Government

Fox Producer Burns Network's Lawyers In Discrimination Lawsuit

Whoa if true!

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fox-news-logoLast Monday, lawyers for Fox News raced into New York state court seeking a TRO to stop producer Abby Grossberg from divulging information about her deposition in the $1.6 billion defamation lawsuit filed by Dominion Voting Systems. Just hours later, Grossberg filed multiple suits against her employer, in federal court in New York, Delaware state court, and with the EEOC.

Fox then switched its tactic, withdrawing the state action and filing an emergency motion to seal the portions of Grossberg’s federal complaint, which it claims violate attorney-client privilege. US District Judge Jesse Furman declined, noting that “the cat is now firmly out of the bag; given that the Complaint is widely and publicly accessible, the appropriate remedy for any improper disclosure of privileged and confidential communications is not sealing.”

On Friday, Fox fired Grossberg, alleging that she’d violated attorney-client privilege by divulging information about her deposition prep with it’s attorneys Paul Salvaty and Sean Suber, of Winston & Strawn LLP. And today she filed an amended complaint adding a whole bunch more ugly stuff about that depo prep, plus four more causes of action, bringing the grand total to 16.

Reading this amended complaint makes it very clear why Fox and its lawyers were desperate to keep these allegations under wraps. The discrimination allegations are gross, but probably not surprising to anyone familiar with the names Bill O’Reilly and Roger Ailes. But according to Grossberg, Fox’s lawyers led her to understand that they represented both her and the network; coached her to give misleading testimony; refused to allow her to see or amend her deposition transcript; and made false allegations about her status as a witness to the Superior Court in Delaware on Friday. And so, she concludes, attorney-client privilege is waived under the crime-fraud exception.

Several passages stand out in the now-102 page complaint. In the first, Grossberg alleges that Fox’s lawyers “coached” her to falsely imply that a taped interview in which Rudy Giuliani made statements about Dominion Voting Systems could not have been edited before it went on air.

During these deposition prep sessions, Ms. Grossberg was shown two text exchanges from November 8, 2020, and November 9, 2020, to review, that made it clear that a particularly troubling segment in which Rudy Giuliani made unfounded allegations about widespread election fraud had been “pre-taped” and thus could have been edited or prevented from airing by Mr. Clark. In order to cover up this omission, the Fox News Attorneys coached Ms. Grossberg to say that the segment was “live to tape” so as to imply that it could not have been edited in between taping and airing. The Fox News Attorneys knew full well, however, that the implication they were trying to bully Ms. Grossberg to weave into her testimony was materially misleading.

The plaintiff similarly alleges that she was discouraged from disclosing that Maria Bartiromo’s show was severely understaffed as compared to that of Fox’s male hosts. Grossberg and Bartiromo featured prominently in Dominion’s Motion for Summary Judgment, and Grossberg suggests that there was simply not enough time to factcheck the claims about Dominion.

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In fact, none of the Fox News Attorneys ever explained to Ms. Grossberg that if she had any recollection relevant to the question being asked, she needed to say so. No attorney ever educated Ms. Grossberg about the distinction between “not knowing” and “not recalling.” Indeed, several times during her deposition prep, one of the Fox News Attorneys would suggestively demur, “who really can recall anything after nearly two years?”, thereby tricking Ms. Grossberg into doubting her own faculties.

Upon information and belief, by repeatedly quipping to Ms. Grossberg, “who really can/does recall anything?” during her deposition prep sessions, Fox News Attorneys were conditioning and fraudulently inducing her to deny facts she knew to exist, thereby exposing her to legal and reputational jeopardy.

Ms. Grossberg also left the deposition preparation sessions with the distinct impression and gnawing fear that she would suffer very negative professional consequences at Fox News if she did not “cooperate” and testify exactly as the Fox News Attorneys wanted.

She further alleges that Fox’s lawyers violated Delaware’s civil procedure laws by refusing to give Grossberg a copy of her deposition transcript in time to amend it, although her male colleagues were immediately provided their transcripts for review. This, along with the motion for injunction, forms the basis of the newly pled abuse of process claim.

In total Ms. Grossberg, either directly or through her attorneys, had to request her deposition transcript from the Fox News Attorneys at least six times before she received a copy.

Ms. Grossberg was never instructed properly about her rights and obligations as a sworn witness. Unlike numerous of her male colleagues, Ms. Grossberg was never provided her deposition transcript to review before it was made public in the Dominion/Fox Lawsuit. She was only given a copy after her attorneys contacted Dominion’s attorneys and notified them that the Fox News Attorneys were refusing to provide Ms. Grossberg a copy.

While Ms. Grossberg finally received a copy of the deposition transcript on March 3, 2023, she was not advised until March 15, 2023, about a stipulated deadline for submission of errata sheets of March 20, 2023, denying her the 30 days to review to which she was entitled under Delaware Civil Procedure Rule 30.

Grossberg alleges that Fox’s lawyers made false representations to the Delaware Superior Court last week when they claimed she would be a willing defense witness, particularly in light of her termination just a few hours later:

Remarkably, upon information and belief, on March 23, 2023, the Fox News Attorneys made a bad faith proffer in open court that Ms. Grossberg is a witness under their control whom they may offer to testify, notwithstanding the following known facts: (a) Ms. Grossberg is not a citizen of Delaware; (b) Ms. Grossberg had been put both on forced administrative leave and under a threat of termination by Fox News just days prior; and (c) Ms. Grossberg had proclaimed her unwillingness to continue to countenance the lies that Fox News was attempting to cram into her mouth.

The foregoing actions, conduct, facts and circumstances, along with Ms. Grossberg’s firing on March 24, 2023, make it perfectly clear that: (a) she cannot be compelled to testify at the trial in the Dominion/Fox Lawsuit; (b) she will never testify on behalf of Fox News in the trial; and (c) she will only voluntarily testify – if at all – on behalf of Dominion.

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And because of all that, Grossberg claims that Fox and its lawyers can no longer claim privilege over their interactions with her:

The foregoing actions, conduct, events, facts, and circumstances render it abundantly clear that, for nefarious purposes, the Fox News Attorneys pretended to be (but certainly did not act as) Ms. Grossberg’s attorneys during her deposition preparation and testimony. As a result, Ms. Grossberg may: (a) waive her jointly held attorney-client privilege and submit whatever evidence she wishes of the Fox News Attorneys’ wrongdoing; and (b) pierce the shattered shield of the exclusive attorney-client privilege Fox News wishes to erroneously assert notwithstanding the operative crime, fraud, and misconduct exception that is well-established under the law.

Well, it’s not great, Bob. Unless you’re Dominion … in which case, it’s hello, new star witness!

Grossberg v. Fox Corp [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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