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

October 3, 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 is yet another letter addressing disputes concerning the Second Motion for 

Leave 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. (collectively, “Defendants”) on September 9, 2022.

1

 

In response to the Second Motion to Amend (which I granted on September 22)2,

Plaintiff Twitter Inc. (“Plaintiff”) moved for supplemental discovery concerning the 

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

2 Dkt. 580.
C.A. No. 2022-0613-KSJM

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amendments.3 I granted this request during oral argument on September 27, then entered 

Defendants’ form of order regarding supplemental discovery on September 30.

4

 Later that 

day, the parties filed dueling letters 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 Defendants’ supplemental production, namely: (i) documenttype, (ii) custodians, 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 proposes that Defendants search (i) other forms of electronically stored 

information (“ESI”), including texts and instant messages, as well as all hard copy 

documents, (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 because 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, Exs. A, B.
C.A. No. 2022-0613-KSJM

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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 proposal 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 from 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 answers 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 id., 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. 2022-0613-KSJM

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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 sender’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 credibility 

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 (successful 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. Given Defendants’ reliance on Zatko’s 

allegations, Plaintiff is entitled to investigate the possibility of communications between 

Zatko and Defendants.

Defendants also argue that Plaintiff’s proposal would be immensely burdensome. 

Given the abbreviated timeframe of the dispute, Defendants did not provide full hit counts 

to substantiate their claim. They stated 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. 2022-0613-KSJM

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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. Any 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. The parties 

agree on the list of named custodians; however, Plaintiff’s proposal also seeks discovery 

from “all 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 searches for many attorneys with minimal or no involvement 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. 

Plaintiff’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 demand 

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. 2022-0613-KSJM

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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 took 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 ORDERED.

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.