Judge slams Musk for withholding text messages, cites ‘glaring’ omissions

Delaware Chancery Court Judge Kathaleen McCormick yesterday slammed Elon Musk for not providing the text messages Twitter wanted. McCormick cited “glaring deficiencies” in the production of documents on Musk’s side in an order partially granting Twitter’s request for more documents, writing:

Plaintiff’s Fourth Discovery Motion identifies obvious deficiencies in Defendants’ filings. Third parties produced text messages with Musk that Musk himself did not produce, and Musk’s own production of text messages revealed glaring flaws. As an example, the defendants produced two texts sent to Musk by Robert Steel of Parella Weinberg Partners on June 17 at 9:57 a.m. and 10:15 a.m. The 9:57 a.m. text poses a question. The 10:15 a.m. text saying “Okay. Got it…” implies Musk replied. Assuming Musk’s response was not telepathic, one would expect to see proof of that in the defendants’ filing. But the defendants did not provide any before the deadline for substantial completion of the discovery of the documents.

McCormick further wrote that “Musk’s approach to responding to questioning also left much to be desired.” After being ordered “to respond to questioning that required the defendants to identify persons with knowledge of the relevant facts,” Musk’s side “completed their responses on August 26, but they did a poor job, identifying only ‘a handful of people that Twitter already knew about. Musk then supplemented that by identifying 491 “people with knowledge,” but could have provided that information “much sooner,” the judge wrote.

“Defendants have now remedied many of the deficiencies that Plaintiff complained about in its fourth discovery motion. They accuse Plaintiff of jumping the gun and seeking sanctions prematurely, but I don’t see it that way. I can understand why the applicant needs relief The applicant was born[e] most of the burden of discovery.”

Twitter had to provide an expensive “‘historical snapshot’ which was the subject of defendants’ second discovery motion” and “documents from 42 custodians”, while Musk’s party “agreed to produce from only two custodians,” she wrote. “Defendants had less to do but still failed to meet their obligations. Defendants’ prior shortcomings have caused the plaintiff to wonder if there are other shortcomings and to become embroiled in third-party discovery.”

A Twitter filing on August 30 said, “As of last night’s Substantial Completion Deadline, Twitter had produced over 41,000 documents; defendants less than 2,100.” Twitter said it also “reviewed over 210,000 documents”, more than four times as many as the defendants.

Judge to Musk: There’s no time for ‘just joking’

McCormick made that decision and another after 5 p.m. ET yesterday. The other decision, resolving a motion by Musk to compel production of Slack messages to other people, also criticized the billionaire who was trying to back out of a deal to buy Twitter.

“Defendants gave plaintiff the impression they were looking for limited Slack custodians, only to then say they never wanted them. In this very fast-paced case, there’s no time for ‘just kidding’ The parties must be able to rely on each other’s good faith submissions for the discovery process to work,” McCormick wrote.

McCormick described a “tedious” back-and-forth between the parties’ lawyers in which Musk’s party initially requested Slack messages from all 42 Twitter custodians. The correspondence “confirms the Plaintiff’s account that the Defendants effectively dropped their original claim for 42 guardians in favor of a claim [for documents from] only eight,” she wrote. But Musk then “changed tack and demanded that the plaintiff produce Slack messages from all 42 custodians.”

“Even if defendants’ representations were involuntary, defendants cannot be permitted to re-negotiate now,” McCormick wrote.