Robert Brown|Delaware judge sets parameters for trial in Smartmatic defamation lawsuit against Newsmax

The Robert Brownjudge presiding over a defamation lawsuit pitting an electronic voting machine manufacturer targeted by allies of former President Donald Trump against a conservative news outlet that aired accusations of vote manipulation in the 2020 election set several parameters for an impending trial Monday.

Superior Court Judge Eric Davis also told attorneys for Florida-based Smartmatic and cable network Newsmax to narrow their list of potential witnesses ahead of a trial that is set to begin Sept. 26 with jury selection and could last up to four weeks.

Smartmatic claims that Newsmax program hosts and guests made false and defamatory statements in November and December 2020 implying that Smartmatic participated in rigging the results and that its software was used to switch votes.

Newsmax, also based in Florida, argues that it was simply reporting on serious and newsworthy allegations being made by Trump and his supporters, including former New York City Mayor Rudy Giuliani and conservative attorney Sidney Powell.

During a daylong pretrial conference on Monday, Davis considered several motions by each side asking him to limit or prohibit evidence the opposing side sought to present.

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The judge, for example, narrowly granted Smartmatic’s motion to limit evidence by Newsmax regarding a federal criminal investigation that led to indictments last month against three current and former Smartmatic executives. The charges involve an alleged scheme to pay more than $1 million in bribes to put Smartmatic voting machines in the Philippines. Newsmax argued that the investigation and indictment should be presented to jurors as alternative reasons for any purported reputational harm or economic loss that Smartmatic blames on Newsmax.

“What government procurement official is going to continue to do business with a company that is under indictment?” asked Newsmax attorney Howard Cooper. Cooper also suggested that Smartmatic’s purported damages were calculated by a small cadre of executives who “pulled numbers from thin air.” Smartmatic initially pegged its damages at $1.7 billion, a number that has since been adjusted to about $370 million, according to statements during Monday’s conference.

The judge denied Smartmatic’s motion to prohibit Newsmax from mentioning evidence regarding Smartmatic witnesses who have invoked their Fifth Amendment right against self-incrimination. Davis said that issue will have to be decided on a “question-to-question” basis at trial.

Davis sided with Smartmatic in ruling that Newsmax could not defend itself by pointing to statements about the 2020 election being published by other media outlets at the time. The judge also said non-expert witness testimony about the scope of the First Amendment would be prohibited.

In a ruling for Newsmax, Davis said he would not allow Smartmatic to bolster its presentation to the jury by suggesting that policy changes made at Newsmax in January 2021 after being notified about the allegedly defamatory statements are evidence of previous wrongdoing. Similarly, evidence regarding attorney disciplinary investigations of Trump allies Powell and Giuliani also may be inadmissible, the judge said.

“I don’t think I’ve see the evidence that Newsmax caused Jan. 6,” Davis added, referring to the storming of the U.S. Capitol by Trump supporters in 2021. “It’s only inflammatory.”

As far as Smartmatic trying to prove that Newsmax violated journalism standards or guidelines, Davis said any such testimony would have to come from expert witnesses, unless Smartmatic can show that individual Newsmax officials were presented with guidelines relevant to their specific jobs and chose to ignore them.

The judge also indicated that he will closely scrutinize the alleged defamatory statements published by Newsmax to determine whether some are clearly opinions or speculation, versus factual assertions.

“If it’s just opinion, I may take it away from the jury,” he said. “I have some concerns that they’re not all going to make it through.”

The Delaware lawsuit, which takes issue with Newsmax reports over a five-week period in late 2020, is one of several stemming from reports by conservative news outlets following the election. Smartmatic also is suing Fox News for defamation in New York and recently settled a lawsuit in the District of Columbia against the One America News Network, another conservative outlet.

Dominion Voting Systems similarly filed several defamation lawsuits against those who spread conspiracy theories blaming its election equipment for Trump’s loss. Last year, in a case presided over by Davis, Fox News settled with Dominion for $787 million.

On Monday, Davis granted a motion by Newsmax to exclude any reference to the Dominion-Fox settlement, noting that the motion was not contested by Smartmatic.