After hundreds of damaging Fox internal communications were released this winter as part of filings in Dominion’s defamation lawsuit, one might have expected that the window for settlement arrived … and then went as the April 17 trial date grew closer.
But as experienced lawyers know, settlement is still possible after a trial starts, including during jury deliberations — or sometimes even after a verdict, as with a case that presents thorny issues for appeal. And Tuesday’s brink-of-opening-statements settlement in the Dominion matter proves that lawyers are capable of “two-tracking” a fiercely-contested, high-stakes case: Ready for battle and prepared to settle.
So what finally prompted the two sides to reach an agreement, especially given that some of the usual leverage points in civil litigation did not? The parties, after all, could have settled for arguably much less after Dominion lost its motion to dismiss; so too might Fox have been motivated to settle before its most senior executives were forced to prepare and sit for their depositions, which requires top executives to set aside an unusual amount of time for a single, usually non-revenue generating objective. And Fox’s losses during a summary judgment briefing — during which Judge Eric Davis determined, among other things, that Dominion had already proven the falsity of the statements broadcast by the network about Dominion — arguably offered yet another opportunity for settlement.
But what could have pushed a settlement over the edge was a four-page order Davis filed at 11:43 a.m. ET on Tuesday while he was still on the bench. That order, which followed a testy pretrial hearing last week during which Davis announced he would sanction Fox for discovery noncompliance and/or misrepresentations to the court, appointed a special master to investigate Fox News and Fox Corp.’s respective discovery conduct.
Among the powers Davis gave the special master were the right to take his own…
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