IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

TWITTER, INC.,

Plaintiff,

v.

ELON R. MUSK, X HOLDINGS I, 

INC., and X HOLDINGS II, INC.,

Defendants.

)

) 

)

)

)

)

)

)

)

)

C.A. No. 2022-0613-KSJM

ORDER APPOINTING SPECIAL DISCOVERY MASTER TO CONSIDER 

PLAINTIFF’S AND DEFENDANTS’ DISCOVERY MOTIONS

1. Plaintiff Twitter, Inc. (“Plaintiff”) and Defendants Elon R. Musk, X Holdings 

I, Inc., and X Holdings II, Inc. (collectively, “Defendants”) have each filed discovery 

motions challenging the other side’s assertion of privilege over discovery materials. 

Defendant’s Sixth Discovery Motion seeks to compel the production of documents over 

which Plaintiff asserted the attorney-client privilege.

1 Plaintiff’s Sixth Discovery Motion 

seeks to compel the production of documents over which Defendants asserted work product 

protection.

2 These two motions are collectively referred to as the “Discovery Motions.”

2. The Honorable Christopher Sontchi of Delaware ADR, LLC is hereby 

appointed special discovery master (the “Special Discovery Master”) with the charge of 

1 C.A. No. 2022-0613-KSJM, Docket (“Dkt.”) 468 (Defendants Sixth Discovery Motion); 

see also Dkt. 533 (Plaintiff’s Opposition to Defendants Sixth Discovery Motion).

2 Dkt. 531 (Plaintiff’s Sixth Discovery Motion); see also Dkt. 576 (Defendants’ Opposition 

to Plaintiff’s Sixth Discovery Motion).
2

reviewing the Discovery Motions, and facilitating a resolution or making a 

recommendation in the form of a report as to their resolution.

3. The Special Discovery Master shall file in this court a written acceptance of 

this appointment, and the appointment shall be effective upon the filing of the acceptance. 

The Special Discovery Master shall serve at the pleasure of the court, and the provisions

of this order shall remain in effect pending further order of the court.

4. The Special Discovery Master has all powers and authority necessary to 

fulfill the charge set forth in this order. Included within this grant of authority are the 

powers to communicate with the parties jointly or separately, require the parties to provide 

information, and consult with the court without the participation of the parties.

5. With respect to Defendants’ Sixth Discovery Motion, the Special Discovery 

Master will review in camera a sample of redacted or withheld documents selected by 

Defendants. 

a. The number of documents in that sample shall be 200, unless the 

Special Discovery Master establishes a different scope of in camera inspection.

b. The black letter law governing the Special Discovery Master’s review 

is uncontroversial. Under Delaware law, “the attorney/client privilege ‘protects the 

communications between a client and an attorney acting in his professional capacity 

where the communications are intended to be confidential, and the confidentiality 

is not waived.’”

3

 “The privilege may be paraphrased as extending to a (1) 

3 Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992) (quoting Riggs Nat. Bank of Washington, 

D.C. v. Zimmer, 355 A.2d 709, 713 (Del.Ch. 1976)).
3

communication, (2) which is confidential, (3) which was for the purpose of 

facilitating the rendition of professional legal services to the client, (4) between the 

client and his attorney.”

4

 

c. The privilege applies fully to corporate clients, and extends to 

communications between the attorney and the agents or employees of the 

corporation so long as the other elements of the test are met.5 

d. The party asserting attorney-client privilege bears the burden of 

proving that the privilege applies to a particular communication.6 

6. With respect to Plaintiff’s Sixth Discovery Motion, the Special Discovery 

Master will review in camera a sample of redacted or withheld documents selected by 

Plaintiff. 

a. The number of documents in that sample shall be 200, unless the 

Special Discovery Master establishes a different scope of in camera inspection. 

b. Resolution of Plaintiff’s Sixth Discovery Motion shall be guided by 

the discussion of work production protection contained in this court’s August 25 

order.7 As explained there, Rule 26(b)(3) generally protects “documents, 

4 TCV VI, L.P. v. TradingScreen Inc., 2017 WL 11590772, at *1 (Del. Ch. Dec. 21, 2017)

(cleaned up).

5 Buttonwood Tree Value Partners, L.P. v. R. L. Polk & Co., 2021 WL 3237114 (Del. Ch. 

July 30, 2021), adopted, (Del. Ch. 2021), cert. denied, 2021 WL 4958253 (Del. Ch. Oct. 

26, 2021); see also Wolfe and Pittenger, Corporate and Commercial Practice in the 

Delaware Court of Chancery, Second Edition §7.02(b)(2) (2021).

6 Moyer, 602 A.2d 68, 72.

7 Dkt. 246.
4

electronically stored information, and tangible things” that have been “prepared in 

anticipation of litigation or for trial by or for another party or by or for that other 

party’s representative (including the other party’s attorney, consultant, surety, 

indemnitor, insurer, or agent).”8

c. Rule 26(b)(3) does not provide an unqualified protection; the rule 

permits discovery of work product “upon a showing that the party seeking discovery 

has substantial need of the materials in the preparation of the party’s case and that 

the party is unable without undue hardship to obtain the substantial equivalent of 

the materials by other means.”9 

d. Rule 26(b)(3) shelters only the mental processes of the attorney, not 

the expert.10

e. The party asserting the work-product protection bears the burden of 

proving that the privilege applies to a particular communication.11 

7. Working with the parties, the Special Discovery Master shall establish the 

process and timeline for fulfilling the mandates of this Order.

8

Id. at 12 (quoting citing Ct. Ch. R. 26(b)(3)).

9

Id.

10 Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 261 (Del. 1995); see also 8A 

Wright & Miller § 2029 at 17–18 (explaining that “[t]he knowledge of an expert is not 

privileged” and “is not part of the work product”).

11 Mechel Bluestone, Inc. v. James C. Justice Cos., Inc., 2014 WL 7011195, at *10 (Del. 

Ch. Dec. 12, 2014).
5

8. Unless otherwise permitted by the Special Discovery Master, all exceptions 

to interlocutory reports prepared by the Master are stayed under Court of Chancery Rule 

144(d) until the filing of the Special Discovery Master’s final report. Following the filing 

of any final report, any party taking exception shall file a notice of exceptions within one 

business day of the date of the report. This court will promptly set a schedule for briefing 

on the exceptions, taking into account the schedule of this action.

9. The Special Discovery Master shall be compensated at his expedited hourly 

rate. At his discretion, the Special Discovery Master may make use of attorneys and 

support staff, who may bill at their expedited hourly rates. The amounts referred to in this 

paragraph are collectively the “Expenses.”

10. The Special Discovery Master shall provide invoices to the parties on no less 

than a monthly basis. The parties shall remit interim payment within ten days after 

receiving an invoice. 

11. Initially, the parties will each bear half of the Expenses. The Special 

Discovery Master may recommend an allocation of responsibility for the Expenses that 

takes into account the parties’ respective degree of success. 

12. At the conclusion of his assignment, the Special Discovery Master shall 

petition the court for approval of the Expenses. If the court declines to approve any 

amounts previously paid, then the Special Discovery Master shall refund those amounts. 

If the court adopts any recommended allocation of Expenses based on the parties’ 

respective degree of success, then the Special Discovery Master shall refund any 

overpayment upon payment of the reallocated amounts. Any approved amounts that the 
6

parties fail to pay will be taxed as court costs and charged through the LexisNexis e-filing 

system.

13. The parties shall aid the Special Discovery Master in his duties. No party to 

this action, and no other person acting or purporting to act as a manager, member, assignee, 

director, officer, employee, attorney, or agent of any party to this action, shall institute any 

proceeding in any forum other than this court challenging any action or recommendation 

by the Special Discovery Master. 

14. The Special Discovery Master shall have no liability to the parties or any 

other persons for actions taken in good faith pursuant to this order. In any challenge to the 

Special Discovery Master’s actions, the Special Discovery Master is presumed to have 

acted in good faith. The Special Discovery Master shall be entitled to all protections, 

limitation from liability, and immunity available at law or in equity to a court-appointed 

representative including, without limitation, all protection, limitation from liability and 

immunity provided by the indemnification provisions of applicable law. 

15. Expenses, including attorneys’ fees, incurred by the Special Discovery

Master in defending any civil, criminal, administrative, or investigative action, suit, or 

proceeding arising by reason or in connection with the Special Discovery Master’s 

appointment, or the performance of his duties hereunder, shall be paid by the parties in 

accordance with the payment allocation described above in advance of the final disposition 

of such action, suit, or proceeding, subject to the repayment of such amount if it shall be 
7

ultimately determined by this court that the Special Discovery Master is not entitled to be 

indemnified.

/s/ Kathaleen St. J. McCormick 

Chancellor Kathaleen St. J. McCormick 

Dated: September 30, 2022