Cutting Slack And No Time For “Just Kidding”

Today’s bon mots from the Delaware Court of Chancery in a Twitter v. Musk discovery dispute

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 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.

At issue

Plaintiff’s custodians used Slack for relevant communications, and Plaintiff has agreed to produce responsive Slack messages from six of their 42 custodians.  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 Twitter’s discovery requests

Plaintiff’s Fourth Discovery Motion identifies clear deficiencies in Defendants’ document production. Third parties produced text messages with Musk that Musk himself did not produce, and Musk’s own production of text messages revealed glaring deficiencies. As just one example, Defendants produced two texts sent to Musk from 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 asks a question. The 10:15 a.m. text—stating “Ok. Got it. . . .”—implies that Musk responded. Assuming that Musk’s response was not telepathic, one would
expect some evidence of it in Defendants’ document production. But Defendants provided none by the deadline for substantially completing document discovery.

Defendants’ approach to answering interrogatories also left much to be desired.

(Mike Frisch)