Jury selection begins in Dominion’s $1.6 billion suit against Fox

By Helen Coster

(Reuters) -Jury selection began on Thursday in a $1.6 billion defamation lawsuit by Dominion Voting Systems against Fox Corp in a process to choose 12 people from a heavily Democratic county in Delaware to decide whether Fox News knowingly aired false claims on vote-rigging in the 2020 U.S. presidential election.

Delaware Superior Court Judge Eric Davis, presiding over the case in Wilmington, is questioning prospective jurors behind closed doors in one of the most closely watched U.S. defamation cases in years, involving a leading cable news outlet with numerous conservative commentators. In Delaware, attorneys are not allowed to speak directly with potential jurors.

The judge has allotted two days for jury selection. Opening statements in the expected five-week trial are expected to begin Monday.

Dominion sued Fox Corp and Fox News in 2021, accusing them of ruining its reputation by airing false claims by Republican former President Donald Trump and his lawyers that the Denver-based company’s voting machines were used to rig the outcome of the election against him and in favor of Democrat Joe Biden.

The trial is considered a test of whether Fox’s coverage crossed the line between ethical journalism and the pursuit of ratings, as Dominion alleges and Fox denies. Fox had argued that coverage of the vote-rigging claims was inherently newsworthy and protected by the U.S. Constitution’s First Amendment guarantee of press freedom. Davis rejected that argument.

The primary question for jurors will be whether Fox knowingly spread false information or recklessly disregarded the truth, the standard of “actual malice” Dominion must show to prevail in a defamation case.

The jurors will be drawn from Delaware’s New Castle County, where Democrats outnumber Republicans more than two-to-one, according to the state’s Department of Elections. Biden represented Delaware in the U.S. Senate from 1973 until 2009.

Fox News and its conservative commentators often were supportive of Trump during his presidency.

The county’s political composition is likely to “make the defense nervous, but left-leaning people also tend to be in favor of freedom of the press,” said Melissa Gomez, president of MMG Jury Consulting.

Fox has argued in legal filings that Dominion’s damages request is “untethered from reality” and designed to enrich the company’s investors.

Davis on Wednesday sanctioned Fox News, handing Dominion a fresh chance to gather evidence after Fox withheld records until the eve of trial. This evidence included recordings made by a former Fox employee, Abby Grossberg, who is suing the network.

Davis said he would also very likely tap an outside investigator to look into Fox’s late disclosure of the evidence and take whatever steps necessary to remedy the situation, which the judge described as troubling.

A Fox spokesperson said in a statement on Wednesday: “As counsel explained to the court, Fox produced the supplemental information from Ms. Grossberg when we first learned it.”

QUESTIONS FROM THE JUDGE

During the jury selection process, the judge is due to use questions that both sides have agreed to, including whether potential jurors have ever “worked in a newsroom” and whether “they regularly watch any Fox News programs.” If a prospective juror responds affirmatively, Davis may ask follow-up questions.

After the judge identifies 36 potential jurors, they will be brought to the courtroom and each side’s attorneys will have six “peremptory strikes,” in which they can dismiss a potential juror without giving a reason for doing so.

It also means both sides will have a harder time trying to identify the political views of prospective jurors, which could be relevant in this case, Gomez said.

“If you have a juror who believes that the election was stolen, it will influence their position,” Gomez said. “Will the facts of the case actually matter to them if they have that underlying belief?”

The questions are limited to a prospective juror’s experience rather than attitude.

Questions that capture attitude would be more likely to predict how a juror would lean in the case, according to Christina Marinakis, a jury consulting and strategy adviser at IMS Consulting and Expert Services.

“So you’re sort of shooting blind when it comes to jury selection,” Marinakis said.