Lawyers for Dominion Voting Systems and a group of media outlets argue that Fox News abused the redaction process and blacked out more than a thousand pages of legal filings and evidence that is coming up in the defamation case.
The new court filing seeks the release of pages of evidence Fox’s attorneys want to keep secret.
Legal filings and evidence in Dominion’s $1.6 billion defamation lawsuit against Fox News and Fox Corp display the redaction as large chunks of blacked-out text. If Delaware Superior Court Judge Eric Davis agrees with Dominion’s and media organizations’ arguments, he could open the once-secret passages before March 21.
Dominion’s lawyers and a trio of media outlets — The New York Times, The Associated Press and National Public Radio — said the parties are allowed to keep information such as personal contact details and trade secrets confidential in such legal filings. But he argued that Fox’s lawyers perpetrated it.
“Dominion’s position is that confidential treatment of these materials is not warranted under the good cause standard” defined in a case between Al Jazeera and AT&T, lawyers for the voting machine company wrote in their notice. In 2013, the judge in the case rejected the corporations’ demand to keep key parts of the trial’s evidence confidential.
Media outlets argued in their court filings, also from Thursday, that Fox was claiming the cuts were to shield trade secrets. Journalistic processes, he said, are well known and taught.
An attorney for the media outlets wrote, “The addition of the word ‘journalistic’ to ‘journalistic process’ is not, in itself, a protected ‘trade secret’.”
A Fox News spokeswoman said in a statement that “Fox’s redactions are consistent with the law and court rulings,” adding, “Such grounds include reactions pursuant to the privilege of journalists.”
New court filings by Dominion and media outlets suggest redaction can hide important evidence, said Ronnell Anderson Jones, a professor at the University of Utah College of Law who specializes in the First Amendment.
“There are some indications in the key filing from Dominion that the redacted portion may actually contain significant evidence of knowing the lie,” Anderson Jones said in an interview, “blacked-out material in Dominion’s motion for summary judgment on liability.” Pointing to a paragraph in “At the end of the paragraph the lawyer in Dominion says, ‘Exactly.'”
Dominion is not objecting to the redaction of the phone numbers and email addresses in the challenge or in any other previously filed; Instead, it is resisting “original” challenges.
Company lawyers said in Thursday’s filing that Dominion sought just six “core” cuts of more than 900 exhibits associated with the filing. Those improvements include images of proprietary software, a Web address for an internal customer support database, and names covered by nondisclosure agreements under seal. He added that the remaining cuts were sought by Fox.
He also argued that Fox News’ redactions were sometimes inconsistent, with some statements of testimony being edited in one place but not in another.
Daxton Stewart, a journalism professor at Texas Christian University who teaches media law, said the challenge shows Dominion believes Fox is using the redaction to protect itself from bad press.
“There’s a little litigation going on in the press,” he said. “The parties, particularly the Dominion, are trying to set out their case as clearly as possible prior to trial.”
