### COURT OF CHANCERY OF THE STATE OF DELAWARE K

ATHALEEN S T

. J UDE M C C ORMICK C HANCELLOR L EONARD L. W ILLIAMS J USTICE C ENTER 500 N. K ING S TREET , S UITE 11400 W ILMINGTON , D ELAWARE 19801

- 3734 September 7 , 202 2 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 W ilmington, DE 1980 1 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 & F lom LLP 9 20 N. King Street, 7th Floor P.O. Box 636 Wilmington, DE 198 99

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Re: Twitter, Inc. v. Elon R. Musk et al. , C.A. No. 20 22

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- 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

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- KSJM , Docket (“Dkt.”) 264 (“ Defs.’ Fourth Disc. Mot. ”).
2 Dkt. 319 (“ Opposition ”).
3 Dkt. 383.C.A. No. 2 0 22

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- KSJM September 7 , 202 2 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 use d Slack for rel evant 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 arg ues that this further production would be unduly
burde nsome . 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 imp ose a large additional discovery burden on Plaintiff at this stage in litigation.
As to Defendants’ prior representation s , the correspondence between counsel attached to the parties’ motions bears out Plaintiff’s account that Defendants effectively
abandon ed their initial demand of 42 custodians in favor of a request only eight. The back

and

- forth between counsel is tedious , but I recount it here for completeness.

4 Dkt. 412

. 5 Opposition at 18.C.A. No. 2 0 22

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- KSJM September 7 , 202 2 Page 3 of 5 Following Plaintiff’s August 5 offer to provide text messages from three

c ustodians, 6 Defend ants 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 eac h of the Messaging Platform Custodians and identified “ Slack ” as a “Messaging Platform.” 8

Plaintiff rejected th e 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. 2 0 22

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- KSJM September 7 , 202 2 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 O n August 23 , Defendants changed tack and demanded th at Plaintiff produce Slack messages from all 42 custodians. 17
Defendants argue that the y always wanted 42 Slack custodians. They conten d that
Plaintiff represented that Plaintiff was collecting and reviewing Slack messages from a
broader set of custodian s , 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 lat er 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, p arties should be able to offer compromise positions without prejudicing their right to move for the full scope of relief to which they are entitled. Th at 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. 2 0 22

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- KSJM September 7 , 202 2 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, t he re is no time for “ just kiddings. ” P arties must be able to rely upon one ano ther’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, Plainti ff 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
Katha leen St. Jude McCormick Chancellor

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

19 Dkt. 379.