After a hearing on discovery requests from lawyers representing both Elon Musk and Twitter, Judge Kathaleen McCormick gave a firm “no” to the Musk team’s “absurdly broad” request in favor of a much smaller set of information. However, Twitter must hand over some additional data relating to how it calculates the “monetizable daily active users” (mDAU) statistic and its associated bot activity estimate that Musk argues is fraudulent.
Musk’s lawyers wanted “all of the data Twitter might possibly store for each of the approximately 200 million accounts included in its mDAU count every day for nearly three years,” covering trillions of data points, McCormick wrote in her ruling. “Plaintiff [Twitter] has difficulty quantifying the burden of responding to that request because no one in their right mind has ever tried to undertake such an effort. It suffices to say, Plaintiff has demonstrated that such a request is overly burdensome.”
The two sides are facing off as they both pursue information to support their respective arguments about whether Musk should be able to get out of his agreement to buy Twitter for $44 billion before the trial is scheduled to start on October 17th.
Twitter must hand over the 9,000 accounts it reviewed for its audit in the fourth quarter of 2021, McCormick ruled. Additionally, Twitter is required to give Musk’s team information about how those 9,000 accounts came to be selected for its review. (Twitter’s team said yesterday that it would take about two weeks to collect that data.) They will also need to hand over “a small additional set of data from its review database — documents reflecting discussion of any other key metric identified by Defendants, regardless of whether those documents expressly address mDAU,” McCormick wrote.
In addition, the judge partially agreed to Twitter’s request for documents from Musk’s side as Twitter pursues information on data analysis Musk performed before he attempted to exit the deal. “At a minimum, Defendants must produce the Analyses,” writes McCormick, as well as identification of related information on a privilege log so that Twitter’s lawyers could request access to specific documents.