Elon Musk’s lawyers want to question the Twitter employees responsible for calculating spam-account estimates, and they claim that Twitter is hiding these potential witnesses, Bloomberg reported yesterday.
Musk on Wednesday filed a proposed order requesting that Delaware Court of Chancery Judge Kathaleen McCormick compel Twitter “to produce discovery from specific custodians.” Musk provided further details on the request in a letter to McCormick that was filed under seal as part of the case in which Twitter seeks to enforce the $44 billion merger contract that Musk is trying to exit.
While the letter isn’t public yet, Bloomberg cited “people familiar with the allegations” to describe the letter’s contents. “Musk contends the social media company isn’t producing the names of employees specifically responsible for evaluating how much of Twitter’s customer base is made up of spam and robot accounts… Musk’s lawyers have asked the judge in the case to force Twitter to identify the workers so the defense can get their records and question them,” Bloomberg wrote.
Musk’s request is part of his effort to disprove Twitter’s claim that fewer than 5 percent of its monetizable daily active users (mDAU) are spam or fake. Twitter says Musk has no right to exit the merger agreement based on the number of spam accounts; it also claims that Musk hasn’t “present[ed] even a shred of supporting evidence” that the mDAU figure is incorrect. Musk’s spam analysis relied on a web tool that once called his own Twitter account a likely bot, Twitter pointed out.
Twitter hasn’t responded to Musk’s new filing yet. “Under the court’s rules, Twitter’s attorneys have five business days to decide what should be redacted from the filing as proprietary information,” Bloomberg wrote.
Pre-trial wrangling before October 17 start
The filing comes a few days after Musk challenged Twitter CEO Parag Agrawal to “a public debate about the Twitter bot percentage.” No such debate is likely to happen, of course. Twitter is content to let its lawsuit against Musk play out, particularly given that McCormick granted its request to expedite the trial, scheduled to begin October 17.
Though Twitter apparently hasn’t provided access to employees who work on the spam estimates, the company has detailed its process for calculating mDAU and gave Musk access to its data firehose. Twitter evaluates daily samples of 100 mDAU, or about 9,000 each quarter, saying the analysis includes “multiple human reviews (in replicate) of thousands of randomly selected accounts each quarter using both public and private data.”
“[A]s a basic statistical matter, the approximately 9,000-account sample Twitter reviews of accounts included in mDAU each quarter is sufficiently sized to extrapolate across the mDAU population,” Twitter wrote.
Musk’s attempt to question Twitter employees over spam counts is just the latest in pre-trial wrangling. Twitter previously issued subpoenas seeking messages written by Musk’s friends, advisers, banks, legal team, and investors, as well as by Oracle co-founder Larry Ellison. Musk sent subpoenas to Twitter advisers JPMorgan Chase and Goldman Sachs.
If Twitter wins the case, Musk could be forced to complete the merger. He has sold $15.4 billion of Tesla shares since agreeing to buy Twitter.