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 7, 2022
Peter J. Walsh, Jr., Esquire Edward B. Micheletti, Esquire
Kevin R. Shannon, Esquire Lauren N. Rosenello, Esquire
Christopher N. Kelly, Esquire Skadden, Arps, Slate, Meagher & Flom LLP
Mathew A. Golden, Esquire 920 N. King Street, 7th Floor
Callan R. Jackson, Esquire P.O. Box 636
Potter Anderson & Corroon LLP Wilmington, DE 19899-0636
1313 N. Market Street
Hercules Plaza, 6th Floor
Wilmington, DE 19801
Brad D. Sorrels, Esquire
Wilson Sonsini Goodrich & Rosati, P.C.
222 Delaware Avenue, Suite 800
Wilmington, DE 19801
Re: Twitter, Inc. v. Elon R. Musk et al.,
C.A. No. 2022-0613-KSJM
Dear Counsel:
This letter resolves issues raised in the September 2, 2022 letter to the court from
Plaintiff Twitter, Inc. (“Plaintiff”) seeking sanctions against Defendants Elon R. Musk, X
Holdings I, Inc., and X Holdings II, Inc. (“Defendants”) for Defendants’ discovery
C.A. No. 2022-0613-KSJM
September 7, 2022
Page 2 of 5
misconduct. 1 I refer to the September 2 letter as Plaintiff’s Fourth Discovery Motion. 2
Once again, I assume that the reader is familiar with the background of this action.
Plaintiff’s Fourth Discovery Motion identifies clear deficiencies in Defendants’
document production. Third parties produced text messages with Musk that Musk himself
did not produce, and Musk’s own production of text messages revealed glaring
deficiencies. As just one example, Defendants produced two texts sent to Musk from
Robert Steel of Parella Weinberg Partners on June 17 at 9:57 a.m. and 10:15 a.m. 3 The
9:57 a.m. text asks a question. The 10:15 a.m. text—stating “Ok. Got it. . . .”—implies
that Musk responded. 4 Assuming that Musk’s response was not telepathic, one would
expect some evidence of it in Defendants’ document production. But Defendants provided
none by the deadline for substantially completing document discovery.
Defendants’ approach to answering interrogatories also left much to be desired. As
one example, on August 23, I ordered Defendants to respond to interrogatories that required
Defendants to identify persons with knowledge of relevant facts. 5 Defendants
supplemented their responses on August 26, but they did a bad job of it, identifying only a
1
C.A. No. 2022-0613-KSJM, Docket (“Dkt.”) 376 (Pl.’s Fourth Disc. Mot.); see also Dkt.
393 (Def.s’ Opposition).
2
For those counting, I skipped over Plaintiff’s Third Discovery Motion seeking Musk’s
privileged communications stored on the SpaceX and Tesla servers. Dkt. 375. That motion
remains under advisement.
3
Pl.’s Fourth Disc. Mot. at 9.
4
Id.
5
Dkt. 221 at 5.
C.A. No. 2022-0613-KSJM
September 7, 2022
Page 3 of 5
handful of people about whom Twitter was already aware. 6 Defendants supplemented their
responses again on August 31, this time identifying 491 people with knowledge. 7 Because
the August 31 response was based on a review of Musk’s texts collected on August 1, 8 it
could have been provided much earlier.
Defendants have now cured many of the deficiencies about which Plaintiff
complained in its Fourth Discovery Motion. They accuse Plaintiff of jumping the gun and
seeking sanctions prematurely, but I do not see it that way. I can understand why Plaintiff
requires relief. Plaintiff has born the bulk of the burden of discovery. In addition to the
onerous “historical snapshot” that was the subject of Defendants’ Second Discovery
Motion, 9 Plaintiffs collected, reviewed, and produced documents from 42 custodians.
Defendants agreed to produce from just two custodians. Defendants had less to do but still
fell short in their obligations. Defendants’ prior deficiencies have left Plaintiff wondering
whether there are other deficiencies and scrambling in third-party discovery.
Despite the imbalance in burden and Defendants’ suboptimal conduct, the relief that
Plaintiff seeks through it Fourth Discovery Motion taken as a whole is too extreme.
Granting the relief as requested would be an overreaction. Plaintiff asks for all text
messages from Defendants’ two custodians for the negotiated period regardless of whether
6
Pl.’s Fourth Disc. Mot. at 5.
7
Id. at 12–13.
8
Dkt. 412.
9
See Dkt. 247.
C.A. No. 2022-0613-KSJM
September 7, 2022
Page 4 of 5
such text messages are relevant, but that is an intrusive request. Plaintiff asks for sworn
statements regarding Defendants’ collection efforts and other issues, but the
representations made by Defendants’ counsel to date are extensive, and I am not convinced
that further lawyer-crafted explanations will shed greater light on the issues in any event.
Plaintiff asks for an immediate custodial deposition of Musk, but Plaintiff will be deposing
Musk quite soon given the case schedule. For the avoidance of doubt, Plaintiff may ask
Musk whatever custodial questions it would like to ask during his deposition, but there is
no need to conduct a separate custodial deposition. These requests are denied.
Two of Plaintiff’s requests are granted. Plaintiff asks the court to suspend third-
party discovery deadlines as to Plaintiff. This request is reasonable, and it is granted, but
trial is still on, and so third-party discovery must happen promptly. Plaintiff may not use
this relief to gain any tactical advantage and must act in good faith to move forward with
third-party discovery as quickly as possible. Plaintiff also asks Defendants to obtain and
produce phone company records concerning the text messages that Musk and Birchall sent
or received during the relevant period. This too is reasonable, and it is granted, as it will
allow Plaintiff to confirm whether Defendants’ representations that Musk did not text about
Twitter during key periods are accurate.
C.A. No. 2022-0613-KSJM
September 7, 2022
Page 5 of 5
IT IS SO ORDERED.
Sincerely,
/s/ Kathaleen St. Jude McCormick
Kathaleen St. Jude McCormick
Chancellor
cc: All counsel of record (by File & ServeXpress)