Musk-Twitter Feud Privilege Fallout: Part II

November 23, 2022

Last week’s Privilege Point described a Delaware court’s acknowledgment that the normal In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005), standard does not apply to the world’s wealthiest man. Four days later, Musk lost a privilege issue, under standard privilege log doctrine.

In Twitter, Inc. v. Musk, Civ. A. No. 2022-0613-KSJM, 2022 Del. Ch. LEXIS 244, at *1 (Del. Ch. Sept. 23, 2022), Musk challenged “the legitimacy of [Twitter]’s privilege claims and the adequacy of [its] privilege log.” To be sure, a litigant’s grossly tardy or inadequate privilege logs can result in what is called a “blanket waiver” (the term “waiver” seems inappropriate – the result amounts to a sanction). Given the speed, volume and complexity of the document discovery in Musk’s feud with Twitter, the court unsurprisingly denied Musk’s effort to strip away all of Twitter’s privilege. But some deficiencies bring such sanctions. In Geomatrix Systems, LLC v. Eljen Corp., No. 3:20-cv-1900 (JBA), 2022 U.S. Dist. LEXIS 177039 (D. Conn. Sept. 29, 2022), the court overruled plaintiff’s privilege objections – noting that they “were not properly raised for at least seven months, despite court intervention and multiple opportunities.” Id. at *33.

Although such severe punishment is rare, some courts reject litigants’ tardy or inadequate privilege objections or logs.