### 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 October 3 , 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 is yet another letter addressing disputes concerning the Second Motion for
L eave to Amend Defendants’ Verified Counterclaims, Answer, and Affirmative Defenses (the “Second Motion to Amend”) filed by Defendants Elon R. Musk, X Holdings I, Inc. and X Holdings II, Inc. ( col lectively, “Defendants”) on September 9 , 2022

. 1

I n response to the Second M otion to A mend (which I granted on September 22 ) 2 , Plaintiff Twitter Inc. (“Plaintiff”) moved for supplemental discovery concerning the

1 C.A. No. 2022

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- KSJM , Docket (“Dkt.”) 440

. 2 Dkt. 580.C.A. No. 2 0 22

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- KSJM October 3 , 202 2 Page 2 of 6
amendment s. 3 I granted this request during oral argument on September 27 , then entered
Defendants’ form of order r egarding s upplemental d iscovery on September 30

. 4 Later that day, the parties filed dueling let ters proposing search protocols concerning the supplemental discovery

. 5
The supplemental discovery relates to potential communications between Defendants (or Defendants’ attorneys) and Peiter Zatko. The parties dispute centers on the search protocol governing De fen dants ’ supplementa l production , namely : (i) document

type, (ii) custodian s, and (iii) search terms.
Defendants propose to limit their search to (i) emails , (ii) in the files of Plaintiff’s proposed list of Quinn Emanuel and Skadden custodians, as well as Musk and Birchall , (iii) captured by any one of three search terms: Zatko*, Mudge*, and peiterz@gmail.com. 6
Plaintiff pr o poses that Defendants search (i) other forms of electronically stored information (“ESI”), including texts and instant messages, as well as all hard copy
doc uments , (ii) in the files of those custodians listed by Defendants as well as “[a]ll other

3 Dkt. 566.
4 Dkt. 662.
5 Dkt. 671 (“Pl

. ’s Proposed Search Protocol” ); Dkt. 672, 673 (“Defs.’ Proposed Search Protocol” )

. Defendants then submitted an additional letter responding to Plaintiff’s proposal. Dkt. 675 (“Defs.’ Reply Letter”). Plaintiff moved to strike the reply bec ause the parties’ scheduling order, which Defendants drafted, did not contemplate a right to reply. because I rule largely for Plaintiff even considering the substance of Defendants’ reply, I do not resolve this dispute.
6 Defs.’ Proposed Search Protocol, Ex s . A , B

.C.A. No. 2 0 22

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- KSJM October 3 , 202 2 Page 3 of 6 attorneys for defendants involved in communications related to Zatko , ” (iii) captured by a much longer list of search terms

. 7 Plaintiff argues that its broader prop osal is necessary to investigate an unusual May 6 email produced from the files of Quinn Emanuel. 8 The email was sent from an

anonymous account hosted by protonmail.com (a popular encrypted email provider) to Quinn Emanuel attorney Alex Spiro and purports to be from “a former Exec at Twitter leading teams directly involving Trust & Safety/Content Moderation.” 9 The author offers Musk information on Twitter and suggests communicating “via alternate secure means.” 10 Several of Plaintiff’s proposed search terms arise fro m this specific email. 11 The email’s suggestion to use “alternate secure means” to communicate also supports Plaintiff’s request
for a search of non

- email ESI. Defendants have two main objections to Plaintiff’s proposal: relevance and burden. Defendants argue that they have already confirmed in their interrogatory answer s that neither they nor their attorneys have had contact with Zatko or his representatives. 12
Defendants observe that Zatko stated under oath during his deposition that he had not

7 Pl.’s Proposed Search Protocol , Ex. A at 1

– 2.
8 Pl.’s Proposed Search Protocol at 6; see i d. , Ex. J (the email in question).
9 Id.
10 Id.
11 Pl.’s Proposed Search Protocol , Ex. A at 2.
12 Defs.’ Proposed Search Protocol at 2.C.A. No. 2 0 22

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- KSJM October 3 , 202 2 Page 4 of 6 communicated with Defendants or their lawyers, including Spiro. 13 Defendants also state in their reply letter that “there was only one hit for the [anonymous May 6 sen der’s] email address in the Quinn Emanuel files and there is no evidence that it was sent to anyone.” 14 Defendants argue that these statements foreclose the possibility that Zatko sent the May 6 email, rendering much of Plaintiff’s discovery irrelevant. I disagree. Defendants’ interrogatory answers do not obviate the need for Plaintiff to test those answers through document discovery ; if they did, document discovery would rarely be permitted . Zatko’s testimony, while sworn, is not susceptible to a cred ibility assessment at this stage and is therefore not dispositive. Moreover, Defendants’ statements concerning the May 6 email raise more questions . For example, Defendants do not state whether anyone replied to the May 6 email or took any steps (success ful or otherwise) to determine the sender’s identity. The timing and the contents of the May 6 email render it at least plausible that Zatko was the author . G iven Defendants’ reliance on Zatko’s allegations , Plaintiff is entitled to in vestigate the possibility of communications between
Zatko and Defendants.
Defendant s also argue that Plaintiff’s proposal would be immensely burdensome. Given the abbreviated timeframe of the dispute, Defendants d id not provide full hit counts
to substant iate their claim. They state d that an initial search of Quinn Emanuel’s emails

13 Defs.’ Proposed Search Protocol at 2 ; id. , Ex. C.
14 Defs.’ Reply Letter at 3; Defs.’ Proposed Search Protocol , Ex. E at 8

– 9.C.A. No. 2 0 22

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- KSJM October 3 , 202 2 Page 5 of 6 based on Twitter’s requested search terms generated over 10,000 hits. 15 Plaintiff’s list of search terms does appear to be overbroad. For example, the search term “*Protect” generates over 7,500 hits in the Quinn Emanuel document set, most of which are presumably unrelated to Zatko. 16 At the same time, Defendants three proposed terms are inadequate to the task. A ny initial discussion of the May 6 email would not be captured under Defendants’ proposal because the sender’s identity was not known

. To reduce Defendants’ burden, a middle ground seems appropriate. T he parties agree on the list of named custodians; however, Plaintiff’s proposal also seeks discovery
from “a ll other attorneys for defendants involved in communications related to Zatko .” 17 Plaintiff’s request concerning custodians makes sense in theory, but in practice it would require time

- consuming search es for many attorneys with minimal or no in volvement in the matter at issue. Defendants proposed custodian list is accepted, with the proviso that
Plaintiff is not foreclosed from requesting discovery of further custodians if Defendants’ production demonstrates that this is necessary.
Plaint iff’s request for discovery beyond emails is reasonable, particularly given the May 6 email’s invitation to communicate “ via alternate secure means .” Plaintiff’s request for the discovery protocol to encompass non

- email ESI is granted , as is Plaintiff’s d emand
for hard

- copy files.

15 Defs.’ Proposed Search Protocol at 3 n.2.
16 Defs.’ Proposed Search Protocol, Ex. E at 8

– 9.
17 Pl.’s Proposed Search Protocol , Ex. A at 1.C.A. No. 2 0 22

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- KSJM October 3 , 202 2 Page 6 of 6 As discussed above, Plaintiff’s search terms are likely overinclusive. Plaintiff previously agreed to remove certain terms from its proposed list after hit reports revealed that they were generating large numbers of false positives. 18 This is an appropriate approach. Defendants shall provide the hit reports and Plaintiff shall limit its search terms
to no more than 15

. The parties shall finalize a search protocol based on this order no later than 5 p.m. on Tuesday , October 4. Defendants should complete their supplemental production no later than 5 p.m. on Friday, October 7. Finally, Spiro is directed to prepare and file , by no later than 4:30 p.m. on Wednesday, October 5, an affidavit describing any actions he too k with respect to the May
6 email. To the extent that this affidavit must include information that is subject to a privilege claim, it may be submitted for my initial review in camera , with a redacted copy filed and provided to Plaintiff

. IT IS SO ORD ERED. Sincerely,
/s/ Kathaleen St. Jude McCormick
Kathaleen St. Jude McCormick Chancellor

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

18 Pl.’s Proposed Search Protocol at 7.