COURT OF CHANCERY

OF THE

STATE OF DELAWARE

KATHALEEN ST. JUDE MCCORMICK

CHANCELLOR

LEONARD L. WILLIAMS JUSTICE CENTER

500 N. KING STREET, SUITE 11400

WILMINGTON, DELAWARE 19801-3734

September 7, 2022

Peter J. Walsh, Jr., Esquire

Kevin R. Shannon, Esquire

Christopher N. Kelly, Esquire

Mathew A. Golden, Esquire

Callan R. Jackson, Esquire

Potter Anderson & Corroon LLP

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

Edward B. Micheletti, Esquire

Lauren N. Rosenello, Esquire

Skadden, Arps, Slate, Meagher & Flom LLP

920 N. King Street, 7th Floor

P.O. Box 636

Wilmington, DE 19899-0636

Re: Twitter, Inc. v. Elon R. Musk et al.,

C.A. No. 2022-0613-KSJM

Dear Counsel:

This letter decision resolves the Motion to Compel Production of Slack Messages 

filed by Defendants Elon R. Musk, X Holdings I, Inc., and X Holdings II, Inc. 

(“Defendants”) on August 27, 2022, which I refer to as Defendants’ “Fourth Discovery 

Motion.”1 Plaintiff Twitter, Inc. (“Plaintiff”) filed its opposition on August 30, 2022.

2

Defendants filed their reply on September 2, 2022.

3 I heard oral argument on September 

1 C.A. No. 2022-0613-KSJM, Docket (“Dkt.”) 264 (“Defs.’ Fourth Disc. Mot.”).

2 Dkt. 319 (“Opposition”).

3 Dkt. 383.
C.A. No. 2022-0613-KSJM

September 7, 2022

Page 2 of 5

6, 2022.4 I assume that the reader is familiar with the background of this dispute, so I will 

skip to a discussion of the issues raised by Defendants’ Fourth Discovery Motion.

Plaintiff’s custodians used Slack for relevant communications, and Plaintiff has 

agreed to produce responsive Slack messages from six of their 42 custodians.5 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 Defendants’ prior representations, the correspondence between counsel 

attached to the parties’ motions bears out Plaintiff’s account that Defendants effectively 

abandoned their initial demand of 42 custodians in favor of a request only eight. The backand-forth between counsel is tedious, but I recount it here for completeness.

4 Dkt. 412.

5 Opposition at 18.
C.A. No. 2022-0613-KSJM

September 7, 2022

Page 3 of 5

Following Plaintiff’s August 5 offer to provide text messages from three 

custodians,6 Defendants countered on August 16 with a list of 42 “Messaging Platform 

Custodians.”7 Defendants’ proposal “govern[ed] the review of any messages sent or 

received by Plaintiff’s document custodians on any messaging device and/or messaging 

platform” used by each of the Messaging Platform Custodians and identified “Slack” as a 

“Messaging Platform.”8

Plaintiff rejected the counterproposal,9 and Defendants responded with a new 

proposal on August 18.10 Defendants’ counsel stated that their new proposal “limits the 

number of Messaging Platform Custodians,”11 and the proposal did indeed trim the initial 

list of 42 individuals down to eight.12 The August 18 proposal also preserved the 

“Messaging Platform Custodians” language from Defendants’ August 16 proposal, 

including the specific reference to Slack as a “Messaging Platform.”13

6 Opposition, Ex. 2 at 2.

7 Opposition, Ex. 4 at 26.

8 Id.

9 Opposition, Ex. 5 at 1–2.

10 Opposition, Ex. 6 at 29.

11 Id. at 2.

12 Id. at 29.

13 Id.
C.A. No. 2022-0613-KSJM

September 7, 2022

Page 4 of 5

In response to the August 18 proposal, Plaintiff countered with an offer of six 

custodians,14 and Defendants responded again by demanding eight.15 Both of these 

proposals included the same language explicitly including Slack in the Messaging 

Platforms at issue.16 On August 23, Defendants changed tack and demanded that Plaintiff 

produce Slack messages from all 42 custodians.17

Defendants argue that they always wanted 42 Slack custodians. They contend that 

Plaintiff represented that Plaintiff was collecting and reviewing Slack messages from a 

broader set of custodians, and that was true early in the process. But Plaintiff’s 

representations came before Defendants proposed and negotiated a protocol for Messaging 

Platform Custodians demanding a far narrower set of Slack custodians. Defendants’ 

explanation for those later communications was that they “inadvertently failed to remove”

the language.18

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 

14 Opposition, Ex. 7 at 32.

15 Opposition, Ex. 8 at 34.

16 Opposition, Ex. 7 at 32; Opposition, Ex. 8 at 34.

17 Opposition, Ex. 9 at 1.

18 Opposition, Ex. 11 at 1.
C.A. No. 2022-0613-KSJM

September 7, 2022

Page 5 of 5

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.

Plaintiff is ordered to produce Slack messages from the two additional custodians 

proposed by Defendants: Egon Durban and Vijaya Gadde. This production may be 

provided pursuant to an agreement between the parties in line with this court’s “quick 

peek” proposal made prior to oral argument.19 Alternatively, Plaintiff may review the 

messages and provide responsive documents to Defendants. The parties are to meet and 

confer as to the manner of production and any related issues raised by this ruling.

IT IS SO ORDERED.

Sincerely,

/s/ Kathaleen St. Jude McCormick

Kathaleen St. Jude McCormick

Chancellor

cc: All counsel of record (by File & ServeXpress)

19 Dkt. 379.