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Twitter v. Musk: Discovery Is No Time for “Just Kiddings”


September 29, 2022

In Twitter, Inc. v. Musk, Delaware Chancellor Kathaleen S. McCormick stated that “there is no time for ‘just kiddings’ ” in resolving the dispute between Twitter and Elon Musk. The case arose over Musk’s decision to terminate his bid to acquire Twitter. The plaintiff’s custodians had used Slack for relevant communications, and agreed to produce responsive Slack messages from six of their 42 custodians. The defendants had originally requested Slack data from 42 custodians but reduced the list to eight, while the plaintiff raised their initial offer of three custodians to six. On August 23, however, the defendants reverted to a demand that the plaintiff should produce Slack messages from all 42 custodians. Chancellor McCormick stated that the 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.’ ” She added, “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.”

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