A judge sharply criticized Elon Musk for not properly turning over text messages that could be evidence in Twitter Inc.’s lawsuit seeking to force the billionaire to complete his proposed $44 billion buyout of the social-media platform.
Delaware Chancery Judge Kathaleen St. Jude McCormick said in a Wednesday ruling there were “glaring deficiencies” in how Musk and his lawyers responded to Twitter’s request for text messages he and top aide Jared Birchall sent and received about the proposed deal and his subsequent effort to withdraw from it. She ordered the men to turn over phone records about their texts.
“Third parties produced text messages with Musk that Musk himself did not produce,” she said. Some of the exchanges he produced also had obvious gaps. Still, she noted Musk’s legal team moved to clear up many of the problems Twitter complained about in pre-trial information exchanges.
Alex Spiro, Musk’s lead lawyer, declined to comment on McCormick’s ruling about the texts. Twitter representatives didn’t immediately respond to an email seeking comment.
McCormick noted Musk produced two texts Robert Steel of Perella Weinberg sent him 18 minutes apart on June 17. Steel first asked a question and then subsequently texted, “Ok. Got it…” The second text clearly indicated that Musk replied to the first, the judge said, but the response wasn’t turned over to Twitter.
“Assuming that Musk’s response was not telepathic, one would expect some evidence of it in defendants’ document production,” McCormick wrote. “But defendants provided none by the deadline.”
The judge also said most of the burden in collecting and handing over information in the case has so far fallen on Twitter. But the company’s request for all Musk’s and Birchall’s texts — regardless of their relevance — was “too extreme to be granted.”
Earlier Wednesday, McCormick ruled Musk’s lawyers could amend counterclaims filed in the Twitter case with whistle-blower claims from an ex-company executive the billionaire claims bolster his reasons for walking away from the deal. But the judge also denied Musk’s request to push back an Oct. 17 trial in the case.
Twitter shares rose 6.3% to $41.09 in New York Wednesday.
Meanwhile, Musk and Twitter are jousting over whether the company must turn over Slack messages posted by Twitter employees about Musk pulling out of the deal. Musk’s legal team accuses Twitter of reneging on promises to hand over the Slack communications.
While Twitter agreed to turn over Slack communications from officials such as CEO Parag Agrawal and Manish Chabria — the platform’s head of financial analysis and planning — it refused to turn over others, claiming the task of reviewing them is overwhelming, Musk’s lawyers complained.
McCormick heard arguments on the Slack issue at a hearing Tuesday, but has yet to rule on it.
The case is Twitter v. Musk, 22-0613, Delaware Chancery Court (Wilmington)
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