Twitter v. Musk Spotlight 🔦
Hearing dates, daily updates, and other miscellany.
Make sure to check this thread regularly for updates! Notification is posted on Twitter when the latest debrief has been added.
October 9th:
Due to the stay of litigation, we’re going to have a stay of updating this post for now. If you want to know my thoughts on where we stand, and what it all means, please read the post below.
October 6th:
We got a stay of litigation today.
I need sleep. More on Twitter if you need it.
More tomorrow here.
October 5th:
Another crazy day of news stories and less-than-usual docket activity.
Here’s my “where do you stand on everything” post from this evening:
Because there are still people out there saying that Elon could literally end the litigation and walk away now by paying $1B, and because that is not how this works, I tried to do a thread on it, wherein I had an existential crisis, realizing that what I thought were the weak bases for the origin of the rumor weren’t even themselves a possible basis, that there is literally ZERO basis for this rumor in the contract other than abject misunderstanding and lack of comprehension.
Chancellor McCormick put out a decision on the sanctions motion. It started with a news bulletin.
As expected, she will hold the decision until post-trial, except she basically buried the lede (but not so far we couldn’t find it) that Elon’s credibility is on very shaky ground, and she allowed further exploration and discovery on the missing text messages.
Also, Alex Spiro’s affidavit was filed, and all we learned is that he gets a ton of interesting mail that he doesn’t read.
In other news, I wrote the best clickbait headline of my life.
And, scene.
October 4th:
Well, today was a wild ride. Mass media outlets convinced half the low information populace that the case is over. It’s not that I disagree that the case ending is the likely outcome, particularly if Musk wants it to end, since that is almost entirely within his control. However, I disagree that it is currently over, in fact. Nothing, actually, that we know of, is over.
Here’s what happened. Musk sent an overnight letter to Twitter that said the following, from first antiquated appellation to the end:
Gentlemen:
On behalf of X Holdings I, Inc., X Holdings II, Inc. and Elon R. Musk (the “Musk Parties”), we write to notify you that the Musk Parties intend to proceed to closing of the transaction contemplated by the April 25, 2022 Merger Agreement, on the terms and subject to the conditions set forth therein and pending receipt of the proceeds of the debt financing contemplated thereby, provided that the Delaware Chancery Court enter an immediate stay of the action, Twitter vs. Musk, et al. (C.A. No. 202-0613-KSJM) (the “Action”) and adjourn the trial and all other proceedings related thereto pending such closing or further order of the Court.
The Musk Parties provide this notice without admission of liability and without waiver of or prejudice to any of their rights, including their right to assert the defenses and counterclaims pending in the Action, including in the event the Action is not stayed, Twitter fails or refuses to comply with its obligations under the April 25, 2022 Merger Agreement or if the transaction contemplated thereby otherwise fails to close.
He also filed a copy of this letter with the SEC, as required by various rules and laws.
So, what does this mean? First of all, I’m entirely gobsmacked that they called it the Delaware Chancery Court when that is something that only people who do not practice in the Delaware Court of Chancery call it. But that’s just me being petty.
More to the point, what does the letter actually say or attempt to do? Let’s see.
It offers to close the deal on the terms that Musk promised to close the deal back in April, which promise he has subsequently spent months and millions trying to revoke. But … for real this time?
The entirely credulous response from the media and most onlookers likely has some (perhaps unwitting) foundation in reality. The letter doesn’t say much, it doesn’t do much, but it does mean something. It means that Elon’s mindset has changed. It means that something finally shook loose. It means he’s willing to say publicly: “Fine! I’ll do the deal!”
Doing the deal has been the nearly inevitable endgame of this whole charade for the past several months. On its face, his claim is weak and has little known support in fact or law. So, the deal was going to get done. When it gets done by his acquiescence instead of the Court’s insistence, most likely people will celebrate that the reporting today was all accurate! See, the deal did get done!
But, to me, that’s not the point. The way it’s being reported is as though the deal is now done, and I assure you, with what we currently know, it is not. I suppose they can report the way they do, and I can tell you what’s really going on, in the eyes of the court.
Looking at the docket, I will say that something interesting happened today: nothing happened at all after 10am. This docket has been relentlessly busy, and although we were approaching a natural breathing point between all the outstanding discovery motions and various key person depositions, it is still rather revelatory that nothing happened after 10am. Methinks everyone was quite occupied with something else, namely: how the hell do we respond to this weird offer that’s not really a settlement, it’s not an actual closing, it’s just kind of a salvo of sorts?
The lack of docket activity does imply that Twitter was tied up dealing with this grenade Elon tossed into the works, by reprising his original promise, but this time, with gusto! I’ll repeat myself, but I do agree that this deal closes, and potentially very soon. But today, it’s not closed. It’s not over. The litigation goes nowhere until Twitter agrees that it does. And there are some indications in Musk’s letter that—at least as of the time of its drafting—he was unwilling to really do what it would take to make the litigation train come to a halt.
He won’t even release his counterclaims in exchange for a stay of the litigation? There is absolutely no reason known to the public as of this date that would lead Twitter to accept that deal, as it is written. They get nothing, and lose the specter of trial and deposition that is obviously motivating Musk to make this whole thing go away. Why release the hold on those leads? For what? A “for realsies this time” promise? I don’t think so.
Twitter’s brilliantly crafted response was wildly and grossly misinterpreted by mainstream media, but was actually a big fat middle finger of sorts, but with a smile.
In short, yes, we too would love to do the deal to which we all agreed. Great idea!
The notion that this response means that they are going to agree to stay the trial or push the upcoming depositions is bonkers, and I will say that if for some reason they agreed to it, it could only show that their case has a weakness to which the public is not yet privy. Because absent some motivation on Twitter’s part to avoid a trial (and we have seen none), there is absolutely no incentive for them to accept Musk’s proffer, because again—he’s offering them nothing that they don’t already have.
As for what happens next, I think tomorrow is going to be a big reveal, on a lot of fronts. First of all, late on Monday, Chancellor McCormick issued a ruling in the discovery dispute relating to the motion to amend, again, and there was an unusual demand at the end of the opinion.
This is unusual in particular because it does not seem to be something requested by Twitter, although we cannot be sure due to the confidential filings being still under seal. If this is something that was requested by the Court sua sponte, on her own initiative, then I imagine there could be cause for concern. Irrespective of what happens with Musk’s letter and any further response from Twitter, this affidavit is going to come due on Wednesday at 4:30pm, although it will very likely be filed under seal, or even in camera.
Trying to guess what incentivized Elon to send this letter seems like the ultimate faux divination attempt, but none of the possible motivators seem to be obviated by the sending of the letter, which I think really confuses the general public. Like, BUT WHY did he send it, if it’s not going to have any of the possible effects to cure the things that ail him? Well, we all make mistakes, boo.
Monday’s docket reveal also brought updated deposition notices, which show us that said Alex Spiro has not yet sat for his deposition, so one has to wonder what kind of come-to-Jesus conversation might have been had after the Chancellor’s ruling came down after hours on Monday.
As if the demand for affidavits and depositions under oath weren’t motivating enough, Vice Chancellor Laster piped up with his clear recitation of the way Delaware rolls, which could have serious impact on Musk’s post-trial game, assuming he had any plans for one.
That In re StreamTV decision also came down on Monday. So, I assume this letter, dysfunctional though it may be, was the result of a lot of things coming to a head at once, which is kind of the whole point of honing cases for trial. This weekend also brought the mass marketing of private text convos, which I can’t imagine was Elon’s favorite moment, but which happened by his own hand.
To me, it feels like death by a thousand cuts, not one motivating event. If he is really motivated, he will do a lot more than send a mealy-mouthed letter via overnight courier. He will put his money where his mouth is, and he will come to the table to close.
‘Twill be quite interesting to see what tomorrow brings.
Until then,
Chance
P.S. Apropos of nothing except how many document fees I have to pay, we also got some updated merch.
October 3rd:
Monday proved to be another full day of activity in the Twitter v. Musk case. First, we got a docket dump of all the items that had been filled over the weekend while the Register in Chancery was closed. Most notably, on Satuday, Chancellor McCormick filed a letter for the parties, notifying them that the Special Master had encountered a conflict and would be unable to handle the case, so she would be taken on the document review herself.
She reduced the number of documents that each side could submit for in camera review of the propriety of privilege redactions from 200 to 40, and provided guidelines for the parties to follow in their submissions, which were due in hard copy by 4:30pm Monday close of business.
Other items on the docket included deposition notice to Trevor Davis of To|Someone / CounterAction, some boilerplate order on expert discovery and the addition of Luigi Crispo to the confidentiality on record in this case.
There was also a new discovery motion from Twitter seeking relief in connection with the deposition of Jared Birchall, which was filed under seal, and several letters trying to sort out search protocol over the weekend.
Lastly, there was a letter to Chancellor McCormick this weekend from Twitter “regarding Defendants’ most recent failure to comply with the Court’s Orders” which actually turned out to be the first in the set of letters trying to sort out the search protocol, as mentioned above.
I think we can expect a ruling by Wednesday on the outstanding matters that are fully briefed (the privilege review and the adverse inference [if she ends up granting a ruling pre-trial on that issue]) and probably by the end of the week for the Morgan Stanley motion, assuming the relevant letters are complete in the next day or two.
In other news, our merch store is up, and there are less than two weeks until trial begins!
October 2nd:
Friday proved to be crazy as predicted, with the appointment of a special master to do privilege review the Chancellor made clear was not within the proper confines of her job description, relating to both Defendants’ and Plaintiff’s [separate] Sixth Discovery Motions. We got one mooted discovery “branch” of Defendants’ Sixth Discovery Motion re Slack production (cooperation, hooray!) and a (second) decision on Defendants’ Fifth Discovery Motion, bringing that issue to a close.
By my count, there are still several outstanding motions that are likely to be decided early this week, including at least Plaintiff’s Fifth (Morgan Stanley) and Plaintiff’s Seventh (text message production sanctions) Discovery Motions. The Morgan Stanley issue is awaiting further briefing and updates from the parties, which have likely been filed over the weekend, and the Court has the sanctions motion under advisement. It occurs to me that CM might not be in a rush to decide the motion, for the reasons discussed on the bird site. So, looking at the list of outstanding items, I’m not actually sure that Monday will lead to any decisions, as I had sort of been anticipating in my back of the brain-napkin pseudo-thinking. Now that I put pixel to e-paper, I’m not sure there are actually any issues ripe for decision that haven’t been handled. But let’s double-check this. At the last hearing, we had the following outstanding items and their updated status:
RESOLVED — Defendants’ Fifth Discovery Motion re: several varied categories of outstanding discovery from Twitter (denied in part, mooted by agreement during the hearing, remainder denied thereafter in second opinion)
RESOLVED — Defendants’ Seventh Discovery Motion re: deposition of Mr. Falck, removal of allegedly improper redactions from Slack threads, and cure of alleged deficiencies in Twitter’s production of account data (mooted before hearing by agreement of the parties )
RESOLVED — HANDLED BY PARTIES (click for all the important details) — Defendants’ Rule 5.1 Challenge re: confidentiality redactions
DISCOVERY REQUEST STILL UNDER SEALED LETTERS — Defendants’ Verified Second Amended Counterclaims, Answer, and Affirmative Defenses and related discovery requested by Twitter (filed under seal, redacted version should be filed early this week) — cross letters filed on Thursday under seal regarding the additional discovery requested
PENDING LETTERS — Plaintiff’s Fifth Discovery Motion re: documents withheld by the Musk parties on privilege grounds from Morgan Stanley and a privilege log
WITH SPECIAL MASTER — Defendants’ Sixth Discovery Motion re: documents withheld by Twitter on privilege grounds (denied as to blanket waiver, other relief outstanding)
WITH SPECIAL MASTER — Plaintiff’s Sixth Discovery Motion re: Musk parties’ compliance with the Court’s previous order to produce analyses performed by data science analysts
STILL UNDER ADVISEMENT — Plaintiff’s Seventh Discovery Motion re: sanctions against the Musk parties for an allegedly deficient production of text and electronic messages
Given that it’s now October, and trial is in October, and that gives me a bit of agita, I put together a debrief on what we should expect from the schedule in the upcoming weeks and months. Enjoy!
September 29th:
It was a long and fast day, half of which I spent knocked out at the dentist, the other half of which I spent on Twitter tweeting about Twitter v. Musk. To be fair, that’s half of how I spend most days, so the only difference is that I don’t really recall the other half.
We got the copies of the parties presentations from oral argument, which Chancellor McCormick had requested:
Defendants’ Sixth Discovery Motion was happily mooted by … cooperation!
Then, things devolved into deep diving into the inner DMs of billionaries, and it got weird, fast.
As far as what was happening on the docket while we were all busy on social media, several things were going on:
Twitter’s Notice of Deposition of Timothy Dilworth as MUFG Bank, Ltd.’s 30(b)(6) deponent on Oct. 4 at 9:30 a.m. at Wachtell, Lipton, Rosen & Katz, in New York.
Twitter’s Notice of Deposition of Jeremy Hazan as Barclays Bank PLC’s 30(b)(6) deponent on Oct. 6 at 10:00 a.m. at Wachtell, Lipton, Rosen & Katz, in New York.
Cross letters from Musk and Twitter regarding supplemental discovery requested by Plaintiff in response to Defedants’ Second Motion for Leave to Amend
Notice of Service of Defendants’ Responses and Objections to Plaintiff’s Third Requests for Production of Documents
Then there was a flurry of redacted and public versions of exhibits that Chancellor McCormick must have instructed the parties to file, because they are not required (and had not previously been filed) by the rules. The vast majority of these were communications between counsel, near-fully redacted documents, or clips of depositions (again, mostly redacted) or interrogatory responses. The most interesting is detailed fully here:
The pdf can be downloaded from https://chancery.ink/textmsgs.
Tomorrow, we’ll take a look at a few other not-so-gossip-glam, but perhaps more case-specifically-interesting items to come out of my review of the additional documents disclosed. Stay tuned!
September 28th:
It was a fairly (relatively-speaking) quiet day on the Twitter v. Musk front today. Chancellor McCormick, obviously busy at work churning out several post-hearing opinions, requested copies of the parties’ power-point presentations from yesterday. Given an untimely appointment tomorrow on my part, I’m hoping this request means I will narrowly avoid missing out on the issuance of letter ops while sitting in the dentist chair, but if I do not: you have your marching orders.
On the docket, we saw a handful of items that are somewhat old news in the wake of the hearing, including:
Redacted version of Defendants’ response to Twitter’s Motion to Sanction Defendants for Failure to Produce Responsive Phone Messages (AKA for those of us who deeply prefer standardized referents as Defendants’ Seventh Discovery Motion)
Public version of Defendants’ response to Twitter, Inc.’s Motion to Compel Compliance with The Court’s Prior Discovery Order (AKA ffs as Defendants’ Sixth Discovery Motion)
Public version of Twitter’s Motion for Leave to Respond to Morgan Stanley Entities’ Sur-Reply (which sealed version the Court had previously denied without comment)
Twitter’s Notice of Deposition of Dan Brahmy via Zoom. The deposition will commence at 8:00 a.m. EST on September 30, 2022.
Musk’s Notice of Deposition of David Berger via Zoom. The deposition will commence at 10:00 a.m. ET on September 29, 2022.
Musk’s Notice of Deposition of Ned Segal at Wilson Sonsini Goodrich & Rosati, One Market Plaza, San Francisco, CA 94105. The deposition will commence at 9:00 a.m. PST on September 28, 2022.
Musk’s Notice (and Twitter’s Cross-Notice) of Deposition of Peiter Zatko at Quinn, Emanuel, Urquhart & Sullivan, LLP, 1300 I Street NW, Suite 900, Washington, DC 20005. The deposition will commence at 9:00 a.m. EST on September 29, 2022 and September 30, 2022.
Some details from yesterday’s notices of deposition on times & locations:
Damien Kieran at Wilson Sonsini Goodrich & Rosati, One Market Plaza, Spear Tower, Suite 3300, San Francisco, CA 94105. The deposition will commence at 1:00 p.m. PST on September 27, 2022.
Egon Durban at the offices of Silver Lake, 2775 Sand Hill Road #100, Menlo Park, California 94025. The deposition will commence at 9:30 a.m. PST on September 27, 2022.
Antonio Gracias via Zoom. The deposition will commence at 9:00 a.m. EST on September 27, 2022.
Bret Taylor at the offices of Wilson Sonsini Goodrich & Rosati, P.C., One Market Plaza, Spear Tower, Suite 3300, San Francisco, California 94105. The deposition will commence at 9:00 a.m. PST on September 27, 2022.
It’s likely we will see opinions on at least several matters from the hearing in the coming days, and—as usual—we will bring them to you in detail.
September 27th:
Wow, y’all. What a day. Another three-hour-plus marathon hearing that was an absolutely wild ride. It was like a slow burn for the first ninety minutes that ended in an abrupt dumpster fire when we were quickly shuffled out by authorities who continued to fight the fire out of sight. The entire saga is documented here.
Chancellor McCormick did make some minor rulings as to particular points in the beginning of the hearing, but although things started out at a good clip with rapid progress, time started to slow about an hour in, and the parties spent a lot of time relitigating their motion papers, or other minutiae of privilege issues, which at one point felt tragicomically like being back overseeing document review, but with a whole lot more people, and an accomplished jurist watching over the whole charade. The schedule soon fell to the wayside, and Musk was left with either seven or eleven minutes (depending on whose time keeper you believe) to argue the sanctions motion, which ended up going a bit overtime, and yet still revealing some damning additional evidence of Musk’s use of Signal despite a litigation hold being in place and having represented to the Court on perhaps several occasions under oath that he had not (or did not recall having) done so.
Several issues were left for the parties to submit additional briefing on, or to continue to work toward a good faith resolution on, and a couple of items were handled in due course by the Chancellor, but the major issues were only slightly honed aloud in the Court’s questioning, which never fails to put the finest of points on even the biggest of morasses.
It remains to be seen when we will hear decisions on the outstanding issues that did not warrant additional briefing or updates from the Court. The most watched-for will certainly be the sanctions motion for Musk’s use of ephemeral messaging services while under a litigation hold. Given the compression of all things time-based in this case, I would assume that a decision is forthcoming in rapid order to be counted in hours, if not days countable on a single appendage. A hand. On one hand.
While the parties were busy arguing their various discovery issues to the Court, members of the unflagging teams were busy filing new items into the docket, most of which were completely overlooked by gen pop on social media. Let’s see what we missed, from latest-filed to earliest.
Defendants’ Verified Second Amended Counterclaims, Answer, and Affirmative Defenses (filed under seal, which means we will—oh yay!—see the redacted version early next week)
Letter from Defendants Responding to Plaintiff’s September 27th Letter (confidential — this is most likely about the thing that the Chancellor took into private conference at the end of the call, which she referred to as “a personal health issue regarding one of the deponents in the case”)
Letter from Morgan Stanley in advance of the hearing (this is the letter discussed at the hearing wherein MS was upset about Twitter’s late-disclosed plan to use some confidential redacted documents in the hearing, which CM mooted by asking Twitter to just make the argument without reference to the contested documents, with which request Twitter complied)
Letter from Twitter concerning the deposition of Defendant Elon Musk (confidential—perhaps it wasn’t obvious that the text of the docket entry mentioned the party’s name, but I assume this is the letter that was raised on the call concerning the deposition of a witness, which discussion was taken offline at the end of the call)
Musk’s Notice of Deposition of Damien Kieran
Musk’s Lodging of Excerpts of Deposition Transcript of Sean Edgett (not raised at the hearing, as far as I heard, 10 pages lodged, under seal)
Twitter’s Lodging of Excerpts of Deposition Transcript of Jared Birchall (definitely raised at the hearing — 121 pages lodged, under seal)
Musk’s Notice of Deposition of Bret Taylor
Musk’s Notice of Deposition of Egon Durban
Musk’s Cross-Notice of Deposition of Antonio Gracias
Subpoena Ad Testificandum to Keyvon Beykpour
Re-Notice of Deposition of Elon Musk for October 6th and 7th, 9:30 a.m., Wilmington, DE at the offices of Potter, Anderson & Corroon
So … what can we deduce from the above activity? That Elon Musk may be trying to get out of sitting for deposition? That we are entering next-level crazytime? I think that’s undeniable.
September 26th:
Today was mostly a day of combatting misinformation about the rescheduling of Elon Musk’s and Parag Agrawal’s depositions, which were both scheduled for Monday. While many people jumped to conclusions about a possible settlement, the truth appears to be much more the standard reality of high-stakes litigation where every aspect is hard-fought. There’s little reason for Twitter to push Musk to be deposed in advance of the Court’s ruling on spoliation and other discovery issues to be discussed tomorrow, so it’s unsurprising to me that the dates were moved without too much fanfare.
A public statement ostensibly from Alex Spiro even implied that Musk’s deposition was never, in fact, confirmed for today in the first instance. This would comport with the way that notices of deposition are frequently used in litigation—as mere placeholders to be later negotiated into reality between opposing counsel.
The docket activity was highlighted by a letter from the Court discussing both the second motion to amend (as to Plaintiff’s requested discovery) and additional guidance from the Court on Defendants’ Seventh Discovery Motion.
Twitter’s reply to Morgan Stanley’s opposition to the motion to compel production was also served in public/redacted form, as was Morgan Stanley’s sur-reply. The Court will hear the motion at tomorrow’s omnibus hearing.
As discussed below, there are seven outstanding discovery disputes between the parties, in addition to Twitter’s motion to compel production from Morgan Stanley. Eight issues in total, three hours of hearing, ninety minutes per side. Given the time constraints, I question whether or not Chancellor McCormick will interject with any rulings of the Court. More than likely, she will put out her rulings shortly after the hearing with a day or so, even on the simple issues that she might otherwise simply provide her ruling during the course of the hearing.
We’ll bring you all the details via livetweetstorm here!
September 25th:
Friday was a wild day on the docket, due to the deadlines set by Chancellor McCormick for all outstanding briefing for issues to be heard on Tuesday at oral argument.
First, the docket was updated with three notices of deposition filed by Defendants on Thursday afternoon for the following day: Luke Simon (10:00 a.m. PST on September 23, 2022 via Zoom), Sean Edgett (9:00 a.m. PST on September 23, 2022 via Zoom) and on cross-notice, Brad Sheftel (9:00 a.m. CT on September 23, 2022 via Zoom).
Next was a flood of public, redacted versions of prior-filed briefing on issues that have already been decided by Chancellor McCormick, including:
Defendants’ Third Discovery Motion — compelling Twitter, Inc. to produce discovery from defendants' requested date range (denied initially, reargued and denied again)
Defendants’ Motion for Leave to Amend — original motion to amend counterclaims, answer, and affirmative defenses (granted)
Defendants’ Motion for Reargument — (denied)
Defendants’ Reply to Defendants’ Fourth Discovery Motion — compelling Twitter to produce Slack messages (granted-in-part, denied-in-part)
Subsequently, Twitter filed notice of deposition of Trevor Davis 9:30 a.m. on September 28, 2022 in Wilmington, DE.
Then, more public versions of letters previous filed during the week prior:
Defendants’ response to Plaintiff’s Sixth Discovery Motion re: Musk parties’ compliance with the Court’s previous order to produce analyses performed by data science analysts
Defendants’ response to Plaintiff’s Seventh Discovery Motion re: sanctions against the Musk parties for an allegedly deficient production of text and electronic messages
Defendants’ reply to Defendants’ Sixth Discovery Motion re: documents withheld by Twitter on privilege grounds
In the midst of these filings, the Court put out a letter decision addressing the Defendants’ Sixth Discovery Motion, denying the blanket privilege waiver requested, but other (presumably more tailored) relief to be discussed at Tuesday’s oral argument.
After the Court’s ruling, there were additional confidential filings made by the parties, pursuant to the Court’s order to complete any outstanding briefing before the close of business, including:
Defendants’ reply to Defendants’ Seventh Discovery Motion re: deposition of Mr. Falck, removal of allegedly improper redactions from Slack threads, and cure of alleged deficiencies in Twitter’s production of account data
Defendants’ reply to Defendants’ Motion for Leave to Amend Defendants’ Verified Amended Counterclaims, Answer, and Affirmative Defenses (motion to amend again, granted; potential related discovery to be discussed at oral argument on Tuesday)
As we know, Monday and Tuesday will be the deposition of Elon R. Musk in Wilmington, beginning each day at 9:30 a.m. Oddly, the notice of deposition to Alex Spiro was scheduled for today, Sunday, September 25, 2022, beginning at 9:30 a.m., also in Wilmington.
What remains for the Tuesday hearing is as follows:
Defendants’ Fifth Discovery Motion re: several varied categories of outstanding discovery from Twitter (denied in part, updates to be provided by the parties at Tuesday’s hearing)
Defendants’ Sixth Discovery Motion re: documents withheld by Twitter on privilege grounds (denied as to blanket waiver, other relief outstanding)
Defendants’ Seventh Discovery Motion re: deposition of Mr. Falck, removal of allegedly improper redactions from Slack threads, and cure of alleged deficiencies in Twitter’s production of account data
Defendants’ Rule 5.1 Challenge re: confidentiality redactions
Plaintiff’s Fifth Discovery Motion re: documents withheld by the Musk parties on privilege grounds from Morgan Stanley and a privilege log
Plaintiff’s Sixth Discovery Motion re: Musk parties’ compliance with the Court’s previous order to produce analyses performed by data science analysts
Plaintiff’s Seventh Discovery Motion re: sanctions against the Musk parties for an allegedly deficient production of text and electronic messages
The hearing on Tuesday will be at 1:30 p.m. Eastern, either via Zoom or in Wilmington, and there will be a public access line (perhaps the same one used repeatedly in previous hearings, but we do not have confirmation of that yet).
Of course, we will bring it to you via live-tweet on Twitter.
September 22nd:
This morning saw three letters from the Court arrive on the docket. First, an omnibus discovery dispute hearing has been set for Tuesday, September 27th at 1:30pm. Perhaps because Elon’s deposition is being held September 26th & 27th, the Chancellor provided the parties with the option to appear via Zoom for the argument. The second letter granted Musk’s second motion to amend defendants’ counterclaims to add the $7.75m payment to Peiter Zatko, and deferred decision on plaintiff’s corollary request for discovery into related issues, which will be argued at the hearing. The third letter opinion addressed one of Musk’s outstanding motions to compel additional document production from Twitter. The Court denied one aspect of the request, but focused mainly on delineating the contours of the dispute and specifying areas where presentation at the upcoming oral argument would be beneficial to the Court’s decision-making process.
In setting the omnibus discovery hearing, the Court detailed the outstanding discovery disputes (between the parties, excluding Twitter’s motion to compel production from Morgan Stanley) as follows:
Defendants’ Fifth Discovery Motion (fully briefed) re: several varied categories of outstanding discovery from Twitter
Defendants’ Sixth Discovery Motion (fully briefed) re: documents withheld by Twitter on privilege grounds
Defendants’ Seventh Discovery Motion (responsive brief due no later than 9/23) re: deposition of Mr. Falck, removal of allegedly improper redactions from Slack threads, and cure of alleged deficiencies in Twitter’s production of account data
Defendants’ Rule 5.1 Challenge (fully briefed) re: confidentiality redactions
Plaintiff’s Fifth Discovery Motion (fully briefed) re: documents withheld by the Musk parties on privilege grounds from Morgan Stanley and a privilege log
Plaintiff’s Sixth Discovery Motion (reply brief due no later than 9/23) re: Musk parties’ compliance with the Court’s previous order to produce analyses performed by data science analysts
Plaintiff’s Seventh Discovery Motion (reply brief due no later than 9/23) re: sanctions against the Musk parties for an allegedly deficient production of text and electronic messages
Tomorrow we will see the remaining briefs filed on these outstanding issues, as well as the likely filing of the second amended counterclaims, affirmative defenses, and answer by Musk. Despite the ongoing fracas regarding redactions, it will presumably be filed under seal (if history is any guide) and the parties will have five days to agree on redactions required and to file a public version, making it likely that we will see the specific contents of the consent allegations at the end of next week. We’ll be looking out! 👀
September 21st:
In some ways, it was a calm day from the outside looking in at this litigation. Chancellor McCormick put out a wordless denial of Twitter’s request to file a response to Morgan Stanley’s sur-reply (because sur-replies are already nary a bridge too far in this court, y’all ain’t get to respond again again iykwim).
Twitter also filed a document styled as “Plaintiff’s Response to Defendants’ Motion for Leave to Amend Their Pleadings Again” — which, well, you just have to give style points no matter what home team you err for, because that’s solidly accurate but also topped heartily with snark. Somehow, Twitter also managed to file (of course under seal ::shakes fist at the moon::) Exhibits A-M (that’s a lot of exhibits) to their Response on the motion to amend (again, sigh lol), and one wonders (or at least I do) what all the exhibited fuss could be about. Tragically, we’ll probably never entirely know.
Musk noticed up several depositions, including Marty Korman and many of the financial folks—you can check out all the lurid date, time and location details here, for absolutely no actual reason because no (believe me I would try) we’re not all generally invited. Defendants also sent a confidential subpoena to Mintz Group LLC and three subpoenas to various financial research groups that some people speculated were related to Ronan Farrow’s article on people seeking dirt on the whistleblower.
Twitter served their Third Requests for Production of Documents, which suggests to me that the internal deadlines that were changeable by the parties without leave of court have—in fact—been changed by the parties without leave of court, because otherwise, what exactly are you doing serving discovery this far after the close of fact discovery? It’s a rhetorical question. The answer is that you aren’t, if you haven’t changed those dates. You also aren’t still well in the midst of a handful of discovery disputes, in the normal case, past the close of fact discovery. But as well know, this case is normal in exactly zero respects.
TCD did its first tiny, little, informal Reddit AMA, and the Techdirt podcast recording was released. You can find it here: https://chancery.ink/techdirt. Also, if you haven’t checked out the: “Hey, welcome to Substack!” post, please make sure you check it out. If you’re on LinkedIn (is that still a thing?), please like or share or do whatever it is that one does to posts over there, please and so much thank you.
September 20th:
Yesterday after the daily update was posted, Chancellor McCormick issued a ruling on the second motion for reargument that Musk’s team has filed. The motion was denied.
There was a decent amount of docket activity today, but nothing earth shattering as far as we can see, and a couple of potentially interesting things that we can peek at through a glass darkly.
There are currently a somewhat unwieldy number of outstanding discovery disputes, given that there are now less than four weeks to trial (!). I assume we are heading for another omnibus motion hearing, perhaps yet this week. Of course, we will cover it live on the bird site.
I sat down with Mike Masnick from Techdirt today, and our convo will be released on his podcast tomorrow.
Jack Dorsey’s deposition was noticed for today, to be held via Zoom. Unfortunately, a deposition notice is not the be-all, end-all, say-all of the fact of when a deposition actually happens (but don’t tell the news outlets, who report the notice as an absolute fact). Since the notice was served so close to the date, however, we can reasonably assume that it represents the actual date that the deposition was set to happen. Also unfortunately, unlike the court hearings, we don’t get any immediate access into the content of the deposition. It’s possible that depositions that have testimony designated for trial will be put into the public record closer to pre-trial, but even there, no guarantees. So, absent some unlikely leaks from the parties, we don’t, won’t, and can’t have great insight into what goes down in these deposition.
If you want to have some intelligent conversation about the actual mDAU debate, come check out what’s really at issue here.
That’s all for Tuesday.
September 19th:
There is a lot going on in the case today, including this morning’s hearing in the Luigi Crispo v. Elon Musk related case.
Here’s what we have from the docket in the main case:
Redacted version of Defendants’ Motion for Leave to Amend Defendants’ Verified Amended Counterclaims, Answer, and Affirmative Defenses
Twitter third-party subpoena to Stripe, Inc.
J.P. Morgan Securities and Goldman Sachs putting appearances in the record, likely to fight about third-party discovery
Public version of Twitter’s motion to compel production of documents by Morgan Stanley entities (and Twitter’s reply to MS response, but still under seal)
New discovery dispute letter from Musk to Court, asking the court to compel Twitter to produce Bruce Falck for deposition
New discovery dispute letter from Twitter to Court, asking the court to compel compliance with the Court’s Prior Discovery Order (unclear which, under seal)
New discovery dispute letter from Twitter to Court regarding Twitter’s motion for sanctions on Defendants for failure to produce responsive phone messages (under seal, ostensibly arguing they found something in the follow-up discovery, or that they simply did not receive it—could be tied to the above)
Responsive discovery dispute letter from Twitter re: Musk’s Motion Challenging Plaintiff’s Privilege Log (under seal)
Morgan Stanley’s motion for leave to submit a surreply in response to Twitter’s reply in support of its motion to compel third-party discovery from MS
September 17th:
the next big task I’m undertaking is to clarify the claims at issue in this case, and what the burden of proof and evidentiary standard is for each. because there is too much messy thinking out there y’all, and I can’t take it anymore.
I am summarizing the complaint and the counterclaims, and we are going to have logical conversations and argue from legal principles if it kills us, and I’m not saying it won’t lol.
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September 15th:
Chancellor McCormick has set a hearing for the pending motion to dismiss in the Luigi Crispo v. Elon Musk case.
Monday, September 19th at 11:00am Eastern
I will be live-tweeting it, because of course I will.
I'm using the edit function to add updates to this post but I don't know if that's a thing that's going to work. Is anyone seeing them? Is it reasonable to expect people to check for them? It seems like pinging people every time I want to add a small update is not a good alternative, so, looking for creative solutions. 🥹
So flipping good. We live in a stupid era. Lots of fuzzy thinking and writing. Yet on Twitter v Musk we're getting an embarrassment of riches when it comes to clear thinking and clear writing. Right from the top: Chancellor McCormick is killing it. Whether Twitter or Musk is winning, McCormick is the runaway winner of this case so far. SCOTUS material.
Then Prof. Ann Lipton and Chancery Daily (hard to mention one without the other as they often play off of each other on Twitter) follow up with more lucidity. Such high quality -- and fun -- surrounded by so so much of the opposite. Thanks and keep up the good work! We might as well get this stuff right because legal scholars will be discussing these twists and turns decades from now.