October is here. Trial is in October(!).
Here's what to expect over the coming weeks and months.
Update: Trial is no longer in October, because apparently putting it in an image format on the internet caused the entire litigation to get stayed.
Just kidding, but here’s where we stand.
But now, back to the original post for you historians: ⤵️
Let’s look at what the schedule will be between now and whenever the Twitter v. Musk matter comes to a resolution. Because both the Court and the parties have discretion about various procedural postures and decisions to be made, it’s impossible to know all of the future details with precision. However, it is possible to outline some of the likely contours.
Trial is scheduled for five days, during the week of October 17th through 21st — Monday through Friday. KSJM’s trials generally begin at 9:15 a.m. each morning, and are held in Wilmington at the Leonard L. Williams Justice Center at 500 North King Street. There will be an audio feed for trial, most likely it will be similar to the ones that have been available for hearings in this matter, provided through Courtscribes.
So, what will happen in the two weeks before trial, and in the weeks and months thereafter? Here are the details.
In the next two weeks, the major event from a public access standpoint will be the filing of pre-trial briefs and the pre-trial conference. Because the Court of Chancery is a non-jury trial court, which only holds bench trials, pre- and post-trial briefing are a staple of every trial, as well as post-trial oral argument in a fair majority of plenary (non-summary) matters. (From a private litigator’s standpoint, it’s almost unimaginable how much work remains to be done in the case over the next two weeks, given that Musk and other major depositions have yet to even take place.)
Pre-trial briefs are due on October 13th at noon, meaning that both plaintiff and defendants will make concurrent singular filings. The parties will also submit their joint pre-trial order and exhibit list on October 12th. One interesting question is whether or not the pre-trial briefs (and PTO) will be permitted to be filed under seal, and if so, whether there will be an expedited process for unsealing them. If not, under this compressed expedited schedule, the public would not be able to access redacted versions under Rule 5.1 effectively until the last day of trial. This does not seem tenable, but one wonders what might be done if the parties are not incentivized to suggest an alternative solution.
The pre-trial conference is set for October 14th at 9:15 a.m. This will most likely be held live in Wilmington with the standard dial-in access line. Pre-trial conferences generally are slated for a half-day on the Court’s calendar, so this one will likely run until lunchtime. The Court will hear motions in limine at the pre-trial conference, although as with the adverse inference motion currently pending, MILs (requests to exclude information from trial that doesn’t meet a particular evidentiary standard) are less relevant in this Court than in others, but are still heard nonetheless, and generally apply to expert reports that stray into legal conclusions or otherwise outside the boards of proper expert testimony. Motions in limine to be heard at the pre-trial conference are due October 11th and responses are due October 12th.
After trial, no opinion will be issued (absent some truly extraordinary circumstances) without post-trial briefing and potentially even post-trial argument. Both are standard practice in the Court of Chancery. How long the parties take to do post-trial briefing is one of the unknown temporal variables. It’s likely—given the Chancellor’s view on expedition and the risk of irreparable harm to Twitter here—that plaintiffs timeline will guide the process. In effect, it would not be surprising if briefing timelines were set as fast as Twitter is willing to push them. In the normal case, the parties take between 4-6 weeks to do post-trial briefing, and sometimes do seriatim briefing where both sides file opening briefs (since here we also have counterclaims) and then 4-6 additional weeks later, the parties file responsive briefs. That is unlikely to happen here, but there’s a real question as to how fast the parties will agree to complete post-trial briefing. Once it is complete, the Chancellor will advise the parties as to whether she requests post-trial argument or additional briefing on any targeted issues that have arisen in the parties’ respective briefs. Of course, if post-trial argument happens (and/or if supplemental briefing is requested), that would insert additional weeks into the timeline.
Once post-trial briefing (and possible argument) is complete, the Chancellor and her clerks will take to work on the opinion. In most cases, the Court of Chancery aims to issue decisions on normal matters within 90 days of the completion of briefing. Here, of course, everything is superhuman and Herculean (hopefully less so in the Augean sense), so one may consider historical precedents where—for example—the Chancellor put out a 100-page opinion over the course of a long weekend. Presumably, the tone and tenor of trial, coupled with proof of likely harm from delay, will guide the speed of post-trial processes.
Sitting out on the calendar in the Chancellor’s mind is the outside date for financing, April 25, 2023. In the argument on the motion to expedite, the Chancellor made clear that she had considered that date in calculating when trial needed to happen to also allow her and her clerks enough time to put out the Post-Trial Opinion such that it could go up on appeal to the Delaware Supreme Court and come back for whatever subsequent proceedings were required, all to be completed before the “drop-dead” date for financing in April.
So we can see the timeline pretty clearly through October and likely November. I’d imagine that we see an opinion from the Court of Chancery before the end of the year, assuming that post-trial briefing is on a human timescale, and not quite as expeditious as the prior aspects of the trial have been. Given the realities of winter holidays and other human constraints, a decision in November would be extraordinary but not impossible depending on the post-trial briefing schedule, but December is probably the more likely outcome, all told.
The Delaware Supreme Court will hear an elections appeal this week in a case that Vice Chancellor Cook just recently decided within the past couple of weeks. The court can move the appeals process quickly when required by considerations of equity and justice. IMHO, how fast the Delaware Supreme Court will move in this case will be strongly informed by what is actually at stake in the aftermath of the Court of Chancery’s post-trial rulings. If the losing party in the Court of Chancery does appeal, and if that party is Musk, he will be required to put up a $44+ billion supersedeas bond, and it is not clear whether a bond issuer exists who is up to that task, or whether Musk has the requisite collateral to bring it into existence.
More thoughts on the appeals process and timeline to come.