August 9, 2022

Aurich Lawson | Photo by Jim Watson/AFP via Getty Images

Elon Musk urged the Delaware Court of Chancery to reject Twitter’s motion for an expedited trial, saying he needs extensive time to analyze Twitter’s spam-account data. While Twitter’s motion sought a four-day trial to be completed in September 2022, Musk’s court filing on Friday said the trial should begin on or after February 13, 2023.

“Twitter has engaged in tactical delay for two months by resisting Defendants’ information requests… Twitter’s sudden request for warp speed after two months of foot-dragging and obfuscation is its latest tactic to shroud the truth about spam accounts long enough to railroad Defendants into closing,” Musk’s motion said. Musk’s legal team argued that the “core dispute over false and spam accounts is fundamental to Twitter’s value,” and that resolving “these issues will require complex, technical discovery—including the forensic review and analysis of large swaths of data.”

Twitter sued Musk on July 12, demanding that he complete the $44 billion purchase he agreed to in April. Twitter’s motion for a September 2022 trial cited the contract’s “presumptive drop-dead date of October 24, 2022 for completion of the merger.”

“Expedition of trial proceedings is essential to ensure sufficient time for this Court to grant effective relief and for the Delaware Supreme Court to review this Court’s decision,” Twitter wrote. “And a trial in September still leaves the parties and this Court more than two months to complete pre-trial discovery and briefing—a timeline appropriately tailored to the needs of this case and consistent with expedited schedules this Court has ordered in similar merger enforcement cases.”

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Musk disputes drop-dead date

Musk disputed the necessity of holding the trial before October 24. “Twitter’s bid for extreme expedition rests on the false premise that the Termination Date in the merger agreement is October 24, glossing over that this date is automatically stayed if either party files litigation. By filing its complaint, Plaintiff has rendered its supposed need for a September trial moot,” Musk’s motion said.

The merger agreement says that if either Twitter or Musk sues to enforce the contract, “the Termination Date shall automatically be extended to (i) the twentieth (20th) Business Day following the resolution of such action, suit or proceeding or (ii) such other time period established by the court presiding over such action, suit or proceeding.”

Musk argued that “the only relevant date by which litigation must conclude” is the expiration date for the debt financing supporting the deal, which is April 25, 2023. “While Twitter has proposed a trial within sixty days, this court has observed it would be an ‘extraordinary feat’ to try a complex busted deal case within even five to six months. Twitter’s request to compress the schedule into a fraction of that time is implausible,” Musk’s motion said.

The dispute “goes well beyond the significant complexities of a typical ‘busted deal’ case, implicating complex data science questions concerning the accuracy of Twitter’s disclosures regarding the number of false and spam accounts,” the Musk filing continued. “The factual record regarding these representations will likely involve sifting through hundreds of billions of actions on Twitter and reviewing related sampling and control processes. Just the time it will take to load, process and analyze the hundreds of terabytes of relevant data will exceed Plaintiff’s hasty schedule.”

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Musk’s legal team estimated that the trial “will require at least 30-40 fact depositions, and at least 12 expert depositions in total.”