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 26, 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

Wilmington, DE 19899

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

C.A. No. 2022-0613-KSJM

Dear Counsel:

This letter further addresses the Second Motion for Leave to Amend Defendants’ 

Verified Counterclaims, Answer, and Affirmative Defenses filed by Defendants Elon R. 

Musk, X Holdings I, Inc. and X Holdings II, Inc. (collectively, “Defendants”) on 

September 9, 2022.1 Plaintiff Twitter, Inc. filed its opposition on September 21, 2022.

2 I 

granted Defendants leave to amend on September 22, 2022, but left open Plaintiff’s request 

for discovery relating to the subject matter of the amendment, concerning former Twitter 

1 C.A. No. 2022-0613-KSJM, Docket (“Dkt.”) 440.

2 Dkt. 566 (“Opposition”).
C.A. No. 2022-0613-KSJM

September 26, 2022

Page 2 of 4

employee and whistleblower Peiter Zatko.

3

 Defendants filed a reply in further support of 

their Second Motion to Amend on September 23.

4

 I assume that the reader is familiar with 

the background of this dispute, so I will skip to the facts germane to the motion at issue.

I have reviewed Defendants’ reply in further support of their Second Motion to 

Amend, which moots most of the discovery issues that I had identified in my prior letter.5 

As I understand it, Defendants maintain their objections to Plaintiff’s Zatko-targeted 

discovery to the extent it requires Defendants to produce or log documents related to Zatko

but not related to Zatko’s whistleblower complaint.

6

 Defendants requested Zatko as a 

document custodian in initial lists to Plaintiff, and Plaintiff’s request would sweep in 

communications on that issue.7 These communications do not seem to be what Plaintiff is 

seeking. At the same time, Plaintiff is concerned that excluding this category of documents 

might result in the exclusion of the types of documents concerning Zatko that Plaintiff is, 

in fact, seeking.8 As a compromise, Plaintiff has suggested mitigating the burden on 

Defendants by accepting a metadata-only privilege log for communications solely among 

counsel; Defendants have rejected this suggestion.9 

3 Dkt. 580.

4 Dkt. 596 (“Reply”).

5 Reply at 2.

6 Id. at 2–3.

7 Id. at 3.

8 Opposition at 12–13.

9 Opposition at 11; id. Ex. A at 1, 4.
C.A. No. 2022-0613-KSJM

September 26, 2022

Page 3 of 4

Another possibility is that Defendants prepare a category log for the group of Zatko 

documents it objects to producing. As the Guidelines explain:

It may be possible for parties to agree to log certain types of 

documents by category instead of on a document-by-document 

basis. Categories of documents that might warrant such 

treatment include internal communications between lawyer 

and client regarding drafts of an agreement, or internal 

communications solely among in-house counsel about a 

transaction at issue.10

It bears noting that, as a general matter, where the parties have not agreed in advance to 

prepare category logs as an alternative to traditional logs, a party relying on a category log 

risks waiver of privilege.11 But where the court has ordered it, that risk is eliminated. The 

benefit of category logs is that it reduces the burden to the producing party while assuring 

the requesting party that an attorney has reviewed each document and attested, as an officer 

of the court, to its privilege and that it falls within the excepted category subject to the 

minimized logging protocol. This sort of arrangement would allay my concerns. As is 

typical, I would ask a senior Delaware attorney on the team to spearhead and certify the 

effort.

10 Guidelines § II.7.c.iv.B at 18.

11 See, e.g., Klig v. Deloitte LLP, C.A. No. 4993-VCL, at 3–4 (Aug. 6, 2010) 

(TRANSCRIPT) (“The listing of categories is not sufficient. There may be situations 

where a specified category of documents makes sense to list on a log, particularly if you 

talk to the other side and explain that, and it is particularized and is of a type that somebody 

can look at and address it.”).
C.A. No. 2022-0613-KSJM

September 26, 2022

Page 4 of 4

The parties shall present argument on the scope of additional discovery and their 

positions on the two proposed privilege log alternatives during the September 27, 2022 

hearing.

IT IS SO ORDERED.

Sincerely,

/s/ Kathaleen St. Jude McCormick

Kathaleen St. Jude McCormick

Chancellor

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