COURT OF CHANCERY
OF THE
STATE OF DELAWARE
KATHALEEN ST. JUDE MCCORMICK LEONARD L. WILLIAMS JUSTICE CENTER
CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
September 2, 2022
David J. Margules, Esquire Edward B. Micheletti, Esquire
Elizabeth A. Sloan, Esquire Lauren N. Rosenello, Esquire
Elizabeth S. Fenton, Esquire Skadden, Arps, Slate, Meagher & Flom LLP
Jessica C. Watt, Esquire 920 N. King Street, 7th Floor
Brittany M. Giusini, Esquire P.O. Box 636
Ballard Spahr LLP Wilmington, DE 19899-0636
919 N. Market Street. 11th Floor
Wilmington, DE 19801 Richard I. G. Jones, Jr., Esquire
Zachary J. Schnapp, Esquire
Brad D. Sorrels, Esquire Berger Harris LLP
Wilson Sonsini Goodrich & Rosati, P.C. 1105 N. Market Street, 11th Floor
222 Delaware Avenue, Suite 800 Wilmington, DE 19801
Wilmington, DE 19801
Re: Twitter, Inc. v. Elon R. Musk et al.,
C.A. No. 2022-0613-KSJM
Dear Counsel:
This letter decision resolves the August 25, 2022 joint motion of Craft Ventures
Management, LP and Sacks.com LLC to quash subpoenas directed to them and enter a
protective order (the “Motion to Quash”). I have carefully studied the Motion to Quash, 1
Twitter, Inc.’s August 29, 2022 Opposition to the Motion to Quash, 2 and the movants’
August 30, 2022 reply in further support of the Motion to Quash. 3
1
C.A. No. 2022-0613-KSJM, Docket (“Dkt.”) 251 (“Mot. to Quash”).
2
Dkt. 270 (“Opposition”).
3
Dkt. 299.
C.A. No. 2022-0613-KSJM
September 2, 2022
Page 2 of 5
I will keep this brief. I again assume that the readers are familiar with the
background of this action. David Sacks is one of four individuals identified by Elon Musk
as persons with whom he privately communicated about the Twitter transaction. Sacks’s
fund, Craft Ventures GP I, LLC (“Craft”), entered into a non-disclosure agreement with
Musk to evaluate a potential investment in connection with Musk’s acquisition of Twitter.
On August 1, 2022, Twitter served a California subpoena on Sacks.
What happened next was unusual. To quote from Twitter’s Opposition:
Sacks’ response was swift and obscene. That evening, he
Tweeted a virtual middle-finger at “Twitter’s lawyers,” then a
video of a man urinating on a subpoena while yelling
expletives to a cheering crowd. 4
Sacks next complained about the subpoena on Bloomberg TV, stating that he has “never
been in possession of non-public information related to [Twitter’s] contract dispute with
Elon.” 5 A few days later, Sacks stated on a publicly aired podcast that Twitter’s subpoena
was inappropriate because Sacks was “not even involved” with the transaction and was
“not in possession of non-public information about this.” 6 He further stated that he would
respond to the subpoena by “hir[ing] a lawyer to go quash this thing.” 7
4
Opposition ¶ 1.
5
Opposition ¶ 10 (quoting David Sacks Calls Twitter Subpoena ‘Harassment,’ Bloomberg
(Aug. 10, 2022), https://www.bloomberg.com/news/videos/2022-08-10/david-sacks-calls-
twitter-subpoena-harassment-video).
6
All-In Podcast, E90: Twitter subpoenas, market overview, Pelosi's Taiwan visit & more,
YouTube (Aug. 5, 2022), https://youtu.be/jlK5tsUuEP0.
7
Opposition ¶ 3 (quoting All-In Podcast, E90: Twitter subpoenas, market overview,
Pelosi's Taiwan visit & more, YouTube (Aug. 5, 2022), https://youtu.be/jlK5tsUuEP0).
C.A. No. 2022-0613-KSJM
September 2, 2022
Page 3 of 5
Craft hired California counsel, who informed Twitter on August 10 that Sacks
expected to respond to the subpoena on August 17 and would “endeavor to produce
documents by the August 22, 2022 response date.” 8 Meanwhile, Twitter learned of the
Craft non-disclosure agreement and served a second California subpoena on Craft on
August 15. Sacks’ California counsel agreed to accept service.
Twitter’s counsel became concerned that Sacks would not comply with his
obligations. On August 22, Sacks’ supposed target date for document production, Twitter
served Delaware subpoenas on Sacks’s Delaware affiliates, which are the movants. Sacks
responded that the Delaware subpoenas were unduly burdensome because they were
duplicative of the California subpoenas and the return dates were too soon. To allay these
concerns, Twitter made clear that it would treat Sacks’s compliance with the California
subpoenas as full compliance with the Delaware subpoenas and that the return dates were
negotiable. Sacks’s California counsel proceeded to engage cooperatively with Twitter’s
counsel to satisfy the California subpoenas.
Then came the Motion to Quash. In it, the movants claim that they were
“cooperative” in California from the start. 9 They describe Sacks’s connection to the
transaction as “tenuous.” 10 They describe the Delaware subpoenas as wholly duplicative.
They complain that the Delaware subpoenas force them to incur the added expense of
8
Mot. to Quash ¶ 1.
9
Mot. to Quash ¶ 4.
10
Id.
C.A. No. 2022-0613-KSJM
September 2, 2022
Page 4 of 5
Delaware counsel. On these grounds, they have moved to quash, deny, and limit the
Delaware subpoenas pursuant to Court of Chancery Rules 45 and 26. They have also
requested fee-shifting.
Rule 45 requires a subpoenaing party to “take reasonable steps to avoid imposing
undue burden or expense on a person subject to that subpoena.” 11 The court protects non-
parties “from significant expense resulting from the inspection and copying
commanded.” 12 The court will “quash or modify the subpoena” in a number of
circumstance, including if the subpoena “[f]ails to allow reasonable time for compliance”
or “[s]ubjects a person to undue burden.” 13 Rule 26 empowers the court to deny or limit
discovery that is “unreasonably cumulative or duplicative” or “obtainable from some other
source that is more convenient, less burdensome, or less expensive.” 14 The movants bear
the burden of establishing that the Delaware subpoenas exceed Rules 45 or 26.
The movants have not met their burden here. The Delaware subpoenas were not
“unreasonably” duplicative. Twitter had valid concerns based on Sacks’s behavior that
neither he nor Craft would comply with the California subpoenas. Rather than burden a
judge in another state with a request to enforce a subpoena, or risk not getting relief in time
for use in this highly expedited matter, Twitter served the Delaware subpoenas as an
11
Ct. Ch. R. 45(c)(1).
12
Ct. Ch. R. 45(c)(2)(B).
13
Ct. Ch. R. 45(c)(3)(A).
14
Ct. Ch. R. 26(b)(1).
C.A. No. 2022-0613-KSJM
September 2, 2022
Page 5 of 5
insurance policy. In other circumstances, I might view entirely duplicative subpoenas
served for such tactical purposes as problematic. Where, as here, the subpoena recipient
Tweets the subpoenaing attorneys the middle finger and a video of someone urinating on
subpoenas, I am less bothered by it.
The Delaware subpoenas impose no undue burden. Twitter made clear that it would
treat compliance with the California subpoenas as full compliance with the Delaware
subpoenas and that the return dates were negotiable. The only burden identified by the
movants is the expense associated with hiring Delaware counsel. The movants did not
need to hire Delaware counsel to comply with the Delaware subpoenas. They only needed
Delaware counsel to move to quash the Delaware subpoenas. In an apparent effort to keep
Sacks’s promise to his podcast listeners, the movants created the very burden of which they
now complain.
The Motion to Quash is denied.
Sincerely,
/s/ Kathaleen St. Jude McCormick
Kathaleen St. Jude McCormick
Chancellor
cc: All counsel of record (by File & ServeXpress)