In Twitter, Inc. v. Musk, No. 2022-0613-KSJM (Del. Ch. Sept. 7, 2022), Delaware Chancellor Kathaleen S. McCormick stating that “[i]n this highly expedited case, there is no time for just kiddings”, resolved the dispute between Twitter and Elon Musk regarding the number of custodians for which Twitter needed to produce Slack messages by ordering Twitter to produce Slack messages from two additional custodians over the six they originally proposed, not the 42 custodians sought by the defendants.

Case Discussion

In this case that arose over Elon Musk’s decision to terminate his bid to acquire Twitter, Chancellor McCormick addressed issues in multiple rulings issued on the same day (including this one previous covered by eDiscovery Today). Regarding this dispute, the plaintiff’s custodians used Slack for relevant communications, and the plaintiff agreed to produce responsive Slack messages from six of their 42 custodians, while defendants sought production of responsive Slack messages from all 42 Twitter custodians in their Fourth Discovery Motion.

The plaintiff argued that the additional production would be unduly burdensome and observed that, because Defendants previously demanded Slack messages from only eight of Plaintiff’s custodians, they shouldn’t be permitted to request messages from all 42. The defendants had originally requested Slack data from 42 custodians, but on August 18, they did reduce the list from 42 down to eight custodians, reiterating that request of eight custodians when the plaintiff raised their initial offer of three custodians to six. But, on August 23, the defendants reverted back to demanding that plaintiff produce Slack messages from all 42 custodians.

Chancellor’s Ruling

Noting that “Defendants’ explanation for those later communications {requesting only eight custodians} was that they ‘inadvertently failed to remove’ the language”, Chancellor McCormick stated: “Even if Defendants’ representations were inadvertent, Defendants cannot be permitted to re-trade now. To be sure, generally, parties should be able to offer compromise positions without prejudicing their right to move for the full scope of relief to which they are entitled. That is not what happened here. Defendants gave Plaintiff the impression that they were seeking limited Slack custodians, only to then say that they never meant it. In this highly expedited case, there is no time for just kiddings.” Parties must be able to rely upon one another’s good faith proposals for the discovery process to function. Defendants are therefore held to their proposal seeking Slack messages from the eight custodians identified in their proposals.”

As a result, Chancellor McCormick ordered the plaintiff to “produce Slack messages from the two additional custodians proposed by Defendants”, stating: “This production may be provided pursuant to an agreement between the parties in line with this court’s “quick peek” proposal made prior to oral argument. Alternatively, Plaintiff may review the messages and provide responsive documents to Defendants. The parties are to meet and confer as to the manner of production and any related issues raised by this ruling.”

So, what do you think? Was the fact that the Court stated “there is no time for “just kiddings” an indication that the defendants mishandled this situation? Please share any comments you might have or if you’d like to know more about a particular topic.

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