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CNN: Jury Selection to Begin as Judge Sanctions Fox

"I think one of the most significant things is 'when' it's happening. It's not uncommon in cases to have battles over discovery. What was, what wasn't produced. But when you have evidence this substance showing up in a discovery fight on the eve of trial... I've never experienced this in 34 years." Ken Turkel

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CNN Live, April 12


00:00:00:01 – 00:00:27:06
Don Lemon
So jury selection is set to begin today in Dominion voting systems, $1.6 billion defamation case against Fox. Fox is experiencing new legal setbacks in the case and the judge is now sanctioning Fox over concerns that it withheld key evidence. He plans to appoint an outside attorney to investigate the matter. Delaware Superior Court Judge Eric Davis admonishing Fox attorneys saying, and I quote here, “I am very concerned that there have been misrepresentations to the court.”

00:00:27:07 – 00:00:53:19
Don Lemon
This is very serious as Fox News is being sued for allegedly promoting false claims about Dominion machines rigging the 2020 presidential election. Fox denies that it ever defamed Dominion and says that it properly disclosed Rupert Murdoch’s role in its public financial filing. So joining us now, attorney Ken Turkel. He has represented multiple high profile figures like Sarah Palin and Hulk Hogan in defamation cases.

00:00:53:20 – 00:01:04:19
Don Lemon
So it’s interesting that we have him and we’re so glad that you’re with us this morning. Thank you, sir. So, judge sanctioning FOX News, appointing a special master to investigate. What is behind this? I mean, this is really significant, legally?

00:01:04:20 – 00:01:26:18
Ken Turkel
Don, I think one of the most significant things is when it’s happening. It’s it’s not uncommon in cases to have battles over discovery. What was, what wasn’t produced. But when you have evidence this  substance showing up in a discovery fight on the eve of trial… I’ve never experienced this in 34 years.

00:01:27:12 – 00:01:46:19
Poppy Harlow
Never. And again, you, you even represented Hulk Hogan in that very famous case. I mean, I read that. I read that in First Amendment class. Yes. I mean, so for you to have not seen something says a lot. That’s my point here. Can you talk about. Go ahead.

00:01:47:13 – 00:02:11:23
Ken Turkel
What I was going to say, you know, you’ve seen discovery fights, right. But to have the Grossberg reporting the Murdoch testimony on the eve of a trial that has been this hotly contested. There’s been so much back and forth that to me is just it’s uncommon, the discovery fight, not so much. You get those in every case, but this kind of evidence, when they’re about to pick a jury and they’re sanctions now and a special master.

00:02:11:26 – 00:02:13:02
Ken Turkel
I know fascinating to.

00:02:13:02 – 00:02:14:01
Poppy Harlow
Me is to.

00:02:14:11 – 00:02:18:14
Ken Turkel
Know how it plays out, because there is investigation.

00:02:18:14 – 00:02:35:20
Poppy Harlow
So it is fascinating, especially of a special master looking at this. Can I just ask you, because yesterday we had Sarah Fischer on, one of our journalist colleagues who said she is a little bit worried about what this suit could mean for journalism because of the malice standard here. Can you just speak to your view on that at large?

00:02:36:28 – 00:02:59:06
Ken Turkel
Yes. I mean, the Palin Case was a malice case. And, you know, I default to something that I think is the panel discussion that hasn’t been had yet. And that is, in an Internet age, right, when everyone has the same access to media by targeting media outlets and you have a computer and you put out whatever salacious content and then tag everybody.

00:02:59:27 – 00:03:20:15
Ken Turkel
You’ve really gotten to the core of what started the public figure exception, the political figure exception and actual malice. Information is traveling at rates we just didn’t anticipate. It’s being consumed in disseminated in a way that people and newscasters are on the news, telling their stories. And at the same time, the stories are changing real time all over the Internet.

00:03:20:29 – 00:03:46:21
Ken Turkel
So, look, I think we need to take a hard look at that component of this anyway. Beyond that, though, you know, in this case, I don’t I don’t know how much it’s going to be tested because there’s an overwhelming amount of documentary evidence that memorialized the state of mind. And you don’t really have that most of the time. Yeah, it’s emails and text, etc..

00:03:47:06 – 00:04:05:01
Don Lemon
It’s interesting. Listen, not all public figures are the same, right? I mean, you have the Fox News newscasters and then you have Fox News on top, which they work for. And just and that’s another thing because we were talking about journalists and I want to get bogged down that I want to talk about Rupert Murdoch’s taking the witness stand.

00:04:05:09 – 00:04:08:18
Don Lemon
What do you think that’s going to do for the case?

00:04:08:29 – 00:04:35:10
Ken Turkel
Don, you know, we talked about it last time. I said it’s more about the atmospherics of the case. The optics of the case. Right. Because the state of mind of Hannity, of Carlson, the four that are in the line of fire according to the reports is what’s going to matter. What is in the mind of the writer, what is in the mind of the broadcaster with respect to actual malice, the knowledge of truth or falsity or reckless disregard?

00:04:36:07 – 00:05:01:25
Ken Turkel
Rupert Murdoch Does it really matter for that? But but what is a trial lawyer? You’re telling a story and the optics, the atmosphere surround this guy at the head of everything admits under oath that he did not believe in the veracity of these statements. And as I told Don last time we talked, it was what they led with in their summary judgment, opposition, what the media led with the Rupert Murdoch testimony, jurors,

00:05:02:11 – 00:05:21:08
Ken Turkel
I have a great deal of faith, the jury system, but they’re humans, too. And even though that particular fact, that particular aspect of the case, i.e., what did Rupert Murdoch know when Hannity was broadcasting? Does it matter? Is that going to be in the very form, but it’s going to affect how they perceive the entity? I don’t see how it could.

00:05:22:08 – 00:05:25:12
Ken Turkel
So I think Dominion’s done a good job strategically of setting that up.

00:05:25:17 – 00:05:32:04
Don Lemon
Yeah. Hey, we got to go. Yes or no? Everyone seems to think it’s bad for Fox News. Is there a path to victory for Fox.

00:05:34:01 – 00:05:43:28
Ken Turkel
Dan Webb is an awful good trial lawyers John. But I have a hard time seeing it. Okay, now, look, I don’t know the whole case, but it’s hard to see it on the facts that are there right now.

00:05:44:09 – 00:05:46:05
Poppy Harlow
That’s fascinating. Ken, thanks.

00:05:46:19 – 00:05:46:26
Don Lemon
Thank you.