Twitter, Inc. v. Elon R. Musk

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
KATHALEEN ST. JUDE MCCORMICK LEONARD L. WILLIAMS JUSTICE CENTER
CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734

October 8, 2024

Catherine A. Gaul Aaron Greenspan
Randall J. Teti PlainSite
Ashby & Geddes, P.A. 956 Carolina Street
500 Delaware Avenue, 8th Floor San Francisco, CA 94107
Wilmington, DE 19899

Re: Twitter, Inc. v. Elon R. Musk, et al.,
C.A. No. 2022-0613-KSJM

Dear Counsel:

In response to a challenge notice filed under Court of Chancery Rule 5.1 by

Non-Party Aaron Greenspan, X Corp. moved for continued confidential treatment of

sealed items on the above-referenced docket (the “Rule 5.1 Motion”).1 Ancillary

disputes arose after X Corp. filed the Rule 5.1 Motion, prompting X Corp. to move for

additional relief (the “Ancillary Motion”). 2 This letter decision resolves the Rule 5.1

Motion and Ancillary Motion.

Legal Framework

“Under the First Amendment of the United States Constitution and as a

matter of common law, the public has a presumptive right of access to judicial

records.”3 The public’s right of access to court documents and proceedings “is

1 C.A. No. 2022-0613-KSJM, Docket Entry (“Dkt.”) 780.

2 Dkt. 800.

3 In re Appraisal of Columbia Pipeline Gp., Inc., 2018 WL 4182207, at *1 (Del. Ch.

Aug. 30, 2018).
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considered fundamental to a democratic state and necessary in the long run so that

the public can judge the product of the courts in a given case.”4 This, in turn, “helps

ensure quality, honesty and respect for our legal system.”5

Court of Chancery Rule 5.1 reflects the Court of Chancery’s commitment to the

public’s right of access.6 The default presumption under Rule 5.1 is that court

proceedings and filings are matters of public record.7 Rule 5.1 allows parties to file

documents containing confidential information under seal (a “Confidential Filing”),

but requires a public version “for every Confidential Filing, except for an exhibit or

lodged deposition.”8 In public versions of Confidential Filings, parties may redact

only information that they believe constitutes “Confidential Information” as defined

by Rule 5.1.9

“Confidential Information” under Rule 5.1 means information:

(A) that is maintained confidentially; (B) that is not
otherwise publicly available; (C) where public access to the
information will cause particularized harm; and (D) where
the magnitude of the harm from public access to the

4 Al Jazeera Am., LLC v. AT & T Servs., Inc., 2013 WL 5614284, at *3 (Del. Ch. Oct.

14, 2013) (internal quotation marks omitted) (quoting Sequoia Presidential Yacht
Grp. LLC v. FE Partners LLC, 2013 WL 3724946, at *2 (Del. Ch. July 15, 2013)).
5 Horres v. Chick-fil-A, Inc., 2013 WL 1223605, at *1 (Del. Ch. Mar. 27, 2013) (internal

quotation marks omitted) (quoting Matter of Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308
(7th Cir. 1984)).
6 Chick-fil-A, Inc., 2013 WL 1223605, at *2.

7 Ct. Ch. R. 5.1(a)(1).

8 Ct. Ch. R. 5.1(f)(1).

9 Ct. Ch. R. 5.1(b)(2).
C.A. No. 2022-0613-KSJM
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information outweighs the public interest in the
information.10

This definition balances “the public interest against the harm that public disclosure

might entail with respect to sensitive nonpublic information.”11 “The public interest

is especially strong where the information is material to understanding the nature of

the dispute. In those instances, denial of public access requires a strong

justification.”12

“Any person may challenge the confidential treatment of a Confidential Filing”

by filing a challenge notice with the Register in Chancery.13 That challenge can

target documents for which no public filing exists (exhibits and lodged depositions)

and documents for which a public filing exists. If no public version of the Confidential

Filing exists, then Rule 5.1 sets out a process for filing a public version of the

document,14 and “[t]he timely filing of a public version satisfies the challenge

notice.”15 If a public version of the Confidential Filing exists, then any party seeking

to maintain the confidentiality of the document must move for continued confidential

10 Id.

11 In re Boeing Co. Deriv. Litig., 2021 WL 392851, at *2 (Del. Ch. Feb. 1, 2021)
(internal quotation marks omitted) (quoting Reid v. Siniscalchi, 2014 WL 6486589,
at *1 (Del. Ch. Nov. 20, 2014)).
12 In re Oxbow Carbon LLC Unitholder Litig., 2016 WL 7323443, at *2 (Del. Ch. Dec.

15, 2016) (ORDER) (internal quotation marks omitted) (quoting Al Jazeera, 2013 WL
5614284, at *7).
13 Ct. Ch. R. 5.1(g)(1)–(2).

14 Ct. Ch. R. 5.1(g)(5).

15 Id.
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treatment within five days of the challenge notice.16 “The person seeking to maintain

confidential treatment bears the burden of persuading the Court that confidential

treatment is warranted.”17

Rule 5.1 Motion

This action is long over, but the docket is still publicly available, and it contains

information that X Corp. has fought to keep from the public eye. Greenspan is the

founder of PlainSite, a legal and financial research website that makes state and

federal court filings and other public records available to the public for free.18 On

June 18, 2024, Greenspan filed a notice challenging the confidential treatment of

twelve docket entries. Public filings existed for some of the challenged entries but

not others.19 In response, X Corp. filed public versions of the entries for which no

public version existed, unredacted information from the others, and moved for

continued confidential treatment of selected information.

X Corp. bears the burden of demonstrating that the information it seeks to

protect from public view is confidential. The court analyzes whether X Corp. has met

its burden as to each challenged docket entry. The outcome is a mixed bag—the Rule

5.1 Motion is granted in part and denied in part.

16 Ct. Ch. R. 5.1(g)(6)(A).

17 Ct. Ch. R. 5.1(g)(6)(D).

18 Dkt. 764.

19 Id. (challenging the confidential treatment of Docket Entries 375, 376, 383, 384,

394, 395, 396, 397, 531, 680, 708, and 709).
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Docket Entry 513 is the public version of the September 4, 2022 Affidavit of

Elon R. Musk.20 X Corp. redacted two items in that document—the Space X and Tesla

domain names. The domain names for Space X and Tesla are not confidential. They

are the addresses of the main landing pages for these entities on the internet. The

motion is denied as to this document. X Corp. is ordered to file a fully unredacted

version of Docket Entry 513.

Docket Entry 514 is the public version of the September 4, 2022 Affidavit of

John Shumway.21 X Corp. requests continued confidential treatment of high-level

descriptions of X Corp.’s policies and practices related to internal cybersecurity

investigations. Although the descriptions are very general, they have very little to

do with the subject matter of the litigation, and it is understandable that Tesla has

an interest in keeping information about a security policy confidential. X Corp. has

met its burden. The motion is granted as to Docket Entry 514.

Docket Entry 515 is the public version of the September 4, 2022 Affidavit of

Alex Stillings.22 X Corp. requests continued confidential treatment of Stillings’s job

description and general email security protocols that are widely accepted common

practices. For example, one of the redactions obscures generically described criteria

for monitoring email traffic: “certain attachments, links, keywords, or other indicia

20 Dkt. 394 (confidential filing).

21 Dkt. 397 (confidential filing).

22 Dkt. 395 (confidential filing).
C.A. No. 2022-0613-KSJM
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associated with malicious content.”23 Another redaction obscures the phrase “that

trigger the criteria” from the sentence: “Emails that trigger the criteria are blocked

or quarantined.”24 X Corp. has not met its burden. None of the redacted information

warrants confidential treatment. The motion is denied as to this document. X Corp.

is ordered to file a fully unredacted version of Docket Entry 515.

Docket Entry 587 is the public version of a September 2, 2022 letter to the

court from Edward Micheletti, Esquire.25 X Corp. seeks to protect the names of two

X Corp. employees in the letter. X Corp. argues that the public has limited interest

in personal identifying information of employees, that the company has a policy not

to disclose the identities of junior-level employees, and any public interest in this

information is “significantly outweighed by . . . the employees’ right to privacy and

the potential harm associated with public disclosure of names or email addresses.”26

The letter does not identify email addresses, so these arguments speak to redactions

of employees’ names. And it is hard to fathom how disclosing the name of a Twitter,

Inc. employee, standing alone, could harm that employee.

X Corp. also relies on this court’s decision in In re Boeing Derivative

Litigation,27 where the court permitted continued confidential treatment of the

23 Dkt. 395 ¶ 12.

24 Id.

25 Dkt. 383 (confidential filing).

26 Rule 5.1 Motion ¶ 14.

27 Id. at ¶¶ 13–14 (citing In re Boeing Co. Deriv. Litig., 2021 WL 392851 (Del. Ch.

Feb. 1, 2021)).
C.A. No. 2022-0613-KSJM
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names of employees who had raised safety concerns at the company. The court held

that “the names of employees who came forward to lodge severe allegations against

their employer were not of meaningful public interest, and . . . there were good

reasons to respect those employees’ privacy.”28 Boeing does not stand for the

proposition that the names of non-party employees are categorically confidential, and

X Corp. does not identify any whistleblower concerns that require continued

confidential treatment of the names of the two employees here.

The motion is denied as to this document. X Corp. is ordered to file a fully

unredacted version of Docket Entry 587.

Docket Entry 591 is the public version of the September 16, 2022 letter to the

court from Kevin R. Shannon, Esquire.29 X Corp. seeks continued confidential

treatment of information regarding the numbers of fake X user accounts. This

information has grown stale since 2022, and X Corp. has failed to establish that the

company will suffer any harm if it becomes public. The motion is denied as to this

document. X Corp. is ordered to file a fully unredacted version of Docket Entry 591.

Docket Entry 650 is the public version of Slack messages between X Corp.

employees.30 Relying again on Boeing, X Corp. requests continued confidential

treatment of employees’ names.31 But Boeing does not justify confidential treatment

28 Boeing, 2021 WL 392851, at *3.

29 Dkt. 531 (confidential filing).

30 Dkt. 384 (confidential filing).

31 Rule 5.1 Motion ¶¶ 13–14.
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of the names of all employees, as discussed above, and X Corp. provides no other

justification for this request. The motion is denied as to this document. X Corp. is

ordered to file a fully unredacted version of Docket Entry 650.

Docket Entry 726 is the public version of the October 6, 2022 letter to the court

from Kevin R. Shannon, Esquire.32 X Corp. seeks continued confidential treatment

of: the name of an employee and their allegations against another employee; details

of a former employee’s lawsuit and eventual settlement with X Corp.; and the names

of X Corp.’s head of compliance and Chief Information Security Officer. The first

category of information is analogous to the information at issue in Boeing and

warrants continued confidential treatment for the reasons stated in that decision.

The second category concerns a confidential settlement and likewise warrants

continued confidential treatment. X Corp. has not met its burden as to the third

category, which is basic employment history that one might post on LinkedIn. The

motion is granted in part and denied in part as to this document. X Corp. is ordered

to file a revised public version of Docket Entry 726 that redacts only the name of the

employee that made allegations against another employee and any information

concerning the nature of those allegations, and details of the former employee’s

lawsuit and eventual settlement with X Corp.

32 Dkt. 709 (confidential filing).
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Docket Entry 776, Exhibit 8 is the public version of the deposition of Todd

Doughty.33 X Corp. seeks to maintain redactions to: certain employees’ names and

titles; and “information directly concerning the internal operations of the X

platform.”34 Again, employees’ names and titles do not, standing alone, warrant

confidential treatment. The “operations” information is a mix of both historical and

current company practices. This historical information, which concerns the structure

of X Corp.’s employee teams and the ways in which X Corp. set and tracked certain

metrics, “lacks competitive value” that would warrant its continued confidential

treatment.35 The motion is granted in part and denied in part as to this document.

X Corp. is ordered to file a revised public version of Docket Entry 776, Exhibit 8 that

does not redact employees’ names and titles and X Corp.’s past company practices.

Descriptions of practices still in use by X Corp. may remain redacted.

Docket Entry 776, Exhibit 9 is the public version of Todd Doughty’s Slack

messages.36 X Corp. requests continued confidential treatment of: employees’ names;

links to shared documents; abbreviated work terms; and employees’ thoughts about

X Corp. projects. Again, the employees’ names, standing alone, do not warrant

confidential treatment. The abbreviated work terms and employees’ thoughts as to

projects are at least two years old; they do not seem sensitive or likely to harm X

33 Dkt. 383, Ex. 8 (confidential filing).

34 Rule 5.1 Motion ¶ 20.

35 Oxbow Carbon, 2016 WL 7323443, at *3.

36 Dkt. 383, Ex. 9 (confidential filing).
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Corp. if released. They do not warrant continued redaction. The links to shared work

documents, if they are still active, could contain more updated, sensitive information.

The active links are entitled to continued confidential treatment. The motion is

granted in part and denied in part as to this document. X Corp. is ordered to file a

revised public version of Docket Entry 776, Exhibit 9 that only redacts active links to

shared work documents.

Ancillary Motion

X Corp.’s newly filed public versions prompted ancillary disputes regarding

two documents: the deposition transcript of Jared Birchall, who served as a Rule

30(b)(6) witness for X Holdings I and X Holdings II;37 and a “Hit Report” of electronic

discovery terms applied in this action.38

Morgan Stanley raised the Birchall issue. Birchall was one of two persons

authorized to represent X Holdings I and X Holdings II—vehicles formed by Musk to

acquire Twitter, Inc.—and was a Rule 30(b)(6) witness for those entities on

September 21, 2022.39 On October 3, 2022, X Corp. (then, Twitter) filed a confidential

version of Birchall’s deposition transcript as an attachment to a motion arguing that

Birchall was woefully underprepared to be deposed in a representative capacity.40

37 Dkt. 792, Ex. 6 (“Birchall Dep. Tr.”).

38 Dkt. 797, Ex. P.

39 Birchall Dep. Tr. at 35:2–14.

40 Dkt. 680.
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Birchall mentioned Morgan Stanley during his deposition. Birchall worked for

Morgan Stanley before he became a personal financial advisor to Musk in 2016, and

he testified to that effect.41 Birchall also engaged Morgan Stanley to arrange and

syndicate debt for Musk and his holding companies in connection with the Twitter

acquisition, and he testified to that effect.42 During his deposition, Birchall was asked

who he spoke with at Morgan Stanley for this purpose. In response, he stated the

names of three team members (except he got one of their first names wrong).43 The

docket reflects that each of the team members were subpoenaed in this litigation.

On July 17, 2024, X Corp. filed a public version of the Birchall transcript

containing redactions after Greenspan challenged its confidentiality.44 X Corp. did

not redact the names of the Morgan Stanley employees from the public version of the

transcript. On July 19, Morgan Stanley asked X Corp. to have the Birchall transcript

removed from the docket on the ground that the transcript “contain[ed] the names of

certain Morgan Stanley employees who are currently nonpublic and which are the

subject of a protective order in” a New York federal action.45

In response to Morgan Stanley’s concern, X Corp. contacted the Register in

Chancery to ask the Register to remove the transcript from the docket, which the

41 Birchall Dep. Tr. at 17:7–20:21.

42 Id. at 40:4–16.

43 Id. at 41:18–22, 43:11–19.

44 Dkt. 792.

45 Ancillary Motion ¶ 6.
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Register in Chancery did.46 Later, X Corp. filed a revised public version of the

Birchall transcript, which redacted the names of the three Morgan Stanley

employees.47 Four days passed between the filing of the original public version on

July 17 and the revised public version on July 22.48 During that period, Greenspan

downloaded the first public version of the transcript and published it on his website.49

He did not violate any court orders when doing so.

X Corp. raised the Hit Report issue. X Corp. failed to redact Elon Musk’s Tesla

and SpaceX email addresses, among other information,50 from the public filing of the

Hit Report. After Greenspan identified Musk’s work email addresses in his

opposition to the Rule 5.1 Motion filed on July 21, 2024 (the “Rule 5.1 Motion

Opposition”),51 X Corp. realized its mistake. On the morning of July 22, X Corp.

informed Greenspan that it had unintentionally failed to redact the email addresses

from the Hit Report.52 X Corp. requested that Greenspan ask the Register in

Chancery to reject the Rule 5.1 Motion Opposition, and asked Greenspan to submit a

46 Id. at ¶ 7.

47 Dkt. 799.

48 Compare Dkt. 792 and Dkt. 799.

49 Ancillary Motion ¶ 12.

50Id. at ¶ 11 (referring to Musk’s email addresses and “other names and email
addresses of certain individuals who were not named in this action”).
51 Dkt. 798.

52 Ancillary Motion ¶ 9.
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public version of the filing, removing reference to Musk’s email addresses.53

Greenspan refused,54 which prompted the Ancillary Motion.

The Ancillary Motion seeks an order: directing the Register in Chancery to

remove the current public version of the Hit Report from the docket; permitting X

Corp. to file an amended public version of the Hit Report; and directing the Register

in Chancery to treat the Rule 5.1 Motion Opposition as a Confidential Filing under

Court of Chancery Rule 5.1.55 X Corp. also asks the court to order Greenspan to

remove from his website the current version of the Rule 5.1 Motion Opposition, the

Hit Report, and the lesser-redacted version of the Birchall transcript.56

Greenspan opposes the Ancillary Motion and asks that X Corp.’s counsel be

sanctioned for engaging in purportedly improper ex parte communications with the

Register in Chancery.57

The Ancillary Motion is granted in part and denied in part. The Hit Report

contains personal and work email addresses. The court previously held that personal

email addresses can be filed under seal.58 But Greenspan has demonstrated that

53 Id. at ¶ 10.

54 Id.

55 Id. at ¶ 13.

56 Id.

57 Dkt. 802 (“Ancillary Motion Opp.”), 12–13.

58 Twitter, Inc. v. Musk, 2023 WL 4995738, at *1 (Del. Ch. Aug. 4, 2023) (granting

motion for continued confidential treatment of certain “sensitive personal
information” including, “personal contact information,” such as personal email
addresses and cell phone numbers).
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Musk’s work email addresses are publicly available.59 They are not confidential. The

Hit Report also contains employee names, which are not confidential for the reasons

stated above. Accordingly, Docket Entry 797 shall be removed from the docket. X

Corp. is granted leave to refile a revised public version of Docket Entry 797 that

redacts only personal email addresses from the Hit Report (Exhibit P). The

redactions to Exhibits Q, R, S, T, and U shall remain.

X Corp.’s concern with the Rule 5.1 Motion Opposition is that it contains two

of Musk’s email addresses. As stated above, X Corp. has failed to establish that

Musk’s publicly available work email addresses constitute Confidential Information.

X Corp.’s request to treat the Rule 5.1 Opposition as a Confidential Filing is denied.

X Corp.’s request for an order compelling Greenspan to remove the Rule 5.1

Motion Opposition, Hit Report, and lesser-redacted version of the Birchall transcript

from PlainSite goes too far. X Corp. made a mistake. This happens. And the court

permits parties to fix filing mistakes from time to time. But Greenspan did not make

a mistake. He did nothing improper by accessing publicly filed documents. In these

circumstances, it would seem an overreach to issue a mandatory injunction

compelling Greenspan to remove information from his website that he created (the

Rule 5.1 Opposition) or lawfully obtained (the Hit Report and Birchall transcript).60

This request is denied.

59 Ancillary Motion Opp., 4–5.

60 Plus, Morgan Stanley’s stated concerns are questionable. The federal protective
order on which Morgan Stanley relied (Ancillary Motion, Ex. A) was unopposed. It
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Finally, Greenspan’s motion to sanction X Corp.’s counsel for communicating

with the Register in Chancery is off base. X Corp. contacted the Register to request

that it reject the original public version of the Birchall transcript so that X Corp. could

refile a revised public version containing Morgan Stanley’s proposed redactions.61

These communications do not constitute inappropriate ex parte communications with

the court. This request is denied.

This ruling creates an admittedly unusual outcome, where the court is

permitting the confidential filing of information that the court acknowledges is

publicly available elsewhere—on Greenspan’s website. This unusual outcome is

driven by highly unusual circumstances, which seem unlikely to occur again.

IT IS SO ORDERED.

Sincerely,

/s/ Kathaleen St. Jude McCormick

Chancellor

cc: All counsel of record (by File & ServeXpress)

cites to a New York federal decision, Rowe v. Google LLC, 2022 WL 4467628, at *2
(S.D.N.Y. Sept. 26, 2022), which is distinguishable. Rowe addressed confidentiality
challenges to redactions protecting non-party employee compensation information.
The decision allowed the movant to redact the names of the employees but not their
compensation information, which was relevant to the subject matter of the dispute.
Here, it is the name of the Morgan Stanley employees standing alone that Morgan
Stanley seeks to protect. Those employees’ connection to the case is already public,
given that their names appear on docketed subpoenas.
61 Ancillary Motion ¶ 7.