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Page 1 PLAINTIFF S MOTION FOR SANCTIONS: D-1-GN-23-006883
BENJAMIN BRODY,
Plaintiff
VS.
ELON MUSK,
Defendant
§
§
§
§
§
§
§
IN DISTRICT COURT OF
TRAVIS COUNTY, TEXAS
459th DISTRICT COURT
PLAINTIFF’S MOTION FOR SANCTIONS
Out-of-state attorney Alex Spiro brazenly engaged in unauthorized practice of law by
signing and preparing Musk’s pleadings, showing up unannounced to defend Musk’s
deposition with no authority to practice law in Texas, and drafting and serving subsequent
legal demands to Plaintiff. Even worse, Spiro’s behavior in deposition was astonishingly
unprofessional, as he continually interrupted the deposition with commentary, gave
numerous improper instructions not to answer, berated opposing counsel, insulted
Plaintiff’s claims, mocked counsel’s questions, and generally acted in the most obnoxious
manner one could contemplate without crossing into parody. In doing so, he irreparably
disrupted the deposition, prevented relevant questioning relating to Plaintiff’s TCPA
response, and demonstrated his disrespect for the sanctity of these proceedings.
Spiro, a Madison Avenue celebrity lawyer, does not feel compelled to obey our rules.
As shown below, he has seriously overstepped his bounds, and sanctions should issue. 1
1
Trial courts possess the “inherent power to sanction for violations of the Disciplinary Rules.” Greene v. Young, 174 S.W.3d 291, 300 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). Where “an attorney's alleged misconduct
properly can be made the subject of a grievance,” the trial court is not “limited to referring the matter to
disciplinary authorities,” but may “use its inherent power to sanction the same conduct.” Westview Drive
Investments, LLC v. Landmark Am. Ins. Co., 522 S.W.3d 583, 616 (Tex. App.—Houston [14th Dist.] 2017, pet.
denied).
Page 1 of 26Page 2 LEGAL STANDARD
Plaintiff seeks sanctions under the Court’s inherent powers and under Rule 215.
“Texas courts have inherent judicial power that they may call upon to aid in the preservation
of their independence and integrity.” Public Util. Comm ‘n of Texas v. Coffer, 754 S.W.2d 121,
124 (Tex. 1988). Inherent power “exists to the extent necessary to deter, alleviate, and
counteract bad faith abuse of the judicial process.” Brewer v. Lennox Hearth Prods., LLC, 601
S.W.3d 704, 718 (Tex. 2020). Further, Rule 215 authorizes sanctions when a party “fails to
comply with proper discovery requests or to obey an order to provide or permit discovery,”
and such sanctions can include “an order that the matters regarding which the order was
made or any other designated facts shall be taken to be established.” Tex. R. Civ. P. 215.2(b).
FACTUAL BACKGROUND
I.
Brody’s Lawsuit.
Brody alleges that Musk posted remarks on Twitter which conveyed the defamatory
impression that Brody participated in a street brawl on behalf of a neo-Nazi group. (See
Petition, p. 19-38). On June 24, 2023, two far-right extremist groups were involved in a melee
during Portland’s Pride festival. During the brawl, two of members of the Rose City
Nationalists, a neo-Nazi group, had their masks removed. (Id., p. 19-21). The following day,
an anonymous social media user posted a photo of one of the unmasked brawlers alongside
a photo of innocent California resident Ben Brody. This user also included a screenshot of a
social media post from Brody’s fraternity stating, “After graduation, Ben plans to work for the
government.” The user claimed Brody was engaged in
Id., p. 21-22).
By the evening of June 25th, the rumor had started to spread, and over the next two
Page 2 of 26Page 3 college student who wanted to join the government. (Id., p. 22-34). On June 25th-26th, two
Twitter users showed Elon Musk the screenshots of Ben Brody along with his fraternity’s
social media message about Brody wanting to join the government, and Musk replied with
interest to their messages about Brody. (Id.).
The following morning, on June 27th, Musk tweeted a reply in which he tried to correct
a @zerohedge tweet that accused the brawler of being a member of law enforcement. Instead
of a member of law enforcement, Musk posted his conclusion that it looked like the brawler
was “a college student (who wants to join the govt)” who was engaged in “a probable false
:
Many readers of Musk’s tweet, both in the general public and among Brody’s personal
acquaintances, immediately understood that Musk’s reference about “a college student (who
wants to join the govt)” was aimed at Brody. Further, there was nothing in the @zerohedge
tweet or the linked article that discussed Ben Brody wanting to work for the government, so
Page 3 of 26Page 4 readers understood Musk must have acquired that information elsewhere. To readers of
Musk’s June 27th tweet, the statement conveyed the impression that Musk had seen
information which caused him to believe that the “college student (who wants to join the
govt),” i.e., Ben Brody, was one of the unmasked neo-Nazis, but readers could not judge the
quality or nature of his information. Thus, because Musk did not disclose the factual basis for
his opinion, his remarks were defamatory. Brody requested a retraction, Musk refused, and
Brody brought this suit for defamation per se.
II.
The Court’s Discovery Order.
!"#$%& *!#&*+
January 5, 2024. Brody responded with a Motion for Discovery. The Court granted Brody’s
Motion for Discovery on February 21, 2024. The Court ordered Musk to answer written
discovery by March 15th and to appear for deposition by April 1st on four topics, all relating
to Musk’s level of fault. The Court also reset the TCPA hearing for April 22nd.
III.
Musk’s Deposition.
Musk appeared for deposition on March 27th. Musk’s testimony was devastating to his
defense, which was almost certainly one of the causes of the misconduct discussed in this
motion. During his deposition, Musk:
2
3
x
Admitted he intended to refer to Ben Brody. 2
x
Admitted that he intended to communicate the idea that he had
seen information supporting the allegation that Ben Brody was one
of the neo-Nazi brawlers. 3
Exhibit 1, Musk Deposition, 33:11-23; 35:23-36:3. A video of the deposition will be provided to the Court.
Id. at 34:4-10.
Page 4 of 26Page 5 x
Admitted that he did not disclose the source or nature of his
information, and that readers of his tweet would have no idea what
information he was relying on for his conclusion. 4
x
Admitted that he relied solely on a pair of highly dubious tweets,
and that he acquired no other information about Brody or the neoNazi brawler. 5
x
Admitted that his source of information showed indications of
unreliability. 6
x
Admitted that he performed no investigation into the facts
whatsoever. 7
x
Admitted that he made the statement with substantial doubts
about whether it was true. 8
In sum, Musk admitted to all the material allegations in Brody’s Petition. Yet as
damaging as it was, Musk’s deposition could have gone even worse but for the obstructionist
conduct of the attorney defending the deposition. In this case, Musk has been represented by
two Texas attorneys -- Emiliano Delgado and John Bash. Both of these attorneys appeared on
Musk’s behalf at the discovery hearing. However, neither of these attorneys were present at
Musk’s deposition. Instead, and unbeknownst to Plaintiff’s counsel, out-of-state attorney
Alex Spiro showed up to the deposition with no notice. Spiro is not licensed in Texas, nor is
he admitted pro hac vice. As shown below, Spiro continually interrupted the testimony,
4
Id. at 36:20-37:13.
As the Court is likely aware, these facts render the statement defamatory. See, e.g., Restatement (Second) of
Torts § 566 (1977) (“If the defendant expresses a derogatory opinion without disclosing the facts on which it
/ /
by the existence of unexpressed defamatory facts.”). Thus, Musk’s tweet was “issued upon a concealed set of
DeLuca v. New York News Inc., 109 Misc. 2d 341,
352, 438 N.Y.S.2d 199, 206 (Sup. Ct. 1981).
5
Id. at 20:13-21:6.
Id. at 79:7-11.
7 Id. at 20:5-12; 20:25-21:2.
8 Id. at 33:24-34:3.
6
Page 5 of 26Page 6 injected his commentary in front of the witness, berated opposing counsel, gave numerous
instructions not to answer relevant questions, and generally attempted to derail an obviously
damaging deposition, all while Spiro $
As a result, the Court’s rules have been , and Brody was prevented from a full inquiry
on the issue of actual malice. 9
ARGUMENT
I.
Alex Spiro Repeatedly and Willfully Engaged in Unauthorized Practice of Law.
Under the Texas Disciplinary Rules, “a lawyer shall not practice law in a jurisdiction
where doing so violates the regulation of the legal profession in that jurisdiction.” See Tex.
Disciplinary R. Prof'l Conduct 5.05. Under the Government Code, a person may not practice
law in Texas unless they are a member of the State Bar of Texas or meets the requirements of
Supreme Court rules allowing for limited practice by attorneys licensed in another
jurisdiction. See Tex. Gov’t Code § 81.102. The Texas pro hac vice rule requires an application
to the State Bar as well as a sworn motion for admission to the trial court which must be
granted before the nonresident attorney can practice law in Texas. See Rule XV of the Rules
< * = !">!"
preparation of a pleading or other document incident to an action or special proceeding or
the management of the action or proceeding on behalf of a client before a judge in court, as
well as a service rendered out of court.” Tex. Gov’t Code § 81.101(a).
Out-of-state attorneys can enter a “valid retainer agreement” before they have “been
admitted pro hac vice,” see Shapiro, Lifschitz & Schram, P.C. v. R.E. Hazard, Jr. Ltd. Pshp., 24 F.
9
= ? argument, Brody must
still respond to the TCPA Motion as though it were genuine.
Page 6 of 26Page 7 Supp. 2d 66, 81 (D.D.C. 1998), and “[a]ctivities in contemplation of such admission are also
authorized, such as investigating facts or consulting with the client within the jurisdiction
.” Dorsey v. Home Depot U.S.A., Inc., 271 F.
Supp. 2d 726, 729 (D. Md. 2003). But out-of-state attorneys can do nothing more unless they
are admitted pro hac vice. Here, Spiro committed unauthorized practice in three ways: (1)
He prepared and signed pleadings, (2) he showed up unannounced to defend (and disrupt)
Musk’s deposition, and (3) he drafted and served subsequent legal demands on the Plaintiff.
A.
Alex Spiro committed unauthorized practice of law by preparing
and signing his name on a Texas pleading.
Despite not being authorized to practice in Texas, Alex Spiro prepared and personally
signed Musk’s TCPA Motion to Dismiss
that document. Q
#
attesting to the exhibits in the motion. These actions were unauthorized practice of law, and
this fact alone supports sanctions and denial of future pro hac vice admission in this case.
This set of facts is similar, though more egregious, than the facts of In re Autozoners,
where in the Relator’s answer, “[f]ollowing [local counsel’s] signature block, the pleading
included like information for Relator's nonresident attorneys.” In re Autozoners, LLC, 649
S.W.3d 774, 776 (Tex. App.—El Paso 2022, no pet. h.). The signature blocks for the nonresident attorneys indicated they were licensed in another state and indicated that an
“application for pro hac vice admission would be forthcoming.” Id. When that application was
later heard by the trial court, it was denied due to unauthorized practice. Id.
The facts in Autozoners were less incriminating than this case. The attorney in
Autozoners “disagreed that she had engaged in the unauthorized practice of law merely
because her name appeared in the signature block below [local counsel’s] name and
Page 7 of 26Page 8 signature.” Id at 777. Unlike Spiro, who personally signed the motion, the attorney in
Autozoners “stated that [local counsel] had prepared and signed the answer” with her name
listed underneath. Id. Nonetheless, the El Paso court rejected this argument.
The El Paso court ruled that the trial court properly found that “by appearing in the
themselves as representing Relator in the cause even before the court had actually granted
admission pro hac vice, regardless of their additional assertion of a forthcoming motion.” Id.
at 780. Thus, the trial court was held to have properly denied the pro hac vice application
based on their unauthorized practice. Id.
In reaching this ruling, the El Paso court noted that that the Dallas court of appeals
likewise found unauthorized practice “where a nonresident attorney's information was
prematurely included on a party's initial pleading before the attorneys had been properly
admitted by the courts.” Id., citing In Re Pine Tree Capital, LLC, No. 05-22-00105-CV, 2022 WL
500035, at *1 (Tex. App.-Dallas Feb. 19, 2022, orig. proceeding) (mem. op.) (denying pro hac
vice due admission due to unauthorized practice, where nonresident attorney placed his
signature block on a pleading along with those of a member of the Texas Bar before gaining
pro hac vice admission).
The El Paso court noted that other jurisdictions with the same pro hac vice rules have
reached the same conclusion. See id. at n. 1, citing Isom v. Valley Forge Ins. Co., 716 Fed.Appx.
280, 288 (5th Cir. 2017) ( $ where nonresident attorney’s name
appeared on the complaint before being granted pro hac vice admission, noting that the
denial of application was mandatory if an applicant made an appearance before securing
approval); In re Nevins, 60 V.I. 800, 803-04 (V.I. 2014) (inclusion of nonresident attorney's
Page 8 of 26Page 9 name on signature page of brief before pro hac vice petition was unauthorized practice of
law, and the fact that the words "pro hac vice application pending" appeared after the
nonresident attorney's name did not "render his conduct any less improper"); In re
Williamson, 838 So.2d 226, 235 (Miss. 2002) ( $
where
nonresident attorney's name appeared on the complaint before his pro hac vice application
was granted and warning that "attorneys are hereby noticed and cautioned that a foreign
attorney will be deemed to have made an appearance in a Mississippi lawsuit if the foreign
attorney signs the pleadings or allows his or her name to be listed on the pleadings."). These
decisions involved cases in which the attorneys’ names appeared below local counsel, and in
which they disclaimed any involvement in drafting, but their actions were still held to
constitute unauthorized practice. In this case, Spiro personally signed the TCPA motion and
gave an attestation to the exhibits.
B.
Alex Spiro next committed unauthorized practice of law by defending a
deposition in a Texas proceeding.
Unlike Autozoners, which was limited to a signature block on a pleading, Spiro’s
unauthorized practice is much worse. Spiro decided to show up unannounced to Musk’s
deposition, make an appearance as his attorney, and represent Musk during his testimony.
Plaintiff’s counsel were not informed Spiro would appear at the deposition, and none of
Musk’s Texas attorneys even attended the deposition.
As the Delaware Supreme Court observed, “one of the principal purposes of the pro
hac vice rules is to assure that” either a local lawyer or a “lawyer admitted pro hac vice” will
“be present at a deposition,” as “ [ ] Court, subject to control of the Court to
ensure the integrity of the proceeding.” Paramount Commc'ns v. Qvc Network, 637 A.2d 34, 56
(Del. 1994). Importantly, pro hac vice requirements also ensure the attorney is familiar with
Page 9 of 26Page 10 the state’s rules, procedures, and ethical standards. As such, Musk “should have been
represented at the deposition by a [Texas] lawyer or a lawyer admitted pro hac vice.” Id. at
55. Here, Plaintiff’s counsel noted that he was “very concerned” that Spiro “came to this
deposition to practice law in violation of Texas law with no pro hac admission.” 10 As shown
below, Spiro mocked these concerns.
In doing so, Spiro broke his ethical duties. “Without admission pro hac vice, out-ofstate attorneys … actively participating in pretrial proceedings such as depositions … would
be engaged in the unauthorized practice of law in this state.” In re Roswold, 249 P.3d 1199,
1208 (Kan. 2011); see also Forbes v. Hixson, 145 So. 3d 1124, 1136 (Miss. 2014) (“[P]hysically
appearing at ... a deposition ... or any other proceeding in which the attorney announces that
he or she represents a party to the lawsuit … require[s] a foreign attorney to be admitted pro
hac vice.”); see also In re Hughes, 833 N.E.2d 459, 460 (Ind. 2005) (violation of professional
conduct rule for Indiana lawyer to permit Michigan attorney to handle depositions and
mediation in Indiana case); In re York, 2010 MP 11, ¶ 2 n.3, 8 N. Mar. I. 476, 477 (“After the
Court learned of Murray's participation in the deposition [before his pro hac vice admission],
$ ^ -granted pro
hac vice status.”); Smith v. Hastings Fiber Glass Prods., No. 11-0894, 2014 U.S. Dist. LEXIS
81125, at *11-12 (W.D. La. 2014) (Noting that attorney “could not have participated in out of
court proceedings such as depositions” without “admission pro hac vice in this case … unless
he was engaged in the unauthorized practice of law.”); In re Cortigene, 13-2022 (La.
02/14/14), 144 So. 3d 915, 918-20 (Holding that non-resident attorney “engaged in the
practice of law in this state by appearing at and participating in a deposition” and that the
10
Exhibit 1, Musk Depo., 104:1-4.
Page 10 of 26Page 11 “appropriate sanction for such misconduct would be a three-year suspension” when attorney
“participated in the deposition of [client] taken in New Orleans by another party,” and
“advised [client] ‘once or twice’ to either answer or not answer a particular question,” even
though another attorney “predominantly did the questioning and the objecting.").
Yet as later discussed in Section II, below, Spiro’s unauthorized practice of law was
greatly exacerbated by his outrageous conduct throughout the deposition.
C.
Alex Spiro next committed unauthorized practice of law by drafting and
serving legal demands on counsel of record in a Texas proceeding.
On March 27, 2024, following his improper appearance at Musk’s deposition and his
unprofessional conduct therein, Spiro sent a letter to Brody’s counsel. (Ex. 3, Spiro letter).
This letter informed Brody’s counsel that an emergency motion was being prepared, and the
letter made legal demands on Brody, his attorneys, and consulting expert.
Thus, even after being confronted during the deposition about his lack of authority to
practice law in Texas, Spiro continues to engage in unauthorized practice.
II.
While Committing Unauthorized Practice, Alex Spiro Engaged in Abusive
Litigation Conduct.
A.
Spiro’s conduct in Musk’s deposition was unacceptable.
Plaintiff began the deposition with a simple question that inquired into Musk’s
subjective state of mind about his fault: “Do you think you did anything wrong to Ben Brody?”
In a bizarre and combative outburst, Spiro interrupted { chastised Brody’s
counsel, instructed his client not to answer, insisted that Brody’s counsel “just showed your
cards that this case is DOA.” 11 Following these derisive and unnecessary remarks, Plaintiff’s
counsel requested Spiro abide by Tex. R. Civ. P. 199.5. Yet Spiro refused, and almost
11
Id. at 6:25.
Page 11 of 26Page 12 immediately thereafter, Spiro decided he would interrupt questions and answer them
himself, and then berate Plaintiff’s counsel when again asked to follow the rules:
Q. Mr. Musk, I'm referring to the fact that on June 24th, 2023, as
described in the plaintiff Ben Brody's lawsuit, there was a brawl in
Oregon between right wing extremists. Were you aware that that
was the subject matter of the lawsuit?
MR. SPIRO: I don't know that that's the subject matter of the lawsuit.
I think the subject matter of the –
MR. BANKSTON: A subject matter of the lawsuit. And, Mr. Spiro, again,
your objections to questions in an oral deposition under Rule 199.5
are limited to objection; leading and objection; form, or objection;
nonresponsive. Those objections are waived if not stated as phrased.
All other objections need not be made or recorded during the oral
deposition to be raised to the court. You must not give any suggestive
or argumentative or any explanations during the deposition.
MR. SPIRO: Well, then don't say things that are misleading.
MR. BANKSTON: No. That's not -- that's why you should object to the
form of the question.
MR. SPIRO: No, no, it's not –
MR. BANKSTON: That's misleading. Mr. Spiro, you know -- Mr. Spiro -MR. SPIRO: Listen, if you want to go back and forth with me and waste
your time, you can. Go on to your next question.
MR. BANKSTON: Oh, we're going to get more time if you keep doing
this.
MR. SPIRO: No, you're not. No, you're not. Go to the judge -MR. BANKSTON: You're violating Rule 199, you're not even pro hac
admitted.
MR. SPIRO: Okay. Okay. You're just giving speeches that nobody's
listening to but you. You're just doing them for yourself.
MR. BANKSTON: Oh, they're for the record, Mr. Spiro, they're for the
court to listen to.
Page 12 of 26Page 13 MR. SPIRO: Okay. So keep -MR. BANKSTON: And I would appreciate it -- I'm going to give you an
instruction. I would appreciate it if you would abide by Rule 199.5 of
the Texas Rules - }Q&>}~> times.
MR. BANKSTON: Mr. Spiro, please do not interrupt me.
}Q&>}~> times.
MR. BANKSTON: Mr. Spiro, please do not interrupt me. I'm asking you
on the record to obey Rule 199.5. If you continue to violate Rule 199.5,
I will move for sanctions against you. So I please ask you to obey the
rules in the remainder of this deposition. 12
Regrettably, Spiro continued to act in a ridiculously unprofessional manner for the
entirety of the deposition. In fact, during his next interruption moments later, Spiro indicated
that he didn’t care about following deposition rules:
MR. SPIRO: I am going to interrupt again, and I don't really care that
rule you keep reading because it has nothing to do with –
MR. BANKSTON: I know you don't.
MR. SPIRO: Good. 13
Spiro’s outrageous conduct continued to grow more unprofessional as he grew
angrier, and the deposition was continually interrupted by his snide and ridiculous
commentary:
MR. SPIRO: This isn't like a real case. This is just some stupid -MR. BANKSTON: Mr. Spiro.
MR. SPIRO: Yeah, so --
12
13
Id. at 10:3 – 12:7.
Id. at 12:21-25.
Page 13 of 26Page 14 MR. BANKSTON: Lawyers do not -- It is not in accordance with the
Lawyer's Creed to just start making random statements about the
alleged frivolity of a case to a lawyer in a deposition. You know that's
not proper. You know that.
MR. SPIRO: Do you give these lectures in all of your depositions? 14
Spiro continued to express his indifference to the rules, and throughout the
deposition, Spiro continued to interrupt with sarcasm and mocking remarks:
x
“I'm surprised you don't know they're not proper questions.” 15
x
“Maybe just ask proper questions.” 16
x
“There's nothing about me saying that that changes what he's going
to answer. That's not how witness coaching works. I'm surprised
you don't know that.” 17
x
“Any judge reviewing this will tell you it's not a proper question.” 18
During yet another interruption, when Plaintiff’s counsel again expressed his alarm
that the deposition wasn’t being defended by a Texas lawyer, Spiro stated, “
these silly frivolous shakedown cases, I'll -- I'll keep trying to think of Texas lawyers to
bring to your deposition.” 19 Plaintiff’s counsel is not sure what the second part of this
comment meant exactly, but it was clear Spiro was engaged in scorn, as well as accusing
Plaintiff’s counsel of a fraudulent and potentially illegal “shakedown.” Spiro continued these
attempts at ridicule throughout the deposition, stating, for example:
x
“You're running out of time. I know this is your big day in the sun.
You're running out of time.” 20
14
Id. at 14:5-15.
Id. at 38:15.
16 Id. at 38:22.
17 Id. at 38:23-39:1.
18 Id. at 39:3-5.
19 Id. at 43:12-15.
20 Id. at 43:23-44:2.
15
Page 14 of 26Page 15 x
“I think this is nonsense and you know it.” 21
x
“This isn’t – this isn’t productive.” 22
x
“I don’t understand why you’re doing this. You're just wasting
everybody's time.” 23
At the end of Musk’s extraordinarily damning testimony, Spiro demanded the
. When
informed that there was no protective order in place and that parties must seek protection
under Rule 192.6 before discovery is produced, Spiro repeated his baseless
demand and angrily abandoned the Zoom call before the parties concluded the record and
before the court reporter could ask if Musk would choose to read and sign the transcript. 24
Following the deposition, Spiro wrote declarations in support of multiple “emergency
motions” attempting
These motions were frivolous. Spiro
simply did not want damaging testimony to become public knowledge.
B.
Spiro’s conduct merits sanctions under Texas law.
An identical situation was discussed by the San Antonio court in Harvest Communities.
In that case, an attorney engaged in almost identical deposition misconduct. First, the
offending attorney was “not shy to put on the record what he thought about the ability of
[opposing] counsel to ask questions.” In re Harvest Communities of Houston, Inc., 88 S.W.3d
343, 346 (Tex. App.—San Antonio 2002). That attorney characterized deposition questions
as “incredible,” “nonsense,” “an incredible waste of time,” “preposterous,” and “absurd,” as
21
Id. at 104:15.
Id. at 7:18-19.
23 Id. at 106:4-5.
24 Id. at 107:13-108:20.
22
Page 15 of 26Page 16 well as stating that “counsel had asked ‘the most preposterous questions I've seen in nearly—
in 39 years of practicing law, I've never seen anybody like you.’” Id. As the court rightly noted,
“[s]uch comments clearly are not in keeping with a lawyer's responsibilities under the Texas
Disciplinary Rules of Professional Conduct.” Id. Further, the questioning attorney in Harvest
Communities was “repeatedly interrupted by long, argumentative objections.” Id. Also, just
like here, “[r]eminders by [opposing] counsel to [the offending attorney] regarding the
applicable Rules of Civil Procedure and efforts to ensure that [the offending attorney]
complied with the rules were given short shrift.” Id. Like in this case, “[i]n a typical exchange
during the deposition, [opposing] counsel complained of [the offending attorney’s] speechmaking and reminded [him], ‘You're entitled to make the objection as to form — and then
you are to stop.’ Counsel's reminder was a fair restatement of Rule 199.5(e), but [the
offending attorney’s] response was: ‘You're not going to tell me a thing. You just keep your
mouth shut. We're through.’” Id.
Every attorney, whether authorized to practice in Texas or not, should be aware of
how to behave at a deposition. “[I]t is to be conducted in a manner that simulates the
” Soule v. RSC Equip. Rental, Inc., No. 11–
2022, 2012 WL 5060059, *2 (E.D. La. Oct. 18, 2012). Emotions may run high, voices might be
raised, but reputable attorneys do not ridicule, demean, and disrupt, all while mocking the
rules. Deviating from these standards cannot be allowed, as the D.C. federal court explained:
Behavior of the type this record reveals demeans the participants,
demeans the witnesses and demeans the very system and essence of
justice itself. It simply cannot be tolerated. A deposition is an extension
of a judicial proceeding. It should be attended and conducted with the
same sense of solemnity and the same rules of etiquette that would be
required were the parties in the courtroom itself.
Alexander v. F.B.I., 186 F.R.D. 21, 52 (D.D.C. 1998).
Page 16 of 26Page 17 As noted by the San Antonio court when faced with identical misconduct, “[t]he trial
court was well within his discretion to assess sanctions in this case, including harsh
sanctions. Such attorney misbehavior demeans the entire profession, and should be
punished.” In re Harvest Communities, 88 S.W.3d at 347; see also Paramount Commc'ns, 637
A.2d at 52 (Chastising the “lack of professionalism” and “misconduct during a deposition”
involving celebrity attorney Joe Jamail, who appeared at deposition though “not admitted pro
hac vice” while “improperly direct[ing] the witness not to answer certain questions” and
acting in a “rude, uncivil, and vulgar” manner, which the Delaware Supreme Court called “a
lesson of conduct not to be tolerated” which “cries out for relief under the trial court's rules.”).
III.
While Engaged in Unauthorized Practice, Alex Spiro Improperly Instructed
Musk Not to Answer Relevant, Non-Privileged Questions.
A.
Spiro prevented relevant questioning about Musk’s prior denial of neoNazi violence and any warnings he received.
To show actual malice, Plaintiff would need to show that when Musk made the
accusation that the neo-Nazi -op, Musk consciously
disregarded a substantial risk. Plaintiff alleges that Musk was consciously aware of the risk
his conduct posed because
a reckless series of statements in which he wrongly claimed that an act of neo-Nazi violence
was actually -op, just like this case.
On May 6, 2023, a neo-Nazi mass shooter murdered shoppers at an outlet mall in
Allen, Texas. The shooter had multiple Nazi tattoos and engaged with neo-Nazi materials
online. Just like in this case, Musk spent the days after the shooting bantering with rightwing
extremists -op and denying that the shooter
was actually a neo-Nazi. And just like in this case, Musk relied on baseless information from
Page 17 of 26Page 18 to make an absurd accusation. Plaintiff’s counsel tried to
question Musk about this experience and its impact on his state of mind a month later when
denying another act of neo-Nazi violence as a psy-op based on ridiculous rumors from
rightwing extremists. Unfortunately, Spiro shut down any inquiry before it could even begin:
Q. Do you remember just a couple of weeks before this meme in the -when the Allen, Texas, neo-Nazi shooting happened, about you using
the term psyop for that event?
MR. SPIRO: I think this is outside the court order, so I'm not going to
allow you to answer this question. You can keep going.
MR. BANKSTON: So you're going to instruct him not to answer it?
MR. SPIRO: 25
Later in the deposition, Plaintiff’s counsel revisited the topic, hoping its relevance had
become apparent over the course of the deposition. Plaintiff’s counsel told Musk:
I want to talk about if in your mind you were aware or considering any
warnings you had been given say in the past few months about the
level of care you were showing in your tweets … And during that time,
I want to ask you about some situations if people have ever voiced
concern about the level of care you were showing when tweeting
about factual events. 26
During this questioning, Plaintiff’s counsel again asked about the neo-Nazi mass
shooting on which Musk commented in the month prior to defaming Plaintiff. However, Spiro
again cut off any questioning before it could even begin:
Q. A month before the events of this case was the neo-Nazi mass
shooting in Allen, Texas?
MR. SPIRO: Look, I'm going to object again. I was going to let you do a
couple of these because it's not worth necessarily arguing about each
and every one even though I don't think it's relevant, but you're not
backdooring all this stuff in through the fourth category that the judge
25
26
Id. at 17:20-18:4.
Id. at 69:6-19.
Page 18 of 26Page 19 proposed when in the judge's instructions they very much limit the
tweets in question in this case. And so we're not going to do any more
on it. So I'm instructing Mr. Musk not to answer any more questions
about any other tweets in this case for the rest of this deposition. You
can go to the judge if you don't like that instruction.
MR. BANKSTON: Let's put it on the record that your statement is just
incorrect. The order does not limit me to the tweets in this case -MR. SPIRO: We disagree. We disagree whether -- whether the judge is
sitting here -- we would disagree whether if the judge was sitting here
would allow you to go through each and every tweet so.
MR. BANKSTON: Okay. I'm going to start over before you interrupted
me and I am going to go ahead and state what I said I need to put on
the record. Again, this is not for you; this is for the judge, right? I am
now being told that there are events that I want to talk to him about
about whether he's been given warnings about his level of care. These
are not about tweets in the case. These are about the topic of his state
of mind at the time the alleged defamatory statement was allegedly
published, and warnings he may have received in advance of that
tweet about the level of care that he was habitually showing are
clearly relevant. I've now been told I'm not going to be allowed to ask
any more questions about that. 27
When questioning Musk about his state of mind on the day he falsely denied a violent
neo-$ , Plaintiff should have been able to question
Musk about the impact of his experience one month prior in which he was widely chastised
for falsely denying the reality of a violent neo-$ . Yet
this was hardly the only subject in which Plaintiff’s counsel was prevented from inquiring.
B.
Spiro prevented relevant questioning about Musk’s use of Twitter posts
as a news source.
On the same day as Musk’s defamatory tweet, Musk also made a comment about the
difference between consuming news on Twitter versus the traditional media. Musk stated,
27
Id. at 75:16-77:3.
Page 19 of 26Page 20 "The thing about traditional news is by the time they actually publish anything, it's not news
anymore." 28 Plaintiff’s counsel initiated a line of inquiry about this statement:
Q. Traditional news takes time to publish things whereas on Twitter,
you're reading about events before the news can even cover it. Is
that right?
MR. SPIRO: What's the relevance of this question to the fourth -MR. BANKSTON: His state of mind upon the information he relied on
it and why he relied on it.
MR. SPIRO: No, I don't see that. I don't see the relevancy of that
question. Don't answer that. 29
Plaintiff’s counsel would have questioned Musk about the difference between
traditional news and Twitter, including that Musk was aware of the substantial risk of false
information from real-time anonymous sources on Twitter, and that Musk consciously
disregarded that risk in favor of “pro-free speech” views he maintains about the Twitter
platform. In sum, an exploration of Musk’s remarks about traditional news versus Twitter
would have revealed his conscious choice to value speed over accuracy despite his subjective
awareness of the risk. Musk’s tweet, which occurred on the same day as the defamatory
tweet, was a subject reasonably calculated to lead to admissible evidence about Musk’s state
of mind at the time of the defamation. Spiro’s improper instruction foreclosed any possible
inquiry in this area.
C.
Spiro prevented relevant questioning about Musk’s sources for the
defamatory statement.
“[R]ecklessness may be found where there are obvious reasons to doubt the veracity
of the informant or the accuracy of his reports.” Warner Bros. Entm't, Inc. v. Jones, 538 S.W.3d
28
29
Id. at 62:9-11.
Id. at 63:6-15.
Page 20 of 26Page 21 781, 809 (Tex. App.—Austin 2017), aff'd, 611 S.W.3d 1 (Tex. 2020). It does not matter if the
publisher claims to be ignorant of the source’s unreliability at the time of the statement. For
instance, in Warner Bros, the court found evidence of malice when the defendants did not
“dispute that no one investigated Watson to determine whether he was a credible source,”
though information suggesting his potential unreliability was publicly available. Id. at 807.
The combination of an objectively unreliable source and a subjective failure to assess
credibility creates circumstantial evidence that the truth was avoided. See id.
Here, Plaintiff sought to question Musk about his two sources, a pair of Twitter
accounts named “DrFrensor” and “MattWallace888.” As noted above, Musk acknowledged
these two Twitter accounts were his only source of information about Ben Brody. Plaintiff’s
?
30
&% { %
page on the day of the incident and whether he had seen them or found them to indicate
unreliability. Yet Musk’s attorney shut down this questioning.
Spiro instructed Musk not to answer even though Spiro understood the relevance of
the questioning, stating, “I understand your point that if he had checked he could have seen
these things.” 31 Nonetheless, Spiro stated, “We're not going to do any more hypothetical, if
you had seen these tweets,” and wouldn’t allow any more questions about these users’
. 32 Spiro insisted that, “The point has been made,” and he instructed Musk, “We're not
30
Id. at 25:24-26:14.
Id. at 81:3.
32 Id. at 80:25.
31
Page 21 of 26Page 22 doing any more questions on this.” 33 Following Spiro’s instruction, Plaintiff’s counsel made a
record of why he was asking these questions:
I'm going to go ahead and make this record again for the Court
because once again I've been shut down in the relevance area. I am
facing a situation where I must prove certain facts which may have
triggered different duties in this case. One of those is not a subjective
analysis of whether the source is reliable, but an objective analysis of
the source is reliable. And if that source is unreliable, there is arguable
basis that a defendant will have to exercise greater care and that that
could avoided
any investigation into the credibility of an unreliable person. I would
like to establish (a) whether he has seen these tweets as though he has
already said he does not know and cannot tell me what tweets from
these people he has seen. And (2) I would like to establish these
people are unreliable. I understand that you're instructing the witness
not to answer it and so I will have to add that to whatever relief we're
going to seek from the court. 34
Questions about the reliability of Musk’s sources, and whether information about
those sources would have triggered reliability concerns, were appropriate inquiries relating
to malice as described by the Austin court in Warner Bros.
D.
Spiro prevented relevant questioning about the circumstances of Musk’s
refusal to retract his statement.
Plaintiff’s counsel raised the issue of Musk’s refusal to issue a retraction. Plaintiff’s
counsel asked Musk, “Knowing right now Ben is really upset that this tweet is still up and
that he wanted there to be a retraction, how do you feel about that?” 35 Spiro would not allow
Musk to answer:
MR. SPIRO: Now to the four deposition topics, we're on I guess topic
four. We've addressed one through three. How is that relevant to four?
MR. BANKSTON: Because in Gonzalez vs. Hearst Corp., 930 S.W.2nd
275, “a refusal to print a retraction is evidence of an action after the
33
Id. at 81:4-6.
Id. at 81:25-82:22.
35 Id. at 42:6-8.
34
Page 22 of 26Page 23 publication but it can lend support to a claim that reckless disregard
or knowledge existed at the time of publication.” Similarly, in New
Times vs. Issacks, Texas Supreme Court, 2004, 146 S.W.3rd 144,
“refusal to retract an "
malice and conversely a readiness to retract, tends to negate actual
malice.” So again I'm pose my question -MR. SPIRO: Yeah, I'll look at those cases but he's not answering that
right now. I don't see the relevance. I don't think those cases -- I'm
pretty >^ review the
cases so we can respond further. 36
Contrary to Spiro’s remarks, the cases are on-point, and they are consistent with other
authority regarding a defendant’s refusal to retract. “Refusal to retract an exposed error
.” Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066,
1071 (5th Cir. 1987); MMAR Grp. v. Dow Jones & Co., 987 F. Supp. 535, 548 (S.D. Tex. 1997)
(“Under certain circumstances, however, evidence of a refusal by a publisher to retract a
statement after it has been demonstrated to him to be both false and defamatory might be
relevant in showing recklessness at the time the statement was published.”). This line of cases
originates from the Restatement of Torts on actual malice. See Restat 2d of Torts, § 580A, cmt.
d (noting that “the defendant's refusal to retract a statement after it has been demonstrated
to him to be both false and defamatory … might be relevant in showing recklessness at the
time the statement was published.”). However, not all refusals to retract are equally probative
of actual malice. As the Restatement and Texas cases emphasize, it is only “under certain
circumstances” that a refusal to retract can suggest actual malice. Some refusals to retract
are driven by ill will, spite, or disregard. Other refusals to retract are driven by a genuine
36
Id. at 42:13-43:7.
Page 23 of 26Page 24 belief in the truth of the statement. Plaintiff was denied the opportunity to fully question
Musk about those circumstances. 37
IV.
Spiro Continually Disrupted the Deposition with Interruptions and Speaking
Objections.
In Texas, an attorney must limit “objections to questions during [an] oral deposition
to ‘Objection, leading’ and ‘Objection, form.’” In re Harvest Communities, 88 S.W.3d at 346. An
attorney who consistently makes “long, argumentative objections” is not only in violation of Rule 199.5 but also the Texas Disciplinary Rules of Professional conduct. Id. at 346-47.
Here, Spiro’s obstructionist tactics, speaking objections, and interruptions all
This kind of conduct was examined in the oft-cited Abbott Labs opinion, which exhaustively
discussed the problem of deposition interruptions and speaking objections, noting they “are
an independent reason to impose sanctions.” Sec. Nat'l Bank of Sioux City, Iowa v. Abbott Labs, 299 F.R.D. 595, 609 (N.D. Iowa 2014). In Abbott Labs, “Counsel's interruptions while
defending depositions were grossly excessive,” given than “[c]ounsel’s name appears at least
92 times in the transcript of the Barrett–Reis deposition (about once per page).” Id. In Phillips
v. Manuf. Hanover Trust, 1994 WL 116078 (S.D.N.Y. Mar. 29, 1994), a lawyer was sanctioned
37
Another troubling issue should be noted for context. During his deposition, Musk was asked about a Twitter
account called @ermnmusk that he was rumored to use. (Id. at 44:11-12; see also Ex. 2, @ermnmusk account).
with tweets on this account around the time when Brody was defamed. (Id. at 45:17). Thus, information Musk
interacted with on this account near the time of the defamation could be relevant to Brody’s claims. However,
when Plaintiff’s counsel checked the account after the deposition, they discovered it had been deleted.
According to @BigTechAlert, an automated bot that tracks Twitter activity, it appears the @ermnmusk account
was deleted on or about February 21, 2024: https://twitter.com/BigTechAlert/status/1762064280961110198
This deletion is alarming because February 21, 2024 is the date of the Court’s discovery order. In other words,
after almost a year of inactivity on the account and with no recent public discussion about it, it appears Musk
chose to delete the account on the day the Court ordered discovery to go forward, which is either intentional
spoliation or an extraordinary longshot coincidence.
Page 24 of 26Page 25 when he “objected or otherwise interjected during [the examiner's] questioning of the
deponent at least 49 times though the deposition lasted only an hour and a half” in which
“approximately 60 percent of the pages of the transcript contain such interruptions.” In
Bordelon Marine, Inc. v. F/V Kenny Boy, 2011 WL 164636, 14, 999 (E.D. La. Jan. 19, 2011),
sanctioned counsel “objected or provided commentary…on 170 pages of the 360–page
transcript.”
Here, Spiro’s name appears on the transcript 170 times in a 110-page deposition, and
his numerous interruptions frequently contained commentary that coached the witness.
Through his constant interruptions and commentary, Spiro “completely shut down many
segments of the deposition, issued several instructions not to answer that were wholly
inappropriate, completely interrupted, and made objections outside of Rule 199.5.” 38 This
strategy
[ ] Counsel defended,” and it likewise
amounts to sanctionable discovery abuse. Abbott Labs, 299 F.R.D. at 606.
CONCLUSION
Due to his sense of entitlement, Spiro brazenly engaged in unauthorized practice of
law. That same sense of entitlement led to Spiro’s unprofessional behavior in deposition, as
he continually interrupted the deposition with commentary, gave numerous improper
instructions not to answer, berated opposing counsel, insulted plaintiff’s claims, mocked
counsel’s questions, and attempted to derail damaging testimony. In doing so, he disrupted
the deposition, prevented relevant questioning relating to Plaintiff’s TCPA response, and
demonstrated his disrespect for these proceedings. As such, Plaintiff asks the Court to enter
remedial sanctions under its inherent powers and Rule 215.
38
Id. at 109:9-13.
Page 25 of 26Page 26 Respectfully submitted,
FARRAR & BALL, LLP
____________________________________
MARK D. BANKSTON
State Bar No. 24071066
KYLE W. FARRAR
State Bar No. 24034828
WILLIAM R. OGDEN
State Bar No. 24073531
1117 Herkimer
Houston, TX 77008
(713) 221-8300
CERTIFICATE OF CONFERENCE
> >
Defendant is opposed to the relief sought.
____________________________________
MARK D. BANKSTON
CERTIFICATE OF SERVICE
I hereby certify that on April 8, 2024, the forgoing brief was served upon all counsel
of record via electronic service.
____________________________________
MARK D. BANKSTON
Page 26 of 26Page 27 1MBJOUJGGhT
1SPQPTFE
0SEFSPage 28 D-1-GN-23-006883
BENJAMIN BRODY,
Plaintiff
VS.
ELON MUSK,
Defendant
§
§
§
§
§
§
§
IN DISTRICT COURT OF
TRAVIS COUNTY, TEXAS
459th DISTRICT COURT
ORDER ON PLAINTIFF’S MOTION FOR SANCTIONS
On this day, the Court considered Plaintiff’s April 8, 2024 Motion for Sanctions. The
Court finds that out-of-state attorney Alex Spiro engaged in unauthorized practice of law by
signing Musk’s pleadings, showing up unannounced to defend Musk’s deposition, and
drafting and serving subsequent legal demands to Plaintiff in this case.
!# Q %
he
repeatedly interrupted the deposition with commentary, that he gave numerous improper
instructions not to answer, that he berated opposing counsel, that he insulted Plaintiff’s
claims, and that he mocked counsel’s questions.
! # disrupted the deposition, prevented relevant
questioning relating to Plaintiff’s TCPA response, and demonstrated disrespect for the
sanctity of these proceedings.
* # &% <}*! , and that
sanctions be assessed under Rule 215(b) and the Court’s inherent powers.
The Court therefore ORDERS that:
1.
Plaintiffs are awarded the reasonable value of legal services and expenses in
connection with taking the deposition of Elon Musk and bringing their Motion for Sanctions.
Page 1 of 2Page 29 2.
Plaintiffs are also awarded conditional appellate fees should this order be
unsuccessfully appealed. Any post-judgment interest on appellate attorney’s fees shall not
3.
%/ .
Pursuant to Rule 215(b), the following designated facts shall be taken to be
established for the purposes of Defendant’s TCPA Motion: ______________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________.
4.
The Court enters the following other remedies: _________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________.
5.
!#
to accomplish their purpose, including securing compliance with the relevant rules of civil
procedure, punishing violators, deterring other similarly situated attorneys from
misconduct, and remedying the prejudice to Plaintiff’s in responding to Defendant’s TCPA
Motion to Dismiss.
6.
The Court DENIES the pending application of Alex Spiro for pro hac vice
admission.
Dated ___________________________, 2024.
_____________________________________
Presiding Judge
Page 2 of 2Page 30 &YIJCJUPage 31 ·1· · · · · · · · ·CAUSE NO. D-1-GN-23-006883
·2
·3·
· ·
·4·
· ·
·5·
· ·
·6·
BENJAMIN BRODY,· · · · · · · ) IN THE DISTRICT COURT OF
· · ·Plaintiff· · · · · · · ·)
· · · · · · · · · · · · · · ·)
VS.· · · · · · · · · · · · · )· · ·TRAVIS COUNTY, TEXAS
· · · · · · · · · · · · · · ·)
ELON MUSK,· · · · · · · · · ·)
· · ·Defendant· · · · · · · ·)· · ·459TH DISTRICT COURT
·7
·8· · · · · · · ORAL AND VIDEOTAPED DEPOSITION OF
·9
10· · · · · · · · · · · · · ELON MUSK
11
12· · · · · · · · ·(VIA ZOOM VIDEOCONFERENCE)
13
14· · · · · · · · · · · MARCH 27TH, 2024
15
16· · · · · · ORAL AND VIDEOTAPED DEPOSITION OF ELON MUSK,
17· produced as a witness at the instance of the plaintiff,
18· and duly sworn, was taken in the above styled and
19· numbered cause on MARCH 27TH, 2024, from 1:05 p.m. to
20· 3:19 p.m., before Deborah Tidwell, Certified Shorthand
21· Reporter in and for the State of Texas, reported by Zoom
22· Videoconference, and stenographic means pursuant to the
23· Texas Rules of Civil Procedure and the provisions stated
24· on the record or attached hereto.
25Page 32 Musk, Elon
03-27-2024
2
•1• • • • • • • • • • A P P E A R A N C E S
•2
•3• FOR THE PLAINTIFF:
•4• Mark D. Bankston, Esquire and
• • William R. Ogden, Esquire
•5• FARRAR & BALL, LLP
• • 1117 Herkimer
•6• Houston, Texas 77008
• • Telephone:• 713.221.8300
•7• E-Mail:• Mark@fbtrial.com
•8• FOR THE DEFENDANT:
•9• Alex Sprio, Esquire
• • QUINN EMANUEL URQUHART & SULLIVAN, LLP
10• 52 Madison Avenue, 22nd Floor
• • New York, New York 10010
11• Telephone:• 212.849.7000
• • E-Mail:• alexspiro@quinnemanuel.com
12
13• ALSO PRESENT:
14• A.J. Grant, Farrar & Ball, LLP
15
16• VIDEOGRAPHER:
17• Robie Rowley
18
19
20
21
22
23
24
25
www.res-ipsa.com
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03-27-2024
3
•1• • • • • • • • • • • • • I N D E X
•2• • • • • • • • • • • • • • • • • • • • • • • • • PAGE
•3• Appearances...................................• • 2
•4• Stipulations..................................• • 4
•5• Witness: ELON MUSK
• • • • • • •Examination by Mr. Bankson...........• • 5
•6
•7• Witness Changes and/or Amendments Page........• 112
•8• Witness Signature Page........................• 113
•9• Reporter’s Certificate Page...................• 114
10
11• • • • • • • • • • • E X H I B I T S
12• EXHIBIT 1 - 6-24-23 Musk Psyop Tweet..........• •12
13• EXHIBIT 2 - 6-25-23 Musk sees Dr. Frensor
• • Tweet.........................................• •21
14
• • EXHIBIT 3 - 6-26-23 Musk Replies to Wallace
15• About Brody...................................• •26
16• EXHIBIT 4 - 6-27-24 Musk Reply to Zero Hedge..• •28
17• EXHIBIT 5 - Tab W - Musk Quote 1..............• •55
18• EXHIBIT 6 - Tab X - Musk Quote 2..............• •58
19• EXHIBIT 7 - Tab Y - Musk Quote 3..............• •59
20• EXHIBIT 8 - Tab Z - Musk Quote 4..............• •71
21• EXHIBIT 9 - Tab M - 6-25-23 UN Antisemetic
• • Meme..........................................• •78
22
• • EXHIBIT 10 - 6-25-23 Dr. Frensor Obamas
23• Transphobia...................................• •79
24• EXHIBIT 11 - Tab I - 1-20-24 Patriot Front 1..• •83
25• EXHIBIT 12 - Tab J - 1-20-24 Patriot Front 2..• •86
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03-27-2024
4
•1• • • • • • THE VIDEOGRAPHER:• We are on the record.
•2• Today’s date is March 27th, 2024, and the time is 1:05
•3• p.m.• This is the remote video-recorded deposition of
•4• Elon Musk.• This deposition is being conducted remotely
•5• with the witness and all parties in their preferred
•6• respective locations.• It is agreed and stipulated that
•7• all parties waive any objection to the physical location
•8• of the presiding officer at the time the oath is
•9• administered.
10• At this time will all attorneys in attendance please
11• state their appearance and who they represent for the
12• record, beginning with the attorney taking this
13• deposition.
14• • • • • • • • MR. BANKSTON:• Mark Bankston, Farrar &
15• Ball, representing the plaintiff, Ben Brody.
16• • • • • • • • MR. SPIRO:• And I guess that’s then to me,
17• Alex Spiro on behalf of Mr. Musk.
18• • • • • • • • THE VIDEOGRAPHER:• Will the court reporter
19• please swear in the witness.
20
21
22
23
24
25
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YVer1fPage 35 Musk, Elon
03-27-2024
5
•1• • • • • • • • • • • • •ELON MUSK,
•2• having first been duly sworn to testify the truth, the
•3• whole truth and nothing but the truth, testified as
•4• follows:
•5• • • • • • • • • • DIRECT EXAMINATION
•6• MR. BANKSTON:
•7• • • •Q.• Hi, Mr. Musk.• Can you hear me okay?
•8• • • •A.• I can.
•9• • • •Q.• Okay.• Do you think you did anything wrong to
10• Ben Brody?
11• • • • • • • • MR. SPIRO:• Okay.• This isn’t a question
12• you’re allowed to ask by the Court, so we’re not going
13• to do this, Mark, or this deposition is going to be over
14• before it starts.
15• • • • • • • • MR. BANKSTON:• I’m asking about his state
16• of mind.
17• • • • • • • • MR. SPIRO:• No, no, no.
18• • • • • • • • MR. BANKSTON:• Yes, I am.
19• • • • • • • • MR. SPIRO:• No.• You’re not going to ask -20• you’re not going to ask questions like that.• It doesn’t
21• have -22• • • • • • • • MR. BANKSTON:• I’m going to ask -23• • • • • • • • MR. SPIRO:• No, you’re not or you can go
24• see the judge.
25• • • • • • • • MR. BANKSTON:• Let me read something for
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YVer1fPage 36 Musk, Elon
03-27-2024
6
•1• the record, all right.• As you know, as the Court told
•2• you in Unsworth vs. Musk, the defendant’s subsequent
•3• conduct can be relevant to his state of mind at the time
•4• of the alleged defamation.
•5• • • • • • • • And as they say in Warner Brothers, actual
•6• malice may be inferred from the defendant’s acts, words
•7• before, at, or after the defamation.
•8• • • • • • • • And if he’s sitting here today and he has
•9• opinions about whether he did something wrong, that is
10• relevant to the state of mind at the time that he made
11• the statements.• Of course I can ask him do you think
12• you committed actual malice, do you think you were
13• reckless.• Of course I can ask those questions.• And,
14• yeah, we’ll go to the Court over that.
15• • • • • • • • MR. SPIRO:• You didn’t ask if he committed
16• actual malice.• Obviously -17• • • • • • • • MR. BANKSTON:• I didn’t.• I asked something
18• that was very relevant to that.• I’d like to get him
19• talking about things that he did wrong -20• • • • • • • • MR. SPIRO:• But that’s the point.• That’s
21• not what you’re allowed to do in this deposition.• You
22• can’t just get him talking.
23• • • • • • • • MR. BANKSTON:• I disagree -24• • • • • • • • MR. SPIRO:• You just showed your cards that
25• this case is DOA and you can’t just get him talking as
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YVer1fPage 37 Musk, Elon
03-27-2024
7
•1• you just put it.
•2• • • • • • • • So you’ve got four bullets -•3• • • • • • • • MR. BANKSTON:• Yes, I can.• Alex -- Alex -•4• • • • • • • • MR. SPIRO:• -- one, two, three, and four.
•5• • • • • • • • MR. BANKSTON:• Alex -•6• • • • • • • • MR. SPIRO:• You’ve got one, two, three and
•7• four -•8• • • • • • • • MR. BANKSTON:• All right.• Hold on a
•9• second.
10• • • • • • • • MR. SPIRO:• -- so if you want to ask him
11• those bullets, you can go through those bullets and ask
12• him.
13• • • • • • • • THE REPORTER:• One at a time, please.
14• • • • • • • • MR. BANKSTON:• Yeah, let’s go ahead and
15• take a breath, Alex.• First of all, I know you’re not a
16• Texas attorney.• I know you don’t know Rule 199.5,
17• right?• I know you’re not even pro hac in this case -18• • • • • • • • MR. SPIRO:• This isn’t -- this isn’t
19• productive.• You want to go ask another question, go ask
20• another question.• You’re lecturing -21• • • • • • • • MR. BANKSTON:• Are you instructing him not
22• to answer?
23• • • • • • • • MR. SPIRO:• You can try to ask the question
24• again and I’ll listen to it again.
25• • • • • • • • MR. BANKSTON:• Are you going to instruct
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YVer1fPage 38 Musk, Elon
03-27-2024
8
•1• him not to answer?
•2• • • • • • • • MR. SPIRO:• I don’t know.• I’ll hear the
•3• question and tell you.
•4• • • • • • • • MR. BANKSTON:• Okay.• Mr. Musk, do you
•5• think you did anything wrong to Ben Brody?
•6• • • • • • • • MR. SPIRO:• Did anything wrong to Ben
•7• Brody?• Okay.• You can ask that question.
•8• • • •A.• I don’t know Ben Body.
•9• • • •Q.• (BY MR. BANKSTON) You’re aware Ben Brody is
10• somebody who’s sued you, right?
11• • • •A.• I -- I think you’re the one suing.
12• • • •Q.• Actually, Mr. Musk, I’m an attorney.• Did you
13• know that?• I’m an attorney representing Mr. Brody.
14• • • •A.• Yes, but many times I found that the actual
15• plaintiff is the attorney.
16• • • •Q.• Okay.• But that’s just an assumption you’re
17• making, right?• Like you don’t know anything about Ben
18• Brody?
19• • • •A.• I don’t.
20• • • •Q.• Okay.• You understand Ben Brody has filed a
21• lawsuit against you?
22• • • •A.• I -- in my opinion, you’re the one filing the
23• lawsuit.
24• • • •Q.• Okay.• You understand -- let’s try to make this
25• an easier way.
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•1• • • • • • • • You understand that there’s a piece of
•2• paper on which there’s a lawsuit written.• And at the
•3• top of the lawsuit it says Ben Brody, plaintiff, versus
•4• Elon Musk, defendant; do you understand that?
•5• • • •A.• I understand that but I view many cases and
•6• probably this one too that the real plaintiff is the
•7• lawyer seeking money like you.
•8• • • •Q.• Okay.• I’d like to know though, are you aware
•9• that there’s a piece of paper that has a lawsuit on it
10• that says Ben Brody vs. Elon Musk?• That’s actually what
11• I’m wanting to know.
12• • • •A.• Yes.
13• • • •Q.• Okay.
14• • • •A.• Technically.
15• • • •Q.• Do you feel like you have an understanding of
16• what that lawsuit alleges you did wrong?
17• • • •A.• I -- I have a limited understanding of that -18• of what the lawsuit is about.
19• • • •Q.• Okay.• Let’s start -20• • • •A.• My -- what I want to think it’s really about is
21• about you getting a lot of money.
22• • • •Q.• Okay.• All right.• Let’s start with the
23• incident that this lawsuit is based on.• You understand
24• that this case involves a brawl in Oregon between some
25• right-wing extremists?
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•1• • • •A.• I -- I don’t know much about -- you’re
•2• referring to a handful of posts on the X platform?
•3• • • •Q.• No.• Actually, Mr. Musk, I’m referring to the
•4• fact that on June 24th, 2023, as described in plaintiff,
•5• Ben Brody’s lawsuit, there was a brawl in Oregon between
•6• right-wing extremists.• Were you aware that that was the
•7• subject matter of the lawsuit?
•8• • • • • • • • MR. SPIRO:• I don’t know if that’s the
•9• subject matter of the lawsuit.• I think the subject
10• matter of the -11• • • • • • • • MR. BANKSTON:• A subject matter of the
12• lawsuit.• And, Mr. Spiro, again, your objections to
13• questions in an oral deposition under Rule 195 are
14• limited to objection; leading and objection; form, or
15• objection; nonresponsive.
16• • • • • • • • Those objections are waived if not stated
17• as phrased.• All other objections need not be made or
18• recorded during the oral deposition to be raised to the
19• Court.• You must not give any suggestive or
20• argumentative or any explanations during the deposition.
21• • • • • • • • MR. SPIRO:• Well, then don’t say things
22• that are misleading and I won’t -23• • • • • • • • MR. BANKSTON:• No.• That’s not -- that’s
24• why you should object to the form of the question.
25• • • • • • • • MR. SPIRO:• No, no, it’s not -www.res-ipsa.com
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•1• • • • • • • • MR. BANKSTON:• That’s misleading.• Mr.
•2• Spiro, you know -- Mr. Spiro -•3• • • • • • • • MR. SPIRO:• Listen, if you want to go back
•4• and forth with me and waste your time, you can.• Go on
•5• to your next question.
•6• • • • • • • • MR. BANKSTON:• Oh, we’re going to get more
•7• time if you keep doing this.
•8• • • • • • • • MR. SPIRO:• No, you’re not.• No, you’re
•9• not.• Go to the judge -10• • • • • • • • MR. BANKSTON:• You’re violating Rule 199,
11• you’re not even pro hac admitted.
12• • • • • • • • MR. SPIRO:• Okay.• Okay.• You’re just
13• giving speeches that nobody’s listening to but you.
14• You’re just doing them for yourself.
15• • • • • • • • MR. BANKSTON:• Oh, they’re for the record.
16• Mr. Spiro, they’re for the Court to listen to.
17• • • • • • • • MR. SPIRO:• Okay.• So keep -18• • • • • • • • MR. BANKSTON:• And I would appreciate it -19• I’m going to give you an instruction.• I would
20• appreciate it if you would abide by Rule 199.5 of the
21• Texas Rules -22• • • • • • • • MR. SPIRO:• I heard you the first three
23• times.
24• • • • • • • • MR. BANKSTON:• Mr. Spiro, please do not
25• interrupt me.
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•1• • • • • • • • MR. SPIRO:• I heard you the first three
•2• times.
•3• • • • • • • • MR. BANKSTON:• Mr. Spiro, please do not
•4• interrupt me.• I’m asking you on the record to obey Rule
•5• 199.5.• If you continue to violate Rule 199.5, I will
•6• move for sanctions against you.• So I please ask you to
•7• obey the rules in the remainder of this deposition.
•8• • • • • • •(EXHIBIT 1 ENTERED INTO THE RECORD)
•9• • • •Q.• (BY MR. BANKSTON) Mr. Musk, I want to show you
10• a tweet that you posted on the day of the brawl, which
11• is June 24th, 2023.• Can we bring up Tab A?
12• • • • • • • • We’re going to mark this as Exhibit 1.• Mr.
13• Musk, this is a meme that you shared about psyops,
14• correct?
15• • • •A.• Yes.• It’s a joke.
16• • • •Q.• A psyop is a psychological operation, right?
17• • • •A.• It’s -- yes, I believe that is what it refers
18• to, yes.
19• • • •Q.• Okay.• And this meme jokes that there are
20• almost daily psyops -21• • • • • • • • MR. SPIRO:• I am going to interrupt again,
22• and I don’t really care that rule that you keep reading
23• because it has nothing to do with -24• • • • • • • • MR. BANKSTON:• I know you don’t -25• • • • • • • • MR. SPIRO:• Good.• The Court -www.res-ipsa.com
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•1• • • • • • • • THE WITNESS:• -- to the judge.
•2• • • • • • • • MR. SPIRO:• How is this relevant to the
•3• court order?
•4• • • • • • • • MR. BANKSTON:• Because I’m getting to -•5• • • • • • • • MR. SPIRO:• This isn’t a regular deposition
•6• -•7• • • • • • • • MR. BANKSTON:• Mr. Spiro -•8• • • • • • • • MR. SPIRO:• Now I’m talking so don’t
•9• interrupt me.• How is -- this is a deposition governed
10• by a limited court order -11• • • • • • • • MR. BANKSTON:• Correct.
12• • • • • • • • MR. SPIRO:• -- because he gave you a
13• limited court order on this case, so I have every right
14• to ask and to stop -- I’m not going to just let you do
15• two hours about Mr. Musk’s upbringing.
16• • • • • • • • How is this tweet that is nothing -- that
17• is not a tweet in this case, how is this relevant under
18• the Court’s order?
19• • • • • • • • MR. BANKSTON:• This is very much -- Mr.
20• Spiro, I don’t know if you were listening to me.• This
21• is what he posted on the day of the brawl, and this case
22• is about whether this brawl was being accused to be a
23• psyop.• This is absolutely relevant to his state of mind
24• on -- when he calls this brawl a psyop.
25• • • • • • • • I’m really -- Mr. Spiro, I really have to
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•1• ask you to please get yourself up to speed on the facts
•2• of this case.• I’m definitely going to ask him -•3• • • • • • • • MR. SPIRO:• Again, this isn’t a real -- you
•4• keep lecturing me like get up to speed on the facts of
•5• this case.• This isn’t like a real case.• This is just
•6• some stupid -•7• • • • • • • • MR. BANKSTON:• Mr. Spiro.
•8• • • • • • • • MR. SPIRO:• Yeah, so -•9• • • • • • • • MR. BANKSTON:• Lawyers do not -- it is not
10• in accordance with the lawyer’s creed to just start
11• making random statements about the alleged frivolity of
12• a case to another lawyer in a deposition.• You know
13• that’s not proper.• You know that.
14• • • • • • • • MR. SPIRO:• Do you give these lectures at
15• all of your depositions?
16• • • • • • • • MR. BANKSTON:• I do and you can watch them.
17• • • • • • • • MR. SPIRO:• In any event, this is not -18• this is not a tweet that’s alleged -- if you’re alleging
19• that this tweet is directly related to the brawl, ask -20• • • • • • • • MR. BANKSTON:• That’s what I’m asking him,
21• Mr. Spiro.
22• • • • • • • • MR. SPIRO:• Oh, okay.• Is there some code
23• in Texas that you don’t yell and raise your voice in
24• depositions?
25• • • • • • • • THE WITNESS:• Why are you yelling?• Calm
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•1• yourself.
•2• • • • • • • • MR. SPIRO:• Yeah, why are you yelling?
•3• • • • • • • • THE WITNESS:• Calm yourself.• Calm
•4• yourself.
•5• • • • • • • • MR. BANKSTON:• I’m very, very disturbed by
•6• what you’re doing.
•7• • • • • • • • THE WITNESS:• You’re yelling at everyone.
•8• • • • • • • • MR. BANKSTON:• I’m very disturbed that
•9• you’re instructing the witness -10• • • • • • • • THE WITNESS:• I mean, show some decorum.
11• • • • • • • • MR. SPIRO:• I’m not instructing the
12• witness.• I’m not instructing the question.• Ask your
13• question.
14• • • • • • • • MR. BANKSTON:• Okay.• Now that I’ve got you
15• up to speed, I can ask my question?
16• • • • • • • • MR. SPIRO:• Yeah, I asked you for the
17• relevance of how this relates to the court order.• You
18• gave me an answer.• I’m not preventing him from
19• answering, so ask your question.
20• • • • • • • • MR. BANKSTON:• All right.• Let’s keep
21• moving.
22• • • • • • • • Mr. Musk, this meme -- the question that I
23• had, was this meme jokes that there are almost daily
24• psyops, correct?
25• • • •A.• This is a joke about psyops.
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•1• • • •Q.• (BY MR. BANKSTON) Okay.• But psyops for you are
•2• not always a laughing matter, right?
•3• • • •A.• I mean, I don’t -- I don’t think there are
•4• actually daily psyops.• This is -•5• • • •Q.• No, I get that.• I understand -•6• • • •A.• -- a tin foil hat -•7• • • •Q.• Right.• I get this is a joke.• I understand
•8• that.
•9• • • •A.• It’s a joke obviously -10• • • •Q.• What I’m asking though -11• • • •A.• -- if somebody puts -- may I finish?
12• • • •Q.• Sure.
13• • • •A.• Do you feel you need to yell again?
14• • • •Q.• I might.
15• • • •A.• Yeah.• I’ve rarely met a lawyer with less
16• decorum than you, if you could be called a lawyer.
17• • • • • • • • So this is a joke.• Obviously -18• • • •Q.• Right.
19• • • •A.• -- this is just a kitten with a tin foil hat.
20• • • •Q.• Uh-huh.
21• • • •A.• And, in fact, it is making fun of the fact that
22• there are -- people claim psyops when often there is not
23• a psyop.
24• • • •Q.• Okay.• But what I want to ask you about is for
25• you, this is a joke, but there are other times in which
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•1• for you, psyops are not a joke?
•2• • • •A.• I think the vast majority of time people think
•3• there’s a psyop and there is not a psyop.
•4• • • •Q.• Okay.• That’s -- okay.• But let’s talk about -•5• let’s talk about that tin foil hat for a second.• I want
•6• to try to get to the symbolism of that, all right?
•7• • • • • • • • And if I’m -- tell me if I’m summarizing
•8• this joke correctly:• That the idea of something being a
•9• psyop might be -- sound a little crazy, but sometimes
10• you see evidence or facts that make you think there is a
11• psyop.• And, wow, that makes you want to put on a tin
12• foil hat like the conspiracy people do.• That’s kind of
13• the joke there?• Am I interpreting that correctly?
14• • • •A.• No.
15• • • •Q.• Okay.• So let me pull it back a little bit.
16• Would you agree with me that the idea that any given
17• event is a psyop is something that is improbable but not
18• impossible?
19• • • •A.• Yes.
20• • • •Q.• Okay.• Do you remember just a couple of weeks
21• before this meme in the -- when the Allen, Texas,
22• neo-Nazi shooting happened, about you using the term
23• "psyop" for that event?
24• • • • • • • • MR. SPIRO:• I’m -- I think this is outside
25• the court order, so I’m not going to allow you to answer
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•1• this question.• You can keep going.
•2• • • • • • • • MR. BANKSTON:• So you’re going to instruct
•3• him not to answer it?
•4• • • • • • • • MR. SPIRO:• You heard me the first time.
•5• • • • • • • • MR. BANKSTON:• I didn’t -- I’m not sure
•6• what that meant actually.
•7• • • • • • • • MR. SPIRO:• He’s -- he’s not answering that
•8• question.• You’re on I think what the judge -- the judge
•9• would maybe let you ask some of the questions you’re
10• asking, maybe.• There’s no chance in my view that the
11• judge would have let you go back two weeks to some other
12• incident.• I don’t think that’s what the judge intended.
13• • • • • • • • MR. BANKSTON:• Mr. Spiro, I just need your
14• instruction.• I don’t need your comments.
15• • • • • • • • MR. SPIRO:• Yeah, I gave my instruction and
16• then you started talking so I’m responding.
17• • • • • • • • MR. BANKSTON:• Okay.• All I said is -18• • • • • • • • MR. SPIRO:• And I’ll make whatever record I
19• want to make, okay?
20• • • • • • • • MR. BANKSTON:• Please do.
21• • • • • • • • Mr. Musk, are you going to obey -- you’re
22• going to abide by your counsel’s instruction not to
23• answer that question?
24• • • •A.• It sounds like it’s outside the judge’s
25• instructions.
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•1• • • •Q.• (BY MR. BANKSTON) So "yes"?
•2• • • •A.• Yes.
•3• • • •Q.• Okay.• A false flag, that’s a type of psyop?
•4• • • •A.• I’m no expert on psyops, but, yes, that would
•5• be a type of psyop I believe.
•6• • • •Q.• Okay.• Now, a false flag, for people who may
•7• not understand that term, that’s a form of deception,
•8• right?
•9• • • •A.• Yes.
10• • • •Q.• In other words, a false flag requires
11• dishonesty, you’re falsely portraying something?
12• • • •A.• I believe it’s in the name.• If it’s not a true
13• flag, it would be a false flag.
14• • • •Q.• Correct.• Okay.• Thank you, Mr. Musk.• Let’s
15• talk a little bit about your tweets about the brawl.
16• • • • • • • • So, okay, as far as what your understanding
17• of this suit is, do you understand that this lawsuit
18• takes issue with a tweet that you posted on June 27th?
19• • • •A.• I don’t quote exactly, but that sounds correct.
20• • • •Q.• Can I ask you, have you read the lawsuit?
21• • • •A.• I’ve read a summary of the lawsuit.
22• • • •Q.• A summary of the lawsuit?
23• • • •A.• Yes.
24• • • •Q.• Okay.• All right.• Let’s see what we can do
25• here.• You do understand that on the previous two dates,
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•1• June 25th and June 26th, you interacted with two tweets
•2• about one of the unmasked brawlers in that brawl?
•3• • • •A.• That is -- that is what I have read in the
•4• lawsuit, yeah.
•5• • • •Q.• Okay.• We’re going to talk about those tweets,
•6• but first I want to verify:• You were ordered to answer
•7• some discovery, and it appears from your answers that
•8• before your tweet on June 27th, you did not do any
•9• searches on Twitter or any web searches like on a search
10• engine for information about the identity of this
11• unmasked brawler; is that correct?
12• • • •A.• That’s correct.
13• • • •Q.• Okay.• Would it be fair for me to say that
14• other than the tweets that you interacted with, you did
15• not secure other information about this unmasked
16• brawler?
17• • • •A.• I don’t recall securing other information.
18• • • •Q.• In other words, you didn’t get any information
19• by text or email or any other sort of communication with
20• anybody else about the brawler?
21• • • •A.• I don’t recall.• Not that I -- not that I
22• recall, no.
23• • • •Q.• Okay.• And did you ask anybody to go get you -24• let me start that again.
25• • • • • • • • Did you ask anyone to go get you any
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•1• information on this unmasked brawler?
•2• • • •A.• No.
•3• • • •Q.• Okay.• So it’d be fair to say that the
•4• information that you acquired about the brawler was from
•5• the tweets that you interacted with?
•6• • • •A.• Correct.
•7• • • • • • •(EXHIBIT 2 ENTERED INTO THE RECORD)
•8• • • •Q.• (BY MR. BANKSTON) Okay.• I want to talk about
•9• those tweets right now.• So we’re going to pull up Tab B
10• and we’ll mark this as Exhibit 2.
11• • • • • • • • All right.• Mr. Musk, on your screen, are
12• you able to read that or do I need to zoom in a little
13• bit?
14• • • •A.• It’s small, but I’m able to read it.
15• • • •Q.• Okay.• So you’ll see -- I’m going to kind of go
16• through it and we’ll go through it tweet by tweet so
17• that we can read it together.• You’ll see the first is a
18• post from a suspended account so we can’t see it, right?
19• • • •A.• Correct.
20• • • •Q.• And then the second is your tweet and you asked
21• who were the unmasked individuals, right?
22• • • •A.• Yes.
23• • • •Q.• And then an account called AcceptDoge tells you
24• -- and I think there’s a typo, but it’s "here’s one of
25• them"?
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•1• • • •A.• Yes.
•2• • • •Q.• Does that look right to you?
•3• • • •A.• Yes.
•4• • • •Q.• Okay.• And then there’s a tweet from a Dr.
•5• Frensor, and it says, "OMFG, they are so busted. A
•6• member of Patriot Front is actually a political science
•7• student at a liberal school on a career path towards the
•8• feds"; do you see that?
•9• • • •A.• Yes.
10• • • •Q.• Okay.• And then you’ll see that there are two
11• images from the brawl in Portland that day along with
12• two screenshots from Ben Brody’s social media
13• information.• Do you see their pictures of Ben Brody and
14• the information about him?
15• • • •A.• You need to zoom in, I think.
16• • • • • • • • MR. BANKSTON:• A.J., can you zoom in on the
17• part there with the Ben Brody pictures?
18• • • • • • • • THE WITNESS:• Yeah, I see it.
19• • • •Q.• (BY MR. BANKSTON) Okay.• So you now see that we
20• have pictures from the brawl as well as pictures showing
21• and describing Ben Brody, correct?
22• • • •A.• Yes.
23• • • •Q.• Okay.• And then scroll down, your response to
24• that we have -- it just says, "very odd," correct?
25• • • •A.• Yes.
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•1• • • •Q.• Okay.• This was the first time you became aware
•2• of this allegation about Ben Brody?
•3• • • •A.• I think so.
•4• • • •Q.• Okay.• On the quote tweet of Dr. Frensor -- can
•5• you scroll up just a little bit?• Okay.• On this quote
•6• tweet, do you see how it says -- we can see that it’s
•7• part of a thread because it says, "Replying to Dr.
•8• Frensor."• Do you see where that is?
•9• • • •A.• Yes.
10• • • •Q.• Okay.• And then do you see below the text it
11• says "Show more," right?
12• • • •A.• Yes.
13• • • •Q.• Do you know if you clicked on the Dr. Frensor
14• tweet and read any of the other tweets in that thread?
15• • • •A.• I -- I don’t recall doing so.
16• • • •Q.• And do you know if you clicked on Dr. Frensor’s
17• profile to bring up their timeline and bio?
18• • • •A.• Not that I recall.
19• • • •Q.• Okay.• And if you didn’t do that, there was no
20• way for you to assess this person’s credibility, right?
21• • • •A.• I wasn’t trying to assess their credibility.
22• • • •Q.• I’m not asking if you were trying to. I
23• actually don’t think you were at all.• But I’m asking
24• you, the only method that you had in front of you right
25• here to assess credibility to learn anything about this
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•1• person was to click on their profile, right?• There was
•2• no information about them in this tweet?
•3• • • •A.• I don’t think clicking on someone’s profile is
•4• an effective way of assessing their credibility.
•5• • • •Q.• Well, couldn’t you click on their profile and
•6• take a quick look at their timeline and see if the
•7• things that they had been saying were things that might
•8• give red flags about reliability?• Isn’t that something
•9• you could do?
10• • • •A.• Possibly, and that’s sort of not a very
11• reliable way.
12• • • •Q.• Sure.• But I’m asking that is something you
13• could do.• If, for instance, let’s say you clicked on
14• Dr. Frensor’s account and you saw that they were
15• tweeting a bunch of really wacky, obviously false
16• things.• That might give someone pause about whether
17• this person was reliable, correct?
18• • • •A.• Yeah, you’d say that perhaps that would affect
19• things.
20• • • •Q.• Do you know -21• • • •A.• It is possible for people who are -- nobody’s
22• right all the time.• Nobody’s wrong all the time -23• • • •Q.• Sure.
24• • • •A.• -- so it’s possible for some people to -- you
25• know, like once in a while, a conspiracy theorist is
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•1• going to be right.
•2• • • •Q.• Yeah, yeah, somebody who’s really, really
•3• unreliable most of the time could be right some of the
•4• time, right?
•5• • • •A.• Yes.• And people who are -- and people who are
•6• reliable, could be wrong some of the time.
•7• • • •Q.• And so, in other words, somebody who’s
•8• unreliable, if you did some homework and checking, you
•9• might actually discover, hey, this unreliable person is
10• correct, right?
11• • • • • • • • MR. SPIRO:• Objection to form.
12• • • •A.• I think everyone is wrong to some degree and
13• everyone is right -- usually right to some degree.
14• • • •Q.• (BY MR. BANKSTON) Do you know -15• • • • • • • • MR. SPIRO:• Mark, Mark, you’ve got to let
16• him answer the questions.• You’re cutting him off at the
17• end of every -- every answer.
18• • • • • • • • MR. BANKSTON:• Mr. Musk, do you have
19• anything else you want to add?
20• • • •A.• I was saying that even if somebody is wrong
21• most of the time, they will still be right some of the
22• time, and if somebody is right most of the time, they
23• will be wrong some of the time.
24• • • •Q.• (BY MR. BANKSTON) Agreed.• Do you know if you
25• saw any other tweets from Dr. Frensor that day or in the
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•1• few days before that?
•2• • • •A.• I don’t know Dr. Frensor or that account.
•3• • • •Q.• Do you -- I’m saying so you don’t know if you
•4• saw tweets from them or not either that day or in the
•5• days prior?
•6• • • •A.• I don’t think I did.
•7• • • •Q.• Okay.• I mean, I’m asking you have you -- do
•8• you know?• Did you go and check, do you know, or is that
•9• still an open question?
10• • • •A.• I don’t -- I don’t recall looking at Dr.
11• Frensor’s account.
12• • • •Q.• There is a possibility you have seen tweets
13• from Dr. Frensor before?
14• • • •A.• It’s possible, yeah.
15• • • • • • •(EXHIBIT 3 ENTERED INTO THE RECORD)
16• • • •Q.• (BY MR. BANKSTON) Okay.• Let’s talk about the
17• second tweet that you interacted with, okay?• So let’s
18• go ahead and bring up Tab C and we’ll mark this as
19• Exhibit 3.
20• • • • • • • • So here we see, this is the following day,
21• June 26th, and as you see, your tweet at the bottom was
22• at 5:34 a.m., okay?• So we’re now on the second day,
23• June 26th.• You’ll see at the top there’s a tweet from
24• Matt Wallace 888, okay?• And that tweet reads, "Remember
25• when they called us conspiracy theorists for saying the
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•1• feds were planting fake Nazis at rallies?"• And then it
•2• has a crying laughing emoji; do you see that?
•3• • • •A.• Uh-huh.
•4• • • •Q.• Okay.• And then in the tweet we see the same
•5• pictures that we saw in the Dr. Frensor tweet, correct?
•6• • • •A.• They look like the same pictures.
•7• • • •Q.• Yeah, it’s the same set of images that Dr.
•8• Frensor had attached to their tweet, right?
•9• • • •A.• They look like the same images.
10• • • •Q.• And then you replied, "Always remove their
11• masks," correct?
12• • • •A.• Yes, I think we want to shine a light on
13• whoever’s doing these things.
14• • • •Q.• Okay.• All right.• So I want to move past these
15• two tweets that you saw on June 25th and June 26th.• And
16• now I want to move to June 27th, which this is the date
17• that the lawsuit focuses on, the tweet that it takes
18• issue with, all right?
19• • • • • • • • So on June 27th, you understood there was
20• an existing allegation you had seen on Twitter about
21• this Ben Brody person, the college student who wanted to
22• join the government?
23• • • •A.• I’m sorry.• Are you going to show this -24• • • •Q.• No.• I’m asking you a question actually so
25• listen again and I’ll ask it again, okay?
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•1• • • • • • • • On June 27th, you understood there was an
•2• existing allegation you had seen on Twitter about this
•3• Ben Brody person, this college student who wanted to
•4• join the government, correct?
•5• • • •A.• I guess I would have been aware at the time
•6• that there were some posts the prior day.• I mean, I’m
•7• on the platform a lot, so there are -- I mean, I see
•8• sometimes several thousand posts per day.
•9• • • •Q.• Sure.• But what I’m saying is -- all I’m saying
10• is now that we’re on June 27th, we know that in the
11• prior two days, you had become aware that there was this
12• existing allegation about Ben Brody?
13• • • •A.• Yes, I’m not -- it would not have been top of
14• mind, but certainly I think I probably would have
15• vaguely recalled it, yeah.
16• • • • • • •(EXHIBIT 4 ENTERED INTO THE RECORD)
17• • • •Q.• (BY MR. BANKSTON) Okay.• Well, let’s talk about
18• that morning.• Let’s bring up Tab D.• All right.• This
19• is going to be Exhibit 4.• This is the exchange that the
20• lawsuit takes issue with, okay?
21• • • •A.• Uh-huh.
22• • • •Q.• And we see here at the top is Zero Hedge; do
23• you see that?
24• • • •A.• Yes.
25• • • •Q.• Okay.• You know Zero Hedge is a blog with
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•1• anonymous contributors, right?
•2• • • •A.• Yes.
•3• • • •Q.• Okay.• At this time, did you -- were you -- did
•4• you -- did you -- were you aware of Zero Hedge before
•5• you responded to this tweet?
•6• • • •A.• I’ve seen posts from Zero Hedge before.
•7• • • •Q.• Okay.• Do you feel like they’re a media
•8• organization that you’re familiar with, or is this
•9• something you just every now and then see tweets from?
10• And could you describe for me your level of familiarity
11• with them?
12• • • •A.• I see a lot of their posts.• I don’t know the
13• people behind it.
14• • • •Q.• Okay.• Got you.• Now, in this tweet, Zero Hedge
15• says, "Patriot Front white supremacist unmasked as
16• suspected fed"; do you see that?
17• • • •A.• Yes.
18• • • •Q.• Okay.• Now, based on what you’d seen at this
19• time, you did not contend that this unmasked person was
20• a federal law enforcement member, but instead was that
21• it was a college student; is that right?
22• • • •A.• My post simply says, "Looks like one is a
23• college student who wants to join the government and
24• another is maybe an Antifa member but it’s a probable
25• false flag situation."• I also put @community notes,
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•1• which is the fact-checking system on the X Twitter
•2• platform.• So the reason I put @community notes there is
•3• so that Community Notes can assess the accuracy of the
•4• statement.
•5• • • • • • • • MR. BANKSTON:• Okay.• Objection;
•6• nonresponsive.
•7• • • •Q.• (BY MR. BANKSTON) Do you remember what my
•8• question was, Mr. Musk?
•9• • • •A.• Please restate.
10• • • •Q.• Okay.• I’ll do it again.• All right.• What I’m
11• trying to understand is, based on what you had seen at
12• this point before you posted this tweet, like when you
13• see the Zero Hedge tweet, based on what you had already
14• seen, you did not contend that this unmasked person was
15• a member of federal law enforcement and instead
16• contended that they were a college student; is that
17• correct?
18• • • • • • • • MR. SPIRO:• Objection to form.
19• • • •A.• I mean, I think my post speaks for itself.
20• • • •Q.• (BY MR. BANKSTON) No.• Actually that’s kind of
21• why I have to ask you is because I really would like an
22• answer.
23• • • •A.• I think my post is being very -- very literal.
24• • • •Q.• Okay.• What I’m trying to figure out is it
25• seems to me that the Zero Hedge tweet is essentially
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•1• floating the idea that this unmasked person is a member
•2• of federal law enforcement.• And I just want to get to
•3• the idea of that’s not what you were contending.
•4• • • • • • • • •MR. SPIRO:• Objection to form.• I can’t
•5• understand you.
•6• • • •A.• I don’t understand what you’re -•7• • • •Q.• (BY MR. BANKSTON) Let’s try it this way:• Were
•8• you contending he was a member of federal law
•9• enforcement?
10• • • • • • • • •MR. SPIRO:• Objection to form.
11• • • •A.• No, because I say he looks like someone who
12• wants to join the government -13• • • •Q.• (BY MR. BANKSTON) Thank you.
14• • • •A.• -- based on the prior things -- the prior post
15• and -- and another may be -- you know, a probable false
16• flag situation.• (Internet disruption)
17• • • • • • • • And the reason I put @community notes is so
18• that Community Notes is the fact-checking system on the
19• platform and they can -- I’m calling on them to
20• fact-check the situation.
21• • • •Q.• Sure.• We’re going to talk about that too.• In
22• fact, let’s talk about that.• You tagged Community
23• notes, which, okay, not everybody I think understands
24• what Community Notes is so let me try to see if I can
25• summarize it fairly.
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•1• • • • • • • • By tagging Community Notes, Community
•2• Notes, through a system of voting, had the ability to
•3• add a note correcting the Zero Hedge tweet; is that
•4• right?
•5• • • •A.• That’s not how Community Notes works.
•6• • • •Q.• I thought there was a voting system that notes
•7• are voted on, and if they get enough votes from people
•8• of differing political beliefs and backgrounds, that it
•9• can be displayed on a tweet.• Is that not how it works?
10• • • •A.• That is -- the latter part of your explanation
11• is correct.• The -12• • • •Q.• Okay.
13• • • •A.• -- a Community Note to be surfaced, people who
14• have historically disagreed must agree in order for a
15• note to be displayed.
16• • • •Q.• Okay.• So let’s make it really simple so people
17• can understand what Community Notes is.• Community Notes
18• is a system where notes are proposed by Twitter users,
19• and if those notes get enough votes by members of the
20• Community Notes community, they can be displayed on
21• tweets to correct them?
22• • • •A.• Yes.
23• • • •Q.• Okay.
24• • • •A.• It requires people who historically have
25• disagreed to agree.• It’s not simply a popularity
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•1• contest.
•2• • • •Q.• And so if -- if a consensus among those folks
•3• developed that said, you know what, Mr. Musk is right,
•4• Zero Hedge is wrong, this isn’t a law enforcement
•5• person.• Community Notes, if a consensus developed, had
•6• the ability to put a note on Zero Hedge’s tweet?
•7• • • • • • • • MR. SPIRO:• Objection to form.
•8• • • •A.• Or mine.
•9• • • •Q.• (BY MR. BANKSTON) Or yours or anyone’s, right?
10• • • •A.• Correct.
11• • • •Q.• Okay.• When you said looks like one is a
12• college student who wants to join the government, you
13• were referring to the person in the screenshots we saw
14• earlier in the tweets from Dr. Frensor and Matt Wallace
15• 888, correct?
16• • • •A.• I assume so.• Those were -- I think there were
17• two people I referred to previously and that’s what I’m
18• referring to here.• And I’m speculating here and saying
19• it looks like one is a college student and maybe another
20• is an Antifa member, and it’s a probable but not certain
21• false flag situation.• And I’m requesting Community
22• Notes to dig into this and assess the veracity of the
23• situation.
24• • • •Q.• When you posted your tweet, you weren’t certain
25• that this college student was actually one of the
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•1• brawlers?
•2• • • •A.• That’s why -- I’m not certain, that’s why I say
•3• it looks like instead of it -- you know -•4• • • •Q.• And, in fact, so when you said looks like, your
•5• message was not to tell everybody, hey, I’m sure he’s
•6• one of the brawlers, but just that you had seen
•7• information suggesting that he was one of the brawlers;
•8• is that fair?
•9• • • •A.• Yeah, "it looks like" means that he may be a
10• college student -11• • • •Q.• And that would be -- excuse me.• Keep going.
12• • • •A.• That’s just -- just a literal sort of statement
13• of -- of my impression, which is -14• • • •Q.• Right.
15• • • •A.• -- that it looks like just -- you know, if I
16• said something looks like a donut, and it doesn’t mean
17• it is a donut; it could be a bagel.
18• • • •Q.• Let me try to give you an example:• If you said
19• looks like a donut, that would mean that you had seen
20• information or in some way gathered data that would
21• support the idea that maybe that’s a donut; is that
22• fair?
23• • • • • • • • MR. SPIRO:• Objection to form.
24• • • •A.• I think it’s -- this is a very simple post and
25• just, you know, if you said someone -- that person looks
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•1• like my brother, doesn’t mean that they are your
•2• brother.
•3• • • •Q.• (BY MR. BANKSTON) Right.• But you’re saying
•4• looks like one is a college student.• What I would take
•5• to mean that you -- from what we’d seen before from
•6• these tweets, you had seen information that suggested
•7• that this college student was the brawler, but you
•8• weren’t sure of that?
•9• • • • • • • • MR. SPIRO:• Objection as to form.
10• • • •A.• I’m just literally saying this looks like. I
11• mean, I can see a picture of my brother and say that
12• looks like my brother but it might not be my brother.
13• • • •Q.• (BY MR. BANKSTON) Right.• But you had been
14• given information in the previous days that -- you know,
15• we saw tweets from Dr. Frensor and from Matt Wallace
16• saying it was this person.• You weren’t saying that,
17• right?• You were just saying you had seen information;
18• not that you were sure?• Am I fair about that?
19• • • •A.• I’m literally just saying that it looks like
20• one is a college student and maybe another is an Antifa
21• member, and I’m asking Community Notes to sort of
22• fact-check this.
23• • • •Q.• Let me try it this way:• The reason -- the
24• reason that you’re saying that it looks like one is a
25• college student is because of the posts that we had just
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•1• talked about, because you had seen those posts.• That’s
•2• why you’re saying this tweet, right?
•3• • • •A.• That’s probably why I’m saying this.
•4• • • •Q.• Okay.• You knew when posting your tweet that
•5• readers would not know what information you saw to reach
•6• this conclusion, right?
•7• • • • • • • • MR. SPIRO:• Objection to form.
•8• • • •A.• Well, not necessarily because what tends to
•9• happen is there will be a sequence of replies where -10• even in the absence of Community Notes, if something is
11• inaccurate on the system or it’s a debatable issue,
12• there will be a series of replies that argue about the
13• substance of a post.
14• • • •Q.• (BY MR. BANKSTON) Okay.• But let’s assume I’m
15• the first person to read this tweet.• Let’s assume -16• you see how here it says it was posted 30 minutes from
17• when the screenshot was taken and there were already 384
18• replies; do you see that?
19• • • •A.• Yes.
20• • • •Q.• Let’s assume I’m reply number one.• Let’s
21• assume I saw your post one second after it was posted.
22• You understood when posting that tweet that if I’m that
23• number one reply, I would not know what information you
24• saw to reach your conclusion; do you agree with that?
25• • • • • • • • MR. SPIRO:• Objection; form.
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•1• • • •A.• Or you may.
•2• • • •Q.• (BY MR. BANKSTON) Or may not, right?
•3• • • •A.• If you’re the very first one, no.
•4• • • • • • • • •MR. SPIRO:• Objection to form.
•5• • • •Q.• (BY MR. BANKSTON) Right.• And so what I guess
•6• I’m saying here is there’s nothing in the text of your
•7• tweet that would tell me what information you relied on
•8• to say that it looks like one is a college student; do
•9• you agree with that?
10• • • •A.• In my -- in my text?
11• • • •Q.• Yes.
12• • • •A.• It does not have -- it does not have that
13• context.
14• • • •Q.• Okay.• So if I’m the first reader of this
15• tweet, I wouldn’t know if you saw something from Dr.
16• Frensor or Matt Wallace or somebody else?• I wouldn’t
17• know, would I?
18• • • • • • • • MR. SPIRO:• Objection to form.• It’s not a
19• proper question.
20• • • •A.• I guess I decline to answer on advice of
21• counsel.
22• • • • • • • • MR. BANKSTON:• Are you instructing him not
23• to answer?
24• • • • • • • • MR. SPIRO:• No.• I mean, if he understands
25• the question, he can answer it.• It’s not a proper
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•1• question -- (Internet interruption.)
•2• • • • • • • • MR. BANKSTON:• Look, there’s no need for
•3• the commentary about if questions are proper or if
•4• they’re not.• That’s not necessary.• You know it’s not
•5• necessary.• You know the only reason to do it would be
•6• to influence the witness.
•7• • • • • • • • So if you have an instruction not to
•8• answer, go ahead and give it.• If you have an objection,
•9• go ahead and give it, but as far as commentary to the
10• witness, it’s not necessary.
11• • • • • • • • MR. SPIRO:• No, sir.• It’s not -- I just
12• told the witness he can answer.• There’s nothing about
13• me commenting that all of these hypothetical what if I
14• saw this, what if I saw that questions are not proper
15• questions.• I’m surprised you don’t know they’re not
16• proper questions so -17• • • • • • • • MR. BANKSTON:• Everything you’re saying -18• • • • • • • • MR. SPIRO:• Can I finish?• I’m making my
19• record.• So the reason I’m making that comment is to
20• sort of try to signal to you that if you ask nine out of
21• 10 improper questions, eventually you’re going to get an
22• objection from me, and maybe just ask proper questions.
23• • • • • • • • There’s nothing about me saying that that
24• changes what he’s going to answer.• That’s not how
25• witness coaching works.• I’m surprised you don’t know
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•1• that.
•2• • • • • • • • So in any event, all I said was that’s not
•3• a proper question.• It’s not a proper question.• Any
•4• judge reviewing this will tell you it’s not a proper
•5• question, and if he can answer, he can answer.
•6• • • • • • • • MR. BANKSTON:• All right.• Again, I’m going
•7• to ask you again to obey Rule 199.5 because nothing
•8• about what you’re doing is proper and you know that.
•9• • • • • • • • So I’m going to ask him the question again
10• -11• • • • • • • • MR. SPIRO:• We disagree.
12• • • • • • • • MR. BANKSTON: -- and if he can understand
13• it, then he’ll answer it, okay?
14• • • • • • • • You knew that a reader of your tweet when
15• posting your tweet, your state of mind when posting this
16• tweet, you knew that a reader of this tweet would not
17• know from your tweet whether you saw information from
18• Dr. Frensor or Matt Wallace or anybody else?• They
19• wouldn’t know, right?
20• • • •A.• They may not know immediately, but they would
21• know it soon after.• And they would also know that there
22• would be many future comments -- and there would
23• probably be a Community Note to figure out the veracity
24• of what I’m saying or the probable accuracy of what I’m
25• saying.• Anyone who uses the system would know that
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•1• there’s going to be a vigorous debate about something
•2• like this, and they would know that they could look at a
•3• Community Note in the future to understand the -- what
•4• -- whether this is accurate or not accurate.
•5• • • • • • • • And I think -- I think I really did this in
•6• good faith, because I would not ask for a fact-check,
•7• which is what I do by adding Community Notes.• That’s
•8• asking for a fact-check on my own -- on my own post.
•9• • • •Q.• Well, you’re asking for it on Zero Hedge’s
10• post, aren’t you?
11• • • •A.• No.• I’m asking it on my post and his post.
12• • • •Q.• Okay.
13• • • •A.• People who’ve used the system know if you
14• @communitynotes, this is requesting fact-check Community
15• Notes, that’s what it means, and people know that.
16• • • •Q.• All right.• So let’s say again that I’m the
17• first person who reads this.• You’re saying that if I’m
18• a sophisticated user, I would know to come back at some
19• later time and see how the debate has developed; is that
20• right?
21• • • •A.• No.• I think that’s any user who’s on the
22• system for any period of time.
23• • • •Q.• Well, I don’t do that.• I mean, I’m a casual
24• user of Twitter, right -25• • • •A.• That’s how it works though.
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•1• • • •Q.• -- and so you would agree with me that if I was
•2• the first person who saw this tweet and then I saw it
•3• and I digested it and then I never cared to come back
•4• and look again, I wouldn’t see any of that information,
•5• right?
•6• • • • • • • • MR. SPIRO:• Objection to form.
•7• • • •A.• I think that is -- that is basically no one on
•8• the -- on the system, and I don’t think -- I think
•9• you’re being disingenuous about what you’re saying. I
10• don’t think that’s how you use the system.
11• • • •Q.• (BY MR. BANKSTON) Okay.• You understand that
12• Ben wanted -13• • • •A.• I’m very clear here and people understand that
14• when you @communitynotes, you’re literally asking for
15• please check the accuracy of this statement, and would
16• include the -- the post that I’m replying to.
17• • • •Q.• Did they?
18• • • •A.• I don’t know.
19• • • •Q.• You understand that Ben wanted you to delete
20• your tweet and make a retraction?
21• • • •A.• I don’t recall that.
22• • • •Q.• You don’t recall that?• That’s interesting.
23• Okay.• Well, I was going to ask you why you refused
24• that, but if you’re not -- you’re not aware that a
25• request was made to apologize and delete this and make a
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•1• retraction?
•2• • • • • • • • MR. SPIRO:• Objection; asked and answered,
•3• form.
•4• • • •A.• I don’t recall that, no.
•5• • • •Q.• (BY MR. BANKSTON) Okay.• If you knew right now
•6• -- knowing right now Ben is really upset that this tweet
•7• is still up and that he wanted there to be a retraction,
•8• how do you feel about that?
•9• • • • • • • • MR. SPIRO:• Objection to form.• How you
10• feel about it?• How is that -- how you feel about it,
11• how is that relevant -12• • • • • • • • MR. BANKSTON:• Mr. Spiro -13• • • • • • • • MR. SPIRO:• -- now to the four deposition
14• topics?• We’re on, I guess, topic four.• We’ve addressed
15• one through three.• How is that relevant to four?
16• • • • • • • • MR. BANKSTON:• Because in Gonzalez vs.
17• Hearst Corp., 930 S.W.2nd 275, a refusal to print a
18• retraction is evidence of an action after the
19• publication, but it can lend support to a claim that
20• reckless disregard or knowledge existed at the time of
21• publication.
22• • • • • • • • Similarly, in New Times vs. Issacks, Texas
23• Supreme Court 2004, 146 S.W.3rd 144, refusal to retract
24• an exposed error tends to support a finding of actual
25• malice, and conversely, a readiness to retract tends to
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•1• negate actual malice.
•2• • • • • • • • So again, I’ll pose my question -•3• • • • • • • • MR. SPIRO:• Yeah, I’ll look at those cases
•4• but he’s not answering that right now.• I don’t see the
•5• relevance.• I don’t think those cases -- I’m pretty
•6• confident those cases are not directly on point so I’ll
•7• review the cases so we can respond further.
•8• • • • • • • • MR. BANKSTON:• All right.• Next time I’d
•9• appreciate it if you showed up in a deposition with a
10• Texas lawyer who had an understanding of Texas law of
11• actual malice.
12• • • • • • • • MR. SPIRO:• Okay.• You keep filing these
13• silly, frivolous shake-down cases, I’ll -- I’ll keep
14• trying to think of Texas lawyers to bring to your
15• depositions.
16• • • • • • • • MR. BANKSTON:• Mr. Musk, I will tell you
17• I’m trying to be as civil as I can in this deposition
18• with you and your attorney.• I’d appreciate it -- these
19• random, insulting, professionally demeaning really have
20• no place here.
21• • • • • • • • MR. SPIRO:• You just did the same thing and
22• I responded in kind, so keep moving with the deposition.
23• You’re running out of time.
24• • • • • • • • MR. BANKSTON:• You think that’s what
25• happened here.
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•1• • • • • • • • MR. SPIRO:• I know this is your big day in
•2• the sun.• You’re running out of time.
•3• • • • • • • • MR. BANKSTON:• Talk about big days in the
•4• sun, Mr. Musk, I want to talk about how you browse and
•5• see information on Twitter.• You have an account called
•6• @elonmusk where you browse and interact on Twitter,
•7• correct?
•8• • • •A.• Yes.
•9• • • •Q.• Can we bring up Tab E.• All right.• Is this
10• another account that you use to see tweets on Twitter?
11• • • •A.• I don’t use that account.• I think I briefly
12• had it as a test account.
13• • • •Q.• Well, that’s what I’m asking.• In the summer of
14• 2023, right, which is when I’m seeing this post on here,
15• was this an account that you would use where you would
16• see tweets on Twitter?
17• • • •A.• No, I would not use this account.• It was just
18• used for -- for testing.
19• • • •Q.• I mean, look, there’s a tweet I see.• There’s
20• more tweets on this account, right?• Were you -- like
21• you were posting and viewing tweets with this account.
22• • • • • • • • MR. SPIRO:• Objection; asked and answered.
23• I don’t see the relevance to the fourth question.• Move
24• on.
25• • • • • • • • MR. BANKSTON:• I need to know what -www.res-ipsa.com
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•1• • • • • • • • MR. SPIRO:• He’s not answering -- he just
•2• answered you twice.• He’s not answering any more
•3• questions about this account.
•4• • • • • • • • MR. BANKSTON:• Well, I’m going to put on
•5• the record why I’m asking this question in case I need
•6• to put it in a motion, which is I need to know all the
•7• accounts that you’ve used to view tweets on Twitter
•8• during this time period so that I can tell what else
•9• you’ve interacted with on Twitter.
10• • • • • • • • MR. SPIRO:• Well, he just told you he
11• didn’t use this account.• He already answered that
12• question.
13• • • • • • • • MR. BANKSTON:• Right.• And I was asking a
14• follow-up about that.• Because the tweet has posts on it
15• does not mean that you used it and used it to view
16• tweets at this time or am I wrong about that?
17• • • •A.• I briefly used this account as a test account.
18• There are only two accounts that I use on a regular
19• basis.• One is my main account and the other is baby
20• smoke 9,000.
21• • • •Q.• Okay.• And then you said on a regular basis.
22• Are there any other alt accounts that you were using to
23• view tweets in the summer of 2023?
24• • • •A.• No.
25• • • •Q.• Okay.• I was looking at the Twitter rules you
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•1• had in effect in the summer of 2023, and it looked like
•2• Twitter employed people who enforced platform integrity
•3• and authenticity, including things like crisis
•4• misinformation; is that correct?
•5• • • • • • • • MR. SPIRO:• I’m going to object and I’d
•6• like an explanation as to the relevance of this.
•7• • • • • • • • MR. BANKSTON:• Because I need to know what
•8• kind of information he had access to.• I need to know at
•9• that time what investigations he could have had capable
10• and which ones he might have ignored deliberately.
11• • • • • • • • MR. SPIRO:• I don’t see the relevance, but
12• I’ll let you ask the question.
13• • • •A.• I mean, we have a team in this regard.• I don’t
14• delve into what the team does.
15• • • •Q.• (BY MR. BANKSTON) Well, all I’m asking at this
16• point is there are people employed at Twitter who
17• enforce things like platform integrity and authenticity?
18• That exists?
19• • • •A.• There is -- there is -- by "authenticity," that
20• means essentially people who -- who do impersonation so
21• it’s stopping people from impersonating public figures.
22• • • •Q.• Sure.
23• • • •A.• There is a sort of enforcement of the law, so
24• if somebody’s posting something illegal, that needs to
25• be taken down.• That would be -- if something is illegal
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•1• or, you know, in some form essentially, then that team
•2• would take it down.
•3• • • •Q.• I noticed there was a note for crisis
•4• misinformation.• I imagine if there’s a huge public
•5• crisis, a storm, a bomb, and somebody’s spreading
•6• information that could get people hurt, that’s something
•7• that is meant by crisis misinformation?
•8• • • •A.• The primary system we rely on is Community
•9• Notes, which we found to be far better than the
10• so-called misinformation experts.
11• • • •Q.• Okay.• But as Elon Musk, are you allowed at
12• Twitter to just grab one of these employees who is
13• involved in platform integrity, and say, hey, can you
14• help me figure out if something I saw is legit?• Are you
15• allowed to do that or is that misappropriating the
16• company’s property?
17• • • •A.• That is in theory something that I could do,
18• but I don’t.• I rely upon Community Notes for
19• fact-checking.• I find it to be the best system on the
20• internet.
21• • • •Q.• Right.• What I’m just saying is are you allowed
22• to do that?• If you were to grab an employee at Twitter
23• and say, hey, could you help me figure something out?
24• Are you going to get in trouble?• Is somebody going to
25• come tell you, Elon Musk, you are not allowed to do
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•1• that?
•2• • • • • • • • MR. SPIRO:• Objection to form.
•3• • • •A.• I mean, I could ask someone -•4• • • •Q.• Okay.
•5• • • •A.• -- but this is -- but the nature of our
•6• enforcement is to enforce what is in accordance with the
•7• law.
•8• • • •Q.• (BY MR. BANKSTON) These people who are doing
•9• their jobs, do they have access to internal Twitter
10• tools to help them do their job?
11• • • •A.• Yes.
12• • • • • • • • •MR. SPIRO:• Object to form.
13• • • •Q.• (BY MR. BANKSTON) The data they have access to,
14• are you allowed to have access to it?
15• • • •A.• In theory, yes, but I’ve never requested access
16• to it.
17• • • •Q.• Is there anyone with the authority to say about
18• a piece of data at Twitter, to say to you, no, Mr. Musk,
19• you can’t have that or you can’t share that with anyone?
20• • • • • • • • MR. SPIRO:• Objection to form.• And, again,
21• I’m going to ask again, what is the possible relevance
22• of this to the single tweet that we’re here on in a
23• defamation case?• Can you just explain that to me?
24• • • • • • • • MR. BANKSTON:• Sure.• Because when he was
25• confronted with -- again, this is kind of bizarre that
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•1• I’m explaining this in front of your witness, but if he
•2• was confronted with information that made him maybe want
•3• to go suggest that, hey, maybe this college student was
•4• involved in this brawl, if he had access to people who
•5• were able to tell him or give him more data about this
•6• and he has that authority, I need to know what -•7• • • • • • • • MR. SPIRO:• You’re saying that if he -•8• your point is that he had other avenues to investigate
•9• this?
10• • • • • • • • MR. BANKSTON:• That he deliberately
11• ignored, correct.
12• • • • • • • • MR. SPIRO:• I think it’s an objectionable
13• question, but I’ll let him answer it.
14• • • • • • • • MR. BANKSTON:• Thank you.• Is there -- let
15• me repeat the question for you just because there was a
16• long objection so I want to make sure you understand the
17• question.
18• • • • • • • • Is there anyone with the authority to say
19• about a piece of data at Twitter, no, Mr. Musk, you
20• cannot see that or you cannot share that with anyone?
21• • • •A.• I mean, I regard privacy as being very
22• important so I’ve never asked for the private
23• information of any -- any user.• And as you saw in that
24• post, I requested Community Notes to investigate.
25• Community Notes I find is far better than the so-called
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•1• professional misinformation experts, and that has been
•2• proven time and again.
•3• • • •Q.• Well, I’m confused by your answer because I
•4• still don’t know if there’s anyone with the authority at
•5• Twitter to tell you about a piece of data at Twitter
•6• that you cannot have access to it or you cannot share
•7• it.
•8• • • • • • • • Is there anybody who can do that or like
•9• with the Twitter files, you’re pretty much allowed to do
10• what you want?
11• • • •A.• I think there would be -12• • • • • • • • MR. SPIRO:• Objection to the form.
13• • • • • • • • THE WITNESS:• -- it would be illegal for me
14• to access private information of individuals.
15• • • •Q.• (BY MR. BANKSTON) Okay.• Well, I’m not talking
16• necessarily about private information about individuals,
17• but I’m talking about anything that is used by the
18• platform integrity team about data from the platform
19• itself.• How they analyze the public data on the
20• platform.• Are you allowed to see that?
21• • • •A.• The platform integrity is simply trying to
22• assess if something that is posted is illegal or not.
23• • • • • • • • MR. BANKSTON:• Madam Court Reporter, do you
24• have a count for me on how long we’ve been on the
25• record?
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•1• • • • • • • • THE VIDEOGRAPHER:• This is Robie.• We’ve
•2• been on the record for 47 and a half minutes.
•3• • • • • • • • MR. BANKSTON:• Okay.• We’re going to go
•4• just a little bit and then we’ll take a quick break.
•5• • • •Q.• (BY MR. BANKSTON) All right.• I want to talk to
•6• you about just a couple of weeks before the tweet, okay?
•7• You had given an interview on CNBC talking about your
•8• sort of state of mind and feeling about the way you
•9• tweet; do you remember giving -10• • • • • • • • MR. SPIRO:• No.• I didn’t hear -- Mark, I
11• didn’t hear about the last word.• I couldn’t catch it.
12• • • • • • • • MR. BANKSTON:• Well, let me try it again
13• because I’m not sure what my last word was.
14• • • • • • • • But I was describing to you how in a couple
15• of weeks before you made the tweet in this case, you had
16• given an interview on CNBC where you were talking about
17• your state of mind and your tweeting, about how you
18• approach your tweeting with an interview with David
19• Faber.• Do you remember giving that interview?
20• • • •A.• I don’t remember everything about that
21• interview, but I remember there was such an interview.
22• • • •Q.• Okay.• Ben Brody’s lawsuit has a quote from
23• that interview and I wanted to get your reaction to it
24• to see if this is a genuine thing how you felt, right?
25• • • • • • • • Mr. Faber was asking you about whether you
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•1• felt the need to restrain yourself tweeting.• And the
•2• comment that’s quoted in Ben Brody’s lawsuit is, "I’ll
•3• say what I want to say and if the consequences of that
•4• is losing money, so be it."• Do you feel that that
•5• statement is a true assessment of your opinions in the
•6• summer of 2023?
•7• • • •A.• Well, what I’m saying is that sometimes I’ll
•8• say things that I believe to be accurate in exercising
•9• of my freedom of speech rights, and if that means we
10• lose advertisers as a result, then so be it.
11• • • •Q.• Okay.• I want to ask you about another
12• statement.• I want to ask you about some statements that
13• are quoted to you or attributed to you in Walter
14• Issacson’s book because I want to make sure that they’re
15• accurately attributed to you.• And so I want to take a
16• look at a couple of things that were said in Issacson’s
17• book.• Can we bring up Tab W?
18• • • • • • • • MR. SPIRO:• Yeah, I’m -- again, I’m going
19• to not allow this.• This is -- how this has to do with
20• state of mind on June 27th, 2023, I’m not going to allow
21• this.
22• • • • • • • • MR. BANKSTON:• Mr. Spiro -23• • • • • • • • MR. WALTERS:• Move on to another subject.
24• • • • • • • • MR. BANKSTON:• -- it’s literally him
25• describing his state of mind for how he approaches these
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•1• tweets.• I don’t understand why this quote that we have
•2• here in front of us -•3• • • • • • • • MR. SPIRO:• Okay.• You want to ask him if
•4• he said this?
•5• • • • • • • • MR. BANKSTON:• Yes, that’s all I’m asking.
•6• Yea, that’s it.• I mean, I’m not -- it’s about his state
•7• of mind in tweeting.
•8• • • • • • • • MR. SPIRO:• Well, I’m not so sure.• The
•9• state of mind cases, I don’t know in every count in
10• Texas, but typically do not allow things that happen
11• nontemporarily.
12• • • • • • • • MR. BANKSTON:• I mean, I just quoted you
13• the law that says that’s not true and you can
14• absolutely -15• • • • • • • • MR. SPIRO:• Okay.• Ask him the question.
16• • • • • • • • MR. BANKSTON:• Yeah, let’s just go -17• • • • • • • • THE VIDEOGRAPHER:• Excuse me.• Mr. Musk
18• just logged off or got kicked off or something.• He’s no
19• longer on the Zoom.
20• • • • • • • • MR. BANKSTON:• Do you want to take a break
21• real quick and see if we can get him back on?
22• • • • • • • • MR. SPIRO:• Yeah, Mark.• That’s fine.
23• • • • • • • • MR. BANKSTON:• I was going to take a break
24• in an hour but I figured we can just take a break right
25• now if you want to do that.• Do you want to take 20
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•1• minutes?
•2• • • • • • • • MR. SPIRO:• No.• I mean, I don’t think we
•3• need 20 minutes, Mark.• I mean, we’re almost done.
•4• • • • • • • • MR. BANKSTON:• The problem is I’m not
•5• trying to be difficult here.• I’m really not.• The water
•6• main broke in our building today so to go use the
•7• restroom, I have to walk down the street.
•8• • • • • • • • MR. SPIRO:• Well, okay.• That’s a real
•9• thing.• We’ll be back in 10.• Hopefully you’re back in
10• 10.• If you are back in 13, no one’s going to be
11• alarmed, but I’m going to try to make it a 10 minute
12• break.
13• • • • • • • • MR. BANKSTON:• I understand.• You don’t
14• need to keep communicating your feelings on the
15• ridiculousness of the endeavor I’m currently engaged in.
16• • • • • • • • MR. SPIRO:• Well, it’s also a short
17• deposition so whether even needing a break is -- I don’t
18• know it’s necessary but okay, let’s do it.• 10 minutes.
19• • • • • • • • MR. BANKSTON:• Okay.
20• • • • • • • • MR. SPIRO:• Thanks.
21• • • • • • • • THE VIDEOGRAPHER:• Going off the record at
22• 1:56 p.m.
23• • • • • • • • • • • • (OFF RECORD)
24• • • • • • • • THE VIDEOGRAPHER:• We’re back on the record
25• at 2:14 p.m.
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•1• • • • • • •(EXHIBIT 5 ENTERED INTO THE RECORD)
•2• • • • • • • • MR. BANKSTON:• All right.• Let’s go ahead
•3• and put up Tab W.• What exhibit number are we on?
•4• • • • • • • • MR. GRANT:• Mark, we’re on Exhibit 5 would
•5• be our next one.
•6• • • • • • • • MR. BANKSTON:• Okay.• Let’s go -- we’ll go
•7• ahead and mark this as 5.
•8• • • •Q.• (BY MR. BANKSTON) All right.• What I want to
•9• ask you about, Mr. Musk, is some quotes from
10• Mr. Isaacson’s book.• And what we have here in front of
11• us is "I’ve shot myself in the foot so often, I ought to
12• buy some Kevlar boots," Musk joked.• Perhaps he
13• ruminated Twitter should have an impulse delay button.
14• • • • • • • • Did Mr. Isaacson -- was that an accurate
15• representation he made of an exchange that y’all had?
16• • • •A.• I don’t recall that exact exchange.
17• • • •Q.• Okay.• Do you feel like this statement is a
18• genuine reflection of your feelings back in the summer
19• of 2023 when you were participating with Mr. Isaacson?
20• • • •A.• I certainly -- I would say that I -- you know,
21• I’m guilty of many self-inflicted wounds.
22• • • •Q.• Okay.• Would you say that as of last summer
23• that you knew that you had had some difficulties
24• restraining your impulses on Twitter?
25• • • •A.• No, I wouldn’t say that.
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•1• • • •Q.• Can I -- I’m sorry.
•2• • • •A.• I do believe that the bedrock of democracy is
•3• freedom of speech and that people should have -- we
•4• should have freedom of speech if we are to have a
•5• functioning democracy and that, you know, actions that
•6• result -- that have a chilling effect on freedom of
•7• speech, like this lawsuit, I think are contrary to the
•8• public good.
•9• • • •Q.• I’m wondering if you didn’t think that you were
10• having difficulties restraining your impulses on
11• Twitter, why did you believe that maybe Twitter should
12• have an impulse control delay button?
13• • • • • • • • MR. SPIRO:• Objection to form.
14• • • •A.• That’s what I said.• I think that’s Isaacson’s
15• -- those -- that’s not a quote.• That’s Isaacson -16• those are Isaacson’s words; not a quote.
17• • • •Q.• (BY MR. BANKSTON) Okay.• Well, what I was going
18• to -- I was asking you about that, maybe you
19• misunderstood my question is was this statement that we
20• see here on the screen, is that consistent with what
21• your feelings were in 2023?
22• • • • • • • • I’m sorry.• Hold on.• Before we go on,
23• there’s something here in the background.
24• • • •A.• Let me take my -- my son just came into the
25• room.
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•1• • • • • • • • (CONVERSATION WITH REPORTER)
•2• • • • • • • • THE VIDEOGRAPHER:• Mark, do you want to go
•3• off the record?
•4• • • • • • • • MR. BANKSTON:• Do we need to?• I guess just
•5• for a minute, yeah.
•6• • • • • • • • THE VIDEOGRAPHER:• Going off the record at
•7• 2:17 p.m.
•8• • • • • • • • • • • • (OFF RECORD)
•9• • • • • • • • THE VIDEOGRAPHER:• We are back on the
10• record at 2:18 p.m.
11• • • •Q.• (BY MR. BANKSTON) My question to you, Mr. Musk,
12• was -- in this statement that we see on the screen was
13• whether the entire thing reflected your feelings back in
14• 2023.• And from what I think I understand from your
15• answer about the second half being Isaacson, is that
16• that second statement does not -- that’s not an accurate
17• reflection of your beliefs in 2023?
18• • • •A.• Well, it doesn’t -- it doesn’t make sense
19• because we actually do have the ability to edit tweets
20• and put a time delay on tweets.
21• • • •Q.• Okay.• So this is something Isaacson may have
22• gotten wrong?
23• • • •A.• That’s -- that’s just Isaacson’s impression.
24• I’m simply saying that I -- I am -- you know, I’ve
25• certainly done a lot of things that are self-inflicted
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•1• wounds.
•2• • • • • • (EXHIBIT 6 ENTERED INTO THE RECORD)
•3• • • • • • • • MR. BANKSTON:• All right.• Let’s go ahead
•4• and put up Tab X.• We’ll mark that as Exhibit 6.
•5• • • •Q.• (BY MR. BANKSTON) And I want to ask you about
•6• this quote.• It says, "When asked why he doesn’t
•7• restrain himself, Musk merrily admits that he too often
•8• shoots himself in the foot or digs his own grave, but
•9• ’life needs to be interesting and edgy’ he says, and
10• then he quotes his favorite line from the 2000 movie
11• Gladiator, ’Are you not entertained?• Is that not why
12• you are here?’"
13• • • • • • • • In this quote, did Isaacson accurately
14• relay the things that you were saying?
15• • • •A.• I -- you have to -- I’ve not read the Isaacson
16• book.• In fact, I asked Isaacson if I should read it and
17• he recommended that I not.• Any biography is going to be
18• not the actual person but the actual person as viewed
19• through the lens of the biographer.• So I wouldn’t say
20• this accurately represents me.
21• • • •Q.• Okay.• Have you used that quote before from the
22• 2000 movie Gladiator, the "Are you not entertained?• Is
23• that not why you are here" to describe your tweeting?
24• • • •A.• In a joking way, but not in a serious way.
25• • • •Q.• Sure.• Because the line here, "Are you not
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•1• entertained?• Is that not why you’re here," am I correct
•2• that that describes the entertainment value of the
•3• controversy that tweets can sometimes create?
•4• • • • • • • • MR. SPIRO:• Objection to form.
•5• • • •A.• Well, I think the -- you know, any medium which
•6• is not informative or entertaining or just does not
•7• capture the interest of the audience will fail to -•8• people will not tune in.
•9• • • • • • •(EXHIBIT 7 ENTERED INTO THE RECORD)
10• • • • • • • • MR. BANKSTON:• Sure.• Let’s move to Tab Y.
11• • • • • • • • All right.• We’re going to mark this as
12• Exhibit 7.
13• • • •Q.• (BY MR. BANKSTON) And this quote says from the
14• Isaacson book, "My tweets are like Niagara Falls
15• sometimes and they come too fast," Musk says.• "Just dip
16• a cup in there and try to avoid the random turds."• Do
17• you think that’s an accurate quotation from you?
18• • • •A.• That is actually not -- not accurate.• What I’m
19• referring to is that the things that I see on Twitter,
20• not the -- not the posts that I make, are like Niagara
21• Falls.• Like -- meaning like it’s the -- if you look at
22• the sheer number of comments, likes, interactions of
23• various kinds, my account is the most interacted with in
24• the world I believe.
25• • • • • • • • It is physically impossible for, you know,
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•1• any one person to see all of the interactions that
•2• happen.• So the only way I can really gauge the
•3• interactions is by sampling them essentially.
•4• • • •Q.• Got you.• So would it be fair to say that
•5• Isaacson made a mistake here and that what this really
•6• should say is not my tweets are like Niagara Falls, but
•7• everyone else’s tweets are like Niagara Falls?
•8• • • •A.• Not exactly.• It means all of the -- all of the
•9• -- all of what I see when I use the X app are -- all the
10• posts that I see and all of the interactions that happen
11• with those posts are far too numerous to -- for any
12• human being to consume.
13• • • •Q.• Okay.• So when this quote talks about the
14• random turds, those aren’t your random turds; those are
15• other people’s random turds?
16• • • •A.• I mean, I suppose I -- I could be guilty of a
17• random turd too, but it’s -- what I’m really referring
18• to is that the only way for me to actually get an
19• understanding of what is happening on the system is to
20• sample it.
21• • • • • • • • Like try to do -- just like in statistics,
22• you don’t -- you do -- try to do -- you sample a
23• distribution in order to understand what’s going on, but
24• you cannot look at every single data point.
25• • • •Q.• Okay.• I just want to make sure that you’re
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•1• testifying under oath that this quote was misattributed
•2• and that you weren’t talking about your own tweets and
•3• your own tweets being random turds?
•4• • • •A.• Correct.
•5• • • •Q.• Okay.
•6• • • •A.• This is -- this is -- this is not accurate.
•7• • • • • • • • MR. BANKSTON:• Okay.• You can take that
•8• down.
•9• • • •Q.• (BY MR. BANKSTON) In general, when thinking
10• about -- well, let’s start this way:• You use your
11• Twitter account to talk about news and current events,
12• right?
13• • • •A.• Yeah.
14• • • •Q.• And -15• • • •A.• Among other things.
16• • • •Q.• And in doing that, you are thus a consumer of
17• news information, a person -- like as a person, you
18• consume news information, right?
19• • • •A.• I contribute content and I consume content on
20• the X platform.
21• • • •Q.• Now, when consuming news content, you believe
22• that Twitter is a better source of information than say
23• traditional news, right?
24• • • •A.• I do.
25• • • •Q.• Okay.• You think one problem with traditional
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•1• news is they’re too slow, correct?
•2• • • •A.• Their latency, yes, they will often take
•3• several days to write an article and then still be
•4• incorrect in what they write.
•5• • • •Q.• Okay.• Let’s look at Tab G.• I want to show you
•6• this tweet from the day of the brawl, okay?• And you
•7• will see that there’s someone complaining about using
•8• Google News and their complaints about it.• And your
•9• response is "The thing about traditional news is by the
10• time they actually publish anything, it’s not news
11• anymore."• That’s consistent with what we’ve just been
12• talking about, right?
13• • • •A.• The -- yes, the -- the traditional -- the
14• legacy news industry is slow to publish and nonetheless
15• wrong in what they publish and with no one to correct
16• them.• Whereas when things are published on Twitter,
17• they may be incorrect but they are swiftly corrected.
18• • • •Q.• Well, for instance, this tweet about Ben Brody,
19• it wasn’t swiftly corrected, was it?
20• • • •A.• I suspect that in the comment -- comments that
21• followed there were -- while I did not see them, there
22• were many rebuttals to what I said.
23• • • •Q.• Right.• But isn’t it -24• • • •A.• And there may be a Community Note -- since I
25• asked -- since I did tag Community Notes to assess the
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•1• accuracy of the post, that there may be a Community Note
•2• on that as well.
•3• • • •Q.• But you don’t know that, right?
•4• • • •A.• I don’t know that.
•5• • • •Q.• Right.• I mean, there’s not, I can tell you,
•6• but -- let me try it this way:• Traditional news takes
•7• time to publish things whereas on Twitter, you’re
•8• reading about events before the news can even cover
•9• them.• Is that right?
10• • • • • • • • MR. SPIRO:• What’s the relevance of this
11• question to the fourth -12• • • • • • • • MR. BANKSTON:• His state of mind upon the
13• information he relied on it and why he relied on it.
14• • • • • • • • MR. SPIRO:• No, I don’t see that.• I don’t
15• see the relevance of this question.• Don’t answer that.
16• • • • • • • • MR. BANKSTON:• I need you to give him an
17• instruction.
18• • • • • • • • MR. SPIRO:• I’m instructing you not to -19• not to answer.
20• • • • • • • • MR. BANKSTON:• Mr. Musk, are you going to
21• obey that instruction from your attorney?
22• • • •A.• I think I should listen to what my attorney
23• says.
24• • • •Q.• (BY MR. BANKSTON) Okay.• You’ve called yourself
25• a citizen journalist, right?
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•1• • • •A.• I encourage everyone to be a citizen
•2• journalist.
•3• • • •Q.• Right.• And, in fact, you advocate getting
•4• information about news and events from anonymous people
•5• on Twitter.
•6• • • •A.• I think it’s important to allow people to be
•7• anonymous so that they are able to report things
•8• accurately and not face repercussions from their
•9• employer or from others.
10• • • •Q.• Okay.• You can and do use your Twitter account
11• to promote the company’s interest, the company being X
12• Corp?
13• • • •A.• Yes.
14• • • •Q.• The engagement -- well, let’s talk about it
15• this way:• Before you ever purchased Twitter, you were a
16• popular user on the platform, right?
17• • • •A.• Yeah, I believe I -- I may have been -- I think
18• I was either the first or second most interacted with
19• account on the platform before the acquisition.
20• • • •Q.• Now, before the acquisition, Twitter was
21• getting a free benefit from the user engagement that you
22• created, correct?
23• • • •A.• Essentially, yes.
24• • • •Q.• And then now after the acquisition, that’s no
25• longer true; you personally benefit from the engagement
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•1• you create because it’s your company, right?
•2• • • • • • • • MR. SPIRO:• Objection.• Instruct you not to
•3• answer.• You can tell me the relevance of -- of these
•4• questions -•5• • • • • • • • MR. BANKSTON:• I need to -- I need to
•6• establish the level of care that he was required to have
•7• and I need to determine whether this is purely a
•8• personal Twitter account or whether this Twitter account
•9• is intended to do something else.
10• • • • • • • • MR. SPIRO:• I don’t see the relevance of
11• the question.• I’m going to instruct him -12• • • • • • • • MR. BANKSTON:• Well, it’s going to affect
13• his level of care.
14• • • • • • • • MR. SPIRO:• Yeah, I disagree so I’m going
15• to instruct him not to answer.
16• • • • • • • • MR. BANKSTON:• Okay.• So I’m just going to
17• make it clear for the record, that in order to establish
18• under scripts the requisite level of care that I’ll need
19• to be proving in this case, I’ve been unable to ask
20• questions that will help me ascertain -21• • • • • • • • MR. SPIRO:• Well, what question are you
22• trying to ask that goes to level of care as in the case
23• law?
24• • • • • • • • MR. BANKSTON:• I’m trying -- because the
25• level of care will depend on the purpose of the speech
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•1• itself, whether it has a commercial or noncommercial
•2• basis, whether it is a purely private communication,
•3• whether it is a communication made by one who is engaged
•4• in spreading media for profit.• All of these things and
•5• whether it has a commercial character is all relevant -•6• • • • • • • • MR. SPIRO:• But you -- but it’s in the
•7• record, he owns Twitter.• He owns X.
•8• • • •A.• I think I can answer this question -•9• • • • • • • • MR. BANKSTON:• Hold on.• You may be right.
10• Hold on.• Mr. Musk, hold on.• There’s no question to
11• you.
12• • • • • • • • Alex, you may be right about that.• If
13• you’re willing to just go ahead and stipulate he is the
14• owner of Twitter, that is not a purely personal account,
15• that account also advances the interest of the company,
16• we’re done and I won’t have to ask any more questions.
17• • • • • • • • MR. SPIRO:• Well, Mr. Musk said he wants to
18• -- I’ll let him answer the question if you want to
19• rephrase it.
20• • • • • • • • MR. BANKSTON:• Sure.
21• • • •Q.• (BY MR. BANKSTON) Okay.• So let’s go back to
22• the question that we had, which was now that you’ve
23• acquired the company, Twitter is no longer getting a
24• free benefit.• I mean, this benefits you as well, your
25• engagement that you create for the company; is that
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•1• correct?
•2• • • •A.• Not necessarily.• So I -- I believe my posting
•3• has really remained unchanged before and after the
•4• acquisition.
•5• • • • • • • • The -- and going back to the sort of
•6• self-inflected wounds, the Kevlar shoes, I think there’s
•7• -- I’ve probably done -- I may have done more to
•8• financially impair the company than to help it, but
•9• certainly I -- I do not guide my posts by what is
10• financially beneficial but what I believe is interesting
11• or important or entertaining to the public.
12• • • • • • • • So that’s, you know, if -- in this specific
13• case, if I wanted to have it be -- receive a lot of
14• distribution, I would have made it a primary tweet or a
15• quoted tweet, which I did not.• It was simply a reply.
16• The replies get 100 times less attention than a primary
17• tweet.• So this was certainly not any attempt to
18• generate advertising revenue.• In fact, generally
19• advertisers will not want to advertise with content that
20• is contentious.
21• • • •Q.• Well, I understand you said that this was a
22• reply and that less people saw it but -23• • • •A.• By 100, yes.
24• • • •Q.• You do understand that the amount of people who
25• saw this, who have viewed this tweet is equivalent to
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•1• all 30 major league baseball stadiums filled to
•2• capacity?• You wouldn’t dispute that?• I mean, we’re
•3• talking over a million people.
•4• • • • • • • • MR. SPIRO:• Objection to form.
•5• • • •A.• Yeah, that’s actually -- that may seem like a
•6• large number, but it is not compared to the fact -- I
•7• believe there are something on the order of five to
•8• eight trillion views per year so a million is really -•9• • • •Q.• Not a big deal?
10• • • •A.• -- hit or miss, yeah.
11• • • •Q.• Not a big deal that this went out to that many
12• people?
13• • • •A.• Correct.• And more of a -- this is the kind of
14• thing where advertisers, when it’s contentious, will not
15• advertise, which means we do not get revenue from it.
16• • • •Q.• After you took over the company, have you ever
17• given any instructions or taken any steps to have users
18• see your tweets in particular more often?
19• • • •A.• No.• There was an error at one point that
20• caused for one day people to see my posts, but the rules
21• apply to me otherwise as they do to everyone else.
22• There are no special rules for me.
23• • • •Q.• Okay.• I want to talk about -24• • • •A.• I should mention that our algorithm is open
25• source as is the -- meaning anyone can see the code for
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•1• the recommendation algorithm.• They can see that there’s
•2• nothing special for me, and the Community Notes, which
•3• is I think the best fact-checking system on the internet
•4• also is open source as is all the data.
•5• • • •Q.• Okay.• I want to talk about on the day you had
•6• this tweet, on June 27th, I want to talk about if in
•7• your mind you were aware or considering any warnings you
•8• had been given say in the past few months about the
•9• level of care you were showing in your tweets.
10• • • • • • • • So I want to ask you some specific things
11• about that, okay?• And so the time period I want you to
12• concentrate on is the approximately six months leading
13• up to this tweet, okay?• So the end of 2022 up to mid
14• 2023.
15• • • •A.• Yes.
16• • • •Q.• And during that time, I want to ask you about
17• some situations, if people have ever voiced concern
18• about the level of care you were showing when tweeting
19• about factual events.
20• • • • • • • • And the first one I want to ask you about
21• is do you remember tweeting a conspiracy theory about
22• the attack on Paul Pelosi?
23• • • •A.• I do remember replying, again, not -- a reply
24• is -- if you want something to get attention, you do it
25• as a primary post.• A reply will get actually somewhere
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•1• between 100 and 1,000 times less attention.• And I -- I
•2• read an article in a newspaper or what claimed to be a
•3• newspaper which seemed to be odd, and I did that as a
•4• reply, which is a low visibility post.
•5• • • •Q.• Okay.• All I just need to know is if you
•6• remembered that event happening, because my question to
•7• you is -•8• • • •A.• Yes.
•9• • • •Q.• -- do you remember, was there anybody in your
10• life -- and let me preface this, not your lawyers. I
11• don’t want to know if your lawyers talked to you about
12• anything.• Any conversations you had with your lawyers
13• are totally private, okay?
14• • • • • • • • But are there any conversations you had
15• with anybody in your life where they warned you about
16• the level of care you were showing when tweeting about
17• factual events relating to that Pelosi tweet?
18• • • •A.• I don’t recall anything relating -- anyone
19• saying anything related to that Pelosi post.• But that
20• was -- that was the reply post I think just wondering if
21• there’s more to this picture than met the eye.• And
22• based on a -- what I thought was I think the Santa
23• Monica Times or something like that.• That turned out to
24• be somewhat of a bogus publication and I deleted the
25• post shortly thereafter, like within a few hours.
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PLAINTIFF S MOTION FOR SANCTIONS: D-1-GN-23-006883
BENJAMIN BRODY,
Plaintiff
VS.
ELON MUSK,
Defendant
§
§
§
§
§
§
§
IN DISTRICT COURT OF
TRAVIS COUNTY, TEXAS
459th DISTRICT COURT
PLAINTIFF’S MOTION FOR SANCTIONS
Out-of-state attorney Alex Spiro brazenly engaged in unauthorized practice of law by
signing and preparing Musk’s pleadings, showing up unannounced to defend Musk’s
deposition with no authority to practice law in Texas, and drafting and serving subsequent
legal demands to Plaintiff. Even worse, Spiro’s behavior in deposition was astonishingly
unprofessional, as he continually interrupted the deposition with commentary, gave
numerous improper instructions not to answer, berated opposing counsel, insulted
Plaintiff’s claims, mocked counsel’s questions, and generally acted in the most obnoxious
manner one could contemplate without crossing into parody. In doing so, he irreparably
disrupted the deposition, prevented relevant questioning relating to Plaintiff’s TCPA
response, and demonstrated his disrespect for the sanctity of these proceedings.
Spiro, a Madison Avenue celebrity lawyer, does not feel compelled to obey our rules.
As shown below, he has seriously overstepped his bounds, and sanctions should issue. 1
1
Trial courts possess the “inherent power to sanction for violations of the Disciplinary Rules.” Greene v. Young,
174 S.W.3d 291, 300 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). Where “an attorney's alleged misconduct
properly can be made the subject of a grievance,” the trial court is not “limited to referring the matter to
disciplinary authorities,” but may “use its inherent power to sanction the same conduct.” Westview Drive
Investments, LLC v. Landmark Am. Ins. Co., 522 S.W.3d 583, 616 (Tex. App.—Houston [14th Dist.] 2017, pet.
denied).
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LEGAL STANDARD
Plaintiff seeks sanctions under the Court’s inherent powers and under Rule 215.
“Texas courts have inherent judicial power that they may call upon to aid in the preservation
of their independence and integrity.” Public Util. Comm ‘n of Texas v. Coffer, 754 S.W.2d 121,
124 (Tex. 1988). Inherent power “exists to the extent necessary to deter, alleviate, and
counteract bad faith abuse of the judicial process.” Brewer v. Lennox Hearth Prods., LLC, 601
S.W.3d 704, 718 (Tex. 2020). Further, Rule 215 authorizes sanctions when a party “fails to
comply with proper discovery requests or to obey an order to provide or permit discovery,”
and such sanctions can include “an order that the matters regarding which the order was
made or any other designated facts shall be taken to be established.” Tex. R. Civ. P. 215.2(b).
FACTUAL BACKGROUND
I.
Brody’s Lawsuit.
Brody alleges that Musk posted remarks on Twitter which conveyed the defamatory
impression that Brody participated in a street brawl on behalf of a neo-Nazi group. (See
Petition, p. 19-38). On June 24, 2023, two far-right extremist groups were involved in a melee
during Portland’s Pride festival. During the brawl, two of members of the Rose City
Nationalists, a neo-Nazi group, had their masks removed. (Id., p. 19-21). The following day,
an anonymous social media user posted a photo of one of the unmasked brawlers alongside
a photo of innocent California resident Ben Brody. This user also included a screenshot of a
social media post from Brody’s fraternity stating, “After graduation, Ben plans to work for the
government.” The user claimed Brody was engaged in
Id., p. 21-22).
By the evening of June 25th, the rumor had started to spread, and over the next two
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college student who wanted to join the government. (Id., p. 22-34). On June 25th-26th, two
Twitter users showed Elon Musk the screenshots of Ben Brody along with his fraternity’s
social media message about Brody wanting to join the government, and Musk replied with
interest to their messages about Brody. (Id.).
The following morning, on June 27th, Musk tweeted a reply in which he tried to correct
a @zerohedge tweet that accused the brawler of being a member of law enforcement. Instead
of a member of law enforcement, Musk posted his conclusion that it looked like the brawler
was “a college student (who wants to join the govt)” who was engaged in “a probable false
:
Many readers of Musk’s tweet, both in the general public and among Brody’s personal
acquaintances, immediately understood that Musk’s reference about “a college student (who
wants to join the govt)” was aimed at Brody. Further, there was nothing in the @zerohedge
tweet or the linked article that discussed Ben Brody wanting to work for the government, so
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readers understood Musk must have acquired that information elsewhere. To readers of
Musk’s June 27th tweet, the statement conveyed the impression that Musk had seen
information which caused him to believe that the “college student (who wants to join the
govt),” i.e., Ben Brody, was one of the unmasked neo-Nazis, but readers could not judge the
quality or nature of his information. Thus, because Musk did not disclose the factual basis for
his opinion, his remarks were defamatory. Brody requested a retraction, Musk refused, and
Brody brought this suit for defamation per se.
II.
The Court’s Discovery Order.
!"#$%& *!#&*+
January 5, 2024. Brody responded with a Motion for Discovery. The Court granted Brody’s
Motion for Discovery on February 21, 2024. The Court ordered Musk to answer written
discovery by March 15th and to appear for deposition by April 1st on four topics, all relating
to Musk’s level of fault. The Court also reset the TCPA hearing for April 22nd.
III.
Musk’s Deposition.
Musk appeared for deposition on March 27th. Musk’s testimony was devastating to his
defense, which was almost certainly one of the causes of the misconduct discussed in this
motion. During his deposition, Musk:
2
3
x
Admitted he intended to refer to Ben Brody. 2
x
Admitted that he intended to communicate the idea that he had
seen information supporting the allegation that Ben Brody was one
of the neo-Nazi brawlers. 3
Exhibit 1, Musk Deposition, 33:11-23; 35:23-36:3. A video of the deposition will be provided to the Court.
Id. at 34:4-10.
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x
Admitted that he did not disclose the source or nature of his
information, and that readers of his tweet would have no idea what
information he was relying on for his conclusion. 4
x
Admitted that he relied solely on a pair of highly dubious tweets,
and that he acquired no other information about Brody or the neoNazi brawler. 5
x
Admitted that his source of information showed indications of
unreliability. 6
x
Admitted that he performed no investigation into the facts
whatsoever. 7
x
Admitted that he made the statement with substantial doubts
about whether it was true. 8
In sum, Musk admitted to all the material allegations in Brody’s Petition. Yet as
damaging as it was, Musk’s deposition could have gone even worse but for the obstructionist
conduct of the attorney defending the deposition. In this case, Musk has been represented by
two Texas attorneys -- Emiliano Delgado and John Bash. Both of these attorneys appeared on
Musk’s behalf at the discovery hearing. However, neither of these attorneys were present at
Musk’s deposition. Instead, and unbeknownst to Plaintiff’s counsel, out-of-state attorney
Alex Spiro showed up to the deposition with no notice. Spiro is not licensed in Texas, nor is
he admitted pro hac vice. As shown below, Spiro continually interrupted the testimony,
4
Id. at 36:20-37:13.
As the Court is likely aware, these facts render the statement defamatory. See, e.g., Restatement (Second) of
Torts § 566 (1977) (“If the defendant expresses a derogatory opinion without disclosing the facts on which it
/ /
by the existence of unexpressed defamatory facts.”). Thus, Musk’s tweet was “issued upon a concealed set of
DeLuca v. New York News Inc., 109 Misc. 2d 341,
352, 438 N.Y.S.2d 199, 206 (Sup. Ct. 1981).
5
Id. at 20:13-21:6.
Id. at 79:7-11.
7 Id. at 20:5-12; 20:25-21:2.
8 Id. at 33:24-34:3.
6
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injected his commentary in front of the witness, berated opposing counsel, gave numerous
instructions not to answer relevant questions, and generally attempted to derail an obviously
damaging deposition, all while Spiro $
As a result, the Court’s rules have been , and Brody was prevented from a full inquiry
on the issue of actual malice. 9
ARGUMENT
I.
Alex Spiro Repeatedly and Willfully Engaged in Unauthorized Practice of Law.
Under the Texas Disciplinary Rules, “a lawyer shall not practice law in a jurisdiction
where doing so violates the regulation of the legal profession in that jurisdiction.” See Tex.
Disciplinary R. Prof'l Conduct 5.05. Under the Government Code, a person may not practice
law in Texas unless they are a member of the State Bar of Texas or meets the requirements of
Supreme Court rules allowing for limited practice by attorneys licensed in another
jurisdiction. See Tex. Gov’t Code § 81.102. The Texas pro hac vice rule requires an application
to the State Bar as well as a sworn motion for admission to the trial court which must be
granted before the nonresident attorney can practice law in Texas. See Rule XV of the Rules
< * = !">!"
preparation of a pleading or other document incident to an action or special proceeding or
the management of the action or proceeding on behalf of a client before a judge in court, as
well as a service rendered out of court.” Tex. Gov’t Code § 81.101(a).
Out-of-state attorneys can enter a “valid retainer agreement” before they have “been
admitted pro hac vice,” see Shapiro, Lifschitz & Schram, P.C. v. R.E. Hazard, Jr. Ltd. Pshp., 24 F.
9
= ? argument, Brody must
still respond to the TCPA Motion as though it were genuine.
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Supp. 2d 66, 81 (D.D.C. 1998), and “[a]ctivities in contemplation of such admission are also
authorized, such as investigating facts or consulting with the client within the jurisdiction
.” Dorsey v. Home Depot U.S.A., Inc., 271 F.
Supp. 2d 726, 729 (D. Md. 2003). But out-of-state attorneys can do nothing more unless they
are admitted pro hac vice. Here, Spiro committed unauthorized practice in three ways: (1)
He prepared and signed pleadings, (2) he showed up unannounced to defend (and disrupt)
Musk’s deposition, and (3) he drafted and served subsequent legal demands on the Plaintiff.
A.
Alex Spiro committed unauthorized practice of law by preparing
and signing his name on a Texas pleading.
Despite not being authorized to practice in Texas, Alex Spiro prepared and personally
signed Musk’s TCPA Motion to Dismiss
that document. Q
#
attesting to the exhibits in the motion. These actions were unauthorized practice of law, and
this fact alone supports sanctions and denial of future pro hac vice admission in this case.
This set of facts is similar, though more egregious, than the facts of In re Autozoners,
where in the Relator’s answer, “[f]ollowing [local counsel’s] signature block, the pleading
included like information for Relator's nonresident attorneys.” In re Autozoners, LLC, 649
S.W.3d 774, 776 (Tex. App.—El Paso 2022, no pet. h.). The signature blocks for the nonresident attorneys indicated they were licensed in another state and indicated that an
“application for pro hac vice admission would be forthcoming.” Id. When that application was
later heard by the trial court, it was denied due to unauthorized practice. Id.
The facts in Autozoners were less incriminating than this case. The attorney in
Autozoners “disagreed that she had engaged in the unauthorized practice of law merely
because her name appeared in the signature block below [local counsel’s] name and
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signature.” Id at 777. Unlike Spiro, who personally signed the motion, the attorney in
Autozoners “stated that [local counsel] had prepared and signed the answer” with her name
listed underneath. Id. Nonetheless, the El Paso court rejected this argument.
The El Paso court ruled that the trial court properly found that “by appearing in the
themselves as representing Relator in the cause even before the court had actually granted
admission pro hac vice, regardless of their additional assertion of a forthcoming motion.” Id.
at 780. Thus, the trial court was held to have properly denied the pro hac vice application
based on their unauthorized practice. Id.
In reaching this ruling, the El Paso court noted that that the Dallas court of appeals
likewise found unauthorized practice “where a nonresident attorney's information was
prematurely included on a party's initial pleading before the attorneys had been properly
admitted by the courts.” Id., citing In Re Pine Tree Capital, LLC, No. 05-22-00105-CV, 2022 WL
500035, at *1 (Tex. App.-Dallas Feb. 19, 2022, orig. proceeding) (mem. op.) (denying pro hac
vice due admission due to unauthorized practice, where nonresident attorney placed his
signature block on a pleading along with those of a member of the Texas Bar before gaining
pro hac vice admission).
The El Paso court noted that other jurisdictions with the same pro hac vice rules have
reached the same conclusion. See id. at n. 1, citing Isom v. Valley Forge Ins. Co., 716 Fed.Appx.
280, 288 (5th Cir. 2017) ( $ where nonresident attorney’s name
appeared on the complaint before being granted pro hac vice admission, noting that the
denial of application was mandatory if an applicant made an appearance before securing
approval); In re Nevins, 60 V.I. 800, 803-04 (V.I. 2014) (inclusion of nonresident attorney's
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name on signature page of brief before pro hac vice petition was unauthorized practice of
law, and the fact that the words "pro hac vice application pending" appeared after the
nonresident attorney's name did not "render his conduct any less improper"); In re
Williamson, 838 So.2d 226, 235 (Miss. 2002) ( $
where
nonresident attorney's name appeared on the complaint before his pro hac vice application
was granted and warning that "attorneys are hereby noticed and cautioned that a foreign
attorney will be deemed to have made an appearance in a Mississippi lawsuit if the foreign
attorney signs the pleadings or allows his or her name to be listed on the pleadings."). These
decisions involved cases in which the attorneys’ names appeared below local counsel, and in
which they disclaimed any involvement in drafting, but their actions were still held to
constitute unauthorized practice. In this case, Spiro personally signed the TCPA motion and
gave an attestation to the exhibits.
B.
Alex Spiro next committed unauthorized practice of law by defending a
deposition in a Texas proceeding.
Unlike Autozoners, which was limited to a signature block on a pleading, Spiro’s
unauthorized practice is much worse. Spiro decided to show up unannounced to Musk’s
deposition, make an appearance as his attorney, and represent Musk during his testimony.
Plaintiff’s counsel were not informed Spiro would appear at the deposition, and none of
Musk’s Texas attorneys even attended the deposition.
As the Delaware Supreme Court observed, “one of the principal purposes of the pro
hac vice rules is to assure that” either a local lawyer or a “lawyer admitted pro hac vice” will
“be present at a deposition,” as “ [ ] Court, subject to control of the Court to
ensure the integrity of the proceeding.” Paramount Commc'ns v. Qvc Network, 637 A.2d 34, 56
(Del. 1994). Importantly, pro hac vice requirements also ensure the attorney is familiar with
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the state’s rules, procedures, and ethical standards. As such, Musk “should have been
represented at the deposition by a [Texas] lawyer or a lawyer admitted pro hac vice.” Id. at
55. Here, Plaintiff’s counsel noted that he was “very concerned” that Spiro “came to this
deposition to practice law in violation of Texas law with no pro hac admission.” 10 As shown
below, Spiro mocked these concerns.
In doing so, Spiro broke his ethical duties. “Without admission pro hac vice, out-ofstate attorneys … actively participating in pretrial proceedings such as depositions … would
be engaged in the unauthorized practice of law in this state.” In re Roswold, 249 P.3d 1199,
1208 (Kan. 2011); see also Forbes v. Hixson, 145 So. 3d 1124, 1136 (Miss. 2014) (“[P]hysically
appearing at ... a deposition ... or any other proceeding in which the attorney announces that
he or she represents a party to the lawsuit … require[s] a foreign attorney to be admitted pro
hac vice.”); see also In re Hughes, 833 N.E.2d 459, 460 (Ind. 2005) (violation of professional
conduct rule for Indiana lawyer to permit Michigan attorney to handle depositions and
mediation in Indiana case); In re York, 2010 MP 11, ¶ 2 n.3, 8 N. Mar. I. 476, 477 (“After the
Court learned of Murray's participation in the deposition [before his pro hac vice admission],
$ ^ -granted pro
hac vice status.”); Smith v. Hastings Fiber Glass Prods., No. 11-0894, 2014 U.S. Dist. LEXIS
81125, at *11-12 (W.D. La. 2014) (Noting that attorney “could not have participated in out of
court proceedings such as depositions” without “admission pro hac vice in this case … unless
he was engaged in the unauthorized practice of law.”); In re Cortigene, 13-2022 (La.
02/14/14), 144 So. 3d 915, 918-20 (Holding that non-resident attorney “engaged in the
practice of law in this state by appearing at and participating in a deposition” and that the
10
Exhibit 1, Musk Depo., 104:1-4.
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“appropriate sanction for such misconduct would be a three-year suspension” when attorney
“participated in the deposition of [client] taken in New Orleans by another party,” and
“advised [client] ‘once or twice’ to either answer or not answer a particular question,” even
though another attorney “predominantly did the questioning and the objecting.").
Yet as later discussed in Section II, below, Spiro’s unauthorized practice of law was
greatly exacerbated by his outrageous conduct throughout the deposition.
C.
Alex Spiro next committed unauthorized practice of law by drafting and
serving legal demands on counsel of record in a Texas proceeding.
On March 27, 2024, following his improper appearance at Musk’s deposition and his
unprofessional conduct therein, Spiro sent a letter to Brody’s counsel. (Ex. 3, Spiro letter).
This letter informed Brody’s counsel that an emergency motion was being prepared, and the
letter made legal demands on Brody, his attorneys, and consulting expert.
Thus, even after being confronted during the deposition about his lack of authority to
practice law in Texas, Spiro continues to engage in unauthorized practice.
II.
While Committing Unauthorized Practice, Alex Spiro Engaged in Abusive
Litigation Conduct.
A.
Spiro’s conduct in Musk’s deposition was unacceptable.
Plaintiff began the deposition with a simple question that inquired into Musk’s
subjective state of mind about his fault: “Do you think you did anything wrong to Ben Brody?”
In a bizarre and combative outburst, Spiro interrupted { chastised Brody’s
counsel, instructed his client not to answer, insisted that Brody’s counsel “just showed your
cards that this case is DOA.” 11 Following these derisive and unnecessary remarks, Plaintiff’s
counsel requested Spiro abide by Tex. R. Civ. P. 199.5. Yet Spiro refused, and almost
11
Id. at 6:25.
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immediately thereafter, Spiro decided he would interrupt questions and answer them
himself, and then berate Plaintiff’s counsel when again asked to follow the rules:
Q. Mr. Musk, I'm referring to the fact that on June 24th, 2023, as
described in the plaintiff Ben Brody's lawsuit, there was a brawl in
Oregon between right wing extremists. Were you aware that that
was the subject matter of the lawsuit?
MR. SPIRO: I don't know that that's the subject matter of the lawsuit.
I think the subject matter of the –
MR. BANKSTON: A subject matter of the lawsuit. And, Mr. Spiro, again,
your objections to questions in an oral deposition under Rule 199.5
are limited to objection; leading and objection; form, or objection;
nonresponsive. Those objections are waived if not stated as phrased.
All other objections need not be made or recorded during the oral
deposition to be raised to the court. You must not give any suggestive
or argumentative or any explanations during the deposition.
MR. SPIRO: Well, then don't say things that are misleading.
MR. BANKSTON: No. That's not -- that's why you should object to the
form of the question.
MR. SPIRO: No, no, it's not –
MR. BANKSTON: That's misleading. Mr. Spiro, you know -- Mr. Spiro -MR. SPIRO: Listen, if you want to go back and forth with me and waste
your time, you can. Go on to your next question.
MR. BANKSTON: Oh, we're going to get more time if you keep doing
this.
MR. SPIRO: No, you're not. No, you're not. Go to the judge -MR. BANKSTON: You're violating Rule 199, you're not even pro hac
admitted.
MR. SPIRO: Okay. Okay. You're just giving speeches that nobody's
listening to but you. You're just doing them for yourself.
MR. BANKSTON: Oh, they're for the record, Mr. Spiro, they're for the
court to listen to.
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MR. SPIRO: Okay. So keep -MR. BANKSTON: And I would appreciate it -- I'm going to give you an
instruction. I would appreciate it if you would abide by Rule 199.5 of
the Texas Rules - }Q&>}~> times.
MR. BANKSTON: Mr. Spiro, please do not interrupt me.
}Q&>}~> times.
MR. BANKSTON: Mr. Spiro, please do not interrupt me. I'm asking you
on the record to obey Rule 199.5. If you continue to violate Rule 199.5,
I will move for sanctions against you. So I please ask you to obey the
rules in the remainder of this deposition. 12
Regrettably, Spiro continued to act in a ridiculously unprofessional manner for the
entirety of the deposition. In fact, during his next interruption moments later, Spiro indicated
that he didn’t care about following deposition rules:
MR. SPIRO: I am going to interrupt again, and I don't really care that
rule you keep reading because it has nothing to do with –
MR. BANKSTON: I know you don't.
MR. SPIRO: Good. 13
Spiro’s outrageous conduct continued to grow more unprofessional as he grew
angrier, and the deposition was continually interrupted by his snide and ridiculous
commentary:
MR. SPIRO: This isn't like a real case. This is just some stupid -MR. BANKSTON: Mr. Spiro.
MR. SPIRO: Yeah, so --
12
13
Id. at 10:3 – 12:7.
Id. at 12:21-25.
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MR. BANKSTON: Lawyers do not -- It is not in accordance with the
Lawyer's Creed to just start making random statements about the
alleged frivolity of a case to a lawyer in a deposition. You know that's
not proper. You know that.
MR. SPIRO: Do you give these lectures in all of your depositions? 14
Spiro continued to express his indifference to the rules, and throughout the
deposition, Spiro continued to interrupt with sarcasm and mocking remarks:
x
“I'm surprised you don't know they're not proper questions.” 15
x
“Maybe just ask proper questions.” 16
x
“There's nothing about me saying that that changes what he's going
to answer. That's not how witness coaching works. I'm surprised
you don't know that.” 17
x
“Any judge reviewing this will tell you it's not a proper question.” 18
During yet another interruption, when Plaintiff’s counsel again expressed his alarm
that the deposition wasn’t being defended by a Texas lawyer, Spiro stated, “
these silly frivolous shakedown cases, I'll -- I'll keep trying to think of Texas lawyers to
bring to your deposition.” 19 Plaintiff’s counsel is not sure what the second part of this
comment meant exactly, but it was clear Spiro was engaged in scorn, as well as accusing
Plaintiff’s counsel of a fraudulent and potentially illegal “shakedown.” Spiro continued these
attempts at ridicule throughout the deposition, stating, for example:
x
“You're running out of time. I know this is your big day in the sun.
You're running out of time.” 20
14
Id. at 14:5-15.
Id. at 38:15.
16 Id. at 38:22.
17 Id. at 38:23-39:1.
18 Id. at 39:3-5.
19 Id. at 43:12-15.
20 Id. at 43:23-44:2.
15
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x
“I think this is nonsense and you know it.” 21
x
“This isn’t – this isn’t productive.” 22
x
“I don’t understand why you’re doing this. You're just wasting
everybody's time.” 23
At the end of Musk’s extraordinarily damning testimony, Spiro demanded the
. When
informed that there was no protective order in place and that parties must seek protection
under Rule 192.6 before discovery is produced, Spiro repeated his baseless
demand and angrily abandoned the Zoom call before the parties concluded the record and
before the court reporter could ask if Musk would choose to read and sign the transcript. 24
Following the deposition, Spiro wrote declarations in support of multiple “emergency
motions” attempting
These motions were frivolous. Spiro
simply did not want damaging testimony to become public knowledge.
B.
Spiro’s conduct merits sanctions under Texas law.
An identical situation was discussed by the San Antonio court in Harvest Communities.
In that case, an attorney engaged in almost identical deposition misconduct. First, the
offending attorney was “not shy to put on the record what he thought about the ability of
[opposing] counsel to ask questions.” In re Harvest Communities of Houston, Inc., 88 S.W.3d
343, 346 (Tex. App.—San Antonio 2002). That attorney characterized deposition questions
as “incredible,” “nonsense,” “an incredible waste of time,” “preposterous,” and “absurd,” as
21
Id. at 104:15.
Id. at 7:18-19.
23 Id. at 106:4-5.
24 Id. at 107:13-108:20.
22
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well as stating that “counsel had asked ‘the most preposterous questions I've seen in nearly—
in 39 years of practicing law, I've never seen anybody like you.’” Id. As the court rightly noted,
“[s]uch comments clearly are not in keeping with a lawyer's responsibilities under the Texas
Disciplinary Rules of Professional Conduct.” Id. Further, the questioning attorney in Harvest
Communities was “repeatedly interrupted by long, argumentative objections.” Id. Also, just
like here, “[r]eminders by [opposing] counsel to [the offending attorney] regarding the
applicable Rules of Civil Procedure and efforts to ensure that [the offending attorney]
complied with the rules were given short shrift.” Id. Like in this case, “[i]n a typical exchange
during the deposition, [opposing] counsel complained of [the offending attorney’s] speechmaking and reminded [him], ‘You're entitled to make the objection as to form — and then
you are to stop.’ Counsel's reminder was a fair restatement of Rule 199.5(e), but [the
offending attorney’s] response was: ‘You're not going to tell me a thing. You just keep your
mouth shut. We're through.’” Id.
Every attorney, whether authorized to practice in Texas or not, should be aware of
how to behave at a deposition. “[I]t is to be conducted in a manner that simulates the
” Soule v. RSC Equip. Rental, Inc., No. 11–
2022, 2012 WL 5060059, *2 (E.D. La. Oct. 18, 2012). Emotions may run high, voices might be
raised, but reputable attorneys do not ridicule, demean, and disrupt, all while mocking the
rules. Deviating from these standards cannot be allowed, as the D.C. federal court explained:
Behavior of the type this record reveals demeans the participants,
demeans the witnesses and demeans the very system and essence of
justice itself. It simply cannot be tolerated. A deposition is an extension
of a judicial proceeding. It should be attended and conducted with the
same sense of solemnity and the same rules of etiquette that would be
required were the parties in the courtroom itself.
Alexander v. F.B.I., 186 F.R.D. 21, 52 (D.D.C. 1998).
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As noted by the San Antonio court when faced with identical misconduct, “[t]he trial
court was well within his discretion to assess sanctions in this case, including harsh
sanctions. Such attorney misbehavior demeans the entire profession, and should be
punished.” In re Harvest Communities, 88 S.W.3d at 347; see also Paramount Commc'ns, 637
A.2d at 52 (Chastising the “lack of professionalism” and “misconduct during a deposition”
involving celebrity attorney Joe Jamail, who appeared at deposition though “not admitted pro
hac vice” while “improperly direct[ing] the witness not to answer certain questions” and
acting in a “rude, uncivil, and vulgar” manner, which the Delaware Supreme Court called “a
lesson of conduct not to be tolerated” which “cries out for relief under the trial court's rules.”).
III.
While Engaged in Unauthorized Practice, Alex Spiro Improperly Instructed
Musk Not to Answer Relevant, Non-Privileged Questions.
A.
Spiro prevented relevant questioning about Musk’s prior denial of neoNazi violence and any warnings he received.
To show actual malice, Plaintiff would need to show that when Musk made the
accusation that the neo-Nazi -op, Musk consciously
disregarded a substantial risk. Plaintiff alleges that Musk was consciously aware of the risk
his conduct posed because
a reckless series of statements in which he wrongly claimed that an act of neo-Nazi violence
was actually -op, just like this case.
On May 6, 2023, a neo-Nazi mass shooter murdered shoppers at an outlet mall in
Allen, Texas. The shooter had multiple Nazi tattoos and engaged with neo-Nazi materials
online. Just like in this case, Musk spent the days after the shooting bantering with rightwing
extremists -op and denying that the shooter
was actually a neo-Nazi. And just like in this case, Musk relied on baseless information from
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to make an absurd accusation. Plaintiff’s counsel tried to
question Musk about this experience and its impact on his state of mind a month later when
denying another act of neo-Nazi violence as a psy-op based on ridiculous rumors from
rightwing extremists. Unfortunately, Spiro shut down any inquiry before it could even begin:
Q. Do you remember just a couple of weeks before this meme in the -when the Allen, Texas, neo-Nazi shooting happened, about you using
the term psyop for that event?
MR. SPIRO: I think this is outside the court order, so I'm not going to
allow you to answer this question. You can keep going.
MR. BANKSTON: So you're going to instruct him not to answer it?
MR. SPIRO: 25
Later in the deposition, Plaintiff’s counsel revisited the topic, hoping its relevance had
become apparent over the course of the deposition. Plaintiff’s counsel told Musk:
I want to talk about if in your mind you were aware or considering any
warnings you had been given say in the past few months about the
level of care you were showing in your tweets … And during that time,
I want to ask you about some situations if people have ever voiced
concern about the level of care you were showing when tweeting
about factual events. 26
During this questioning, Plaintiff’s counsel again asked about the neo-Nazi mass
shooting on which Musk commented in the month prior to defaming Plaintiff. However, Spiro
again cut off any questioning before it could even begin:
Q. A month before the events of this case was the neo-Nazi mass
shooting in Allen, Texas?
MR. SPIRO: Look, I'm going to object again. I was going to let you do a
couple of these because it's not worth necessarily arguing about each
and every one even though I don't think it's relevant, but you're not
backdooring all this stuff in through the fourth category that the judge
25
26
Id. at 17:20-18:4.
Id. at 69:6-19.
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proposed when in the judge's instructions they very much limit the
tweets in question in this case. And so we're not going to do any more
on it. So I'm instructing Mr. Musk not to answer any more questions
about any other tweets in this case for the rest of this deposition. You
can go to the judge if you don't like that instruction.
MR. BANKSTON: Let's put it on the record that your statement is just
incorrect. The order does not limit me to the tweets in this case -MR. SPIRO: We disagree. We disagree whether -- whether the judge is
sitting here -- we would disagree whether if the judge was sitting here
would allow you to go through each and every tweet so.
MR. BANKSTON: Okay. I'm going to start over before you interrupted
me and I am going to go ahead and state what I said I need to put on
the record. Again, this is not for you; this is for the judge, right? I am
now being told that there are events that I want to talk to him about
about whether he's been given warnings about his level of care. These
are not about tweets in the case. These are about the topic of his state
of mind at the time the alleged defamatory statement was allegedly
published, and warnings he may have received in advance of that
tweet about the level of care that he was habitually showing are
clearly relevant. I've now been told I'm not going to be allowed to ask
any more questions about that. 27
When questioning Musk about his state of mind on the day he falsely denied a violent
neo-$ , Plaintiff should have been able to question
Musk about the impact of his experience one month prior in which he was widely chastised
for falsely denying the reality of a violent neo-$ . Yet
this was hardly the only subject in which Plaintiff’s counsel was prevented from inquiring.
B.
Spiro prevented relevant questioning about Musk’s use of Twitter posts
as a news source.
On the same day as Musk’s defamatory tweet, Musk also made a comment about the
difference between consuming news on Twitter versus the traditional media. Musk stated,
27
Id. at 75:16-77:3.
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"The thing about traditional news is by the time they actually publish anything, it's not news
anymore." 28 Plaintiff’s counsel initiated a line of inquiry about this statement:
Q. Traditional news takes time to publish things whereas on Twitter,
you're reading about events before the news can even cover it. Is
that right?
MR. SPIRO: What's the relevance of this question to the fourth -MR. BANKSTON: His state of mind upon the information he relied on
it and why he relied on it.
MR. SPIRO: No, I don't see that. I don't see the relevancy of that
question. Don't answer that. 29
Plaintiff’s counsel would have questioned Musk about the difference between
traditional news and Twitter, including that Musk was aware of the substantial risk of false
information from real-time anonymous sources on Twitter, and that Musk consciously
disregarded that risk in favor of “pro-free speech” views he maintains about the Twitter
platform. In sum, an exploration of Musk’s remarks about traditional news versus Twitter
would have revealed his conscious choice to value speed over accuracy despite his subjective
awareness of the risk. Musk’s tweet, which occurred on the same day as the defamatory
tweet, was a subject reasonably calculated to lead to admissible evidence about Musk’s state
of mind at the time of the defamation. Spiro’s improper instruction foreclosed any possible
inquiry in this area.
C.
Spiro prevented relevant questioning about Musk’s sources for the
defamatory statement.
“[R]ecklessness may be found where there are obvious reasons to doubt the veracity
of the informant or the accuracy of his reports.” Warner Bros. Entm't, Inc. v. Jones, 538 S.W.3d
28
29
Id. at 62:9-11.
Id. at 63:6-15.
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781, 809 (Tex. App.—Austin 2017), aff'd, 611 S.W.3d 1 (Tex. 2020). It does not matter if the
publisher claims to be ignorant of the source’s unreliability at the time of the statement. For
instance, in Warner Bros, the court found evidence of malice when the defendants did not
“dispute that no one investigated Watson to determine whether he was a credible source,”
though information suggesting his potential unreliability was publicly available. Id. at 807.
The combination of an objectively unreliable source and a subjective failure to assess
credibility creates circumstantial evidence that the truth was avoided. See id.
Here, Plaintiff sought to question Musk about his two sources, a pair of Twitter
accounts named “DrFrensor” and “MattWallace888.” As noted above, Musk acknowledged
these two Twitter accounts were his only source of information about Ben Brody. Plaintiff’s
?
30
&% { %
page on the day of the incident and whether he had seen them or found them to indicate
unreliability. Yet Musk’s attorney shut down this questioning.
Spiro instructed Musk not to answer even though Spiro understood the relevance of
the questioning, stating, “I understand your point that if he had checked he could have seen
these things.” 31 Nonetheless, Spiro stated, “We're not going to do any more hypothetical, if
you had seen these tweets,” and wouldn’t allow any more questions about these users’
. 32 Spiro insisted that, “The point has been made,” and he instructed Musk, “We're not
30
Id. at 25:24-26:14.
Id. at 81:3.
32 Id. at 80:25.
31
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doing any more questions on this.” 33 Following Spiro’s instruction, Plaintiff’s counsel made a
record of why he was asking these questions:
I'm going to go ahead and make this record again for the Court
because once again I've been shut down in the relevance area. I am
facing a situation where I must prove certain facts which may have
triggered different duties in this case. One of those is not a subjective
analysis of whether the source is reliable, but an objective analysis of
the source is reliable. And if that source is unreliable, there is arguable
basis that a defendant will have to exercise greater care and that that
could avoided
any investigation into the credibility of an unreliable person. I would
like to establish (a) whether he has seen these tweets as though he has
already said he does not know and cannot tell me what tweets from
these people he has seen. And (2) I would like to establish these
people are unreliable. I understand that you're instructing the witness
not to answer it and so I will have to add that to whatever relief we're
going to seek from the court. 34
Questions about the reliability of Musk’s sources, and whether information about
those sources would have triggered reliability concerns, were appropriate inquiries relating
to malice as described by the Austin court in Warner Bros.
D.
Spiro prevented relevant questioning about the circumstances of Musk’s
refusal to retract his statement.
Plaintiff’s counsel raised the issue of Musk’s refusal to issue a retraction. Plaintiff’s
counsel asked Musk, “Knowing right now Ben is really upset that this tweet is still up and
that he wanted there to be a retraction, how do you feel about that?” 35 Spiro would not allow
Musk to answer:
MR. SPIRO: Now to the four deposition topics, we're on I guess topic
four. We've addressed one through three. How is that relevant to four?
MR. BANKSTON: Because in Gonzalez vs. Hearst Corp., 930 S.W.2nd
275, “a refusal to print a retraction is evidence of an action after the
33
Id. at 81:4-6.
Id. at 81:25-82:22.
35 Id. at 42:6-8.
34
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publication but it can lend support to a claim that reckless disregard
or knowledge existed at the time of publication.” Similarly, in New
Times vs. Issacks, Texas Supreme Court, 2004, 146 S.W.3rd 144,
“refusal to retract an "
malice and conversely a readiness to retract, tends to negate actual
malice.” So again I'm pose my question -MR. SPIRO: Yeah, I'll look at those cases but he's not answering that
right now. I don't see the relevance. I don't think those cases -- I'm
pretty >^ review the
cases so we can respond further. 36
Contrary to Spiro’s remarks, the cases are on-point, and they are consistent with other
authority regarding a defendant’s refusal to retract. “Refusal to retract an exposed error
.” Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066,
1071 (5th Cir. 1987); MMAR Grp. v. Dow Jones & Co., 987 F. Supp. 535, 548 (S.D. Tex. 1997)
(“Under certain circumstances, however, evidence of a refusal by a publisher to retract a
statement after it has been demonstrated to him to be both false and defamatory might be
relevant in showing recklessness at the time the statement was published.”). This line of cases
originates from the Restatement of Torts on actual malice. See Restat 2d of Torts, § 580A, cmt.
d (noting that “the defendant's refusal to retract a statement after it has been demonstrated
to him to be both false and defamatory … might be relevant in showing recklessness at the
time the statement was published.”). However, not all refusals to retract are equally probative
of actual malice. As the Restatement and Texas cases emphasize, it is only “under certain
circumstances” that a refusal to retract can suggest actual malice. Some refusals to retract
are driven by ill will, spite, or disregard. Other refusals to retract are driven by a genuine
36
Id. at 42:13-43:7.
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belief in the truth of the statement. Plaintiff was denied the opportunity to fully question
Musk about those circumstances. 37
IV.
Spiro Continually Disrupted the Deposition with Interruptions and Speaking
Objections.
In Texas, an attorney must limit “objections to questions during [an] oral deposition
to ‘Objection, leading’ and ‘Objection, form.’” In re Harvest Communities, 88 S.W.3d at 346. An
attorney who consistently makes “long, argumentative objections” is not only in violation of
Rule 199.5 but also the Texas Disciplinary Rules of Professional conduct. Id. at 346-47.
Here, Spiro’s obstructionist tactics, speaking objections, and interruptions all
This kind of conduct was examined in the oft-cited Abbott Labs opinion, which exhaustively
discussed the problem of deposition interruptions and speaking objections, noting they “are
an independent reason to impose sanctions.” Sec. Nat'l Bank of Sioux City, Iowa v. Abbott Labs,
299 F.R.D. 595, 609 (N.D. Iowa 2014). In Abbott Labs, “Counsel's interruptions while
defending depositions were grossly excessive,” given than “[c]ounsel’s name appears at least
92 times in the transcript of the Barrett–Reis deposition (about once per page).” Id. In Phillips
v. Manuf. Hanover Trust, 1994 WL 116078 (S.D.N.Y. Mar. 29, 1994), a lawyer was sanctioned
37
Another troubling issue should be noted for context. During his deposition, Musk was asked about a Twitter
account called @ermnmusk that he was rumored to use. (Id. at 44:11-12; see also Ex. 2, @ermnmusk account).
with tweets on this account around the time when Brody was defamed. (Id. at 45:17). Thus, information Musk
interacted with on this account near the time of the defamation could be relevant to Brody’s claims. However,
when Plaintiff’s counsel checked the account after the deposition, they discovered it had been deleted.
According to @BigTechAlert, an automated bot that tracks Twitter activity, it appears the @ermnmusk account
was deleted on or about February 21, 2024: https://twitter.com/BigTechAlert/status/1762064280961110198
This deletion is alarming because February 21, 2024 is the date of the Court’s discovery order. In other words,
after almost a year of inactivity on the account and with no recent public discussion about it, it appears Musk
chose to delete the account on the day the Court ordered discovery to go forward, which is either intentional
spoliation or an extraordinary longshot coincidence.
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when he “objected or otherwise interjected during [the examiner's] questioning of the
deponent at least 49 times though the deposition lasted only an hour and a half” in which
“approximately 60 percent of the pages of the transcript contain such interruptions.” In
Bordelon Marine, Inc. v. F/V Kenny Boy, 2011 WL 164636, 14, 999 (E.D. La. Jan. 19, 2011),
sanctioned counsel “objected or provided commentary…on 170 pages of the 360–page
transcript.”
Here, Spiro’s name appears on the transcript 170 times in a 110-page deposition, and
his numerous interruptions frequently contained commentary that coached the witness.
Through his constant interruptions and commentary, Spiro “completely shut down many
segments of the deposition, issued several instructions not to answer that were wholly
inappropriate, completely interrupted, and made objections outside of Rule 199.5.” 38 This
strategy
[ ] Counsel defended,” and it likewise
amounts to sanctionable discovery abuse. Abbott Labs, 299 F.R.D. at 606.
CONCLUSION
Due to his sense of entitlement, Spiro brazenly engaged in unauthorized practice of
law. That same sense of entitlement led to Spiro’s unprofessional behavior in deposition, as
he continually interrupted the deposition with commentary, gave numerous improper
instructions not to answer, berated opposing counsel, insulted plaintiff’s claims, mocked
counsel’s questions, and attempted to derail damaging testimony. In doing so, he disrupted
the deposition, prevented relevant questioning relating to Plaintiff’s TCPA response, and
demonstrated his disrespect for these proceedings. As such, Plaintiff asks the Court to enter
remedial sanctions under its inherent powers and Rule 215.
38
Id. at 109:9-13.
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Respectfully submitted,
FARRAR & BALL, LLP
____________________________________
MARK D. BANKSTON
State Bar No. 24071066
KYLE W. FARRAR
State Bar No. 24034828
WILLIAM R. OGDEN
State Bar No. 24073531
1117 Herkimer
Houston, TX 77008
(713) 221-8300
CERTIFICATE OF CONFERENCE
> >
Defendant is opposed to the relief sought.
____________________________________
MARK D. BANKSTON
CERTIFICATE OF SERVICE
I hereby certify that on April 8, 2024, the forgoing brief was served upon all counsel
of record via electronic service.
____________________________________
MARK D. BANKSTON
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1MBJOUJGGhT
1SPQPTFE
0SEFS
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D-1-GN-23-006883
BENJAMIN BRODY,
Plaintiff
VS.
ELON MUSK,
Defendant
§
§
§
§
§
§
§
IN DISTRICT COURT OF
TRAVIS COUNTY, TEXAS
459th DISTRICT COURT
ORDER ON PLAINTIFF’S MOTION FOR SANCTIONS
On this day, the Court considered Plaintiff’s April 8, 2024 Motion for Sanctions. The
Court finds that out-of-state attorney Alex Spiro engaged in unauthorized practice of law by
signing Musk’s pleadings, showing up unannounced to defend Musk’s deposition, and
drafting and serving subsequent legal demands to Plaintiff in this case.
!# Q %
he
repeatedly interrupted the deposition with commentary, that he gave numerous improper
instructions not to answer, that he berated opposing counsel, that he insulted Plaintiff’s
claims, and that he mocked counsel’s questions.
! # disrupted the deposition, prevented relevant
questioning relating to Plaintiff’s TCPA response, and demonstrated disrespect for the
sanctity of these proceedings.
* # &% <}*! , and that
sanctions be assessed under Rule 215(b) and the Court’s inherent powers.
The Court therefore ORDERS that:
1.
Plaintiffs are awarded the reasonable value of legal services and expenses in
connection with taking the deposition of Elon Musk and bringing their Motion for Sanctions.
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2.
Plaintiffs are also awarded conditional appellate fees should this order be
unsuccessfully appealed. Any post-judgment interest on appellate attorney’s fees shall not
3.
%/ .
Pursuant to Rule 215(b), the following designated facts shall be taken to be
established for the purposes of Defendant’s TCPA Motion: ______________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________.
4.
The Court enters the following other remedies: _________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________
________________________________________________________________________________________________________.
5.
!#
to accomplish their purpose, including securing compliance with the relevant rules of civil
procedure, punishing violators, deterring other similarly situated attorneys from
misconduct, and remedying the prejudice to Plaintiff’s in responding to Defendant’s TCPA
Motion to Dismiss.
6.
The Court DENIES the pending application of Alex Spiro for pro hac vice
admission.
Dated ___________________________, 2024.
_____________________________________
Presiding Judge
Page 2 of 2
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&YIJCJU
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·1· · · · · · · · ·CAUSE NO. D-1-GN-23-006883
·2
·3·
· ·
·4·
· ·
·5·
· ·
·6·
BENJAMIN BRODY,· · · · · · · ) IN THE DISTRICT COURT OF
· · ·Plaintiff· · · · · · · ·)
· · · · · · · · · · · · · · ·)
VS.· · · · · · · · · · · · · )· · ·TRAVIS COUNTY, TEXAS
· · · · · · · · · · · · · · ·)
ELON MUSK,· · · · · · · · · ·)
· · ·Defendant· · · · · · · ·)· · ·459TH DISTRICT COURT
·7
·8· · · · · · · ORAL AND VIDEOTAPED DEPOSITION OF
·9
10· · · · · · · · · · · · · ELON MUSK
11
12· · · · · · · · ·(VIA ZOOM VIDEOCONFERENCE)
13
14· · · · · · · · · · · MARCH 27TH, 2024
15
16· · · · · · ORAL AND VIDEOTAPED DEPOSITION OF ELON MUSK,
17· produced as a witness at the instance of the plaintiff,
18· and duly sworn, was taken in the above styled and
19· numbered cause on MARCH 27TH, 2024, from 1:05 p.m. to
20· 3:19 p.m., before Deborah Tidwell, Certified Shorthand
21· Reporter in and for the State of Texas, reported by Zoom
22· Videoconference, and stenographic means pursuant to the
23· Texas Rules of Civil Procedure and the provisions stated
24· on the record or attached hereto.
25
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Musk, Elon
03-27-2024
2
•1• • • • • • • • • • A P P E A R A N C E S
•2
•3• FOR THE PLAINTIFF:
•4• Mark D. Bankston, Esquire and
• • William R. Ogden, Esquire
•5• FARRAR & BALL, LLP
• • 1117 Herkimer
•6• Houston, Texas 77008
• • Telephone:• 713.221.8300
•7• E-Mail:• Mark@fbtrial.com
•8• FOR THE DEFENDANT:
•9• Alex Sprio, Esquire
• • QUINN EMANUEL URQUHART & SULLIVAN, LLP
10• 52 Madison Avenue, 22nd Floor
• • New York, New York 10010
11• Telephone:• 212.849.7000
• • E-Mail:• alexspiro@quinnemanuel.com
12
13• ALSO PRESENT:
14• A.J. Grant, Farrar & Ball, LLP
15
16• VIDEOGRAPHER:
17• Robie Rowley
18
19
20
21
22
23
24
25
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Musk, Elon
03-27-2024
3
•1• • • • • • • • • • • • • I N D E X
•2• • • • • • • • • • • • • • • • • • • • • • • • • PAGE
•3• Appearances...................................• • 2
•4• Stipulations..................................• • 4
•5• Witness: ELON MUSK
• • • • • • •Examination by Mr. Bankson...........• • 5
•6
•7• Witness Changes and/or Amendments Page........• 112
•8• Witness Signature Page........................• 113
•9• Reporter’s Certificate Page...................• 114
10
11• • • • • • • • • • • E X H I B I T S
12• EXHIBIT 1 - 6-24-23 Musk Psyop Tweet..........• •12
13• EXHIBIT 2 - 6-25-23 Musk sees Dr. Frensor
• • Tweet.........................................• •21
14
• • EXHIBIT 3 - 6-26-23 Musk Replies to Wallace
15• About Brody...................................• •26
16• EXHIBIT 4 - 6-27-24 Musk Reply to Zero Hedge..• •28
17• EXHIBIT 5 - Tab W - Musk Quote 1..............• •55
18• EXHIBIT 6 - Tab X - Musk Quote 2..............• •58
19• EXHIBIT 7 - Tab Y - Musk Quote 3..............• •59
20• EXHIBIT 8 - Tab Z - Musk Quote 4..............• •71
21• EXHIBIT 9 - Tab M - 6-25-23 UN Antisemetic
• • Meme..........................................• •78
22
• • EXHIBIT 10 - 6-25-23 Dr. Frensor Obamas
23• Transphobia...................................• •79
24• EXHIBIT 11 - Tab I - 1-20-24 Patriot Front 1..• •83
25• EXHIBIT 12 - Tab J - 1-20-24 Patriot Front 2..• •86
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Musk, Elon
03-27-2024
4
•1• • • • • • THE VIDEOGRAPHER:• We are on the record.
•2• Today’s date is March 27th, 2024, and the time is 1:05
•3• p.m.• This is the remote video-recorded deposition of
•4• Elon Musk.• This deposition is being conducted remotely
•5• with the witness and all parties in their preferred
•6• respective locations.• It is agreed and stipulated that
•7• all parties waive any objection to the physical location
•8• of the presiding officer at the time the oath is
•9• administered.
10• At this time will all attorneys in attendance please
11• state their appearance and who they represent for the
12• record, beginning with the attorney taking this
13• deposition.
14• • • • • • • • MR. BANKSTON:• Mark Bankston, Farrar &
15• Ball, representing the plaintiff, Ben Brody.
16• • • • • • • • MR. SPIRO:• And I guess that’s then to me,
17• Alex Spiro on behalf of Mr. Musk.
18• • • • • • • • THE VIDEOGRAPHER:• Will the court reporter
19• please swear in the witness.
20
21
22
23
24
25
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Musk, Elon
03-27-2024
5
•1• • • • • • • • • • • • •ELON MUSK,
•2• having first been duly sworn to testify the truth, the
•3• whole truth and nothing but the truth, testified as
•4• follows:
•5• • • • • • • • • • DIRECT EXAMINATION
•6• MR. BANKSTON:
•7• • • •Q.• Hi, Mr. Musk.• Can you hear me okay?
•8• • • •A.• I can.
•9• • • •Q.• Okay.• Do you think you did anything wrong to
10• Ben Brody?
11• • • • • • • • MR. SPIRO:• Okay.• This isn’t a question
12• you’re allowed to ask by the Court, so we’re not going
13• to do this, Mark, or this deposition is going to be over
14• before it starts.
15• • • • • • • • MR. BANKSTON:• I’m asking about his state
16• of mind.
17• • • • • • • • MR. SPIRO:• No, no, no.
18• • • • • • • • MR. BANKSTON:• Yes, I am.
19• • • • • • • • MR. SPIRO:• No.• You’re not going to ask -20• you’re not going to ask questions like that.• It doesn’t
21• have -22• • • • • • • • MR. BANKSTON:• I’m going to ask -23• • • • • • • • MR. SPIRO:• No, you’re not or you can go
24• see the judge.
25• • • • • • • • MR. BANKSTON:• Let me read something for
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Musk, Elon
03-27-2024
6
•1• the record, all right.• As you know, as the Court told
•2• you in Unsworth vs. Musk, the defendant’s subsequent
•3• conduct can be relevant to his state of mind at the time
•4• of the alleged defamation.
•5• • • • • • • • And as they say in Warner Brothers, actual
•6• malice may be inferred from the defendant’s acts, words
•7• before, at, or after the defamation.
•8• • • • • • • • And if he’s sitting here today and he has
•9• opinions about whether he did something wrong, that is
10• relevant to the state of mind at the time that he made
11• the statements.• Of course I can ask him do you think
12• you committed actual malice, do you think you were
13• reckless.• Of course I can ask those questions.• And,
14• yeah, we’ll go to the Court over that.
15• • • • • • • • MR. SPIRO:• You didn’t ask if he committed
16• actual malice.• Obviously -17• • • • • • • • MR. BANKSTON:• I didn’t.• I asked something
18• that was very relevant to that.• I’d like to get him
19• talking about things that he did wrong -20• • • • • • • • MR. SPIRO:• But that’s the point.• That’s
21• not what you’re allowed to do in this deposition.• You
22• can’t just get him talking.
23• • • • • • • • MR. BANKSTON:• I disagree -24• • • • • • • • MR. SPIRO:• You just showed your cards that
25• this case is DOA and you can’t just get him talking as
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Musk, Elon
03-27-2024
7
•1• you just put it.
•2• • • • • • • • So you’ve got four bullets -•3• • • • • • • • MR. BANKSTON:• Yes, I can.• Alex -- Alex -•4• • • • • • • • MR. SPIRO:• -- one, two, three, and four.
•5• • • • • • • • MR. BANKSTON:• Alex -•6• • • • • • • • MR. SPIRO:• You’ve got one, two, three and
•7• four -•8• • • • • • • • MR. BANKSTON:• All right.• Hold on a
•9• second.
10• • • • • • • • MR. SPIRO:• -- so if you want to ask him
11• those bullets, you can go through those bullets and ask
12• him.
13• • • • • • • • THE REPORTER:• One at a time, please.
14• • • • • • • • MR. BANKSTON:• Yeah, let’s go ahead and
15• take a breath, Alex.• First of all, I know you’re not a
16• Texas attorney.• I know you don’t know Rule 199.5,
17• right?• I know you’re not even pro hac in this case -18• • • • • • • • MR. SPIRO:• This isn’t -- this isn’t
19• productive.• You want to go ask another question, go ask
20• another question.• You’re lecturing -21• • • • • • • • MR. BANKSTON:• Are you instructing him not
22• to answer?
23• • • • • • • • MR. SPIRO:• You can try to ask the question
24• again and I’ll listen to it again.
25• • • • • • • • MR. BANKSTON:• Are you going to instruct
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Musk, Elon
03-27-2024
8
•1• him not to answer?
•2• • • • • • • • MR. SPIRO:• I don’t know.• I’ll hear the
•3• question and tell you.
•4• • • • • • • • MR. BANKSTON:• Okay.• Mr. Musk, do you
•5• think you did anything wrong to Ben Brody?
•6• • • • • • • • MR. SPIRO:• Did anything wrong to Ben
•7• Brody?• Okay.• You can ask that question.
•8• • • •A.• I don’t know Ben Body.
•9• • • •Q.• (BY MR. BANKSTON) You’re aware Ben Brody is
10• somebody who’s sued you, right?
11• • • •A.• I -- I think you’re the one suing.
12• • • •Q.• Actually, Mr. Musk, I’m an attorney.• Did you
13• know that?• I’m an attorney representing Mr. Brody.
14• • • •A.• Yes, but many times I found that the actual
15• plaintiff is the attorney.
16• • • •Q.• Okay.• But that’s just an assumption you’re
17• making, right?• Like you don’t know anything about Ben
18• Brody?
19• • • •A.• I don’t.
20• • • •Q.• Okay.• You understand Ben Brody has filed a
21• lawsuit against you?
22• • • •A.• I -- in my opinion, you’re the one filing the
23• lawsuit.
24• • • •Q.• Okay.• You understand -- let’s try to make this
25• an easier way.
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Musk, Elon
03-27-2024
9
•1• • • • • • • • You understand that there’s a piece of
•2• paper on which there’s a lawsuit written.• And at the
•3• top of the lawsuit it says Ben Brody, plaintiff, versus
•4• Elon Musk, defendant; do you understand that?
•5• • • •A.• I understand that but I view many cases and
•6• probably this one too that the real plaintiff is the
•7• lawyer seeking money like you.
•8• • • •Q.• Okay.• I’d like to know though, are you aware
•9• that there’s a piece of paper that has a lawsuit on it
10• that says Ben Brody vs. Elon Musk?• That’s actually what
11• I’m wanting to know.
12• • • •A.• Yes.
13• • • •Q.• Okay.
14• • • •A.• Technically.
15• • • •Q.• Do you feel like you have an understanding of
16• what that lawsuit alleges you did wrong?
17• • • •A.• I -- I have a limited understanding of that -18• of what the lawsuit is about.
19• • • •Q.• Okay.• Let’s start -20• • • •A.• My -- what I want to think it’s really about is
21• about you getting a lot of money.
22• • • •Q.• Okay.• All right.• Let’s start with the
23• incident that this lawsuit is based on.• You understand
24• that this case involves a brawl in Oregon between some
25• right-wing extremists?
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Musk, Elon
03-27-2024
10
•1• • • •A.• I -- I don’t know much about -- you’re
•2• referring to a handful of posts on the X platform?
•3• • • •Q.• No.• Actually, Mr. Musk, I’m referring to the
•4• fact that on June 24th, 2023, as described in plaintiff,
•5• Ben Brody’s lawsuit, there was a brawl in Oregon between
•6• right-wing extremists.• Were you aware that that was the
•7• subject matter of the lawsuit?
•8• • • • • • • • MR. SPIRO:• I don’t know if that’s the
•9• subject matter of the lawsuit.• I think the subject
10• matter of the -11• • • • • • • • MR. BANKSTON:• A subject matter of the
12• lawsuit.• And, Mr. Spiro, again, your objections to
13• questions in an oral deposition under Rule 195 are
14• limited to objection; leading and objection; form, or
15• objection; nonresponsive.
16• • • • • • • • Those objections are waived if not stated
17• as phrased.• All other objections need not be made or
18• recorded during the oral deposition to be raised to the
19• Court.• You must not give any suggestive or
20• argumentative or any explanations during the deposition.
21• • • • • • • • MR. SPIRO:• Well, then don’t say things
22• that are misleading and I won’t -23• • • • • • • • MR. BANKSTON:• No.• That’s not -- that’s
24• why you should object to the form of the question.
25• • • • • • • • MR. SPIRO:• No, no, it’s not -www.res-ipsa.com
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Musk, Elon
03-27-2024
11
•1• • • • • • • • MR. BANKSTON:• That’s misleading.• Mr.
•2• Spiro, you know -- Mr. Spiro -•3• • • • • • • • MR. SPIRO:• Listen, if you want to go back
•4• and forth with me and waste your time, you can.• Go on
•5• to your next question.
•6• • • • • • • • MR. BANKSTON:• Oh, we’re going to get more
•7• time if you keep doing this.
•8• • • • • • • • MR. SPIRO:• No, you’re not.• No, you’re
•9• not.• Go to the judge -10• • • • • • • • MR. BANKSTON:• You’re violating Rule 199,
11• you’re not even pro hac admitted.
12• • • • • • • • MR. SPIRO:• Okay.• Okay.• You’re just
13• giving speeches that nobody’s listening to but you.
14• You’re just doing them for yourself.
15• • • • • • • • MR. BANKSTON:• Oh, they’re for the record.
16• Mr. Spiro, they’re for the Court to listen to.
17• • • • • • • • MR. SPIRO:• Okay.• So keep -18• • • • • • • • MR. BANKSTON:• And I would appreciate it -19• I’m going to give you an instruction.• I would
20• appreciate it if you would abide by Rule 199.5 of the
21• Texas Rules -22• • • • • • • • MR. SPIRO:• I heard you the first three
23• times.
24• • • • • • • • MR. BANKSTON:• Mr. Spiro, please do not
25• interrupt me.
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03-27-2024
12
•1• • • • • • • • MR. SPIRO:• I heard you the first three
•2• times.
•3• • • • • • • • MR. BANKSTON:• Mr. Spiro, please do not
•4• interrupt me.• I’m asking you on the record to obey Rule
•5• 199.5.• If you continue to violate Rule 199.5, I will
•6• move for sanctions against you.• So I please ask you to
•7• obey the rules in the remainder of this deposition.
•8• • • • • • •(EXHIBIT 1 ENTERED INTO THE RECORD)
•9• • • •Q.• (BY MR. BANKSTON) Mr. Musk, I want to show you
10• a tweet that you posted on the day of the brawl, which
11• is June 24th, 2023.• Can we bring up Tab A?
12• • • • • • • • We’re going to mark this as Exhibit 1.• Mr.
13• Musk, this is a meme that you shared about psyops,
14• correct?
15• • • •A.• Yes.• It’s a joke.
16• • • •Q.• A psyop is a psychological operation, right?
17• • • •A.• It’s -- yes, I believe that is what it refers
18• to, yes.
19• • • •Q.• Okay.• And this meme jokes that there are
20• almost daily psyops -21• • • • • • • • MR. SPIRO:• I am going to interrupt again,
22• and I don’t really care that rule that you keep reading
23• because it has nothing to do with -24• • • • • • • • MR. BANKSTON:• I know you don’t -25• • • • • • • • MR. SPIRO:• Good.• The Court -www.res-ipsa.com
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•1• • • • • • • • THE WITNESS:• -- to the judge.
•2• • • • • • • • MR. SPIRO:• How is this relevant to the
•3• court order?
•4• • • • • • • • MR. BANKSTON:• Because I’m getting to -•5• • • • • • • • MR. SPIRO:• This isn’t a regular deposition
•6• -•7• • • • • • • • MR. BANKSTON:• Mr. Spiro -•8• • • • • • • • MR. SPIRO:• Now I’m talking so don’t
•9• interrupt me.• How is -- this is a deposition governed
10• by a limited court order -11• • • • • • • • MR. BANKSTON:• Correct.
12• • • • • • • • MR. SPIRO:• -- because he gave you a
13• limited court order on this case, so I have every right
14• to ask and to stop -- I’m not going to just let you do
15• two hours about Mr. Musk’s upbringing.
16• • • • • • • • How is this tweet that is nothing -- that
17• is not a tweet in this case, how is this relevant under
18• the Court’s order?
19• • • • • • • • MR. BANKSTON:• This is very much -- Mr.
20• Spiro, I don’t know if you were listening to me.• This
21• is what he posted on the day of the brawl, and this case
22• is about whether this brawl was being accused to be a
23• psyop.• This is absolutely relevant to his state of mind
24• on -- when he calls this brawl a psyop.
25• • • • • • • • I’m really -- Mr. Spiro, I really have to
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•1• ask you to please get yourself up to speed on the facts
•2• of this case.• I’m definitely going to ask him -•3• • • • • • • • MR. SPIRO:• Again, this isn’t a real -- you
•4• keep lecturing me like get up to speed on the facts of
•5• this case.• This isn’t like a real case.• This is just
•6• some stupid -•7• • • • • • • • MR. BANKSTON:• Mr. Spiro.
•8• • • • • • • • MR. SPIRO:• Yeah, so -•9• • • • • • • • MR. BANKSTON:• Lawyers do not -- it is not
10• in accordance with the lawyer’s creed to just start
11• making random statements about the alleged frivolity of
12• a case to another lawyer in a deposition.• You know
13• that’s not proper.• You know that.
14• • • • • • • • MR. SPIRO:• Do you give these lectures at
15• all of your depositions?
16• • • • • • • • MR. BANKSTON:• I do and you can watch them.
17• • • • • • • • MR. SPIRO:• In any event, this is not -18• this is not a tweet that’s alleged -- if you’re alleging
19• that this tweet is directly related to the brawl, ask -20• • • • • • • • MR. BANKSTON:• That’s what I’m asking him,
21• Mr. Spiro.
22• • • • • • • • MR. SPIRO:• Oh, okay.• Is there some code
23• in Texas that you don’t yell and raise your voice in
24• depositions?
25• • • • • • • • THE WITNESS:• Why are you yelling?• Calm
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•1• yourself.
•2• • • • • • • • MR. SPIRO:• Yeah, why are you yelling?
•3• • • • • • • • THE WITNESS:• Calm yourself.• Calm
•4• yourself.
•5• • • • • • • • MR. BANKSTON:• I’m very, very disturbed by
•6• what you’re doing.
•7• • • • • • • • THE WITNESS:• You’re yelling at everyone.
•8• • • • • • • • MR. BANKSTON:• I’m very disturbed that
•9• you’re instructing the witness -10• • • • • • • • THE WITNESS:• I mean, show some decorum.
11• • • • • • • • MR. SPIRO:• I’m not instructing the
12• witness.• I’m not instructing the question.• Ask your
13• question.
14• • • • • • • • MR. BANKSTON:• Okay.• Now that I’ve got you
15• up to speed, I can ask my question?
16• • • • • • • • MR. SPIRO:• Yeah, I asked you for the
17• relevance of how this relates to the court order.• You
18• gave me an answer.• I’m not preventing him from
19• answering, so ask your question.
20• • • • • • • • MR. BANKSTON:• All right.• Let’s keep
21• moving.
22• • • • • • • • Mr. Musk, this meme -- the question that I
23• had, was this meme jokes that there are almost daily
24• psyops, correct?
25• • • •A.• This is a joke about psyops.
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•1• • • •Q.• (BY MR. BANKSTON) Okay.• But psyops for you are
•2• not always a laughing matter, right?
•3• • • •A.• I mean, I don’t -- I don’t think there are
•4• actually daily psyops.• This is -•5• • • •Q.• No, I get that.• I understand -•6• • • •A.• -- a tin foil hat -•7• • • •Q.• Right.• I get this is a joke.• I understand
•8• that.
•9• • • •A.• It’s a joke obviously -10• • • •Q.• What I’m asking though -11• • • •A.• -- if somebody puts -- may I finish?
12• • • •Q.• Sure.
13• • • •A.• Do you feel you need to yell again?
14• • • •Q.• I might.
15• • • •A.• Yeah.• I’ve rarely met a lawyer with less
16• decorum than you, if you could be called a lawyer.
17• • • • • • • • So this is a joke.• Obviously -18• • • •Q.• Right.
19• • • •A.• -- this is just a kitten with a tin foil hat.
20• • • •Q.• Uh-huh.
21• • • •A.• And, in fact, it is making fun of the fact that
22• there are -- people claim psyops when often there is not
23• a psyop.
24• • • •Q.• Okay.• But what I want to ask you about is for
25• you, this is a joke, but there are other times in which
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•1• for you, psyops are not a joke?
•2• • • •A.• I think the vast majority of time people think
•3• there’s a psyop and there is not a psyop.
•4• • • •Q.• Okay.• That’s -- okay.• But let’s talk about -•5• let’s talk about that tin foil hat for a second.• I want
•6• to try to get to the symbolism of that, all right?
•7• • • • • • • • And if I’m -- tell me if I’m summarizing
•8• this joke correctly:• That the idea of something being a
•9• psyop might be -- sound a little crazy, but sometimes
10• you see evidence or facts that make you think there is a
11• psyop.• And, wow, that makes you want to put on a tin
12• foil hat like the conspiracy people do.• That’s kind of
13• the joke there?• Am I interpreting that correctly?
14• • • •A.• No.
15• • • •Q.• Okay.• So let me pull it back a little bit.
16• Would you agree with me that the idea that any given
17• event is a psyop is something that is improbable but not
18• impossible?
19• • • •A.• Yes.
20• • • •Q.• Okay.• Do you remember just a couple of weeks
21• before this meme in the -- when the Allen, Texas,
22• neo-Nazi shooting happened, about you using the term
23• "psyop" for that event?
24• • • • • • • • MR. SPIRO:• I’m -- I think this is outside
25• the court order, so I’m not going to allow you to answer
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•1• this question.• You can keep going.
•2• • • • • • • • MR. BANKSTON:• So you’re going to instruct
•3• him not to answer it?
•4• • • • • • • • MR. SPIRO:• You heard me the first time.
•5• • • • • • • • MR. BANKSTON:• I didn’t -- I’m not sure
•6• what that meant actually.
•7• • • • • • • • MR. SPIRO:• He’s -- he’s not answering that
•8• question.• You’re on I think what the judge -- the judge
•9• would maybe let you ask some of the questions you’re
10• asking, maybe.• There’s no chance in my view that the
11• judge would have let you go back two weeks to some other
12• incident.• I don’t think that’s what the judge intended.
13• • • • • • • • MR. BANKSTON:• Mr. Spiro, I just need your
14• instruction.• I don’t need your comments.
15• • • • • • • • MR. SPIRO:• Yeah, I gave my instruction and
16• then you started talking so I’m responding.
17• • • • • • • • MR. BANKSTON:• Okay.• All I said is -18• • • • • • • • MR. SPIRO:• And I’ll make whatever record I
19• want to make, okay?
20• • • • • • • • MR. BANKSTON:• Please do.
21• • • • • • • • Mr. Musk, are you going to obey -- you’re
22• going to abide by your counsel’s instruction not to
23• answer that question?
24• • • •A.• It sounds like it’s outside the judge’s
25• instructions.
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•1• • • •Q.• (BY MR. BANKSTON) So "yes"?
•2• • • •A.• Yes.
•3• • • •Q.• Okay.• A false flag, that’s a type of psyop?
•4• • • •A.• I’m no expert on psyops, but, yes, that would
•5• be a type of psyop I believe.
•6• • • •Q.• Okay.• Now, a false flag, for people who may
•7• not understand that term, that’s a form of deception,
•8• right?
•9• • • •A.• Yes.
10• • • •Q.• In other words, a false flag requires
11• dishonesty, you’re falsely portraying something?
12• • • •A.• I believe it’s in the name.• If it’s not a true
13• flag, it would be a false flag.
14• • • •Q.• Correct.• Okay.• Thank you, Mr. Musk.• Let’s
15• talk a little bit about your tweets about the brawl.
16• • • • • • • • So, okay, as far as what your understanding
17• of this suit is, do you understand that this lawsuit
18• takes issue with a tweet that you posted on June 27th?
19• • • •A.• I don’t quote exactly, but that sounds correct.
20• • • •Q.• Can I ask you, have you read the lawsuit?
21• • • •A.• I’ve read a summary of the lawsuit.
22• • • •Q.• A summary of the lawsuit?
23• • • •A.• Yes.
24• • • •Q.• Okay.• All right.• Let’s see what we can do
25• here.• You do understand that on the previous two dates,
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•1• June 25th and June 26th, you interacted with two tweets
•2• about one of the unmasked brawlers in that brawl?
•3• • • •A.• That is -- that is what I have read in the
•4• lawsuit, yeah.
•5• • • •Q.• Okay.• We’re going to talk about those tweets,
•6• but first I want to verify:• You were ordered to answer
•7• some discovery, and it appears from your answers that
•8• before your tweet on June 27th, you did not do any
•9• searches on Twitter or any web searches like on a search
10• engine for information about the identity of this
11• unmasked brawler; is that correct?
12• • • •A.• That’s correct.
13• • • •Q.• Okay.• Would it be fair for me to say that
14• other than the tweets that you interacted with, you did
15• not secure other information about this unmasked
16• brawler?
17• • • •A.• I don’t recall securing other information.
18• • • •Q.• In other words, you didn’t get any information
19• by text or email or any other sort of communication with
20• anybody else about the brawler?
21• • • •A.• I don’t recall.• Not that I -- not that I
22• recall, no.
23• • • •Q.• Okay.• And did you ask anybody to go get you -24• let me start that again.
25• • • • • • • • Did you ask anyone to go get you any
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•1• information on this unmasked brawler?
•2• • • •A.• No.
•3• • • •Q.• Okay.• So it’d be fair to say that the
•4• information that you acquired about the brawler was from
•5• the tweets that you interacted with?
•6• • • •A.• Correct.
•7• • • • • • •(EXHIBIT 2 ENTERED INTO THE RECORD)
•8• • • •Q.• (BY MR. BANKSTON) Okay.• I want to talk about
•9• those tweets right now.• So we’re going to pull up Tab B
10• and we’ll mark this as Exhibit 2.
11• • • • • • • • All right.• Mr. Musk, on your screen, are
12• you able to read that or do I need to zoom in a little
13• bit?
14• • • •A.• It’s small, but I’m able to read it.
15• • • •Q.• Okay.• So you’ll see -- I’m going to kind of go
16• through it and we’ll go through it tweet by tweet so
17• that we can read it together.• You’ll see the first is a
18• post from a suspended account so we can’t see it, right?
19• • • •A.• Correct.
20• • • •Q.• And then the second is your tweet and you asked
21• who were the unmasked individuals, right?
22• • • •A.• Yes.
23• • • •Q.• And then an account called AcceptDoge tells you
24• -- and I think there’s a typo, but it’s "here’s one of
25• them"?
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•1• • • •A.• Yes.
•2• • • •Q.• Does that look right to you?
•3• • • •A.• Yes.
•4• • • •Q.• Okay.• And then there’s a tweet from a Dr.
•5• Frensor, and it says, "OMFG, they are so busted. A
•6• member of Patriot Front is actually a political science
•7• student at a liberal school on a career path towards the
•8• feds"; do you see that?
•9• • • •A.• Yes.
10• • • •Q.• Okay.• And then you’ll see that there are two
11• images from the brawl in Portland that day along with
12• two screenshots from Ben Brody’s social media
13• information.• Do you see their pictures of Ben Brody and
14• the information about him?
15• • • •A.• You need to zoom in, I think.
16• • • • • • • • MR. BANKSTON:• A.J., can you zoom in on the
17• part there with the Ben Brody pictures?
18• • • • • • • • THE WITNESS:• Yeah, I see it.
19• • • •Q.• (BY MR. BANKSTON) Okay.• So you now see that we
20• have pictures from the brawl as well as pictures showing
21• and describing Ben Brody, correct?
22• • • •A.• Yes.
23• • • •Q.• Okay.• And then scroll down, your response to
24• that we have -- it just says, "very odd," correct?
25• • • •A.• Yes.
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•1• • • •Q.• Okay.• This was the first time you became aware
•2• of this allegation about Ben Brody?
•3• • • •A.• I think so.
•4• • • •Q.• Okay.• On the quote tweet of Dr. Frensor -- can
•5• you scroll up just a little bit?• Okay.• On this quote
•6• tweet, do you see how it says -- we can see that it’s
•7• part of a thread because it says, "Replying to Dr.
•8• Frensor."• Do you see where that is?
•9• • • •A.• Yes.
10• • • •Q.• Okay.• And then do you see below the text it
11• says "Show more," right?
12• • • •A.• Yes.
13• • • •Q.• Do you know if you clicked on the Dr. Frensor
14• tweet and read any of the other tweets in that thread?
15• • • •A.• I -- I don’t recall doing so.
16• • • •Q.• And do you know if you clicked on Dr. Frensor’s
17• profile to bring up their timeline and bio?
18• • • •A.• Not that I recall.
19• • • •Q.• Okay.• And if you didn’t do that, there was no
20• way for you to assess this person’s credibility, right?
21• • • •A.• I wasn’t trying to assess their credibility.
22• • • •Q.• I’m not asking if you were trying to. I
23• actually don’t think you were at all.• But I’m asking
24• you, the only method that you had in front of you right
25• here to assess credibility to learn anything about this
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•1• person was to click on their profile, right?• There was
•2• no information about them in this tweet?
•3• • • •A.• I don’t think clicking on someone’s profile is
•4• an effective way of assessing their credibility.
•5• • • •Q.• Well, couldn’t you click on their profile and
•6• take a quick look at their timeline and see if the
•7• things that they had been saying were things that might
•8• give red flags about reliability?• Isn’t that something
•9• you could do?
10• • • •A.• Possibly, and that’s sort of not a very
11• reliable way.
12• • • •Q.• Sure.• But I’m asking that is something you
13• could do.• If, for instance, let’s say you clicked on
14• Dr. Frensor’s account and you saw that they were
15• tweeting a bunch of really wacky, obviously false
16• things.• That might give someone pause about whether
17• this person was reliable, correct?
18• • • •A.• Yeah, you’d say that perhaps that would affect
19• things.
20• • • •Q.• Do you know -21• • • •A.• It is possible for people who are -- nobody’s
22• right all the time.• Nobody’s wrong all the time -23• • • •Q.• Sure.
24• • • •A.• -- so it’s possible for some people to -- you
25• know, like once in a while, a conspiracy theorist is
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•1• going to be right.
•2• • • •Q.• Yeah, yeah, somebody who’s really, really
•3• unreliable most of the time could be right some of the
•4• time, right?
•5• • • •A.• Yes.• And people who are -- and people who are
•6• reliable, could be wrong some of the time.
•7• • • •Q.• And so, in other words, somebody who’s
•8• unreliable, if you did some homework and checking, you
•9• might actually discover, hey, this unreliable person is
10• correct, right?
11• • • • • • • • MR. SPIRO:• Objection to form.
12• • • •A.• I think everyone is wrong to some degree and
13• everyone is right -- usually right to some degree.
14• • • •Q.• (BY MR. BANKSTON) Do you know -15• • • • • • • • MR. SPIRO:• Mark, Mark, you’ve got to let
16• him answer the questions.• You’re cutting him off at the
17• end of every -- every answer.
18• • • • • • • • MR. BANKSTON:• Mr. Musk, do you have
19• anything else you want to add?
20• • • •A.• I was saying that even if somebody is wrong
21• most of the time, they will still be right some of the
22• time, and if somebody is right most of the time, they
23• will be wrong some of the time.
24• • • •Q.• (BY MR. BANKSTON) Agreed.• Do you know if you
25• saw any other tweets from Dr. Frensor that day or in the
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•1• few days before that?
•2• • • •A.• I don’t know Dr. Frensor or that account.
•3• • • •Q.• Do you -- I’m saying so you don’t know if you
•4• saw tweets from them or not either that day or in the
•5• days prior?
•6• • • •A.• I don’t think I did.
•7• • • •Q.• Okay.• I mean, I’m asking you have you -- do
•8• you know?• Did you go and check, do you know, or is that
•9• still an open question?
10• • • •A.• I don’t -- I don’t recall looking at Dr.
11• Frensor’s account.
12• • • •Q.• There is a possibility you have seen tweets
13• from Dr. Frensor before?
14• • • •A.• It’s possible, yeah.
15• • • • • • •(EXHIBIT 3 ENTERED INTO THE RECORD)
16• • • •Q.• (BY MR. BANKSTON) Okay.• Let’s talk about the
17• second tweet that you interacted with, okay?• So let’s
18• go ahead and bring up Tab C and we’ll mark this as
19• Exhibit 3.
20• • • • • • • • So here we see, this is the following day,
21• June 26th, and as you see, your tweet at the bottom was
22• at 5:34 a.m., okay?• So we’re now on the second day,
23• June 26th.• You’ll see at the top there’s a tweet from
24• Matt Wallace 888, okay?• And that tweet reads, "Remember
25• when they called us conspiracy theorists for saying the
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•1• feds were planting fake Nazis at rallies?"• And then it
•2• has a crying laughing emoji; do you see that?
•3• • • •A.• Uh-huh.
•4• • • •Q.• Okay.• And then in the tweet we see the same
•5• pictures that we saw in the Dr. Frensor tweet, correct?
•6• • • •A.• They look like the same pictures.
•7• • • •Q.• Yeah, it’s the same set of images that Dr.
•8• Frensor had attached to their tweet, right?
•9• • • •A.• They look like the same images.
10• • • •Q.• And then you replied, "Always remove their
11• masks," correct?
12• • • •A.• Yes, I think we want to shine a light on
13• whoever’s doing these things.
14• • • •Q.• Okay.• All right.• So I want to move past these
15• two tweets that you saw on June 25th and June 26th.• And
16• now I want to move to June 27th, which this is the date
17• that the lawsuit focuses on, the tweet that it takes
18• issue with, all right?
19• • • • • • • • So on June 27th, you understood there was
20• an existing allegation you had seen on Twitter about
21• this Ben Brody person, the college student who wanted to
22• join the government?
23• • • •A.• I’m sorry.• Are you going to show this -24• • • •Q.• No.• I’m asking you a question actually so
25• listen again and I’ll ask it again, okay?
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•1• • • • • • • • On June 27th, you understood there was an
•2• existing allegation you had seen on Twitter about this
•3• Ben Brody person, this college student who wanted to
•4• join the government, correct?
•5• • • •A.• I guess I would have been aware at the time
•6• that there were some posts the prior day.• I mean, I’m
•7• on the platform a lot, so there are -- I mean, I see
•8• sometimes several thousand posts per day.
•9• • • •Q.• Sure.• But what I’m saying is -- all I’m saying
10• is now that we’re on June 27th, we know that in the
11• prior two days, you had become aware that there was this
12• existing allegation about Ben Brody?
13• • • •A.• Yes, I’m not -- it would not have been top of
14• mind, but certainly I think I probably would have
15• vaguely recalled it, yeah.
16• • • • • • •(EXHIBIT 4 ENTERED INTO THE RECORD)
17• • • •Q.• (BY MR. BANKSTON) Okay.• Well, let’s talk about
18• that morning.• Let’s bring up Tab D.• All right.• This
19• is going to be Exhibit 4.• This is the exchange that the
20• lawsuit takes issue with, okay?
21• • • •A.• Uh-huh.
22• • • •Q.• And we see here at the top is Zero Hedge; do
23• you see that?
24• • • •A.• Yes.
25• • • •Q.• Okay.• You know Zero Hedge is a blog with
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•1• anonymous contributors, right?
•2• • • •A.• Yes.
•3• • • •Q.• Okay.• At this time, did you -- were you -- did
•4• you -- did you -- were you aware of Zero Hedge before
•5• you responded to this tweet?
•6• • • •A.• I’ve seen posts from Zero Hedge before.
•7• • • •Q.• Okay.• Do you feel like they’re a media
•8• organization that you’re familiar with, or is this
•9• something you just every now and then see tweets from?
10• And could you describe for me your level of familiarity
11• with them?
12• • • •A.• I see a lot of their posts.• I don’t know the
13• people behind it.
14• • • •Q.• Okay.• Got you.• Now, in this tweet, Zero Hedge
15• says, "Patriot Front white supremacist unmasked as
16• suspected fed"; do you see that?
17• • • •A.• Yes.
18• • • •Q.• Okay.• Now, based on what you’d seen at this
19• time, you did not contend that this unmasked person was
20• a federal law enforcement member, but instead was that
21• it was a college student; is that right?
22• • • •A.• My post simply says, "Looks like one is a
23• college student who wants to join the government and
24• another is maybe an Antifa member but it’s a probable
25• false flag situation."• I also put @community notes,
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•1• which is the fact-checking system on the X Twitter
•2• platform.• So the reason I put @community notes there is
•3• so that Community Notes can assess the accuracy of the
•4• statement.
•5• • • • • • • • MR. BANKSTON:• Okay.• Objection;
•6• nonresponsive.
•7• • • •Q.• (BY MR. BANKSTON) Do you remember what my
•8• question was, Mr. Musk?
•9• • • •A.• Please restate.
10• • • •Q.• Okay.• I’ll do it again.• All right.• What I’m
11• trying to understand is, based on what you had seen at
12• this point before you posted this tweet, like when you
13• see the Zero Hedge tweet, based on what you had already
14• seen, you did not contend that this unmasked person was
15• a member of federal law enforcement and instead
16• contended that they were a college student; is that
17• correct?
18• • • • • • • • MR. SPIRO:• Objection to form.
19• • • •A.• I mean, I think my post speaks for itself.
20• • • •Q.• (BY MR. BANKSTON) No.• Actually that’s kind of
21• why I have to ask you is because I really would like an
22• answer.
23• • • •A.• I think my post is being very -- very literal.
24• • • •Q.• Okay.• What I’m trying to figure out is it
25• seems to me that the Zero Hedge tweet is essentially
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•1• floating the idea that this unmasked person is a member
•2• of federal law enforcement.• And I just want to get to
•3• the idea of that’s not what you were contending.
•4• • • • • • • • •MR. SPIRO:• Objection to form.• I can’t
•5• understand you.
•6• • • •A.• I don’t understand what you’re -•7• • • •Q.• (BY MR. BANKSTON) Let’s try it this way:• Were
•8• you contending he was a member of federal law
•9• enforcement?
10• • • • • • • • •MR. SPIRO:• Objection to form.
11• • • •A.• No, because I say he looks like someone who
12• wants to join the government -13• • • •Q.• (BY MR. BANKSTON) Thank you.
14• • • •A.• -- based on the prior things -- the prior post
15• and -- and another may be -- you know, a probable false
16• flag situation.• (Internet disruption)
17• • • • • • • • And the reason I put @community notes is so
18• that Community Notes is the fact-checking system on the
19• platform and they can -- I’m calling on them to
20• fact-check the situation.
21• • • •Q.• Sure.• We’re going to talk about that too.• In
22• fact, let’s talk about that.• You tagged Community
23• notes, which, okay, not everybody I think understands
24• what Community Notes is so let me try to see if I can
25• summarize it fairly.
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•1• • • • • • • • By tagging Community Notes, Community
•2• Notes, through a system of voting, had the ability to
•3• add a note correcting the Zero Hedge tweet; is that
•4• right?
•5• • • •A.• That’s not how Community Notes works.
•6• • • •Q.• I thought there was a voting system that notes
•7• are voted on, and if they get enough votes from people
•8• of differing political beliefs and backgrounds, that it
•9• can be displayed on a tweet.• Is that not how it works?
10• • • •A.• That is -- the latter part of your explanation
11• is correct.• The -12• • • •Q.• Okay.
13• • • •A.• -- a Community Note to be surfaced, people who
14• have historically disagreed must agree in order for a
15• note to be displayed.
16• • • •Q.• Okay.• So let’s make it really simple so people
17• can understand what Community Notes is.• Community Notes
18• is a system where notes are proposed by Twitter users,
19• and if those notes get enough votes by members of the
20• Community Notes community, they can be displayed on
21• tweets to correct them?
22• • • •A.• Yes.
23• • • •Q.• Okay.
24• • • •A.• It requires people who historically have
25• disagreed to agree.• It’s not simply a popularity
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•1• contest.
•2• • • •Q.• And so if -- if a consensus among those folks
•3• developed that said, you know what, Mr. Musk is right,
•4• Zero Hedge is wrong, this isn’t a law enforcement
•5• person.• Community Notes, if a consensus developed, had
•6• the ability to put a note on Zero Hedge’s tweet?
•7• • • • • • • • MR. SPIRO:• Objection to form.
•8• • • •A.• Or mine.
•9• • • •Q.• (BY MR. BANKSTON) Or yours or anyone’s, right?
10• • • •A.• Correct.
11• • • •Q.• Okay.• When you said looks like one is a
12• college student who wants to join the government, you
13• were referring to the person in the screenshots we saw
14• earlier in the tweets from Dr. Frensor and Matt Wallace
15• 888, correct?
16• • • •A.• I assume so.• Those were -- I think there were
17• two people I referred to previously and that’s what I’m
18• referring to here.• And I’m speculating here and saying
19• it looks like one is a college student and maybe another
20• is an Antifa member, and it’s a probable but not certain
21• false flag situation.• And I’m requesting Community
22• Notes to dig into this and assess the veracity of the
23• situation.
24• • • •Q.• When you posted your tweet, you weren’t certain
25• that this college student was actually one of the
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•1• brawlers?
•2• • • •A.• That’s why -- I’m not certain, that’s why I say
•3• it looks like instead of it -- you know -•4• • • •Q.• And, in fact, so when you said looks like, your
•5• message was not to tell everybody, hey, I’m sure he’s
•6• one of the brawlers, but just that you had seen
•7• information suggesting that he was one of the brawlers;
•8• is that fair?
•9• • • •A.• Yeah, "it looks like" means that he may be a
10• college student -11• • • •Q.• And that would be -- excuse me.• Keep going.
12• • • •A.• That’s just -- just a literal sort of statement
13• of -- of my impression, which is -14• • • •Q.• Right.
15• • • •A.• -- that it looks like just -- you know, if I
16• said something looks like a donut, and it doesn’t mean
17• it is a donut; it could be a bagel.
18• • • •Q.• Let me try to give you an example:• If you said
19• looks like a donut, that would mean that you had seen
20• information or in some way gathered data that would
21• support the idea that maybe that’s a donut; is that
22• fair?
23• • • • • • • • MR. SPIRO:• Objection to form.
24• • • •A.• I think it’s -- this is a very simple post and
25• just, you know, if you said someone -- that person looks
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•1• like my brother, doesn’t mean that they are your
•2• brother.
•3• • • •Q.• (BY MR. BANKSTON) Right.• But you’re saying
•4• looks like one is a college student.• What I would take
•5• to mean that you -- from what we’d seen before from
•6• these tweets, you had seen information that suggested
•7• that this college student was the brawler, but you
•8• weren’t sure of that?
•9• • • • • • • • MR. SPIRO:• Objection as to form.
10• • • •A.• I’m just literally saying this looks like. I
11• mean, I can see a picture of my brother and say that
12• looks like my brother but it might not be my brother.
13• • • •Q.• (BY MR. BANKSTON) Right.• But you had been
14• given information in the previous days that -- you know,
15• we saw tweets from Dr. Frensor and from Matt Wallace
16• saying it was this person.• You weren’t saying that,
17• right?• You were just saying you had seen information;
18• not that you were sure?• Am I fair about that?
19• • • •A.• I’m literally just saying that it looks like
20• one is a college student and maybe another is an Antifa
21• member, and I’m asking Community Notes to sort of
22• fact-check this.
23• • • •Q.• Let me try it this way:• The reason -- the
24• reason that you’re saying that it looks like one is a
25• college student is because of the posts that we had just
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•1• talked about, because you had seen those posts.• That’s
•2• why you’re saying this tweet, right?
•3• • • •A.• That’s probably why I’m saying this.
•4• • • •Q.• Okay.• You knew when posting your tweet that
•5• readers would not know what information you saw to reach
•6• this conclusion, right?
•7• • • • • • • • MR. SPIRO:• Objection to form.
•8• • • •A.• Well, not necessarily because what tends to
•9• happen is there will be a sequence of replies where -10• even in the absence of Community Notes, if something is
11• inaccurate on the system or it’s a debatable issue,
12• there will be a series of replies that argue about the
13• substance of a post.
14• • • •Q.• (BY MR. BANKSTON) Okay.• But let’s assume I’m
15• the first person to read this tweet.• Let’s assume -16• you see how here it says it was posted 30 minutes from
17• when the screenshot was taken and there were already 384
18• replies; do you see that?
19• • • •A.• Yes.
20• • • •Q.• Let’s assume I’m reply number one.• Let’s
21• assume I saw your post one second after it was posted.
22• You understood when posting that tweet that if I’m that
23• number one reply, I would not know what information you
24• saw to reach your conclusion; do you agree with that?
25• • • • • • • • MR. SPIRO:• Objection; form.
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•1• • • •A.• Or you may.
•2• • • •Q.• (BY MR. BANKSTON) Or may not, right?
•3• • • •A.• If you’re the very first one, no.
•4• • • • • • • • •MR. SPIRO:• Objection to form.
•5• • • •Q.• (BY MR. BANKSTON) Right.• And so what I guess
•6• I’m saying here is there’s nothing in the text of your
•7• tweet that would tell me what information you relied on
•8• to say that it looks like one is a college student; do
•9• you agree with that?
10• • • •A.• In my -- in my text?
11• • • •Q.• Yes.
12• • • •A.• It does not have -- it does not have that
13• context.
14• • • •Q.• Okay.• So if I’m the first reader of this
15• tweet, I wouldn’t know if you saw something from Dr.
16• Frensor or Matt Wallace or somebody else?• I wouldn’t
17• know, would I?
18• • • • • • • • MR. SPIRO:• Objection to form.• It’s not a
19• proper question.
20• • • •A.• I guess I decline to answer on advice of
21• counsel.
22• • • • • • • • MR. BANKSTON:• Are you instructing him not
23• to answer?
24• • • • • • • • MR. SPIRO:• No.• I mean, if he understands
25• the question, he can answer it.• It’s not a proper
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•1• question -- (Internet interruption.)
•2• • • • • • • • MR. BANKSTON:• Look, there’s no need for
•3• the commentary about if questions are proper or if
•4• they’re not.• That’s not necessary.• You know it’s not
•5• necessary.• You know the only reason to do it would be
•6• to influence the witness.
•7• • • • • • • • So if you have an instruction not to
•8• answer, go ahead and give it.• If you have an objection,
•9• go ahead and give it, but as far as commentary to the
10• witness, it’s not necessary.
11• • • • • • • • MR. SPIRO:• No, sir.• It’s not -- I just
12• told the witness he can answer.• There’s nothing about
13• me commenting that all of these hypothetical what if I
14• saw this, what if I saw that questions are not proper
15• questions.• I’m surprised you don’t know they’re not
16• proper questions so -17• • • • • • • • MR. BANKSTON:• Everything you’re saying -18• • • • • • • • MR. SPIRO:• Can I finish?• I’m making my
19• record.• So the reason I’m making that comment is to
20• sort of try to signal to you that if you ask nine out of
21• 10 improper questions, eventually you’re going to get an
22• objection from me, and maybe just ask proper questions.
23• • • • • • • • There’s nothing about me saying that that
24• changes what he’s going to answer.• That’s not how
25• witness coaching works.• I’m surprised you don’t know
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•1• that.
•2• • • • • • • • So in any event, all I said was that’s not
•3• a proper question.• It’s not a proper question.• Any
•4• judge reviewing this will tell you it’s not a proper
•5• question, and if he can answer, he can answer.
•6• • • • • • • • MR. BANKSTON:• All right.• Again, I’m going
•7• to ask you again to obey Rule 199.5 because nothing
•8• about what you’re doing is proper and you know that.
•9• • • • • • • • So I’m going to ask him the question again
10• -11• • • • • • • • MR. SPIRO:• We disagree.
12• • • • • • • • MR. BANKSTON: -- and if he can understand
13• it, then he’ll answer it, okay?
14• • • • • • • • You knew that a reader of your tweet when
15• posting your tweet, your state of mind when posting this
16• tweet, you knew that a reader of this tweet would not
17• know from your tweet whether you saw information from
18• Dr. Frensor or Matt Wallace or anybody else?• They
19• wouldn’t know, right?
20• • • •A.• They may not know immediately, but they would
21• know it soon after.• And they would also know that there
22• would be many future comments -- and there would
23• probably be a Community Note to figure out the veracity
24• of what I’m saying or the probable accuracy of what I’m
25• saying.• Anyone who uses the system would know that
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•1• there’s going to be a vigorous debate about something
•2• like this, and they would know that they could look at a
•3• Community Note in the future to understand the -- what
•4• -- whether this is accurate or not accurate.
•5• • • • • • • • And I think -- I think I really did this in
•6• good faith, because I would not ask for a fact-check,
•7• which is what I do by adding Community Notes.• That’s
•8• asking for a fact-check on my own -- on my own post.
•9• • • •Q.• Well, you’re asking for it on Zero Hedge’s
10• post, aren’t you?
11• • • •A.• No.• I’m asking it on my post and his post.
12• • • •Q.• Okay.
13• • • •A.• People who’ve used the system know if you
14• @communitynotes, this is requesting fact-check Community
15• Notes, that’s what it means, and people know that.
16• • • •Q.• All right.• So let’s say again that I’m the
17• first person who reads this.• You’re saying that if I’m
18• a sophisticated user, I would know to come back at some
19• later time and see how the debate has developed; is that
20• right?
21• • • •A.• No.• I think that’s any user who’s on the
22• system for any period of time.
23• • • •Q.• Well, I don’t do that.• I mean, I’m a casual
24• user of Twitter, right -25• • • •A.• That’s how it works though.
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•1• • • •Q.• -- and so you would agree with me that if I was
•2• the first person who saw this tweet and then I saw it
•3• and I digested it and then I never cared to come back
•4• and look again, I wouldn’t see any of that information,
•5• right?
•6• • • • • • • • MR. SPIRO:• Objection to form.
•7• • • •A.• I think that is -- that is basically no one on
•8• the -- on the system, and I don’t think -- I think
•9• you’re being disingenuous about what you’re saying. I
10• don’t think that’s how you use the system.
11• • • •Q.• (BY MR. BANKSTON) Okay.• You understand that
12• Ben wanted -13• • • •A.• I’m very clear here and people understand that
14• when you @communitynotes, you’re literally asking for
15• please check the accuracy of this statement, and would
16• include the -- the post that I’m replying to.
17• • • •Q.• Did they?
18• • • •A.• I don’t know.
19• • • •Q.• You understand that Ben wanted you to delete
20• your tweet and make a retraction?
21• • • •A.• I don’t recall that.
22• • • •Q.• You don’t recall that?• That’s interesting.
23• Okay.• Well, I was going to ask you why you refused
24• that, but if you’re not -- you’re not aware that a
25• request was made to apologize and delete this and make a
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•1• retraction?
•2• • • • • • • • MR. SPIRO:• Objection; asked and answered,
•3• form.
•4• • • •A.• I don’t recall that, no.
•5• • • •Q.• (BY MR. BANKSTON) Okay.• If you knew right now
•6• -- knowing right now Ben is really upset that this tweet
•7• is still up and that he wanted there to be a retraction,
•8• how do you feel about that?
•9• • • • • • • • MR. SPIRO:• Objection to form.• How you
10• feel about it?• How is that -- how you feel about it,
11• how is that relevant -12• • • • • • • • MR. BANKSTON:• Mr. Spiro -13• • • • • • • • MR. SPIRO:• -- now to the four deposition
14• topics?• We’re on, I guess, topic four.• We’ve addressed
15• one through three.• How is that relevant to four?
16• • • • • • • • MR. BANKSTON:• Because in Gonzalez vs.
17• Hearst Corp., 930 S.W.2nd 275, a refusal to print a
18• retraction is evidence of an action after the
19• publication, but it can lend support to a claim that
20• reckless disregard or knowledge existed at the time of
21• publication.
22• • • • • • • • Similarly, in New Times vs. Issacks, Texas
23• Supreme Court 2004, 146 S.W.3rd 144, refusal to retract
24• an exposed error tends to support a finding of actual
25• malice, and conversely, a readiness to retract tends to
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•1• negate actual malice.
•2• • • • • • • • So again, I’ll pose my question -•3• • • • • • • • MR. SPIRO:• Yeah, I’ll look at those cases
•4• but he’s not answering that right now.• I don’t see the
•5• relevance.• I don’t think those cases -- I’m pretty
•6• confident those cases are not directly on point so I’ll
•7• review the cases so we can respond further.
•8• • • • • • • • MR. BANKSTON:• All right.• Next time I’d
•9• appreciate it if you showed up in a deposition with a
10• Texas lawyer who had an understanding of Texas law of
11• actual malice.
12• • • • • • • • MR. SPIRO:• Okay.• You keep filing these
13• silly, frivolous shake-down cases, I’ll -- I’ll keep
14• trying to think of Texas lawyers to bring to your
15• depositions.
16• • • • • • • • MR. BANKSTON:• Mr. Musk, I will tell you
17• I’m trying to be as civil as I can in this deposition
18• with you and your attorney.• I’d appreciate it -- these
19• random, insulting, professionally demeaning really have
20• no place here.
21• • • • • • • • MR. SPIRO:• You just did the same thing and
22• I responded in kind, so keep moving with the deposition.
23• You’re running out of time.
24• • • • • • • • MR. BANKSTON:• You think that’s what
25• happened here.
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•1• • • • • • • • MR. SPIRO:• I know this is your big day in
•2• the sun.• You’re running out of time.
•3• • • • • • • • MR. BANKSTON:• Talk about big days in the
•4• sun, Mr. Musk, I want to talk about how you browse and
•5• see information on Twitter.• You have an account called
•6• @elonmusk where you browse and interact on Twitter,
•7• correct?
•8• • • •A.• Yes.
•9• • • •Q.• Can we bring up Tab E.• All right.• Is this
10• another account that you use to see tweets on Twitter?
11• • • •A.• I don’t use that account.• I think I briefly
12• had it as a test account.
13• • • •Q.• Well, that’s what I’m asking.• In the summer of
14• 2023, right, which is when I’m seeing this post on here,
15• was this an account that you would use where you would
16• see tweets on Twitter?
17• • • •A.• No, I would not use this account.• It was just
18• used for -- for testing.
19• • • •Q.• I mean, look, there’s a tweet I see.• There’s
20• more tweets on this account, right?• Were you -- like
21• you were posting and viewing tweets with this account.
22• • • • • • • • MR. SPIRO:• Objection; asked and answered.
23• I don’t see the relevance to the fourth question.• Move
24• on.
25• • • • • • • • MR. BANKSTON:• I need to know what -www.res-ipsa.com
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•1• • • • • • • • MR. SPIRO:• He’s not answering -- he just
•2• answered you twice.• He’s not answering any more
•3• questions about this account.
•4• • • • • • • • MR. BANKSTON:• Well, I’m going to put on
•5• the record why I’m asking this question in case I need
•6• to put it in a motion, which is I need to know all the
•7• accounts that you’ve used to view tweets on Twitter
•8• during this time period so that I can tell what else
•9• you’ve interacted with on Twitter.
10• • • • • • • • MR. SPIRO:• Well, he just told you he
11• didn’t use this account.• He already answered that
12• question.
13• • • • • • • • MR. BANKSTON:• Right.• And I was asking a
14• follow-up about that.• Because the tweet has posts on it
15• does not mean that you used it and used it to view
16• tweets at this time or am I wrong about that?
17• • • •A.• I briefly used this account as a test account.
18• There are only two accounts that I use on a regular
19• basis.• One is my main account and the other is baby
20• smoke 9,000.
21• • • •Q.• Okay.• And then you said on a regular basis.
22• Are there any other alt accounts that you were using to
23• view tweets in the summer of 2023?
24• • • •A.• No.
25• • • •Q.• Okay.• I was looking at the Twitter rules you
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•1• had in effect in the summer of 2023, and it looked like
•2• Twitter employed people who enforced platform integrity
•3• and authenticity, including things like crisis
•4• misinformation; is that correct?
•5• • • • • • • • MR. SPIRO:• I’m going to object and I’d
•6• like an explanation as to the relevance of this.
•7• • • • • • • • MR. BANKSTON:• Because I need to know what
•8• kind of information he had access to.• I need to know at
•9• that time what investigations he could have had capable
10• and which ones he might have ignored deliberately.
11• • • • • • • • MR. SPIRO:• I don’t see the relevance, but
12• I’ll let you ask the question.
13• • • •A.• I mean, we have a team in this regard.• I don’t
14• delve into what the team does.
15• • • •Q.• (BY MR. BANKSTON) Well, all I’m asking at this
16• point is there are people employed at Twitter who
17• enforce things like platform integrity and authenticity?
18• That exists?
19• • • •A.• There is -- there is -- by "authenticity," that
20• means essentially people who -- who do impersonation so
21• it’s stopping people from impersonating public figures.
22• • • •Q.• Sure.
23• • • •A.• There is a sort of enforcement of the law, so
24• if somebody’s posting something illegal, that needs to
25• be taken down.• That would be -- if something is illegal
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•1• or, you know, in some form essentially, then that team
•2• would take it down.
•3• • • •Q.• I noticed there was a note for crisis
•4• misinformation.• I imagine if there’s a huge public
•5• crisis, a storm, a bomb, and somebody’s spreading
•6• information that could get people hurt, that’s something
•7• that is meant by crisis misinformation?
•8• • • •A.• The primary system we rely on is Community
•9• Notes, which we found to be far better than the
10• so-called misinformation experts.
11• • • •Q.• Okay.• But as Elon Musk, are you allowed at
12• Twitter to just grab one of these employees who is
13• involved in platform integrity, and say, hey, can you
14• help me figure out if something I saw is legit?• Are you
15• allowed to do that or is that misappropriating the
16• company’s property?
17• • • •A.• That is in theory something that I could do,
18• but I don’t.• I rely upon Community Notes for
19• fact-checking.• I find it to be the best system on the
20• internet.
21• • • •Q.• Right.• What I’m just saying is are you allowed
22• to do that?• If you were to grab an employee at Twitter
23• and say, hey, could you help me figure something out?
24• Are you going to get in trouble?• Is somebody going to
25• come tell you, Elon Musk, you are not allowed to do
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•1• that?
•2• • • • • • • • MR. SPIRO:• Objection to form.
•3• • • •A.• I mean, I could ask someone -•4• • • •Q.• Okay.
•5• • • •A.• -- but this is -- but the nature of our
•6• enforcement is to enforce what is in accordance with the
•7• law.
•8• • • •Q.• (BY MR. BANKSTON) These people who are doing
•9• their jobs, do they have access to internal Twitter
10• tools to help them do their job?
11• • • •A.• Yes.
12• • • • • • • • •MR. SPIRO:• Object to form.
13• • • •Q.• (BY MR. BANKSTON) The data they have access to,
14• are you allowed to have access to it?
15• • • •A.• In theory, yes, but I’ve never requested access
16• to it.
17• • • •Q.• Is there anyone with the authority to say about
18• a piece of data at Twitter, to say to you, no, Mr. Musk,
19• you can’t have that or you can’t share that with anyone?
20• • • • • • • • MR. SPIRO:• Objection to form.• And, again,
21• I’m going to ask again, what is the possible relevance
22• of this to the single tweet that we’re here on in a
23• defamation case?• Can you just explain that to me?
24• • • • • • • • MR. BANKSTON:• Sure.• Because when he was
25• confronted with -- again, this is kind of bizarre that
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•1• I’m explaining this in front of your witness, but if he
•2• was confronted with information that made him maybe want
•3• to go suggest that, hey, maybe this college student was
•4• involved in this brawl, if he had access to people who
•5• were able to tell him or give him more data about this
•6• and he has that authority, I need to know what -•7• • • • • • • • MR. SPIRO:• You’re saying that if he -•8• your point is that he had other avenues to investigate
•9• this?
10• • • • • • • • MR. BANKSTON:• That he deliberately
11• ignored, correct.
12• • • • • • • • MR. SPIRO:• I think it’s an objectionable
13• question, but I’ll let him answer it.
14• • • • • • • • MR. BANKSTON:• Thank you.• Is there -- let
15• me repeat the question for you just because there was a
16• long objection so I want to make sure you understand the
17• question.
18• • • • • • • • Is there anyone with the authority to say
19• about a piece of data at Twitter, no, Mr. Musk, you
20• cannot see that or you cannot share that with anyone?
21• • • •A.• I mean, I regard privacy as being very
22• important so I’ve never asked for the private
23• information of any -- any user.• And as you saw in that
24• post, I requested Community Notes to investigate.
25• Community Notes I find is far better than the so-called
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•1• professional misinformation experts, and that has been
•2• proven time and again.
•3• • • •Q.• Well, I’m confused by your answer because I
•4• still don’t know if there’s anyone with the authority at
•5• Twitter to tell you about a piece of data at Twitter
•6• that you cannot have access to it or you cannot share
•7• it.
•8• • • • • • • • Is there anybody who can do that or like
•9• with the Twitter files, you’re pretty much allowed to do
10• what you want?
11• • • •A.• I think there would be -12• • • • • • • • MR. SPIRO:• Objection to the form.
13• • • • • • • • THE WITNESS:• -- it would be illegal for me
14• to access private information of individuals.
15• • • •Q.• (BY MR. BANKSTON) Okay.• Well, I’m not talking
16• necessarily about private information about individuals,
17• but I’m talking about anything that is used by the
18• platform integrity team about data from the platform
19• itself.• How they analyze the public data on the
20• platform.• Are you allowed to see that?
21• • • •A.• The platform integrity is simply trying to
22• assess if something that is posted is illegal or not.
23• • • • • • • • MR. BANKSTON:• Madam Court Reporter, do you
24• have a count for me on how long we’ve been on the
25• record?
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•1• • • • • • • • THE VIDEOGRAPHER:• This is Robie.• We’ve
•2• been on the record for 47 and a half minutes.
•3• • • • • • • • MR. BANKSTON:• Okay.• We’re going to go
•4• just a little bit and then we’ll take a quick break.
•5• • • •Q.• (BY MR. BANKSTON) All right.• I want to talk to
•6• you about just a couple of weeks before the tweet, okay?
•7• You had given an interview on CNBC talking about your
•8• sort of state of mind and feeling about the way you
•9• tweet; do you remember giving -10• • • • • • • • MR. SPIRO:• No.• I didn’t hear -- Mark, I
11• didn’t hear about the last word.• I couldn’t catch it.
12• • • • • • • • MR. BANKSTON:• Well, let me try it again
13• because I’m not sure what my last word was.
14• • • • • • • • But I was describing to you how in a couple
15• of weeks before you made the tweet in this case, you had
16• given an interview on CNBC where you were talking about
17• your state of mind and your tweeting, about how you
18• approach your tweeting with an interview with David
19• Faber.• Do you remember giving that interview?
20• • • •A.• I don’t remember everything about that
21• interview, but I remember there was such an interview.
22• • • •Q.• Okay.• Ben Brody’s lawsuit has a quote from
23• that interview and I wanted to get your reaction to it
24• to see if this is a genuine thing how you felt, right?
25• • • • • • • • Mr. Faber was asking you about whether you
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•1• felt the need to restrain yourself tweeting.• And the
•2• comment that’s quoted in Ben Brody’s lawsuit is, "I’ll
•3• say what I want to say and if the consequences of that
•4• is losing money, so be it."• Do you feel that that
•5• statement is a true assessment of your opinions in the
•6• summer of 2023?
•7• • • •A.• Well, what I’m saying is that sometimes I’ll
•8• say things that I believe to be accurate in exercising
•9• of my freedom of speech rights, and if that means we
10• lose advertisers as a result, then so be it.
11• • • •Q.• Okay.• I want to ask you about another
12• statement.• I want to ask you about some statements that
13• are quoted to you or attributed to you in Walter
14• Issacson’s book because I want to make sure that they’re
15• accurately attributed to you.• And so I want to take a
16• look at a couple of things that were said in Issacson’s
17• book.• Can we bring up Tab W?
18• • • • • • • • MR. SPIRO:• Yeah, I’m -- again, I’m going
19• to not allow this.• This is -- how this has to do with
20• state of mind on June 27th, 2023, I’m not going to allow
21• this.
22• • • • • • • • MR. BANKSTON:• Mr. Spiro -23• • • • • • • • MR. WALTERS:• Move on to another subject.
24• • • • • • • • MR. BANKSTON:• -- it’s literally him
25• describing his state of mind for how he approaches these
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•1• tweets.• I don’t understand why this quote that we have
•2• here in front of us -•3• • • • • • • • MR. SPIRO:• Okay.• You want to ask him if
•4• he said this?
•5• • • • • • • • MR. BANKSTON:• Yes, that’s all I’m asking.
•6• Yea, that’s it.• I mean, I’m not -- it’s about his state
•7• of mind in tweeting.
•8• • • • • • • • MR. SPIRO:• Well, I’m not so sure.• The
•9• state of mind cases, I don’t know in every count in
10• Texas, but typically do not allow things that happen
11• nontemporarily.
12• • • • • • • • MR. BANKSTON:• I mean, I just quoted you
13• the law that says that’s not true and you can
14• absolutely -15• • • • • • • • MR. SPIRO:• Okay.• Ask him the question.
16• • • • • • • • MR. BANKSTON:• Yeah, let’s just go -17• • • • • • • • THE VIDEOGRAPHER:• Excuse me.• Mr. Musk
18• just logged off or got kicked off or something.• He’s no
19• longer on the Zoom.
20• • • • • • • • MR. BANKSTON:• Do you want to take a break
21• real quick and see if we can get him back on?
22• • • • • • • • MR. SPIRO:• Yeah, Mark.• That’s fine.
23• • • • • • • • MR. BANKSTON:• I was going to take a break
24• in an hour but I figured we can just take a break right
25• now if you want to do that.• Do you want to take 20
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•1• minutes?
•2• • • • • • • • MR. SPIRO:• No.• I mean, I don’t think we
•3• need 20 minutes, Mark.• I mean, we’re almost done.
•4• • • • • • • • MR. BANKSTON:• The problem is I’m not
•5• trying to be difficult here.• I’m really not.• The water
•6• main broke in our building today so to go use the
•7• restroom, I have to walk down the street.
•8• • • • • • • • MR. SPIRO:• Well, okay.• That’s a real
•9• thing.• We’ll be back in 10.• Hopefully you’re back in
10• 10.• If you are back in 13, no one’s going to be
11• alarmed, but I’m going to try to make it a 10 minute
12• break.
13• • • • • • • • MR. BANKSTON:• I understand.• You don’t
14• need to keep communicating your feelings on the
15• ridiculousness of the endeavor I’m currently engaged in.
16• • • • • • • • MR. SPIRO:• Well, it’s also a short
17• deposition so whether even needing a break is -- I don’t
18• know it’s necessary but okay, let’s do it.• 10 minutes.
19• • • • • • • • MR. BANKSTON:• Okay.
20• • • • • • • • MR. SPIRO:• Thanks.
21• • • • • • • • THE VIDEOGRAPHER:• Going off the record at
22• 1:56 p.m.
23• • • • • • • • • • • • (OFF RECORD)
24• • • • • • • • THE VIDEOGRAPHER:• We’re back on the record
25• at 2:14 p.m.
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•1• • • • • • •(EXHIBIT 5 ENTERED INTO THE RECORD)
•2• • • • • • • • MR. BANKSTON:• All right.• Let’s go ahead
•3• and put up Tab W.• What exhibit number are we on?
•4• • • • • • • • MR. GRANT:• Mark, we’re on Exhibit 5 would
•5• be our next one.
•6• • • • • • • • MR. BANKSTON:• Okay.• Let’s go -- we’ll go
•7• ahead and mark this as 5.
•8• • • •Q.• (BY MR. BANKSTON) All right.• What I want to
•9• ask you about, Mr. Musk, is some quotes from
10• Mr. Isaacson’s book.• And what we have here in front of
11• us is "I’ve shot myself in the foot so often, I ought to
12• buy some Kevlar boots," Musk joked.• Perhaps he
13• ruminated Twitter should have an impulse delay button.
14• • • • • • • • Did Mr. Isaacson -- was that an accurate
15• representation he made of an exchange that y’all had?
16• • • •A.• I don’t recall that exact exchange.
17• • • •Q.• Okay.• Do you feel like this statement is a
18• genuine reflection of your feelings back in the summer
19• of 2023 when you were participating with Mr. Isaacson?
20• • • •A.• I certainly -- I would say that I -- you know,
21• I’m guilty of many self-inflicted wounds.
22• • • •Q.• Okay.• Would you say that as of last summer
23• that you knew that you had had some difficulties
24• restraining your impulses on Twitter?
25• • • •A.• No, I wouldn’t say that.
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•1• • • •Q.• Can I -- I’m sorry.
•2• • • •A.• I do believe that the bedrock of democracy is
•3• freedom of speech and that people should have -- we
•4• should have freedom of speech if we are to have a
•5• functioning democracy and that, you know, actions that
•6• result -- that have a chilling effect on freedom of
•7• speech, like this lawsuit, I think are contrary to the
•8• public good.
•9• • • •Q.• I’m wondering if you didn’t think that you were
10• having difficulties restraining your impulses on
11• Twitter, why did you believe that maybe Twitter should
12• have an impulse control delay button?
13• • • • • • • • MR. SPIRO:• Objection to form.
14• • • •A.• That’s what I said.• I think that’s Isaacson’s
15• -- those -- that’s not a quote.• That’s Isaacson -16• those are Isaacson’s words; not a quote.
17• • • •Q.• (BY MR. BANKSTON) Okay.• Well, what I was going
18• to -- I was asking you about that, maybe you
19• misunderstood my question is was this statement that we
20• see here on the screen, is that consistent with what
21• your feelings were in 2023?
22• • • • • • • • I’m sorry.• Hold on.• Before we go on,
23• there’s something here in the background.
24• • • •A.• Let me take my -- my son just came into the
25• room.
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•1• • • • • • • • (CONVERSATION WITH REPORTER)
•2• • • • • • • • THE VIDEOGRAPHER:• Mark, do you want to go
•3• off the record?
•4• • • • • • • • MR. BANKSTON:• Do we need to?• I guess just
•5• for a minute, yeah.
•6• • • • • • • • THE VIDEOGRAPHER:• Going off the record at
•7• 2:17 p.m.
•8• • • • • • • • • • • • (OFF RECORD)
•9• • • • • • • • THE VIDEOGRAPHER:• We are back on the
10• record at 2:18 p.m.
11• • • •Q.• (BY MR. BANKSTON) My question to you, Mr. Musk,
12• was -- in this statement that we see on the screen was
13• whether the entire thing reflected your feelings back in
14• 2023.• And from what I think I understand from your
15• answer about the second half being Isaacson, is that
16• that second statement does not -- that’s not an accurate
17• reflection of your beliefs in 2023?
18• • • •A.• Well, it doesn’t -- it doesn’t make sense
19• because we actually do have the ability to edit tweets
20• and put a time delay on tweets.
21• • • •Q.• Okay.• So this is something Isaacson may have
22• gotten wrong?
23• • • •A.• That’s -- that’s just Isaacson’s impression.
24• I’m simply saying that I -- I am -- you know, I’ve
25• certainly done a lot of things that are self-inflicted
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•1• wounds.
•2• • • • • • (EXHIBIT 6 ENTERED INTO THE RECORD)
•3• • • • • • • • MR. BANKSTON:• All right.• Let’s go ahead
•4• and put up Tab X.• We’ll mark that as Exhibit 6.
•5• • • •Q.• (BY MR. BANKSTON) And I want to ask you about
•6• this quote.• It says, "When asked why he doesn’t
•7• restrain himself, Musk merrily admits that he too often
•8• shoots himself in the foot or digs his own grave, but
•9• ’life needs to be interesting and edgy’ he says, and
10• then he quotes his favorite line from the 2000 movie
11• Gladiator, ’Are you not entertained?• Is that not why
12• you are here?’"
13• • • • • • • • In this quote, did Isaacson accurately
14• relay the things that you were saying?
15• • • •A.• I -- you have to -- I’ve not read the Isaacson
16• book.• In fact, I asked Isaacson if I should read it and
17• he recommended that I not.• Any biography is going to be
18• not the actual person but the actual person as viewed
19• through the lens of the biographer.• So I wouldn’t say
20• this accurately represents me.
21• • • •Q.• Okay.• Have you used that quote before from the
22• 2000 movie Gladiator, the "Are you not entertained?• Is
23• that not why you are here" to describe your tweeting?
24• • • •A.• In a joking way, but not in a serious way.
25• • • •Q.• Sure.• Because the line here, "Are you not
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•1• entertained?• Is that not why you’re here," am I correct
•2• that that describes the entertainment value of the
•3• controversy that tweets can sometimes create?
•4• • • • • • • • MR. SPIRO:• Objection to form.
•5• • • •A.• Well, I think the -- you know, any medium which
•6• is not informative or entertaining or just does not
•7• capture the interest of the audience will fail to -•8• people will not tune in.
•9• • • • • • •(EXHIBIT 7 ENTERED INTO THE RECORD)
10• • • • • • • • MR. BANKSTON:• Sure.• Let’s move to Tab Y.
11• • • • • • • • All right.• We’re going to mark this as
12• Exhibit 7.
13• • • •Q.• (BY MR. BANKSTON) And this quote says from the
14• Isaacson book, "My tweets are like Niagara Falls
15• sometimes and they come too fast," Musk says.• "Just dip
16• a cup in there and try to avoid the random turds."• Do
17• you think that’s an accurate quotation from you?
18• • • •A.• That is actually not -- not accurate.• What I’m
19• referring to is that the things that I see on Twitter,
20• not the -- not the posts that I make, are like Niagara
21• Falls.• Like -- meaning like it’s the -- if you look at
22• the sheer number of comments, likes, interactions of
23• various kinds, my account is the most interacted with in
24• the world I believe.
25• • • • • • • • It is physically impossible for, you know,
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•1• any one person to see all of the interactions that
•2• happen.• So the only way I can really gauge the
•3• interactions is by sampling them essentially.
•4• • • •Q.• Got you.• So would it be fair to say that
•5• Isaacson made a mistake here and that what this really
•6• should say is not my tweets are like Niagara Falls, but
•7• everyone else’s tweets are like Niagara Falls?
•8• • • •A.• Not exactly.• It means all of the -- all of the
•9• -- all of what I see when I use the X app are -- all the
10• posts that I see and all of the interactions that happen
11• with those posts are far too numerous to -- for any
12• human being to consume.
13• • • •Q.• Okay.• So when this quote talks about the
14• random turds, those aren’t your random turds; those are
15• other people’s random turds?
16• • • •A.• I mean, I suppose I -- I could be guilty of a
17• random turd too, but it’s -- what I’m really referring
18• to is that the only way for me to actually get an
19• understanding of what is happening on the system is to
20• sample it.
21• • • • • • • • Like try to do -- just like in statistics,
22• you don’t -- you do -- try to do -- you sample a
23• distribution in order to understand what’s going on, but
24• you cannot look at every single data point.
25• • • •Q.• Okay.• I just want to make sure that you’re
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•1• testifying under oath that this quote was misattributed
•2• and that you weren’t talking about your own tweets and
•3• your own tweets being random turds?
•4• • • •A.• Correct.
•5• • • •Q.• Okay.
•6• • • •A.• This is -- this is -- this is not accurate.
•7• • • • • • • • MR. BANKSTON:• Okay.• You can take that
•8• down.
•9• • • •Q.• (BY MR. BANKSTON) In general, when thinking
10• about -- well, let’s start this way:• You use your
11• Twitter account to talk about news and current events,
12• right?
13• • • •A.• Yeah.
14• • • •Q.• And -15• • • •A.• Among other things.
16• • • •Q.• And in doing that, you are thus a consumer of
17• news information, a person -- like as a person, you
18• consume news information, right?
19• • • •A.• I contribute content and I consume content on
20• the X platform.
21• • • •Q.• Now, when consuming news content, you believe
22• that Twitter is a better source of information than say
23• traditional news, right?
24• • • •A.• I do.
25• • • •Q.• Okay.• You think one problem with traditional
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•1• news is they’re too slow, correct?
•2• • • •A.• Their latency, yes, they will often take
•3• several days to write an article and then still be
•4• incorrect in what they write.
•5• • • •Q.• Okay.• Let’s look at Tab G.• I want to show you
•6• this tweet from the day of the brawl, okay?• And you
•7• will see that there’s someone complaining about using
•8• Google News and their complaints about it.• And your
•9• response is "The thing about traditional news is by the
10• time they actually publish anything, it’s not news
11• anymore."• That’s consistent with what we’ve just been
12• talking about, right?
13• • • •A.• The -- yes, the -- the traditional -- the
14• legacy news industry is slow to publish and nonetheless
15• wrong in what they publish and with no one to correct
16• them.• Whereas when things are published on Twitter,
17• they may be incorrect but they are swiftly corrected.
18• • • •Q.• Well, for instance, this tweet about Ben Brody,
19• it wasn’t swiftly corrected, was it?
20• • • •A.• I suspect that in the comment -- comments that
21• followed there were -- while I did not see them, there
22• were many rebuttals to what I said.
23• • • •Q.• Right.• But isn’t it -24• • • •A.• And there may be a Community Note -- since I
25• asked -- since I did tag Community Notes to assess the
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•1• accuracy of the post, that there may be a Community Note
•2• on that as well.
•3• • • •Q.• But you don’t know that, right?
•4• • • •A.• I don’t know that.
•5• • • •Q.• Right.• I mean, there’s not, I can tell you,
•6• but -- let me try it this way:• Traditional news takes
•7• time to publish things whereas on Twitter, you’re
•8• reading about events before the news can even cover
•9• them.• Is that right?
10• • • • • • • • MR. SPIRO:• What’s the relevance of this
11• question to the fourth -12• • • • • • • • MR. BANKSTON:• His state of mind upon the
13• information he relied on it and why he relied on it.
14• • • • • • • • MR. SPIRO:• No, I don’t see that.• I don’t
15• see the relevance of this question.• Don’t answer that.
16• • • • • • • • MR. BANKSTON:• I need you to give him an
17• instruction.
18• • • • • • • • MR. SPIRO:• I’m instructing you not to -19• not to answer.
20• • • • • • • • MR. BANKSTON:• Mr. Musk, are you going to
21• obey that instruction from your attorney?
22• • • •A.• I think I should listen to what my attorney
23• says.
24• • • •Q.• (BY MR. BANKSTON) Okay.• You’ve called yourself
25• a citizen journalist, right?
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•1• • • •A.• I encourage everyone to be a citizen
•2• journalist.
•3• • • •Q.• Right.• And, in fact, you advocate getting
•4• information about news and events from anonymous people
•5• on Twitter.
•6• • • •A.• I think it’s important to allow people to be
•7• anonymous so that they are able to report things
•8• accurately and not face repercussions from their
•9• employer or from others.
10• • • •Q.• Okay.• You can and do use your Twitter account
11• to promote the company’s interest, the company being X
12• Corp?
13• • • •A.• Yes.
14• • • •Q.• The engagement -- well, let’s talk about it
15• this way:• Before you ever purchased Twitter, you were a
16• popular user on the platform, right?
17• • • •A.• Yeah, I believe I -- I may have been -- I think
18• I was either the first or second most interacted with
19• account on the platform before the acquisition.
20• • • •Q.• Now, before the acquisition, Twitter was
21• getting a free benefit from the user engagement that you
22• created, correct?
23• • • •A.• Essentially, yes.
24• • • •Q.• And then now after the acquisition, that’s no
25• longer true; you personally benefit from the engagement
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•1• you create because it’s your company, right?
•2• • • • • • • • MR. SPIRO:• Objection.• Instruct you not to
•3• answer.• You can tell me the relevance of -- of these
•4• questions -•5• • • • • • • • MR. BANKSTON:• I need to -- I need to
•6• establish the level of care that he was required to have
•7• and I need to determine whether this is purely a
•8• personal Twitter account or whether this Twitter account
•9• is intended to do something else.
10• • • • • • • • MR. SPIRO:• I don’t see the relevance of
11• the question.• I’m going to instruct him -12• • • • • • • • MR. BANKSTON:• Well, it’s going to affect
13• his level of care.
14• • • • • • • • MR. SPIRO:• Yeah, I disagree so I’m going
15• to instruct him not to answer.
16• • • • • • • • MR. BANKSTON:• Okay.• So I’m just going to
17• make it clear for the record, that in order to establish
18• under scripts the requisite level of care that I’ll need
19• to be proving in this case, I’ve been unable to ask
20• questions that will help me ascertain -21• • • • • • • • MR. SPIRO:• Well, what question are you
22• trying to ask that goes to level of care as in the case
23• law?
24• • • • • • • • MR. BANKSTON:• I’m trying -- because the
25• level of care will depend on the purpose of the speech
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•1• itself, whether it has a commercial or noncommercial
•2• basis, whether it is a purely private communication,
•3• whether it is a communication made by one who is engaged
•4• in spreading media for profit.• All of these things and
•5• whether it has a commercial character is all relevant -•6• • • • • • • • MR. SPIRO:• But you -- but it’s in the
•7• record, he owns Twitter.• He owns X.
•8• • • •A.• I think I can answer this question -•9• • • • • • • • MR. BANKSTON:• Hold on.• You may be right.
10• Hold on.• Mr. Musk, hold on.• There’s no question to
11• you.
12• • • • • • • • Alex, you may be right about that.• If
13• you’re willing to just go ahead and stipulate he is the
14• owner of Twitter, that is not a purely personal account,
15• that account also advances the interest of the company,
16• we’re done and I won’t have to ask any more questions.
17• • • • • • • • MR. SPIRO:• Well, Mr. Musk said he wants to
18• -- I’ll let him answer the question if you want to
19• rephrase it.
20• • • • • • • • MR. BANKSTON:• Sure.
21• • • •Q.• (BY MR. BANKSTON) Okay.• So let’s go back to
22• the question that we had, which was now that you’ve
23• acquired the company, Twitter is no longer getting a
24• free benefit.• I mean, this benefits you as well, your
25• engagement that you create for the company; is that
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•1• correct?
•2• • • •A.• Not necessarily.• So I -- I believe my posting
•3• has really remained unchanged before and after the
•4• acquisition.
•5• • • • • • • • The -- and going back to the sort of
•6• self-inflected wounds, the Kevlar shoes, I think there’s
•7• -- I’ve probably done -- I may have done more to
•8• financially impair the company than to help it, but
•9• certainly I -- I do not guide my posts by what is
10• financially beneficial but what I believe is interesting
11• or important or entertaining to the public.
12• • • • • • • • So that’s, you know, if -- in this specific
13• case, if I wanted to have it be -- receive a lot of
14• distribution, I would have made it a primary tweet or a
15• quoted tweet, which I did not.• It was simply a reply.
16• The replies get 100 times less attention than a primary
17• tweet.• So this was certainly not any attempt to
18• generate advertising revenue.• In fact, generally
19• advertisers will not want to advertise with content that
20• is contentious.
21• • • •Q.• Well, I understand you said that this was a
22• reply and that less people saw it but -23• • • •A.• By 100, yes.
24• • • •Q.• You do understand that the amount of people who
25• saw this, who have viewed this tweet is equivalent to
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•1• all 30 major league baseball stadiums filled to
•2• capacity?• You wouldn’t dispute that?• I mean, we’re
•3• talking over a million people.
•4• • • • • • • • MR. SPIRO:• Objection to form.
•5• • • •A.• Yeah, that’s actually -- that may seem like a
•6• large number, but it is not compared to the fact -- I
•7• believe there are something on the order of five to
•8• eight trillion views per year so a million is really -•9• • • •Q.• Not a big deal?
10• • • •A.• -- hit or miss, yeah.
11• • • •Q.• Not a big deal that this went out to that many
12• people?
13• • • •A.• Correct.• And more of a -- this is the kind of
14• thing where advertisers, when it’s contentious, will not
15• advertise, which means we do not get revenue from it.
16• • • •Q.• After you took over the company, have you ever
17• given any instructions or taken any steps to have users
18• see your tweets in particular more often?
19• • • •A.• No.• There was an error at one point that
20• caused for one day people to see my posts, but the rules
21• apply to me otherwise as they do to everyone else.
22• There are no special rules for me.
23• • • •Q.• Okay.• I want to talk about -24• • • •A.• I should mention that our algorithm is open
25• source as is the -- meaning anyone can see the code for
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•1• the recommendation algorithm.• They can see that there’s
•2• nothing special for me, and the Community Notes, which
•3• is I think the best fact-checking system on the internet
•4• also is open source as is all the data.
•5• • • •Q.• Okay.• I want to talk about on the day you had
•6• this tweet, on June 27th, I want to talk about if in
•7• your mind you were aware or considering any warnings you
•8• had been given say in the past few months about the
•9• level of care you were showing in your tweets.
10• • • • • • • • So I want to ask you some specific things
11• about that, okay?• And so the time period I want you to
12• concentrate on is the approximately six months leading
13• up to this tweet, okay?• So the end of 2022 up to mid
14• 2023.
15• • • •A.• Yes.
16• • • •Q.• And during that time, I want to ask you about
17• some situations, if people have ever voiced concern
18• about the level of care you were showing when tweeting
19• about factual events.
20• • • • • • • • And the first one I want to ask you about
21• is do you remember tweeting a conspiracy theory about
22• the attack on Paul Pelosi?
23• • • •A.• I do remember replying, again, not -- a reply
24• is -- if you want something to get attention, you do it
25• as a primary post.• A reply will get actually somewhere
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•1• between 100 and 1,000 times less attention.• And I -- I
•2• read an article in a newspaper or what claimed to be a
•3• newspaper which seemed to be odd, and I did that as a
•4• reply, which is a low visibility post.
•5• • • •Q.• Okay.• All I just need to know is if you
•6• remembered that event happening, because my question to
•7• you is -•8• • • •A.• Yes.
•9• • • •Q.• -- do you remember, was there anybody in your
10• life -- and let me preface this, not your lawyers. I
11• don’t want to know if your lawyers talked to you about
12• anything.• Any conversations you had with your lawyers
13• are totally private, okay?
14• • • • • • • • But are there any conversations you had
15• with anybody in your life where they warned you about
16• the level of care you were showing when tweeting about
17• factual events relating to that Pelosi tweet?
18• • • •A.• I don’t recall anything relating -- anyone
19• saying anything related to that Pelosi post.• But that
20• was -- that was the reply post I think just wondering if
21• there’s more to this picture than met the eye.• And
22• based on a -- what I thought was I think the Santa
23• Monica Times or something like that.• That turned out to
24• be somewhat of a bogus publication and I deleted the
25• post shortly thereafter, like within a few hours.
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