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So to Speak Podcast Transcript - First Amendment Salon with Lee Levine, Tom Clare, and Dan Webb
Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Nico Perrino: Hey, folks, Nico Perrino here. We have a very special episode for you today. By now, I'm sure you've all heard at least something about Dominion Voting Systems defamation lawsuit against Fox News. The case, which stemmed from allegations of voter fraud in the 2020 presidential election, suddenly ended last month with an historical $787.5 million settlement.
Well, for today's show, we're featuring a conversation between two of the opposing attorneys on the case. You may recall that Delaware Superior Court Judge Eric Davis complimented both the legal teams on the case, saying it was some of the best lawyering he had seen in his 13 years on the bench. Now, this may actually be the first time the two parties on the case have actually spoken together in a public forum, and they are surprisingly candid in discussing not only the case and its outcome but also the arguments they would have made had the case not settled and instead gone to trial.
Joining us on the show is Tom Clare, who is a founding partner of Clare Locke LLP and was counsel to Dominion, and we also have Dan Webb, who is co-executive chairman of Winston & Strawn, and he was counsel for Fox News. They are interviewed not by me for this show but by leading media lawyer and past, so to speak, guest, Lee Levine. And after Lee's interview, Tom and Dan take questions from participants in the First Amendment Salon, which hosted this conversation on May 9th and was generous enough to let us use it for a, So to Speak, podcast episode.
Now, I don't think the Fox-Dominion case needs much setup. It was headline news for months and we covered it on a past show, so I'm going to try and get out of the way and let Lee tee it up with Tom and Dan, but before I do, I just want to make a note that you may hear some periodic background noises while Tom, in particular, is talking. The conversation was a mix of in person and virtual participants and sometimes shuffling and other noises made by the virtual participants were broadcast through the speakers in DC where our microphones were set up. We did our best to minimize the disruption throughout the show.
And now, with that out of the way, I am going to turn it over to Lee for his conversation with Tom Clare and Dan Webb.
Lee Levine: So, I am going to assume that everybody in this audience knows the background of this case or else you wouldn't have come, so we're not gonna spend a lot of time talking about that. I do want to make a couple of kinda disclaimers at the beginning. One is that, especially Dan, might be hamstrung some in what he can talk about because there are pending cases, as many of us know, remaining against Fox by Smartmatic and others arising out of the same common nucleus about facts, as we used to say in the law business.
And the other thing I want to say is that I'm particularly honored to be here with Dan and with Tom because I followed the case quite closely and I – the lawyering on both sides was just outstanding. The briefing was excellent, and for those of you who listened to the audio the day the settlement was announced, Judge Davis I think went out of his way to compliment the lawyers on just how outstanding their efforts were. So, I'm happy to be here.
I want to start by not rehearsing the facts of the case but by asking both Dan and Tom to talk a little bit about how and when they and their firms got involved in the case and that's kind of a two-part question, that's part one. And part two is, one of the things that struck I think those of us who are or have been in the legal business is the number of law firms on each side. And I was wondering if you could each speak a little bit about how responsibility was divided up and how you made that work.
So, why don't we start with you, Tom.
Tom Clare: Sure. Well, first of all, I'm thrilled to be here and thank you for the very kind invitation. I'm thrilled to be here with Dan. We actually worked together once before, although not really together. I was having the smallest and bit roles in the BPI case. I wrote one of the very early demand letters that was there to be used as an exhibit at trial and I felt like I had a very small piece of that win.
To answer your question. So, the call first came to our firm over Thanksgiving weekend of 2020, right after the election and some of the craziness was happening. And our office is a block from our house and I excused myself from the Thanksgiving preparation and festivities and walked down to the office and had a quiet conversation with the client.
And at that point we were trying to make sense of just the media environment that was going on. It was live fire exercise; people were going on the air saying things on a daily basis and they were just trying to get a handle on that. We were not, at that point, thinking about litigation or what claims we could bring, we were thinking about really trying to stem the tide of false information that was being reported, both by the individuals who were making those claims and also by the media outlets that we felt were increasingly responsible for giving these people a platform and perpetuating these same false statements.
And so, the immediate triage of our firm was getting involved with that and trying to help the client develop kind of a pre and post-publication strategy of corresponding with these outlets to make sure that the facts were getting out there in a way that were truthful, and obviously getting the client's messages across but also developing a written record that lawyers would recognize as being impactful later on if we were gonna be in a litigation scenario.
And that involved and lasted for, I would say, a month or so into December. And then we really had a little bit of time to start thinking about what does the litigation strategy look like and is there a litigation strategy, what does it look like, who do we sue, where do we sue and in what order. And we put together that type of an analysis.
And it quickly became clear that the scope of that project was gonna be a significant undertaking because the case that we had against individuals, Sidney Powell and Rudy Giuliani and the MyPillow guy against the media outlets. And the strategy that we sort of laid out would involve walking and chewing gum at the same time and filing multiple cases in multiple different jurisdictions.
And at that point is around the time that we started to team up with Susman, who were terrific partners with us. They are a great, great law firm who had trial experience and we knew that we were gonna need an army of lawyers to do this together. And so, to answer the second part of your question, when Susman came onboard we spent a lot of time with their team kind of talking about how to allocate responsibility in a way that would leverage each firm's particular strengths and expertise, but also in a way that would not result in a lot of overlapping work.
So, for example, in the Fox matter, we assigned responsibility for different siloes of content providers to different firms. And so, we had on-air hosts that Clare Locke was responsible for, the entire silo, from the on-air personality down to the producers, to the bookers, all the document review related to that, all the way down to following up on the interrogatory responses, to the privileged log. We owned that silo, that vertical. And then Susman had a bunch that they were responsible for.
And I would also be remiss if I did not recognize the involvement of Rod Smolla, who once we got the team together, it was sort of a collective moment of we need to have Rod involved in this. I mean we were gonna be litigating in Delaware a defamation case and, as I'm reading Rod's book on my desk, it just made a lot of sense to have him involved. And he was instrumental in helping us bring it all together.
Lee Levine: Excellent. Dan, same question for you.
Dan Webb: Well, I got involved in the case by the law firm which was representing Fox, and I think it was in the last July, six, seven months before the trial I got contacted by the general counsel of Fox Corporation and Fox News and asked if I would have any interest in representing Fox in the Dominion litigation. I had tracked the litigation but not in any significant way, but I was obviously aware of the case.
And so, I was asked about it, I said I love trying cases. I've spent my entire professional career trying cases, and I have a particular affinity, I like defamation cases and get contacted on a fair number of them over the years. You mentioned the Pink Slime case, was a very interesting trial that I enjoyed being connected with, representing meat products.
So, I said immediately I would love to be considered. I basically had cleared conflicts and I went to New York and read some background materials, and when you go into beauty contests you don't know how many firms you're competing against and what's gonna happen. And I had a meeting in New York with the Fox News and Fox Corporation lawyers and we went out and drank some wine and I got hired. That's what happened, and I got hired.
And I can tell you that I've had the privilege of working with some great law firms. Winston & Strawn's role in the case was to be chief trial counsel for the trial, but we obviously had Clement & Murphy as our appellate lawyers that would handle the appeals since this case was always I think identified in the First Amendment world as having some significant First Amendment issues that would end up on appeal.
So, I do believe that, certainly, at least on our side of the aisle, there was a strong belief that the appeal could very well be as important or more important than the trial itself because I think I could fairly say for Fox News and Fox Corporation that the First Amendment issues were significant and we wanted to make sure that we protected the record and so that we would have everything protected and First Amendment issues to go up on appeal.
And then we had Richards, Layton & Finger in Delaware, they're a great firm. And so, it was primarily those firms that were combined together to – and there was never any question in my mind that this case was gonna go to trial, that's why I was hired. And so, I immersed myself in the case. I kinda reassigned some other matters I had and worked very hard to master the case and be ready to go to trial. And that's kinda what happened to me.
Lee Levine: Dan, just to follow up. By the time you got involved, was the discovery largely complete or were you involved in the discovery phase in any meaningful way?
Dan Webb: No, I was involved heavily in discovery. The discovery went on for quite some time after I got involved, and I think my primary role, at least my personal role, was representing the hosts that had the shows that were accused of defamation. So, I got the privilege of working very closely with the hosts at Fox News and came to like and respect them a great deal. I became friendly with them and enjoyed very much the opportunity to help prepare them for their depositions and was obviously preparing them for their trial testimony.
And so, no, my firm got thrown in with – there was a lot left to be done on discovery and developing the trial plan, doing things like jury research, etc. So, I clearly – well, I came in, let's say midstream, there was a lot going on in this case that was crammed into the last seven or eight months before the trial.
Lee Levine: Got it. Was document production already complete by the time you got involved?
Dan Webb: No, that went on and on and on and on.
Lee Levine: Okay, all right. All right. I want to go back to a little bit at the beginning and something Tom, that you said. One of the things that struck me about the case at the complaint stage, and I think I was – I said on 60 Minutes that it was the strongest defamation case I think I had ever seen, and the main reason for that was the extraordinary efforts that Dominion made to get in front of anybody at Fox that had a role in this, factual information about the falsity of what was being said on Fox's air.
I don't want to be pejorative but we've all of us who are defense lawyers around the table know that there are firms who regularly send you prelitigation letters that you throw in the garbage after reading them because they don't pass the laugh test. This was something quite different with the links and can you talk a little bit about the process of going through that, identifying the folks who would be recipients of these communications and how that all worked?
Tom Clare: Sure. So, that was in this frenzied period after Thanksgiving weekend and sort of into December, and some of this work had already started before our involvement. I'd have to recognize Mitch Langberg at the Brownstein Hyatt firm that was involved in representing Dominion even before the election on a whole range of regulatory issues. And Mitch does defamation work, he knows how to draft those letters, and he had sent what would be a pretty standard but effective demand letter to the Fox law folks very, very early on. It was one of the first stakes in the ground about kind of putting them on notice of some of the facts that were known at that time.
And so, when we got involved, it was such a rapidly evolving, factual landscape that rather than kind of send a series of lawyer letters that would be talking about the First Amendment principles and all of that, we were wanting to make sure that Fox and all these other media outlets were blanketed with the facts that were coming out each day, as each new expert came out with a finding that these allegations were false, as each person in the government came out and said we're rejecting these claims. When Bill Barr came out and said it, when CISA came out and said it.
We wanted to make sure that all of that information was collected in as comprehensive a place as possible. And honestly, we really weren't thinking at that point about building a litigation record as much as we were trying to stop the bleeding or trying to save this company. And so, we worked closely with Dominion and we put together these kind of series of communications that were cleverly titled Setting the Record Straight, the STRS communications.
And they went out on a pretty steady drumbeat and we worked with some folks that were pretty plugged in and knew how to get them in the hands of producers and bookers and the on-air hosts. And we had Tony Fratto's firm, Hamilton Place, getting those to the top people at Fox, getting them to the on-air hosts, getting them to the bookers. And it was gratifying to me once document discovery came around to see how widely circulated they were. It was gratifying to me, both, because there was a lot of effort that went into it, it was also gratifying to me because it was fantastic evidence of malice. So, I was really thrilled to see them show up in all these different places.
But that's really what it was, and it wasn't done as much with the litigation record in mind as it was just making sure that we, who are collecting from a very broad source of information, demonstrating falsity, we're getting that in the hands of the people that were going on the air four or five times a day and saying these same things and we were begging them to stop.
Lee Levine: Dan, that raises a question that you may or may not be able to speak to but I'll ask it anyway. One of the differences, I guess, between how Fox treated Dominion and how Fox treated Smartmatic was that very, I will say, you can disagree, odd point when on the hosts of the three – the three programs that Smartmatic sued about, the hosts introduced these prepackaged interviews with an election security expert who went through all of the allegations that had been made about Smartmatic on Fox's air and said, no, that's false, that's false, that's false. Why didn't Fox do anything similar for Dominion?
Dan Webb: Well, by the way, I should say I actually don't know anything about that Smartmatic case. When I got hired, I got hired only on Dominion and so I have I mean literally no connection or involvement with Smartmatic. So, I really have not tracked what had happened on the Smartmatic case, so I'm not sure I can answer your question. I just don't know what happened on Smartmatic. I have no knowledge about it at all. I just, I apologize, I just don't.
Lee Levine: No, that's fine. I just thought I'd ask. Okay. Dan, I'm gonna skip around here to things that just happen to interest me and you all will get a chance to ask questions later as well. So, one of the things that I tried to put myself in your shoes as the case was proceeding to the run-up to trial and the judge was issuing summary judgement rulings and issuing rulings on motions in limine and kind of systematically depriving you of defenses or arguments that you wanted to make.
My question is a two-parter. One is, which of the judge's rulings kind of hamstringing you did you think was the most significant blow to your ability to make the arguments you wanted to make. And since nobody ever got to hear it, can you tell us a little bit about what your opening statement would have been given the constraints that the judge put on you, at least on the liability side?
Dan Webb: Sure, that is a fair question, Lee, and I can answer that. First, I think the ruling that I was most – well, did not appreciate very much from the judge was the falsity ruling. The judge took falsity out of the case. And I obviously had already prepared an opening statement that, there's two issues in every defamation case, forget all the elements, what matters is falsity and malice, that's what matters, and damages, of course.
And so, I had prepared an opening statement and tested it in jury research with both falsity and malice in it, and the court did take falsity away, and so that – I'm not sure we're here to talk about – there never will be an appeal here. Had there been an appeal, and I think all of the First Amendment lawyers that are interested in First Amendment issues, the fact that the judge took falsity out of the case on a summary judgment ruling would have been a big deal on appeal, okay.
In fact, I think that could have been the card that got this case to the United States Supreme Court, but we don't have an appeal because we have a settlement. So, your next question is, what affect did that have on my opening statement, and almost none. I didn't like the ruling but it had almost none because my view was that I could take what's left, malice, and I can tell my story within the confines of the malice requirements.
As a trial lawyer, Lee, I believe the guy that wins the case is the guy that has the best story for a jury to explain why I should win. So, I thought, and I know there may be others that disagree, I recognize there's a lot of you in the media that Dominion had this very strong, powerful case and, etc., etc. I actually believed in and tested my theories with jury research, I had a compelling story to tell.
And I kinda fought with the judge after his rulings to maintain everything I wanted to say in my opening statement and through some offers of proof and discussions with the judge, when I was ready to give the opening statement, which is, I was getting ready to get up 10 minutes before the settlement occurred, I had a compelling story to tell which was the same story without falsity, which was very simple. I had a simple, straightforward story, very easy, to tell the jury why I win.
Fox covered this story because President Trump made extraordinary allegations against Dominion, extraordinary, newsworthy allegations that a voting machine company came into this country and had got contracts with governments and actually stole the presidential election from him through vote fraud. And it was clearly the most newsworthy story of 2020. And so, for me to convince the jury that the reason Fox covered initially the story was because that's what news organizations do. Any news organization that did not cover the president's Dominion allegations I think would have been – I think it would have been extraordinarily unusual not to cover it and Fox covered it.
And so, for me to tell the story to the jury about why Fox covered the Dominion story, because it was one of the most extraordinary newsworthy stories in years, and it literally went to the heart of whether we have a democratic system of government or not, I could tell that story and explain it. And then I could tell the story, why did we continue to cover the story, the allegations for about 30 days with the president and two of his lawyers on the air, I found that pretty easy to explain. I thought the story was pretty compelling and I felt pretty confident about what a jury would do with do with it.
We continued for 30 days because the president of the United States and his lawyers told Fox News on the air about 25 times that they had compelling evidence and they detailed affidavits and evidence they had that they were gonna go to court and prove their allegations and they filed lawsuits. And that's kind of what we're about in this country, I was gonna tell the jury in my opening statement, that that is what courts are for, that's what they're for.
So, President Trump didn't just yap his gums, he actually hired good lawyers, went to court and filed lawsuits and explained over the next 30 days how much evidence they had to prove their case. And Fox News folks knew this had to be resolved quickly, within roughly 30 days, because by December 14th the evidence had to be in. And so, Fox News continued to cover the president's Dominion allegations for a short period of time, for about 30 days because they believed that one way or the other, whether the president's allegations were true or false, would be established in a court of law and then we would have the answer.
And when Fox News found out that the president's lawyers failed to establish their proof of the Dominion allegations before December 14th and cases were thrown out of court, Fox stopped covering it. So, basically, that story that I just said, which is simple, easy and straightforward, I thought I could ride to the O.K. Corral on that horse and eventually convince a jury that I had a good case.
Now, I have obviously simplified it here and I'm not minimizing the complexities of the First Amendment –. And by the way, was I gonna clothe this case in the First Amendment? Yes. The New York Times malice case is because of the First Amendment. We were only litigating one issue in this case, malice, and damages, and so I was obviously in my opening statement was gonna explain to the jury that the reason this malice thing is on the screen here and that these requirements of having to know it's false or reckless disregard of the truth, those are there because of the First Amendment.
So, yes, I was gonna try to clothe the case in the First Amendment and tell a simple story to explain why Fox covered it initially and why Fox continued to cover it, and I felt pretty comfortable with that storyline. That story really didn't change from the time that the summary judgment ruling came in. I managed to maintain most of it. There were some frills that I had to give up because of some of the judge's rulings on falsity and other issues. The neutral doctrine got taken away from me with the summary judgment rulings and the fair report doctrine was taken away. Those issues would have ended up on appeal.
But I wasn't gonna get a jury instruction that basically said, if these allegations were newsworthy then Fox could report them on the air, and even if the Fox hosts were skeptical of them or even believed they were not true, there would be an instruction that says that would be okay based on the laws of Second Circuit cases. That was taken away by the court so obviously I did not argue that. But otherwise, basically my story – I just took the shoe would fit in the evidence under all of it under malice and left out falsity, to answer your question.
Lee Levine: Thank you. I want to just follow up and then I'll go to Tom. But what you just said I think is a story about motive. It is why Fox did what it did. How were you gonna tie that into the issue of the state of mind of the relevant people with respect to truth or falsity once the judge took neutral reportage away from you? And how were you gonna deal with things like the brain room communications and the things I was just talking about with Tom, the communications from the Dominion to Fox setting out facts?
Dan Webb: Well, as far as malice is concerned, in simple terms, I think if the jury felt that Fox acted reasonably during this time period and why they covered the story, remember, Dominion contended Fox – the motive to cover the story is that Fox had lost some Trump viewers because of the Arizona call on November 3rd, and that was their –. Dominion had a motive theory that I wanted to put on center stage and knock it down because I thought the evidence was overwhelming that was not because of anything about the Arizona call, which by the way, turned out to be factually correct, at the end of the day.
But that I wanted to knock down the motive that Dominion, as the party with the burden of proof was gonna put out there that my motive, or Fox's motive was to cover it because it was so extraordinarily newsworthy you had to cover it. That's what newspeople do and they continued to cover it for that period of time. I thought if you showed the jury we're reasonable that would help defend on malice.
And all of my hosts were gonna go on the stand and explain to the jury that under malice they basically were gonna testify they had no way to know one way or the other whether President Trump's allegations were true or false, because unless they got ahold of the voting machines, they could do a forensic exam, they would not know. Unless the government was doing some investigation, they wouldn't know. But they did know that within 30 days this evidence that Trump said he had, had to go in front of a judge and then they would know.
And I thought that story negated malice, okay, that we were acting in a reasonable way and that if you act reasonably you don't have malice. And, of course, all the Fox hosts were going to explain I some detail what their state of mind was. Each one of them had a little different state of mind, okay, but when it cut down to the core, each one would tell the jury, look, I didn't know for sure one way or the other. I had the president over here, as the president of the United States, asserting 25 times with lawyers they had the evidence and describing it and they were gonna prove it in court. Then I had over here Dominion insisting that they were innocent and that they had not in any way engaged in vote fraud.
And Tucker and Hannity and Maria and others, they were gonna basically explain, Fox was in a search for the truth. It wasn't gonna be a long search because it was gonna get resolved in a court of law which is where we resolve all disputes in our country, and that's where this dispute was gonna resolved. And yes, we knew that Bill Barr said he did not find any significant vote fraud. We knew that others were skeptical about the Dominion allegations, so we clearly accepted all of that.
And by the way, we never – by the time I got involved in the case, we weren't arguing as to whether or not the Dominion allegations were true. Yes, when they failed to prove it in court, when the president and his lawyers, they're false and we accepted that they were false. So, we weren't arguing that –. We weren't trying to prove that, yes, the Dominion machines were involved in fraud but I was gonna tell the jury that we covered this with a degree of reasonableness that I thought was pretty extraordinary.
And then the moment it turned out that they failed in court we stopped. Because the court answered the question that we didn't know about, I believe that, if you will, position articulated through credible witnesses for a period of five or six weeks, I – I’m not going to get into jury research and what we discovered, but I believe I had a storyline that would deal with malice and that I had a good shot at the jury.
Lee Levine: Thank you. Tom, I'm gonna give you a chance to respond to any of that that you'd like, including what portions of that you would have gotten up and objected to during opening statements. But I also want you to talk about – I want to kind of focus for a minute as well on the state of mind issue. And one of the things that I thought that was quite significant about the judge's summary judgment ruling was that he essentially punted on the issue of who within the Fox hierarchy state of mind was relevant, which I read as saying it all came in and it was up to the jury to decide which of it was relevant. Which, if I was in your shoes I would have thought it was a very good development.
Talk, in addition to responding to whatever you'd like about what Dan just said, talk a little bit about how you were going to deal with the issue at trial of who's state of mind was relevant.
Tom Clare: Sure. So, the connective tissue of malice evidence in this case was really rich. There was a lot of internal communications, some of which are on the public docket. There were a lot of internal communications that cross-pollinated across those verticals that we had of the different hosts communicating with each other and the teams communicating with each other. And then, of course, upward into one of the themes of our case was editorial control about who within the organizations, plural, had the ability to say up or down on what content can go on the air and we saw some of that being exercised.
And so, we were gonna deal with it kind of both horizontally and vertically. We were gonna go in each of the channels for each one of the statements, because we knew we were gonna be held to our proof on state of mind, and we were gonna show how the knowledge of falsity, the things that were coming out publicly, the things that Dominion were putting in front of Fox people, the things that the Fox people were discovering on their own that we saw in their communications and all of those things, how it percolated up to the people that were actually making the statements. And that was, of course, kind of the block and tackle of the malice case.
But then also showing how the editorial control, how people higher up on the food chain were also being made aware of those same facts and making decisions, or in some cases not making decisions about the content that was gonna go on the air. And so, we had a lot to work with both kind of at the host and producer level, but also higher up in the food chain.
And we thought that was relevant to a couple things, not just the malice requirement if the judge disagreed with us about where that would be relevant. And to be candid, I did think that the judge's summary of judgment ruling didn't give us, either Dan or our team, a roadmap on who's knowledge was gonna be relevant. Fully expected that that issue would become more clear during trial. Once the judge heard the evidence, I would imagine there would have been a lot more argument on that especially as we worked on jury instructions.
And so, we were planning to try the case with kind of the full range of instructions in mind, saying that no, we've satisfied the actual malice burden with the actual speakers of the false statements in order to make sure that we were touching that base and not just relying on kind of a bunch of bad internal documents, but we were blocking and trying to get each one of the statements tied to the overwhelming amount of malice evidence that we had. So, that's – we were surgical in our approach.
The other issues that we thought some of that was relevant to is, obviously, the punitive damages. We felt this was a very compelling case for punitives, and in order to do that we wanted to demonstrate that the knowledge, and the control, the ability to actually have stopped this or the decision to perpetuate it being made at the highest levels of the organization where we felt the jury would be more interested in punitive damages.
And so, we had alternate theories for why this evidence came in. But also, we had to deal with the two different entities. We had Fox News and Fox Corp and wanted to make sure that we were showing how this information was jumping the fence into that other organization.
If I could transition briefly –.
Lee Levine: Oh, please.
Tom Clare: Briefly, just to respond to some of what Dan said. In some ways, we were really hoping they were gonna try to put on a truth case. Our view was given the overwhelming evidence that we had put in our summary judgment motion, that putting on a case that these allegations were true would allow us to make the point to the jury, ladies and gentlemen, they still don't get it and that's why we're here. They still don't get it.
The evidence of malice, the evidence of intent to harm, the requirement for punitive damages played out in front of you over the last six weeks. And so, we were in some ways hopeful for that. The flipside of that is we got an excellent ruling on falsity from the judge, who spent a ton of time going through the evidence that we had put out and gave us a line in his order that I was very proud of, and said the evidence developed in this civil proceeding demonstrates that it is crystal clear that none of the statements –.
Lee Levine: All caps.
Tom Clare: All caps.
Lee Levine: All caps.
Tom Clare: Relating to Dominion about the 2020 decision are true. And honestly, when we're representing plaintiffs in these cases and you think about what is your client's objective, as much fun as it would have been to try that case, and we had experts and businesspeople who would very easily come on and explain why these allegations were demonstrably false, one of our client's objectives, one of the principle objectives was to get a ruling in the Fox case that the statements were false, and that statement by Judge Davis checked that box for us.
And that was one of the things that I would say allowed us to be in a position where a resolution was possible. Because without it we would have needed a statement from the jury saying these allegations were false and we were prepared to do it, fully prepared to do it but it was important to the company, I would say of paramount importance that we got that finding of falsity.
I want to also respond to something that Dan said about the argument that he was intending to put forward, and it was evident from the discovery and from the briefing about why Fox was covering this. And I think a lot of the argument that he just so clearly laid out is sort of why was Fox talking about this, and for us, the issue was not why Fox was talking about, it was how Fox covered this. It wasn't why Fox was talking about these allegations but how.
Through the endorsement of their on-air hosts, who endorsed the claims and didn't just simply report on court allegations. We'll come back to that in a minute. No pressure testing, not fact checked in a meaningful way. When the promises of evidence that were being made fell short time and time and time and time again, yet they continued to go on the air again and again and again.
And there's a reason why Fox and OAN and Newsmax and the news outlets that we sued, and there's a reason why other news outlets that covered these same issues didn't get sued. They were getting presented with the same set of facts but it was the manner in which they covered them. There was a manner in which these allegations, these statements could have been responsibly covered and part of our case was going to be to say, you can respond, you can talk about these issues, this is not some foreboded topic that you can't talk about, that the statements that are being made about voting machine election fraud, but it's how you did it.
And we had such great examples of the, in our view, reckless and irresponsible way it was being covered. Lou Dobbs tweet, this is a cyber Pearl Harbor, that's what was being said in December. That is, in our view, not a responsible way to be covering allegations for which there was no evidence, for which so many experts had come out and said were false and that there was no evidence. And that's the reason why Fox and these other outlets got sued, is because they covered it in that particular manner.
The issue about the cases, the lawsuits that were supposedly dealing with this, this is I think – one of the things that I, mostly at cocktail parties, heard about people who knew not much about the case was they'd say, well, isn't, in fact, the president making these allegations in court and isn't that – isn't there some basis to cover that. And the answer was really no.
The Dominion allegations, the allegations that form the basis of the statements we sued on, we were very careful about the statements that we sued on and the ones that we didn't, with this in mind, those were not the allegations that were being made in the Kraken lawsuits and they were not being made in court. So, it wasn't as if there were allegations that were being put forward in court about Dominion rigging these elections that were then being thrown out.
These cases, the Dominion claims were never being put forward in court and we felt that was a great fact for us because on the one hand you have people that are prepared to stand up and say that the media made these incredibly serious allegations about Dominion rigging the election and committing these crimes. These attorneys who were saying these things but were unwilling to make those same allegations in verified court pleadings because that has consequences. Going on Lou Dobbs doesn't have consequences for those hosts, for the guests.
And so, the fact that the cases were thrown out of court, the Kraken cases and all the other ones, were really inconsequential to the state of mind argument because we were gonna demonstrate to the jury, case by case by case, that those allegations were not being made in court. And therefore, you can talk about the president saying these things, no problem, but they need to be covered in a responsible way.
And the endorsement that these hosts were doing, and that's one of the things that Judge Davis did in his motion to dismiss argument and kind of greenlighting that theory that the hosts' own statements about what their guests were talking about allowed us to make that argument. So, that's sort of the way we approached truth.
But I guess I'd kind of end where I started, in that, I have very mixed feelings about that ruling, because on the one hand I was extraordinarily happy that we could check that box for the client, but on the other hand, it would have been a lot of fun to stand up and make that argument that they still don't get it.
Lee Levine: Dan, the judge appeared to give you some difficulty on the issue of not just did you have the right to repeat or to put Giuliani and Powell on the air because what they were saying was newsworthy, which you've already talked about, but he seemed to be, as trial approached and he was dealing with the motions in limine, he appeared to be pretty clear that he was not going to let you say we didn't say it, they said it, we were just covering it because it was important to, the most important issue that was going on at the time. How did you prepare to deal with that, that notion that you were being essentially held responsible for what Giuliani and Powell said?
Dan Webb: That's a great question and I'm gonna answer it directly in two ways. First of all, you're right, after the summary judgment ruling and after some of the motions in limine, as we were getting ready to go to trial, obviously the first thing I had to do was get up and give an opening statement. I started talking to the judge about what I can and can't do because, look as a trial lawyer I am gonna follow the damn rules, okay. I need to know what those guidelines are and I'm gonna follow them.
And I actually made, which I often don't do, I didn't just make an oral offer of proof, I filed a detailed written offer of proof and I told – everything I just told you that was my storyline about newsworthiness, about how long we covered it, for 30 days, the court proceeding, I broke these down into five different points that I was going to use in my opening statement, and I did a mother may I. I asked the judge, I said I want to make sure I can do this.
And I got some rulings. There were sometimes I got a little vagueness about the rulings but he gave me some guidance and I told him I was gonna follow them. And the day of the opening statement, the night before I had turned over my slides, Dominion made a lot of objections to my slides that I was gonna violate the court's orders on what I could argue.
We got to court that morning and I told the judge, look, we can do this the easy way or the hard way, basically. We can spend two hours here going through Dominion's objections or I'm gonna tell you, Your Honor, I am gonna follow what you told me I can do and can't do. And so, I don't expect that you're gonna ask me to ever sit down and shut up or you're gonna bring me to a sidebar, and he said we're gonna do it that way.
Mr. Webb can get up and give his argument, and I was gonna follow what I thought were the rulings he gave me, and I had believed that he was not gonna – that what I just told you, what I just summarized for you in a very broad cloth, I was gonna tell the jury in my opening statement, which I believe I had a right to do within the confines of malice. However, this falsity issue, because we are – I know this is a First Amendment seminar, I am curious because we're – Tom, this issue about the judge's falsity ruling, this is maybe my question to all of you who is more knowledgeable than I am about the First Amendment.
Obviously, one of the elements of defamation is that it has to be proven that Fox, itself, made a false statement that's a defamation of Dominion. That Fox has to make a false statement of fact. No one I don't think disputes that. However, part of my defense was that Fox didn't actually make any false statements. Fox did have Sidney Powell and Rudy Giuliani on the air, they did explain the president's Dominion allegations.
We did not adopt those allegations, we did not make those allegations. Fox News did not do any internal investigation that it got ahold of the machines and did a forensic exam. We couldn't – had no way to do that. And so we, at Fox, the hosts are gonna testify, you go through the transcripts line by line, page by page, Fox was being careful not to adopt the allegations because the hosts weren't sure one way or the other.
So, then, we don't – you can argue on the fringes about whether we adopted some and we could see what would happen at the trial. But basically, I presented that position during the case. The judge's ruling, which I think is a profound First Amendment issue, is that the judge's ruling, when you cut through it, is that if someone makes an allegation and a news outlet in good faith covers it and puts it out and gives them a platform to make the allegation, even if they don't adopt the allegation or make the allegation themselves, if they give them the platform they could be liable for making a false statement.
And I think that's a profound First Amendment issue, and a hypothetical that I've used in private discussions is that if a state's attorney were to indict a mayor for bribery, indict him, that's an allegation. So, broadcaster goes on the air, brings on the state's attorney and lets the state's attorney explain his allegation that Mayor Jones took a bribe. The case goes to trial, the jury finds him not guilty, so as far as I'm concerned that means that that statement is false. The statement is false. Does that mean that the media outlets that had the state's attorney on the air, that let the state's attorney –?
Just because Fox was a platform for Sidney Powell and Rudy Giuliani and the president, to make their allegations and to find out what their evidence was, and to grill them about what their evidence was, does that make Fox guilty of making a false statement? Because I believe that's essentially what the ruling is with the judge on falsity and I think that has profound First Amendment issues on the issue of falsity. I'm curious about what others – well, and Tom, I'll go with you. I know, Lee that I'm not supposed to be quizzing you, okay.
Lee Levine: No, that's fine. No. I'm gonna say, because we're gonna get into the Q&A portion in a minute and I'll be happy to have anybody around the table here or in New York speak to Dan's point. But I will say, I want to – before I turn over the mic to Seth again. I do want to ask one question about damages. But before I do that, I do want to say, Dan, I think you are right that in the run-up to trial there was a lot of discussion both in the briefs and in the media about whether Fox could reasonably be held to have endorsed what Giuliani and Powell were saying in a manner that negated the Neutral Reportage Doctrine, even if it had applied.
But I did understand the judge to go much further than that in the rulings on the motions in limine in saying that – I read him to say you are responsible for it, period, whether you endorsed it or not, which I do agree with you raises some serious First Amendment issues. I want to switch just for a minute and talk about damages in two ways, and I'll let Tom go first and then Dan.
One is, I'm interested in how the trial was going to unfold with respect to damages, firstly, was it gonna be bifurcated, was there gonna be a liability phase and a damages phase and was there gonna be a liability nonpunitive damages phase and then punitive damages phase? Was there any discussion of how that was gonna be whacked up?
And then second, and this is a question I think mostly for Tom, we all know that, from reading about it in the press beforehand, that you all came – were gonna come to trial with experts and testimony to support a very large damages figure. And that, Dan, you were prepared to cross-examine those people and try to show that the actual damages number was much lower. In a defamation case where actual malice is proven, which it would have been, by definition here, if you got the damages, you would be entitled to presume damages as well.
So, in addition to talking about how – at what point the damages analysis was gonna – or the damages evidence was gonna come into the case, both on actuals and punitives, how were you gonna deal with the fact that you were on the one hand entitled to presume damages but on the other hand you wanted to prove up all of this actual dollar figure?
Tom Clare: Yeah, that's a great question. So, in terms of just the nuts and bolts of it, the damages piece of our case, the compensatory damage piece of our case was gonna be in line with all of the liability based evidence. There was not gonna be a bifurcation, wasn't gonna be a separate set of proceeding. We were gonna weave into our trial presentation different elements of damage, which I'm gonna come back to in a second, kind of culminating with some of the expert testimony that we had on the financial issues that we were gonna put forward in our actual –.
In terms of the question about kind of thematically how do we think about presumed damages versus proving it up. This is really hard stuff to get your head wrapped around, this company and the testimony that we were gonna offer from the representatives of the company around the country, the folks that were interacting with the election officials and who were understanding the enormous impact it had, and the impact it had on the people, the men and women of Dominion, who were on the frontlines and taking horrendous personal abuse as a result of what was being said on the airwaves.
It's kind of hard to kind of put your head wrapped around what presumed damages would look like given that. And a complication for us, one that we were gonna overcome with a carefully curated trial presentation, was the nature of this industry. These are long-term relationships that exist between these counties that use election voting technology and the Dominions of the world and they are very cyclical.
Once a county makes a massive investment in this infrastructure, there are a lot of barriers to entry for other competitors to come in and try to unseat the incumbent. The contract cycles are long, the RFP cycles are long. And so, the entrenched business that Dominion had in some of these counties had no long-term liability as a result of these statements that had been made and we would have gonna put on evidence that they were not being invited to participate, being disqualified on the outset from participating in RFPs from counties that they had provided services to for the entire length of the company.
They were just not even being invited to participate. And that RFP maybe for technology is three, four, five years out because they have to do that – the provisioning process that far in advance. But this company was done. I mean the long-term liability of this company was done and we needed a way to not just say that but to prove it up.
And so, we wanted to tell the story, we wanted to talk about the threats, the death threats, the voicemails, the guys showing up at Dominion's office with the high-powered rifle, those human elements of what were unleashed by these false allegations. But we also needed to tell the economic story and that was a relatively significant part of our presentation because we understood it was an eye-popping number.
It was, we were seeking effectively the enterprise value of the company, and we needed to be able to demonstrate that that's really what was at risk here, and we were gonna do that through a combination of expert testimony but also the testimony of the founder, John Poulos, who would talk about cradle to grave how these contracts work and why the company was effectively destroyed by this.
And the judge had said to us that he was going to kind of deal with the damage evidence as it came in. So, I fully expected there would have been a modification of the ground rules for how we would have been able to put in damages evidence as the case went on because I think he wanted to wait and see how the evidence was coming in, but we knew it was gonna be a huge part of it.
We knew it was gonna be a huge part of Dan's case. The two things that we perceived from what we were reading and what Dan was telling us was, it was gonna be all about newsworthiness and it was gonna be all about damages, those were gonna be the two things. And, from our perspective, Dan and his team were playing a smart short game and a smart long game. The short game was the newsworthiness, the need to cover these allegations in the hopes that maybe we pick off a juror or two who feels that, yes, this is an important newsworthy topic and we need to be able to cover it.
So, sort of the notwithstanding the fact we had a very strong belief that newsworthiness was not a defense to any of the claims that we may have brought as a legal matter. It's sort of from a jury appeal matter, we figured that that's what he was doing. And he was playing the long game on damages with an appeal.
Lee Levine: Dan, let me ask you about the punitive damages. Two questions. One is, was there gonna be a separate bifurcated proceeding on punitive damages if Dominion had prevailed on liability? And second, what did you make of the judge's kind of punting on the issue of whether punitive damages were recoverable under New York law in the summary judgement ruling? Why do you think he did that?
Dan Webb: Well, by the way, so on the bifurcation issue, Lee, under Delaware law, unlike I could in other states, I was never going to be able to say we're gonna have two trials, we're gonna have trial one where we're gonna litigate compensatory damages and we're gonna – we're gonna litigate liability and we're gonna litigate compensatory damages, and the jury is gonna answer the question about entitlement, the entitlement question. But then that's trial one and if they answer the entitlement question yes, you have trial two with another jury that gets the evidence basically that satisfies punitive damages.
We were never gonna get that in Delaware, so we were only gonna get one trial, and so what our – we filed a motion on this, our plan was – the best we could do is we were gonna have a trial on liability, compensatory damages. The jury would then answer the question on entitlement to punitive damages, and then at that point there was some evidence that would only come in after that and not come in before, and that was primarily Fox's financial cash on hand, revenues.
I had believed that that evidence was gonna runup punitive damages, and so I wanted to see if – and if they did not answer the entitlement question, I didn't want the jury to hear that evidence. And so that was the form of bifurcation. But the judge had not ruled on that yet, so he just hadn't ruled.
And by the way, Tom is absolutely correct, we, both sides, knew that damages was gonna be a big focus of this case. Look, as a trial lawyer I kinda – I lecture on this, that – and as a plaintiff's lawyer, which, by the way, I'd much rather represent the plaintiff than the defendant. I love being the plaintiff. I started as a prosecutor, that's where my home is and I don't get that a lot in the last 25 years.
And the fact is, I actually, Tom, thought that you – I thought that your expert Hosfield was kind of exposed on asking for $900 million for lost business value when he couldn't establish any government contracts that were lost at all. On the other hand, I understood the long game and what could happen in the future and I got all that. I had thought that maybe if I had something that might benefit me in front of a jury, I'm probably thinking about some research I did, if the jury thinks you overvalued your case that could be an issue, okay. So, we were gonna have – there's no question, we were gonna have a battle on damages, particularly the lost business value, which was a big component of their compensatory damages.
So, anyway, I don't know if I answered all your questions. I know you've got some time limits here.
Lee Levine: Yeah. Well, I have one other and I can throw it to both of you, which is it was surprising to me, at least, that in the summary judgment ruling, the judge did not decide the issue of whether punitive damages were recoverable under New York law, given the vagueness of what the standard is. Do either of you have a view as to why he held out on that?
Tom Clare: I don't. I also kind of raised my eyebrows a little bit at that, and I don't, I don't know why he did. I mean this was a very careful judge throughout the proceeding. We were very, very lucky to have Judge Davis. The care and attention that he gave to everything that the parties filed, from the original complaint to the motion to dismiss briefing argument and summary judgment, to all the motions in limine was really evident. And I found him to be wisely incremental in some of his rulings, and wanting to have a little bit more information to make sure that he would be addressing it in the context of sometimes more fully developed actual records.
So, my surmise, and it's just surmise, is that some of those questions he just wanted to continue to think about, maybe was gonna ask for more briefing on under the legal standard, but also kinda see what the evidence would support and what it wouldn't before having made that more difficult decision.
Lee Levine: Dan, thoughts on that?
Dan Webb: No, I agree with Tom. I don't know why the judge – I don't know and I don't want to speculate on why he did that, so I don't – the answer is I don't know.
Lee Levine: Okay. Seth, I've gone over my time. Tell the folks what's gonna happen next.
Seth Berlin: So, what's gonna happen next is we're gonna have Q&A. We're gonna do a round robin, this way, which is that we have three basically buckets of folks attending tonight. We have the folks here in DC, we have the folks in New York and we have the folks who are remote and we're gonna basically go through each one. If you want to have a question here in DC, if you raise your hand we will call on you. And then when we're done with that question we'll go to New York and I think Jill is gonna call on whoever is in New York and ask the question.
And then when we get to the online, let me just say a word about this, this is the most complicated piece, you need to go into the menu and there is a way to raise your virtual hand. Lisa, maybe a reminder on where that is [inaudible] [01:04:39].
Lisa: Oh sure. So, it's going to be the bottom of their screen, they should see a hand icon, and if they don't see it there they can right click next to their name and view it that way. And I see some people already have found it, so that's great.
Seth Berlin: Okay, excellent. And so what's gonna happen then is that Lisa will unmute whoever is gonna ask the question and they can ask the question and we'll come back in DC and we'll lather, rinse, repeat and do it again.
Lee Levine: All right. DC goes first, any questions, comments?
Tom Clare: The lady in the red dress is disqualified from asking questions [inaudible - crosstalk].
Lee Levine: All right. Yes.
Audience Member 1: Do I need this thing? Okay. This is actually a question for Tom. I think it's, as you noted in the brief when you filed your summary judgment brief, it's highly unusual for a plaintiff to move on actual malice, and I think we took note of that, like that's not something we see very often. And so, I'm curious about the way you were thinking about that decision, whether it was driven by wanting to put evidence in the press, whether it was a trial strategy. And I just thought it was an interesting decision and I'm curious how that – how you came to that decision.
Tom Clare: Yeah, I mean it's a good question. You see us filing summary judgment motions all the time and –.
Audience Member 1: You always say it's a question of fact, so.
Tom Clare: Well, this was an extraordinary case in a lot of different ways. It was extraordinary in terms of the specific breadth of the allegations that we sued on. We made a decision not to sue on all the statements that were made about, for example, the vulnerability of electronic voting machines more generally. Like that's not something we needed to prove.
But as it related to malice, as we got to the close of discovery and after we had completed all of these depositions and we had seen all the internal documents and we had gone up and sideways and across, this was an extraordinary case of where we believed that we could meet a summary judgment standard for demonstrating actual malice. And we thought we had a shot.
We also thought Dan would have a compelling argument that it was a factual question, maybe the only factual question in the case, and so – but we wanted to take our shot and it was really just as simple as that. If there ever were a case where a judge would consider taking malice away from a jury, we thought that there was an adequate basis to do it.
And I'll give you an example of one of the pieces of evidence that I found to be most compelling. Everybody talks about the text messages and things that have been made public, and they are certainly unbelievably, extraordinarily fun actual malice evidence. In fact, I'm not sure I'll ever see that type of evidence again. But one of the things –.
Seth Berlin: Could you say that again?
Tom Clare: Until next week.
Audience Member 1: What was that [inaudible] [01:07:35] file?
Tom Clare: Exactly. But one of the things that we had in the case that we don't normally have, I'm gonna use Lou Dobbs as an example, right. His show is broadcast twice, once in the 5:00 hour and once in the 7:00 hour and that presented an extraordinary and unique opportunity to argue malice. Because one of the things that Fox was saying in their papers was like, oh, we had no idea what these people were gonna say when they went on the air and we pressed them, do you have evidence, and we would never put them on the air if we had known that their evidence was nothing.
Well, this was a controlled experiment, right. We had the Lou Dobbs control experiment because like they put Sidney Powell on at 5:00, she said her crazy stuff without any evidence. They then knew that she had just said this crazy stuff without evidence and they had a full hour to make changes, to edit, to put something else on the air, and they chose to rebroadcast it. They made an affirmative decision, like, hey, we're gonna rebroadcast this at 7:00 and that –.
You don't normally have that type of a fact pattern, where you have like in the old days, the morning edition of the newspaper and then all sorts of correspondence with Clare Locke and then an evening edition. We kind of have that here and so we felt that it was worth taking a shot on malice.
Audience Member 1: And I guess it's less – I mean clearly there was [inaudible - crosstalk], oh, sorry. Clearly there was a lot there. I'm kinda curious about the – you said you – the client wanted a declaration on falsity but it would have been fun to try and like useful to have that evidence at trial. I'm sure if you won on actual malice then it gets taken away from the jury trial, which I am sure some of that goes to your damages too. So, did you want to win that motion, I guess is the question? Whether you think you have a good one or not, is it better for you to lose that motion and try –?
Tom Clare: Well, we thought we would – if we had won that motion, or even if we didn't, we thought a lot of that same evidence was coming in on punitives and for damages. And so it's also very powerful to be able to stand up in response to what we would have anticipated Dan's opening statement to say is, ladies and gentlemen, the judge has already decided all of the major issues in this case except for this one, and because it's defamatory meaning, it's publishing, it’s concerning, it’s blah, blah, blah, all the things. But we were happy either way. We were happy to put it on the trial evidence, but we thought we would take a shot at it.
Seth Berlin: New York.
Audience Member 2: Hi, I'm Steve Battaglio, Los Angeles Times. I covered the case and the trial. I wanted to ask Dan. I know that the strategy was going to be that the anchors were gonna be on the stand and were going to say that they did not know that whether these allegations were true or not and that's why they were presenting them. However, wasn't there a lot of evidence in discovery, such as Sean Hannity saying – I believe he said something to the effect of I didn't believe any of it. And there were other checks as well from producers and people who were responsible for these broadcasts and what went on those broadcasts where there was tremendous skepticism in terms of the voracity of these claims.
Dan Webb: Well, so I was kinda looking forward to the trial because I honestly – I spent a lot of time working with the hosts, the five or six hosts that were gonna be the main witnesses, and I felt pretty good about their – obviously prepared them for direct and cross. And so, the proof would have been as far as what happened if we hadn't tried the case for six weeks.
But to answer your question, I believe each one of these hosts was going to give their own testimony as to what they actually thought when they first heard the president's Dominion allegations and what they thought over time. And basically, what they're going to testify is that they honestly were gonna – they were gonna explain to the jury and look right at the jury, and then say, look, I had no way to know for certain whether the president and his lawyers had the evidence or did not have it. They said they had the evidence, they sometimes detailed the number of affidavits they had and so they indicated to us that they had evidence but I had to wait because I wanted to see what the courts did with it.
Because if the court said you haven't proven it, then I know you haven't proven it and we're gonna stop covering it. And that's what most of them said. It was a search for their truth. They weren't saying that we were convinced it was true. They weren't saying they were convinced it's false. They were simply telling the jury that it was a search for the truth and because they had filed these cases in court why don't we wait to see what the court does with it and answer the question.
Some of the hosts would explain that they had more skepticism than others did. Others had believed that because of the history of voting machines in this country that there was some plausibility to the idea that these machines could be used for vote fraud. Good, bad, right or wrong, that's what they believed. And so, it's not like I got all six hosts that were gonna say the exact same thing in front of the jury.
But as far as the legal definition of malice, whether they knew it was false, the answer is no. Whether they actually were acting in reckless disregard to the truth, no. But at the same time, we're not riding on the horse of Trump saying that we were certain about it because – but these lawyers – when Trump said, if he just was yapping his gums and said he made the allegations, this thing would have died in a day. It was because he said he was taking the cases to court, he hired litigators to go to court and that they had the evidence.
And they said it for 30 days they had the evidence and detailed affidavits, whistleblower evidence that they had, that's what kept this story alive for 30 days in a reasonable way for journalists to want to cover it. But I will tell you the hosts have said they weren't sure that Trump was telling the truth. They just did not know but they were gonna wait to see what a court did with it.
And it was my view that for malice that story of what happened, which was the truth, made sense to me that it would show the jury that they were acting in a reasonable way and in a rational way and for a short period of time. This is not litigation that's gonna go on for six months. It had to be done in 30 days because of the December 14th date, and so we would have known.
But the answer to your question is, yes, I realize there were documents out there that they would have to deal with on cross-examination but I thought the fundamental testimony on malice by these six hosts, who I got to be very comfortable with as far as their ability to communicate, tell the truth and get across to the jury why they did it, I was pretty comfortable with that and I thought it was gonna play pretty well in Delaware.
Audience Member 2: The gentleman in Washington, any response?
Tom Clare: These cross-examinations of these hosts would have been epic.
Audience Member 2: I was very sad that day when the judge said the case was resolved. Another question, the number was public, was that something that was negotiated as part of the settlement? That Dominion was able to make the number public?
Tom Clare: I'm not gonna talk about actual discussions that led to the settlement. I don't think that's fair to the process. But it was important to Dominion that there be, in addition to a judicial finding of falsity, which I mentioned earlier, that there be some accountability. And I'll just leave it at that.
Dan Webb: I'm not gonna get into the settlement. I think that's something that was confidential – the settlement is not confidential, it's for the record and there is it, you all have it. What went into the settlement discussions and how it all came about, I think you can all tell, it happened fast. We were getting ready to give opening statements. So, it wasn't like this thing had been planned out. It happened quick and it was done, that's what happened.
Audience Member 2: We have been writing that the settlement is the largest known one for a media case like this, however nobody really knows what the BPI number was. Is it safe to say that this was higher than the BPI number was?
Dan Webb: I think you're gonna be successful in leaving today and not know.
Lee Levine: Why don't we move, Lisa, and we go to our online for our participants.
Female Speaker 1: All right, Jasper [inaudible], you’re up.
Audience Member 3: A question actually about – I see your correspondence continued after the settlement. I want to ask about this letter that Dan sent to Tom on May 5th, asking Tom to investigate how certain materials related to the case were published, and asking Tom to investigate whether he or his client were the source of these materials that ended up in the news media. My question for Tom is did you conduct an investigation and what are the results that Dan asked you to produce by May 8th. And my question for Dan is that after mounting this vigorous freedom of the press argument, isn't it a little rich to start trying to suppress news about one of those newsworthy events going on in the country?
Tom Clare: So, I'm gonna respect Dan with my response here. I responded, our team has responded directly to Dan's letter and we have addressed his request. We did an investigation. We concluded unequivocally that the leak of this information did not come from our client or our legal teams. And I would just say, off the record, not off the record but outside of that correspondence that the amount of leaks of other things that have come out of Fox in recent weeks since the settlement was announced gave us some pretty good circumstantial evidence about where this other material had leaked. Can't prove that, of course, but it certainly points in a different direction than Dominion and its legal team.
So, and I'm also anxious to hear Dan's answer to your second question.
Dan Webb: Well, let me say this. By the way, I will say that I don't have any desire to comment on communications I had with the plaintiff's firm in this case. I built up a very good, professional relationship with Tom's firm and with the Susman Godfrey firm. And I communicate with them in a professional way. They communicate with me in a professional way. And I'm just not gonna talk about why I send letters and why I do it.
Lee Levine: Okay, so, DC, question, anybody? Jane.
Audience Member 4: Okay, thank you. So, I was doing a fair amount of punditry on this case as it was unfolding and got some pushback from people on both sides of the aisle on this. But I have a question that relates to the actual malice issue. Tom, you had made a comment about one of Lou Dobbs' statements to the effect that this was a cyber Pearl Harbor, I think was the term used.
And I'm curious to know whether either of you think that there's an argument to be made that for pundits who are paid to be hyperbolic or paid to be outrageous, should there be protection for those kinds of comments and should, perhaps, the measure of actual malice, determining what it would be, is it different for a pundit than is for a straight news reporter or commentator?
Tom Clare: Yeah. I mean what the law should be, if I get to be king of the First Amendment world for a day and define the law, we would go way back further than when the actual malice standard. But look, I'm trying to be careful in how I respond to respect to confidential information. But I would just say that there was ample evidence that we intended to present at trial through testimony and documents that the audiences of these shows had a right to expect that they were getting accurate and truthful and factual information from the people that they were tuning in to watch and that that was understood on the other side as a responsibility that they had and an expectation that viewers had that they were getting accurate and truthful information and that they were entitled to provide it.
The cyber Pearl Harbor quote, it's obviously a very strong statement but it informs the meaning of a lot of other statements that were made that were less hyperbolic. When arguments tried to be made, well, all we were doing was reporting on the allegations that were being made, you know when Dan makes that argument, say okay, but these are your words, these are the words that you chose to say in your own voice on your own Twitter handle, and whether or not it's more hyperbolic than some of the other statements we sued on or whether or not the state of mind that goes into those statements are the same or different when they are supposedly reporting on facts, it informs the meaning. It informs the meaning that they were trying to get across.
And so these broadcasts were not just hyperbolic ranting about this, it was I'm gonna give you new information here today, the latest from Sidney Powell or Rudy Giuliana, or just my monologue about what's the latest information in the Dominion voting fraud scandal, fact, fact, fact, fact, fact, and then you have the cyber Pearl Harbor tweet. Part of our argument that goes to malice is, yeah, that informs the intent and the meaning behind all of those other fact, fact, fact, statements in saying, well, I was just reporting on what the president said, not true. You told the world that all those things amount to a cyber Pearl Harbor.
So, whether it goes to being independently actionable, where we kind of piece, what was his intent when he tweeted cyber Pearl Harbor, or whether it goes to informing the meaning of what was his intent when he reported all these other things, we don't have to guess what was in his mind, we know because he tweeted it. And so, that's the way some of those more hyperbolic statements interplay with the other.
Lee Levine: Dan, you want to comment on that?
Dan Webb: Well, I mean a couple comments. Lou Dobbs show is an opinion show. Lou Dobbs would have explained to the jury in some detail, he knows exactly who his audience is. His audience knows who he is. He has strong opinions and they do surface and the cyber Pearl Harbor is an opinion that he expressed. And by the way, I will say this without going into detail. I know that Lou Dobbs is someone that was no longer – had a Fox show at the time that this case was going forward, but Lou Dobbs was anxious to go on the witness stand and talk about what happened on his show and what was said and why it's an opinion show.
And I, quite frankly, enjoyed getting a chance to know Lou. He didn't have to cooperate with me that much and he did because he was waiting to come on the stand and tell his story of what happened on his show and about what his opinions are and how his audience understands who he is and they have understood it for years. And I would say from – without going into jury research, I think jurors would understand that there were a lot of opinions expressed by Lou Dobbs that were opinions and I'll leave it at that.
Seth Berlin: All right. I think we'll go to New York.
Audience Member 5: Hi, it's Lynn Overlander. Quick question. If this had gone up on appeal, no matter who had won it at trial, how do you think the Supreme Court would have ruled in this?
Tom Clare: Dan?
Dan Webb: All right, Tom, I take it you want me to go first. So, the answer is yes, I don't have an answer to that. I don't know how the Supreme Court was gonna rule on this. There was obviously the Clement & Murphy firm was gonna handle the appeal, I was not. They were one of the great law firms in America in handling appeals to the Supreme Court.
I raised the falsity issue with all of, and some of you, I think, who have more First Amendment knowledge than I do. I, for what it's worth, I had thought that the judge's falsity ruling would be an issue that could very well end up in front of the United States Supreme Court, and intellectually for me, as someone that does deal with First Amendment issues, but not with the expertise some of you have, I thought the falsity ruling was incorrect and if that summary judgment was wrong on falsity that would have been a reversal. That would not be harmless err, that would have been a reversal.
Tom Clare: I guess from my point of view, I mean obviously we knew this was a huge case. We knew that there was a lot of attention on it. We knew that Dan and his team were playing for an appeal and we were obviously mindful of that throughout the case. But from our point of view, this was a pretty straight down the fairway definition case. I mean this was not – we weren't exploring the edges and the outer boundaries of the elements and we were playing this right down the middle of the fairway with the law.
And so, we obviously were interested in making sure we had a clean record for appeal. Appellate courts in this area are always interested in damages, so that was obviously an area that we were interested in making sure that we had a sufficient record of the presumed and actual economic damages to be able to support and survive an appeal.
But the other legal rulings and the legal issues presented by the case were not particularly novel. I mean would I have welcomed the United States Supreme Court holding as a matter of, again, that there is no newsworthiness defense to defamation, sure, I would welcome that ruling, or making clear what we know that the fair report privilege doesn't really exist in many of these jurisdictions. Yeah, I would have welcomed that.
But that's really not what this case was about. It was right down the line. We were gonna try it like a straight down the middle defamation case. And so, we were ready for appeal but in my view, probably the one issue on appeal that would have gotten a harder look would have been damages, because we would have asked for, and in my view, gotten an eye-popping number at trial.
Seth Berlin: I meant to the – sorry. So, Lisa, can you –?
Lisa: Yeah, sure. George, you're up now and you should just be able to unmute and go.
Audience Member 6: Am I unmuted now?
Female Speaker 1: Yeah, you're good, George, go ahead.
Audience Member 6: This is for Dan. I want to try to respond to your question, or the question about what was wrong with your opening statement and you shouldn't immediately be allowed to repeat what others are saying if the media entity, Fox, didn't say it themselves. And somehow, in your very reasonable arguments, you missed kind of a basic black letter law which is the word republication. And the law has always been that the repeater of a speaker is as responsible for the substance of what he says than the original speaker himself. And I think that's harsh but that's what the law is so you're bumping up against that.
On the other hand, 47 years ago a federal judge here in New York realized that this didn't make sense in a newsworthy context and came up with a privilege called the neutral reportage privilege, which kind of corrects that and says in certain occasions it is a defense where the statement you're repeating is newsworthy which is really what your argument is and it's what Fox has been saying from a PR point of view from day one in this case.
So, my question is, why didn't the legal team emphasize and make more of a point that neutral reportage ought to be recognized, which would have led I think to the jury deciding whether or not Fox endorsed the statements, which you said you can show they didn't and presumably Tom would say that he could show that they did. But at least that would have been the question, but you didn't and the legal team didn't really seem to push before the judge dismissed it, but in earlier motions didn't seem to push or talk about neutral reportage that much.
Now, I'm aware that there is a New York case from 30 years ago in Upstate, New York, in a mid-level appellate court that says New York doesn't recognize it, but it fits the facts of this case so well I would have thought that a rung up that ladder would be far more successful than trying to butt heads with this republication principle which has been the law forever.
Dan Webb: Well, actually, [inaudible - crosstalk] [01:31:19] I understand –. I'm sorry, I didn't mean to interrupt you. Did I interrupt your question, I apologize?
Audience Member 6: No, no, no, I just said that was the question rather than a statement, but I just wonder how you would respond to that.
Dan Webb: Well, I didn't argue the summary judgment motion but I was there for it. We clearly raised the neutral report doctrine with every ounce of credibility and persuasiveness that we had and the judge ruled against us on summary judgment and took the case away on that issue. It would have helped me go a long ways in winning this case if I had got the neutral report instruction.
The neutral report instruction would say that if we satisfied the neutral report requirement it did not matter whether we believed it was true or false, it did not matter, even if we believed it was false, we cannot be found liable if it's newsworthy. That would have been a mecca for us, we fought hard for it and we lost because the judge ruled against us. I then had to shoehorn the newsworthiness under malice but I couldn't argue what I wanted to argue, which was the neutral report instruction.
If I had that neutral report instruction to argue at the trial that would have had a profound impact on this case but that was taken away by summary judgement. So, when we talk here about the issues that would go up on appeal, I am not minimizing the judge's summary judgment on the neutral report issue but that was taken away from us.
Lee Levine: So, I just want to end by responding to Lynn's question about what the Supreme Court would have done with this case. And although I suppose anything can happen, I am reasonably confident about two things. One is that if Fox had prevailed, the court would have taken the case and New York Times versus Sullivan would have been overruled. Second, if Dominion won the case, there is no way on Earth the Supreme Court would have touched this case. And the fact that the general counsel of Fox Corporation Viet Dinh supposedly told his client that he was certain that the Supreme Court would take the case if Dominion won and rule in their favor is truly from another universe.
And on that happy note.
Ron Collins: Justice Levine, thank you for that. I would like to just, if I could, ask one final question. Will the discovery materials in this case ever become public?
Dan Webb: I could not hear the question. I didn't hear the question.
Ron Collins: I was wondering if all of the discovery materials in this case will ever be made public.
Tom Clare: Other people than I did make that decision. There are still some pending motions to address, some of the publicly filed material that was presented in a redacted form. I don't know how that's gonna be taken up.
Dan Webb: Well, and I would also say that, yes, the judge still has some issues in front of him so we're not going to speculate on that. And I might also comment that I've never had a case in 40 years where all the discovery became known after a settlement. I've never seen that happen, so that's life in the big city.
Ron Collins: Might we anticipate some leaks?
Gentlemen, on that note, thank you so much, Tom, Dan and Lee, this is a exactly what the First Amendment Salons were designed to do and we so appreciate this exchange tonight, which by the way, is gonna be posted on the First Amendment Salon FIRE website when we have it. I also understand that Nico Perrino at FIRE will have a podcast of this as well. So, please, we'll keep you posted on that.
And I can't think for our next Salon, which is again on June 12th, a better topic than a book called Actual Malice, and that's with Professor Barbas, so please join us on June 12th. Meanwhile, New York, Washington DC and everyone else those out in the web world, thank you tonight for joining us.
Lee Levine: Thank you, Dan.
Tom Clare: Thank you, Dan.