For months, as the pretrial proceedings wore on and the embarrassing internal messages kept spilling into public view, executives at Fox News slowly resigned themselves to a miserable slog of a trial followed by a possible loss before a jury in the blockbuster $1.6 billion lawsuit by Dominion Voting Systems.
Viet Dinh, the highest-ranking legal officer at Fox News’s parent company, Fox Corp., had offered a glimmer of hope. He had walked company founder and chairman Rupert Murdoch and his son Lachlan, who is Fox’s chief executive, through the legal issues and reassured them that the company could eventually prevail on appeal, even if it required going all the way to the Supreme Court, according to people familiar with the internal deliberations who spoke on the condition of anonymity to describe confidential conversations.
But at the close of Friday’s hearing in the blockbuster defamation case against Fox News, Judge Eric M. Davis of Delaware Superior Court asked the lawyers for both companies to try to work out their differences. Trial was set to begin Monday, and he implored them to see if they could find common ground.
The two sides obliged, and their lawyers spent the weekend attempting to hammer out a deal without getting far. The space between them was still vast. Running out of time, they sent an emergency email Sunday morning to longtime mediator Jerry Roscoe, who was floating down the Danube River.
But Fox had insisted publicly it was standing up for the First Amendment by refusing to settle, claiming that Dominion was unfairly blaming it for airing allegations that at the time were being promoted by the president and his lawyers.
Despite the reassurance from Dinh, a trusted Murdoch adviser (and godfatherto one of Lachlan’s sons), who had taken on an outsize role at Fox Corp., Murdoch himself was inclined to settle the matter financially, as he has done many times in his career, the people familiar with the Fox deliberations said.
After that first call Monday morning, others quickly followed. Over Monday and into Tuesday, Roscoe estimated that he conducted as many as 50 calls with both sides. Some were long, others short, some on Zoom, others traditional phone calls. Lawyers and company executives joined, he said. When asked if Rupert Murdoch had joined the calls, Roscoe said that no potential witnesses had been part of the discussions with him.
“We were on the phone nonstop,” he said. “Emotions ran high.”
By Monday evening, they still hadn’t made progress, and both parties went to bed expecting a trial the next day. On Tuesday morning, the lawyers suited up and headed for the courtroom.
But outside the courtroom, Roscoe was making headway.
For the vacationing mediator, that required calling in from his hotel, a boat, even a bus, holding his phone in his winter coat for privacy.
Roscoe said that he quickly ascertained that Dominion’s monetary demand was not the only issue keeping the two apart. They were also divided by a dispute over the language that Fox would release acknowledging the court’s ruling that Fox had spread falsehoods about the company.
But over many calls, the sides got closer.
by Sarah Ellison, Josh Dawsey and Rosalind S. Helderman, Washington Post | Read more:
Image: Rachel Wisniewski/Washington Post
Viet Dinh, the highest-ranking legal officer at Fox News’s parent company, Fox Corp., had offered a glimmer of hope. He had walked company founder and chairman Rupert Murdoch and his son Lachlan, who is Fox’s chief executive, through the legal issues and reassured them that the company could eventually prevail on appeal, even if it required going all the way to the Supreme Court, according to people familiar with the internal deliberations who spoke on the condition of anonymity to describe confidential conversations.
The two sides obliged, and their lawyers spent the weekend attempting to hammer out a deal without getting far. The space between them was still vast. Running out of time, they sent an emergency email Sunday morning to longtime mediator Jerry Roscoe, who was floating down the Danube River.
As calculations by both companies slowly played out, the stakes were clear, not just for them but for the news media and even for the country itself: Dominion was seeking accountability for Fox’s role in spreading the false claim that Dominion machines had been used to steal the White House from former president Donald Trump, a democracy-shaking lie that helped spark violence on Jan. 6, 2021, and, more than two years later, this consequential defamation battle in court.
But now, there was one last shot for resolution on the eve of the most highly anticipated libel lawsuit in a generation.
“Would I be willing to mediate an important case?” Roscoe said, recalling the dramatic email he received while on vacation.
In an interview, Roscoe said he was soon reading thousands of pages of documents, scrolling through them on his phone overnight in preparation for swooping in at the last minute to try to end the dispute.
Publicly, there was no sign of change in the posture of the two companies. So it was a surprise Sunday night, as dozens of reporters were checking into their hotels in Wilmington, Del., girding themselves for a weeks-long stay, when a strange note was circulated by the public information officer for the court: Judge Davis would delay the trial by one day. No explanation was provided, only an assurance that Davis would say more in court the next morning.
Two people familiar with the case told The Washington Post on Sunday night that the delay was to allow time for the two sides to try to reach a deal. The talks were coming at the insistence of the judge, one said, lowering expectations of success.
But behind the scenes, Roscoe said, he commissioned calls with lawyers for both sides, trying to feel out their red lines. On Monday morning, he brought them together for their first call.
An hour later, Davis gaveled the court into session only briefly to announce that he would proceed with seating a jury in 24 hours and declared that such delays in complicated suits were hardly “unusual.” Dominion sent just one lawyer to sit in the courtroom for Davis’s low-key remarks, a hint that the real action might have been taking place elsewhere.
Roscoe said expectations were muted at first. The companies’ lead trial attorneys, Justin Nelson for Dominion and Dan Webb for Fox, had minimal roles, too busy continuing to prepare for the planned courtroom clash.
“The parties weren’t too optimistic that it was going to resolve,” he said.
Fox staff and executives had watched in horror as their unvarnished, and often vicious, internal messages about one another — and Trump — became public throughout the pretrial proceedings. Many of Fox News’s top executives, including CEO Suzanne Scott, arrived at the network at its founding, and some have never worked anywhere else. And since Roger Ailes, Fox News’s late co-founder, was forced out in a sexual harassment scandal in 2016, Fox has operated without a domineering force leading it.
Inside Fox, as the trial date neared, staffers dreaded the witness testimony that might come with it. Rupert Murdoch was expected to be called second in the witness lineup, right after Dominion’s PR representative, Tony Fratto, according to people familiar with the witness lineup. Lou Dobbs was expected to be the third witness. High-profile Fox News hosts such as Maria Bartiromo, Tucker Carlson, Jeanine Pirro and Sean Hannity were also expected to be called, along with several behind-the-scenes staffers.
Revelations from pretrial discovery had been excruciating for the cable network, exposing a backbiting internal culture that featured employees who regularly doubted the content that aired nightly for millions of viewers. They privately rejected the myth that Trump had won the election, even as the network put forth conspiracy theories in the weeks after the November 2020 election. (...)
But now, there was one last shot for resolution on the eve of the most highly anticipated libel lawsuit in a generation.
“Would I be willing to mediate an important case?” Roscoe said, recalling the dramatic email he received while on vacation.
In an interview, Roscoe said he was soon reading thousands of pages of documents, scrolling through them on his phone overnight in preparation for swooping in at the last minute to try to end the dispute.
Publicly, there was no sign of change in the posture of the two companies. So it was a surprise Sunday night, as dozens of reporters were checking into their hotels in Wilmington, Del., girding themselves for a weeks-long stay, when a strange note was circulated by the public information officer for the court: Judge Davis would delay the trial by one day. No explanation was provided, only an assurance that Davis would say more in court the next morning.
Two people familiar with the case told The Washington Post on Sunday night that the delay was to allow time for the two sides to try to reach a deal. The talks were coming at the insistence of the judge, one said, lowering expectations of success.
But behind the scenes, Roscoe said, he commissioned calls with lawyers for both sides, trying to feel out their red lines. On Monday morning, he brought them together for their first call.
An hour later, Davis gaveled the court into session only briefly to announce that he would proceed with seating a jury in 24 hours and declared that such delays in complicated suits were hardly “unusual.” Dominion sent just one lawyer to sit in the courtroom for Davis’s low-key remarks, a hint that the real action might have been taking place elsewhere.
Roscoe said expectations were muted at first. The companies’ lead trial attorneys, Justin Nelson for Dominion and Dan Webb for Fox, had minimal roles, too busy continuing to prepare for the planned courtroom clash.
“The parties weren’t too optimistic that it was going to resolve,” he said.
Fox staff and executives had watched in horror as their unvarnished, and often vicious, internal messages about one another — and Trump — became public throughout the pretrial proceedings. Many of Fox News’s top executives, including CEO Suzanne Scott, arrived at the network at its founding, and some have never worked anywhere else. And since Roger Ailes, Fox News’s late co-founder, was forced out in a sexual harassment scandal in 2016, Fox has operated without a domineering force leading it.
Inside Fox, as the trial date neared, staffers dreaded the witness testimony that might come with it. Rupert Murdoch was expected to be called second in the witness lineup, right after Dominion’s PR representative, Tony Fratto, according to people familiar with the witness lineup. Lou Dobbs was expected to be the third witness. High-profile Fox News hosts such as Maria Bartiromo, Tucker Carlson, Jeanine Pirro and Sean Hannity were also expected to be called, along with several behind-the-scenes staffers.
Revelations from pretrial discovery had been excruciating for the cable network, exposing a backbiting internal culture that featured employees who regularly doubted the content that aired nightly for millions of viewers. They privately rejected the myth that Trump had won the election, even as the network put forth conspiracy theories in the weeks after the November 2020 election. (...)
But Fox had insisted publicly it was standing up for the First Amendment by refusing to settle, claiming that Dominion was unfairly blaming it for airing allegations that at the time were being promoted by the president and his lawyers.
Despite the reassurance from Dinh, a trusted Murdoch adviser (and godfatherto one of Lachlan’s sons), who had taken on an outsize role at Fox Corp., Murdoch himself was inclined to settle the matter financially, as he has done many times in his career, the people familiar with the Fox deliberations said.
After that first call Monday morning, others quickly followed. Over Monday and into Tuesday, Roscoe estimated that he conducted as many as 50 calls with both sides. Some were long, others short, some on Zoom, others traditional phone calls. Lawyers and company executives joined, he said. When asked if Rupert Murdoch had joined the calls, Roscoe said that no potential witnesses had been part of the discussions with him.
“We were on the phone nonstop,” he said. “Emotions ran high.”
By Monday evening, they still hadn’t made progress, and both parties went to bed expecting a trial the next day. On Tuesday morning, the lawyers suited up and headed for the courtroom.
But outside the courtroom, Roscoe was making headway.
For the vacationing mediator, that required calling in from his hotel, a boat, even a bus, holding his phone in his winter coat for privacy.
Roscoe said that he quickly ascertained that Dominion’s monetary demand was not the only issue keeping the two apart. They were also divided by a dispute over the language that Fox would release acknowledging the court’s ruling that Fox had spread falsehoods about the company.
But over many calls, the sides got closer.
by Sarah Ellison, Josh Dawsey and Rosalind S. Helderman, Washington Post | Read more:
Image: Rachel Wisniewski/Washington Post
[ed. Oh to be a fly on the wall to those conversations.]
