Can Dominion take advantage of Fox producer’s new allegations? It’s complicated

(Reuters) - (The opinions expressed here are those of the author, a columnist for Reuters.)

A television producer who worked for Fox News Network LLC anchors Maria Bartiromo and Tucker Carlson has just asserted some eyebrow-raising allegations about Fox’s defense of a $1.6 billion defamation suit by Dominion Voting Systems Corp.

Abby Grossberg, who was most recently Carlson’s head of booking until she was allegedly placed on leave Monday by the network, claims in new gender discrimination lawsuits filed in federal court in Manhattan and state court in Delaware that Fox lawyers “coerced, intimidated and misinformed” her as they prepared her for a deposition in Dominion’s case.

Grossberg alleges that she was coached to “distort the truth and shade her deposition testimony” to evade revelations about understaffing on Bartiromo’s show. (She alleges that Fox starved Bartiromo’s show in order to devote more resources to shows hosted by men.)

Fox, in an email to me from a spokesperson, denied Grossberg's "baseless" assertion that network lawyers coached her to be deceptive at her deposition in the Dominion litigation.

Grossberg said in the Manhattan complaint, filed on Monday night, that she “felt sick to her stomach with fear, uncertainty and confusion when she realized what her employer wanted her to do under oath.”

Seems like she’d be a compelling trial witness for Dominion, right? Jurors would surely be interested in an inside account from a producer on two of the Fox shows that aired allegedly defamatory claims that Dominion participated in a scheme to manipulate the outcome of the 2020 presidential election.

But whether Dominion could present Grossberg’s allegations to a jury is not at all clear, according to ethics expert Bruce Green, a law professor at Fordham University.

That’s because Fox contends Grossberg’s account of her deposition prep sessions is confidential, under both attorney-client and work-product privileges that belong to Fox, not Grossberg.

The network, in fact, tried to leverage its privilege arguments to pre-empt Grossberg’s lawsuits by seeking a restraining order in a lawsuit filed on Monday afternoon in Manhattan State Supreme Court.

That attempt obviously failed. Grossberg filed her complaints on Monday evening, after Fox launched its bid for an injunction but before the network obtained a ruling on the motion. Fox ended up ditching its lawsuit against Grossberg on Tuesday.

Nevertheless, if Dominion were to call Grossberg as a witness in the defamation case, Green said, Fox would surely assert attorney-client privilege to block her testimony. And that fight, Green said, could turn into an expensive evidentiary investigation.

I should pause here to say that a Dominion spokesperson said the company’s lawyers were unavailable to comment on Grossberg's witness tampering allegations because they were at a summary judgment hearing before Delaware Superior Court Judge Eric Davis. Depending on how Davis rules on competing summary judgment motions by Fox and Dominion, the trial scheduled to begin next month might not take place at all.

Fox said in an email statement that the network plans to hold Grossberg accountable for disclosing privileged communications with Fox lawyers.

“Ms. Grossberg was repeatedly warned that information regarding her meetings with Fox News' counsel is Fox News' attorney-client privileged information,” Fox said. “Fox News will take appropriate actions in response to Ms. Grossberg's improper disclosure of this information.”

Grossberg lawyers Parisis Filippatos and Tanvir Rahman did not respond to my query. In a public statement on Tuesday, after Fox abandoned its bid for a restraining order, they called the network’s lawsuit “clearly meritless” and "retaliatory" but did not specifically address Fox’s assertion of privilege.

According to Fox’s court filings, Filippatos told the network’s counsel at Baker McKenzie that Grossberg’s communications with Fox lawyers were not privileged.

He might be right, Green told me.

It’s true that the U.S. Supreme Court held in 1982’s landmark Upjohn Co v. United States that attorney-client privilege extends to communications between corporate lawyers and a company’s low-level employees. New York state law precedent, as Fox noted in its erstwhile restraining order case, similarly holds that the privilege attaches to corporate lawyers’ communications with corporate underlings.

Fox argued in the restraining order case that such precedent pretty much ends the inquiry. Fox lawyers explicitly and repeatedly told Grossberg that they were representing the interests of the company, not her, during her deposition prep sessions. (Grossberg’s complaint acknowledges as much.) And there’s no question, Fox said, that those meetings involved corporate legal strategy.

So, according to Fox, the attorney-client shield over its lawyers' communications with Grossberg belongs to Fox, not to the employee.

But exceptions to attorney-client privilege exist. Green said there are at least three scenarios in which Grossberg’s meetings might not be shielded. If Grossberg were a co-client with Fox, he said, she would have the power to waive privilege. If Fox lawyers’ meetings with her were shown to be part of a plan to advance a fraudulent scheme, Green said, the communications would be covered by the crime-fraud exception. And if a Fox lawyer discussed Grossberg’s deposition prep with someone outside of the company and its legal team – even a spouse – privilege could be deemed to have been waived, Green said.

All of those scenarios, he said, would have to be proven through investigation. “It all goes to the question of evidence,” Green said. “There’s a reason that people spend hundreds of thousands of dollars litigating privilege issues.”

Dominion, in other words, would have to balance the cost of attempting to pierce Fox’s privilege claim — and the risk of failure — against the benefit of Grossberg’s testimony in a jury trial.

What about Fox’s vow to go after Grossberg for disclosing client confidences? Green said that’s also not a sure bet. She’s not a lawyer with a formal obligation to maintain client confidences, he said, so Fox would have to show that Grossberg otherwise breached a contractual duty to Fox. Fox’s initial filings did not refer to her employment contract, Green noted.

To sum up, Grossberg has raised provocative questions. But answers are a long way off.

Read more:

Fox, Dominion pursue pretrial wins in $1.6 billion defamation case

Fox News producer's lawsuit claims network coerced her to mislead in Dominion testimony

In Dominion v. Fox, a disputed legal theory has sweeping implications

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