The chief executive of Newsmax deleted text messages and the company allowed key employees to delete emails as part of an effort to conceal evidence the outlet knew it was broadcasting falsehoods about the 2020 election, lawyers for the voting machine company Smartmatic said in an acerbic court filing last week obtained by the Guardian.
The allegations were made as part of a motion for sanctions in an ongoing defamation case Smartmatic filed against Newsmax for making false and outlandish claims about the company after the last presidential election. The case is planned to go to trial in September in Delaware superior court.
The motion, which contains significant redactions, says Newsmax’s chief executive, Christopher Ruddy, deleted text messages after the company was asked to preserve documents and communications as part of a lawsuit. Smartmatic also alleges that Newsmax allowed emails from Gary Kanofsky, its news director, who tried to warn other Newsmax staffers against broadcasting false claims about Smartmatic, to be deleted.
Smartmatic attorneys also claim that Newsmax allowed messages from the editorial director, David Perel, to be deleted even though he warned Ruddy about the credibility of a source and was responsible for drafting Newsmax’s journalistic practices.
Newsmax, which denies publishing libelous claims, said the company did not delete evidence.
“Newsmax categorically denies Smartmatic’s allegations, which are intended only to distract from Smartmatic’s own misconduct, which includes Department of Justice claims it paid Philippine officials $4m in bribes to be awarded election contracts there,” the company said in a statement. A spokesman for Newsmax provided a copy of the company’s own recent court filing accusing Smartmatic of not turning over documents.
The messages are relevant to the case because Smartmatic needs to prove that Newsmax had “actual malice” and knew the statements were false or acted with reckless disregard to the truth and published them anyway. NBC News first reported the court filing.
“Newsmax destroyed the text messages and emails of key executives responsible for its defamatory campaign against Smartmatic. This was not a mistake,” Smartmatic lawyers wrote in the court papers. “Newsmax’s cover-up worked. Critical documents, including text messages and emails going directly to Newsmax’s actual malice and motive, were permanently deleted.”
Among the text messages allegedly deleted was one in which Ruddy refers to Sidney Powell, Trump’s lawyer who was one of the most prominent purveyors of false allegations of voter fraud after the 2020 election. While the content is redacted in the filing, Smartmatic described the message as Ruddy’s “unvarnished view of Ms Powell’s credibility” and “direct evidence of actual malice”.
Ruddy claimed that the messages on his phone were set to automatically delete every 30 days, a setting lawyers said he did not change after Smartmatic instructed him to preserve communications. Despite that claim, Ruddy turned over an additional 1,106 text messages on 2 May, which Smartmatic lawyers say is evidence that his text messages did not really auto-delete during the period he claimed.
The filing also describes Kanofsky, the news director, as “the closest thing Newsmax had to a whistleblower”. Starting in November 2020, Kanofsky allegedly sent emails to other Newsmax employees with a fact-check about Smartmatic and warning them about broadcasting false claims. Newsmax allegedly did not tell Kanofsky to preserve his emails and they were deleted. Smartmatic lawyers said that when they pressed Newsmax on why it wasn’t turning over Kanofsky’s emails, Newsmax attorneys revealed that Kanofsky had a practice of regularly deleting all of his work emails and saving them in his personal email.
David Perel, the editorial director, also was not instructed to preserve emails, even though he sent relevant messages warning against publishing false claims, Smartmatic claimed. Perel was terminated in 2021 and Smartmatic said Newsmax wiped the messages from his company laptop.
Lastly, Smartmatic claims that Newsmax tried to conceal the existence of a document outlining its journalistic and ethical practices. While the content of the guidelines is redacted in the filing, Smartmatic says Newsmax violated them by broadcasting false information.
“Newsmax’s misconduct goes beyond falsely accusing Smartmatic of rigging the US election; it also attempted to conceal evidence of its actions and failed to follow its own journalistic standards,” J Erik Connolly, a lawyer for Smartmatic, said in a statement.
Smartmatic asked the superior court judge Eric Davis, who is overseeing the case, to order the company to pay legal fees it spent obtaining the concealed messages. It also asked Davis to alert the future jury to the concealment and instruct them to make an “adverse inference” about Newsmax’s motives.
The lawsuit is one of several defamation actions that have been filed against conservative media as part of an effort to hold them accountable for spreading lies. Smartmatic and the voting machine company Dominion also have ongoing defamation lawsuits against Powell, Rudy Giuliani and Mike Lindell.
Smarmatic settled a libel suit against the far-right network OAN last month for undisclosed terms. Last year, Fox News agreed to pay Dominion $787.5m to settle a defamation suit the company filed against it for false election claims.
