Musk-Twitter Feud Privilege Fallout: Part I

November 16, 2022

Not surprisingly, the Musk-Twitter fast-track Delaware case generated privilege issues. One predictably recognized Musk’s unique role in his varied revolutionary enterprises.

In Twitter, Inc. v. Musk, Civ. A. No. 2022-0613-KSJM, 2022 Del. Ch. LEXIS 227 (Del. Ch. Sept. 13, 2022), Twitter sought Musk’s Twitter-related emails he sent and received on his SpaceX and Tesla emails systems. Twitter relied on the commonly applied standard articulated in In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005). In essence, under Asia Global an employee using his or her employer’s email system forfeits privilege protection if the corporate employer: warns employees that they have no expectation of privacy; “maintain[s] a policy banning personal or other objectionable use”; and monitors employees’ emails. Id. at *12 (citation omitted). SpaceX and Tesla met that standard, but affidavits reflected what the court described as “Musk-specific rules.” Id. at *15-16. The court acknowledged that “[o]ne can debate whether this corporate reality makes for good ‘corporate hygiene,'” but concluded that “the evidence rings true” that no one would access Musk’s emails without his approval. Id. at *16-17.

The average person presumably should not rely on this case. Next week’s Privilege Point describes another Musk-Twitter feud privilege issue that comes closer to the real world.