Ask lawyers about Eric Davis, the judge overseeing the $1.6 billion defamation suit against Fox News by Dominion Voting Systems over its broadcasting of 2020 election-fraud claims, and the same word comes up over and over again – steady.
(Bloomberg) — Ask lawyers about Eric Davis, the judge overseeing the $1.6 billion defamation suit against Fox News by Dominion Voting Systems over its broadcasting of 2020 election-fraud claims, and the same word comes up over and over again – steady.
The Delaware Superior Court judge’s unflappable demeanor is likely to be put to the test on Tuesday, when he holds a hearing over whether he should decide the case without the trial scheduled for April 17. Court filings by Dominion showing that Rupert Murdoch, Tucker Carlson and others questioned the network’s coverage have led some legal experts to suggest it could be the rare defamation case resulting in summary judgment against the defendant.
Davis could theoretically issue a judgment against Fox during Tuesday’s hearing, though other legal experts expect him to let a jury decide the case. Regardless of how the judge proceeds, lawyers that know him say the public attention won’t influence his approach.
“He’s a rock-steady judge who calls cases as he sees them without any preconceived agendas or notions,” said Wilmington lawyer Sid Liebesman. “He maintains a level playing field in the courtroom without a hint of drama. This case won’t get to him one bit.”
Dominion is suing Fox for airing unfounded claims by lawyer Sidney Powell and other allies of then-President Donald Trump that the Denver-based voting-machine maker participated in a broad conspiracy with Democrats and foreign governments to alter election results in favor of Joe Biden.
Fox contends that it was simply reporting newsworthy issues tied to a story of national importance and that its actions are protected by the First Amendment. The network is also asking Davis for summary judgment, arguing that allowing a jury to decide the case would have a chilling effect on journalism in the future.
Registered Democrat
“This unprecedented effort to punish the press for covering and commenting on the most newsworthy story of the day has no basis in law or fact,” Fox’s lawyers said in court filings.
“Fox seeks a First Amendment license to knowingly spread lies,” Dominion’s lawyers said in court filings. “Fox would have this court create an absolute legal immunity for knowingly spreading false allegations” so long as the claims are newsworthy, they added.
Given the political overtones of Dominion’s defamation case, Davis will be closely scrutinized by political pundits from both sides of the aisle. He’s a registered Democrat, but that’s hardly unusual in a deep-blue state where the judges are appointed by the governor.
Davis last year rejected Fox’s bid to have Dominion’s case dismissed, concluding the company had advanced sufficient evidence to back up its claims that the network either knew the election-fraud allegations were false or recklessly disregarded the possibility.
In recent weeks, the case has attracted renewed attention as Dominion has laid out a treasure trove of texts, emails and pre-trial depositions showing Murdoch and other leading Fox figures never believed Trump’s fraud allegations but sat on their hands while Powell and other guests repeatedly touted them to the network’s prime-time viewers.
The content of those communications have led some legal experts to predict Dominion will prevail in its quest for summary judgment. Harvard Law School School Professor Laurence Tribe, a frequent Trump critic, said he expected a “landmark” victory for the company.
“This is one of the first defamation cases in which it is possible to rule for the plaintiff on summary judgment,” Tribe told the Guardian last month. “This is not a request to go to trial. There is no genuinely disputed fact. The defendants were deliberately lying in a manner that was per se libelous and they clearly knew it.”
But Charles Elson, a lawyer and retired University of Delaware professor, said it was extremely unlikely that Davis would decide the case on summary judgment.
“This case has been going on for about two years and the judge has had lots of opportunities to make a case-decisive ruling,” Elson said. “The chances he’s going to take it away from a jury three weeks before trial are pretty slim.”
Ex-Skadden Partner
Davis is no stranger to high-profile litigation. A former Delaware partner at top New York law firm Skadden, Arps, Slate, Meagher & Flom LLP, he spent 10 years as a lawyer battling over bankruptcy and business-law disputes. He left Skadden for the Delaware bench in 2010, spending two years handling misdemeanor cases and traffic violations before moving to the Superior Court. He’s now part of the court’s five-member panel that oversees complex commercial litigation.
“He’s got the right kind of experience to handle those tougher cases,” said Tony Clark, an ex-Skadden partner who mentored Davis. “Eric is a very even-keeled person,” Clark added. “He’s not going to lose his temper on the bench and I think many people would describe him as very steady and solid.”
In a hearing earlier this month, the judge said he’d been getting questions about whether he will question potential jurors in the Dominion about their political leanings as part of the selection process.
“I don’t care who they voted for,” Davis said, according to a hearing transcript. “That’s not an issue in this case. The issue in this case is whether Fox Corp. and Fox News defamed Dominion and caused Dominion damages.”
Though the politics of the Dominion case has resulted in plenty of incendiary rhetoric, Davis has taken pains to keep that out of his courtroom. He apologized in February to lawyers for both sides for sending an email that could have construed as snarky, according to a hearing transcript.
“If I’m upset, I’ll let you know it. I won’t do it in a subtle, sarcastic way,” the judge said.
The case is Dominion Voting Systems v. Fox News, N21C-03-257 EMD, Delaware Superior Court (Wilmington)
–With assistance from Erik Larson.
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