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 22, 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 addresses the Motion to Compel Discovery filed by Defendants
Elon R. Musk, X Holdings I, Inc., and X Holdings II, Inc. (“Defendants”) on September 7,
2022, which I refer to as Defendants’ “Fifth Discovery Motion.” 1 Plaintiff Twitter, Inc.
(“Plaintiff”) filed its opposition on September 14, 2022. 2 Throughout this letter, I identify
specific questions regarding the parties’ respective positions to be addressed during the
September 27, 2022 hearing.
1
C.A. No. 2022-0613-KSJM Docket (“Dkt.”) 422 (“Defs.’ Fifth Disc. Mot.”).
2
Dkt. 499 (“Opposition”).
C.A. No. 2022-0613-KSJM
September 22, 2022
Page 2 of 8
Plaintiff has represented that aspects of Defendants’ Fifth Discovery Motion have
been rendered moot. 3 Defendants shall state their position on this representation during
oral argument.
According to Plaintiff, only the following disputes related to Defendants’ Fifth
Discovery Motion remain. Defendants request that I compel Plaintiff to:
1. Produce or log documents containing the terms mDAU, UAM, or stickiness; 4
2. Collect and review 520,000 webpages from an internal policy repository
called Confluence;
3. Collect and review custodial emails and Slack threads of Twitter employee
Luke Simon; and
4. Collect and review documents stored on Box and Notion. 5
As to the first category, Defendants argue that Plaintiff has failed to produce
responsive documents concerning mDAU, UAM, and stickiness. Defendants base this
assessment primarily on the following statistics: Plaintiff’s hit counts reflect that its
custodians collectively possessed 17,527 documents containing the search term mDAU,
but Plaintiff deemed approximately 40% of those documents responsive; 6 Plaintiff’s hit
counts reflect that its custodians collectively possessed 5,679 documents containing the
3
Id. at 2 n.1.
4
A note regarding the terms: “mDAU” means monetizable daily active users; “UAM”
means user active minutes; and “stickiness” is a metric used by Plaintiff to calculate the
number of either DAU or mDAU relative to the corresponding Monthly Active Users
(“MAU”) equivalent.
5
Id. at 2.
6
Defs.’ Fifth Disc. Mot. at 2–3.
C.A. No. 2022-0613-KSJM
September 22, 2022
Page 3 of 8
search term UAM, but Plaintiff deemed approximately 36% of those documents
responsive; 7 and Plaintiff has deemed only 20% of documents containing the term
stickiness responsive 8 Defendants argue that these responsiveness rates are “highly
implausible” and suggest that Plaintiff inappropriately withheld responsive documents
containing these terms. 9 As further support, Defendants point to a few instances where
Plaintiff redacted portions of a Slack thread concerning UAM and mDAU comparisons. 10
Plaintiff makes several points in response. Plaintiff notes that: Plaintiff did not
agree to produce every document containing the search terms at issue; the statistics noted
above are slightly off (e.g., Plaintiff produced or logged as privileged 52% of the
documents that contained the term mDAU, not 40%); it has re-reviewed the UAM
documents; some errant redactions are unsurprising given the pace of this litigation; and it
has cured the errant redactions in any event. 11 Plaintiff disputes that “stickiness” was ever
identified as a key metric subject to the court’s order. 12 Plaintiff also notified Defendants
of its intent to make another production concerning these documents on or about
September 3. 13
7
Id. at 8; Opposition at 6.
8
Defs.’ Fifth Disc. Mot. at 6; Opposition at 6.
9
Defs.’ Fifth Disc. Mot. at 4.
10
See id. at 4–6.
11
See generally Opposition at 1–7.
12
Id. at 6.
13
Dkt. 436 (Ex. B to Defs.’ Fifth Disc. Mot.) at 2.
C.A. No. 2022-0613-KSJM
September 22, 2022
Page 4 of 8
It is unclear whether Plaintiff’s documents production cured the putative deficiency
identified in the first category. 14 The parties shall report to the court on the status of this
issue during the September 27 hearing.
As to the second category, Defendants state that they asked Plaintiff for a list of
potential sources of relevant documents at a July 31 meet and confer, including cloud-
based platforms such as Google Drive. 15 Plaintiff did not identify Confluence in response
to that request. During an August 31 deposition, an employee of Plaintiff identified
Confluence, which the employee described as an internal program functioning as a
Wikipedia of sorts for technical documents. 16 Defendants asked Plaintiff to search
Confluence for responsive documents, and Plaintiff agreed to do so, but only to produce
“pages ‘associated with Twitter’s trust and safety function.’” 17 Another employee of
Plaintiff, deposed on September 2, then testified that Plaintiff used Confluence for multiple
purposes, including to support statements made to Defendants regarding Plaintiff’s spam
auditing methodology. 18 Plaintiff then agreed (after Defendants filed this motion) to also
produce Confluence pages “related to the quarterly spam estimation process” within a
certain group of employees. 19 Through their Fifth Discovery Motion, Defendants state that
14
Defs.’ Fifth Disc. Mot. at 7.
15
Id. at 13.
16
Dkt. 436 (Ex. F to Defs.’ Fifth Disc. Mot.) at 150:20–153:24.
17
Defs.’ Fifth Disc. Mot. at 13 (quoting Ex. I at 2).
18
Dkt. 436 (Ex. J to Defs.’ Fifth Disc. Mot.) at 160:25–167:12.
19
Opposition at 7 (quoting Ex. F. at 2).
C.A. No. 2022-0613-KSJM
September 22, 2022
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they “would be willing to accept the limited production of Confluence pages from Twitter’s
data science team(s) and Twitter’s corporate finance and/or sales finance team” hitting on
certain search terms. 20
Plaintiff responds by attacking Defendants’ generalized justification for the
documents, stating that “Defendants have not identified any reason to believe that other
relevant, non-duplicative documents exist on Confluence.” 21 But Defendants have pointed
to deposition testimony suggesting that Plaintiff’s use of Confluence was, perhaps, broader
than Plaintiff had initially represented or Defendants had understood. 22
Plaintiff also responds that the burden would be too great. Plaintiff argues that
collecting and producing documents from Confluence imposes
special burdens because Confluence pages cannot be extracted
in bulk electronically. Instead, responsive pages must be
manually extracted for production after review. [Plaintiff] has
more than 520,000 Confluence pages subject to potential
extraction. The processing of those pages would present a
massive and unjustified burden at this point in the litigation. 23
I am skeptical of Plaintiff’s second argument concerning the Confluence documents,
and specifically the representation that manual extraction is truly the only way to mine this
repository of information. Perhaps my skepticism is unfounded. I also surmise that the
20
Defs.’ Fifth Disc. Mot. at 14–15.
21
Opposition at 8.
22
See, e.g., Dkt. 436 (Ex. J to Defs.’ Fifth Disc. Mot.) at 161:1–162:16 (describing the
range of uses different teams within Plaintiff have for Confluence, including policy
documents and company work product).
23
Opposition at 8.
C.A. No. 2022-0613-KSJM
September 22, 2022
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burden could be shifted to a neutral third party, the cost of which the parties could share.
During the September 27 hearing, Plaintiff will need to describe the efforts they undertook
to investigate how to collect this data and state its position concerning the possibility of
relying on a neutral third party to aid the process.
As to the third category, Defendants argue that Plaintiff misrepresented its
custodians’ level of involvement in analyzing the relationship between mDAU and other
metrics, such as advertising revenue and UAM. For example, Plaintiff stated that Julianna
Hayes was involved in tracking the relationship between mDAU and advertising revenue.
Her deposition testimony revealed that her involvement in such work was limited. 24 Other
Twitter employees testified that they deferred to fellow employee Luke Simon on various
issues. 25 Given this testimony, Defendants “request that the Court compel [Plaintiff] to
add Mr. Simon as a custodian, produce responsive documents, and make him available for
a deposition within five days of producing his documents.” 26
24
For instance, although her team was responsible for modeling revenue based on given
user assumptions, neither Hayes nor her team were responsible for determining the user
behavior information that informed those models. See Dkt. 436 (Ex. M to Defs.’ Fifth
Disc. Mot.) 35:8–38:6. And although she used mDAU in her day-to-day activities, see id.
79:22–80:4, she also testified that she has no role in modeling user engagement. Id. 93:2–
14.
25
See, e.g., Dkt. 436 (Ex. C to Defs.’ Fifth Disc. Mot.) 232:2–8 (discussing why a Twitter
employee witness would defer to Simon’s knowledge of revenue metrics, given his role at
the company).
26
Defs.’ Fifth Disc. Mot. at 20.
C.A. No. 2022-0613-KSJM
September 22, 2022
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Plaintiff responds that Defendants inaccurately portrayed the deposition testimony
on which they rely, that Simon’s role was not as significant as Defendants portray, that I
previously denied Defendants’ efforts to make Simon a documents custodian, and that my
prior ruling should not be unsettled. 27
It is often the case in discovery that depositions reveal new significance to other
persons or facts in the case. I have reviewed the deposition testimony on which Defendants
rely concerning Simon and believe that their representation is fair. Because Defendants
lacked this information when previously requesting Simon as a custodian, I do not view
my prior ruling as dispositive on the issue. For this reason, during the September 27
hearing, Plaintiff should be prepared to state the relative burden of collecting and reviewing
Simon’s emails. Although I found compelling Plaintiff’s previous assessment of the
burden of collecting and reviewing Slack messages, Plaintiff should nonetheless come
prepared to state that burden with specificity as to Simon.
As to the fourth category, Defendants argue that they learned, during a September 6
deposition of a Twitter employee, that Twitter uses “Box” and “Notion” as additional
cloud-based tools, which Plaintiff did not previously identify. 28 Defendants argue that
Plaintiff should have to collect and review documents from these repositories for each of
their custodians. 29
27
See Opposition at 9–13.
28
Defs.’ Fifth Disc. Mot. at 15.
29
Id. at 16.
C.A. No. 2022-0613-KSJM
September 22, 2022
Page 8 of 8
Plaintiff responds that the Box and Notion systems are, one, rarely used and, two,
duplicative of other repositories that Plaintiff has already searched. 30 Defendants and
Plaintiff rely on the September 6 deposition testimony of Manish Chabria. 31
I have reviewed the September 6 deposition testimony on which Defendants rely
and agree with Plaintiff’s position. The parties need not present argument on this request;
it is denied.
IT IS SO ORDERED.
Sincerely,
/s/ Kathaleen St. Jude McCormick
Kathaleen St. Jude McCormick
Chancellor
cc: All counsel of record (by File & ServeXpress)
30
Opposition at 13–14.
31
Dkt. 436 (Ex. K to Defs.’ Fifth Disc. Mot.).