### 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 2 6 , 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 & Flom LLP 9 20 N. King Street, 7th Floor Wilmington, DE 198 99

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

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- KSJM
Dear Counsel:
This letter further addresses the Second Motion for L eave 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

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- KSJM , Docket (“Dkt.”) 440

. 2 Dkt. 566 (“ Opposition ”)

.C.A. No. 2 0 22

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- KSJM September 2 6 , 202 2 Page 2 of 4 employee and whistleblower P eiter Z atko

. 3 Defendants filed a r eply 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 objec tions 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 Pl aintiff, 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 exclu sion 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; Defenda nts 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; i d. Ex. A at 1, 4.C.A. No. 2 0 22

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- KSJM September 2 6 , 202 2 Page 3 of 4
Another possibility is that Defendants prepare a category log for th e group of Zatko
documents it objects to producing . As the Guidelines explain :
I t may be possible for parties to agree to log certain types of docum ents 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

- ho use 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 sub ject 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. Ther e 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. 2 0 22

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- KSJM September 2 6 , 202 2 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 )