Public Version Exhibits 3-7 [Dkt 680] to Letter to Chancellor McCormick from Kevin R. Shannon on behalf of Twitter to seek relief in connection with the deposition of Jared Birchall
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Page 1 EFiled: Jul 17 2024 04:19PM EDT
Transaction ID 73703912
Case No. 2022-0613-KSJM
IN THE COURT OF CHANCERY FOR THE STATE OF DELAWARE
TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I,
INC., and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
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C.A. No. 2022-0613-KSJM
PUBLIC VERSION EXHIBITS 3-7 [Dkt 680]
Dated July 17, 2024Page 2 EXHIBIT 3Page 3 67952420
Aug 19 2022
11:03PM
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I, INC.,
and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
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)
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)
) C.A. No. 2022-0613-KSJM
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DEFENDANT AND COUNTERCLAIM-PLAINTIFF X HOLDINGS I,
INC.’S RESPONSES AND OBJECTIONS TO PLAINTIFF AND
COUNTERCLAIM-DEFENDANT’S NOTICE OF RULE 30(b)(6) DEPOSITION TO DEFENDANT X HOLDINGS I, INC.
Pursuant to Court of Chancery Rules 26 and 30, Defendant and CounterclaimPlaintiff X Holdings I, Inc. (“X Holdings”), by and through its undersigned counsel,
hereby objects and responds to Plaintiff and Counterclaim-Defendant Twitter, Inc.’s
Notice of Rule 30(b)(6) Deposition to Defendant and Counterclaim-Plaintiff X
Holdings I, Inc. and the schedule attached thereto (the “Topics” and each a “Topic”)
as set forth below on the grounds specified herein.Page 4 GENERAL OBJECTIONS
1.
X Holdings objects to the Topics to the extent they purport to impose
on X Holdings any requirements or obligations that are different from, greater or
more burdensome than, or contradict those required by, the Court of Chancery Rules
and Delaware law. X Holdings will respond to the Topics in a manner consistent
with its obligations under the Court of Chancery Rules and Delaware law.
2.
X Holdings objects to the Topics to the extent they seek information
protected from disclosure by any applicable privilege or immunity, including the
attorney-client privilege, the work product doctrine, the business strategy privilege,
the common interest privilege, the joint defense privilege, or other applicable
privileges, immunities, or protections. X Holdings hereby claims privilege with
respect to any such information. To the extent X Holdings discloses privileged
information in response to a Topic, such disclosure is inadvertent and shall not be
deemed a waiver of any applicable protection from disclosure or of any ground for
objection to discovery with respect to such information or to the use of any such
information in any proceeding.
3.
X Holdings objects to the Topics to the extent they contain legal
conclusions or characterize certain information, allegations, facts, events,
circumstances, issues, or ideas as undisputed fact. X Holdings’ responses to the
Topics are not an admission of any fact alleged or assumed by the Topics.
2Page 5 4.
X Holdings objects to the definition of “Co-Investors” as overbroad for
the reasons set forth in Defendants’ August 17, 2022 Letter in response to Twitter’s
August 15, 2022 Letter Regarding Defendants’ Responses and Objections to
Twitter’s Document Requests and Interrogatories. In responding to the Topics,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
5.
X Holdings objects to the definition of “You” and “Your” as overbroad.
In responding to each Topic, X Holdings will interpret “You” and “Your” to mean
X Holdings I, Inc.
6.
X Holdings objects to Instruction No. 1 as overbroad. X Holdings I,
Inc. was not formed until April 19, 2022. Thus, X Holdings objects to this time
period to the extent it calls for testimony prior to April 19, 2022. To the extent
X Holdings agrees to produce a representative to testify regarding any of the Topics,
X Holdings is only agreeing to produce a representative on such Topics regarding
the time period from April 19, 2022 to July 8, 2022.
7.
All responses are made subject to these objections and are based solely
on the information known to X Holdings at the time these responses are served.
X Holdings reserves the right to revise, supplement, or clarify any objection or
response at any time, and to use at trial in this Action information later determined
3Page 6 to have been responsive to these Topics. X Holdings reserves the right to object to
further discovery into the subject matter of the Topics.
8.
X Holdings is willing to meet and confer with Plaintiff on any of the
General Objections or specific responses and objections contained below.
SPECIFIC RESPONSES AND OBJECTIONS
TOPIC NO. 1:
The April 4, 2022 Letter Agreement, the April 13, 2022 Proposal, the
April 24, 2022 Offer, any consideration by Defendants of any other potential
acquisition or other strategic transaction involving Twitter, the Merger, the Merger
Agreement, the Limited Guarantee, the June 6, 2022 Letter, and the July 8, 2022
Letter, and any financing with respect to any of the foregoing or any transaction
contemplated thereby (including but not limited to the Debt Financing, the Equity
Financing, and/or the Financing Commitments).
RESPONSE TO TOPIC NO. 1:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it relates to events or
topics that pre-date its incorporation on April 19, 2022.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 1 for the time period from April 19,
2022 to July 8, 2022.
4Page 7 TOPIC NO. 2:
All efforts to syndicate and/or arrange, document, negotiate the terms of, or
consummate the Debt Financing and close the Merger, including the status of or
expected timeline for such efforts.
RESPONSE TO TOPIC NO. 2:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 2.
TOPIC NO. 3:
All efforts to solicit Co-Investors, arrange or negotiate equity co-investments,
and/or arrange, document, syndicate, or consummate the Equity Financing,
including those concerning the status of or expected timeline for such efforts.
RESPONSE TO TOPIC NO. 3:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
5Page 8 will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 3.
TOPIC NO. 4:
All efforts undertaken by Defendants or Defendants’ Advisors, on or after
May 13, 2022, to obtain, syndicate, arrange, finalize, and/or consummate the Debt
Financing, close the Merger, and/or cause all of the conditions for closing the Merger
to be satisfied.
RESPONSE TO TOPIC NO. 4:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 4.
TOPIC NO. 5:
The Margin Loan Commitment, including without limitation (i) the reduction
of the amount of the Margin Loan Commitment and reasons for such reduction; and
(ii) the subsequent termination of the Margin Loan Commitment and reasons for
such termination.
6Page 9 RESPONSE TO TOPIC NO. 5:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 5.
TOPIC NO. 6:
Any potential tender offer by or on behalf of Defendants for some or all of
Twitter’s shares, including without limitation Defendants’ negotiation of the debt
commitment letter, dated April 20, 2022, attached as Exhibit C to Amendment No.
to Schedule 13D, filed by Equity Investor with the SEC on April 21, 2022.
RESPONSE TO TOPIC NO. 6:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 6.
TOPIC NO. 7:
Defendants’ requests or potential requests for information pursuant to Section
6.4 and/or Section 6.11 of the Merger Agreement and any information provided by
Twitter, or on Twitter’s behalf, in response to any such request for information,
including without limitation any analyses, audits, or investigations performed by or
at the direction of You and/or Defendants’ Advisors, the Lenders, or the CoInvestors, relating to Twitter’s API or “firehose” data provided to Defendants or any
7Page 10 other information provided by Twitter, or on Twitter’s behalf, in response to any
information request by You or on Your behalf.
RESPONSE TO TOPIC NO. 7:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed by or at the direction of You and/or
Defendants’ Advisors, the Lenders, or the Co-Investors.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
X Holdings further objects to this Topic as overbroad to the extent it calls for
testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 7.
8Page 11 TOPIC NO. 8:
Any request made by Twitter, or on Twitter’s behalf, seeking Defendants’
consent pursuant to Section 6.1 of the Merger Agreement with respect to (i) the
implementation of employee retention programs; (ii) the termination of a revolving
credit facility; (iii) an application for a money transmitter license; or (iv) any other
proposed course of action, corporate policy, or other decision related to the conduct
of Twitter’s business, including Defendants’ assessment of and/or decision whether
or not to provide their consent and/or whether or not the proposed course of action,
corporate policy, or other decision was commercially reasonable under the
circumstances, including all of the reasons Defendants declined to provide consents
to Twitter’s requests under the Merger Agreement described in paragraphs 119
through 122 of the Complaint, including without limitation all of the reasons why
You initially provided, but thereafter withdrew, any such consent.
RESPONSE TO TOPIC NO. 8:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 8.
TOPIC NO. 9:
False or spam accounts or bots on the Twitter platform and the disclosures in
Twitter’s SEC filings discussed in Paragraphs 64 and 66 of the Complaint, including
without limitation (i) any analyses, audits, or investigations performed or conducted
by or at the direction of You and/or Defendants’ Advisors, or of which You are
aware, relating to these subjects, whether performed or conducted prior or
subsequent to the execution of the Merger Agreement; (ii) any analyses, audits, or
investigations that You and/or Defendants’ Advisors considered undertaking, or that
You and/or Defendants’ Advisors considered having others undertake on Your or
their behalf, relating to these subjects; and (iii) Your decision to execute the Merger
Agreement without further due diligence on these subjects.
9Page 12 RESPONSE TO TOPIC NO. 9:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed or conducted by or at the direction of
You and/or Defendants’ Advisors” and “any analyses, audits, or investigations that
You and/or Defendants’ Advisors considered undertaking, or that You and/or
Defendants’ Advisors considered having others undertake.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 9.
TOPIC NO. 10:
The effects or potential effects of changes in the price of Tesla common stock
on (i) the Merger; (ii) the Debt Financing; (iii) the Equity Financing; (iv) the
Financing Commitments; and/or (v) Your intentions with respect to closing and/or
efforts to close the Merger, and Defendants’ knowledge and consideration of such
topics.
10Page 13 RESPONSE TO TOPIC NO. 10:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 10.
TOPIC NO. 11:
Any Communications between (a) Defendants or Defendants’ Advisors and
(b) any Governmental Authority, concerning (i) the Merger; (ii) the Merger
Agreement; (iii) the Proxy Statement; or (iv) Twitter, including the purpose of such
Communications, the nature and substance of such Communications, and at whose
request such Communications were made.
RESPONSE TO TOPIC NO. 11:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it seeks testimony
regarding communications that are subject to an investigative privilege belonging to
any governmental authority. As set forth in Defendants’ August 17, 2022 Letter in
response to Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and
Objections to Twitter’s Document Requests and Interrogatories, X Holdings is not
in a position to disclose any information in its possession relating to any
investigation by any governmental authority that is subject to protection from
11Page 14 disclosure as recognized in Legent Group, LLC v. Axos Financial, Inc., 2021 WL
4514930 (Del. Ch. Oct. 4, 2021). X Holdings will respond to this Topic consistent
with the Court’s resolution of Plaintiff’s motion to compel regarding
communications with governmental authorities.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 11.
TOPIC NO. 12:
Defendants’ purported termination of the Merger Agreement, including
without limitation (i) any consideration of whether and on what grounds to purport
to terminate the Merger Agreement; (ii) any consideration of potentially
renegotiating the Merger Agreement; (iii) the preparation of the June 6, 2022 Letter;
and (iv) the preparation of the July 8, 2022 Letter.
RESPONSE TO TOPIC NO. 12:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 12.
TOPIC NO. 13:
Defendants’ contention in the July 8, 2022 Letter that Twitter is “likely to
suffer a Company Material Adverse Effect,” including without limitation any
valuations, forecasts, projections, estimates, or other analyses relating to whether
Twitter is likely to suffer a Company Material Adverse Effect.
12Page 15 RESPONSE TO TOPIC NO. 13:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding the bases
for X Holdings’ contention. The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to the bases for X Holdings’ contention is the subject of
a pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 13.
TOPIC NO. 14:
Forecasts, projections, estimates, or other analyses created by Defendants,
Defendants’ Advisors, the Lenders, or the Co-Investors, or on Your or their behalf,
relating to Twitter’s current or future performance, financial condition, or value,
including without limitation any projections of Twitter’s revenues, EBITDA,
earnings, and cash flows, and all Documents and Communications concerning such
forecasts, projections, estimates, or analyses.
RESPONSE TO TOPIC NO. 14:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “analyses
13Page 16 created by Defendants, Defendants’ Advisors, the Lenders, or the Co-Investors, or
on Your or their behalf.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to such analyses is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel. X Holdings further objects to this Topic as overbroad to
the extent it calls for testimony regarding interactions with “potential co-investors”
for the reasons set forth in Defendants’ August 17, 2022 Letter in response to
Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and Objections
to Twitter’s Document Requests and Interrogatories. In responding to this Topic,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 14.
TOPIC NO. 15:
Any plans or potential plans made or considered by Defendants to create or
develop a social media platform and/or alternative or competitor to Twitter,
including without limitation any plans or potential plans concerning X.com, and
including without limitation the origin, history, and timeline of such plans, and all
other Persons involved in such plans or with whom Equity Investor has discussed
such plans.
RESPONSE TO TOPIC NO. 15:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
14Page 17 doctrine.
X Holdings further objects to this Topic to the extent the phrase
“alternative or competitor to Twitter” is vague and ambiguous. X Holdings will
construe “alternative or competitor to Twitter” to include any social media platform
other than Twitter, including X.com.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 15.
TOPIC NO. 16:
Your strategic or business plans for Twitter, including without limitation
(i) all plans to address issues relating to false or spam accounts on the Twitter
platform; (ii) all plans relating to employee retention programs or incentives; and
(iii) all plans relating to potential changes to the size and/or composition of Twitter’s
workforce.
RESPONSE TO TOPIC NO. 16:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent the phrase “strategic
or business plans for Twitter” is vague or ambiguous. Specifically, the phrase
“strategic or business plans” could include any number of short-term or long-term
plans about any facet of Twitter’s business, regardless of their relevance to the issues
in this litigation.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding the subtopics listed in (i), (ii), and (iii) of Topic
15Page 18 No. 16. X Holdings will agree to meet and confer regarding any further testimony
sought with reference to Topic No. 16.
TOPIC NO. 17:
The engagement, the work, and the termination of Bob Swan and/or the
cessation of Bob Swan’s involvement on Defendants’ behalf in connection with the
Merger and the Debt Financing, including the reasons that Defendants determined
that Bob Swan should “depart the deal proceedings” on or about June 23, 2022,
including due to the disconnect in “wavelength” between You and Bob Swan, as
described in Paragraph 110 of the Complaint.
RESPONSE TO TOPIC NO. 17:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 17.
TOPIC NO. 18:
The actual or potential engagement or involvement of Antonio Gracias to act
on Defendants’ behalf in connection with the Merger and the Debt Financing and
the work Antonio Gracias performed in that capacity, including all of the ways that
Antonio Gracias allegedly “dove in to the financing as soon as he was brought on”
to replace Bob Swan, as referenced in Paragraph 198 of the Counterclaim.
RESPONSE TO TOPIC NO. 18:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
16Page 19 Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 18.
TOPIC NO. 19:
The directors, officers, employees, and owners of X Holdings I, Inc., X
Holdings II, Inc., and X Holdings III, LLC, and the relationships between them and
Equity Investor.
RESPONSE TO TOPIC NO. 19:
Subject to and limited by the General Objections, X Holdings will produce a
representative to testify regarding Topic No. 19.
TOPIC NO. 20:
Defendants’ and Defendants’ Advisors’ use of the “Botometer” tool described
in Paragraph 116 and Footnote 16 of the Counterclaim.
RESPONSE TO TOPIC NO. 20:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ Advisors’ use.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ Advisors’ use” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
17Page 20 Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 20.
TOPIC NO. 21:
The engagement of the Data Scientists, including without limitation (i) the
identification of all Data Scientists and when they were engaged; (ii) the scope and
purpose of any such engagement; (iii) how such Data Scientists came to be engaged;
(iv) the nature of any agreements, arrangements, or understandings between the Data
Scientists and Defendants or Defendants’ Advisors.
RESPONSE TO TOPIC NO. 21:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[t]he
engagement of the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[t]he engagement of the Data Scientists” is the
subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 21.
TOPIC NO. 22:
All Persons that Defendants or Defendants’ Advisors communicated with
about a potential engagement as a Data Scientist that were not engaged as a Data
Scientist, including without limitation (i) the identification of all such Persons;
18Page 21 (ii) the timeline during which such potential engagement was considered; and (iii) all
reasons such engagement did not take place.
RESPONSE TO TOPIC NO. 22:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 22.
TOPIC NO. 23:
All work performed by the Data Scientists, including without limitation (i) the
instructions received by the Data Scientists; (ii) the scope of the Data Scientists’
work; (iii) the timeline of the Data Scientists’ work; (iv) a description of the work
performed by each individual working as or for a Data Scientist; (v) the findings,
conclusions, and results of such work.
RESPONSE TO TOPIC NO. 23:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[a]ll work
performed by the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[a]ll work performed by the Data Scientists” is
the subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
19Page 22 Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 23.
TOPIC NO. 24:
The financial model allegedly prepared by Morgan Stanley as described in
Paragraphs 34 and 166 of the Counterclaim and, to the extent different than the
financial model, the valuations allegedly prepared by Morgan Stanley as described
in Paragraph 78 of the Counterclaim, including the extent to which Defendants
received, reviewed, or discussed the referenced model prior to April 25, 2022, and
the extent to which Defendants relied upon the referenced model.
RESPONSE TO TOPIC NO. 24:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 24.
TOPIC NO. 25:
Any “additional business models” that Defendants allegedly considered as a
means to “unlock Twitter’s true value,” as described in Paragraph 39 of the
Counterclaim, including without limitation the “subscription-based model”
referenced in that same Paragraph, the projected or anticipated value of Twitter
based on such business models, and the relevance of mDAU to such business
models.
20Page 23 RESPONSE TO TOPIC NO. 25:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 25.
TOPIC NO. 26:
Defendants’ knowledge of Twitter’s litigation with the Indian government
and/or any content-removal orders issued to Twitter by the Indian government, as
discussed in Paragraphs 18 and 181 through 185 of the Counterclaim, including
without limitation when Defendants became aware of such litigation and/or contentremoval orders and who made them aware of such orders.
RESPONSE TO TOPIC NO. 26:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 26.
TOPIC NO. 27:
All “key decisions” that Twitter allegedly made “outside the ordinary course
without consulting the Musk Parties,” as alleged in Paragraphs 186 through 195 of
the Counterclaim.
21Page 24 RESPONSE TO TOPIC NO. 27:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 27.
TOPIC NO. 28:
The extent to which Defendants undertook any review, prior to executing the
Merger Agreement, of each of the allegedly false and misleading statements
discussed at Paragraphs 109 through 149 of the Counterclaim.
RESPONSE TO TOPIC NO. 28:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 28.
TOPIC NO. 29:
The reliance of Defendants and/or Defendants’ Advisors on Twitter’s
representations in its SEC filings, as alleged in Paragraph 27 of the Counterclaim.
22Page 25 RESPONSE TO TOPIC NO. 29:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 29.
TOPIC NO. 30:
Defendants’ beliefs about the number and/or prevalence of false or spam
accounts or bots on the Twitter platform, including all bases for such beliefs and
Defendants’ allegations set forth in Paragraphs 212 and 213 of the Counterclaim that
“[a]t the time of the Merger Agreement, Defendants/Counterclaim-Plaintiffs did not
know the false or misleading statements or omissions” and “[h]ad
Defendants/Counterclaim-Plaintiffs known about the false or misleading statements
and omissions, they would not have entered into the Merger Agreement.”
RESPONSE TO TOPIC NO. 30:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “all bases
for such beliefs.” The applicability of the work product doctrine and Chancery Rule
26(b)(4)(B) to “all bases for such beliefs” is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel.
23Page 26 Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 30.
TOPIC NO. 31:
Defendants’ bases for contending that “statement[s] of material fact” in
documents that Twitter has filed with the SEC since January 1, 2022 were “untrue”
or “misleading,” including statements that Defendants contend contained
representations that “fewer than 5%” of Twitter’s mDAU are false or spam accounts.
RESPONSE TO TOPIC NO. 31:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ bases for contending.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “Defendants’ bases for contending” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 31.
TOPIC NO. 32:
Defendants’ understanding of Twitter’s mDAU recast in April 2022, as
discussed in Paragraphs 9 and 79 through 81 of the Counterclaim.
24Page 27 RESPONSE TO TOPIC NO. 32:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 32.
TOPIC NO. 33:
The “preliminary analysis by Mr. Musk’s advisors” and the results thereof
described in the final paragraph of page 6 of Defendants’ July 8 letter.
RESPONSE TO TOPIC NO. 33:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding the
“preliminary analysis by Mr. Musk’s advisors.” The applicability of the work
product doctrine and Chancery Rule 26(b)(4)(B) to the “preliminary analysis by Mr.
Musk’s advisors” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 33.
25Page 28 TOPIC NO. 34:
Defendants’ alleged belief that “due diligence processes can be costly and
inefficient,” as set forth in Paragraph 60 of the Counterclaim.
RESPONSE TO TOPIC NO. 34:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 34.
TOPIC NO. 35:
Defendants’ alleged assumption that Twitter “rel[ied] on automation, artificial
intelligence, and machine learning” to count false or spam accounts, as described in
Paragraph 83 of the Counterclaim.
RESPONSE TO TOPIC NO. 35:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 35.
TOPIC NO. 36:
Defendants’ understanding of the “stratification” or potential stratification of
Twitter’s mDAU, as that term is used in Paragraph 141 of the Counterclaim, whether
performed before or after the execution of the Merger Agreement.
26Page 29 RESPONSE TO TOPIC NO. 36:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ understanding” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 36.
TOPIC NO. 37:
Defendants’ allegation that “nearly a third of Twitter’s mDAU in fact see no
ads and appear to generate no revenue at all,” as set forth in Paragraph 138 of the
Counterclaim.
RESPONSE TO TOPIC NO. 37:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it may call for the bases for X Holdings’ allegation. The
applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to the
27Page 30 bases for X Holdings’ allegation is the subject of a pending motion to compel.
X Holdings will respond to this Topic according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 37.
TOPIC NO. 38:
Defendants’ knowledge and understanding of their allegation that “mDAU
growth is not occurring among high-value users,” as set forth in Paragraph 142 of
the Counterclaim.
RESPONSE TO TOPIC NO. 38:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ knowledge and understanding.” The applicability of the work product
doctrine and Chancery Rule 26(b)(4)(B) to “Defendants’ knowledge and
understanding” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 38.
28Page 31 TOPIC NO. 39:
All allegations in Defendants’ Counterclaim.
RESPONSE TO TOPIC NO. 39:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify the particular paragraphs of the Counterclaims about which
Plaintiff seeks testimony.
Subject to and limited by the foregoing objections, and after Plaintiff
identifies which paragraphs are covered by this Topic, X Holdings will produce a
representative to testify regarding Topic No. 39.
TOPIC NO. 40:
Defendants’ understanding of how many false or spam accounts existed on
the Twitter platform as of July 8, 2022, in absolute terms and as a percentage of
Twitter’s mDAU, and all their bases for that understanding as of that date.
RESPONSE TO TOPIC NO. 40:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding” and “their bases for that understanding.”
29
ThePage 32 applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to
“Defendants’ understanding” and “their bases for that understanding” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 40.
TOPIC NO. 41:
Defendants’ policies, practices, software, hardware, and systems relating to
the storage, management, retention, and destruction of Documents and
Communications.
RESPONSE TO TOPIC NO. 41:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 41.
TOPIC NO. 42:
Defendants’ efforts to ensure that Documents relating to the discovery
requests in this Action and/or the Complaint were properly preserved, including any
related litigation hold or document preservation letters or notices.
30Page 33 RESPONSE TO TOPIC NO. 42:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 42.
TOPIC NO. 43:
Defendants’ efforts to retrieve text messages, instant messages, and other nonemail Communications.
RESPONSE TO TOPIC NO. 43:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 43.
31Page 34 TOPIC NO. 44:
Any sales of Tesla stock by Equity Investor from April 1, 2022 through the
present, including the purpose of any such sale, any potential use of the proceeds of
such sale considered by Defendants, and any relationship between such sale and the
Merger.
RESPONSE TO TOPIC NO. 44:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 44.
TOPIC NO. 45:
The identity, role, and nature of the work of any personnel of Tesla or Space
Exploration Technologies Corp. who worked on, analyzed, or assisted in any
capacity with the Merger, the Debt Financing, the Equity Financing, any potential
investment by a Co-Investor, the Margin Loan Commitment, any potential tender
offer involving Twitter, Defendants’ purported termination of the Merger
Agreement, or the Action.
RESPONSE TO TOPIC NO. 45:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
32Page 35 2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 45.
TOPIC NO. 46:
All information contained in Defendants’ Interrogatory Responses, including
all sources of such information and Defendants’ process of ascertaining and
providing such information.
RESPONSE TO TOPIC NO. 46:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify which particular interrogatory responses Plaintiff seeks testimony
on.
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 46.
33Page 36 OF COUNSEL:
Alex Spiro
Andrew J. Rossman
Christopher D. Kercher
Silpa Maruri
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010
/s/ Edward B. Micheletti
Edward B. Micheletti (ID No. 3794)
Lauren N. Rosenello (ID No. 5581)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
920 North King Street, 7th Floor
P.O. Box 636
Wilmington, Delaware 19899-0636
(302) 651-3000
Attorneys for Defendant X Holdings I, Inc.
DATED: August 19, 2022
34
916786-WILSR01A - MSWPage 37 EXHIBIT 4Page 38 67952420
Aug 19 2022
11:03PM
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I, INC.,
and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
)
)
)
)
)
) C.A. No. 2022-0613-KSJM
)
)
)
)
)
)
DEFENDANT AND COUNTERCLAIM-PLAINTIFF X HOLDINGS II,
INC.’S RESPONSES AND OBJECTIONS TO PLAINTIFF AND
COUNTERCLAIM-DEFENDANT’S NOTICE OF RULE 30(b)(6) DEPOSITION TO DEFENDANT X HOLDINGS II, INC.
Pursuant to Court of Chancery Rules 26 and 30, Defendant and CounterclaimPlaintiff X Holdings II, Inc. (“X Holdings”), by and through its undersigned counsel,
hereby objects and responds to Plaintiff and Counterclaim-Defendant Twitter, Inc.’s
Notice of Rule 30(b)(6) Deposition to Defendant and Counterclaim-Plaintiff X
Holdings II, Inc. and the schedule attached thereto (the “Topics” and each a “Topic”)
as set forth below on the grounds specified herein.Page 39 GENERAL OBJECTIONS
1.
X Holdings objects to the Topics to the extent they purport to impose
on X Holdings any requirements or obligations that are different from, greater or
more burdensome than, or contradict those required by, the Court of Chancery Rules
and Delaware law. X Holdings will respond to the Topics in a manner consistent
with its obligations under the Court of Chancery Rules and Delaware law.
2.
X Holdings objects to the Topics to the extent they seek information
protected from disclosure by any applicable privilege or immunity, including the
attorney-client privilege, the work product doctrine, the business strategy privilege,
the common interest privilege, the joint defense privilege, or other applicable
privileges, immunities, or protections. X Holdings hereby claims privilege with
respect to any such information. To the extent X Holdings discloses privileged
information in response to a Topic, such disclosure is inadvertent and shall not be
deemed a waiver of any applicable protection from disclosure or of any ground for
objection to discovery with respect to such information or to the use of any such
information in any proceeding.
3.
X Holdings objects to the Topics to the extent they contain legal
conclusions or characterize certain information, allegations, facts, events,
circumstances, issues, or ideas as undisputed fact. X Holdings’ responses to the
Topics are not an admission of any fact alleged or assumed by the Topics.
2Page 40 4.
X Holdings objects to the definition of “Co-Investors” as overbroad for
the reasons set forth in Defendants’ August 17, 2022 Letter in response to Twitter’s
August 15, 2022 Letter Regarding Defendants’ Responses and Objections to
Twitter’s Document Requests and Interrogatories. In responding to the Topics,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
5.
X Holdings objects to the definition of “You” and “Your” as overbroad.
In responding to each Topic, X Holdings will interpret “You” and “Your” to mean
X Holdings II, Inc.
6.
X Holdings objects to Instruction No. 1 as overbroad. X Holdings II,
Inc. was not formed until April 19, 2022. Thus, X Holdings objects to this time
period to the extent it calls for testimony prior to April 19, 2022. To the extent
X Holdings agrees to produce a representative to testify regarding any of the Topics,
X Holdings is only agreeing to produce a representative on such Topics regarding
the time period from April 19, 2022 to July 8, 2022.
7.
All responses are made subject to these objections and are based solely
on the information known to X Holdings at the time these responses are served.
X Holdings reserves the right to revise, supplement, or clarify any objection or
response at any time, and to use at trial in this Action information later determined
to have been responsive to these Topics. X Holdings reserves the right to object to
3Page 41 further discovery into the subject matter of the Topics.
8.
X Holdings is willing to meet and confer with Plaintiff on any of the
General Objections or specific responses and objections contained below.
SPECIFIC RESPONSES AND OBJECTIONS
TOPIC NO. 1:
The April 4, 2022 Letter Agreement, the April 13, 2022 Proposal, the
April 24, 2022 Offer, any consideration by Defendants of any other potential
acquisition or other strategic transaction involving Twitter, the Merger, the Merger
Agreement, the Limited Guarantee, the June 6, 2022 Letter, and the July 8, 2022
Letter, and any financing with respect to any of the foregoing or any transaction
contemplated thereby (including but not limited to the Debt Financing, the Equity
Financing, and/or the Financing Commitments).
RESPONSE TO TOPIC NO. 1:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it relates to events or
topics that pre-date its incorporation on April 19, 2022.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 1 for the time period from April 19,
2022 to July 8, 2022.
TOPIC NO. 2:
All efforts to syndicate and/or arrange, document, negotiate the terms of, or
consummate the Debt Financing and close the Merger, including the status of or
expected timeline for such efforts.
4Page 42 RESPONSE TO TOPIC NO. 2:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 2.
TOPIC NO. 3:
All efforts to solicit Co-Investors, arrange or negotiate equity co-investments,
and/or arrange, document, syndicate, or consummate the Equity Financing,
including those concerning the status of or expected timeline for such efforts.
RESPONSE TO TOPIC NO. 3:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
5Page 43 Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 3.
TOPIC NO. 4:
All efforts undertaken by Defendants or Defendants’ Advisors, on or after
May 13, 2022, to obtain, syndicate, arrange, finalize, and/or consummate the Debt
Financing, close the Merger, and/or cause all of the conditions for closing the Merger
to be satisfied.
RESPONSE TO TOPIC NO. 4:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 4.
TOPIC NO. 5:
The Margin Loan Commitment, including without limitation (i) the reduction
of the amount of the Margin Loan Commitment and reasons for such reduction; and
(ii) the subsequent termination of the Margin Loan Commitment and reasons for
such termination.
RESPONSE TO TOPIC NO. 5:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
6Page 44 Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 5.
TOPIC NO. 6:
Any potential tender offer by or on behalf of Defendants for some or all of
Twitter’s shares, including without limitation Defendants’ negotiation of the debt
commitment letter, dated April 20, 2022, attached as Exhibit C to Amendment No.
to Schedule 13D, filed by Equity Investor with the SEC on April 21, 2022.
RESPONSE TO TOPIC NO. 6:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 6.
TOPIC NO. 7:
Defendants’ requests or potential requests for information pursuant to Section
6.4 and/or Section 6.11 of the Merger Agreement and any information provided by
Twitter, or on Twitter’s behalf, in response to any such request for information,
including without limitation any analyses, audits, or investigations performed by or
at the direction of You and/or Defendants’ Advisors, the Lenders, or the CoInvestors, relating to Twitter’s API or “firehose” data provided to Defendants or any
other information provided by Twitter, or on Twitter’s behalf, in response to any
information request by You or on Your behalf.
RESPONSE TO TOPIC NO. 7:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
7Page 45 doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed by or at the direction of You and/or
Defendants’ Advisors, the Lenders, or the Co-Investors.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
X Holdings further objects to this Topic as overbroad to the extent it calls for
testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 7.
TOPIC NO. 8:
Any request made by Twitter, or on Twitter’s behalf, seeking Defendants’
consent pursuant to Section 6.1 of the Merger Agreement with respect to (i) the
implementation of employee retention programs; (ii) the termination of a revolving
credit facility; (iii) an application for a money transmitter license; or (iv) any other
proposed course of action, corporate policy, or other decision related to the conduct
of Twitter’s business, including Defendants’ assessment of and/or decision whether
8Page 46 or not to provide their consent and/or whether or not the proposed course of action,
corporate policy, or other decision was commercially reasonable under the
circumstances, including all of the reasons Defendants declined to provide consents
to Twitter’s requests under the Merger Agreement described in paragraphs 119
through 122 of the Complaint, including without limitation all of the reasons why
You initially provided, but thereafter withdrew, any such consent.
RESPONSE TO TOPIC NO. 8:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 8.
TOPIC NO. 9:
False or spam accounts or bots on the Twitter platform and the disclosures in
Twitter’s SEC filings discussed in Paragraphs 64 and 66 of the Complaint, including
without limitation (i) any analyses, audits, or investigations performed or conducted
by or at the direction of You and/or Defendants’ Advisors, or of which You are
aware, relating to these subjects, whether performed or conducted prior or
subsequent to the execution of the Merger Agreement; (ii) any analyses, audits, or
investigations that You and/or Defendants’ Advisors considered undertaking, or that
You and/or Defendants’ Advisors considered having others undertake on Your or
their behalf, relating to these subjects; and (iii) Your decision to execute the Merger
Agreement without further due diligence on these subjects.
RESPONSE TO TOPIC NO. 9:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
9Page 47 specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed or conducted by or at the direction of
You and/or Defendants’ Advisors” and “any analyses, audits, or investigations that
You and/or Defendants’ Advisors considered undertaking, or that You and/or
Defendants’ Advisors considered having others undertake.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 9.
TOPIC NO. 10:
The effects or potential effects of changes in the price of Tesla common stock
on (i) the Merger; (ii) the Debt Financing; (iii) the Equity Financing; (iv) the
Financing Commitments; and/or (v) Your intentions with respect to closing and/or
efforts to close the Merger, and Defendants’ knowledge and consideration of such
topics.
RESPONSE TO TOPIC NO. 10:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 10.
10Page 48 TOPIC NO. 11:
Any Communications between (a) Defendants or Defendants’ Advisors and
(b) any Governmental Authority, concerning (i) the Merger; (ii) the Merger
Agreement; (iii) the Proxy Statement; or (iv) Twitter, including the purpose of such
Communications, the nature and substance of such Communications, and at whose
request such Communications were made.
RESPONSE TO TOPIC NO. 11:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it seeks testimony
regarding communications that are subject to an investigative privilege belonging to
any governmental authority. As set forth in Defendants’ August 17, 2022 Letter in
response to Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and
Objections to Twitter’s Document Requests and Interrogatories, X Holdings is not
in a position to disclose any information in its possession relating to any
investigation by any governmental authority that is subject to protection from
disclosure as recognized in Legent Group, LLC v. Axos Financial, Inc., 2021 WL
4514930 (Del. Ch. Oct. 4, 2021). X Holdings will respond to this Topic consistent
with the Court’s resolution of Plaintiff’s motion to compel regarding
communications with governmental authorities.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 11.
11Page 49 TOPIC NO. 12:
Defendants’ purported termination of the Merger Agreement, including
without limitation (i) any consideration of whether and on what grounds to purport
to terminate the Merger Agreement; (ii) any consideration of potentially
renegotiating the Merger Agreement; (iii) the preparation of the June 6, 2022 Letter;
and (iv) the preparation of the July 8, 2022 Letter.
RESPONSE TO TOPIC NO. 12:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 12.
TOPIC NO. 13:
Defendants’ contention in the July 8, 2022 Letter that Twitter is “likely to
suffer a Company Material Adverse Effect,” including without limitation any
valuations, forecasts, projections, estimates, or other analyses relating to whether
Twitter is likely to suffer a Company Material Adverse Effect.
RESPONSE TO TOPIC NO. 13:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding the bases
for X Holdings’ contention. The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to the bases for X Holdings’ contention is the subject of
12Page 50 a pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 13.
TOPIC NO. 14:
Forecasts, projections, estimates, or other analyses created by Defendants,
Defendants’ Advisors, the Lenders, or the Co-Investors, or on Your or their behalf,
relating to Twitter’s current or future performance, financial condition, or value,
including without limitation any projections of Twitter’s revenues, EBITDA,
earnings, and cash flows, and all Documents and Communications concerning such
forecasts, projections, estimates, or analyses.
RESPONSE TO TOPIC NO. 14:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “analyses
created by Defendants, Defendants’ Advisors, the Lenders, or the Co-Investors, or
on Your or their behalf.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to such analyses is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel. X Holdings further objects to this Topic as overbroad to
the extent it calls for testimony regarding interactions with “potential co-investors”
for the reasons set forth in Defendants’ August 17, 2022 Letter in response to
13Page 51 Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and Objections
to Twitter’s Document Requests and Interrogatories. In responding to this Topic,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 14.
TOPIC NO. 15:
Any plans or potential plans made or considered by Defendants to create or
develop a social media platform and/or alternative or competitor to Twitter,
including without limitation any plans or potential plans concerning X.com, and
including without limitation the origin, history, and timeline of such plans, and all
other Persons involved in such plans or with whom Equity Investor has discussed
such plans.
RESPONSE TO TOPIC NO. 15:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
X Holdings further objects to this Topic to the extent the phrase
“alternative or competitor to Twitter” is vague and ambiguous. X Holdings will
construe “alternative or competitor to Twitter” to include any social media platform
other than Twitter, including X.com.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 15.
14Page 52 TOPIC NO. 16:
Your strategic or business plans for Twitter, including without limitation
(i) all plans to address issues relating to false or spam accounts on the Twitter
platform; (ii) all plans relating to employee retention programs or incentives; and
(iii) all plans relating to potential changes to the size and/or composition of Twitter’s
workforce.
RESPONSE TO TOPIC NO. 16:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent the phrase “strategic
or business plans for Twitter” is vague or ambiguous. Specifically, the phrase
“strategic or business plans” could include any number of short-term or long-term
plans about any facet of Twitter’s business, regardless of their relevance to the issues
in this litigation.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding the subtopics listed in (i), (ii), and (iii) of Topic
No. 16. X Holdings will agree to meet and confer regarding any further testimony
sought with reference to Topic No. 16.
TOPIC NO. 17:
The engagement, the work, and the termination of Bob Swan and/or the
cessation of Bob Swan’s involvement on Defendants’ behalf in connection with the
Merger and the Debt Financing, including the reasons that Defendants determined
that Bob Swan should “depart the deal proceedings” on or about June 23, 2022,
including due to the disconnect in “wavelength” between You and Bob Swan, as
described in Paragraph 110 of the Complaint.
15Page 53 RESPONSE TO TOPIC NO. 17:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 17.
TOPIC NO. 18:
The actual or potential engagement or involvement of Antonio Gracias to act
on Defendants’ behalf in connection with the Merger and the Debt Financing and
the work Antonio Gracias performed in that capacity, including all of the ways that
Antonio Gracias allegedly “dove in to the financing as soon as he was brought on”
to replace Bob Swan, as referenced in Paragraph 198 of the Counterclaim.
RESPONSE TO TOPIC NO. 18:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 18.
TOPIC NO. 19:
The directors, officers, employees, and owners of X Holdings I, Inc., X
Holdings II, Inc., and X Holdings III, LLC, and the relationships between them and
Equity Investor.
16Page 54 RESPONSE TO TOPIC NO. 19:
Subject to and limited by the General Objections, X Holdings will produce a
representative to testify regarding Topic No. 19.
TOPIC NO. 20:
Defendants’ and Defendants’ Advisors’ use of the “Botometer” tool described
in Paragraph 116 and Footnote 16 of the Counterclaim.
RESPONSE TO TOPIC NO. 20:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ Advisors’ use.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ Advisors’ use” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 20.
TOPIC NO. 21:
The engagement of the Data Scientists, including without limitation (i) the
identification of all Data Scientists and when they were engaged; (ii) the scope and
purpose of any such engagement; (iii) how such Data Scientists came to be engaged;
(iv) the nature of any agreements, arrangements, or understandings between the Data
Scientists and Defendants or Defendants’ Advisors.
17Page 55 RESPONSE TO TOPIC NO. 21:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[t]he
engagement of the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[t]he engagement of the Data Scientists” is the
subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 21.
TOPIC NO. 22:
All Persons that Defendants or Defendants’ Advisors communicated with
about a potential engagement as a Data Scientist that were not engaged as a Data
Scientist, including without limitation (i) the identification of all such Persons;
(ii) the timeline during which such potential engagement was considered; and (iii) all
reasons such engagement did not take place.
RESPONSE TO TOPIC NO. 22:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
18Page 56 Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 22.
TOPIC NO. 23:
All work performed by the Data Scientists, including without limitation (i) the
instructions received by the Data Scientists; (ii) the scope of the Data Scientists’
work; (iii) the timeline of the Data Scientists’ work; (iv) a description of the work
performed by each individual working as or for a Data Scientist; (v) the findings,
conclusions, and results of such work.
RESPONSE TO TOPIC NO. 23:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[a]ll work
performed by the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[a]ll work performed by the Data Scientists” is
the subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 23.
TOPIC NO. 24:
The financial model allegedly prepared by Morgan Stanley as described in
Paragraphs 34 and 166 of the Counterclaim and, to the extent different than the
financial model, the valuations allegedly prepared by Morgan Stanley as described
in Paragraph 78 of the Counterclaim, including the extent to which Defendants
19Page 57 received, reviewed, or discussed the referenced model prior to April 25, 2022, and
the extent to which Defendants relied upon the referenced model.
RESPONSE TO TOPIC NO. 24:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 24.
TOPIC NO. 25:
Any “additional business models” that Defendants allegedly considered as a
means to “unlock Twitter’s true value,” as described in Paragraph 39 of the
Counterclaim, including without limitation the “subscription-based model”
referenced in that same Paragraph, the projected or anticipated value of Twitter
based on such business models, and the relevance of mDAU to such business
models.
RESPONSE TO TOPIC NO. 25:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 25.
TOPIC NO. 26:
Defendants’ knowledge of Twitter’s litigation with the Indian government
and/or any content-removal orders issued to Twitter by the Indian government, as
20Page 58 discussed in Paragraphs 18 and 181 through 185 of the Counterclaim, including
without limitation when Defendants became aware of such litigation and/or contentremoval orders and who made them aware of such orders.
RESPONSE TO TOPIC NO. 26:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 26.
TOPIC NO. 27:
All “key decisions” that Twitter allegedly made “outside the ordinary course
without consulting the Musk Parties,” as alleged in Paragraphs 186 through 195 of
the Counterclaim.
RESPONSE TO TOPIC NO. 27:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 27.
TOPIC NO. 28:
The extent to which Defendants undertook any review, prior to executing the
Merger Agreement, of each of the allegedly false and misleading statements
discussed at Paragraphs 109 through 149 of the Counterclaim.
21Page 59 RESPONSE TO TOPIC NO. 28:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 28.
TOPIC NO. 29:
The reliance of Defendants and/or Defendants’ Advisors on Twitter’s
representations in its SEC filings, as alleged in Paragraph 27 of the Counterclaim.
RESPONSE TO TOPIC NO. 29:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 29.
TOPIC NO. 30:
Defendants’ beliefs about the number and/or prevalence of false or spam
accounts or bots on the Twitter platform, including all bases for such beliefs and
Defendants’ allegations set forth in Paragraphs 212 and 213 of the Counterclaim that
“[a]t the time of the Merger Agreement, Defendants/Counterclaim-Plaintiffs did not
know the false or misleading statements or omissions” and “[h]ad
Defendants/Counterclaim-Plaintiffs known about the false or misleading statements
and omissions, they would not have entered into the Merger Agreement.”
22Page 60 RESPONSE TO TOPIC NO. 30:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “all bases
for such beliefs.” The applicability of the work product doctrine and Chancery Rule
26(b)(4)(B) to “all bases for such beliefs” is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 30.
TOPIC NO. 31:
Defendants’ bases for contending that “statement[s] of material fact” in
documents that Twitter has filed with the SEC since January 1, 2022 were “untrue”
or “misleading,” including statements that Defendants contend contained
representations that “fewer than 5%” of Twitter’s mDAU are false or spam accounts.
RESPONSE TO TOPIC NO. 31:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ bases for contending.” The applicability of the work product doctrine
23Page 61 and Chancery Rule 26(b)(4)(B) to “Defendants’ bases for contending” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 31.
TOPIC NO. 32:
Defendants’ understanding of Twitter’s mDAU recast in April 2022, as
discussed in Paragraphs 9 and 79 through 81 of the Counterclaim.
RESPONSE TO TOPIC NO. 32:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 32.
TOPIC NO. 33:
The “preliminary analysis by Mr. Musk’s advisors” and the results thereof
described in the final paragraph of page 6 of Defendants’ July 8 letter.
RESPONSE TO TOPIC NO. 33:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
24Page 62 specifically insofar as it calls for the disclosure of information regarding the
“preliminary analysis by Mr. Musk’s advisors.” The applicability of the work
product doctrine and Chancery Rule 26(b)(4)(B) to the “preliminary analysis by Mr.
Musk’s advisors” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 33.
TOPIC NO. 34:
Defendants’ alleged belief that “due diligence processes can be costly and
inefficient,” as set forth in Paragraph 60 of the Counterclaim.
RESPONSE TO TOPIC NO. 34:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 34.
TOPIC NO. 35:
Defendants’ alleged assumption that Twitter “rel[ied] on automation, artificial
intelligence, and machine learning” to count false or spam accounts, as described in
Paragraph 83 of the Counterclaim.
25Page 63 RESPONSE TO TOPIC NO. 35:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 35.
TOPIC NO. 36:
Defendants’ understanding of the “stratification” or potential stratification of
Twitter’s mDAU, as that term is used in Paragraph 141 of the Counterclaim, whether
performed before or after the execution of the Merger Agreement.
RESPONSE TO TOPIC NO. 36:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ understanding” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 36.
26Page 64 TOPIC NO. 37:
Defendants’ allegation that “nearly a third of Twitter’s mDAU in fact see no
ads and appear to generate no revenue at all,” as set forth in Paragraph 138 of the
Counterclaim.
RESPONSE TO TOPIC NO. 37:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it may call for the bases for X Holdings’ allegation. The
applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to the
bases for X Holdings’ allegation is the subject of a pending motion to compel.
X Holdings will respond to this Topic according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 37.
TOPIC NO. 38:
Defendants’ knowledge and understanding of their allegation that “mDAU
growth is not occurring among high-value users,” as set forth in Paragraph 142 of
the Counterclaim.
RESPONSE TO TOPIC NO. 38:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
27Page 65 doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ knowledge and understanding.” The applicability of the work product
doctrine and Chancery Rule 26(b)(4)(B) to “Defendants’ knowledge and
understanding” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 38.
TOPIC NO. 39:
All allegations in Defendants’ Counterclaim.
RESPONSE TO TOPIC NO. 39:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify the particular paragraphs of the Counterclaims about which
Plaintiff seeks testimony.
Subject to and limited by the foregoing objections, and after Plaintiff
identifies which paragraphs are covered by this Topic, X Holdings will produce a
representative to testify regarding Topic No. 39.
28Page 66 TOPIC NO. 40:
Defendants’ understanding of how many false or spam accounts existed on
the Twitter platform as of July 8, 2022, in absolute terms and as a percentage of
Twitter’s mDAU, and all their bases for that understanding as of that date.
RESPONSE TO TOPIC NO. 40:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding” and “their bases for that understanding.”
The
applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to
“Defendants’ understanding” and “their bases for that understanding” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 40.
TOPIC NO. 41:
Defendants’ policies, practices, software, hardware, and systems relating to
the storage, management, retention, and destruction of Documents and
Communications.
29Page 67 RESPONSE TO TOPIC NO. 41:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 41.
TOPIC NO. 42:
Defendants’ efforts to ensure that Documents relating to the discovery
requests in this Action and/or the Complaint were properly preserved, including any
related litigation hold or document preservation letters or notices.
RESPONSE TO TOPIC NO. 42:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 42.
30Page 68 TOPIC NO. 43:
Defendants’ efforts to retrieve text messages, instant messages, and other nonemail Communications.
RESPONSE TO TOPIC NO. 43:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 43.
TOPIC NO. 44:
Any sales of Tesla stock by Equity Investor from April 1, 2022 through the
present, including the purpose of any such sale, any potential use of the proceeds of
such sale considered by Defendants, and any relationship between such sale and the
Merger.
RESPONSE TO TOPIC NO. 44:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 44.
31Page 69 TOPIC NO. 45:
The identity, role, and nature of the work of any personnel of Tesla or Space
Exploration Technologies Corp. who worked on, analyzed, or assisted in any
capacity with the Merger, the Debt Financing, the Equity Financing, any potential
investment by a Co-Investor, the Margin Loan Commitment, any potential tender
offer involving Twitter, Defendants’ purported termination of the Merger
Agreement, or the Action.
RESPONSE TO TOPIC NO. 45:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 45.
TOPIC NO. 46:
All information contained in Defendants’ Interrogatory Responses, including
all sources of such information and Defendants’ process of ascertaining and
providing such information.
32Page 70 RESPONSE TO TOPIC NO. 46:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify which particular interrogatory responses Plaintiff seeks testimony
on.
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 46.
OF COUNSEL:
Alex Spiro
Andrew J. Rossman
Christopher D. Kercher
Silpa Maruri
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010
(212) 849-7000
/s/ Edward B. Micheletti
Edward B. Micheletti (ID No. 3794)
Lauren N. Rosenello (ID No. 5581)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899-0636
(302) 651-3000
Attorneys for Defendant X Holdings II, Inc.
DATED: August 19, 2022
33
916787-WILSR01A - MSWPage 71 EXHIBIT 5Page 72 From:
Sent:
To:
Cc:
Subject:
Matthew Fox
Tuesday, September 20, 2022 12:49 PM
Wilson, Bradley R.; Yavitz, Noah B.; Kirk, David E.; Shannon, Kevin R. (Potter Anderson &
Corroon LLP); Kelly, Christopher N. (Potter Anderson & Corroon LLP); Slights, Joseph R.
(Wilson Sonsini Goodrich & Rosati, PC)
Mader, David S. (Quinn Emanuel Urquhart & Sullivan LLP); Silpa Maruri; Emily Kapur;
Rossman, Andrew J. (Quinn Emanuel Urquhart & Sullivan LLP); Alex Spiro; Kercher,
Christopher D. (Quinn Emanuel Urquhart & Sullivan LLP); Kathryn Bonacorsi; Micheletti,
Edward B. (Skadden, Arps, Slate, Meagher & Flom LLP); Rosenello, Lauren N
RE: Twitter v. Musk -- Birchall 30(b)(6) topics
*** EXTERNAL EMAIL ***
Further to my email below, Mr. Birchall will also be Defendants’ 30(b)(6) representative on topics 11, 20‐23, 26, 27, 32,
and 36‐38 from Twitter’s August 11, 2022 notices, again subject to Defendants’ general and specific responses and
objections thereto.
From: Matthew Fox
Sent: Tuesday, September 20, 2022 12:01 PM
To: Wilson, Bradley R. ; Yavitz, Noah B. ; Kirk, David E. ; Shannon, Kevin R. (Potter Anderson & Corroon LLP) ; Kelly,
Christopher N. (Potter Anderson & Corroon LLP) ; Slights, Joseph R. (Wilson Sonsini
Goodrich & Rosati, PC)
Cc: David Mader ; Silpa Maruri ; Emily Kapur ; Andrew J. Rossman ; Alex Spiro ; Christopher Kercher ; Kathryn Bonacorsi ; Micheletti, Edward B. (Skadden, Arps, Slate, Meagher & Flom LLP) ; Rosenello, Lauren N
Subject: Twitter v. Musk ‐‐ Birchall 30(b)(6) topics
Counsel,
Defendants designate Jared Birchall as their 30(b)(6) representative on topics 2, 3, 4, 5, 19, 41, 42, 43, and 46 from
Twitter’s August 11, 2022 notices to X Holdings I, Inc. and X Holdings II, Inc, subject to Defendants’ general and specific
responses and objections thereto. Defendants, like Twitter, will not make any witnesses available for deposition more
than once.
Best,
Matt
Matthew Fox
Associate
Quinn Emanuel Urquhart & Sullivan, LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
212-849-7285 Direct
212-849-7000 Main Office Number
212-849-7100 FAX
1Page 73 matthewfox@quinnemanuel.com
www.quinnemanuel.com
NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message
may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended
recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any
review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately
by e-mail, and delete the original message.
2Page 74 EXHIBIT 6Page 75 Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, 2022
Jared Birchall
Page 1
Page 3
APPEARANCES CONTINUED
IN THE CHANCERY COURT
OF THE STATE OF DELAWARE
--------------------------------TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I, INC.,
and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
Civil Action No. 2022-0613-KSJM
---------------------------------
ATTORNEYS FOR DEFENDANTS AND COUNTERCLAIM-PLAINTIFFS
AND THE DEPONENT MR. BIRCHALL
Alex Spiro, Esquire
Quinn Emanuel Urquhart & Sullivan, LLP
51 Madison Avenue
22nd Floor
New York, New York 10010
(212) 849-7000
ALSO PRESENT:
VIDEO DEPOSITION OF
Jared John Birchall
Individually and as Corporate Designee of:
X HOLDINGS I, INC. AND X HOLDINGS II, INC.
September 21, 2022
New York, New York
Lead: Kevin R. Shannon, Esquire
Firm: Potter Anderson & Corroon, LLP
Nathanial P. Graham, Paralegal
Wachtell Lipton Rosen & Katz
Jamie S. Blair, New York Remote Notary Public
(Appearing via Zoom)
JANE ROSE REPORTING
74 Fifth Avenue
New York, New York 10011
1-800-825-3341
Joan V. Cain, Court Reporter
FINAL COPY - CONFIDENTIAL
JANE ROSE REPORTING 1-800-825-3341
Larry Moskowitz, Videographer
Page 2
APPEARANCES
ATTORNEYS FOR PLAINTIFF AND COUNTERCLAIM-DEFENDANT
Page 4
TABLE OF CONTENTS
Witness:
Jared John Birchall
Kevin R. Shannon, Esquire
Potter Anderson & Corroon, LLP
1313 North Market Street
Hercules Plaza
Sixth Floor
Wilmington, Delaware 19801
Examination
By Mr. Shannon..............................Page 7
By Mr. Spiro................................Page 332
(302) 984-6000
Reporter Certificate........................Page 335
-AND-
Notice to Read and Sign.....................Page 337
Noah B. Yavitz, Esquire
Index of Exhibits...........................Page 339
Jessica L. Allen, Esquire
Wachtell Lipton Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000
JANE ROSE REPORTING
1-800-825-3341
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PROCEEDINGS
--9:33 a.m.
September 21, 2022
--THE VIDEOGRAPHER: Good morning. We are
now on the record. Here begins Media No. 1, Volume
1, in the deposition of Jared Birchall, in the
matter of Twitter, Inc. versus Elon R. Musk, X
Holdings I, Inc. and X Holdings II, Inc.
Today's date is September 21st, 2022, and
the time is 9:33 a.m. This deposition is being
taken at the office of Quinn Emanuel, 51 Madison
Avenue, New York, New York, and was made at the
request of plaintiffs.
My name is Larry Moskowitz, the
videographer, and the court reporter is Joan Cain,
from Jane Rose Reporting, New York, New York.
Will counsel please identify yourselves and
state whom you represent.
MR. SPIRO: Alex Spiro, Quinn Emanuel, on
behalf of Mr. Birchall and X Holdings.
MR. SHANNON: Kevin Shannon, Potter
Anderson, on behalf of Plaintiff Twitter.
MR. YAVITZ: Noah Yavitz, Wachtell Lipton,
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on behalf of Plaintiff Twitter.
MS. ALLEN: Jessica Allen, Wachtell Lipton,
on behalf of plaintiff Twitter.
MR. SHANNON: If you'd like to take a short
break and eat your sandwich?
THE WITNESS: I'm okay.
THE VIDEOGRAPHER: Will the notary public
please swear in the witness.
THE NOTARY: Yes.
Mr. Birchall, would you please state and
spell your name for the record, as well as state
your address, please.
THE WITNESS: Jared Birchall,
J-A-R-E-D B-I-R-C-H-A-L-L. Address:
Austin, Texas 78738.
THE NOTARY:
? I'm sorry.
THE WITNESS: I'm sorry.
.
THE NOTARY:
-THE WITNESS:
.
THE NOTARY: Oh,
. I'm sorry. Austin,
Texas.
And the zip code, please?
THE WITNESS: 78738.
THE NOTARY: Thank you.
Whereupon,
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
JARED JOHN BIRCHALL,
having been duly sworn under penalties of perjury by
the New York Notary Public, was examined and did
testify as follows:
THE NOTARY: Counsel, you may proceed.
MR. SHANNON: Thank you.
EXAMINATION BY COUNSEL FOR PLAINTIFF AND
COUNTERCLAIM-DEFENDANT
BY MR. SHANNON:
Q Good morning, Mr. Birchall. We've been
previously introduced. My name is Kevin Shannon. I
represent Twitter in this case.
Is there any reason you would not be able
to give your complete, truthful testimony today?
A No.
Q Have you ever been deposed before?
A I have.
Q How many times?
A I believe three.
Q Can you tell me in what matters you were
deposed?
A Well, I believe two connected to this
matter by government agencies, and then one -- I
don't know how I'd refer to it, but a trial four
years ago. It was Vern Unsworth versus Elon Musk, a
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defamation lawsuit.
Q Okay. And did you give both deposition and
trial testimony in that case?
A In that case, I did.
Q And you started out by alluding to two
depositions you've given relating to this matter.
Who did you give those depositions to?
A To the SEC and to -- actually, there were
two depositions with the SEC and then one with the
DOJ.
Q When did those depositions occur?
A The SEC was -- the second of the two was a
week ago. The DOJ was two weeks ago.
Q And when was the first of the two SEC?
A A month ago.
Q Okay. And who represented you in
connection with those depositions?
A Quinn Emanuel.
Q And Mr. Spiro, who's defending you today?
A Yeah. He was present at both of those.
Q Okay. Were there transcripts of those
depositions?
A I don't know.
Q You don't recall ever seeing the
transcripts?
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A I've never seen a transcript.
Q With regard to the two SEC depositions,
what specifically did they relate to?
A To the purchase of Twitter shares
primarily. I mean, there was a lot of material
covered. It was kind of all the logistics and
timing as it pertained to acquiring shares of
Twitter and the merger agreement.
Q Did you have an understanding as to why
there was a second deposition before the SEC?
A Yes.
Q What was your understanding?
A My understanding was it was to cover a
different time period.
Q What was the time period of the first
deposition?
A It was up until the merger agreement, and
then the second was post.
Q What did the questioning relate to with
regard to the second deposition, which is post
signing of the merger agreement?
A As I recall, it related to filings. I
mean, it was hours of questioning. So -- but
filings among -- among other, I guess,
timing-related questions that they had. I don't
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recall all those questions.
Q Are you aware of any other representative
of defendants that were questioned by the SEC or the
DOJ in connection with the same matters?
A I -- I believe Elon was as well.
Q Anyone else?
A I mean, not firsthand knowledge. I -- I
could guess on a few, but I -- I don't know
personally with certainty.
Q What's your understanding as to who else
would likely be investigated or -A Morgan Stanley representatives,
potentially, the legal representatives.
Q You also referred to a deposition by the
DOJ. What did that relate to?
A Similar topics: Asked many of the same
questions or similar -- similar line of questioning
with regard to timing and filings and motivations
and, you know, things like that.
Q Did you have an understanding as to why the
DOJ was taking a separate deposition regarding those
topics?
A My assumption was they're a separate
government entity with separate questions.
Q Just so it's clear, even though you've been
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
deposed and deposed recently, today I'm going to ask
you a series of questions. If you don't hear a
question, certainly let me know, and I'll repeat it.
If you don't understand a question, let me know, and
I'll try and rephrase it. And at any point today
you need to take a break, just let me know, and
we'll take a break.
A Will do.
Q What did you do to prepare for your
deposition today?
A I met with the Quinn team yesterday, the
Quinn Emanuel team, for approximately five hours.
Q Did you review documents in connection with
that?
A I don't recall. I wasn't provided any
documents. I think questions were asked based on
documents, but I wasn't provided any documents.
Q Was anyone present during that meeting
other than lawyers for Quinn Emanuel?
A No.
Q Other than meeting with Quinn Emanuel
yesterday for five hours -- approximately five
hours, do you recall doing anything else to prepare
for your deposition today?
A I spent about another 40 minutes this
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morning with -- with them.
Q Anything else?
A No.
Q Have you discussed your potential
deposition testimony with any other witnesses?
A No.
Q Have you discussed it with anyone?
A No. Beyond Quinn Emanuel, no.
Q Have you reviewed any deposition
transcripts from this case?
A No. I don't have those.
Q Did you discuss your deposition with
Mr. Musk?
A No.
Q Can you briefly describe your education
post high school?
A A four-year degree at Brigham Young
University.
Q What year did you graduate?
A In '99.
Q What was your major?
A I was a Spanish language major, business
minor.
Q Did you go to Brigham Young immediately
following high school?
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A I did.
Q Do you have any certifications, such as a
CPA, or anything along those lines?
A Not a CPA. There were certain regulatory,
you know, Series 7, things like that, that at one
point I had. Those have lapsed. There was a CFM
designation that was earned while working at Merrill
Lynch.
Q And any series registrations that you have
or your CFM, your understanding those have lapsed?
A Correct. I don't know about the CFM
actually. But -Q Did you have any education after your
degree in Spanish from BYU?
A Formal education?
Q Correct.
A No.
Q You qualified your answer to formal
education. Is there informal education that you
were thinking of?
A I mean, yeah, there's a lot of training
that happened at employers, but not formal.
Q Can you briefly describe your employment
history following your graduation from Brigham
Young?
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A I was employed by Goldman Sachs in Los
Angeles.
Q When did you start at Goldman Sachs?
A That would have been late spring of -- of
'99.
Q What was your position at Goldman Sachs?
A Financial analyst.
Q How long were you at Goldman Sachs?
A A little less than two years.
Q Were you in the same position the entire
time?
A Yes.
Q Can you briefly describe your
responsibilities as a financial analyst at Goldman
Sachs?
A To support a team of private wealth
advisers and whatever they needed. That included a
lot of PowerPoint and Excel work and whatever
researching they needed and supporting clients
tangentially through them.
Q So you were on the private wealth side of
Goldman Sachs?
A That's right.
Q And you testified you were there for
approximately two years, which I take is until about
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
2001.
What did you do after that?
A Transitioned with a large team of Goldman
Sachs employees to Merrill Lynch.
Q Where were you working for Merrill Lynch?
A Geographically?
Q Yes.
A In Los Angeles.
Q What was your position at Merrill Lynch?
A Initially, the same position, which was a
financial analyst.
Q Did that change over time?
A It did.
Q How did that change?
A Several years in, I transitioned into a
financial advisory role.
Q Approximately, when did you transfer into
that role?
A Approximately, two thousand -- somewhere
between 2003 and 2004.
Q And what did that role entail?
A It entailed advising a group of clients on
their personal financial matters.
Q At Merrill Lynch, were you also on the
private wealth side?
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A That's correct.
Q How long did you stay at Merrill Lynch?
A Ten years.
Q Did you remain as a financial adviser until
you left?
A I did.
Q And what year did you leave?
A Two thousand -- let's see here. Sorry.
I believe it was 2010.
Q What was your reason for leaving Merrill
Lynch?
A I was dismissed by the firm.
Q Why were you dismissed by the firm?
A The stated reason was that I -- there was
correspondence with a client that they had not
reviewed.
Q What type of correspondence?
A Regarding a trade request, a trade program
by that client.
Q You testified the stated reason. Did you
have an understanding that there was a different
reason?
A No. I'm just, I guess, trying to refer to
what they have stated because I think that's -Q Did you have an understanding as to why the
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correspondence you alluded to led -- led Merrill
Lynch to terminate your employment?
A Because they didn't review that
correspondence.
Q Any other reason?
A No.
Q What was your next position after Merrill
Lynch?
A A private wealth adviser at Morgan Stanley.
Q When did you start that position?
A In -- let's see here.
I mean, it was immediately after leaving
Merrill Lynch.
Q So 2010 or '11?
A Yeah.
Q Okay. How long were you with
Morgan Stanley?
A Between six and seven years.
Q And were you a private wealth adviser
during that entire period?
A I was.
Q Located in Los Angeles?
A Correct.
Q What were your responsibilities in that
position?
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A To provide advisory services to -- to
investor -- to clients.
Q And what type of advisory services?
A How they should invest their money.
Q And when did you leave Morgan Stanley?
A I left Morgan Stanley in two thousand -sorry. I'm blanking. It's either 2016 -- I'm
sorry. '15 or '16. I'm -Q Just the general time period -A Yeah.
Q -- is -- is fine.
A Yeah.
Q Why did you leave Morgan Stanley?
A I was offered a position to manage the
family office of Elon Musk.
Q When did you first meet Elon Musk?
A The very first time that I met Elon Musk,
though he probably wouldn't remember, was as an
employee at Morgan Stanley years earlier.
Q How did it come about that you were offered
the job to manage the family office for Mr. Musk?
A As I understood it, he had asked a friend,
adviser, a trusted person if they knew of anyone
that could help him do this, and I was one of the
names given to him.
JANE ROSE REPORTING
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September 21, 2022
Jared Birchall
Q Do you know who he asked for that advice?
A I do.
Q Who was that?
A An -- an employee that had worked at
Merrill Lynch for him for a number -- for a handful
of years, whose name is
.
Q And did you interview with Mr. Musk?
A I did.
Q Do you recall when that was, generally?
A Yeah. It was -- it was, like, the month
preceding my hiring, so whichever those dates was -Q Okay. And so have you worked as the head
of the family office for Mr. Musk since that time
period?
A I have.
Q And what is your current title?
A Titles don't mean much in -- or -- or
technically it's the managing director of the -- of
Excession, LLC, or the Musk family office.
Q And is Excession, LLC, the family office?
A That's correct.
Q And have you been in that position since
you started?
A That's right, although Excession didn't
exist when I started, but shortly thereafter.
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Q Okay.
A Yes.
Q Was there a prior name for it?
A No.
Q And can you briefly describe your
responsibilities with regard to managing the family
office for Mr. Musk?
A Primarily, all things related to his
personal financial situation and, you know, his
personal affairs.
Q Just, like, when you say "personal
financial situation," can you give me examples of
the types of things you have responsibility for?
A Sure. Helping manage his balance sheet,
helping with everything from bill pay to lending
needs to stock transactions.
Q And you also suggested you have
responsibility to some extent for managing his
personal affairs. What were you alluding to there?
A Domestic employees, security, and, you
know, whatever else was needed.
Q Does anyone else work for Excession?
A Yes.
Q Who else works for Excession?
A You want the names?
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Q Yeah.
A
.
Q And just to save some time, if you could
let me know each of their roles as you identify
them -A Sure.
Q -- how long they've worked for the company?
A Yeah. So
is an accountant and
has worked with the company for approximately three
years.
, oversees philanthropic
efforts, and she's been with Excession for less than
a year.
works as a
bookkeeper/administrative kind of ops
representative. She has been with Excession
approximately five years, and those are the only
direct employees of Excession.
Q You said direct employees. Are there
people you would characterize as indirect employees
or independent consultants who work for Excession?
A No. I guess where my mind was going is we
also have domestic employees and security
representatives that -- personal security, not,
like, financial security, but that are employed
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through -- they're not technically employed by
Excession. They're employed by another entity, but
overseen by the Excession umbrella.
Q Is there a physical office for Excession?
A There is.
Q Where is that?
A Austin, Texas.
Q And does Mr. Musk have an office there?
A No.
Q Does he ever come to that office?
A No.
Q To the best of your knowledge, has he ever
been to the office?
A No.
Q Do you have an understanding why?
A He has a million other things that he's
doing in other offices and office spaces and
companies that he's focused on.
Q Is there anyone else at that office other
than the people you've just identified?
A No.
Q Okay. In your position as head of family
office -A Actually, I'm sorry. There are -- there
are two employees that oversee property management
JANE ROSE REPORTING
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Jared Birchall
that I was thinking were -- were employed by the
other entity but are employed by Excession.
Q Are their responsibilities solely property
management?
A That's right.
Q And they are properties owned by Mr. Musk
or affiliates?
A That's right -- no, not owned. Used or
rented or, you know.
Q Okay. In your position at Excession and
head of the family office, do you -- who do you
report to?
A Elon.
Q Do you report to anyone else?
A No.
Q Does anyone other than Mr. Musk give you
instruction or direction as to what you should do?
A No.
Q Who determines how much you're paid?
A Mr. Musk.
Q Does Mr. Musk determine whether you stay
with the company or are terminated?
A Yes.
Q How often do you typically communicate with
Mr. Musk?
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A That varies significantly based on all
things that are happening, but there's a standing
weekly meeting that is fairly consistent.
Q Is that at a set time each week?
A There is a recurring calendar invite for
that that is set for
,
although it many times doesn't happen at that time.
Q You say it doesn't happen at that time. If
it doesn't happen, will it be rescheduled?
A Typically, it is.
Q And what is the purpose of that recurring
meeting?
A It is an update on all the work being done
for the week.
Q How does that meeting occur? Is it in
person, or is it Zoom? Or how does it occur,
typically?
A
.
Q
?
A
.
.
Q So are there -- let me take a step back.
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A
Q
A
?
Typically.
Okay.
I mean, within reason.
, we either would not have a
meeting or postpone it or -,
and at times they didn't happen.
Q Okay. Who else attends these meetings?
A It is mostly just the two of us. You know,
every once in a while, if there's a subject matter
expert that needs to be there with us to cover
something, they'll -- they'll join.
Q Is an agenda prepared for the meetings?
A No.
Q Does Mr. Musk ever advise you on what he
wants covered at the meetings?
A I -- sometimes.
Q How would he typically communicate that to
you?
A There's a general understanding of what he
wants covered at those meetings, and so I would come
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prepared with that information in general, and in
some cases there would be a communication, you know,
in the days leading up with a specific request. And
that could be anywhere from a phone conversation to
a text to an email to a Signal message. It could be
any of those.
Q When you say there's a general
understanding of what he wants at the meetings,
what's your general understanding?
A An update on his financials.
Q And has that recurring meeting generally
occurred throughout this year?
A Generally, yes, with some exceptions.
Q Outside of the recurring meeting, is there
a manner in which you typically communicate with
Mr. Musk?
A Primarily the -- the mediums that I just
mentioned. I -- I think most of that communication
is in person during those weekly meetings, and then
we have utilized, historically, phone, email, text,
Signal.
Q Is -- is there a manner in which you
decide, if you have something you want to relay to
Mr. Musk, how you will send it, whether by phone,
text, Signal, or email?
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A So that would depend on the -- on the
content of -- of what I was sending and -- and the
timing. There's certain topics, of course, now,
that would -- would drive a type of communication a
certain -- through a certain medium versus another.
But, historically, things that are private
and personal and involve his personal information
would -- for the better part of the past four years,
five years maybe, Signal is -- is primarily how that
information is communicated.
Q Why do you use Signal for that purpose?
A For privacy and confidentiality. He -- the
first four years that I worked for him, I worked
half of the week at SpaceX and had it continually
pounded into me the -- the many different
adversaries that were seeking to access his
information. ITAR, a regulated company, and -THE COURT REPORTER: Say that again. I
missed it.
THE WITNESS: ITAR, I-T-A-R, a regulated
company with a lot of sensitivities, and so that was
impressed upon me and recommended by the IT teams,
to -- to communicate his personal information via
Signal.
BY MR. SHANNON:
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Q And why is Signal, in your understanding,
more protected or confidential?
A It's encrypted.
Q Are the Signal messages preserved?
A Signal -- I have a default setting on mine
that deletes in one week.
Q And do you know if Mr. Musk has a similar
one?
A I don't know what his settings are. I -- I
only know that my line of dialogue with him has that
setting on it.
Q Have you ever changed that setting?
A No.
Q Is that setting set for only Mr. Musk, or
is that for all your Signal messages?
A If I start a Signal message with any
person, it automatically -- the setting is that it
defaults at one week.
Q Have you ever changed that setting?
A I haven't. There -- there are others that
I correspond with that maybe have set different
timeframes.
Q Who else do you correspond with using
Signal?
A Primarily, his personal inner circle, his
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security. That's primarily it.
Q Do you ever use Signal for business?
A Again, I'm hired to manage his personal
family office, and so I guess it depends on your
definition of -- of business, but certainly for his
personal financial matters, yes.
Q Would you view his investment in Twitter as
one of his personal financial matters?
A His purchases of Twitter, definitely.
Yeah.
Q So did you use Signal with regard to any
matters relating to Twitter, including his purchase
of Twitter?
A I don't recall using Signal for that
purpose. The updates that I was giving him was in
person on -- you know, when I was with him in the
meetings, but certainly there was a moment
that when there were litigation holds where added
care was taken to never use it for anything
involving Twitter.
Q When do you recall that occurring?
A Approximately mid-May.
Q Who did you receive the litigation hold
from?
A I don't recall if it was from Skadden or
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Quinn, but -- or both. I don't know. But it was
from one or the other.
Q Do you know what triggered the receipt by
you of a litigation hold in mid-May of 2022?
A The way I understood it is there was
pending litigation.
Q What pending litigation are you referring
to?
A Between the two parties in question today:
Twitter and Elon Musk.
Q Did you have an understanding that
litigation was pending in mid-May 2022?
A I mean, my assumption was that a litigation
hold was correlated with some degree of litigation.
Q Okay. So is it your recollection that
since mid-May, as a result of receiving that
litigation hold, you have not used Signal?
A For Twitter-related matters, yes.
Q Are you still using it for other matters?
A I am.
Q And does it still have the auto delete at
one week?
A It does.
Q You also referenced that you communicate
with Mr. Musk via email. How do you determine when
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Jared Birchall
you will email something to Mr. Musk as opposed to
Signal, text, or call?
A Email is much less frequent, and sometimes
it is because I have specifically asked him, whether
in our meeting or otherwise. Sometimes others have
initiated emails that it is just easier and not
overly confidential to just forward that along.
Q When you say because you specifically asked
him, what do you mean by that?
A In our -- I can just think of one email in
particular where we -- you know, sitting down with
him in a
meeting I would have asked, "Okay.
Is this okay to email?" And always with the -- I'm
always thinking of -- of the -- you know, the things
that the IT team has hammered into my head as far as
privacy and confidentiality and security risks,
and -- and so at times I would double check before
sending something.
Q What kind of things would you view as okay
to email?
A Well, one of the more recent emails that I
sent was regarding architectural plans that the
architecture team, you know, wanted him to see, and
so something like that. I -- but the less, I guess,
confidential private matters that -- you know, I
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guess the less confidential and private matters,
yeah.
Q Would you view Mr. Musk's investment in
Twitter to be a confidential and private matter?
A Yes.
Q When you email Mr. Musk, what email address
do you use?
A I've used -- historically, I've used two,
but almost exclusively the SpaceX email.
Q What are the two that you've historically
used?
A The other being his Tesla email.
Q Why do you use the SpaceX account?
A That's -- like I said, I spent four years
at SpaceX sitting, you know, at a desk a few desks
away from him, and that was just kind of where I
started my communications via email with him.
Q What email account do you use in order to
communicate through email to Mr. Musk?
A It's an Excession email address.
Q Do you ever use a different email account
to communicate with Mr. Musk?
A Not that I recall.
Q You also suggested that you speak with
Mr. Musk by phone. Is there more than one phone
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number that you call for him?
A No, not at any given time, but over -- over
time he has changed his phone.
Q But at any given time, you're only aware of
him having one phone number that you would reach out
to?
A That's right.
Q How about text? Do you communicate with
Mr. -- Mr. Musk using texts?
A Sometimes.
Q How do you determine when to communicate
with Mr. Musk using texts?
A Typically, if he has texted me, you know, I
will respond via text. Again, if it -- if it isn't
of sensitive personal confidential nature, if it's
trying to get him on a phone call or something like
that, I'll use, you know, text.
Q And I assume that would be to the one
number you have used when you call him?
A That's right.
Q And do you have more than one phone?
A I don't.
Q What is your practice with regard to
preserving texts?
A I don't delete texts.
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Q Do you recall having deleted any texts?
A I don't.
Q Does your phone have a setting with regard
to texts?
A I, frankly, don't know that.
Q Do you know if Mr. Musk deletes his texts?
A No idea.
Q Do you know if his phone has a setting for
texts?
A I don't know.
Q How about WhatsApp or any other messaging
apps? Do you use any of them to communicate?
A I don't.
Q And just so I understand, we've walked
through the way you communicate. Is it fair to say
that anything you would view as confidential and
personal, you would typically default to Signal?
A Unless subject to the litigation hold that
I mentioned.
Q Mr. Birchall, are you aware that you're
appearing as a Rule 30(b)(6) witness -- 30(b)(6)
witness today?
A Yes.
Q And you're appearing on behalf of both X
Holdings I and X Holdings II; correct?
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Jared Birchall
A That's right.
Q And can you tell me what your role is at X
Holdings I?
A Well, I'm one of two people that I think
represent the organization that was created
exclusively for this transaction.
Q Is the other person Mr. Musk?
A Correct.
Q Do you have a title at X Holdings I?
A I don't, or at least I don't know of one
that I -Q How about X Holdings II? What is your role
there?
A The same.
Q And is Mr. Musk the only other person
involved with that entity?
A I believe so.
Q And has that been true since the entities
were formed?
A As far as I know, yes.
Q And what is the difference between X
Holdings I and X Holdings II?
A Just multiple layers of entities for
purposes at the recommendation of legal teams.
Q Do you know why both different entities
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were established?
A Like I said, at -- it was -- they were
established at the recommendation of -- of legal
teams for the -- you know, for the execution of this
transaction.
Q Do you have any specific role at either
entity?
A Not that I know of, other -- other than to
be -- you know, continue doing what I'm doing for
Mr. Musk.
Q When you say continue to be doing what
you're doing, what do you mean by that?
A I mean work as -- work in the capacity that
I always have, you know, as just, you know, adviser
or whatever.
Q And any action you would take on behalf of
either X Holdings I or X Holdings II would be at the
direction of Mr. Musk?
A In conjunction with at least, yes.
Q Have you read the Rule 30(b)(6) deposition
notices in this case?
A I don't believe I have.
Q Have you -A Is this -- is this an issue (indicating)?
No. Okay.
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Q Have you read the defendants' responses or
objections -- and objections to the 30(b)(6)
notices?
A I haven't.
Q When did you learn that you were going to
be designated as a Rule 30(b)(6) witness?
A Yesterday.
Q Can you generally tell me what topics you
are testifying on regarding -- or with respect to
the 30(b)(6) notices?
A I -- I don't recall the list. There were a
few -- a handful of things on that, but I -- I don't
recall specifically what those, you know -Q Do you recall any specific ones?
A I don't.
Q Okay. What did you prepare -- or strike
that.
What did you do to prepare in order to be a
30(b)(6) with regard to the topics that have been
designated for you?
A That was part of the block of time that I
mentioned yesterday with -- with the legal team.
Q The -- the five hours that you -A That's right.
Q With regard to the topics for which you've
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been identified, do you view yourself as the person
most knowledgeable at X Holdings I or X Holdings II?
A I think so, far as I know.
Q Would there be anyone else knowledgeable
other than you and Mr. Musk on behalf of those
defendants?
A Not that I -- no, I don't believe so.
MR. SHANNON: Can you hand me the 30(b)(6)?
Thanks.
Will you mark that as Exhibit 1.
--(Birchall Exhibit 1 was marked for
identification.)
--MR. SHANNON: And if you could mark that as
Exhibit 2.
--(Birchall Exhibit 2 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibits 1 and 2, which I
will represent to you are the 30(b)(6) notices
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
served by plaintiffs for both X Holdings I and X
Holdings II for which you've been designated as to
certain topics, the designated witness.
A Okay.
MR. SPIRO: Kevin, do you happen to have a
copy?
MR. SHANNON: Oh, sorry. Let me make sure
I give you both. Here's Exhibit 2.
MR. SPIRO: You can proceed as we're
finding them.
MR. SHANNON: There's Exhibit 1.
MR. SPIRO: Thank you.
BY MR. SHANNON:
Q And, Mr. Birchall, I know you testified you
hadn't seen these before, but I'm going to ask you
to turn to page 12 of the one that is marked
Exhibit 1.
A Okay. I'm there.
Q And -- and they should be largely the same
except for different defendants.
Do you have that in front of you?
A I do.
Q And the first topic that's listed for which
you've been identified is No. 2.
Do you see that there?
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And No. 2 reads -- and this is on page 12.
Do you see it?
A I do.
Q And it reads: "All efforts to syndicate
and/or arrange documents, negotiate the terms of,
consummate the debt financing of, and close the
merger, including the status or expected timeline
for such efforts."
Do you see that?
A I do.
Q Okay. Can you describe for me the efforts
relating to the debt financing that are covered by
that topic?
A So we engaged Morgan Stanley, their banking
team, and they -- and relied exclusively on them to
arrange and syndicate the -- the debt.
Q Did you have any role in it?
A I did not.
Q Are you aware of anyone else having a role
other than Morgan Stanley?
A I'm not.
Q And was Morgan Stanley keeping you or
anyone else advised of their effort?
A Yes.
Q How did they do that?
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A There were periodic phone conversations.
Q How often were those conversations?
A As I recall, maybe a few times per week.
Q And how long did those conversations
continue on for?
A I -- I don't recall how long those -- those
conversations were.
Q When is the last conversation you recall
with anyone at Morgan Stanley with regard to the
debt financing?
A I -- I can't pull a date out on what that
would be. I -- I don't remember the last
conversation on that.
Q Were there invites for these discussions?
A Not typically. I don't think these were,
you know -- although I could be wrong, but I recall
them as more kind of spontaneous check-ins.
Q And who from Morgan Stanley would reach out
to you for a spontaneous check-in?
A Any number of the team members. The main
points of contacts were Kate Claassen,
Michael Grimes, Anthony Armstrong.
Q And on behalf of defendants, were you the
person they were supposed to reach out to?
A I was -- I was part of phone conversations.
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I'm not sure who they were supposed to reach out to.
Q Well, who, other than you, would they reach
out to, to give an update on financing?
A You know, I think at times I wasn't the
only person on -- on a call. Who and when -- you
know, who -- others -- who else might have joined
and when, I -- I can't tell you, but I know that
there was certainly a call -- more than one call
where Elon would have been, you know, briefed on
progress.
Q What is the current status of the debt
financing?
A As I understand it, we have secured the
full amount needed, and I think there are some
closing provisions that are yet to be met, but
there's -- as I understand, the debt providers are
standing ready to fulfill their obligations.
Q And what is that understanding based on?
A Just my general understanding of progress
with the transaction.
Q You said there are covenants that need to
be met. What covenants are you referring to?
A I think I used the word "conditions," but,
I mean, they're not just going to fund the deal in
the middle of -- you know, before we get to a close
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date or something like that. So I don't know
exactly what is on their checklist, but I know that
they haven't funded yet, which would suggest there
are some things that need to happen before. But as
I understand it, they stand ready to fund.
Q And do you have an understanding as to who
at Morgan Stanley was primarily responsible with
regard to the debt financing? Who was the point
person?
A I don't.
Q Who at Morgan Stanley do you recall having
discussions with regarding the debt financing?
A As mentioned, it would have been with one
of the three people that I mentioned, and I think at
different times with some combination.
Q Just so I have it, the three people you
mentioned are who?
A Kate Claassen, Michael Grimes, and Anthony
Armstrong.
Q Okay. If you'd turn to No. 3 in the
document in front of you, which is also on page 12,
this is another topic for which you've been
designated as the Rule 30(b)(6) designee.
A Mm-hmm.
Q It reads: "All efforts to solicit
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co-investors, arrange or negotiate equity
co-investments, and/or arrange, document, syndicate,
or consummate the Equity Financing, including those
concerning the status or expected timeline for such
efforts."
Do you see that?
A I do.
Q Can you describe the efforts that are
identified in that topic?
A Yeah. So, again, we were relying on the
Morgan Stanley banking team to -- to execute this.
We -- there was a list of investors that, as I
recall, were all inbound calls and/or messages that
indicated interest, and my personal involvement was
ushering them to the banking team.
Q And when you say the Morgan Stanley banking
team, who are you referring to?
A To the three individuals that I mentioned:
Kate Claassen, Michael Grimes, Anthony Armstrong.
Q So your sole role was with respect to the
equity financing to -- if you received an inbound
call, to forward that person to Morgan Stanley?
A That's right.
Q Do you recall having any substantive
discussions with any of the potential investors?
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A When you say substantive, what are you
referring to?
Q Beyond suggesting they call Morgan Stanley?
A There were -- you know, some of those
conversations were just big picture, "What's Elon
thinking?" And then, you know, in a very general,
broad way, you know, his focus on preservation of
democracy, freedom of speech, and then would usher
them along.
Q Do you recall conveying to them anything
other than Mr. Musk's interest in freedom of speech
and democracy and the American way?
A No. And, I mean, beyond just those big
general points, no.
Q Do you recall any specific potential
investors that you spoke to in that regard?
A Yeah. I can think of a few that -- that I
had conversations with.
Q Can you identify them?
A Let's see. At -- at some point, I spoke
with the
team. I mean, there were -- were
many on the list, and so it's -- it's a long list of
people.
Q But you don't recall having any
communications with them, either oral or written,
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beyond sort of the broad, general statements that
you described?
A I mean, no. There's no specific discussion
or -- I mean, they were all -- they all run together
in my mind.
Q Are you aware of anyone else who was
involved in soliciting the co-investors, other than
Morgan Stanley, who you identified?
A No.
Q Are the efforts to solicit co-investors
ongoing?
A Fielding calls of interest has -- has
slowed down for sure, but -- are you talking about
the same list of investors that have committed?
Q I'm just talking -- you're offered to
testify about all efforts to solicit co-investors.
Are any efforts continuing?
A Yeah. So since the latest developments of,
you know -- currently, there are no on -- ongoing,
overt efforts.
Q Okay. What is the status of your equity
financing with regard to the potential co-investors
that were identified before the litigation?
A As -- as I understand it, all are remaining
committed.
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Q Have any of them told you they are no
longer committed?
A Not that I recall.
Q If you'd turn to No. 4 on that same page -A Yes.
Q -- it's another topic for which you've been
designated, and it reads: "All efforts undertaken
by Defendants or Defendants' Advisors, on or after
May 13th, 2022 to obtain, syndicate, arrange,
finalize, and/or consummate the Debt Financing,
close the Merger, and/or cause all of the conditions
for closing the Merger to be satisfied."
Do you see that?
A I do.
Q Can you describe those efforts?
A Again, our advisory team with -- with
Morgan Stanley and our legal team have, you know,
ensured that the debt is lined up, that our equity
investors remain engaged, and that's -- that's what
I understand.
Q Are you aware of any efforts that have been
made with regard to the topic covered by this No. 4,
other than those by Morgan Stanley?
A No. I mean, beyond legal teams.
Q And when you say "beyond legal teams," what
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do you mean by that?
A Well, you know, legal advisers of, you
know, Skadden and Quinn Emanuel have been involved
in, you know, every step of the way. So that -that's what I mean.
Q Is there a distinction between the role
played by Skadden and Quinn Emanuel with regard to
the Twitter transaction or the debt financing?
A As I understand it, Skadden is what -- for
lack of a better term, kind of the -- the deal team,
and Quinn is serving as advisers and certainly
part -- part of the litigation team.
Q If you'd turn to No. 5 on the next page,
that is another topic for which you've been
identified, and it reads: "The Margin Loan
Commitment, including without limitation...the
reduction in the amount of the Margin Loan
Commitment and reasons for such reduction; and ii)
the subsequent termination of the Margin Loan
Commitment and reasons for such termination."
Do you see that?
A I do.
Q Okay. What is your understanding of the
"Margin Loan Commitment"?
A So there was -- as part of the initial
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transaction, 12.5 billion of margin loan, yeah.
Does that answer your question?
Q Did you have any role in that margin loan
commitment?
A No. Again, that was Morgan Stanley that
syndicated that.
Q And is that the same Morgan Stanley team
you previously identified?
A That's right.
Q And it also refers to the margin loan
commitment and the reasons -- I'm sorry -- the
reduction in the amount of the margin loan
commitment and the reasons for such reduction.
Are you aware there was a reduction?
A Yes.
Q Okay. What -- how much was the reduction?
A Initially, I believe it was cut in half
approximately, and that was in conjunction with us
securing equity commitments from outside investors.
Q And then it refers to the subsequent
termination of the margin loan commitment and the
reasons for termination.
Are you aware that the margin loan
commitment was terminated?
A I am.
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Q What were the reasons for that?
A Twofold: One was the cost associated with
that; and two was the risk associated with margin.
Q And who made that determination?
A I think it was just a group decision
between advisers and -- with our advisers.
Q Would Mr. Musk have been involved in that
decision?
A Yes.
Q If you could turn to No. 11, which is on
page 15 -A I'm there.
Q -- that is another topic for which you've
been designated, and it reads: "Any communications
between (a) Defendants or Defendants' advisors and
(b) any Governmental Authority, concerning...the
merger...the Merger Agreement...the Proxy Statement;
or...Twitter, including the purpose of such
Communications, the nature and substance of such
Communications, and whose request such
Communications were made."
Do you see that?
A I do.
Q Okay. Can you tell me what communications
were made by or on behalf of defendants relating to
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the topics covered here?
A So I guess that's a -- the
word "communications" is a broad term. I -- can you
specify? Like, are you asking for modes of
communication? Are you asking the content of
communication?
Q More the content. And we can break it out.
Why don't we say -- tell me what government
authorities you're aware that have been contacted
with regard to any of these topics?
A Oh. Well, both the -- as mentioned
previously, both the SEC and the DOJ have -- is what
I'm aware of.
Q And those were the contacts that relate to
the investigation that the SEC and the DOJ are
conducting?
A Yes.
Q Are you aware of any contacts with either
of those entities unrelated to that investigation?
A I'm not.
Q How about are you aware of any contacts by
defendants or defendants' advisors with any state
authority, including the Texas attorney general?
A I'm not.
Q And what effort have you made to determine
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whether there were any such contacts?
A Such contacts with?
Q For example, the Texas attorney general.
A I -- I just don't know the answer to that
question.
Q What do you mean you don't know the answer
to that question?
A Well, I haven't asked that question, if you
will, and I'm not aware of communications.
Q When you say you haven't -- you haven't
asked any advisors or lawyers that question is what
you're saying?
A Yeah. You're asking me if I know the
answer to that question, and I don't know the answer
to that question because I haven't -- I don't know.
I have not asked that question.
Q Okay.
A Yeah.
Q If you'd turn to No. 18 -- I'm sorry -- 19,
that is another topic for which you were identified.
It says: "The directors, officers, employees, and
owners of X Holdings I, Inc., and X Holdings II,
Inc., and X Holdings III, LLC and the relationship
between them and Equity Investor."
I believe you testified previously that
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there are no directors, officers, or employees other
than potentially you and Mr. Musk; is that true?
A That's correct.
Q Okay. And who is the owner of each of
those entities?
A As I understand it -- I mean, we relied
upon the legal teams to structure these, but as I
understand it, the ultimate owner would be Mr. Musk.
Q For each of the entities?
A I -- actually, I don't know that to be the
case, thus the -- having the multiple entities. So
I -- I'm not sure who is the owner of each one.
Q Are you aware of who is the owner of any of
them?
A I guess per my previous comment, my
assumption of one of them, that would be Mr. Musk.
Q Did you make any effort to determine who
the owners of these entities were before your
deposition?
A No.
Q If -- if you'd turn to the next one listed,
which is defendants -- this is No. 20: "Defendants
and Defendants' Advisors use of the 'Botometer' tool
described in Paragraph 116 and Footnote 16 of the
Counterclaim."
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Do you see that?
I do.
Do you know what that's referring to?
Vaguely.
Actually, maybe to help you -MR. SHANNON: Can you hand me the
counterclaim? I'll mark it.
MR. GRAHAM: Which one?
MR. SHANNON: It's 53.
Thank you. I need probably a couple of
them.
Can you mark that as Exhibit 3.
--(Birchall Exhibit 3 was marked for
identification.)
--MR. SHANNON: Just two is fine.
Thank you.
Here you go.
THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 3, which is a
copy of Defendants' Verified Counterclaims, Answer,
and Affirmative Defenses filed on July 29th, 2022.
A
Q
A
Q
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Jared Birchall
Have you seen that before?
A Not that I can recall.
Q Did you review the pleading before it was
filed with the court?
A Not that I can recall.
Q Do you recall having ever seen it before?
A I don't recall ever seeing it.
Q If you could turn -- just so it helps you
with regard to the topic, it's on page 52.
A I'm there.
Q Yes. And then you'll see in paragraph 116
there is a reference to the effect of spam and false
accounts, and then you'll see the footnote which
refers to the Botometer® tool.
A I do see that.
Q Okay. And what's your understanding of the
Botometer® tool?
A As I understand it, our counsel retained
data scientists and that -- you know, three
different groups that were working on this for us,
and so I -- I don't have an understanding of that
tool.
Q Did you make any effort to -- to inform
yourself before this deposition regarding the
Botometer® tool and how it was used by defendants?
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A I did not.
Q Do you know what conclusions the data
scientists that you referred to came to as result of
using the Botometer® tool?
A I don't.
Q Do you -- do you know if defendants relied
at all upon the conclusions or the use of the
Botometer® tool?
A I don't.
Q Who would know that?
A I'm guessing at this, but the legal team
who retained them may know.
Q Do you know who retained them?
A I believe it was through Skadden, but could
have -- yeah. I think it was through Skadden. I'm
not certain of that.
Q Who made the decision to retain them?
A The legal team.
Q Did you have any involvement in that
decision?
A No.
Q Do you know why they retained them?
A I can't speak on their behalf. I mean,
they're obviously looking for data.
Q What data are they looking for?
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A Regarding -- well, just Twitter-related
data. I -- they're, you know, data scientists and
so they were parsing data.
Q Do you know what data they were parsing?
A Well, I mean, you brought up the
Botometer®. I'm sure part of what they were looking
at was related to bot numbers and things like that.
Q Maybe it's easier to cover it with regard
to Topic 21, if you refer back to Exhibit 1.
Topic 21 you've also been identified with
regard to, and that is: "The engagement of the data
scientists, including without limitation the
identification of all data scientists and when they
were engaged, the scope and purpose of any such
engagement, how such data scientists came to be
engaged, the nature of any agreements, arrangements,
and understandings between the data scientists and
data and defendants or defendants' advisors."
Do you see that?
A I do.
Q Okay. Can you, starting with -- can you
identify for me the data scientists that were
retained?
A Yeah. As I mentioned, there were three,
and I believe they were CounterAction, Halo, and
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Cyabra or Cyabra.
Q Okay. And when were they retained?
A As I recall, it was mid-to-late May.
Q Why were they retained?
A To analyze data.
Q Were all of them engaged at the same time?
A I'm not sure. I don't know.
Q Why were the three data scientists engaged?
A I'm not certain of the answer to that, but
assume it was in an effort to have a more thorough
review of data.
Q Do they have different expertise?
A Not that I know of.
Q Are you aware of the expertise that each of
the data scientists have?
A No.
Q Prior to this deposition, did you make any
attempt to inform yourself regarding why the data
scientists were engaged, what work they are doing,
and their conclusions?
A No.
Q Have you been -- who determined to retain
the data scientists?
A The legal team.
Q Did you approve that?
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A There may have been a discussion regarding,
you know, spending money.
Q Did you or Mr. Musk have any role in
determining what the data scientists would do?
A No.
Q Who determined what the data scientists
would do?
A The legal teams.
Q When you say "the legal teams," who are you
referring to?
A Again, I'm not sure how they were parsing
this specific initiative, but the two teams, of
course, were Skadden and Quinn, and I just don't
know which was head- -- heading up this effort.
Q Do you have an understanding as to how much
the data scientists are being paid?
A I -- I have that information. I don't have
a recollection -- a recollection of the exact
numbers.
Q Do you have the agreements that were
entered into between the data scientists and your
counsel?
A I don't recall.
Q Do you recall ever seeing those agreements?
A I -- I have a vague recollection of -- of
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potentially seeing one or more of them, but I -- I
just -- I don't have a recollection of content or
whatnot.
Q Do you recall any discussions with Mr. Musk
regarding the data scientists?
A I was on a -- well, you're saying specific
conversations with him?
Q Yes.
A No.
Q Do you recall specific conversations with
anyone regarding the data scientists?
A I -- I was on a call at one point where
information was exchanged, kind of an update of
progress that I believe Mr. Musk may have also been
on. I believe he was on.
Q Do you -- is that the only time you recall
having any communications relating to what the data
scientists were doing?
A Yes.
Q Okay. And when was that call?
A Again, it would have been around the same
time that we -- maybe mid-to-late May.
Q And other than Mr. Musk, who do you recall
being on that call?
A You know, the -- well, as far as specifics,
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I mean, certainly the -- the legal teams who
retained them, team/teams. I don't recall. It's
possible that -- it's possible that Mike Ringler was
on the call. It's possible that Alex was on the
call. I'm not certain.
Q And what do you recall of that call?
A A lot of kind of information about
methodologies and -- and kind of initial thoughts
on, you know, the data that they had gathered.
Q What do you recall as any specific comments
made during the call?
A I don't recall the specifics of that phone
conversation.
Q Did they have any views with regard to the
data they had gathered to date?
A I mean, certainly they had views. I just
don't recall what specifically they, you know,
shared.
Q What's your general recollection of the
views?
A I mean, the general recollection was that
there -- that the 5 percent number was a low number.
Q And what was that general statement based
on?
A The work that they had done.
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Q Did you ever receive any of the work they
had done?
A I don't believe I did.
Q Okay. Do you know if any of it was
provided to Mr. Musk?
A I don't.
Q Did you ever ask for any of the work they
had done?
A Not that I recall.
Q Do you know if the work they have done has
been provided to anyone but your counsel?
A I don't know.
Q Do you know if they are still doing the
work?
A I don't.
Q Do you ever get updates as to the status of
the work?
A No. I mean, that phone conversation that I
mentioned was a check-in, and I have not spoken with
them since.
Q And you believe that was sometime in
mid-to-late May?
A I believe so.
Q And have you -- even though you haven't
spoken to them, have you received any information
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regarding their analysis?
A There was probably a follow-up conversation
with counsel, but, you know, I can't think of a
specific conversation, but, I mean, there most
likely was a follow-up conversation.
Q But you don't recall a specific one?
A I don't.
Q Do you recall having any -- ever having any
discussions with Mr. Musk regarding the data
scientists or any of the work they'd done?
A I don't.
Q Do you recall ever having a communication
with Musk, whether oral or written, regarding data
scientists or any work they've done?
A I don't.
Q Okay. If you'd turn to No. 22, it's
another topic for which you've been identified, and
it reads: "All persons that Defendants or
Defendants' Advisors communicated with about a
potential engagement as a Data Scientist that were
not engaged as a Data Scientist, including without
limitation (i) the identification of all such
Persons"; the timeline -- "(ii) the timeline during
which such potential engagement was considered; and
(iii) all reasons" for such -- that "such
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engagements did not take place."
Do you see that?
A I do.
Q Can you tell me what persons were
communicated with about the potential engagement as
a data scientist that were not engaged?
A I -- I'm not aware of any engagements or
discussions beyond those that we engaged.
Q Prior to this deposition, did you make any
effort to determine if there were any such
discussions or communications?
A I didn't.
Q Okay. If you could turn to No. 23, which
is another topic for which you've been identified,
it reads: "All work performed by the Data
Scientists, including without limitation, the
instructions received by the Data Scientists...the
scope of the Data Scientists' work, the timeline of
the Data Scientists' work...a description of the
work performed by each individual working as or for
a Data Scientist," and "the findings, conclusions,
and the results of such work."
Do you see that?
A I do.
Q Okay. Starting with first little I, what
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instructions were received by the data scientists?
A Again, the -- you know, it was the legal
team that engaged them and corresponded with them
regarding these topics, instructions, scope,
timeline, and so I -- I don't have that information.
Q Okay. You don't have any of that
information?
A I don't.
Q Okay. Did you make any effort to obtain
that information prior to your deposition today?
A I did not.
Q If you could turn to No. 26, which is on
page 19. That is another topic for which you've
been identified, and that reads: "Defendants'
knowledge of Twitter's litigation with the Indian
government and/or any content-removal orders issued"
by -- "issued to Twitter by the Indian government,
as discussed in Paragraphs 18 and 181 through 185 of
the Counterclaim, including without limitation when
Defendants became aware of such litigation and/or
content-removal orders and who made them aware of
such orders."
Do you see that?
A I do.
Q Okay. What's your knowledge regarding
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Twitter's litigation with regard -- with the Indian
government?
A I -- I really don't have much. I remember
hearing that there was a matter involving the Indian
government. I -- I don't have really any
information about what that specifically entailed.
Q Okay. Did you make any effort before your
deposition today to gain such knowledge?
A No, I did not.
Q If you could turn to the next topic, which
is No. 27 which you've also been identified as the
designated witness, it says: "All 'key decisions'
that Twitter allegedly made 'outside the ordinary
course without consulting the Musk parties,' as
alleged in Paragraphs 186 through 195 of the
Counterclaim."
Do you see that?
A I do.
Q Now, what is your knowledge regarding the
key decisions made outside the ordinary course as
referenced in that topic?
A Well, primarily regarding executives.
Q Okay. And when you say "primarily
regarding executives," what are you referring to?
A The dismissal of -- of executives without
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Jared Birchall
consulting Mr. Musk.
Q Which executives?
A I don't recall their names, but -- yeah, I
don't -- I don't recall their names.
Q When did you learn about the dismissal of
the executives?
A I don't recall when that was.
Q How did you learn about the dismissal of
the executives?
A I'm pretty sure it came from our legal
team.
Q Do you know how they learned?
A I don't.
Q Did you make any effort to determine the
facts relating to the dismissal of the executives
you just referenced before your deposition today?
A No.
Q How did you determine that the terminations
that you referenced were outside the ordinary
course?
A Well, certainly with -- under the
advisement of the legal teams and per the agreement
that had been made with -- between the two parties.
Q Is it your view that any termination of an
executive is outside the ordinary course?
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A I believe so.
Q And what is that based on?
A Again, the agreement that -- that was made.
Q And if it helps, if you could turn to
Exhibit 3 which you have in front of you -A Mm-hmm.
Q -- and that might remind you of the names
of the two individuals that you referenced, and as
noted in the topic, if you start on 186 -A Okay.
Q -- and I believe it's 187 that will provide
the name of the person.
A This is No. 3? I don't think I have that
many pages.
Q I'm sorry. Oh, did I -A You said 186.
Q I'm sorry. Paragraph 186, page -- it
starts on page 79.
A Oh, okay.
I'm there.
Q And if you'd turn to paragraph 187 -A Yeah.
Q -- do you see the name "Bruce Falck"?
A I do see that.
Q Okay. Is that one of the persons that you
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believe was terminated that you were referencing?
A Yes, I believe so.
Q Okay. And when did you learn that
Mr. Falck had been terminated?
A I don't recall when -- when that was.
Q How did you learn?
A I believe that was through the legal team.
Q And why do you believe his termination was
outside the ordinary course?
A Per -- per the agreement between the two
parties.
Q Any other reason?
A No.
Q Okay. When you learned about the
termination of Mr. Falck, are you aware of
defendants raising any objections or concern?
A I'm -- I'm not aware. I think we were
informed that it was a done deal.
Q Did you raise any objections that he should
not have been terminated?
A I don't recall.
Q Do you recall any concerns or objections
that were raised when you learned that Mr. Falck had
been terminated?
MR. SPIRO: Objection to form.
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You can answer.
THE WITNESS: I -- I don't recall. The -the opportunity to object was -- I don't -- I don't
believe -- I think the action had taken place.
BY MR. SHANNON:
Q If you'd turn to the next paragraph, it
refers to Mr. Beykpour.
Do you see that?
A I do.
Q Is that one of the -- is that the other
individual you had identified as being terminated?
A That is another -Q Okay.
A -- individual.
Q Okay. And when was Mr. Beykpour
terminated?
A Again, I'm not sure the exact timing.
Q When and how did defendants learn of the
termination?
A Through -- through the same way. Through
the legal team.
Q Okay. And how did you determine that the
termination was outside the ordinary course?
A Again, through the agreement that we had
between the two parties.
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Q Anything else?
A No.
Q And do you recall defendants or any of
their advisers raising any concerns or objections
when they learned that Mr. Beykpour was terminated?
MR. SPIRO: Objection to form.
You can answer.
THE WITNESS: I don't specifically recall.
BY MR. SHANNON:
Q If you'd turn to paragraph 189 -A Mm-hmm.
Q -- you'll see it says, "Twitter also
instituted a hiring freeze."
A I do see that.
Q And when did defendants learn of that?
A Again, I don't recall the exact timing.
Q How did defendants learn of that?
A Through the legal term.
Q And how did you determine -- how did you
determine that the hiring freeze was outside the
ordinary course?
A Through the agreement between the two
parties.
Q Anything else?
A Not that I'm aware of.
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Q When defendants learned of the hiring
freeze, did they raise any concerns or objections?
MR. SPIRO: Objection to form.
THE WITNESS: Not that I'm aware of.
BY MR. SHANNON:
Q Okay. Mr. Birchall, we've been going for
about an hour and a half, and I appreciate that.
Why don't we take a short break, ten minutes, and
then come back.
MR. SPIRO: Great.
THE WITNESS: There was one more individual
that wasn't mentioned that wasn't fired during the
time.
BY MR. SHANNON:
Q Who are you referring to?
A The -- a payment that was paid to a
prior -- prior employee, Mudge, that, you know, also
would fall under this, as I understand it.
Q And when you say Mudge, you mean Mr. Zatko?
A Yeah.
Q Okay. I'll say, Mr. Birchall, you're the
only witness who, given the opportunity to take a
break, kept going. So we can cover that when we
come back.
A Sure.
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Q And I'm just going through these. These
will relate to documents we'll go through as well,
but I just wanted to cover -- to make sure I
understand what you were testifying to.
THE VIDEOGRAPHER: Your microphones.
We are going off the record. The time is
11:02 a.m.
(Recess.)
THE VIDEOGRAPHER: We are back on the
record. The time is 11:17 a.m.
BY MR. SHANNON:
Q Mr. Birchall, can you turn to No. 32, the
Topic No. 32, in -A In the first one?
Q In the first one, correct. It's on page
20.
A Yeah. I'm there.
Q And it is another topic for which you've
been identified and it reads: "Defendants'
understanding of Twitter's mDAU recast in
April 2022, and Paragraphs 9 and 79 through 81 of
the Counterclaim."
What is your understanding of Twitter's
mDAU recast in April 2022?
A That they came back and said they needed to
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correct their numbers.
Q What's your understanding of what
corrections were made?
A Just that they had been calculating it
incorrectly, I believe, and I don't know what their
specific errors -- what they purported their
specific errors to be, but just that they'd made
mistakes and needed to correct those mistakes.
Q And how did they correct those mistakes?
A By changing the number.
Q And how much did the number change?
A As I recall, it was a few million -- by a
few million mDAUs I guess or whatever.
Q And before this deposition, did you make
any effort to go back and look at the mDAU recast to
better understand what had occurred?
A So just to that question specifically, I -I went over these questions yesterday with the Quinn
Emanuel team. I was taking your questions as to
mean, like, did I go back and research this or
something. So these questions were reviewed
yesterday with the Quinn team.
But beyond that, there was not an effort to
revisit this issue or to look into it beyond that.
Q Okay. Well, when did you first recall
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hearing about the mDAU recast in April 2022?
A The day that it happened.
Q Okay. How did you hear about it?
A I -- I recall that it was via the news.
Q Do you recall discussing it with anyone?
A Yes. It was a topic that was discussed
among the legal teams' advisory team, and I'm sure
at some point with Mr. Musk.
Q Do you recall discussing it shortly after
it was announced?
A Yes.
Q Okay. What do you recall of those
discussions?
A Again, I'm -MR. SPIRO: I'm just going to remind you,
you can't reveal privileged information.
THE WITNESS: Yeah.
MR. SPIRO: So with that caveat, you can
answer the question.
THE WITNESS: Yeah, I don't recall the
specifics of those conversations.
BY MR. SHANNON:
Q Do you recall having any -- any discussion
with Mr. Musk regarding the issue?
A I don't recall a specific conversation, but
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I -- I do recall that we touched on the subject.
Q When you say you touched on the subject,
what do you mean?
A Again, I -- I don't recall specifics of any
of those conversations, but I do recall at some
point having -- it having been part of a discussion.
Q Okay. But you don't recall who was part of
the discussion?
A I don't.
Q And you don't recall when that discussion
occurred?
A Not specifically, no.
Q Do you recall any requests made by
defendants or their advisers for additional
information from Twitter regarding it?
A I don't recall.
Q Okay. Do you recall any concerns expressed
by defendants or their advisers regarding the mDAU
recast?
A That was the nature of, you know, the
conversation, the general gist of the conversations
that were being had, you know, that a restatement
had been made and certainly it raised eyebrows.
Q Okay. And after it raised eyebrows, did
you or anyone on behalf of defendants or their
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advisers go back to Twitter and express concern or
ask for additional information?
A Additional information was requested
regarding the -- the data and -- and the
calculations. I don't recall specifically
referencing this restatement or not.
Q Okay. Was there specific information
requested relating to the recast?
A That's what I don't recall.
Q Okay. When was that information requested?
A The request that I am referring to
previously?
Q Yes.
A I don't recall the exact dates, but at -at minimum, you know, right after the meetings with
Twitter.
Q What meetings are you referring to?
A I believe in early May at the Twitter
headquarters. I think it was May 6th.
Q Okay. Were you involved in determining
what information to request?
A At post meeting?
Q Yes.
A I -- I probably was part of a conversation
that went over that topic.
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Q Do you recall any such conversation?
A I don't recall the specifics.
Q Okay. Who was primarily responsible for
determining what additional information to request
from Twitter?
A It would have been a combination of the
banking advisory team and the legal team.
Q Okay. Did you have any role in determining
what to request?
A Again, I -- I would have been involved in
certain conversations, but as far as a role, per se,
I -- I -- no, I don't -Q Do you recall Mr. Musk having any role in
determining what to request?
A Again, he would have been part of
discussions, but I don't specifically recall him -you know, his contribution to that or -Q Do you recall reviewing any information
provided by Twitter in response to the request?
A Are we referring now post meeting?
Q Yes.
A Is that what you're referring to?
So they were sending information to data
rooms that are -- that the banking team was
accessing exclusively. I never accessed a data
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room.
Q Did you ever ask the banking team to send
you any information?
A That was -MR. SPIRO: Objection to form.
You can answer.
BY MR. SHANNON:
Q Relating to information provided by
Twitter.
A Not that I recall.
Q You suggested that these information
requests related to post meeting, and you're
referring to the May 6th meeting, correct?
A That's right.
Q Are you aware of any information requests
that were made before the May 6th meeting?
A I -- I don't recall prior to that.
Q If you refer to, in Exhibit 1 in front of
you, Topic No. 36 is another topic for which you've
been identified, and that reads: "Defendants'
understanding of the 'stratification' or potential
stratification of Twitter's mDAU as that term is
used in Paragraph 141 of the Counterclaim, whether
performed before or after the execution of the
Merger Agreement."
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Do you see that?
A I do.
Q What is your understanding of the
stratification or potential stratification of
Twitter's mDAU as referred to there?
A I believe that's referring to a smaller
sliver of mDAU that contributes to a greater portion
of the revenue of the company.
Q What's that understanding based on?
A Again, just what -- what we were told by
the Twitter team.
Q So the references to stratification or
potential stratification is what you were told by
the Twitter team?
A Yeah. I specifically recall that being one
of the topics in the May 6th meeting.
Q Do you recall any other discussions or
knowledge you have regarding defendants'
understanding of the stratification or potential
stratification of Twitter's mDAU?
A I don't recall.
Q If you turn to the next one, which is
defendants -- No. 37: "Defendants' allegation that
'nearly a third of Twitter's mDAU in fact see no ads
and appear to generate no revenue at all,' as set
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forth in Paragraph 138 of Counterclaim."
Do you see that?
A I do see that.
Q What's your understanding of that
allegation?
A Again, I believe that's referencing the
same stratification issue, where a smaller
percentage actually contribute to, you know, a very
high percentage of the revenue.
Q And it's your understanding that this
information was provided to defendants at the
May 6th meeting?
A I -- as far as information provided, I
mean, there -- there was no -- as I recall, there
were no documents exchanged, and so there wasn't
any, like, substantive information exchanged, per
se. There were -- we left that meeting with -- with
the understanding that there was information that
was requested and that was forthcoming.
Q And, well, how did defendants determine the
basis for their allegation that nearly a third of
Twitter's mDAU is in fact -- in fact sees no ads and
appears to generate no revenue at all?
A I'm not sure specifically where that data
is coming from.
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Q Do you know what the source at all of that
statement is?
A I -- I don't.
Q Okay. If you could turn to No. 38 on the
next page -A I'm there.
Q -- this is another topic for which you've
been identified: "Defendants' knowledge and
understanding of their allegation that 'mDAU growth
is not occurring among high-value users,' as set
forth in Paragraph 142 of the Counterclaim."
Do you see that?
A I do.
Q Can you explain what that's referring to?
A Again, I -- I see what it says, and I'm not
sure specifically beyond what it says. I mean,
that's obviously what it says, but I -- I don't have
information beyond what it says.
Q Okay. And do you have an understanding as
to what was the basis for defendants' allegation
that mDAU growth is not occurring among high
level -- high value users?
A Not specifically, no.
Q Did you make any effort to determine what
the source of that statement was?
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A I -- I didn't.
Q If you could turn to No. 41, another topic
for which you've been identified, which is:
"Defendants' policies, practices, software,
hardware" -- software and "hardware, and systems
relating to storage management, retention, and
destruction of Documents and Communications."
Do you see that?
A I do.
Q What are defendants' policies with regard
to the retention and destruction of documents and
communications?
A Well, X Holdings doesn't have a stated
policy of any sort. As requested, we -- you know, I
can speak for myself, you know, turned over devices
and whatnot as -- as requested to, you know, legal
teams and IT professionals, but there isn't a stated
policy.
Q Okay. And with regard to Mr. Musk, can you
state what his practices and policies are?
A I -- I believe he -- well, again,
there's -- there's no policy that I'm aware of -well, there's no policy regarding X Holdings for
sure. I can't speak to any of the other companies
or anything like that. But I -- as I understand it,
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he, like me, you know, turned over devices and
whatnot to IT and legal.
Q Do you know what his practices are with
regard to preserving texts and emails?
A I don't.
Q Prior to acting as a 30(b)(6) witness for X
Holdings I and X Holdings II today, have you ever
acted on behalf of either of those entities?
A Not -- not that I know of. I don't know if
technically -- what the technical answer may be, but
I don't -- I don't believe so.
Q Okay. If -- if you'd turn to No. 42 -A Mm-hmm.
Q -- that says "Defendants' efforts to ensure
that Documents relating to the discovery requests in
this Action and/or the Complaint were properly
preserved, including any related litigation hold or
document preservation letters or notices."
Do you see that?
A I do.
Q Can you describe those efforts?
A Again, devices were turned over to IT
professionals and lawyers and information extracted,
and, you know, information preserved.
Q And that refers to what you did. Do you
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know precisely what Mr. Musk did?
A Not precisely, no.
Q You had referenced previously a litigation
hold that you believed you received in mid-to-late
May.
Do you recall that?
A I do.
Q Do you recall receiving any other
litigation hold or document preservation notice?
A I don't specifically recall additional
holds, hold requests, or whatever.
Q Okay. If you'd turn to No. 43, which is
another topic for which you've been identified, it
says: "Defendants' efforts to retrieve text
messages, instant messages, and other non-email
communications."
What's your understanding as to that?
A Yeah, again, that was I think part of the
overall effort of providing devices and -- and
communication method -- methods with -- providing
those to the IT and legal teams.
Q Do you know what efforts were made to
retrieve or obtain any messages that had been
deleted?
A No. Anything in existence would have been
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provided.
Q And turning to No. 46, which you'll
probably be glad to know is the last number for
which you've been designated, it reads: "All
information contained in Defendants' Interrogatory
Responses, including all sources of such information
and Defendants' process for ascertaining and
providing such information."
Do you see that?
A I do.
Q Have you reviewed each of defendants'
interrogatory responses in connection with this
case?
A I did review them yesterday.
Q Okay. Had you seen them before yesterday?
A Actually, I -- I believe I did back when
they were initially submitted.
Q Did you have any role in reviewing or
approving them?
A Again, I think I -- I recall reviewing the
list to ensure, you know, complete -- you know,
completion.
Q When do you recall reviewing the list?
A I don't recall when.
Q Do you recall reviewing the list many times
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as it was changed?
A I don't recall reviewing it many times.
Q Okay. Do you have any recollection of
reviewing the list more than once?
A Not specifically, no.
Q And to be clear, when you're saying the
list, what list are you referring to?
A Parties involved is what -- is the list
that I'm referring to.
Q Parties involved in what?
A I think there are various lists of people
that were -- where there are communications for the
different aspects of the transaction.
Q And when you were reviewing them, for what
purpose were you reviewing them?
A For accuracy and making sure it was
complete.
Q And how would you determine they were
accurate and complete?
A I was adding my information to a list
and -- and so I was making sure that my addition
was -- was complete.
Q How about the remainder of the list? How
did you determine whether that was accurate or
complete?
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A I -- I personally don't recall making that
specific determination. I think it was the sum
total of the entire group that contributed to ensure
that was correct.
Q When you say "the entire group," who are
you referring to?
A The legal team, the advisory team, anyone
involved that would have had that information.
Q So you would have reviewed the information
that you provided, correct?
A I believe so, yeah.
Q Okay. And you weren't able to assess the
accuracy or completeness of information others
provided, correct?
A No, not necessarily.
Q Okay.
A Because I think there were communications
that I wasn't a hundred percent involved in.
Q Did you make any efforts to ensure that the
information that others provided was accurate and
complete?
A No, not -- no.
Q I want to turn now to what you referred to
previously as the -- the purchases of Twitter stock.
A Sure.
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Q Okay. How did it come about that Mr. Musk
began purchasing Twitter stock?
A As I recall, in late January in one of our
meetings, he mentioned that he was -- so he
had just, for the first time in his life, sold
Twitter stock and had a cash position, and he
indicated that he was interested in buying some
stock, which led to a conversation on I believe -I'm sorry if my date is a day or two off, but I
think it was Sunday, January 29th-ish, wherein he
confirmed, yeah, let's -- let's go ahead and buy
some stock.
Q When you say "buy some stock," buy some
stock in what?
A Twitter.
Q How did you determine to buy stock in
Twitter?
A I don't -- I don't know.
Q Was it only Twitter -A Yeah.
Q -- he was buying stock in?
A Yeah.
Q He previously directed you to buy stock in
any other company?
A Yeah, he -- he owns no other publicly
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traded security beyond Tesla.
Q So this was the first time he ever provided
instructions for you to arrange to purchase stock in
another public company, correct?
A Outside of Tesla, yes.
Q And did he explain why he was purchasing
stock in Twitter?
A No. Just that it was an interesting
company to him.
Q Are you aware of any analysis he did before
determining to purchase stock in Twitter?
A I'm not aware.
Q Okay. Did you do any analysis before
carrying his orders out to purchase stock in
Twitter?
A I didn't.
Q Prior to starting to purchase Twitter
stock, had you reviewed any of Twitter's SEC
filings?
A I don't believe so.
Q Are you aware if Mr. Musk had reviewed any
of Twitter's SEC filings?
A I'm not aware.
Q Did he explain what it was about Twitter
that led him to invest in -- in that stock?
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A Twitter is a service that he uses daily.
It's something that he enjoys, a release, and while
I don't recall the specifics of a conversation with
him outlining, "Here's my investment thesis," those
were, you know, the main driving forces that I know
of.
Q Okay. And did he give you specific
instructions with regard to purchasing Twitter
stock?
A Yes, that we were going to start buying
daily in a way that didn't move the stock through a
volume weighted average price purchase program, and
target -- initially target a 2 percent position in
the stock.
Q Why was he interested in it in a manner
that didn't move the price?
A He's just one who cares about the value of
money and doesn't want to -- there was -- there was
no urgency for him to, you know, buy shares, and so
there was no need to buy a quantity that would move
the stock in any way.
Q When you say "move the stock," make it more
expensive to acquire the stock?
A Yes.
Q Okay. So he wanted to proceed in a manner
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that he could acquire the stock for the least amount
possible, correct?
A Certainly.
Q And did he give you any specific
instructions as to how much you could spend?
A Again, the initial target was 2 percent,
and the -- with the knowledge that we would be
sitting down
to review progress.
Q Okay. And did you review progress with him
?
A I'm not certain it was
, but -but most likely it was discussed on most of those
.
Q And before the
meeting at the end of
January where he raised this, do you recall him ever
previously suggesting he was interested in
purchasing Twitter stock?
A No.
Q Do you recall him ever talking about
Twitter as a company beforehand?
A As a company, no, not beyond his personal
use of it.
Q Now, in connection with purchasing the
Twitter stock, did you consult with counsel?
A No.
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Q Is there counsel available to you, as the
head of Mr. Musk's family office, to consult with if
you have questions?
A I mean, certainly, there are lawyers that
exist that if there are legal questions that I have
that I can reference.
Q Okay.
A As it pertains to securities, again, you
know, Tesla has a security team that handled 100
percent of all of our regulatory transaction-related
matters up until that point.
Q Well, how about this one which is
different? Did you consider retaining counsel or
contacting counsel regarding it?
A No.
Q Okay. In your prior activities, had you
ever taken such a large position in a public company
on behalf of a client?
A No.
Q Did you have an understanding of the rules
that would apply with regard to acquiring a large
position in a public company?
A A very cursory understanding that there
were certain thresholds.
Q Okay. Given you had a cursory
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understanding that there were certain thresholds,
what did you do to investigate and confirm that
Mr. Musk's purchases were consistent with those
requirements?
A So of course discussed it with the adviser
at Morgan Stanley, who was assisting us in buying.
Q Anything else?
A I believe there were some -- you know, some
searching for threshold answers on when filings
would be made and at what thresholds.
Q When you say you believe there were
searching, what do you mean by that?
A That, you know, there was I think even a
text or two that was exchanged between our
Morgan Stanley representative regarding filing
requirements. That's what I mean -- or sorry.
Links regarding filing -- links regarding filing
requirements.
Q What do you mean links regarding filing
requirements?
A So readily available information online -Q Okay.
A -- that -- that would -- that would have
guided the answer to the filing question.
Q And is that information you looked up or
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Morgan Stanley looked up?
A We both looked up different information,
but, ultimately, came to a united conclusion about
what needed to happen.
Q And united conclusion, who was that
conclusion with?
A Jon Neuhaus.
Q And what is his position?
A He's a financial adviser at Morgan Stanley.
Q Is he a lawyer?
A No.
Q Are you aware if he ever has taken a
position for a company of the size that you were
proposing?
A No.
Q Are you aware if he has any expertise in
SEC laws?
A I guess depends on how you define
expertise, but, I mean, he -- everything that he
does every day is regulated by the SEC.
Q Was there any discussion with Mr. Musk
about publicly disclosing that he was acquiring
Twitter stock?
A Well, yes. We knew that if we crossed
certain thresholds, we would be forced to eventually
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make that public.
Q And my question may not have been clear.
At the beginning, when Mr. Musk decides he
likes Twitter and wants to invest, was there any
discussion about him announcing it then, for
example, tweeting that he was investing in Twitter?
A There wasn't a discussion about that
specifically, but that was always something that
could happen at any time.
Q Do you understand why it didn't happen?
A No.
Q Was there anyone other than Mr. Neuhaus
that was involved in the purchases of the Twitter
stock on behalf of Mr. Musk?
A Well, there would have been a trader on the
institutional desk that was executing the trades,
and then I believe an assistant of -- of Jon Neuhaus
who was providing spreadsheets and/or updates in his
absence when he was not available.
Q And did you have a prior relationship with
Mr. Neuhaus that led you to reach out to him for
this purpose?
A Yes.
Q What was the prior relationship?
A Well, he has worked for Mr. Musk for a
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handful of years prior to this, and so -- yeah, so
he's worked for Mr. Musk for, you know, I don't know
how many years prior to this. So this was a very
normal kind of course of normal business outreach to
Morgan Stanley and to Jon to help with something
like this, but I don't know if you're -- if what
you're asking, if my personal relationship with him
predated this. Certainly, it did.
Q And when you say it was sort of a normal
thing to reach out to him, my understanding from
your testimony is that Mr. Musk had not typically
bought public securities.
A That's right.
Q In what capacity would you reach out to
Mr. Neuhaus before the Twitter purchases?
A For many, many different things ranging
from debt facilities to Twitter -- or I'm sorry -Tesla transactions to real estate loans to just
general research questions. There's many different
things. We communicate almost -- almost daily.
Q Okay.
MR. SHANNON: Would you mark that as
Exhibit 4.
--(Birchall Exhibit 4 was marked for
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identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 4, which is a
series of emails between you and Mr. Neuhaus, dated
January 31, 2022.
Do you recognize, and we'll start on the
first page, the one from Mr. Neuhaus to you?
A When you say the first page are you talking
about the front page, the first page?
Q Yes, the front page.
A I do.
Q And would you typically communicate with
Mr. Neuhaus through email?
A Probably more commonly via phone and
sometimes via text, but email was common.
Q Okay. And if you look at the bottom of -or toward the bottom of his first email, he has
bullet points on how he will proceed.
Were those all agreed upon by you?
A Let's see here.
THE COURT REPORTER: I can't hear you.
THE WITNESS: Yeah. I'm just reading what
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
is on this list.
Yes. I -- at their -- you know, we were
taking advice from them -BY MR. SHANNON:
Q Okay.
A -- based on levels -- volume levels of the
stock and -- and so it would have been a joint
conclusion based on their advice.
Q And the advice that they were giving
regarding, you know, amounts to purchase were what
they thought you could purchase without moving the
market and potentially becoming known that you were
purchasing the stock?
A Not necessarily known as much as just
moving the price.
Q Okay. And if you look toward the bottom,
there's a line from Mr. Neuhaus that says: "As we
work towards goal."
Do you see that?
A I do.
Q What's your understanding as to the -- the
goal that he is referencing?
A I think he's referencing -- referencing
just the general goal of acquiring shares of -- of
the stock.
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Q You had previously suggested that the
initial goal was 2 percent. Did that change over
time?
A It did.
Q Okay. And what led to that change?
A We -- we got to that threshold and
continued buying.
Q And to the extent you were increasing the
threshold, was that something you reviewed and -and Mr. Musk approved in each instance?
A That's right.
Q Okay.
MR. SHANNON: Can I have No. 3?
And that is Exhibit 5?
THE COURT REPORTER: Yes.
--(Birchall Exhibit 5 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 5, which I'll
represent I understand to be a series of your texts
that have been produced in this case. I apologize
that the writing is so small, but that's sort of how
National Court-Reporting Coverage
janerose@janerosereporting.comPage 100 Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
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it works.
If you look toward the bottom of the first
page -A Yes.
Q -- the third -- the third to last entry is
from you on February 18th, 2022 to Mr. Neuhaus, and
you have a question which says: "Are you able to
have your analyst do provide a profile of TWTR's
owners? Both institutional and individual?"
Do you see that?
A Yes, I do see that.
Q Okay. Is that a text you believe you sent
to Mr. Neuhaus on or about that date?
A Yes, I believe so.
Q And why on or about that date were you
requesting that information?
A That's -- so in the private world, the
management world, you know, John was a business
partner of mine, and understanding who -- the
ownership structure of any company was always a
primary focus, and I just had no -- no idea. As we
started to actually accumulate a significant number
of -- or percentage ownership, I had no idea who
else owned the stock.
Q Did Mr. Neuhaus provide you with that
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information?
A Yes.
Q Okay. And what did -A Best that he could find, yes.
Q Okay. And what did you do with that
information when you received it?
A I reviewed it and I just looked at it.
Q Do you recall having any discussions with
Mr. Neuhaus regarding the stockholder composition
for Twitter?
A I mean, we likely -- given that he sent me
that, we likely had some conversation about it. I
don't recall the content of the conversation.
MR. SHANNON: Exhibit 6.
--(Birchall Exhibit 6 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 6, which is a
series of emails between you and Mr. Neuhaus and
others. I'm interested primarily in the top
email --
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
A Okay.
Q -- which is from you to Mr. Birchall [sic],
dated March 8th, 2022.
Do you see that?
A I do.
Q And then there's the one under it, and the
one under it you'll see that Mr. Neuhaus was saying
to you that: "... we are likely to cross over the
5% soon."
Do you see that?
A Yes.
Q Do you have an understanding as to why he
was telling you that? Was there any significance to
percent?
A Oh, yeah. As I mentioned, we had discussed
that we both knew there was a filing requirement as
it related to the 5 percent threshold.
Q Okay. And you knew it as of that date?
A Yes.
Q Okay. And he then has: "Pls confirm that
you are comfortable with year-end filing of the
13D/G."
Do you know what that's a reference to?
A Again, we had come to the conclusion that
upon crossing 5 percent, you had a requirement to
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file at the end of the year in which you crossed
that 5 percent, and then there was some day buffer.
Again, I am, of course, well aware that this was an
erroneous conclusion at this point, but -- and so he
was simply reconfirming that I guess.
Q Okay. And when you say: "Yep, fine with
the year-end filing," had you asked counsel or done
anything to confirm as to the appropriateness of the
year-end filing?
A No. I mean, the confirmation was with our
advisory firm, assuming that, you know, their advice
and compliance and everything else would -- would
guide us in a direction that would lead to the right
answer.
Q And then he also has a question: "Should
we surpass 10%, we will deal with that at that
time."
Do you see that?
A I do.
Q Was there a view at that time that you may
exceed 10 percent?
A No. It was just stating the obvious, that
there were two thresholds that we needed to be aware
of; one being 5, one being 10.
And as you can see, in that same message he
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EFiled: Jul 17 2024 04:19PM EDT
Transaction ID 73703912
Case No. 2022-0613-KSJM
IN THE COURT OF CHANCERY FOR THE STATE OF DELAWARE
TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I,
INC., and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
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C.A. No. 2022-0613-KSJM
PUBLIC VERSION EXHIBITS 3-7 [Dkt 680]
Dated July 17, 2024
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EXHIBIT 3
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67952420
Aug 19 2022
11:03PM
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I, INC.,
and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
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) C.A. No. 2022-0613-KSJM
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DEFENDANT AND COUNTERCLAIM-PLAINTIFF X HOLDINGS I,
INC.’S RESPONSES AND OBJECTIONS TO PLAINTIFF AND
COUNTERCLAIM-DEFENDANT’S NOTICE OF
RULE 30(b)(6) DEPOSITION TO DEFENDANT X HOLDINGS I, INC.
Pursuant to Court of Chancery Rules 26 and 30, Defendant and CounterclaimPlaintiff X Holdings I, Inc. (“X Holdings”), by and through its undersigned counsel,
hereby objects and responds to Plaintiff and Counterclaim-Defendant Twitter, Inc.’s
Notice of Rule 30(b)(6) Deposition to Defendant and Counterclaim-Plaintiff X
Holdings I, Inc. and the schedule attached thereto (the “Topics” and each a “Topic”)
as set forth below on the grounds specified herein.
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GENERAL OBJECTIONS
1.
X Holdings objects to the Topics to the extent they purport to impose
on X Holdings any requirements or obligations that are different from, greater or
more burdensome than, or contradict those required by, the Court of Chancery Rules
and Delaware law. X Holdings will respond to the Topics in a manner consistent
with its obligations under the Court of Chancery Rules and Delaware law.
2.
X Holdings objects to the Topics to the extent they seek information
protected from disclosure by any applicable privilege or immunity, including the
attorney-client privilege, the work product doctrine, the business strategy privilege,
the common interest privilege, the joint defense privilege, or other applicable
privileges, immunities, or protections. X Holdings hereby claims privilege with
respect to any such information. To the extent X Holdings discloses privileged
information in response to a Topic, such disclosure is inadvertent and shall not be
deemed a waiver of any applicable protection from disclosure or of any ground for
objection to discovery with respect to such information or to the use of any such
information in any proceeding.
3.
X Holdings objects to the Topics to the extent they contain legal
conclusions or characterize certain information, allegations, facts, events,
circumstances, issues, or ideas as undisputed fact. X Holdings’ responses to the
Topics are not an admission of any fact alleged or assumed by the Topics.
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4.
X Holdings objects to the definition of “Co-Investors” as overbroad for
the reasons set forth in Defendants’ August 17, 2022 Letter in response to Twitter’s
August 15, 2022 Letter Regarding Defendants’ Responses and Objections to
Twitter’s Document Requests and Interrogatories. In responding to the Topics,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
5.
X Holdings objects to the definition of “You” and “Your” as overbroad.
In responding to each Topic, X Holdings will interpret “You” and “Your” to mean
X Holdings I, Inc.
6.
X Holdings objects to Instruction No. 1 as overbroad. X Holdings I,
Inc. was not formed until April 19, 2022. Thus, X Holdings objects to this time
period to the extent it calls for testimony prior to April 19, 2022. To the extent
X Holdings agrees to produce a representative to testify regarding any of the Topics,
X Holdings is only agreeing to produce a representative on such Topics regarding
the time period from April 19, 2022 to July 8, 2022.
7.
All responses are made subject to these objections and are based solely
on the information known to X Holdings at the time these responses are served.
X Holdings reserves the right to revise, supplement, or clarify any objection or
response at any time, and to use at trial in this Action information later determined
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to have been responsive to these Topics. X Holdings reserves the right to object to
further discovery into the subject matter of the Topics.
8.
X Holdings is willing to meet and confer with Plaintiff on any of the
General Objections or specific responses and objections contained below.
SPECIFIC RESPONSES AND OBJECTIONS
TOPIC NO. 1:
The April 4, 2022 Letter Agreement, the April 13, 2022 Proposal, the
April 24, 2022 Offer, any consideration by Defendants of any other potential
acquisition or other strategic transaction involving Twitter, the Merger, the Merger
Agreement, the Limited Guarantee, the June 6, 2022 Letter, and the July 8, 2022
Letter, and any financing with respect to any of the foregoing or any transaction
contemplated thereby (including but not limited to the Debt Financing, the Equity
Financing, and/or the Financing Commitments).
RESPONSE TO TOPIC NO. 1:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it relates to events or
topics that pre-date its incorporation on April 19, 2022.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 1 for the time period from April 19,
2022 to July 8, 2022.
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TOPIC NO. 2:
All efforts to syndicate and/or arrange, document, negotiate the terms of, or
consummate the Debt Financing and close the Merger, including the status of or
expected timeline for such efforts.
RESPONSE TO TOPIC NO. 2:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 2.
TOPIC NO. 3:
All efforts to solicit Co-Investors, arrange or negotiate equity co-investments,
and/or arrange, document, syndicate, or consummate the Equity Financing,
including those concerning the status of or expected timeline for such efforts.
RESPONSE TO TOPIC NO. 3:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
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will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 3.
TOPIC NO. 4:
All efforts undertaken by Defendants or Defendants’ Advisors, on or after
May 13, 2022, to obtain, syndicate, arrange, finalize, and/or consummate the Debt
Financing, close the Merger, and/or cause all of the conditions for closing the Merger
to be satisfied.
RESPONSE TO TOPIC NO. 4:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 4.
TOPIC NO. 5:
The Margin Loan Commitment, including without limitation (i) the reduction
of the amount of the Margin Loan Commitment and reasons for such reduction; and
(ii) the subsequent termination of the Margin Loan Commitment and reasons for
such termination.
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RESPONSE TO TOPIC NO. 5:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 5.
TOPIC NO. 6:
Any potential tender offer by or on behalf of Defendants for some or all of
Twitter’s shares, including without limitation Defendants’ negotiation of the debt
commitment letter, dated April 20, 2022, attached as Exhibit C to Amendment No.
3 to Schedule 13D, filed by Equity Investor with the SEC on April 21, 2022.
RESPONSE TO TOPIC NO. 6:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 6.
TOPIC NO. 7:
Defendants’ requests or potential requests for information pursuant to Section
6.4 and/or Section 6.11 of the Merger Agreement and any information provided by
Twitter, or on Twitter’s behalf, in response to any such request for information,
including without limitation any analyses, audits, or investigations performed by or
at the direction of You and/or Defendants’ Advisors, the Lenders, or the CoInvestors, relating to Twitter’s API or “firehose” data provided to Defendants or any
7
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other information provided by Twitter, or on Twitter’s behalf, in response to any
information request by You or on Your behalf.
RESPONSE TO TOPIC NO. 7:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed by or at the direction of You and/or
Defendants’ Advisors, the Lenders, or the Co-Investors.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
X Holdings further objects to this Topic as overbroad to the extent it calls for
testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 7.
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TOPIC NO. 8:
Any request made by Twitter, or on Twitter’s behalf, seeking Defendants’
consent pursuant to Section 6.1 of the Merger Agreement with respect to (i) the
implementation of employee retention programs; (ii) the termination of a revolving
credit facility; (iii) an application for a money transmitter license; or (iv) any other
proposed course of action, corporate policy, or other decision related to the conduct
of Twitter’s business, including Defendants’ assessment of and/or decision whether
or not to provide their consent and/or whether or not the proposed course of action,
corporate policy, or other decision was commercially reasonable under the
circumstances, including all of the reasons Defendants declined to provide consents
to Twitter’s requests under the Merger Agreement described in paragraphs 119
through 122 of the Complaint, including without limitation all of the reasons why
You initially provided, but thereafter withdrew, any such consent.
RESPONSE TO TOPIC NO. 8:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 8.
TOPIC NO. 9:
False or spam accounts or bots on the Twitter platform and the disclosures in
Twitter’s SEC filings discussed in Paragraphs 64 and 66 of the Complaint, including
without limitation (i) any analyses, audits, or investigations performed or conducted
by or at the direction of You and/or Defendants’ Advisors, or of which You are
aware, relating to these subjects, whether performed or conducted prior or
subsequent to the execution of the Merger Agreement; (ii) any analyses, audits, or
investigations that You and/or Defendants’ Advisors considered undertaking, or that
You and/or Defendants’ Advisors considered having others undertake on Your or
their behalf, relating to these subjects; and (iii) Your decision to execute the Merger
Agreement without further due diligence on these subjects.
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RESPONSE TO TOPIC NO. 9:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed or conducted by or at the direction of
You and/or Defendants’ Advisors” and “any analyses, audits, or investigations that
You and/or Defendants’ Advisors considered undertaking, or that You and/or
Defendants’ Advisors considered having others undertake.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 9.
TOPIC NO. 10:
The effects or potential effects of changes in the price of Tesla common stock
on (i) the Merger; (ii) the Debt Financing; (iii) the Equity Financing; (iv) the
Financing Commitments; and/or (v) Your intentions with respect to closing and/or
efforts to close the Merger, and Defendants’ knowledge and consideration of such
topics.
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RESPONSE TO TOPIC NO. 10:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 10.
TOPIC NO. 11:
Any Communications between (a) Defendants or Defendants’ Advisors and
(b) any Governmental Authority, concerning (i) the Merger; (ii) the Merger
Agreement; (iii) the Proxy Statement; or (iv) Twitter, including the purpose of such
Communications, the nature and substance of such Communications, and at whose
request such Communications were made.
RESPONSE TO TOPIC NO. 11:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it seeks testimony
regarding communications that are subject to an investigative privilege belonging to
any governmental authority. As set forth in Defendants’ August 17, 2022 Letter in
response to Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and
Objections to Twitter’s Document Requests and Interrogatories, X Holdings is not
in a position to disclose any information in its possession relating to any
investigation by any governmental authority that is subject to protection from
11
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disclosure as recognized in Legent Group, LLC v. Axos Financial, Inc., 2021 WL
4514930 (Del. Ch. Oct. 4, 2021). X Holdings will respond to this Topic consistent
with the Court’s resolution of Plaintiff’s motion to compel regarding
communications with governmental authorities.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 11.
TOPIC NO. 12:
Defendants’ purported termination of the Merger Agreement, including
without limitation (i) any consideration of whether and on what grounds to purport
to terminate the Merger Agreement; (ii) any consideration of potentially
renegotiating the Merger Agreement; (iii) the preparation of the June 6, 2022 Letter;
and (iv) the preparation of the July 8, 2022 Letter.
RESPONSE TO TOPIC NO. 12:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 12.
TOPIC NO. 13:
Defendants’ contention in the July 8, 2022 Letter that Twitter is “likely to
suffer a Company Material Adverse Effect,” including without limitation any
valuations, forecasts, projections, estimates, or other analyses relating to whether
Twitter is likely to suffer a Company Material Adverse Effect.
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RESPONSE TO TOPIC NO. 13:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding the bases
for X Holdings’ contention. The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to the bases for X Holdings’ contention is the subject of
a pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 13.
TOPIC NO. 14:
Forecasts, projections, estimates, or other analyses created by Defendants,
Defendants’ Advisors, the Lenders, or the Co-Investors, or on Your or their behalf,
relating to Twitter’s current or future performance, financial condition, or value,
including without limitation any projections of Twitter’s revenues, EBITDA,
earnings, and cash flows, and all Documents and Communications concerning such
forecasts, projections, estimates, or analyses.
RESPONSE TO TOPIC NO. 14:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “analyses
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created by Defendants, Defendants’ Advisors, the Lenders, or the Co-Investors, or
on Your or their behalf.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to such analyses is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel. X Holdings further objects to this Topic as overbroad to
the extent it calls for testimony regarding interactions with “potential co-investors”
for the reasons set forth in Defendants’ August 17, 2022 Letter in response to
Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and Objections
to Twitter’s Document Requests and Interrogatories. In responding to this Topic,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 14.
TOPIC NO. 15:
Any plans or potential plans made or considered by Defendants to create or
develop a social media platform and/or alternative or competitor to Twitter,
including without limitation any plans or potential plans concerning X.com, and
including without limitation the origin, history, and timeline of such plans, and all
other Persons involved in such plans or with whom Equity Investor has discussed
such plans.
RESPONSE TO TOPIC NO. 15:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
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doctrine.
X Holdings further objects to this Topic to the extent the phrase
“alternative or competitor to Twitter” is vague and ambiguous. X Holdings will
construe “alternative or competitor to Twitter” to include any social media platform
other than Twitter, including X.com.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 15.
TOPIC NO. 16:
Your strategic or business plans for Twitter, including without limitation
(i) all plans to address issues relating to false or spam accounts on the Twitter
platform; (ii) all plans relating to employee retention programs or incentives; and
(iii) all plans relating to potential changes to the size and/or composition of Twitter’s
workforce.
RESPONSE TO TOPIC NO. 16:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent the phrase “strategic
or business plans for Twitter” is vague or ambiguous. Specifically, the phrase
“strategic or business plans” could include any number of short-term or long-term
plans about any facet of Twitter’s business, regardless of their relevance to the issues
in this litigation.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding the subtopics listed in (i), (ii), and (iii) of Topic
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No. 16. X Holdings will agree to meet and confer regarding any further testimony
sought with reference to Topic No. 16.
TOPIC NO. 17:
The engagement, the work, and the termination of Bob Swan and/or the
cessation of Bob Swan’s involvement on Defendants’ behalf in connection with the
Merger and the Debt Financing, including the reasons that Defendants determined
that Bob Swan should “depart the deal proceedings” on or about June 23, 2022,
including due to the disconnect in “wavelength” between You and Bob Swan, as
described in Paragraph 110 of the Complaint.
RESPONSE TO TOPIC NO. 17:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 17.
TOPIC NO. 18:
The actual or potential engagement or involvement of Antonio Gracias to act
on Defendants’ behalf in connection with the Merger and the Debt Financing and
the work Antonio Gracias performed in that capacity, including all of the ways that
Antonio Gracias allegedly “dove in to the financing as soon as he was brought on”
to replace Bob Swan, as referenced in Paragraph 198 of the Counterclaim.
RESPONSE TO TOPIC NO. 18:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
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Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 18.
TOPIC NO. 19:
The directors, officers, employees, and owners of X Holdings I, Inc., X
Holdings II, Inc., and X Holdings III, LLC, and the relationships between them and
Equity Investor.
RESPONSE TO TOPIC NO. 19:
Subject to and limited by the General Objections, X Holdings will produce a
representative to testify regarding Topic No. 19.
TOPIC NO. 20:
Defendants’ and Defendants’ Advisors’ use of the “Botometer” tool described
in Paragraph 116 and Footnote 16 of the Counterclaim.
RESPONSE TO TOPIC NO. 20:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ Advisors’ use.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ Advisors’ use” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
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Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 20.
TOPIC NO. 21:
The engagement of the Data Scientists, including without limitation (i) the
identification of all Data Scientists and when they were engaged; (ii) the scope and
purpose of any such engagement; (iii) how such Data Scientists came to be engaged;
(iv) the nature of any agreements, arrangements, or understandings between the Data
Scientists and Defendants or Defendants’ Advisors.
RESPONSE TO TOPIC NO. 21:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[t]he
engagement of the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[t]he engagement of the Data Scientists” is the
subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 21.
TOPIC NO. 22:
All Persons that Defendants or Defendants’ Advisors communicated with
about a potential engagement as a Data Scientist that were not engaged as a Data
Scientist, including without limitation (i) the identification of all such Persons;
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(ii) the timeline during which such potential engagement was considered; and (iii) all
reasons such engagement did not take place.
RESPONSE TO TOPIC NO. 22:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 22.
TOPIC NO. 23:
All work performed by the Data Scientists, including without limitation (i) the
instructions received by the Data Scientists; (ii) the scope of the Data Scientists’
work; (iii) the timeline of the Data Scientists’ work; (iv) a description of the work
performed by each individual working as or for a Data Scientist; (v) the findings,
conclusions, and results of such work.
RESPONSE TO TOPIC NO. 23:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[a]ll work
performed by the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[a]ll work performed by the Data Scientists” is
the subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
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Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 23.
TOPIC NO. 24:
The financial model allegedly prepared by Morgan Stanley as described in
Paragraphs 34 and 166 of the Counterclaim and, to the extent different than the
financial model, the valuations allegedly prepared by Morgan Stanley as described
in Paragraph 78 of the Counterclaim, including the extent to which Defendants
received, reviewed, or discussed the referenced model prior to April 25, 2022, and
the extent to which Defendants relied upon the referenced model.
RESPONSE TO TOPIC NO. 24:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 24.
TOPIC NO. 25:
Any “additional business models” that Defendants allegedly considered as a
means to “unlock Twitter’s true value,” as described in Paragraph 39 of the
Counterclaim, including without limitation the “subscription-based model”
referenced in that same Paragraph, the projected or anticipated value of Twitter
based on such business models, and the relevance of mDAU to such business
models.
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RESPONSE TO TOPIC NO. 25:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 25.
TOPIC NO. 26:
Defendants’ knowledge of Twitter’s litigation with the Indian government
and/or any content-removal orders issued to Twitter by the Indian government, as
discussed in Paragraphs 18 and 181 through 185 of the Counterclaim, including
without limitation when Defendants became aware of such litigation and/or contentremoval orders and who made them aware of such orders.
RESPONSE TO TOPIC NO. 26:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 26.
TOPIC NO. 27:
All “key decisions” that Twitter allegedly made “outside the ordinary course
without consulting the Musk Parties,” as alleged in Paragraphs 186 through 195 of
the Counterclaim.
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RESPONSE TO TOPIC NO. 27:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 27.
TOPIC NO. 28:
The extent to which Defendants undertook any review, prior to executing the
Merger Agreement, of each of the allegedly false and misleading statements
discussed at Paragraphs 109 through 149 of the Counterclaim.
RESPONSE TO TOPIC NO. 28:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 28.
TOPIC NO. 29:
The reliance of Defendants and/or Defendants’ Advisors on Twitter’s
representations in its SEC filings, as alleged in Paragraph 27 of the Counterclaim.
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RESPONSE TO TOPIC NO. 29:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 29.
TOPIC NO. 30:
Defendants’ beliefs about the number and/or prevalence of false or spam
accounts or bots on the Twitter platform, including all bases for such beliefs and
Defendants’ allegations set forth in Paragraphs 212 and 213 of the Counterclaim that
“[a]t the time of the Merger Agreement, Defendants/Counterclaim-Plaintiffs did not
know the false or misleading statements or omissions” and “[h]ad
Defendants/Counterclaim-Plaintiffs known about the false or misleading statements
and omissions, they would not have entered into the Merger Agreement.”
RESPONSE TO TOPIC NO. 30:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “all bases
for such beliefs.” The applicability of the work product doctrine and Chancery Rule
26(b)(4)(B) to “all bases for such beliefs” is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel.
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Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 30.
TOPIC NO. 31:
Defendants’ bases for contending that “statement[s] of material fact” in
documents that Twitter has filed with the SEC since January 1, 2022 were “untrue”
or “misleading,” including statements that Defendants contend contained
representations that “fewer than 5%” of Twitter’s mDAU are false or spam accounts.
RESPONSE TO TOPIC NO. 31:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ bases for contending.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “Defendants’ bases for contending” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 31.
TOPIC NO. 32:
Defendants’ understanding of Twitter’s mDAU recast in April 2022, as
discussed in Paragraphs 9 and 79 through 81 of the Counterclaim.
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RESPONSE TO TOPIC NO. 32:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 32.
TOPIC NO. 33:
The “preliminary analysis by Mr. Musk’s advisors” and the results thereof
described in the final paragraph of page 6 of Defendants’ July 8 letter.
RESPONSE TO TOPIC NO. 33:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding the
“preliminary analysis by Mr. Musk’s advisors.” The applicability of the work
product doctrine and Chancery Rule 26(b)(4)(B) to the “preliminary analysis by Mr.
Musk’s advisors” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 33.
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TOPIC NO. 34:
Defendants’ alleged belief that “due diligence processes can be costly and
inefficient,” as set forth in Paragraph 60 of the Counterclaim.
RESPONSE TO TOPIC NO. 34:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 34.
TOPIC NO. 35:
Defendants’ alleged assumption that Twitter “rel[ied] on automation, artificial
intelligence, and machine learning” to count false or spam accounts, as described in
Paragraph 83 of the Counterclaim.
RESPONSE TO TOPIC NO. 35:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 35.
TOPIC NO. 36:
Defendants’ understanding of the “stratification” or potential stratification of
Twitter’s mDAU, as that term is used in Paragraph 141 of the Counterclaim, whether
performed before or after the execution of the Merger Agreement.
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RESPONSE TO TOPIC NO. 36:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ understanding” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 36.
TOPIC NO. 37:
Defendants’ allegation that “nearly a third of Twitter’s mDAU in fact see no
ads and appear to generate no revenue at all,” as set forth in Paragraph 138 of the
Counterclaim.
RESPONSE TO TOPIC NO. 37:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it may call for the bases for X Holdings’ allegation. The
applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to the
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bases for X Holdings’ allegation is the subject of a pending motion to compel.
X Holdings will respond to this Topic according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 37.
TOPIC NO. 38:
Defendants’ knowledge and understanding of their allegation that “mDAU
growth is not occurring among high-value users,” as set forth in Paragraph 142 of
the Counterclaim.
RESPONSE TO TOPIC NO. 38:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ knowledge and understanding.” The applicability of the work product
doctrine and Chancery Rule 26(b)(4)(B) to “Defendants’ knowledge and
understanding” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 38.
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TOPIC NO. 39:
All allegations in Defendants’ Counterclaim.
RESPONSE TO TOPIC NO. 39:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify the particular paragraphs of the Counterclaims about which
Plaintiff seeks testimony.
Subject to and limited by the foregoing objections, and after Plaintiff
identifies which paragraphs are covered by this Topic, X Holdings will produce a
representative to testify regarding Topic No. 39.
TOPIC NO. 40:
Defendants’ understanding of how many false or spam accounts existed on
the Twitter platform as of July 8, 2022, in absolute terms and as a percentage of
Twitter’s mDAU, and all their bases for that understanding as of that date.
RESPONSE TO TOPIC NO. 40:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding” and “their bases for that understanding.”
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applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to
“Defendants’ understanding” and “their bases for that understanding” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 40.
TOPIC NO. 41:
Defendants’ policies, practices, software, hardware, and systems relating to
the storage, management, retention, and destruction of Documents and
Communications.
RESPONSE TO TOPIC NO. 41:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 41.
TOPIC NO. 42:
Defendants’ efforts to ensure that Documents relating to the discovery
requests in this Action and/or the Complaint were properly preserved, including any
related litigation hold or document preservation letters or notices.
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RESPONSE TO TOPIC NO. 42:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 42.
TOPIC NO. 43:
Defendants’ efforts to retrieve text messages, instant messages, and other nonemail Communications.
RESPONSE TO TOPIC NO. 43:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 43.
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TOPIC NO. 44:
Any sales of Tesla stock by Equity Investor from April 1, 2022 through the
present, including the purpose of any such sale, any potential use of the proceeds of
such sale considered by Defendants, and any relationship between such sale and the
Merger.
RESPONSE TO TOPIC NO. 44:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 44.
TOPIC NO. 45:
The identity, role, and nature of the work of any personnel of Tesla or Space
Exploration Technologies Corp. who worked on, analyzed, or assisted in any
capacity with the Merger, the Debt Financing, the Equity Financing, any potential
investment by a Co-Investor, the Margin Loan Commitment, any potential tender
offer involving Twitter, Defendants’ purported termination of the Merger
Agreement, or the Action.
RESPONSE TO TOPIC NO. 45:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
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2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 45.
TOPIC NO. 46:
All information contained in Defendants’ Interrogatory Responses, including
all sources of such information and Defendants’ process of ascertaining and
providing such information.
RESPONSE TO TOPIC NO. 46:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify which particular interrogatory responses Plaintiff seeks testimony
on.
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 46.
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OF COUNSEL:
Alex Spiro
Andrew J. Rossman
Christopher D. Kercher
Silpa Maruri
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010
/s/ Edward B. Micheletti
Edward B. Micheletti (ID No. 3794)
Lauren N. Rosenello (ID No. 5581)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
920 North King Street, 7th Floor
P.O. Box 636
Wilmington, Delaware 19899-0636
(302) 651-3000
Attorneys for Defendant X Holdings I, Inc.
DATED: August 19, 2022
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EXHIBIT 4
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67952420
Aug 19 2022
11:03PM
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I, INC.,
and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
)
)
)
)
)
) C.A. No. 2022-0613-KSJM
)
)
)
)
)
)
DEFENDANT AND COUNTERCLAIM-PLAINTIFF X HOLDINGS II,
INC.’S RESPONSES AND OBJECTIONS TO PLAINTIFF AND
COUNTERCLAIM-DEFENDANT’S NOTICE OF
RULE 30(b)(6) DEPOSITION TO DEFENDANT X HOLDINGS II, INC.
Pursuant to Court of Chancery Rules 26 and 30, Defendant and CounterclaimPlaintiff X Holdings II, Inc. (“X Holdings”), by and through its undersigned counsel,
hereby objects and responds to Plaintiff and Counterclaim-Defendant Twitter, Inc.’s
Notice of Rule 30(b)(6) Deposition to Defendant and Counterclaim-Plaintiff X
Holdings II, Inc. and the schedule attached thereto (the “Topics” and each a “Topic”)
as set forth below on the grounds specified herein.
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GENERAL OBJECTIONS
1.
X Holdings objects to the Topics to the extent they purport to impose
on X Holdings any requirements or obligations that are different from, greater or
more burdensome than, or contradict those required by, the Court of Chancery Rules
and Delaware law. X Holdings will respond to the Topics in a manner consistent
with its obligations under the Court of Chancery Rules and Delaware law.
2.
X Holdings objects to the Topics to the extent they seek information
protected from disclosure by any applicable privilege or immunity, including the
attorney-client privilege, the work product doctrine, the business strategy privilege,
the common interest privilege, the joint defense privilege, or other applicable
privileges, immunities, or protections. X Holdings hereby claims privilege with
respect to any such information. To the extent X Holdings discloses privileged
information in response to a Topic, such disclosure is inadvertent and shall not be
deemed a waiver of any applicable protection from disclosure or of any ground for
objection to discovery with respect to such information or to the use of any such
information in any proceeding.
3.
X Holdings objects to the Topics to the extent they contain legal
conclusions or characterize certain information, allegations, facts, events,
circumstances, issues, or ideas as undisputed fact. X Holdings’ responses to the
Topics are not an admission of any fact alleged or assumed by the Topics.
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4.
X Holdings objects to the definition of “Co-Investors” as overbroad for
the reasons set forth in Defendants’ August 17, 2022 Letter in response to Twitter’s
August 15, 2022 Letter Regarding Defendants’ Responses and Objections to
Twitter’s Document Requests and Interrogatories. In responding to the Topics,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
5.
X Holdings objects to the definition of “You” and “Your” as overbroad.
In responding to each Topic, X Holdings will interpret “You” and “Your” to mean
X Holdings II, Inc.
6.
X Holdings objects to Instruction No. 1 as overbroad. X Holdings II,
Inc. was not formed until April 19, 2022. Thus, X Holdings objects to this time
period to the extent it calls for testimony prior to April 19, 2022. To the extent
X Holdings agrees to produce a representative to testify regarding any of the Topics,
X Holdings is only agreeing to produce a representative on such Topics regarding
the time period from April 19, 2022 to July 8, 2022.
7.
All responses are made subject to these objections and are based solely
on the information known to X Holdings at the time these responses are served.
X Holdings reserves the right to revise, supplement, or clarify any objection or
response at any time, and to use at trial in this Action information later determined
to have been responsive to these Topics. X Holdings reserves the right to object to
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further discovery into the subject matter of the Topics.
8.
X Holdings is willing to meet and confer with Plaintiff on any of the
General Objections or specific responses and objections contained below.
SPECIFIC RESPONSES AND OBJECTIONS
TOPIC NO. 1:
The April 4, 2022 Letter Agreement, the April 13, 2022 Proposal, the
April 24, 2022 Offer, any consideration by Defendants of any other potential
acquisition or other strategic transaction involving Twitter, the Merger, the Merger
Agreement, the Limited Guarantee, the June 6, 2022 Letter, and the July 8, 2022
Letter, and any financing with respect to any of the foregoing or any transaction
contemplated thereby (including but not limited to the Debt Financing, the Equity
Financing, and/or the Financing Commitments).
RESPONSE TO TOPIC NO. 1:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it relates to events or
topics that pre-date its incorporation on April 19, 2022.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 1 for the time period from April 19,
2022 to July 8, 2022.
TOPIC NO. 2:
All efforts to syndicate and/or arrange, document, negotiate the terms of, or
consummate the Debt Financing and close the Merger, including the status of or
expected timeline for such efforts.
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RESPONSE TO TOPIC NO. 2:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 2.
TOPIC NO. 3:
All efforts to solicit Co-Investors, arrange or negotiate equity co-investments,
and/or arrange, document, syndicate, or consummate the Equity Financing,
including those concerning the status of or expected timeline for such efforts.
RESPONSE TO TOPIC NO. 3:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
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Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 3.
TOPIC NO. 4:
All efforts undertaken by Defendants or Defendants’ Advisors, on or after
May 13, 2022, to obtain, syndicate, arrange, finalize, and/or consummate the Debt
Financing, close the Merger, and/or cause all of the conditions for closing the Merger
to be satisfied.
RESPONSE TO TOPIC NO. 4:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 4.
TOPIC NO. 5:
The Margin Loan Commitment, including without limitation (i) the reduction
of the amount of the Margin Loan Commitment and reasons for such reduction; and
(ii) the subsequent termination of the Margin Loan Commitment and reasons for
such termination.
RESPONSE TO TOPIC NO. 5:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
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Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 5.
TOPIC NO. 6:
Any potential tender offer by or on behalf of Defendants for some or all of
Twitter’s shares, including without limitation Defendants’ negotiation of the debt
commitment letter, dated April 20, 2022, attached as Exhibit C to Amendment No.
3 to Schedule 13D, filed by Equity Investor with the SEC on April 21, 2022.
RESPONSE TO TOPIC NO. 6:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 6.
TOPIC NO. 7:
Defendants’ requests or potential requests for information pursuant to Section
6.4 and/or Section 6.11 of the Merger Agreement and any information provided by
Twitter, or on Twitter’s behalf, in response to any such request for information,
including without limitation any analyses, audits, or investigations performed by or
at the direction of You and/or Defendants’ Advisors, the Lenders, or the CoInvestors, relating to Twitter’s API or “firehose” data provided to Defendants or any
other information provided by Twitter, or on Twitter’s behalf, in response to any
information request by You or on Your behalf.
RESPONSE TO TOPIC NO. 7:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
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doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed by or at the direction of You and/or
Defendants’ Advisors, the Lenders, or the Co-Investors.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
X Holdings further objects to this Topic as overbroad to the extent it calls for
testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 7.
TOPIC NO. 8:
Any request made by Twitter, or on Twitter’s behalf, seeking Defendants’
consent pursuant to Section 6.1 of the Merger Agreement with respect to (i) the
implementation of employee retention programs; (ii) the termination of a revolving
credit facility; (iii) an application for a money transmitter license; or (iv) any other
proposed course of action, corporate policy, or other decision related to the conduct
of Twitter’s business, including Defendants’ assessment of and/or decision whether
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or not to provide their consent and/or whether or not the proposed course of action,
corporate policy, or other decision was commercially reasonable under the
circumstances, including all of the reasons Defendants declined to provide consents
to Twitter’s requests under the Merger Agreement described in paragraphs 119
through 122 of the Complaint, including without limitation all of the reasons why
You initially provided, but thereafter withdrew, any such consent.
RESPONSE TO TOPIC NO. 8:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 8.
TOPIC NO. 9:
False or spam accounts or bots on the Twitter platform and the disclosures in
Twitter’s SEC filings discussed in Paragraphs 64 and 66 of the Complaint, including
without limitation (i) any analyses, audits, or investigations performed or conducted
by or at the direction of You and/or Defendants’ Advisors, or of which You are
aware, relating to these subjects, whether performed or conducted prior or
subsequent to the execution of the Merger Agreement; (ii) any analyses, audits, or
investigations that You and/or Defendants’ Advisors considered undertaking, or that
You and/or Defendants’ Advisors considered having others undertake on Your or
their behalf, relating to these subjects; and (iii) Your decision to execute the Merger
Agreement without further due diligence on these subjects.
RESPONSE TO TOPIC NO. 9:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
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specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed or conducted by or at the direction of
You and/or Defendants’ Advisors” and “any analyses, audits, or investigations that
You and/or Defendants’ Advisors considered undertaking, or that You and/or
Defendants’ Advisors considered having others undertake.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 9.
TOPIC NO. 10:
The effects or potential effects of changes in the price of Tesla common stock
on (i) the Merger; (ii) the Debt Financing; (iii) the Equity Financing; (iv) the
Financing Commitments; and/or (v) Your intentions with respect to closing and/or
efforts to close the Merger, and Defendants’ knowledge and consideration of such
topics.
RESPONSE TO TOPIC NO. 10:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 10.
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TOPIC NO. 11:
Any Communications between (a) Defendants or Defendants’ Advisors and
(b) any Governmental Authority, concerning (i) the Merger; (ii) the Merger
Agreement; (iii) the Proxy Statement; or (iv) Twitter, including the purpose of such
Communications, the nature and substance of such Communications, and at whose
request such Communications were made.
RESPONSE TO TOPIC NO. 11:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it seeks testimony
regarding communications that are subject to an investigative privilege belonging to
any governmental authority. As set forth in Defendants’ August 17, 2022 Letter in
response to Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and
Objections to Twitter’s Document Requests and Interrogatories, X Holdings is not
in a position to disclose any information in its possession relating to any
investigation by any governmental authority that is subject to protection from
disclosure as recognized in Legent Group, LLC v. Axos Financial, Inc., 2021 WL
4514930 (Del. Ch. Oct. 4, 2021). X Holdings will respond to this Topic consistent
with the Court’s resolution of Plaintiff’s motion to compel regarding
communications with governmental authorities.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 11.
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TOPIC NO. 12:
Defendants’ purported termination of the Merger Agreement, including
without limitation (i) any consideration of whether and on what grounds to purport
to terminate the Merger Agreement; (ii) any consideration of potentially
renegotiating the Merger Agreement; (iii) the preparation of the June 6, 2022 Letter;
and (iv) the preparation of the July 8, 2022 Letter.
RESPONSE TO TOPIC NO. 12:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 12.
TOPIC NO. 13:
Defendants’ contention in the July 8, 2022 Letter that Twitter is “likely to
suffer a Company Material Adverse Effect,” including without limitation any
valuations, forecasts, projections, estimates, or other analyses relating to whether
Twitter is likely to suffer a Company Material Adverse Effect.
RESPONSE TO TOPIC NO. 13:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding the bases
for X Holdings’ contention. The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to the bases for X Holdings’ contention is the subject of
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a pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 13.
TOPIC NO. 14:
Forecasts, projections, estimates, or other analyses created by Defendants,
Defendants’ Advisors, the Lenders, or the Co-Investors, or on Your or their behalf,
relating to Twitter’s current or future performance, financial condition, or value,
including without limitation any projections of Twitter’s revenues, EBITDA,
earnings, and cash flows, and all Documents and Communications concerning such
forecasts, projections, estimates, or analyses.
RESPONSE TO TOPIC NO. 14:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “analyses
created by Defendants, Defendants’ Advisors, the Lenders, or the Co-Investors, or
on Your or their behalf.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to such analyses is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel. X Holdings further objects to this Topic as overbroad to
the extent it calls for testimony regarding interactions with “potential co-investors”
for the reasons set forth in Defendants’ August 17, 2022 Letter in response to
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Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and Objections
to Twitter’s Document Requests and Interrogatories. In responding to this Topic,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 14.
TOPIC NO. 15:
Any plans or potential plans made or considered by Defendants to create or
develop a social media platform and/or alternative or competitor to Twitter,
including without limitation any plans or potential plans concerning X.com, and
including without limitation the origin, history, and timeline of such plans, and all
other Persons involved in such plans or with whom Equity Investor has discussed
such plans.
RESPONSE TO TOPIC NO. 15:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
X Holdings further objects to this Topic to the extent the phrase
“alternative or competitor to Twitter” is vague and ambiguous. X Holdings will
construe “alternative or competitor to Twitter” to include any social media platform
other than Twitter, including X.com.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 15.
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TOPIC NO. 16:
Your strategic or business plans for Twitter, including without limitation
(i) all plans to address issues relating to false or spam accounts on the Twitter
platform; (ii) all plans relating to employee retention programs or incentives; and
(iii) all plans relating to potential changes to the size and/or composition of Twitter’s
workforce.
RESPONSE TO TOPIC NO. 16:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent the phrase “strategic
or business plans for Twitter” is vague or ambiguous. Specifically, the phrase
“strategic or business plans” could include any number of short-term or long-term
plans about any facet of Twitter’s business, regardless of their relevance to the issues
in this litigation.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding the subtopics listed in (i), (ii), and (iii) of Topic
No. 16. X Holdings will agree to meet and confer regarding any further testimony
sought with reference to Topic No. 16.
TOPIC NO. 17:
The engagement, the work, and the termination of Bob Swan and/or the
cessation of Bob Swan’s involvement on Defendants’ behalf in connection with the
Merger and the Debt Financing, including the reasons that Defendants determined
that Bob Swan should “depart the deal proceedings” on or about June 23, 2022,
including due to the disconnect in “wavelength” between You and Bob Swan, as
described in Paragraph 110 of the Complaint.
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RESPONSE TO TOPIC NO. 17:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 17.
TOPIC NO. 18:
The actual or potential engagement or involvement of Antonio Gracias to act
on Defendants’ behalf in connection with the Merger and the Debt Financing and
the work Antonio Gracias performed in that capacity, including all of the ways that
Antonio Gracias allegedly “dove in to the financing as soon as he was brought on”
to replace Bob Swan, as referenced in Paragraph 198 of the Counterclaim.
RESPONSE TO TOPIC NO. 18:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 18.
TOPIC NO. 19:
The directors, officers, employees, and owners of X Holdings I, Inc., X
Holdings II, Inc., and X Holdings III, LLC, and the relationships between them and
Equity Investor.
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RESPONSE TO TOPIC NO. 19:
Subject to and limited by the General Objections, X Holdings will produce a
representative to testify regarding Topic No. 19.
TOPIC NO. 20:
Defendants’ and Defendants’ Advisors’ use of the “Botometer” tool described
in Paragraph 116 and Footnote 16 of the Counterclaim.
RESPONSE TO TOPIC NO. 20:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ Advisors’ use.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ Advisors’ use” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 20.
TOPIC NO. 21:
The engagement of the Data Scientists, including without limitation (i) the
identification of all Data Scientists and when they were engaged; (ii) the scope and
purpose of any such engagement; (iii) how such Data Scientists came to be engaged;
(iv) the nature of any agreements, arrangements, or understandings between the Data
Scientists and Defendants or Defendants’ Advisors.
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RESPONSE TO TOPIC NO. 21:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[t]he
engagement of the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[t]he engagement of the Data Scientists” is the
subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 21.
TOPIC NO. 22:
All Persons that Defendants or Defendants’ Advisors communicated with
about a potential engagement as a Data Scientist that were not engaged as a Data
Scientist, including without limitation (i) the identification of all such Persons;
(ii) the timeline during which such potential engagement was considered; and (iii) all
reasons such engagement did not take place.
RESPONSE TO TOPIC NO. 22:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
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Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 22.
TOPIC NO. 23:
All work performed by the Data Scientists, including without limitation (i) the
instructions received by the Data Scientists; (ii) the scope of the Data Scientists’
work; (iii) the timeline of the Data Scientists’ work; (iv) a description of the work
performed by each individual working as or for a Data Scientist; (v) the findings,
conclusions, and results of such work.
RESPONSE TO TOPIC NO. 23:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[a]ll work
performed by the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[a]ll work performed by the Data Scientists” is
the subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 23.
TOPIC NO. 24:
The financial model allegedly prepared by Morgan Stanley as described in
Paragraphs 34 and 166 of the Counterclaim and, to the extent different than the
financial model, the valuations allegedly prepared by Morgan Stanley as described
in Paragraph 78 of the Counterclaim, including the extent to which Defendants
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received, reviewed, or discussed the referenced model prior to April 25, 2022, and
the extent to which Defendants relied upon the referenced model.
RESPONSE TO TOPIC NO. 24:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 24.
TOPIC NO. 25:
Any “additional business models” that Defendants allegedly considered as a
means to “unlock Twitter’s true value,” as described in Paragraph 39 of the
Counterclaim, including without limitation the “subscription-based model”
referenced in that same Paragraph, the projected or anticipated value of Twitter
based on such business models, and the relevance of mDAU to such business
models.
RESPONSE TO TOPIC NO. 25:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 25.
TOPIC NO. 26:
Defendants’ knowledge of Twitter’s litigation with the Indian government
and/or any content-removal orders issued to Twitter by the Indian government, as
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discussed in Paragraphs 18 and 181 through 185 of the Counterclaim, including
without limitation when Defendants became aware of such litigation and/or contentremoval orders and who made them aware of such orders.
RESPONSE TO TOPIC NO. 26:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 26.
TOPIC NO. 27:
All “key decisions” that Twitter allegedly made “outside the ordinary course
without consulting the Musk Parties,” as alleged in Paragraphs 186 through 195 of
the Counterclaim.
RESPONSE TO TOPIC NO. 27:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 27.
TOPIC NO. 28:
The extent to which Defendants undertook any review, prior to executing the
Merger Agreement, of each of the allegedly false and misleading statements
discussed at Paragraphs 109 through 149 of the Counterclaim.
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RESPONSE TO TOPIC NO. 28:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 28.
TOPIC NO. 29:
The reliance of Defendants and/or Defendants’ Advisors on Twitter’s
representations in its SEC filings, as alleged in Paragraph 27 of the Counterclaim.
RESPONSE TO TOPIC NO. 29:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 29.
TOPIC NO. 30:
Defendants’ beliefs about the number and/or prevalence of false or spam
accounts or bots on the Twitter platform, including all bases for such beliefs and
Defendants’ allegations set forth in Paragraphs 212 and 213 of the Counterclaim that
“[a]t the time of the Merger Agreement, Defendants/Counterclaim-Plaintiffs did not
know the false or misleading statements or omissions” and “[h]ad
Defendants/Counterclaim-Plaintiffs known about the false or misleading statements
and omissions, they would not have entered into the Merger Agreement.”
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RESPONSE TO TOPIC NO. 30:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “all bases
for such beliefs.” The applicability of the work product doctrine and Chancery Rule
26(b)(4)(B) to “all bases for such beliefs” is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 30.
TOPIC NO. 31:
Defendants’ bases for contending that “statement[s] of material fact” in
documents that Twitter has filed with the SEC since January 1, 2022 were “untrue”
or “misleading,” including statements that Defendants contend contained
representations that “fewer than 5%” of Twitter’s mDAU are false or spam accounts.
RESPONSE TO TOPIC NO. 31:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ bases for contending.” The applicability of the work product doctrine
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and Chancery Rule 26(b)(4)(B) to “Defendants’ bases for contending” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 31.
TOPIC NO. 32:
Defendants’ understanding of Twitter’s mDAU recast in April 2022, as
discussed in Paragraphs 9 and 79 through 81 of the Counterclaim.
RESPONSE TO TOPIC NO. 32:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 32.
TOPIC NO. 33:
The “preliminary analysis by Mr. Musk’s advisors” and the results thereof
described in the final paragraph of page 6 of Defendants’ July 8 letter.
RESPONSE TO TOPIC NO. 33:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
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specifically insofar as it calls for the disclosure of information regarding the
“preliminary analysis by Mr. Musk’s advisors.” The applicability of the work
product doctrine and Chancery Rule 26(b)(4)(B) to the “preliminary analysis by Mr.
Musk’s advisors” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 33.
TOPIC NO. 34:
Defendants’ alleged belief that “due diligence processes can be costly and
inefficient,” as set forth in Paragraph 60 of the Counterclaim.
RESPONSE TO TOPIC NO. 34:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 34.
TOPIC NO. 35:
Defendants’ alleged assumption that Twitter “rel[ied] on automation, artificial
intelligence, and machine learning” to count false or spam accounts, as described in
Paragraph 83 of the Counterclaim.
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RESPONSE TO TOPIC NO. 35:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 35.
TOPIC NO. 36:
Defendants’ understanding of the “stratification” or potential stratification of
Twitter’s mDAU, as that term is used in Paragraph 141 of the Counterclaim, whether
performed before or after the execution of the Merger Agreement.
RESPONSE TO TOPIC NO. 36:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ understanding” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 36.
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TOPIC NO. 37:
Defendants’ allegation that “nearly a third of Twitter’s mDAU in fact see no
ads and appear to generate no revenue at all,” as set forth in Paragraph 138 of the
Counterclaim.
RESPONSE TO TOPIC NO. 37:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it may call for the bases for X Holdings’ allegation. The
applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to the
bases for X Holdings’ allegation is the subject of a pending motion to compel.
X Holdings will respond to this Topic according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 37.
TOPIC NO. 38:
Defendants’ knowledge and understanding of their allegation that “mDAU
growth is not occurring among high-value users,” as set forth in Paragraph 142 of
the Counterclaim.
RESPONSE TO TOPIC NO. 38:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
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doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ knowledge and understanding.” The applicability of the work product
doctrine and Chancery Rule 26(b)(4)(B) to “Defendants’ knowledge and
understanding” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 38.
TOPIC NO. 39:
All allegations in Defendants’ Counterclaim.
RESPONSE TO TOPIC NO. 39:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify the particular paragraphs of the Counterclaims about which
Plaintiff seeks testimony.
Subject to and limited by the foregoing objections, and after Plaintiff
identifies which paragraphs are covered by this Topic, X Holdings will produce a
representative to testify regarding Topic No. 39.
28
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TOPIC NO. 40:
Defendants’ understanding of how many false or spam accounts existed on
the Twitter platform as of July 8, 2022, in absolute terms and as a percentage of
Twitter’s mDAU, and all their bases for that understanding as of that date.
RESPONSE TO TOPIC NO. 40:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding” and “their bases for that understanding.”
The
applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to
“Defendants’ understanding” and “their bases for that understanding” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 40.
TOPIC NO. 41:
Defendants’ policies, practices, software, hardware, and systems relating to
the storage, management, retention, and destruction of Documents and
Communications.
29
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RESPONSE TO TOPIC NO. 41:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 41.
TOPIC NO. 42:
Defendants’ efforts to ensure that Documents relating to the discovery
requests in this Action and/or the Complaint were properly preserved, including any
related litigation hold or document preservation letters or notices.
RESPONSE TO TOPIC NO. 42:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 42.
30
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TOPIC NO. 43:
Defendants’ efforts to retrieve text messages, instant messages, and other nonemail Communications.
RESPONSE TO TOPIC NO. 43:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 43.
TOPIC NO. 44:
Any sales of Tesla stock by Equity Investor from April 1, 2022 through the
present, including the purpose of any such sale, any potential use of the proceeds of
such sale considered by Defendants, and any relationship between such sale and the
Merger.
RESPONSE TO TOPIC NO. 44:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 44.
31
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TOPIC NO. 45:
The identity, role, and nature of the work of any personnel of Tesla or Space
Exploration Technologies Corp. who worked on, analyzed, or assisted in any
capacity with the Merger, the Debt Financing, the Equity Financing, any potential
investment by a Co-Investor, the Margin Loan Commitment, any potential tender
offer involving Twitter, Defendants’ purported termination of the Merger
Agreement, or the Action.
RESPONSE TO TOPIC NO. 45:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 45.
TOPIC NO. 46:
All information contained in Defendants’ Interrogatory Responses, including
all sources of such information and Defendants’ process of ascertaining and
providing such information.
32
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RESPONSE TO TOPIC NO. 46:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify which particular interrogatory responses Plaintiff seeks testimony
on.
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 46.
OF COUNSEL:
Alex Spiro
Andrew J. Rossman
Christopher D. Kercher
Silpa Maruri
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010
(212) 849-7000
/s/ Edward B. Micheletti
Edward B. Micheletti (ID No. 3794)
Lauren N. Rosenello (ID No. 5581)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899-0636
(302) 651-3000
Attorneys for Defendant X Holdings II, Inc.
DATED: August 19, 2022
33
916787-WILSR01A - MSW
PDF Page 72
EXHIBIT 5
PDF Page 73
From:
Sent:
To:
Cc:
Subject:
Matthew Fox
Tuesday, September 20, 2022 12:49 PM
Wilson, Bradley R.; Yavitz, Noah B.; Kirk, David E.; Shannon, Kevin R. (Potter Anderson &
Corroon LLP); Kelly, Christopher N. (Potter Anderson & Corroon LLP); Slights, Joseph R.
(Wilson Sonsini Goodrich & Rosati, PC)
Mader, David S. (Quinn Emanuel Urquhart & Sullivan LLP); Silpa Maruri; Emily Kapur;
Rossman, Andrew J. (Quinn Emanuel Urquhart & Sullivan LLP); Alex Spiro; Kercher,
Christopher D. (Quinn Emanuel Urquhart & Sullivan LLP); Kathryn Bonacorsi; Micheletti,
Edward B. (Skadden, Arps, Slate, Meagher & Flom LLP); Rosenello, Lauren N
RE: Twitter v. Musk -- Birchall 30(b)(6) topics
*** EXTERNAL EMAIL ***
Further to my email below, Mr. Birchall will also be Defendants’ 30(b)(6) representative on topics 11, 20‐23, 26, 27, 32,
and 36‐38 from Twitter’s August 11, 2022 notices, again subject to Defendants’ general and specific responses and
objections thereto.
From: Matthew Fox
Sent: Tuesday, September 20, 2022 12:01 PM
To: Wilson, Bradley R. ; Yavitz, Noah B. ; Kirk, David E.
; Shannon, Kevin R. (Potter Anderson & Corroon LLP) ; Kelly,
Christopher N. (Potter Anderson & Corroon LLP) ; Slights, Joseph R. (Wilson Sonsini
Goodrich & Rosati, PC)
Cc: David Mader ; Silpa Maruri ; Emily Kapur
; Andrew J. Rossman ; Alex Spiro
; Christopher Kercher ; Kathryn Bonacorsi
; Micheletti, Edward B. (Skadden, Arps, Slate, Meagher & Flom LLP)
; Rosenello, Lauren N
Subject: Twitter v. Musk ‐‐ Birchall 30(b)(6) topics
Counsel,
Defendants designate Jared Birchall as their 30(b)(6) representative on topics 2, 3, 4, 5, 19, 41, 42, 43, and 46 from
Twitter’s August 11, 2022 notices to X Holdings I, Inc. and X Holdings II, Inc, subject to Defendants’ general and specific
responses and objections thereto. Defendants, like Twitter, will not make any witnesses available for deposition more
than once.
Best,
Matt
Matthew Fox
Associate
Quinn Emanuel Urquhart & Sullivan, LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
212-849-7285 Direct
212-849-7000 Main Office Number
212-849-7100 FAX
1
PDF Page 74
matthewfox@quinnemanuel.com
www.quinnemanuel.com
NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message
may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended
recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any
review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately
by e-mail, and delete the original message.
2
PDF Page 75
EXHIBIT 6
PDF Page 76
Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, 2022
Jared Birchall
Page 1
Page 3
APPEARANCES CONTINUED
IN THE CHANCERY COURT
OF THE STATE OF DELAWARE
--------------------------------TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I, INC.,
and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
Civil Action No. 2022-0613-KSJM
---------------------------------
ATTORNEYS FOR DEFENDANTS AND COUNTERCLAIM-PLAINTIFFS
AND THE DEPONENT MR. BIRCHALL
Alex Spiro, Esquire
Quinn Emanuel Urquhart & Sullivan, LLP
51 Madison Avenue
22nd Floor
New York, New York 10010
(212) 849-7000
ALSO PRESENT:
VIDEO DEPOSITION OF
Jared John Birchall
Individually and as Corporate Designee of:
X HOLDINGS I, INC. AND X HOLDINGS II, INC.
September 21, 2022
New York, New York
Lead: Kevin R. Shannon, Esquire
Firm: Potter Anderson & Corroon, LLP
Nathanial P. Graham, Paralegal
Wachtell Lipton Rosen & Katz
Jamie S. Blair, New York Remote Notary Public
(Appearing via Zoom)
JANE ROSE REPORTING
74 Fifth Avenue
New York, New York 10011
1-800-825-3341
Joan V. Cain, Court Reporter
FINAL COPY - CONFIDENTIAL
JANE ROSE REPORTING 1-800-825-3341
Larry Moskowitz, Videographer
Page 2
APPEARANCES
ATTORNEYS FOR PLAINTIFF AND COUNTERCLAIM-DEFENDANT
Page 4
TABLE OF CONTENTS
Witness:
Jared John Birchall
Kevin R. Shannon, Esquire
Potter Anderson & Corroon, LLP
1313 North Market Street
Hercules Plaza
Sixth Floor
Wilmington, Delaware 19801
Examination
By Mr. Shannon..............................Page 7
By Mr. Spiro................................Page 332
(302) 984-6000
Reporter Certificate........................Page 335
-AND-
Notice to Read and Sign.....................Page 337
Noah B. Yavitz, Esquire
Index of Exhibits...........................Page 339
Jessica L. Allen, Esquire
Wachtell Lipton Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000
JANE ROSE REPORTING
1-800-825-3341
National Court-Reporting Coverage
janerose@janerosereporting.com
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Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
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PROCEEDINGS
--9:33 a.m.
September 21, 2022
--THE VIDEOGRAPHER: Good morning. We are
now on the record. Here begins Media No. 1, Volume
1, in the deposition of Jared Birchall, in the
matter of Twitter, Inc. versus Elon R. Musk, X
Holdings I, Inc. and X Holdings II, Inc.
Today's date is September 21st, 2022, and
the time is 9:33 a.m. This deposition is being
taken at the office of Quinn Emanuel, 51 Madison
Avenue, New York, New York, and was made at the
request of plaintiffs.
My name is Larry Moskowitz, the
videographer, and the court reporter is Joan Cain,
from Jane Rose Reporting, New York, New York.
Will counsel please identify yourselves and
state whom you represent.
MR. SPIRO: Alex Spiro, Quinn Emanuel, on
behalf of Mr. Birchall and X Holdings.
MR. SHANNON: Kevin Shannon, Potter
Anderson, on behalf of Plaintiff Twitter.
MR. YAVITZ: Noah Yavitz, Wachtell Lipton,
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on behalf of Plaintiff Twitter.
MS. ALLEN: Jessica Allen, Wachtell Lipton,
on behalf of plaintiff Twitter.
MR. SHANNON: If you'd like to take a short
break and eat your sandwich?
THE WITNESS: I'm okay.
THE VIDEOGRAPHER: Will the notary public
please swear in the witness.
THE NOTARY: Yes.
Mr. Birchall, would you please state and
spell your name for the record, as well as state
your address, please.
THE WITNESS: Jared Birchall,
J-A-R-E-D B-I-R-C-H-A-L-L. Address:
Austin, Texas 78738.
THE NOTARY:
? I'm sorry.
THE WITNESS: I'm sorry.
.
THE NOTARY:
-THE WITNESS:
.
THE NOTARY: Oh,
. I'm sorry. Austin,
Texas.
And the zip code, please?
THE WITNESS: 78738.
THE NOTARY: Thank you.
Whereupon,
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
JARED JOHN BIRCHALL,
having been duly sworn under penalties of perjury by
the New York Notary Public, was examined and did
testify as follows:
THE NOTARY: Counsel, you may proceed.
MR. SHANNON: Thank you.
EXAMINATION BY COUNSEL FOR PLAINTIFF AND
COUNTERCLAIM-DEFENDANT
BY MR. SHANNON:
Q Good morning, Mr. Birchall. We've been
previously introduced. My name is Kevin Shannon. I
represent Twitter in this case.
Is there any reason you would not be able
to give your complete, truthful testimony today?
A No.
Q Have you ever been deposed before?
A I have.
Q How many times?
A I believe three.
Q Can you tell me in what matters you were
deposed?
A Well, I believe two connected to this
matter by government agencies, and then one -- I
don't know how I'd refer to it, but a trial four
years ago. It was Vern Unsworth versus Elon Musk, a
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defamation lawsuit.
Q Okay. And did you give both deposition and
trial testimony in that case?
A In that case, I did.
Q And you started out by alluding to two
depositions you've given relating to this matter.
Who did you give those depositions to?
A To the SEC and to -- actually, there were
two depositions with the SEC and then one with the
DOJ.
Q When did those depositions occur?
A The SEC was -- the second of the two was a
week ago. The DOJ was two weeks ago.
Q And when was the first of the two SEC?
A A month ago.
Q Okay. And who represented you in
connection with those depositions?
A Quinn Emanuel.
Q And Mr. Spiro, who's defending you today?
A Yeah. He was present at both of those.
Q Okay. Were there transcripts of those
depositions?
A I don't know.
Q You don't recall ever seeing the
transcripts?
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CONFIDENTIAL
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A I've never seen a transcript.
Q With regard to the two SEC depositions,
what specifically did they relate to?
A To the purchase of Twitter shares
primarily. I mean, there was a lot of material
covered. It was kind of all the logistics and
timing as it pertained to acquiring shares of
Twitter and the merger agreement.
Q Did you have an understanding as to why
there was a second deposition before the SEC?
A Yes.
Q What was your understanding?
A My understanding was it was to cover a
different time period.
Q What was the time period of the first
deposition?
A It was up until the merger agreement, and
then the second was post.
Q What did the questioning relate to with
regard to the second deposition, which is post
signing of the merger agreement?
A As I recall, it related to filings. I
mean, it was hours of questioning. So -- but
filings among -- among other, I guess,
timing-related questions that they had. I don't
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recall all those questions.
Q Are you aware of any other representative
of defendants that were questioned by the SEC or the
DOJ in connection with the same matters?
A I -- I believe Elon was as well.
Q Anyone else?
A I mean, not firsthand knowledge. I -- I
could guess on a few, but I -- I don't know
personally with certainty.
Q What's your understanding as to who else
would likely be investigated or -A Morgan Stanley representatives,
potentially, the legal representatives.
Q You also referred to a deposition by the
DOJ. What did that relate to?
A Similar topics: Asked many of the same
questions or similar -- similar line of questioning
with regard to timing and filings and motivations
and, you know, things like that.
Q Did you have an understanding as to why the
DOJ was taking a separate deposition regarding those
topics?
A My assumption was they're a separate
government entity with separate questions.
Q Just so it's clear, even though you've been
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
deposed and deposed recently, today I'm going to ask
you a series of questions. If you don't hear a
question, certainly let me know, and I'll repeat it.
If you don't understand a question, let me know, and
I'll try and rephrase it. And at any point today
you need to take a break, just let me know, and
we'll take a break.
A Will do.
Q What did you do to prepare for your
deposition today?
A I met with the Quinn team yesterday, the
Quinn Emanuel team, for approximately five hours.
Q Did you review documents in connection with
that?
A I don't recall. I wasn't provided any
documents. I think questions were asked based on
documents, but I wasn't provided any documents.
Q Was anyone present during that meeting
other than lawyers for Quinn Emanuel?
A No.
Q Other than meeting with Quinn Emanuel
yesterday for five hours -- approximately five
hours, do you recall doing anything else to prepare
for your deposition today?
A I spent about another 40 minutes this
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morning with -- with them.
Q Anything else?
A No.
Q Have you discussed your potential
deposition testimony with any other witnesses?
A No.
Q Have you discussed it with anyone?
A No. Beyond Quinn Emanuel, no.
Q Have you reviewed any deposition
transcripts from this case?
A No. I don't have those.
Q Did you discuss your deposition with
Mr. Musk?
A No.
Q Can you briefly describe your education
post high school?
A A four-year degree at Brigham Young
University.
Q What year did you graduate?
A In '99.
Q What was your major?
A I was a Spanish language major, business
minor.
Q Did you go to Brigham Young immediately
following high school?
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CONFIDENTIAL
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A I did.
Q Do you have any certifications, such as a
CPA, or anything along those lines?
A Not a CPA. There were certain regulatory,
you know, Series 7, things like that, that at one
point I had. Those have lapsed. There was a CFM
designation that was earned while working at Merrill
Lynch.
Q And any series registrations that you have
or your CFM, your understanding those have lapsed?
A Correct. I don't know about the CFM
actually. But -Q Did you have any education after your
degree in Spanish from BYU?
A Formal education?
Q Correct.
A No.
Q You qualified your answer to formal
education. Is there informal education that you
were thinking of?
A I mean, yeah, there's a lot of training
that happened at employers, but not formal.
Q Can you briefly describe your employment
history following your graduation from Brigham
Young?
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A I was employed by Goldman Sachs in Los
Angeles.
Q When did you start at Goldman Sachs?
A That would have been late spring of -- of
'99.
Q What was your position at Goldman Sachs?
A Financial analyst.
Q How long were you at Goldman Sachs?
A A little less than two years.
Q Were you in the same position the entire
time?
A Yes.
Q Can you briefly describe your
responsibilities as a financial analyst at Goldman
Sachs?
A To support a team of private wealth
advisers and whatever they needed. That included a
lot of PowerPoint and Excel work and whatever
researching they needed and supporting clients
tangentially through them.
Q So you were on the private wealth side of
Goldman Sachs?
A That's right.
Q And you testified you were there for
approximately two years, which I take is until about
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
2001.
What did you do after that?
A Transitioned with a large team of Goldman
Sachs employees to Merrill Lynch.
Q Where were you working for Merrill Lynch?
A Geographically?
Q Yes.
A In Los Angeles.
Q What was your position at Merrill Lynch?
A Initially, the same position, which was a
financial analyst.
Q Did that change over time?
A It did.
Q How did that change?
A Several years in, I transitioned into a
financial advisory role.
Q Approximately, when did you transfer into
that role?
A Approximately, two thousand -- somewhere
between 2003 and 2004.
Q And what did that role entail?
A It entailed advising a group of clients on
their personal financial matters.
Q At Merrill Lynch, were you also on the
private wealth side?
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A That's correct.
Q How long did you stay at Merrill Lynch?
A Ten years.
Q Did you remain as a financial adviser until
you left?
A I did.
Q And what year did you leave?
A Two thousand -- let's see here. Sorry.
I believe it was 2010.
Q What was your reason for leaving Merrill
Lynch?
A I was dismissed by the firm.
Q Why were you dismissed by the firm?
A The stated reason was that I -- there was
correspondence with a client that they had not
reviewed.
Q What type of correspondence?
A Regarding a trade request, a trade program
by that client.
Q You testified the stated reason. Did you
have an understanding that there was a different
reason?
A No. I'm just, I guess, trying to refer to
what they have stated because I think that's -Q Did you have an understanding as to why the
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correspondence you alluded to led -- led Merrill
Lynch to terminate your employment?
A Because they didn't review that
correspondence.
Q Any other reason?
A No.
Q What was your next position after Merrill
Lynch?
A A private wealth adviser at Morgan Stanley.
Q When did you start that position?
A In -- let's see here.
I mean, it was immediately after leaving
Merrill Lynch.
Q So 2010 or '11?
A Yeah.
Q Okay. How long were you with
Morgan Stanley?
A Between six and seven years.
Q And were you a private wealth adviser
during that entire period?
A I was.
Q Located in Los Angeles?
A Correct.
Q What were your responsibilities in that
position?
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A To provide advisory services to -- to
investor -- to clients.
Q And what type of advisory services?
A How they should invest their money.
Q And when did you leave Morgan Stanley?
A I left Morgan Stanley in two thousand -sorry. I'm blanking. It's either 2016 -- I'm
sorry. '15 or '16. I'm -Q Just the general time period -A Yeah.
Q -- is -- is fine.
A Yeah.
Q Why did you leave Morgan Stanley?
A I was offered a position to manage the
family office of Elon Musk.
Q When did you first meet Elon Musk?
A The very first time that I met Elon Musk,
though he probably wouldn't remember, was as an
employee at Morgan Stanley years earlier.
Q How did it come about that you were offered
the job to manage the family office for Mr. Musk?
A As I understood it, he had asked a friend,
adviser, a trusted person if they knew of anyone
that could help him do this, and I was one of the
names given to him.
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
Q Do you know who he asked for that advice?
A I do.
Q Who was that?
A An -- an employee that had worked at
Merrill Lynch for him for a number -- for a handful
of years, whose name is
.
Q And did you interview with Mr. Musk?
A I did.
Q Do you recall when that was, generally?
A Yeah. It was -- it was, like, the month
preceding my hiring, so whichever those dates was -Q Okay. And so have you worked as the head
of the family office for Mr. Musk since that time
period?
A I have.
Q And what is your current title?
A Titles don't mean much in -- or -- or
technically it's the managing director of the -- of
Excession, LLC, or the Musk family office.
Q And is Excession, LLC, the family office?
A That's correct.
Q And have you been in that position since
you started?
A That's right, although Excession didn't
exist when I started, but shortly thereafter.
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Q Okay.
A Yes.
Q Was there a prior name for it?
A No.
Q And can you briefly describe your
responsibilities with regard to managing the family
office for Mr. Musk?
A Primarily, all things related to his
personal financial situation and, you know, his
personal affairs.
Q Just, like, when you say "personal
financial situation," can you give me examples of
the types of things you have responsibility for?
A Sure. Helping manage his balance sheet,
helping with everything from bill pay to lending
needs to stock transactions.
Q And you also suggested you have
responsibility to some extent for managing his
personal affairs. What were you alluding to there?
A Domestic employees, security, and, you
know, whatever else was needed.
Q Does anyone else work for Excession?
A Yes.
Q Who else works for Excession?
A You want the names?
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Q Yeah.
A
.
Q And just to save some time, if you could
let me know each of their roles as you identify
them -A Sure.
Q -- how long they've worked for the company?
A Yeah. So
is an accountant and
has worked with the company for approximately three
years.
, oversees philanthropic
efforts, and she's been with Excession for less than
a year.
works as a
bookkeeper/administrative kind of ops
representative. She has been with Excession
approximately five years, and those are the only
direct employees of Excession.
Q You said direct employees. Are there
people you would characterize as indirect employees
or independent consultants who work for Excession?
A No. I guess where my mind was going is we
also have domestic employees and security
representatives that -- personal security, not,
like, financial security, but that are employed
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through -- they're not technically employed by
Excession. They're employed by another entity, but
overseen by the Excession umbrella.
Q Is there a physical office for Excession?
A There is.
Q Where is that?
A Austin, Texas.
Q And does Mr. Musk have an office there?
A No.
Q Does he ever come to that office?
A No.
Q To the best of your knowledge, has he ever
been to the office?
A No.
Q Do you have an understanding why?
A He has a million other things that he's
doing in other offices and office spaces and
companies that he's focused on.
Q Is there anyone else at that office other
than the people you've just identified?
A No.
Q Okay. In your position as head of family
office -A Actually, I'm sorry. There are -- there
are two employees that oversee property management
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
that I was thinking were -- were employed by the
other entity but are employed by Excession.
Q Are their responsibilities solely property
management?
A That's right.
Q And they are properties owned by Mr. Musk
or affiliates?
A That's right -- no, not owned. Used or
rented or, you know.
Q Okay. In your position at Excession and
head of the family office, do you -- who do you
report to?
A Elon.
Q Do you report to anyone else?
A No.
Q Does anyone other than Mr. Musk give you
instruction or direction as to what you should do?
A No.
Q Who determines how much you're paid?
A Mr. Musk.
Q Does Mr. Musk determine whether you stay
with the company or are terminated?
A Yes.
Q How often do you typically communicate with
Mr. Musk?
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A That varies significantly based on all
things that are happening, but there's a standing
weekly meeting that is fairly consistent.
Q Is that at a set time each week?
A There is a recurring calendar invite for
that that is set for
,
although it many times doesn't happen at that time.
Q You say it doesn't happen at that time. If
it doesn't happen, will it be rescheduled?
A Typically, it is.
Q And what is the purpose of that recurring
meeting?
A It is an update on all the work being done
for the week.
Q How does that meeting occur? Is it in
person, or is it Zoom? Or how does it occur,
typically?
A
.
Q
?
A
.
.
Q So are there -- let me take a step back.
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A
Q
A
?
Typically.
Okay.
I mean, within reason.
, we either would not have a
meeting or postpone it or -,
and at times they didn't happen.
Q Okay. Who else attends these meetings?
A It is mostly just the two of us. You know,
every once in a while, if there's a subject matter
expert that needs to be there with us to cover
something, they'll -- they'll join.
Q Is an agenda prepared for the meetings?
A No.
Q Does Mr. Musk ever advise you on what he
wants covered at the meetings?
A I -- sometimes.
Q How would he typically communicate that to
you?
A There's a general understanding of what he
wants covered at those meetings, and so I would come
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prepared with that information in general, and in
some cases there would be a communication, you know,
in the days leading up with a specific request. And
that could be anywhere from a phone conversation to
a text to an email to a Signal message. It could be
any of those.
Q When you say there's a general
understanding of what he wants at the meetings,
what's your general understanding?
A An update on his financials.
Q And has that recurring meeting generally
occurred throughout this year?
A Generally, yes, with some exceptions.
Q Outside of the recurring meeting, is there
a manner in which you typically communicate with
Mr. Musk?
A Primarily the -- the mediums that I just
mentioned. I -- I think most of that communication
is in person during those weekly meetings, and then
we have utilized, historically, phone, email, text,
Signal.
Q Is -- is there a manner in which you
decide, if you have something you want to relay to
Mr. Musk, how you will send it, whether by phone,
text, Signal, or email?
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
A So that would depend on the -- on the
content of -- of what I was sending and -- and the
timing. There's certain topics, of course, now,
that would -- would drive a type of communication a
certain -- through a certain medium versus another.
But, historically, things that are private
and personal and involve his personal information
would -- for the better part of the past four years,
five years maybe, Signal is -- is primarily how that
information is communicated.
Q Why do you use Signal for that purpose?
A For privacy and confidentiality. He -- the
first four years that I worked for him, I worked
half of the week at SpaceX and had it continually
pounded into me the -- the many different
adversaries that were seeking to access his
information. ITAR, a regulated company, and -THE COURT REPORTER: Say that again. I
missed it.
THE WITNESS: ITAR, I-T-A-R, a regulated
company with a lot of sensitivities, and so that was
impressed upon me and recommended by the IT teams,
to -- to communicate his personal information via
Signal.
BY MR. SHANNON:
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Q And why is Signal, in your understanding,
more protected or confidential?
A It's encrypted.
Q Are the Signal messages preserved?
A Signal -- I have a default setting on mine
that deletes in one week.
Q And do you know if Mr. Musk has a similar
one?
A I don't know what his settings are. I -- I
only know that my line of dialogue with him has that
setting on it.
Q Have you ever changed that setting?
A No.
Q Is that setting set for only Mr. Musk, or
is that for all your Signal messages?
A If I start a Signal message with any
person, it automatically -- the setting is that it
defaults at one week.
Q Have you ever changed that setting?
A I haven't. There -- there are others that
I correspond with that maybe have set different
timeframes.
Q Who else do you correspond with using
Signal?
A Primarily, his personal inner circle, his
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security. That's primarily it.
Q Do you ever use Signal for business?
A Again, I'm hired to manage his personal
family office, and so I guess it depends on your
definition of -- of business, but certainly for his
personal financial matters, yes.
Q Would you view his investment in Twitter as
one of his personal financial matters?
A His purchases of Twitter, definitely.
Yeah.
Q So did you use Signal with regard to any
matters relating to Twitter, including his purchase
of Twitter?
A I don't recall using Signal for that
purpose. The updates that I was giving him was in
person on -- you know, when I was with him in the
meetings, but certainly there was a moment
that when there were litigation holds where added
care was taken to never use it for anything
involving Twitter.
Q When do you recall that occurring?
A Approximately mid-May.
Q Who did you receive the litigation hold
from?
A I don't recall if it was from Skadden or
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Quinn, but -- or both. I don't know. But it was
from one or the other.
Q Do you know what triggered the receipt by
you of a litigation hold in mid-May of 2022?
A The way I understood it is there was
pending litigation.
Q What pending litigation are you referring
to?
A Between the two parties in question today:
Twitter and Elon Musk.
Q Did you have an understanding that
litigation was pending in mid-May 2022?
A I mean, my assumption was that a litigation
hold was correlated with some degree of litigation.
Q Okay. So is it your recollection that
since mid-May, as a result of receiving that
litigation hold, you have not used Signal?
A For Twitter-related matters, yes.
Q Are you still using it for other matters?
A I am.
Q And does it still have the auto delete at
one week?
A It does.
Q You also referenced that you communicate
with Mr. Musk via email. How do you determine when
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
you will email something to Mr. Musk as opposed to
Signal, text, or call?
A Email is much less frequent, and sometimes
it is because I have specifically asked him, whether
in our meeting or otherwise. Sometimes others have
initiated emails that it is just easier and not
overly confidential to just forward that along.
Q When you say because you specifically asked
him, what do you mean by that?
A In our -- I can just think of one email in
particular where we -- you know, sitting down with
him in a
meeting I would have asked, "Okay.
Is this okay to email?" And always with the -- I'm
always thinking of -- of the -- you know, the things
that the IT team has hammered into my head as far as
privacy and confidentiality and security risks,
and -- and so at times I would double check before
sending something.
Q What kind of things would you view as okay
to email?
A Well, one of the more recent emails that I
sent was regarding architectural plans that the
architecture team, you know, wanted him to see, and
so something like that. I -- but the less, I guess,
confidential private matters that -- you know, I
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guess the less confidential and private matters,
yeah.
Q Would you view Mr. Musk's investment in
Twitter to be a confidential and private matter?
A Yes.
Q When you email Mr. Musk, what email address
do you use?
A I've used -- historically, I've used two,
but almost exclusively the SpaceX email.
Q What are the two that you've historically
used?
A The other being his Tesla email.
Q Why do you use the SpaceX account?
A That's -- like I said, I spent four years
at SpaceX sitting, you know, at a desk a few desks
away from him, and that was just kind of where I
started my communications via email with him.
Q What email account do you use in order to
communicate through email to Mr. Musk?
A It's an Excession email address.
Q Do you ever use a different email account
to communicate with Mr. Musk?
A Not that I recall.
Q You also suggested that you speak with
Mr. Musk by phone. Is there more than one phone
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number that you call for him?
A No, not at any given time, but over -- over
time he has changed his phone.
Q But at any given time, you're only aware of
him having one phone number that you would reach out
to?
A That's right.
Q How about text? Do you communicate with
Mr. -- Mr. Musk using texts?
A Sometimes.
Q How do you determine when to communicate
with Mr. Musk using texts?
A Typically, if he has texted me, you know, I
will respond via text. Again, if it -- if it isn't
of sensitive personal confidential nature, if it's
trying to get him on a phone call or something like
that, I'll use, you know, text.
Q And I assume that would be to the one
number you have used when you call him?
A That's right.
Q And do you have more than one phone?
A I don't.
Q What is your practice with regard to
preserving texts?
A I don't delete texts.
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Q Do you recall having deleted any texts?
A I don't.
Q Does your phone have a setting with regard
to texts?
A I, frankly, don't know that.
Q Do you know if Mr. Musk deletes his texts?
A No idea.
Q Do you know if his phone has a setting for
texts?
A I don't know.
Q How about WhatsApp or any other messaging
apps? Do you use any of them to communicate?
A I don't.
Q And just so I understand, we've walked
through the way you communicate. Is it fair to say
that anything you would view as confidential and
personal, you would typically default to Signal?
A Unless subject to the litigation hold that
I mentioned.
Q Mr. Birchall, are you aware that you're
appearing as a Rule 30(b)(6) witness -- 30(b)(6)
witness today?
A Yes.
Q And you're appearing on behalf of both X
Holdings I and X Holdings II; correct?
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
A That's right.
Q And can you tell me what your role is at X
Holdings I?
A Well, I'm one of two people that I think
represent the organization that was created
exclusively for this transaction.
Q Is the other person Mr. Musk?
A Correct.
Q Do you have a title at X Holdings I?
A I don't, or at least I don't know of one
that I -Q How about X Holdings II? What is your role
there?
A The same.
Q And is Mr. Musk the only other person
involved with that entity?
A I believe so.
Q And has that been true since the entities
were formed?
A As far as I know, yes.
Q And what is the difference between X
Holdings I and X Holdings II?
A Just multiple layers of entities for
purposes at the recommendation of legal teams.
Q Do you know why both different entities
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were established?
A Like I said, at -- it was -- they were
established at the recommendation of -- of legal
teams for the -- you know, for the execution of this
transaction.
Q Do you have any specific role at either
entity?
A Not that I know of, other -- other than to
be -- you know, continue doing what I'm doing for
Mr. Musk.
Q When you say continue to be doing what
you're doing, what do you mean by that?
A I mean work as -- work in the capacity that
I always have, you know, as just, you know, adviser
or whatever.
Q And any action you would take on behalf of
either X Holdings I or X Holdings II would be at the
direction of Mr. Musk?
A In conjunction with at least, yes.
Q Have you read the Rule 30(b)(6) deposition
notices in this case?
A I don't believe I have.
Q Have you -A Is this -- is this an issue (indicating)?
No. Okay.
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Q Have you read the defendants' responses or
objections -- and objections to the 30(b)(6)
notices?
A I haven't.
Q When did you learn that you were going to
be designated as a Rule 30(b)(6) witness?
A Yesterday.
Q Can you generally tell me what topics you
are testifying on regarding -- or with respect to
the 30(b)(6) notices?
A I -- I don't recall the list. There were a
few -- a handful of things on that, but I -- I don't
recall specifically what those, you know -Q Do you recall any specific ones?
A I don't.
Q Okay. What did you prepare -- or strike
that.
What did you do to prepare in order to be a
30(b)(6) with regard to the topics that have been
designated for you?
A That was part of the block of time that I
mentioned yesterday with -- with the legal team.
Q The -- the five hours that you -A That's right.
Q With regard to the topics for which you've
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been identified, do you view yourself as the person
most knowledgeable at X Holdings I or X Holdings II?
A I think so, far as I know.
Q Would there be anyone else knowledgeable
other than you and Mr. Musk on behalf of those
defendants?
A Not that I -- no, I don't believe so.
MR. SHANNON: Can you hand me the 30(b)(6)?
Thanks.
Will you mark that as Exhibit 1.
--(Birchall Exhibit 1 was marked for
identification.)
--MR. SHANNON: And if you could mark that as
Exhibit 2.
--(Birchall Exhibit 2 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibits 1 and 2, which I
will represent to you are the 30(b)(6) notices
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
served by plaintiffs for both X Holdings I and X
Holdings II for which you've been designated as to
certain topics, the designated witness.
A Okay.
MR. SPIRO: Kevin, do you happen to have a
copy?
MR. SHANNON: Oh, sorry. Let me make sure
I give you both. Here's Exhibit 2.
MR. SPIRO: You can proceed as we're
finding them.
MR. SHANNON: There's Exhibit 1.
MR. SPIRO: Thank you.
BY MR. SHANNON:
Q And, Mr. Birchall, I know you testified you
hadn't seen these before, but I'm going to ask you
to turn to page 12 of the one that is marked
Exhibit 1.
A Okay. I'm there.
Q And -- and they should be largely the same
except for different defendants.
Do you have that in front of you?
A I do.
Q And the first topic that's listed for which
you've been identified is No. 2.
Do you see that there?
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And No. 2 reads -- and this is on page 12.
Do you see it?
A I do.
Q And it reads: "All efforts to syndicate
and/or arrange documents, negotiate the terms of,
consummate the debt financing of, and close the
merger, including the status or expected timeline
for such efforts."
Do you see that?
A I do.
Q Okay. Can you describe for me the efforts
relating to the debt financing that are covered by
that topic?
A So we engaged Morgan Stanley, their banking
team, and they -- and relied exclusively on them to
arrange and syndicate the -- the debt.
Q Did you have any role in it?
A I did not.
Q Are you aware of anyone else having a role
other than Morgan Stanley?
A I'm not.
Q And was Morgan Stanley keeping you or
anyone else advised of their effort?
A Yes.
Q How did they do that?
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A There were periodic phone conversations.
Q How often were those conversations?
A As I recall, maybe a few times per week.
Q And how long did those conversations
continue on for?
A I -- I don't recall how long those -- those
conversations were.
Q When is the last conversation you recall
with anyone at Morgan Stanley with regard to the
debt financing?
A I -- I can't pull a date out on what that
would be. I -- I don't remember the last
conversation on that.
Q Were there invites for these discussions?
A Not typically. I don't think these were,
you know -- although I could be wrong, but I recall
them as more kind of spontaneous check-ins.
Q And who from Morgan Stanley would reach out
to you for a spontaneous check-in?
A Any number of the team members. The main
points of contacts were Kate Claassen,
Michael Grimes, Anthony Armstrong.
Q And on behalf of defendants, were you the
person they were supposed to reach out to?
A I was -- I was part of phone conversations.
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I'm not sure who they were supposed to reach out to.
Q Well, who, other than you, would they reach
out to, to give an update on financing?
A You know, I think at times I wasn't the
only person on -- on a call. Who and when -- you
know, who -- others -- who else might have joined
and when, I -- I can't tell you, but I know that
there was certainly a call -- more than one call
where Elon would have been, you know, briefed on
progress.
Q What is the current status of the debt
financing?
A As I understand it, we have secured the
full amount needed, and I think there are some
closing provisions that are yet to be met, but
there's -- as I understand, the debt providers are
standing ready to fulfill their obligations.
Q And what is that understanding based on?
A Just my general understanding of progress
with the transaction.
Q You said there are covenants that need to
be met. What covenants are you referring to?
A I think I used the word "conditions," but,
I mean, they're not just going to fund the deal in
the middle of -- you know, before we get to a close
JANE ROSE REPORTING
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Jared Birchall
date or something like that. So I don't know
exactly what is on their checklist, but I know that
they haven't funded yet, which would suggest there
are some things that need to happen before. But as
I understand it, they stand ready to fund.
Q And do you have an understanding as to who
at Morgan Stanley was primarily responsible with
regard to the debt financing? Who was the point
person?
A I don't.
Q Who at Morgan Stanley do you recall having
discussions with regarding the debt financing?
A As mentioned, it would have been with one
of the three people that I mentioned, and I think at
different times with some combination.
Q Just so I have it, the three people you
mentioned are who?
A Kate Claassen, Michael Grimes, and Anthony
Armstrong.
Q Okay. If you'd turn to No. 3 in the
document in front of you, which is also on page 12,
this is another topic for which you've been
designated as the Rule 30(b)(6) designee.
A Mm-hmm.
Q It reads: "All efforts to solicit
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co-investors, arrange or negotiate equity
co-investments, and/or arrange, document, syndicate,
or consummate the Equity Financing, including those
concerning the status or expected timeline for such
efforts."
Do you see that?
A I do.
Q Can you describe the efforts that are
identified in that topic?
A Yeah. So, again, we were relying on the
Morgan Stanley banking team to -- to execute this.
We -- there was a list of investors that, as I
recall, were all inbound calls and/or messages that
indicated interest, and my personal involvement was
ushering them to the banking team.
Q And when you say the Morgan Stanley banking
team, who are you referring to?
A To the three individuals that I mentioned:
Kate Claassen, Michael Grimes, Anthony Armstrong.
Q So your sole role was with respect to the
equity financing to -- if you received an inbound
call, to forward that person to Morgan Stanley?
A That's right.
Q Do you recall having any substantive
discussions with any of the potential investors?
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A When you say substantive, what are you
referring to?
Q Beyond suggesting they call Morgan Stanley?
A There were -- you know, some of those
conversations were just big picture, "What's Elon
thinking?" And then, you know, in a very general,
broad way, you know, his focus on preservation of
democracy, freedom of speech, and then would usher
them along.
Q Do you recall conveying to them anything
other than Mr. Musk's interest in freedom of speech
and democracy and the American way?
A No. And, I mean, beyond just those big
general points, no.
Q Do you recall any specific potential
investors that you spoke to in that regard?
A Yeah. I can think of a few that -- that I
had conversations with.
Q Can you identify them?
A Let's see. At -- at some point, I spoke
with the
team. I mean, there were -- were
many on the list, and so it's -- it's a long list of
people.
Q But you don't recall having any
communications with them, either oral or written,
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beyond sort of the broad, general statements that
you described?
A I mean, no. There's no specific discussion
or -- I mean, they were all -- they all run together
in my mind.
Q Are you aware of anyone else who was
involved in soliciting the co-investors, other than
Morgan Stanley, who you identified?
A No.
Q Are the efforts to solicit co-investors
ongoing?
A Fielding calls of interest has -- has
slowed down for sure, but -- are you talking about
the same list of investors that have committed?
Q I'm just talking -- you're offered to
testify about all efforts to solicit co-investors.
Are any efforts continuing?
A Yeah. So since the latest developments of,
you know -- currently, there are no on -- ongoing,
overt efforts.
Q Okay. What is the status of your equity
financing with regard to the potential co-investors
that were identified before the litigation?
A As -- as I understand it, all are remaining
committed.
JANE ROSE REPORTING
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Jared Birchall
Q Have any of them told you they are no
longer committed?
A Not that I recall.
Q If you'd turn to No. 4 on that same page -A Yes.
Q -- it's another topic for which you've been
designated, and it reads: "All efforts undertaken
by Defendants or Defendants' Advisors, on or after
May 13th, 2022 to obtain, syndicate, arrange,
finalize, and/or consummate the Debt Financing,
close the Merger, and/or cause all of the conditions
for closing the Merger to be satisfied."
Do you see that?
A I do.
Q Can you describe those efforts?
A Again, our advisory team with -- with
Morgan Stanley and our legal team have, you know,
ensured that the debt is lined up, that our equity
investors remain engaged, and that's -- that's what
I understand.
Q Are you aware of any efforts that have been
made with regard to the topic covered by this No. 4,
other than those by Morgan Stanley?
A No. I mean, beyond legal teams.
Q And when you say "beyond legal teams," what
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do you mean by that?
A Well, you know, legal advisers of, you
know, Skadden and Quinn Emanuel have been involved
in, you know, every step of the way. So that -that's what I mean.
Q Is there a distinction between the role
played by Skadden and Quinn Emanuel with regard to
the Twitter transaction or the debt financing?
A As I understand it, Skadden is what -- for
lack of a better term, kind of the -- the deal team,
and Quinn is serving as advisers and certainly
part -- part of the litigation team.
Q If you'd turn to No. 5 on the next page,
that is another topic for which you've been
identified, and it reads: "The Margin Loan
Commitment, including without limitation...the
reduction in the amount of the Margin Loan
Commitment and reasons for such reduction; and ii)
the subsequent termination of the Margin Loan
Commitment and reasons for such termination."
Do you see that?
A I do.
Q Okay. What is your understanding of the
"Margin Loan Commitment"?
A So there was -- as part of the initial
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transaction, 12.5 billion of margin loan, yeah.
Does that answer your question?
Q Did you have any role in that margin loan
commitment?
A No. Again, that was Morgan Stanley that
syndicated that.
Q And is that the same Morgan Stanley team
you previously identified?
A That's right.
Q And it also refers to the margin loan
commitment and the reasons -- I'm sorry -- the
reduction in the amount of the margin loan
commitment and the reasons for such reduction.
Are you aware there was a reduction?
A Yes.
Q Okay. What -- how much was the reduction?
A Initially, I believe it was cut in half
approximately, and that was in conjunction with us
securing equity commitments from outside investors.
Q And then it refers to the subsequent
termination of the margin loan commitment and the
reasons for termination.
Are you aware that the margin loan
commitment was terminated?
A I am.
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Q What were the reasons for that?
A Twofold: One was the cost associated with
that; and two was the risk associated with margin.
Q And who made that determination?
A I think it was just a group decision
between advisers and -- with our advisers.
Q Would Mr. Musk have been involved in that
decision?
A Yes.
Q If you could turn to No. 11, which is on
page 15 -A I'm there.
Q -- that is another topic for which you've
been designated, and it reads: "Any communications
between (a) Defendants or Defendants' advisors and
(b) any Governmental Authority, concerning...the
merger...the Merger Agreement...the Proxy Statement;
or...Twitter, including the purpose of such
Communications, the nature and substance of such
Communications, and whose request such
Communications were made."
Do you see that?
A I do.
Q Okay. Can you tell me what communications
were made by or on behalf of defendants relating to
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
the topics covered here?
A So I guess that's a -- the
word "communications" is a broad term. I -- can you
specify? Like, are you asking for modes of
communication? Are you asking the content of
communication?
Q More the content. And we can break it out.
Why don't we say -- tell me what government
authorities you're aware that have been contacted
with regard to any of these topics?
A Oh. Well, both the -- as mentioned
previously, both the SEC and the DOJ have -- is what
I'm aware of.
Q And those were the contacts that relate to
the investigation that the SEC and the DOJ are
conducting?
A Yes.
Q Are you aware of any contacts with either
of those entities unrelated to that investigation?
A I'm not.
Q How about are you aware of any contacts by
defendants or defendants' advisors with any state
authority, including the Texas attorney general?
A I'm not.
Q And what effort have you made to determine
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whether there were any such contacts?
A Such contacts with?
Q For example, the Texas attorney general.
A I -- I just don't know the answer to that
question.
Q What do you mean you don't know the answer
to that question?
A Well, I haven't asked that question, if you
will, and I'm not aware of communications.
Q When you say you haven't -- you haven't
asked any advisors or lawyers that question is what
you're saying?
A Yeah. You're asking me if I know the
answer to that question, and I don't know the answer
to that question because I haven't -- I don't know.
I have not asked that question.
Q Okay.
A Yeah.
Q If you'd turn to No. 18 -- I'm sorry -- 19,
that is another topic for which you were identified.
It says: "The directors, officers, employees, and
owners of X Holdings I, Inc., and X Holdings II,
Inc., and X Holdings III, LLC and the relationship
between them and Equity Investor."
I believe you testified previously that
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there are no directors, officers, or employees other
than potentially you and Mr. Musk; is that true?
A That's correct.
Q Okay. And who is the owner of each of
those entities?
A As I understand it -- I mean, we relied
upon the legal teams to structure these, but as I
understand it, the ultimate owner would be Mr. Musk.
Q For each of the entities?
A I -- actually, I don't know that to be the
case, thus the -- having the multiple entities. So
I -- I'm not sure who is the owner of each one.
Q Are you aware of who is the owner of any of
them?
A I guess per my previous comment, my
assumption of one of them, that would be Mr. Musk.
Q Did you make any effort to determine who
the owners of these entities were before your
deposition?
A No.
Q If -- if you'd turn to the next one listed,
which is defendants -- this is No. 20: "Defendants
and Defendants' Advisors use of the 'Botometer' tool
described in Paragraph 116 and Footnote 16 of the
Counterclaim."
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Do you see that?
I do.
Do you know what that's referring to?
Vaguely.
Actually, maybe to help you -MR. SHANNON: Can you hand me the
counterclaim? I'll mark it.
MR. GRAHAM: Which one?
MR. SHANNON: It's 53.
Thank you. I need probably a couple of
them.
Can you mark that as Exhibit 3.
--(Birchall Exhibit 3 was marked for
identification.)
--MR. SHANNON: Just two is fine.
Thank you.
Here you go.
THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 3, which is a
copy of Defendants' Verified Counterclaims, Answer,
and Affirmative Defenses filed on July 29th, 2022.
A
Q
A
Q
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
Have you seen that before?
A Not that I can recall.
Q Did you review the pleading before it was
filed with the court?
A Not that I can recall.
Q Do you recall having ever seen it before?
A I don't recall ever seeing it.
Q If you could turn -- just so it helps you
with regard to the topic, it's on page 52.
A I'm there.
Q Yes. And then you'll see in paragraph 116
there is a reference to the effect of spam and false
accounts, and then you'll see the footnote which
refers to the Botometer® tool.
A I do see that.
Q Okay. And what's your understanding of the
Botometer® tool?
A As I understand it, our counsel retained
data scientists and that -- you know, three
different groups that were working on this for us,
and so I -- I don't have an understanding of that
tool.
Q Did you make any effort to -- to inform
yourself before this deposition regarding the
Botometer® tool and how it was used by defendants?
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A I did not.
Q Do you know what conclusions the data
scientists that you referred to came to as result of
using the Botometer® tool?
A I don't.
Q Do you -- do you know if defendants relied
at all upon the conclusions or the use of the
Botometer® tool?
A I don't.
Q Who would know that?
A I'm guessing at this, but the legal team
who retained them may know.
Q Do you know who retained them?
A I believe it was through Skadden, but could
have -- yeah. I think it was through Skadden. I'm
not certain of that.
Q Who made the decision to retain them?
A The legal team.
Q Did you have any involvement in that
decision?
A No.
Q Do you know why they retained them?
A I can't speak on their behalf. I mean,
they're obviously looking for data.
Q What data are they looking for?
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A Regarding -- well, just Twitter-related
data. I -- they're, you know, data scientists and
so they were parsing data.
Q Do you know what data they were parsing?
A Well, I mean, you brought up the
Botometer®. I'm sure part of what they were looking
at was related to bot numbers and things like that.
Q Maybe it's easier to cover it with regard
to Topic 21, if you refer back to Exhibit 1.
Topic 21 you've also been identified with
regard to, and that is: "The engagement of the data
scientists, including without limitation the
identification of all data scientists and when they
were engaged, the scope and purpose of any such
engagement, how such data scientists came to be
engaged, the nature of any agreements, arrangements,
and understandings between the data scientists and
data and defendants or defendants' advisors."
Do you see that?
A I do.
Q Okay. Can you, starting with -- can you
identify for me the data scientists that were
retained?
A Yeah. As I mentioned, there were three,
and I believe they were CounterAction, Halo, and
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Cyabra or Cyabra.
Q Okay. And when were they retained?
A As I recall, it was mid-to-late May.
Q Why were they retained?
A To analyze data.
Q Were all of them engaged at the same time?
A I'm not sure. I don't know.
Q Why were the three data scientists engaged?
A I'm not certain of the answer to that, but
assume it was in an effort to have a more thorough
review of data.
Q Do they have different expertise?
A Not that I know of.
Q Are you aware of the expertise that each of
the data scientists have?
A No.
Q Prior to this deposition, did you make any
attempt to inform yourself regarding why the data
scientists were engaged, what work they are doing,
and their conclusions?
A No.
Q Have you been -- who determined to retain
the data scientists?
A The legal team.
Q Did you approve that?
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
A There may have been a discussion regarding,
you know, spending money.
Q Did you or Mr. Musk have any role in
determining what the data scientists would do?
A No.
Q Who determined what the data scientists
would do?
A The legal teams.
Q When you say "the legal teams," who are you
referring to?
A Again, I'm not sure how they were parsing
this specific initiative, but the two teams, of
course, were Skadden and Quinn, and I just don't
know which was head- -- heading up this effort.
Q Do you have an understanding as to how much
the data scientists are being paid?
A I -- I have that information. I don't have
a recollection -- a recollection of the exact
numbers.
Q Do you have the agreements that were
entered into between the data scientists and your
counsel?
A I don't recall.
Q Do you recall ever seeing those agreements?
A I -- I have a vague recollection of -- of
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potentially seeing one or more of them, but I -- I
just -- I don't have a recollection of content or
whatnot.
Q Do you recall any discussions with Mr. Musk
regarding the data scientists?
A I was on a -- well, you're saying specific
conversations with him?
Q Yes.
A No.
Q Do you recall specific conversations with
anyone regarding the data scientists?
A I -- I was on a call at one point where
information was exchanged, kind of an update of
progress that I believe Mr. Musk may have also been
on. I believe he was on.
Q Do you -- is that the only time you recall
having any communications relating to what the data
scientists were doing?
A Yes.
Q Okay. And when was that call?
A Again, it would have been around the same
time that we -- maybe mid-to-late May.
Q And other than Mr. Musk, who do you recall
being on that call?
A You know, the -- well, as far as specifics,
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I mean, certainly the -- the legal teams who
retained them, team/teams. I don't recall. It's
possible that -- it's possible that Mike Ringler was
on the call. It's possible that Alex was on the
call. I'm not certain.
Q And what do you recall of that call?
A A lot of kind of information about
methodologies and -- and kind of initial thoughts
on, you know, the data that they had gathered.
Q What do you recall as any specific comments
made during the call?
A I don't recall the specifics of that phone
conversation.
Q Did they have any views with regard to the
data they had gathered to date?
A I mean, certainly they had views. I just
don't recall what specifically they, you know,
shared.
Q What's your general recollection of the
views?
A I mean, the general recollection was that
there -- that the 5 percent number was a low number.
Q And what was that general statement based
on?
A The work that they had done.
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Q Did you ever receive any of the work they
had done?
A I don't believe I did.
Q Okay. Do you know if any of it was
provided to Mr. Musk?
A I don't.
Q Did you ever ask for any of the work they
had done?
A Not that I recall.
Q Do you know if the work they have done has
been provided to anyone but your counsel?
A I don't know.
Q Do you know if they are still doing the
work?
A I don't.
Q Do you ever get updates as to the status of
the work?
A No. I mean, that phone conversation that I
mentioned was a check-in, and I have not spoken with
them since.
Q And you believe that was sometime in
mid-to-late May?
A I believe so.
Q And have you -- even though you haven't
spoken to them, have you received any information
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Jared Birchall
regarding their analysis?
A There was probably a follow-up conversation
with counsel, but, you know, I can't think of a
specific conversation, but, I mean, there most
likely was a follow-up conversation.
Q But you don't recall a specific one?
A I don't.
Q Do you recall having any -- ever having any
discussions with Mr. Musk regarding the data
scientists or any of the work they'd done?
A I don't.
Q Do you recall ever having a communication
with Musk, whether oral or written, regarding data
scientists or any work they've done?
A I don't.
Q Okay. If you'd turn to No. 22, it's
another topic for which you've been identified, and
it reads: "All persons that Defendants or
Defendants' Advisors communicated with about a
potential engagement as a Data Scientist that were
not engaged as a Data Scientist, including without
limitation (i) the identification of all such
Persons"; the timeline -- "(ii) the timeline during
which such potential engagement was considered; and
(iii) all reasons" for such -- that "such
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engagements did not take place."
Do you see that?
A I do.
Q Can you tell me what persons were
communicated with about the potential engagement as
a data scientist that were not engaged?
A I -- I'm not aware of any engagements or
discussions beyond those that we engaged.
Q Prior to this deposition, did you make any
effort to determine if there were any such
discussions or communications?
A I didn't.
Q Okay. If you could turn to No. 23, which
is another topic for which you've been identified,
it reads: "All work performed by the Data
Scientists, including without limitation, the
instructions received by the Data Scientists...the
scope of the Data Scientists' work, the timeline of
the Data Scientists' work...a description of the
work performed by each individual working as or for
a Data Scientist," and "the findings, conclusions,
and the results of such work."
Do you see that?
A I do.
Q Okay. Starting with first little I, what
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instructions were received by the data scientists?
A Again, the -- you know, it was the legal
team that engaged them and corresponded with them
regarding these topics, instructions, scope,
timeline, and so I -- I don't have that information.
Q Okay. You don't have any of that
information?
A I don't.
Q Okay. Did you make any effort to obtain
that information prior to your deposition today?
A I did not.
Q If you could turn to No. 26, which is on
page 19. That is another topic for which you've
been identified, and that reads: "Defendants'
knowledge of Twitter's litigation with the Indian
government and/or any content-removal orders issued"
by -- "issued to Twitter by the Indian government,
as discussed in Paragraphs 18 and 181 through 185 of
the Counterclaim, including without limitation when
Defendants became aware of such litigation and/or
content-removal orders and who made them aware of
such orders."
Do you see that?
A I do.
Q Okay. What's your knowledge regarding
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Twitter's litigation with regard -- with the Indian
government?
A I -- I really don't have much. I remember
hearing that there was a matter involving the Indian
government. I -- I don't have really any
information about what that specifically entailed.
Q Okay. Did you make any effort before your
deposition today to gain such knowledge?
A No, I did not.
Q If you could turn to the next topic, which
is No. 27 which you've also been identified as the
designated witness, it says: "All 'key decisions'
that Twitter allegedly made 'outside the ordinary
course without consulting the Musk parties,' as
alleged in Paragraphs 186 through 195 of the
Counterclaim."
Do you see that?
A I do.
Q Now, what is your knowledge regarding the
key decisions made outside the ordinary course as
referenced in that topic?
A Well, primarily regarding executives.
Q Okay. And when you say "primarily
regarding executives," what are you referring to?
A The dismissal of -- of executives without
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consulting Mr. Musk.
Q Which executives?
A I don't recall their names, but -- yeah, I
don't -- I don't recall their names.
Q When did you learn about the dismissal of
the executives?
A I don't recall when that was.
Q How did you learn about the dismissal of
the executives?
A I'm pretty sure it came from our legal
team.
Q Do you know how they learned?
A I don't.
Q Did you make any effort to determine the
facts relating to the dismissal of the executives
you just referenced before your deposition today?
A No.
Q How did you determine that the terminations
that you referenced were outside the ordinary
course?
A Well, certainly with -- under the
advisement of the legal teams and per the agreement
that had been made with -- between the two parties.
Q Is it your view that any termination of an
executive is outside the ordinary course?
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A I believe so.
Q And what is that based on?
A Again, the agreement that -- that was made.
Q And if it helps, if you could turn to
Exhibit 3 which you have in front of you -A Mm-hmm.
Q -- and that might remind you of the names
of the two individuals that you referenced, and as
noted in the topic, if you start on 186 -A Okay.
Q -- and I believe it's 187 that will provide
the name of the person.
A This is No. 3? I don't think I have that
many pages.
Q I'm sorry. Oh, did I -A You said 186.
Q I'm sorry. Paragraph 186, page -- it
starts on page 79.
A Oh, okay.
I'm there.
Q And if you'd turn to paragraph 187 -A Yeah.
Q -- do you see the name "Bruce Falck"?
A I do see that.
Q Okay. Is that one of the persons that you
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believe was terminated that you were referencing?
A Yes, I believe so.
Q Okay. And when did you learn that
Mr. Falck had been terminated?
A I don't recall when -- when that was.
Q How did you learn?
A I believe that was through the legal team.
Q And why do you believe his termination was
outside the ordinary course?
A Per -- per the agreement between the two
parties.
Q Any other reason?
A No.
Q Okay. When you learned about the
termination of Mr. Falck, are you aware of
defendants raising any objections or concern?
A I'm -- I'm not aware. I think we were
informed that it was a done deal.
Q Did you raise any objections that he should
not have been terminated?
A I don't recall.
Q Do you recall any concerns or objections
that were raised when you learned that Mr. Falck had
been terminated?
MR. SPIRO: Objection to form.
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You can answer.
THE WITNESS: I -- I don't recall. The -the opportunity to object was -- I don't -- I don't
believe -- I think the action had taken place.
BY MR. SHANNON:
Q If you'd turn to the next paragraph, it
refers to Mr. Beykpour.
Do you see that?
A I do.
Q Is that one of the -- is that the other
individual you had identified as being terminated?
A That is another -Q Okay.
A -- individual.
Q Okay. And when was Mr. Beykpour
terminated?
A Again, I'm not sure the exact timing.
Q When and how did defendants learn of the
termination?
A Through -- through the same way. Through
the legal team.
Q Okay. And how did you determine that the
termination was outside the ordinary course?
A Again, through the agreement that we had
between the two parties.
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Q Anything else?
A No.
Q And do you recall defendants or any of
their advisers raising any concerns or objections
when they learned that Mr. Beykpour was terminated?
MR. SPIRO: Objection to form.
You can answer.
THE WITNESS: I don't specifically recall.
BY MR. SHANNON:
Q If you'd turn to paragraph 189 -A Mm-hmm.
Q -- you'll see it says, "Twitter also
instituted a hiring freeze."
A I do see that.
Q And when did defendants learn of that?
A Again, I don't recall the exact timing.
Q How did defendants learn of that?
A Through the legal term.
Q And how did you determine -- how did you
determine that the hiring freeze was outside the
ordinary course?
A Through the agreement between the two
parties.
Q Anything else?
A Not that I'm aware of.
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Q When defendants learned of the hiring
freeze, did they raise any concerns or objections?
MR. SPIRO: Objection to form.
THE WITNESS: Not that I'm aware of.
BY MR. SHANNON:
Q Okay. Mr. Birchall, we've been going for
about an hour and a half, and I appreciate that.
Why don't we take a short break, ten minutes, and
then come back.
MR. SPIRO: Great.
THE WITNESS: There was one more individual
that wasn't mentioned that wasn't fired during the
time.
BY MR. SHANNON:
Q Who are you referring to?
A The -- a payment that was paid to a
prior -- prior employee, Mudge, that, you know, also
would fall under this, as I understand it.
Q And when you say Mudge, you mean Mr. Zatko?
A Yeah.
Q Okay. I'll say, Mr. Birchall, you're the
only witness who, given the opportunity to take a
break, kept going. So we can cover that when we
come back.
A Sure.
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Q And I'm just going through these. These
will relate to documents we'll go through as well,
but I just wanted to cover -- to make sure I
understand what you were testifying to.
THE VIDEOGRAPHER: Your microphones.
We are going off the record. The time is
11:02 a.m.
(Recess.)
THE VIDEOGRAPHER: We are back on the
record. The time is 11:17 a.m.
BY MR. SHANNON:
Q Mr. Birchall, can you turn to No. 32, the
Topic No. 32, in -A In the first one?
Q In the first one, correct. It's on page
20.
A Yeah. I'm there.
Q And it is another topic for which you've
been identified and it reads: "Defendants'
understanding of Twitter's mDAU recast in
April 2022, and Paragraphs 9 and 79 through 81 of
the Counterclaim."
What is your understanding of Twitter's
mDAU recast in April 2022?
A That they came back and said they needed to
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correct their numbers.
Q What's your understanding of what
corrections were made?
A Just that they had been calculating it
incorrectly, I believe, and I don't know what their
specific errors -- what they purported their
specific errors to be, but just that they'd made
mistakes and needed to correct those mistakes.
Q And how did they correct those mistakes?
A By changing the number.
Q And how much did the number change?
A As I recall, it was a few million -- by a
few million mDAUs I guess or whatever.
Q And before this deposition, did you make
any effort to go back and look at the mDAU recast to
better understand what had occurred?
A So just to that question specifically, I -I went over these questions yesterday with the Quinn
Emanuel team. I was taking your questions as to
mean, like, did I go back and research this or
something. So these questions were reviewed
yesterday with the Quinn team.
But beyond that, there was not an effort to
revisit this issue or to look into it beyond that.
Q Okay. Well, when did you first recall
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hearing about the mDAU recast in April 2022?
A The day that it happened.
Q Okay. How did you hear about it?
A I -- I recall that it was via the news.
Q Do you recall discussing it with anyone?
A Yes. It was a topic that was discussed
among the legal teams' advisory team, and I'm sure
at some point with Mr. Musk.
Q Do you recall discussing it shortly after
it was announced?
A Yes.
Q Okay. What do you recall of those
discussions?
A Again, I'm -MR. SPIRO: I'm just going to remind you,
you can't reveal privileged information.
THE WITNESS: Yeah.
MR. SPIRO: So with that caveat, you can
answer the question.
THE WITNESS: Yeah, I don't recall the
specifics of those conversations.
BY MR. SHANNON:
Q Do you recall having any -- any discussion
with Mr. Musk regarding the issue?
A I don't recall a specific conversation, but
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I -- I do recall that we touched on the subject.
Q When you say you touched on the subject,
what do you mean?
A Again, I -- I don't recall specifics of any
of those conversations, but I do recall at some
point having -- it having been part of a discussion.
Q Okay. But you don't recall who was part of
the discussion?
A I don't.
Q And you don't recall when that discussion
occurred?
A Not specifically, no.
Q Do you recall any requests made by
defendants or their advisers for additional
information from Twitter regarding it?
A I don't recall.
Q Okay. Do you recall any concerns expressed
by defendants or their advisers regarding the mDAU
recast?
A That was the nature of, you know, the
conversation, the general gist of the conversations
that were being had, you know, that a restatement
had been made and certainly it raised eyebrows.
Q Okay. And after it raised eyebrows, did
you or anyone on behalf of defendants or their
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advisers go back to Twitter and express concern or
ask for additional information?
A Additional information was requested
regarding the -- the data and -- and the
calculations. I don't recall specifically
referencing this restatement or not.
Q Okay. Was there specific information
requested relating to the recast?
A That's what I don't recall.
Q Okay. When was that information requested?
A The request that I am referring to
previously?
Q Yes.
A I don't recall the exact dates, but at -at minimum, you know, right after the meetings with
Twitter.
Q What meetings are you referring to?
A I believe in early May at the Twitter
headquarters. I think it was May 6th.
Q Okay. Were you involved in determining
what information to request?
A At post meeting?
Q Yes.
A I -- I probably was part of a conversation
that went over that topic.
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Q Do you recall any such conversation?
A I don't recall the specifics.
Q Okay. Who was primarily responsible for
determining what additional information to request
from Twitter?
A It would have been a combination of the
banking advisory team and the legal team.
Q Okay. Did you have any role in determining
what to request?
A Again, I -- I would have been involved in
certain conversations, but as far as a role, per se,
I -- I -- no, I don't -Q Do you recall Mr. Musk having any role in
determining what to request?
A Again, he would have been part of
discussions, but I don't specifically recall him -you know, his contribution to that or -Q Do you recall reviewing any information
provided by Twitter in response to the request?
A Are we referring now post meeting?
Q Yes.
A Is that what you're referring to?
So they were sending information to data
rooms that are -- that the banking team was
accessing exclusively. I never accessed a data
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room.
Q Did you ever ask the banking team to send
you any information?
A That was -MR. SPIRO: Objection to form.
You can answer.
BY MR. SHANNON:
Q Relating to information provided by
Twitter.
A Not that I recall.
Q You suggested that these information
requests related to post meeting, and you're
referring to the May 6th meeting, correct?
A That's right.
Q Are you aware of any information requests
that were made before the May 6th meeting?
A I -- I don't recall prior to that.
Q If you refer to, in Exhibit 1 in front of
you, Topic No. 36 is another topic for which you've
been identified, and that reads: "Defendants'
understanding of the 'stratification' or potential
stratification of Twitter's mDAU as that term is
used in Paragraph 141 of the Counterclaim, whether
performed before or after the execution of the
Merger Agreement."
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Do you see that?
A I do.
Q What is your understanding of the
stratification or potential stratification of
Twitter's mDAU as referred to there?
A I believe that's referring to a smaller
sliver of mDAU that contributes to a greater portion
of the revenue of the company.
Q What's that understanding based on?
A Again, just what -- what we were told by
the Twitter team.
Q So the references to stratification or
potential stratification is what you were told by
the Twitter team?
A Yeah. I specifically recall that being one
of the topics in the May 6th meeting.
Q Do you recall any other discussions or
knowledge you have regarding defendants'
understanding of the stratification or potential
stratification of Twitter's mDAU?
A I don't recall.
Q If you turn to the next one, which is
defendants -- No. 37: "Defendants' allegation that
'nearly a third of Twitter's mDAU in fact see no ads
and appear to generate no revenue at all,' as set
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forth in Paragraph 138 of Counterclaim."
Do you see that?
A I do see that.
Q What's your understanding of that
allegation?
A Again, I believe that's referencing the
same stratification issue, where a smaller
percentage actually contribute to, you know, a very
high percentage of the revenue.
Q And it's your understanding that this
information was provided to defendants at the
May 6th meeting?
A I -- as far as information provided, I
mean, there -- there was no -- as I recall, there
were no documents exchanged, and so there wasn't
any, like, substantive information exchanged, per
se. There were -- we left that meeting with -- with
the understanding that there was information that
was requested and that was forthcoming.
Q And, well, how did defendants determine the
basis for their allegation that nearly a third of
Twitter's mDAU is in fact -- in fact sees no ads and
appears to generate no revenue at all?
A I'm not sure specifically where that data
is coming from.
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Q Do you know what the source at all of that
statement is?
A I -- I don't.
Q Okay. If you could turn to No. 38 on the
next page -A I'm there.
Q -- this is another topic for which you've
been identified: "Defendants' knowledge and
understanding of their allegation that 'mDAU growth
is not occurring among high-value users,' as set
forth in Paragraph 142 of the Counterclaim."
Do you see that?
A I do.
Q Can you explain what that's referring to?
A Again, I -- I see what it says, and I'm not
sure specifically beyond what it says. I mean,
that's obviously what it says, but I -- I don't have
information beyond what it says.
Q Okay. And do you have an understanding as
to what was the basis for defendants' allegation
that mDAU growth is not occurring among high
level -- high value users?
A Not specifically, no.
Q Did you make any effort to determine what
the source of that statement was?
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A I -- I didn't.
Q If you could turn to No. 41, another topic
for which you've been identified, which is:
"Defendants' policies, practices, software,
hardware" -- software and "hardware, and systems
relating to storage management, retention, and
destruction of Documents and Communications."
Do you see that?
A I do.
Q What are defendants' policies with regard
to the retention and destruction of documents and
communications?
A Well, X Holdings doesn't have a stated
policy of any sort. As requested, we -- you know, I
can speak for myself, you know, turned over devices
and whatnot as -- as requested to, you know, legal
teams and IT professionals, but there isn't a stated
policy.
Q Okay. And with regard to Mr. Musk, can you
state what his practices and policies are?
A I -- I believe he -- well, again,
there's -- there's no policy that I'm aware of -well, there's no policy regarding X Holdings for
sure. I can't speak to any of the other companies
or anything like that. But I -- as I understand it,
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he, like me, you know, turned over devices and
whatnot to IT and legal.
Q Do you know what his practices are with
regard to preserving texts and emails?
A I don't.
Q Prior to acting as a 30(b)(6) witness for X
Holdings I and X Holdings II today, have you ever
acted on behalf of either of those entities?
A Not -- not that I know of. I don't know if
technically -- what the technical answer may be, but
I don't -- I don't believe so.
Q Okay. If -- if you'd turn to No. 42 -A Mm-hmm.
Q -- that says "Defendants' efforts to ensure
that Documents relating to the discovery requests in
this Action and/or the Complaint were properly
preserved, including any related litigation hold or
document preservation letters or notices."
Do you see that?
A I do.
Q Can you describe those efforts?
A Again, devices were turned over to IT
professionals and lawyers and information extracted,
and, you know, information preserved.
Q And that refers to what you did. Do you
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know precisely what Mr. Musk did?
A Not precisely, no.
Q You had referenced previously a litigation
hold that you believed you received in mid-to-late
May.
Do you recall that?
A I do.
Q Do you recall receiving any other
litigation hold or document preservation notice?
A I don't specifically recall additional
holds, hold requests, or whatever.
Q Okay. If you'd turn to No. 43, which is
another topic for which you've been identified, it
says: "Defendants' efforts to retrieve text
messages, instant messages, and other non-email
communications."
What's your understanding as to that?
A Yeah, again, that was I think part of the
overall effort of providing devices and -- and
communication method -- methods with -- providing
those to the IT and legal teams.
Q Do you know what efforts were made to
retrieve or obtain any messages that had been
deleted?
A No. Anything in existence would have been
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provided.
Q And turning to No. 46, which you'll
probably be glad to know is the last number for
which you've been designated, it reads: "All
information contained in Defendants' Interrogatory
Responses, including all sources of such information
and Defendants' process for ascertaining and
providing such information."
Do you see that?
A I do.
Q Have you reviewed each of defendants'
interrogatory responses in connection with this
case?
A I did review them yesterday.
Q Okay. Had you seen them before yesterday?
A Actually, I -- I believe I did back when
they were initially submitted.
Q Did you have any role in reviewing or
approving them?
A Again, I think I -- I recall reviewing the
list to ensure, you know, complete -- you know,
completion.
Q When do you recall reviewing the list?
A I don't recall when.
Q Do you recall reviewing the list many times
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as it was changed?
A I don't recall reviewing it many times.
Q Okay. Do you have any recollection of
reviewing the list more than once?
A Not specifically, no.
Q And to be clear, when you're saying the
list, what list are you referring to?
A Parties involved is what -- is the list
that I'm referring to.
Q Parties involved in what?
A I think there are various lists of people
that were -- where there are communications for the
different aspects of the transaction.
Q And when you were reviewing them, for what
purpose were you reviewing them?
A For accuracy and making sure it was
complete.
Q And how would you determine they were
accurate and complete?
A I was adding my information to a list
and -- and so I was making sure that my addition
was -- was complete.
Q How about the remainder of the list? How
did you determine whether that was accurate or
complete?
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A I -- I personally don't recall making that
specific determination. I think it was the sum
total of the entire group that contributed to ensure
that was correct.
Q When you say "the entire group," who are
you referring to?
A The legal team, the advisory team, anyone
involved that would have had that information.
Q So you would have reviewed the information
that you provided, correct?
A I believe so, yeah.
Q Okay. And you weren't able to assess the
accuracy or completeness of information others
provided, correct?
A No, not necessarily.
Q Okay.
A Because I think there were communications
that I wasn't a hundred percent involved in.
Q Did you make any efforts to ensure that the
information that others provided was accurate and
complete?
A No, not -- no.
Q I want to turn now to what you referred to
previously as the -- the purchases of Twitter stock.
A Sure.
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Twitter v. Elon Musk
CONFIDENTIAL
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Q Okay. How did it come about that Mr. Musk
began purchasing Twitter stock?
A As I recall, in late January in one of our
meetings, he mentioned that he was -- so he
had just, for the first time in his life, sold
Twitter stock and had a cash position, and he
indicated that he was interested in buying some
stock, which led to a conversation on I believe -I'm sorry if my date is a day or two off, but I
think it was Sunday, January 29th-ish, wherein he
confirmed, yeah, let's -- let's go ahead and buy
some stock.
Q When you say "buy some stock," buy some
stock in what?
A Twitter.
Q How did you determine to buy stock in
Twitter?
A I don't -- I don't know.
Q Was it only Twitter -A Yeah.
Q -- he was buying stock in?
A Yeah.
Q He previously directed you to buy stock in
any other company?
A Yeah, he -- he owns no other publicly
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traded security beyond Tesla.
Q So this was the first time he ever provided
instructions for you to arrange to purchase stock in
another public company, correct?
A Outside of Tesla, yes.
Q And did he explain why he was purchasing
stock in Twitter?
A No. Just that it was an interesting
company to him.
Q Are you aware of any analysis he did before
determining to purchase stock in Twitter?
A I'm not aware.
Q Okay. Did you do any analysis before
carrying his orders out to purchase stock in
Twitter?
A I didn't.
Q Prior to starting to purchase Twitter
stock, had you reviewed any of Twitter's SEC
filings?
A I don't believe so.
Q Are you aware if Mr. Musk had reviewed any
of Twitter's SEC filings?
A I'm not aware.
Q Did he explain what it was about Twitter
that led him to invest in -- in that stock?
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
A Twitter is a service that he uses daily.
It's something that he enjoys, a release, and while
I don't recall the specifics of a conversation with
him outlining, "Here's my investment thesis," those
were, you know, the main driving forces that I know
of.
Q Okay. And did he give you specific
instructions with regard to purchasing Twitter
stock?
A Yes, that we were going to start buying
daily in a way that didn't move the stock through a
volume weighted average price purchase program, and
target -- initially target a 2 percent position in
the stock.
Q Why was he interested in it in a manner
that didn't move the price?
A He's just one who cares about the value of
money and doesn't want to -- there was -- there was
no urgency for him to, you know, buy shares, and so
there was no need to buy a quantity that would move
the stock in any way.
Q When you say "move the stock," make it more
expensive to acquire the stock?
A Yes.
Q Okay. So he wanted to proceed in a manner
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that he could acquire the stock for the least amount
possible, correct?
A Certainly.
Q And did he give you any specific
instructions as to how much you could spend?
A Again, the initial target was 2 percent,
and the -- with the knowledge that we would be
sitting down
to review progress.
Q Okay. And did you review progress with him
?
A I'm not certain it was
, but -but most likely it was discussed on most of those
.
Q And before the
meeting at the end of
January where he raised this, do you recall him ever
previously suggesting he was interested in
purchasing Twitter stock?
A No.
Q Do you recall him ever talking about
Twitter as a company beforehand?
A As a company, no, not beyond his personal
use of it.
Q Now, in connection with purchasing the
Twitter stock, did you consult with counsel?
A No.
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Twitter v. Elon Musk
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Q Is there counsel available to you, as the
head of Mr. Musk's family office, to consult with if
you have questions?
A I mean, certainly, there are lawyers that
exist that if there are legal questions that I have
that I can reference.
Q Okay.
A As it pertains to securities, again, you
know, Tesla has a security team that handled 100
percent of all of our regulatory transaction-related
matters up until that point.
Q Well, how about this one which is
different? Did you consider retaining counsel or
contacting counsel regarding it?
A No.
Q Okay. In your prior activities, had you
ever taken such a large position in a public company
on behalf of a client?
A No.
Q Did you have an understanding of the rules
that would apply with regard to acquiring a large
position in a public company?
A A very cursory understanding that there
were certain thresholds.
Q Okay. Given you had a cursory
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understanding that there were certain thresholds,
what did you do to investigate and confirm that
Mr. Musk's purchases were consistent with those
requirements?
A So of course discussed it with the adviser
at Morgan Stanley, who was assisting us in buying.
Q Anything else?
A I believe there were some -- you know, some
searching for threshold answers on when filings
would be made and at what thresholds.
Q When you say you believe there were
searching, what do you mean by that?
A That, you know, there was I think even a
text or two that was exchanged between our
Morgan Stanley representative regarding filing
requirements. That's what I mean -- or sorry.
Links regarding filing -- links regarding filing
requirements.
Q What do you mean links regarding filing
requirements?
A So readily available information online -Q Okay.
A -- that -- that would -- that would have
guided the answer to the filing question.
Q And is that information you looked up or
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
Morgan Stanley looked up?
A We both looked up different information,
but, ultimately, came to a united conclusion about
what needed to happen.
Q And united conclusion, who was that
conclusion with?
A Jon Neuhaus.
Q And what is his position?
A He's a financial adviser at Morgan Stanley.
Q Is he a lawyer?
A No.
Q Are you aware if he ever has taken a
position for a company of the size that you were
proposing?
A No.
Q Are you aware if he has any expertise in
SEC laws?
A I guess depends on how you define
expertise, but, I mean, he -- everything that he
does every day is regulated by the SEC.
Q Was there any discussion with Mr. Musk
about publicly disclosing that he was acquiring
Twitter stock?
A Well, yes. We knew that if we crossed
certain thresholds, we would be forced to eventually
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make that public.
Q And my question may not have been clear.
At the beginning, when Mr. Musk decides he
likes Twitter and wants to invest, was there any
discussion about him announcing it then, for
example, tweeting that he was investing in Twitter?
A There wasn't a discussion about that
specifically, but that was always something that
could happen at any time.
Q Do you understand why it didn't happen?
A No.
Q Was there anyone other than Mr. Neuhaus
that was involved in the purchases of the Twitter
stock on behalf of Mr. Musk?
A Well, there would have been a trader on the
institutional desk that was executing the trades,
and then I believe an assistant of -- of Jon Neuhaus
who was providing spreadsheets and/or updates in his
absence when he was not available.
Q And did you have a prior relationship with
Mr. Neuhaus that led you to reach out to him for
this purpose?
A Yes.
Q What was the prior relationship?
A Well, he has worked for Mr. Musk for a
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Twitter v. Elon Musk
CONFIDENTIAL
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handful of years prior to this, and so -- yeah, so
he's worked for Mr. Musk for, you know, I don't know
how many years prior to this. So this was a very
normal kind of course of normal business outreach to
Morgan Stanley and to Jon to help with something
like this, but I don't know if you're -- if what
you're asking, if my personal relationship with him
predated this. Certainly, it did.
Q And when you say it was sort of a normal
thing to reach out to him, my understanding from
your testimony is that Mr. Musk had not typically
bought public securities.
A That's right.
Q In what capacity would you reach out to
Mr. Neuhaus before the Twitter purchases?
A For many, many different things ranging
from debt facilities to Twitter -- or I'm sorry -Tesla transactions to real estate loans to just
general research questions. There's many different
things. We communicate almost -- almost daily.
Q Okay.
MR. SHANNON: Would you mark that as
Exhibit 4.
--(Birchall Exhibit 4 was marked for
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identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 4, which is a
series of emails between you and Mr. Neuhaus, dated
January 31, 2022.
Do you recognize, and we'll start on the
first page, the one from Mr. Neuhaus to you?
A When you say the first page are you talking
about the front page, the first page?
Q Yes, the front page.
A I do.
Q And would you typically communicate with
Mr. Neuhaus through email?
A Probably more commonly via phone and
sometimes via text, but email was common.
Q Okay. And if you look at the bottom of -or toward the bottom of his first email, he has
bullet points on how he will proceed.
Were those all agreed upon by you?
A Let's see here.
THE COURT REPORTER: I can't hear you.
THE WITNESS: Yeah. I'm just reading what
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
is on this list.
Yes. I -- at their -- you know, we were
taking advice from them -BY MR. SHANNON:
Q Okay.
A -- based on levels -- volume levels of the
stock and -- and so it would have been a joint
conclusion based on their advice.
Q And the advice that they were giving
regarding, you know, amounts to purchase were what
they thought you could purchase without moving the
market and potentially becoming known that you were
purchasing the stock?
A Not necessarily known as much as just
moving the price.
Q Okay. And if you look toward the bottom,
there's a line from Mr. Neuhaus that says: "As we
work towards goal."
Do you see that?
A I do.
Q What's your understanding as to the -- the
goal that he is referencing?
A I think he's referencing -- referencing
just the general goal of acquiring shares of -- of
the stock.
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Q You had previously suggested that the
initial goal was 2 percent. Did that change over
time?
A It did.
Q Okay. And what led to that change?
A We -- we got to that threshold and
continued buying.
Q And to the extent you were increasing the
threshold, was that something you reviewed and -and Mr. Musk approved in each instance?
A That's right.
Q Okay.
MR. SHANNON: Can I have No. 3?
And that is Exhibit 5?
THE COURT REPORTER: Yes.
--(Birchall Exhibit 5 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 5, which I'll
represent I understand to be a series of your texts
that have been produced in this case. I apologize
that the writing is so small, but that's sort of how
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Twitter v. Elon Musk
CONFIDENTIAL
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it works.
If you look toward the bottom of the first
page -A Yes.
Q -- the third -- the third to last entry is
from you on February 18th, 2022 to Mr. Neuhaus, and
you have a question which says: "Are you able to
have your analyst do provide a profile of TWTR's
owners? Both institutional and individual?"
Do you see that?
A Yes, I do see that.
Q Okay. Is that a text you believe you sent
to Mr. Neuhaus on or about that date?
A Yes, I believe so.
Q And why on or about that date were you
requesting that information?
A That's -- so in the private world, the
management world, you know, John was a business
partner of mine, and understanding who -- the
ownership structure of any company was always a
primary focus, and I just had no -- no idea. As we
started to actually accumulate a significant number
of -- or percentage ownership, I had no idea who
else owned the stock.
Q Did Mr. Neuhaus provide you with that
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information?
A Yes.
Q Okay. And what did -A Best that he could find, yes.
Q Okay. And what did you do with that
information when you received it?
A I reviewed it and I just looked at it.
Q Do you recall having any discussions with
Mr. Neuhaus regarding the stockholder composition
for Twitter?
A I mean, we likely -- given that he sent me
that, we likely had some conversation about it. I
don't recall the content of the conversation.
MR. SHANNON: Exhibit 6.
--(Birchall Exhibit 6 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 6, which is a
series of emails between you and Mr. Neuhaus and
others. I'm interested primarily in the top
email --
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
A Okay.
Q -- which is from you to Mr. Birchall [sic],
dated March 8th, 2022.
Do you see that?
A I do.
Q And then there's the one under it, and the
one under it you'll see that Mr. Neuhaus was saying
to you that: "... we are likely to cross over the
5% soon."
Do you see that?
A Yes.
Q Do you have an understanding as to why he
was telling you that? Was there any significance to
5 percent?
A Oh, yeah. As I mentioned, we had discussed
that we both knew there was a filing requirement as
it related to the 5 percent threshold.
Q Okay. And you knew it as of that date?
A Yes.
Q Okay. And he then has: "Pls confirm that
you are comfortable with year-end filing of the
13D/G."
Do you know what that's a reference to?
A Again, we had come to the conclusion that
upon crossing 5 percent, you had a requirement to
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file at the end of the year in which you crossed
that 5 percent, and then there was some day buffer.
Again, I am, of course, well aware that this was an
erroneous conclusion at this point, but -- and so he
was simply reconfirming that I guess.
Q Okay. And when you say: "Yep, fine with
the year-end filing," had you asked counsel or done
anything to confirm as to the appropriateness of the
year-end filing?
A No. I mean, the confirmation was with our
advisory firm, assuming that, you know, their advice
and compliance and everything else would -- would
guide us in a direction that would lead to the right
answer.
Q And then he also has a question: "Should
we surpass 10%, we will deal with that at that
time."
Do you see that?
A I do.
Q Was there a view at that time that you may
exceed 10 percent?
A No. It was just stating the obvious, that
there were two thresholds that we needed to be aware
of; one being 5, one being 10.
And as you can see, in that same message he
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