Giuseppe Pampena v. Elon R.Musk

Background

This securities class action concerns allegations that Elon Musk made misrepresentations in May 2022 to depress Twitter’s stock price and pressure Twitter to reduce the acquisition price. The court noted that Judge Charles R. Breyer had previously held that the plaintiffs sufficiently pleaded securities fraud based on statements made on May 13, 16, and 17, 2022. Judge Breyer had also held that the plaintiffs did not sufficiently plead that Musk’s later termination letters contained actionable false statements.

The order addressed competing motions to compel discovery. Plaintiffs asked Musk to answer six interrogatories, which are written questions that must generally be answered separately and fully under oath. Musk asked plaintiffs to amend their answers to seventeen interrogatories. The court also considered two motions to seal materials filed in connection with the discovery dispute.

Plaintiffs’ discovery requests

The court held that information sought in plaintiffs’ interrogatories 5, 7, and 9 about Musk’s conduct after the July 8, 2022 termination letter was relevant and discoverable. The court found that whether the deal was actually terminated on that date was a disputed fact relevant to plaintiffs’ claims. Musk was ordered to respond fully by August 12, 2025.

For interrogatories 20 and 21, the court held that plaintiffs could seek information about advice Musk received before his May 17 tweet from people in a position to advise him about making or clarifying public comments concerning the merger. This could include legal, financial, business, and public-relations advisers, members of the deal team, and other confidantes, but not irrelevant suggestions from members of the public.

The court found that Musk and attorney Alex Spiro had established that their May 13, 2022 call was privileged at the outset. However, the record did not clearly establish that the privilege had not later been waived by Musk or Jared Birchall. The court gave Musk a final opportunity to establish non-waiver and ordered Musk and Birchall to file sworn declarations by August 12, 2025. Apart from the May 13 call, the court found that Musk had not established privilege over other legal advice responsive to interrogatories 20 and 21. Musk also had to investigate beyond his lack of memory and provide full answers.

The court held plaintiffs’ motion concerning interrogatory 22, which sought information about why Musk terminated four former Twitter executives, in abeyance. After Spiro’s deposition, the parties could renew that dispute by filing a one-page joint discovery letter by September 11, 2025.

Musk’s discovery requests

The court ordered plaintiffs to amend their answers to interrogatories 1 and 2 by removing the phrase among other things. It denied Musk’s motion as to interrogatory 4, finding that plaintiffs’ answer was responsive.

For interrogatories 18 and 19, the court ordered plaintiffs to provide meaningful answers identifying categories and types of information Musk was entitled to receive under specified sections of the merger agreement, using illustrative examples. Plaintiffs did not have to provide an exhaustive list. They also had to remove conditional language, add any additional responsive facts, and answer directly rather than improperly incorporating other answers. The court imposed similar requirements for interrogatory 23, concerning categories and types of rights plaintiffs contend Musk forfeited.

The court denied Musk’s motion to strike plaintiffs’ broader list of alleged misstatements for purposes of discovery because that request implicated the merits and was better addressed in pretrial proceedings about the scope of the case. But it ordered plaintiffs to amend their answer to interrogatory 6 to identify more specifically which statements or exchanges in the hour-long All In Summit podcast they contend were misleading.

The court ordered plaintiffs to amend their responses to interrogatories 13, 14, and 21. The amended answers had to identify which portions of other responses or a deposition were responsive, rather than requiring Musk to compare or search through other materials. For interrogatory 14, plaintiffs had to provide the material facts supporting their scheme-liability claim or clearly explain how their answers to interrogatories 6 through 10 supplied all the requested information.

For interrogatory 22, the court ordered plaintiffs to answer regarding the named plaintiffs and investors who were not members of the class. The court did not require them to identify unnamed class members as Musk clarified that he was not seeking that information.

Sealing motions

The court denied both of Musk’s administrative motions to seal. The non-party material was denied because the required supporting declaration was not provided. As to Musk’s own material, the court found that five lines describing the general subjects of an attorney-client communication did not reveal privileged content. Because the discovery dispute involved a non-dispositive motion that was only tangentially related to the merits, Musk needed to show good cause to seal the material and did not do so. He was ordered to re-file the materials without redactions by August 12, 2025.

Disposition

The court stated that plaintiffs’ motion to compel was granted in part and held in abeyance in part. Musk’s motions to compel amendment of plaintiffs’ responses were granted in part and denied in part. The two sealing motions were denied. The order did not decide the underlying securities-fraud claims.