,
362:12-25, 375:22-376:13,
375:22-376:13, 387:13-
387:13-
388.7; and
388:7; and could
could not
not explain what, ifif anything,
explain what, anything, Fox
Fox did
did to
to investigate
investigate claims about
claims about
Dominion’s software,
Dominion’s software, see, e.g. id.
see, e.g., id. 424:14-25. Fox personnel
424:14-25. Fox personnel widely
widely knew
knew the
the
claims about
Dominion were
were false.
false.
Fox News
Fox News SVP
SVP and
and Managing
Managing Editor
Editor Bill
Bill Sammon—one
Sammon—one of
of the
the many
many
witnesses who
witnesses who testified
testified he
he does
does not
not believe
believe the
the claims
claims about
about Dominion,
Dominion, see n.13—
see n.13—
conceded that
conceded that one
one can
can easily fact-check Dominion’s
easily fact-check Dominion’ ownership and that
ownership and that such
such “basic
“basic
13
See. e.g.,
See, e.g. Ex.96,
Ex96, Andrews
Andrews 30:14-31:6,
30:14-31:6, 31:22-32:16;
31:22-32:16; Ex.110,
Ex 110, DiBella
DiBella 64:9-24;
64:9-24:
Ex.111, Dobbs
Ex.111, obbs 38:11-39:16;
381139: 16: 46:25-47:5, 86:20-24, 87:13-89:11;
46:25-47:5, 86:20-24, $7:13-89:11; Ex.112,
Ex.112, Doocy
Doocy
112:4-10; Ex.147,
112:4-10; Ex.147, Wallace 68:6-19, 71:21-72:12,
Wallace 68:6-19, 71:21-72:12, 73:11-74:12;
73:11-74:12; Ex.97,
Ex.97, Baier
Baier 19:3-
19:3-
22:5, 54:2-21;
22:5, 54:2-21; Ex.98,
Ex98, Bartiromo
Bartiromo 280:25-282:17;
280:25-282:17; Ex.105,
Ex. 105, Carlson
Carlson 163:3-16;
163:3-16; Ex.106,
Ex.106,
Clark 231:9-21;
Clark 231:9-21;Ex.108,
Ex.108, Cooper 141:4-142:10, 145:17-20;
Cooper 141:4-142:10, 145:17-20; Ex.116,
Ex.116, Field
Field 135:2-14;
135:2-14;
Ex.118, Fisher
Ex.118, Fisher 25:24-27:2;
25:24-27:2; Ex.125,
Ex.125, Ingraham
Ingraham 142:25-145:5;
142:25-145:5; Ex.126,
Ex.126, Komissaroff
Komissaroff
38:23-40:1; Ex.129,
38:23-40:1; Ex.129, Mitchell
Mitchell 256:10-259:11,
256:10-259:11, 389:9-392:5;
389:9-392:5; Ex.132,
Ex.132, Perino
Perino 30:6-
30:6-
34:15, 35:11-15; Ex.133, Petterson 56:3-74:22, 250:15-20; Ex.135, Pirro 89:3-13,
34:15, 35:11-15; Ex.133, Petterson 56:3-74:22, 250:15-20; Ex.135, Pirro 89:3-13,
95:13-97:13, 99:12-16;
95:13-97:13, Ex.142, Schreier
99:12-16; Ex.142, Schreier 120:15-121:1,
120:15-121:1, 224:9-225:9;
224:9-225:9;Ex.143,
Ex.143, Scoit
Scott
307:10-18-308: 20,
307:10-18-308: 20, 310:21-311:5;
31021-31135; Ex.146,
Ex.146, Stirewalt
Stirewalt 153:24-157:11;
153:24-157:11; Ex.147,
Ex.147,
Wallace 68:6-19,
Wallace 68:6-19, 71:21-72:8,
71:21-72:8, 73:11-74:5;
73:11-74:5; Ex.148,
Ex. 148, Wells
Wells 59:13-16,
59:13-16, 64:17-65:24;
64:17-65:24; see
see
also Ex.105, Carlson
also Ex.105, Carlson 47:13-25;
47:13-25; Ex.122,
Ex.122, Hannity
Hannity 295:16-24,
295:16-24, 279:1-23;
279:1-23; Ex.99,
Ex.99, Bila
Bila
29:12-15, 50:21-51:21;
29:12-15, 50:21-51:21; Ex.121,
Ex. 121, Grossberg
Grossberg 262:18-263:10,
262:18-263:10, 263:15-19.
263:15-19.
97
97
fact checking”
fact prior to
checking” prior to reporting
reporting on
on national
national television
television was
was important.
important. Ex.140,
Ex.140,
Sammon 56:19-57:3.
Sammon 56:19-57:3.
Bret Baier,
Bret Baier, Fox
Fox News
News Chief
Chief Political
Political Anchor,
Anchor, like
like Sammon,
Sammon, never
never believed
believed
Dominion shifted
Dominion shifted millions
millions of votes from
of votes from Trump to Biden.
Trump to Biden. Ex.97,
Ex.97, Baier
Baier 19:3-7.
19:37.
Baier texted
Baier texted aa friend
friend late
late on November 3,3, 2020—well
on November 2020—well before
before the
the first
first accused
accused
defamatory broadcast—that
defamatory broadcast—that Giuliani’s
Giuliani's claims
claims of
of widespread
widespread election fraud had
election fraud had no
no
validity. Ex.365
validity. Ex.365 atat FNN072_04509734;
FNNO72_04509734; Ex.97,
Ex.97, Baier
Baier 33:17-24;
33:17-24; see
see also Ex.176
also Ex.176
(11/5/20 Baier
(11/5/20 Baier text,
text, “there
“there isis NO
NO evidence
evidence of
of fraud.
fraud. None.
None. Allegations—stories.
Allegations—stories.
Twitter. Bullshit.”);
Twitter. Bullshit.”); Ex.97,
Ex.97, Baier
Baier 39:3-41:1,
39:3-41:1, 48:2-49:21 (Dominion story
48:2-49:21 (Dominion story was
was
“unfounded”). By
“unfounded”). By November
November 18,
18, Baier
Baier knew
knew that
that Chris
Chris Krebs
Krebs and
and other
other election
election
experts had
experts had debunked
debunked the
the claim
claim that
that Dominion’s
software was
was used
used to
to rig
rig the
the
election, and he found “zero proof” to the contrary.
contrary. Ex.97, Baier
Baier 65:4-12.
65:4-12. As he
told his
told his producer
producer that
that day,
day,I
1
When more
When more outlandish
outlandish allegations
allegations emerged
emerged about
about Dominion
Dominion regarding
regarding the
the
involvement of
involvement of the
the military,
military, Baier
Baier reached
reached out
out to
to the
the Fox
Fox reporter
reporter on
on the
the military
military
beat, Lucas
beat, Lucas Tomlinson:|
Tomlinson:
I
___________________________§ ___________§B |
1
98
EE
IE /!. Baier
Id. Baicr and
and Tomlinson
Tomlinson performed
performed the
the most
most basic
basic task.
task. They
They
heard an
heard an inherently
inherently implausible
implausible story.
story. They followed up
They followed up and
and quickly
quickly concluded
concluded the
the
obvious: [EG
obvious:
On November
On November 12,
12, Laura
Laura Ingraham’s
Ingraham’s producer,
producer, Tommy
Tommy Firth
Firth likewise
likewise
investigated the
investigated the claims
claims against
against Dominion
Dominion and easily concluded
and easily concluded they
they were
were false.
false.
Ex.117, Firth
Ex.117, Firth 36:3-43:7;
36:3-43:7; Exs.368-369
Exs. 368-369I
EE +229
Ex.229
(“This dominion
(“This dominion shit
shit isis going
going to
to give
give me
me aa fucking
fucking aneurysm.”).
aneurysm.)
Ingraham herself
Ingraham herself testified
testified that
that she
she has
has no
no basis
basis toto believe
believe Dominion
Dominion
committed election
committed election fraud
fraud by
by rigging
rigging the
the 2020
2020 Presidential
Election or
or that
that ititisis owned
owned
by aa company
by company founded
founded inin Venezuela
Venezuela to
to rig
rig elections
elections for
for Hugo
Hugo Chavez
Chavez (and
(and agreed
agreed
its ownership
its ownership isis “readily
“readily ascertainable”).
ascertainable”). Ex.125, Ingraham
Ex.125, Ingraham 95:10-96:2.
95:10-96:2. She
She
testified that,
testified that, before
before making
making such
such serious
serious allegations,
allegations, she
she would
would want
want toto make
make sure
sure
that they
that they “had
“had some
some type
type of fact trail
of fact trail that
that we
we could
could trace
trace and
and unpack.”
unpack.” Id.
Id. 101:5-15;
101:5-15;
see id.
see id. 95:5-9.
95:5-9. Ingraham
Ingraham told
told Hannity
Hannity and
and Carlson
Carlson that
that Sidney
Sidney Powell
Powell was
was “a
“a bit
bit
nuts,” Ex.155
nuts,” Ex.155 atat FNN035_03890539,
FNNO35_03890539, also
also telling
telling Carlson
Carlson “Sidney
“Sidney isis aa complete
complete
nut,” “No
nut,” one will
“No one will work
work with
with her,”
her,” and
and “Ditto
“Ditto with
with Rudy.”
Rudy.” Ex.241.
Ex241.
Fox News host Dana Perino, who has never seen credible evidence of the
claims against
claims against Dominion
Dominion and
and has
has never
never believed
believed those
those claims,
claims, supra, nn.12-13,
supra, nn.12-13,
99
described the
described the allegations
allegations about Dominion and
about Dominion and election fraud in
election fraud in her
her contemporaneous
contemporaneous
texts and as “total
and emails as “fotal bs,” “insane,” and “nonsense.” Ex.162, Exs.370, 371; see
see
also Ex.372 (“Where the hell did they even get this Venezuela tie to dominion? I
mean wtf”).
mean wif”).
Chris Stirewalt, the Fox News Politics Editor in November 2020, believed as
ofNovember
of November 77 that
that “there
“there was
was no
no way
way anybody
anybody could
could think
think that
that Donald
Donald Trump
Trump had
had
136:2-6; see also id. 152:21-153:13.
really won the election.” Ex.146, Stirewalt 136:2-6; 152:21-153:13.
Stirewalt agreed
Stirewalt agreed that
that high-profile
high-profile Fox
Fox anchors
anchors peddled
peddled the
the lie
lie that
that the
the election
election was
was
151:11-20. He testified that, among his colleagues at Fox, “widespread
Jd. 151:11-20.
stolen. Id.
agreement” existed about the falsity of the Dominion allegations. Id.

Id. 198:4-25;
198:4-25; see
see
153:24-157:11 (“[N]o reasonable person would have thought that.”); id.

id. 153:24-157:11 id. 202:20-
203:11 (Stirewalt expected Bill Barr’s statement that no evidence of significant fraud
203:11
in the
in the 2020
2020 Presidential
Presidential election existed was
election existed was well
well known
known within Fox's Newsroom).
within Fox’s Newsroom).
And as
And as noted,
noted, by
by November
November 13,
13, Fox’s
Fox’s Brainroom
Brainroom had
had debunked
debunked many
many of
of the
the
Dominion. Ex.168.
allegations about Dominion.
As the broad knowledge at Fox shows, it required at minimum reckless
disregard for
disregard for Fox’s
Fox’s other
other reporters
reporters and
and executives
executives to
to air
air the
the unsupported
unsupported and
and
verifiably false
verifiably false allegations
allegations about
about Dominion.
Dominion.
100
100
C.
C. Executives Responsible
Executives Responsible for
for Fox
Fox Programming
Programming and
and Content
Content Acted
Acted
with Actual Malice.
1
1. Fox Has Admitted that Its Executives Participated in the
Editorial Process
Editorial for the
Process for the Accused
Accused Broadcasts
Broadcasts During
During the
the
Relevant Timeframe.
Fox’s
Fox's executives exercise editorial control over Fox’s
Fox's broadcasting such that
their knowledge of falsity, or at minimum reckless disregard for the truth, establishes
their knowledge
Fox’s actual
Fox’s malice inin publishing
actual malice publishing the
the defamatory
defamatory statements.
statements.
Fox has
Fox has admitted
admitted inin its
its RFA
RFA responses,
responses, among other things,
among other things, that the following
that the following
executives “participated
executives “participated in
in the
the editorial
editorial process”
process” and/or “attend[ed] editorial
and/or “attend[ed] editorial
meetings” for
meetings” for some
some or
or all
all of the accused
of the accused programs
programs during the relevant
during the relevant timeframe:
timeframe:
•* Suzanne
Suzanne Scott,
Scott, Fox
Fox News
News CEO
CEO (e.g.,
(e.g., Ex.319,
Ex.319, Nos.
Nos. 1,
1,5, 6, 8,
5, 6, 8, 35,
35, 51)
51)
•* Jay Wallace, Fox News and Fox Business President and Executive Editor (id.,
(id.,
12, 16,
Nos. 12, 16,17, 19)
17, 19)
•* Tom Lowell, EVP and Managing Editor of News (id., Nos. 55, 59, 60, 62)
•* Meade Cooper, EVP

EVPof Nos. 66, 70, 71,
of Primetime Programming (id., Nos. 71,72,
72, 73)
•* Lauren Petterson, Fox Business News President (id., Nos. 88, 92, 93, 94, 95)
•* David Clark, SVP Weekend News and Programming (id., Nos. 110,
110, 113,
113, 114,
114,
115, 116, 117)
115, 116, 117)
•* Bill Sammon, SVP and Managing Editor (id.,

(id., No.
No. 125)
125)
•«Alan Komissaroff, SVP

Alan Komissaroff, SVP of News and
of News and Politics
Politics (id.,
(id., No.
No. 136)
136)
•* Kim Rosenberg, SVP of News Programming (id.,
(id., Nos.
Nos. 143,
143, 147,
147, 148)
148)
101
101
•« Ron
Ron Mitchell,
Mitchell, VP
VP of
of Primetime
Programming and
and Analytics
Analytics (id.,
(id., Nos.
Nos. 154,
154,
158, 159,
158, 159, 160,
160, 161)
161)
•« Gary
Gary Schreier, SVP of
Schreier, SVP of Programming,
Programming, Fox
Fox Business
Business (id.,
(id., Nos.
Nos. 165,
165, 169,
169, 170,
170,
171,172)
171, 172)
•«Rupert Murdoch, Fox

Rupert Murdoch, Fox Corporation
Corporation Chairman
Chairman (id.,
(id. Nos.
Nos. 27,
27, 35)
35)
•«Lachlan Murdoch, Fox
Lachlan Murdoch, Fox Corporation
Corporation CEO (id., Nos.
CEO (id., Nos. 43,
43, 51)
51)
These binding
These binding responses
responses by
by themselves
themselves demonstrate sufficient participation
demonstrate sufficient participation
in the
in the editorial
editorial process
process toto “bring
“bring home”
home” actual
actual malice
malice to
to each
each of
of the
the above
above
individuals.
individuals.
2.
2. Fox Has
Fox Has Admitted
Admitted Editorial Discussion of
Editorial Discussion of the
the Accused
Accused
Programs Occur
Programs Occur atat Fox’s
Fox's Twice-Daily
Twice-Daily Meetings
Meetings Among
Among
Senior Editorial
Senior Editorial Leadership.
Leadership.
Fox had
Fox had twice-daily
twice-daily editorial meetings during
editorial meetings the period
during the period from
from November
November
2020 through
2020 through March
March 2021,
2021, atat 8:30am
8:30am and
and 3:00pm,
3:00pm, attended by the
attended by the “senior
“senior editorial
editorial
leadership.” Ex.127,
leadership.” Ex.127, Lowell
Lowell 30(b)(6)
30(b)(6) 215:20-216:16.
215:20-216:16. This
This group
group included
included each
each of
of
the individuals
the individuals above:
above: Cooper;
Cooper; Clark
Clark (on
(on occasion);
occasion); Komissaroff;
Komissaroff; Lowell;
Lowell; Mitchell;
Mitchell;
Lachlan Murdoch
Lachlan Murdoch (at
(at times);
times); Rupert
Rupert Murdoch
Murdoch (at
(at times);
times); Petterson;
Petterson; Rosenberg;
Rosenberg;
Sammon; Schreier;
Sammon; Schreier; Scott;
Scott; and
and Wallace.
Wallace. Ex.374
Ex.374 (FNN
(FNN 5th
Sth Interrogatory
Interrogatory Responses),
Responses),
No. 83;
No. 83; Ex.106,
Ex.106, Clark 75:14-78:16, 80:3-82:2.
Clark 75:14-78:16, 80:3-82:2. In
In addition,
addition, Porter
Porter Berry
Berry (VP
(VP &
&
Editor-in-Chief, Fox
Editor-in-Chief, Fox Digital
Digital News
News Media),
Media), John Finley (EVP,
John Finley (EVP, Program
Program
Development); and
Development); and aa Fox
Fox News
News Radio
Radio representative
representative attended.
attended. Ex.127,
Ex.127, Lowell
Lowell
30(b)(6) 196:11-201:3,
30(b)(6) 196:11-201:3, 216:10-16;
216:10-16; Ex.374,
Ex.374, No.
No. 83.
83
102
102
1
I
Discussions among
Discussions among the
the executive
executive team
team at
at these
these meetings
meetings included
included the
the need
need to
to
cover stories
cover stories factually
factually and
and responsibly.
responsibly. EEGI—
EE
103
103
Once again,
Once again, for
for each
each of the above
of the above individuals,
individuals, these
these editorial meetings
editorial meetings
sufficiently establish
sufficiently establish editorial participation inin the
editorial participation the accused
accused broadcasts
broadcasts regardless
regardless of
of
any other
any other evidence.
evidence.
3.
3. Specific Evidence
Specific Confirms These
Evidence Confirms These Fox
Fox Executives Acted
Executives Acted
With Actual
With Actual Malice.
Malice.
Further evidence
Further evidence regarding
regarding executives
executives with
with responsibility
responsibility for
for Fox’s
Fox's
programming includes
programming includes the
the following
following (listed
(listed alphabetically):
alphabetically):
Meade Cooper.
Meade Cooper. Meade
Meade Cooper
Cooper was
was responsible
responsible for
for primetime
primetime show
show content,
content,
which included
which included editorial oversight of
editorial oversight of Hannity,
Hannity, Justice with Judge
Justice with Jeanine, and
Judge Jeanine, and
Tucker Carlson
Tucker Carlson Tonight,
Tonight, during the relevant
during the period. Ex.108,
relevant period. Cooper
Ex.108, Cooper 31:10-33:1; see
31:10-33:1; see
id. 209:9-21.
id. 209:9-21. Cooper
Cooper testified
testified that
that for
for weekday
weekday primetime
primetime shows,
shows, “the
“the executives
executives
in charge
in of the
charge of the show
show or with editorial
or with oversight would
editorial oversight would be
be me,
me, Ron
Ron Mitchell,
Mitchell, and
and
Suzanne [Scott].”
Suzanne [Scott].” Id.
Id. 38:24-38:8.
38:24-38:8. Cooper’s
Cooper's editorial oversight for
editorial oversight for primetime
primetime shows
shows
meant exercisingjudgment
meant over “guests
exercising judgment over “guests that
that were booked, topics
were booked, topics that
that were covered,
were covered,
things that
things that were
were said.”
said” Id.
Id. 42:24-43:4;
42:24-43:4; see also id.
see also id. 28:9-20,
28:9-20, 30:12-21;
30:12:21; Ex.375
Ex375
(Cooper email to
(Cooper email Scott, “Clearly,
Suzanne Scott,
to Suzanne reject the
“Clearly, II reject notion that
the notion hosts don’t
the hosts
that the don’t
have bosses
have bosses exercising
exercising judgment”); Ex.376 (show
judgment.”); Ex.376 (show request
request for
for permission
permission to book
to book
Giuliani in
Giuliani in November
November 2020);
2020); Ex.487
Ex.487 (Cooper
(Cooper and Mitchell receiving
and Mitchell receiving notice
notice Hannity
Hannity
wanted Powell
wanted Powell on
on his
his November
November 30
30 broadcast).
broadcast). As
As Cooper
Cooper testified,
testified, with
with respect
respect to
to
the shows
the shows she
she oversaw,
oversaw, “ultimately
“ultimately II would
would be
be responsible
responsible for
for whatever
whatever happens
happens inin
104
104
that hour.”
that hour.” Ex.108,
Ex. 108, Cooper
Cooper 33:18-19;
33:18-19; see
see id.
id. 33:10-36:10.
33:10-36:10. She
She further
further testified
testified that
that
cancelling aa show
cancelling show or
or deciding
deciding to
to broadcast
broadcast an event live
an event live would
would be
be aa discussion
discussion
between her,
between her, Wallace,
Wallace, and
and Scott.
Scott. Id.
Id. 35:21-36:3,
35:21-36:3, 84:18-85:13,
84:18-85:13, 108:20-109:7.
108:20-109:7.
Meade Cooper
Meade Cooper knew
knew the
the claims about Dominion
claims about Dominion were
were false.
false. Supra,
Supra, n.12.
n.12. On
On
November 6,
November 6, she
she texted
texted with
with executive Ron Mitchell
executive Ron Mitchell about
about speaking
speaking to
to producer
producer
Tommy Firth
Tommy Firth and
and hosts
hosts Tucker
Tucker Carlson and Laura
Carlson and Laura Ingraham,
Ingraham, about
about staying
staying away
away
from election
from election fraud
fraud claims. Ex.191; see
claims. Ex.191; see also,
also, supra,
supra, p.23
p.23 (Cooper
(Cooper and
and Clark
Clark
cancelled Pirro’s
cancelled Pirro’s November
November 77 show
show when
when they
they did
did not
not trust
trust her
her not
not to
to spread
spread lies);
lies);
Ex.415 (Cooper
Ex.415 (Cooper text
text to
to Scott
Scott[EG
testified that
Sc testified
I). She believes
she believes
that she
Fox should
Fox should vet
vet the
the information
information itit airs. Ex.108, Cooper
airs. Ex.108, Cooper 162:19-25,
162:19-25, 207:18-21.
207:18-21. Yet
Yet
the primetime
the primetime shows
shows for
for which
which she
she had
had oversight
oversight repeatedly
repeatedly broadcast
broadcast false
false claims
claims
about Dominion
about Dominion to
to millions
millions of
of viewers.
viewers.
David Clark.
David Clark. David
David Clark
Clark admits
admits he
he “oversaw the bulk
“oversaw the bulk of
of programming
programming on
on
Saturdays and
Saturdays and Sundays”—including
Sundays" including Sunday
Sunday Morning Futures and
Morning Futures and Justice
Justice with
with
Judge
Judge Jeanine—including “an editorial
Jeanine—including “an editorial component”
component” such
such as “working with
as “working with show
show
team on
team on the
the stories
stories the
the show
show will
will touch
touch and
and broadcast.”
broadcast.” Ex.106,
Ex.106, Clark
Clark 10:13-13:4.
10:13-13:4.
He “often
He “often consulted”
consulted” with
with the
the show
show teams
teams “on
“on who
who would
would appear
appear on
on their
their shows”
shows”
and “[c]ertainly
and “[clertainly we
we discussed”
discussed” Giuliani
Giuliani and
and Powell
Powell prior
prior to
to their
their show
show appearances.
appearances.
Id. 22:7-12,
Id. 22:7-12, 25:19-27:6.
25:19-27:6.
105
105
EE
I It|! was
‘2s “common
“common practice”
practice” for
for Clark
Clark to
to know
know
of the
of the guests
guests in
in order to give
order to give him
him “and
“and other
other senior
senior executives
executives the
the opportunity
opportunity to
to
weigh inin on
weigh those guests
on those guests or to object,
or to object, ifif necessary.”
necessary.” Ex.106,
Ex.106, Clark
Clark 183:21-184:7.
183:21-184:7.
EE
I. Despite
Despite directly
directly supervising
supervising the
the show,
show, Clark
Clark did
did
not believe
not believe Jeanine
Jeanine Pirro
Pirro was
was actually
actually aa “credible
“credible source
source of
of news,”
news,” even
even as
as he
he
understood that
understood that “viewers
“viewers rely
rely on” Pirro “to
on” Pirro “to be
be aa credible
credible source.”
source.” Ex.106,
Ex.106, Clark
Clark
118:12-119:5 (He
118:12-119:5 (He thought
thought viewers
viewers likewise
likewise relied
relied on
on Hannity
Hannity and
and Carlson’s
Carlson’s show
show
even though
even though he
he thought
thought they
they were
were not
not credible,
credible, id.
id. 117:22-118:10,
117:22-118:10, 120:10-21).
120:10-21).
Before the
Before the election,
election, Clark
Clark understood
understood that
that Trump
Trump was
was pushing
pushing baseless
baseless fraud
fraud
allegations and
allegations and that
that mail-in
mail-in ballots
ballots “would
“would lead
lead to
to aa shift
shift inin the
the final
final vote
vote tally.”
tally.” Id.
Id.
141:21-143:1. By
141:21-143:1. By November
November 6,
6, he
he knew
knew “there
“there were
were false
false conspiracy
conspiracy theories
theories
circulating generally,”
circulating generally,” id.
id. 150:20-151:1,
150:20-151:1, he
he “did not believe
“did not believe that
that the
the election
lection was
was
being stolen,”
being stolen,” id.
id. 155:22-156:2,
155:22-156:2, and
and he
he understood
understood “the
“the assertion
assertion that
that Mr.
Mr. Trump
Trump
had won
had won was
wasaa false
false assertion,”
assertion,” id.
id. 182:5-9.
182:5-9. Clark
Clark does
does not
not believe
believe the
the allegations
allegations
against Dominion
against Dominion and
and believes
believes after
after November
November 7,
7, “there
“there was
was no
no credible
credible evidence
evidence
of massive
of massive cheating
cheating or
or fraud
fraud that
that would
would flip
flip the
the election.”
election” Id.
Id. 231:9-21;
231:9-21; see
see
generally id. 215:11-231:21.
generally id. 215:11-231:21. Asdiscussed, supra, p.23,
As discussed, supra, p.23,EE)
I ,. which
ich Clark admits he
Clark admits he
106
106
canceled outof concerntha: EEE
canceled out of concern that
I Id. |. 152:8-154:19;
152:5-154:19; see
sce id.
id.
164:16-170:18 (Jesse Waters and Greg Gutfield would be permitted to have shows
164:16-170:18
Ex.380. |
on November 7, but Pirro would not); Ex.380.
1
rr]
——
I ——
I E—
I Clark
Crk also
also received
received Dominion’s
Dominion’s STRS
STRS fact-check
fact-check
multiple times. Ex.106, Clark 283:4-14; Ex.234 (“I have it tattooed on my body at
this point.”).
this point.”).
rr]
I
LL]
I
1
rr]
-
107
107
Ron Mitchell.
Ron Mitchell. As
As the
the SVP
SVP of
of Primetime
Programming and
and Analytics,
Analytics, Ron
Ron
Mitchell advised
Mitchell advised and
and had
had editorial
editorial oversight
oversight over the Tucker
over the Carlson, Sean
Tucker Carlson, Sean Hannity
Hannity
and Laura
and Laura Ingraham
Ingraham shows.
shows. Ex.129, Mitchell
Ex.129, Mitchell 9:24-10:2,
9:24-10:2, 11:8-12:3,
11:8-12:3, 19:3-10.
19:3-10.
Mitchell admitted
Mitchell admitted that
that he
he sometimes
sometimes informs
informs the
the shows
shows about
about topics
topics they
they should
should
“stay away
“stay away from.”
from.” Id.
Id. 22:5-25:21;
22:5-25:21; see
see Ex.382.
Ex.382. Mitchell
Mitchell also
also would
would tell
tell the
the shows
shows
if there
if there were
were an
an issue
issue with
with booking
booking certain
certain guests,
guests, including
including “wav[ing]
“wav[ing] off”
off” the
the
shows from
shows from booking
booking certain
certain guests.
guests. Ex.129,
Ex.129, Mitchell
Mitchell 28:24-29:6;
28:24-29:6; Ex.383.
Ex.383. i
EE
I. . He
ic typically
typically watched
watched all
all three
three shows
shows for
for which
which he
he
had editorial
had editorial responsibility
responsibility live
live atat the
the time.
time. Id.
Id. 95:25-96:10.
95:25-96:10.
Going into
Going into the
the 2020
2020 election,
election, Mitchell
Mitchell was
was “concerned
“concerned that
that Fox’s
Fox’s prime
prime time
time
hosts might
hosts might make
make aa bad
bad situation
situation worse
worse by
by feeding
feeding into
into conspiracy
conspiracy theories
theories to
to
explain aa loss
explain loss by
by President
President Trump.”
Trump.” Id.
/d. 221:15-24.
221:15-24. |G
EE
EE
EE
I. . He
Hc thought
thought reporting
reporting on
on election fraud
election fraud
conspiracy theories
conspiracy theories would
would be
be “giving false hope
“giving false hope to
to viewers.”
viewers.” Ex.129,
Ex.129, Mitchell
Mitchell
239:15-23. Specifically,
239:15-23. Specifically, Mitchell
Mitchell said
said the
the “allegations
“allegations of
of Dominion
Dominion having
having been
been
founded in
founded in Venezuela
Venezuela to
to fix
fix elections
elections and having flipped
and having flipped votes
votes from
from Donald
Donald Trump
Trump
108
108
to Joe
to Joe Biden
Biden inin the
the 2020
2020 election”
election” “[dJidn’t sound credible
“[d]idn’t sound credible to
to me,”
me,” and
and he
he “thought
“thought
[Sidney Powell]
[Sidney Powell] wasn’t
wasn’t credible.”
credible.” Id.
Id. 256:10-259:4. In fact,
256:10-259:4. In fact, inin private
private texts
texts with
with
Fox colleagues,
Fox colleagues, Mitchell
Mitchell referred
referred toto the
the Dominion
Dominion allegations
allegations as
as “the
“the Bill
Bill
Gates/microchip angle
Gates/microchip to voter
angle to voter fraud,”
fraud.” agreed
agreed they
they were
were “bs,” called Powell
“bs,” called Powell and
and
Rudy Giuliani
Rudy Giuliani “clowns,”
“clowns,” and
and repeatedly
repeatedly mocked
mocked their
their Dominion
Dominion allegations,
allegations,
including sarcastically
including sarcastically saying
saying they
they “left
“left out Emst Stavro
out Ernst Stavro Blofeld,”
Blofeld,” aa fictional
fictional James
James
Bond villain,
Bond villain, and
and calling
calling itit “comic
“comic book
book stuff.”
stuff” Ex.161;
Ex.161; Ex.252;
Ex252; Ex.385-387;
Ex.385-387;
Ex.129, Mitchell
Ex.129, Mitchell 263:6-14,
263:6-14, 284:2-20,
284:2-20, 287:12-20.
287:12-20.
Despite all
Despite all this,
this, Mitchell —who was
Mitchell—who was admittedly
admittedly worried
worried about
about Fox
Fox losing
losing
viewers to
viewers to Newsmax,
Newsmax, and even began
and even began tracking
tracking the
the guests booked and
guests booked and topics
topics covered
covered
on Newsmax,
on Newsmax, Ex.129,
Ex.129, Mitchell
Mitchell 140:25-141:6,
140:25-141:6, 156:21-157:12,
156:21-157:12, 158:5-159:9,
158:5-159:9, 166:2-
166:2-
168:21, 172:11-175:13,
168:21, 172:11-175:13, 178:15-24,
178:15-24, 182:7-11,
1827-11, 184:6-20;
184:6-20; Exs.390-396—did
Exs.390-396—did nothing
nothing
to stop
to stop Hannity
Hannity from
from bringing
bringing Powell
Powell onto
onto his
his show
show to
to spout lies about
spout lies about Dominion,
Dominion,
or to
or to stop
stop Carlson from bringing
Carlson from bringing his
his top
top advertiser
advertiser Mike
Mike Lindell
Lindell onto
onto his
his show
show toto do
do
the same.
the same. Hannity
Hannity brought
brought Powell
Powell on
on mere
mere days
days after
after Mitchell
Mitchell had
had an
an analysis
analysis done
done
that showed
that showed Fox
Fox viewers
viewers were
were switching
switching the
the channel specifically to
channel specifically to watch
watch Sidney
Sidney
Powell as
Powell as aa guest.
guest. Ex.397.
Ex397.
Lauren Petterson.
Lauren Petterson. Petterson
Petterson isis President
President of
of FBN
FBN and,
and in
in that
that role,
role, develops
develops
shows and
shows and serves
serves as
as head
head of
of talent.
talent. Ex.133,
Ex.133, Petterson
Petterson 25:4-24.
25:4-24. Petterson
Petterson isis part
part of
of
the editorial
the team for
editorial team for the
the shows
shows on
on FBN,
FBN, id.
id. 90:5-10,
90:5-10, 139:12-21,
139:12-21, and her role
and her role
109
109
included ensuring
included that “both
ensuring that “both sides
sides [were]
[were] being
being presented”
presented” with
with respect
respect to
to the
the
allegations about
allegations about Dominion,
Dominion, id.
id. 178:11-18.
178:11-18. EG
EE
IEE EE Shc likewise
She likewise had
had decision-making
decision-making
authority over
authority over what
what content
content could
could appear
appear on
on air.
air. |EEG
1
EE
Petterson never
Petterson never saw
saw any
any evidence
evidence of
of the
the claims against Dominion.
claims against Dominion. Id.
Id. 55:19-
55:19-
74:22. On November 7, she received an alert that there was a coordinated effort on
74:22. on
4chan to spread
4chan to spread claims
claims that
that Dominion
Dominion voting
voting systems
systems were
were used
used to
to commit
commit fraud.
fraud.
Ex.285. The
Ex.285. next day,
The next day, Gary
Gary Schreier
Schreier warned
warned Petterson
Petterson that
that Bartiromo
Bartiromo “has
“has gop
gop
conspiracy theorists
conspiracy theorists in
in her
her ear
ear and
and they
they use
use her
her for
for their
their message
message sometimes.”
sometimes.”
Ex.398. Petterson,
Ex.398. Petterson, like
like her
her colleagues,
colleagues, received
Dominion’s STRS
STRS emails
emails starting
starting
on November
on November 12,
12, see
see Exs.399,
Exs.399, 400;
400; Ex.133,
Ex.133, Petterson
Petterson 125:12-14,
125:12-14, and
and after
after Tony
Tony
Fratto reached
Fratto reached out
out to
to Jay
Jay Wallace
Wallace about
about the
the lies
lies being
being broadcast,
broadcast, Wallace
Wallace told
told
Petterson “We
Petterson “We need
need to
to keep
keep an
an eye
eye out
out here
here on
on this
this storyline.”
storyline.” Ex.402;
Ex.402; see
see also
also
Ex.401 (11/24
Ex.401 (11/24 Fratto
Fratto email
email about
about Dobbs
Dobbs broadcasting
broadcasting lies,
lies, prompting
prompting Petterson
Petterson to
to
tell Wallace “I
tell Wallace “I spoke
spoke to
to his
hisbooker
bookertoday. Time to
today. Time to pivot.”
pivot.” Dobbs
Dobbs did
did not
not pivot.
pivot. See,
See,
infra, §V.D.2);
infra, §V.D.2); Ex.403
Ex.403 (11/17
(11/17 email
email from
from AP
AP reporter
reporter forwarded
forwarded to
to Petterson
Petterson stating
stating
claims about
claims about Smartmatic
Smartmatic owning
owning Dominion
Dominion “have been debunked,
“have been debunked, but
but both
both Rudy
Rudy
110
110
Giuliani and
Giuliani and Sidney Powell have
Sidney Powell have appeared
appeared on
on the
the Lou
Lou Dobbs
Dobbs show
show and
and Maria
Maria
Bartiromo’s show
Bartiromo’s show inin the
the last
last week
week amplifying these false
amplifying these false claims”).
claims”). On
On November
November
22, Petterson
22, Petterson texted Schreier the
texted Schreier the White
White House’s
House’s announcement
announcement disavowing Powell.
disavowing Powell.
Ex404. Powell
Ex.404. Powell nevertheless
nevertheless continued
continued to
to appear
appear on
on Dobbs’
Dobbs’ show,
show, which
which isis under
under
Petterson’s purview.
Petterson’s purview.
Gary Schreier.
Gary As SVP
Schreier. As SVP of
of Programming,
Programming, Schreier
Schreier was
was Petterson’s
Petterson’s “number
“number
2.” and
2,” was the
and was the direct
direct report
report between
between Petterson
Petterson and
and the
the shows to make
shows to make sure
sure they
they
were “getting
were “getting everything
everything right.”
right” Ex.133,
Ex.133, Petterson
Petterson 84:15-86:10.
84:15-86:10. Schreier
Schreier “oversaw”
“oversaw”
Lou Dobbs
Lou Dobbs Tonight,
Tonight, Ex.142,
Ex.142, Schreier
Schreier 96:3-6,
96:3-6, and he spoke
and he spoke on behalf of
on behalf of FBN
FBN atat the
the
daily editorial
daily editorial meetings,
meetings, going over what
going over what FBN
FBN programs would cover
programs would cover and notable
and notable
guests appearing
guests that day.
appearing that day. Ex.133,
Ex.133, Petterson
Petterson 141:20-142:15;
141:20-142:15; Ex.142,
Ex.142, Schreier 16:3-
Schreier 16:3-
13, 18:1-12.
13, 18:1-12. Schreier
Schreier was
was “immediately responsible” for
“immediately responsible” for programming
programming content
content on
on
Dobbs’ show.
Dobbs’ show. Ex.111,
Ex.111, Dobbs
Dobbs 95:25-97:6.
95:25-97:6. Schreier,
Schreier, as
as part
part of FBN’s management,
of FBN’s management,
would have
would have input
input on
on aa decision that FBN
decision that FBN was
was not
not going
going to
to rebroadcast
rebroadcast aa previously
previously
aired show
aired (with the
show (with the final
final decision being up
decision being up to
to Petterson).
Petterson). Ex.142,
Ex.142, Schreier
Schreier 131:20-
131:20-
25, 135:8-17,
25, 135:8-17, 131:1-7,
131:1-7, and he notified
and he notified Petterson
Petterson inin atat least
least one instance where
one instance where an
an
error would
error would be
be corrected
corrected for
for rebroadcast,
rebroadcast, see
see Ex.356
Ex.356 atat FNN022_03852657.
FNN022_03852657.
Like his
Like his fellow
fellow executives,
executives, Schreier
Schreier knew
knew or
or recklessly
recklessly disregarded the truth
disregarded the truth
regarding the
regarding the claims
claims about Dominion. After
about Dominion. Maria Bartiromo’s
After Maria Bartiromo’s false
false tweet
tweet on
on
November 55 about
November about overnight
overnight vote
vote dumps,
dumps, Bartiromo
Bartiromo said
said she
she was
was leaving
leaving Twitter
Twitter
11
111
for the
for the social
social media
media site
site Parler.
Parler. Petterson
Petterson commented to Schreier:
commented to Schreier: “How
“How about
about get
get
off social
off social all
all together.”
together.” Schreier
Schreier responded:
responded: “I
“I mean
meanifif you say crazy
you say crazy wrong
wrong shit
shit on
on
Parler isis that

Parler that better
better just because Parler
just because Parler won’t
won't flag
flag you?”
you?” Ex.406
Exd06 atat
FNN059_04466136.
FNN059_04466136.
On November
On November 10,
10, Jerry
Jerry Boyer
Boyer emailed
emailed Schreier
Schreier about
about Newsmax’s
Newsmax’s election
election
coverage, asking
coverage, asking “what
“what about
about truth
truth and
and integrity?
integrity? Do
Do they
they actually
actually believe
believe the
the
election was
election was stolen?”
stolen?” to
to which
which Schreier
Schreier responded
responded “They’re
“They're not
not aa news
news
organization....[W]e have
organization….[W]e have toto follow
follow journalistic rules...they do
journalistic rules…they not have
do not have toto and
and they
they
simply do
simply do not.”
not.” Ex.407.
Ex.407.
On November
On November 12,
12, Schreier
Schreier notified
notified Petterson
Petterson and
and others
others that
that Dobbs
Dobbs and
and
Giuliani had
Giuliani had “[s]poke
“[s]poke about
about servers
servers for
for the
the voting
voting machines
machines in
in foreign
foreign country”
country” on
on
air, but
air, but that
that this
this claim
claim had
had not
not been
been verified.
verified. Ex.408.
Ex.408. That same day,
That same day, he
he received
received
waning that
warning that Bartiromo
Bartiromo was
was sharing
sharing conspiracy
conspiracy theories
theories about
about Dominion
Dominion on
on Parler,
Parler,
to which
to which he
he responded
responded “I
“I don’t
don’t know
know why
why she
she invites
invites this.”
this.” Ex.373;
Ex.373; see
see Ex.406
Ex.406 atat
FNN059_04466136.
FNN059_04466136.
I EE EE EE EE a. .
1
IE
I |He
c received the same AP
email as
email as Petterson
Petterson asking
asking for
for comment on Powell’s
comment on Powell’s and
and Giuliani’s
Giuliani's false
false claims made
claims made
112
112
on Bartiromo’s and Dobbs’
Dobbs’ shows, Ex.410; and on November
November 19
19 he also received
notice of
notice of Georgia’s
Georgia’s official
official statewide
statewide hand
hand recount
recount confirming
confirming Dominion
Dominion machines
machines
properly counted the votes, Ex.411.
properly Ex.411. |
I EE
EE
_—
EE
I
Suzanne Scott.
Suzanne Scott. Fox
Fox News
News CEO
CEO Suzanne
Suzanne Scott
Scott isis responsible
responsible for
for the
the content
content
on Fox
on Fox shows,
shows, including
including primetime
primetime show
show content,
content, along
along with
with the
the executives
executives with
with
immediate supervision over the shows.
immediate shows. Ex.143, Scott
Scott 12:6-13:11
12:6-13:11 (“Ultimately, am
II the
the boss,
boss, yes.”);
yes.”); Ex.108,
Ex. 108, Cooper
Cooper 39:1-8;
39:1-8; 209:9-21.
209:9-21. Scott
Scott provided
provided input
input to
to Cooper
Cooper
on potential
on potential primetime
primetime guests,
guests, and
and Cooper
Cooper would
would then
then follow
follow up
up on
on those
those
suggestions for
suggestions for potential
potential on-air appearances. Ex.108,
on-air appearances. Ex.108, Cooper
Cooper 63:9-23.
63:9-23. In
In some
some
instances, Scott
instances, Scott would
would ask
ask Cooper
Cooper to
to review
review and
and edit
edit out
out portions
portions of
of aa pre-taped
pre-taped
show. Id.
show. Id. 112:13-25.
112:13-25. Scott
Scott also
also had
had “responsibility
“responsibility to
to provide
provide Judge
Judge Jeanine
Jeanine Pirro
Pirro
with close
with close editorial
editorial supervision
supervision and
and guidance.”
guidance.” Ex.106,
Ex.106, Clark 105:21-106:20.
Clark 105:21-106:20.
EE
13
113
Scott decides
Scott who will
decides who will host
host programs,
programs,Ex. 143, Scott
Ex.143, Scott 32:23-33:22,
32:23-33:22, and
and has
has authority
authority
to directa
to show not
direct a show not to
to host
host aa certain
certain guest
guest or broadcast certain
or broadcast content, Ex.106,
certain content, Ex. 106, Clark
Clark
23:7-24; see
23:7-24; see also,
also, e.g., Ex.416; Ex.417
e.g., Ex.416; Ex417 (Justin
(Justin Wells
Wells toto Tucker
Tucker Carlson
Carlson on
on day
day of
of
Mike Lindell
Mike Lindell appearance: “I told
appearance: “I told Suzanne
Suzanne we
we were
were doing
doing itit and
and [s]he
[she was
was
supportive.”), and
supportive.”), and to
to issue
issue aa correction
correction or
or retraction.
retraction. Ex.147,
Ex. 147, Wallace
Wallace 51:4-12.
51:4-12. Scott
Scott
also had
also had supervisory authority over
supervisory authority editing out
over editing out false
false claims from rebroadcasts.
claims from rebroadcasts.
Ex.106, Clark
Ex.106, Clark 39:20-41:20.
39:20-41:20. Lachlan
Lachlan Murdoch
Murdoch provided
provided his
his feedback
feedback on
on Fox
Fox News
News
through Scott.
through Scott. Ex.130,
Ex.130, L.
L. Murdoch
Murdoch 71:1-9.
71:1-9.
Scott knew
Scott knew the
the statements
statements Fox
Fox broadcast
broadcast about
about Dominion
Dominion were
were untrue,
untrue, or
or
recklessly disregarded the
the truth.
truth. On November 6,6, as
On November as discussed
discussed above,
above, she
she agreed
agreed
with Rupert
with Rupert Murdoch
Murdoch that
that itit was
was going
going to be “very
to be hard to
“very hard to credibly
credibly cry
cry foul
foul
everywhere” and
everywhere” and “if
“if Trump
Trump becomes
becomes aa sore
sore loser
loser we
we should
should watch
watch Sean
Sean especially.”
especially.”
Ex.151. She
Ex.151. She further
further agreed
agreed atat her
her deposition that as
deposition that as of
of November
November 7,7, Joe Biden had
Joe Biden had
been legitimately
been legitimately elected
elected President.
President. Ex.143, Scott
Ex.143, Scott 365:10-19.
365:10-19. Beginning on
Beginning on
November 12,
November 12, she
she received
received numerous
numerous STRS
STRS emails
emails from
from Dominion
Dominion providing
providing links
links
to credible
to sources debunking
credible sources debunking the
the claims
claims peddled
peddied by
by Powell,
Powell, Giuliani,
Giuliani, and
and Lindell.
Lindell
See Exs.399-400;
See Exs.399-400; Ex.128,
Ex. 128, Lowell
Lowell 30(b)(6)
30(b)(6) 389:15-391:25.
389:15-391:25. On November 16,
On November 16, Tony
Tony
Fratto personally
Fratto personally reached
reached out
out to
to Scott
Scott and Wallace explaining
and Wallace explaining that
that the
the claims
claims about
about
Dominion were
Dominion were baseless.
baseless. Ex.255.
Ex.255. Cf.
Cf. Ex.181
Ex.I81 (11/19
(11/19 email, Rupert Murdoch:
email, Rupert Murdoch:
Giuliani’s claims
Giuliani’s claims were
were “Terrible
“Terrible stuff,”
stuff,” Scott:
Scott: “yes
“yes Sean
Sean and
and even Pirro agrees”).
even Pirro agrees”).
114
114
By November
By November 23,
23, Scott
Scott knew
knew that Fox Corporation
that Fox Corporation executives were working
executives were working with
with
the White House to undermine Powell’s
Powell's “outlandish voter fraud claims.” Ex.163.
Jay
Jay Wallace. President and
Wallace. President Executive Editor
and Executive Editor Jay Wallace testified
Jay Wallace testified that
that he
he
had “ultimate editorial control over the content broadcast on Fox News Channel and
Fox Business
Fox Business Network”
Network” in
in November
November 2020
2020 and
and the
the subsequent
subsequent months.
months. Ex.147,
Ex.147,
17:22-18:6, 19:13-22:12,
Wallace 17:22-18:6, 19:13-22:12, 36:2-13, 171:9-13.
171:9-13. For example, when Tucker
Carlson expressed
Carlson expressed concerns
concerns about
about the
the broadcasting
broadcasting of one of
of one of Fox’s
Fox’s reporters,
reporters, he
he
informed Meade
informed Meade Cooper,
Cooper, who
who passed
passed that
that on
on toto Wallace.
Wallace. Ex.108,
Ex.108, Cooper 105:3-15.
Cooper 105:3-15.
Similarly, before the election, David Clark warned Wallace and Cooper that
Bartiromo was
Bartiromo was pushing
pushing QAnon
QAnon conspiracy
conspiracy theories
theories because
because “they were...wo of
“they were…two of my
my
superiors.” Ex.106, Clark 133:6-22.
133:6-22. Clark testified that he would take instructions
Id. 57:21-58:2. Wallace confirmed that he, Rupert

from Wallace on booking guests. Id.
Murdoch, Lachlan Murdoch, Suzanne Scott, Lauren Petterson, Meade Cooper, and
Gary Schreier
Gary Schreier each
each have
have the
the authority to cause
authority to cause Fox
Fox News
News and
and Fox
Fox Business
Business toto run
run aa
correction or retraction. Ex.147, Wallace 50:17-21, 51:4-54:6, 252:5-9, 254:24-
ss.
255:21.
17, 2020, he knew Mike Lindell was

Wallace admitted that by December 17,
‘making false claims about the 2020 Presidential election, Ex.147,

making Ex. 147, Wallace 310:7-19;
but the undisputed record demonstrates he knew that Fox was broadcasting lies about
earlier. On November 5, 2020, Bret Baier warned Wallace that

Dominion much earlier.
115
115
Bartiromo had
Bartiromo had been
been pushing
pushing false
false claims
claims about
about the
the election. Ex418. The
election. Ex.418. The next
next day,
day,
on November
on November 6,
6, Wallace
Wallace received
received notice
notice that
that Rupert
Rupert Murdoch
Murdoch said
said Trump had to
Trump had to
get some
get some “real
“real evidence”
evidence” and
and that
that Rudy
Rudy Giuliani
Giuliani advising Trump was
advising Trump was “really
“really bad.”
bad.”
Ex419; Ex.147,
Ex.419; Ex.147, Wallace
Wallace 122:2-7.
122:2-7.
Wallace testified
Wallace testified he
he has
has never
never seen
seen evidence
evidence for
for the
the claims
claims against
against Dominion.
Dominion.
Ex.147, Wallace
Ex.147, Wallace 68:6-19,
68:6-19, 71:21-72:12, 73:11-74:12.
71:21-72:12, 73:11-74:12. Tony Fratto personally
Tony Fratto personally
reached out
reached out to
to Wallace
Wallace to
to correct
correct lies
lies about
about Dominion
Dominion multiple
multiple times,
times, and
and Wallace
Wallace
received all
received all of Dominion’s STRS
of Dominion’s STRS emails. Ex.235; Ex.236;
emails. Ex.235; Ex.236; Ex.147,
Ex.147, Wallace
Wallace 168:4-
168:4-
169:1; Ex.363.
169:1; Ex363. Wallace admitted
Wallace admitted that
that after
after his
his conversation with Fratto
conversation with Fratto on
on
November 16,
November 16, he
he made
made aa decision
decision that
that “we
“we need
need to
to have
have [Dominion’s]
[Dominion’s] side
sideofthe
of the
story” but
story” but he
he allowed
allowed the
the lies
lies to
to continue.
continue. Ex.147,
Ex.147, Wallace
Wallace 211:10-17.
211:10-17. [ll
EE
I Ex.119,
|x. 19, Fratto
Fratto 232:13-15;
232:13-15; see
see
also id. 231:7-235:22.
also id. 231:7-235:22. Yet
Yet the
the shows
shows over which he
over which he by
by his
his own
own account
account had
had
“ultimate editorial
“ultimate control” repeatedly
editorial control” repeatedly broadcast
broadcast these
these lies.
lies.
Fox Corporation
Fox Corporation Executives:
Executives: The
The evidence
evidence discussed
discussed extensively
extensively herein
herein
includes specific
includes specific reference
reference to
to knowledge
knowledge of
of falsity
falsity for
for Rupert
Rupert Murdoch,
Murdoch, Lachlan
Lachlan
Murdoch, Raj
Murdoch, Raj Shah, and Viet
Shah, and Viet Dinh,
Dinh, in
in addition
addition to
to the
the arguments
arguments in
in Section
Section V.A
V.A and
and
B that
B that apply
apply to
to any
any Fox
Fox or
or Fox
Fox Corporation
Corporation executive
executive with
with editorial
editorial responsibility.
responsibility.
“The evidence
The evidence discussed
discussed above,
above, along
along with
with Section V.C.1 &
Section V.C.1 & 2,
2, demonstrates
demonstrates editorial
editorial
116
116
responsibility for
responsibility for atat least
least Rupert
Rupert and Lachlan Murdoch.
and Lachlan Murdoch. Dominion
Dominion will
will discuss
discuss
additional evidence
additional evidence for
for Fox
Fox Corporation on editorial
Corporation on responsibility and
editorial responsibility actual malice
and actual malice
in subsequent
in subsequent briefs
briefs as
as appropriate.
appropriate.
D.
D. Hosts, Producers,
Hosts, Producers, and
and Executives
Executives with
with Specific
Specific Responsibility
Responsibility for
for
Each Broadcast
Each Broadcast Knew
Knew the
the Statements
Statements were
were False
False or Recklessly
or Recklessly
Disregarded the
Disregarded the Truth.
Truth.
1.
1. Sunday Morning
Sunday Morning Futures
Futures with
with Maria
Maria Bartiromo.
Bartiromo.
Responsible Employees:
Responsible Employees: Suzanne
Suzanne Scott;
Scott; Jay
Jay Wallace;
Wallace; Lauren
Lauren Petterson;
Petterson;
Gary Scheier;
Gary Scheier; David
David Clark; Maria Bartiromo;
Clark; Maria Bartiromo; Abby
Abby Grossberg (producer).'*14
Grossberg (producer).
SMF aired
SMF aired once
once aa week
week inin the
the morning
morning on
on Fox
Fox News,
News, and
and each
each episode
episode was
was
rebroadcast on
rebroadcast Fox Business
on Fox Business atat 6pm
6pm Eastern,
Eastern, prior
prior to
to which
which Petterson,
Petterson, Clark,
Clark, or other
or other
senior programming
senior programming executives
executives including
including atat least
least Wallace
Wallace and
and Scott
Scott had
had authority
authority
10 edit
to out false
edit out false statements.
statements. Ex.106,
Ex.106, Clark
Clark 39:9-41:19.
39:9-41:19. As
Asofof November
November 8,8, each
each of
of
the responsible
the responsible individuals
individuals (let
(let alone
alone one, which isis all
one, which all that’s
that's needed
needed to
to establish
establish
actual malice)
actual malice) knew
knew the
the falsity
falsity of
of Powell’s
Powell’s accusations
accusations about
about Dominion
Dominion or
or recklessly
recklessly
disregarded the
disregarded the truth.
truth. See,
See, supra,
supra, §§V.A-B,
§§V.A-B, V.C.1-3.
V.C.1-3.
4 Ex.121,
14
Ex.121, Grossberg
Grossberg 17:3-8,
17:3-8, 256:13-17;
256:13-17; Exs.420,
Exs.420, 421; Ex.98, Bartiromo
421; Ex.98, Bartiromo 248:7-
248:7-
249:20; see also Ex.422(
249:20; see also Ex.422 (
I):); supra,
5:;pra. §V.C.3
§V.C.3 (discussing
(discussing executives
executives responsible).
responsible).
17
117
a.
a. November 88 Broadcast
November Broadcast
Bartiromo’s November
Bartiromo’s November 88 broadcast
broadcast featuring
featuring Sidney
Sidney Powell
Powell published
published the
the
fraud and
fraud and algorithm
algorithm lies
lies about
about Dominion.
Dominion. See
See §179(a); Appendix D.
¶179(a); Appendix D. Powell’s
Powell's
segment was
segment was pre-recorded.
pre-recorded. Ex.424.
Ex.424.
Even before
Even before the
the pre-recorded
pre-recorded interview,
interview, Bartiromo
Bartiromo and
and Grossberg
Grossberg knew
knew what
what
Powell would
Powell would say
say on
on air
air on
on November
November 8:
3: | EG_——
EE
EE
I . See
Sc also Ex.98, Bartiromo
also Ex.98, Bartiromo
143:13-19. IfIf any
143:13-19. any doubt
doubt existed
existed about
about what
what Powell
Powell would
would say
say in
in the
the interview,
interview,
certainly none
certainly none existed
existed by
by the
the time
time the
the pre-taped
pre-taped interview
interview aired.
aired.
No such
No such doubt
doubt ever
ever existed, though, because
existed, though, because Powell
Powell sent
sent Bartiromo
Bartiromo an
an email
email
prior to
prior to the
the interview
interview with
with the
the subject
subject line
line “Election
“Election Fraud
Fraud Info”—which
Info”—which Bartiromo
Bartiromo
forwarded to
forwarded to Grossberg—with
Grossberg—with information
information from
from aa woman
woman claiming
claiming Dominion’s
Dominion’s
software flips
software flips votes
votes from
from Trump
Trump to
to Biden
Biden and
and tying
tying Dominion
Dominion to
to aa conspiracy theory
conspiracy theory
involving Nancy
involving Nancy Pelosi
Pelosi and
and Senator
Senator Dianne
Dianne Feinstein.
Feinstein. Ex.154.
Ex.154. In
In the
the same
same email,
email,
Powell’s singular
Powell’s singular source
source explained
explained that
that Roger
Roger Ailes
Ailes (who,
(who, as
as previously
previously noted,
noted, had
had
died years
died years ago)
ago) “huddles”
“huddles” every day with
every day with Rupert
Rupert Murdoch
Murdoch about
about airing
airing anti-Trump
anti-Trump
material, and
material, and that
that Justice
Justice Scalia
Scalia was
was killed
killed in
in aa “human
“human hunting
hunting expedition.”
expedition.” Id.
Id. atat
FNNO0I_00000010. Powell’s
FNN001_00000010. Powell’s source
source also
also explained that she
explained that she gets
gets her
her information
information
118
118
from experiencing
from experiencing something
something “like
“like time-travel
time-travel in
in aa semi-conscious
semi-conscious state,”
state,” allowing
allowing
her to
her to “see
“see what
what others
others don’t see, and
don’t see, and hear
hear what
what others don’t hear,”
others don’t hear,” and
and she
she received
received
messages from
messages from “the
“the wind.”
wind.” Id.
Zd. at
at FNN001_00000011.
FNN001_00000011. Bartiromo
Bartiromo read
read this
this email
email atat
the time:
the time: she
she responded
responded to
to Powell
Powell saying
saying she
she had
had shared
shared this
this “very
“very imp[ortant]
imp{ortant] info”
info”
with Eric
with Eric Trump. Ex.259. Powell
Trump. Ex.259. Powell provided
provided Bartiromo
Bartiromo with
with no
no other
other evidence for
evidence for
her claims
her about Dominion.
claims about Dominion. Ex.98,
Ex.98, Bartiromo
Bartiromo 147:6-15.
147:6-15.
At her
At her deposition, Bartiromo admitted
deposition, Bartiromo admitted that
that this
this email
email isis “not
“not evidence”
evidence” for
for
Powell's claims,
Powell’s claims, and
and indeed
indeed was
was “nonsense”
“nonsense” and “inherently unreliable.”
and “inherently unreliable.” Id.
Id.
133:25-134:13, 141:21-24.
133:25-134:13, 141:21-24. Grossberg
Grossberg likewise
likewise conceded
conceded that
that this
this “isn’t
“isn’t something
something
that II would
that would use
use right
right now
now as
as reportable
reportable for
for air,
air, no.”
no.” Ex.121,
Ex.121, Grossberg
Grossberg 148:15-17.
148:15-17.
And Clark,
And Clark, the
the executive
executive directly responsible for
directly responsible for the
the show,
show, admitted
admitted that
that this
this isis “not
“not
sufficient to
sufficient to make
make the
the severe
severe allegation
allegation that
that Dominion
Dominion Voting
Voting machines
machines rigged
rigged the
the
election and
election and flipped
flipped votes,”
votes.” and
and ifif he
he had
had known
known that
that this
this was
was the
the sole
sole support
support for
for
the “crazy”
the “crazy” theories,
theories, he
he “would
“would not
not have
have allowed
allowed that
that claim
claim to
to be
be aired.”
aired.” Ex.106,
Ex.106,
Clark 209:21-210:17,
Clark 209:21-210:17, 213:3-11.
213:3-11.
EE
EE
EE
EE
EE
119
119
Cf. Ex.126,
Cf. Ex.126, Komissaroff
Komissaroff 79:23-80:3
79:23-80:3 (agreeing
(agreeing that
that “part
“partof the editorial
of the editorial team’s
team’s job
job
is when
is when somebody
somebody isis coming
coming on
on with
with unsubstantiated
unsubstantiated allegations
allegations that
that have
have no
no
evidence isis to
evidence to do
do some
some research,
research, use
use the
the Brain
Brain Room,
Room, find
find out
out the
the information
information on
on
what's going
what’s going to
to be
be alleged
alleged to
to determine
determine whether
whether itit should
should be
be put
put on
on the
the air”).
air”). And
And
Bartiromo did
Bartiromo not disclose
did not the crazy
disclose the crazy email to her
email to her viewers.
viewers.
On November
On November 5,
5, Gary
Gary Schreier
Schreier flagged
flagged aa Bartiromo
Bartiromo tweet
tweet espousing
espousing
conspiracy theories
conspiracy theories for
for Petterson,
Peterson, and
and Petterson
Petterson suggested
suggested Bartiromo
Bartiromo should
should “get
“get off
off
social [media] all together.” Ex.406 at FNN059_04466136.
FNN059_04466136. Schrier echoed
echoed the
sentiment that
sentiment that Bartiromo
Bartiromo was
was “say[ing] crazy shit”
“say[ing] crazy shit” online.
online. Id.
Id. On November 8,
On November 8, he
he
waned Petterson
warned Petterson that
that Bartiromo
Bartiromo “has gop conspiracy
“has gop conspiracy theorists
theorists inin her
her ear.”
ear.” Ex.398.
Ex.398.
Yet Petterson
Yet Petterson did nothing to
did nothing to prevent
prevent Bartiromo
Bartiromo from
from broadcasting
broadcasting the
the same
same “crazy
“crazy
shit” to
shit” to Fox’s
Fox's viewers—and
viewers—and indeed
indeed allowed
allowed itit to
to be
be rebroadcast.
rebroadcast. See
See Ex.142,
Ex.142,
Schreier 132:1-5
Schreier 132:1-5 (FBN
(FBN management
management could
could choose
choose not
not to
to rebroadcast
rebroadcast aa show).
show).
EE
EE
EE
1
EE
I
120
120
Bartiromo and
Bartiromo and Grossberg
Grossberg likewise
likewise ignored
ignored the
the public
public record.
record. Ex.98,
Ex.98,
Bartiromo 29:4-30:1
Bartiromo 29:4-30:1 (confirming
(confirming “staying
“staying on
on top
top of
ofcurrent events isis an
current events an important
important
part of
part [Bartiromo’s] job,”
of [Bartiromo’s] including the
job,” including the Associated Press, New
Associated Press, New York
York Post,
Post, and
and
others that
others that covered public evidence
covered public evidence confirming no evidence
confirming no evidence of
of fraud
fraud inin the
the 2020
2020
election exists):
election Ex.121, Grossberg
exists); Ex.121, 21:14-22:5 (Grossberg
Grossberg 21:14-22:5 (Grossberg likewise
likewise “consume[s]
“consume[s] aa
lotof of
lot news”). Bartiromo and
news.”). Bartiromo and Grossberg,
Grossberg, and
and the
the executives
executives supervising
supervisingtheir
their show,
show,
chose to
chose to air
air unsubstantiated,
unsubstantiated, improbable,
improbable, and damning claims
and damning about Dominion
claims about Dominion inin
the face
the face of
of aa mountain
mountain of
of evidence indicating those
evidence indicating those claims
claims were
were false.
false. See,
See, supra,
supra,
SVA.
§V.A.
b.
b. November 15
November 15 Broadcast
Broadcast
Bartiromo’s November
Bartiromo’s November 15
15 broadcast
broadcast featuring
featuring Sidney
Sidney Powell
Powell and
and Rudy
Rudy
Giuliani published
Giuliani published the
the fraud,
fraud, algorithm,
algorithm, and
and Venezuela
Venezuela lies
lies about
about Dominion.
Dominion. See
See
179(g): Appendix D.
¶179(g); Appendix D. The
The November
November 15,
15, 2020
2020 episode of Sunday
episode of Sunday Morning
Morning Futures
Futures
was pre-recorded,
was pre-recorded, such
such that Bartiromo, Grossberg,
that Bartiromo, Grossberg, and
and Clark all knew
Clark all knew Giuliani
Giuliani and
and
Powell made
Powell made these
these claims about Dominion
claims about Dominion before
before Fox
Fox aired
aired the interviews. Ex.98,
the interviews. Ex.98,
Bartiromo 200:17-201:8;
Bartiromo 200:17-201:8;Exs428-429; Ex.147, Wallace
Exs.428-429; Ex.147, Wallace 198:4-199:9.
198:4-199:9. Indeed,
Indeed, Clark
Clark
emailed Wallace
emailed Wallace and
and Cooper
Cooper during the pre-tape
during the pre-tapeofGiuliani's segment to
of Giuliani’s segment to give
give those
those
senior executives
senior executives notice
notice about
about aa comment
comment Giuliani
Giuliani made
made regarding
regarding Fox
Fox during
during the
the
taping. Ex.429;
taping. Ex.429; see also Ex.106,
see also Ex.106, Clark
Clark 194:12-195:2
194:12-195:2 (acknowledging
(acknowledging Fox
Fox could
could
121
121
have chosen
have not to
chosen not to air
air pre-taped
pre-taped Giuliani
Giuliani segment).
segment). Yet
Yet he
he made
made no
no effort to remove
effort to remove
the statements
the statements about
about Dominion
Dominion he
he knew
knew by
by then
then were
were false.
false.
Bartiromo and
Bartiromo and Grossberg
Grossberg (and
(and of
of course
course the
the Fox
Fox executives)
executives) all
all had
had the
the same
same
knowledge and
knowledge resources available
and resources available regarding
regarding the
the total
total falsity
falsity of
of Powell
Powell and
and
Giuliani's claims
Giuliani’s claims on
on November
November 15
15 as
as on
on November
November 8.
8. They had the
They had the benefit
benefit of
of
additional public
additional public officials publicly stating
officials publicly stating that
that the
the election
election was
was free
free and
and fair.
fair. See,
See,
supra, §I.A.
supra, SLA. And
And by
by November
November 12,
12, Dominion
Dominion had
had started
started sending
sending its
its STRS
STRS emails
emails
to Fox,
to Fox, including
including to
to Bartiromo
Bartiromo and
and Grossberg
Grossberg directly, as well
directly, as well as
as to
to the
the internal
internal Fox
Fox
Politics listserv
Politics listserv of which they
of which they were
were both
both members.
members.Ex431; Ex.98, Bartiromo
Ex.431; Ex.98, Bartiromo 190:1-
190:1-
191:14; Ex.121,
191:14; Ex.121, Grossberg
Grossberg 207:5-208:12;
207:5-208:12; Ex.363
Ex.363 (table showing recipients
(table showing recipients of
of STRS
STRS
emails)
emails).
In addition,
In addition, Bartiromo
Bartiromo isis aa “well-respected
“well-respected business
business reporter
reporter with
with deep
deep
experience.” Ex.127,
experience.” Ex.127, Lowell
Lowell 30(b)(6)
30(b)(6) 223:8-10;
223:8-10; see
see Ex.119,
Ex.119, Fratto
Fratto 216:8-17.
216:8-17. She
She
knows how
knows how to
to determine
determine aa company’s
company’s corporate
corporate ownership,
ownership, for
for instance,
instance, and
and
whether itit was
whether was in
in fact
fact founded
founded in
in Venezuela
Venezuela to
to rig
rig elections.
elections. Ex.98,
Ex.98, Bartiromo
Bartiromo
287:1-8. Cf.
287:1-8. Cf. Ex.140,
Ex.140, Sammon
Sammon 56:19-57:3.
56:19-57:3. Yet
Yet Bartiromo
Bartiromo and
and Grossberg
Grossberg invited
invited
Powell and
Powell and Giuliani
Giuliani on the program,
on the program, aired
aired their
their pre-taped
pre-taped interviews,
interviews, and
and atat
minimum recklessly
minimum recklessly disregarded
disregarded the
the truth
truth about
about the
the unfounded
unfounded allegations
allegations their
their
guests made
guests made about
about Dominion’s
Dominion’s corporate ties and
corporate ties and its
its role
role inin the
the 2020
2020 Presidential
Presidential
Election.
Election.
122
122
***
Bartiomo
Bartiromo and
and Grossberg
Grossberg continued to receive
continued to receive numerous
numerous direct
direct
communications from
Dominion citing to the
citing to the public
public evidence
evidence that
that the
the claims
claims about
about
Dominion were
Dominion were false.
false. Ex.431;
Ex.d31; Exs.433-434;
Exs.433-434; Ex.121,
Ex.121, Grossberg
Grossberg 207:5-208:12.
207:5-208:12.
Tony Fratto,
Tony Fratto, who
who has
has known
known Bartiromo
Bartiromo for
for years
years and
and has
has appeared
appeared on
on television
television
with her
with her multiple
multiple times,
times, reached
reached out
out to
to Bartiromo
Bartiromo personally
personally to
to tell
tell her
her that
that Powell’s
Powell's
claims about
Dominion were
were false.
false. Ex.119,
Ex.119, Fratto
Fratto215:18-217:15.
215:18-217:15. |_|
EE
EE
I. But
But at
at no
no point
point did
did Bartiromo
Bartiromo tell
tell her
her
viewers that
viewers that the
the claims
claims made
made by
by Powell
Powell and
and Giuliani
Giuliani on
on her program had
her program had been
been
unsupported lies.
unsupported lies.
2.
2. Lou Dobbs
Lou Tonight.
Dobbs Tonight.
Q: ItIt was
Q: was aa false
false statement
statement that
that Powell had revealed
Powell had revealed groundbreaking
groundbreaking newnew
evidence on
evidence on’your show indicating
your show indicating that
that the
the 2020
2020 presidential
presidential election came
election came
under a massive cyberattack orchestrated with the helpofDominion, wasn’t
under a massive cyberattack orchestrated with the help of Dominion, wasn’t
it?
A: It
A: was an
It was overstatement, yes.
an overstatement, yes.
Ex.111, Dobbs
Ex.111, Dobbs 269:23-271:5
269:23-271:5 (further
(further agreeing
agreeing itit was
was “false”)
“false”)
Suzanne Scott;
Scott; Jay
Jay Wallace;
Wallace; Lauren
Lauren Petterson;
Petterson;
Gary Schreier;
Gary Schreier; Lou
Lou Dobbs;
Dobbs; Jeff
Jeff Field
Field (senior
(senior producer);
producer); Alex
Alex Hooper
Hooper (senior
(senior
producer); John
producer); Fawcett (associate
John Fawcett (associate producer).
producer). 15
1S Ex.111,
15
Ex.111, Dobbs
Dobbs 32:21-33:5,
32:21-33:5, 95:25-97:6,
95:25-97:6, 100:4-14;
100:4-14; supra,
supra, §V.C.3.
§V.C3.
123
123
Dobbs’ viewers
Dobbs’ viewers “always
“always expected
expected [him]
[him] to
to speak
speak truthfully,
truthfully, honestly
honestly and
and
forthrightly” and
forthrightly” and he
he considers
considers his
his show
show to
to be
be aa place
place for
for his
his viewers
viewers to
to get
get “accurate
“accurate
information to
information to inform
inform themselves.”
themselves.” Ex.111,
Ex.I11, Dobbs
Dobbs 18:6-20:17.
18:6-20:17. Yet
Yet on
on January 4,
January 4,
2021, Dobbs
2021, Dobbs admitted
admitted on air—and later
on air—and later confirmed in his
confirmed in his deposition—that
deposition—that he
he had
had
never seen verifiable
never seen verifiable support
support for
for the
the fraud
fraud claims
claims about Dominion that
about Dominion that his
his show
show
pushed inin November
pushed November and
and December
December 2020.
2020. See
See Ex.111,
Ex.111, Dobbs
Dobbs 36:13-37:13,
36:13-37:13, 46:11-
46:11-
47:10, 86:20-24; Ex.436;

47:10, 86:20-24; Ex.436; see
see also Ex.437. And
also Ex.437. And of
of course
course Gary
Gary Schreier, who had
Schreier, who had
editorial responsibility
editorial responsibility for
for Dobbs’
Dobbs” show,
show, was
was well
well aware that the
aware that the statements
statements Dobbs
Dobbs
endorsed on
endorsed air about
on air Dominion atat that
about Dominion that time were false.
time were false. Supra, pp.111-113.
Supra, pp.111-113.
Not only
Not did Dobbs
only did Dobbs and
and his
his team
team broadcast
broadcast unsubstantiated
unsubstantiated lies,
lies, the
the segments
segments
were each
were each rebroadcast at least
rebroadcast at least the
the very
very same
same day:
day: airing
airing live
live atat Spm EST Monday-
5pm EST Monday-
Friday, and
Friday, and rebroadcast two hours
rebroadcast two hours later
later atat 7pm.
7pm. Ex.124,
Ex.124, Hooper
Hooper 30:18-25.
30:18-25. The
The
show could
show have been
could have been edited between those
edited between those broadcasts
broadcasts to
to correct
correct false
false statements,
statements,
and in
and in fact
fact Fox
Fox has
has edited
edited aa rebroadcast
rebroadcast to
to correct false information
correct false information before.
before. Ex.111,
Ex.111,
Dobbs 93:1-9;
Dobbs 93:1-9;Ex.142, Schreier 42:1-21;
Ex.142, Schreier 42:1-21; see, e.g., Ex.356
see, e.g., Ex.356 atat FNN022_03852657.
FNN022_03852657.
But neither
But neither Schreier
Schreier nor
nor Petterson
Petterson nor
nor anyone
anyone on
on Dobbs’
Dobbs” team
team edited out any
edited out any of
of the
the
defamatory statements about
about Dominion
Dominion prior
prior to
to the
the rebroadcasts.
rebroadcasts.
124
124
a.
a. November 12
Broadcast and
and November
November 14
14 Tweet
Tweet
Dobbs’ November
Dobbs’ November 12
12 broadcast
broadcast featuring
featuring Rudy
Rudy Giuliani
Giuliani and
and November
November 14
14
tweet published
tweet published the
the fraud
fraud and
and Venezuela
Venezuela lies
lies about
about Dominion.
Dominion. See §179(b) &
See ¶179(b) & (d);
(d);
Appendix D.
Appendix D.
Dobbs confirmed
Dobbs confirmed in
in his
his deposition
deposition that
that in
in November
November 2020
2020 he
he was
was aware
aware of
of
CISA’s November
CISA’s 12 statement
November 12 statement proclaiming
proclaiming the
the 2020
2020 Presidential
Presidential election
election “the
“the
most secure
most secure inin American
American history,”
history,” Ex.111,
Ex.111, Dobbs
Dobbs 133:2-13,
133:2-13, and
and Hooper
Hooper confirmed
confirmed
that the
that the show’s
show's producers
producers discussed
discussed CISA’s statement when
CISA’s statement when itit was
was released,
released, Ex.124,
Ex. 124,
Hooper 20:6-21:21.
Hooper 20:6-21:21. That same day,
That same day, on
on November
November 12,
12, Hooper
Hooper emailed
emailed himself
himself aa
New York
New York Times
Times article
article debunking
debunking claims
claims about
about Dominion
Dominion titled
titled “No, Dominion
“No, Dominion
Voting Machines
Voting Machines Did
Did Not
Not Cause
Cause Widespread
Widespread Voting
Voting Problems.”
Problems.” Ex.322;
Ex.322; Ex.124,
Ex.124,
Hooper 25:15-27:1.
Hooper 25:15-27:1. The article quotes
The article quotes election technology expert
election technology Edward Perez
expert Edward Perez as
as
saying that
saying that no
no evidence
evidence existed
existed showing
showing that
that Dominion’s
software flipped
flipped votes
votes or
or
that widespread
that widespread fraud
fraud occurred,
occurred, and
and Hooper
Hooper acknowledged
acknowledged Perez
Perez not
not only
only as
asaa
reliable expert,
reliable expert, but
but as
as the
the very
very expert
expert Dobbs’
Dobbs” show
show brought
brought onair over aa month
on air over month later
later
to “clear
to “clear up
up all
all of our reporting
of our reporting afterwards,
afterwards, when
when we
we ultimately
ultimately came
came to
to our
our
conclusion that,
conclusion that, inin fact,
fact, the
the voting
voting machines
machines were
were not
not atat fault,
fault, after all of
after all of our
our
investigation and
investigation and research
research and
and everything
everything like
like that.”
that.” Ex.124,
Ex.124, Hooper
Hooper 27:7-29:15.
27:7-29:15.
But Dobbs’
But Dobbs” team
team did
did not
not need
need to
to wait
wait weeks
weeks or
or months
months to
to “clear
“clear up”
up” their
their
reporting: they
reporting: they had
had reliable
reliable information
information from
from public
public sources
sources as
as of
of November
November 12
12 that
that
125
125
no fraud
no fraud occurred,
occurred, and
and they
they had
had no
no evidence
evidence to
to the
the contrary.
contrary. Dobbs
Dobbshimself admitted
himself admitted
that he
that he had
had never
never “seen
“seen any
any verifiable,
verifiable, tangible
tangible support”
support” that
that Dominion
Dominion was
was owned
owned
by Smartmatic
by Smartmatic and is aware
and is aware of
of no
no evidence
evidence that Dominion rigged
that Dominion rigged the
the election.
election.
Ex.111, Dobbs
Ex.111, Dobbs 64:11-65:15, 38:11-39:16. As
64:11-65:15, 38:11-39:16. As for
for Dominion’s
Dominion’s ownership,
ownership, that is
that is
easily fact-checked
easily fact-checked (as
(as indicated
indicated by
by such
such fact
fact checks
checks by
by other
other media
media sources
sources and
and
internally atat Fox,

internally Fox, and
and Dominion’s
Dominion’s STRS
STRS emails,
emails, see, supra, §V.A
see, supra, §V.A && Factual
Factual
Background)—and should
Background)—and should have
have been,
been, prior to airing
prior to airing Giuliani’s
Giuliani's claims. Ex.140,
claims. Ex.140,
Sammon 56:19-57:3.
Sammon 56:19-57:3.
b.
b. November 13 Broadcast
Dobbs’ November
13 broadcast
broadcast featuring
featuring Sidney
Sidney Powell
Powell published
published the
the fraud,
fraud,
algorithm, Venezuela,
algorithm, Venezuela, and
and kickbacks
kickbacks lies
lies about
about Dominion.
Dominion. See
See §179(c);
¶179(c);
Appendix D.
Appendix D.
In addition
In to all
addition to all the
the facts
facts the
the Dobbs
Dobbs team
team had
had prior
prior to
to the
the November
November 12
12
broadcast, Schreier
broadcast, Schreier received
Dominion’s November
November 13
13 email
email prior
prior to
to that
that day’s
day's
broadcast, containing
broadcast, containing links
links to statements by
to statements by CISA,
CISA, the Georgia Secretary
the Georgia Secretary of State,
of State,
and Michigan
and Michigan Secretary
Secretary of
of State disavowing claims
State disavowing claims of
of election fraud. Ex.142,
election fraud. Ex.142,
Schreier 118:19-119:14;
Schreier 118:19-119:14; Ex.400.
Ex.400. Dobbs
Dobbs likewise
likewise received
received that
that email,
email, and
and Hooper
Hooper
testified that
testified that someone
someone on the Dobbs
on the Dobbs show
show team typically would
team typically would have
have gone through
gone through
and clicked
and clicked on the links
on the links in
in the
the emails
emails Dominion
Dominion provided.
provided. Ex.124,
Ex.124, Hooper
Hooper 86:22-
86:22-
92:20; see
92:20; Ex.111, Dobbs
see Ex.111, Dobbs 118:8-119:4.
118:8-119:4. The
The Dobbs
Dobbs team
team ignored
ignored this
this additional
additional
126
126
evidence, along
evidence, along with
with the
the rest
rest of
of the
the public
public record
record and
and internal
fact-checking
resources, and
resources, and broadcast
broadcast Powell’s
Powell’s lies
lies atat both
both 55 and
and 7pm.
7pm. Dobbs
Dobbs again
again confirmed
confirmed
that he
that he had
had never
never “seen
“seen any
any verifiable,
verifiable, tangible
tangible support”
support” for
for the
the claims
claims broadcast
broadcast on
on
his show
his show on
on November
November 13.
13. Ex.111,
Ex.111, Dobbs
Dobbs 69:13-16.
69:13-16.
c.
c.November
November 16 16 Broadcast
Broadcast
On November
On November 16,
16, Powell
Powell returned
returned toto Dobbs’
Dobbs’ program
program and
and repeated
repeated the
the same
same
falsehoods about
falsehoods about the
the creation
creation of Dominion’s software,
of Dominion’s software, claiming
claiming that
that aa “high-ranking
“high-ranking
military officer”
military officer” was present when
was present when the
the software
software was
was designed to “change
designed to “change the
the vote
vote of
of
cach voter
each voter without
without being
being detected.”
detected.” Ex.8
Ex.8 atat DOM_0071654722.
DOM_0071654722. When
When Dobbs
Dobbs
prompted her
prompted her about the relationship,
about the relationship, she
she cut him off
cut him off and
and said
said “Smartmatic
“Smartmatic owns
owns
Dominion,”16 toto which
Dominion,” which he
he replied
replied “yes.”
“yes.” Id.
Id. atat DOM_0071654724.
DOM_0071654724. See
See §179(h);
¶179(h);
Appendix DD (fraud,
Appendix (fraud, algorithm,
algorithm, and
and Venezuela
Venezuela lies).
lies).
Earlier that
Earlier very same
that very same day,
day, Field
Field and
and Hooper
Hooper had
had received
received an
an email from Fox
email from Fox
colleague Eric
colleague EricSchaefferwith the subject
Schaeffer with the subject line
line “AP
“AP ON
ON WHO
WHO OWNS DOMINION,”
OWNS DOMINION,”
linking to
linking to an
an AP
AP article
article debunking
debunking ownership
ownership claims
claims about Dominion and
about Dominion and citing
citing inin
the body
the bodyofofthe email Dominion’s
the email Dominion’s CEO John Poulos’s
CEO John Poulos’s Congressional
Congressional testimony
testimony that
that
an American
an American private
private equity firm majority-owns
equity firm majority-owns Dominion,
Dominion, and
and Poulos
Poulos (a
(a Canadian)
Canadian)
6 The
16
The produced
produced transcripts
transcripts omit
omit this
this statement
statement in
in the
the exchange
exchange between
between Dobbs
Dobbs and
and
Powell. However,
Powell. However, one one can
can hear it clearly
hear it clearly made
made in
in the
the video
video (as
(as noted
noted inin Appendix
Appendix
D). Ex.27
D). Ex.27 atat 04:20-4:24.
04:20-4:24.
127
127
owns 12%.
owns 12%. Ex.439.
Ex.439. I
EE
EE
EE
I I
I Fawcett
|: cctt likewise
likewise had
had reason
reason to
to doubt
doubt Powell’s
Powell's
credibility, texting
credibility, texting others
others at
at Fox
Fox prior
prior to
to the
the November
November 16
16 broadcast
broadcast that
that he
he believed
believed
Powell was
Powell was “doing Isd and
“doing lsd and cocaine
cocaine and
and heroin
heroin and
and shrooms.”
shrooms.” Ex.442.
Ex.442. But
But none
none of
of
Dobbs” producers
Dobbs’ producers prevented
prevented Powell
Powell from
from spouting
spouting the
the lies
lies on
on air
air that
that evening,
evening, or
or
corrected her
corrected her claims
claims in
in the
the rebroadcast.
rebroadcast.
d.
d. November 18
Broadeast
Dobbs’ November
18 broadcast
broadcast featuring
featuring Rudy
Rudy Giuliani
Giuliani published
published the
the fraud,
fraud,
algorithm, and
algorithm, and Venezuela
Venezuela lies
lies about
about Dominion.
Dominion. See
See §179(); Appendix D.
¶179(i); Appendix D.
I
EE
EE
II
EE
1
EE
128
128
EE
EE
I This
This is,
is, of
of course,
course, on
on top
top of all of
of all of the
the
evidence already
evidence already in
in the
the public
public record
record and
and of
of which
which the
the show
show team
team was
was aware.
aware. See,
See,
supra, §§V.A,
supra, $§V.A, V.C,
V.C, V.D.2.a-c.
V.D2a-c. Despite this,
Despite this, Schreier—the
Schreier—the senior
senior editorial
editorial
leadership member
leadership member with
with oversight
oversight for
for Lou
Lou Dobbs’
Dobbs’program—permitted Dobbs to
program—permitted Dobbs to
broadcast and
broadcast and rebroadcast
rebroadcast the
the exact
exact claim the AP
claim the AP had
had debunked
debunked the
the very
very next
next day,
day,
on Dobbs’ November 18
18 show.
show.
e.
e. November 19
Broadcast
Dobbs’ November
19 broadcast
broadcast featuring
featuring Sidney
Sidney Powell
Powell published
published the
the fraud,
fraud,
algorithm, and
Venezuela lies
lies about
about Dominion.
Dominion. See
See 9179): Appendix D.
¶179(j); Appendix D.
Dobbs and
Dobbs and his
his team
team did
did not
not tell
telltheir audience that
their audience that prior
prior to
to the
the November
November 19
19
show, associate
show, associate producer
producer Michael
Michael Biondi
Biondi emailed Hooper, stating:
emailed Hooper, stating: “Even [Fox News
“Even [Fox News
Contributor] Victor
Contributor] Victor [Davis
[Davis Hanson]
Hanson] isis waiting
waiting to
to see
sce some
some real
real evidence”
evidence” of
of the
the
conspiracy theories
conspiracy theories Powell
Powell was
was pushing.
pushing. Ex.443.
Ex.443. |
IE
EE
I . Hooper
Hooper confirmed
confirmed at
at his
his deposition
deposition
that Hanson
that Hanson was
was an
an honest,
honest, reliable
reliable source.
source. Ex.124,
Ex.124, Hooper
Hooper 38:3-20.
38:3-20. Perhaps
Perhaps
unsurprisingly given
unsurprisingly that ample
given that ample evidence
evidence already
already existed
existed for
for the
the falsity
falsity of
of Powell’s
Powell's
129
129
claims and
claims and itit had
had likewise
likewise been
been ignored,
ignored, Dobbs
Dobbs had
had Powell
Powell on air and
on air and endorsed
endorsed her
her
baseless claims
baseless claims that
that evening
evening anyway.
anyway.
f.
f. November 24 Broadcast
Dobbs knew that “there was an issue” with Powell on November 22, when
Fawcett texted
Fawcett texted him
him an
an article
article about
about the
the Trump
Trump legal
legal team
team disavowing Powell and
disavowing Powell and
noted that they were “calling bullshit” on her.
her. Ex.444. On November 22, Dobbs
told Fawcett
told Fawcett he
he honestly
honestly didn’t
didn’t know
know what
what Powell
Powell was
was “thinking
“thinking or
or doing,
doing, Or
Or why!”,
why!”,
to which
to which Fawcett
Fawcett responded
responded “Could
“Could be
be losing
losing her
her mind,”
mind.” that what she
that what she was saying
was saying
“doesn’t make
“doesn’t make sense,”
sense,” and
and “I“I justdon’t
just don’t think she isis verifying
think she verifying anything
anything she
she isis saying.”
saying.”
Ex.445 atat FNN022_03852042-43.
Ex.445 FNN022_03852042-43. Fawcett
Fawcett had
had previously
previously texted
texted Dobbs
Dobbs toto notify
notify
him of Tucker Carlson’s criticism of Powell’s
Powell's stolen-election conspiracy theories.
Ex.446. And on the evening the November 8, Senior Booker Anne Woolsey
MecCarton had
McCarton texted Field
had texted Field warning him that
warning him that staunch
staunch Republicans
Republicans were
were “backing
“backing
off” the
off” the electoral
electoral fraud
fraud narrative
narrative due
due toto concerns
concerns about
about how
how itit would
would “play
“play out.”
out.”
Ex.447, atat FNN014_00127528.
Ex.447, FNNOI4_00127528. As
As Field
Field testified,
testified, this
this response
response from
from established
established
Republicans impacted
Republicans impacted his
his own view on
own view on the
the credibility
credibility of
of election
election fraud
fraud claims.
claims.
Ex.116, Field 73:3-22.
Yet despite the Dobbs team’s clear awareness that Powell was an unreliable
source making baseless claims, Dobbs had Powell on his show yet again on
November 24, and Fox chose to broadcast (and rebroadcast) both the fraud and
130
130
algorithm lies
algorithm lies about
about Dominion.
Dominion. See
See ¶179(l);
179(1); Appendix
Appendix D.
D. Dobbs
Dobbs responded
responded to
to
Powell’s repeated
Powell’s repeated false
false assertions
assertions not
not by
by challenging
challenging her,
her, but
but by
by lamenting
lamenting that
that most
most
Americans had
Americans had given
given no
no thought
thought to
to “electoral
“electoral fraud
fraud that
that would
would be
be perpetrated
perpetrated
through electronic
through electronic voting;
voting; that
that is,
is, these
these machines,
machines, these
these electronic
electronic voting
voting companies,
companies,
including Dominion,
including Dominion, prominently
prominently Dominion,
Dominion, atat least
least inin the
the suspicions
suspicions of
of aa lot
lot of
of
Americans.”Ex448
Americans.” at DOM_0071653170-71.
Ex.448 at DOM_0071653170-71.
2
g. November
November30 Broadcast
30 Broadcast
Dobbs had
Dobbs Powell on
had Powell on his
his show
show yet
yet again
again on
on November
November 30,
30, again
again publishing
publishing
the fraud
the fraud and
and algorithm
algorithm lies.
lies. See
See §179(m); Appendix D.
¶179(m); Appendix D.
Two days
Two days prior
prior to
to this,
this, on
on November
November 27,
27, Fawcett
Fawcett had again texted
had again texted Dobbs
Dobbs
asking ifif Dobbs
asking Dobbs had
had read
read Powell’s
Powell's lawsuit
lawsuit (Dobbs
(Dobbs confirmed he had)
confirmed he had) and
and stating
stating
those suits
those suits were
were “complete
“complete bs.”
bs.” Ex.174.
Ex.174. Dobbs
Dobbs testified
testified atat his
his deposition that
deposition that
Fawcett isis honest

Fawcett honest and
and trustworthy,
trustworthy, Ex.111,
Ex.111, Dobbs
Dobbs 33:9-16—but
33:9-16—but he
he nevertheless
nevertheless
chose to
chose to have
have Powell
Powell on
on air
air to
to repeat
repeat her
her “bs”
“bs” claims.
claims.
h.
h. December
December 44 Broadcast
Broadcast
On December
On December 4,4, Dobbs
Dobbs returned
returned to
to the
the subject
subject of
of Dominion,
Dominion, stating
stating that
that itit isis
at the
at center of
the center of the
the stolen
stolen election,
election, rhetorically
rhetorically asking his guest
asking his guest Phil
Phil Waldron
Waldronifit is
if it is
the “principal
the “principal culprit,”
culprit,” and
and repeating
repeating the
the claim
claim that
that Dominion
Dominion used
used algorithms
algorithms
designed to
designed to be
be inaccurate
inaccurate rather
rather than
than to
to be
be aa secure
secure system.
system. See
See §179(0); Appendix
¶179(o); Appendix
D. For
D. For all
all of
of the
the reasons
reasons already
already discussed,
discussed, Dobbs
Dobbs and
and his
his team
team were
were well
well aware—
aware—
131
131
or atat minimum
or minimum recklessly
disregarded the
the truth—that
truth—that Dominion
Dominion was
was not
not part
part of any
of any
election fraud
election fraud scheme.
scheme.
i.
i. December 10 Broadcast
December 10 Broadcast and
and Tweets
Tweets
On December
On December 9,9, Dobbs
Dobbs and
and his
his team
team received
received notice
notice that
that all
all of
of Powell’s
Powell's
“Kraken” lawsuits
“Kraken” lawsuits had
had been
been dismissed,
dismissed, the
the last
last of
of which
which for
for failing
failing to
to provide
provide the
the
court with
court with factual
factual support
support for
for her
her extraordinary
extraordinary claims,
claims, which
which Dobbs
Dobbs admitted
admitted
“affect[ed] her
“affect[ed] her credibility or reliability
credibility or reliability inin [his]
[his] eyes”
eyes” and
and that
that he
he began
began to
to have
have
“doubts” about
“doubts” about her
her as
as aa source.
source. Ex.111,
Ex.111, Dobbs
Dobbs 198:1-200:12;
198:1-200:12; Ex.449.
Ex.449.
Nonetheless, on
Nonetheless, the next
on the next day,
day, December
December 10,
10, Dobbs
Dobbs had
had Powell
Powell on
on again,
again,
where she
where she repeated
repeated the
the false
false (and
(and repeatedly
repeatedly debunked)
debunked) story
story about
about the
the Smartmatic
Smartmatic
and Dominion
and Dominion machines
machines being
being designed
designed to
to flip
flip votes
votes to
to rig
rig elections
elections for
for Hugo
Hugo
Chavez, and
Chavez, and allowing
allowing people
people to
to log
log in
in and
and manipulate
manipulate votes.
votes.See
See §179(q): Appendix
¶179(q); Appendix
D. But
D. But rather
rather than
than questioning
questioning Powell’s
Powell’s claims, Dobbs attacked
claims, Dobbs Attorney General
attacked Attorney General
Barr for
Barr for saying
saying he’d
he'd seen
seen no
no sign
sign of
of any
any significant
significant fraud
fraud that
that would
would overturn
overturn the
the
election and
election and told
told Powell
Powell “We will gladly
“We will gladly put
put forward
forward your
your evidence
evidence that
that supports
supports
your claim
your claim that
that this
this was
was aa Cyber
Cyber Pearl
Pearl Harbor,”
Harbor,” noting
noting “we
“we have
have tremendous
tremendous
evidence already,”
evidence already,” id.—which
id.—which he
he now
now admits was not
admits was not true. See Ex.111,
true. See Ex.111, Dobbs
Dobbs
46:25-47:10, 86:20-24. Dobbs
46:25-47:10, 86:20-24. Dobbs had
had seen
seen no
no evidence from Powell,
evidence from Powell, nor
nor has
has he
he since.
since.
1d.
Id.
132
132
Powell had
Powell had sent
sent her
her claims
claims about
about aa “Cyber
“Cyber Pearl
Pearl Harbor”
Harbor” to
to Dobbs
Dobbs (who
(who
forwarded to
forwarded to his
his team)
team) in
in advance
advance of
ofthe show. Ex.450;
the show. Ex.450; Ex.451.
Ex.451. Prior
Prior to
to the
the show,
show,
Dobbs published
Dobbs published aa tweet
tweet to
to the
the @loudobbs
@loudobbs Twitter account with
Twitter account with the
the claim
claim that
that “The
“The
2020 Election
2020 Election isis aa cyber
cyber Pearl
Pearl Harbor,”
Harbor,” and
and embedding
embedding the
the very
very document
document Powell
Powell
had sent
had sent to
to him
him just hours before
just hours which stated
before which stated that
that Dominion
Dominion was
was oneoffour entities
one of four entities
that had
that had “executed
“executed an
an electoral
electoral 9-11
9-11 against
against the
the United
United States”
States” and
and “a
“a cyber Pearl
cyber Pearl
Harbor,” that
Harbor,” that “there
“there isis an
an embedded controller in
embedded controller in every
every Dominion
Dominion machine,”
machine,” and
and
that they
that they had
had “contracts,
“contracts, program
program details,
details, incriminating
incriminating information,
information, and
and history”
history”
proving these
proving these claims. §179(p); Appendix
claims. ¶179(p); Appendix D.
D.
Later the
Later the same
same day,
day, after
after Powell
Powell appeared
appeared on
on the
the 5pm
Spm broadcast
broadcast and
and before
before
the 7pm
the 7pm unedited
unedited rebroadcast
rebroadcast of the show,
of the show, Dobbs
Dobbs again
again tweeted “Cyber Pearl
tweeted “Cyber Pearl
Harbor: @SidneyPowell
Harbor: @SidneyPowell reveals
reveals groundbreaking new evidence
groundbreaking new indicating our
evidence indicating our
Presidential election
Presidential came under
election came under massive
massive cyber-attack
cyber-attack orchestrated with the
orchestrated with the help
help of
of
Dominion, Smartmatic,
Dominion, Smartmatic, and
and foreign
foreign adversaries.”
adversaries.” 179(r); Appendix D.
¶179(r); Appendix D. Dobbs
Dobbs
conceded
conceded at
at his
his deposition
deposition that
that this
this tweet
tweet was “false”—Powell had
was “false”—Powell had not presented
not presented
any such
any such evidence
evidence on
on his
his program
program that
that day.
day. Ex.111,
Ex.111, Dobbs
Dobbs 269:2-271:5.
269:2-271:5.
Dobbs admitted
Dobbs under oath
admitted under oath that,
that, at
at the
the time
time of Powell’s appearance
of Powell’s appearance on
on his
his
show on
show on December
December 10,
10, he
he doubted
doubted her
her credibility
credibility and
and her
her claims, id. 200:6-12—and
claims, id. 200:6-12—and
necessarily so,
necessarily so, given the unavoidable
given the unavoidable public
public and internal Fox
and internal Fox evidence
evidence showing
showing that
that
Powell's claims
Powell’s claims lacked
lacked any basis in
any basis in reality.
reality. [EG
133
133
EE
EE
EE
EE
1
EE
I.
Despite this,
Despite this, the
the Dobbs
Dobbs team
team not
not only
only put
put itit on air, but
on air, but Dobbs
Dobbs tweeted
tweeted out
out
Powell’s “Cyber
Powell’s “Cyber Pearl
Pearl Harbor”
Harbor” claim
claim multiple
multiple times,
times, without
without qualification,
qualification, see
see
Ex.111, Dobbs
Ex.111, Dobbs 238:5-240:13,
238:5-240:13, and—even
and—even though
though Dobbs
Dobbs was
was “disappointed”
“disappointed” that
that
Powell failed to deliver her promised evidence at 5pm—Fox
Powell Spm—Fox rebroadcast the
segment unedited
segment unedited (as
(as itit did
did with
with each of his
each of his accused
accused broadcasts)
broadcasts) at
at 7pm,
7pm, id.
id. 273:21-
273:21-
275.7.
275:7.
134
134
3.
3. Justice with Judge
Justice with Judge Jeanine.
Jeanine.
Responsible Suzanne Scott;
Employees: Suzanne Scott; Jay
Jay Wallace;
Wallace; Meade
Meade Cooper;
Cooper; David
David
Clark; Jeanine
Clark; Jeanine Pirro;
Pirro; Jerry Andrews (executive
Jerry Andrews (executive producer);
producer); Jen
Jen Voit
Voit
(producer).
(producer). 17
a.
a. November 14
Broadcast
Pirro’s November
Pirro’s November 14
14 broadcast
broadcast featuring
featuring Sidney
Sidney Powell
Powell published
published the
the fraud,
fraud,
algorithm, and
Venezuela lies
lies about
about Dominion.
Dominion. See
See §179(e); Appendix D.
¶179(e); Appendix D.
The pre-taped
The pre-taped November
November 14
14 broadcast
broadcast never
never should
should have
have aired.
aired. Clark
Clark and
and
Cooper knew
Cooper knew that
that Pirro’s
Pirro’s coverage
coverageofofthe election was
the election was irresponsible
irresponsible well
well before
before that
that
date—they cancelled
date—they cancelled her
her November
November 77 show
show [I EG—_——
I Ex.293
+29 I
EE
I; Ex.106,
Ex.106,Clark 151:22-157:8; see
Clark 151:22-157:8; see Exs.453-455;
Exs 453-455; see
see also
also Ex.415
Ex 415 (Cooper
(Cooper
to Scot:
to Scott:
BEE.. Yet
Yet despite
despite having
having the
the same
same (and
(and indeed
indeed aa stronger)
stronger) understanding
understanding that
that
Pirro’s November
Pirro’s November 14
14 show
show would
would focus
focus on
on| EG_—
JM Dominion, Clark
Dominion, Clark and Pirro’s producers
and Pirro’s producers nevertheless
nevertheless aired
aired that
that broadcast.
broadcast. See
See
Ex.135, Pirro
Ex.135, Pirro 109:2-112:10.
109:2-112:10.
17 Ex.135,
17
Ex. 135, Pirro 105:21-107:21; 105:10-106:20 (Clark’s
105:21-107:21; Ex.106, Clark 105:10-106:20 job included
(Clark’s job
providing Pirro
providing Pirro with
with “close
“close editorial
editorial supervision
supervision and
and guidance,”
guidance,” along
along with
with
Andrews, Cooper,
Andrews, Cooper, and
and Scott);
Scott); see,
see, e.g.,
e.g. Ex.293;
Ex.293; Ex.456
Ex.456 (Cooper
(Cooper text
text messages
messages rere
oversight ofPirro’s
oversight show); supra
of Pirro’s show); supra §V.C.3.
§V.C.3
135
135
On November 13, Andrews forwarded Pirro Dominion’s
November 13, Dominion’s November 13
13 STRS
email providing
email providing information
information about
about Dominion’s
Dominion’s ownership
ownership and
and the
the public
public sources
sources
that had
that had debunked
debunked election
election fraud
fraud claims.
claims. Ex.457.
Ex.457. |G_—S
EE
1
Id. Andrews
Id. Andrews forwarded
forwarded toto Clark,
Clark,
Id.
Id.
Dominion
The next day, both Clark and Andrews reiterated to Pirro that Dominion
categorically denied
categorically denied the
the claims
claims against
against it,
it, and
and Andrews
Andrews warned
warmed that
that she
she “should
“should be
be
VERY careful
VERY careful ww this”
this” given
given the
the public
public information
information undermining
undermining Powell’s
Powell's
allegations. Ex.453. |
allegations. Ex.458.
I DEE EE
EE
EE
EE
EE
EE
EE
Despite all of this evidence debunking the claims,
claims, Pirro had Powell on air on
November 14
November 14 to
to spread
spread her
her false
false claims
claims about
about Dominion.
Dominion. Pirro
Pirro did
did not
not push
push back
back
136
136
or confront her with the sources provided by Dominion.
on Powell or Dominion. See Ex.24.
Ex.24. Clark
and Cooper
and Cooper did not step
did not step in
in to
to prevent
prevent her
her from
from spreading
spreading debunked
debunked lies.
lies. Pirro
Pirro did
did
not address
not address Dominion’s
Dominion’s specific
specific denials
denials of
of Powell’s
Powell’s claims.
claims. Instead,
Instead, aa screen
screen
showing Dominion’s
showing Dominion’s general
general denial
denial of
of wrongdoing
wrongdoing showed
showed for
for 15
15 seconds,
seconds, and Pirro
and Pirro
did not
did not subsequently
subsequently address
address it.
it. See
See id.
id. (pt.2)
(pt.2) at
at 1:24-1:40.
1:24-1:40,
b.
b. November 21
Broadcast
In her
In her opening
opening statement
statement for
for her
her November
November 21
21 broadcast,
broadcast, Pirro
Pirro made
made many
many
false claims
false claims about
about the
the election.
election. Regarding
Regarding Dominion,
Dominion, she
she noted
noted that the President’s
that the President's
lawyers were
lawyers were “alleging
“alleging aa company
company called Dominion, which
called Dominion, which they
they say
say started
started in
in
Venezuela with
Venezuela with Cuban
Cuban money
money and
and with
with the
the assistance
assistance of Smartmatic software,
of Smartmatic software, aa
backdoor capable
backdoor capable of
of flipping
flipping votes,”
votes.” and
and repeated
repeated the
the lies
lies about
about an
an “overnight
“overnight
popping of
popping of the
the vote
vote tabulation
tabulation that
that cannot
cannot be
be explained
explained for
for Biden.”
Biden.” §179(k);
¶179(k);
Appendix D.
Appendix D.
I
I
EE
EE
I
1
EE
137
137
I
Pirro’s opening
Pirro’s opening was
was pre-taped, and Andrews
pre-taped, and Andrews knew
knew that
that Pirro’s
Pirro’s statements
statements
about Dominion wer false:IEG

about Dominion were false:
rr]
138
138
4.
4. Fox &
Fox & Friends.
Friends.
Suzanne Scott;
Scott; Jay
Jay Wallace;
Wallace; Lauren
Lauren Petterson;
Petterson;
Gavin Hadden
Gavin Hadden (VP
(VP of Morning Programming);
of Morning Programming): and
and on 12/12, Will
on 12/12, Will Cain
Cain
(host); Pete
(host); Pete Hegseth
Hegseth (host);
(host); and
and Rachel
Rachel Campos-Duffy
Campos-Duffy (host).
(host).'®
18
a.
a. November 15
Broadcast
On November
On November 15,
15, Fox
Fox &
& Friends
Friends Sunday
Sunday played
played aa pre-recorded
pre-recorded teaser
teaser for
for the
the
Sunday Morning
Sunday Morning Futures
Futures broadcast
broadcast that
that would
would air
air later
later that
that day,
day, discussed,
discussed, supra.
supra.
In that
In that teaser,
teaser, Bartiromo
Bartiromo stated
stated that
that Smartmatic
Smartmatic owned
owned Dominion
Dominion and that Giuliani
and that Giuliani
and Powell
and Powell would
would join her to
join her to discuss their investigations,
discuss their investigations, which
which will
will be
be “very
“very
important to
important to understand
understand what
what was
was going
going on
on with
with this
this software.”
software.” §179(1): Appendix
¶179(f); Appendix
D. She
D. She also indicated that
also indicated that Powell
Powell would
would talk about “potential
talk about “potential kickbacks
kickbacks that
that
government officials were
were asked
asked to
to use
use Dominion
Dominion actually
actually enjoyed
enjoyed benefits
benefits to
to their
their
families.” ¶179(f);
families.” §179(f); Appendix
Appendix D.
D. As
As discussed
discussed above,
above, Bartiromo
Bartiromo and
and her team—and
her team—and
the Fox
the Fox executives overseeing programming
executives overseeing programming content—knew these statements
content—knew these statements were
were
false or
false or recklessly
disregarded the
the truth.
truth. Furthermore,
Furthermore, the
the Fox
Fox &
& Friends
Friends teaser
teaser
confirms that
confirms that there
there was
was no
no surprise
surprise about what Powell
about what Powell said
said on
on Bartiromo’s
Bartiromo’s show—
show—
and indeed,
and indeed, in
in that
that preview
preview Fox
Fox affirmatively
affirmatively chose to highlight
chose to highlight Powell’s
Powell's false
false
claims as
claims as an
an advertisement
advertisement for
for the
the audience.
audience.
18 Ex.103,
18
Ex.103, Cain
Cain 51:18-21;
51:18-21: see, e.g.. Ex.464.
see, e.g., Ex. “ot
139
b.
b. December 12
December 12 Broadcast
Broadcast
Fox && Friends
Fox Friends Weekend
Weekend has
has several
several hosts,
hosts, including
including on
on December
December 12,
12, 2020,
2020,
Will Cain,
Will Cain, Pete
Pete Hegseth,
Hegseth, and Rachel Campos-Duffy.
and Rachel Campos-Duffy. Ex.103,
Ex.103, Cain
Cain 113:17-20.
113:17-20. That
That
day, Giuliani
day, Giuliani appeared
appeared on
on air
air and
and stated
stated without
without any
any challenge
challenge or
or follow-up
follow-up from
from the
the
hosts: “We
hosts: “We have
have aa machine,
machine, the
the Dominion
Dominion machine
machine ….
..... [It]
[It] Was
Was developed
developed to
to steal
steal
elections, and
elections, and [is]
[is] being
being used
used inin the
the states
states that
that are involved.” §179(s);
are involved.” Appendix D.
¶179(s); Appendix D.
As of
As of December
December 12,
12, the
the public
public record
record clearly
clearly demonstrated
demonstrated that
that the
the claims
claims
about Dominion
about Dominion were
were false.
false. See §§1A &
See §§I.A & V.A.
V.A. Host
Host Hegseth
Hegseth had
had received
received atat least
least
20 STRS
20 STRS emails
emails directing
directing him
him to
to that
that public
public record
record prior
prior to
to the
the broadcast.
broadcast. Ex.123,
Ex.123,
Hegseth 71:8-72:2
Hegseth 71:8-72:2 (confirming
(confirming he
he received
Dominion’s emails and “engaged
emails and “engaged with
with
someofthe
some content”), 72:3-91:21,
of the content”), 72:3-91:21, 97:15-109:10;
97:15-109:10; Exs.465-483.
Exs 465-483. Prior
Prior to
to the
the election,
election,
Cain believed
Cain believed Trump’s
Trump's chances
chances of
ofwinning were “very
winning were slim.” Ex.484.
“very slim.” Ex.484. Cain
Cain knew
knew
of CISA Director
of CISA Director Chris
Chris Krebs’
Krebs’ conclusion
conclusion that
that no
no widespread
widespread fraud
fraud occurred
occurred inin the
the
2020 election
2020 well before
election well before the
the December
December 12
12 broadcast,
broadcast, and
and when
whenaa friend
friend emailed
emailed on
on
December 22 asking,
December asking, among
among other
other things,
things, “Do you think
“Do you think the
the election
election was
was rigged
rigged and
and
stolen?” Cain
stolen?” Cain responded
responded “No,
“No, II didn’t
didn’t say
say any
anyof that.” Ex.485;
of that.” Ex.485; Ex.103,
Ex.103, Cain
Cain 100:5-
100:5-
101:6.
101:6.
Campos-Duffy admitted
Campos-Duffy admitted under
under oath
oath that
that she’s
she’s never
never seen
seen any
any evidence
evidence to
to
support Giuliani’s
support Giuliani's claims.
claims. Ex.104,
Ex.104, Campos-Duffy
Campos-Duffy 168:11-15,
168:11-15, 169:5-10.
169:5-10. I.
EE
140
140
EE
EE
I
EEN WE But
But the
the hosts
hosts did
did not
not provide
provide any
any such
such “challenge”
“challenge” to
to
Giuliani. The
Giuliani. day after
The day after the
the December
December 12
12 Broadcast,
Broadcast, Fox
Fox banned
banned Giuliani
Giuliani (along
(along
with Powell
with Powell and
and Jenna
Jenna Ellis)
Ellis) from
from appearing
appearing on
on its
its shows
shows at
at all.
all. See Ex379 atat
See Ex.379
FNN047_04367516. They
FNN047_04367516. They certainly had the
certainly had the information
information and,
and, indeed,
indeed, the
the knowledge
knowledge
necessary to
necessary to understand
understand his
his claims
claims were
were false
false as
as of
of December
December 12.
12. They
They aired
aired them
them
without pushback
without pushback anyway.
anyway.
5.
5. Hannity's November
Hannity’s November 30
30 Broadcast.
Broadcast.
“[That whole
“[T]hat whole narrative
narrative that
that Sidney
Sidney was
was pushing.
pushing. II did not believe
did not believe itfor one
it for one
second.”
second.”
Ex.122, Hannity
Ex.122, Hannity 322:19-21
322:19-21
Suzanne Scott;
Scott; Jay
Jay Wallace;
Wallace; Meade
Meade Cooper;
Cooper; Ron
Ron
Mitchell; Porter Berry; Sean Hannity; Tiffany Fazio (executive producer);
Mitchell; Porter Berry; Sean Hannity; Tiffany Fazio (executive producer);
Robert Samuel
Robert Samuel (senior
(senior producer).
producer). 19
On November
On November 30,
30, Hannity
Hannity provided
provided Powell
Powell with
with aa platform
platform on
on his
his show
show to
to
repeat the
repeat the same
same fraud
fraud and
and algorithm
algorithm lies
lies about
about Dominion
Dominion that
that she
she had told over
had told over and
and
9 Ex.122,
19
Ex.122, Hannity18:16-25,
Hannity18:16-25, 19:1-15;
19:1-15; Ex.115,
Ex.115, Fazio
Fazio 20:2-21,
20:2-21, 22:18-21,
22:18-21, 22:25-23:2
22:25-23:2
(Fazio would check monologues, fact check for the show, and vet guests), 25:21-25,
(Fazio would check monologues, fact check for the show, and vet guests), 25:21-25,
188:1-8; Ex.129,
188:1-8; Ex.129, Mitchell
Mitchell 11:8-12:3.
11:8-12:3
141
141
over on
over on Fox
Fox inin the
the month
month of November. See
of November. See §179(n); Appendix D.
¶179(n); Appendix D. Hannity
Hannity knew
knew
what Powell
what Powell would
would say
say on air: she
on air: she been
been making
making these
these same
same claims for weeks,
claims for weeks,
including on
including his own
on his own nationally
nationally syndicated
syndicated radio
radio show
show earlier
earlier that
that same
same day on
day on
November 30,
November 30, and
and Hannity
Hannity intended
intended to
to bring
bring up
up her
her allegations
allegations about
about Dominion
Dominion on
on
his Fox
his Fox show
show that
that night.
night. Ex.122,
Ex.122, Hannity
Hannity 294:17-21,
294:17-21, 295:11-15;
295:11-15; see
see Ex.487
Ex487 (Fazio
(Fazio
notified Cooper
notified Cooper and
and Mitchell
Mitchell that
that Hannity
Hannity wanted
wanted Powell
Powell on
on toto discuss
discuss the fraud
the fraud
claims). Hannity
claims). Hannity had told his
had told his audience
audience on
on November
November 11
11 that
that the
the hand
hand recount
recount in
in
Georgia would
Georgia would be
be critical regarding the
critical regarding the questions
questions about
about Dominion.
Dominion. Ex.122,
Ex. 122, Hannity
Hannity
152:16-153:17. By
152:16-153:17. By November
November 30,
30, the
the hand
hand recount
recount had
had been
been completed
completed and
and proved
proved
Dominion’s machines worked
worked properly
properly and
and did
did not
not flip
flip votes
votes in
in Georgia.
Georgia. See
See
Ex.303-D. Yet
Ex.303-D. Yet Hannity
Hannity still
still invited
invited Powell
Powell on his show
on his show and
and chose to broadcast
chose to broadcast her
her
lies. He
lies. He said
said nothing
nothing about the results
about the results of
of the
the Georgia
Georgia hand
hand recount.
recount.
Hannity knew
Hannity knew Powell’s
Powell's claims
claims were
were false.
false. He
He testified
testified that,
that, with
with respect
respect to
to
“that whole
“that whole narrative
narrative that
that Sidney
Sidney [Powell]
[Powell] was
was pushing,
pushing, Idid not believe
I did not itfor
believe it for one
one
second” Ex.122, Hannity

second.” Ex.122, Hannity 322:19-21;
322:19-21; see id. 275:2-14
see id. 275:2-14 (with
(with respect
respect to
to Powell’s
Powell's
arguments about
arguments about Dominion,
Dominion, “nobody
“nobody ever
ever convinced
convinced me
me that
that their
their argument
argument was
was
anywhere near
anywhere near accurate
accurate or
or true”),
true”), 304:13–14
304:13-14 (“I
(“1 did
did not
not believe
believe those
those allegations”);
allegations”);
see also
see also id.
id. 266:5-268:9.
266:5-268:9. On the contrary,
On the contrary, when
when Powell
Powell appeared
appeared on
on his November
his November
30 show,
30 show, he
he believed
believed that
that itit was
was “obvious”
“obvious” her
her allegations
allegations were
were false.
false. Id.
Id. 4209-22;
420:9-22;
see id. 398:2-9

see id. 398:2-9 (stating
(stating that
that when
when Powell
Powell came
came on
on his
his radio
radio program
program prior
prior to
to the
the
142
142
November 30
November 30 television
television broadcast
broadcast and
and could
could not
not provide
provide her
herclaimed “eyewitnesses”
claimed “eyewitnesses”
that “was
that “was the
the nail
nail in
in the
the coffin
coffin for
for me”);
me”); id.
id. 320:21-321:2
320:21-321:2 (referring
(referring to
to Powell’s
Powell’s
claims about
claims about “Venezuela”
“Venezuela” as “crazy stuff”);
as “crazy stuff"); cf.
cf. id.
id. 321:15-21
321:15-21 (Hannity
(Hannity texted
texted that
that
Powell was
Powell was aa “F’ing
“Fing lunatic”).
lunatic”). In
In the
the weeks
weeks prior
prior to
to November
November 30,
30, Hannity’s
Hannity's team
team
monitored for
monitored for any
any evidence
evidence to
to support
support Powell’s
Powell’s claims
claims and
and saw
saw none.
none. Id. 295:16-
Id. 295:16-
2.
24.
Hannity'sstaffsimilarly
Hannity’s knew the
staff similarly knew the truth.
truth. Weeks
Weeks prior,
prior, Fazio
Fazio texted
texted Porter
Porter
Berry expressing
Berry expressing concerns
concerns about
about “claiming
“claiming all this election
all this election fraud”
fraud” given
given the
the lack
lack of
of
support. Ex.488
support. Ex.488 at
at FNN032_03869371.
FNN032_03869371. During
During the
the November
November 19
19 press
press conference,
conference,
Mitchell sent
Mitchell sentaa text
text to
to Fazio
Fazio and
and Samuel
Samuel mocking
mocking the
the Dominion
Dominion fraud
fraud allegations
allegations as
as
“Comic book
“Comic book stuff.”
stuff” Ex.387
Ex.387 atat FNN055_04454599.
FNN0S5_04454599. As
As Samuel
Samuel testified,
testified, he
he
“thought the
“thought the press
press conference
conference was
wasaa little
little bit
bit outrageous,”
outrageous,” and
and he
he “certainly
“certainly hadn’t
hadn’t
seen evidence
seen that the
evidence that the allegations were true.”
allegations were true.” Ex.141,
Ex.141, Samuel
Samuel 107:2-4,
107:2-4, 107:25-
107:25-
108:1. Samuel
108:1. Samuel still
still had
had not
not seen
seen any evidence to
any evidence to support
support Powell’s
Powell’s claims
claims when
when she
she
appeared on
appeared on Hannity’s
Hannity’s November
November 30
30 broadcast.
broadcast. Id.
/d. 115:21-22.
115:21-22. He
He had,
had, however,
however,
seen the
seen the unambiguous
unambiguous assertion from aa federal
assertion from federal agency,
agency, CISA,
CISA, refuting
refuting the
the claim
claim that
that
any voting
any voting systems
systems manipulated
manipulated the
the votes
votes in
in the
the 2020
2020 election—and
election—and no
no evidence
evidence
that CISA
that CISA was
was wrong.
wrong. Id.
Id. 139:3-15.
139:3-15.
I
EE .
143
143
EE
IE ©x.490. Fazio
Ex.490. Fazio had
had received
received numerous
numerous corrective
corrective emails
emails from
from
Dominion as
Dominion as of
of November
November 30,
30, including
including the
the one
one she
she forwarded
forwarded to
to Samuel
Samuel on
on
November 16
November 16 linking
linking to
to the
the joint statement on
joint statement on the
the security
security of the 2020
of the 2020 election
election
(Ex491), the
(Ex.491), the November
November 24
24 email
email presenting
presenting three
three notable
notable pieces
pieces published
published by
by three
three
conservative leaders
conservative leaders over
over the
the last
last 24
24 hours
hours debunking Dominion voting
debunking Dominion voting machine
machine
conspiracy theories
conspiracy theories (Ex.346),
(Ex.346), and
and the
the November
November 26
26 email
email debunking
debunking the
the claims
claims
about Dominion
about Dominion in
in Powell’s
Powell's lawsuit
lawsuit (Ex.492).
(Ex.492). See
See also
also Ex.345,
Ex.345, Exs.493-498
Exs.493-498
(additional public
(additional public evidence
evidence provided
provided to
to Fazio).
Fazio).
6.
6. Tucker Carlson
Tucker Carlson Tonight’s
Tonight's January
January 26
26 Broadcast.
Broadcast.
Suzanne Scott;
Scott; Jay
Jay Wallace;
Wallace; Meade
Meade Cooper; Ron
Cooper; Ron
Mitchell; Tucker
Mitchell; Carlson; Justin
Tucker Carlson; Justin Wells
Wells (executive
(executive producer);
producer); Alex
Alex Pfeiffer
Pfeiffer
(producer); Alexander
(producer); Alexander McCaskill
McCaskill (producer);
(producer); Eldad
Eldad Yaron
Yaron (booking
(booking
producer).
producer). 20
EE
EE
I yet
}c! Fox
Fox nonetheless
nonetheless invited
invited Lindell
Lindell to
to appear
appear on
on Tucker
Tucker
Carlson’s show
Carlson’s show that
that same night—to talk
same night—to talk about
about those
those same
same tweets.
tweets. See
See 71790);
¶179(t);
Appendix D.
Appendix D.
2 Ex.148,
20
Ex. 148, Wells
Wells 11:2-14,
11:2-14, 140:21-25
140:21-25 (Wells
(Wells approved
approved posting
posting the
the January 26 Lindell
January 26 Lindell
segment); Ex.134,
segment); Ex. 134,Pfeiffer
Pfeiffer7:25-11:9; Ex.149, Yaron
7:25-11:9; Ex.149, Yaron 8:7-24;
8:7-24; Ex.108,
Ex. 108, Cooper
Cooper 32:23-
32:23-
33:0.
33:1.
144
144
Carlson and
Carlson and his
his team
team knew
knew that
that Lindell’s
Lindell’s claims
claims were
were false.
false. On
On November
November 8,8,
Pfeiffer texted
Pfeiffer texted Carlson,
Carlson, “I
“1 dont
dont think
think there
there isis evidence
evidenceofvoter fraud that
of voter fraud that swung
swung the
the
election,” Ex.169
election,” Ex.169 atat FNN035_03890642,
FNN035_03890642, and
and atat his
his deposition
deposition Pfeiffer
Pfeiffer did not recall
did not recall
having ever
having ever seen
seen evidence
evidence from
from Lindell—or
Lindell—or anyone—that
anyone—that Dominion
Dominion committed
committed
election fraud.
election fraud. Ex.134,
Ex.134, Pfeiffer
Pfeiffer 40:5-9,
40:5-9, 121:8-12.
121:8-12. On
On November
November 9,
9, months
months before
before
having Lindell
having Lindell on
on his
his show,
show, Carlson
Carlson acknowledged
acknowledged that “false claims
that “false of fraud
claims of fraud can
can
be every
be bit as
every bit as destructive
destructive as
as the
the fraud
fraud itself….[T]he
itself... [T]he fraud
fraud that
that we
we can
can confirm
confirm does
does
not seem
not seem to
to be
be enough
enough to
to alter
alter the
the election
election results.
results. We
We should
should be
be honest
honest and tell you
and tell you
that...”
that…” Ex.432 atat FNN018_02303380-81.
Ex.432 FNNOIS_02303380-81. On November
On November 13,
13, Carlson
Carlson wrote
wrote
privately that
privately that Trump
Trump needed
needed to
to concede
concede and
and agreed
agreed that
that “there
“there wasn’t
wasn’t enough
enough fraud
fraud
to change
to change the
the outcome”
outcome”ofthe
of the election. Exs.500-501. On
election. Exs.500-501. On November
November 16,
16, Carlson
Carlson
(again, privately)
(again, privately) confirmed
confirmed his
his belief
belief that
that “Sidney Powell isis lying”
“Sidney Powell lying” about having
about having
evidence for
evidence for election
election fraud—and
fraud—and hers
hers were
were precisely
precisely the same claims
the same peddied by
claims peddled by
Lindell. Ex.150;
Lindell. Ex.150; see
see Ex.503
Ex.503 (Carlson
(Carlson text
text referring
referring to
to Powell
Powell as
as an “unguided
an “unguided
missile,” and
missile,” and “dangerous
“dangerous as hell”); Ex.240
as hell”); Ex.240 I _—_——
EE
I.
On November
On November 18,
18, Pfeiffer
Pfeiffer texted
texted Carlson
Carlson that
that powerful
powerful election fraud
election fraud
allegations like
allegations like Powell’s
Powell's “need
“need to
to be
be backed
backed up”
up” and
and could
could lead
lead to
to undermining
undermining an
an
elected president
elected presidentifBiden's confirmed, to
if Biden’s confirmed, to which
which Carlson responded, “Yep.
Carlson responded, “Yep. It’s
It's bad.”
bad.”
145
145
Ex.505 at FNN035_03890746; see also
Ex.505 (November 19
also Ex.386 (November 19 text from Justin Wells
to Carlson,
to Carlson, “Sidney Powell and
“Sidney Powell and Rudy
Rudy are
are fucking
fucking liars”
liars” and
and calling
calling their
their claims
claims
“desperate” and
“desperate” and “deranged”);
“deranged”); Ex.166
Ex.166 (11/21/20
(11/21/20 text
text from
from Carlson
Carlson to
toINS
ME that
tht itit was
was “shockingly
“shockingly reckless”
reckless” to
to claim
claim that
that Dominion
Dominion rigged
rigged the
the
election). As
election). As of
of January
January 26,
26, Carlson
Carlson had
had not
not seen
seen any
any of
of the
the evidence of machine
evidence of machine
fraud that
fraud that Mike
Mike Lindell,
Lindell, like
like Powell,
Powell, claimed
claimed to
to have
have on Dominion, nor
on Dominion, nor has
has he
he seen
seen
since. Ex.105, Carlson
it since. 208:15-20.
Carlson 208:15-20.
EE
EE
1
EE
EE
I
EE
EE
I EE
1
IE
EE
146
146
I EE
I
IE
EE
EE
I
Yet Lindell
Yet Lindell made
made his
his same
same debunked
debunked claims
claims about
about Dominion
Dominion on
on Carlson’s
Carlson’s
show that
show that evening, with no
evening, with no pushback—and
pushback—and his
his doing
doing so
so was
was no
no surprise.
surprise. Carlson
Carlson
knew Lindell
knew Lindell was
was making
making his
his Dominion
Dominion machine
machine fraud
fraud claims
claims “every
“every single
single day
day of
of
the year
the year on
on his
his website
website and
and any
any interview
interview that
that he
he does”
does” and
and that
that “it is universally
“it is universally
known by
known by people
people who
who know
know anything
anything about Mike Lindell”
about Mike Lindell” that
that he
he holds
holds these
these bogus
bogus
beliefs. Ex.105,
beliefs. Ex.105, Carlson
Carlson 197:19-198:4.
197:19-198:4. Before
Before Lindell
Lindell appeared
appeared on
on the
the January
January 26
26
broadcast,
broadcast,|
EE
EE
1
EE
1
I.
147
147
Even ifif Lindell
Even Lindell surprised
surprised everyone
everyone with
with his
his on-air
on-air claims about Dominion,
claims about Dominion,
Carlson could
Carlson could and
and should
should have
have pushed
pushed back
back on
on the
the lies
lies (but
(but did
did not);
not); and
and once
once the
the
interview happened,
interview happened, his
his team
team could
could have
have edited
edited the
the false
false claims
claims out in their
out in their
rebroadcasting of
rebroadcasting of the
the show
show and
and posted
posted video
video (they
(they did
did not).
not). Ex.148,
Ex.148, Wells 26:22-
Wells 26:22-
25,27:8-28:4,
25, 138:5-141:15.
27:8-28:4, 138:5-141:15.
E.
E. Additional Evidence
Additional Evidence Indicates
Indicates that
that Fox’s
Fox’s Executives
Executives Acted
Acted with
with
Actual Malice.
Actual Malice.
This isis the
This the unique
unique defamation
defamation case where contemporaneous
case where contemporaneous evidence shows
evidence shows
that Fox’s
that Fox's hosts,
hosts, showrunners,
showrunners, producers,
producers, and
and executives
executives knew
knew that
that the
the statements
statements
about Dominion
about Dominion were
were false
false before
before publication
publication (and
(and republication).
republication). But
But
circumstantial of actual
evidence of actual malice
malice isis also
also abundant.
abundant.
1.
1. Inherent Improbability/Reliance
Inherent Improbability/Reliance on
on Obviously
Obviously Unreliable
Unreliable
Sources.
Sources.
Q: Was
Q: Was that
that fact,
fact, that
that Dominion
Dominion did not commit
did not commit election
election fraud
fraud by
by rigging
rigging the
the
2020 presidential election, widely known? ....
2020 presidential election, widely known? …
A: ITmean,
A: yes, of
mean, yes, of course….no
course....no reasonableperson would have
reasonable person would have thought
thought that.
that.
Ex.146, Stirewalt
Ex.146, Stirewalt 153:24-154:19.
153:24-154:19.
‘The claims
The claims about
about Dominion—that
Dominion—that itit isis owned by Smartmatic
owned by Smartmatic and was founded
and was founded
in Venezuela
in Venezuela to
to rig
rig elections for Hugo
elections for Hugo Chavez that itit rigged
Chavez; that rigged the
the 2020
2020 Presidential
Presidential
election and
election and used
used secret
secret algorithms
algorithms toto flip
flip votes;
votes; and
and that
that itit paid
paid kickbacks
kickbacks to
to
government officials—are
government officials—are inherently
improbable inin light
light of
of the
the numerous
numerous
148
148
safeguards, required
safeguards, required certifications,
certifications, and
and official
official scrutiny
scrutiny applied
applied to
to every
every voting
voting
equipment and
equipment software company.
and software company. See, supra, §I.A.;
See, supra, SLA; e.g.,
e.g.. Ex.161
Ex.161 (the
(the allegations
allegations
are “the
are Bill Gates/microchip
“the Bill Gates/microchip angle
angle to
to voter
voter fraud”);
fraud”); Ex.139,
Ex. 139, Richer
Richer 22:6-23:11
22:6-23:11 (“the
(“the
whole theory
whole theory isis absolutely
absolutely ludicrous”).
ludicrous”). And
And Fox’s
Fox's sources
sources for
for these
these claims
claims were,
were, by
by
Fox’s own
Fox’s own admission,
admission, obviously
obviously unreliable.
unreliable. Below
Below isis just some of
just some of what
what Fox’s
Fox’s
witnesses had
witnesses had to
to say
say about
about their
their sources:
sources:
On Sidney
On Sidney Powell:
Powell:
•«Tucker Carlson:
Tucker Carlson:
o “lying.”
o Ex.150 (11/16/20)
“lying.” Ex.150 (11/16/20)
© “Crazy
o “Crazy person.” Ex.240 (11/16/20)
person.” Ex.240 (11/16/20)
© “lunatic”
o Ex.526 (11/17/20)
“lunatic.” Ex.526 (11/17/20)
© She’s
o She’s an
an “unguided
“unguided missile” and “dangerous
missile” and “dangerous as hell” Ex.503
as hell.” Ex.503
(11721720)
(11/21/20)
© She’s
o She’s aa “Nutcase”
“Nutcase” Ex.528
Ex.528 (11/21/20
(11/21/20 text,
text, in
in chain where producer
chain where producer
Pfeiffer comments
Pfeiffer comments on on Powell,
Powell, “Isn’t
“Isn't this
this the
the emperors new clothes
emperor’s new clothes
idiom
idiom in
in real life?”)
real life?”)
© “I've
o “I’ve got
gotaa high tolerancefor
high tolerance crazy.” but
for crazy,” but Powell
Powell isis “too
“too much.”
much.” Ex.529
Ex.529
(11/22/20)
(11/22/20)
© “I
o hope she’s
“I hope she’s punished.” Ex.530 atat FNN035_03891200
punished.” Ex.530 FNN035_03891200 (11/21/20
(11/21/20 text,
text,
in response
in response to
to story
story with headline “Trump
with headline “Trump Legal
Legal Team Shuns Sidney
Team Shuns Sidney
Powell as
Powell as Insiders
Insiders and
and National
National Security
Security Officials See No
Officials See No Evidence
Evidence
Supporting Her Voting
Supporting Her Voting Machine
Machine Claims”)
Claims”)
© She’s
o She’s “poison.”
“poison.” Ex.531
Ex.531 atat FNN022_0351889
FNN022_0351889 (11/23/20)
(11/23/20)
149
149
•«Lau ra Ingraham:
Laura Ingraham:
© “comp
o nut” Ex.241
lete nut”
“complete (11/18/20)
Ex 241 (11/18/20)
•«Fox Corporation SVP
Fox Corporation Raj Shah:
SVP Raj Shah:
o Powell's claims
© Powell’s claims were
were “outlandish.” Ex.163
“outlandish.” (11/23/20 email
Ex.163 (11/23/20 email to
to Scott,
Scott,
Rubert Murdoch, and Viet Dinh)
Rubert Murdoch, and Viet Dinh)
See also, supra,
See also, supra, Introduction & Factual
Introduction & Factual Background.
Background.
In additi
In Sidney Powell
on, Sidney
addition, Powell informed Fox employees,
informed Fox including Bartiromo,
employees, including Bartiromo,
that she
that she relied on clearly
relied on clearly dubious
dubious sources
sources that
that made
made her
her unreliable: her
before her
unreliable: before
November 8§ appea
November rance on
appearance Bartiromo’s show,
on Bartiromo’s the only
show, the “evidence she
only “evidence” provided was
she provided was
from aa person
from person who described herself
who described as “internally
herself as “intemally decapitated,”
decapitated,” capable
capable of “time-
of “time-
travel in aa semi-conscious
travel in semi-conscious state,”
state,” and
and who speaks to
who speaks “the Wind”
to “the Wind” as
as “a ghost.”
“a ghost.”
Ex.154; see,
Ex.154; see, supra, §V.D.1.a.
supra, §V.D.1.a.
On Rudy
On Rudy Giuliani:
Giuliani:
•«Rupert Murdoch:
Rupert Murdoch:
© Subject
o Line: “Watching
Subject Line: Giuliani!” Text:
“Watching Giuliani!” Text: “Reall
“Reallyy crazy
crazy stuff.
stuff. And
And
damag Ex.156 (11/19/20)
ing” Ex.156
damaging.” (11/19/20)
© “Giuli
o ani taken
“Giuliani with aa large
taken with large grainof
grain of salt.”
salt.” Ex.532 (11/16/20)
Ex.532 (11/16/20)
© “Fact
o Rudy advisi
that Rudy
“Fact that ng [Trum
advising p] really
[Trump] really bad!” Ex.341 (11/6/20)
bad!” Ex.341 (11/6/20)
•«Dav id Clark:
David Clark:
© “Craz
o “Crazy town –— glad
y town JJP [Judg
glad JIP [Judgee Jeani Pirro] didn’t
ne Pirro]
Jeanine didn’t have her [Sidn
have her ey
[Sidney
Powell or Rudy.
Powell]] or Ex.534 (11/21/20)
Rudy.”” Ex.534 (11/21/20)
150
150
•* Gary
Gary Schreier:
Schreier:
© “She
o [Jenna Ellis]
“She [Jenna Ellis] sound
soundss downr ight sane
downright next toto Rudy.”
sane next Rudy.” Ex.404
Ex.404
(11/2220)
(11/22/20)
•* Laura
Laura Ingraham:
Ingraham:
o “Rudy
© “Rud y such an idiot. Ex.527 (1/12/21)
idiot.”” Ex.527 (1/12/21)
•* Sean
Sean Hannity:
Hannity:
o “Rudy
© “Rud y is actin
actingg like an insane perso
insane Ex.535 (11/11/20)
n.” Ex.535
person.” (11/11/20)
© “Flin
o lunatics.” Ex.122,
“F’ingg lunatics.” Ex.122, Hannity
Hannity 321:3-14
321:3-14 (12/22/20)
(12/22/20)
•* John Fawcett
Fawcett (Lou
(Lou Dobbs
Dobbs Tonight
Tonight producer):
producer)
o “Giuliani
© “Giul iani is so fullof
full of shit.” Ex.437
Ex.437 (1/3/21)
(1/3/21)
•* Anne
Anne McCarton
McCarton (Lou
(Lou Dobbs
Dobbs Tonight
Tonight producer):
producer):
o “keeping
© “keep ing in mind his insanity
insanity lately Ex.255 at FNN06_04471806
...” Ex.255
lately…” FNN06_04471806
(11/18/20)
(11/18/20)
Lindell:
On Mike Lindell:
•* Gary
Gary Schreier:
Schreier:
© “He’s on the crazy train with no brakes.”

o brakes.” Ex.536
Ex.536 (2/2/21)
(2/2/21)
•* Tiffany
Tiffany Fazio:
Fazio:
© “And Lindell
o Lindell is nuts!”
nuts!” Ex.537
Ex.537 (1/26/21)
(1/26/21)
•* Alex
Alex Pfeiffer:
Pfeiffer:
o
© “mike lindel
lindelll is crazy and about to get sued by domin Ex.508
ion.” Ex.508
dominion.”
(1/26/21)
(1/26/21)
151
151
•«Jeff Collins (Fox
Jeff Collins (Fox News
News Media
Media Ad
Ad Sales EVP):
Sales EVP):
© According
o According to Lindell’s own
to Lindell’s he was
“family,” he
own “family,” was “going off the
“goingoff the
reservation.” Ex.538 (1/16/21)
reservation.” Ex.538 (1/16/21)
On Fox
On Hosts:
Fox Hosts:
Beyond Fox’s guests,
Beyond Fox’s guests, Fox executives and
Fox executives insiders also
other insiders
and other referred to
also referred Fox's
to Fox’s
hosts as
own hosts
own inherently unreliable
as inherently when discussing
unreliable when their reporting
discussing their reporting about the 2020
about the 2020
election:
election:
•«On
On Maria Bartiromo:
Maria Bartiromo:
o Fox executive
© Fox Gary Schreier,
executive Gary Schreier, on Bartiromo: “The
Maria Bartiromo:
on Maria problem is
“The problem is she
she
conspiracy theorists
has gop conspiracy
hasgop theorists in her earandthey
in her use herfor
ear and they use their message
her for their message
sometimes.” Ex.398 (11/8/20)
sometimes.” Ex.398 (11/8/20)
•«On
On Lou Dobbs: Fox
Lou Dobbs: Jay Wallace:
President Jay
Fox President Wallace: “the Koreans do
North Koreans
“the North more
do aa more
nuanced show”
‘nuanced show” than Dobbs. Ex.539
Lou Dobbs.
than Lou 2020); Ex.147,
(September 2020);
Ex.539 (September Wallace
Ex.147, Wallace
295:15-296:14.
295:15-296:14.
o President Jay
Fox President
© Fox when Bret
Wallace, when
Jay Wallace, Bret Baier suggested Fox
Baier suggested Parler: “we
buy Parler:
Fox buy “we
can barely
can contain Dobbs—imagin
barely contain Dobbs—imagine all the
e all we'd be
crazy we’d
the crazy responsible
be responsible
for” Ex.540 (1/8/21)
for.” Ex.540 (1/821)
© Fox
o Fox executive
executive Porter
Porter Berry:
Berry: “he’s
“he’s not
not crazy
crazy like
like Dobbs.”
Dobbs.” Ex.541
Ex.541 (4/19/21)
(4/19/21)
© Fox
o JeffField:
producer Jeff
Fox producer Field: Dobbs “turned
Dobbs “turned blind eye”
aa blind he was
because he
eye’ because “so
was “so
committed” to
committed” Donald Trump,
to Donald and the
Trump, and fact that
the fact he “was
that he MAGA [][]
ultra MAGA
“was ultra
would be
would guiding editorial.”
be guiding Ex.116, Field
editorial.” Ex.116, 138:9-139:18.
Field 138:9-139:18.
© Tucker
o Tucker Carlson:
Carlson: “Lou
“Lou was
was reckless.” Ex.542 (2/7/21)
reckless.” Ex.542 (2/7/21)
•«On Jeanine Pirro:
On Jeanine Pirro:
© Jerry
o Andrews:
Jerry Andrews:
152
152
▪= “Jeanine
“Jeanineisjust
is just as
as nuts.” Ex.534 (11/22/20)
▪- EE Ex.457 (11/13/20)
Ex.457 (11/1320)
+ I(11/20/20)
▪ ©.5)
Ex.152
(11720720)
oI
IE x.415(11/13/20)
Ex.415 (11/13/20)
o Justin
o Wells (executive
Justin Wells (executive producer
producer for
for Carlson):
Carlson): *(SJhe is crazy.”
“[S]he is Ex.294
crazy.” Ex.294
at FNN079_04550507
at FNN079_04550507 (11/7/20)
(11/7/20)
•« On
OnTuckerCarlson
Tucker Carlson:
© Brian
o Brian Farley
Farley on
on Carlson
Carlson and
and Hannity:
Hannity: “crazy
“crazy Tucker
Tuckerandcrazier
and crazier
Hannity.” Ex.543 (11/3/20)
Hannity.” Ex.543 (11/3/20)
•+ On SeanHannity:
On Sean Hannity:
o Fox
o Fox Corporation
Corporation Senior
Senior Vice
Vice President
President Raj
Raj Shah
Shah on
on Hannity:
Hannity: “Hannity
“Hannity isis
a
a little
little out there.” Ex.544 (11/5/20)
See also,
See also, supra,
supra, §§
§§ Introduction,
Introduction, Factual
Factual Background.
Background.
In sum,
In sum, Fox
Fox knew
knew that
that its
its guests,
guests, Trump and his
Trump and his representatives,
representatives, and
and even
even
Fox’s own
Fox’s hosts were
own hosts were unreliable
unreliable and
and could not be
could not be trusted
trusted toto report
report accurately
accurately about
about
the 2020
Election and
and Dominion.
Dominion.
2.
2. Financial Motive
Financial Motive to Lie.
to Lie.
‘The evidence—set
The evidence—set forth
forth in
in the
the Factual
Factual Background,
Background, pp.26-28,
pp.26-28, 35,
35, 37-38,
37-38, with
with
additional evidence
additional evidence here—highlights
here—highlights Fox’s
Fox’s concerns
concerns over
over its
its ratings
ratings and
and its
its
subsequent decision
subsequent to placate
decision to placate its
its audience
audience with
with aa defamation
defamation campaign
campaign aimed
aimed atat
153
153
Dominion rather
Dominion rather than
than presenting
presenting fact-checks
fact-checks and
and truth.
truth. As
As host
host Dana
Dana Perino
Perino told
told
11, 2020:
Republican Strategist Colin Reed on November 11,
“[Tlhere isis this

“[T]here this RAGING
RAGING issue issue about
about fox
fox losing
losing tons
tons of viewers and
of viewers and
many watching—get this—newsmazx!
many watching—get this—newsmax! Our Our viewers
viewers are
are so
so mad
mad about
about
the election calls (asifif our calls would have been any different. It’s just
different.It’s just
votes!)....So this
votes!)….So this day
day of
of reckoning
reckoning was
was going
going to
to come
come at
at some
some point
point –—
where the
where the embrace
embrace of of Trump became an
Trump became an albatross
albatross we
we can’t
can’t shake
shake right
right
awayifif ever.”
away ever.”
Ex511. Fox
Ex.511. Fox personnel,
personnel, including
including CEO Scott and
CEO Scott and President
President Wallace,
Wallace, knew
knew that
that Fox
Fox
needed toto appease
needed appease its
its Trump-supporting viewers toto keep
Trump-supporting viewers keep them
them tuning
tuning in.
in. Supra,
Supra,
pp-18-19, 26-28, 38.
pp.18-19, Further illustrating executive concern, FBN President
12 that Newsmax’s 7pm host had

Petterson told Gary Schreier on November 12
“delivered over
“delivered over 11 million
million total
total viewers,”
viewers.” toto which Schreier responded,
which Schreier responded, “I
“I see it.
see it.
Jesus? Ex512; see

Jesus.” Ex.512; also Ex.407
see also Ex407 (“newsmax
(“newsmax isis getting
getting aa huge
huge spike
spike inin ratings”
ratings”
related to election coverage); 145:20-147:24 (Fox’s
coverage); Ex.130, L. Murdoch 145:20-147:24 (Fox's drop in
ratings was
ratings was “absolutely”
“absolutely” aa concern).
concern).
The way to combat this? Broadcast an election fraud narrative featuring
17, Schreier and Petterson texted about the Sunday

Dominion. On November 17,
Morning Futures ratings, which Schreier described as “HUGE.” They were a
“tentpole” for the network “and then some.” Ex.513. Of course, the November 15
15
broadcast inin question

broadcast question featured
featured defamatory
defamatory claims
claims about
about Dominion.
Dominion. Supra,
Supra, pp.121-
pp.121-
123.
123.
154
154
Fox’s hosts
Fox’s hosts shared
shared these
these concerns
concerns over
over Fox’s
Fox's ratings
ratings and
and viewer
viewer retention.
retention. As
As
Fox’s corporate
Fox’s corporate representative
representative explained, Fox considers
explained, Fox considers aa show’s
show’s ratings—which
ratings—which
are tied
are tied toto advertising
advertising revenue
revenue for
for the
the show—when
show—when assessing
assessing whether
whether to
to continue
continue or
or
extend aa host’s
extend host's contract,
contract, and
and itit “informs
“informs how
how much
much we
we would
would be
be comfortable to pay
comfortable to pay
that person
that person going
going forward.”
forward.” Ex.113,
Ex.113, Dorrego
Dorrego 30(b)(6)
30(b)(6) 51:3-52:20;
51:3-52:20; see
see also
also id.
id.
55:22-59:6 (Fox’s
55:22-59:6 (Fox's ratings
ratings provide
provide itit leverage
leverage inin cable
cable negotiations).
negotiations). Hosts,
Hosts, like
like
Fox's executives,
Fox’s exceutives, knew
knew the
the ratings
ratings had
had taken
taken aa dive and the
dive and the need
need to
to keep
keep the
the
audience happy—which
audience happy—which meant
meant feeding
feeding them
them the
the narrative
narrative that
that Dominion
Dominion rigged
rigged the
the
election.
election.
Maria Bartiromo.
Maria Bartiromo. “Ratings
“Ratings are
are very
very important”
important” to
to Bartiromo,
Bartiromo, and “They
and “They
impact various
impact various aspects
aspects of
of [her]
[her] career at Fox.”
career at Fox.” Ex.98,
Ex98, Bartiromo
Bartiromo 320:4-9.
320:4-9. She
She
agreed that
agreed “It’s easier
that “It’s easier to
to get
get good ratings when
good ratings when you
you are
are giving
giving your
your audience
audience
something they
something they want
want to
to hear.”
hear.” Id.
Id. 323:6-9.
323:69. Bartiromo
Bartiromo and
and her
her producer
producer Abby
Abby
Grossberg knew
Grossberg knew that
that “Dominion rigged the
“Dominion rigged the election”
election” was
was exactly
exactly what
what the
the audience
audience
wanted to
wanted to hear:
hear: Grossberg texted Bartiromo
Grossberg texted Bartiromo that,
that, “To
“To be
be honest,
honest, our
our audience
audience
doesn’t want
doesn’t want to hear about
to hear about aa peaceful transition. They
peaceful transition. They still
still have
have hope...”
hope...” toto which
which
Bartiromo answered,
Bartiromo answered, “Yes,
“Yes, agree.” Ex.514.
agree.” Ex.514.
‘LouDobbs:|
Lou Dobbs:
ES Ex.164.
Ex.164. Dobbs
Dobbs testified
testified that
that having Powell and
having Powell and Giuliani
Giuliani on air
on air
was indeed
was indeed good
good for
for ratings
ratings (Ex.111,
(Ex.111, Dobbs
Dobbs 285:2-17);
285:2-17); that
that he
he and
and his
his producers
producers
155
155
were contemporaneously
were contemporaneously aware
aware of his ratings
of his ratings compared
compared to
to those of competitors
those of (id.
competitors (id.
283:10-21); and
283:10-21); and that his show
that his show was
was #1 (and often
#1 (and often his
his rebroadcast
rebroadcast atat 7pm
7pm was
was #2) for
#2) for
almost all
almost all of the broadcasts
of the broadcasts featuring
featuring the
the accused
accused defamatory statements, and
defamatory statements, and his
his
ratings were
ratings were up
up over
over 100%
100% in
in most
most cases
cases versus
versus average
average for
for the
the month,
month, quarter,
quarter, and
and
year (id.
year (id. 286:8-290:21;
286:8-290:21; see
see Exs.515-516).
Exs.515-516).
Sean Hannity:
Sean Hannity: Hannity
Hannity confirmed that every
confirmed that day he
every day he and
and his
his team
team “do
“do aa very
very
deep analysis”
deep of ratings
analysis” of ratings “to
“to see
sec audience
audience reaction
reaction to
to certain
certain stories
stories or
or guests.”
guests.”
Ex.122, Hannity
Ex.122, Hannity 48:11-20;
48:11-20; id.
id. 47:18:21;
47:18-21; see
see also Ex.115, Fazio
also Ex.115, Fazio 283:20-25
283:20-25 (“[T]he
([T}he
ratings are
ratings are important.
important. We
We look
look atat the
the ratings
ratings every
every day”).
day”). Hannity
Hannity told
told Steve Doocy
Steve Doocy
Fox had
Fox had created
created “major backlash” with
“major backlash” with the
the audience
audience after
after the
the 2020
2020 election,
election, stating
stating
“You don’t
“You don’t piss
pssoffthe base.” Ex.517
off the base.” Ex.517 atat FNN023_03852766-67.
FNN023_03852766-67. He
He likewise
likewise texted
texted
Carlson and
Carlson and Ingraham,
Ingraham, “The
“The network
network isis being
being rejected.”
rejected.” Carlson
Carlson responded,
responded, “I’ve
“I've
heard from
heard from angry
angry viewers
viewers every hour of
every hour of the
the day
day all
all weekend,
weekend, including
including atat dinner
dinner
tonight,” to
tonight,” to which
which Hannity
Hannity replied
replied “Same
“Same same
same same.
same. Never
Never before
before has
has this
this ever
ever
happened.” Ex.555.
happened.” Ex.555.
In aa November
In November 24
24 text
text thread
thread with
with Berry,
Berry, Fazio,
Fazio, and
and Samuel,
Samuel, Hannity
Hannity
reiterated that
reiterated that “Respecting
“Respecting this
this audience whether we
audience whether we agree or not
agree or not isis critical. Fox
critical. Fox
has spent
has spent the
the month
month spitting
spitting atat them,”
them,” to
to which Samuel responded
which Samuel responded “[R]ight,
“[RJight, ourbest
our best
‘minutes
minutes from
from last week were
last week were on
on the voting irregularities.”
the voting irregularities.” Ex.518;
Ex.518; see
see Ex.226
Ex.226 atat
156
156
FNN022_03852183|
FNN022_03852183
-_—.
Tucker Carlson:
Tucker Carlson: On November 10,
On November 10, Carlson’s
Carlson’s producer
producer Alex
Alex Pfeiffer
Pfeiffer told
told
Carlson “Many
Carlson “Many viewers
viewers were
were upset
upset tonight
tonight that
that we
we didn’t
didn’t cover
cover election
election fraud….
fraud...
[1]ts all
[I]ts all our
our viewers
viewers care
care about
about right
right now,”
now,” to
to which
which Carlson
Carlson agreed the decision
agreed the decision had
had
been aa “Mistake,”
been “Mistake,” further
further stating
stating “I
“1 just hate this
just hate this shit.”
shit.” Ex.519;
Ex.519; see
see also
also Ex.520
Ex.520 atat
FNN079_04550759 (Wells
FNN079_04550759 (Wells text
text to
to Pfeiffer,
Pfeiffer, “We’re
“We're threading
threading aa needle
needle that
that has
has to
to be
be
thread because
thread becauseofthe
of the dumb fucks at
dumb fucks at Fox
Fox on
on Election
Election Day.
Day. We
We can’t
can’t make
make people
people
think we’ve
think we've turned
turned against
against Trump.
Trump. Yet
Yet also
also call
call out the bullshit.
out the bullshit. You
You and
and II see
see
through it.
through it. But
But we
we have
have to
to reassure
reassure some
some in
in the
the audience.”).
audience.”).
But while
But while Carlson
Carlson did
did challenge Powell on
challenge Powell on air
air on
on November
November 20,
20, Carlson
Carlson
nevertheless invited
nevertheless invited Mike
Mike Lindell
Lindell on
on air
air to
to make
make the
the very
very same
same claims. Lindell’s
claims. Lindell’s
company MyPillow
company MyPillow isis Fox’s
Fox's top
top advertising
advertising spender
spender[GG
I . Exs.521-522;
|xs.521-522; Ex.107,
Ex. 107, Collins
Collins
181:23-182:17, 175:18-176:18;
181:23-182:17, 175:18-176:18; Ex.105,
Ex.105, Carlson
Carlson 233:20-235:5
233:20-235:5 (Carlson
(Carlson knew
knew
Lindell isis aa major
Lindell major Fox
Fox News
News sponsor).
sponsor). Indeed, when
Indeed, when Lindell
Lindell made
made negative
negative
comments about
comments about Fox
Fox on
on Newsmax,
Newsmax, Fox’s
Fox's executives
executives exchanged
exchanged worried
worried emails
emails
about alienating
about alienating him
him and
and sent
sent him
himaa gift
gift along
along with
with aa handwritten
handwritten note
note from
from Suzanne
Suzanne
Scott. Exs.523-525.
Scott. Exs.523-525. Fox
Fox had
hadaa strong
strong motive
motive to
to welcome
welcome him
him on
on air
air and
and avoid
avoid
rebutting his
rebutting his baseless
baseless claims.
claims.
157
157
3.
3. Departure from
Departure Journalistic Standards.
from Journalistic Standards.
Q: [Y]ou
Q: [You broadcast
broadcast on your show
on your show on November 30
on November 30%th the
the claim
claim that,
that, [“]We
[*]We
need, frankly,
need, frankly, toto stop
stop the
the election
election that’s
that’s supposed
supposed toto happen
happen inin January
January
because all
because all the machines are
the machines are infected
infected with
with the software code
the software code that
that allows
allows.
Dominion to
Dominion to shave
shave votes
votes for
for one
one candidate
candidate and
and give
give them
them to
to another
another and
and
other features that
other features that do
do the
the same thing.[”]...[H]ad you
same thing.[”]…[H]ad you seen
seen any evidence
any evidence
from
from Ms.
Ms. Powell
Powell oror anyone
anyone else
else to
to support
support that
that claim?
claim?
A:No.
A: No.
Q: Didyou
Q: Did you tell
tell your
your audience that?
audience that?
A: No.
A: No.
Ex.111, Dobbs
Ex.111, Dobbs 87:14-88:3
87:14-88:3
Witness after
Witness after witness
witness inin this
this case
case has testified that
has testified that they
they saw
saw no
no evidence to
evidence to
support the
support the false
false claims
claims against
against Dominion.
Dominion. See,
See, supra, n.14. Fox’s
supra, n.14. Fox’s witnesses
witnesses
acknowledge the
acknowledge the need
need toto verify
verify the
the claims
claims about
about Dominion
Dominion putting
putting them
them on
on the
the air.
air.
See, e.g.,
See, e.g. Ex.108,
Ex.108, Cooper
Cooper 162:19-25;
162:19-25; Ex.105,
Ex.105, Carlson
Carlson 21:23-24
21:23-24 (“[E]very
(“[E]very claim
claim
requires evidence.”);
requires evidence.”); Ex.140,
Ex.140, Sammon
Sammon 56:19-57:3.
56:19-57:3. Baier testified
Baier testified that
that it’s
it’saa
journalist's
journalist’s job to prevent
job to prevent bad
bad information
information from
from getting
getting through
through to
to the
the audience,
audience, and
and
that even
that opinion shows
even opinion shows have
have an obligation to
an obligation to fact
fact check. Ex.97, Baier
check. Ex.97, Baier 22:6-20,
22:6-20,
26:10-14; see
26:10-14; also Ex.146,
see also Ex.146, Stirewalt 29:19-30:16 (“Everyone”
Stirewalt 29:19-30:16 (“Everyone” should
should have
have relied
relied on
on
the Brainroom
the Brainroom “to make sure
“to make sure that
that we
we were,
were, you know, not
you know, not inin error.”); Ex.122,
error.”); Ex.122,
Hannity 21:2-6,
Hannity 21:2-6, 32:20-22,
32:20-22, 62:3-11
62:3-11 (Hannity’s
(Hannity’s viewers
viewers expect
expect the
the truth,
truth, and Hannity
and Hannity
tells viewers
tells viewers “I
“I vet
vet the
the program,
program, we vet the
we vet the facts”).
facts”). Fox
Fox News
News bills
billsitself
itself as “one of
as “one of
the most
the most influential
influential news
news properties
properties inin history.” Ex.128, Lowell
history.” Ex.128, Lowell 30(b)(6)
30(b)(6) 624:20-
624:20-
158
158
625:14. Nevertheless,
625:14. Nevertheless, itit broadcast
broadcast entirely
entirely unsupported
unsupported and
and false
false claims
claims about
about
Dominion to
Dominion to millions
millions of viewers.
of viewers.
Remarkably, Fox
Remarkably, Fox has
has no
no written
written editorial
editorial guidelines.
guidelines. Ex.143,
Ex.143, Scott
Scott 207:20-
207:20-
25. However,
25. However, when
when asked
asked atat her
her deposition “What standard
deposition “What standard of
ofjournalism do you
journalism do you
try toto live
try live up
up toto as
as Fox
Fox News’
News’ CEO,”
CEO,” Scott
Scott testified,
testified, “I
“1 would
would rather
rather be
be right
right than
than
first on
first on aa story…Better
story...Better to
to have
have the
the facts
facts first.”
first” Id. 208:8-16; compare
Id. 208:8–16; compare Ex.373
Ex373
(Schreier statement
(Schreier statement that
that Bartiromo
Bartiromo was
was endorsing unsubstantiated claims
endorsing unsubstantiated because
claims because
she wanted
she wanted to
to be
be first
first to
to report,
report, inin the
the event
event the
the claims
claims “somehow”
“somehow” turned
turned out
out to
to be
be
true). The
true). The record
record establishes
establishes that Fox did
that Fox did “have the facts”
“have the facts” before
before broadcasting
broadcasting
defamatory claims
defamatory claims about
about Dominion,
Dominion, but
but itit disregarded them in
disregarded them in favor
favor of
of what
what its
its
audience wanted
audience wanted to
to hear.
hear
4.
4. Preconceived Narrative.
Preconceived Narrative.
Long before
Long before the
the election, Fox knew
election, Fox knew the
the dialogue
dialogue would
would turn
turn to
to fraud
fraud ifif Trump
Trump
lost—because Fox
lost—because Fox knew
knew Trump would claim
Trump would claim fraud
fraudifhe lost, and
if he lost, and that this isis what
that this what
Fox's viewers
Fox’s viewers would
would want
want to
to hear.
hear. See,
See, e.g.,
e.g., Ex.146,
Ex.146, Stirewalt 28:23-29:4 (“Q:
Stirewalt 28:23-29:4 (“Q: In
In
other words,
other words, from
from your
your perspective
perspective as
as politics
politics editor at Fox
editor at Fox News,
News, you were aware
you were aware
of President
of President Trump’s
Trump’s history
history of making baseless
of making baseless claims
claimsofelection fraud prior
of election fraud prior to
to the
the
November 2020
November 2020 election?
election? A:
A:Ofcourse.”); id. atat 122:20-123:18.
Of course.”); id. 122:20-123:18. This
This was
was so
so well
well
known that
known that months
months before
before the
the election
election Fox’s
Fox’s SVP
SVP for
for Corporate Communications,
Corporate Communications,
159
159
Irena Briganti,
Irena Briganti, had
had aa statement
statement prepared
prepared for
for when
when Fox
Fox hosts
hosts inevitably
inevitably contested
contested
election results.
election results. Ex.546.
Ex.546.
Fox was
Fox was embracing
embracing an
an election
election fraud
fraud narrative
narrative well
well before
before any
any ballot
ballot was
was cast.
cast.
On September
On September 27,
27, aa Fox
Fox employee
employee texted
texted Jeanine
Jeanine Pirro
Pirro saying
saying that,
that, inin response
response to
to
the question
the question “will
“will you
you accept
accept the
the election
election results?”
results?” Trump’s
Trump’s response
response should
should be
be “Of
“Of
course II will
course will accept
accept the
the results
results but
butII reserve
reserve my
my right
right to
to challenge the massive
challenge the massive fraud
fraud
that IT am
that am justifiably anticipating”; toto which
justifiably anticipating”; which Pirro
Pirro responded
responded that
that Trump
Trump was
was
“working with
“working with Rudy
Rudy [Giuliani]
[Giuliani] on
on this.”
this.” Ex.547.
Ex.547. At her
At her deposition, Maria
deposition, Maria
Bartiromo testified
Bartiromo testified that
that inin the
the lead-up
lead-up to
to the
the 2020
2020 election,
election, she
she was
was already
already “on
“on alert”
alert”
that Democrats
that Democrats would
would be
be attempting
attempting toto interfere
interfere inin that
that election as well.
election as well. Ex.98,
Ex.98,
Bartiromo
Bartiromo 41:10-16. On
41:10-16. On October
October 31,
31,2020, she texted
2020, she texted Schreier
Schreier her
her worry
worry about
about the
the
election outcome,
election outcome, “And
“And cheating.
cheating. There
There will
will be
be aalotof
lot of cheating.” Ex.550. Schreier
cheating.” Ex.550. Schreier
subscribed to
subscribed to the
the same
same narrative:
narrative: the
the night
night of
of the
the election,
election, he
he responded
responded to
to Biden’s
Biden's
surge in
surge in the
the polls
polls by
by saying
saying Democrats
Democrats were
were “gonna
“gonna try
try and steal” the
and steal” the election.
election.
Ex551:see Ex.552.
Ex.551; see Ex.552.
EE
I.
I
EE
,”
160
160
I . They
[cy also
also knew
knew viewers
viewers would
would
be upset
be upset and
and would
would not
not want
want to
to hear
hear about
about aa Biden
Biden victory.
victory. Fox
Fox was
was looking
looking for
for
an election
an fraud narrative
election fraud narrative to
to keep
keep people
people watching,
watching, regardless
regardless of
of whether
whether the
the
narrative was
narrative was true.
true.
5.
5. Rebroadcast and
Rebroadcast Refusal to
and Refusal to Retract.
Retract.
To this
To this day,
day, Fox
Fox has
has not
not retracted
retracted any
any of the defamatory
of the statements atat issue.
defamatory statements issue.
Ex.102, Briganti
Ex.102, Briganti 304:17-305:7;
304:17-305:7; Ex.128,
Ex.128, Lowell
Lowell 30(b)(6)
30(b)(6) 619:22-620:3.
619:22-620:3. Fox
Fox
acknowledges itit could

acknowledges could do
do so.
so. Ex.147,
Ex.147, Wallace
Wallace 49:15-54:6. Dominion has
49:15-54:6. Dominion has asked that
asked that
it do
it do so.
so. See,
See, e.g.,
e.g., Ex.237;
Ex.237; see
see also,
also, supra, §V.A. Its
supra, §V.A. Its repeated
repeated rebroadcasting
rebroadcasting of
of
debunked lies
debunked lies about
about Dominion
Dominion and
and its
its refusal
refusal to
to thisday to retract
this day to retract those
those lies
lies isis further
further
evidence of
evidence of its
its actual
actual malice.
malice.
VL
VI. Affirmative Defenses:
Affirmative Defenses: Dominion
Dominion Is
Is Entitled
Entitled to
to Summary
Summary Judgment
Judgment onon
Fox’s “Neutral
Fox’s “Neutral Reportage”
Reportage” or
or “Newsworthiness”
“Newsworthiness” Defense
Defense and
and its
its Fair
Fair
Report Defense.
Report Defense.
Dominion isis also

Dominion also entitled
entitled to
to summary
summary judgment on Fox’s
judgment on Fox's affirmative
affirmative
defenses. In
defenses. In its
its corporate
corporate testimony,
testimony, when
when asked
asked to
to provide
provide the
the factual
factual basis
basis for
for its
its
affirmative defenses,
affirmative defenses, Fox
Fox discussed truth/falsity almost
discussed truth/falsity almost exclusively—and
exclusively—and then
then only
only
in limited
in limited fashion
fashion as
as discussed
discussed above.
above. ItIt did
did not
not specifically
specifically mention
mention fair
fair report
report or
or
neutral report
neutral report with
with respect
respect to
to any
any of the statements,
of the statements, and
and only
only rarely
rarely even
even indirectly
indirectly
referred to
referred to them
them when
when discussing
discussing aa few
few of
of the
the accused
accused statements.
statements. Ex.127,
Ex.127, Lowell
Lowell
161
161
30(b)(6) 58:12-192:12.
30(b)(6) 58:12-192:12. On this
On this basis
basis alone,
alone, this
this Court can grant
Court can grant summary
summary
judgement.
judgement.
Moreover, no
Moreover, no reasonable
reasonablejuror could find
juror could find in
in favor
favor of
of Fox’s
Fox’s “neutral
“neutral reportage”
reportage”
and “fair
and report” defenses.
“fair report” See Fox’s
defenses. See Fox’s Eighth,
Eighth, Ninth,
Ninth, Sixteenth,
Sixteenth, Seventeenth,
Seventeenth, and
and
Nineteenth Affirmative
Nineteenth Affirmative Defenses.
Defenses. These
These are
are affirmative
affirmative defenses.
defenses. See FNN MTD
See FNN MTD
Order, pp.38-40
Order, pp.38-40 (noting
(noting Fox’s
Fox's motion
motion to
to dismiss
dismiss sought
sought to introduce affirmative
to introduce affirmative
defenses, including
defenses, including the
the neutral
neutral reportage
reportage and
and the
the fair
fair report
report privileges);
privileges): see also US
see also US
Dominion, Inc.
Dominion, Inc. v.v. Newsmax
Newsmax Media, Inc., 2022
Media, Inc., 2022 WL
WL 2208580,
2208580, atat *25
*25 (Del.
(Del. Super.
Super. Ct.
Ct.
June 16,2022)
June 16, (neutral reportage
2022) (neutral reportage “appears
“appears to
to be an affirmative
be an affirmative defense”);
defense”); Greenberg
Greenberg
v. Spitzer,
v. Spitzer, 155
155 A.D.3d
AD3d 27,
27, 42:43 (2d Dep’t
42-43 (2d Dep't 2017)
2017) (fair
(fair report
report privilege
privilege “is
“is an
an
affirmative defense”
affirmative defense” and
and itit isis therefore
therefore “{ijncumbent on the
“[i]ncumbent on the party asserting the
party asserting the
privilege to
privilege to establish that the
establish that the statements
statements atat issue
issue reported
reported on
on aa judicial
judicial proceeding”).
proceeding”).
As such,
As such, the
the burden is on
burden is Fox toto establish
on Fox establish the
the applicability
applicability of
of these
these defenses.
defenses.
After extensive
After briefing atat the
extensive briefing the motion
motion to
to dismiss
dismiss stage,
stage, the
the Court
Court
“questionfed] whether
“question[ed] whether Fox
Fox can
can raise
raise neutral
neutral reportage
reportage doctrine or analogous
doctrine or analogous
newsworthiness privilege.”
newsworthiness privilege.” FNN
FNN MTD
MTD Order, pp.41-42. ItIt cannot.
Order, pp.41-42. Itsis foreclosed
cannot. It foreclosed
as aa matter
as matter of
of New
New York
York law.
law. Id.
Id. And
And itit isis not
not grounded
grounded inin the First Amendment
the First Amendment
either. To
either. the contrary,
To the contrary, as
as the
the Court
Court concluded, the privilege
concluded, the privilege “seems to run
“seems to run contrary
contrary
to United
to United States
States Supreme
Supreme Court
Court precedent”
precedent” by
by upending
upending the
the “balance
“balance between
between First
First
Amendment freedoms
Amendment freedoms and
and viable claims for
viable claims for defamation”
defamation” that
that the Supreme Court
the Supreme Court has
has
162
162
struck.
struck. Id.
Id. Finally, even
Finally, if the
even if the privilege
privilege could
could apply,
apply, Fox
Fox cannot meet its
cannot meet its
requirements. The
requirements. Court should
The Court should grant summaryjudgment
grant summary judgment on Fox’s neutral
on Fox’s neutral reportage
reportage
or “newsworthiness”
or “newsworthiness” defense.
defense.
A.
A. The Neutral
Reportage Privilege
Privilege Does
Does Not
Not Apply
Apply As
As A Matter of
A Matter of
Law
Law
1.
1. The Neutral
Reportage Privilege
Privilege Is
Is Foreclosed
Foreclosed by
by New
New York
York
Law.
Law.
New York
New York courts, as this
courts, as this Court already recognized,
Court already recognized, consistently
consistently reject
reject the
the
neutral reportage
neutral reportage privilege.
privilege. AA panel
panel of
of the
the Second
Second Circuit
Circuit created the doctrine
created the doctrine inin
dicta inin Edwards
dicta Edwards v.v. National
National Audubon Society. Edwards
Audubon Society. Edwards involved
involved aa New
New York
York
Times
Times article that republished
article that republished defamatory
defamatory accusations by the
accusations by the National
National Audubon
Audubon
Society that
Society that certain scientists were
certain scientists were “paid
“paid liars.”
liars.” 556
556 F.2d
F.2d atat 117.
117. The
The Second
Second Circuit
Circuit
ultimately held
ultimately held that
that “the
“the evidence
evidence adduced
adduced atat trial
trial was
was manifestly
manifestly insufficient
insufficient to
to
demonstrate ‘actual
demonstrate “actual malice’
malice’ on the part
on the partofthe Times.” Id.
of the Times.” Id. atat 120.
120. Yet
Yet the
the Court
Court
also, in
also, in dicta,
dicta, suggested
suggested aa new
new privilege
privilege giving
giving media
media companies sweeping
companies sweeping
protection
protection to
to republish—though
republish—though not
not themselves
themselves endorse—"newsworthy”
endorse—“newsworthy”
allegations, even
allegations, even ifif they
they know
know the
the allegations
allegations are false. The
are false. The panel
panel termed
termed its
its new
new
doctrine “the
doctrine “the press’s
press’s right
right of
of neutral
neutral reportage,”
reportage,” and explained that
and explained that the
the doctrine
doctrine
applies even
applies even ifif the
the publisher
publisher knows
knows the
the charges to be
charges to be false—though
false—though not if the
not if the
publisher “espouses
publisher “espouses or concurs in”
or concurs in” or “deliberately distorts”
or “deliberately distorts” the
the charges
charges or otherwise
or otherwise
fails toto provide

fails provide “accurate
“accurate and
and disinterested
reporting.” Id.
Id.
163
163
New York
New York law
law flatly
flatly rejects
rejects the Edwards doctrine.
the Edwards In Hogan
doctrine. In Hogan v.v. Herald
Herald Co.,
Co.,
84 A.D.2d
84 AD.2d 470,
470,477 (N.Y. 4th
477 (N.Y. 4th Dep’t
Dep’t 1982),
1982), afd,
aff’d, 444 N.E2d 1002
444 N.E.2d 1002 (N.Y.),
(N.Y.), aa New
New
York intermediate
York intermediate appellate court stated
appellate court stated clearly:
clearly: “We
“We now
now hold
hold the
the rule
rule of
of Edwards
Edwards
v.National
v. National Audubon Society does
Audubon Society not apply
does not in this
apply in this department.”
department.” 84
84 A.D.2d
A.D.2d atat 479.
479.
The New York
The New York Court
Court of
of Appeals—New York's highest
Appeals—New York’s highest court—affirmed
court—affirmed the
the
Appellate Division’s
Appellate Division's order
order “for
“for reasons
reasons stated
stated in”
in” the
the appellate
appellate court's order, making
court’s order, making
that holding
that holding and
and reasoning
reasoning the
the law
law of
of New
New York.
York. See
See Hogan,
Hogan, 444 N.E.2d atat 1002.
444 N.E.2d 1002.
Lest there
Lest there be
be any doubt, just
any doubt, just aa few
few years
years later,
later, the
the Court of Appeals
Court of Appeals confirmed
confirmed
Hogan's holding
Hogan’s holding rejecting
rejecting the
the neutral
neutral reportage
reportage privilege.
privilege. Weiner
Weiner v.v. Doubleday
Doubleday &
&
Co., Inc.,
Co., 549 N.E.2d
Inc., 549 N.E.2d 453,
453, 456 (N.Y. 1989).
456 (N.Y. 1989).
The Appellate
The Appellate Division
Division in
in Hogan—affirmed
Hogan—affirmed by
by the
the Court
Court of
of Appeals—
Appeals—
explained why
explained why itit declined to adopt
declined to the Edwards
adopt the Edwards neutral
neutral reportage
reportage rule:
rule: “The
“The
Supreme Court
Supreme Court has
has not
not adopted
adopted Edwards
Edwards [][] and
and in
in our
our view
view itit isis not
not possible
possible to
to
reconcile itit with

reconcile with that
that court’s
courts prior
prior decision
decision in
in Gertz,”
Gertz,” which based immunity
which based immunity “upon
“upon
the status
the status of
of the
the plaintiff, not the
plaintiff, not the subject
subject matter
matterof the publication,”
of the publication,” and
and required
required that
that
“the publisher
“the publisher [be]
[be] free
free of culpable conduct”
of culpable under the
conduct” under the relevant
relevant fault
fault standard.
standard. 84
84
AD.2d atat 478-79.
A.D.2d In other
478-79. In other words,
words, the
the Edwards
Edwards rule
rule upset
upset the
the Supreme
Supreme Court’s
Court's
careful balancing
careful balancing of First Amendment
of First Amendment and
and protection-of-reputation
protection-of-reputation concerns.
concerns.
Moreover, New
Moreover, New York
York Civil
Civil Rights
Rights Law
Law Section
Section 75 provides very
75 provides very limited
limited
protections for
protections for comments
comments by
by guests
guests on television or
on television or radio.
radio. But
But itit only
only applies
applies inin the
the
164
164
narrow situation
narrow situation of
of aa “legally
“legally qualified
qualified candidate
candidate for
for public
public office
office whose
whose utterances”
utterances”
may not
may not be
be censored
censored under
under applicable
applicable federal
federal regulation,
regulation, and
and even
even then
then requires
requires aa
disclaimer. Id.
disclaimer. Id. Fox
Fox does
does not
not and
and cannot
cannot assert
assert that
that any
any of
of these
these publications
publications qualify.
qualify.
But Section
But Section 75
75 isis powerful
powerful evidence
evidence that
that New
New York
York knows
knows how
how to
to provide
provide
exemptions for
exemptions for reporting
reporting on
on “newsworthy”
“newsworthy” events.
events. They
They just are unavailable
just are unavailable here.
here.
The skepticism
The skepticism that
that the
the Court previously expressed
Court previously expressed over
over the
the doctrine,
doctrine, as
as aa
matter of
matter of New
New York
York law,
law, was
was therefore
therefore entirely
entirely warranted.
warranted. FNN
FNN MTD
MTD Order,
Order, pp.41-
pp.41-
42 (“Given this
42 (“Given this New
New York
York precedent,
precedent, the
the Court
Court questions
questions whether
whether Fox
Fox can
can raise
raise
neutral reportage
neutral reportage doctrine
doctrine or analogous newsworthiness
or analogous newsworthiness privilege
privilege as
as an
an absolute
absolute
defense toto liability
defense liability for
for defamation
defamation under
under New
New York
York law.”).
law.”). The doctrine does
The doctrine does not
not
exist under
exist under New
New York
York law.
law.
2.
2. Federal Constitutional
Federal Constitutional Law
Law Does
Does Not
Not Recognize
Recognize AA “Neutral
“Neutral
Reportage” Privilege.
Reportage” Privilege.
Nor isis there

Nor there any federal Constitutional
any federal basis for
Constitutional basis for the
the neutral
neutral reportage
reportage
privilege.
privilege. As Dominion
As Dominion previously
previously explained, and as
explained, and as the
the Court
Court previously
previously
acknowledged. in
acknowledged, in the
the decades since New
decades since New York
York Times
Times v.v. Sullivan,
Sullivan, the
the U.S.
U.S. Supreme
Supreme
Court has
Court has struck
struck aa careful
careful balance
balance between
between “First
“First Amendment
Amendment freedoms”
freedoms” and
and “the
“the
individual's right
individual’s right to
to the
the protection
protectionofhis own good
of his own name,” both
good name,” bothof which the
of which Court
the Court
has acknowledged
has are vitally
acknowledged are vitally important
important inin our
our constitutional
constitutional system.
system. Gertz
Gertz v.v. Robert
Robert
Welch, Inc.,
Welch, Inc., 418 U.S. 323,
418 U.S. 323, 341
341 (1974);
(1974); see
see also FNN MTD
also FNN MTD Order,
Order, p.41
p.41 (“The
(“The United
United
165
165
States Supreme
States Supreme Court
Court has
has attempted
attempted to
to strike
strike aa balance between First
balance between First Amendment
Amendment
freedoms and
freedoms and viable
viable claims
claims for
for defamation.”).
defamation.”). “In
“In doing
doing so,
so, the
the United
United States
States
Supreme Court
Supreme Court has
has declined to endorse
declined to endorse per se protected
per se categories like
protected categories like
newsworthiness.” Id.
newsworthiness.” Id.
Dominion recounted,
Dominion recounted, in
in its
its briefing
briefing on
on Fox’s
Fox’s motion
motion to dismiss, how
to dismiss, how the
the U.S.
U.S.
Supreme Court
Supreme Court expressly
expressly rejected
rejected aa content-based newsworthiness test
content-based newsworthiness test inin Gertz.
Gertz.
ENN MTD
FNN MTD Opp.,
Opp.. pp.8-11.
pp8-11. As
As Gertz
Gertz explained,
explained, aa newsworthiness
newsworthiness test
test would
would
occasion the
occasion the “difficultyofforcing state and
“difficulty of forcing state and federal
federal judges to decide
judges to decide on
on an
an ad
ad hoc
hoc
basis which
basis which publications
publications address
address issues
issues of
of ‘general
‘general or
or public interest’ and
public interest’ and which
which do
do
not—to determine,
not—to determine, in
in the
the words
words of Mr. Justice
of Mr. Marshall, ‘what
Justice Marshall, ‘what information
information isis
relevant toto self-government.’’’
relevant self-government.” 418
418 U.S.
U.S. atat 346
346 (quoting
(quoting Rosenbloom
Rosenbloom v.v. Metromedia,
Metromedia,
Inc., 403
Inc., US. 29,
403 U.S. 29,79 (1971) (Marshall,
79 (1971) (Marshall, J., dissenting)). The
J., dissenting)). The U.S.
U.S. Supreme
Supreme Court
Court
“doubted] the
“doubt[ed] wisdomof
the wisdom committing this
of committing this task
task to
to the
the conscience ofjudges.”
conscience of Gertz
judges.” Gertz
at 346.
at 346. From
From Gertz
Gertz onward,
onward, then,
then, the
the Supreme
Supreme Court
Court inin its
its First
First Amendment
Amendment
defamation jurisprudence
defamation has maintained
jurisprudence has maintained the
the careful—and highly media-
careful—and highly media-
protective—balance itit first
protective—balance first struck
struck inin Sullivan and Curtis
Sullivan and Curtis Publishing, requiring an
Publishing, requiring an
inquiry based
inquiry based on
on the
the status
status of the plaintiff,
of the plaintiff, not
not the content of
the content of the
the statement.
statement. “[U]se
“[Ulse
of such
of subject-matter classifications
such subject-matter classifications to
to determine the extent
determine the of constitutional
extent of constitutional
protection afforded
protection afforded defamatory
defamatory falsehoods
falsehoods may
may too
too often
often result
result in
in an
an improper
improper
balance between
balance between the
the competing
competing interests
interests in
in this area.” Time,
this area.” Time, Inc.
Inc. v.v. Firestone,
Firestone, 424
424
166
166
U.S. 448,
U.S. 456 (1976).
448, 456 “[Tlhis weakness
(1976). “[T]his weakness inin the
the Rosenbloom
Rosenbloom test…led
test...led us
us in
in Gertz
Gertz to
to
eschew aa subject-matter
eschew subject-matter test
test for
for focusing
focusing upon
upon the
the character
character of
of the
the defamation
defamation
plaintiff.” Id.
plaintiff.” Id.
‘This Court
This Court was
was thus
thus correct
correct inin noting
noting that
that “the
“the defense
defense seems
seems to
to run
run contrary
contrary
to United
to United States
States Supreme
Supreme Court
Court precedent.”
precedent.” FNN
FNN MTD
MTD Order, p41; see
Order, p.41; also US
see also US
Dominion, Inc.
Dominion, Inc. v.v. Newsmax
Newsmax Media,
Media, Inc., 2022 WL
Inc., 2022 WL 2208580,
2208580, atat *27
*27 (Del.
(Del. Super.
Super. Ct.
Ct.
June 16,2022)
June 16, (same). That
2022) (same). That conclusion was consistent
conclusion was with the
consistent with the conclusion
conclusion reached
reached
by the
by the majority
majority of
of lower
lower courts to consider
courts to the issue.
consider the issue. See,
See, e.g., Dickey v.v. CBS
e.g., Dickey CBS Inc.,
Inc.,
583 F.2d
583 F.2d 1221,
1221, 1226
1226 &
& n.5
n.5 (3d
(3d Cir.
Cir. 1978).
1978). As
As the
the Pennsylvania
Pennsylvania Supreme
Supreme Court
Court
noted after
noted after aa lengthy
lengthy review
review of the U.S.
of the U.S. Supreme
Supreme Court’s
Court’s First
First Amendment
Amendment caselaw
caselaw
in Norton
in Norton v.v. Glenn,
Glenn, 860
860 A.2d
A.2d 48
48 (Pa.
(Pa. 2004),
2004), “the
“the high
high Court
Court would
would not
not so
so sharply
sharply
tilt the
tilt the balance
balance against
against the
the protection
protection of
of reputation,
reputation, and
and inin favor
favor of protecting the
of protecting the
media, so
media, so as
as to
to jettison the actual
jettison the actual malice
malice standard
standard inin favor
favor of
of the
the neutral
neutral reportage
reportage
doctrine.” Id.
doctrine.” at 57.
Id. at 57.
3.
3. Fox's Case
Fox’s Case for
for Neutral
Neutral Reportage
Reportage Has
Has Only
Only Gotten
Gotten Weaker
Weaker
Since the
Since the Court’s
Court's Motion
Motion to
to Dismiss
Dismiss Ruling.
Ruling.
Nothing has
Nothing has changed
changed since the Court’s
since the Court’s prior ruling. IfIf anything,
prior ruling. anything, Fox’s
Fox's case
case
for the
for the neutral
neutral reportage
reportage privilege
privilege has
has gotten
gotten weaker.
weaker. At
At the
the time
time of
of the
the Court’s
Court’s
ruling on
ruling Fox's motion
on Fox’s motion to
to dismiss, the Court
dismiss, the Court had
had not
not yet
yet resolved
resolved whether
whether Dominion
Dominion
would be
would be required
required to
to prove
prove actual
actual malice,
malice, or
or instead
instead whether
whether Fox
Fox could be held
could be held liable
liable
167
167
on aa less
on less demanding
demanding fault
fault standard.
standard. See
See FNN
FNN MTD
MTD Order,
Order, p42. Now, however,
p.42. Now, however,
Dominion has
Dominion has consented
consented to
to actual
actual malice.
malice. Thus, to the
Thus, to the extent that the
extent that the Court
Court had
had any
any
concern that
concern that Fox
Fox might
might not
not be
be afforded
afforded adequate
adequate First
First Amendment protections, that
Amendment protections, that
concern no
concern no longer
longer exists. Fox will
exists. Fox will be
be held
held liable
liable only if Dominion
only if Dominion proves
proves actual
actual
malice, the
malice, the greatest
greatest amount
amount of
of protection
protection available
available under
under the
the law.
law.
Nor does
Nor does Page
Page v.v. Oath
Oath Inc.,
Inc., change
change the
the analysis. To the
analysis. To the extent
extent that
that Fox’s
Fox's
invocation of
invocation of neutral
neutral reportage is based
reportage is based on
on state
state law,
law, Page
Page isis obviously
obviously irrelevant,
irrelevant,
as itit applies
as applies Delaware
Delaware law,
law, not
not New
New York
York law.
law. In
In any
any event, Page does
event, Page does not
not even
even
concern the
concern the neutral
neutral reportage
reportage privilege.
privilege. The decision
The decision does
does not
not reference
reference the
the
privilege once,
privilege once, nor
nor does it even
does it even cite
cite Edwards. Instead, Page
Edwards. Instead, Page held
held that
that the
the allegedly
allegedly
defamatory articles
defamatory articles were
were “substantially
“substantially true”
true” because
because they
they reported
reported that U.S.
that U.S.
intelligence agencies
intelligence agencies had
had received
received intelligence
intelligence reports;
reports; were
were investigating
investigating the
the
allegations inin those
allegations reports; and
those reports; and made
made clear
clear that
that the
the allegations
allegations were
were unsubstantiated
unsubstantiated
and under
and under investigation.
investigation. 270
270 A.3d
A.3d atat 846-47.
846-47. Those
Those statements
statements were
were “[f]ar
“[flar from
from
being aa mere
being mere republication
republicationof libelous matter,
of libelous matter, the[y]
the[y] are
are true
true statements.”
statements.” Id.
Id. atat 846.
846.
Page does
Page does not
not rely
rely on
on any
any privilege
privilege atat all,
all, let
let alone
alone aa privilege
privilegeas
as expansive as neutral
expansive as neutral
reportage.
reportage.
168
168
B.
B. Even ifif the
Even the Edwards Doctrine Did
Edwards Doctrine Apply, Fox
Did Apply, Fox Cannot
Cannot Meet
Meet Its
Its
Requirements
Requirements
Even ifif applicable,

Even applicable, no
no reasonable
juror could find that
that the
the broadcasts meet the
broadcasts meet the
neutral report
neutral report privilege’s strict standards.
privilege’s strict standards. ItIt does not apply
does not ifthe
apply if publisher “espouses
the publisher “espouses
or concurs
or concurs in”
in” or
or “deliberately
“deliberately distorts”
distorts” the
the charges
charges or otherwise fails
or otherwise fails to
to provide
provide
“accurate and
“accurate and disinterested
reporting.” 556
556 F.2d
F.2d atat 120.
120. Fox
Fox fails
fails atat every
every turn.
tum.
In Khalil,
In Khalil, the
the Court found itit unnecessary
Court found unnecessary to
to reach
reach whether
whether the
the neutral
neutral
reportage privilege
reportage privilege applies.
applies. ItIt denied
denied Fox’s
Fox's motion
motion to
to dismiss because unlike
dismiss because unlike
Edwards, where
Edwards, where aa “responsible,
“responsible, prominent
prominent organization”
organization” made
made the
the allegations,
allegations, here
here
the allegation
the allegation was
was that
that “Sidney
“Sidney Powell
Powell was
was not
not aa responsible source.” 2022
responsible source.” 2022 WL
WL
4467622 at *6.
4467622 at *6. Moreover,
Moreover, “[s]everal
“[s]everal election
election experts
experts and
and government agencies had
government agencies had
already debunked
already debunked her
her theories
theoriesofelection fraud.” Id.
of election fraud.” Id. The same isis true
The same true here.
here. From
From
at least
at least November
November 77 when
when Maria
Maria Bartiromo
Bartiromo received
received the
the “wackadoodle”
“wackadoodle” email
email she
she
described as
described “kooky” and
as “kooky” and “nonsense,” through the
“nonsense,” through the multiple
multiple communications
communications from
from
Dominion and
Dominion the mountains
and the mountains of
of public
public record information starting
record information starting soon
soon after the
after the
election and
election and growing
growing daily,
daily, toto Fox’s
Fox's own
own characterization
characterization of
of Powell
Powell and
and her
her
conspiracy theories,
conspiracy theories, no
no reasonable
juror could find the
the neutral
neutral report
report privilege
privilege
applicable on
applicable this ground
on this ground alone.
alone. See,
See, e.g.,
e.g. supra,
supra, §V.E.1.
§V.E.1.
Khalil also
Khalil also found
found that
that the
the allegation regarding reporting
allegation regarding reporting being
being “neither
“neither
accurate nor
accurate nor dispassionate”
dispassionate” was
was sufficient
sufficient to
to deny the motion
deny the motion to
to dismiss.
dismiss. Id.
Id. atat *7.
*7.
169
169
Also true
Also true here,
here, after
after completion of the
completion of the evidence.
evidence. Fox
Fox hosts
hosts took sides. AA review
took sides. review of
of
the transcripts
the transcripts shows
shows Fox
Fox espousing and concurring
espousing and in the
concurring in the statements.
statements. To
To cite
cite just
just
the first
the first three:
three: “I
“I know
know that
that there
there were
were voting
voting irregularities.”
irregularities.” (Maria
(Maria Bartiromo,
Bartiromo,
November 8,8, 179(a)).
November ¶179(a)). “It’s stunning.” (Lou
“It’s stunning.” (Lou Dobbs,
Dobbs, November 12, §179(b)).
November 12, ¶179(b)). “This
“This
is the
is the culmination
culmination of what has
of what has been
been an
an over
over aa four-year
four-year effort
effort to
to overthrow
overthrow this
this
president” (Lou
president.” (Lou Dobbs,
Dobbs, November
November 13,
13, 179(c)).
¶179(c)). Fox hosts
Fox also deliberately
hosts also deliberately
distorted the
distorted the charges
charges by
by not
not presenting
presenting the full picture.
the full picture. As
As discussed at length
discussed at length above,
above,
Fox knew
Fox knew the
the charges
charges were
were false
false yet
yet failed
failed to
to provide
provide viewers
viewers with
with any
any of the
of the
extensive evidence
extensive disproving them.
evidence disproving them. See
See supra,
supra, §V.
§V.
And these
And these publications
publications were
were the
the exact
exact opposite
opposite of
of accurate
accurate and
and disinterested
disinterested
reporting. Meade
reporting. Meade Cooper
Cooper agreed
agreed that
that “a
“a token
token pushback
pushback isis not
not really
reallyafair reporting
a fair reporting
on either
on either side.”
side.” Ex.108,
Ex.108, Cooper
Cooper 191:2-4.
191:2-4. David
David Clark
Clark testified
testified similarly,
similarly, agreeing
agreeing
that “token
that push back”
“token push back” isis still
still not
not “fair” reporting and
“fair” reporting and “would
“would be
be insufficient.”
insufficient.”
Ex.106, Clark
Ex.106, 156:4-157:8; Ex.293.
Clark 156:4-157:8; Ex.293. And
And he
he could
could not
not identify
identify any
any pushback
pushback on
on
Bartiromo’s accused
Bartiromo’s accused shows.
shows. Ex.106,
Ex.106, Clark
Clark 237:17-238:14,
237:17-238:14, 294:12-295:11,
294:12-295:11, 302:20-
302:20-
304:5, 304:18-305:9.
304:5, 304:18-305:9. This
This fits
fits with the testimony
with the testimony of
of Bartiromo’s
Bartiromo’s producer,
producer, Abby
Abby
Grossberg: “Q:
Grossberg: “Q: IfIf someone
someone says
says something
something untrue
untrue on
on one
one of
of your shows, do
your shows, do you
you
think it’s
think it’s important
important to
to correct
correct it?
it? A:
A: No.”
No.” Ex.121,
Ex. 121, Grossberg
Grossberg 243:11-14.
243:11-14. Other
Other hosts
hosts
likewise failed
likewise failed to
to challenge
challenge their
their guests.
guests. See
See Ex.554
Ex.554 (text
(text from
from SVP
SVP of
of Media
Media
Relations Caley
Relations Caley Cronin
Cronin to
to Schrier
Schrier regarding
regarding Dobbs’
Dobbs’ 12/10/20
12/10/20 interview
interview of
of Powell:
Powell:
170
170
“wish he
“wish he demanded to see
demanded to see the
the proof”);
proof”); see
see also
also Ex.122,
Ex.122, Hannity
Hannity 300:24-301:5
300:24-301:5
(Hannity did
(Hannity did not
not challenge
challenge Powell’s
Powell’s claims
claims “to
“to the
the extent
extent that
that II would
would have
have had
had I1
had more
had more time”).
time).
A review
A review of
of the
the transcripts
transcripts themselves
themselves demonstrates that no
demonstrates that no reasonable
reasonable juror
juror
could conclude
could the publications
conclude the publications were
were either accurate or
either accurate or disinterested.
disinterested. See
See
Appendices BB &
Appendices & D;
D: see, e.g., Ex.178
see, e.g., Ex.178 (Fox
(Fox concedes
concedes that
that “shows like Dobbs,
“shows like Dobbs,
Hannity, etc.”
Hannity, etc.” did
did not
not “challenge
“challenge the
the narrative
narrative being
being put
put out
out by
by Giuliani,
Giuliani, Powell
Powell etet
al” about
al” Dominion),
about Dominion).
Moreover, “newsworthiness”
Moreover, is not
“newsworthiness” is notaa license
license to lie. As
to lie. As Meade
Meade Cooper
Cooper agreed,
agreed,
“you can
“you can cover
cover the
the allegations
allegations and
and say
say they
they are
are conspiracy
conspiracy theories
theories and
and not true” and
not true” and
“there are
“there are ways
ways to cover the
to cover the allegations without giving
allegations without giving aa platform
platform toto the
the people
people
spewing lies.”
spewing lies.”Ex.108, Cooper 284:8-14,
Ex.108, Cooper 284:8-14, 284:22-25.
284:22-25. Fox
Fox routinely
routinely makes
makes decisions
decisions
on what
on what to
to cover
cover or
or whether the material
whether the material isis “credible
“credible enough
enough to
to put
put on
on the
the air.” Id.
air.” Id.
285:15-20.
285:15-20.
The afternoon
The aftemoon of
of January 6, after
January 6, after the
the Capitol
Capitol came
came under
under attack, then-
attack, then-
President Trump
President Trump dialed into Lou
dialed into Lou Dobbs’
Dobbs’ show
show attempting
attempting toto get on air.
get on air. But
But Fox
Fox
executives vetoed
executives vetoed that
that decision.
decision. Why?
Why? Not
Not because
becauseofofaa lack
lack of
of newsworthiness.
newsworthiness.
January
January 66 was
was an
an important
important event by any
event by any measure.
measure. President
President Trump
Trump not
not only
only was
was
the sitting
the sitting President,
President, he
he was
was fhe key figure
the key figure that
that day. But Fox
day. But Fox refused
refused to
to allow
allow
President Trump
President Trump on air that
on air that evening because “it
evening because “it would
would be irresponsible to
be irresponsible to put
put him
him
171
171
on the
on the air”
air” and “could impact
and “could impact aa lot
lotofpeople in aa negative
of people in negative way.”
way.” Ex.133,
Ex.133, Petterson
Petterson
402:18-403:21.
402:18-403:21. The same isis true
The same true of statements Fox
of statements Fox chose
chose to
to air
air about Dominion.
about Dominion.
Not only
Not only did
did the
the charges
charges severely
severely impact
impact Dominion
Dominion and
and its
its employees, they were
employees, they were
based on
based on verifiable
verifiable falsehoods
falsehoods that
that any
any accurate
accurate and
and disinterested
disinterested reporting
reporting would
would
have mentioned.
have mentioned. See,
See, supra,
supra, §I.A.
SLA. Fox
Fox chose to spread
chose to lies instead
spread lies instead of
of telling
telling the
the
truth. The
truth. The neutral
neutral report
report privilege
privilege provides
provides no
no comfort
comfort to
to Fox
Fox on these facts.
on these facts.
C.
C. The Narrow
The Narrow and
and Well-Defined
Well-Defined “Fair
“Fair Report”
Report” Privilege
Privilege Likewise
Likewise
Does Not
Does Not Apply
Apply
1.
1. The Court
The Court Already Correctly Held
Already Correctly Held That the Fair
That the Report
Fair Report
Privilege Applies
Privilege Only to
Applies Only to Substantially
Substantially Accurate
Accurate Reports
Reports of
of
Like itit did
Like did with
with the
the neutral
neutral reportage
reportage privilege,
privilege, the
the Court largely disposed
Court largely disposed of
of
Fox’s “fair
Fox’s “fair report”
report” defense
defense atat the
the motion
motion to
to dismiss stage. At
dismiss stage. At that
that stage,
stage, Fox
Fox argued
argued
for aa vast
for vast expansion
expansion of
of this
this statutory
statutory privilege,
privilege, claiming that itit provided
claiming that provided the
the press
press
with absolute
with absolute immunity
immunity for
for reports
reports that
that “previewed”
“previewed” future
future litigation,
litigation, even
even ifif those
those
previews of
previews future litigation
of future litigation turned
turned out
out to
to be
be wrong.
wrong. FNN
FNN MTD
MTD Reply,
Reply, pp.18-26.
pp.18-26.
The Court
The Court flatly
flatly rejected
rejected these
these arguments
arguments as inconsistent with
as inconsistent with the
the statute’s
statute’s “ordinary
“ordinary
meaning” and
meaning” and New
New York
York caselaw.
caselaw. See
See FNN
FNN MTD
MTD Order,
Order,pp44-47.
pp.44-47.
Instead, itit applied

Instead, applied the
the privilege’s
privilege’s two
two well-established
well-established limitations.
limitations. First,
First, “the
“the
fair and
fair and true
true report
report must
must be
be ‘of…proceedings.”
‘of...proceedings.” Id.
Id. atat 45-46
45-46 (quoting
(quoting N.Y.
N.Y. Civil
Civil
Rights Law
Rights Law §74).
§74). That
That necessarily
necessarily means
means that
that the
the privilege
privilege “‘is
“is not
not triggered
triggered unless
unless
the report
the report comments
comments on
on aa proceeding.’”
proceeding.” Id.
Id. atat 45
45 (quoting
(quoting Cholowsky
Civile, 69 69
172
172
AD3d 110,
A.D.3d 110, 114
114 (N.Y.
(N.Y. 2d
2d Dep’t
Dept 2009))
2009) (cleaned
(cleaned up).
up). “If
“If context
context indicates
indicates that
that aa
challenged portion
challenged portion of
ofaa publication
publication focuses
focuses exclusively
exclusively on
on underlying
underlying events,
events, rather
rather
than an
than an official
official proceeding
proceeding relating
relating to
to those
those events, that portion
events, that portion isis insufficiently
insufficiently
connected to
connected to the
the proceeding
proceeding toto constitute
constitute aa report
reportof
of that proceeding.” Fine
that proceeding.” Fine v.v. ESPN,
ESPN,
Inc., 11
Inc., 11 F.Supp.3d
F.Supp.3d 209,
209, 217
217 (N.D.N.Y.
(NDN.Y. 2014);
2014); see
see also
also Corporate
Corporate Training
Training
Unlimited, Inc.
Unlimited, Inc. v.v. National Broadcasting Co.,
National Broadcasting Co., 868
868 F.Supp.
F.Supp. 501,
501, 509
509 (E.D.N.Y.
(ED.N.Y. 1994)
1994)
(privilege did
(privilege did not
not apply
apply where
where report
report mentioned
mentioned judicial proceedings only
judicial proceedings only “in
“in
passing” and
passing” and ordinary
ordinary viewer
viewer “would
“would not
not have
have been
been under
under the
the impression
impression that
that he
he
was being
was being presented
presented with
with aa report
report of the...judicial proceedings”).
of the…judicial proceedings”). “Doubt regarding
“Doubt regarding
whether the
whether the report
report isis ‘of’
“of” aa proceeding
proceeding isis resolved
resolved against
against the
the privilege.”
privilege.” FNN
FNN MTD
MTD
Order, pp.46
Order, pp.46 (citing
(citing Cholowsky,
Cholowsky, 69
69 A.D.3d
A.D.3d atat 114-15).
114-15).
Second, the
Second, the report
report “must be ‘substantially
“must be ‘substantially accurate,’”
accurate,” meaning
meaning that
that the
the report
report
“does not
“does not produce
produce aa different
different effect
effect on
on aa reader
reader than
than would
would aa report
report containing
containing the
the
precise truth.”
precise truth.” Id.
Id. atat 45
45 (quoting
(quoting N.Y.
N.Y. Civil
Civil Rights
Rights Law
Law §74);
§74); see
see also id. (in
also id. (in
considering whether
considering whether the
the report
report isis “substantially
“substantially accurate,”
accurate,” court must “analyze
court must “analyze the
the
publication as
publication as aa whole”
whole” and
and “consider the publication’s
“consider the publication’ ‘effect
‘effect upon
upon the
the average
average
reader’). AA report
reader’”). report fails
fails the “substantial accuracy”
the “substantial accuracy” requirement
requirement ifif itit “suggest[s]
“suggest[s]
more serious
more serious conduct
conduct than
than that
that actually suggested inin the
actually suggested the official
official proceeding.”
proceeding.”
Karedes v.v. Ackerly

Karedes Group, Inc.,
Ackerly Group, Inc., 423
423 F.3d
F3d 107,
107, 119
119 (2d
(2d Cir.
Cir. 2005) (internal
2005) (internal
quotations and
quotations and alterations
alterations omitted).
omitted). Thus, aa statement
Thus, statement cannot qualify for
cannot qualify for the
the
173
173
privilege ifif itit reasonably
privilege reasonably implies
implies that
that charges against the
charges against the plaintiff
plaintiff have
have “already been
“already been
established,” when,
established,” when, in
in reality,
reality, the
the allegations are merely
allegations are merely “pending and undecided.”
“pending and undecided.”
Greenberg v.v. Spitzer,
Greenberg Spitzer, 155
155 A.D.3d
A.D3d 27,
27, 34,
34, 48
48 (N.Y.
(N.Y. 2d
2d Dep’t
Dep’t 2017);
2017); see
see also, e.g.,
also, e.g.,
Pisani v.v. Staten

Pisani Island Univ.
Staten Island Univ. Hosp.,
Hosp., 440 F.Supp.2d 168,
440 F.Supp.2d 168, 178
178 (E.D.N.Y.
(E.D.N.Y. 2006)
2006) (fair
(fair
report privilege
report privilege did not apply
did not apply where
where report
report “transformed
“transformed allegations
allegations as
as to
to plaintiff
plaintiff
in the…complaint
in the....complaint into
intofact”) (emphasis inin original).
fact”) (emphasis original).
2.
2. None of
None of the
the Defamatory
Defamatory Statements Is aa Substantially
Statements Is Substantially
Accurate Report
Accurate Report of Pending Proceedings.
of Pending Proceedings.
When the
When the fair
fair report’s
report’s actual
actual requirements
requirements are
are applied,
applied, there
there can be no
can be no
genuine dispute
genuine that the
dispute that the defense
defense fails.
fails. Not
Not one of Fox’s
one of Fox's defamatory
statements isis aa
substantially accurate
substantially accurate report
report of
of aa pending
pending proceeding.
proceeding.
In fact,
In fact, none
none of
of the
the accused
accused statements
statements even
even meets
meets the
the basic
basic requirement
requirement that
that
it report
it report on
on aa pending
pending proceeding.
proceeding. As
As the
the Court
Court recognized
recognized inin its
its prior ruling, any
prior ruling, any
statement made
statement made in
in aa broadcast
broadcast that
that occurred before November
occurred before November 25,
25, 2020
2020 could not
could not
possibly satisfy
possibly satisfy the
the “of…proceedings”
“of...proceedings” requirement
requirement because
because the
the lawsuits
lawsuits filed
filed by
by
Sidney Powell—the
Sidney Powell—the only
only Fox
Fox guest
guest who
who actually
actually filed
filed aa lawsuit
lawsuit containing
containing the
the
defamatory allegations
defamatory allegations about
about Dominion—had
Dominion—had not
not been
been filed
filed by
by that
that date.
date. See
See FNN
FNN
MTD Order,
MTD Order, p.46.
p46. And
And even
even after
after that
that date,
date, the
the broadcasts
broadcasts inin question hardly
question hardly
mentioned the
mentioned the existence
existence of
of legal
legal proceedings
proceedings concerning
concerning Dominion,
Dominion, let
let alone
alone
purported to
purported to be
be aa substantially
substantially accurate
accurate report
report of
of those
those proceedings.
proceedings. “[A]t
“{A]t no
no point
point
174
174
did Dobbs
did Dobbs or
or Powell
Powell atribute the statements…to
attribute the statements...to an
an official investigation or
official investigation or aa
judicial proceeding. AA reasonable
judicial proceeding. reasonable observer
observer would
would have
have no
no grounds
grounds to
to believe
believe that
that
her
her statements
statements constituted
constituted aa report
report of
of an
an official
official proceeding.” Khalil, 2022
proceeding.” Khalil, 2022 WL
WL
4467622 at *6.
4467622 at *6.
The only
The only broadcast
broadcast in
in which
which Powell
Powell even references her
even references her lawsuits
lawsuits isis the
the
November 30,
November 30, 2020
2020 Lou
Lou Dobbs
Dobbs Tonight
Tonight broadcast.
broadcast. See
See §179(m); Ex.13. But
¶179(m); Ex.13. But the
the
defamatory statements in
in that broadcast come
that broadcast nowhere close
come nowhere to satisfying
close to satisfying the
the fair
fair
report privilege’s
report privilege’s requirements.
requirements. In
In that
that broadcast, Powell mentions
broadcast, Powell mentions her
her “case…in
“case. .in
Georgia that’s
Georgia that’s getting ready to
getting ready to go
go to the Eleventh
to the Eleventh Circuit,”
Circuit,” where
where she
she was “going toto
was “going
ask for
ask for emergency
emergency review
review of
of that
that where
where we
we sought
sought to
to impound
impound all the voting
all the voting
machines inin Georgia.”
machines Georgia.” Ex.13.
Ex.13. To
To be
be clear,
clear, Dominion
Dominion does
does not
not contend
contend that
that Powell’s
Powell's
foregoing description
foregoing description of
of her Georgia lawsuit
her Georgia lawsuit isis defamatory.
defamatory. Rather,
Rather, Dominion’s
Dominion’s
defamation claim
defamation is based
claim is based on statements about
on statements about Dominion,
Dominion, which
which Powell
Powell presented
presented
as facts,
as and which
facts, and which she
she in
in no
no way
way attributed
attributed or connected toto the
or connected the Georgia
Georgia lawsuit.
lawsuit
See Appendix
See Appendix D,
D, §179(m).
¶179(m).
No reasonable
No reasonable viewer
viewer could conclude that
could conclude that those
thoseassertions —that Dominion’s
assertions—that Dominion’s
machines “are
machines infected with
“are infected with software
software code”
code” that
that manipulated
manipulated vote
vote counts; that
counts; that
Dominion’s “system
Dominion’s “system was
was set
set up to shave
up to shave and flip different
and flip different votes”;
votes”; or that “there
or that “there
were significant
were significant benefits” for Governor
benefits” for Governor Kemp
Kemp for
for awarding
awarding Dominion
Dominion the
the
contract—were “reports”
contract—were “reports” about
about her
her Georgia
Georgia lawsuit
lawsuit or
or any
any other
other lawsuit.
lawsuit. Powell
Powell
175
175
presented them
presented them as
as fact.
fact. And
And even if aa viewer
even if viewer could somehow understand
could somehow understand those
those
assertions as
assertions as being
being attributed
attributed to
to one
one of
of her
her lawsuits,
lawsuits, they
they would
would be
be substantially
substantially
inaccurate. Powell’s
inaccurate. Powell’s suits
suits contained
contained allegations about Dominion
allegations about Dominion and
and its
its machines,
machines,
but those
but those allegations
allegations were
were never
never substantiated;
substantiated; they
they were
were false.
false. See
See Ex.128,
Ex.128, Lowell
Lowell
30(b)(6) 285:10-13,
30(b)(6) 285:10-13, 286:3-13
286:3-13 (Powell
(Powell provided
provided no
no evidence);
evidence); see
see also,
also, supra, §1.
supra, §I.
Where aa report
Where report “transform[s]
“transform[s] allegations...into
allegations…into fact.”
fact,” itit is
is not
not “substantially
“substantially
accurate” and
accurate” does not
and does not qualify
qualify as
as aa fair
fair report.
report. Pisani,
Pisani, 440
440 F.Supp.2d
F.Supp2d atat 178
178
(emphasis in
(emphasis in original).
original). The fair report
The fair report privilege
privilege therefore
therefore cannot apply. Moreover,
cannot apply. Moreover,
Powell did
Powell did not
not even
even accurately
accurately characterize the allegations.
characterize the allegations. Though
Though Powell
Powell stated
stated
on the
on the show
show that
that Governor
Governor Brian
Brian Kemp
Kemp received
received “significant
“significant benefits,”
benefits.” i.e.,
ic.,
kickbacks, for
kickbacks, for awarding
awarding Dominion
Dominion the
the Georgia
Georgia contract, her lawsuit
contract, her lawsuit contains no
contains no
such allegation.
such allegation. Compare
Compare §179(m), with Ex.314;
¶179(m), with Ex.314; see
see FNN
FNN MTD
MTD Order,
Order, p.47.
p47.
CONCLUSION
CONCLUSION
For the
For the foregoing
foregoing reasons,
reasons, Dominion
Dominion respectfully
respectfully asks
asks the
the Court to grant
Court to grant
summary judgment
summary in favor
judgment in favor of
of Dominion
Dominion on
on Fox
Fox News
News Network
Network and
and Fox
Fox
Corporation’s liability
Corporation’s liability for
for defamation.
defamation.
Dated: January
Dated: 17, 2022
January 17, 2022 Respectfully submitted,
Respectfully submitted,
5/_Brian
/s/ Brian E.E. Farnan
Farnan
Brian E.
Brian E. Farnan
Faman (Bar
(Bar No.
No. 4089)
4089)
Michael J.J. Farnan
Michael Faman (Bar
(Bar No.
No. 5165)
5165)
FARNAN LLP
FARNAN LLP
176
176
919 N.
919 N. Market
Market St.,
St. 12th
12th Floor
Floor
Wilmington, Delaware
Wilmington, Delaware 19801
19801
(302) 777-0300
(302) 777-0300
bfaman@farnanlaw.com
bfarnan@farnanlaw.com
mfaman@ farnanlaw.com
mfarnan@farnanlaw.com
Rodney Smolla
Rodney Smolla (Bar
(Bar No.
No. 6327)
6327)
164 Chelsea
164 Street
Chelsea Street
South Royalton,
South Royalton, Vermont
Vermont 05068
05068
373-3882
(864) 373-3882
(864)
rodsmolla@gmail.com
rodsmolla@gmail.com
Of Counsel:
Of Counsel:
Justin A.
Justin A. Nelson
Nelson
Thomas
Thomas A.A. Clare,
Clare, P.C.
P.C. Jonathan J.J. Ross
Jonathan Ross
Megan L.
Megan L. Meier
Meier Katie Sammons
Katie Sammons
Dustin A.
Dustin Pusch
A. Pusch Laranda Walker
Laranda Walker
Daniel P.
Daniel P. Watkins
Watkins Elizabeth Hadaway
Elizabeth Hadaway
CLARE LOCKE LLP
CLARE LOCKE LLP Florence Chen
Florence Chen
10 Prince Street
10 Prince Street Kate Farley
Kate Farley
Alexandria, Virginia
Alexandria, Virginia 22314
22314 SUSMAN GODFREY
628-7400
(202) 628-7400
(202) 1000 Louisiana
1000 Street, #5100
Louisiana Street, #5100
tom@clarelocke.com
tom@clarelocke.com Houston, Texas
Houston, 77002
Texas 77002
megan@clarelocke.com
megan@clarelocke.com (713) 651-9366
(713) 651-9366
dustin@clarelocke.com
dustin@clarelocke.com jnelson@susmangodirey.com
jnelson@susmangodfrey.com
daniel @clarelocke.com
daniel@clarelocke.com jross@susmangodfrey.com
jross@susmangodfrey.com
ksammons@susmangodiiey.com
Iwalker@susmangodirey.com
lwalker@susmangodfrey.com
chadaway @susmangodfrey.com
ehadaway@susmangodfrey.com
fehen@susmangodirey.com
fchen@susmangodfrey.com
Kfarley @susmangodirey.com
kfarley@susmangodfrey.com
Stephen Shackelford,
Stephen Shackelford, Jr.
Jr.
Mark-Hatch-Miller
Mark-Hatch-Miller
Zach Savage
Zach Savage
Christina M.
Christina M. Dieckmann
Dieckmann
SUSMAN GODFREY
1301 6th
1301 6th Avenue
Avenue
177
177
New York,
New York, New
New York
York 10019
10019
336-8330
(212) 336-8330
(212)
sshackelford@susmangodirey.com
sshackelford@susmangodfrey.com
zsavage@susmangodfrey com
zsavage@susmangodfrey.com
Davida Brook
Davida Brook
Jordan Rux
Jordan Rux
SUSMAN GODFREY
1900 Avenue
1900 Avenue of
of the
the Stars,
Stars, Suite
Suite 1400
1400
Los Angeles,
Los Angeles, California
California 90067
90067
789-3100
(310) 789-3100
(310)
Edgar Sargent
Edgar Sargent,
Katherine Peaslee
Katherine Peaslee
SUSMAN GODFREY
401 Union
401 Union Street, Suite 3000
Street, Suite 3000
516-3880
(206) 516-3880
(206)
kpeaslee@susmangodfiey.com
kpeaslee@susmangodfrey.com
Attorneys for
Attorneys Plaintiffs
for Plaintiffs
178
178
CERTIFICATE OF
CERTIFICATE OF SERVICE
SERVICE
I,1, Brian
Brian E.
E. Farnan,
Farman, hereby
hereby certify
certify that
that on February 16,
on February 16, 2023,
2023, aa copy
copy of
of the
the
redacted version
redacted version of
of Dominion’s
Dominion’s Brief
Brief inin Support
Support of
of its
its Motion
Motion for
for Summary
Summary
Judgment on Liability
Judgment on Liability of
of Fox
Fox News
News Network,
Network, LLC
LLC and
and Fox
Fox Corporation was served
Corporation was served
via LexisNexis
via LexisNexis File&Serve
File&Serve on
on the
the following:
following:
John L. Reed
John L. Reed Blake Rohrbacher
Blake Rohrbacher
Ronald N.
Ronald N. Brown,
Brown, III
III Katharine L.
Katharine L. Mowery
Mowery
DLA PIPER LLP (US)
DLA PIPER LLP (US) Angela Lam
Angela Lam
1201 North
1201 North Market
Market Street,
Street, Suite
Suite 2100
2100 Richards, Layton
Richards, Layton && Finger,
Finger, P.A.
P.A.
Wilmington, DE 19801
Wilmington, DE 19801 920 N. King Street
920 N. King Street
Wilmington, DE
Wilmington, DE 19801
19801
Attorneysfor Defendant Fox
Attorneys for Defendant Fox
Corporation
Corporation Attorneysfor Defendant Fox
Attorneys for Defendant Fox
Corporation
Corporation
[5/ Brian E.
/s/ Brian E. Farnan
Farnan
Brian E.
Brian E. Farnan
Famnan (Bar
(Bar No.
No. 4089)
4089)

2023 02 16 Redacted Dominion Opening SJ Brief 18

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2023 02 16 Redacted Dominion Opening SJ Brief 18

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IN THE

IN THE SUPERIOR COURT OF

US DOMINION, INC., DOMINION

FOX CORPORATION and FOX

DOMINION’S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY

Brian v.v. Richardson,

Celle v.v. Filipino

Cianci v.v. New

Davis v.v. Boeheim,

DiBella v.v. Hopkins,

Dickey v.v. CBS

Edwards v.v. Nat’l

Elias v.v. Rolling

v. Otis Ford, Inc.,

Greenberg v.v. Spitzer,

Hogan v.v. Herald

Kasavana v.v. Vela,

New York Times

Norton v.v. Glenn,

Osorio v.v. Source

Ostrowe v.v. Lee,

Page v.v. Oath

Rosenbloom v.v. Metromedia,

Ruder && Finn

Seymour v.v. New

Solano v.v. Playgirl,

Stern v.v. Cosby,

Torati v.v. Hodak,

Weiner v.v. Doubleday

saying.” Ex.177. And

‘The First Amendment

Ex.179 atat FNN019_03736521.

point” Id. 194:1-6.

see also Ex.281

just received. Wallace:

alternative universe when

Id. atat FNN035_03891092.

higher-ups atat Fox

conversations with Sean

Ex.170 atat FNN018_02408904-05.

jurisdictions that Fox’s

(Pennsylvania).”7 Paper ballots protect against election rigging because “[y]ou

theory isis absolutely

•«12/1/2020: U.S. Attorney

Trump did not

November 5,5, Fox’s

of intentional misconduct by an election official, was a result of software or

CE a SDS ALE ShPee

Dominion isis owned

•« Justice with Judge

Fox isis responsible

Snowden v.v. Pearl

460, 463 (N.Y.

‘They are defamatory

E56 ible Showin a1recipients

agreement” existed about the falsity of the Dominion allegations. Id.

153:24-157:11 (“[N]o reasonable person would have thought that.”); id.

As the broad knowledge at Fox shows, it required at minimum reckless

•* Meade Cooper, EVP

•* Bill Sammon, SVP and Managing Editor (id.,

•«Alan Komissaroff, SVP

•«Rupert Murdoch, Fox

Parler isis that