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 decision resolves the Motion to Compel Production of Slack Messages
filed by Defendants Elon R. Musk, X Holdings I, Inc., and X Holdings II, Inc.
(“Defendants”) on August 27, 2022, which I refer to as Defendants’ “Fourth Discovery
Motion.” 1 Plaintiff Twitter, Inc. (“Plaintiff”) filed its opposition on August 30, 2022. 2
Defendants filed their reply on September 2, 2022. 3 I heard oral argument on September
1
C.A. No. 2022-0613-KSJM, Docket (“Dkt.”) 264 (“Defs.’ Fourth Disc. Mot.”).
2
Dkt. 319 (“Opposition”).
3
Dkt. 383.
C.A. No. 2022-0613-KSJM
September 7, 2022
Page 2 of 5
6, 2022. 4 I assume that the reader is familiar with the background of this dispute, so I will
skip to a discussion of the issues raised by Defendants’ Fourth Discovery Motion.
Plaintiff’s custodians used Slack for relevant communications, and Plaintiff has
agreed to produce responsive Slack messages from six of their 42 custodians. 5 In their
Fourth Discovery Motion, Defendants seek production of responsive Slack messages from
all 42 Twitter custodians. Plaintiff argues that this further production would be unduly
burdensome. Plaintiff further argues that, because Defendants previously demanded Slack
messages from only eight of Plaintiff’s custodians, Defendants should not now be
permitted messages from all 42.
On the issue of burden, I have repeatedly noted the substantial disparity in the
discovery burden placed upon the warring factions. I will not repeat all of these
observations here, except to say that Plaintiff’s had it far worse, and I am hesitant to impose
a large additional discovery burden on Plaintiff at this stage in litigation.
As to Defendants’ prior representations, the correspondence between counsel
attached to the parties’ motions bears out Plaintiff’s account that Defendants effectively
abandoned their initial demand of 42 custodians in favor of a request only eight. The back-
and-forth between counsel is tedious, but I recount it here for completeness.
4
Dkt. 412.
5
Opposition at 18.
C.A. No. 2022-0613-KSJM
September 7, 2022
Page 3 of 5
Following Plaintiff’s August 5 offer to provide text messages from three
custodians, 6 Defendants countered on August 16 with a list of 42 “Messaging Platform
Custodians.” 7 Defendants’ proposal “govern[ed] the review of any messages sent or
received by Plaintiff’s document custodians on any messaging device and/or messaging
platform” used by each of the Messaging Platform Custodians and identified “Slack” as a
“Messaging Platform.” 8
Plaintiff rejected the counterproposal, 9 and Defendants responded with a new
proposal on August 18. 10 Defendants’ counsel stated that their new proposal “limits the
number of Messaging Platform Custodians,” 11 and the proposal did indeed trim the initial
list of 42 individuals down to eight. 12 The August 18 proposal also preserved the
“Messaging Platform Custodians” language from Defendants’ August 16 proposal,
including the specific reference to Slack as a “Messaging Platform.” 13
6
Opposition, Ex. 2 at 2.
7
Opposition, Ex. 4 at 26.
8
Id.
9
Opposition, Ex. 5 at 1–2.
10
Opposition, Ex. 6 at 29.
11
Id. at 2.
12
Id. at 29.
13
Id.
C.A. No. 2022-0613-KSJM
September 7, 2022
Page 4 of 5
In response to the August 18 proposal, Plaintiff countered with an offer of six
custodians, 14 and Defendants responded again by demanding eight. 15 Both of these
proposals included the same language explicitly including Slack in the Messaging
Platforms at issue. 16 On August 23, Defendants changed tack and demanded that Plaintiff
produce Slack messages from all 42 custodians. 17
Defendants argue that they always wanted 42 Slack custodians. They contend that
Plaintiff represented that Plaintiff was collecting and reviewing Slack messages from a
broader set of custodians, and that was true early in the process. But Plaintiff’s
representations came before Defendants proposed and negotiated a protocol for Messaging
Platform Custodians demanding a far narrower set of Slack custodians. Defendants’
explanation for those later communications was that they “inadvertently failed to remove”
the language. 18
Even if Defendants’ representations were inadvertent, Defendants cannot be
permitted to re-trade now. To be sure, generally, parties should be able to offer
compromise positions without prejudicing their right to move for the full scope of relief to
which they are entitled. That is not what happened here. Defendants gave Plaintiff the
14
Opposition, Ex. 7 at 32.
15
Opposition, Ex. 8 at 34.
16
Opposition, Ex. 7 at 32; Opposition, Ex. 8 at 34.
17
Opposition, Ex. 9 at 1.
18
Opposition, Ex. 11 at 1.
C.A. No. 2022-0613-KSJM
September 7, 2022
Page 5 of 5
impression that they were seeking limited Slack custodians, only to then say that they never
meant it. In this highly expedited case, there is no time for “just kiddings.” Parties must
be able to rely upon one another’s good faith proposals for the discovery process to
function. Defendants are therefore held to their proposal seeking Slack messages from the
eight custodians identified in their proposals.
Plaintiff is ordered to produce Slack messages from the two additional custodians
proposed by Defendants: Egon Durban and Vijaya Gadde. This production may be
provided pursuant to an agreement between the parties in line with this court’s “quick
peek” proposal made prior to oral argument. 19 Alternatively, Plaintiff may review the
messages and provide responsive documents to Defendants. The parties are to meet and
confer as to the manner of production and any related issues raised by this ruling.
IT IS SO ORDERED.
Sincerely,
/s/ Kathaleen St. Jude McCormick
Kathaleen St. Jude McCormick
Chancellor
cc: All counsel of record (by File & ServeXpress)
19
Dkt. 379.