New court documents say Fox’s McHenry ‘lost’ phone with evidence supporting harassment suit: Report

Britt McHenry, a co-host on Fox News’ streaming service Fox Nation, came forward in 2019 with claims of sexual harassment against her from former co-host, George Murdoch, better known as Tyrus. McHenry later filed a lawsuit against Murdoch and other Fox executives over allegations of discrimination and retaliation — but now, things seem to have taken a turn.

Law & Crime reports that new court documents reveal McHenry has “lost” the phone she said held thousands of allegedly harassing messages from Tyrus.

The court filings reportedly show McHenry “lost her phone before filing” the suit.

The development means it will likely be difficult for McHenry to prove her claims in court, if she gets a chance to prove them at all. Still, the Fox Nation star’s lawyer says she “has nothing to hide,” Law & Crime reports.

Fox disputes claims

According to Law & Crime, it was in an amended response filed Tuesday by Fox News that news of the “lost” phone was revealed. The network’s attorneys addressed McHenry’s suit line by line and claim by claim, admitting to some statements of fact while denying other assertions.

With respect to the “text log” produced by McHenry and her attorneys, Fox disputed that it was “complete or accurate” and wrote that “counsel for Plaintiff disclosed for the first time on January 4, 2021, that Plaintiff lost the phone she used to text with Tyrus at some point before August 2019,” Law & Crime reported.

According to her own attorneys, McHenry “lost her phone before she filed this lawsuit and before she submitted what she claimed to be an accurate representation of 5,156 text messages she exchanged with Tyrus (‘text log’) that she had provided to her attorneys from her phone to an independent investigator,” Fox’s lawyers charged.

Given that recent disclosure, “Fox Defendants have not authenticated or verified the accuracy or completeness of the text log provided by Plaintiff and now may not be able do to so,” the network’s lawyers said. “Indeed, the Fox Defendants may not be able to verify whether messages were deleted from Plaintiff’s phone prior to the creation of the text log or whether text messages were altered before being placed on the text log,” they added.

Problems for McHenry?

The development reportedly has the potential to prove quite detrimental to McHenry’s case; according to Law & Crime, it could be a violation of Rule 37 of the Federal Rules of Civil Procedure, Failure to Make Disclosures — more specifically, Rule 37(e), Failure to Preserve Electronically Stored Information.

That rule pertains to information that “should have been preserved in the anticipation or conduct of litigation” and is ultimately lost “because a party failed to take reasonable steps to preserve it,” then the court can intervene and pursue a few different remedies, assuming that the information can’t be recovered or verified in some other manner.

If it is determined that “the party acted with the intent to deprive another party of the information’s use in the litigation,” then the judge can “presume that the lost information was unfavorable to the party,” instruct a jury to make that same presumption, or even dismiss the suit altogether or enter a default judgment for the defense, Law & Crime reports.

Only time will tell what the courts ultimately decide.

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