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In the current case of Dominion v Fox News, we saw that text messages from Fox News hosts have been admitted as legal evidence in court.

My understanding was that text messages either had to be turned voluntarily, or they had to be forcefully retrieved by law-enforcement if they have a warrant.

Either scenario seems somewhat unlikely to me : I cannot imagine Fox News hosts to voluntarily hand over incriminating texts, and I also struggle to see how they would have been forced to enforce it, given how hard defamation is to prove in the US.

Does anyone have more details on how these text messages were obtained, and accepted in court?

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    In the context of the answers, it is important to recognize this is a civil lawsuit (where two parties are arguing over money) versus a criminal case (where the government is trying to put somebody in jail or otherwise remove rights). Thus, law enforcement and warrants are not involved, and a number of Constitutional protections do not apply. A relevant question just came up.
    – user71659
    Commented Mar 1, 2023 at 6:48
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    To the downvoter : why? I am new to this forum, but I carefully read the rules, and to my simple mind my question fit within them. It is specific, targeted, and it is a question about law. I am among the "others" who have an "interest in law". Please do not downvote for no reason, as it removes my ability to ask questions in the future. If you have a valid reason that I missed, please state it.
    – DevShark
    Commented Mar 1, 2023 at 11:25
  • I can only speculate, but maybe because someone thought you conflated a criminal trial with a civil one.
    – Trish
    Commented Mar 1, 2023 at 13:01
  • ah I see. I am happy to be corrected when I make a mistake, but I need an explanation. Thanks
    – DevShark
    Commented Mar 1, 2023 at 14:49
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    @Barmar Because the recipient would still have a copy regardless. Probably the network/provider, too, if they were plain old SMS messages. Pretending to have no record or recollection of incriminating texts that someone else still has an unabridged copy of? Now that's incriminating.
    – aroth
    Commented Mar 2, 2023 at 0:06

2 Answers 2

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Because the hosts are part of the defendants.

A party in a lawsuit can demand documents to be turned over to them from the opposing party. That is called Discovery and participation is mandatory. Not turning over the documents requested and not providing a good reason why they should not be turned over is contempt of court.

Discovery under the Federal Rules is very broad. According to Rule 26(b)(1), "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." The federal rules also provide several tools that can be used to get information from other parties, including interrogatories, depositions, and requests for admission. A party may also compel other parties to give them access to documents, real property, or other things for review or testing. See Rules 26-37.

The Delaware rules of Civil Procedure mimic the Federal Rules of Civil Procedure very closely, and their Rule 26 is close to the Federal Rule 34. Especially interesting here is:

Del. R. Civ. P. Super. Ct. 26 (b) (1) In general. - Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, including the existence, description, nature, custody, condition and location of any documents, electronically stored information (EST), or tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial. [...]

The hosts are employees of the defendant, the phones contain EST that is regarding the matter and relevant to Dominion's claim, and disclosure is proportional to the needs of the case. As such, The employer has to make them comply with discovery requests by the opposing party and hand over the text messages.

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    I have little understanding of the law. What does "non-privileged" mean in the context of the rules you quoted above? Does it matter whether the phones are the property of the Fox News or whether they are property of the employees? If Fox News is the defendant, I would have assumed that only property of Fox News would be discoverable.
    – James
    Commented Mar 1, 2023 at 17:51
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    @James It'S easier what is Privileged: only your communication with your lawyer is privileged and not discoverable. It does not matter if the phones are Fox property. It only matters that part of the communication was conducted by Fox employees. Fox can be sanctioned for the actions of their employees.
    – Trish
    Commented Mar 1, 2023 at 20:06
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    @Trish There are other kinds of privilege (though they aren’t relevant in this case), such as confessional privilege and executive privilege.
    – Mike Scott
    Commented Mar 2, 2023 at 7:54
  • @MikeScott No need to convolute the situation, but indeed.
    – Trish
    Commented Mar 2, 2023 at 8:29
  • @Trish At the least, "and similar" clause would have been required to make your comment true (it stated only communication with your lawyer; which is false). So I'd say the correction was needed.
    – Yakk
    Commented Mar 3, 2023 at 14:39
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This was apparently part of the normal discovery process. Discovery can compel disclosure from parties and even non-parties upon subpoenas. The lawsuit is in the Superior Court of the State of Delaware, so discovery is governed by Rules of Civil Procedure for the Superior Court of the State of Delaware, Rule 26 (as opposed to federal rules, but they are essentially the same).

Through the discovery process, Dominion has gained access to internal Fox emails, and several network hosts and executives have sat for depositions, as has Fox Corp. chair Rupert Murdoch.

CBC, "Fox's Murdoch called election fraud claims a 'Trump myth,' Toronto's Dominion says in court filing"

In Dominion's Brief in Support of its Motion for Summary Judgment, it refers to discovery, saying (among other things):

Fox produced many text messages with a date stamp in "UTC" time...

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