Transcript From The Pre-Trial Conference

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
US DOMINION, INC., DOMINION :

VOTING SYSTEMS, INC., and :
DOMINION VOTING SYSTEMS :
CORPORATIONS, :
:
Plaintiffs, :
: C.A. No.
v. : N21C-03-257 EMD
:
FOX NEWS NETWORK, LLC and FOX :
CORPORATION, :
:
Defendants. :
BEFORE: HONORABLE ERIC M. DAVIS, J.

and jury
PRETRIAL CONFERENCE TRANSCRIPT

APRIL 11, 2023
DOMENIC M. VERECHIA, RPR

SUPERIOR COURT OFFICIAL REPORTERS
500 N. King Street, Suite 2609, 2nd Floor
Wilmington, Delaware 19801-3725
(302) 255-0710
APPEARANCES:
BRIAN E. FARNAN, ESQ.

MICHAEL J. FARNAN, ESQ.
Farnan LLP
and
RODNEY SMOLLA, ESQ.
JUSTIN A. NELSON, ESQ.
JONATHAN J. ROSS, ESQ.
KATIE SAMMONS, ESQ.
LARANDA WALKER, ESQ.
ELIZABETH HADAWAY, ESQ.
FLORENCE CHEN, ESQ.
KATE FARLEY, ESQ.
STEPHEN SHACKELFORD, JR., ESQ.
MARK HATCH-MILLER, ESQ.
ZACH SAVAGE, ESQ.
EVE LEVIN, ESQ.
CHRISTINA M. DIECKMANN, ESQ.
EDGAR SARGENT, ESQ.
KATHERINE PEASLEE, ESQ.
Susman Godfrey LLP
and
MEGAN L. MEIER, ESQ.
DUSTIN A. PUSCH, ESQ.
DANIEL P. WATKINS, ESQ.
Clare Locke LLP
for the Plaintiffs US Dominion, Inc.,
Dominion Voting Systems, Inc.
APPEARANCES CONTINUED:
BLAKE ROHRBACHER, ESQ.

KATHARINE L. MOWERY, ESQ.
Richards Layton & Finger, P.A.
and
DAN K. WEBB, ESQ.
MATTHEW R. CARTER, ESQ.
Winston & Strawn LLP
and
PAUL D. CLEMENT, ESQ.
ERIN E. MURPHY, ESQ.
Clement & Murphy PLLC
and
SCOTT A. KELLER, ESQ.
Lehotsky Keller LLP
and
ERIC M. GEORGE, ESQ.
KATHERINE A. PETTI, ESQ.
Ellis George Cipollone O'Brien Annaguey LLP
for the Defendants Fox News Network, LLC
and Fox Corporation
1 APRIL 11, 2023
Courtroom No. 7E
2 9:30 a.m.
3 PRESENT:
4 As noted.
5 - - - - -
6 THE COURT: So the first piece of good news I
7 have, there's a 81 person panel. I sent a letter out
8 initially telling them that the trial would last six
9 weeks and then they would have to be available through
10 the 26th. Now some people get so nervous when they read
11 those things thinking it was an Order of the Court. An
12 average citizen once every two years, maybe, when they
13 see something come from the Court, they get stressed.
14 So some will miss that, but that's still a lot of jurors
15 to get 36. If you know how we do it, it's 12 jurors,
16 six strikes each side is 24, and then six alternatives
17 is six strikes, an additional 12, 12 plus 24 is 36.
18 Even I can get that one. And so that's how you come up
19 with that number. So with that, it would probably take
20 us two days to go through that many jurors, to be
21 straightforward. I've pretty sure that we'll get 36 out
22 of that number. So that's very comforting. You know,
23 judges are -- and the -- just some -- there seems to be

1 some break down recently. I know things got filed
2 yesterday and I only received courtesy copies today. If
3 you're filing something, you should be PDFing it to me
4 right away. Because I came in -- I was away and I came
5 in yesterday and I was here late, and I saw a couple of
6 things that were filed by Dominion and somebody filed --
7 Fox filed something at 10:39 p.m. You really shouldn't
8 believe that you're going to be considered the next
9 morning if you file something at 10:49. I mean,
10 that's -- I don't know if people are telling you this,
11 that's not going to be seen. I mean, the chance I'm
12 going to read it when we come on the bench with the jury
13 at 9:30 is very low.
14 Some other thing, just quick so that maybe it
15 will cut down some things. I don't do prefatory
16 statements to the jury. I know that's what Dominion --
17 I'm concerned that that would be commenting on the
18 evidence and I can't do that. So I wouldn't say to the
19 jury, I've determined the following things in summary
20 judgment, because that would provide too much as if I'm,
21 you know, give too much, maybe one side will be
22 prejudiced for that, for me saying that. I do like the
23 preliminary instructions you gave me in the joint. I

1 think those were very helpful and I would give those
2 before opening statements so that people would have a
3 feel for that. But the reason I've never done a nature
4 of the case or whatever is, I've always been very
5 uncomfortable with two things: One, it makes it looks
6 like the judge is commenting on facts and that's not
7 what I'm supposed to do. Two, believe it or not, by the
8 time you get to the end of the case, what you thought
9 the nature of the case was in the beginning may have
10 changed. Right? And then it's almost like the jury is
11 saying to themselves what is going on here, right? And
12 they may be a little confused. So I've stayed away from
13 nature of the case from the onset because of those two
14 reasons. So I'm not going to do -- I appreciate what
15 was filed. I did read that because I was in the office.
16 And I've read the Fox objections in it, too. But I
17 don't do those because of the concerns I've just told
18 you of.
19 I will tell you another thing. If you in your
20 opening statement or in your closing argument make an
21 argument contrary to what I ruled on in summary
22 judgment, I will stop you and I will tell the jury that
23 what you just said is incorrect and that you're to

1 disregard what the lawyer said, and that the Court has
2 found the following. And I don't want to do that, but I
3 noticed the filing that was filed late last night where
4 they are making arguments that are contrary to ruling on
5 the summary judgment. Be careful with that. I don't
6 like to do that. I really don't like to talk to the
7 jury about what a lawyer says, but if somebody were to
8 say something, say, for instance, on publication, or on
9 falsity, or on neutral report, or on opinion privilege,
10 I will stop you and I will instruct the jury to
11 disregard what you said because it's contrary to the
12 determinations I've previously made in this court. You
13 can't do that. You all know this. You can't argue
14 facts not in evidence. And you can't say things in
15 opening statements or in closing arguments that are
16 contrary to the rulings of the Court.
17 Why did you ask me to rule on summary judgment
18 if you're going to say something different to the jury?
19 So be very careful with that.
20 You'll find I really don't like -- I always try
21 to make sure we take things to sidebar, but on that one,
22 you know, we've put a lot of effort into that. I don't
23 know, that's a pretty fast turn around for that big of a

1 decision, and I was thinking that some of the things
2 that are being said, I'm like, why did I even take the
3 time to do that. So be very careful in your opening
4 statements about two different things: One, something
5 that has already been determined in this case. And two,
6 that's something you can't prove. Because people will
7 ask me sometimes, like I want to use this exhibit in my
8 opening statement. And my answer is you can use the
9 exhibit in your opening statement, I'm not going to
10 preclude you from doing it, but you better get it into
11 evidence because it's going to create two situations.
12 You're going to create a mistrial because you just made
13 an opening statement about a fact not in evidence that
14 never got into evidence. Or I have to instruct the jury
15 do you remember back when this attorney did their
16 opening statement and they showed you this document and
17 they said it was going to show this? You are to
18 disregard that. That's not evidence in the case. And
19 think how that comes across to a jury right before they
20 go into deliberations. Right? So it's not a good
21 thing. So I don't prevent you from doing anything in
22 opening statements. But if you do something, like I
23 said, if you were to argue, for instance, I saw

1 something about publication, guys, I had trouble
2 grappling with this at first. I don't want to make
3 anybody nervous about this because it may make you think
4 like I don't know what I'm doing. But I had trouble
5 with the difference between newspaper publication and
6 television publication, but it started to make very much
7 more sense to me as to why they're the same in a news
8 situation. The quotation, for instance, if you have a
9 front page article -- I'll make up a newspaper -- the
10 Wilmington Daily Journal. Right? And it's a front page
11 news story. You can't put quotations marks around it
12 saying it's not a Wilmington News Journal article, a
13 Daily Journal article. You're putting it in the news
14 section and you're publishing it to third parties, which
15 is the public. So you can't just say, Hi, I'm Eric
16 Davis and I'm going to put on this person who I know is
17 going to say XYZ, and then say, I have no responsibility
18 over this. You provide the forum. Now, if it's an
19 opinion -- right -- we have the New York Statute where
20 they say -- if you say, The opinions expressed by the
21 following person are not the opinions of Eric Davis, and
22 that's like the Op Ed section in the New York Times or
23 the letter to editor section, that's a different thing.

1 But, you know, publication is different, and that's
2 where I grapple with it. And I think the parties did a
3 great job in oral argument on that. But be careful on
4 those things if I've already ruled something.
5 So in the arguing that, again, Eric Davis
6 brings on Sidney Powell knowing that Sidney Powell was
7 saying something that's incorrect, and say I don't have
8 any responsibility over that, I just put Sidney Powell
9 on, no. Otherwise, Sidney Powell is not in front of
10 anybody. Right? I have to put her on my news station
11 to make her a party. I mean, let's be straightforward
12 about this stuff. I mean, that's what it is. And the
13 protection is the actual malice. The protection is the
14 actual malice. That's the difference between -- I keep
15 hearing the First Amendment. Hate speech is not a First
16 Amendment. It's not protected. I tell this to people
17 all the time. Why do you think I have a terroristic
18 threatening crime or an aggravated menacing crime.
19 Right? You cannot walk up to somebody and say, I'm
20 going to kill you. That is not an First Amendment
21 right. That is not protected by the First Amendment.
22 There's a Statute. Well, that's terroristic
23 threatening. And if you walk up to somebody with a Tiki

1 torch and say, I'm going to kill you, that's called
2 aggravated menacing. That's not protected in the First
3 Amendment. Defamation. That's when they come up with,
4 in Times versus Sullivan, or Sullivan versus the New
5 York Times, is that it's not protected if it's actual
6 malice. So let's be careful about throwing those terms
7 around, and careful with the jury in throwing those
8 terms around because I don't want to have to instruct
9 them about those things.
10 So let's move -- I mean, it's different if a
11 witness says, I thought it was newsworthy, that's
12 something different, that's their opinion, but not --
13 there's a difference between newsworthy and such and
14 such and we've already ruled on that. So just be
15 careful of that.
16 On the joint proposed instructions, I was good
17 with all except juror conduct seemed odd as a prefatory
18 instruction because it talks -- I usually tell them, and
19 I do it pretty much every time we take a break, that
20 they're not to discuss this case among themselves or any
21 third party; that the first time they'll able to discuss
22 this case is in final deliberations after all evidence
23 is presented and I've instructed you as to the law.

1 Until that time, you cannot talk about this case. And I
2 usually use the example, you know, if somebody were to
3 get on the stand and confess to the Lindbergh baby
4 killing, and then I have to take a recess, you're going
5 to fight human nature. It's human nature for you to
6 want to walk out and start talking about. Right?
7 Because it's such a big bombshell, it's natural to want
8 to talk about it. So I try to tell them you can't. You
9 cannot do it. You can't be Junior Dick Tracy. It's
10 very easy. They understand it. Right? If you hear --
11 I always say, If there's a car accident case that
12 happened at King and Pennsylvania Avenue and you
13 normally don't go King and Pennsylvania, don't go by
14 King and Pennsylvania Avenue on your way home to figure
15 out what it looks like. You have to keep yourself to
16 what's presented in the courtroom. No Junior Dick
17 Tracy. No use of the Internet, all those types of
18 things. I'll be doing that. I don't usually do it as a
19 prefatory. I just do it as I introduce them to the
20 thing. But I actually like the prefatory jury
21 instructions you gave me because I think it's good so
22 that they know what, you know, what is fact witnesses,
23 the argument comes from lawyers, note taking, I'll

1 probably use the Delaware note taking. You shouldn't
2 fight over that one. I use my own jury instruction for
3 the note taking. It's pretty straightforward. I keep
4 it in my bench book. I usually do the deposition one
5 the first time we do a deposition. So the first time we
6 show a nonlive person, I give the deposition instruction
7 so that they understand the difference between the two.
8 Okay?
9 Let's go to, is there anything -- I've kind of
10 been just rambling on, but is there anything the parties
11 have before I move to the motions in limine?
12 MR. WEBB: Your Honor, just one thing. I am
13 giving the opening statement, and I am not going to get
14 up there and have you tell me I did it wrong. That's
15 why I filed the offer of proof. And so I don't want to
16 argue it now, but I just wanted you to know I wasn't
17 trying to do something you wouldn't like. I have never
18 done that in my life, ever, and I wasn't going to do it
19 here. The only thing I set forth in that offer of proof
20 is set forth under actual malice.
21 THE COURT: I saw it.
22 MR. WEBB: So I don't want to argue it now. I
23 just wanted you to know why I did it, and we'll talk
1 about it later when you have time and want to talk about
2 it.
3 THE COURT: Okay.
4 MR. WEBB: Thank you.
5 THE COURT: Well, you're not going to tell a
6 jury that Courts have found, are you?
7 MR. WEBB: I'm not going to say that, but, Your
8 Honor --
9 THE COURT: One of the things in that filing
10 says, Courts have made rulings. You're not going to
11 tell a jury that. You can't tell a jury what other
12 Courts have ruled on things.
13 MR. WEBB: I didn't think that was in there,
14 Your Honor. No, I'm not going to say whatever the
15 Courts have ruled on.
16 THE COURT: Well, maybe that was your argument.
17 Maybe you're trying to support the statement, but you
18 have to be careful. I mean, it's going to be -- I would
19 use the roadway theory. Right? When you go in front of
20 the jury and say, I'm Eric Davis and I'm the attorney
21 for whoever, and what's going to happen, this is going
22 to be an 'X' amount of days trial, I plan to call 15
23 witnesses, I expect them to testify as follows, because

1 you never know what they're going to do, first you're
2 going to hear from Mr. Jones. Mr. Jones is the chairman
3 of the company. And I expect he will testify as
4 follows. Right? That's how I always did it. That's
5 the safest way to do it, and it gave the jury an idea of
6 what my case was about and I went from there. But you
7 guys have probably more experience than I.
8 MR. WEBB: No. Actually, that's the way I do
9 it, too.
10 THE COURT: That's the roadmap. It's the best.
11 MR. WEBB: I agree. Thank you.
12 THE COURT: I had a case, believe it or not, we
13 had a full day of opening statements, full day,
14 picked -- for six hours, almost, they did opening
15 statements. The jury sent us a note. We don't know
16 what the case is about. So I then had to formulate an
17 instruction for the jury that everybody agreed on, the
18 attorneys, to tell them what the case was about. And I
19 was sitting there going, what are you guys doing. I was
20 just telling you, I'm going to call 12 witnesses. We
21 think they're going to testify as follows, and in the
22 end, we believe you'll find that Fox is not liable.
23 Right? And then you sit down. That worked for me.
1 Whatever you do -- I'm saying this to both sides because
2 I saw -- I wasn't trying to pick on one. You kind of
3 highlighted it, so it's yours.
4 MR. WEBB: I did.
5 THE COURT: My point was if either of you argue
6 something contrary to what I've ruled, then I have to
7 tell the jury, No, that is not publication, or, No, that
8 is not -- that issue is not in this case any more.
9 Right?
10 So, for instance, nobody should say in their
11 opening statements anything about the algorithms being
12 true. We know they're not true. There's been no
13 evidence presented to this Court. And I think the
14 people misquoted -- by the way, people who think that
15 it's crystal clear is a message to Fox, they're wrong.
16 That's not what I was doing. What I wanted people to be
17 sure is that, I have a duty in Rule 56 to make sure
18 there's no genuine issue as to a material fact. And it
19 was crystal clear that there was no genuine issue, no
20 experts testified that the allegations are true, there's
21 no empirical evidence that the allegations are true.
22 It's crystal clear to this Court that the allegations
23 regarding Dominion's algorithms being controlled by

1 Smartmatic, there's no evidence to that. That's all I
2 was saying. I wasn't trying to send some message to
3 America or anything. I was using the Rule 56. And I
4 want everyone from me, to whoever reviews this thing to
5 understand, there was no evidence of those things.
6 MR. WEBB: I should not put myself in a
7 position of having you interrupt me and tell me I have
8 just said something that's wrong under your -- that's
9 why I filed the offer of proof so we could talk about it
10 when you're available.
11 THE COURT: All right.
13 THE COURT: But I won't -- today won't be the
14 day because I just saw it.
15 MR. WEBB: I know. Thank you.
16 THE COURT: So let's go -- I don't know who is
17 going to argue.
18 I'm sorry. Do you have something?
19 MR. NELSON: No, Your Honor.
20 THE COURT: Again, there's a lot of things
21 going on, which tends to happen in pretrial because the
22 judge is trying to give you an idea what you can do and
23 what you can't do.

1 And by the way, just so everybody knows, that's
2 how I like it. I don't know if anybody has ever told
3 you this. If you think something is -- if you don't
4 want to be interrupted or if you want to ask a question,
5 or you want to use an exhibit, and you're worried that
6 it's somehow going to make me unhappy or something, the
7 best way to do it is to say, Judge, can we approach
8 sidebar, and we'll put the head phones on, I want to do
9 this. And that's the best way to do it because then,
10 you know, I can say, I don't think that's a good idea,
11 or yes. A good example is, let's say I rule something
12 out. Right? And have you ever had the witness who
13 hears the judge rules something out and then thinks that
14 they can testify the opposite way? That happens.
15 Right? I'm not going to let any evidence in about the
16 car stop. And they'll say, I was never in a car. Then
17 the other side says, Judge, can I ask questions about
18 the car now? And the answer is yes, now that the
19 witness has testified falsely, you can talk all about
20 it. I know I ruled it out in the motion to suppress,
21 but back in, have fun. But that's a great -- I'd rather
22 you do that then, like you say, get up there and start
23 talking and all of a sudden, Judge, can we go to

1 sidebar, and the jury is wondering what's going on. But
2 that's the best way with me is, I'm not really sure
3 about this. He talked about it on the witness stand or
4 she talked about it on the witness stand. Judge Davis,
5 can we just go over there, and then you'll get to go at
6 it. Have fun with it, you know, that type of stuff.
7 Going to the motions in limine, I'm not sure
8 how many of these are still active. By the way, the
9 pretrial is pretty much gone. Some of the stuff doesn't
10 make sense because I've ruled on it. It was filed on
11 the 30th and there's been no update and I ruled on the
12 31st. Unless there's been an update that I don't know
13 about, I actually had people search for it yesterday,
14 but there's a lot in the pretrial that's no longer at
15 issue.
16 But obviously, I don't know why you would
17 contest motion in limine No. One from Dominion. This is
18 a straightforward law of the case is law of the case.
19 What's been ruled on the case has been ruled on the case
20 and you can't argue opposite of that. Now, that doesn't
21 mean nuance, like, for instance, I'll just keep using
22 myself so people don't make it sound like a witness
23 testified -- if Eric Davis were to say I put so and so

1 on because I thought it was newsworthy, that's different
2 than a lawyer arguing newsworthiness. Right? Because
3 that's a legal -- but that's not going to be controlled
4 by this motion in limine. That's what a witness says
5 and you can test them for their fact background and what
6 they really knew and whether they have a strong
7 foundation for making that argument. But the law of the
8 case, if I've ruled on something, it doesn't change. I
9 think there was a argument later of the news reporter
10 privilege, and we're not rearguing that. The Special
11 Master has ruled on things that are protected by the
12 statutory right of a reporter. I've upheld those, and
13 those are -- that argument law of the case is not going
14 to change. You're not going to delve into it with a
15 witness. But it doesn't mean that if there's sort of a
16 proprietary argument that doesn't fall into that
17 statutory protection of revealing a confidential source,
18 like, for instance -- again, I'll Eric Davis, a
19 reporter, is up on the stand and you've already asked
20 this question in a deposition and I've ruled that it's
21 protected by that statute, you can't then delve into it
22 with that witness because I've already ruled on it.
23 Let's not waste time. They've filed an affidavit saying

1 it would reveal their confidential sources. I have
2 never dealt with that statute before. The folks in New
3 York and Delaware, it seems like a sound thing to have,
4 so we're not going to redo that. But even on the -- you
5 know, for instance, if it's -- what one party may think
6 is law of the case may not be what another party does.
7 But if I've ruled on something, and the Special Master
8 has ruled on something and I've upheld it, we're not
9 rearguing it and we're not going to get lay opinion
10 witnesses about, for instance, the first one is, the
11 newsworthiness of a story is a fact in deciding -- I've
12 done it as an element of the case as a privilege,
13 newsworthy or neutral report privilege, depending on how
14 you want to call it, but that doesn't mean that if a
15 witness says, Look, I brought the person on because it's
16 newsworthy; Objection, judge ruled on this; no, that's a
17 person's opinion as to why they brought somebody on.
18 That's not saying, I felt protected by bringing this
19 person on by the Second Circuit's ruling in, you know,
20 Edward, saying that I could do neutral reporting.
21 That's a whole different thing.
22 MR. WEBB: Your Honor, on that point, could I
23 also just -- because it relates to the first point I've

1 made, I am not opposing anything you've already ruled
2 on, I will not second guess ever once that some of these
3 issues that are in this motion in limine do relate to
4 actual malice. That's the only reason I have some
5 things to say about that, that's all.
6 THE COURT: We'll get into that. That's the
7 point. There's some other things. For instance, I
8 wouldn't allow in, because it's not relevant to this
9 case because it doesn't relate to 20 statements, the --
10 some of the issues with the voting machines, or some of
11 the Dominion technical issues, because that may go to
12 damages. It may show why a person doesn't want to use a
13 particular machine because it's not only that people
14 think that it was made in Venezuela, but we know it
15 broke down and I don't want to use it. So that's true.
16 That's not one of the statements, but it does go to
17 damages. So, I mean, you would be allowed to do that.
18 MR. WEBB: Okay. I just -- the only points I
19 was going to make on motion in limine one, not to argue
20 against law of the case, but to just make the point that
21 some of those issues are relevant to malice, which is
22 actually in the offer of proof, so I don't need to argue
23 it twice. Okay. I'll just leave it alone.

1 THE COURT: I would stay away from the word
2 "newsworthy" in opening statements because that sounds
3 like a lawyer's legal statement. If you're going to
4 say, The witnesses are going to get up and testify that
5 the reason they brought people in was because it was a
6 newsworthy story, that's something different. But don't
7 say, We have a protection from actual malice because
8 it's newsworthy, because New York State and I have said
9 that's not true, so...
10 MR. WEBB: It's the witnesses that have said
11 it, Your Honor. That's how I'm going to use it, just so
12 you know. I'm not going to -- anyway --
13 THE COURT: I know. And by the way, I'm sure
14 you will at sometime disagree with me because you're
15 going to take this on appeal, so I'm sure some of my
16 rulings will be disagreed with. You said you'd never
17 disagree with me.
18 MR. WEBB: Well, not at this trial court level
19 as a lawyer giving an opening statement, I'm going to
20 follow your rulings.
21 THE COURT: And so, for instance, the Host V
22 Guests defamation statement, that's publication, that's
23 been ruled on. You can -- like I said, you can talk
1 about why I brought the person on, but I went and ruled
2 on each -- I mean, that's the whole appendix, people. I
3 went through that thing by thing. So, all right.
4 MR. WEBB: But on that issue, Your Honor, just
5 I wanted to -- the hosts are going to testify that they
6 did not make the allegation, Sidney Powell did, only
7 because they're going to explain their state of mind
8 because they didn't do this with actual malice.
9 THE COURT: And if you argue -- let me get it
10 straight. If you argue that that makes a difference,
11 then I will turn to the jury and I will say, Mr. Webb is
12 incorrect. He cannot make that legal argument. I have
13 ruled that that is publication. They may think that
14 way. That's what a fact witness may think. But once
15 you make that argument, that's when I turn to the jury
16 and I say, What Mr. Webb just said is wrong. That is
17 not what's true in this case. The fact that Mr. Dobbs
18 brought somebody on does not absolve the publisher.
19 That's what you have to be careful with.
20 MR. WEBB: And on that issue, because I'm not
21 going to step over this line -- on that issue --
22 THE COURT: Well, it looks like you're trying,
23 but --
1 MR. WEBB: No, actually I'm not, Your Honor,
2 and that's why I filed the offer of proof, and I'm not
3 going to do that on that issue. It's going to be the
4 fact that the -- it's only on actual malice that I'm
5 going to point out that hosts made some decisions not to
6 repeat the allegations because they thought -- they
7 didn't know for sure whether it was true or false, and,
8 therefore, they wanted to just wait and see what
9 happened with these Court --
10 THE COURT: Well, I'd love that cross.
11 MR. WEBB: Okay. But that --
12 THE COURT: I'd love that cross. What do you
13 mean? You put a person on, you didn't know whether it's
14 true or false. You just put people on that say
15 incendiary things; they throw bombs like that and you
16 just let them go and talk? Did you follow up and find
17 out later whether it was true or false? I'm sure that
18 Dominion would love that statement.
19 MR. WEBB: Well, Your Honor, the truth is,
20 they're going to say they didn't know it was false; they
21 didn't know for sure because they're waiting for the
22 evidence to get presented. And that goes to their good
23 faith and lack of malice. That's all. I'm not going to

1 present any evidence or make any arguments that don't
2 relate to actual malice. That's the only issue really
3 left in the case, plus damages.
4 THE COURT: And Fox Corporation.
5 MR. WEBB: And Fox Corporation, I agree with
6 that.
7 THE COURT: It's hard in a summary judgment,
8 but that's a tough issue, I think, in this case, but
9 we'll have to see how it comes out.
10 You were going to rise?
11 MR. NELSON: Thank you, Your Honor.
12 THE COURT: I'm granting this motion in limine,
13 just so you know.
14 MR. NELSON: Thank you, Your Honor. I
15 appreciate it. Justin Nelson.
16 I don't think I have much to say on the motion
17 as to the motion, but I do have a fair amount to say
18 about what Mr. Webb commented on, and certainly his
19 offer of proof. It seems like they're interrelated
20 here. I guess where we come from is, I think what
21 Mr. Webb just said, which is this trial is, with respect
22 to Fox News, about actual malice and damages. That's
23 the trial.
1 THE COURT: Right.
2 MR. NELSON: The Fox Corporation, you add on
3 the publication.
4 THE COURT: The publication.
5 MR. NELSON: And so when a witness -- let's
6 just take what Mr. Webb said -- that a witness is going
7 to come up and testify saying, Well, that person came on
8 my show because I thought it was newsworthy.
9 THE COURT: Right.
10 MR. NELSON: That is entirely irrelevant under
11 the law and would only seek to prejudice the jury on
12 something Your Honor has already decided.
13 THE COURT: No, because that's not making a
14 legal -- they're not making a legal statement. They're
15 using a word that could be used many different ways. If
16 they were to -- if you were -- if the followup question
17 would be: Why is newsworthy important, and they say,
18 Well, I understand that if it's newsworthy, it's
19 privileged, then I'll have to turn to the jury and say,
20 You'll have to disregard what that witness said. I've
21 already ruled that privilege does not apply in this
22 situation.
23 But you can't stop a person from saying, I

1 thought it was newsworthy.
2 They're news reporters.
3 MR. NELSON: There are plenty of ways -- and
4 Fox has admitted there are plenty of ways, it's a non
5 sequitur. Of course, everything is newsworthy. That's
6 not the issue that the jury is going to decide.
7 THE COURT: Well, then that's what you have to
8 argue.
9 MR. NELSON: Well, the problem is, is that
10 they're going to make a summary judgment argument
11 through the guise of witness testimony just by saying
12 that it's newsworthy.
13 THE COURT: Okay. I'm just saying that it's --
14 I find it difficult to take a bunch of news reporters
15 and tell them not to use the word "news." I mean, this
16 is going to naturally flow. But, I mean, if it gets to
17 a point where I think it's getting to an issue that it's
18 trying to -- some party is trying to make it sound like
19 it's a legal principle, I'll instruct the jury as such.
20 MR. NELSON: How is newsworthiness a defense to
21 actual malice?
22 THE COURT: It's not a defense. It's a fact,
23 Counsel. I get the difference. He'll argue a defense.

1 If he were to ask that witness, Do you think it's a
2 defense, you would object, hopefully, because it's a
3 legal conclusion and they're not offered for that point,
4 and if they said, Yes, I would say, Strike that, and I
5 would then have to tell the jury the newsworthiness is
6 not a defense to defamation. Do you see the difference?
7 MR. NELSON: I do, and Mr. Webb is smart enough
8 not to ask a question that way. He will ask some
9 version of the question: Why did you put Ms. Powell on
10 your show?
11 And he wants the witness to be able to say,
12 Well, I thought that person was newsworthy.
13 And that answer is entirely irrelevant to the
14 issue.
15 THE COURT: But the jury doesn't know what
16 neutral report privilege is unless we make it an issue.
17 They're not going to know newsworthy makes it -- I mean,
18 you're going to be able to argue that the fact that
19 these statements, they're false, you'll be able to do
20 that. I mean, if anybody argues in their opening
21 statement or their closing something that is consistent
22 with my Opinion -- that's why I don't think you need a
23 judge to do nature of the case. You can stand up and

1 say, There are five elements to a defamation claim, but
2 you're only going to rule on two of them because the
3 other ones have already been determined to be not at
4 issue.
5 We do that all the time. Liability has been
6 conceded.
7 I know that this is big case, but we actually
8 use the same principles in smaller cases, and you'll be
9 able to say that. And you'll say, You heard witness
10 after witness say, but just because somebody is
11 newsworthy doesn't mean you can defame somebody.
12 I mean, I could have fun with this case.
13 MR. NELSON: Thank you, Your Honor. And that
14 was one of our questions, actually, in terms of what we
15 can --
16 THE COURT: Because, I mean -- okay. You guys
17 have done a lot of witnesses. I'm just saying just
18 because somebody says something doesn't mean that the
19 jury is going to believe them, one. And two, you get to
20 cross-examine them.
21 MR. NELSON: Thank you.
22 THE COURT: Because I can just bring in -- I
23 could in lots of points.

1 Did you bring Joe Biden on and ask him?
2 I mean, I could do lots of things. Isn't the
3 President Elect newsworthy? Did you have him come on?
4 Did you have his attorney --
5 I mean, there are lots of things you can do in
6 cross once that witness claims that it's newsworthy.
7 Okay? Well, I brought it up on the first day, isn't it
8 just as newsworthy to report people are out there saying
9 false things about somebody? It's just as newsworthy.
10 Why, Mr. So and So, didn't you do that?
11 I mean, I could just -- like I said, I could
12 have a lot of fun with this case if I had the
13 opportunity.
14 MR. NELSON: Thank you, Your Honor, and we're
15 looking forward to it.
16 THE COURT: Yes. But I'm granting your motion
17 in limine, so...
18 MR. WEBB: Your Honor, on that point, and I'm
19 not going to argue about it, but on that issue, they
20 actually -- on malice -- on malice, they're going to
21 present evidence that we published -- we published the
22 Dominion allegations because we had a profit motive to
23 restore ratings. I get to prove that that's not our

1 motive. That was not our motive. And I have a right to
2 do that.
3 Well, Counsel just acted as if -- never mind.
4 I don't want to take up your time. Whenever you tell me
5 to go to the -- my offer of proof so I get directions
6 from you so I don't make a mistake, I'd like to do it,
7 and I'm not going to argue it. You've granted the
8 motion, and I'm moving on.
9 THE COURT: Let's go to No. Two.
11 And I'm moving off No. One. I did have a
12 question about something what Your Honor just stated --
13 THE COURT: I'm granting motion in limine two.
14 So what did you -- I'm sorry?
15 MR. NELSON: Your Honor, we just -- not
16 directly relevant to motion in limine one about this
17 colloquy between yourself and Mr. Webb and what he just
18 stated, our question -- and I think we just got
19 clarity -- we want to make sure what we can say in
20 opening statements. And I think what Your Honor --
21 THE COURT: I wouldn't say the judge. I would
22 say it's not an issue. I mean, we don't say, The judge
23 determined liability is no longer an issue, because then

1 you're trying to -- but, I mean, think about how you're
2 arguing it. If you have a question, you can ask me
3 before you argue it.
5 THE COURT: The reason I'm not going to say it
6 is I don't want to give too much import to the jury. I
7 want you guys to have a fair opportunity to present your
8 case to the jury. I'm impartial. I mean, despite
9 what -- I'm impartial. I don't have any outcome with
10 this. I'm a judge and I'm supposed to make sure that
11 you make a fair presentation to the jury.
12 And so if, for instance, if somebody were to
13 say in an opening statement something had been ruled
14 upon in an opposite way, it would be not a fair
15 presentation to the jury, and I would have to correct
16 that. And that's how we'll do it. If it's a fair
17 presentation to the jury, and it's true, go ahead.
19 And just as an example, may we say it is
20 undisputed that the statements are false, for example?
21 THE COURT: Yes. It's undisputed. It's
22 crystal clear.
23 MR. NELSON: Yes. Okay.

1 THE COURT: I never do that, by the way, just
2 so you know. I've never put all caps unless I'm yelling
3 at somebody, and I wasn't yelling at anybody. But I did
4 that because I just don't want anybody -- I mean, I had
5 law clerks doing different things in this case that came
6 to the same conclusions without anything from me that
7 there was no contesting those four categories because
8 there's no evidence contesting those four categories.
9 MR. NELSON: And just so we understand the
10 line, may we say, The Court has found that, or that, It
11 is undisputed that.
12 THE COURT: "It will not be necessary for you
13 to make a determination as to whether these statements
14 are true or false. They have been determined to be
15 false."
17 THE COURT: There you go. They're the exact
18 words. You can get it from the court reporter later.
19 And by the way, you'll get a bill, too.
20 I always found direct really easy and cross
21 really fun, but that's just me. But I was a weird
22 person, so...
23 Obviously, you grant motion No. Two because

1 I've made a ruling on that.
2 MR. CARTER: Your Honor --
3 THE COURT: What?
4 THE COURT: Except for the voting machine part
5 that I already talked about. Right?
6 MR. CARTER: Okay. Thank you.
7 THE COURT: You can use -- like I said, but it
8 only goes to damages, and if we need to limit it when
9 it's brought up, we'll tell the jury that these
10 discussions about the -- I'm trying to think of the
11 right word -- about the unreliability of the machine
12 will only go to the damage portion. It has nothing to
13 do with the truth or falsity of the statement. But,
14 yes, I think it goes to damages so I'd let you do that.
15 MR. CARTER: The question I have on that one as
16 well, Your Honor, is certain facts in evidence could
17 also go to the state -- again, malice and the state of
18 mind of the host about --
19 THE COURT: Right. So they'll object. We'll
20 go to sidebar and you'll say, I'm not offering it for
21 that. I'm offering it for this.
22 And I'll say, Great.
23 So I'll tell the jury, This is not being

1 offered for that.
2 That's called limiting certain -- Here's the
3 thing: They listen. I have great juries. You guys
4 should come to my Bifferato in this court where we
5 select a jury from downstairs. We bring them up, we do
6 a mini trial and we allow the lawyers to see them
7 deliberate. You'd be shocked at how good they are.
8 They're great.
9 MR. CARTER: Thank you.
10 THE COURT: Legitimacy of the 2020 Presidential
11 Election.
12 I'm going to have to rule on that as it comes
13 up. It's not -- I mean, just like I was talking about
14 the January 6th, and we'll get to that -- what people --
15 whether people think the overall election is legitimate
16 or illegitimate is not relevant to this case. What's
17 relevant to this case is whether Fox defamed Dominion.
18 So, again, if somebody were to go off on the
19 legitimacy of the election because they felt one city's
20 counters were bad counters of the paper ballots, we'd
21 probably stop that person from testifying. And I would
22 say to the jury, We're not ruling on the legitimacy or
23 illegitimacy of the 2020 election. We're here solely

1 for the purpose of determining whether Fox is liable for
2 defamation, or whatever -- however I will do it.
3 So, again, I think there was some cross on this
4 on the Response to -- Fox wants to put on the notion the
5 reason we brought these people on is it was being
6 questioned as to whether the election was legitimate.
7 But Dominion is saying, well, we're not going to talk
8 about it's still questionable that the 2020 -- I mean, I
9 don't know what people were thinking on January sixth,
10 but that's not how the system works. Once the Safe
11 Harbor Provision is done and the Electors have been
12 chosen and they total the election, there's not a
13 question on that. I wish people would take a history
14 course, or a civics course, it used to be.
15 But it's different. I mean, if a person says,
16 The reason I brought Sidney Powell on is because the
17 President was contending that the election was not
18 legitimate.
19 Objection, he's going into the legitimacy of
20 the 2020 election.
21 No, it's the timeframe.
22 If the witness says, And I still think it, one,
23 you cross-examine him, but I could say, Disregard. The

1 question is not whether -- you're not here to rule on
2 the election. You're here to determine whether these 20
3 statements are defamatory and whether they caused
4 damage. And "defamatory" means they have to be
5 demonstrated with actual malice.
6 All right. I'm sorry. I may have gotten
7 ahead. Motion in limine three is also the one that
8 we're not -- we're excluding evidence regarding the
9 false statements. If you want to use economic damage or
10 the reason why we were worried about this in the first
11 instance is -- and again, you can cross-examine on this,
12 but The reason I brought this person on was because of
13 these problems.
14 Okay. Well, why did you bring this person on?
15 Why are they a specialist in this? Do they build voting
16 machines? Are they computer analysts?
17 No, they're an attorney.
18 Okay. Did you follow up and find out whether
19 they have any expertise on this? Have they ever used a
20 Dominion voting machine?
21 I mean, there's so much in that that it may
22 sound great on direct, but I wouldn't want to be on
23 cross on this. I mean, you know, you're going to have

1 somebody up there who supposedly some real expert on
2 some issues that their -- you know, their name is on a
3 show, and then you're going to show, Well, did you do
4 this? Did you do this? Did you do this?
5 And the answer is, No. No. No.
6 So you just put somebody on? You don't know
7 whether it's true, and you put somebody on. Did you
8 bring in an election machine specialist on to your show
9 to do this?
10 No.
11 Why not?
12 That's a good open-ended one. I'd love to hear
13 that.
14 But, again, I mean, just because they bring it
15 up on direct doesn't mean that you're not going to be
16 able to examine it on cross-examination.
17 MR. NELSON: Your Honor, may I be heard for
18 clarification on this one?
19 THE COURT: Sure.
20 MR. NELSON: It seems to me there's a real
21 difference between internal communications that would
22 not have been known, and external communications, what's
23 in the public record.

1 And with respect to it can't be relevant to any
2 issue about what Dominion was saying internally doesn't
3 go even to damages.
4 THE COURT: It's not relevant. What Dominion
5 thought is irrelevant. It's not part of this case.
6 But, I mean, What do you think Dominion was
7 thinking? Who cares? What Fox was thinking, you guys
8 have just made a huge argument about what you want to
9 say in opening statements and what the guests were
10 thinking. How would they know what the Dominion people
11 were thinking?
12 MR. SKOKNA: And for that purpose, I agree,
13 Your Honor, but internal communications could be
14 relevant for a couple of reasons: One is, Dominion has
15 made statements, for example, in their setting the
16 record straight, that there's never any glitches with
17 their machines and that it's impossible technoligically
18 for a vote flipping to occur. There may be internal
19 communications, which there are internal communications,
20 which refute that.
21 THE COURT: What does that go to with whether I
22 made a statement with knowledge that a statement was
23 false, or with reckless disregard to whether the

1 statement was false?
2 MR. SKOKNA: Correct, Your Honor. We would
3 not -- it would be -- I think your ruling -- and I just
4 wanted to clarify, whether your ruling before on how to
5 deal with these issues, when the issue comes up, we can
6 have a sidebar and explain for what purpose we're
7 introducing them.
8 THE COURT: And I can tell the jury, this is
9 only being introduced for this purpose.
10 MR. SKOKNA: Thank you, Your Honor.
11 THE COURT: But, I mean, I've seen a number of
12 filings by Fox that seem they want to -- they want to
13 put in different sections different -- it's like when
14 you say "aluminum," and you can't get it out.
15 The problem with that is, you can't then say,
16 "Well, you know, the Dominion executives, that's not
17 relevant. It's what you were thinking at the time that
18 you put it on."
19 So in an abstract version, if I put a
20 witness -- if I put a person on a station and the first
21 time I put it on, I put it on with no knowledge whether
22 the statement is true or false, or have any reason to
23 believe it to be untrue, but two days later I'm told,

1 We've done an internal check on this and none of those
2 statements that the person made are true.
3 That's good. I'll have her on tomorrow and I'm
4 going to have her say the same thing.
5 That's the problem. Now, the Fox people think
6 differently.
7 What difference does that make? All you were
8 caring about is what they're saying -- I mean, you
9 weren't going out and asking the internal thoughts. I
10 mean, you were making a decision based on we're going to
11 focus on their -- just like that's why the January 6th
12 is not relevant. None of the statements but one is made
13 after January 6th. How could we say to a person it's
14 prejudicial, Did you think you're doing this now would
15 have caused January 6th, but that's not actual malice.
16 Actual malice is, did you allow this person to make this
17 presentation on your show without a disclaimer that it's
18 just merely their opinion when you knew it was false.
19 Whether it caused January 6th or not, I know
20 people take different opinions on it, but I have to keep
21 in this case. And this case is about whether, at the
22 time the statements were made, were they made with
23 either the notion that they were false, or the idea that
1 they were false, or they recklessly disregarded the
2 truth.
3 So three, you know how to work it. It's,
4 again, what Dominion was thinking is not relevant, but
5 it may be relevant as to damages. The vulnerability and
6 unreliability of voting machines may be relevant. I
7 don't know what the testimony would be on that. But
8 it's not relevant as to the four categories of
9 statements and the 20 statements, they don't bring up
10 anything about that. They bring up other issues. But
11 you could do it as a way for claim for special damages.
12 I am still having trouble with the exact
13 instruction that will be used on damages in this because
14 the New York cases, believe it or not, I think they're
15 just using a normal proximate cause instruction.
16 There's not a special one for defamation that I found,
17 but there are cases in defamation cases where the
18 Appellate Court talked about what the special damages
19 are, but it reads as if it's the proximate cause that we
20 give in any negligence case. So I'm not ruling on that
21 yet, but I'll need some help on that one because I think
22 the case -- there are cases that go all over the place
23 in New York, and so -- not the -- but just on special

1 damages.
2 Motion in limine four is denied. She was
3 brought on because she was supposedly the President's --
4 again, that doesn't mean you can't cross-examine her, or
5 cross-examine the person that brought the person on and
6 say, Isn't it true, you know, the following things.
7 And again, I don't know how I'd separate her
8 from -- or what timeframe she was. That's just factual
9 things that you'll have to bring up. It may be that she
10 merely represented herself as the attorney for the
11 former President, or she actually was, but that's fact
12 questions. I can't just rule out using her as the
13 former President's lawyer. But you can bring facts in
14 on that.
15 Do you want to argue?
16 Just put your name on the record.
17 MS. LEVIN: Eve Levin for Dominion.
18 Your Honor, I think there's a distinction to be
19 made between witnesses referring to Powell as the
20 President's lawyer or the campaign's lawyer because they
21 had a misunderstanding, not something we can cross them
22 on. I think it would be much more prejudicial and not
23 durable through cross if Fox's attorneys repeatedly

1 referred to Powell as the President's lawyer. They have
2 not entered any evidence whatsoever that she was his
3 representative in a legal capacity before.
4 THE COURT: So the objection would be, if they
5 were to make that statement, as we just said, if they do
6 it in their opening, you would be able in closing to
7 show, You heard the attorneys for Fox make these
8 representations in their opening statement. Well, we've
9 shown you in evidence that that's not true. So what
10 this person said in their opening statement, they did
11 not tell you the truth.
12 But don't tell them they lied. That's not the
13 right word to use in this Court.
14 But if a witness were to bring it up, then
15 you'd object and we would do the limiting instruction.
16 If the lawyer were to say, When the President's lawyer
17 came on --
18 Objection.
19 What's the foundation, Counsel, for that?
20 Right? Because now you're making a
21 statement -- you're making a factual statement from your
22 question.
23 Now, if the witness says something different, I

1 don't know how I'm supposed to really control that,
2 you're right. But if the lawyer is trying to make a
3 representation, the objection would be, objection;
4 sidebar; lack of foundation to say that she -- the
5 witness has to make that determination.
6 When you brought Ms. Powell on, why did you
7 bring Ms. Powell on?
8 I thought she was the attorney for the
9 President.
10 Right?
11 So when you thought she was the attorney for
12 the President, blah, blah, blah, blah, but you cannot
13 testify from the question.
14 MS. LEVIN: I think what we're specifically
15 concerned about, Your Honor, is the pervasive use by
16 Fox's attorneys in questioning, not only in opening
17 statements and closing statements, but the pervasive use
18 of referring to her as a blanket matter or her
19 allegations as a blanket matter as to the President,
20 that's simply not true.
21 As an example, in the filings they put in last
22 night is that, And the fact that the President's legal
23 team pressed the allegations about Dominion in this

1 lawsuit under the penalty of Rule led to sanctions,
2 etc., none of her lawsuits were the
3 President's lawsuits. And so we just wanted to be --
4 THE COURT: Just understand, just because you
5 say it's so from there doesn't mean anything. It's
6 whether they say it.
7 So, again, what I would do, when I was
8 practicing, because I -- Remember this one? Throw that
9 out. That was never done. Remember this statement they
10 made at the beginning? Throw that out.
11 And then the jury goes, Why should I believe
12 that person? They said all these things to me in the
13 opening statement, and none of them are true.
14 MS. LEVIN: That's fair, Your Honor. We just
15 don't believe that there's any evidence, and Fox has
16 conceded as much, with respect to the post November 22nd
17 period.
18 THE COURT: Right. But he did have a legal
19 team.
20 MS. LEVIN: Right.
21 THE COURT: So now we're getting back to the
22 where you have cake and eat it two problems.
23 Motion in limine five is granted. Non accused

1 broadcast under the law is not relevant. And I think
2 the easiest way to do that -- there's some great case
3 law on this -- it would be like having the New York
4 Times. Right? And you put a knowingly defamatory
5 article on the front page, but you put a non-defamatory
6 statement on the front page, and you say, Hey, put them
7 on a balance. Your Honor, we gave a truthful one and we
8 gave an untruthful one, so we're absolved.
9 No. That's not how it works. The case law is
10 pretty clear on that, Counsel. You can rise and argue
11 on it, but --
12 MR. NELSON: Yes. Thank you, Your Honor.
13 We would not make that argument. That's not
14 why we would be talking about a broadcast. But one of
15 the central theories that Dominion has advanced in this
16 case from day one is that there is -- a decision was
17 made so that the Arizona call happens, the viewers
18 leave, and then the executives at the highest level make
19 a decision to promote the fraud and to prevent fact
20 checking from occurring.
21 So in order to refute that narrative, and I
22 went through their Complaint, it's in Paragraph One of
23 both Complaints. It's throughout the Complaints. It

1 was argued in summary judgment at length. It was argued
2 at the hearing at length.
3 In order to refute that, we need to be able to
4 demonstrate that there were numerous broadcasts, for
5 example, both on the opinion side and the --
6 THE COURT: Was there a broadcast that said, We
7 did a fact check and we've determined every single thing
8 that this person just said is wrong.
9 And again, I don't know that that -- under the
10 New York law, that still doesn't get you out. You've
11 been telling me, even in the filing last night, that
12 what's important is what the person thought at the time;
13 and you can't counterbalance it by having somebody else
14 say the opposite. That's the law in New York. That
15 does not work.
16 Now what you're talking about is a different
17 issue. Was it conveyed down the thing -- or should it
18 have been conveyed down. Now it comes down to the
19 opinion evidence because somebody may cross-examine:
20 So you're the chief person. Don't you have a
21 responsibility, if you know something is false, to
22 convey it down the line, because it shows that they're
23 not credible to the jury.

1 If they say, Oh, no. I knew that to be a total
2 lie, but I didn't tell anybody.
3 Oh, really? You didn't tell anybody? You knew
4 it was a total lie. Did you know that it would open you
5 up to liability if you happened to tell a lie, and you
6 still didn't tell anybody?
7 Nope.
8 Okay. If you want to say that, that's fine.
9 But if you really believe that if an executive
10 producer of a station -- I mean, again, you can make the
11 argument, but they're not stupid. They're going to say,
12 My host didn't know anything, but the executive producer
13 who could turn off the show knew everything, and,
14 therefore, even though we knew it was false, we never
15 conveyed it to this person, Don't you think you had a
16 responsibility to convey it to the person?
17 In fact, I think one of the shows were pulled.
18 So the notion that the executive producers had no
19 control over the situation, it's a slippery slope when
20 you make that argument. So that's something you guys
21 will do.
22 MR. NELSON: And understood, Your Honor. And
23 to the extent Dominion makes those arguments, I think

1 that's exactly how it would play out. The issue,
2 though, here is that --
3 THE COURT: I'm ruling out the non-accused. I
4 get the argument, but it's clear under New York law that
5 what you would have is, you would have the ability --
6 and I think there's also -- there are a couple of other
7 Circuits -- that you could then get your -- the ability
8 to harm people with false statements that you knew were
9 false by merely putting a true statement on the same
10 page.
11 I mean, that would be like saying, I beat this
12 guy up, but I go to charity so I should be absolved of
13 the assault.
14 No, they're two separate acts. The fact that
15 you printed in the newspaper -- is it a retraction,
16 Counsel? Do you have a retraction for me?
17 MR. NELSON: The only question I have, Your
18 Honor, I understand your ruling, to the extent Dominion
19 argues that there was a decision at the top of the
20 network to advance the fraud and to not air any fact
21 checking, or have the news division or others actually
22 investigate and report that there was no evidence of
23 fraud, then we would ask to be able to respond to that

1 argument because it just opens the door, that we'd have
2 to say that didn't happen.
3 THE COURT: I'll see how the evidence comes in.
4 But the case you've cited, McFarland versus
5 Esquire, is one of the cases you shouldn't give me,
6 because in that case it's both in the same article where
7 they do it, and you're making it different. It is not
8 that Mr. Dobbs in the same show made both statements.
9 You can't absolve yourself of defamation by merely
10 putting somebody on at another time and say something
11 different.
12 As you've noted in your arguments, we have to
13 look at the specific allegation or statement and we have
14 to know what the specific thought frame was at that
15 specific moment as to that statement. I'm not going to
16 be looking at non-accusatory statements. That's what my
17 point is.
18 MR. NELSON: Understood.
19 THE COURT: And the McFarland versus Esquire is
20 misleading. It shouldn't have been cited.
21 MR. NELSON: I -- thank you, Your Honor.
22 THE COURT: That's the best way to get judges
23 off the -- too many adjectives and adverbs and citing

1 things that don't stand for the proposition.
2 Same thing with who you sue and who you don't
3 sue. It's not relevant. It's granted on number six.
4 MR. STOKES: Your Honor, may I?
5 THE COURT: Sure.
6 MR. STOKES: I'm also part of the Fox trial.
7 THE COURT: You have to put your name on the
8 record.
9 MR. STOKES: Michael Stokes for Fox.
10 On six, Your Honor, we would ask that Your
11 Honor would please defer judgment on that one and see
12 how the evidence comes in.
13 The reason I say that, I think the case law is
14 clear on that, including case law that Dominion cited,
15 that there's not a blanket rule against making reference
16 to decisions about whether or not to sue. And in
17 particular, I think this relates to the ruling that Your
18 Honor just made with regards to motion in limine number
19 five.
20 We understand, based on the briefing, that
21 Dominion plans to advance evidence of other non-accused
22 broadcasts, or broadcasts that were on Fox that Dominion
23 choose not to sue, for the purpose, they say, of showing

1 that others within Fox --
2 THE COURT: Why would they sue on a true
3 statement? Why would they sue on a true statement,
4 Counsel?
5 MR. STOKES: Your Honor, I understand that.
6 The point I'm making is --
7 THE COURT: Now, wait a second.
8 The other motion in limine related to
9 statements that are purportedly defamatory and ones that
10 are the truth. Why would Dominion sue anybody over the
11 truth?
12 MR. STOKES: I understand that, Your Honor.
13 What I'm trying to say is that if Dominion is
14 going to present to the jury evidence relating to other
15 nonaccused broadcasts, whether or not they're true or
16 not, they could be completely true, but the point is
17 Dominion is going to show them those broadcasts for the
18 purposes of showing that others at Fox had knowledge of
19 whatever was presented in those broadcasts.
20 THE COURT: So it would be relevant, if I were
21 shipping out widgets and somebody sued me on one set of
22 widgets, but didn't sue me on the other, I could defend
23 it by saying you didn't sue on all the widgets that I've

1 sent?
2 MR. STOKES: The point I was trying to make,
3 Your Honor, is that if Dominion is going to open that
4 door and bring in these other nonaccused broadcasts, I
5 think there's a strong potential for the jury to become
6 confused as to which broadcasts are actually being
7 challenged and which broadcasts are --
8 THE COURT: Well, that would be a mistake on
9 that part. Why would they want to confuse the jury as
10 to what's being --
11 MR. STOKES: I'm not saying that they would.
12 But what I'm saying is that we should the right on that
13 point to point out that this is a broadcast that has not
14 been challenged, it's not relevant to damages, it
15 shouldn't be considered for damages.
16 And so respectfully, we would request that if
17 the evidence comes in that way, we should have the right
18 to point that out.
19 THE COURT: We'll look at it. Obviously, I
20 said this at the very beginning, if I rule a certain way
21 and they then decide to use something, then you can have
22 a chance to use it. Remember I talked about the witness
23 who hears that the car stop is out and then they testify
1 they were never in the car? Well, I'll reexamine it.
2 MR. STOKES: Thank you, Your Honor.
3 THE COURT: I mean, obviously -- I mean, you'll
4 see this in later ones. I mean, there's some ones that
5 I think are pretty strong arguments, like the Opinion
6 one with -- or I think they relate to Murdoch. I have
7 to see what the witness has testified in those. I don't
8 know how James would be important to this case, but I
9 haven't seen it put in context yet.
10 So it could be that I'll deny the motion, but
11 it's without prejudice if they bring up something that's
12 not relevant. Just because I ruled one way on a motion
13 in limine -- I said this in my original Order -- that
14 doesn't prevent if they are authenticated, they don't
15 make it relevant, just because I ruled on a motion in
16 limine, they still have to present it. But choosing
17 which networks to sue and which ones not, not relevant.
19 THE COURT: Just like January 6th.
20 Seven: It's the same thing. It's pretty set
21 forth, I think it's 2nd Circuit in Sun Printing and
22 Publishing versus Sheck, (Ph) and then West Virginia and
23 then New York adopted it, it's defamation specific.

1 MR. STOKES: Your Honor, if I could be heard on
2 seven briefly as well?
3 THE COURT: Sure.
4 MR. STOKES: So with respect to seven, I think
5 we've pointed out that a broad exclusion of other
6 potential causes of harm should be a nonstarter because
7 there's other reasons that that --
8 THE COURT: So if -- let me just get this
9 straight. If OAN puts somebody on and they say
10 something defamatory, and Fox knew that it was false, or
11 recklessly disregarded as false, you think you can bring
12 them on because other people said it?
13 MR. STOKES: Your Honor, I think our argument
14 relates to damages and what's relevant on the issue of
15 causation specifically.
16 THE COURT: That's different. I think damages
17 is different, but we're not going to try and show that,
18 oh, they're only suing us because we have more money and
19 these other networks don't. That's not relevant.
20 MR. STOKES: Understood, Your Honor. And to be
21 clear, I think our focus with regard to motion in limine
22 seven is damages focused.
23 THE COURT: All right. But just understand

1 it's not a defense for defamation that somebody else
2 also published the same defamatory statement. You do
3 know that?
4 MR. STOKES: Yes. Understood, Your Honor.
5 THE COURT: That's why I'm granting that motion
6 in limine.
7 MR. STOKES: Thank you, Your Honor, with the
8 understanding that for damages, we may --
9 THE COURT: Maybe. We'll see what evidence
10 comes in.
12 THE COURT: Right. It may be -- it wasn't just
13 Fox. The client may say it was 75 other people saying
14 the same thing. Well, of course, then that will come
15 in. And I'll say that you can use that merely for
16 damages, not as to whether Fox made a statement -- a
17 defamatory statement.
19 MR. SAVAGE: Your Honor, can I have a moment,
20 briefly? Zach Savage.
21 THE COURT: Sure.
22 MR. SAVAGE: So just to be clear, the focus of
23 the motion that we brought was focused on damages. And

1 I think the Rule that Your Honor started to articulate
2 from the Sun Printing case from the 2nd Circuit was
3 specific to how damages are calculated and addressed in
4 a defamation specific context.
5 THE COURT: But it's a proof problem, Counsel.
6 Again, I don't know what the proof was in these cases.
7 But if you put on your people saying, I was damaged
8 because of this, and the cross-examination is, Well, in
9 that same conversation, didn't they bring up eight other
10 things, well, do you want me to exclude that?
11 MR. SAVAGE: Well, that is what the Sun
12 Printing case and those cases do. In fact, these cases
13 are about cases in which, you know, one newspaper is
14 being sued for defamation and tries to point to other
15 newspapers that publish similar defamatory statements
16 that were circulating. And the Courts in those cases
17 said that that -- because of particular reasons that are
18 specific to defamation, that that kind of evidence is
19 not admissible even for purposes of --
20 THE COURT: I'll go back and look at it.
21 MR. SAVAGE: Thank you, Your Honor.
22 THE COURT: So I'll defer.
23 MR. STOKES: Your Honor, may I?

1 THE COURT: Sure.
2 MR. STOKES: Your Honor, very briefly. Just we
3 disagree with that reading of that case law, but when
4 Your Honor takes a look back, one thing to note in
5 particular beyond the fact that that's very old case
6 law, is that all of those cases relate only to general
7 damages, and Dominion here is seeking special damages.
8 There's much more modern case law that makes clear that
9 the causation analysis is much more specific when it
10 comes to the special damages. So we would just ask Your
11 Honor to keep that in mind.
12 THE COURT: In motion in limine eight, this is
13 one of the ones where I have to see how it's being used
14 because this is one of -- this is the sword shield. I
15 know that, but I'm trying to think of another situation
16 in the case. You can't use a privilege as both a sword
17 and a shield. I think -- oh, I know. I'm not going to
18 go into I know what I used it as a judge. It was an
19 in-camera argument. You can't use sword and shield.
20 You can't say, I know I was right because of this, and
21 then it shields you from -- you know, it's like saying I
22 did -- I breached my fiduciary duty on the advice of
23 Counsel.
1 What was the advice?
2 Objection.
3 No. You can't use it as a sword and shield.
4 If a person says, I published this because of this,
5 they're going to open the door. So be careful with your
6 witnesses on, when they've invoked a privilege in their
7 depositions, as to how they use it.
8 Again, usually the lawyer is, like, oh, no, I
9 can't believe you just said that because now -- I mean,
10 I always had it in the breach of fiduciary duty. Right?
11 Which was, I did it on advice of Counsel, or instead of
12 saying, we were at a meeting and we made a
13 determination. We believed that our business judgment
14 was correct. We had our attorneys there and everything
15 like that. But I specifically did this because the
16 lawyers told me, we had to have the lawyer testify
17 because they said that the AK was basically written by
18 the lawyer even though it was signed by -- and it's
19 like, well, my lawyer just -- and it's like, well, then
20 the lawyer gets deposed. But you can't use it as a
21 sword and a shield. So be careful with that newspaper
22 privilege.
23 Yes?
1 MR. NELSON: Justin Nelson.
2 Just why we brought this -- and I want to, in
3 your opening comments, we're not seeking to revisit any
4 privilege issues, just to be clear.
5 THE COURT: I know that. It's going to depend
6 on what the witness says. And if they say it in a way
7 that they're trying to use it as a shield, then you can
8 use it as a sword.
9 MR. NELSON: It's also broader than that, and
10 this is what I wanted to call Your Honor's attention to,
11 they have not given discovery on issues related to
12 control of executives unless it goes specifically to
13 what they have determined is otherwise relevant to the
14 case.
15 THE COURT: What does that have to do with news
16 reporter privilege?
17 MR. NELSON: Because under the guise of
18 reporters' privilege, they have stated that what the
19 executives control over --
20 THE COURT: The cases that came to me were
21 specific reporters talking about not revealing their
22 confidential sources. In fact, pretty sure they were
23 reporters. They weren't executive producers. That's

1 something that should have been -- I don't know what's
2 been ruled on that, but the ones that were brought to me
3 that were brought to the Special Master were questions
4 that fell under that shield statute.
5 And so what I'm saying is you have to be
6 careful of a witness testifying on that because if they
7 can't -- if they say, This person told me it was
8 such-and-such, I mean, you're running into, Well, I
9 can't tell who it is.
10 Well, no, now that you've opened the door on
11 your statement, you can't use it as a sword and shield.
12 You just can't say I went into battle this way, and then
13 when the person says, Well, did you know that they
14 happened to be our ally?
15 I had a source.
16 I mean, they're going to fall into problems.
17 They better coach their witnesses on that.
18 MR. NELSON: Thank you, Your Honor. And that
19 is one of the two issues.
20 THE COURT: But executives aren't under the --
21 I mean, unless they were using confidential sources, I
22 don't know how they would fall into this category.
23 MR. NELSON: Well, that's our point, Your

1 Honor. And not every issue has -- the Special Master
2 has done a wonderful job, has made rulings. We have not
3 appealed every single ruling, and it's how it's come up.
4 There are a hundred and fifty thousand entries
5 on their privilege log. I'm happy to show Your Honor
6 some of the issues that they are maintaining privilege
7 on that we're not disputing, to be clear, that they are
8 saying --
9 THE COURT: But what I'm saying, Counsel, is if
10 their -- and this is probably a good time to use
11 indefinite articles because it applies to both sides --
12 if you are foolish enough to open a door by asking
13 something that is on a privilege list, we then now have
14 something that's hanging out there. And, you know,
15 we'll have to see how it goes, but I'm not going to let
16 them say, well, there's a privilege document that
17 supports my argument, implying to the jury that there is
18 a document that makes me credible.
19 And then the question is, Your Honor, that's on
20 their privilege list. We've never been able to see it.
21 It would be, like, it's not on the privilege
22 list anymore because he just testified about it, and he
23 can waive the privilege.

2 And as a specific example, for example, there
3 are entries on the reporters' privilege log where
4 literally over a hundred thousand that come up in this
5 issue, where there communications between Suzanne Scott,
6 the CEO, and another executive. And they are talking
7 about whether, for example, a host or a guest -- that's
8 from the privilege log description, we can see that
9 they're talking about the show. Now, if Ms. Scott gets
10 up there and says, I'm too removed to be involved in the
11 day-to-day decisions, that's clearly relevant to
12 something they have logged.
13 THE COURT: Right.
14 MR. NELSON: And we have not --
15 THE COURT: And she just testified to it, then
16 she's got a problem.
17 MR. NELSON: Okay. Thank you, Your Honor.
18 MS. PETTI: Your Honor, may I be heard.
19 THE COURT: Sure.
20 MS. PETTI: Thank you, Your Honor. Katherine
21 Petti on behalf of the Fox Defendants.
22 Your Honor, Fox has made clear it hasn't
23 asserted the qualified privilege over any evidence

1 relevant to either coverage of Dominion or any of the
2 accused broadcasts or even alleged election fraud in
3 2020 more generally. And the time that Dominion filed
4 the exceptions, the Special Master's ruling as to how
5 Fox has invoked its qualified privilege determination,
6 has long since passed. Dominion is seeking another bite
7 at the apple here. Fox hasn't stood on any privilege as
8 to what an executive such as Ms. Scott may have involved
9 in one of the shows at issue, or Dominion or election
10 fraud, but Mr. Nelson repeatedly invoked a hundred and
11 fifty thousand entries on the privilege log.
12 As the Court recalls, Fox News was not allowed
13 a responsiveness review, produced 1.3 million documents
14 of news gathering, and unsurprised to me there were, of
15 course, a significant number of materials that were
16 withheld in the qualified news privilege unrelated to
17 either Dominion or election fraud.
18 THE COURT: Right. But if there are fifty
19 documents on your list showing that Suzanne Scott talked
20 to Lou Dobbs, and she says,"I've never talked to Lou
21 Dobbs, you're going to have a problem.
22 MS. PETTI: Understood, Your Honor.
23 THE COURT: You can't open a door like that

1 because they haven't challenged the privilege, and then
2 testify that she didn't do something that she did.
3 Are you aware there are fifty documents that
4 are from you to Lou Dobbs re: Sidney Powell, I think
5 you're going to have a problem.
6 MS. PETTI: Yes. Understood, Your Honor. And
7 again, Fox is --
8 THE COURT: We're going to tell all witnesses
9 to tell the truth. Right?
10 MS. PETTI: Yes, Your Honor, of course.
11 And Fox has not stood on the qualified
12 privilege as to communications about alleged election
13 fraud, or something like Ms. Powell.
14 Thank you, Your Honor.
15 THE COURT: Sure.
16 But, again, I mean, you're right. It's on the
17 privilege log and so if he doesn't testify about it,
18 you're right. It's not going to pop off all of a
19 sudden. But if they testify about it -- I specifically
20 sent a memo, but it's privileged, then no.
21 No. nine, this is where I'm cautioning people.
22 I'm denying this without prejudice. I mean, this is one
23 about invoking the First Amendment. I always love when

1 people in voir dire say, Do you have an opinion on the
2 Second Amendment?
3 And I'm thinking how many people even know what
4 that says, but they may know the principle, but they may
5 not know it's the Second Amendment after the principle.
6 Right? What's your position on unlicensed guns.
7 They'll say, What's your position on the Second
8 Amendment? Somebody may miss what the thing is.
9 But I'd have to see how it's brought up on
10 that. So I'll deny No. nine, but I've talked about the
11 differences, but it would have to be their understanding
12 of the First Amendment if it comes up. If they're
13 trying to make some type of legal opinion or something
14 and they're a fact witness, then I'll have to talk to
15 the jury or strike it or something like that. But I
16 think -- I think I brought this up in talking about what
17 you say to the jury in the first instance, which is, we
18 know not all speech is protected by the First Amendment.
19 To stand up on the podium and tell the jury that under
20 the First Amendment, all speech is protected will get
21 you an objection and will get you an instruction because
22 we know if all speech was protected, there wouldn't be
23 the Sullivan case. It wouldn't be there. It would all

1 be over. Right? We wouldn't have terroristic
2 threatening. We wouldn't have aggravated menacing. We
3 know not all speech -- we have the famous line, If you
4 yell fire in a crowded theater, it's not protected by
5 the First Amendment.
6 So to go up there and say What Fox did was
7 protected by the First Amendment, it's half the story.
8 It's protected by the First Amendment if you can't
9 demonstrate actual malice. So you have to be careful
10 about that, but I'll deal with it on a case-by-case
11 basis.
12 The motion in limine to exclude argument, I
13 think on No. ten, that's sort of denied in part and
14 granted in part. I don't know whether the size of the
15 law firm matters. But if you're asking for fees, they
16 can attack that as reasonable. I mean, once you open
17 the door on fees. The case law is clear. If you read
18 my Opinions on that, what I say is I'm not here to
19 second guess the number. Do you have any evidence that
20 the client objected to the fee at the time. Do you have
21 any evidence, because I'm not going to go and say a five
22 hundred dollars an hour or thousand dollars an hour
23 lawyer is good or bad. That's projecting what my

1 thought was. It's making a different ruling from a
2 different judge who may have a different experience. I
3 was from a very large law firm and I saw very large
4 dollar amounts. Big cases, that costs money. The size
5 of the law firm is not relevant, but when you seek
6 damages for attorneys' fees, you're going to open the
7 door on that. So that's a -- if it relates to damages,
8 then it is, but I don't know what difference it makes
9 that these lawyers are from LA or these lawyers are
10 from -- the question is are the fees reasonable, and
11 that's different.
12 MS. PEASLEE: Your Honor, may I briefly be
13 heard?
14 THE COURT: Yes.
15 MS. PEASLEE: A clarifying question --
16 Katie Peaslee from Dominion.
17 This is a clarifying question. We understand
18 if we're seeking fees, then the amount of those is going
19 to be relevant, obviously, but I think the exhibit
20 that's attached to that opposition to the motion, which
21 is from the report which gives the amount of the fees
22 kind of illustrates our point, which is that what's
23 relevant is those numbers and that amount. And, of

1 course, they're allowed to make arguments that they
2 don't think that amount is reasonable.
3 THE COURT: But to make arguments off of facts.
4 So, for instance, if they don't have somebody that comes
5 in and testifies that those fees are not reasonable,
6 they will not be able to make that argument.
7 MS. PEASLEE: Thank you, Your Honor.
8 And our motion was really directed to comments
9 about, like, terms of an agreement or a structure in an
10 agreement, for instance, the jury may have preconceived
11 ideas about lawyers that work by the hour versus on
12 contingency and that sort of thing, which we see is not
13 relevant at all to this case.
14 THE COURT: It will depend on how it comes in.
15 MS. PEASLEE: Okay. Thank you, Your Honor.
16 THE COURT: So hopefully, I mean, there's
17 certain ones that are in here that we'll have to look at
18 it, but that's why I said granted in part and denied in
19 part. I don't think trying to prejudice the jury by
20 saying they're -- first of all, you're in Delaware, I
21 don't think it would work, but to say they're from
22 California, why is that relevant to anything. To say
23 they had a success fee and they didn't earn the success
1 fee or something, that's something that would go to
2 damage. But, again, an attorney can't argue that the
3 fees are unreasonable unless there's evidence. That's
4 the whole point about the falsity that some people miss.
5 It may have been the genuine issue of fact if there was
6 any presentation that Smartmatic was the parent
7 corporation of Dominion. I would question that person's
8 sanity, but then I couldn't have ruled on it. If I have
9 an affidavit and an affidavit here, I'm not weighing the
10 credibility, but there's no evidence. If there's no
11 evidence that the fees are unreasonable, I'm not going
12 to let you argue that they're unreasonable. You have to
13 present evidence. Lawyers have to argue off that
14 evidence.
15 Fox's motion No. One is granted. This is the
16 one referring to the capital riot of January 6th, 2021.
17 To the extent it is relevant, it's outweighed by the
18 prejudicial effect under 403. The question is, is the
19 probative value substantially outweighed by the
20 prejudicial effect. One, I'm having trouble finding
21 what the -- other than for damages, maybe, what the
22 probative value would be. But referencing to it and
23 asking witnesses questions, that's something different.

1 Now, if you say, I had to increase my security after
2 January 6th, why was that? Well, everybody blamed us
3 for it because Fox was saying these things. That's
4 different. But to say somehow that Fox influenced it,
5 I'm not deciding that part of this case. That's not
6 what's here in front of me. The probative value is
7 substantially outweighed by the prejudicial effect.
8 Again, if you increase security because of it, that's
9 something different, but we're not putting the
10 January 6th attack on. That may be for another Court at
11 another time. It's not for this Court at this time.
12 MR. NELSON: Thank you, Your Honor. And we
13 agree with that, just to be clear. I think what we're
14 really seeking clarity on whether we can say, for
15 example, the fact of January 6th -- let me say what we
16 are not going to do. We are not going to argue that Fox
17 caused January 6th, but January 6th does come up in ways
18 relevant to our evidentiary presentation.
19 THE COURT: On what issue?
20 MR. NELSON: I will give you a couple of
21 examples. For example, after January 6th, as the
22 evidence has shown, Mr. Rupert Murdoch wanted to,
23 quote, pivot away from Donald Trump. And there was a

1 board exchange. There was exchanges with two different
2 board members saying we're trying to pivot away from
3 Donald Trump on that.
4 THE COURT: Well, why don't we just ask him why
5 did you decide to pivot away from the former President.
6 Let's hear what he says.
7 MR. NELSON: Well, it's on a document about
8 that. He says I want to pivot --
9 THE COURT: Well, if he lies, then you can show
10 him the document. But what I'm saying is, ask him, just
11 say did you make a decision to pivot away from this
12 issue?
13 Yes.
14 Why? Why was it relevant before and not after?
15 Well, because of the riot.
16 Did it have to do whether it was true or false?
17 No, it had to do with the riot.
18 That's his -- again, there's ways to do it.
19 What I don't want to say, isn't it true, Mr. Murdoch,
20 that you pivoted away because of January 6th where
21 citizens charged the capital building because Fox put
22 things on about Dominion. Again, that's not this trial.
23 This trial is whether at the time these statements were

1 made, whether the people who were responsible for
2 publication knew that they were false or had recklessly
3 disregarded the truth.
4 MR. NELSON: Thank you, Your Honor. And --
5 THE COURT: And damages, it could go through --
6 increase the jury.
7 MR. NELSON: We don't want to get into that
8 last half, but there are documents that say on January
9 8th or January 20th and January 12th that do exist that
10 talk about how we want to pivot, that say that, for
11 example, on the January 12th document where --
12 THE COURT: There was a January 12th document
13 that says we've always known that those allegations
14 against Dominion are false. We've pivoted away from
15 that because of the capital riots.
16 MR. NELSON: That's not how we would use the
17 document. The document talks about how, for example, in
18 that exchange, Mr. Rupert Murdoch tells somebody else
19 privately -- some version of privately Sean has been
20 discussing with Trump for weeks. That goes directly to
21 actual malice. If the document itself, the date doesn't
22 matter, but the underlying discussion is about
23 January 6th.
1 THE COURT: You can ask those same questions
2 without using January 6th. You can say, isn't it true
3 that Mr. Hannity was discussing with you the falsity of
4 the allegations regarding Dominion for weeks. Right?
5 What made you decide to pivot away from that?
7 THE COURT: At that point in time.
8 MR. NELSON: Thank you, Your Honor. And I
9 guess the question --
10 THE COURT: Why didn't you do it three weeks
11 ago.
12 MR. NELSON: Thank you, Your Honor. And we
13 care less about the fact that it was January 6th and
14 that it happened. And so I guess one of the questions
15 that I have, listening to Your Honor speak, is can we
16 use the underlying document where it is a private
17 exchange between two Fox people saying this statement in
18 order to put it in evidence in front of the jury? And,
19 again, of course they don't say that Fox caused it.
20 That's not the point. The point is that in this
21 exchange, they talk about the fact that people didn't
22 believe it, that they were pivoting away from Trump.
23 And so that is what we are trying to get across. It has

1 has nothing to do with Fox caused it and we are going to
2 stay far away from that.
3 THE COURT: Again, stay far away from it. And
4 if the witness says -- I mean, again, did you pivot away
5 from the narrative regarding Dominion. At what time did
6 you do it? You did that on January 12th. Why
7 January 12th? You have a brain room on November 13th
8 that told you these allegations were such and such. And
9 on November 22nd, why did you decide to pivot on
10 January 12th? What was the reason, Mr. Murdoch.
11 And if I don't know what it was.
12 Really? You don't know? Can I refresh your
13 recollection?
14 We know how to do that. Please don't show it
15 to the jury, everybody.
16 Is there a document that will refresh your
17 recollection? Would this document?
18 Yes.
19 I'm going to give it to you and I'm going to
20 ask the question again. Do you remember why you pivoted
21 away?
22 Okay?
23 MR. NELSON: All right. Thank you, Your Honor.

1 THE COURT: But I don't want someone who
2 believes one way or the other about January 6th on
3 whether the allegation made on November 13th was true or
4 false because of what happened on January 6th. I want
5 them looking at November 13th.
6 MR. NELSON: Correct, Your Honor. This really
7 does go to the publication for Fox Corporation issue
8 with respect to what I was talking about.
9 THE COURT: Right, but I just told you you
10 could ask it.
12 MR. STOKES: Your Honor, very briefly on that
13 for clarity?
14 THE COURT: Sure.
15 MR. STOKES: So I think Your Honor is right to
16 focus on the highly prejudicial nature of January 6th
17 and frame the analysis that way. And I think based on
18 that, to allow anything touching on January 6th, it
19 would have to go to just absolutely core relevance
20 issues in this case to outweigh the prejudice here. And
21 respectfully, where Counsel just argued over the pivot
22 theory that they've said, doesn't rise to that level.
23 And the reason it doesn't rise to that level is the

1 communications that were being discussed in January,
2 mid-January of 2021, is long after the evidence shows --
3 even Dominion's Complaint shows -- that Fox had already
4 pivoted away from Dominion coverage. Dominion coverage
5 ended December 12th, 2020. That's the last challenged
6 statement. And to try to shoehorn in a pivot theory
7 that occurs almost a month later --
8 THE COURT: You can make that argument at
9 closing.
10 MR. STOKES: I understand, Your Honor, but the
11 concern that I have is that once they use that to get
12 January 6th before the jury, all of our prejudice
13 concerns are now smuggled into the case, and there's no
14 unringing that bell.
15 THE COURT: If a person says on January 13th, I
16 just decided to pivot away from this story, that's
17 relevant. The fact that they may have made another
18 decision earlier you use to rehabilitate the witness or
19 something like that, but if, for instance, I say on
20 January 15th the reason I was floating false stories
21 about Judge Davis was to make money, that that's not
22 going to help me any more, so I'm pivoting from that,
23 you don't think that's relevant as to what was being

1 done in November?
2 MR. STOKES: But, Your Honor, the actions that
3 are being referenced don't mention Dominion at all.
4 That would be core relevance if Mr. Murdoch was
5 saying --
6 THE COURT: Well, you'll make your relevance
7 argument when your objection to that comes up.
8 MR. STOKES: Okay. Thank you, Your Honor.
9 And then briefly on damages -- I understand
10 Your Honor's point on the security costs -- my concern
11 is the briefing that Dominion has submitted suggests
12 that what they really want to use January 6th for on
13 damages is to put before the jury, apparently there were
14 recent Tucker Carlson broadcasts within the last couple
15 of months -- these are video footage from January 6th
16 that was released to him and he put on some shows -- to
17 use that and then suggest that this is keeping Dominion
18 somehow in the mind of the public, and so, you know,
19 that's going to cause them to lose further damages.
20 THE COURT: Well, it might be relevant if all
21 of a sudden somebody sent a death threat and said,
22 because what Fox said in November, and now that
23 Mr. Carlson has brought it up again, I'm going to kill

1 you, and I have to increase my security, might make it
2 relevant.
3 MR. STOKES: Understood, Your Honor. And I'm
4 aware of no such evidence. And I guess I would
5 ask that -- I would ask that there should have to be
6 some --
7 THE COURT: I'm not going to rule on things
8 that I don't know that are evidence.
9 MR. STOKES: Understood, Your Honor.
10 THE COURT: Hypotheticals.
11 And we're going to take a break because it's
12 been an hour and a half. I'll have hour and a half
13 breaks.
14 We're on Fox two. I would like to defer this
15 until I hear what the statements are. I think you could
16 sanitize the hearsay so that's it's not even a question
17 about hearsay. It could show state of mind. It could
18 show it's not offered for the truth of the matter
19 asserted, what the person was saying. You know, there
20 are so many different ways to deal with hearsay.
21 Your Honor, I'm not offering it for the truth.
22 I'm offering it to show the state of mind of the
23 business person at the time we were trying to pitch the

1 business, then it's not being offered for the truth of
2 the matter asserted. It's not -- well, it's an
3 exception, but there are other ways. Hearsay is tough
4 to rule on a motion in limine. I'd have to see it, so
5 I'd like to defer it. I think people need to be careful
6 here about eliciting hearsay that another party can't
7 cross-examine on, but, again, it's how it's offered.
8 I'll defer on this. I think this is actually a decent
9 motion in limine, but I think it depends on what I hear
10 from the witness as to whether it's hearsay or not. It
11 may not be offered for the truth of the matter asserted.
12 It may fall into an exception. I'd have to see it at
13 the time. Maybe if we're doing a video and you're
14 asking me to rule on certain line designations, that
15 would be different, but you can't just say I'll exclude
16 every statement made about what the client says about
17 this. It would depend on how it's being offered. If
18 it's being offered for the truth, then that will be a
19 hearsay, and there will have to be an exception. If
20 it's not being offered for the truth, then that's
21 different.
22 Mr. Webb.
23 MR. WEBB: I got it. We reserve. And there

1 also is an issue in the next motion which you could also
2 reserve on, that some of whether it's even hearsay,
3 there's a foundational issue as to whether they even
4 know who they -- they can't identify who was speaking to
5 them. They can't even lay the foundation for a
6 conversation. So those cases are also in there. I just
7 wanted to point that out, and it's all reserved, and
8 thank you.
9 THE COURT: That was the point of that initial
10 Order on the motions in limine. You're not waiving
11 whether they can lay a proper foundation; you're not
12 waiving whether it's relevant; and you're not waiving,
13 again, you know, even if I rule on something and it
14 comes up in a different context, maybe a different issue
15 than what was in the motion in limine. That would be --
16 you'd have to have too many motions in limine. I think
17 the ones that I was looking for were more like the
18 January 6th, things like that, or maybe there was a
19 specific video or something that needed to be excluded.
20 A lot of these are tough. As you point out,
21 people are doing a really good job arguing these. Well,
22 can I offer it for this? Yes. That's not what the
23 motion in limine was about, and I'm ruling on that, but

1 if it comes up in a different context, I'll listen to
2 your argument about it. I'm not going to say I ruled
3 on that. If it is directly on the motion in limine,
4 that's different, but if it's, Your Honor, I'm not
5 offering it for the reasons why you excluded it on the
6 motion in limine, I'm offering for damages, I'll be,
7 okay, go for it.
8 MR. WEBB: That would be a good example where
9 if we think one of your motions in limine ruled on this
10 and if we think maybe it didn't, we can go to a sidebar
11 so we don't get in front of a jury.
12 THE COURT: Right. I'm not clear on this, Your
13 Honor.
14 MR. WEBB: Pardon me?
15 THE COURT: Right. You can say, I'm not clear
16 on this point.
17 MR. WEBB: Yes.
18 THE COURT: All right.
19 So we're now on No. three, denying irrelevant
20 state of mind evidence. This is one -- maybe I need the
21 Fox -- whoever is arguing motion in limine No. three.
22 Isn't the whole case about state of mind? If
23 the executive producer's state of mind was that I'm

1 going to let this go on even though I know it's false
2 because I'm afraid of losing viewers, it's not a
3 relevant state of mind evidence. I'm not really one
4 hundred percent sure. I mean, that's clearly -- there's
5 so much state of mind in this case. Right? And you've
6 argued it. Right? You've argued the state of mind of
7 the Fox hosts. So I'm not really sure where I go on
8 this one.
9 Go ahead.
10 MR. CARTER: Mat Carter for the Fox Entities,
11 Your Honor.
12 What we're focused on here is people that
13 demonstrably have nothing to do with the show. So
14 trying to focus back on, at least requiring some
15 foundation.
16 THE COURT: Yes, that's what I'm saying. Isn't
17 that saved by the notion of it's got to be part of the
18 publication part of it?
19 MR. CARTER: Yes.
20 THE COURT: So we've determined it's
21 publication, but is this person part of the publication
22 process.
23 MR. CARTER: Absolutely. That's what we're

1 trying to --
2 THE COURT: Right. That's okay.
4 THE COURT: But, I mean, what it was is that
5 Fox employees are not responsible for the allegedly
6 defamatory statements challenged by Dominion. That's
7 quotes, by the way, I'm taking it from your -- and to
8 me, that's too vague for me to rule because you may
9 argue that Suzanne Scott is not important to this, but
10 they may have lots of evidence that she's extremely -- I
11 find it hard to believe that the CEO or President
12 doesn't have responsibility, but maybe they don't.
13 You say I want a blanket thing about her state
14 of mind, and they have evidence that shows that her
15 state of mind is important, then I'm going to let her
16 testify. But if it's, you know, somebody over the news
17 desk and they think the whole thing is baloney and they
18 have nothing to do with what's on the Lou Dobbs's show,
19 and they have never communicated with anybody who's
20 responsible for the Lou Dobbs show, yeah, you're right,
21 it's not relevant.
22 MR. CARTER: Thank you, Your Honor.
23 MR. SAVAGE: Your Honor, just to clarify. Zach

1 Savage for Dominion.
2 So just to clarify, I think what Your Honor is
3 saying, but correct me if I'm wrong, that the motion is
4 being denied, at least at this point, and we think that
5 this is something that Your Honor squarely sort of teed
6 up and ruled on in the Summary Judgment Order where Your
7 Honor ruled that the question of which individuals were
8 responsible was a question that the jury would rule on,
9 and so evidence could come in.
10 THE COURT: So, two ways. One as to actual
11 malice, because we've already ruled that Fox News has
12 published. The question is who is responsible, what did
13 they know. It's a little bit different for Fox
14 Corporation because that's a question of fact as to who
15 published.
16 MR. SAVAGE: Correct. So there's two questions
17 with respect to Fox Corporation, as to whether Fox
18 Corporation published, and then also whether Fox
19 Corporation had actual malice, and the way to show that
20 is by identifying the relevant persons and showing their
21 actual malice.
22 Just to be clear, you know, it's our position
23 that even individuals who are not necessarily, like, the

1 chief executive, are still relevant for that inquiry for
2 certain of the circumstantial factors, such as whether
3 the information was widely known, or whether Fox -- the
4 responsible individuals were purposely avoiding the
5 truth. And so, you know, we think this is just
6 something for the jury.
7 THE COURT: Okay.
9 THE COURT: You guys know what was said in the
10 depos. I can give you a perfect example. I mean, it
11 works both ways. Whether the person on the news desk
12 who has no responsibility over the Lou Dobbs show thinks
13 one thing or another is irrelevant to this case, but if
14 they got it from somebody on the Lou Dobbs show, it's
15 probably pretty relevant. But, you know, you have to
16 go -- we'll see how it comes in. I mean, how did you
17 know it wasn't true?
18 Well, the executive producer of Lou Dobbs told
19 me it wasn't true.
20 Well, I think it probably is probably relevant
21 as to the widely known nature. But if they said I saw
22 that same memo and I thought it was crazy, but I didn't
23 tell anybody, that's not relevant. They're not the

1 person publishing that statement.
2 MR. NELSON: And just -- I'm sorry, Your Honor,
3 some clarity on that last --
4 THE COURT: You're not arguing this.
6 THE COURT: I'm not trying to be mean, but --
7 MR. NELSON: No, no.
8 THE COURT: Not to use folksy things, but it's
9 one ranger, one rider. You've heard the story.
10 MR. NELSON: Yes.
11 THE COURT: And what's great about the
12 headphones is, you're not all going to have them, so I
13 don't have to worry about it. So it will just be the
14 people who are asking the questions and the people who
15 are going to cross and redirect or whatever, and that
16 way I don't have to worry about somebody blurting out a
17 different argument from behind.
18 Who's arguing for Fox on No. four? I didn't
19 understand this one either. It seems to go to the
20 question of publication, but --
21 MR. CARTER: I view this -- again, Matt Carter,
22 Your Honor.
23 I view this as similar to three in that there

1 has to be some foundation laid that, you know, what's
2 going on here is directly involved in particular
3 statements in the publications, not just general.
4 THE COURT: Correct. Well, and that's the
5 issue. Right? Especially with Fox Corporation.
6 There's enough there that shows that maybe people from
7 Fox Corporation were sitting in on meetings and doing
8 these things so they would have had some type of control
9 over what's going on, but it's not just Fox Corporation
10 is the parent and, therefore, they know, or Fox
11 Corporation knows, but they don't have any
12 responsibility in publication, then you're right. It
13 depends on the situation.
14 MR. CARTER: Understood.
15 THE COURT: So that's denied without prejudice,
16 depending on the situation.
18 THE COURT: It's a win for both sides.
19 I'm granting No. Five, but I'm not precluding
20 Dominion from bringing up threats. If you say I
21 increased security because I received threats because of
22 what we perceived to be what Fox was doing, that's one
23 thing, but I think I'm concerned about what was said by

1 a third party not in the control of Fox. That seems to
2 be prejudice because you guys know, I've sent you things
3 that I've received, and I don't think that it has
4 anything to do with either of the parties or their
5 lawyers. I'm not going to hold you responsible for what
6 somebody sends to the Court, just like I'm not going to
7 hold Fox responsible for a non-Fox person saying
8 something. But the fact that there were threats and
9 that's why we increased security, I would just like you
10 to, if you're going to do that, stay away from the
11 specific threats unless they decide to open the door and
12 say, were they meaningful.
13 Well, let me tell you. They knew who my wife
14 was and they knew my address. So, yeah, I thought it
15 was pretty meaningful.
16 What did they say?
17 They said they were going to kill me with a
18 hammer.
19 But you asked to see if it was meaningful or
20 not. I haven't heard from you yet, so I'll let you go.
21 MS. MEIER: Thank you, Your Honor. Megan Meier
22 for Dominion.
23 You said earlier today that the quintessential

1 example of yelling fire in a crowded theater is not
2 protected speech. And what we have here is Fox is the
3 equivalent of yelling fire in a crowded theater and now
4 wants the jury not to hear about the stampede that
5 followed because the stampeders weren't Fox employees.
6 In many cases, these threats echo the lies that were
7 broadcast on Fox, in some cases the day before or two
8 days before.
9 THE COURT: I'm not saying you can't get in the
10 notion and say, well, how did you know it was related to
11 Fox. Because they echoed what it is. I don't want you
12 going into the specific things because they don't have
13 control over what the person said. You see what I'm
14 saying?
15 I find it relevant that there were threats made
16 because of the damage, because you're trying to show
17 proximate cause. What I'm saying is, under 403, I don't
18 want the specifics put in unless Fox makes it an issue.
19 So you could say, well, how did you know it was related
20 to Fox?
21 Well, the threats mimicked what was said on
22 Fox.
23 Fine. Let's stop there. I don't want the

1 specific document put in unless you can show it's a Fox
2 employee.
3 MS. MEIER: Respectfully, Your Honor, this goes
4 to the terror --
5 THE COURT: I understand.
6 MS. MEIER: -- felt by these employees. It has
7 affected Dominion's ability to attract and retain
8 employees because the company is under siege. The
9 people are still, even recently, receiving death threats
10 and harassment. The elected officials who decide
11 whether or not to contract with Dominion get harassment
12 and death threats in relation to the lies that were
13 broadcast about Dominion on Fox News. And Fox, as far
14 as I'm aware, is still contesting that Dominion has
15 suffered serious damages in this case.
17 MS. MEIER: This is a defamation case about
18 harm to Dominion's reputation and its ability to run a
19 business. And the fact that the company --
20 THE COURT: So, again, I'm not precluding them
21 bringing up the threats. What I don't want is the
22 specific language that's in the threats because it's not
23 under the control of Fox. If Fox were to say -- and I

1 wouldn't do this if I were them, but if they want to
2 open the door, well, it wasn't a big deal, was it, then
3 I think you have a problem, Fox. Then I'll revisit it.
4 But if they're conceding that there were threats made
5 and the threats referenced things that were said on Fox,
6 and, therefore, we considered causally connected to the
7 defamation, I don't want to get into the specifics, but
8 if they say it was no big deal, go for it.
9 MS. MEIER: And what about the threat that not
10 only repeat falsehoods that were broadcast on Fox, but
11 that specifically mentioned Fox?
12 THE COURT: I don't want them. I'm telling you
13 I don't want third parties that are not under the
14 control of Fox specific unless Fox makes it an issue.
15 MS. MEIER: Thank you, Your Honor.
16 THE COURT: I'm not -- by the way, I'm not
17 downplaying. You need to take every threat seriously.
18 I take every threat seriously, and I get them. What I'm
19 saying is, I don't want the jury to be unduly swayed by
20 a person that is not under the control of Fox, and
21 instead of making a determination as to whether the
22 statement made on November 13th was true or false -- or
23 was false and they knew about it, but say, I don't care
1 about that because this is evil. Right? That's not
2 what we're trying to do with the jury. But if you're
3 trying to show damages, and they say it wasn't a big
4 deal, why did you do all of this security, well, let me
5 tell you why.
6 MS. MEIER: Well, Your Honor, respectfully,
7 it's not just about the security costs. It's about
8 trying to win contracts.
9 THE COURT: I'm using that as an example. Same
10 thing. If they're saying, well, that wasn't a big deal
11 to that person, well, let me show you what they said to
12 that person. If they want to put in the notion that it
13 was a reasonable or unreasonable position, that normally
14 people don't do this, well, let me show you what was
15 done. I mean, that's different if they want to put it
16 at issue.
17 MS. MEIER: Well, I'm not talking about just
18 the threats to the Dominion employees themselves, Your
19 Honor.
20 THE COURT: You're talking about the third
21 parties who were responsible for the elections. I know
22 who you're talking about.

1 THE COURT: And again, I'm not downplaying
2 threats. People should take threats seriously. I'm
3 just saying I don't want -- under 403, the probative
4 value is that they didn't do it because of threats.
5 Right? If they want to argue that it wasn't
6 substantial, then you'd be able to come back and show
7 how bad they were. But if the notion was, we didn't get
8 this contract because they were afraid that they would
9 get killed and they said that it was because of what Fox
10 was saying, and we leave it at that, that's fine. But
11 if they want to say, well, those threats weren't very
12 serious, then I'll let you ask what they are
13 specifically. I'm trying to balance here.
14 MS. MEIER: Your Honor, if I may, just one
15 more.
16 In terms of Dominion's ability to run a
17 business and attract and retain employees, the impact
18 that this onslaught of harassment and threats really on
19 these employees cannot be overstated.
20 THE COURT: Okay.
21 MS. MEIER: And the trouble that we have is
22 putting witnesses on and saying, take my word for it, it
23 was really scary.

1 THE COURT: My trouble is that I don't want the
2 jury to be prejudiced by a third party's looniness.
3 I'll allow you to genuinely reference the threats. If
4 Fox tries to make the argument that they weren't
5 serious, then I'll let you put in how serious they were.
6 I'm not downplaying it, Counsel. I could easily just
7 say you can't say threats because of 403. What I'm
8 saying is, I'm trying to balance this. I don't want
9 juries, or any third party, anybody who responses to
10 this case, to say I'm going to hold Fox responsible
11 because of what somebody else said, and maybe bleed into
12 whether the November 13th statement as opposed to it
13 goes to damages. That's what I'm concerned about. So
14 I'll let you use it in damages about threats, but not
15 specifics. And I'm not downplaying. I understand how
16 serious it is. And just because -- if I didn't think it
17 was, I wouldn't let you make a reference at all of the
18 threats.
20 THE COURT: Financial status and everything is
21 relevant, so I'm denying No. six. I know there will be
22 times when it isn't relevant and I'll do it on a case by
23 case basis. It could be relevant to punitive damages.

1 It could be relevant to viewership. I'm not going to
2 exclude circumstantial evidence of actual malice that
3 relates to, well, we've got to keep perpetuating this
4 because people are going to another channel. That goes
5 to Fox's profit and that goes to Fox, you know, we're
6 losing revenue. I'm not going to say, no, that's
7 irrelevant. It is relevant.
8 On the other hand, hold them responsible
9 because they're a big company is not what we're looking
10 as to whether it's defamation or whether there's
11 causation of damages. So I'm denying this, but I'll
12 look at it as it's brought up. But it is relevant.
13 Economics are relevant. To say they're not, I don't
14 know how you could say it's not. I mean, I don't know
15 if it's going to be proved, but I'm saying in any case
16 involving defamation, economics can be very relevant.
17 It's circumstantial evidence as to why they did it. It
18 could be circumstantial evidence -- you know, I read the
19 punitive damage cases in New York, and it could be
20 circumstantial evidence of direct animus because they're
21 using them to do that. But I'd have to see how it comes
22 in when it comes in. But at the moment, I'm denying it,
23 but it would depend on how it's brought up. I'm just

1 not going to blanket block.
2 On No. seven, I agree with it shouldn't be done
3 on direct. This is one about the previous
4 representation by the expert. But it could be used to
5 rehabilitate the expert or whatnot. This happens all
6 the time, actually. Believe it or not, in automobile
7 accidents, and not in med mals because they never cross
8 over, but in automobile accidents, the same spinal
9 injury doctor is used by everybody. And sometimes
10 they'll testify for one law firm and another time
11 they'll testify for another law firm. We're not going
12 to do mini trials as to what they did in that case. But
13 if you were to say that this person isn't worthy of
14 credit or whatever, people will say, well, they
15 rehabilitate by saying, well, you've done cases for
16 plaintiff's lawyers, too, haven't you?
17 Yes.
18 I mean, that's the same type of thing, but it's
19 not relevant in the direct as to whether the expert
20 previously testified in a defamation case for Fox. It
21 only becomes relevant if you attack his credibility as
22 not a credible witness. He should never be testifying
23 about defamation cases. Well, that goes back to my

1 point of saying the person is in the car and you exclude
2 that, and then they say they weren't in the car. If
3 you're saying that this shouldn't be considered relevant
4 in defamation cases, and Fox hired him in a defamation
5 case, then you've made it relevant.
6 You wanted to speak? I haven't heard from you,
7 so come on up.
8 MR. AHMAD: Oh, yes, Your Honor. Thank you.
9 Your Honor, Scott Ahmad from Winston & Strawn
10 on behalf of the Fox Entities.
11 I think the only teasing point on this, I
12 think, is what credibility means, and I think that's
13 what we're concerned about. You know, again, we haven't
14 fully modelled out our cross for Mr. Hatfield yet, but
15 the issue is that Dominion seems to be of the position
16 that if we even reference the fact that he's been
17 excluded twice before. Right? Then that opens the
18 door. Right?
19 THE COURT: Well, dependent on what I hear.
20 You argue that the evidence should be limited to
21 rehabilitation and not include the substance of the -- I
22 mean, I agree with that --
23 MR. AHMAD: And that was our alternative.

1 THE COURT: But it depends on what you did.
2 MR. AHMAD: Understood. Thank you, Your Honor.
3 THE COURT: And again, we run into this all the
4 time where people, oh, you just testified for plaintiff,
5 and if they don't answer the question, then the person
6 gets up and rehabilitates and says, do you remember the
7 question where they said you only testified for the
8 plaintiff. Do you remember testifying on such and such
9 a date for a defendant in a case?
10 I think I've talked about -- the Murdoch family
11 matters, No. eight, I'm denying it without prejudice. I
12 have to hear how it comes in. When I read it, I can't
13 see the plausibility of how James Murdoch would be
14 relevant, but I'd have to hear how it's brought up. My
15 gut is that he's not. He wasn't there at the time,
16 according to the motion. I don't know if personally,
17 but, you know, it depends on how it's brought in. I
18 haven't excluded -- I mean, clearly, I haven't excluded
19 Fox Corporation. So there may be situations or
20 something relating to a Murdoch that may be relevant,
21 but it has to be relevant. Otherwise, again, what James
22 thought before, I don't know how that would -- again,
23 I'll address it as it comes up.

1 And then nine, I did a lot of research on this.
2 Again, it depends on how it's brought up. This is very
3 nuanced. This is a motion in limine about lay opinion,
4 and lay opinion is allowed under 701. You can't just
5 say, I'm not allowing lay opinion. The Rule allows for
6 lay opinion. The question is whether they have some
7 personal knowledge of the situation. I think the
8 example is a police officer who wasn't at the scene
9 looking at everything and making a lay opinion as to
10 what caused the accident, but that doesn't prevent a
11 person who is watching the accident and a dog runs in
12 front of the car and the car swerves and hits a tree,
13 say, in my opinion, the dog caused the accident, they're
14 there; they're perceiving the opinion; they're helpful
15 to the jury, it will come in.
16 Another example would be, in my experience, you
17 shouldn't do the following.
18 What's your experience?
19 Well, I've done this business for 77 years.
20 I mean, that could even come under 702,
21 depending on the situation. People always think it has
22 to be some Ph.D. or a doctor, but I had a roofer one
23 time in a hurricane case and they tried to exclude him

1 because there's no peer review on roofing. The guy had
2 put roofs on for 30 years in hurricane areas, and he
3 just testified he has to use three nails instead of two.
4 That's valid 702. So it will depend on how the person
5 is testifying as to whether I'll exclude it under 701 or
6 include it under 701.
7 The classic example would be a hypothetical to
8 an executive that doesn't have personal knowledge.
9 That's not going to fly. But if you're saying, in your
10 opinion, should you have done this, and you're the
11 person who has done this for 30 years, don't think
12 that's like an excludable 701 or 702 opinion. That's
13 like the guy who has experience. No, in my 30 years, I
14 never would have done that.
15 So why did you do it now, would be the next
16 thing.
17 Objection. Opinion.
18 No, it's well within the thing. It's helpful
19 to the jury. The person is experienced. So it's okay.
20 I mean, I'm not going to let you run a hypothetical by
21 Suzanne Scott based on her experience. It has to be
22 something with either her frame of reference or
23 something that is her general practice or something.

1 It's almost noon, so I'm going to recess.
2 We have to figure -- there are two things you
3 have to do with witnesses that's driving me crazy.
4 I'm not sure -- first we have to put it in the
5 voir dire so that the jury can say whether they know or
6 don't know the witness. So on Thursday, I've got a list
7 of witnesses to give to the jury, or potential
8 witnesses, so we have a problem. I mean, and you
9 haven't provided them. We actually -- and I think my
10 assistant put in the names of the witnesses, but we need
11 to put the names of the witnesses in the voir dire, and
12 I don't have that, and it's now --
13 MR. ROSS: Your Honor, we have exchanged a
14 version that we want to use with Fox. We've sent that
15 over to them. They're looking at the names. It's
16 something that we -- it's a cast of characters and we
17 argue the issue of jury notebooks and what will be in
18 them, it's something we're proposing. They don't want
19 that. You shook your head. You may not want it. So my
20 point is, it could also be used for exactly the purpose
21 that you're asking.
22 THE COURT: I'll hear argument on the jury
23 notebooks, but you're in a uphill battle on this. They

1 get a blank notebook and they can write whatever they
2 want in it. Don't make me survey judges and find out if
3 they've ever done it with a different type of notebook
4 because I wouldn't even agree with them. So you can --
5 if you're going to think that you're going to put things
6 in that that might influence the jury, and I don't know
7 what they are, you're probably craftier than I am, but
8 the whole point of note taking is, it's because it's
9 such a long trial, I want to give the jurors an
10 opportunity to write down what their impressions are in
11 their notebook that they can use; and we also tell the
12 jurors they're not to be influenced by other people's
13 note taking, that it's their memory of the incident
14 that's relevant. If we give them, like, scripted things
15 with the names of the witness and things, you're making
16 it seem like that person is important; you're projecting
17 things. I'll listen to it, but I wouldn't waste too
18 much time on the notebook thing because you're going to
19 have a lot of disappointment with this judge on that. I
20 hate to sound old fashioned, but --
21 MR. ROSS: Understood. There is no
22 description; it's just the title. My only point here
23 was that if that is something that you want for the voir
1 dire, we've got a draft for it.
2 THE COURT: Okay. Good. What you need to do
3 is send it in Word Perfect to my assistant so she can
4 put it in the voir dire, which is the first thing we'll
5 address after the recess.
6 We'll keep plugging along.
7 MS. MOWERY: Your Honor?
8 THE COURT: Yes.
9 MS. MOWERY: Kate Mowery for Fox Defendants.
10 Earlier you mentioned an updated Pretrial
11 Order, and the parties have been furiously working to
12 reduce the disputes in that. We have an updated
13 version.
14 THE COURT: Did you really want to bring that
15 point up to me before I leave?
16 MS. MOWERY: Well, I just thought we could hand
17 it up to Your Honor so that you have an updated version
18 in case you wanted it for this afternoon.
19 THE COURT: So since you've decided to open the
20 door -- okay -- here, the facts admitted without formal
21 proof set me over the edge. Okay? And you can tell.
22 I get that you people may disagree with a fact
23 admitted without formal proof. If you disagree, don't

1 put it in as a fact admitted as proof, but you can't
2 tell me that -- I can give you three right off the bat
3 that nobody here could object to. Fox Corporation is a
4 Delaware Corporation. Really? You can't even put that
5 in my document? Dominion, whichever, is a blank
6 corporation. Smartmatic is not the parent corporation
7 of Dominion. These are all facts that are
8 uncontestable. I agree -- what I really hate is when
9 people, like, put bents on it -- right -- when they give
10 you their undisputed and they'll say something like,
11 Judge Davis lied in his deposition, we're not going to
12 agree to that. Why put it in the uncontested. I saw
13 this and really, I can give you lots of facts. Who are
14 employees of Fox News are probably not contested. Now,
15 don't get down to this, well, they're a contractual
16 representative. I mean, are they an employee, an agent
17 of -- is it really contested? You're having them
18 testify as to that, and they're not even in here. The
19 other stuff is things I've ruled on in the motion for
20 summary judgment. Do you have an uncontested fact
21 section?
22 MS. MOWERY: Your Honor, one of my colleagues
23 was going to argue that, but I think I would like to

1 mention I absolutely agree. We had started putting in
2 undisputed facts, both parties. Unfortunately, there's
3 a lot of dispute over what those were.
4 THE COURT: Throw them out.
5 MS. MOWERY: Right. And I think, from Fox's
6 point of view, it was getting frustrating, and so we
7 said why don't we just then agree to what's been
8 admitted in RFAs. Right? That would give us a start.
9 But Dominion would not agree to that. And so that, I
10 think, is what we wanted to present to the Court was
11 just an easy way to at least have, you know, a hundred
12 facts for each party that's undisputed, I don't know
13 that that's very controversial.
14 We had cited a case, Itron versus Consert, that
15 was Vice-Chancellor Laster, who said RFA Responses are
16 admitted facts.
17 THE COURT: That's what they're supposed to be.
18 MS. MOWERY: And so, at least we thought we
19 could at least agree on that as a starting point.
20 THE COURT: Have you ever seen how people write
21 those, though?
22 MS. MOWERY: Yes.
23 THE COURT: It's just a general objection,

1 4792, blah, blah, blah, blank. In other words, they
2 don't make it sound like they admitted the fact.
3 MS. MOWERY: Right. And we were saying whether
4 there's an objection prefacing the admission or not,
5 that would be an admission if there's a Response.
6 Right?
7 THE COURT: Admit Fox Corporation is a Delaware
8 Corporation, yes. That would be in there.
9 MS. MOWERY: And I don't know if that is one of
10 them.
11 THE COURT: Just don't overdo your joint
12 pretrial. I told you it's a road map. That's why I
13 don't want you really arguing over -- spending two days
14 arguing over admitted facts. You list out what you
15 think the admitted facts are, and the other side says, I
16 won't agree to this. You have to proof it. But the
17 notion you couldn't come up with any seems absurd to me.
18 It just seems overly contentious. And I'm not picking
19 on one. I'm picking on both of you.
20 MS. MOWERY: No, I agree. Yeah, we agree.
21 THE COURT: I'm not here to hear arguments as
22 to why one party was more contentious than not. I'm
23 just saying that's not what that section is supposed to

1 be. It's really supposed to be straightforward, and I
2 don't resolve it. Just so I have them as a road map.
3 Didn't we agree that Fox Corporation was a -- you know,
4 that's how I look at it. I think I said that on some of
5 my calls. But to me, when I saw that section, I go,
6 wow, really? You can't come up with five for me.
7 So the problem with Chancery -- again, it's a
8 pretrial, and I don't know how that issue came up. Is
9 it an admitted fact that you can read to the jury during
10 a trial? Yeah, there's certain rules on that. Is it
11 something to fight over in your pretrial? Because it's
12 not -- I mean, I'm using it as a road map. So I'll look
13 at it. Do you have it now?
14 MS. MOWERY: Yes, I think we do have an updated
15 pretrial.
16 THE COURT: Can you e-mail it to me?
17 MS. MOWERY: Yeah, we can e-mail it.
18 THE COURT: It's thinner? Oh, it's
19 double-sided.
20 (Pause)
21 THE COURT: So I actually have to do a couple
22 of things on the lunch break. We'll take an hour and a
23 half, which we won't be doing normally. So we'll start

1 again at 1:30. Since you have two days, we can have an
2 extra 30 minutes for lunch for me.
3 We'll stand in recess until 1:30 as opposed to
4 adjourned, and I'll be back.
5 (A lunch recess was taken.)
6 THE COURT: It was "compartmentalized." That
7 was my aluminum.
8 So let's turn to the voir dire.
9 As I go through this, understand, one of the
10 things I've learned to avoid, we've lost a lot of people
11 back there figuring out how to send e-mails during the
12 hearing.
13 What I try and avoid is what's called
14 previewing your case. You're not allowed to preview
15 your case in Delaware in voir dire. So a preview of the
16 case would be to present a specific fact issue or
17 something in the case and ask a juror, sort of a
18 preruling on it to see how they come out on, do you find
19 anything wrong with this. Right? And then you preview
20 it.
21 The other thing is, is to not interject
22 irrelevant information into a very relevant inquiry. My
23 experience, and this would never hold, is that what the

1 real question is is: Do you think you could be fair and
2 impartial in this case, or do you think that one party
3 is liable or not liable right from the beginning. We
4 always say in criminal cases, do you think the defendant
5 is probably guilty or not. And that's what we're trying
6 to get at to see if they've made a predetermination as
7 to the liability or nonliability in the case.
8 So an example of question that I don't -- just
9 so you -- do you regularly watch any Fox News programs?
10 Okay. That's great. That's a good question, but so
11 what? If you watch it, it doesn't mean anything. I
12 would usually change those questions to the following:
13 (Pause)
14 THE COURT: I keep your question, but I put in
15 any bias point. Do you regularly watch any Fox News
16 programs, and if so, would this affect your ability to
17 be fair and impartial.
18 That's what I'm really looking for. If
19 somebody watches Fox News or MSNBC or whatever, and the
20 question is: Would it make you unable to be fair and
21 impartial, and that's what I try to look for in the
22 question.
23 And so when I went through, some I knocked out,

1 some I want to talk about. But, for instance, if a
2 person -- whether you personally know Steve Bannon is
3 trying to preview people. He's not relevant to this
4 case. So the people -- if you personally know Chief
5 Justice Seitz, so what? I want to know do you know the
6 witnesses; do you know the company; do you know the
7 parties; those types of things that would impact -- I
8 don't want to find out what people think of Mike Lindell
9 or Steve Bannon or Jenna Ellis; who they rely on for
10 their news sources.
11 I know that you guys think that everything is
12 important, but what I'm trying to find out is, are you
13 able to be fair and impartial in this case?
14 And so -- you know I -- and also, we don't
15 usually preview punitive damages. So this would be a
16 preview question: Would you be able to award a million
17 dollars, or would you be able to award a billion
18 dollars. Okay? That's just trying to test them on --
19 they're supposed to follow my instructions. Are you
20 willing to follow my instructions. That's testing the
21 waters to see, I want this person on because they won't
22 award a million dollars, or I want this person on
23 because they'll award a billion, or get some feel for

1 it. That's not a question that I allow.
2 Also I thought that the -- do you have any bias
3 or prejudice either for or against Dominion or Fox that
4 would make it difficult for you to be a fair and
5 impartial juror in this case, that's the most important
6 question. I'm moving that up as to the parties --
7 that's the question. If we could just sit down with all
8 243 jurors and just ask that one question, that's the
9 question. Right? Everything else leads to that same
10 question. Right?
11 So if we have somebody who knows Mr. Farnan,
12 and comes up, we're going to say, how do you know
13 Mr. Farnan?
14 He's my neighbor.
15 Okay. So the fact that you know Mr. Farnan,
16 would that affect your ability to be fair and impartial
17 in this case. In other words, would you make your
18 decision based solely on the evidence presented in the
19 courtroom and the law as I instruct you?
20 No, I would have trouble talking with Brian if
21 I didn't rule in favor of his client.
22 Okay. That's fine.
23 Or believe it or not, I had a number of these

1 where we've had DUIs and they've come up and they've
2 said, I can't be fair and impartial in this case.
3 Why?
4 I've been convicted of a first offense DUI,
5 which is just a misdemeanor. And they've said my
6 impression is a person who gets this far in the system
7 is probably guilty.
8 They're not saying they are guilty, but they
9 have a predisposed idea that's what's going to happen.
10 There's nothing wrong with that. We just want to ferret
11 that person out in the questioning.
12 The ones that I knocked out entirely, you
13 probably picked up on, is: Do you know any persons
14 personally?
15 No.
16 Question number 10.
17 Question 14, I get the notion of the fact that
18 Dominion, in contracts with governmental entities --
19 this is the question -- have you, a family member or a
20 close friend ever worked in government procurement?
21 That's too broad.
22 I want to hear arguments on the voting
23 machines. I think they're good questions. I just want

1 to make sure that they're being asked for the right
2 reasons, but that 14 is too broad.
3 Have you, a close friend or a family member
4 ever gone to law school or worked as a lawyer or a
5 office?
6 Again, that's a preview. If that was a
7 relevant question, it should be asked in every single
8 case. This case is no different and that question isn't
9 asked. You have their occupations.
10 No. 24, I want to hear argument on 24. This
11 is: Have you ever served as a juror in a civil lawsuit
12 within the last 15 years?
13 Is there a question about a claim? Have you
14 ever brought a claim?
15 (Pause.)
16 MR. NELSON: Question 22 probably comes the
17 closest.
18 THE COURT: Right. And I was thinking that
19 it's duplicative. I thought we could use that, but we
20 need to narrow it, make it more specific. But I thought
21 that was duplicative.
22 Is there a certain reason why somebody is
23 improper just because they're a juror?

1 No. You're just trying to find out whether --
2 did you award for the plaintiff, did you award for the
3 defendant. Again, because somebody has been a juror
4 doesn't make them less fair and impartial.
5 The question is, again, the one question about
6 the Fox and Dominion is the most important question.
7 But I do think -- I've allowed the 22 because there are
8 people who have been plaintiffs who have had a bad
9 experience, and they say -- you know, or a defendant and
10 have had a bad experience, and they may not care what
11 the issue is in our case, they're just going to rule one
12 way or the other. Although I doubt anybody wants to sit
13 for six weeks to exact that type of revenge, but that's
14 why I usually allow that question, but I don't -- the
15 other one, I'll listen to argument why a juror --
16 I'm going to pick on Dominion for a second.
17 These are what I mean by preview questions. Do you
18 believe the election has been stolen? Do you believe
19 Joe Biden was fraudulently elected President?
20 Those are kind of preview questions. Other
21 ones may have been that you gave before I ruled on
22 certain things; committed fraud. Again, that's a
23 preview question. You're trying to see how they feel

1 about the issue on this case, and we're going to
2 instruct them they don't make a determination as to
3 falsity. So the question is, will you follow my
4 instruction, not what you believe.
5 We ask that the general Fox question, so I
6 knocked out 34, 35, 36, 37. I ruled January 6th is not
7 relevant, so I knocked out 38.
8 Do you believe electric voting machines are
9 unreliable and inaccurate to record votes. I knocked
10 that out.
11 40 is a question -- again, I try -- I'm not
12 trying to say anything negative about people, but we're
13 lawyers. We know what Amendments say. Lay people don't
14 necessarily know what Amendment. They may think the
15 First Amendment is the Second Amendment or vice versa.
16 And so when you use the term "First Amendment," realize
17 it's not -- I run into it all the time on Second
18 Amendment. It's easier. This is a gun case. Is there
19 any reason why you couldn't be fair and impartial
20 because the facts of this case involve a gun. And
21 surprisingly a lot of people who are pro gun will make
22 their decision on whether the person is licensed or not.
23 And they're like if you're carrying an illegal firearm,

1 you're guilty. And that's not the way we're supposed to
2 do the trial.
3 So these are the ones I want to hear. I'll
4 hear argument on the people that may be identified here,
5 do you know or do you have an opinion on them, but I
6 still do not see why they're --
7 I think these questions are appropriate because
8 of the voting -- and it's: Do you, a family member or
9 close friend have any background, training or experience
10 related to election security or election infrastructure?
11 Have you, a family member, or close friend ever served
12 as an election judge, although they may not know what
13 that means. Have you ever volunteered at a polling
14 place? Did you work or volunteer in any capacity in
15 connection with the 2020 Presidential Election, other
16 than as a voter. I think those are good questions.
17 Is there any argument as to those questions?
18 MR. NELSON: None from me, Your Honor.
19 MS. ELLIS: Mr. Nelson and I have had a
20 conversation about each of these.
21 THE COURT: Can we work on this, since you're
22 up there. So let's work on the one I think takes into
23 account a number of these, is the: Have you ever been

1 involved in a legal proceeding as a plaintiff,
2 defendant, victim, lawyer, witness or expert?
3 Legal proceeding seems too broad to me. Could
4 we change that to maybe a civil -- I was thinking civil
5 lawsuit. But what about somebody who makes a claim --
6 no. So instead of saying: Have you ever been involved
7 in a legal proceeding, which could be criminal, it could
8 be a lot of things, it could be a DMV, they may think
9 that we meant a lawyer to a DMV proceeding, we could
10 pick up a lot of people with: Have you ever been
11 involved in any civil lawsuit. Does that work? Civil
12 action instead of lawsuit?
13 MS. ELLIS: That works for Fox.
14 MR. NELSON: That's fine. Thank you, Your
15 Honor.
16 THE COURT: Now, since you're up there, we both
17 agreed that we should read out the names, although
18 Giuliani is misspelled, because the issue is narrow here
19 to just the actual malice and whether Fox Corporation
20 was involved in publication or damages. Why do we
21 care -- I mean, personal -- I don't know if I care about
22 what their opinion is. Maybe we could change it to do
23 you personally know these people?

1 Again, I'm worried about what a juror's opinion
2 is, as long as they're willing to follow the facts and
3 follow the law. Is there a reason why you have an
4 opinion? Is that really to ferret out people who are
5 biased or does that kind of figure out whether you want
6 them on the jury.
7 MR. NELSON: No, Your Honor, it is for bias.
8 And to be fair on this one, although Fox agrees Dominion
9 suggested it, so I'll take the burden here.
10 MS. ELLIS: Thank you.
11 MR. NELSON: So the reason is for bias. Let's
12 just focus on the three guests who appeared on the
13 challenged programs first, which is Mike Lindell, Sidney
14 Powell, and Rudy Giuliani. And we are concerned that,
15 as a general matter, that if they have a favorable
16 impression of Mike Lindell right now, that regardless of
17 any instruction that Your Honor might give, that they
18 are going to be unable to follow that instruction. And
19 certainly -- and this is not necessarily they would get
20 off the jury, of course.
21 THE COURT: No.
22 MR. NELSON: This is just to do the followup
23 and to go to the sidebar. And so we think it's an

1 appropriate question for that reason because they will
2 be seeing Mike Lindell in Court making the defamatory
3 statements. Same for Rudolph Giuliani and the same for
4 Sidney Powell. The others are in an entirely different
5 category, and we can talk about those three, they will
6 see and they will make judgments. And if they have an
7 favorable impression of Sidney Powell going in in a way
8 that would cause them to have something against --
9 THE COURT: Or the opposite.
10 MR. NELSON: Or the opposite, but the opposite,
11 I think, is less relevant to the bias issue because the
12 bias issue is, can you -- Your Honor has decided, and
13 the jury will be instructed at some point, that the
14 falsity has been decided. And so our concern is that if
15 someone like Mr. Lindell is being shown and they're
16 saying -- so that's the argument. Thank you.
17 THE COURT: No, and I get that. And I do think
18 it's just as important the other way. I don't want
19 somebody on here who is bias one way or the other before
20 we put the evidence on. I want everybody to have a fair
21 opportunity to present the evidence. I don't want
22 somebody in there who says either Mike Lindell is a
23 great guy and Fox supports him, so I'm going to rule for
1 Fox. And Mike Lindell is a bad guy, therefore, I'm
2 going to rule against Fox because he does advertising on
3 Fox. I'll give you the three, but I'm going to strike
4 the others.
7 THE COURT: And again, I do think -- I think
8 the Fox News programs picks up a lot. So if they do
9 YouTube, they do other things. So I changed it to: Do
10 you regularly watch any Fox News programs, and if so,
11 would this affect your ability to be fair and impartial,
12 and I knocked out, like, specific points.
13 Is there a reason why a specific one is
14 different than Fox News programs?
15 MR. NELSON: Thank you, Your Honor. Justin
16 Nelson again.
17 It's simply to pick up the fact that some
18 people in this day and age don't actually watch
19 television or watch a program, they stream it. If we
20 can broaden out that question to something that is
21 inconclusive of, including any social media platform or
22 something along those lines, we would have no objection
23 to it.
1 THE COURT: Okay.
2 MR. NELSON: It was really to get to that
3 point.
4 THE COURT: Do you regularly watch any Fox News
5 programs on television, or any other what?
6 MR. NELSON: Any other medium, including social
7 media.
8 (Pause.)
9 THE COURT: And again, people think that's just
10 to ferret out people who are biased for Fox, but I think
11 it would also ferret people out who were biased against
12 Fox. Sometimes people think they need to watch the
13 other side.
14 MS. ELLIS: Just on that point, Your Honor, the
15 only people that would say yes to that question, with
16 the follow-up caveat of, if so, would this affect your
17 ability to be fair and impartial, we had proposed a flip
18 side of that question, and that is No. 44. And this is
19 disputed by Dominion. The flip side of that question
20 which we thought would be fair, do you avoid any Fox
21 News programs, because we think that would be the way to
22 capture people who have an implicit bias against Fox
23 News programming. We had proposed that to be the flip

1 side of No. nine which we agree, Your Honor, is sort of
2 intentional.
3 MR. NELSON: Would you like some counter
4 argument on that, Your Honor?
5 THE COURT: Sure.
6 MR. NELSON: We think it's over inclusive
7 because certainly as worded, it would really include --
8 you're picking up every single veneer member that may
9 answer potentially, depending on how it's asked, yes to
10 either number 9 and number 44.
11 THE COURT: I don't think so. I did it. I
12 think if I change it to: Do you avoid any Fox News
13 programs on television or any other media or social
14 media, and if so, would this affect your ability to be
15 fair and impartial, I hate to break the news to both of
16 you, but I avoid all news programs, but it wouldn't
17 affect my ability to be fair and impartial. So I get
18 it. I didn't think of that. So I'm going to put
19 that -- but I think it's just the flip side and I don't
20 think it will be -- we might catch the person on the
21 first question, but we sure as heck would catch the
22 person on the second one. So I'll change that. I
23 wasn't going to give it to you, but I will now.

1 MR. NELSON: I understand what Your Honor has
2 said. May I make a pitch for No. ten, at least in
3 relevant part to Fox News?
4 THE COURT: Hold on.
5 (Pause.)
6 THE COURT: Go for it.
8 appreciate it.
9 Going against the stream here, but the reason
10 why we think it's important for Fox News to be as a
11 particular source of whether they are relied on is,
12 again, going to the bias issue only, and it's to
13 determine if they are watching Fox News and rely on Fox
14 News for their news, that we believe that we should be
15 able to follow up with them to determine whether there's
16 any bias that would be able to allow them to be stricken
17 for cause, because obviously it's, as they're saying in
18 the question, one of those sources of news, and we think
19 that would be important to make sure that they're not
20 coming in with some preconceived notion, Your Honor.
21 THE COURT: You had agreed to this one.
22 MS. ELLIS: Your Honor, we did agree to it, but
23 in the context of, as you see in number ten.

1 THE COURT: Right. I see the trade off.
2 MS. ELLIS: To add a bit of a broader pool of
3 the --
4 THE COURT: Yes.
5 MR. WEBB: Your Honor, I --
6 THE COURT: One ranger, one riot, Counsel.
7 MR. WEBB: I'm sorry. I apologize, Your Honor.
8 THE COURT: You selected this attorney to be
9 representative on this point. She's doing a great job.
10 Let her do her job. Okay?
11 I'm not going to look to any of these programs.
12 I think we have three questions now asking the same
13 question. Now, is there a fourth question asking the
14 same question. So we didn't get you the first time, we
15 didn't get you the second time, we didn't get you the
16 third time, let's try fourth and fifth. I think you're
17 fine. That one question that we're moving up front is
18 going to be your big question. That's going to be where
19 all of the hands are raised because this is not --
20 unfortunately, there's a lot of news on this thing.
21 People may have formed opinions. I think that's where
22 we're going to catch them, not because they rely on Fox
23 News and the alternative.

2 THE COURT: Explain to me 41 and 42, that they
3 were like the 45 and 46. Isn't that similar? I mean,
4 that's almost like death qualifying, a capital
5 punishment case. Is there any reason why you couldn't
6 do that.
7 We generally -- first of all, we stay away from
8 dollar amounts in a lot of the discussions in damages
9 instructions in Delaware. I know a lot of people
10 complain about that, but that's what the Supreme
11 Court -- and this to me is a real preview question as
12 to -- and I'm not -- this is always been my problem
13 with -- and I'm not picking on you, on the lawyers, is
14 lawyer led voir dire, there's three groups here, there's
15 the plaintiff, the defendant and the judge. Who's the
16 one person who wants an impartial jury? The judge. Not
17 in a bad sense. The plaintiff wants a pro plaintiff
18 jury and the defendant wants a pro defendant jury. And
19 if one side is better at previewing a case and picking
20 the jury than the other side, then it's not a question
21 of what facts were presented, it's who picked the best
22 jury. That's why I stay away from preview question
23 because it's not a preview question to find out

1 necessarily whether they're impartial, the question is
2 to find out whether they're partial. And that's not the
3 purpose of voir dire. The purpose of voir dire is to
4 sit impartial jurors, not, hey, this guy, he may have
5 said he doesn't have a problem with a billion dollars,
6 but I can tell he wants to be on the jury, so whatever,
7 we'll knock him off. That's not what we're trying to do
8 here. What we're trying to do here is -- what was the
9 reason why it was a billion dollars.
10 MR. NELSON: We are not tied to having a
11 particular number in there. As Your Honor previewed,
12 the reason was, we wanted to make sure that there is
13 nobody who just couldn't award a large damages award.
14 And so we can change a billion dollars to a large
15 damages award or whatever else might seem fit. But
16 that's where we were going, and it was really for the
17 purposes of just making sure, with presenting all of the
18 evidence, if there was something outside of the evidence
19 that would prevent them from awarding any damages.
20 MS. ELLIS: Your Honor, Kelly Ellis for Fox.
21 Our main issue with No. 41 was that reference
22 to the billion dollars in damages, you will hear that
23 the plaintiffs are seeking over a billion dollars. I

1 mean, that is textbook previewing their case. So we had
2 proposed an alternative. To the extent that the Court
3 believes that this is a legitimate area of inquiry, we
4 proposed an alternative that we thought was a bit more
5 appropriate and had less tendency to preview a case,
6 which is No. 45, which says: Even if the plaintiff
7 proves this case, do you think that there should be a
8 limit or a cap on the amount of money you would award
9 the plaintiff in this case. I think it gets to the same
10 end and is much more neutral.
11 MR. NELSON: No objection, Your Honor.
12 THE COURT: And we can't do the punitive, the
13 judges stay away from that until there's a determination
14 made at the end of the case with the way it goes. And I
15 don't want to preview punitive -- some judges don't even
16 let either the parties refer to them until after, even
17 in opening statements. I'm not of that ilk, because I
18 think the jury would listen to my directions on that, if
19 I make a determination, but a number of judges won't
20 even let you bring that up in your opening statements
21 because until the judge makes a determination that it
22 can go forward on that, it's usually done at the end of
23 the plaintiff's case, it could cause an issue. I've

1 never allowed it in a voir dire question, but I've only
2 had three cases that have had punitive damages. Of all
3 the ones I've had, they've all been -- I've had three,
4 but -- so I'll use Fox's number 45 and we won't use
5 punitive.
6 MR. NELSON: There's one other one Your Honor
7 had indicated that you were ruling against, but I would
8 again just like to make a pitch even with different
9 wording, and that's No. 30.
10 THE COURT: 30.
11 MR. NELSON: Yes, Your Honor. And it's about
12 what Your Honor has already found to be false. And we
13 can change the wording, not do you agree with, but would
14 you have any difficulty following any instructions with.
15 And I see your shaking your head, and I appreciate that.
16 So I don't want to press the point too much.
17 THE COURT: I mean, if up want a question would
18 you have any problem following the instructions of the
19 Court, because that's usually -- so the classic one is,
20 in both civil and criminal, if a police officer is
21 testifying, the question is asked would you give more or
22 less credence to the testimony of a police officer
23 merely because they're a police officer, then when you

1 get to sidebar and the -- you know, people are trying to
2 articulate what you asked, if I instructed you that you
3 cannot give more credence to a police officer more than
4 any other witness, would you follow that instruction.
5 If they say yes, then they can stay. If they say no,
6 and they will, they will say, look, I have a friend, I
7 have a lot of respect for them, I just think they are
8 more credible or vice versa. If you want, I could put a
9 question how to do it -- what you're getting at
10 basically, can you follow my instructions. They're
11 going to swear an oath saying they will. Sorry.
12 Anybody have a problem. I just pressed the panic button
13 by accident. It's in a weird place in this courtroom.
14 They're different in this courtroom. In the regular
15 courtrooms there's a red button that you press. In this
16 one, it's a tab that you pull out, which is really
17 weird. One time I was in here, all of a sudden there
18 was all these capital police and bailiffs, I was looking
19 like, what's going on, and I was playing with it. I
20 think I may have just pressed it. I'm not sure if
21 anybody comes rushing in to save us.
22 MS. LEVIN: What's the response time?
23 THE COURT: I didn't really pull it out. They

1 got here pretty fast.
2 I'll noodle on. I'm not inclined to give that
3 instruction.
4 MR. NELSON: I'm sorry? Not inclined to give
5 the general will you follow my instructions instruction?
6 THE COURT: Oh, I've never done it before, but
7 I'm not giving 30 -- I'm not give 31 if you're going to
8 ask for that.
9 MR. NELSON: I think you made it clear on 31.
10 And on 30, I hear what you're saying. We do think that
11 there is a bias that is really difficult to overcome if
12 you come into the proceedings already thinking that
13 Dominion rigged the 2020 Presidential Election. We
14 don't think that's overcomeable, and that's why we have
15 this question.
16 THE COURT: But why wouldn't you come up with
17 the question do you have any bias for or against
18 Dominion. If you really think they rigged the election,
19 you're going to say, yeah, I think they rigged the
20 election. That's why I'm biased, and I'm not going to
21 do it. This is sort of doubling, tripling, that's the
22 ultimate question.
23 MR. NELSON: I see your point, Your Honor. I

1 think there's a different --
2 THE COURT: Let's be very clear. If somebody
3 is going to lie and put their hand -- raise their hand
4 and affirm because they want to get on the jury and skew
5 this thing, there's really nothing -- all they have to
6 do in the first instance is not raise their hand. So, I
7 mean, if that's what you're concerned about, they're not
8 going to raise their hand and there's nothing you can do
9 about that. Sorry. That's the way it's always been.
10 It would be that way in any jurisdiction. If you ask
11 the jury and they don't say yes to any question because
12 they want to get on there and their number gets called,
13 unfortunately, that could happen. I have never had that
14 happen. But if that's what you guys are worried about,
15 and I don't want to ask the same question five different
16 ways because they may not have understood. If they have
17 bias against Dominion because they think Dominion stole
18 the election --
20 appreciate that. It's not because we think there's a
21 hidden juror out there. Certainly 30A was specific
22 enough that it might have missed and not realized. I
23 appreciate that and I appreciate Your Honor's ruling.

1 THE COURT: I'm hopeful that if somebody
2 actually thought that and lied their way on the jury and
3 may have a different opinion as to why the 2020
4 Presidential Election was rigged, hopefully they won't
5 think it was this.
7 THE COURT: Anything else?
8 MS. ELLIS: Nothing from Fox, Your Honor. Just
9 in terms of housekeeping, how would you like us to --
10 THE COURT: What will happen is, I will make
11 changes probably tonight. And I'll send it out for you
12 to review. And if you have additional comments, or you
13 think I really need it now that I see it, I know I'm
14 right and the judge is wrong and I'll reconsider. So
15 I'll send this out tonight to get final approval. Do I
16 have -- Mr. Ross, do you have a witness list yet?
17 MR. ROSS: I drafted one. That's just the
18 names of the witnesses and Fox is checking.
19 THE COURT: Okay. So it wouldn't help, anyway.
20 But what I do is, I send it out. What I usually would
21 do is probably right before we pick the jury, I'd say
22 any last comments, you know, that's a shorter trial.
23 But you'll have tomorrow, so you can let me know

1 tomorrow if you see either I make a mistake on it or now
2 that I think about it, there's another question. So
3 I'll send it out again. This isn't the final. I'll
4 send it out and you can look at it and say -- also, you
5 didn't provide, we put in the names of the lawyers and
6 things like that. I may have something wrong. There
7 may be lawyers that aren't going to be in this case who
8 may have argued summary judgment or been used in
9 discovery and then you may want to knock them off the
10 list. Believe it or not, people in Delaware are not
11 reading your pleadings to find out which lawyers are on
12 the case, but they will know who is practicing in front
13 of them when they stand up or you're sitting at the
14 table. For instance, on the Winston Strawn list,
15 there's 14 lawyers. That may not be a good thing to
16 have all 14 if only two are going to ask questions.
17 Right? We took that off of the pleading. Not what you
18 know. So if you see that and say, Judge, you know
19 Charles Park is no longer with the firm, knock that off,
20 something like that, they're not going to make any
21 arguments or they just did some depositions and they're
22 not going to be used, you may want to knock those things
23 off. I'll send it around so you can make other

1 comments. All right?
2 MS. ELLIS: Thank you, Your Honor.
3 Just one last question only because you had
4 brought it up, Your Honor, that's No. 14, which is --
5 you had a concern that that was a little bit too broad.
6 Now that we've looked at it, that was one that Fox had
7 proposed and Dominion agreed to it, but I think No. 15
8 frankly gets us where we need to know. So I just wanted
9 to let Your Honor know we'd be okay with it.
10 THE COURT: At first I wasn't -- I circled them
11 instead, crossed them out. The more I look at it, the
12 more I think they're important. Government procurement
13 is too vague. That would be lost. Bought staples,
14 paper for the courthouse, that's not going to get
15 whether they're bias in this case. But the voting ones
16 make total sense. If you were the person involved in
17 doing contracts in Delaware, you would want to know that
18 and know whether you could be fair and impartial.
19 Right?
21 THE COURT: Trust me, this was -- well, a lot
22 of lawyering in this case that's really good. Lots of
23 times, they're just so ridiculous it makes me cringe,

1 but they're pretty good questions. I could see the
2 strength of each one, but there's ones I don't give and
3 it's my discretion on the call.
4 MR. NELSON: And we have been back and forth.
5 MS. MOWERY: Your Honor, Kate Mowery. Before
6 we leave voir dire, I was wondering -- I know that Court
7 procedures have changed over COVID-19, and going back to
8 kind of normal, Your Honor had suggested there might be
9 a little bit difference in the voir dire processing,
10 going down to jury services, reading the voir dire. If
11 you could walk us through how you envision voir dire
12 proceeding, we would just appreciate it. We may have a
13 few questions.
14 THE COURT: Sure. How I anticipate it is,
15 unless I hear differently because we're still doing, to
16 make sure, the way we do it in COVID-19 is, I would go
17 down and hand out the voir dire. I'd come back and on
18 zoom I'd read the voir dire. That didn't work great.
19 So then what happened is the judge went down, did the
20 voir dire and read it and had the people raise their
21 hands, and then we would split the group up. People who
22 raised their hands, we would count. So let's say we
23 have 81 people and 12 raise their hands. Guess what's

1 happening? I'm bringing the one who raised their hands.
2 If I have more than 36, we're going -- because we do --
3 we would count the number. If it was a normal case,
4 let's say I was going to do 12 jurors, six strikes and
5 four alternates, and an additional eight needed four
6 strikes and four jurors, once I got to a magic number,
7 we would stop the voir dire process. Once you get to
8 the number, you need to seat. Then you would sit them
9 and ask the questions you wouldn't keep going because of
10 the exposure. So we changed that recently to where we
11 bring the jurors up and we ask the questions and they
12 raise their hand here, then we split. That takes a lot
13 of time and it's difficult to keep the numbers and I
14 anticipate that, well, not have enough people did not
15 raise their hands because I would think somebody is
16 going to say, I watch Fox News or whatever, or don't
17 watch Fox News, then find out they're not predisposed
18 one way or the other, and we'll maybe put them in the
19 jury pool and we'll make that determination. But it's
20 cumbersome to do that in this size. What I was going to
21 do is go down, read it, hand it out, it's in paper form.
22 You can read it as you go along. They read it. I read
23 it out. If you say yes to any of the questions, raise

1 your hand. What we're going to do then is split the
2 people who didn't raise their hands, and I'll ask, you
3 know, this is six weeks. Don't come on my jury and tell
4 me I thought it was only two weeks, something like that.
5 I'll make sure on time limitation whether they know it's
6 that time. And we're going to put them separate until
7 we figure out what to do. When we're going to pick the
8 jury, the ones would raise their hands will come up,
9 we'll bring them and then deal with the individual
10 questioning of the people up here. The jury selection
11 up here is open now. That doesn't mean you get to go
12 and listen to the questions. I ask the jurors -- that
13 really isn't any of your business, personal questions
14 are not your business, and I will ask them specifically
15 what questions -- which question or questions did you
16 respond yes to, and we'll go through each one and we'll
17 ask why they did it and everything. If they are -- if I
18 make the determination they can be fair and impartial,
19 they'll stay, then we will excuse a person that comes up
20 and says, I know Sidney Powell personally and blank.
21 Right. We'll say, okay, you can't be here. We'll let
22 them leave, period. In the end we just have people who
23 have raised their hands and they're cleared, people who

1 haven't raised their hands, and we pick the jury. I
2 have three panels coming in. I doubt we get to the
3 third panel Thursday. But with 81, 81 and 81, I would
4 be surprised we can't get 36. And then what I'm going
5 to do is anybody who be cleared and should be in the
6 selection, I'm not swearing the jury in Thursday. I'm
7 going to swear the jury in on Monday. I'm going to
8 bring the people who we didn't put in the box back on
9 Monday in case somebody doesn't show. I'm very
10 concerned with the number of jurors. That's why I
11 wanted to have more alternates. What I don't want to do
12 is pick 18 people and have only 17 show because somebody
13 gets sick over the weekend and have to pick out the
14 general jury pool people who may not be six-week
15 qualified. So I'll bring back everybody we haven't used
16 yet Monday, and if we have to fill anybody in, we will,
17 and give you a strike on that. Let's say 15 people
18 showed up on Monday because of illness, I may have 20
19 people still left. We'll start with 18, is what's going
20 to happen. That's what I'm planning to do. Any
21 questions about that?
22 MS. MOWERY: I do just have one question, Your
23 Honor. When they come up, you said once the yeses are
1 brought up to the courtroom, the question will not be --
2 the personal questions will not be in front of the
3 public.
4 THE COURT: It's usually just the lawyers that
5 are controlling the voir dire and the judge and the
6 clerk.
7 MS. MOWERY: The other question is are we going
8 to go into chambers or are you going to got to sidebar?
9 Different judges do it in different way. Our suggestion
10 was do it in the courtroom because there's so many of
11 us. We would like the client to be a part of the
12 determination. But that was just one suggestion.
13 THE COURT: I would. I'll think about it. I
14 was going to do it in a conference room. Mostly because
15 if I do have a question that I want, if you have
16 follow-up questions, it's kind of hard to do without
17 asking the question here. We haven't been doing it at
18 sidebar because of COVID and getting everybody jammed
19 in. And some jurors, you may feel comfortable, some
20 people don't. And having a cluster of people around you
21 as you ask the question in this day and age, they're not
22 as comfortable. So we've been doing it here. It's
23 usually we bring them in one at a time and other jurors

1 are not sitting in here.
2 If you're wondering what my comment was about
3 you don't have -- there are personal questions we ask
4 people that you may want to know but you don't have a
5 right to know about somebody's -- what individual person
6 who's been summoned here will pry into their business is
7 not -- we're going to find out whether they're fair and
8 impartial. And it's not relevant as to what TV shows
9 they watch to the rest of the world. It may be relevant
10 to us. It's not something that needs to be broadcasted.
11 Sometimes there are very personal things brought up at
12 sidebar. And it could be harmful, and they may not
13 raise their hand if they think they're going to stand in
14 front of 70 people and out loud without any type of
15 white noise tell us something that happened in their
16 life. But we need them to tell us. And I dont' want to
17 do that. So I would either do it in a conference room
18 or maybe we will do it at sidebar. I was going to do it
19 in the conference room.
20 MS. MOWERY: Your Honor, I think a conference
21 room would probably be okay. I just wanted to raise
22 because there are a large number of counsel. We will
23 try and narrow that down. I think a conference room

1 would be fine. We were curious whether it would be a
2 conference room or --
3 THE COURT: Also, we're getting more formal.
4 The reason I was, when certain people stood up I said
5 one ranger one riot, I've had to on both sides, is that
6 I'm not asking for specific expertise. And remember
7 when I said I don't mind breaking up arguments because
8 somebody may be stronger on First Amendment than they
9 are on what the deposition said. Because you use
10 different people. Once we start what's your objection,
11 it's relevance, Your Honor, and then the other person's
12 maybe is not responding as well, the others think they
13 should to that objection and they start chiming in, and
14 it's like no. These are the people who have engaged
15 with the court we need to formally do this. We picked
16 these people to do this. And we're not going to double
17 up on somebody or triple up on somebody in that
18 situation.
19 So when we do this, you can bring lawyers
20 around. They are not going to be able to ask follow-up
21 questions. It's going to be the two people that are
22 designated, one for Dominion and one from Fox for the
23 voir dire.
1 I mean, I've never had that as a problem. In
2 fact, I found the attorneys to be great at sidebar and
3 jury selection. But I've never had a second attorney
4 say something. So if everybody understands, you may be
5 able to come up. But if you say something and you're
6 not one of the two people, you may lose -- again, I have
7 every right to say you cannot ask questions in this
8 case. There are a lot of lawyers in this case. But if
9 I feel somebody breaks my rule on something that -- I
10 may give you a chance, I may not.
11 You know, I had somebody else come in who is a
12 juror, a citizen in New Castle County. They're up there
13 and they're going to giving you six week of their time
14 and people start bombarding them, I found that wrong.
15 And I won't let you do it. It's different with me. But
16 I'd probably be less lenient with somebody who did it at
17 sidebar. Because it's just scarey. I mean, people
18 don't come into court all the time. This is a very
19 stressful environment to them. I will protect the
20 juror.
21 MS. MOWERY: Understood, Your Honor.
22 THE COURT: The issue with bigger voir dire, we
23 do in a conference room and we bring them in one at a

1 time. Because it's more comfortable for the judge. I'm
2 older.
3 MS. MOWERY: We're fine with that, Your Honor.
4 Two additional questions. Because the media
5 protocol says identities of jurors are not to be
6 provided, are they going to be numbered?
7 THE COURT: Yes.
8 MS. MOWERY: We'll be given a sheet at the
9 beginning of the morning with numbers?
10 THE COURT: I think that's -- I'll find out
11 more. There's a statute in Delaware which juror lists
12 are allowed but the judge can order the restriction of
13 the use of the names. And this is the type of case,
14 this is -- most of the cases that are reported are
15 usually murder case involving witness and juror
16 protection for community like, for instance, a police
17 officer worried that the jurors might be, if a police
18 officer is murdered, there may be a lot of public
19 feeling, sentiment about that. And what they've done is
20 they've restricted the name.
21 I'm concerned about tampering. There's a lot
22 of things happening that you -- and I'm concerned that
23 if we put jurors names in front of people, responsible

1 people will not follow up on that. But irresponsible
2 people will go and Can I interview you? You're on the
3 jury. Then I lose a juror. I don't have a lot of
4 jurors. So we're going to go use the coding.
5 MS. MOWERY: Understood. That's fine. We
6 wanted to make sure that at some point we get a --
7 THE COURT: That wasn't for you. That was for
8 anybody who thinks that I have to give you the name.
9 I've already made that determination in the statute that
10 allows me to do that.
11 MS. MOWERY: From Fox's information we were
12 going to get a copy of that with the numbers so we can
13 match up the juror questionnaire.
14 THE COURT: Do you want me to --
15 MS. MOWERY: She's nodding her head. I'm
16 guessing the morning of perhaps. If we can get it
17 earlier, of course that would be --
18 THE CLERK: It's the morning.
19 THE COURT: Because we don't know who is coming
20 in.
21 MS. MOWERY: Fair enough. Understood.
22 And then with respect to the juror
23 questionnaires that have already been provided, we've

1 gotten a juror list with some answers to juror
2 questionnaires. Unfortunately, the responses are
3 minimal, which has been my experience in the past. We
4 were wondering if Your Honor would be amenable to asking
5 any background questions for those jurors who have not
6 responded at all on the juror questionnaire.
7 THE COURT: Depends on the reason.
8 MS. MOWERY: I think for us it would be --
9 THE COURT: It depends on, what usually happens
10 is you make a request at a certain point of the thing.
11 So let's say we go through all the jurors, we've knocked
12 certain people out. And we would say, Your Honor, I
13 don't know if Sue Johnson is here or not, but we need
14 certain information for Sue Johnson. I'll say what
15 information do you need. I'll hear the proffer as to
16 why that information is necessary.
17 MS. MOWERY: Understood. That could be for a
18 juror that says yes or no.
19 THE COURT: Yes or no I'm not sure. But if
20 they have blank, that's different. Yes or no you get.
21 You don't get to just say everybody who said a yes. Why
22 would I be asking another voir dire? What I would do is
23 if they had a blank. So one of the ones that can be a

1 problem they don't list any occupation. You don't know.
2 They haven't answered any questions. They haven't
3 raised their hand. You say we haven't voir dired Sue
4 Johnson. She just has her name and she doesn't have any
5 other information. I say why's the other information
6 important. You'll tell me. Hopefully, you'll have a
7 reason. We'll bring that person up last.
8 MR. WEBB: Okay.
9 THE COURT: But I wouldn't just do it for
10 everybody in the group because they may have been
11 knocked off for other reasons or they don't have the
12 ability to stay the six weeks. Why waste the time doing
13 that? But once we get to a certain point, you do the
14 end of the questioning or if they come in you could say
15 to me, Your Honor, in addition to the questions that she
16 said yes or no to or raised their hand with, can you ask
17 her this.
18 MS. MOWERY: Understood. I appreciate your
19 time.
20 THE COURT: No.
21 MR. NELSON: Your Honor, just a couple of
22 follow-ups.
23 THE COURT: This is not one of the one ranger

1 one riot ones. This is a process getting new to you
2 right away. This is not argument. This is the process.
3 Other stuff was argument. If somebody says, Your Honor,
4 I just did a case in the Southern District and they have
5 the same COVID protocols that you have and the judge did
6 this, more the merrier. But the other one is different.
7 That's what we were arguing.
9 Just a couple follow-up questions. Your Honor
10 had mentioned this morning that there had been from the
11 900 or whatever initial group, that the three sets of 81
12 or something that had been qualified or had been
13 returned. And would Your Honor be open to giving the
14 people who have responded back prior to the morning of
15 jury selection so that we know who might show up?
16 THE COURT: I think people have already made
17 requests for that list.
18 MR. WEBB: I actually have the same question
19 that Mr. Nelson did. I was trying to figure out, I've
20 got a group of about 900 jurors.
21 MR. NELSON: Correct.
22 MR. WEBB: Both sides probably have jury
23 consultants we're working with a little bit. So if we

1 knew who was in the three groups of eighty, which I
2 guess would be much less than 900, it would allow us to
3 focus a little better on knowing who to try to evaluate
4 before when we get here just so we could look at to know
5 who they are.
6 THE COURT: Search them on the Internet.
7 MR. WEBB: No, not really so much. Just some
8 of them we don't, other than their name and their race,
9 we don't have any information about at all. I don't
10 know whether they're being excluded because they didn't
11 fill out the form. Anyway, I would just ask whether we
12 could get the names of the three groups, the 80, 80, and
13 80.
14 THE COURT: Michelle, I thought that's what
15 they were getting.
16 THE CLERK: That would be in the morning
17 though. I'd have to talk to jury services about that.
18 THE COURT: They include who the 243 are as
19 opposed to the 900? I'll find out.
21 THE COURT: I thought the list was coming out
22 and it could change, which to me would only mean whose
23 returned it. We're not excluding anybody. We don't

1 make that determination. The only thing that we do is,
2 if they call in and say I can't do the six weeks, we set
3 them up for another jury trial. We don't say you're
4 excluded. We just say, okay, you can't serve this time,
5 you're in Germany, and they call in and we give them a
6 new time. We don't say your occupation is incorrect or
7 something like that.
8 MR. WEBB: One other question I had. When we
9 go down to the jury services, the first floor when
10 they're all in there and you've given them the voir dire
11 questions, when they -- we have a number. We have a
12 number for the jurors, one number. So No. 28 we know is
13 John Jones. We're not going to say his name or
14 anything. We know that's John Jones. There's a
15 questionnaire that the court system sent out to
16 Mr. Jones and he's No. 28 on the list. So that when
17 people raise their hands to go into the yes or no group,
18 to go into the yes group, we'll know the number of the
19 person raising his or her hand.
20 THE COURT: They'll come up and I'll say what
21 number are you.
22 MR. WEBB: Okay. Great.
23 THE COURT: Trust me. I don't have ESP. So

1 what happens when we don't have numbers is, let's say we
2 have a nice group here right now, probably couldn't get
3 enough for a jury, but there's enough in attendance, I
4 would ask the question. Then I would say the people on
5 the pews, if you said yes to any of the following
6 questions, please raise your hand. And like I said,
7 let's say they all raise their hand so I don't have
8 enough. We would bring each one up. The first question
9 I asked them because I don't know, what's their name.
10 So I'll ask them what's their number or what's their
11 name, so you'll know.
12 MR. WEBB: One more question. As far as when
13 it comes time for preemptory challenges, we're going to
14 pick the regular jury first, I assume, which means 12
15 jurors, 12 challenges. So that's a group of 24, I
16 guess. But you're going to call 12 into the box? How
17 do we just -- I was trying to go through the logistics
18 in my own mind. You call 12 into the box and then we're
19 exercising challenges against those 12 first?
20 THE COURT: Right. So it will go plaintiff,
21 defendant, plaintiff, defendant. Once you say you're
22 content, you can only strike somebody who is newly
23 seated. You can't then strike somebody who is already

1 on the panel when you said all content.
2 MR. WEBB: So we first start with 12 in the
3 box. Does the plaintiff go first with their challenge?
4 THE COURT: Right.
5 MR. WEBB: Then they pass a note pad onto us or
6 the sub list.
7 THE COURT: Clipboard.
8 MR. WEBB: Clipboard. We'll get 12 names.
9 They took juror four off. They excuse juror four. Do
10 we replace juror four right at that point?
11 THE COURT: Yes. I'll have 12 people in. And
12 normally we call them by name, one through 12. And
13 they're known thereafter as juror No. 1 and Juror No. 4.
14 So we put the 12 in. And let's say somebody strikes the
15 Special Master. Let's say the plaintiff strikes him.
16 He will leave. And then we'll call you a new number and
17 sit him in. And you will have the ability to strike all
18 12, one, and that person may be same No. 1. I've had
19 it -- for some reason it's an unlucky chair. And we'll
20 keep filling it in until you run out of strikes.
22 THE COURT: I don't think that's any different
23 than -- is there places where it's done different?

1 MR. WEBB: No. It's interesting. Around the
2 country different -- I see judges now doing what they
3 call the bride system, which I don't know whether that
4 they -- if you know that you need 12, there will be 24
5 people on a list.
6 THE COURT: Right.
7 MR. WEBB: It goes to the plaintiff first, back
8 and forth, back and forth, and then the last 12
9 standing.
11 MR. WEBB: So we don't go back and forth. We
12 know that we're going to pick out of those 24 people.
13 And there's no one replacing anybody else. I don't know
14 whether that's good or bad.
15 THE COURT: And then they bring on an
16 additional group up as they fill then in as they run out
17 of people.
18 MR. WEBB: Yes. Thank you.
19 THE COURT: They used to do that a lot in the
20 death penalty because it takes two, three weeks to pick
21 the whole jury. So you kind of go through the whole
22 group.
23 Local counsel should know this. So what

1 happens is we have one list of people, I guess
2 numerically in this case, A through Z. And we do that
3 with the yes/no questions. Then we have a randomized
4 list so it's not just by letters. Then Michelle or
5 Brian will have to then go through and knock all the
6 people off the randomized list we've excused for cause.
7 And then they will sit the 12. So there's going to be a
8 lag in between when we've gone through all the cause
9 excusing until when we final sit the 12. That's the one
10 where everybody is sitting around wondering what's going
11 on. But we don't use the same list. It's a randomized
12 list, so that it's done by random as opposed to we pick
13 the person.
14 MR. NELSON: Thank you, Your Honor. So should
15 we follow up with jury services --
16 THE COURT: I'm going to find out at a break.
18 THE COURT: Any more questions on voir dire?
19 MR. WEBB: No, Your Honor.
20 MR. NELSON: No.
21 THE COURT: Does everybody trust me to go down
22 and ask the questions, or do you want to have somebody
23 watching me? It's a loaded question. You can't be

1 wrong on this one.
2 MR. WEBB: No, Your Honor.
3 MR. NELSON: Your Honor's pleasure.
4 THE COURT: I'm just going to go down and ask
5 the questions and I'll just read the list.
6 I do address the jury beforehand, which is not
7 public. But I do address the jury ahead of time and why
8 they are there, not on this case, but they are there as
9 jurors, why we need them, and to talk about what you've
10 already heard, what fair and impartial means. Fair and
11 impartial means you make your decision solely in this
12 case based on the evidence presented in the courtroom
13 and the law as I instruct you. And that's the key is
14 can you be fair and impartial.
15 I generally don't give hardships. If a person
16 says I don't know what my job will do, I don't usually
17 give hardships until I know I have enough jurors. I may
18 make a different decision in this case because of the
19 length. For instance, in this case, I'm a partner in
20 the law firm and I can't be away for three days. Good
21 luck 'cause you're staying. On the other hand, if
22 somebody says to me I just get a job after three months
23 being unemployed and I'm on probation and I don't want

1 to get fired, you don't want them on the jury and I
2 don't want them on the jury. I really feel like they
3 might hold it against somebody if they stay. If it's
4 just like I'm too busy for this, they stay. And if I
5 have enough jurors I'll let them go.
6 MR. WEBB: I did have one other question.
7 Thank you for offering. I was thinking about this last
8 night. So that when both sides have clients in this
9 case. And it's a big deal case. We all know that. So
10 people want to be consulted. Say you had the first 12
11 going into the box, okay. Will there be short breaks
12 where we get to talk among yourselves for a little bit
13 because people can have some input in what we think
14 about those 12 people as far as our six challenges? Or
15 will we not even have that opportunity?
16 THE COURT: I'm not going to recess. So what
17 you would do is try to bring up the people you would
18 consult with at the table. Yes. Think about a criminal
19 case. You have to turn to your client and say I want to
20 strike this person; what's your thought? Right? Just
21 have them up. Maybe you can add one extra chair. But
22 we're not going to take a recess to go huddle, 30-second
23 clock is on, break. If you take a minute --

1 MR. WEBB: That's fine. I'm just asking.
2 THE COURT: No. I just want them at the table.
3 I'm not going to have a recess where you leave the room,
4 consult and come back. But you can, and there's no time
5 clock. I'm just going to wait.
6 MR. WEBB: There are 12 in the box watching us,
7 too. So we're not going to take too long. We got it.
8 Thank you.
9 THE COURT: I've always wondered about that.
10 People think that being mean to somebody is a good idea.
11 And then later you talk to the jury and they say I
12 didn't like that person because he was always mean to
13 the witnesses. Okay. Penny wise, pound foolish.
14 Nothing like making a child witness cry. That's always
15 good.
16 All right. So I don't have a witness list so I
17 don't know what I can do with that.
18 But I got an e-mail from Mr. Farnan this
19 morning at 8:17. I'm just trying to look at time. This
20 is the next thing. I think what we'll do is go over the
21 pretrial stipulation now after the next break unless
22 somebody wants -- is there any specific issue other than
23 the witness, how we're doing these witnesses right now?

1 Is there a different issue than that?
2 MR. WEBB: Sometime over the next -- we're
3 coming back tomorrow then, are we?
4 THE COURT: People are filing things as I'm
5 sitting here. If you think I'm ruling on it today, I'm
6 quick but I'm not that quick.
7 MR. WEBB: We're going to be back tomorrow.
8 THE COURT: Yeah.
9 MR. WEBB: At some point, we could do it
10 tomorrow, I would like to set aside a little time to
11 talk about that offer of proof in the opening statement
12 because I don't want to make a mistake and violate the
13 order. At some point, whenever you have time for a few
14 minutes, we could do it tomorrow, but I'd like to do it
15 so that I don't --
16 THE COURT: Let me see if I want to revisit
17 that. I'll let you know.
18 [!EZ SPEAKER 99]: Thank you.
19 THE COURT: I think I've been pretty clear as
20 to what I want and what I don't want. And I think, as I
21 said, I highly doubt that anybody inadvertently will do
22 something in this case. So if somebody knows a ruling
23 by the Court and they either veiled or unveiled make it

1 in a question or in a opening statement or a closing
2 argument, I've told you what I'm going to do. And we
3 can go over it again. But the thing is if I've ruled
4 that there's no evidence to support the four types of
5 allegations against Dominion, if you talk about falsity
6 during your opening statements, there is going to be a
7 problem. If you talk about publication, only the host
8 is the person. You don't look at what the speaker, the
9 person, we're going to have a problem. You asked me --
10 that was the fundamental legal question that's asked of
11 me. In New York and other places there are certain
12 decisions like whether it's protected by the opinion
13 privilege is not something that should be brought up in
14 your questioning or in opening and closing statements.
15 That is a matter of law every court says. The judge has
16 to make that decision ahead of time. If you want to say
17 these are just mere opinions, then you're going to have
18 a problem. I don't think that's inadvertent. I think
19 you're doing that to reargue something that the Court
20 ruled on.
21 On the other hand, like the newsworthy, the
22 problem is I don't think the general public knows what
23 the newsworthy, slash, neutral report privilege is. If

1 that slips out, that's something different. If there's
2 something in there about we wonder whether Fox really
3 published this, we're going to have a problem.
4 MR. WEBB: I understand, Your Honor. I'll tell
5 you right now, I'm not even going to come close on that
6 issue. On falsity publication or anything you've ruled
7 on. I set forth in that offer of proof four issues that
8 I proffer up and tie all four to malice and explain to
9 the jury why they're malice. I put them in the offer of
10 proof for the reason for the reason you told me this
11 morning, which is that I can't afford to make a mistake
12 on that that's why I put it in writing so that you could
13 look at it. But anyway --
14 THE COURT: Here's an issue that doesn't go to
15 that point that I have a problem with. Whether a host
16 said it or whether a guest said, it does not go to
17 actual malice. What goes to actual malice is, at the
18 time the statement was made did either the speaker or
19 the person who had a role in the publication of that
20 statement have actual malice. Whether it is said by a
21 host or the witness as a way to try and say, well,
22 Sidney Powell doesn't work for Fox, you can't hold Fox
23 responsible. Fox published Sidney Powell. And that's

1 why it's important. And so what I picked up on it
2 that's the type of thing that's going to get you an
3 instruction from the judge, which is it's irrelevant
4 whether it's said by Lou Dobbs or Sidney Powell. It's
5 published. And that's what you're trying to make a
6 determination. At the time it was published did Fox
7 News or Fox Corporation have actual malice, which is
8 knowing it was false, reckless disregard for the truth.
9 That's what they're trying to determine, not whether who
10 said it. It's a publication issue, not a who said it
11 issue. That's not what the rule says. It's
12 publication. Look at what the elements are. It's a
13 false statement touching and concerning that is
14 published with actual malice that causes damages.
15 MR. WEBB: On that limited issue, presented the
16 offer of proof, it's issue No. 3 or 4, I'll just briefly
17 mention it, then I'll leave it alone. You could look at
18 it. On that issue, the hosts are going to testify that
19 because they did -- they weren't certain about these
20 allegations and they were covering it for a period of
21 time because they said, Trump and his lawyers said they
22 had the evidence and they're going to go to court and
23 prove it. The hosts will say that during that time
1 period, 15, 20 days, whatever it is, they were careful
2 not to repeat the allegation because they didn't want to
3 do that because they didn't want to act recklessly.
4 THE COURT: We'll let the jury decide whether
5 that's true or not.
6 [!EZ SPEAKER 99]: I agree.
7 THE COURT: Just because they say it doesn't
8 mean it's true.
9 MR. WEBB: I know that, too. Some of them will
10 say that they went out of their way not to repeat it so
11 that they did not act recklessly, which I think goes to
12 malice.
13 THE COURT: I'm not going to rule on it right
14 now. One of the big questions on the issue of fact and
15 actual malice is timing. When did Fox, if ever, know
16 that this was false or recklessly disregarding? There
17 may be three statements made early on that there isn't
18 actual malice. But there maybe ten statements that
19 there is. We'll go through that.
21 MR. NELSON: Thank you, Your Honor. We do
22 have --
23 THE COURT: Differing opinions on that.

1 MR. NELSON: Yes.
2 THE COURT: I know you do.
3 MS. BROOK: Your Honor, in answer to your
4 question from a couple of minutes ago, if there's
5 anything else besides the pretrial stipulation --
6 THE COURT: Or witnesses.
7 MS. BROOK: Yes. The attorneys have been
8 meeting and conferring for both sides. And I think we
9 both have some other issues, some of which Your Honor
10 mentioned have been briefed, many of which have not.
11 But we've met and conferred on them so I think it's an
12 ongoing issue. So we would be prepared to talk through
13 those with Your Honor this afternoon if it is to your
14 pleasure or we can submit them in an agenda for
15 tomorrow.
16 THE COURT: I'm just saying, we're going to go
17 until three, and then we'll take, what, 20 minutes, and
18 then we'll go to 4:30. The next thing I was going to
19 bring up was the e-mail and timing on how you're doing
20 this issue and whether it's joint or you agree. No,
21 that's what we're here for. We're not just going to go
22 over what's the pretrial stip. Let's do it now if we
23 can. Hopefully, it smooths it out.

1 One thing I saw in the pretrial stip that I
2 think you need to think about or fix is I don't know how
3 the depo designations are going. And there's something
4 about that by nine o'clock you'll identify, at night,
5 good luck with that, and then the Court will address it
6 first thing for the day after. That's fine if it's one
7 question, two questions. But if you have 17, 18, it's
8 going to start counting against your time. Keep that in
9 mind.
10 And, for example, Your Honor, this was a vague
11 question; did he answer it? Yes. Did do follow up and
12 clarify? No. That's your problem. Vague is not, does
13 not knock out its relevance or whatnot. It needs to be
14 something that's objectionable. If you have in a depo
15 and it's a vague question and you object to the form of
16 the question, you are entitled at the end of the
17 deposition to clarify the answer. If you didn't do that
18 and you're relying on the deposition, I'm not going to
19 knock it out because you didn't clarify what was vague
20 about the question. That's the whole point. Have to
21 read the depo. Remember My Cousin Vinnie where he's
22 talking and he's saying it as a question, then it comes
23 up across on a cold record as if he's confessing to the

1 crime? I've had that happen in depos and had to go
2 back. Sarcasm, shock, awe don't come across well on a
3 paper record.
4 Let's go to one, then you guys can fill up the
5 time. This one about regarding providing the court with
6 notices of witnesses per the parties's pretrial
7 stipulation. The parties have agreed to provide each
8 other with five days notice of any adverse witnesses and
9 60 hours notice of any non-adverse witnesses. Dominion
10 proposes the parties provide the court a joint e-mail by
11 8 p.m. each evening identifying the non-adverse
12 witnesses for the next three days and adverse witnesses
13 for the next five days. For Dominion to provide earlier
14 information it will, for example -- and I'm not going to
15 go into that point -- Dominion presently has 40 live
16 witnesses. And then given that Fox is unable to inform
17 the court separately when each one can come to trial.
18 It's a long time. I don't know that you can --
19 I don't find Fox's point that unreasonable with respect
20 to adverse witnesses. But I do think there should be a
21 timeframe. So, in other words, you may not be able to
22 say I'm going to depose this person, not depose, have
23 them testify on Tuesday. Who knows what's going to

1 happen on Tuesday. They may be the last person on that
2 list. It may bleed into Wednesday. So what you're
3 trying to do is like we're going to need them either
4 Tuesday or Wednesday or Tuesday, Wednesday -- you have
5 to work with each other on that. You can't -- I don't
6 find that Fox's reluctance on that to be too
7 unreasonable. I think there's got to be something.
8 Everybody can't jump and come here. They may have a
9 wedding, a birthday, a graduation. You have to work
10 with them.
11 MR. ROSS: Your Honor, absolutely. And that's
12 why, while the default is the five days for the adverse
13 witnesses, as you note, we've already told Fox, we've
14 told them on Friday who are two of the adverse witnesses
15 that we expect to be calling in the first week. We
16 continue to expect to do that. Five days is the bottom
17 line and that's what the parties had already agreed to
18 that. And that will be five days to the day, right, so
19 you will be five days before that day, you know. But we
20 absolutely plan as best we can to try to give notice
21 when we've got ours. Obviously, it's a trial, things
22 change. Our lineup may change. To the extent, as we
23 already have done, when we know these folks are coming,

1 we're going to give them as much notice as we can.
2 That's what we did for those individuals.
3 MR. WEBB: I think that's right. I think we're
4 working together. What it comes down at the end of the
5 day with an adverse witness we will have at least five
6 days notice. If they can't put them on, so that first
7 day would be five days. They might not get that person
8 on that day. It might be the next day. Or it could be
9 the next day. And they have a right to do that. In
10 other words, they can't guarantee. We're expecting them
11 to guarantee us that witness will get on the stand that
12 day. But they can't be put on earlier. We talked about
13 this. We've gotten an agreement. It's a clear
14 understanding.
15 THE COURT: The concern is the security for
16 them. That's what my understanding is.
17 MR. WEBB: Yes, there are concerns.
18 THE COURT: So Lieutenant Kerr is our contact
19 person with capital. I'll be straightforward. I think
20 I've said this before. I don't tell them how to run
21 security and they don't interpret contracts for me. So
22 what they said is they'll need some type of notice in
23 order to take care of the people. I'm not going to

1 guard people as they go in and out. They will. You
2 need to make sure you figure out some system to let them
3 know in the event you want somebody -- I mean, there may
4 be people who don't need anything, maybe other people
5 who need a lot. So it would be Lieutenant Kerr. He's
6 the contact person.
7 MR. ROSS: Your Honor, that's one of the
8 reasons why we gave the advance notice on those two
9 witnesses. For our first week we don't think we'll have
10 any witnesses that will use that.
11 THE COURT: So I should let them know that in
12 the first week there will be two people who might
13 testify.
14 MR. ROSS: Yes. Heightened secured for those
15 two witnesses.
16 MR. WEBB: Yes.
17 THE COURT: Do you --
18 MR. WEBB: Yes. The answer is yes, Your Honor.
19 In connection with that, there is one I think
20 still an open issue. If it's been ruled on, I
21 apologize. On the issue that when they call one of our
22 witnesses adverse and John Jones is there on the fifth
23 day and going on the stand at 9:30 in the morning, I

1 think Your Honor mentioned in one of our hearings do
2 we -- it's because it's our witness they're calling
3 adverse, do we get to start with I'll call it a clear
4 direct exam where we get to go first and tell our story
5 about what and then they get to cross or do they start
6 with their cross-examination? I thought you said under
7 Rule 611 you were thinking about that.
8 THE COURT: No. I think the comment was a
9 little more pejorative than that. I said I've never had
10 to do that but I said I will do it under 611 if I have
11 to. In other words, I've never had a case where the
12 parties haven't said to me, Your Honor, this is how
13 we're going to do an adverse witness and then I've
14 disagreed because they've come together, they've made a
15 determination. This is the first case that I've ever
16 had where the lawyers are unable for some reason to make
17 a determination how the witness -- technically, I would
18 think, under 611 the way I would do it is because it's
19 being called by one party they would go first. And then
20 the thing is it's not going to be limited. In other
21 words, this is the sword shield. And it's done all the
22 time. Is I put them on, I only ask two questions, Your
23 Honor. Fox isn't allowed to ask anything. The scope of

1 their redirect is those two questions. The answer is
2 no. If the adverse witness has to go on first and the
3 party asking the questions limits it, because it's an
4 adverse witness, Fox is going to bring evidence in, it's
5 wide open on cross-examination or technically
6 cross-examination. And then you'll get a chance and go
7 back and forth until you have no further questions.
8 That would be the way I think 611 envisions it. But
9 I've never had to do it.
10 MR. ROSS: Just so we're straight, the parties
11 have agreed that we start first if we called an adverse.
12 There's just five witnesses that there was some question
13 about.
14 THE COURT: The Judge Davis rule is you get two
15 and a half then.
16 MS. BROOK: We won't cover half.
17 MR. ROSS: We're just trying to figure out how
18 to deal with that. So I think with what Your Honor just
19 said, we have our guidance how it should go. But it was
20 really, the issue had boiled down to just these five who
21 were not on our live witness list. But because we
22 didn't want to lose the opportunity to have any
23 testimony from them, we thought we need to bring them

1 live until such time as we decided we don't need them.
2 THE COURT: Like I said, I'll rule on it. If
3 Fox is accommodating you on a lot of things,
4 accommodating them on five witnesses doesn't seem
5 unreasonable. So I'd think about it. Look, I know
6 there have been times where I've had an adverse witness
7 where the other side has allowed me to ask the
8 questions. The first time they've ever testified and
9 they, like I said, normal people don't spend all their
10 time in court, and I wanted the opportunity to make the
11 person comfortable. And I thought that would actual
12 help them on cross-exam because they would be able to be
13 in a rhythm and they would know what the questioning is
14 about and they wouldn't be trying to guess what's going
15 on. And they would just ask the questions until they
16 got warmed up and they feel comfortable. Even though
17 we'd been doing it for John Doe, I would like to start
18 the questioning, not because I'm tricking you, but
19 because John doe has never testified in court. He's
20 represented to me he's very nervous. I think he knows
21 me because I've been his lawyer the whole time and I'd
22 like to start his questioning to get him going. And you
23 could to the biggest cross that you want when you get
1 him, but I want to have 15 minutes with him to get him
2 into a flow so he feels comfortable in his surroundings
3 so that he's answering correctly. I think it's a
4 courtesy to the witness.
5 MR. ROSS: We'll talk to Fox.
6 MR. WEBB: One other logistical issue on this
7 topic. I don't think it's been resolved. I think it's
8 important to Your Honor. If you want to take a
9 recess --
10 THE COURT: No.
11 [!EZ SPEAKER 99]: The issue is this: When
12 they call adverse, when they call witnesses, we had
13 proposed that they give us five days notice but then
14 three days before the witness goes on they show us the
15 exhibits they're going to use, assuming they are going
16 first, they get to go first, what they're going to use
17 on their adverse direct examination, so that we can talk
18 with each other, meet and confer. And if we think
19 there's still some objections to those exhibits they're
20 going to use, we raise it in front of Your Honor before
21 we get in front of the jury and interrupt each other and
22 have sidebars jurors get upset. I don't think we've
23 agreed on that. I think that's important that if

1 they're calling a witness in their case, adverse or
2 otherwise, they need to give us a list of the exhibits
3 they're going to use on direct so we can talk about
4 objections. If there's any unresolved objections, we
5 meet and confer, we do the work. And those that can't
6 be resolved, we bring them before Your Honor before the
7 jury comes in that morning. I don't think we've agreed
8 on that.
9 MR. ROSS: Mr. Webb is now asking that when we
10 cross-examine a witness, they get to see our documents
11 three days before. That is highly unusual. I believe
12 the Court already sort of indicated that during the
13 previous hearing. That is not something that the
14 parties should do. We believe that we can get a lot of
15 our objections done before time to exhibits without
16 tying them to witnesses and that we should follow the
17 normal practice, which is when a witness takes the
18 stand, the Court, witness, and opposing counsel, have a
19 binder of documents. But not to preview, especially
20 with our witnesses who are taking adverse
21 cross-examination what documents we're going to use to
22 cross-examine them.
23 MR. WEBB: Your Honor, there's actually,

1 there's still large numbers of exhibits. Because the
2 parties, both their lists, because of the nature of this
3 case has got so many exhibits on it, if Mr. Jones is on
4 the stand next week and they pull out an exhibit to use
5 during their first examination, whatever you want to
6 call it because they went to go first, if I have an
7 objection, I have a stand up in front of the jury and
8 object and ask for a sidebar. That's what I didn't want
9 to do. I don't think they should have to do that
10 either. Do the same thing for them with their
11 witnesses. We ought to let each other know what we're
12 going to do on that first exam so that we could work
13 out -- there's just too many darn exhibits in this case,
14 and they're not all worked out yet. And I don't want
15 that jack in box in front of the jury.
16 MR. ROSS: Your Honor, they're trying to
17 benefit to having objected to almost every exhibit that
18 you have seen in response in the summary judgment
19 briefing. One of the issues that we've had is that even
20 though they started by objecting to everything and they
21 have now lifted it for some documents, most of it is
22 public records, videos, that sort of thing. Almost
23 every exhibit that you saw and reviewed in summary

1 judgment is still objected to, the exhibits that you
2 would expect for us to go to trial. They want to see
3 which ones are going to be used with which witnesses
4 three days before we do our cross-examination. They
5 shouldn't benefit from that.
6 MR. WEBB: Well, it's not a benefit. It's a
7 matter for all of us to not be having -- when they start
8 to use exhibits that there are still objections to, we
9 should talk to each other about it and resolve if
10 possible. If not, I have to raise it with the Court.
11 Otherwise, I'm going to have to object in front of the
12 jury, and I'm trying to avoid that. You have told us
13 that you want the lawyers to try to cooperate so that we
14 don't take up the jury's time. I'm not trying to get
15 some strategic advantage. I've been through this so
16 many times where we've got too many exhibits that are
17 still objected to. I'm trying to avoid interruptions to
18 the jury. That's what I'm trying to do.
19 MR. ROSS: We are meeting and conferring on
20 exhibits and we continue to do that. But what we cannot
21 do is basically show what documents we're going to use
22 on our cross-examinations of their witnesses. And the
23 reason all their witnesses are in our case, to be clear,

1 because Fox said if you don't put them in your case and
2 you rest, then if we decide for tactical reasons that we
3 don't want them in our case, then that's it, they are
4 gone, we don't get any testimony from them. So there's
5 a reason why we're calling all these witnesses adverse
6 in our case. Fox put us to that. We're fine with that.
7 We understand their concern. And we're okay with that.
8 We're not a trying to gain the system by putting them
9 all in our case. It's Fox that decided that we would
10 lose that right to call them if they have them on their
11 live list and decide to drop them after our evidence
12 closed.
13 MR. WEBB: We took that position because I
14 think we're in a position where big trials go and you
15 start saying we've already kept this jury here too long
16 on this issue, I'm not calling Mr. Jones. They didn't
17 want me to have the right to do it. I had to call the
18 witness I didn't want to call and that took away my --
19 just too long of a case to put me into that box, so I
20 didn't want to -- probably was going to call them all
21 anyway. But if I choose not to call one, then I wasn't
22 going to call one. In any event, it's an issue of
23 whether we are going to resolve exhibits without

1 interrupting the jury. That's -- I said enough about
2 it.
3 THE COURT: Okay. Take a recess.
4 We'll take 20 minutes.
5 (A short recess was taken.)
6 THE COURT: I think the reason you're seeing
7 the bigger list is just because they responded doesn't
8 mean they may not show. In other words, we had 243 that
9 had responded that they are coming. But it doesn't --
10 you don't have to do that. Some people show up with
11 their jury slips the day of. I'm going to see if I can
12 get you a shorter list. Lisa is going to e-mail me if I
13 can get you a shorter list. I think the reason you've
14 been getting these longer lists is because they're
15 trying to give you the whole universe that it could
16 possibly be and not set you up to thinking it's only
17 243. There could be fifty people who show up who didn't
18 send in their things, and then you put them on the list.
19 That's why you're getting a bigger list. I think you're
20 getting a list of everybody who will be told -- it's
21 inconclusive except the people who deferred. In other
22 words, the list you're getting is either they hadn't
23 responded or had responded and said they're coming and

1 then the people who responded said that are coming and
2 are not on the list. That's why it's so big. I'll find
3 out. We actually sent out 1600 people.
4 MS. MOWERY: Thank you, Your Honor.
5 THE COURT: Lisa is supposed to let me know.
6 MS. MOWERY: That would be great. Thank you.
7 THE COURT: If you're wondering why I'm
8 hesitating on this exchange, the ruling that I made on
9 Zoom wasn't exactly the way -- my ruling there was I
10 don't know really see how this is beneficial to anybody
11 to spend an additional three days fighting over
12 objections when everybody is objecting to everything.
13 Because what will happen is you had the first shot you
14 had to object and you didn't cut down that number. Then
15 you have the documents you're going to use and you
16 haven't cut down that number. So I'm still going to
17 have you stand up in front of the jury. So I didn't see
18 any bang for the buck. But I'm not inclined to be as
19 nice if people are being unreasonable. I thought that
20 was a very unreasonable position. In fact, I've never
21 heard of it ever. Just like I had a stipulation
22 pretrial where they hadn't been able to put any facts in
23 that they agree on.

1 The concern I'm having now is I really like the
2 idea of not having any objections to exhibits. I don't
3 like the idea letting witnesses know what exhibits
4 they're going to be asked. The whole point of giving
5 you the list of exhibits is so you know what the
6 universe is so you can prep your witnesses but you don't
7 necessarily know the day-to-day strategy of the other
8 side. And I'm concerned, especially with
9 cross-examination of adverse witnesses that you'll
10 script out crosses with the witnesses because nobody
11 just says, oh, come on down, won't talk to you, just pop
12 on the stand, pop off the stand. You're going to want
13 to meet with the witnesses. So that's where I'm having
14 trouble with this.
15 I like the idea of not having objections in
16 front of the jury. I don't like the idea that you would
17 be able to say here are the documents that are going to
18 be used with you, let's go over each one of them.
19 Because I think, while I believe in the notion of no
20 surprise, that's like taking it to the next level. So
21 that's where I'm having trouble. Now, the easy answer
22 would be you do the exchange. But if you show it to the
23 witness, you're going to waive your attorney/client,

1 which is what happens in depositions.
2 So, you know, I could do this thing. It's fine
3 if it's just between lawyers. But if you show a witness
4 any of the exhibits that one party shows to the other,
5 preview, then we're going to say, okay, what did the
6 lawyer talk to you about, what did they tell you to say?
7 I'm concerned. That's where I'm concerned. And there
8 hasn't been a representation that we'll look at the
9 exhibits and tell you what our objections are but we
10 won't show it to the witness that's going to be
11 testifying. I think that's the concern of Dominion.
12 And the concern of Fox is the one that I agree
13 with, which is, you know, if you stand up and object to
14 every single document, guess what the jury is going to
15 think of you? They're going to think you don't want the
16 truth and that you're trying to be a sharp lawyer and
17 you're not -- you're hiding something. And so I see
18 both sides. That's why I'm hesitating. The first one
19 was easy. I didn't see any benefit to the situation.
20 Because if you object to all and you continue to object
21 to all, what's going to be the difference for me? I'm
22 going to have to have you stand up at every one anyway.
23 So that's my concern. I don't think you should be able

1 to prep a witness that's going to testify. That would
2 be like, can you give me your Q and A so that I can know
3 if your questions are too broad or too leading or
4 something like that. It gets into the same type of
5 thing. We never would do that.
6 Mr. Webb.
7 MR. WEBB: Well, I'm thinking as you're raising
8 it, I hadn't thought about it honestly the way you
9 phrased it. I honestly hadn't thought about it that
10 way. And I'm thinking that it's possible that we could
11 have an agreement.
12 THE COURT: Why don't you talk to them and
13 we'll about it tomorrow.
14 MR. WEBB: I'll do that. Thank you.
15 MR. ROSS: Happy to do that, Your Honor.
16 THE COURT: I don't think Dominion is saying
17 it's not going to save any time because they're still
18 going to object. I think what Dominion is concerned
19 about is you're going to take these witnesses with John
20 Doe or Jane Doe and say, yes, that's a really bad thing.
21 And, again, I'm not saying that any lawyer would ever
22 tell a witness to lie. That would be really bad. I
23 always told my witnesses the number one rule is you have

1 to tell the truth no matter what, even if you don't
2 think -- I can always work with bad facts. I can never
3 work with a lie. Once you lie, you're screwed. So I
4 would never do that. But I would talk with a witness
5 and they would say something that you don't really want
6 to joke about it or you don't want to do this. It's a
7 serious question about this. It's important to the
8 other side, so you have to take it seriously. That's
9 not telling them to lie about it. It's saying don't be
10 flip about it. Don't downplay it or whatever. It's a
11 serious document. But I would never tell them what to
12 say about the document because then they may not testify
13 truthfully, and that would be terrible. Like I said, I
14 could always work with the truth, make an argument, but
15 I could never work with a lie because the witness is
16 doomed at that point.
17 MR. WEBB: The issue there, thinking out loud,
18 and I'll talk to counsel, if I have a witness going on
19 the stand, it's pretty -- well, you know as a practicing
20 lawyer, it's pretty standard to take key documents and
21 have talked to the witness about them as part of the
22 preparation. So what if last week I showed two of these
23 documents. Then they give me the list. And I have

1 agreed that I won't show it to them, show it to the
2 witness, but I already did show it a week ago.
3 THE COURT: That would be different. What I'm
4 concerned about is you prepped their witnesses two weeks
5 beforehand. You prep you witness maybe two weeks before
6 and the night before. What happens is if your pile
7 includes two thirds of the documents he's going to
8 use --
9 MR. WEBB: I would have to agree I can't do
10 that. I would have to agree to that and I have to think
11 about that.
12 THE COURT: Yes. That's what they are
13 concerned about.
14 MR. ROSS: If the one third of documents that
15 weren't on the list, then I would use, it's something
16 we're going to talk to Mr. Webb and his colleagues about
17 and try to work it out.
18 THE COURT: That's my concern. I don't think
19 it would be fair to either party that you kind of get
20 the whole -- same thing for Fox to give to -- it would
21 have to be with all the witnesses, not just adverse, and
22 then the question is is that going to make it too
23 scripted as opposed to -- some of the questions I talked

1 about earlier, which I thought were I call partner rich
2 questions, because those are the types of things
3 witnesses get into a flow and they just say something
4 that they think makes total sense but in reality opens
5 them up to some problems. So I mean that's not fair to
6 either side. You'll have to talk with each other.
7 That's my problem. I love the idea of having smooth
8 witnesses so that are juries can make determinations
9 based on the facts without a lot of interruptions. They
10 also don't project prejudice against lawyers for
11 objecting validly with the notion you can't have them
12 too prepared. So we'll about it talk about it and let
13 me know tomorrow.
14 MR. ROSS: Thank you, Your Honor.
15 THE COURT: So do you want to go to the joint
16 pretrial or -- Ms. Brooks.
17 MS. BROOK: Your Honor, there's an issue not on
18 the joint pretrial that we wanted to raise with the
19 Court if that's all right. Or if you'd like to do the
20 joint pretrial, we can do that.
21 THE COURT: So the 800 is they can't make it
22 less. Let me follow up on that more. Sorry.
23 MS. BROOK: That's an important issue for

1 everyone.
2 THE COURT: I know. The system goes by report
3 date. They can't enter a specific time. I'm going to
4 follow up with that one.
5 MR. WEBB: Thank you, Your Honor.
6 THE COURT: I get your point. People in
7 Delaware have been living with getting in in the morning
8 for how many years, 1780, whatever.
9 MS. BROOK: The number is behind you.
10 THE COURT: Yeah. I don't think this case will
11 fall apart if you don't get them ahead, but I get your
12 point. What's the next issue?
13 MS. BROOK: Your Honor, Mr. Nelson will take
14 the next issue.
15 THE COURT: Sorry about that. Go ahead.
17 We didn't want to raise it. It's really a
18 follow-up to the Zoom hearing last week on the officer
19 issue that we learned some information that has really
20 shaped how we've been litigating this case. We just
21 learned about it and we just got the document this
22 morning. I will preview that I don't have an ask right
23 now. But we wanted to immediately call it to the

1 Court's attention.
2 And that is, if you recall nearly two years
3 ago, we started seeking discovery from people who were
4 both in the Fox News line and the Fox Corporation line,
5 namely the Murdochs. And Fox News resisted any
6 discovery into the Murdochs saying that they were only
7 affiliated with Fox Corporation and they would not give
8 us a single document. And so that led to a back and
9 forth. We issued a third-party subpoena. And
10 eventually we sued Fox Corporation, not just about the
11 Murdochs but about the other employees as well.
12 The Fox Corporation discovery into the Murdochs
13 and the other Fox Corporation witnesses was
14 significantly more limited in scope.
15 THE COURT: Because of the time.
16 MR. NELSON: Because the time and because how
17 it had already been through the Special Master and just
18 where it was in the process.
19 At last week's hearing Fox stated, Your Honor
20 asked who the officers were of Fox News.
22 MR. NELSON: We had asked that question both in
23 deposition, and we got some I don't know answers. True.

1 We got some I don't know answers to that question. We
2 also, of course, asked for requests for production.
3 THE COURT: Hold on. Go ahead.
4 MR. NELSON: We asked in our very first set on
5 requests for production -- and can we bring up -- what
6 you're about to see, Your Honor, is the defendant's Fox
7 News Network's responses to our first set of requests
8 for production. And they filed these, you can see in
9 the upper right-hand corner, July 30, 2021. And if we
10 could turn now to page 35. And we can zoom in on our
11 request, which was about the corporate governance
12 structure. Let's go to the next page. They responded
13 and they gave us names. And the three names that they
14 gave us in the corporate governance structure were
15 Suzanne Scott, Joe Dorrego, and Jay Wallace.
16 And immediately after, Your Honor, there was a
17 colloquy with Fox counsel and Your Honor on Wednesday
18 about this issue, they said they would follow up if they
19 got any of the officers wrong in that colloquy. We also
20 asked on Wednesday who were the officers. And was it
21 Ms. Petterson and Ms. Scott and Mr. Wallace as
22 represented. We didn't hear back until Sunday, Easter
23 Sunday, and we got a list. Can you bring up that

1 e-mail, please.
2 The list that we got was those same three plus
3 Mr. Rupert Murdoch. And we asked immediately for the
4 underlying documents. And it turns out that there were
5 a number of other corporate officers as well but,
6 frankly, most relevant was Mr. Murdoch, who serves as an
7 officer in both Fox Corporation and Fox News, it's
8 paragraph three of our complaint to Fox Corporation, how
9 we were being prevented from getting into discovery from
10 that Fox News has disclaimed any responsibility for
11 searching or producing any of those documents. That's
12 what had happened. And I can't emphasize enough how
13 much that decision has implicated the litigation of this
14 case. And to be fair, that response that we saw on
15 July 20th it is not current counsel, it's predecessor
16 counsel. Nevertheless, we also asked about it, as I
17 said, in deposition, part of the certification process
18 we asked Fox News to make sure that they had followed
19 up, Fox News and Fox Corporation. That they had
20 followed up on these I don't know questions. Actually
21 had gone through the requests for production to make
22 sure that we had everything.
23 And yet just on Sunday we got this information.

1 And just literally this morning we got what appears to
2 be a very easy print button of Fox News's corporate
3 officers, which of course exist. They also told us that
4 they have no bylaws.
5 So I say this because we are still evaluating
6 our options. But we are -- this alone has meant that we
7 are missing a whole bunch of Rupert Murdoch documents
8 alone that we otherwise would have been entitled to
9 because he is properly a Fox News custodian. And yet
10 they didn't tell us this from two years, July 30th.
11 And we would ask at a minimum that by tonight
12 or no earlier than tomorrow morning, hopefully by
13 tonight, they can give us an explanation. Because it is
14 very troubling that this is where we are. And I'm happy
15 to answer questions. As I said, I do not have an ask.
16 But it is something that has really affected how we have
17 litigated this case. And to find out about it literally
18 in the past 48 hours and to get that document today was
19 something that we were not expecting.
20 Thank you, Your Honor. I'm happy to answer
21 questions.
22 THE COURT: Any explanation?
23 MR. CARTER: Yes, Your Honor. You asked me

1 about the bylaws, and I followed up with our client.
2 And Fox News does not have bylaws.
3 THE COURT: How do they operate in Delaware?
4 MR. CARTER: I believe there's an operating
5 agreement, but it's not bylaws. So I got the documents
6 that we produced to Dominion with this list, including
7 Mr. Murdoch. And my understanding, and we checked the
8 deposition. Counsel asked Mr. Murdoch about this title
9 at Fox News during his deposition in February. And so
10 it's not like this is anything we've tried to hide or
11 anything like that.
12 THE COURT: What did he say in his deposition,
13 that he was an officer?
14 MR. CARTER: That he had the title of executive
15 chair as a listed officer. I don't know that he said as
16 a listed officer, but he had this title.
17 THE COURT: So my problem is it's been
18 represented to me more than once that he's not an
19 officer of Fox News. And there's a duty of candor to
20 the Court. And even if he says that in a deposition,
21 you have a problem with me. You have a credibility
22 problem. Because I specifically was trying to help on
23 the witnesses. And now I find that he is an officer at

1 Fox News.
2 MR. CARTER: I think he's a listed officer.
3 But I think it's an honorific title, Your Honor, that's
4 a holdover from some prior position.
5 THE COURT: But it's been represented to me
6 he's not an officer by you, not you, but by the
7 attorneys.
8 MR. CARTER: I understand.
9 THE COURT: And there have been arguments made
10 in pleadings filed with this court about the separation
11 and why it's irrelevant and now he is. I --
12 MR. CARTER: I --
13 THE COURT: -- made an entirely wrong decision
14 on the summary judgment.
15 MR. CARTER: Your Honor, the representations
16 are that he has no direct role in the operations of Fox
17 News, and that's accurate.
18 THE COURT: He's an officer. He's responsible.
19 He has duties in the corporation. I hate to go back to
20 Corporations 101, but you don't escape responsibility as
21 an officer or director by saying, hey, I didn't do
22 anything. Right?
23 MR. CARTER: Yes, Your Honor.

1 THE COURT: You kind of blow your duty of care.
2 Right? The other thing is it's been represented to me
3 he isn't. I could have made a different decision on
4 whether he should be available. I could have made a
5 different decision on the summary judgment.
6 I was looking at the response. And the
7 response to that interrogatory question or document
8 production question concerned me. It wasn't very
9 responsive. They were asking for the corporate
10 structure and you just said the people who were
11 responsible, which isn't untrue, but it isn't a response
12 to the question. Right? If you read -- like I'll read
13 it the cagey lawyer way, right. The following are names
14 responsible for the corporate governing not these are
15 the officers of the company. That's misleading.
16 Now, they could have asked questions on that.
17 That's different. But that's the problem with this
18 stuff. You guys are dancing too thin. This is a
19 problem. Not necessarily -- I don't know. He's been
20 deposed. There's been documents. He produced documents
21 in the corporation case. He's probably been subpoenaed
22 as a Fox Corporation executive. I don't know about this
23 is something you have to turn the battleship around and

1 staffing a deal. But there's a problem with
2 representations made to the court, not just they've been
3 cagey with Dominion. I need you to feel comfortable
4 when you represent something to me that is the truth.
5 And this is not true.
6 MR. CARTER: Well, to be fair, Your Honor, that
7 interrogatory was before our time.
8 THE COURT: No. I'm saying cagey. I don't
9 know that you're really responding to the question I
10 asked. That's not my point. My point is I hope you're
11 not being cagey with me.
12 MR. CARTER: No, Your Honor.
13 THE COURT: Okay. Something like, well, you
14 didn't specifically ask it that way, Your Honor. I know
15 you're taking the brunt. You just happen to be the
16 person, but I'm not very happy right now.
17 MR. CARTER: Understand.
18 THE COURT: And I don't know why this is such a
19 difficult thing. That's why I thought when I asked the
20 question on Wednesday, to me it's -- I mean I don't sit
21 on any -- I only sit on charity boards, but I know who
22 the officers are. I'm a board member, and I know who
23 the officers are. I know who has check writing

1 authority. To say we don't know who our officers are
2 seems extremely bizarre to me. And now to find out --
3 Okay. All right. Well, we'll deal with it.
4 Any other open issues before we get into the
5 joint pretrial?
6 MS. BROOK: Your Honor, there's a request that
7 we made to Fox News that we haven't heard back from them
8 on regarding potentially playing the defamatory
9 statements at the outset of the trial. The request
10 there was simply to play the video clips, just the clip
11 version.
12 THE COURT: In your opening statement?
13 MS. BROOK: We were going just doing it before
14 either side's opening statements.
15 THE COURT: You could ask but no. Good try.
16 You can use your time. I was going to say, that's why I
17 was asking when you did it. I thought I told you I
18 don't stop you from doing certain things in your opening
19 statement. And I could see why you would do those. But
20 I'm not going to have like free time where we do it. I
21 think if you did it in your opening statement, that's
22 fine. Hopefully, you'll be doing it again with a
23 witness to do it. That's what I was talking about. The

1 answer, I don't restrict on exhibits. Just remember you
2 have to get them in. And with you, you're risking more
3 of a mistrial if you don't get in with Fox, they're
4 risking the instructions of the jury. Because I'm sure
5 you're not going to want a mistrial over one document in
6 there. But I think -- but, I like -- I mean it's an
7 interesting way to do it. It's not a bad idea. I've
8 seen people do something similar in their opening
9 statements. But it's got to be through yours. I think
10 that elevates it too much. It's not fair. You got to
11 use up your time.
12 [!EZ SPEAKER 98]: Understood, Your Honor.
13 Thank you.
14 There were two other issues on our list, both
15 of which the parties have submitted briefing on in the
16 past 24 hours. I take it from the Court's previous
17 remarks that we should take those up tomorrow.
18 THE COURT: Let me make sure. I have one
19 about...
20 [!EZ SPEAKER 98]: Both parties have submitted
21 briefs about duplicative expert issues. So that is one
22 of the two issues. I believe both parties have filed
23 their papers on that at this point.

1 THE COURT: We didn't get rid of anybody based
2 on all that time I spent in summary judgment? Every
3 single person is going to testify?
4 MS. BROOK: That's actually part of Dominion's
5 argument, Your Honor, that there are certain experts who
6 are no longer needed, and don't think they should come
7 to trial. We have agreed to not bring some of our
8 experts who we don't think need to come to trial. That
9 is one of the expert issues that is addressed by this
10 duplicative expert motion.
11 THE COURT: It's a good idea to make that
12 objection when they are about to testify. You know what
13 611 says. Right?
14 MS. BROOK: Yes, Your Honor.
15 THE COURT: If you don't know what 611 says
16 that I can control the testimony to avoid undue waste of
17 time or to provide duplicative evidence. But I don't
18 know how we are on that. That's one I see Mr. Farnan,
19 Michael Farnan sent that on 11:40 something.
20 MS. BROOK: Fox filed its brief I believe --
21 was it this morning?
22 MR. WEBB: Yes.
23 [!EZ SPEAKER 98]: It was this morning. Fox

1 filed its brief this morning. We have a concept of
2 time. And we responded a little bit later this morning
3 with our brief, Your Honor. Fox also at the same time
4 filed a follow-up brief on the use of 30(b)(6)
5 testimony, a trial issue that we've been back and forth
6 before Your Honor on. We were not expecting that brief.
7 We haven't had a chance to respond to it yet, but we
8 will do so.
9 THE COURT: So I have from Natalie Freeman and
10 from Michael Farnan the issue of the consolidate. And
11 then I have is it Angela Lam that sent me, the other
12 one.
13 MS. BROOK: One of Fox's is attorneys.
14 [!EZ SPEAKER 97]: If, Your Honor, I may for
15 clarity.
16 THE COURT: Up here for the court reporter.
17 [!EZ SPEAKER 97]: We filed a letter brief on
18 the expert issue this morning. The other letter brief
19 that we filed was related to the letter deposition
20 designation disputes that we had discussed with the
21 party and one of those items mentioned was the use of
22 the 30(b)(6) deposition, but it's a little bit different
23 than the 30(b)(6) --

1 THE COURT: Who sent it. Angela Lam has the
2 response on of the counterclaim and the Fox offer of
3 proof which is front and center for me.
4 MS. MOWERY: Ms. Freeman sent you both letters
5 at the same time in an e-mail.
6 THE COURT: I guess that's better than 11:40.
7 Okay. All right. So you're going to respond to the
8 depo designation issue and I will look at the cumulative
9 experts. Again, I think I don't really control -- may
10 want to preview of it, so you know whether to bring them
11 or not. Again, if I have hear a witness and I decide in
12 the interest of judicial economy to avoid repetitive and
13 avoid waste of time, you're taking a chance if you have
14 somebody come in and testify over and over again. I do
15 not think there should be expert testimony on issues
16 that have been decided at summary judgment. That's not
17 relevant. I thought it would be some back on that
18 maybe. I don't know whether there was a falsity expert,
19 chief expert. But all right. I'll look at those and
20 also give them a chance to respond. We'll do that
21 tomorrow.
22 [!EZ SPEAKER 97]: Thank you, Your Honor. Not
23 to argue now, I think we've previewed our position that

1 you've raised on the depositions previously.
2 THE COURT: On the depo designations?
3 [!EZ SPEAKER 97]: On the experts.
4 THE COURT: Okay.
5 MS. BROOK: Your Honor, another thing on our
6 list that I think is better left for tomorrow we are
7 still negotiating some other hopefully joint motions in
8 limine. And we will have those ready for the Court
9 tomorrow for anything that is still outstanding that the
10 parties agreed to to the extent it pleases the Court.
11 THE COURT: I'm not ruling on any more motions.
12 I have one outstanding one.
13 MS. BROOK: And then other than that, Your
14 Honor, I believe it is the issues in the pretrial stip
15 that remains in dispute which are not too many.
16 THE COURT: No. Except for the facts admitted
17 without formal proof which makes no sense. It is what
18 it is. We'll say that none of them are admitted. You
19 have to prove everything, guys. You have to prove
20 you're a Delaware corporation.
21 Let's go to what is still at issue in the joint
22 pretrial as opposed to any fights over what a party
23 thinks is the remaining open legal issue. Because when

1 I was going through those things, this is like summary
2 judgment, summary judgment, summary judgment, summary
3 judgment facts, in other words, it's still at issue.
4 And I haven't seen this until just today.
5 MR. ROSS: Your Honor, we can go through the
6 document if you want or we can raise the issues that
7 each side --
8 THE COURT: No. I was going to go right now
9 and if there's something overnight I'll go over it.
10 MR. ROSS: Okay.
11 THE COURT: Like I said, again, just so people
12 know, just because you think it's an issue of law that
13 needs to be remaining, it's a road map for me. I don't
14 have to agree with it and the other side doesn't have to
15 agree with it. That's not what I'm not concerned about.
16 What I'm concerned about is sort of reneging on an issue
17 and it's identified in here. So that the other side is
18 on notice as to what the issues are.
19 The other thing I'm concerned about is what
20 we've been handling right now, how you flow evidence in
21 and things like that. We really don't need to spend any
22 time on facts admitted without formal proof. It is what
23 it is. I told you how I always did it. I never had an

1 issue. You sit down. Parties agree, disagree. And I
2 would always do it very straightforward. I wouldn't
3 say, you know, put any pejorative thing on a fact. I
4 would say the contract was entered into on June 10th,
5 2010, right? The broadcast was done on November 13th.
6 There's so many facts that the parties can't possibly be
7 contesting that aren't in here. But I'm not here to do
8 that.
9 MR. ROSS: We're going to give it one more
10 shot, Your Honor. And hopefully we'll have something to
11 come back tomorrow --
12 THE COURT: You see what I'm saying, though?
13 MR. ROSS: We do.
14 THE COURT: Fox News is a valid corporation,
15 Delaware corporation. And the other thing, like when
16 this statement was made. Lou Dobbs had a broadcast on
17 blank date should not be something we're still
18 contesting at this point. If we are, I would say to the
19 other side, did it really air that day? I'm going to be
20 straightforward. Sometimes you get into litigation you
21 get the blinders on and you don't see it. Somebody asks
22 you straightforward, well, what's really at issue. And
23 then it comes around.

1 But let's go -- so it's page, the new one is
2 page 14 of -- or it's 5A, the exhibits.
3 MR. ROSS: Right, section 5A exhibits.
4 THE COURT: It's footnote 34, which is really
5 footnote three and four.
6 MR. ROSS: Correct.
7 THE COURT: Dominion's position? The proposal
8 is any exhibit identified on a parties's exhibits list
9 and not objected to is deemed admissible and may be
10 entered into evidence by the party listing it without
11 any need for further foundation testimony. I'm all for
12 that. And will be admitted when introduced into
13 evidence at the time it is offered provided its use with
14 a competent witness. What's your problem with that?
15 MR. ROSS: Actually, we were the ones who
16 actually suggested that language. And we had an
17 agreement. And then we got the first objections and saw
18 that every single one of our exhibits was objected to,
19 and we sort of reared back.
20 On March 30th we got their first revised. And
21 they did drop objections to certain documents. And then
22 we got -- the next one we got was at 1 a.m. this
23 morning. We are reviewing that now. If we can come to

1 the determination that we now have enough sort of
2 relevant documents that were part of the summary
3 judgment record that are now not being objected to, then
4 we have absolutely no problem with that language. Our
5 concern was, as expressed on the Zoom hearing, that if
6 they were objecting to everything and we weren't, that
7 it was going to create an issue at trial of fairness.
8 So we're still hoping to be able to agree to
9 that language. But I need to be able to review that
10 newly served objections to our exhibit list and see if
11 we've made progress.
12 THE COURT: Okay.
13 Page 16.
14 MR. ROSS: That's the one we talked about
15 before the break.
16 THE COURT: About the --
17 MR. ROSS: Both page 16 and page 21.
18 THE COURT: You know what my problem is with
19 that. I see with both sides. I agree with both sides.
20 Now we got to the default, which is you don't exchange.
21 But the only way I can think of 16 is to not show the
22 documents.
23 The next one is on page --

1 MR. ROSS: Actually, 16 and page 21 is the five
2 witnesses that we've already talked about. And we're
3 going to discuss that this evening. The next one goes
4 all the way to the last page, page 34. You have a
5 series of ones there. Those are the ones about juror
6 notebooks, timing of instruction, of your instructions,
7 and then cumulative expert issue, which has been briefed
8 and which we'll talk about tomorrow. The only two to
9 talk about right now would be the juror notebooks and
10 what our proposal is for that and then our proposal for
11 timing of instructions. And so you can take up either
12 one or both of those at your pleasure.
13 THE COURT: So you can make your argument on
14 the jury notebooks, but you get half and half.
15 Ms. Brook.
16 MR. ROSS: Ms brook and I need to decide
17 which --
18 MS. BROOK: I'll take one for the team, Your
19 Honor.
20 Can I have a copy?
21 MR. ROSS: We at least have show and tell.
22 THE COURT: Thank God I don't look like my
23 picture anymore.
1 MS. BROOK: We previously provided this to Fox,
2 but here's another copy for them, Your Honor. This is
3 truly something to help the jury. So if Your Honor
4 doesn't think it would help, I won't press the issue.
5 We've done this in lots of case where it's just lined
6 notebook pages with a picture chosen by the parties
7 putting up the witness. We're trying to play any games
8 with head shots here, their name and their title.
9 And the idea is simply, Your Honor, that with a
10 trial of this length and a trial with this many
11 witnesses, it can be helpful to the jurors to just have
12 a visual reminder of who that person was, especially
13 also for deposition designations, it can be helpful to
14 just have a simple picture, their name, their title.
15 That's all we're suggesting to add to the lined notebook
16 pages. So that's suggestion one.
17 Suggestion two is a cast of characters. I'm
18 talking bare bones, just their name and their title at
19 the time. That's all. I will be the first to say this
20 current cast includes more than just the witnesses on
21 both parties's witness list. It also includes, for
22 example, Sidney Powell, Rudy Giuliani, Mike Lindell,
23 names like that. If the Court likes the idea but wants
1 to strip it down to just the names of the individuals on
2 both sides' witness list, that would work as well.
3 Again, it's just in a trial of this length and with this
4 many witnesses, we thought that would be helpful to the
5 jury. It's just their title and whether they work for
6 Dominion or Fox. And then the last thing that we
7 suggested --
8 THE COURT: Which we don't necessarily know.
9 MS. BROOK: I'm going to reserve comment on
10 that, Your Honor.
11 The last thing we suggested is simply the
12 language of the defamatory statements lifted directly
13 from the count. So the same language that Your Honor
14 used in the appendix that was done with the summary
15 judgment briefs, the defamatory statements sent. Again,
16 it's helpful as they are hearing these statements
17 referred throughout a six-week trial to have an easy way
18 to refer back to them. I have a copy of this for the
19 Court, if the Court would like it.
20 But those are the three suggestions. Again, it
21 is truly about making the jurors's life easier. It's
22 not about influencing the jury one way or the other.
23 And we're at the pleasure of the Court to the extent the

1 Court thinks any of this would be helpful.
2 (Pause.)
3 THE COURT: All right. Fox.
4 MS. MOWERY: Fox does not agree with providing
5 jurors with anything. Not too long ago in another case
6 I had before Your Honor, KT4, I actually specifically
7 asked Your Honor what your preference was with respect
8 to juror notebooks. You specifically said yes, they can
9 take notes. You can't tell them what's important,
10 what's not. If you strip it down to witnesses, you
11 might get a few, but key witnesses know I never allow
12 that going back to the jury. I think that's what we are
13 doing here. It has a cast of characters, as Ms. Brook
14 explained, includes more than just the witnesses.
15 Furthermore, we don't even know who is going to be
16 called at trial. So I think by giving them a list of
17 potential witnesses, it may be confusing if people
18 aren't called. Questions could be raised as to why they
19 weren't called, when it's just unnecessary. They can
20 write down who is called in their notebook and then take
21 the notes right below it.
22 I think, in addition, some, not everyone, so I
23 think in addition some of these aren't on the witness

1 list. And some haven't been deposed in this case. We
2 don't understand why they are on this list. And some we
3 think would have to be added to this list if this were
4 to be maintained. We don't understand why some are left
5 off. There are just a lot of questions here that a few
6 days before trial are unnecessary and would create more
7 confusion to the jury than is necessary.
8 With respect to pictures and, you know, we
9 don't think it's necessary. They will see the person on
10 video or live here. It's not something that's typically
11 given in superior court. I think that whoever is
12 calling the witness gets to put their picture there, who
13 they are calling, almost all the witnesses in this case
14 based on the parties's agreements.
15 With respect to the defamatory statements, I
16 think --
17 THE COURT: Defamatory statements aren't going
18 back.
19 MS. MOWERY: Okay. That's evidence that they
20 need to bring in through trial. We're not willing to
21 provide. We've also found some mistakes --
22 THE COURT: And they may not agree. That's an
23 interesting question what they could take back with the

1 jury. They can take back a video of a show. But that's
2 not the same thing as a depo video. We'll see how that
3 works out. No. That's too much for sure.
4 MS. BROOK: Your Honor, may I just briefly
5 respond to correct a few things. On the cast of the
6 characters, I believe I made clear in my argument that
7 there were individuals on this list that extended beyond
8 the witness list. And if Fox would prefer just the
9 witness list, that is fine with Dominion.
10 Separately, I don't think I was unclear on
11 this. But if I was let me clarify, when I say the
12 parties, the party, Fox would get to pick the photos for
13 the Fox witnesses. And the Dominion would get to pick
14 the witness for Dominion witnesses. I'm not suggesting
15 we would get to pick the photographs for their
16 witnesses. I don't see how it is anything but helpful
17 to have a person's name and picture on the top of the
18 page.
19 THE COURT: First of all, I don't like cast of
20 characters as a statement. Makes it sound like a soap
21 opera. I would never let something go back to the
22 jury --
23 Michelle, when we send the evidence back to the

1 jury, do we provide a list of who testified?
2 THE CLERK: No.
3 THE COURT: I know we do that sheet during the
4 trial.
5 THE CLERK: Yes.
6 THE COURT: And on bench trials.
7 THE CLERK: But I never send that back.
8 THE COURT: Justice Vaughn would say, if the
9 superior court has done it for X number of years, he's
10 not going to be the one.
11 I would never let a list of everybody in the
12 case go back. At best you'd get a list of who actually
13 testified. The other thing is now that we just found
14 out, Rupert Murdoch is wrong. He's not chairman of Fox
15 Corporation. He's chairman of Fox Corporation and the
16 executive chair of Fox News.
17 I know one thing. I do the instruction at the
18 beginning about note taking. I don't do it after
19 closing. It says here, this is Fox, jurors take notes
20 and the jury will be instructed after closing arguments.
21 MR. ROSS: Your Honor, that's a separate issue
22 that Mr. Savage will be arguing for us. That has to do
23 with when you give your instructions whether before or

1 after closing arguments.
2 THE COURT: I'll do it the way I want to do it.
3 You're talking about when judges split the instructions
4 and do half before and then closing arguments and then
5 half after.
6 MR. ROSS: I'll let Mr. Savage make the
7 argument. But we're suggesting doing the instructions
8 before the closing argument.
9 THE COURT: It ruins my script. The first
10 thing I say, Now that you have heard all the evidence
11 and closing arguments.
12 I do see a problem with the cast of the
13 characters. One, it shouldn't be called cast of
14 characters. It should be persons here to testify in the
15 case at best. We're not going to list everybody so that
16 they know who was on an e-mail, things like that. I
17 would never do that. At best you would get a list of
18 the people who testified. Maybe we could make a
19 determination later on if that's necessary to avoid
20 juror confusion.
21 I don't really see the harm in the picture. I
22 still -- I'm very comfortable with the way I normally do
23 it, which is they can take notes on a paper without

1 photographs and things. I'll readdress maybe a list of
2 people if it gets out of control just so they know who
3 testified. But, you know, the instruction says that the
4 jurors are only to take back with them things admitted
5 into the evidence and the Court can't give you anything
6 in addition. So I'm really not -- I don't want to
7 create appeal points for people, so I'm not really
8 inclined to do this. I'm inclined to give them a
9 notebook and on the first day tell them why.
10 MS. BROOK: Thank you for considering it, Your
11 Honor.
12 THE COURT: No. I get. It's a big case. It
13 might be called something different than a cast of
14 characters and maybe listing the number of people who
15 were testifying. I don't really see that much harm in
16 the single pages. But Fox doesn't want to agree with
17 that. I'd rather not create an issue. Pretty good
18 pictures in there. My inclination is to give them
19 notebooks and give them the instruction. Again, this is
20 one of those things if you're not going to agree, then
21 we'll go to the default rule, which sounds unfair. The
22 parties do not agree. But they have a right to. They
23 have a right to assume that's what I'm going to do. As

1 Ms. Mowery in KT4, how many motions in limine in that
2 case, forty some?
3 MS. MOWERY: That why we got the limit.
4 THE COURT: Yes. Out of time, too. I had a
5 cases where it was supposed to be a two-week trial that
6 went six week. That's why it's timed.
7 So let me look at the -- and we could talk
8 about it if there are any issues as to say issues of law
9 to be litigated, things like that. But it doesn't sound
10 like we can rule on anything else in the pretrial. I've
11 ruled on the juror notes. I have the one motion in
12 limine I need still. I have to read that case again. I
13 have to give you voir dire fixed so that you can, if you
14 have any further comments. You already came up with
15 some good ones while we were talking. So I'm good with
16 that. I want you to get a fair and impartial jury.
17 Definitely want that.
18 Any quick issues?
19 MR. SAVAGE: Yes, Your Honor, just briefly
20 issues that Mr. Ross previewed on the timing of the jury
21 instructions, recognizing that you well may have an
22 established practice on this and it might also mess with
23 your script, our request is that Your Honor would give

1 the final charge to the jury before closing statements.
2 The simple reason is that we think is when the jury is
3 considering closing statements from the attorneys, it's
4 more useful for them to have been given a full set of
5 instructions so that they can consider closing arguments
6 in that context and instead of hearing the closing
7 arguments which will likely reference some of the
8 instructions but --
9 THE COURT: Let me give you a compromise. I'm
10 not going to read all of my instructions because they'll
11 fall asleep. It's 80 some pages. I can do as much
12 voice inflexion that I want, it's still not -- I will
13 consider splitting them. I have done that.
14 By the way, the reason I was smiling is you
15 were saying my practice. I didn't want to say, my
16 practice is I've done bigger trials where I've done some
17 of the instructions before, especially, say, burden of
18 proof and things like that before closing arguments and
19 then finished off with the general instructions after.
20 I would definitely consider that. I will not consider
21 doing all of the instructions before. Because even with
22 this number we're going to have them stand up and
23 stretch and we'll go back and make sure that they are
1 focused. I might consider that. I don't see why not.
2 I've done that a number of times where -- but I've never
3 done all of my instructions and then had you close. I
4 think it's -- there are a number of reasons why. One, I
5 think it flows better to have the judge end it with the
6 instructions to give them an idea of what they are
7 supposed to do, especially with jury deliberation, which
8 would be in my -- so I'm willing to split.
9 I'm not ruling on any -- I think I told
10 everybody, I don't start a trial without jury
11 instructions because it's sort of what we are doing with
12 the witness list. You guys keep promising me, but I
13 don't get it. I had a case where people kept promising
14 me the jury instructions and I didn't get the jury
15 instructions until we basically closed the case and it
16 became a real mess. So I don't do that. So I have to
17 at least start with it and will revise it based on how
18 the evidence comes in. But I don't have a problem with
19 splitting it. I think sometimes that's very helpful to
20 the jury especially -- I think actual malice might be a
21 good thing to have before for both parties. I could see
22 why that would be very helpful to both to what actual
23 malice is so that the jury doesn't hear what maybe one

1 party thinks it is and the second party thinks what
2 actual malice is, and they hear from the judge and they
3 think what is it. But the jury instruction is what we
4 give them. That's the law. I learned that one, too.
5 Because one time a party took the instruction
6 that wasn't final and put it in a slide show in the
7 closing. Now, on appeal the Supreme Court said that was
8 error. I didn't notice the difference during the slide
9 show. I thought it was not a problem. I had then
10 instructed them what the elements of self-defense was.
11 But that did create an issue. So I can see why it would
12 be important with say actual malice, what closing
13 arguments are about, things like that so that the jury,
14 when they hear you talk about it, I think it would be
15 helpful to both sides. Actual malice almost sounds like
16 a felony on the street. But, again, it's knowing a
17 statement is false or reckless disregard for the truth.
18 I think that would be helpful to the jury. So I
19 consider splitting.
21 THE COURT: I'm not going to read them all.
22 But I would agree to splitting them.
23 MS. MOWERY: Your Honor, Fox's position is that

1 we wanted the jury to be instructed after closing
2 arguments, which is specifically to the superior court.
3 We went back and -- well, I guess in civil cases, in
4 your past practices, we picked eight juries and they all
5 said, and you said, Now that you've heard the evidence
6 and the arguments of counsel, it's my duty to instruct
7 you. I understand that there are may be three that
8 didn't say that, but we didn't know what the standards
9 were with Your Honor. I think we would prefer closing
10 arguments to have an order. We think it's important for
11 Your Honor to provide the law right before the jury goes
12 back. But I've not spoken to the client or the team
13 about this splitting the jury instructions.
14 THE COURT: We don't have to make that decision
15 right now. But I have done it. And I have done it --
16 some of the cases you've probably pulled they're
17 probably very short. And in longer cases I've split
18 them. So I know Judge Scott always splits his. A
19 number of judges always split them. I was actually
20 thinking of splitting them, but I wasn't going to do
21 them all before or all after. So far I really like your
22 approach to the jury instructions. I like the
23 preliminary ones that both parties agreed to. I thought

1 that was good lawyering. Good to tell the jury before
2 you start your opening statements so they get an idea.
3 A lot of people don't think of that. I would have asked
4 I was thinking of doing that, too. I have been thinking
5 about splitting. But I'm not going to do all before.
6 That one is out, but I might split.
7 MS. BROOK: Your Honor, I don't believe there
8 are any remaining issues in the pretrial stip or on our
9 agenda other than the ones we applied for discussion
10 tomorrow.
11 MS. MOWERY: Your Honor, if I may, with respect
12 to the exhibits, some judges like to have a hard copy of
13 all exhibits and a hard copy or an electronic. Based on
14 my previous experience, you've not asked for that and
15 not yet in this case. But our plan is I guess we would
16 propose to provide you a witness binder on the outset of
17 a witness so you would then have those exhibits. Is
18 that what you would prefer?
19 THE COURT: I had it done a number of ways. We
20 didn't get that far because KT4 settled. I think I've
21 always wondered why you don't give a hard copy. I would
22 suggest unless a judge tells you not to do it, if you're
23 in front of any judge, I would give judges hard copies

1 because they can pick up on especially objections,
2 they'll see the thing. But you're right, having 27
3 binders up here of which three are used is difficult.
4 I'd I've had a lot of cases where even though
5 they're using electronics, I don't know if you're doing
6 that with this case, where they put the exhibit up on
7 the screen and have the witness testify off the screen,
8 they've always kept a binder in front of the witness of
9 those documents so that if they want to look at the hard
10 copy they don't have to wait until you find it and bring
11 it up. I've had a lot of cases where each witness comes
12 to testify even if they're overlapping, there may be a
13 document that's relevant to seven or eight, the lawyers
14 have created a binder of exhibits so that if the witness
15 says I need to see the document, we don't waste a lot of
16 time trying to find it.
17 I like to have a copy. I can live off the
18 screen. We do have to have a copy for the clerk because
19 it will go back to the jury because they can't take your
20 electronic screen back to the jury. They have to have a
21 hard copy admitted for deliberations. That's one thing.
22 MS. MOWERY: Thank you.
23 THE COURT: I can tell you one thing is if you

1 tell the jury you're on an issue, we didn't have anybody
2 testify on this but you draw the next exhibits, you hand
3 them a big binder like this, good luck. They're not
4 going to be able to put it in perspective. I've had
5 that in a lot of cases. I've wondered why. But maybe
6 for completeness of the record.
7 I like to see hard. I don't print out
8 everything. I told you guys that's why I've been having
9 you guys send PDFs without exhibits so I can go online.
10 I don't have to have everything hard copy. I'm sort of
11 not dinosaur but not super savvy electronic. So if I
12 find an exhibit that's really important, I print it.
13 Otherwise, I look at it and do things with it.
14 But the suggestion is if it's too burdensome,
15 don't provide it to me. But I would suggest to make
16 sure you have hard copies, one, to give to the clerk
17 what's been admitted if he or she -- is it Brian --
18 can't see with all these screens -- they have a hard
19 copy because the jury has to have it in deliberations.
20 And they're not going to take back a computer screen.
21 And you might want to be able to give it to the witness.
22 If it's too difficult for them, then also create binders
23 each time for me. I'm fine going off the electronic
1 version and writing it down. So I'm not requiring you
2 to do a binder. I do think you should have a hard copy
3 here available, one, so that the clerk will have it to
4 keep it as evidence and also in case the witness. I
5 need to see the whole document. I need to see the
6 e-mail before and the e-mail after, those types of
7 things.
8 THE COURT: So what's a good start time
9 tomorrow?
10 MR. NELSON: Your Honor, we're at the pleasure
11 of the Court. We would suggest nine or 9:30. Again,
12 pleasure of the Court.
13 MR. WEBB: We're fine with whatever you want,
14 Your Honor.
15 THE COURT: Let's start at 9:30. I haven't
16 been able to do any other matters, so I'm going to try
17 to do your stuff tonight to prep for that. So we might
18 get to some probation reports, things like that that I
19 need to do. So just give me -- I usually get in
20 around -- well, capital police. I get in early enough
21 that I do work before I get on the bench. So if there
22 are any open issues, 9:30 should give me enough time
23 during the day and give me time to do other matters.

1 But I will tonight look at what's been given me. I
2 guess I'll look tomorrow whatever Dominion's responses
3 to the deposition designations.
4 Let me just make sure. I have voir dire that I
5 need to turn around for you. I have the one motion in
6 limine about other sources. And I think I said you
7 could use it for damages but I was reading the opinion.
8 I may be wrong on that, so let me look at that. I need
9 to look at the duplicative witnesses. And I can look, I
10 guess, at Fox's thing on designation. I'll be half
11 prepared for that.
12 Any other open matters that I said I was going
13 to rule on?
14 MR. WEBB: Your Honor, under the 611, just to
15 be heard on that, I don't want to get up on opening
16 statement and do anything wrong, the offer of proof that
17 we filed.
18 THE COURT: I'll look at it. I looked at it
19 quickly. I told you my one reaction. I don't know if
20 I'll have the same reaction to all of it.
21 MR. WEBB: Okay.
22 THE COURT: I'm sorry you had to be the one to
23 get up. I know you probably weren't intimately involved

1 in other things. So I'm not mad at you. I'm mad at the
2 situation I'm in based on representations that were made
3 to me about Mr. Murdoch. So I have to figure out how to
4 deal with that. I have to hear how Dominion feels it's
5 prejudiced otherwise. But I have a concern because I
6 think I was very kind of giving everybody a chance on
7 this, and it had been represented to me multiple times.
8 Really bothered me if I go back and read that one letter
9 as to why he's not relevant and I find out something to
10 that affect. Makes it seem like he has no connection to
11 Fox News, I'd really be concerned about that. If that's
12 made in that letter to me as to why he shouldn't have to
13 come to testify. I would really be careful about any
14 type of anything around that particular person and the
15 representations that have been made to the Court.
16 Because it's not just that it was done in discovery, but
17 it was represented to me on multiple occasions that he's
18 not an officer of Fox News. In fact, part of the
19 ruling -- I mean, look at the summary judgment. That's
20 a concern. I mean, I didn't rule in favor of Fox
21 Corporation, so I won't have to revisit that, but that
22 could have been a fact that's put in that opinion as to
23 why there's a genuine dispute is that he's got

1 responsibilities at Fox News and not separate from. And
2 that would have been an even bigger concern. But
3 luckily it's been left for another day.
4 By the way, I would not have granted summary
5 judgment in favor of Dominion even if I had known that
6 Mr. Murdoch was an officer of Fox News. Don't get me
7 wrong. I would not have done that. I still think
8 there's an issue of fact on that. But I could have gone
9 the other way, and that would have been a problem.
10 Okay. So we need to figure out what to do with
11 that. But I don't want anybody to think that's because
12 they were the person that had to bear the news to me
13 that that's not a problem. Okay? All right.
14 So we'll adjourn until 9:30 tomorrow. In case
15 you want to know, I always said recess. One time I said
16 that on a Zoom call and everybody stayed on the call
17 thinking I was coming back. And I said, no, I recessed.
18 The they said, well, when you recess that means you're
19 coming back. When you adjourn that means you're not.
20 So now that's why. It's weird to get a phone call from
21 somebody saying, Are you coming back?
22 (Whereupon the proceedings concluded at 4:27
23 p.m.)
STATE OF DELAWARE:
NEW CASTLE COUNTY:
I, Domenic M. Verechia, Official Court Reporter

of the Superior Court, State of Delaware, do hereby
certify that the foregoing is an accurate transcript of
the proceedings had, as reported by me in the Superior
Court of the State of Delaware, in and for New Castle
County, in the case therein stated, as the same remains
of record in the Office of the Prothonotary at
Wilmington, Delaware, and that I am neither counsel nor
kin to any party or participant in said action nor
interested in the outcome thereof.
This certification shall be considered null and
void if this transcript is disassembled in any manner by
any party without authorization of the signatory below.
WITNESS my hand this 11th day of April, 2023.
/s/ Domenic M. Verechia

Domenic M. Verechia, RPR
Certification No. 162-PS

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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

US DOMINION, INC., DOMINION :

BEFORE: HONORABLE ERIC M. DAVIS, J.

PRETRIAL CONFERENCE TRANSCRIPT

DOMENIC M. VERECHIA, RPR

BRIAN E. FARNAN, ESQ.

BLAKE ROHRBACHER, ESQ.

6 THE COURT: So the first piece of good news I

7 have, there's a 81 person panel. I sent a letter out

8 initially telling them that the trial would last six

9 weeks and then they would have to be available through

11 those things thinking it was an Order of the Court. An

12 average citizen once every two years, maybe, when they

13 see something come from the Court, they get stressed.

14 So some will miss that, but that's still a lot of jurors

15 to get 36. If you know how we do it, it's 12 jurors,

16 six strikes each side is 24, and then six alternatives

17 is six strikes, an additional 12, 12 plus 24 is 36.

19 with that number. So with that, it would probably take

20 us two days to go through that many jurors, to be

21 straightforward. I've pretty sure that we'll get 36 out

22 of that number. So that's very comforting. You know,

23 judges are -- and the -- just some -- there seems to be

2 yesterday and I only received courtesy copies today. If

3 you're filing something, you should be PDFing it to me

4 right away. Because I came in -- I was away and I came

5 in yesterday and I was here late, and I saw a couple of

6 things that were filed by Dominion and somebody filed --

7 Fox filed something at 10:39 p.m. You really shouldn't

8 believe that you're going to be considered the next

9 morning if you file something at 10:49. I mean,

10 that's -- I don't know if people are telling you this,

11 that's not going to be seen. I mean, the chance I'm

12 going to read it when we come on the bench with the jury

13 at 9:30 is very low.

14 Some other thing, just quick so that maybe it

15 will cut down some things. I don't do prefatory

16 statements to the jury. I know that's what Dominion --

17 I'm concerned that that would be commenting on the

18 evidence and I can't do that. So I wouldn't say to the

19 jury, I've determined the following things in summary

20 judgment, because that would provide too much as if I'm,

21 you know, give too much, maybe one side will be

22 prejudiced for that, for me saying that. I do like the

23 preliminary instructions you gave me in the joint. I

2 before opening statements so that people would have a

4 of the case or whatever is, I've always been very

5 uncomfortable with two things: One, it makes it looks

6 like the judge is commenting on facts and that's not

7 what I'm supposed to do. Two, believe it or not, by the

9 the nature of the case was in the beginning may have

10 changed. Right? And then it's almost like the jury is

11 saying to themselves what is going on here, right? And

12 they may be a little confused. So I've stayed away from

13 nature of the case from the onset because of those two

14 reasons. So I'm not going to do -- I appreciate what

15 was filed. I did read that because I was in the office.