Lawyers for Dominion Voting Systems and a group of media outlets argue that Fox News abused the redaction process and blacked out more than is warranted in the thousands of legal filings and evidence made public in the defamation case it is facing.
The new court filings call for the release of pages of evidence that Fox lawyers want to keep secret.
The redactions include large chunks of blacked-out text in legal filings and evidence made public in Dominion's $1.6 billion defamation lawsuit against Fox News and Fox Corp. If Delaware Superior Court Judge Eric Davis agrees with the arguments from Dominion and the media organizations, he could unseal the once secret passages before March 21.
Attorneys for Dominion and a trio of media outlets - The New York Times, The Associated Press, and National Public Radio - are allowed to designate information like private contact details and trade secrets as confidential in their legal filings. But they argued that the Fox attorneys overdid it.
The voting machine company's lawyers wrote in their notice that Dominion's position is that confidential treatment of these materials is not warranted under the Good Cause standard defined in a case between Al Jazeera and AT&T. In 2013 the judge overruled corporations trying to keep key parts of trial evidence confidential.
The media outlets argued in their court filings that Fox was claiming that the redactions were meant to shield trade secrets. Journalistic processes, they said, are well-known and taught.
A lawyer for the media outlets said that adding the word 'proprietary' to 'journalistic process does not make a process a protected 'trade secret.
A Fox News spokesman said in a statement that Fox's redactions are consistent with the law and court rulings, and that such grounds include redactions in accordance with reporters privilege. RonNell Andersen Jones, a professor at the University of Utah College of Law who specializes in the First Amendment, said that the redactions may be hiding important evidence because of the new court filings by Dominion and the media outlets.
There are some hints in the main filing from the Dominion that the redacted portions could contain evidence of knowing falsity, Andersen Jones said in an interview, pointing out that there was a blacked-out material in Dominion's motion for summary judgment on liability. The lawyers in Dominion say 'Exactly.' At the end of the paragraph. Dominion isn't opposed to redacting phone numbers and email addresses in the challenge or in another filed previously, instead it is protesting the substantive challenges.
In Thursday s filing, the company s lawyers said in Thursday that the Dominion sought just six substantive redactions in the more than 900 exhibits of evidence attached to filings. Those redactions included images of proprietary software, a web address to an internal customer support database, and names covered by nondisclosure agreements under seal. Fox sought the rest of the redactions.
They argued that Fox News redactions were sometimes inconsistent, with certain deposition testimony having been redacted in one place but not another.
The challenge shows Dominion believes Fox is using redactions to shield itself from bad press, according to Daxton Stewart, a journalism professor at Texas Christian University who teaches media law.
He said there is a lot of litigation going on in the press. The parties, particularly Dominion, are trying to establish their case as much as possible in advance of trial.