The multibillion dollar defamation lawsuit brought by voting machine company Smartmatic against Fox News lurched forward this week with new allegations filed by Smartmatic that Fox executives destroyed text messages — and a new ruling Fox News won that will allow them access to new documents that could help their defense.
Smartmatic, in a court filing Wednesday, alleged that Fox News and Fox Corp “orchestrated the destruction of text messages across all levels of their corporate hierarchy” — a filing that comes as Fox continues to fight the defamation lawsuit brought by the voting machine company over the network’s 2020 election claims.
Smartmatic claims those who “deleted their texts” include founder Rupert Mudoch and chairman Lachlan Murdoch.
“The destruction was not isolated or accidental,” the filing, which was largely redacted, claims. “It was extensive and willful.”
The claims were revealed in an introduction to the motion that was publicly filed with the court, though the rest of the motion remained redacted due to a 2022 “confidentially stipulation” between the parties.
Smartmatic sued Fox and other defendants in 2021, claiming they “knowingly and intentionally” lied about Smartmatic in the wake of the 2020 election regarding claims of voting machine fraud, causing Smartmatic to lose business.
Fox has said they were covering newsworthy allegations made by President Donald Trump and others, and has accused Smartmatic of looking to profit off a lawsuit.
In its filing, Smartmatic alleges that “Fox custodians” deleted their text messages from November and December 2020, creating “an evidentiary void.”
“Fox has eliminated contemporaneous texts that would have revealed further evidence of what Fox executives knew about the falsity of their broadcasts and why Fox continued airing them anyway,” the filing states. “While it championed election fraud on air, behind the scenes Fox ensured that many of its executives’ incriminating communications would never see daylight.”
As such, Smartmatic is asking that the jury in the case “be charged with an adverse inference instruction” — a legal instruction given by a judge to a jury allowing them to assume that the unavailable evidence was unfavorable to the party that was unable to produce it.
The filing from Smartmatic comes one day after a New York appeals judge ruled that Fox News can gain access to documents related to an ongoing Department of Justice investigation into three Smartmatic executives.
In a statement, Fox said Wednesday’s motion by Smartmatic was “a desperate attempt to distract” from the winning ruling Fox News secured Tuesday in the case.
“Smartmatic weakly attempts to resurrect stale, baseless discovery issues that actually were disclosed by FOX and resolved two years ago,” the statement said. “These issues have no bearing on the merits of Smartmatic’s case, which has fallen apart at every turn.”
The statement went on to say that Fox would be filing its own motion shortly “that outlines Smartmatic’s actual massive failure to preserve evidence, including direct written instructions by Smartmatic’s CEO to delete relevant text messages on the eve of filing this lawsuit.”
Three current and former executives of Smartmatic were charged in a criminal indictment last year accusing them of a “bribery and money laundering scheme” in order to obtain contracts in the Philippines, according to an indictment, which does not name Smartmatic by name.
A judge ruled that the documents were “plainly relevant” to Smartmatic’s profits, which Smartmatic has alleged plunged due to the election-related statements made by Fox. But Fox News has argued there were other factors for Smartmatic’s alleged lost profits, such as the criminal indictment.
In a statement responding to the ruling, Smartmatic attorneys claimed they had “already agreed” to the discovery.
“Fox trying to blame anyone other than itself for Smartmatic’s injuries is just more lies from Fox,” said Smartmatic’s legal counsel Erik Connolly. “The writing is on the wall. Lies have consequences.”
Fox representatives praised the ruling, saying in a statement they were “pleased” with the ruling and that the “factual evidence shows that Smartmatic’s business and reputation were badly suffering long before any claims by President Trump’s lawyers on FOX News and that Smartmatic grossly inflated its damage claims to generate headlines and chill free speech.”
Materials that Smartmatic must disclose include “all internal documents concerning discussions or analysis of the impact of the indictment on the company” as well as “all communications received from any actual or potential customer about the indictment.”
In a statement at the time, Smartmatic said, “No voter fraud has been alleged and Smartmatic is not indicted. Voters worldwide must be assured that the elections they participate in are conducted with the utmost integrity and transparency. These are the values that Smartmatic lives by.”
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