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The Chancery Daily and 99 others

@chancery_daily

There's been lots of talk re the "text msgs of the billionaire class" but less explanation re why we were able to get this rare broad glimpse into civil discovery, which would usually be more limited to snippets attached to briefing or particular items exhibited at trial. 1/

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Replying to @k_salberta and @chancery_daily

I agreed

w/ this, but changed

once I realized he's willing 2 expose his personal orbit messaging. If EM worried abt embarrassment, u'd think he'd settled before filing of recent discovery items? Now he may be saying, "I've gone this far might as well go max for 1% chance win

8:20 PM · Oct 2, 2022

The Chancery Daily and 99 others

@chancery_daily

Replying to

@chancery_daily

This wasn't a leak, at least not in the traditional sense. So, what exactly happened, and why? And are we potentially missing the point? Were we distracted from something else on purpose, or did we happen to hone in on something that was attempting to be buried? 2/

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The Chancery Daily and 99 others

@chancery_daily

I'm going to try to trace the metastory here about why your prying eyes got access to this info in that way, because to my mind, there are still some interesting questions about how it all went down that no one has looked into. Let's see what we see, shall we? 3/

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The Chancery Daily and 99 others

@chancery_daily

Rule 5.1 of the Delaware Court of Chancery is as good of a starting place as any for this tale. Broadly speaking, Rule 5.1 has been said to "implement[] the powerful presumption of public access.” However, that public access has limitations, both practical and philosophical. 4/

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The Chancery Daily and 99 others

@chancery_daily

As a practical matter, Rule 5.1 covers a broad swathe of all things confidentiality in litigation, attempting to balance the interests of public access with the parties' right to keep legitimately confidential business information out of reach of competitors. 5/

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The Chancery Daily and 99 others

@chancery_daily

For our purposes in this little investigation, the relevant part is Rule 5.1(d)(2), which generally exempts — "for administrative convenience" — the filing of public versions of documentary exhibits or deposition transcripts, but allows for a challenge to the default. 6/

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The Chancery Daily and 99 others

@chancery_daily

The practical effect of Rule 5.1(d)(2) is that most exhibits to briefs that are filed in the Delaware Court of Chancery under seal (confidentially — which is the vast, vast majority of all briefs) don't ever get released with redactions in public versions. 7/

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The Chancery Daily and 99 others

@chancery_daily

Rule 5.1 challenges are fairly rare & somewhat poo-pooh'ed (the technical term) among DE practitioners, most likely because no one's client wants to be on the receiving end of a forced-reveal, even in redacted form, of things they'd rather keep out of the public eye. 8/

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The Chancery Daily and 99 others

@chancery_daily

So, as a general matter, people file all manner of exhibits to briefs under seal that they want the Court to see, and for the most part, probably don't really worry that they will face a 5.1 challenge or publicity demand. 9/

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The Chancery Daily and 99 others

@chancery_daily

In the Twitter v. Musk case, which is exceptional in almost every way, you would imagine the parties' assumptions were somewhat different, but it's hard to know how much common practice and forced speed impacted their analysis of the risk/reward calculus. 10/

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The Chancery Daily and 99 others

@chancery_daily

Whatever the calculus was, we have seen both parties here file hundreds of pages of exhibits with nearly every brief they have filed (on 15+ motions so far), all of which—of course and not unusually—were filed under seal. 11/

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The Chancery Daily and 99 others

@chancery_daily

Absent intervention, those exhibits would simply remain under seal until the case is processed and eventually closed (can you even fathom the day!) — but here, we have had several "interventions" both from the court, third parties, and the parties themselves. 12/

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The Chancery Daily and 99 others

@chancery_daily

In this storyline, there seem to be two things interacting. First, the Court included an addendum-like Instruction Regarding Public Filings to the memo op re SpaceX/Tesla email privilege. Remember the shower-dolphin epiphany? It related to all that. 13/

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The Chancery Daily and 99 others

@chancery_daily

omg omg omg omg I just had the most dolphin-flying, studio-wind-in-my-hair epiphany about the spacex/tsla email privilege waiver opinion and why it isn't out yet (must get extraordinary attorney woo reference, btw, mandatory) someone wake up @tylerrosenbaum 1/

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The Chancery Daily and 99 others

@chancery_daily

(Also, interesting to note that citation to the Tesla compensation case as the citation for the Rule 5.1 raison d'être.) 14/

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The Chancery Daily and 99 others

@chancery_daily

So, CM said, "be better with your public filings" but only ordered affidavits relating to the SpaceX and Tesla email policies to be filed in public versions. She didn't say, "hey — I'm changing up Rule 5.1(d)(2) in this case" (although I would really love if she would lol). 15/

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The Chancery Daily and 99 others

@chancery_daily

So, still no answers as to why last Thursday we got a dump of dozens of redacted/public filings of exhibits originally filed with briefs under seal, which weren't required to be filed publicly. Obviously, there's more to the story. And it comes from an interesting place. 16/

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The Chancery Daily and 99 others

@chancery_daily

On September 14th, Defendants (Musk) filed a Notice of Challenge to Confidential Treatment Pursuant to Court of Chancery Rule 5.1(f). This was ... unusual in several ways. 17/

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The Chancery Daily and 99 others

@chancery_daily

To the extent that Rule 5.1(f) challenges are filed, they are most frequently filed by third parties with interest in the underlying litigation or members of the press. Randall Chase with the AP filed one previously in this case. 18/

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The Chancery Daily and 99 others

@chancery_daily

It's a little redundant or circular to lay out, but the parties themselves are parties to the confidentiality agreement in the case, so ... they can see the things that are filed under seal. 19/

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The Chancery Daily and 99 others

@chancery_daily

That's why it's unusual for a party to file a Rule 5.1 challenge. They are already inside the cone of secrecy. Even more interesting, here, Defendants filed a challenge to their own exhibit filings. 20/

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The Chancery Daily and 99 others

@chancery_daily

It's not as weird as it sounds, though. Defs have been fighting odd outcomes from Rule 5.1 since the outset of this case, when their counterclaims were first released from under seal in Plaintiff's answer to those claims, due to some strange interplay of 5.1 provisions. 21/

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The Chancery Daily and 99 others

@chancery_daily

Here, Defendants were petitioning the Court to allow them to file these exhibits without redactions from Twitter beyond names of non-executive, non-witness employees. 22/

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The Chancery Daily and 99 others

@chancery_daily

Ok, so that makes sense. Defendants wanted the public to have access to Twitter's discovery attached to its various briefs. Thank you! We, the public, appreciate that. Here's the list of briefs/exhibits for which they requested approval to file public versions. 23/

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The Chancery Daily and 99 others

@chancery_daily

So, Defendant file their Rule 5.1(f) challenge on 9/14 and on 7/21, Twitter replies, noting the oddity of the posture and their concerns for Twitter's sensitive internal information. 24/

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The Chancery Daily and 99 others

@chancery_daily

Twitter challenges the 5.1 request as outside of the rules, which have a process in place for exhibits that are filed under seal. They argue that the consequence of a challenge is that Plaintiff now has to review thousands of pages of docs for confidentiality redactions. 25/

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The Chancery Daily and 99 others

@chancery_daily

Twitter says, ugh, fine, we will make the redactions, but dang, it's gonna be a busy week (turned out to be a busy week but for reasons other than the ones they had planned — a hearing not an Elon deposition, etc.). 26/

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The Chancery Daily and 99 others

@chancery_daily

Twitter closes its letter on September 21st with — look, Court, don't trip. You and the Register in Chancery don't need to do anything with this request. We'll make the redactions of (maybe tens of) thousands of pages of docs and send them to Defs so they can file publicly. 27/

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The Chancery Daily and 99 others

@chancery_daily

but remember, that's not what defendants asked for. is it what they wanted? to burden twitter with a ton of work doing public redactions? maybe. to make things publicly available w/out redaction by order of the court? ostensibly/explicitly. but did they get what they wanted? 28/

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The Chancery Daily and 99 others

@chancery_daily

I think I was spared from everyone already having reported the hell out of the text msgs on Thursday while I was in a halcyon-haze at the dentist is bc thousands of pages of exhibits went onto the docket & mostly reporters ignored them bc they were full of redactions. 29/

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The Chancery Daily and 99 others

@chancery_daily

nearly 1/2 day after they hit the docket, I was one of the first to find & discuss the text msgs bc they were buried in a slew of long exhibits filled w/boring emails bw counsel almost as depressing to the central nervous system as the dental drugs I had that morning. 30/

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The Chancery Daily and 99 others

@chancery_daily

so, it's interesting to wonder: what did defendants really want? did they want us to see things in the twitter portions of the discovery that twitter put redactions on in response to the challenge? there's a reason they tried going straight to the court with a 5.1 challenge. 31/

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