Chris Ruddy, CEO Newsmax speaks on the 1st day of CPAC Washington, DC conference at Gaylord National Harbor Resort & Convention on March 2, 2023. (Photo by Lev Radin/Sipa USA)(Sipa via AP Images)
Add it to the list: Smartmatic, the voting machine company already suing Newsmax for defamation for the media company’s claims about its products during the 2020 election, has added a new accusation to its array of allegations, accusing the network’s chief executive of deleting evidence including texts and other communications central to the allegations.
Smartmatic made the claim in a comprehensive 57-page memorandum in support of their motion for spoliation sanctions. It was filed in the Superior Court of Delaware last week. A trial will get underway in September.
According to lawyers for Smartmatic, Christopher Ruddy, the CEO of Newsmax, “destroyed the text messages and emails of key executives responsible for its defamatory campaign” starting in December 2020.
“This was not a mistake,” Smartmatic attorney Kate Harmon wrote, alleging that as soon as Ruddy caught wind that he and others may be sued for defamation, Ruddy “ignored” calls for litigation holds and “allowed all of his text messages to be erased from his phone.”
“As bad, Newsmax deliberately left its News Director [Gary Kanofsky] and its Editorial Director [David Perel] off the litigation hold so that all their emails were likewise destroyed. Newsmax’s cover-up worked,” the motion states, later calling Kanofsky “the closet thing Newsmax had to a whistleblower.”
They allege that Ruddy “took no steps to preserve his text messages” and they said this was proved when he testified about setting messages to automatically delete after 30 days and then, despite knowing his messages were auto-deleting, failing to turn it off. Notably, the specifics of what Ruddy said to the court are redacted in the motion.
Only a few of his communications were saved on his iPad but everything from November to December 2020 was gone.
The auto-delete story only grew “harder to believe” in May, Harmon wrote, when after more than four months of fact discovery, Newsmax coughed up an additional batch of Ruddy’s text messages that had “supposedly survived on his iPad despite the auto-delete setting.”
The first batch contained just 21 texts. But the next batch from November to December that were abruptly produced exceeded a little over 1,100 messages. No explanation was provided to Smartmatic about how these records suddenly appeared.
Without even factoring in the “extreme lateness,” Smartmatic reminded the court: Ruddy told the parties the messages were auto-deleted.
“The existence of these additional 1,106 text messages — for which Newsmax has offered no explanation — suggests that Mr. Ruddy’s messages from November to December 2020 were not automatically deleted. Rather, they were selectively deleted — by him. Either way, Newsmax admittedly allowed critical text messages to be destroyed,” the motion states.
Notably, the motion also references an allegedly intentionally deleted text where Ruddy discusses Sidney Powell but the contents of that message appear redacted. The only reason Smartmatic says it knows Ruddy deleted the Powell message was because another witness had saved it in their phone.
Of the message, Harmon wrote:
This is direct evidence of actual malice by the man who calls himself the [redacted]. It was no mistake that this and the rest of his text messages were deleted.
Messages from Newsmax news director Kanofsky were referenced and redacted as well, with the plaintiffs noting Kanofsky had issued warnings internally about publishing bogus claims of voter machine fraud. Newsmax has claimed that Kanofsky wasn’t intentionally left off litigation holds but he made a regular practice of deleting his records but saved them in a personal email account.
“More unbelievable still, Newsmax’s counsel claimed that they had forgotten the archive existed, which is why none of Mr. Kanofsky’s emails had been produced,” Smartmatic attorneys wrote.
Though Kanofsky testified that he was instructed to regularly delete emails each month to free up his inbox when working at Newsmax, Smartmatic attorneys say no one else at the media outfit testified that they needed to do this and “almost everyone else in the broadcasting department was included in the litigation hold.”
Similarly, Perel, the editorial director for Newsmax, sent warning messages, too, including one directly to Ruddy where he told the CEO that a person — not identified in the motion — “could not be telling the truth” but nonetheless, they ran stories publishing the source’s false accusations.
They just chose to leave out claims from the person about their “fictitious intelligence credentials.”
Perel was eventually fired in May 2021. Newsmax allegedly failed to preserve any of the data on his laptop before his termination.
“In fact, Newsmax intentionally wiped it clean,” Harmon wrote.
A Newsmax spokesperson issued a statement categorically denying the latest allegations. The motion is “intended only to distract from Smartmatic’s own misconduct, which includes claims it paid Philippine officials $4 million in bribes to be awarded election contracts there,” they told The Guardian.
As Law&Crime previously reported, Smartmatic recently dropped its defamation suit against One America News Network after it reached a confidential settlement deal. Smartmatic claimed OANN’s publication of defamatory statements caused the voting machine company’s value to plunge by more than $2 billion.
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