In Fox-Dominion Trial, All Eyes Are on the Judge, Too

As Fox News heads to trial to defend itself against a $1.6 billion lawsuit, which could prove a critical gauge of free speech protections in an age of politicized misinformation, the presiding judge faces a high-profile test of his abilities in the middle of a media spectacle.

So far, legal analysts say, Judge Eric M. Davis of Delaware Superior Court has been evenhanded and reasonable, even while he has excoriated Fox’s lawyers for withholding evidence and at times expressed skepticism about the network’s defense against allegations that it knowingly broadcast false claims of voter fraud in the 2020 presidential election.

Davis’ every decision is already being scrutinized for its potential impact on the outcome of the jury trial, which is set to begin Monday. It is by far the most closely watched defamation case involving a media organization in decades and an important measure of how big a shield the First Amendment offers.

In the lawsuit, Dominion Voting Systems, a voting technology company, accuses Fox and some of its hosts and executives of harming its reputation by reporting unsubstantiated claims that it was involved in mass voter fraud. Fox has responded that it was reporting on newsworthy allegations made by former President Donald Trump and his supporters.

In pretrial rulings, Davis, 61, has shown that he is “comprehensive, clear and direct,” important qualities in such a prominent case, said Carl Tobias, a law professor at the University of Richmond.

“Davis seems to refrain from inserting himself into disputes, so that cases are about the merits and the litigants rather than the judge,” Tobias said. “Perhaps most important, Davis displays measured judicial temperament, which is essential when the stakes are huge and emotions run high.”

A judge since 2010, Davis has spent the past decade on the Superior Court, overseeing cases as diverse as that of a neurosurgeon who molested his patients, a cold-case murder and a dispute over whether insurers should have to pay for fraud by a former chief executive of the Dole food empire. Cases currently on his docket include personal injury claims and mortgage mediation.

Davis is also overseeing a defamation suit that bears a strong resemblance to the Fox-Dominion trial. Smartmatic, another voting technology company, is suing Newsmax, another right-wing cable channel, over similar accusations of unproven allegations of rigging votes in the election. That case is not as far along as the Fox-Dominion suit.

Jury selection in the Fox-Dominion case is set to begin Thursday. Opening statements are expected Monday, and the trial is scheduled to continue through late May.

A series of recent pretrial rulings has provided more clarity on how Davis operates, and shows he has taken steps to reassure both parties that he had not predetermined the outcomes.

In a hearing on March 22, as Davis commended the professionalism of lawyers for both Fox and Dominion, he warned that a trial would be “a truth-seeking situation and not a game of gotcha and not a game of playing around with me.”

But he has also made some important decisions that have shaped the parameters of the case. In a setback for Fox in late March, Davis dismissed the news network’s argument that the First Amendment protected it on the grounds that it accurately reported on the voter fraud allegations and that its hosts’ endorsement of the false claims were covered as “opinion.”

“The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true,” Davis wrote in a 130-page decision.

It was a partial win for Dominion, which still has to convince the jury that Fox acted with “actual malice,” a legal standard for defamation that requires proof that the defendant either knowingly spread lies or was so reckless that it amounted to a disregard of abundant evidence that the claims were not true.

On Tuesday, Davis dealt a blow to Dominion, ruling that its lawyers could not refer to the Jan. 6, 2021, insurrection at the Capitol because it could prejudice the jury. At that hearing, he also limited how much Dominion’s legal team could tell jurors about death threats that the company’s employees had received, saying there should be no mention of the specific content of the threats.

On Wednesday, the judge scorned Fox’s attorneys over evidence in the case — including recordings of conversations between the network’s hosts and people who claimed to have knowledge of the supposed fraud — that is only just coming to light. He indicated that he would likely appoint a special master to investigate whether they were deliberately withholding relevant evidence, and ruled that Dominion would be able to redo depositions of any witnesses at Fox’s expense.

“Judge Davis has lived with, and labored mightily on bringing to a fair resolution, what may be the most consequential defamation case since NYT v. Sullivan,” Tobias said, referring to the 1964 Supreme Court decision that established the need for a plaintiff to prove that false information was published with “actual malice.”

The judge’s decisions, even small ones, have gotten plenty of media attention. But that will surely pale in comparison with the scrutiny to come, as news outlets from around the world descend on the unassuming courthouse in Wilmington, Delaware, for the trial, which is likely to be punctuated by appearances by Fox hosts and leaders, including Tucker Carlson, Maria Bartiromo, Rupert Murdoch, his son Lachlan, and Suzanne Scott, the chief executive of Fox News.

There are already limits on how the proceedings can be covered, which may help dampen the spectacle somewhat: No video or audio is allowed to be broadcast from the courtroom, and reporters in the courtroom will not be allowed to use the internet.

Davis declined to comment for this article, as did representatives for Dominion and Fox.

A graduate of the University of Virginia, Davis attended the Emory University School of Law, graduating in 1992. After a stint at the Miles & Stockbridge law firm in Baltimore, he became a partner in the Wilmington office of the multinational firm Skadden, Arps, Slate, Meagher & Flom, where he worked as a commercial litigator specializing in corporate restructuring.

Jack Markell, Delaware’s Democratic governor at the time, appointed Davis in 2010 to the Court of Common Pleas, which oversees everyday criminal matters, such as misdemeanors and motor vehicle offenses, and civil cases without a jury.

In November 2012, Markell nominated Davis to join the Superior Court, which has jurisdiction over most criminal and civil cases in Delaware, and has no monetary limit on what it can award in damages.

Davis said in a news release announcing his nomination that he had worked to speed up civil trials in the Common Pleas Court with the creation of an expedited docket “so that we can resolve these disputes more quickly and efficiently.”

“I look forward to contributing in the same way on Superior Court if I am confirmed,” he said.

This article originally appeared in The New York Times .