Judge slams Musk for not turning over text messages in Twitter fight

(Bloomberg) — A judge has slammed Elon Musk for failing to properly turn over text messages that could be evidence in Twitter Inc.’s lawsuit seeking to force the billionaire to complete his proposed buyout of the social media platform for 44 billion dollars.

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Delaware Chancery Judge Kathleen St. Jude McCormick said in a ruling Wednesday that there were “clear flaws” in how Musk and his lawyers responded to Twitter’s request for text messages he and top aide Jared Burchall sent and received about the proposed deal and his subsequent efforts to withdraw from it. She ordered the men to turn over the phone records of their messages.

“Third parties created text messages with Musk that Musk himself did not create,” she said. Some of the exchanges he created also had obvious flaws. Still, she noted that Musk’s legal team has moved to clarify many of the issues Twitter complained about in the pre-trial exchange of information.

Alex Spiro, Musk’s lead attorney, declined to comment on McCormick’s ruling on the texts. Twitter representatives did not immediately respond to an email seeking comment.

McCormick noted that Musk made two texts that Perella Weinberg’s Robert Steele sent him 18 minutes apart on June 17. Steele first asked a question and then texted, “Okay. Got it…” The second text clearly shows that Musk responded to the first, the judge said, but the response was not transmitted to Twitter.

“Assuming that Musk’s response was not telepathic, one would expect some evidence of it in the defendants’ filings,” McCormick wrote. “But the defendants did not provide anything by the deadline.”

The judge also said that most of the burden of gathering and communicating information in the case has so far fallen on Twitter. But the company’s request for all of Musk and Burchall’s texts — regardless of their relevance — was “too extreme to satisfy.”

Earlier on Wednesday, McCormick ruled that Musk’s lawyers could amend counterclaims filed in the Twitter case with allegations by a whistleblower from a former company executive that the billionaire said supported his reasons for stepping down from the deal. But the judge also denied Musk’s request to delay the Oct. 17 trial in the case.

Shares of Twitter rose 6.3% to $41.09 in New York on Wednesday.

Read more: Musk may use Twitter whistleblower claims in buyout battle

Meanwhile, Musk and Twitter are fighting over whether the company should turn over messages to Slack posted by Twitter employees about Musk’s withdrawal from the deal. Musk’s legal team accuses Twitter of reneging on its promises to hand over communications to Slack.

While Twitter agreed to turn over Slack messages from officials such as CEO Parag Agrawal and Manish Chhabria — the platform’s head of financial analysis and planning — it refused to turn over others, saying the task of reviewing them was overwhelming, they complained Musk’s lawyers.

McCormick heard arguments on the Slack issue at a hearing Tuesday, but has not yet ruled on it.

The case is Twitter v. Musk, 22-0613, Delaware Court of Chancery (Wilmington)

(Updates with details on a Slack message battle starting in the ninth paragraph.)

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