By now, we all know that Elon Musk has finally completed his purchase of Twitter, but that purchase was anything but a smooth process. It only occurred after Twitter filed suit against Musk after he terminated his bid to acquire Twitter (only to subsequently revive the bid and complete the purchase). While the lawsuit was active, it illustrated just how the sources of potentially discoverable electronically stored information (ESI) that need to be collected and reviewed using eDiscovery solutions are more diverse than ever.
Twitter v. Musk and eDiscovery disputes
The Twitter v. Musk case was on a fast track to trial, and it had an unusual number of case rulings addressing eDiscovery issues. The case was being conducted in the Court of Chancery of Delaware by Delaware Chancellor Kathaleen S. McCormick. There were at least 18 separate rulings on eDiscovery related issues in less than two months between August 15th and October 5th, 2022 (with a trial date planned for October 17th) on issues that included:
- Sources and scope of search terms: The parties disputed the scope of search terms that the defendants were required to conduct as part of supplemental discovery, as well as the sources to be searched (the defendants sought to limit the searches to email, while the plaintiff sought to extend the searches to texts and instant messages).
- Privilege determination and clawback of privileged materials: Blanket waiver of privilege of plaintiff privilege designations requested by the defendants and waiver of attorney-client privilege over emails sent from corporate accounts used for personal communications by Musk requested by the plaintiff – both denied by the Court.
- Scope of custodians and sources of ESI for those custodians: Dispute over the number of custodians for which the plaintiff was required to produce Slack messages, with the defendants requesting all 42 plaintiff custodians and the plaintiff offering six custodians. Chancellor McCormick ultimately ordered the plaintiff to produce from eight custodians, based on the defendants’ temporary request of eight custodians.
- Potential spoliation of evidence and sanctions: There were several rulings where motions for spoliation sanctions were filed. Chancellor McCormick either denied or had not yet ruled on most of those motions, which became moot when the case was stayed and eventually dismissed.
- Designation of a Special Discovery Master: Chancellor McCormick appointed a Special Discovery Master on September 30 to address discovery issues.
The fast-track nature of the case spawned a lot of eDiscovery disputes, which had to be addressed quickly to keep the case moving forward to the planned October 17 trial date.
Sources of ESI in Twitter v. Musk
Perhaps the most notable aspect of the case was the variety of ESI sources for which discovery was requested. They included:
- Email and Office files: Not surprisingly, these common ESI sources were included.
- Text messages: The plaintiff requested text messages from Musk as well as from third parties communicating with Musk. The failure of Musk to produce some text messages that were produced by third parties caused Chancellor McCormick to order the defendants to produce phone company records for Musk (and his right hand man Jared Birchall) to confirm the completeness of the defendants’ production of text messages.
- Slack collaboration data: As discussed above, the defendants requested data from the Slack collaboration app from plaintiff custodians and the Court ordered the plaintiff to produce Slack data from eight of the custodians.
- Signal messages: It became apparent that Musk conducted at least some communications via the ephemeral messaging platform Signal. In this ruling, two communications were identified with others likely automatically deleted. Chancellor McCormick discussed consideration of potential sanctions for deleting the communications to be considered pending post-trial briefing, which became moot when the action was stayed.
- Confluence: The defendants requested Chancellor McCormick to compel the plaintiff to collect and review 520,000 webpages from Confluence, which the plaintiff used as a repository for various technical documents, potentially including the plaintiff’s spam auditing methodology, which was a central issue to the case. No resolution to the request was identified within the rulings.
- Box and Notion: The defendants also requested Chancellor McCormick to compel the plaintiff to collect and review documents from cloud storage platform Box and collaboration app Notion as well. Based on the deposition of a plaintiff employee that these sources were duplicative of other sources, Chancellor McCormick denied the request.
There may have been other ESI sources involved in the case – these are simply the ones we know about from the eDiscovery rulings.
The Twitter v. Musk eDiscovery rulings illustrate the diversity of ESI sources that are potentially discoverable today. Both parties used multiple legaltech platforms for communication, collaboration and work product – which is typical of many organizations today. eDiscovery is no longer just about discovery of email and office files – it’s about discovery of ESI from every platform in which business communicate and generate work product.
With so many discoverable ESI sources, it’s more important than ever to have access to eDiscovery tools that accommodate the collection, processing and review of new forms of ESI, and leverage best practices that customize workflows for each source and technology to streamline those workflows. Discovery of ESI today is a moving target, and the Twitter v. Musk case is a prime example of how organizations communicate, collaborate and work today.
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