Public Version Exhibits 3-7 [Dkt 680] to Letter to Chancellor McCormick from Kevin R. Shannon on behalf of Twitter to seek relief in connection with the deposition of Jared Birchall
Page 1 EFiled: Jul 17 2024 04:19PM EDT
Transaction ID Case No. 2022-0613-KSJM
IN THE COURT OF CHANCERY FOR THE STATE OF DELAWARE
TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I,
INC., and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
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C.A. No. 2022-0613-KSJM
PUBLIC VERSION EXHIBITS 3-7 [Dkt 680]
Dated July 17, 2024Page 2 EXHIBIT 3Page 3 Aug 19 11:03PM
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I, INC.,
and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
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) C.A. No. 2022-0613-KSJM
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DEFENDANT AND COUNTERCLAIM-PLAINTIFF X HOLDINGS I,
INC.’S RESPONSES AND OBJECTIONS TO PLAINTIFF AND
COUNTERCLAIM-DEFENDANT’S NOTICE OF
RULE 30(b)(6) DEPOSITION TO DEFENDANT X HOLDINGS I, INC.
Pursuant to Court of Chancery Rules 26 and 30, Defendant and CounterclaimPlaintiff X Holdings I, Inc. (“X Holdings”), by and through its undersigned counsel,
hereby objects and responds to Plaintiff and Counterclaim-Defendant Twitter, Inc.’s
Notice of Rule 30(b)(6) Deposition to Defendant and Counterclaim-Plaintiff X
Holdings I, Inc. and the schedule attached thereto (the “Topics” and each a “Topic”)
as set forth below on the grounds specified herein.Page 4 GENERAL OBJECTIONS
1.
X Holdings objects to the Topics to the extent they purport to impose
on X Holdings any requirements or obligations that are different from, greater or
more burdensome than, or contradict those required by, the Court of Chancery Rules
and Delaware law. X Holdings will respond to the Topics in a manner consistent
with its obligations under the Court of Chancery Rules and Delaware law.
2.
X Holdings objects to the Topics to the extent they seek information
protected from disclosure by any applicable privilege or immunity, including the
attorney-client privilege, the work product doctrine, the business strategy privilege,
the common interest privilege, the joint defense privilege, or other applicable
privileges, immunities, or protections. X Holdings hereby claims privilege with
respect to any such information. To the extent X Holdings discloses privileged
information in response to a Topic, such disclosure is inadvertent and shall not be
deemed a waiver of any applicable protection from disclosure or of any ground for
objection to discovery with respect to such information or to the use of any such
information in any proceeding.
3.
X Holdings objects to the Topics to the extent they contain legal
conclusions or characterize certain information, allegations, facts, events,
circumstances, issues, or ideas as undisputed fact. X Holdings’ responses to the
Topics are not an admission of any fact alleged or assumed by the Topics.
2Page 5 4.
X Holdings objects to the definition of “Co-Investors” as overbroad for
the reasons set forth in Defendants’ August 17, 2022 Letter in response to Twitter’s
August 15, 2022 Letter Regarding Defendants’ Responses and Objections to
Twitter’s Document Requests and Interrogatories. In responding to the Topics,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
5.
X Holdings objects to the definition of “You” and “Your” as overbroad.
In responding to each Topic, X Holdings will interpret “You” and “Your” to mean
X Holdings I, Inc.
6.
X Holdings objects to Instruction No. 1 as overbroad. X Holdings I,
Inc. was not formed until April 19, 2022. Thus, X Holdings objects to this time
period to the extent it calls for testimony prior to April 19, 2022. To the extent
X Holdings agrees to produce a representative to testify regarding any of the Topics,
X Holdings is only agreeing to produce a representative on such Topics regarding
the time period from April 19, 2022 to July 8, 2022.
7.
All responses are made subject to these objections and are based solely
on the information known to X Holdings at the time these responses are served.
X Holdings reserves the right to revise, supplement, or clarify any objection or
response at any time, and to use at trial in this Action information later determined
3Page 6 to have been responsive to these Topics. X Holdings reserves the right to object to
further discovery into the subject matter of the Topics.
8.
X Holdings is willing to meet and confer with Plaintiff on any of the
General Objections or specific responses and objections contained below.
SPECIFIC RESPONSES AND OBJECTIONS
TOPIC NO. 1:
The April 4, 2022 Letter Agreement, the April 13, 2022 Proposal, the
April 24, 2022 Offer, any consideration by Defendants of any other potential
acquisition or other strategic transaction involving Twitter, the Merger, the Merger
Agreement, the Limited Guarantee, the June 6, 2022 Letter, and the July 8, Letter, and any financing with respect to any of the foregoing or any transaction
contemplated thereby (including but not limited to the Debt Financing, the Equity
Financing, and/or the Financing Commitments).
RESPONSE TO TOPIC NO. 1:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it relates to events or
topics that pre-date its incorporation on April 19, 2022.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 1 for the time period from April 19,
2022 to July 8, 2022.
4Page 7 TOPIC NO. 2:
All efforts to syndicate and/or arrange, document, negotiate the terms of, or
consummate the Debt Financing and close the Merger, including the status of or
expected timeline for such efforts.
RESPONSE TO TOPIC NO. 2:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 2.
TOPIC NO. 3:
All efforts to solicit Co-Investors, arrange or negotiate equity co-investments,
and/or arrange, document, syndicate, or consummate the Equity Financing,
including those concerning the status of or expected timeline for such efforts.
RESPONSE TO TOPIC NO. 3:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
5Page 8 will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 3.
TOPIC NO. 4:
All efforts undertaken by Defendants or Defendants’ Advisors, on or after
May 13, 2022, to obtain, syndicate, arrange, finalize, and/or consummate the Debt
Financing, close the Merger, and/or cause all of the conditions for closing the Merger
to be satisfied.
RESPONSE TO TOPIC NO. 4:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 4.
TOPIC NO. 5:
The Margin Loan Commitment, including without limitation (i) the reduction
of the amount of the Margin Loan Commitment and reasons for such reduction; and
(ii) the subsequent termination of the Margin Loan Commitment and reasons for
such termination.
6Page 9 RESPONSE TO TOPIC NO. 5:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 5.
TOPIC NO. 6:
Any potential tender offer by or on behalf of Defendants for some or all of
Twitter’s shares, including without limitation Defendants’ negotiation of the debt
commitment letter, dated April 20, 2022, attached as Exhibit C to Amendment No.
3 to Schedule 13D, filed by Equity Investor with the SEC on April 21, 2022.
RESPONSE TO TOPIC NO. 6:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 6.
TOPIC NO. 7:
Defendants’ requests or potential requests for information pursuant to Section
6.4 and/or Section 6.11 of the Merger Agreement and any information provided by
Twitter, or on Twitter’s behalf, in response to any such request for information,
including without limitation any analyses, audits, or investigations performed by or
at the direction of You and/or Defendants’ Advisors, the Lenders, or the CoInvestors, relating to Twitter’s API or “firehose” data provided to Defendants or any
7Page 10 other information provided by Twitter, or on Twitter’s behalf, in response to any
information request by You or on Your behalf.
RESPONSE TO TOPIC NO. 7:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed by or at the direction of You and/or
Defendants’ Advisors, the Lenders, or the Co-Investors.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
X Holdings further objects to this Topic as overbroad to the extent it calls for
testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 7.
8Page 11 TOPIC NO. 8:
Any request made by Twitter, or on Twitter’s behalf, seeking Defendants’
consent pursuant to Section 6.1 of the Merger Agreement with respect to (i) the
implementation of employee retention programs; (ii) the termination of a revolving
credit facility; (iii) an application for a money transmitter license; or (iv) any other
proposed course of action, corporate policy, or other decision related to the conduct
of Twitter’s business, including Defendants’ assessment of and/or decision whether
or not to provide their consent and/or whether or not the proposed course of action,
corporate policy, or other decision was commercially reasonable under the
circumstances, including all of the reasons Defendants declined to provide consents
to Twitter’s requests under the Merger Agreement described in paragraphs through 122 of the Complaint, including without limitation all of the reasons why
You initially provided, but thereafter withdrew, any such consent.
RESPONSE TO TOPIC NO. 8:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 8.
TOPIC NO. 9:
False or spam accounts or bots on the Twitter platform and the disclosures in
Twitter’s SEC filings discussed in Paragraphs 64 and 66 of the Complaint, including
without limitation (i) any analyses, audits, or investigations performed or conducted
by or at the direction of You and/or Defendants’ Advisors, or of which You are
aware, relating to these subjects, whether performed or conducted prior or
subsequent to the execution of the Merger Agreement; (ii) any analyses, audits, or
investigations that You and/or Defendants’ Advisors considered undertaking, or that
You and/or Defendants’ Advisors considered having others undertake on Your or
their behalf, relating to these subjects; and (iii) Your decision to execute the Merger
Agreement without further due diligence on these subjects.
9Page 12 RESPONSE TO TOPIC NO. 9:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed or conducted by or at the direction of
You and/or Defendants’ Advisors” and “any analyses, audits, or investigations that
You and/or Defendants’ Advisors considered undertaking, or that You and/or
Defendants’ Advisors considered having others undertake.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 9.
TOPIC NO. 10:
The effects or potential effects of changes in the price of Tesla common stock
on (i) the Merger; (ii) the Debt Financing; (iii) the Equity Financing; (iv) the
Financing Commitments; and/or (v) Your intentions with respect to closing and/or
efforts to close the Merger, and Defendants’ knowledge and consideration of such
topics.
10Page 13 RESPONSE TO TOPIC NO. 10:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 10.
TOPIC NO. 11:
Any Communications between (a) Defendants or Defendants’ Advisors and
(b) any Governmental Authority, concerning (i) the Merger; (ii) the Merger
Agreement; (iii) the Proxy Statement; or (iv) Twitter, including the purpose of such
Communications, the nature and substance of such Communications, and at whose
request such Communications were made.
RESPONSE TO TOPIC NO. 11:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it seeks testimony
regarding communications that are subject to an investigative privilege belonging to
any governmental authority. As set forth in Defendants’ August 17, 2022 Letter in
response to Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and
Objections to Twitter’s Document Requests and Interrogatories, X Holdings is not
in a position to disclose any information in its possession relating to any
investigation by any governmental authority that is subject to protection from
11Page 14 disclosure as recognized in Legent Group, LLC v. Axos Financial, Inc., 2021 WL
4514930 (Del. Ch. Oct. 4, 2021). X Holdings will respond to this Topic consistent
with the Court’s resolution of Plaintiff’s motion to compel regarding
communications with governmental authorities.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 11.
TOPIC NO. 12:
Defendants’ purported termination of the Merger Agreement, including
without limitation (i) any consideration of whether and on what grounds to purport
to terminate the Merger Agreement; (ii) any consideration of potentially
renegotiating the Merger Agreement; (iii) the preparation of the June 6, 2022 Letter;
and (iv) the preparation of the July 8, 2022 Letter.
RESPONSE TO TOPIC NO. 12:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 12.
TOPIC NO. 13:
Defendants’ contention in the July 8, 2022 Letter that Twitter is “likely to
suffer a Company Material Adverse Effect,” including without limitation any
valuations, forecasts, projections, estimates, or other analyses relating to whether
Twitter is likely to suffer a Company Material Adverse Effect.
12Page 15 RESPONSE TO TOPIC NO. 13:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding the bases
for X Holdings’ contention. The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to the bases for X Holdings’ contention is the subject of
a pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 13.
TOPIC NO. 14:
Forecasts, projections, estimates, or other analyses created by Defendants,
Defendants’ Advisors, the Lenders, or the Co-Investors, or on Your or their behalf,
relating to Twitter’s current or future performance, financial condition, or value,
including without limitation any projections of Twitter’s revenues, EBITDA,
earnings, and cash flows, and all Documents and Communications concerning such
forecasts, projections, estimates, or analyses.
RESPONSE TO TOPIC NO. 14:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “analyses
13Page 16 created by Defendants, Defendants’ Advisors, the Lenders, or the Co-Investors, or
on Your or their behalf.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to such analyses is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel. X Holdings further objects to this Topic as overbroad to
the extent it calls for testimony regarding interactions with “potential co-investors”
for the reasons set forth in Defendants’ August 17, 2022 Letter in response to
Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and Objections
to Twitter’s Document Requests and Interrogatories. In responding to this Topic,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 14.
TOPIC NO. 15:
Any plans or potential plans made or considered by Defendants to create or
develop a social media platform and/or alternative or competitor to Twitter,
including without limitation any plans or potential plans concerning X.com, and
including without limitation the origin, history, and timeline of such plans, and all
other Persons involved in such plans or with whom Equity Investor has discussed
such plans.
RESPONSE TO TOPIC NO. 15:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
14Page 17 doctrine.
X Holdings further objects to this Topic to the extent the phrase
“alternative or competitor to Twitter” is vague and ambiguous. X Holdings will
construe “alternative or competitor to Twitter” to include any social media platform
other than Twitter, including X.com.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 15.
TOPIC NO. 16:
Your strategic or business plans for Twitter, including without limitation
(i) all plans to address issues relating to false or spam accounts on the Twitter
platform; (ii) all plans relating to employee retention programs or incentives; and
(iii) all plans relating to potential changes to the size and/or composition of Twitter’s
workforce.
RESPONSE TO TOPIC NO. 16:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent the phrase “strategic
or business plans for Twitter” is vague or ambiguous. Specifically, the phrase
“strategic or business plans” could include any number of short-term or long-term
plans about any facet of Twitter’s business, regardless of their relevance to the issues
in this litigation.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding the subtopics listed in (i), (ii), and (iii) of Topic
15Page 18 No. 16. X Holdings will agree to meet and confer regarding any further testimony
sought with reference to Topic No. 16.
TOPIC NO. 17:
The engagement, the work, and the termination of Bob Swan and/or the
cessation of Bob Swan’s involvement on Defendants’ behalf in connection with the
Merger and the Debt Financing, including the reasons that Defendants determined
that Bob Swan should “depart the deal proceedings” on or about June 23, 2022,
including due to the disconnect in “wavelength” between You and Bob Swan, as
described in Paragraph 110 of the Complaint.
RESPONSE TO TOPIC NO. 17:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 17.
TOPIC NO. 18:
The actual or potential engagement or involvement of Antonio Gracias to act
on Defendants’ behalf in connection with the Merger and the Debt Financing and
the work Antonio Gracias performed in that capacity, including all of the ways that
Antonio Gracias allegedly “dove in to the financing as soon as he was brought on”
to replace Bob Swan, as referenced in Paragraph 198 of the Counterclaim.
RESPONSE TO TOPIC NO. 18:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
16Page 19 Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 18.
TOPIC NO. 19:
The directors, officers, employees, and owners of X Holdings I, Inc., X
Holdings II, Inc., and X Holdings III, LLC, and the relationships between them and
Equity Investor.
RESPONSE TO TOPIC NO. 19:
Subject to and limited by the General Objections, X Holdings will produce a
representative to testify regarding Topic No. 19.
TOPIC NO. 20:
Defendants’ and Defendants’ Advisors’ use of the “Botometer” tool described
in Paragraph 116 and Footnote 16 of the Counterclaim.
RESPONSE TO TOPIC NO. 20:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ Advisors’ use.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ Advisors’ use” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
17Page 20 Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 20.
TOPIC NO. 21:
The engagement of the Data Scientists, including without limitation (i) the
identification of all Data Scientists and when they were engaged; (ii) the scope and
purpose of any such engagement; (iii) how such Data Scientists came to be engaged;
(iv) the nature of any agreements, arrangements, or understandings between the Data
Scientists and Defendants or Defendants’ Advisors.
RESPONSE TO TOPIC NO. 21:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[t]he
engagement of the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[t]he engagement of the Data Scientists” is the
subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 21.
TOPIC NO. 22:
All Persons that Defendants or Defendants’ Advisors communicated with
about a potential engagement as a Data Scientist that were not engaged as a Data
Scientist, including without limitation (i) the identification of all such Persons;
18Page 21 (ii) the timeline during which such potential engagement was considered; and (iii) all
reasons such engagement did not take place.
RESPONSE TO TOPIC NO. 22:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 22.
TOPIC NO. 23:
All work performed by the Data Scientists, including without limitation (i) the
instructions received by the Data Scientists; (ii) the scope of the Data Scientists’
work; (iii) the timeline of the Data Scientists’ work; (iv) a description of the work
performed by each individual working as or for a Data Scientist; (v) the findings,
conclusions, and results of such work.
RESPONSE TO TOPIC NO. 23:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[a]ll work
performed by the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[a]ll work performed by the Data Scientists” is
the subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
19Page 22 Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 23.
TOPIC NO. 24:
The financial model allegedly prepared by Morgan Stanley as described in
Paragraphs 34 and 166 of the Counterclaim and, to the extent different than the
financial model, the valuations allegedly prepared by Morgan Stanley as described
in Paragraph 78 of the Counterclaim, including the extent to which Defendants
received, reviewed, or discussed the referenced model prior to April 25, 2022, and
the extent to which Defendants relied upon the referenced model.
RESPONSE TO TOPIC NO. 24:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 24.
TOPIC NO. 25:
Any “additional business models” that Defendants allegedly considered as a
means to “unlock Twitter’s true value,” as described in Paragraph 39 of the
Counterclaim, including without limitation the “subscription-based model”
referenced in that same Paragraph, the projected or anticipated value of Twitter
based on such business models, and the relevance of mDAU to such business
models.
20Page 23 RESPONSE TO TOPIC NO. 25:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 25.
TOPIC NO. 26:
Defendants’ knowledge of Twitter’s litigation with the Indian government
and/or any content-removal orders issued to Twitter by the Indian government, as
discussed in Paragraphs 18 and 181 through 185 of the Counterclaim, including
without limitation when Defendants became aware of such litigation and/or contentremoval orders and who made them aware of such orders.
RESPONSE TO TOPIC NO. 26:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 26.
TOPIC NO. 27:
All “key decisions” that Twitter allegedly made “outside the ordinary course
without consulting the Musk Parties,” as alleged in Paragraphs 186 through 195 of
the Counterclaim.
21Page 24 RESPONSE TO TOPIC NO. 27:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 27.
TOPIC NO. 28:
The extent to which Defendants undertook any review, prior to executing the
Merger Agreement, of each of the allegedly false and misleading statements
discussed at Paragraphs 109 through 149 of the Counterclaim.
RESPONSE TO TOPIC NO. 28:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 28.
TOPIC NO. 29:
The reliance of Defendants and/or Defendants’ Advisors on Twitter’s
representations in its SEC filings, as alleged in Paragraph 27 of the Counterclaim.
22Page 25 RESPONSE TO TOPIC NO. 29:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 29.
TOPIC NO. 30:
Defendants’ beliefs about the number and/or prevalence of false or spam
accounts or bots on the Twitter platform, including all bases for such beliefs and
Defendants’ allegations set forth in Paragraphs 212 and 213 of the Counterclaim that
“[a]t the time of the Merger Agreement, Defendants/Counterclaim-Plaintiffs did not
know the false or misleading statements or omissions” and “[h]ad
Defendants/Counterclaim-Plaintiffs known about the false or misleading statements
and omissions, they would not have entered into the Merger Agreement.”
RESPONSE TO TOPIC NO. 30:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “all bases
for such beliefs.” The applicability of the work product doctrine and Chancery Rule
26(b)(4)(B) to “all bases for such beliefs” is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel.
23Page 26 Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 30.
TOPIC NO. 31:
Defendants’ bases for contending that “statement[s] of material fact” in
documents that Twitter has filed with the SEC since January 1, 2022 were “untrue”
or “misleading,” including statements that Defendants contend contained
representations that “fewer than 5%” of Twitter’s mDAU are false or spam accounts.
RESPONSE TO TOPIC NO. 31:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ bases for contending.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “Defendants’ bases for contending” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 31.
TOPIC NO. 32:
Defendants’ understanding of Twitter’s mDAU recast in April 2022, as
discussed in Paragraphs 9 and 79 through 81 of the Counterclaim.
24Page 27 RESPONSE TO TOPIC NO. 32:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 32.
TOPIC NO. 33:
The “preliminary analysis by Mr. Musk’s advisors” and the results thereof
described in the final paragraph of page 6 of Defendants’ July 8 letter.
RESPONSE TO TOPIC NO. 33:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding the
“preliminary analysis by Mr. Musk’s advisors.” The applicability of the work
product doctrine and Chancery Rule 26(b)(4)(B) to the “preliminary analysis by Mr.
Musk’s advisors” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 33.
25Page 28 TOPIC NO. 34:
Defendants’ alleged belief that “due diligence processes can be costly and
inefficient,” as set forth in Paragraph 60 of the Counterclaim.
RESPONSE TO TOPIC NO. 34:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 34.
TOPIC NO. 35:
Defendants’ alleged assumption that Twitter “rel[ied] on automation, artificial
intelligence, and machine learning” to count false or spam accounts, as described in
Paragraph 83 of the Counterclaim.
RESPONSE TO TOPIC NO. 35:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 35.
TOPIC NO. 36:
Defendants’ understanding of the “stratification” or potential stratification of
Twitter’s mDAU, as that term is used in Paragraph 141 of the Counterclaim, whether
performed before or after the execution of the Merger Agreement.
26Page 29 RESPONSE TO TOPIC NO. 36:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ understanding” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 36.
TOPIC NO. 37:
Defendants’ allegation that “nearly a third of Twitter’s mDAU in fact see no
ads and appear to generate no revenue at all,” as set forth in Paragraph 138 of the
Counterclaim.
RESPONSE TO TOPIC NO. 37:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it may call for the bases for X Holdings’ allegation. The
applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to the
27Page 30 bases for X Holdings’ allegation is the subject of a pending motion to compel.
X Holdings will respond to this Topic according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 37.
TOPIC NO. 38:
Defendants’ knowledge and understanding of their allegation that “mDAU
growth is not occurring among high-value users,” as set forth in Paragraph 142 of
the Counterclaim.
RESPONSE TO TOPIC NO. 38:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ knowledge and understanding.” The applicability of the work product
doctrine and Chancery Rule 26(b)(4)(B) to “Defendants’ knowledge and
understanding” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 38.
28Page 31 TOPIC NO. 39:
All allegations in Defendants’ Counterclaim.
RESPONSE TO TOPIC NO. 39:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify the particular paragraphs of the Counterclaims about which
Plaintiff seeks testimony.
Subject to and limited by the foregoing objections, and after Plaintiff
identifies which paragraphs are covered by this Topic, X Holdings will produce a
representative to testify regarding Topic No. 39.
TOPIC NO. 40:
Defendants’ understanding of how many false or spam accounts existed on
the Twitter platform as of July 8, 2022, in absolute terms and as a percentage of
Twitter’s mDAU, and all their bases for that understanding as of that date.
RESPONSE TO TOPIC NO. 40:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding” and “their bases for that understanding.”
ThePage 32 applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to
“Defendants’ understanding” and “their bases for that understanding” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 40.
TOPIC NO. 41:
Defendants’ policies, practices, software, hardware, and systems relating to
the storage, management, retention, and destruction of Documents and
Communications.
RESPONSE TO TOPIC NO. 41:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 41.
TOPIC NO. 42:
Defendants’ efforts to ensure that Documents relating to the discovery
requests in this Action and/or the Complaint were properly preserved, including any
related litigation hold or document preservation letters or notices.
30Page 33 RESPONSE TO TOPIC NO. 42:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 42.
TOPIC NO. 43:
Defendants’ efforts to retrieve text messages, instant messages, and other nonemail Communications.
RESPONSE TO TOPIC NO. 43:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 43.
31Page 34 TOPIC NO. 44:
Any sales of Tesla stock by Equity Investor from April 1, 2022 through the
present, including the purpose of any such sale, any potential use of the proceeds of
such sale considered by Defendants, and any relationship between such sale and the
Merger.
RESPONSE TO TOPIC NO. 44:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 44.
TOPIC NO. 45:
The identity, role, and nature of the work of any personnel of Tesla or Space
Exploration Technologies Corp. who worked on, analyzed, or assisted in any
capacity with the Merger, the Debt Financing, the Equity Financing, any potential
investment by a Co-Investor, the Margin Loan Commitment, any potential tender
offer involving Twitter, Defendants’ purported termination of the Merger
Agreement, or the Action.
RESPONSE TO TOPIC NO. 45:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
32Page 35 2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 45.
TOPIC NO. 46:
All information contained in Defendants’ Interrogatory Responses, including
all sources of such information and Defendants’ process of ascertaining and
providing such information.
RESPONSE TO TOPIC NO. 46:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify which particular interrogatory responses Plaintiff seeks testimony
on.
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 46.
33Page 36 OF COUNSEL:
Alex Spiro
Andrew J. Rossman
Christopher D. Kercher
Silpa Maruri
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
51 Madison Avenue, 22nd Floor
New York, New York
/s/ Edward B. Micheletti
Edward B. Micheletti (ID No. 3794)
Lauren N. Rosenello (ID No. 5581)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
920 North King Street, 7th Floor
P.O. Box Wilmington, Delaware 19899-(302) 651-Attorneys for Defendant X Holdings I, Inc.
DATED: August 19,
916786-WILSR01A - MSWPage 37 EXHIBIT 4Page 38 Aug 19 11:03PM
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I, INC.,
and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
)
)
)
)
)
) C.A. No. 2022-0613-KSJM
)
)
)
)
)
)
DEFENDANT AND COUNTERCLAIM-PLAINTIFF X HOLDINGS II,
INC.’S RESPONSES AND OBJECTIONS TO PLAINTIFF AND
COUNTERCLAIM-DEFENDANT’S NOTICE OF
RULE 30(b)(6) DEPOSITION TO DEFENDANT X HOLDINGS II, INC.
Pursuant to Court of Chancery Rules 26 and 30, Defendant and CounterclaimPlaintiff X Holdings II, Inc. (“X Holdings”), by and through its undersigned counsel,
hereby objects and responds to Plaintiff and Counterclaim-Defendant Twitter, Inc.’s
Notice of Rule 30(b)(6) Deposition to Defendant and Counterclaim-Plaintiff X
Holdings II, Inc. and the schedule attached thereto (the “Topics” and each a “Topic”)
as set forth below on the grounds specified herein.Page 39 GENERAL OBJECTIONS
1.
X Holdings objects to the Topics to the extent they purport to impose
on X Holdings any requirements or obligations that are different from, greater or
more burdensome than, or contradict those required by, the Court of Chancery Rules
and Delaware law. X Holdings will respond to the Topics in a manner consistent
with its obligations under the Court of Chancery Rules and Delaware law.
2.
X Holdings objects to the Topics to the extent they seek information
protected from disclosure by any applicable privilege or immunity, including the
attorney-client privilege, the work product doctrine, the business strategy privilege,
the common interest privilege, the joint defense privilege, or other applicable
privileges, immunities, or protections. X Holdings hereby claims privilege with
respect to any such information. To the extent X Holdings discloses privileged
information in response to a Topic, such disclosure is inadvertent and shall not be
deemed a waiver of any applicable protection from disclosure or of any ground for
objection to discovery with respect to such information or to the use of any such
information in any proceeding.
3.
X Holdings objects to the Topics to the extent they contain legal
conclusions or characterize certain information, allegations, facts, events,
circumstances, issues, or ideas as undisputed fact. X Holdings’ responses to the
Topics are not an admission of any fact alleged or assumed by the Topics.
2Page 40 4.
X Holdings objects to the definition of “Co-Investors” as overbroad for
the reasons set forth in Defendants’ August 17, 2022 Letter in response to Twitter’s
August 15, 2022 Letter Regarding Defendants’ Responses and Objections to
Twitter’s Document Requests and Interrogatories. In responding to the Topics,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
5.
X Holdings objects to the definition of “You” and “Your” as overbroad.
In responding to each Topic, X Holdings will interpret “You” and “Your” to mean
X Holdings II, Inc.
6.
X Holdings objects to Instruction No. 1 as overbroad. X Holdings II,
Inc. was not formed until April 19, 2022. Thus, X Holdings objects to this time
period to the extent it calls for testimony prior to April 19, 2022. To the extent
X Holdings agrees to produce a representative to testify regarding any of the Topics,
X Holdings is only agreeing to produce a representative on such Topics regarding
the time period from April 19, 2022 to July 8, 2022.
7.
All responses are made subject to these objections and are based solely
on the information known to X Holdings at the time these responses are served.
X Holdings reserves the right to revise, supplement, or clarify any objection or
response at any time, and to use at trial in this Action information later determined
to have been responsive to these Topics. X Holdings reserves the right to object to
3Page 41 further discovery into the subject matter of the Topics.
8.
X Holdings is willing to meet and confer with Plaintiff on any of the
General Objections or specific responses and objections contained below.
SPECIFIC RESPONSES AND OBJECTIONS
TOPIC NO. 1:
The April 4, 2022 Letter Agreement, the April 13, 2022 Proposal, the
April 24, 2022 Offer, any consideration by Defendants of any other potential
acquisition or other strategic transaction involving Twitter, the Merger, the Merger
Agreement, the Limited Guarantee, the June 6, 2022 Letter, and the July 8, Letter, and any financing with respect to any of the foregoing or any transaction
contemplated thereby (including but not limited to the Debt Financing, the Equity
Financing, and/or the Financing Commitments).
RESPONSE TO TOPIC NO. 1:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it relates to events or
topics that pre-date its incorporation on April 19, 2022.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 1 for the time period from April 19,
2022 to July 8, 2022.
TOPIC NO. 2:
All efforts to syndicate and/or arrange, document, negotiate the terms of, or
consummate the Debt Financing and close the Merger, including the status of or
expected timeline for such efforts.
4Page 42 RESPONSE TO TOPIC NO. 2:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 2.
TOPIC NO. 3:
All efforts to solicit Co-Investors, arrange or negotiate equity co-investments,
and/or arrange, document, syndicate, or consummate the Equity Financing,
including those concerning the status of or expected timeline for such efforts.
RESPONSE TO TOPIC NO. 3:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
5Page 43 Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 3.
TOPIC NO. 4:
All efforts undertaken by Defendants or Defendants’ Advisors, on or after
May 13, 2022, to obtain, syndicate, arrange, finalize, and/or consummate the Debt
Financing, close the Merger, and/or cause all of the conditions for closing the Merger
to be satisfied.
RESPONSE TO TOPIC NO. 4:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 4.
TOPIC NO. 5:
The Margin Loan Commitment, including without limitation (i) the reduction
of the amount of the Margin Loan Commitment and reasons for such reduction; and
(ii) the subsequent termination of the Margin Loan Commitment and reasons for
such termination.
RESPONSE TO TOPIC NO. 5:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
6Page 44 Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 5.
TOPIC NO. 6:
Any potential tender offer by or on behalf of Defendants for some or all of
Twitter’s shares, including without limitation Defendants’ negotiation of the debt
commitment letter, dated April 20, 2022, attached as Exhibit C to Amendment No.
3 to Schedule 13D, filed by Equity Investor with the SEC on April 21, 2022.
RESPONSE TO TOPIC NO. 6:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 6.
TOPIC NO. 7:
Defendants’ requests or potential requests for information pursuant to Section
6.4 and/or Section 6.11 of the Merger Agreement and any information provided by
Twitter, or on Twitter’s behalf, in response to any such request for information,
including without limitation any analyses, audits, or investigations performed by or
at the direction of You and/or Defendants’ Advisors, the Lenders, or the CoInvestors, relating to Twitter’s API or “firehose” data provided to Defendants or any
other information provided by Twitter, or on Twitter’s behalf, in response to any
information request by You or on Your behalf.
RESPONSE TO TOPIC NO. 7:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
7Page 45 doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed by or at the direction of You and/or
Defendants’ Advisors, the Lenders, or the Co-Investors.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
X Holdings further objects to this Topic as overbroad to the extent it calls for
testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 7.
TOPIC NO. 8:
Any request made by Twitter, or on Twitter’s behalf, seeking Defendants’
consent pursuant to Section 6.1 of the Merger Agreement with respect to (i) the
implementation of employee retention programs; (ii) the termination of a revolving
credit facility; (iii) an application for a money transmitter license; or (iv) any other
proposed course of action, corporate policy, or other decision related to the conduct
of Twitter’s business, including Defendants’ assessment of and/or decision whether
8Page 46 or not to provide their consent and/or whether or not the proposed course of action,
corporate policy, or other decision was commercially reasonable under the
circumstances, including all of the reasons Defendants declined to provide consents
to Twitter’s requests under the Merger Agreement described in paragraphs through 122 of the Complaint, including without limitation all of the reasons why
You initially provided, but thereafter withdrew, any such consent.
RESPONSE TO TOPIC NO. 8:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 8.
TOPIC NO. 9:
False or spam accounts or bots on the Twitter platform and the disclosures in
Twitter’s SEC filings discussed in Paragraphs 64 and 66 of the Complaint, including
without limitation (i) any analyses, audits, or investigations performed or conducted
by or at the direction of You and/or Defendants’ Advisors, or of which You are
aware, relating to these subjects, whether performed or conducted prior or
subsequent to the execution of the Merger Agreement; (ii) any analyses, audits, or
investigations that You and/or Defendants’ Advisors considered undertaking, or that
You and/or Defendants’ Advisors considered having others undertake on Your or
their behalf, relating to these subjects; and (iii) Your decision to execute the Merger
Agreement without further due diligence on these subjects.
RESPONSE TO TOPIC NO. 9:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
9Page 47 specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed or conducted by or at the direction of
You and/or Defendants’ Advisors” and “any analyses, audits, or investigations that
You and/or Defendants’ Advisors considered undertaking, or that You and/or
Defendants’ Advisors considered having others undertake.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 9.
TOPIC NO. 10:
The effects or potential effects of changes in the price of Tesla common stock
on (i) the Merger; (ii) the Debt Financing; (iii) the Equity Financing; (iv) the
Financing Commitments; and/or (v) Your intentions with respect to closing and/or
efforts to close the Merger, and Defendants’ knowledge and consideration of such
topics.
RESPONSE TO TOPIC NO. 10:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 10.
10Page 48 TOPIC NO. 11:
Any Communications between (a) Defendants or Defendants’ Advisors and
(b) any Governmental Authority, concerning (i) the Merger; (ii) the Merger
Agreement; (iii) the Proxy Statement; or (iv) Twitter, including the purpose of such
Communications, the nature and substance of such Communications, and at whose
request such Communications were made.
RESPONSE TO TOPIC NO. 11:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it seeks testimony
regarding communications that are subject to an investigative privilege belonging to
any governmental authority. As set forth in Defendants’ August 17, 2022 Letter in
response to Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and
Objections to Twitter’s Document Requests and Interrogatories, X Holdings is not
in a position to disclose any information in its possession relating to any
investigation by any governmental authority that is subject to protection from
disclosure as recognized in Legent Group, LLC v. Axos Financial, Inc., 2021 WL
4514930 (Del. Ch. Oct. 4, 2021). X Holdings will respond to this Topic consistent
with the Court’s resolution of Plaintiff’s motion to compel regarding
communications with governmental authorities.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 11.
11Page 49 TOPIC NO. 12:
Defendants’ purported termination of the Merger Agreement, including
without limitation (i) any consideration of whether and on what grounds to purport
to terminate the Merger Agreement; (ii) any consideration of potentially
renegotiating the Merger Agreement; (iii) the preparation of the June 6, 2022 Letter;
and (iv) the preparation of the July 8, 2022 Letter.
RESPONSE TO TOPIC NO. 12:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 12.
TOPIC NO. 13:
Defendants’ contention in the July 8, 2022 Letter that Twitter is “likely to
suffer a Company Material Adverse Effect,” including without limitation any
valuations, forecasts, projections, estimates, or other analyses relating to whether
Twitter is likely to suffer a Company Material Adverse Effect.
RESPONSE TO TOPIC NO. 13:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding the bases
for X Holdings’ contention. The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to the bases for X Holdings’ contention is the subject of
12Page 50 a pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 13.
TOPIC NO. 14:
Forecasts, projections, estimates, or other analyses created by Defendants,
Defendants’ Advisors, the Lenders, or the Co-Investors, or on Your or their behalf,
relating to Twitter’s current or future performance, financial condition, or value,
including without limitation any projections of Twitter’s revenues, EBITDA,
earnings, and cash flows, and all Documents and Communications concerning such
forecasts, projections, estimates, or analyses.
RESPONSE TO TOPIC NO. 14:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “analyses
created by Defendants, Defendants’ Advisors, the Lenders, or the Co-Investors, or
on Your or their behalf.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to such analyses is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel. X Holdings further objects to this Topic as overbroad to
the extent it calls for testimony regarding interactions with “potential co-investors”
for the reasons set forth in Defendants’ August 17, 2022 Letter in response to
13Page 51 Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and Objections
to Twitter’s Document Requests and Interrogatories. In responding to this Topic,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 14.
TOPIC NO. 15:
Any plans or potential plans made or considered by Defendants to create or
develop a social media platform and/or alternative or competitor to Twitter,
including without limitation any plans or potential plans concerning X.com, and
including without limitation the origin, history, and timeline of such plans, and all
other Persons involved in such plans or with whom Equity Investor has discussed
such plans.
RESPONSE TO TOPIC NO. 15:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
X Holdings further objects to this Topic to the extent the phrase
“alternative or competitor to Twitter” is vague and ambiguous. X Holdings will
construe “alternative or competitor to Twitter” to include any social media platform
other than Twitter, including X.com.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 15.
14Page 52 TOPIC NO. 16:
Your strategic or business plans for Twitter, including without limitation
(i) all plans to address issues relating to false or spam accounts on the Twitter
platform; (ii) all plans relating to employee retention programs or incentives; and
(iii) all plans relating to potential changes to the size and/or composition of Twitter’s
workforce.
RESPONSE TO TOPIC NO. 16:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent the phrase “strategic
or business plans for Twitter” is vague or ambiguous. Specifically, the phrase
“strategic or business plans” could include any number of short-term or long-term
plans about any facet of Twitter’s business, regardless of their relevance to the issues
in this litigation.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding the subtopics listed in (i), (ii), and (iii) of Topic
No. 16. X Holdings will agree to meet and confer regarding any further testimony
sought with reference to Topic No. 16.
TOPIC NO. 17:
The engagement, the work, and the termination of Bob Swan and/or the
cessation of Bob Swan’s involvement on Defendants’ behalf in connection with the
Merger and the Debt Financing, including the reasons that Defendants determined
that Bob Swan should “depart the deal proceedings” on or about June 23, 2022,
including due to the disconnect in “wavelength” between You and Bob Swan, as
described in Paragraph 110 of the Complaint.
15Page 53 RESPONSE TO TOPIC NO. 17:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 17.
TOPIC NO. 18:
The actual or potential engagement or involvement of Antonio Gracias to act
on Defendants’ behalf in connection with the Merger and the Debt Financing and
the work Antonio Gracias performed in that capacity, including all of the ways that
Antonio Gracias allegedly “dove in to the financing as soon as he was brought on”
to replace Bob Swan, as referenced in Paragraph 198 of the Counterclaim.
RESPONSE TO TOPIC NO. 18:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 18.
TOPIC NO. 19:
The directors, officers, employees, and owners of X Holdings I, Inc., X
Holdings II, Inc., and X Holdings III, LLC, and the relationships between them and
Equity Investor.
16Page 54 RESPONSE TO TOPIC NO. 19:
Subject to and limited by the General Objections, X Holdings will produce a
representative to testify regarding Topic No. 19.
TOPIC NO. 20:
Defendants’ and Defendants’ Advisors’ use of the “Botometer” tool described
in Paragraph 116 and Footnote 16 of the Counterclaim.
RESPONSE TO TOPIC NO. 20:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ Advisors’ use.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ Advisors’ use” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 20.
TOPIC NO. 21:
The engagement of the Data Scientists, including without limitation (i) the
identification of all Data Scientists and when they were engaged; (ii) the scope and
purpose of any such engagement; (iii) how such Data Scientists came to be engaged;
(iv) the nature of any agreements, arrangements, or understandings between the Data
Scientists and Defendants or Defendants’ Advisors.
17Page 55 RESPONSE TO TOPIC NO. 21:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[t]he
engagement of the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[t]he engagement of the Data Scientists” is the
subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 21.
TOPIC NO. 22:
All Persons that Defendants or Defendants’ Advisors communicated with
about a potential engagement as a Data Scientist that were not engaged as a Data
Scientist, including without limitation (i) the identification of all such Persons;
(ii) the timeline during which such potential engagement was considered; and (iii) all
reasons such engagement did not take place.
RESPONSE TO TOPIC NO. 22:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
18Page 56 Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 22.
TOPIC NO. 23:
All work performed by the Data Scientists, including without limitation (i) the
instructions received by the Data Scientists; (ii) the scope of the Data Scientists’
work; (iii) the timeline of the Data Scientists’ work; (iv) a description of the work
performed by each individual working as or for a Data Scientist; (v) the findings,
conclusions, and results of such work.
RESPONSE TO TOPIC NO. 23:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[a]ll work
performed by the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[a]ll work performed by the Data Scientists” is
the subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 23.
TOPIC NO. 24:
The financial model allegedly prepared by Morgan Stanley as described in
Paragraphs 34 and 166 of the Counterclaim and, to the extent different than the
financial model, the valuations allegedly prepared by Morgan Stanley as described
in Paragraph 78 of the Counterclaim, including the extent to which Defendants
19Page 57 received, reviewed, or discussed the referenced model prior to April 25, 2022, and
the extent to which Defendants relied upon the referenced model.
RESPONSE TO TOPIC NO. 24:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 24.
TOPIC NO. 25:
Any “additional business models” that Defendants allegedly considered as a
means to “unlock Twitter’s true value,” as described in Paragraph 39 of the
Counterclaim, including without limitation the “subscription-based model”
referenced in that same Paragraph, the projected or anticipated value of Twitter
based on such business models, and the relevance of mDAU to such business
models.
RESPONSE TO TOPIC NO. 25:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 25.
TOPIC NO. 26:
Defendants’ knowledge of Twitter’s litigation with the Indian government
and/or any content-removal orders issued to Twitter by the Indian government, as
20Page 58 discussed in Paragraphs 18 and 181 through 185 of the Counterclaim, including
without limitation when Defendants became aware of such litigation and/or contentremoval orders and who made them aware of such orders.
RESPONSE TO TOPIC NO. 26:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 26.
TOPIC NO. 27:
All “key decisions” that Twitter allegedly made “outside the ordinary course
without consulting the Musk Parties,” as alleged in Paragraphs 186 through 195 of
the Counterclaim.
RESPONSE TO TOPIC NO. 27:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 27.
TOPIC NO. 28:
The extent to which Defendants undertook any review, prior to executing the
Merger Agreement, of each of the allegedly false and misleading statements
discussed at Paragraphs 109 through 149 of the Counterclaim.
21Page 59 RESPONSE TO TOPIC NO. 28:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 28.
TOPIC NO. 29:
The reliance of Defendants and/or Defendants’ Advisors on Twitter’s
representations in its SEC filings, as alleged in Paragraph 27 of the Counterclaim.
RESPONSE TO TOPIC NO. 29:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 29.
TOPIC NO. 30:
Defendants’ beliefs about the number and/or prevalence of false or spam
accounts or bots on the Twitter platform, including all bases for such beliefs and
Defendants’ allegations set forth in Paragraphs 212 and 213 of the Counterclaim that
“[a]t the time of the Merger Agreement, Defendants/Counterclaim-Plaintiffs did not
know the false or misleading statements or omissions” and “[h]ad
Defendants/Counterclaim-Plaintiffs known about the false or misleading statements
and omissions, they would not have entered into the Merger Agreement.”
22Page 60 RESPONSE TO TOPIC NO. 30:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “all bases
for such beliefs.” The applicability of the work product doctrine and Chancery Rule
26(b)(4)(B) to “all bases for such beliefs” is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 30.
TOPIC NO. 31:
Defendants’ bases for contending that “statement[s] of material fact” in
documents that Twitter has filed with the SEC since January 1, 2022 were “untrue”
or “misleading,” including statements that Defendants contend contained
representations that “fewer than 5%” of Twitter’s mDAU are false or spam accounts.
RESPONSE TO TOPIC NO. 31:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ bases for contending.” The applicability of the work product doctrine
23Page 61 and Chancery Rule 26(b)(4)(B) to “Defendants’ bases for contending” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 31.
TOPIC NO. 32:
Defendants’ understanding of Twitter’s mDAU recast in April 2022, as
discussed in Paragraphs 9 and 79 through 81 of the Counterclaim.
RESPONSE TO TOPIC NO. 32:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 32.
TOPIC NO. 33:
The “preliminary analysis by Mr. Musk’s advisors” and the results thereof
described in the final paragraph of page 6 of Defendants’ July 8 letter.
RESPONSE TO TOPIC NO. 33:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
24Page 62 specifically insofar as it calls for the disclosure of information regarding the
“preliminary analysis by Mr. Musk’s advisors.” The applicability of the work
product doctrine and Chancery Rule 26(b)(4)(B) to the “preliminary analysis by Mr.
Musk’s advisors” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 33.
TOPIC NO. 34:
Defendants’ alleged belief that “due diligence processes can be costly and
inefficient,” as set forth in Paragraph 60 of the Counterclaim.
RESPONSE TO TOPIC NO. 34:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 34.
TOPIC NO. 35:
Defendants’ alleged assumption that Twitter “rel[ied] on automation, artificial
intelligence, and machine learning” to count false or spam accounts, as described in
Paragraph 83 of the Counterclaim.
25Page 63 RESPONSE TO TOPIC NO. 35:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 35.
TOPIC NO. 36:
Defendants’ understanding of the “stratification” or potential stratification of
Twitter’s mDAU, as that term is used in Paragraph 141 of the Counterclaim, whether
performed before or after the execution of the Merger Agreement.
RESPONSE TO TOPIC NO. 36:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ understanding” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 36.
26Page 64 TOPIC NO. 37:
Defendants’ allegation that “nearly a third of Twitter’s mDAU in fact see no
ads and appear to generate no revenue at all,” as set forth in Paragraph 138 of the
Counterclaim.
RESPONSE TO TOPIC NO. 37:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it may call for the bases for X Holdings’ allegation. The
applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to the
bases for X Holdings’ allegation is the subject of a pending motion to compel.
X Holdings will respond to this Topic according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 37.
TOPIC NO. 38:
Defendants’ knowledge and understanding of their allegation that “mDAU
growth is not occurring among high-value users,” as set forth in Paragraph 142 of
the Counterclaim.
RESPONSE TO TOPIC NO. 38:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
27Page 65 doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ knowledge and understanding.” The applicability of the work product
doctrine and Chancery Rule 26(b)(4)(B) to “Defendants’ knowledge and
understanding” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 38.
TOPIC NO. 39:
All allegations in Defendants’ Counterclaim.
RESPONSE TO TOPIC NO. 39:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify the particular paragraphs of the Counterclaims about which
Plaintiff seeks testimony.
Subject to and limited by the foregoing objections, and after Plaintiff
identifies which paragraphs are covered by this Topic, X Holdings will produce a
representative to testify regarding Topic No. 39.
28Page 66 TOPIC NO. 40:
Defendants’ understanding of how many false or spam accounts existed on
the Twitter platform as of July 8, 2022, in absolute terms and as a percentage of
Twitter’s mDAU, and all their bases for that understanding as of that date.
RESPONSE TO TOPIC NO. 40:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding” and “their bases for that understanding.”
The
applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to
“Defendants’ understanding” and “their bases for that understanding” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 40.
TOPIC NO. 41:
Defendants’ policies, practices, software, hardware, and systems relating to
the storage, management, retention, and destruction of Documents and
Communications.
29Page 67 RESPONSE TO TOPIC NO. 41:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 41.
TOPIC NO. 42:
Defendants’ efforts to ensure that Documents relating to the discovery
requests in this Action and/or the Complaint were properly preserved, including any
related litigation hold or document preservation letters or notices.
RESPONSE TO TOPIC NO. 42:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 42.
30Page 68 TOPIC NO. 43:
Defendants’ efforts to retrieve text messages, instant messages, and other nonemail Communications.
RESPONSE TO TOPIC NO. 43:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 43.
TOPIC NO. 44:
Any sales of Tesla stock by Equity Investor from April 1, 2022 through the
present, including the purpose of any such sale, any potential use of the proceeds of
such sale considered by Defendants, and any relationship between such sale and the
Merger.
RESPONSE TO TOPIC NO. 44:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 44.
31Page 69 TOPIC NO. 45:
The identity, role, and nature of the work of any personnel of Tesla or Space
Exploration Technologies Corp. who worked on, analyzed, or assisted in any
capacity with the Merger, the Debt Financing, the Equity Financing, any potential
investment by a Co-Investor, the Margin Loan Commitment, any potential tender
offer involving Twitter, Defendants’ purported termination of the Merger
Agreement, or the Action.
RESPONSE TO TOPIC NO. 45:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 45.
TOPIC NO. 46:
All information contained in Defendants’ Interrogatory Responses, including
all sources of such information and Defendants’ process of ascertaining and
providing such information.
32Page 70 RESPONSE TO TOPIC NO. 46:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify which particular interrogatory responses Plaintiff seeks testimony
on.
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 46.
OF COUNSEL:
Alex Spiro
Andrew J. Rossman
Christopher D. Kercher
Silpa Maruri
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, New York (212) 849-
/s/ Edward B. Micheletti
Edward B. Micheletti (ID No. 3794)
Lauren N. Rosenello (ID No. 5581)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
One Rodney Square
P.O. Box Wilmington, Delaware 19899-(302) 651-Attorneys for Defendant X Holdings II, Inc.
DATED: August 19,
916787-WILSR01A - MSWPage 71 EXHIBIT 5Page 72 From:
Sent:
To:
Cc:
Subject:
Matthew Fox
Tuesday, September 20, 2022 12:49 PM
Wilson, Bradley R.; Yavitz, Noah B.; Kirk, David E.; Shannon, Kevin R. (Potter Anderson &
Corroon LLP); Kelly, Christopher N. (Potter Anderson & Corroon LLP); Slights, Joseph R.
(Wilson Sonsini Goodrich & Rosati, PC)
Mader, David S. (Quinn Emanuel Urquhart & Sullivan LLP); Silpa Maruri; Emily Kapur;
Rossman, Andrew J. (Quinn Emanuel Urquhart & Sullivan LLP); Alex Spiro; Kercher,
Christopher D. (Quinn Emanuel Urquhart & Sullivan LLP); Kathryn Bonacorsi; Micheletti,
Edward B. (Skadden, Arps, Slate, Meagher & Flom LLP); Rosenello, Lauren N
RE: Twitter v. Musk -- Birchall 30(b)(6) topics
*** EXTERNAL EMAIL ***
Further to my email below, Mr. Birchall will also be Defendants’ 30(b)(6) representative on topics 11, 20‐23, 26, 27, 32,
and 36‐38 from Twitter’s August 11, 2022 notices, again subject to Defendants’ general and specific responses and
objections thereto.
From: Matthew Fox
Sent: Tuesday, September 20, 2022 12:01 PM
To: Wilson, Bradley R. ; Yavitz, Noah B. ; Kirk, David E. ; Shannon, Kevin R. (Potter Anderson & Corroon LLP) ; Kelly,
Christopher N. (Potter Anderson & Corroon LLP) ; Slights, Joseph R. (Wilson Sonsini
Goodrich & Rosati, PC)
Cc: David Mader ; Silpa Maruri ; Emily Kapur ; Andrew J. Rossman ; Alex Spiro ; Christopher Kercher ; Kathryn Bonacorsi ; Micheletti, Edward B. (Skadden, Arps, Slate, Meagher & Flom LLP) ; Rosenello, Lauren N
Subject: Twitter v. Musk ‐‐ Birchall 30(b)(6) topics
Counsel,
Defendants designate Jared Birchall as their 30(b)(6) representative on topics 2, 3, 4, 5, 19, 41, 42, 43, and 46 from
Twitter’s August 11, 2022 notices to X Holdings I, Inc. and X Holdings II, Inc, subject to Defendants’ general and specific
responses and objections thereto. Defendants, like Twitter, will not make any witnesses available for deposition more
than once.
Best,
Matt
Matthew Fox
Associate
Quinn Emanuel Urquhart & Sullivan, LLP
51 Madison Avenue, 22nd Floor
New York, NY 212-849-7285 Direct
212-849-7000 Main Office Number
212-849-7100 FAX
1Page 73 matthewfox@quinnemanuel.com
www.quinnemanuel.com
NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message
may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended
recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any
review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately
by e-mail, and delete the original message.
2Page 74 EXHIBIT 6Page 75 Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, Jared Birchall
Page
Page APPEARANCES CONTINUED
IN THE CHANCERY COURT
OF THE STATE OF DELAWARE
--------------------------------TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I, INC.,
and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
Civil Action No. 2022-0613-KSJM
---------------------------------
ATTORNEYS FOR DEFENDANTS AND COUNTERCLAIM-PLAINTIFFS
AND THE DEPONENT MR. BIRCHALL
Alex Spiro, Esquire
Quinn Emanuel Urquhart & Sullivan, LLP
51 Madison Avenue
22nd Floor
New York, New York (212) 849-ALSO PRESENT:
VIDEO DEPOSITION OF
Jared John Birchall
Individually and as Corporate Designee of:
X HOLDINGS I, INC. AND X HOLDINGS II, INC.
September 21, New York, New York
Lead: Kevin R. Shannon, Esquire
Firm: Potter Anderson & Corroon, LLP
Nathanial P. Graham, Paralegal
Wachtell Lipton Rosen & Katz
Jamie S. Blair, New York Remote Notary Public
(Appearing via Zoom)
JANE ROSE REPORTING
74 Fifth Avenue
New York, New York 1-800-825-Joan V. Cain, Court Reporter
FINAL COPY - CONFIDENTIAL
JANE ROSE REPORTING 1-800-825-
Larry Moskowitz, Videographer
Page APPEARANCES
ATTORNEYS FOR PLAINTIFF AND COUNTERCLAIM-DEFENDANT
Page
TABLE OF CONTENTS
Witness:
Jared John Birchall
Kevin R. Shannon, Esquire
Potter Anderson & Corroon, LLP
1313 North Market Street
Hercules Plaza
Sixth Floor
Wilmington, Delaware
Examination
By Mr. Shannon..............................Page By Mr. Spiro................................Page
(302) 984-
Reporter Certificate........................Page -AND-
Notice to Read and Sign.....................Page Noah B. Yavitz, Esquire
Index of Exhibits...........................Page
Jessica L. Allen, Esquire
Wachtell Lipton Rosen & Katz
51 West 52nd Street
New York, New York (212) 403-
JANE ROSE REPORTING
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PROCEEDINGS
--9:33 a.m.
September 21, --THE VIDEOGRAPHER: Good morning. We are
now on the record. Here begins Media No. 1, Volume
1, in the deposition of Jared Birchall, in the
matter of Twitter, Inc. versus Elon R. Musk, X
Holdings I, Inc. and X Holdings II, Inc.
Today's date is September 21st, 2022, and
the time is 9:33 a.m. This deposition is being
taken at the office of Quinn Emanuel, 51 Madison
Avenue, New York, New York, and was made at the
request of plaintiffs.
My name is Larry Moskowitz, the
videographer, and the court reporter is Joan Cain,
from Jane Rose Reporting, New York, New York.
Will counsel please identify yourselves and
state whom you represent.
MR. SPIRO: Alex Spiro, Quinn Emanuel, on
behalf of Mr. Birchall and X Holdings.
MR. SHANNON: Kevin Shannon, Potter
Anderson, on behalf of Plaintiff Twitter.
MR. YAVITZ: Noah Yavitz, Wachtell Lipton,
Page
Page
on behalf of Plaintiff Twitter.
MS. ALLEN: Jessica Allen, Wachtell Lipton,
on behalf of plaintiff Twitter.
MR. SHANNON: If you'd like to take a short
break and eat your sandwich?
THE WITNESS: I'm okay.
THE VIDEOGRAPHER: Will the notary public
please swear in the witness.
THE NOTARY: Yes.
Mr. Birchall, would you please state and
spell your name for the record, as well as state
your address, please.
THE WITNESS: Jared Birchall,
J-A-R-E-D B-I-R-C-H-A-L-L. Address:
Austin, Texas 78738.
THE NOTARY:
? I'm sorry.
THE WITNESS: I'm sorry.
.
THE NOTARY:
-THE WITNESS:
.
THE NOTARY: Oh,
. I'm sorry. Austin,
Texas.
And the zip code, please?
THE WITNESS: 78738.
THE NOTARY: Thank you.
Whereupon,
JANE ROSE REPORTING
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JARED JOHN BIRCHALL,
having been duly sworn under penalties of perjury by
the New York Notary Public, was examined and did
testify as follows:
THE NOTARY: Counsel, you may proceed.
MR. SHANNON: Thank you.
EXAMINATION BY COUNSEL FOR PLAINTIFF AND
COUNTERCLAIM-DEFENDANT
BY MR. SHANNON:
Q Good morning, Mr. Birchall. We've been
previously introduced. My name is Kevin Shannon. I
represent Twitter in this case.
Is there any reason you would not be able
to give your complete, truthful testimony today?
A No.
Q Have you ever been deposed before?
A I have.
Q How many times?
A I believe three.
Q Can you tell me in what matters you were
deposed?
A Well, I believe two connected to this
matter by government agencies, and then one -- I
don't know how I'd refer to it, but a trial four
years ago. It was Vern Unsworth versus Elon Musk, a
Page
defamation lawsuit.
Q Okay. And did you give both deposition and
trial testimony in that case?
A In that case, I did.
Q And you started out by alluding to two
depositions you've given relating to this matter.
Who did you give those depositions to?
A To the SEC and to -- actually, there were
two depositions with the SEC and then one with the
DOJ.
Q When did those depositions occur?
A The SEC was -- the second of the two was a
week ago. The DOJ was two weeks ago.
Q And when was the first of the two SEC?
A A month ago.
Q Okay. And who represented you in
connection with those depositions?
A Quinn Emanuel.
Q And Mr. Spiro, who's defending you today?
A Yeah. He was present at both of those.
Q Okay. Were there transcripts of those
depositions?
A I don't know.
Q You don't recall ever seeing the
transcripts?
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A I've never seen a transcript.
Q With regard to the two SEC depositions,
what specifically did they relate to?
A To the purchase of Twitter shares
primarily. I mean, there was a lot of material
covered. It was kind of all the logistics and
timing as it pertained to acquiring shares of
Twitter and the merger agreement.
Q Did you have an understanding as to why
there was a second deposition before the SEC?
A Yes.
Q What was your understanding?
A My understanding was it was to cover a
different time period.
Q What was the time period of the first
deposition?
A It was up until the merger agreement, and
then the second was post.
Q What did the questioning relate to with
regard to the second deposition, which is post
signing of the merger agreement?
A As I recall, it related to filings. I
mean, it was hours of questioning. So -- but
filings among -- among other, I guess,
timing-related questions that they had. I don't
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recall all those questions.
Q Are you aware of any other representative
of defendants that were questioned by the SEC or the
DOJ in connection with the same matters?
A I -- I believe Elon was as well.
Q Anyone else?
A I mean, not firsthand knowledge. I -- I
could guess on a few, but I -- I don't know
personally with certainty.
Q What's your understanding as to who else
would likely be investigated or -A Morgan Stanley representatives,
potentially, the legal representatives.
Q You also referred to a deposition by the
DOJ. What did that relate to?
A Similar topics: Asked many of the same
questions or similar -- similar line of questioning
with regard to timing and filings and motivations
and, you know, things like that.
Q Did you have an understanding as to why the
DOJ was taking a separate deposition regarding those
topics?
A My assumption was they're a separate
government entity with separate questions.
Q Just so it's clear, even though you've been
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deposed and deposed recently, today I'm going to ask
you a series of questions. If you don't hear a
question, certainly let me know, and I'll repeat it.
If you don't understand a question, let me know, and
I'll try and rephrase it. And at any point today
you need to take a break, just let me know, and
we'll take a break.
A Will do.
Q What did you do to prepare for your
deposition today?
A I met with the Quinn team yesterday, the
Quinn Emanuel team, for approximately five hours.
Q Did you review documents in connection with
that?
A I don't recall. I wasn't provided any
documents. I think questions were asked based on
documents, but I wasn't provided any documents.
Q Was anyone present during that meeting
other than lawyers for Quinn Emanuel?
A No.
Q Other than meeting with Quinn Emanuel
yesterday for five hours -- approximately five
hours, do you recall doing anything else to prepare
for your deposition today?
A I spent about another 40 minutes this
Page
morning with -- with them.
Q Anything else?
A No.
Q Have you discussed your potential
deposition testimony with any other witnesses?
A No.
Q Have you discussed it with anyone?
A No. Beyond Quinn Emanuel, no.
Q Have you reviewed any deposition
transcripts from this case?
A No. I don't have those.
Q Did you discuss your deposition with
Mr. Musk?
A No.
Q Can you briefly describe your education
post high school?
A A four-year degree at Brigham Young
University.
Q What year did you graduate?
A In '99.
Q What was your major?
A I was a Spanish language major, business
minor.
Q Did you go to Brigham Young immediately
following high school?
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A I did.
Q Do you have any certifications, such as a
CPA, or anything along those lines?
A Not a CPA. There were certain regulatory,
you know, Series 7, things like that, that at one
point I had. Those have lapsed. There was a CFM
designation that was earned while working at Merrill
Lynch.
Q And any series registrations that you have
or your CFM, your understanding those have lapsed?
A Correct. I don't know about the CFM
actually. But -Q Did you have any education after your
degree in Spanish from BYU?
A Formal education?
Q Correct.
A No.
Q You qualified your answer to formal
education. Is there informal education that you
were thinking of?
A I mean, yeah, there's a lot of training
that happened at employers, but not formal.
Q Can you briefly describe your employment
history following your graduation from Brigham
Young?
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A I was employed by Goldman Sachs in Los
Angeles.
Q When did you start at Goldman Sachs?
A That would have been late spring of -- of
'99.
Q What was your position at Goldman Sachs?
A Financial analyst.
Q How long were you at Goldman Sachs?
A A little less than two years.
Q Were you in the same position the entire
time?
A Yes.
Q Can you briefly describe your
responsibilities as a financial analyst at Goldman
Sachs?
A To support a team of private wealth
advisers and whatever they needed. That included a
lot of PowerPoint and Excel work and whatever
researching they needed and supporting clients
tangentially through them.
Q So you were on the private wealth side of
Goldman Sachs?
A That's right.
Q And you testified you were there for
approximately two years, which I take is until about
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2001.
What did you do after that?
A Transitioned with a large team of Goldman
Sachs employees to Merrill Lynch.
Q Where were you working for Merrill Lynch?
A Geographically?
Q Yes.
A In Los Angeles.
Q What was your position at Merrill Lynch?
A Initially, the same position, which was a
financial analyst.
Q Did that change over time?
A It did.
Q How did that change?
A Several years in, I transitioned into a
financial advisory role.
Q Approximately, when did you transfer into
that role?
A Approximately, two thousand -- somewhere
between 2003 and 2004.
Q And what did that role entail?
A It entailed advising a group of clients on
their personal financial matters.
Q At Merrill Lynch, were you also on the
private wealth side?
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A That's correct.
Q How long did you stay at Merrill Lynch?
A Ten years.
Q Did you remain as a financial adviser until
you left?
A I did.
Q And what year did you leave?
A Two thousand -- let's see here. Sorry.
I believe it was 2010.
Q What was your reason for leaving Merrill
Lynch?
A I was dismissed by the firm.
Q Why were you dismissed by the firm?
A The stated reason was that I -- there was
correspondence with a client that they had not
reviewed.
Q What type of correspondence?
A Regarding a trade request, a trade program
by that client.
Q You testified the stated reason. Did you
have an understanding that there was a different
reason?
A No. I'm just, I guess, trying to refer to
what they have stated because I think that's -Q Did you have an understanding as to why the
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correspondence you alluded to led -- led Merrill
Lynch to terminate your employment?
A Because they didn't review that
correspondence.
Q Any other reason?
A No.
Q What was your next position after Merrill
Lynch?
A A private wealth adviser at Morgan Stanley.
Q When did you start that position?
A In -- let's see here.
I mean, it was immediately after leaving
Merrill Lynch.
Q So 2010 or '11?
A Yeah.
Q Okay. How long were you with
Morgan Stanley?
A Between six and seven years.
Q And were you a private wealth adviser
during that entire period?
A I was.
Q Located in Los Angeles?
A Correct.
Q What were your responsibilities in that
position?
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A To provide advisory services to -- to
investor -- to clients.
Q And what type of advisory services?
A How they should invest their money.
Q And when did you leave Morgan Stanley?
A I left Morgan Stanley in two thousand -sorry. I'm blanking. It's either 2016 -- I'm
sorry. '15 or '16. I'm -Q Just the general time period -A Yeah.
Q -- is -- is fine.
A Yeah.
Q Why did you leave Morgan Stanley?
A I was offered a position to manage the
family office of Elon Musk.
Q When did you first meet Elon Musk?
A The very first time that I met Elon Musk,
though he probably wouldn't remember, was as an
employee at Morgan Stanley years earlier.
Q How did it come about that you were offered
the job to manage the family office for Mr. Musk?
A As I understood it, he had asked a friend,
adviser, a trusted person if they knew of anyone
that could help him do this, and I was one of the
names given to him.
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Q Do you know who he asked for that advice?
A I do.
Q Who was that?
A An -- an employee that had worked at
Merrill Lynch for him for a number -- for a handful
of years, whose name is
.
Q And did you interview with Mr. Musk?
A I did.
Q Do you recall when that was, generally?
A Yeah. It was -- it was, like, the month
preceding my hiring, so whichever those dates was -Q Okay. And so have you worked as the head
of the family office for Mr. Musk since that time
period?
A I have.
Q And what is your current title?
A Titles don't mean much in -- or -- or
technically it's the managing director of the -- of
Excession, LLC, or the Musk family office.
Q And is Excession, LLC, the family office?
A That's correct.
Q And have you been in that position since
you started?
A That's right, although Excession didn't
exist when I started, but shortly thereafter.
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Q Okay.
A Yes.
Q Was there a prior name for it?
A No.
Q And can you briefly describe your
responsibilities with regard to managing the family
office for Mr. Musk?
A Primarily, all things related to his
personal financial situation and, you know, his
personal affairs.
Q Just, like, when you say "personal
financial situation," can you give me examples of
the types of things you have responsibility for?
A Sure. Helping manage his balance sheet,
helping with everything from bill pay to lending
needs to stock transactions.
Q And you also suggested you have
responsibility to some extent for managing his
personal affairs. What were you alluding to there?
A Domestic employees, security, and, you
know, whatever else was needed.
Q Does anyone else work for Excession?
A Yes.
Q Who else works for Excession?
A You want the names?
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Q Yeah.
A
.
Q And just to save some time, if you could
let me know each of their roles as you identify
them -A Sure.
Q -- how long they've worked for the company?
A Yeah. So
is an accountant and
has worked with the company for approximately three
years.
, oversees philanthropic
efforts, and she's been with Excession for less than
a year.
works as a
bookkeeper/administrative kind of ops
representative. She has been with Excession
approximately five years, and those are the only
direct employees of Excession.
Q You said direct employees. Are there
people you would characterize as indirect employees
or independent consultants who work for Excession?
A No. I guess where my mind was going is we
also have domestic employees and security
representatives that -- personal security, not,
like, financial security, but that are employed
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through -- they're not technically employed by
Excession. They're employed by another entity, but
overseen by the Excession umbrella.
Q Is there a physical office for Excession?
A There is.
Q Where is that?
A Austin, Texas.
Q And does Mr. Musk have an office there?
A No.
Q Does he ever come to that office?
A No.
Q To the best of your knowledge, has he ever
been to the office?
A No.
Q Do you have an understanding why?
A He has a million other things that he's
doing in other offices and office spaces and
companies that he's focused on.
Q Is there anyone else at that office other
than the people you've just identified?
A No.
Q Okay. In your position as head of family
office -A Actually, I'm sorry. There are -- there
are two employees that oversee property management
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that I was thinking were -- were employed by the
other entity but are employed by Excession.
Q Are their responsibilities solely property
management?
A That's right.
Q And they are properties owned by Mr. Musk
or affiliates?
A That's right -- no, not owned. Used or
rented or, you know.
Q Okay. In your position at Excession and
head of the family office, do you -- who do you
report to?
A Elon.
Q Do you report to anyone else?
A No.
Q Does anyone other than Mr. Musk give you
instruction or direction as to what you should do?
A No.
Q Who determines how much you're paid?
A Mr. Musk.
Q Does Mr. Musk determine whether you stay
with the company or are terminated?
A Yes.
Q How often do you typically communicate with
Mr. Musk?
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A That varies significantly based on all
things that are happening, but there's a standing
weekly meeting that is fairly consistent.
Q Is that at a set time each week?
A There is a recurring calendar invite for
that that is set for
,
although it many times doesn't happen at that time.
Q You say it doesn't happen at that time. If
it doesn't happen, will it be rescheduled?
A Typically, it is.
Q And what is the purpose of that recurring
meeting?
A It is an update on all the work being done
for the week.
Q How does that meeting occur? Is it in
person, or is it Zoom? Or how does it occur,
typically?
A
.
Q
?
A
.
.
Q So are there -- let me take a step back.
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A
Q
A
?
Typically.
Okay.
I mean, within reason.
, we either would not have a
meeting or postpone it or -,
and at times they didn't happen.
Q Okay. Who else attends these meetings?
A It is mostly just the two of us. You know,
every once in a while, if there's a subject matter
expert that needs to be there with us to cover
something, they'll -- they'll join.
Q Is an agenda prepared for the meetings?
A No.
Q Does Mr. Musk ever advise you on what he
wants covered at the meetings?
A I -- sometimes.
Q How would he typically communicate that to
you?
A There's a general understanding of what he
wants covered at those meetings, and so I would come
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Page
prepared with that information in general, and in
some cases there would be a communication, you know,
in the days leading up with a specific request. And
that could be anywhere from a phone conversation to
a text to an email to a Signal message. It could be
any of those.
Q When you say there's a general
understanding of what he wants at the meetings,
what's your general understanding?
A An update on his financials.
Q And has that recurring meeting generally
occurred throughout this year?
A Generally, yes, with some exceptions.
Q Outside of the recurring meeting, is there
a manner in which you typically communicate with
Mr. Musk?
A Primarily the -- the mediums that I just
mentioned. I -- I think most of that communication
is in person during those weekly meetings, and then
we have utilized, historically, phone, email, text,
Signal.
Q Is -- is there a manner in which you
decide, if you have something you want to relay to
Mr. Musk, how you will send it, whether by phone,
text, Signal, or email?
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A So that would depend on the -- on the
content of -- of what I was sending and -- and the
timing. There's certain topics, of course, now,
that would -- would drive a type of communication a
certain -- through a certain medium versus another.
But, historically, things that are private
and personal and involve his personal information
would -- for the better part of the past four years,
five years maybe, Signal is -- is primarily how that
information is communicated.
Q Why do you use Signal for that purpose?
A For privacy and confidentiality. He -- the
first four years that I worked for him, I worked
half of the week at SpaceX and had it continually
pounded into me the -- the many different
adversaries that were seeking to access his
information. ITAR, a regulated company, and -THE COURT REPORTER: Say that again. I
missed it.
THE WITNESS: ITAR, I-T-A-R, a regulated
company with a lot of sensitivities, and so that was
impressed upon me and recommended by the IT teams,
to -- to communicate his personal information via
Signal.
BY MR. SHANNON:
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Q And why is Signal, in your understanding,
more protected or confidential?
A It's encrypted.
Q Are the Signal messages preserved?
A Signal -- I have a default setting on mine
that deletes in one week.
Q And do you know if Mr. Musk has a similar
one?
A I don't know what his settings are. I -- I
only know that my line of dialogue with him has that
setting on it.
Q Have you ever changed that setting?
A No.
Q Is that setting set for only Mr. Musk, or
is that for all your Signal messages?
A If I start a Signal message with any
person, it automatically -- the setting is that it
defaults at one week.
Q Have you ever changed that setting?
A I haven't. There -- there are others that
I correspond with that maybe have set different
timeframes.
Q Who else do you correspond with using
Signal?
A Primarily, his personal inner circle, his
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security. That's primarily it.
Q Do you ever use Signal for business?
A Again, I'm hired to manage his personal
family office, and so I guess it depends on your
definition of -- of business, but certainly for his
personal financial matters, yes.
Q Would you view his investment in Twitter as
one of his personal financial matters?
A His purchases of Twitter, definitely.
Yeah.
Q So did you use Signal with regard to any
matters relating to Twitter, including his purchase
of Twitter?
A I don't recall using Signal for that
purpose. The updates that I was giving him was in
person on -- you know, when I was with him in the
meetings, but certainly there was a moment
that when there were litigation holds where added
care was taken to never use it for anything
involving Twitter.
Q When do you recall that occurring?
A Approximately mid-May.
Q Who did you receive the litigation hold
from?
A I don't recall if it was from Skadden or
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Quinn, but -- or both. I don't know. But it was
from one or the other.
Q Do you know what triggered the receipt by
you of a litigation hold in mid-May of 2022?
A The way I understood it is there was
pending litigation.
Q What pending litigation are you referring
to?
A Between the two parties in question today:
Twitter and Elon Musk.
Q Did you have an understanding that
litigation was pending in mid-May 2022?
A I mean, my assumption was that a litigation
hold was correlated with some degree of litigation.
Q Okay. So is it your recollection that
since mid-May, as a result of receiving that
litigation hold, you have not used Signal?
A For Twitter-related matters, yes.
Q Are you still using it for other matters?
A I am.
Q And does it still have the auto delete at
one week?
A It does.
Q You also referenced that you communicate
with Mr. Musk via email. How do you determine when
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you will email something to Mr. Musk as opposed to
Signal, text, or call?
A Email is much less frequent, and sometimes
it is because I have specifically asked him, whether
in our meeting or otherwise. Sometimes others have
initiated emails that it is just easier and not
overly confidential to just forward that along.
Q When you say because you specifically asked
him, what do you mean by that?
A In our -- I can just think of one email in
particular where we -- you know, sitting down with
him in a
meeting I would have asked, "Okay.
Is this okay to email?" And always with the -- I'm
always thinking of -- of the -- you know, the things
that the IT team has hammered into my head as far as
privacy and confidentiality and security risks,
and -- and so at times I would double check before
sending something.
Q What kind of things would you view as okay
to email?
A Well, one of the more recent emails that I
sent was regarding architectural plans that the
architecture team, you know, wanted him to see, and
so something like that. I -- but the less, I guess,
confidential private matters that -- you know, I
Page
guess the less confidential and private matters,
yeah.
Q Would you view Mr. Musk's investment in
Twitter to be a confidential and private matter?
A Yes.
Q When you email Mr. Musk, what email address
do you use?
A I've used -- historically, I've used two,
but almost exclusively the SpaceX email.
Q What are the two that you've historically
used?
A The other being his Tesla email.
Q Why do you use the SpaceX account?
A That's -- like I said, I spent four years
at SpaceX sitting, you know, at a desk a few desks
away from him, and that was just kind of where I
started my communications via email with him.
Q What email account do you use in order to
communicate through email to Mr. Musk?
A It's an Excession email address.
Q Do you ever use a different email account
to communicate with Mr. Musk?
A Not that I recall.
Q You also suggested that you speak with
Mr. Musk by phone. Is there more than one phone
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number that you call for him?
A No, not at any given time, but over -- over
time he has changed his phone.
Q But at any given time, you're only aware of
him having one phone number that you would reach out
to?
A That's right.
Q How about text? Do you communicate with
Mr. -- Mr. Musk using texts?
A Sometimes.
Q How do you determine when to communicate
with Mr. Musk using texts?
A Typically, if he has texted me, you know, I
will respond via text. Again, if it -- if it isn't
of sensitive personal confidential nature, if it's
trying to get him on a phone call or something like
that, I'll use, you know, text.
Q And I assume that would be to the one
number you have used when you call him?
A That's right.
Q And do you have more than one phone?
A I don't.
Q What is your practice with regard to
preserving texts?
A I don't delete texts.
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Q Do you recall having deleted any texts?
A I don't.
Q Does your phone have a setting with regard
to texts?
A I, frankly, don't know that.
Q Do you know if Mr. Musk deletes his texts?
A No idea.
Q Do you know if his phone has a setting for
texts?
A I don't know.
Q How about WhatsApp or any other messaging
apps? Do you use any of them to communicate?
A I don't.
Q And just so I understand, we've walked
through the way you communicate. Is it fair to say
that anything you would view as confidential and
personal, you would typically default to Signal?
A Unless subject to the litigation hold that
I mentioned.
Q Mr. Birchall, are you aware that you're
appearing as a Rule 30(b)(6) witness -- 30(b)(6)
witness today?
A Yes.
Q And you're appearing on behalf of both X
Holdings I and X Holdings II; correct?
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A That's right.
Q And can you tell me what your role is at X
Holdings I?
A Well, I'm one of two people that I think
represent the organization that was created
exclusively for this transaction.
Q Is the other person Mr. Musk?
A Correct.
Q Do you have a title at X Holdings I?
A I don't, or at least I don't know of one
that I -Q How about X Holdings II? What is your role
there?
A The same.
Q And is Mr. Musk the only other person
involved with that entity?
A I believe so.
Q And has that been true since the entities
were formed?
A As far as I know, yes.
Q And what is the difference between X
Holdings I and X Holdings II?
A Just multiple layers of entities for
purposes at the recommendation of legal teams.
Q Do you know why both different entities
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were established?
A Like I said, at -- it was -- they were
established at the recommendation of -- of legal
teams for the -- you know, for the execution of this
transaction.
Q Do you have any specific role at either
entity?
A Not that I know of, other -- other than to
be -- you know, continue doing what I'm doing for
Mr. Musk.
Q When you say continue to be doing what
you're doing, what do you mean by that?
A I mean work as -- work in the capacity that
I always have, you know, as just, you know, adviser
or whatever.
Q And any action you would take on behalf of
either X Holdings I or X Holdings II would be at the
direction of Mr. Musk?
A In conjunction with at least, yes.
Q Have you read the Rule 30(b)(6) deposition
notices in this case?
A I don't believe I have.
Q Have you -A Is this -- is this an issue (indicating)?
No. Okay.
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Q Have you read the defendants' responses or
objections -- and objections to the 30(b)(6)
notices?
A I haven't.
Q When did you learn that you were going to
be designated as a Rule 30(b)(6) witness?
A Yesterday.
Q Can you generally tell me what topics you
are testifying on regarding -- or with respect to
the 30(b)(6) notices?
A I -- I don't recall the list. There were a
few -- a handful of things on that, but I -- I don't
recall specifically what those, you know -Q Do you recall any specific ones?
A I don't.
Q Okay. What did you prepare -- or strike
that.
What did you do to prepare in order to be a
30(b)(6) with regard to the topics that have been
designated for you?
A That was part of the block of time that I
mentioned yesterday with -- with the legal team.
Q The -- the five hours that you -A That's right.
Q With regard to the topics for which you've
Page
Page
been identified, do you view yourself as the person
most knowledgeable at X Holdings I or X Holdings II?
A I think so, far as I know.
Q Would there be anyone else knowledgeable
other than you and Mr. Musk on behalf of those
defendants?
A Not that I -- no, I don't believe so.
MR. SHANNON: Can you hand me the 30(b)(6)?
Thanks.
Will you mark that as Exhibit 1.
--(Birchall Exhibit 1 was marked for
identification.)
--MR. SHANNON: And if you could mark that as
Exhibit 2.
--(Birchall Exhibit 2 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibits 1 and 2, which I
will represent to you are the 30(b)(6) notices
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served by plaintiffs for both X Holdings I and X
Holdings II for which you've been designated as to
certain topics, the designated witness.
A Okay.
MR. SPIRO: Kevin, do you happen to have a
copy?
MR. SHANNON: Oh, sorry. Let me make sure
I give you both. Here's Exhibit 2.
MR. SPIRO: You can proceed as we're
finding them.
MR. SHANNON: There's Exhibit 1.
MR. SPIRO: Thank you.
BY MR. SHANNON:
Q And, Mr. Birchall, I know you testified you
hadn't seen these before, but I'm going to ask you
to turn to page 12 of the one that is marked
Exhibit 1.
A Okay. I'm there.
Q And -- and they should be largely the same
except for different defendants.
Do you have that in front of you?
A I do.
Q And the first topic that's listed for which
you've been identified is No. 2.
Do you see that there?
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And No. 2 reads -- and this is on page 12.
Do you see it?
A I do.
Q And it reads: "All efforts to syndicate
and/or arrange documents, negotiate the terms of,
consummate the debt financing of, and close the
merger, including the status or expected timeline
for such efforts."
Do you see that?
A I do.
Q Okay. Can you describe for me the efforts
relating to the debt financing that are covered by
that topic?
A So we engaged Morgan Stanley, their banking
team, and they -- and relied exclusively on them to
arrange and syndicate the -- the debt.
Q Did you have any role in it?
A I did not.
Q Are you aware of anyone else having a role
other than Morgan Stanley?
A I'm not.
Q And was Morgan Stanley keeping you or
anyone else advised of their effort?
A Yes.
Q How did they do that?
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A There were periodic phone conversations.
Q How often were those conversations?
A As I recall, maybe a few times per week.
Q And how long did those conversations
continue on for?
A I -- I don't recall how long those -- those
conversations were.
Q When is the last conversation you recall
with anyone at Morgan Stanley with regard to the
debt financing?
A I -- I can't pull a date out on what that
would be. I -- I don't remember the last
conversation on that.
Q Were there invites for these discussions?
A Not typically. I don't think these were,
you know -- although I could be wrong, but I recall
them as more kind of spontaneous check-ins.
Q And who from Morgan Stanley would reach out
to you for a spontaneous check-in?
A Any number of the team members. The main
points of contacts were Kate Claassen,
Michael Grimes, Anthony Armstrong.
Q And on behalf of defendants, were you the
person they were supposed to reach out to?
A I was -- I was part of phone conversations.
Page
Page
I'm not sure who they were supposed to reach out to.
Q Well, who, other than you, would they reach
out to, to give an update on financing?
A You know, I think at times I wasn't the
only person on -- on a call. Who and when -- you
know, who -- others -- who else might have joined
and when, I -- I can't tell you, but I know that
there was certainly a call -- more than one call
where Elon would have been, you know, briefed on
progress.
Q What is the current status of the debt
financing?
A As I understand it, we have secured the
full amount needed, and I think there are some
closing provisions that are yet to be met, but
there's -- as I understand, the debt providers are
standing ready to fulfill their obligations.
Q And what is that understanding based on?
A Just my general understanding of progress
with the transaction.
Q You said there are covenants that need to
be met. What covenants are you referring to?
A I think I used the word "conditions," but,
I mean, they're not just going to fund the deal in
the middle of -- you know, before we get to a close
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date or something like that. So I don't know
exactly what is on their checklist, but I know that
they haven't funded yet, which would suggest there
are some things that need to happen before. But as
I understand it, they stand ready to fund.
Q And do you have an understanding as to who
at Morgan Stanley was primarily responsible with
regard to the debt financing? Who was the point
person?
A I don't.
Q Who at Morgan Stanley do you recall having
discussions with regarding the debt financing?
A As mentioned, it would have been with one
of the three people that I mentioned, and I think at
different times with some combination.
Q Just so I have it, the three people you
mentioned are who?
A Kate Claassen, Michael Grimes, and Anthony
Armstrong.
Q Okay. If you'd turn to No. 3 in the
document in front of you, which is also on page 12,
this is another topic for which you've been
designated as the Rule 30(b)(6) designee.
A Mm-hmm.
Q It reads: "All efforts to solicit
Page
co-investors, arrange or negotiate equity
co-investments, and/or arrange, document, syndicate,
or consummate the Equity Financing, including those
concerning the status or expected timeline for such
efforts."
Do you see that?
A I do.
Q Can you describe the efforts that are
identified in that topic?
A Yeah. So, again, we were relying on the
Morgan Stanley banking team to -- to execute this.
We -- there was a list of investors that, as I
recall, were all inbound calls and/or messages that
indicated interest, and my personal involvement was
ushering them to the banking team.
Q And when you say the Morgan Stanley banking
team, who are you referring to?
A To the three individuals that I mentioned:
Kate Claassen, Michael Grimes, Anthony Armstrong.
Q So your sole role was with respect to the
equity financing to -- if you received an inbound
call, to forward that person to Morgan Stanley?
A That's right.
Q Do you recall having any substantive
discussions with any of the potential investors?
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A When you say substantive, what are you
referring to?
Q Beyond suggesting they call Morgan Stanley?
A There were -- you know, some of those
conversations were just big picture, "What's Elon
thinking?" And then, you know, in a very general,
broad way, you know, his focus on preservation of
democracy, freedom of speech, and then would usher
them along.
Q Do you recall conveying to them anything
other than Mr. Musk's interest in freedom of speech
and democracy and the American way?
A No. And, I mean, beyond just those big
general points, no.
Q Do you recall any specific potential
investors that you spoke to in that regard?
A Yeah. I can think of a few that -- that I
had conversations with.
Q Can you identify them?
A Let's see. At -- at some point, I spoke
with the
team. I mean, there were -- were
many on the list, and so it's -- it's a long list of
people.
Q But you don't recall having any
communications with them, either oral or written,
Page
Page
beyond sort of the broad, general statements that
you described?
A I mean, no. There's no specific discussion
or -- I mean, they were all -- they all run together
in my mind.
Q Are you aware of anyone else who was
involved in soliciting the co-investors, other than
Morgan Stanley, who you identified?
A No.
Q Are the efforts to solicit co-investors
ongoing?
A Fielding calls of interest has -- has
slowed down for sure, but -- are you talking about
the same list of investors that have committed?
Q I'm just talking -- you're offered to
testify about all efforts to solicit co-investors.
Are any efforts continuing?
A Yeah. So since the latest developments of,
you know -- currently, there are no on -- ongoing,
overt efforts.
Q Okay. What is the status of your equity
financing with regard to the potential co-investors
that were identified before the litigation?
A As -- as I understand it, all are remaining
committed.
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Q Have any of them told you they are no
longer committed?
A Not that I recall.
Q If you'd turn to No. 4 on that same page -A Yes.
Q -- it's another topic for which you've been
designated, and it reads: "All efforts undertaken
by Defendants or Defendants' Advisors, on or after
May 13th, 2022 to obtain, syndicate, arrange,
finalize, and/or consummate the Debt Financing,
close the Merger, and/or cause all of the conditions
for closing the Merger to be satisfied."
Do you see that?
A I do.
Q Can you describe those efforts?
A Again, our advisory team with -- with
Morgan Stanley and our legal team have, you know,
ensured that the debt is lined up, that our equity
investors remain engaged, and that's -- that's what
I understand.
Q Are you aware of any efforts that have been
made with regard to the topic covered by this No. 4,
other than those by Morgan Stanley?
A No. I mean, beyond legal teams.
Q And when you say "beyond legal teams," what
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do you mean by that?
A Well, you know, legal advisers of, you
know, Skadden and Quinn Emanuel have been involved
in, you know, every step of the way. So that -that's what I mean.
Q Is there a distinction between the role
played by Skadden and Quinn Emanuel with regard to
the Twitter transaction or the debt financing?
A As I understand it, Skadden is what -- for
lack of a better term, kind of the -- the deal team,
and Quinn is serving as advisers and certainly
part -- part of the litigation team.
Q If you'd turn to No. 5 on the next page,
that is another topic for which you've been
identified, and it reads: "The Margin Loan
Commitment, including without limitation...the
reduction in the amount of the Margin Loan
Commitment and reasons for such reduction; and ii)
the subsequent termination of the Margin Loan
Commitment and reasons for such termination."
Do you see that?
A I do.
Q Okay. What is your understanding of the
"Margin Loan Commitment"?
A So there was -- as part of the initial
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transaction, 12.5 billion of margin loan, yeah.
Does that answer your question?
Q Did you have any role in that margin loan
commitment?
A No. Again, that was Morgan Stanley that
syndicated that.
Q And is that the same Morgan Stanley team
you previously identified?
A That's right.
Q And it also refers to the margin loan
commitment and the reasons -- I'm sorry -- the
reduction in the amount of the margin loan
commitment and the reasons for such reduction.
Are you aware there was a reduction?
A Yes.
Q Okay. What -- how much was the reduction?
A Initially, I believe it was cut in half
approximately, and that was in conjunction with us
securing equity commitments from outside investors.
Q And then it refers to the subsequent
termination of the margin loan commitment and the
reasons for termination.
Are you aware that the margin loan
commitment was terminated?
A I am.
Page
Page
Q What were the reasons for that?
A Twofold: One was the cost associated with
that; and two was the risk associated with margin.
Q And who made that determination?
A I think it was just a group decision
between advisers and -- with our advisers.
Q Would Mr. Musk have been involved in that
decision?
A Yes.
Q If you could turn to No. 11, which is on
page 15 -A I'm there.
Q -- that is another topic for which you've
been designated, and it reads: "Any communications
between (a) Defendants or Defendants' advisors and
(b) any Governmental Authority, concerning...the
merger...the Merger Agreement...the Proxy Statement;
or...Twitter, including the purpose of such
Communications, the nature and substance of such
Communications, and whose request such
Communications were made."
Do you see that?
A I do.
Q Okay. Can you tell me what communications
were made by or on behalf of defendants relating to
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the topics covered here?
A So I guess that's a -- the
word "communications" is a broad term. I -- can you
specify? Like, are you asking for modes of
communication? Are you asking the content of
communication?
Q More the content. And we can break it out.
Why don't we say -- tell me what government
authorities you're aware that have been contacted
with regard to any of these topics?
A Oh. Well, both the -- as mentioned
previously, both the SEC and the DOJ have -- is what
I'm aware of.
Q And those were the contacts that relate to
the investigation that the SEC and the DOJ are
conducting?
A Yes.
Q Are you aware of any contacts with either
of those entities unrelated to that investigation?
A I'm not.
Q How about are you aware of any contacts by
defendants or defendants' advisors with any state
authority, including the Texas attorney general?
A I'm not.
Q And what effort have you made to determine
Page
whether there were any such contacts?
A Such contacts with?
Q For example, the Texas attorney general.
A I -- I just don't know the answer to that
question.
Q What do you mean you don't know the answer
to that question?
A Well, I haven't asked that question, if you
will, and I'm not aware of communications.
Q When you say you haven't -- you haven't
asked any advisors or lawyers that question is what
you're saying?
A Yeah. You're asking me if I know the
answer to that question, and I don't know the answer
to that question because I haven't -- I don't know.
I have not asked that question.
Q Okay.
A Yeah.
Q If you'd turn to No. 18 -- I'm sorry -- 19,
that is another topic for which you were identified.
It says: "The directors, officers, employees, and
owners of X Holdings I, Inc., and X Holdings II,
Inc., and X Holdings III, LLC and the relationship
between them and Equity Investor."
I believe you testified previously that
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there are no directors, officers, or employees other
than potentially you and Mr. Musk; is that true?
A That's correct.
Q Okay. And who is the owner of each of
those entities?
A As I understand it -- I mean, we relied
upon the legal teams to structure these, but as I
understand it, the ultimate owner would be Mr. Musk.
Q For each of the entities?
A I -- actually, I don't know that to be the
case, thus the -- having the multiple entities. So
I -- I'm not sure who is the owner of each one.
Q Are you aware of who is the owner of any of
them?
A I guess per my previous comment, my
assumption of one of them, that would be Mr. Musk.
Q Did you make any effort to determine who
the owners of these entities were before your
deposition?
A No.
Q If -- if you'd turn to the next one listed,
which is defendants -- this is No. 20: "Defendants
and Defendants' Advisors use of the 'Botometer' tool
described in Paragraph 116 and Footnote 16 of the
Counterclaim."
Page
Page
Do you see that?
I do.
Do you know what that's referring to?
Vaguely.
Actually, maybe to help you -MR. SHANNON: Can you hand me the
counterclaim? I'll mark it.
MR. GRAHAM: Which one?
MR. SHANNON: It's 53.
Thank you. I need probably a couple of
them.
Can you mark that as Exhibit 3.
--(Birchall Exhibit 3 was marked for
identification.)
--MR. SHANNON: Just two is fine.
Thank you.
Here you go.
THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 3, which is a
copy of Defendants' Verified Counterclaims, Answer,
and Affirmative Defenses filed on July 29th, 2022.
A
Q
A
Q
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Have you seen that before?
A Not that I can recall.
Q Did you review the pleading before it was
filed with the court?
A Not that I can recall.
Q Do you recall having ever seen it before?
A I don't recall ever seeing it.
Q If you could turn -- just so it helps you
with regard to the topic, it's on page 52.
A I'm there.
Q Yes. And then you'll see in paragraph there is a reference to the effect of spam and false
accounts, and then you'll see the footnote which
refers to the Botometer® tool.
A I do see that.
Q Okay. And what's your understanding of the
Botometer® tool?
A As I understand it, our counsel retained
data scientists and that -- you know, three
different groups that were working on this for us,
and so I -- I don't have an understanding of that
tool.
Q Did you make any effort to -- to inform
yourself before this deposition regarding the
Botometer® tool and how it was used by defendants?
Page
A I did not.
Q Do you know what conclusions the data
scientists that you referred to came to as result of
using the Botometer® tool?
A I don't.
Q Do you -- do you know if defendants relied
at all upon the conclusions or the use of the
Botometer® tool?
A I don't.
Q Who would know that?
A I'm guessing at this, but the legal team
who retained them may know.
Q Do you know who retained them?
A I believe it was through Skadden, but could
have -- yeah. I think it was through Skadden. I'm
not certain of that.
Q Who made the decision to retain them?
A The legal team.
Q Did you have any involvement in that
decision?
A No.
Q Do you know why they retained them?
A I can't speak on their behalf. I mean,
they're obviously looking for data.
Q What data are they looking for?
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A Regarding -- well, just Twitter-related
data. I -- they're, you know, data scientists and
so they were parsing data.
Q Do you know what data they were parsing?
A Well, I mean, you brought up the
Botometer®. I'm sure part of what they were looking
at was related to bot numbers and things like that.
Q Maybe it's easier to cover it with regard
to Topic 21, if you refer back to Exhibit 1.
Topic 21 you've also been identified with
regard to, and that is: "The engagement of the data
scientists, including without limitation the
identification of all data scientists and when they
were engaged, the scope and purpose of any such
engagement, how such data scientists came to be
engaged, the nature of any agreements, arrangements,
and understandings between the data scientists and
data and defendants or defendants' advisors."
Do you see that?
A I do.
Q Okay. Can you, starting with -- can you
identify for me the data scientists that were
retained?
A Yeah. As I mentioned, there were three,
and I believe they were CounterAction, Halo, and
Page
Page
Cyabra or Cyabra.
Q Okay. And when were they retained?
A As I recall, it was mid-to-late May.
Q Why were they retained?
A To analyze data.
Q Were all of them engaged at the same time?
A I'm not sure. I don't know.
Q Why were the three data scientists engaged?
A I'm not certain of the answer to that, but
assume it was in an effort to have a more thorough
review of data.
Q Do they have different expertise?
A Not that I know of.
Q Are you aware of the expertise that each of
the data scientists have?
A No.
Q Prior to this deposition, did you make any
attempt to inform yourself regarding why the data
scientists were engaged, what work they are doing,
and their conclusions?
A No.
Q Have you been -- who determined to retain
the data scientists?
A The legal team.
Q Did you approve that?
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A There may have been a discussion regarding,
you know, spending money.
Q Did you or Mr. Musk have any role in
determining what the data scientists would do?
A No.
Q Who determined what the data scientists
would do?
A The legal teams.
Q When you say "the legal teams," who are you
referring to?
A Again, I'm not sure how they were parsing
this specific initiative, but the two teams, of
course, were Skadden and Quinn, and I just don't
know which was head- -- heading up this effort.
Q Do you have an understanding as to how much
the data scientists are being paid?
A I -- I have that information. I don't have
a recollection -- a recollection of the exact
numbers.
Q Do you have the agreements that were
entered into between the data scientists and your
counsel?
A I don't recall.
Q Do you recall ever seeing those agreements?
A I -- I have a vague recollection of -- of
Page
potentially seeing one or more of them, but I -- I
just -- I don't have a recollection of content or
whatnot.
Q Do you recall any discussions with Mr. Musk
regarding the data scientists?
A I was on a -- well, you're saying specific
conversations with him?
Q Yes.
A No.
Q Do you recall specific conversations with
anyone regarding the data scientists?
A I -- I was on a call at one point where
information was exchanged, kind of an update of
progress that I believe Mr. Musk may have also been
on. I believe he was on.
Q Do you -- is that the only time you recall
having any communications relating to what the data
scientists were doing?
A Yes.
Q Okay. And when was that call?
A Again, it would have been around the same
time that we -- maybe mid-to-late May.
Q And other than Mr. Musk, who do you recall
being on that call?
A You know, the -- well, as far as specifics,
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I mean, certainly the -- the legal teams who
retained them, team/teams. I don't recall. It's
possible that -- it's possible that Mike Ringler was
on the call. It's possible that Alex was on the
call. I'm not certain.
Q And what do you recall of that call?
A A lot of kind of information about
methodologies and -- and kind of initial thoughts
on, you know, the data that they had gathered.
Q What do you recall as any specific comments
made during the call?
A I don't recall the specifics of that phone
conversation.
Q Did they have any views with regard to the
data they had gathered to date?
A I mean, certainly they had views. I just
don't recall what specifically they, you know,
shared.
Q What's your general recollection of the
views?
A I mean, the general recollection was that
there -- that the 5 percent number was a low number.
Q And what was that general statement based
on?
A The work that they had done.
Page
Page
Q Did you ever receive any of the work they
had done?
A I don't believe I did.
Q Okay. Do you know if any of it was
provided to Mr. Musk?
A I don't.
Q Did you ever ask for any of the work they
had done?
A Not that I recall.
Q Do you know if the work they have done has
been provided to anyone but your counsel?
A I don't know.
Q Do you know if they are still doing the
work?
A I don't.
Q Do you ever get updates as to the status of
the work?
A No. I mean, that phone conversation that I
mentioned was a check-in, and I have not spoken with
them since.
Q And you believe that was sometime in
mid-to-late May?
A I believe so.
Q And have you -- even though you haven't
spoken to them, have you received any information
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regarding their analysis?
A There was probably a follow-up conversation
with counsel, but, you know, I can't think of a
specific conversation, but, I mean, there most
likely was a follow-up conversation.
Q But you don't recall a specific one?
A I don't.
Q Do you recall having any -- ever having any
discussions with Mr. Musk regarding the data
scientists or any of the work they'd done?
A I don't.
Q Do you recall ever having a communication
with Musk, whether oral or written, regarding data
scientists or any work they've done?
A I don't.
Q Okay. If you'd turn to No. 22, it's
another topic for which you've been identified, and
it reads: "All persons that Defendants or
Defendants' Advisors communicated with about a
potential engagement as a Data Scientist that were
not engaged as a Data Scientist, including without
limitation (i) the identification of all such
Persons"; the timeline -- "(ii) the timeline during
which such potential engagement was considered; and
(iii) all reasons" for such -- that "such
Page
engagements did not take place."
Do you see that?
A I do.
Q Can you tell me what persons were
communicated with about the potential engagement as
a data scientist that were not engaged?
A I -- I'm not aware of any engagements or
discussions beyond those that we engaged.
Q Prior to this deposition, did you make any
effort to determine if there were any such
discussions or communications?
A I didn't.
Q Okay. If you could turn to No. 23, which
is another topic for which you've been identified,
it reads: "All work performed by the Data
Scientists, including without limitation, the
instructions received by the Data Scientists...the
scope of the Data Scientists' work, the timeline of
the Data Scientists' work...a description of the
work performed by each individual working as or for
a Data Scientist," and "the findings, conclusions,
and the results of such work."
Do you see that?
A I do.
Q Okay. Starting with first little I, what
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instructions were received by the data scientists?
A Again, the -- you know, it was the legal
team that engaged them and corresponded with them
regarding these topics, instructions, scope,
timeline, and so I -- I don't have that information.
Q Okay. You don't have any of that
information?
A I don't.
Q Okay. Did you make any effort to obtain
that information prior to your deposition today?
A I did not.
Q If you could turn to No. 26, which is on
page 19. That is another topic for which you've
been identified, and that reads: "Defendants'
knowledge of Twitter's litigation with the Indian
government and/or any content-removal orders issued"
by -- "issued to Twitter by the Indian government,
as discussed in Paragraphs 18 and 181 through 185 of
the Counterclaim, including without limitation when
Defendants became aware of such litigation and/or
content-removal orders and who made them aware of
such orders."
Do you see that?
A I do.
Q Okay. What's your knowledge regarding
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Twitter's litigation with regard -- with the Indian
government?
A I -- I really don't have much. I remember
hearing that there was a matter involving the Indian
government. I -- I don't have really any
information about what that specifically entailed.
Q Okay. Did you make any effort before your
deposition today to gain such knowledge?
A No, I did not.
Q If you could turn to the next topic, which
is No. 27 which you've also been identified as the
designated witness, it says: "All 'key decisions'
that Twitter allegedly made 'outside the ordinary
course without consulting the Musk parties,' as
alleged in Paragraphs 186 through 195 of the
Counterclaim."
Do you see that?
A I do.
Q Now, what is your knowledge regarding the
key decisions made outside the ordinary course as
referenced in that topic?
A Well, primarily regarding executives.
Q Okay. And when you say "primarily
regarding executives," what are you referring to?
A The dismissal of -- of executives without
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consulting Mr. Musk.
Q Which executives?
A I don't recall their names, but -- yeah, I
don't -- I don't recall their names.
Q When did you learn about the dismissal of
the executives?
A I don't recall when that was.
Q How did you learn about the dismissal of
the executives?
A I'm pretty sure it came from our legal
team.
Q Do you know how they learned?
A I don't.
Q Did you make any effort to determine the
facts relating to the dismissal of the executives
you just referenced before your deposition today?
A No.
Q How did you determine that the terminations
that you referenced were outside the ordinary
course?
A Well, certainly with -- under the
advisement of the legal teams and per the agreement
that had been made with -- between the two parties.
Q Is it your view that any termination of an
executive is outside the ordinary course?
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A I believe so.
Q And what is that based on?
A Again, the agreement that -- that was made.
Q And if it helps, if you could turn to
Exhibit 3 which you have in front of you -A Mm-hmm.
Q -- and that might remind you of the names
of the two individuals that you referenced, and as
noted in the topic, if you start on 186 -A Okay.
Q -- and I believe it's 187 that will provide
the name of the person.
A This is No. 3? I don't think I have that
many pages.
Q I'm sorry. Oh, did I -A You said 186.
Q I'm sorry. Paragraph 186, page -- it
starts on page 79.
A Oh, okay.
I'm there.
Q And if you'd turn to paragraph 187 -A Yeah.
Q -- do you see the name "Bruce Falck"?
A I do see that.
Q Okay. Is that one of the persons that you
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believe was terminated that you were referencing?
A Yes, I believe so.
Q Okay. And when did you learn that
Mr. Falck had been terminated?
A I don't recall when -- when that was.
Q How did you learn?
A I believe that was through the legal team.
Q And why do you believe his termination was
outside the ordinary course?
A Per -- per the agreement between the two
parties.
Q Any other reason?
A No.
Q Okay. When you learned about the
termination of Mr. Falck, are you aware of
defendants raising any objections or concern?
A I'm -- I'm not aware. I think we were
informed that it was a done deal.
Q Did you raise any objections that he should
not have been terminated?
A I don't recall.
Q Do you recall any concerns or objections
that were raised when you learned that Mr. Falck had
been terminated?
MR. SPIRO: Objection to form.
Page
Page
You can answer.
THE WITNESS: I -- I don't recall. The -the opportunity to object was -- I don't -- I don't
believe -- I think the action had taken place.
BY MR. SHANNON:
Q If you'd turn to the next paragraph, it
refers to Mr. Beykpour.
Do you see that?
A I do.
Q Is that one of the -- is that the other
individual you had identified as being terminated?
A That is another -Q Okay.
A -- individual.
Q Okay. And when was Mr. Beykpour
terminated?
A Again, I'm not sure the exact timing.
Q When and how did defendants learn of the
termination?
A Through -- through the same way. Through
the legal team.
Q Okay. And how did you determine that the
termination was outside the ordinary course?
A Again, through the agreement that we had
between the two parties.
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Q Anything else?
A No.
Q And do you recall defendants or any of
their advisers raising any concerns or objections
when they learned that Mr. Beykpour was terminated?
MR. SPIRO: Objection to form.
You can answer.
THE WITNESS: I don't specifically recall.
BY MR. SHANNON:
Q If you'd turn to paragraph 189 -A Mm-hmm.
Q -- you'll see it says, "Twitter also
instituted a hiring freeze."
A I do see that.
Q And when did defendants learn of that?
A Again, I don't recall the exact timing.
Q How did defendants learn of that?
A Through the legal term.
Q And how did you determine -- how did you
determine that the hiring freeze was outside the
ordinary course?
A Through the agreement between the two
parties.
Q Anything else?
A Not that I'm aware of.
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Q When defendants learned of the hiring
freeze, did they raise any concerns or objections?
MR. SPIRO: Objection to form.
THE WITNESS: Not that I'm aware of.
BY MR. SHANNON:
Q Okay. Mr. Birchall, we've been going for
about an hour and a half, and I appreciate that.
Why don't we take a short break, ten minutes, and
then come back.
MR. SPIRO: Great.
THE WITNESS: There was one more individual
that wasn't mentioned that wasn't fired during the
time.
BY MR. SHANNON:
Q Who are you referring to?
A The -- a payment that was paid to a
prior -- prior employee, Mudge, that, you know, also
would fall under this, as I understand it.
Q And when you say Mudge, you mean Mr. Zatko?
A Yeah.
Q Okay. I'll say, Mr. Birchall, you're the
only witness who, given the opportunity to take a
break, kept going. So we can cover that when we
come back.
A Sure.
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Q And I'm just going through these. These
will relate to documents we'll go through as well,
but I just wanted to cover -- to make sure I
understand what you were testifying to.
THE VIDEOGRAPHER: Your microphones.
We are going off the record. The time is
11:02 a.m.
(Recess.)
THE VIDEOGRAPHER: We are back on the
record. The time is 11:17 a.m.
BY MR. SHANNON:
Q Mr. Birchall, can you turn to No. 32, the
Topic No. 32, in -A In the first one?
Q In the first one, correct. It's on page
20.
A Yeah. I'm there.
Q And it is another topic for which you've
been identified and it reads: "Defendants'
understanding of Twitter's mDAU recast in
April 2022, and Paragraphs 9 and 79 through 81 of
the Counterclaim."
What is your understanding of Twitter's
mDAU recast in April 2022?
A That they came back and said they needed to
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correct their numbers.
Q What's your understanding of what
corrections were made?
A Just that they had been calculating it
incorrectly, I believe, and I don't know what their
specific errors -- what they purported their
specific errors to be, but just that they'd made
mistakes and needed to correct those mistakes.
Q And how did they correct those mistakes?
A By changing the number.
Q And how much did the number change?
A As I recall, it was a few million -- by a
few million mDAUs I guess or whatever.
Q And before this deposition, did you make
any effort to go back and look at the mDAU recast to
better understand what had occurred?
A So just to that question specifically, I -I went over these questions yesterday with the Quinn
Emanuel team. I was taking your questions as to
mean, like, did I go back and research this or
something. So these questions were reviewed
yesterday with the Quinn team.
But beyond that, there was not an effort to
revisit this issue or to look into it beyond that.
Q Okay. Well, when did you first recall
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hearing about the mDAU recast in April 2022?
A The day that it happened.
Q Okay. How did you hear about it?
A I -- I recall that it was via the news.
Q Do you recall discussing it with anyone?
A Yes. It was a topic that was discussed
among the legal teams' advisory team, and I'm sure
at some point with Mr. Musk.
Q Do you recall discussing it shortly after
it was announced?
A Yes.
Q Okay. What do you recall of those
discussions?
A Again, I'm -MR. SPIRO: I'm just going to remind you,
you can't reveal privileged information.
THE WITNESS: Yeah.
MR. SPIRO: So with that caveat, you can
answer the question.
THE WITNESS: Yeah, I don't recall the
specifics of those conversations.
BY MR. SHANNON:
Q Do you recall having any -- any discussion
with Mr. Musk regarding the issue?
A I don't recall a specific conversation, but
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I -- I do recall that we touched on the subject.
Q When you say you touched on the subject,
what do you mean?
A Again, I -- I don't recall specifics of any
of those conversations, but I do recall at some
point having -- it having been part of a discussion.
Q Okay. But you don't recall who was part of
the discussion?
A I don't.
Q And you don't recall when that discussion
occurred?
A Not specifically, no.
Q Do you recall any requests made by
defendants or their advisers for additional
information from Twitter regarding it?
A I don't recall.
Q Okay. Do you recall any concerns expressed
by defendants or their advisers regarding the mDAU
recast?
A That was the nature of, you know, the
conversation, the general gist of the conversations
that were being had, you know, that a restatement
had been made and certainly it raised eyebrows.
Q Okay. And after it raised eyebrows, did
you or anyone on behalf of defendants or their
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advisers go back to Twitter and express concern or
ask for additional information?
A Additional information was requested
regarding the -- the data and -- and the
calculations. I don't recall specifically
referencing this restatement or not.
Q Okay. Was there specific information
requested relating to the recast?
A That's what I don't recall.
Q Okay. When was that information requested?
A The request that I am referring to
previously?
Q Yes.
A I don't recall the exact dates, but at -at minimum, you know, right after the meetings with
Twitter.
Q What meetings are you referring to?
A I believe in early May at the Twitter
headquarters. I think it was May 6th.
Q Okay. Were you involved in determining
what information to request?
A At post meeting?
Q Yes.
A I -- I probably was part of a conversation
that went over that topic.
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Q Do you recall any such conversation?
A I don't recall the specifics.
Q Okay. Who was primarily responsible for
determining what additional information to request
from Twitter?
A It would have been a combination of the
banking advisory team and the legal team.
Q Okay. Did you have any role in determining
what to request?
A Again, I -- I would have been involved in
certain conversations, but as far as a role, per se,
I -- I -- no, I don't -Q Do you recall Mr. Musk having any role in
determining what to request?
A Again, he would have been part of
discussions, but I don't specifically recall him -you know, his contribution to that or -Q Do you recall reviewing any information
provided by Twitter in response to the request?
A Are we referring now post meeting?
Q Yes.
A Is that what you're referring to?
So they were sending information to data
rooms that are -- that the banking team was
accessing exclusively. I never accessed a data
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room.
Q Did you ever ask the banking team to send
you any information?
A That was -MR. SPIRO: Objection to form.
You can answer.
BY MR. SHANNON:
Q Relating to information provided by
Twitter.
A Not that I recall.
Q You suggested that these information
requests related to post meeting, and you're
referring to the May 6th meeting, correct?
A That's right.
Q Are you aware of any information requests
that were made before the May 6th meeting?
A I -- I don't recall prior to that.
Q If you refer to, in Exhibit 1 in front of
you, Topic No. 36 is another topic for which you've
been identified, and that reads: "Defendants'
understanding of the 'stratification' or potential
stratification of Twitter's mDAU as that term is
used in Paragraph 141 of the Counterclaim, whether
performed before or after the execution of the
Merger Agreement."
Page
Do you see that?
A I do.
Q What is your understanding of the
stratification or potential stratification of
Twitter's mDAU as referred to there?
A I believe that's referring to a smaller
sliver of mDAU that contributes to a greater portion
of the revenue of the company.
Q What's that understanding based on?
A Again, just what -- what we were told by
the Twitter team.
Q So the references to stratification or
potential stratification is what you were told by
the Twitter team?
A Yeah. I specifically recall that being one
of the topics in the May 6th meeting.
Q Do you recall any other discussions or
knowledge you have regarding defendants'
understanding of the stratification or potential
stratification of Twitter's mDAU?
A I don't recall.
Q If you turn to the next one, which is
defendants -- No. 37: "Defendants' allegation that
'nearly a third of Twitter's mDAU in fact see no ads
and appear to generate no revenue at all,' as set
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forth in Paragraph 138 of Counterclaim."
Do you see that?
A I do see that.
Q What's your understanding of that
allegation?
A Again, I believe that's referencing the
same stratification issue, where a smaller
percentage actually contribute to, you know, a very
high percentage of the revenue.
Q And it's your understanding that this
information was provided to defendants at the
May 6th meeting?
A I -- as far as information provided, I
mean, there -- there was no -- as I recall, there
were no documents exchanged, and so there wasn't
any, like, substantive information exchanged, per
se. There were -- we left that meeting with -- with
the understanding that there was information that
was requested and that was forthcoming.
Q And, well, how did defendants determine the
basis for their allegation that nearly a third of
Twitter's mDAU is in fact -- in fact sees no ads and
appears to generate no revenue at all?
A I'm not sure specifically where that data
is coming from.
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Q Do you know what the source at all of that
statement is?
A I -- I don't.
Q Okay. If you could turn to No. 38 on the
next page -A I'm there.
Q -- this is another topic for which you've
been identified: "Defendants' knowledge and
understanding of their allegation that 'mDAU growth
is not occurring among high-value users,' as set
forth in Paragraph 142 of the Counterclaim."
Do you see that?
A I do.
Q Can you explain what that's referring to?
A Again, I -- I see what it says, and I'm not
sure specifically beyond what it says. I mean,
that's obviously what it says, but I -- I don't have
information beyond what it says.
Q Okay. And do you have an understanding as
to what was the basis for defendants' allegation
that mDAU growth is not occurring among high
level -- high value users?
A Not specifically, no.
Q Did you make any effort to determine what
the source of that statement was?
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A I -- I didn't.
Q If you could turn to No. 41, another topic
for which you've been identified, which is:
"Defendants' policies, practices, software,
hardware" -- software and "hardware, and systems
relating to storage management, retention, and
destruction of Documents and Communications."
Do you see that?
A I do.
Q What are defendants' policies with regard
to the retention and destruction of documents and
communications?
A Well, X Holdings doesn't have a stated
policy of any sort. As requested, we -- you know, I
can speak for myself, you know, turned over devices
and whatnot as -- as requested to, you know, legal
teams and IT professionals, but there isn't a stated
policy.
Q Okay. And with regard to Mr. Musk, can you
state what his practices and policies are?
A I -- I believe he -- well, again,
there's -- there's no policy that I'm aware of -well, there's no policy regarding X Holdings for
sure. I can't speak to any of the other companies
or anything like that. But I -- as I understand it,
Page
he, like me, you know, turned over devices and
whatnot to IT and legal.
Q Do you know what his practices are with
regard to preserving texts and emails?
A I don't.
Q Prior to acting as a 30(b)(6) witness for X
Holdings I and X Holdings II today, have you ever
acted on behalf of either of those entities?
A Not -- not that I know of. I don't know if
technically -- what the technical answer may be, but
I don't -- I don't believe so.
Q Okay. If -- if you'd turn to No. 42 -A Mm-hmm.
Q -- that says "Defendants' efforts to ensure
that Documents relating to the discovery requests in
this Action and/or the Complaint were properly
preserved, including any related litigation hold or
document preservation letters or notices."
Do you see that?
A I do.
Q Can you describe those efforts?
A Again, devices were turned over to IT
professionals and lawyers and information extracted,
and, you know, information preserved.
Q And that refers to what you did. Do you
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know precisely what Mr. Musk did?
A Not precisely, no.
Q You had referenced previously a litigation
hold that you believed you received in mid-to-late
May.
Do you recall that?
A I do.
Q Do you recall receiving any other
litigation hold or document preservation notice?
A I don't specifically recall additional
holds, hold requests, or whatever.
Q Okay. If you'd turn to No. 43, which is
another topic for which you've been identified, it
says: "Defendants' efforts to retrieve text
messages, instant messages, and other non-email
communications."
What's your understanding as to that?
A Yeah, again, that was I think part of the
overall effort of providing devices and -- and
communication method -- methods with -- providing
those to the IT and legal teams.
Q Do you know what efforts were made to
retrieve or obtain any messages that had been
deleted?
A No. Anything in existence would have been
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provided.
Q And turning to No. 46, which you'll
probably be glad to know is the last number for
which you've been designated, it reads: "All
information contained in Defendants' Interrogatory
Responses, including all sources of such information
and Defendants' process for ascertaining and
providing such information."
Do you see that?
A I do.
Q Have you reviewed each of defendants'
interrogatory responses in connection with this
case?
A I did review them yesterday.
Q Okay. Had you seen them before yesterday?
A Actually, I -- I believe I did back when
they were initially submitted.
Q Did you have any role in reviewing or
approving them?
A Again, I think I -- I recall reviewing the
list to ensure, you know, complete -- you know,
completion.
Q When do you recall reviewing the list?
A I don't recall when.
Q Do you recall reviewing the list many times
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as it was changed?
A I don't recall reviewing it many times.
Q Okay. Do you have any recollection of
reviewing the list more than once?
A Not specifically, no.
Q And to be clear, when you're saying the
list, what list are you referring to?
A Parties involved is what -- is the list
that I'm referring to.
Q Parties involved in what?
A I think there are various lists of people
that were -- where there are communications for the
different aspects of the transaction.
Q And when you were reviewing them, for what
purpose were you reviewing them?
A For accuracy and making sure it was
complete.
Q And how would you determine they were
accurate and complete?
A I was adding my information to a list
and -- and so I was making sure that my addition
was -- was complete.
Q How about the remainder of the list? How
did you determine whether that was accurate or
complete?
Page
A I -- I personally don't recall making that
specific determination. I think it was the sum
total of the entire group that contributed to ensure
that was correct.
Q When you say "the entire group," who are
you referring to?
A The legal team, the advisory team, anyone
involved that would have had that information.
Q So you would have reviewed the information
that you provided, correct?
A I believe so, yeah.
Q Okay. And you weren't able to assess the
accuracy or completeness of information others
provided, correct?
A No, not necessarily.
Q Okay.
A Because I think there were communications
that I wasn't a hundred percent involved in.
Q Did you make any efforts to ensure that the
information that others provided was accurate and
complete?
A No, not -- no.
Q I want to turn now to what you referred to
previously as the -- the purchases of Twitter stock.
A Sure.
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Q Okay. How did it come about that Mr. Musk
began purchasing Twitter stock?
A As I recall, in late January in one of our
meetings, he mentioned that he was -- so he
had just, for the first time in his life, sold
Twitter stock and had a cash position, and he
indicated that he was interested in buying some
stock, which led to a conversation on I believe -I'm sorry if my date is a day or two off, but I
think it was Sunday, January 29th-ish, wherein he
confirmed, yeah, let's -- let's go ahead and buy
some stock.
Q When you say "buy some stock," buy some
stock in what?
A Twitter.
Q How did you determine to buy stock in
Twitter?
A I don't -- I don't know.
Q Was it only Twitter -A Yeah.
Q -- he was buying stock in?
A Yeah.
Q He previously directed you to buy stock in
any other company?
A Yeah, he -- he owns no other publicly
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traded security beyond Tesla.
Q So this was the first time he ever provided
instructions for you to arrange to purchase stock in
another public company, correct?
A Outside of Tesla, yes.
Q And did he explain why he was purchasing
stock in Twitter?
A No. Just that it was an interesting
company to him.
Q Are you aware of any analysis he did before
determining to purchase stock in Twitter?
A I'm not aware.
Q Okay. Did you do any analysis before
carrying his orders out to purchase stock in
Twitter?
A I didn't.
Q Prior to starting to purchase Twitter
stock, had you reviewed any of Twitter's SEC
filings?
A I don't believe so.
Q Are you aware if Mr. Musk had reviewed any
of Twitter's SEC filings?
A I'm not aware.
Q Did he explain what it was about Twitter
that led him to invest in -- in that stock?
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A Twitter is a service that he uses daily.
It's something that he enjoys, a release, and while
I don't recall the specifics of a conversation with
him outlining, "Here's my investment thesis," those
were, you know, the main driving forces that I know
of.
Q Okay. And did he give you specific
instructions with regard to purchasing Twitter
stock?
A Yes, that we were going to start buying
daily in a way that didn't move the stock through a
volume weighted average price purchase program, and
target -- initially target a 2 percent position in
the stock.
Q Why was he interested in it in a manner
that didn't move the price?
A He's just one who cares about the value of
money and doesn't want to -- there was -- there was
no urgency for him to, you know, buy shares, and so
there was no need to buy a quantity that would move
the stock in any way.
Q When you say "move the stock," make it more
expensive to acquire the stock?
A Yes.
Q Okay. So he wanted to proceed in a manner
Page
that he could acquire the stock for the least amount
possible, correct?
A Certainly.
Q And did he give you any specific
instructions as to how much you could spend?
A Again, the initial target was 2 percent,
and the -- with the knowledge that we would be
sitting down
to review progress.
Q Okay. And did you review progress with him
?
A I'm not certain it was
, but -but most likely it was discussed on most of those
.
Q And before the
meeting at the end of
January where he raised this, do you recall him ever
previously suggesting he was interested in
purchasing Twitter stock?
A No.
Q Do you recall him ever talking about
Twitter as a company beforehand?
A As a company, no, not beyond his personal
use of it.
Q Now, in connection with purchasing the
Twitter stock, did you consult with counsel?
A No.
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Q Is there counsel available to you, as the
head of Mr. Musk's family office, to consult with if
you have questions?
A I mean, certainly, there are lawyers that
exist that if there are legal questions that I have
that I can reference.
Q Okay.
A As it pertains to securities, again, you
know, Tesla has a security team that handled percent of all of our regulatory transaction-related
matters up until that point.
Q Well, how about this one which is
different? Did you consider retaining counsel or
contacting counsel regarding it?
A No.
Q Okay. In your prior activities, had you
ever taken such a large position in a public company
on behalf of a client?
A No.
Q Did you have an understanding of the rules
that would apply with regard to acquiring a large
position in a public company?
A A very cursory understanding that there
were certain thresholds.
Q Okay. Given you had a cursory
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understanding that there were certain thresholds,
what did you do to investigate and confirm that
Mr. Musk's purchases were consistent with those
requirements?
A So of course discussed it with the adviser
at Morgan Stanley, who was assisting us in buying.
Q Anything else?
A I believe there were some -- you know, some
searching for threshold answers on when filings
would be made and at what thresholds.
Q When you say you believe there were
searching, what do you mean by that?
A That, you know, there was I think even a
text or two that was exchanged between our
Morgan Stanley representative regarding filing
requirements. That's what I mean -- or sorry.
Links regarding filing -- links regarding filing
requirements.
Q What do you mean links regarding filing
requirements?
A So readily available information online -Q Okay.
A -- that -- that would -- that would have
guided the answer to the filing question.
Q And is that information you looked up or
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Morgan Stanley looked up?
A We both looked up different information,
but, ultimately, came to a united conclusion about
what needed to happen.
Q And united conclusion, who was that
conclusion with?
A Jon Neuhaus.
Q And what is his position?
A He's a financial adviser at Morgan Stanley.
Q Is he a lawyer?
A No.
Q Are you aware if he ever has taken a
position for a company of the size that you were
proposing?
A No.
Q Are you aware if he has any expertise in
SEC laws?
A I guess depends on how you define
expertise, but, I mean, he -- everything that he
does every day is regulated by the SEC.
Q Was there any discussion with Mr. Musk
about publicly disclosing that he was acquiring
Twitter stock?
A Well, yes. We knew that if we crossed
certain thresholds, we would be forced to eventually
Page
make that public.
Q And my question may not have been clear.
At the beginning, when Mr. Musk decides he
likes Twitter and wants to invest, was there any
discussion about him announcing it then, for
example, tweeting that he was investing in Twitter?
A There wasn't a discussion about that
specifically, but that was always something that
could happen at any time.
Q Do you understand why it didn't happen?
A No.
Q Was there anyone other than Mr. Neuhaus
that was involved in the purchases of the Twitter
stock on behalf of Mr. Musk?
A Well, there would have been a trader on the
institutional desk that was executing the trades,
and then I believe an assistant of -- of Jon Neuhaus
who was providing spreadsheets and/or updates in his
absence when he was not available.
Q And did you have a prior relationship with
Mr. Neuhaus that led you to reach out to him for
this purpose?
A Yes.
Q What was the prior relationship?
A Well, he has worked for Mr. Musk for a
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handful of years prior to this, and so -- yeah, so
he's worked for Mr. Musk for, you know, I don't know
how many years prior to this. So this was a very
normal kind of course of normal business outreach to
Morgan Stanley and to Jon to help with something
like this, but I don't know if you're -- if what
you're asking, if my personal relationship with him
predated this. Certainly, it did.
Q And when you say it was sort of a normal
thing to reach out to him, my understanding from
your testimony is that Mr. Musk had not typically
bought public securities.
A That's right.
Q In what capacity would you reach out to
Mr. Neuhaus before the Twitter purchases?
A For many, many different things ranging
from debt facilities to Twitter -- or I'm sorry -Tesla transactions to real estate loans to just
general research questions. There's many different
things. We communicate almost -- almost daily.
Q Okay.
MR. SHANNON: Would you mark that as
Exhibit 4.
--(Birchall Exhibit 4 was marked for
Page
Page
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 4, which is a
series of emails between you and Mr. Neuhaus, dated
January 31, 2022.
Do you recognize, and we'll start on the
first page, the one from Mr. Neuhaus to you?
A When you say the first page are you talking
about the front page, the first page?
Q Yes, the front page.
A I do.
Q And would you typically communicate with
Mr. Neuhaus through email?
A Probably more commonly via phone and
sometimes via text, but email was common.
Q Okay. And if you look at the bottom of -or toward the bottom of his first email, he has
bullet points on how he will proceed.
Were those all agreed upon by you?
A Let's see here.
THE COURT REPORTER: I can't hear you.
THE WITNESS: Yeah. I'm just reading what
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is on this list.
Yes. I -- at their -- you know, we were
taking advice from them -BY MR. SHANNON:
Q Okay.
A -- based on levels -- volume levels of the
stock and -- and so it would have been a joint
conclusion based on their advice.
Q And the advice that they were giving
regarding, you know, amounts to purchase were what
they thought you could purchase without moving the
market and potentially becoming known that you were
purchasing the stock?
A Not necessarily known as much as just
moving the price.
Q Okay. And if you look toward the bottom,
there's a line from Mr. Neuhaus that says: "As we
work towards goal."
Do you see that?
A I do.
Q What's your understanding as to the -- the
goal that he is referencing?
A I think he's referencing -- referencing
just the general goal of acquiring shares of -- of
the stock.
Page
Q You had previously suggested that the
initial goal was 2 percent. Did that change over
time?
A It did.
Q Okay. And what led to that change?
A We -- we got to that threshold and
continued buying.
Q And to the extent you were increasing the
threshold, was that something you reviewed and -and Mr. Musk approved in each instance?
A That's right.
Q Okay.
MR. SHANNON: Can I have No. 3?
And that is Exhibit 5?
THE COURT REPORTER: Yes.
--(Birchall Exhibit 5 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 5, which I'll
represent I understand to be a series of your texts
that have been produced in this case. I apologize
that the writing is so small, but that's sort of how
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it works.
If you look toward the bottom of the first
page -A Yes.
Q -- the third -- the third to last entry is
from you on February 18th, 2022 to Mr. Neuhaus, and
you have a question which says: "Are you able to
have your analyst do provide a profile of TWTR's
owners? Both institutional and individual?"
Do you see that?
A Yes, I do see that.
Q Okay. Is that a text you believe you sent
to Mr. Neuhaus on or about that date?
A Yes, I believe so.
Q And why on or about that date were you
requesting that information?
A That's -- so in the private world, the
management world, you know, John was a business
partner of mine, and understanding who -- the
ownership structure of any company was always a
primary focus, and I just had no -- no idea. As we
started to actually accumulate a significant number
of -- or percentage ownership, I had no idea who
else owned the stock.
Q Did Mr. Neuhaus provide you with that
Page
Page
information?
A Yes.
Q Okay. And what did -A Best that he could find, yes.
Q Okay. And what did you do with that
information when you received it?
A I reviewed it and I just looked at it.
Q Do you recall having any discussions with
Mr. Neuhaus regarding the stockholder composition
for Twitter?
A I mean, we likely -- given that he sent me
that, we likely had some conversation about it. I
don't recall the content of the conversation.
MR. SHANNON: Exhibit 6.
--(Birchall Exhibit 6 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 6, which is a
series of emails between you and Mr. Neuhaus and
others. I'm interested primarily in the top
email --
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A Okay.
Q -- which is from you to Mr. Birchall [sic],
dated March 8th, 2022.
Do you see that?
A I do.
Q And then there's the one under it, and the
one under it you'll see that Mr. Neuhaus was saying
to you that: "... we are likely to cross over the
5% soon."
Do you see that?
A Yes.
Q Do you have an understanding as to why he
was telling you that? Was there any significance to
5 percent?
A Oh, yeah. As I mentioned, we had discussed
that we both knew there was a filing requirement as
it related to the 5 percent threshold.
Q Okay. And you knew it as of that date?
A Yes.
Q Okay. And he then has: "Pls confirm that
you are comfortable with year-end filing of the
13D/G."
Do you know what that's a reference to?
A Again, we had come to the conclusion that
upon crossing 5 percent, you had a requirement to
Page
file at the end of the year in which you crossed
that 5 percent, and then there was some day buffer.
Again, I am, of course, well aware that this was an
erroneous conclusion at this point, but -- and so he
was simply reconfirming that I guess.
Q Okay. And when you say: "Yep, fine with
the year-end filing," had you asked counsel or done
anything to confirm as to the appropriateness of the
year-end filing?
A No. I mean, the confirmation was with our
advisory firm, assuming that, you know, their advice
and compliance and everything else would -- would
guide us in a direction that would lead to the right
answer.
Q And then he also has a question: "Should
we surpass 10%, we will deal with that at that
time."
Do you see that?
A I do.
Q Was there a view at that time that you may
exceed 10 percent?
A No. It was just stating the obvious, that
there were two thresholds that we needed to be aware
of; one being 5, one being 10.
And as you can see, in that same message he
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talks about a compliance wall. And so my -- my
general assumption was that compliance was blessing,
you know, the activity that we were taking.
Q And what was your understanding of the
reference to compliance wall?
A Just -- I mean, that there is a compliance
officer, you know, in every office or in every area
of the firm, and I think he was making a reference
to confidentiality, I think, as it pertains to
adding additional people to the list of people aware
of the transaction.
MR. SHANNON: We're at Exhibit 7?
THE COURT REPORTER: Yes.
--(Birchall Exhibit 7 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 7, which is a
series of emails with you and Mr. Neuhaus, and
others, dated March 16, 2022.
Do you have any reason to doubt that you
sent and received those emails?
Page
Page
A No.
Q If you look at the second page, on the
bottom, there's an email from Mr. Neuhaus that says:
BTW do you have a target in mind yet? 10" to -"10%, 20%?"
A Mm-hmm.
Q As of this time, which is March 16, 2022,
was there a target in mind?
A No, there was not a defined target.
Q And you said: "We should not" -- above it,
you said: "We should not cross the 10% mark."
Why were you saying that?
A Again, that was a level at which I knew
with certainty we would have a public reporting
requirement and that we shouldn't cross that without
making sure we were prepared to publicly disclose
the document -- or the -- the data.
Q If you look on the first page of that
document, under No. 2, there's a series of bullet
points, and toward the bottom, there's a line that
says: "We had 'secretly,'" in quotation, end
quotation, "approved lending up to 600MM."
Do you know what that's a reference to?
A I really don't. I can speculate, but I'm
not sure what secretly means.
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Q Was Mr. Musk borrowing to purchase the
Twitter shares, or was he using cash or some
combination thereof?
A Initially, he used all cash and then at -I don't recall at what point did -- begin to use
leverage, though there was a forthcoming tax refund
that was sizable that we -- you know, any leverage
being used that this tax refund was going to cover
it.
--(Birchall Exhibit 8 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 8, which is
another series of texts that have been produced in
this case, and I'm midway through the second page,
and this is on March 25th -A Okay.
Q -- you'll see there's one at 19:31:37?
A I see that one, yes.
Q Okay. And Mr. Neuhaus says: "So when is
he announcing? Goodness. Can't be more obvious."
Page
Do you know what that's a reference to?
A Yes. I believe he's referencing Elon's
Twitter poll that he had launched that day about
does -- do people believe Twitter promotes democracy
or something like that and a yes or no, yeah.
Q And you respond in the next message: "He
can't announce before building most of the
position."
Do you see that?
A Yes.
Q And what did you mean by that?
A That whatever amount he had in his mind
that he wanted to purchase, he -- it would be
foolish of him to announce it -- announce to the
public that he had purchased shares prior to
purchasing what he wanted to purchase.
Q Why would it be foolish?
A Because it would likely affect the market.
Q Affect the market in what way?
A Most -- most likely the stock would go up.
Q And why would it be -- why would that be
foolish then?
A Because if he had desires to own any
additional shares of the stock, he would be kind of
self-sabotaging and increasing the value of the
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asset that he wanted to purchase.
MR. SHANNON: Exhibit 9.
--(Birchall Exhibit 9 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 9, which is an email
from Mr. Neuhaus to you, dated 4/1/2022.
Do you have any reason to doubt you
received that email?
A No.
Q In the second paragraph, it says: "At the
moment the initial thoughts are that the market
would allow for the following if the interest is
speed."
Do you see that?
A I do see that.
Q Do you know what he's referring to when he
said, "if the interest is speed"?
A Only that I think he's qualifying if -- if
speed is an objective. I don't know.
Q Was speed an objective?
Page
Page
A No.
Q He also talks about -A And just to clarify -- further clarify
that, I mean, we had spent over, I think, 30 or trading days, you know, buying stock, and so speed
clearly wasn't -Q But you had spent 30 or 40 trading days
because you wanted to buy it in a manner that didn't
move the market, correct?
A Yeah. There was no rush. There was no
objective other than he wanted to buy some shares of
stock, and so doing so at the best price possible is
what any prudent investor would do.
Q You just testified that when he was
purchasing stock, there was no rush, no objective.
There was no objective when he was purchasing stock?
A Other than to buy shares of Twitter, no.
Q When did he first, to the best of your
knowledge, have an objective with regard to the
purchase of the Twitter stock?
A The first I came to -- well, the first I
became aware of, as anything other than just owning
shares of Twitter stock, was when I received a text
from Martha Lane Fox, I believe her name is,
referencing a board seat, and that led to everything
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after that.
Q Okay. If you look further down, there's a
paragraph that starts: "If you wanted to do more
than one option/derivative trade."
Do you see that?
A I see that.
Q Were there options and derivatives
purchased or considered by Mr. Musk with regard to
Twitter stock?
A There were none purchased. There was a
moment in time where I was looking at the cash being
spent on buying shares outright, and -- and I was
considering whether there was a more intelligent way
to gain exposure to the stock.
Q What do you mean "a more intelligent way"?
A Well, a less cash-intensive way. Sorry.
Q Okay. But you ended up not pursuing that?
A That's right.
Q Would any use of derivatives to purchase
the stock have been -- have to have been approved by
Mr. Musk?
A Yes.
--(Birchall Exhibit 10, was marked for
identification.)
Page
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 10, which is a
series of emails with you and Mr. Neuhaus and
others -A Yes.
Q -- dated April 1, 2022.
You have no reason to doubt that you sent
or received those?
A That's right.
Q Okay. And then if you look at the top of
the second page -A I'm looking at that.
Q -- he notes -MR. SHANNON: Bless you.
THE WITNESS: Bless you.
BY MR. SHANNON:
Q -- "Today was the first time I'd heard that
one may interpret 'within 10 days of acquiring
5%...' a date which is in the near rear-view."
Do you see that?
A I do.
Q What was your understanding of what he was
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saying?
A I came back and asked the question because
I wasn't certain, but what I understood was this -this was the first time that he saw the 5 percent
requirement as different than what he and I had
determined it was.
Q And he asked you, at the beginning of that
sentence, you know: "You may want to reconfirm
(again)" -- again "with outside counsel (not that
you haven't already a few times.)"
At that point in time, had you ever raised
the issue with outside counsel?
A I had not.
Q And was there a reason?
A There wasn't a reason I guess to -- and,
again, this is -- I guess the timeframe on when he
sent this, this is after we now both had become
aware that there was a likely issue with the filing,
and to put it bluntly, this is a CYA email.
Q CYA from him?
A Yeah.
Q And what did you do when you received the
email?
A I mean, we were -- I had already called
counsel to try and correct the filing and whatnot.
Page
Page
I -- there wasn't anything to be done other than I
did ask him back, like, what -- "Where did you hear
this?"
Q When you say you already called counsel,
what counsel did you call?
A Well, I -- so I received a call that
afternoon, after the market had closed, from
Mr. Neuhaus suggesting that our understanding was
wrong per Morgan Stanley's GC, which again was a
call that I would have thought maybe could have come
earlier.
But, nonetheless, so upon receiving that
call, I hung up and immediately dialed Alex and
said, "Hey, we may have an issue. Do you know
anyone -- any securities lawyers that can help
answer this question regarding 5 percent?" And he
referred me to McDermott.
Q When you say a moment ago that when an
issue arose you immediately called Alex, I assume
that's referring to Mr. Spiro?
A That's right. Yeah.
Q And would he be the person you would
normally contact if you have legal questions on
behalf of Mr. Musk?
A Some legal questions. He had been involved
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in some prior legal matters, but we have another
half dozen legal teams that do different things for
us.
Q And you can reach out to any of them if you
think you need legal assistance?
A Absolutely.
Q Okay.
--(Birchall Exhibit 11 was marked for
identification.)
--THE WITNESS: Thank you.
THE VIDEOGRAPHER: Jared, can you adjust
your microphone?
THE WITNESS: Yeah.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 11, which is an
email from Mr. Neuhaus to you, dated April 3rd,
2022.
Do you recall receiving this email?
A Yes.
Q And he is suggesting setting up a call with
Mr. Eichorn at Morgan Stanley. Do you have an
understanding why he was proposing that?
Page
A I understood that he was proposing
potentially talking to the banking team?
Q And why was he proposing that at that point
in time?
A That was a perplexing thing to me. He had
prior in a phone -- or I think it was a phone
conversation, maybe a text even, asked if an intro
to the banking team was -- was of interest and I
said, no. There's no reason to engage that -- that
area of the firm.
Q And he also refers to someone by the name
of Rick. Do you know who that's a reference to?
A Another part of the banking team at
Morgan Stanley, Rick Polhemus.
Q And you recall when it was that you first
reached out to the Morgan Stanley banking team?
A I don't recall the date, but I do recall
the approximate timing.
Q What was the approximate timing?
A So after Elon had declined the board seat
technically for a second time -- well, yeah -- I
believe that was a time when he -- sorry. Was I
super loud just then?
Okay. I saw your head move. I was
worried.
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I believe that was a moment in time where
he asked himself the question, "All right. What do
I actually want to do? And if the board seat isn't
the answer, what are the answers?"
And he then asked for me to connect with
the -- with the banking teams at Morgan Stanley and
Goldman Sachs, and -- and so I called and
said, "We're exploring options of what -- of next
steps here."
Q And did you have a similar discussion with
Goldman Sachs?
A I did, but was quickly told they were
conflicted from having the conversation.
Q And the specific -- was it a conversation
that you had with Mr. Musk that led you to do this?
A I believe so. I believe it was a phone
conversation.
Q And -A Could have been in person. I'm not
certain.
Q And can you just tell me everything you
recall of that conversation?
A Again, he'd just declined the board seat,
and it was a crossroads, where he was trying to
decide if he wasn't going to sit on the board -- or
Page
Page
I mean the board wasn't eliminated as a potential
option. It was just at that very moment he had just
finished saying, "No thanks," to the board seat, and
so he was, as I understood it, in this moment of
decision-making. What -- what actually do I want to
do?
And -- and he felt like, you know, the -the banking teams would be able to help build out
that multiple choice list of options.
Q If you look further down on what has been
marked as Exhibit No. 11, there's a section with
three bullet points, and in the second bullet point,
there's a bracketed section that starts with: "This
provides a certain level of plausible," and then:
"den.," which I assume is deniability.
Do you see that?
A Yes.
Q Do you know what that's referring to?
A Let me finish reading the rest of that.
Q Okay.
A I don't. I have no idea what he's
referring to there.
Q Do you recall ever reaching out to him to
follow up, to inquire?
A I don't recall.
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Q And you said you spoke to him pretty
frequently, correct?
A Yeah, communicated with him pretty
frequently. Spoke with him a couple times a week.
Q And you don't ever recall inquiring what he
meant by that?
A I don't.
MR. SHANNON: Exhibit 12.
--(Birchall Exhibit 12 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 12, which is the
13G that Mr. Musk filed on April 4th, 2022.
Do you see that?
A I do.
Q Okay. And you are aware he was making that
filing, correct?
A Yes.
Q Now, you testified earlier that Mr. Musk
wanted to complete his position before the public
announcement.
Page
Had he completed acquiring his Twitter
stock as of this point?
A I think whether naturally or by force,
he -- he had to pause buying at this point.
Q Why did he have to pause buying at this
point?
A Because a filing was -- was required, and I
think there was yet another filing, which, again,
this is not my expertise, but I want to say HR -- H
filing or something. But upon filing that, there
would be a period of time where you couldn't
purchase after filing.
Q Okay. And are you aware of any purchases
Mr. Musk made of Twitter stock after the date of
this filing?
A No, I'm not.
Q And on the front page, it says: "Date of
event which requires the filing of this statement."
Do you see March 14, 2022?
A Yes.
Q What's your understanding of that date?
A I believe that is referencing the date
that -- upon which we crossed the 5 percent barrier.
Q You talked before about at a point in time
Mr. Musk was asked to join the Twitter board.
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What do you recall of that?
A Again, I -- I first heard about this via
text that -- you know, with Martha Lane Fox. That
was the first I had heard of him joining the board,
and from what I understood, there were -- there was
some communication wherein an offer was made, and he
was saying he was interested, and they provided an
agreement.
Q And prior to this time -- is this early
April that this occurred?
A Yes. That's right.
Q Was it shortly after he announced that he
acquired a large position in Twitter?
A I -- I don't recall exactly, but it was all
right in there.
Q Okay.
A Yeah, right in that timeframe.
Q And prior to being asked to be on the
board, do you recall Mr. Musk ever expressing views
regarding how well Twitter was managed or operated
as a business?
A No.
Q Do you recall him ever expressing
complaints regarding the platform?
A Well, I think he had tweeted about -- well,
Page
Page
certainly about democracy and maybe about the
algorithm and potentially even about bots at some
point.
Q Do you follow Mr. Musk's Twitter account?
A I do.
Q Okay. Do you recall him at any point in
time discussing with you any of those issues?
A I don't recall specific discussions on any
of those things.
Q Okay. When's the first time that you do
recall Mr. Musk talking about the number of bots on
the Twitter platform?
A With me personally?
Q Yes.
A I mean, I don't recall the date per se, but
the first I would have heard of it would have been I
think via Twitter. I mean, him tweeting some
comment about it. There weren't discussions between
he and I outside of that.
Q So you don't recall any communications with
him regarding bots, other than what you saw on his
Twitter account?
A Certainly not pre-board, you know, offer
time. And I -- there -- there likely were
conversations post, but I just don't -- I don't
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recall. I can't tell you when or what, you know.
Q Okay. And did you have any discussions
with Mr. Musk regarding whether he should or should
not join -A No, I didn't.
Q -- the Twitter board?
A I received a text saying he was joining the
board -- oh, well, sorry. He -- the first form of
agreement that he received, I received that and told
him about the restrictions involved in that
agreement, and which led to him saying, "I don't
want to join," which then led to an offer of a much
simpler agreement in which he said he needed to
join.
But beyond that, beyond me reviewing that
first agreement and sharing the restrictions
involved with that, I -- I didn't -- I wasn't
advising him one way or another.
Q And what were the restrictions that gave
you pause with regard to the first agreement?
A He had no rights. He had to always vote
with the board. He couldn't ever say anything
critical about the company. It was -- they were
looking to handcuff him completely, and I just -that wasn't going to work.
Page
Q And do you recall receiving a revised
agreement that was acceptable?
A I -- I do, yes.
MR. SHANNON: Can you mark that as
Exhibit 13.
--(Birchall Exhibit 13 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Exhibit No. 13, which is an email
from you to Martha Lane, dated April 4th, 2022.
Do you recall sending that email?
A Yes.
Q Okay. And you attached the signed
agreement by Mr. Musk to join the board, correct?
A That's right.
Q And Mr. Musk had provided that to you?
A I believe I was provided it from either
Martha or Sean or someone, and I believe Elon
instructed me to add his signature to it.
Q Okay. And he authorized you to send it
back?
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A That's correct.
Q And it was your understanding at that point
in time that he had agreed to join the board?
A That was my understanding.
Q Okay. And do you recall any discussions
with him whether he would or would not join the
board at any point in time?
A Beyond that review of the first agreement,
no.
Q And then a few days after agreeing to join
the board, you mentioned that he determined he was
not going to join the board, correct?
A That's right.
Q And how did that come about?
A I don't know. It just -- I then learned he
decided he would not do that.
Q How did you learn that?
A I don't recall how I learned that.
Q Were you surprised?
A A little bit.
Q Did you ever inquire of Mr. Musk, or anyone
else, why he had elected to do that?
A I -- I don't specifically recall inquiring,
but I, in general, knew that he wasn't a fan of
serving on boards. And so while it was surprising
Page
Page
because he had signed the equivalent of a Letter of
Intent, it wasn't shocking because he had declined
many board seats prior.
Q Are you -- or do you recall any discussions
with Mr. Musk about potentially creating a competing
platform to Twitter or some other social media site?
A No.
Q Do you recall seeing tweets by Mr. Musk
where he talked about that?
A I -- I do recall something along those
lines, yeah.
Q And you don't recall ever discussing with
him?
A No.
Q Do you have any understanding as to whether
Mr. Musk, at any point in time, intended to create a
competitor or a similar social media platform?
A No.
MR. SHANNON: Mark this as -- what are we
up to?
THE COURT REPORTER: Exhibit 14.
--(Birchall Exhibit 14 was marked for
identification.)
---
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THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Exhibit 14, which is two tweets dated
March 26th, 2022.
And it starts out with a different person
saying: "Would you consider building a new social
media platform?"
Do you see that?
A I do.
Q And Mr. Musk responds: "Am giving serious
thought to this."
Do you see that?
A I do.
Q And do you recall ever discussing or
hearing that Mr. Musk was giving serious thought to
building a new social media platform?
A No.
Q Would that be something he would share with
you?
A If he had plans to build another social
media platform, at some point, he would share that
with me, most likely.
MR. SHANNON: Exhibit 15.
---
Page
(Birchall Exhibit 15 was marked for
identification.)
--BY MR. SHANNON:
Q And before we turn to Exhibit 15, if you
see a tweet like this from Mr. Musk suggesting he is
considering a new social media platform, would it be
your typical practice to reach out to him to try and
get an understanding of what he's planning to do?
A Sometimes. But, you know -- you know, he
says he's giving serious thought to this. He thinks
about a lot of things. He is constantly thinking
about companies that are yet to be built that he
wants to build, and has been on the cusp of building
numerous companies that aren't currently in
existence.
And so this isn't, like, a new concept that
he would be thinking about some initiative or some
endeavor or some company.
Q But you -- if you saw this, then based on
your explanation, you believe that Mr. Musk was
being truthful, that he was giving serious thought
to it?
MR. SPIRO: Objection to form.
THE WITNESS: Yeah, I have no -- I mean,
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other than what the words are there, I have no
reason to doubt that he was thinking about it.
BY MR. SHANNON:
Q Well, he doesn't say he's thinking about
it. He's saying he's giving serious thought to it.
You would expect he'd be honest in his tweets?
MR. SPIRO: What are we -- what exhibit are
we on?
THE WITNESS: We're still on the previous
one.
MR. SPIRO: I apologize.
MR. SHANNON: Still on Exhibit 14.
THE WITNESS: I mean, thought, it means
it's in his head. It means he's thinking. So
whether serious or slightly serious, I can't, like,
parse that, but certainly it was running through his
head.
BY MR. SHANNON:
Q Okay. And if you could turn to what has
been marked as Exhibit 15 in front of you, which is
another series of tweets -MR. SHANNON: Can I have one more.
MR. SPIRO: I have one.
MR. SHANNON: Oh, you have one. Okay.
BY MR. SHANNON:
Page
Page
Q Toward the bottom of that series of tweets,
and these are dated August 9th, 2022, the Tesla
Owners Silicon Valley pose a question, "Have you
thought about creating your own social platform? if
the Twitter deal doesn't come through."
Do you see that?
A I do.
Q And Mr. Musk responds: "X.com."
Do you know what X.com is?
A That's a web domain that he owns.
Q And what does X.com do?
A Nothing. It's just a web domain that he
owns.
Q Do you know why he responded: "X.com"?
A It appears that he's suggesting -- you
know, the person's asking about his thinking of a
social platform, and, you know, it appears that he's
responding that it would be called on that or
hosted -- it would be called that or hosted on that.
I don't know.
Q You don't recall having any discussions
with Mr. Musk regarding that?
A No.
Q You suggested that Mr. Musk asked you to
reach out to Morgan Stanley to get advice from the
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banking side.
Do you recall specifically when that was?
A I don't recall what day that was, but, I
mean, it was obviously in April.
Q Who did you reach out to?
A I believe I reached out to Rick Polhemus
first.
Q And what specifically did you state to
Mr. Polhemus regarding the potential transaction
involving Twitter?
A Yeah, I don't recall the exact words, but
it would have been just that he -- he'd like your
team to help him think through what -- you know,
what are his alternatives at this point in time.
Q Now, prior to this point, had you ever
involved in this type of transaction, the potential
acquisition of a public company?
A No.
Q Had you ever been involved in raising debt
or equity for this type of transaction?
A No.
Q And what was Morgan Stanley's response when
you reached out to them for this?
A It was just that they were going to put
together a response to the inquiry.
Page
Q What do you mean "put together a response"?
A Well, I'd ask them to help think through
the alternatives, and so they then took that as a
homework assignment to go and think through what
they could come back with to be helpful in terms of
considering alternatives.
Q And when you say, "what they could come up
with to be helpful," what do you mean?
A Well, again, Elon was at a genuine
crossroads here and had just declined a board seat
and -- but was sitting with a relatively large
position in a public company and wanted to have,
kind of, the experts in a field of considering next
steps sit down and advise him on what -- what he
should be thinking about. He truly didn't know what
that list looked like, and so he wanted to
understand it.
--(Birchall Exhibit 16 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 16, which is a
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series of emails internally at Morgan Stanley, dated
April 9th, 2022. I'll note that you are not copied
on these.
But if you look at the bottom one from Rick
Polhemus, that's who you originally reached out to,
correct?
A Yes, it was.
Q And he says: "Just got off the phone with
Jared (Elon's Chief of Staff)" -- that'd be you,
correct?
A Yeah.
Q "And he indicated that Elon does not think
he can make the changes needed at Twitter in a
public setting."
And is that what Mr. Musk told you?
A Again, this is his interpretation using his
banker's speak, but, again, I think his declining of
the board seat was -- was him saying that, I mean,
here is a company that he loved. That he used
daily. That he enjoyed, you know, spending time,
you know, on the platform, and he, you know, wanted
to see a better version, you know, for his own
personal use.
And when he considered -- when he got to
that moment of truth of, like, would I be able to
Page
Page
help, in a board seat, accomplish, you know, what
I'm -- you know, whatever it was he felt like needed
to be accomplished, likely the answer was no.
And -- and so, again, then it became about, like,
what -- what would allow him to -- you know, what -what are alternatives now. These are his words that
he pulled together. I don't -Q Well, what was your understanding as to
what Mr. Musk wanted to do that he needed to have
Twitter in a public rather than a private setting to
accomplish?
A Well, again, certainly, you know, on the
list that was provided by Morgan Stanley was -- and
I can't remember how long that list was, but one of
those was taking the company private. But one of
the alternatives was him being a board member of a
public company, and whatever -- you know, I don't
pretend to know all of the reasons or -- I don't
pretend to clearly know the reasons why he decided
that he didn't want to be on the board.
But some of that I believe was him
deciding -- or thinking, you know, what -- what
effect he'd be able to have, you know, in that
position, and -- and so obviously he chose not to,
and so, you know, what were the alternatives.
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Q Are you aware of any specific changes that
Mr. Musk was contemplating at Twitter that he
believed could not be accomplished in a public
setting?
A Certainly, at this time I did not know what
that list looked like. Today I have the benefit of
kind of hindsight being 20/20 and thinking about,
you know, some of the -- and could speculate, you
know -- or, like, the list of things that he thinks
would be value added to change, I think I understand
what some of that list looks like.
Q What's your understanding of that list?
A Well, among other things, you have issues
with transparency and -- and the overall algorithm
that he -- he wanted to address. You have a bot
issue, spam issues, video content issues. Among
numerous other things, he just felt like there's a
better way to make the platform more user friendly,
more of an entertainment destination, more of a kind
of public forum where free speech was championed.
Q Mr. Polhaus [sic] -- Polhemus, rather,
suggests that you asked him to quickly put together
a team. Was there some urgency?
A I don't recall there being a specific sense
of urgency, but everything in Elon's world is --
Page
there's a sense of urgency. So I don't think it was
specific to this matter, but it was -- he has a
very -- he has expectations of a quick turnaround on
everything we do.
Q Okay.
--(Birchall Exhibit 17 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 17, which is a
series of emails, again, internal at Morgan Stanley,
dated April 11, 2022.
A Okay.
Q And actually before we go there, the
previous exhibit was Exhibit 16, which referenced a
call you had with Mr. Polhaus on April 9th?
A Yeah.
Q Okay. And that was the first time that you
reached out to Morgan Stanley about potentially a
transaction involving Twitter, correct?
A Not specifically a transaction, but a,
like, option -- list of options of what next steps
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could potentially be.
Q Okay. Had you reached out to them
beforehand regarding a transaction?
A No.
Q Okay. So the first time you had
communicated with Morgan Stanley something other
than the purchases of Twitter stock, which you'd
been doing, was April 9th?
A That's right.
Q Okay. And, then, so we have this email
which now has been marked as Birchall Exhibit 17,
which says -- and this is Mr. Polhemus again, his
top email, he said: "I had a conversation with
Jared this morning that was useful and will debrief
the team on that at 2 p.m..."
Do you see that?
A I do see that.
Q Okay. Do you recall having a discussion
with Mr. Polhemus on or about April 11th about a
potential transaction involving Twitter?
A I mean, I don't recall specifically, but I,
as mentioned previously, reached out to him
initially, and I think there were several calls in
there preparing for a conversation with Elon.
Q Okay. And were there specific instructions
Page
Page
or discussions you had with him regarding preparing
for that call with Elon?
A Again, I don't remember the specifics,
other than that, you know, he wanted to understand
the alternatives at this point.
Q When you say "he wanted to understand,"
Elon wanted to -A Yeah. Yeah. He wanted to understand, you
know, what his alternatives might be.
--(Birchall Exhibit 18 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 18, which is a
series of emails internal at Morgan Stanley, dated
April 11th, 2022, and at the very top of the first
email is one that states: "I think Owen's 54.20 is
the," and then number sign.
Do you see that?
A Mm-hmm.
Q Do you know what that's referring to?
A Well, that was ultimately the price per
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share recommendation from Morgan Stanley.
Q That is what they recommended Mr. Musk
offer?
A Are you not seeing the same thing as I am?
MR. SPIRO: Oh, sorry. I'm looking at the
wrong Morgan Stanley email.
Thank you.
MR. SHANNON: It's at the very top.
MR. SPIRO: Thanks.
THE WITNESS: Yes, that was the proposed
number by the Morgan Stanley team.
BY MR. SHANNON:
Q And is it your understanding that that was
a number they had proposed on April 11th, 2022?
A No. I -- that proposal, as I recall,
was -- I don't remember the date, but it wasn't done
via email. I -- I don't recall exactly when that -when that number was thrown out there, but I believe
it was on a phone call. Yeah, I'm not sure.
If the question is what -- when was this
number proposed, I -- I just -- I don't recall.
Q Well, do you know where Morgan Stanley came
up with the 54.20?
A As I understood it, there was a, you know,
a premium over what was considered, you know, the
Page
market's interpretation of the fair market value and
transactions like this needed to be done at a
premium, and so this is where they came.
Q Are you aware of any other basis for
determining the 54.20?
A Well, I'm pretty sure there was a
tongue-in-cheek reference to the 420 number.
Q What do you mean a tongue-in-cheek
reference?
A Well, there's a long history of -- of -- of
that number's use and Elon's use of that number.
Q And what's the reference that it relates
to?
A Well, it -- it's become a reference to his
ongoing kicking of the dead horse, you know, joke,
but I think the -- the original reference is -refers to something with regard to cannabis culture.
Q Do you recall having any discussions with
Morgan Stanley at any point regarding what is the
appropriate price?
A No.
Q Do you know what analysis Morgan Stanley
had done as of April 11, 2022, when they referenced
the 54.20 price?
A I did not know at that point, no.
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Q Do you recall having a meeting -- do you
recall having a meeting with Morgan Stanley
representatives later that day with Mr. Musk?
A Again, I don't recall. If you say that's
when we had a scheduled meeting, I would trust that
that's true. I just don't recall exactly, you know,
the -- the timing of when that happened.
--(Birchall Exhibit 19 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 19, which is a
meeting invite for April 11th, 2022.
Does that refresh your recollection that
there was a call with Morgan Stanley on -A Yes.
Q Okay. And do you recall what was discussed
during that call?
A My recollection is that a list of
alternatives of potential courses of action was
discussed.
Q And was Mr. Musk on that call?
Page
Page
A I believe so, yes.
Q And you were on the call, correct?
A Yes.
Q Anyone else, other than Morgan Stanley
representatives?
A I know it's possible that Alex was on the
call. I don't recall.
Q Okay. And what do you recall them
discussing regarding options?
A Well, the board seat was always still an
option. Whether or not he held onto his shares
and/or bought more and/or sold his shares were
options, and certainly one of the proposals was the
idea of acquiring the company, and then in what
format would you do that. Do you keep it as a
public company? Go private?
That's my recollection of the different
things that were discussed.
Q Do you recall anything that Mr. Musk said
during the call?
A I don't.
Q Do you recall any discussion regarding the
potential price that Mr. Musk would pay if he were
to seek to acquire the company?
A I don't. In fact, I -- I -- I don't
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specifically recall that, but I have a recollection
that price was not discussed on this call because
there was no determination of, you know, the course
of -- you know, that list of options that he would
take.
Q As of this point in time, which is
April 11th, was it your understanding that
Morgan Stanley had been retained?
A No. Again, this -- this was an exploratory
discussion without a determination on next steps.
Q What's your recollection as to when
Morgan Stanley was retained?
A I, unfortunately, can't recall when that
was.
Q Were you involved in determining to retain
them?
A I mean, the ultimate decision would have
been made by Elon, but involved? I guess.
Q What involvement did you have?
A Well, again, I obviously was on the calls
and set up the initial call, but probably helped
facilitate the signatures. Yeah. That's -Q But you don't recall the specific date that
that was agreed upon?
A I don't recall.
Page
--(Birchall Exhibit 20 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 20, which is a
series of emails, again internal at Morgan Stanley,
relating to Project X.
Do you know what Project X is referring to?
A I assume they're referring to whatever the
Twitter-related initiative would be.
Q At the bottom, there's an email from
Anthony Armstrong.
Do you know who he is?
A I do.
Q Who is he?
A He's one of the senior bankers at
Morgan Stanley.
Q Okay. And was he involved in the
transaction?
A He was.
Q Okay. He says: "A few thoughts: The
other near-term work stream is to review the hostile
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options and the target's defense profile."
Do you see that?
A I do.
Q Do you recall any discussion with
Morgan Stanley regarding the hostile options and the
target defense profile?
A I don't.
Q Do you recall any discussions regarding a
potential hostility tender offer?
A I don't.
Q At any point in time?
A No, I don't recall specific discussions. I
do recall the term at one point or another being
used, "tender offer," and tweeted about, among other
things, but I don't recall any specific discussions
regarding that.
Q If you look at the top, there's an email
from Kate Claassen, and what was her role in the
transaction?
A She was one of the -- also one of the, I
guess, more senior bankers from Morgan Stanley.
Q Her second line reads: "Punchline is that
our goal is speed, and to get this done quickly we
remove commentary in letter on censorship," and then
it goes on.
Page
Page
Do you know what that's referring to?
A I do not.
Q Do you know what letter she's referring to?
A I don't. I mean, I could guess, but I -I -- I'm not sure.
Q Do you know why she's suggesting "our goal
is speed"?
A Again, I'm thinking that they're
interpreting whatever information they've been given
and -- and stating that that's what their team's
goal is. I don't know.
Q Well, on the April 11th meeting that you
had with Morgan Stanley, was there a suggestion that
the goal was to move quickly?
A I don't specifically recall. I mean, as I
stated before, everything in his world has a sense
of urgency to it, and so to suggest that this was -might have been a takeaway isn't, you know,
surprising.
Q After the 11th -- the meeting with
Morgan Stanley on April 11th, what is the next
communication you recall having with them?
A Yeah, unfortunately, that kind of gets into
a timeframe where there's just a lot of times and
dates and discussions that are all smashed together,
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and so I just don't recall. Certainly, there were
follow-up conversations and whatnot, but I don't
recall exactly when or what was discussed.
--(Birchall Exhibit 21 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 21, which is an
email from Mr. Musk to Mr. Taylor regarding taking
private Twitter. It's dated April 13th, 2022 and
encloses a letter from Mr. Musk to Mr. Taylor.
Do you see that?
A I do.
Q Now, were you aware before this was sent
that Mr. Musk was planning to send it?
A Yeah, I think I helped facilitate the
signature on this.
Q Other than helping to facilitate the
signature, did you have any role with regard to this
letter?
A As far as writing or whatever, no.
Q Did you discuss either this letter or
Mr. Musk's decision to purchase Twitter?
Page
A Again, I think I was on, you know, several
different phone conversations over this very, kind
of, compact period of time, and certainly there was
a -- there was a conversation at some point that I
was a part of -- or that I was privy to where these
things were discussed. I just -- I can't recall the
specifics of it.
Q Okay. So -- and this suggests he made the
54.20 per share offer on April 13th, correct?
A That's right.
Q Okay. And you had your initial call
discussion with Morgan Stanley on April 11th, 2022,
correct?
A That's right.
Q Okay. And before Mr. Musk made this offer
on April 13th, do you know what analysis
Morgan Stanley had done?
A I think there was some -- you mean as far
as analysis of -- that got them to their share
price? Is that what you're asking?
Q Analysis as to whether -- what share price
made sense. What was the value of Twitter.
Anything like that.
A I don't recall their -- certainly, they -they would have talked about how they backed into
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their price, but I don't recall the specifics on
what analytics had gone into their work at this
point.
Q Are you aware of Mr. Musk doing any
analysis of Twitter before making his 54.20 offer?
A Again, only as to -- what I would be aware
of is what, you know, the banking team would have
shared. But outside of being part of calls that
banking -- that the banking team shared, I have no
information about what work he did or didn't do.
MR. SPIRO: We almost at a point to take a
break?
MR. SHANNON: Two minutes. That work?
MR. SPIRO: Of course.
MR. SHANNON: Okay.
BY MR. SHANNON:
Q Do you have an understanding as to why
Mr. Musk was initially coming forth with what he
called his best and final offer?
A I mean, my understanding is just that he's
a pretty direct, straightforward, you know, person,
and he didn't want to go through, you know, some
prolonged negotiation.
Q Prior to making this offer, are you aware
of any diligence that had been done either by
Page
Page
Morgan Stanley or Mr. Musk relating to Twitter?
A Again, I -- I don't recall the specifics
of -- of what Morgan Stanley shared, but there was
information shared. I just don't recall, you know,
all the different source material for that, and -and I don't know what Elon Musk might have done
outside of what the banking team shared.
Q And when you say "banking team shared,"
would that have been shared orally, or how were they
sharing?
A I believe so. I believe at some point
there was an in-person meeting, but I -- I don't
think that that had happened at this point.
Q So what was shared by Morgan Stanley
between the initial meeting on April 11th and when
this offer was made on April 13th?
A Again, so I don't remember the specifics,
but they would have explained how they got to the
price and -- and kind of their general -- what their
general research had -- you know, they would have
consulted with, you know, whatever resources they
had inside the firm to give us a picture of what -you know, the full picture of the -- of the -- of
their thoughts on the transaction and the price.
Q Okay. And are you aware of any
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communications they had during this period that were
with Mr. Musk that you were not included on?
A I'm not aware of those.
Q And are you aware of any oral
communications that happened between the one call we
talked about on April 11th and when this offer was
made?
A I'm -- I'd be shocked if there weren't
additional calls made, but I -- I don't -- I can't
sit here and pinpoint, like, and then there was a
call this time and this time and this time. But I
feel pretty confident saying this wasn't the first
thing that came out of that -- you know, that
meeting.
Q And just one last question, and then we'll
take the break.
You suggested that you recall there being a
discussion or a communication on how they got to the
54.20 price.
A Yes.
Q What do you recall in that regard?
A Again, I don't recall the specifics. I
just recall that they explained what -- you know,
how they came to that number, and I don't recall,
you know, again, them -- the specific information
Page
that they used to -- to get to that, but I know that
they did explain it. I just -- which I guess I'll
just say that how we started this day was sharing,
like, what I was hired to do for Mr. Musk, and -and so, I do a lot for him, and this is a very small
percentage of that, and -- and so while this is an
important thing, there -- there's a long list of
many other important things, and so I -- I'm trying
to remember to the best of my ability, but there's
just, like, so many other things on the list that
prevent me from having, like, a perfect recollection
of the things that you're asking about.
Q Understood.
But do you have any -- any general
recollection as to what Morgan Stanley said as to
how they came up with the 54.20 price?
A Yeah, I unfortunately, like, don't have
that recollection. Sorry.
MR. SHANNON: Why don't we go ahead and
take a break.
MR. SPIRO: Sure. And I think they've got
some food for you all.
MR. SHANNON: Oh, thank you.
THE VIDEOGRAPHER: We're going off the
record. The time is 1:06 p.m.
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(Whereupon, at 1:06 p.m., the
proceedings in the above-entitled matter were
recessed, to reconvene at 1:54 p.m., this same day.)
AFTERNOON SESSION
(1:54 p.m.)
THE VIDEOGRAPHER: We are back on the
record. The time is 1:54 p.m.
CONTINUED EXAMINATION BY COUNSEL FOR PLAINTIFF
AND COUNTERCLAIM-DEFENDANT
BY MR. SHANNON:
Q Mr. Birchall, before we took the break, you
had mentioned that although you were involved in the
Twitter transaction, it was clearly not all that you
had to do on behalf of Mr. Musk, correct?
A That's right.
Q What was your role with regard to the
Twitter transaction?
A I mean, I don't know I can define it as,
like, a role, but as -- let's see. How do I -- I
mean, certainly facilitated certain aspects of
logistics, certain admin stuff, some advisory stuff.
I don't know there's like a title to use to
encapsulate the role, per se, but just kind of,
like, whatever gaps needed to be filled type thing.
Q You mentioned advisory stuff. What
Page
Page
advisory stuff were you contemplating?
A Well, I was certainly part of conversations
with Mr. Musk as well as with the Twitter team
and -- I'm sorry. Twitter team? -- Morgan Stanley
team, where ideas were being bounced off of each
other, thoughts. So, yeah, that's -- that's what I
mean by that.
Q What was your understanding of Mr. Musk's
role with regard to the transaction?
A Well, he was the acquirer. Again, I -to -- yeah, I mean, he was -- he was the acquirer of
the company and overseeing all of that effort.
Q When you say overseeing all of that effort,
what effort were you -A Efforts by the legal team. Efforts by the,
you know, banking advisory team. Yeah, just
anything regarding the transaction, he -- he was the
ultimate say in all of it.
Q Were you also responsible for overseeing
aspects of it?
A I mean, he was ultimately overseeing
everything. To say -- well, I mean, I was -- I was
helping him in his overseeing role I should say.
Q Okay. Do you recall any specific things
you did to help Mr. Musk in his overseeing role?
JANE ROSE REPORTING
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A I mean, going back to what I said, just a
lot of logistics, a lot of facilitation of
conversations and calls and meetings, and in some
cases, you know, information or, you know -Q What do you mean "information"?
A Well, if I -- if I would have had a
conversation with the banking team that he wasn't on
or whatever and then come
meeting or -- or at
another time, I would have relayed information.
MR. SHANNON: Exhibit 22.
--(Birchall Exhibit 22 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked Birchall Exhibit No. 22, which is an
April 18th, 2022 email from Mr. Polhemus to you CC'g
others, attaching a document, which is called
Principal Cases.
Do you have any doubt you received this on
this day?
A No.
Q Is there a reason why Mr. Polhemus was
Page
sending it to you as opposed to Mr. Musk or you and
Mr. Musk?
A I don't know if it was to take an initial
look or -- I can't say why he didn't CC him.
Q Do you recall providing feedback on any of
the analysis Morgan Stanley had done before it was
provided to Mr. Musk?
A I don't specifically recall.
Q Okay. And if you receive something like
this from Morgan Stanley, would it be your practice
to forward it on to Mr. Musk?
A Not always.
Q How would you determine what to forward on?
A Well, again, I don't know if this was for,
like, preliminary review, you know, purposes prior
to -- to the final version, or, you know, I just
don't -- I'm just not sure what -- in some cases,
third parties will send things like that to me first
to review and -- and then we'll tweak things or
whatever to -- before they send the final version to
him, or if they know I'm going to be with him in
person and, you know, I'm printing it out or -- you
know, there could be a number of reasons why they
sent it to me and not him.
Q Do you recall any instance in which
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Morgan Stanley or any other advisers sent you
something relating to the Twitter that you then
proposed comments to before it was provided to
Mr. Musk?
A I don't have, like, a specific recollection
of anything.
Q Do you have a general recollection of
anything?
A I mean, it's -- that's a pretty broad, you
know, question. You know, could that have happened?
Certainly. I can't think of, like, a specific
moment or -- or document where -- where that
specifically happened.
Q Okay. And if you look at what is attached,
do you -- it's -- Morgan Stanley, it's called
Principal Cases, dated April 2022.
Do you recall ever having seen this before?
A Yeah.
Q And do you have an understanding as to why
it was prepared?
A Yeah. Let's see here. I think -- as I
recall, it was just the initial projections on the
financials based on some of the fixes, I'll call
them, that -- that they knew Elon wanted to make
with the company.
Page
Page
Q And did you have any role in preparing the
projections or making assumptions for the
projections?
A I mean, any role? I don't believe I was
part of -- or I wasn't part of the creation of this
document if that's what you're asking.
Did I, you know, have questions or
feedback? I -- I very well could have, but I don't
specifically recall.
Q Do you recall ever requesting that a change
be made to a model?
A Yeah, I do.
Q What do you recall in that regard?
A Well, later on was asking for different -you know, stress testing the model with different
projected numbers of -- of bots or mDAU into the
model to better understand how the model worked.
Q Any other proposed changes you made that
you recall?
A Again, not specifically.
Q And when you say "later on," when do you
recall you were doing that?
A I mean, if you're asking for a timeframe, I
believe that would have been in the month of June,
but I'm not certain.
JANE ROSE REPORTING
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Q And why were you asking that they adjust it
for certain sensitivities around bots?
A Well, we had a debt deal to do and needed
to know if we were going to be able to service that
debt, and -- and, you know, so I was trying to see
how that lever affected the -- you know, the revenue
projections.
Q With regard to the projections that are
before you right now and marked as Exhibit 22, did
you have an understanding where it says: "Fixed
free Twitter," what fixes were incorporated into
that?
A Well, I mean, I think they list them
there -- oh, you're talking about the No. 1?
Q Yes.
A Well, it's a poorly run company, and so it
was just some basic operational stuff, some cost
cutting. As I mentioned, you know, operate with
better efficiency, make the platform better, more
user friendly, retain more of the people that, you
know, log on and never go on to use it. I think
that was the main reference to just fixing.
Q You testified a moment ago that it was a
poorly run company. When did you come to the
conclusion that it was a poorly run company?
Page
A I think the market has come to that
conclusion over the past few years based on a
stagnant stock price and based on losing money and
things like that.
Q And then there's fixed free Twitter revenue
assumptions.
Do you have an understanding what that
related to?
A Is there somewhere specific you're -- oh,
the -- yeah, again, they're just quantifying I think
what -- what the effect those changes would have on
the revenue model.
Q Do you know where Morgan Stanley got the
information to use for their assumptions in these
models?
A Well, Twitter's a public company, so -- so
the basis of all data being used would be the
filings that -- that are readily available to all
investors, and so I -- I know that that was the
basis of certain data, and then assumptions were
just that, you know, based on certain tweaks of
these fixes, you know, and what potential effect it
would have.
Q But were they assumptions that you had made
and instructed Morgan Stanley, or were they
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assumptions that Morgan Stanley had come up with?
A So the specific revenue model assumptions,
the fixes, per se, were -- I think were -- the fixes
were I think initially voiced by Elon, but the
revenue assumptions were -- were primarily provided
by Morgan Stanley.
Q And when you say the fixes were originally
provided by Mr. Musk, when did he provide those to
Morgan Stanley?
A I don't recall the date, but early on in
the process, he -- he helped outline kind of his
vision, and -- and then they proceeded to create a
model that reflected that vision.
Q Was it your understanding that the model
that they provided to you on April 11th -- or I'm
sorry -- April 18th, 2002 [sic] was attempting to be
consistent with the vision that Mr. Musk had
provided to them?
A Yeah. With regard to the word "fixed,"
that was -- that's a reference to, like, his
proposed changes -- the effect his proposed changes
would have on the revenue model.
Q Do you recall any discussions with
Morgan Stanley regarding these projections?
A I don't specifically recall. I generally
Page
Page
recall, you know, the model, and certainly we would
have discussed it, but I can't, like, recall the
time and place or anything like that.
Q Do you recall having any specific
recollection of discussions with Morgan Stanley or
Mr. Musk regarding any projections?
A Well, the one specific recollection that
comes to my mind is the one that I mentioned
previously about stress testing the model, but to -to pull out a moment in time where we discussed the
model, no. There were numerous conversations and
numerous in-person meetings and phone calls that
happened where the models were discussed, but I
can't sit here and share the details of those
moments in time.
MR. SHANNON: Exhibit 23.
--(Birchall Exhibit 23 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 23, which is an
email dated April 18th, 2022 from Kate Claassen to
JANE ROSE REPORTING
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September 21, Jared Birchall
you and others.
Do you recall receiving that email?
A Generally, yes.
Q Okay. And in the first numbered portion of
her email, she says: "Excitement about tango."
Is it your understanding that refers to
Twitter?
A Yes.
Q And she talks about: "Belief in ability to
fix product and increase profitability."
Do you see that?
A I do.
Q Do you have an understanding she's talking
about the fixes that Mr. Musk had identified?
A Yes.
Q And if you see, under that is A, and then
it says: "Fix product - long form tweets, reduce
spam and bots," and then goes on.
Do you see that?
A I do.
Q Are those the specific fixes that Mr. Musk
had talked about with Morgan Stanley?
A At least some of them, yes.
Q Okay. How about long form tweets, did he
talk about that with Morgan Stanley?
Page
A Yes.
Q Reduce spam and bots -A Yes.
Q -- did he talk about that with
Morgan Stanley?
A Yes.
Q Do you recall any others that he spoke
about with Morgan Stanley?
A Well, the following one, the allowing
creators to make a living, being able to have the
top content creators monetize their work on Twitter,
that was another thing they discussed. The
verifications and the levels of verifications and
subscriptions were -- were also discussed.
Q And if you look at the next line, it says:
"B. Know product inside and out and complete
confidence in fixing it."
Do you know what that's referring to?
A I believe that is referring to -- as I
understood it, Elon, at the time, was the number one
account at Twitter in terms of interactions, I think
it was. Not necessarily followers, per se, but
in -- in account activity or whatever, and -- and so
the point there was that he knows the product quite
well, is a regular user.
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Q So she's -- you understand her to be, in
essence, saying -- repeating what he said at the
meeting?
A Yeah, I believe so.
Q Okay. Do you recall discussions with
Morgan Stanley regarding cost savings?
A Yes.
Q What do you recall along those lines?
A Again, there would have been numerous
conversations at different times and different
settings, but I do recall the general discussions
about -- about head count. I recall discussions
regarding data centers.
Q What were -- what do you recall as to
Mr. Musk's views as to head count?
A That the number of Twitter employees was
larger than the number of effective Twitter
employees.
Q Is it your view that for the purpose of
their analysis and projections, that Morgan Stanley
assumed a certain level of staff reduction?
A I'm not sure if they actually quantified a
target staff reduction. I -- I don't know whether
they did or didn't.
Q Did they -- did they seek or reflect the
Page
Page
reduction in employee expense?
A Yeah, which would have been hand-in-hand
with staff reduction.
Q Okay. So you understood that they did, for
the purposes of their projections, assume that
there'd be a reduction in employee expense, correct?
A I believe so, yeah.
Q And, in your view, that would go
hand-in-hand with reducing staff?
A Yes.
Q Do you recall that there was an in-person
meeting with Morgan Stanley and Mr. Musk in Texas on
April 20th?
A I do.
Q Okay. Who do you recall attended that
meeting?
A I recall that the -- the three
Morgan Stanley representatives that I mentioned
previously, Michael Grimes, Anthony Armstrong, and
Michael -- and Kate Claassen were there. I believe
Alex may have been there as well.
Q You were there, correct?
A I was, yeah.
Q Okay. Mr. Musk was there?
A Yes.
JANE ROSE REPORTING
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Q At this point in time, which is April 20th,
had Morgan Stanley been retained?
A I'm not sure.
Q What was the purpose of the meeting?
A Just to further discuss the transaction.
Q And what do you recall being discussed
during the meeting?
A I -- I recall them going through the
financial model. Again, not specifically, but -but that was -- that was definitely shared. You
know, all the things that, you know, fix Twitter and
all these things were among the things discussed.
Q Do you recall how long the meeting lasted?
A No.
Q Any idea?
A I mean, it was most likely over an hour and
most likely under two hours.
Q Okay. Do you recall there being a takeaway
from the meeting as far as what the next steps would
be?
A I don't recall as to that specific date and
action items tied to that -- you know, to that
specific meeting.
Q Do you recall anything specifically
regarding that meeting other than what you already
Page
testified to?
A Not specifics. I mean, I think we also
talked about investor interest as well. I think
that was one of the topics that was -Q When you talk about investor interests,
what do you mean?
A Well, the interest from investors had
started to, kind of, pour in, and understanding, you
know, kind of what that looked like was an ongoing,
kind of, update.
Q When you talk about investors, are you
talking debt or equity?
A Equity.
Q And do you recall what was said in that
regard?
A I don't specifically.
Q Was it viewed as generally positive as far
as the reaction you were getting?
A Yeah. There was quite a bit of interest.
MR. SHANNON: Exhibit 24.
--(Birchall Exhibit 24 was marked for
identification.)
--THE WITNESS: Thank you.
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BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 24, which is a
-- a amendment to the 13D, which is filed on
April 20th, 2022.
Do you see that?
A I do.
Q Okay. Do you recall having ever seen this
document before?
A Vaguely, yes.
Q Okay. And what do you recall regarding
this document?
A You know, just another one of the filings
that was required per counsel.
Q Okay. And this is dated the same day as
your meeting with Mr. Musk in -- in Texas, correct?
A It appears it is, yes.
Q Okay. Do you recall discussing at that
meeting in Texas that there would be a 13D filed?
A I don't recall.
Q Okay. If you could turn to the second
page, and you see where it says: "Item 4. Purpose
of Transaction"?
A I do.
Q At the end of the second paragraph there,
Page
Page
the second paragraph which starts: "The proposal
was (and remains) non-binding..." -A Mm-hmm.
Q There's a sentence that reads, and this is
the last sentence: "At the time of delivery, the
Proposal was also subject to the completion of
financing and business due diligence, but it is no
longer subject to financing as a result of the
Reporting Person's receipt of the financing
commitments described below and is no longer subject
to business due diligence."
Do you recall that?
A I do.
Q Do you recall at the meeting in Texas on
April 20th if there was any discussion of making the
offer no longer subject to either financing or due
diligence?
A I don't specifically recall that.
Q Okay. Do you recall any discussions
regarding making the offer no longer subject to
financing or due diligence conditions?
A Again, I -- I don't specifically recall a
conversation with that -- in that regard. I'm
certain, you know, a conversation was had. I just
don't recall the setting or details.
JANE ROSE REPORTING
1-800-825-
September 21, Jared Birchall
Q Do you recall any discussion at any time
with Mr. Musk, Morgan Stanley, or anyone else,
about, in essence, not having due diligence
conditions to the offer?
A I do recall that specific, you know, phrase
and it being a part of the -- you know, the
transaction. I just can't pull out a specific
conversation.
Q Okay. What do you recall being discussed
in that regard?
MR. SPIRO: Of course don't reveal any
advice you got from counsel in answering this
question.
THE WITNESS: Yeah, I -- again, I -- my -my recollection is the general concept. It isn't,
like, specific details surrounding that.
BY MR. SHANNON:
Q So what's your understanding of the general
concept?
A That -- my -- my general understanding is
that we, at that point, would be relying on all of
the publicly available information to be correct and
factual and that, kind of, the -- that some of
information that would be -- that could be acquired
from the management team or whatever was not -- we
Page
were waiving the -- the rights to acquire some of
that information.
Q And why were you determining to waive those
rights?
A Well, I -- I don't pretend to know
everything that was in Elon's head or all of the
strategy behind it, but we trusted in, you know,
public filings and the -- the -- the rigor that goes
into, you know, filing information and didn't feel
impressed to take the baton from the current
management's vision.
As I said before, it wasn't -- you know,
Elon had a different vision for the future of
Twitter, and so with the stamp of publicly available
documentation -- you know, with the SEC stamp and
the factual representation of all that transparent
to us and to the world, with that information being
correct, we felt like we had the information that
was needed.
Q What did you mean when you said Mr. Musk
had a different vision? How did that impact the
decision to waive due diligence?
A Well, part of the purpose of diligence is
to understand the management's team and next steps
and vision. And given that, you know, the general
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belief was that it wasn't being run well, he had a
better way, a better path forward, and didn't need
to take that baton from the current management team.
And so that -- that's what I was trying to -Q Okay. Are you aware of any other
transaction involving the acquisition of a public
company that has not involved due diligence?
A I -- I -- mergers and acquisitions isn't,
you know, my expertise, so I -- I haven't -- I don't
have information about that.
Q Are you aware of any discussions with
Morgan Stanley as to their views as to whether to
waive due diligence?
A Are you asking if -- if the advice came
from them?
Q I'm asking you if you are -- if you recall
any discussions with Morgan Stanley regarding or
advice given by Morgan Stanley as to whether to
waive due diligence.
A Yeah, again, I just don't have any specific
recollection of a point in time or a -- like a
specific conversation. Again, I -- I remember the
broad topic being broached, but I just -- I don't
have that recollection of specifics in a moment.
Q Okay. Do you recall anyone giving advice
Page
Page
to you or Mr. Musk that it would -- that you should
waive due diligence?
A I don't recall what the genesis of that
idea was and, kind of, how that -- how that took on
a life, but as with most -- as with, you know, all
the other major decisions, it would have been a
collaborative discussion.
Q Who made the ultimate decision?
A Well, ultimately, Elon has to sign off on,
you know, a filing, right? So he would have signed
off on it.
Q Okay. You testified a moment ago that you
would have relied on the Twitter's previous public
filings, correct?
A That's right.
Q Okay. As of this time, which is
April 20th, do you recall having read any of the
previous Twitter public filings?
A I personally had not.
Q Okay. Do you know if Mr. Musk had read
any?
A I don't know.
Q Do you recall discussing with any of your
advisors any of Twitter's previous public filings?
A There were mentions, again, in general, and
JANE ROSE REPORTING
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I know that the models -- I always knew the models
were built upon data derived from those models, but,
again, I don't recall a specific discussion where -and the words that were used as it pertains to those
filings.
Q Do you recall discussion as to any specific
portions of the SEC or public filings for Twitter
that Mr. Musk was relying upon?
A Well, certainly, you know, one of the most
highlighted data points is -- is, you know, the
5 percent bot number. That's among the numbers that
were -- that were relied upon in our financial
models.
Q Do you recall discussions about relying
upon the 5 percent bot number?
A Again, I recall it being part of
discussions. I don't recall exactly what -- how
those conversations went specifically.
Q And you recall that being part of
discussions prior to signing the merger agreement?
A I don't. No, I don't recall that being a
discussion point prior.
Q Other than your reference to the 5 percent
bot number, do you recall any other portion of
Twitter's public filings, SEC filings, that you
Page
discussed as -- as relying upon?
MR. SPIRO: Objection to form.
THE WITNESS: Again, the models, the
financial models, that were built, were built using
Twitter's proxy numbers, and -- and then we made
modifications off of that base, but that was the
base of -- of the models that we used.
BY MR. SHANNON:
Q Any other information disclosed in
Twitter's public filings that you recall any
discussions regarding relying upon?
MR. SPIRO: Objection to form.
THE WITNESS: It's not coming to -- like,
there is -- aren't specifics coming to mind right
now.
BY MR. SHANNON:
Q Okay.
MR. SHANNON: Exhibit 25.
--(Birchall Exhibit 25 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
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been marked as Birchall Exhibit No. 25, which is an
email from you to Command Center, dated April 22nd,
2022.
A Yes.
Q Subject: "Talking points."
Do you see that?
A I do.
Q It says: "Please print this for" -- and
then "V1" -- is that six? "And hand it to him."
A Yes.
Q Who is that?
A That's Elon.
Q What is that reference to V1?
A It's a way in which the security team
refers to him.
Q When you say "the security team" -- oh,
okay, his internal security team?
A That's right.
Q Okay. And what is Command Center?
A That -- that's the security -- like, the
security hub that is monitoring properties and
cameras and stuff like that.
Q Okay. And the attachment, can you tell me
what that is?
A Yeah. I believe we were getting ready to
Page
Page
get on a string of calls with -- I think this was
for the institutional investors, and -- and it was,
you know, just putting some structure around his,
you know, bullet points that he had shared prior.
Q Did you prepare this?
A I, along with -- I think -- I think
Morgan Stanley started it, and I tweaked it in
certain ways as well before sending it to him.
Q Okay. And you said around bullet points
that he -- Mr. Musk provided you with bullet points
and then you converted it into more talking points?
A These are -- are taken from, kind of, a few
different meetings, whether it was in person or via
phone, and attempt to encapsulate some of the things
that he had said in those prior meetings.
Q When you say "he had said," you mean
Mr. Musk?
A Elon. Yeah, Mr. Musk.
Q You start out with: "Define the mission."
What did you mean by that?
A Well, all of Elon's companies have a
mission and understanding that this was no
different, there was a larger objective that he was
working toward.
Q And what was that larger objective?
JANE ROSE REPORTING
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A As it states, you know: "...free speech
and a functioning democracy."
Q Okay. And then "Objective 2: Explain why
Twitter is broken and can't succeed."
What did you want him to convey in that
regard?
A Again, he -- he has -- is, like I said, by
certain metrics, the number one user and had
numerous frustrations about his user experience,
some of which are then, you know, further detailed
in the second -- in the next point, which reflect,
you know, spam and bots and user interface and all
that type of stuff.
So those were some of the -- the ways that
Twitter was -- is -- is broken.
Q And then if you look at the next one, it
says: "Objective...Explain why $54.20 is better..."
Do you see that?
A I do.
Q And then No. 4, it says: "With
significantly improved execution on multiple fronts
(which the company cannot do and has proven that
beyond" -- "has proven that beyond a doubt), the
company is worth what I have offered."
Do you see that?
Page
A Yeah.
Q What improved execution is being referenced
there?
A I mean, all of the above. Improved
execution on all fronts in terms of all of the
proposed changes. You know, Twitter had -- had made
previous commitments to improve spam and user
interface and -- and bots and things like that. And
with improved execution on -- on that and some of
the other things that Elon had in mind, it would
increase the worth of the company.
Q And was it your understanding that Twitter
had, in the past, made statements it would improve
on some of those issues on spam and bots, but it had
not been successful?
A Yes. In each of the previous investor
calls, Parag had -- had made specific commitments to
make those improvements and very little to no
improvements had been -- or noticeable improvements
had been made.
Q And had you listened in on the prior
investor calls, or how did you know he had made
those commitments?
A At some point, I -- I was shown the
transcripts, I believe, of -- of some of the
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responses that he gave. I think the Morgan Stanley
team had put together an exhibit of his promises and
then what actually happened and there's a whole list
of them, and -- and it was direct quotes from each
of those calls.
Q And what was Mr. Musk's plan to correct
those, for example, the spam and bots?
A Well, to start off was to make a
transparent platform where the algorithm was -- was
disclosed where there was a much more rigorous and
technology-aided process to discovering spam and
bots and eliminating spam and bots.
Q Was he familiar with the technology and
process used at Twitter at that time to identify and
eliminate spam and bots?
MR. SPIRO: Objection to form.
THE WITNESS: I don't -- I don't know
exactly what date this is. It appears that -BY MR. SHANNON:
Q It's April 27th.
A Yeah, pre -- yeah, it's pre the meeting.
So, mostly, he had his own personal experience to go
off of, and he recognized that, you know, as a
high-profile user, certainly there were -- there
could potentially be anomalies in his account that
Page
Page
didn't reflect other user experiences. And so he
just knew that based on his own experience, it
wasn't ideal.
Q How does he know he can improve
identification elimination of spam and bots if he
doesn't understand how it is that Twitter's
currently doing it?
MR. SPIRO: Objection to form.
THE WITNESS: I think that goes back to the
general belief that Twitter was poorly run by a
group of executives that were in over their skis and
were not executing on promises that they were
making, and -- and Elon is -- has a pretty good
track record of being able to solve problems, and he
wrote software for the first 20 years of his career,
and this is ultimately a software company. And his
ability to help improve a software company would -he felt confident in his ability to do that.
BY MR. SHANNON:
Q If you look at the next one, which is:
"Objective 4: Best-and-final," you say: "I had
done my work and made my decision."
Do you see that?
A Yes.
Q When you say "I had done my work," what are
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you referring to?
A I believe, you know, his -- his diligence
to -- to get to a place where he felt good about the
offer.
Q What do you mean felt good about the offer?
A Felt like it was a more than fair price
that investors should accept.
Q And what's your understanding as to the
diligence he had done to get to that place?
A I don't know all the diligence that he
personally did independent of -- of me or meetings
that I was a part of, but at minimum, the data that
was shared by the banking team about the financials
and about how the company was currently being run.
Q And turning back to the first page where
you're sending it to Command Center, is it common
that you will send something to Command Center to
print for Mr. Musk?
A No. That was a unique day where I was due
to be with him for this meeting, and as I recall,
there was a last-minute change that prevented that
from happening, and I vaguely -- it might have even
been a COVID thing or something like that, and so it
was a very last minute attempt to get him a document
in his main residence. You know, he doesn't have a
Page
printer and things like that. So the quickest way
that I could figure out to get him something was
sending it to the -- the security team.
Q Mr. Musk doesn't have a printer in his -A I mean, so he was renting from a friend,
and he -- in that residence, I don't believe that
his friend had a setup with a printer in there.
MR. SHANNON: Exhibit 26.
--(Birchall Exhibit 26 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 26, which is a
letter from Owen O'Keeffe, dated April -- or an
email from Owen O'Keeffe, dated April 24, 2002 [sic]
to certain individuals, enclosing a draft -- or a
final letter, and it shows that you are copied.
Do you recall receiving this?
A I do. Again, I think I probably
facilitated the signature here.
Q Okay. And when you say "facilitated the
signature," how do you go about doing that?
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A Well, he would have asked that I apply an
electronic signature to it.
Q Okay. So you would have applied his
electronic signature?
A I believe so.
Q Okay.
A It looks that way.
Q And he -- you would only do that if he gave
you specific authorization to do so?
A That's right.
Q Do you recall him doing that orally or in
writing?
A I -- I don't specifically recall.
Q Okay. And do you recall any discussions
with Mr. Musk regarding this letter before you
applied his signature?
A I -- I don't. It's, I think, too specific
to a moment in time, and I apologize, but there's
a -- I don't have that -- I don't really have a
photographic memory.
Q Do you have an understanding as to who
drafted the letter for Mr. Musk?
A Well, I don't. I mean, I -- I'm guessing
that there was some recommendations for content, and
then he ultimately would have edited it as desired.
Page
Page
Q Okay. Do you recall what the purpose of
the letter is?
A I don't. If I sat here and read it in
detail, I maybe could, like, provide a guesstimate
or, you know -Q Well, you're certainly free to take a look
at the document and any document I give you. If you
feel you need to read more of it for context, you
are -A Well, if you want me to comment on that, I
just don't -- I don't recall without having read it
in detail.
Q Well, why don't you just take -- I have a
couple questions on it. Why don't you just take -it's only one page -A You want me to read it?
Q -- why don't you take -- just let me know
when you're done.
A Okay.
Q Okay. Having now read the letter, does
that refresh your recollection as to what the
purpose of the letter was?
A Again, I -- not, like, super specifically.
You know, clearly, it was a nudge in an effort to -to get the deal -- to proceed with the transaction.
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I -- I don't recall the circumstances that -specifically.
Q Okay. Do you recall any discussions
regarding sending this letter?
A I don't.
Q Okay. If you'll look at the middle of the
second paragraph, there's a sentence that reads:
"As such, I attached a merger agreement that is,
quote, seller friendly, end quote, and that does not
require you to recommend in favor of my offer."
Do you see that?
A I do.
Q What was your understanding as to what was
meant by "the merger agreement is seller friendly"?
A I can't specifically recall right now
what -- what that reference is.
Q Do you recall any discussions regarding
providing a merger agreement that was seller
friendly?
MR. SPIRO: Do not, obviously, disclose
privileged communications with counsel.
With that caveat, you can answer.
THE WITNESS: I mean, it's not coming to
me. I don't have a recollection of that.
BY MR. SHANNON:
Page
Q Do you have any understanding as to why
Mr. Musk was characterizing the merger agreement he
was providing to Twitter as seller friendly?
A Yeah, that's what I've been trying to rack
my brain to remember that, and it's just not coming
to me.
Q And you don't have any understanding what
is meant by "seller friendly"?
A No. Again, I'm trying to get there. It's
just not -- it's not coming to me.
Q And you testified that, you know, your
general recollection was this was to -- to nudge the
transaction forward. What -- what did you mean by
that?
A Well, clearly, a proposal had been made and
some time had passed, and, you know, this is a way
of saying, "Here's what we've offered. We feel good
about our offer and take it or leave it."
MR. SHANNON: Exhibit 27.
--(Birchall Exhibit 27 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
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been marked as Birchall Exhibit No. 27, which is a
Morgan Stanley document entitled "Scenario Planning
and Considerations."
Do you recall ever having seen this before?
A I don't.
Q And just so my question is clear, is it
that you don't recall if you saw it, or did you not
see it?
A I don't recall ever having seen this
document.
Q Do you know when it was prepared?
A I don't. Oh, April 2022. I don't know
when it was prepared.
Q On the -- on the second page of the
document, it talks about tactical scenario planning.
A Yes. I see that.
Q You see that?
And -- and it talks about potential options
to proceed.
Do you see that?
A I do.
Q Okay. Do you recall any discussions
regarding the tactical options that Mr. Musk had
around this time which it refers to "Accept by
Monday 4/25"?
Page
Page
A I don't recall any of those discussions.
Q Do you have a recollection on what date the
merger agreement was agreed upon?
A The specific date, I don't know what that
date is.
Q You don't recall the specific date?
A No.
Q If you look down at the next page, No. says: Induce Counterparty to Remove Deal
Impediments.
Do you see that?
A I do see that.
Q Do you recall any discussions with
Mr. Musk, Morgan Stanley, or anyone else regarding
the -- what they call deal impediments that Twitter
may have to preclude Mr. Musk from succeeding in his
acquisition of Twitter?
A I don't.
Q Do you remember any discussions, for
example, regarding a poison pill that had been
adopted?
A I don't.
Q Do you recall any discussions regarding
section 203 of the Delaware general corporation law?
A I don't.
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Q If you look at the second point under that
section, it says: "Enclose very," underlined,
"seller-friendly," highlighted, "merger agreement in
documentation effectively removing all
conditionality."
Do you see that?
A I do.
Q And do you recall any discussion of that
being one of the ways to proceed?
A Again, that seller friendly term is still
not resonating with me. I don't have a specific
recollection as to -- as to that as a -- as to what
that specifically was referring to.
Q Well, if you look at the -- the page above
that we just looked at, which is the Tactical
Scenario Planning -A Yes.
Q -- of the options that are listed there, do
you have an understanding as to which one Mr. Musk
pursued?
A Well, again, I -- this is, I believe, the
first time seeing this chart, and I don't pretend to
clearly understand the flow here, but, clearly,
there was no tender offer, and there was, you know,
negotiation of a merger agreement. So that's what I
Page
understand to have happened.
Q You refer to a negotiation of a merger
agreement. What's your understanding of that
negotiation?
A Well, a proposal was sent. I don't know
what went on behind closed doors with Twitter, but
they responded eventually accepting the agreement.
Q Do you recall Twitter making any changes to
the agreement?
A I -- I do recall a few proposed changes.
There are a few that stand out.
Q Okay. Maybe I'll take a step back.
How long is it your recollection the
negotiation of the merger agreement lasted?
A Yeah, I don't have a specific recollection
of that. It was a relatively short timeframe, but I
don't -- I don't have a clear recollection of that.
Q Okay. You testified a moment ago that you
recall certain proposals that Twitter made in
response to Mr. Musk's proposed tender offer.
What do you recall in that regard?
A Well, I -- I do recall them proposing -- it
was important to Mr. Musk to be able to make
decisions with regard to top talent. They were
proposing to remove his ability to do that. They
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were proposing the ability to provide, you know,
golden parachutes and retirement packages or
whatever or severance or something like that, and he
was not -- he was not in agreement on that either.
Q Do you recall any discussions with Mr. Musk
around that?
A I don't recall discussions around that, no.
Q Do you recall discussions with anyone
regarding that?
MR. SPIRO: Obviously, you can't reveal
privileged conversations with counsel. With that
exception, you can answer the question.
THE WITNESS: I -- I don't recall
specifically.
BY MR. SHANNON:
Q Did you see a counterproposal made by
Twitter that had certain changes to the merger
agreement?
A I very well may have, but I just -- I don't
have a specific recollection of it.
Q Okay. How do you know the changes were
made proposed by Twitter?
A How do I know that changes were made that
Twitter proposed?
Q Let me restate the question and make it
Page
Page
easier.
You testified before that you understood
that after Mr. Musk sent over his proposed merger
agreement, Twitter proposed certain changes,
correct?
A Yes.
Q Okay. How do you know what changes Twitter
proposed?
A Well, the main reason I know about the two
that I mentioned was because those then were not
adhered to, and it became a topic of discussion.
Q Topic of discussion -- oh, so after the
fact?
A So -- yeah, not -- not in the moment.
Q Okay.
A But -- but when -- yes, when -- when we
learned of certain people being fired and whatnot,
per our previous discussion, that -- that that's how
I -- I guess that was the confirmation that that -that's why that became an issue, because those
specific issues had been proposed as changes.
Q But you didn't know that at the time of the
merger agreement being negotiated, correct?
A No, I actually do recall that as being
among the things that were important. I mean, there
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were very few things that -- I don't recall other
things, but I believe there may have been other
things, but I do recall because those were the only
things -- well, at least the only ones that I could
remember that Elon actually pushed back on and
specifically cared about. That's -- that's my
recollection.
Q How do you know that those were the only
ones that Mr. Musk pushed back on and cared about?
A Well, because those were the only ones
that -- as I -- as I recall, those were the only
ones that were actually changed -- or that were not
accepted, I guess.
Q Okay. And what -- and your understanding
was that everything else had been agreed upon that
Twitter had proposed?
A That's my -- that's my recollection, yes.
Q And what's the source of that recollection?
A That's just my understanding of -- you
know, I think the source of most of the deal -- of
the deal and the transaction were our advisory teams
and legal teams.
Q And when did you learn that with regard to
the employment executive piece Mr. Musk had pushed
back and refused to agree?
Page
A I mean, it would have been the -- again, I
was -- I'm pretty sure I was involved in signing
those -- or, you know, on his behalf. And so, it
was within hours of him making that decision. I
think I may have even been CC'd on something or was
on a phone call or something where he specifically
pushed back on those things.
Q And do you recall reading the specific
provisions he pushed back on?
A I don't -- I can't recite them to you, but
I do recall the -- the topic, you know, the subject
matter.
Q Do you recall ever reading the merger
agreement?
A Not start to finish, every word.
Q Okay. What did you read?
A Again, it would have been snippets like
this that -- that, you know, were specifically
highlighted as, you know, pushing back or proposing
or accepting or declining. And, again, I -- I'm
sure there were other -- you know, other sections of
it that I read. I just don't recall. I can't sit
here and tell you that I specifically read the first
six paragraphs or something.
Q Did you have any role in determining what
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to accept or reject as far as -A No.
Q And do you recall having any discussions
with Mr. Musk regarding what he would accept or
reject?
A Not personally one-on-one, no.
Q Well, do you recall being in discussions
that others participated in regarding what he would
accept or reject?
A Yeah -MR. SPIRO: Again, I'm going to object to
the degree that that calls for privileged
communications.
THE WITNESS: Okay.
BY MR. SHANNON:
Q Well, who was in the conversation that you
recall?
A Yeah, as I recall, there were -- there
were -- I don't know if it was a phone conversation
or what, but I do recall I believe it was counsel
and -- and Mr. Musk that were part of that
conversation.
Q Do you recall anything discussed on that
conversation other than the employment provisions
that you just alluded to?
Page
Page
A No, I don't.
Q And is it your recollection that that
conversation occurred between -- sometime between
when Twitter proposed -- or I'm sorry -- between
when Mr. Musk proposed his merger agreement and when
it was signed?
A Oh, yeah. Yes, for sure.
Q Okay. And do you have a recollection of
how long that period was?
A No.
Q Okay.
MR. SHANNON: Exhibit 28.
--(Birchall Exhibit 28 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been provided with
what has been marked as Birchall Exhibit 28, which
is an email from Ihsan Essaid at Barclays to
Mr. Musk and you and others, dated April 24th, 2022.
Do you see that?
A I do.
Q Okay. Do you recall receiving this email?
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A I don't specifically recall receiving this.
Q Okay. Could you tell me who Mr. Essaid is?
A Senior leadership of Barclays banking.
Q And what was Barclays role with regards to
the Twitter transaction?
A They were, like, I guess considered a joint
book runner or a -- you know, a junior part of
the -- of the transaction.
Q What do you mean a junior part of the
transaction?
A Well, I think they also ultimately, you
know, committed to providing some of the debt as
well. But they were, I guess, considered one of the
quasi-co-leads -- or I don't know what the
technical, correct term is, but they and Merrill
Lynch were -- Morgan Stanley was lead and Barclays
and Merrill Lynch were considered kind of co-leads
or lesser than Morgan Stanley.
Q Okay. Do you recall ever having
discussions with anyone at Barclays?
A I do. I know I was on a call at some point
with Ihsan. Yeah. I did meet him over the phone.
Q Okay. And what do you recall of your
discussions that you had with representatives of
Barclays?
Page
A Well, again, I recall early on their
fervent desire to be part of the transaction, and,
you know, expressions of support and things like
that.
Q Okay. If you look down in the email, he
refers to an advocacy deck.
A I see that.
Q Do you know what that is a reference to?
A I don't. I opened it here when I saw that.
Q Do you recall ever having seen that deck?
A I don't.
Q Do you know who prepared the deck?
A I assume Barclays did.
Q Do you know what it was prepared for?
A I don't.
Q Do you know where Barclays got the
information it used for the deck?
A No.
Q Do you recall ever having any discussions
regarding the deck?
A I don't.
Q If you go about midway down the email, it
says: "Our offer comes with a very high degree of
certainty, it is fully funded and faces nominal
regulatory completion risk."
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Do you see that?
A I do.
Q Do you know what that's referring to?
A It appears that the "our" here would be X
Holdings, I think. Them saying that this is, I
think, a petition to the Twitter management team
saying that X Holdings offer to you comes with
certainty, fully funded, faces nominal regulatory -as if to insight them to want to accept the terms or
something like that.
Q Okay. And would you agree with his
statement that the offer that X Holdings made comes
with a high degree of certainty?
A In that we made the offer with the intent
to -- to follow through on it, yes, absolutely.
Based on correct publicly filed information, yes.
Q If you could turn to page 2 of the deck.
A Okay. I'm there.
Q The heading says: "Potential To Be 'Town
Square' For Community Engagement But Plagued by Bots
and Lack of Content Creator Engagement."
Do you see that?
A I do.
Q And then below it, there's a number of
quotes regarding issues with bots.
Page
used a term that would refer to the -- the things
that he was seeing in his Twitter feed.
Q And before the transaction with Twitter, do
you recall ever discussing that with Mr. Musk?
A No.
Q Okay. What role did you have with regard
to financing or helping obtain the financing of the
transaction, the debt finance?
A That was Morgan Stanley exclusively oversaw
that.
Q So you had no role?
A No.
Q Okay. Did Mr. Musk have a role with regard
to the debt financing?
A No. That was all Morgan Stanley.
Q Do you recall -A Oh, I'm sorry.
Q Do you recall having a call with the -- the
banks that were potentially going to provide
financing, on or about April 18th, to provide them
with an overview?
A I don't, no.
MR. SHANNON: Exhibit 29.
--(Birchall Exhibit 29 was marked for
Page
Do you see that?
A I do.
Q Have you ever seen those before?
A I don't recall ever having seen this deck.
Q Okay.
A But these -- your question, as specific to
these quotes, I don't recall having seen these.
Q Do you recall there being a fair amount of
knowledge as to potential bot problems at Twitter?
MR. SPIRO: Objection to form.
THE WITNESS: Yeah, I -- I remember Elon,
of course, calling attention to bots on his, you
know, user feed or whatever, but I -- I don't
specifically recall, like, a systemic claim or an
issue that I was aware of.
BY MR. SHANNON:
Q Okay. And when you say "Mr. Musk calling
attention to it," when do you recall Mr. Musk
calling attention to the issue of bots?
A Yeah, again, I -- I referred, you know,
earlier to I think there's a tweet or two that he
sent over time, not -- well, yeah, there have been
some in the recent past. But I'm saying back in
that time period or prior to this, where he, if I
recall, mentioned bots or -- or some -- or spam or
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identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 29, which is a
series of emails. I'm going to start at the end, if
that's helpful.
A Oh, okay. On the backside of the -Q On the backside.
A Okay.
Q And there's an email from an individual at
Morgan Stanley dated Monday, April 18th, 2022, to
others, and he says: We will be hosting a brief
call this evening (April 18) at 8:30 Eastern
Standard Time with the Principal's Family Office to
walk through the investment thesis...
A Yes.
Q Does that refresh your recollection as to
whether there was a call?
A It does actually, yes.
Q Okay. And do you recall participating on
that call?
A I did, yeah.
Q Did Mr. Musk participate as well?
A I don't believe he did.
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Q And what did you do to walk-through the
investment thesis and perspectives on the business?
A As I recall, most of the talking was done
by Morgan Stanley, and there was, again, a snippet
outlining kind of the -- the overarching vision for
the investment as it pertains to fixing Twitter.
Q And when you say there was "a snippet," was
that -- you mean what you presented?
A Yeah. Exactly. So I was a smaller portion
of whatever it is they were communicating to the -that day, and I think they wanted someone from X
Holdings on the call.
Q And did you prepare any materials for the
call?
A I did not.
Q If you turn to the first page, which is an
email from Bradley Diener at Barclays, do you know
who that is?
A No, I don't.
Q Okay. And he refers to a bank call where
the head of the Musk family office got on, and is
that you?
A I would assume so, yeah.
Q Okay. And he suggests you spoke for around
three minutes.
Page
Page
Do you see that?
A Yeah. That very well could be
approximately how long.
Q Okay. Do you recall getting any feedback
from that call?
A No.
Q And do you recall having any other calls
where you spoke to the potential debt investors?
A No, I don't.
Q Were there any calls where Mr. Musk spoke
to the potential debt investors?
A Not that I know of.
Q So you don't recall any further involvement
with the debt investors after the April 19th call?
A No.
--(Birchall Exhibit 30 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 30 -A Yeah.
Q -- which is a Project X Commitment Letter
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with certain banks.
Do you recall having ever seen this before?
A I don't specifically recall this.
Q Do you -- so you don't recall ever having
been asked to review or approve it?
A I -- I do not recall, yeah.
Q Okay. If you could turn to what is the
fourth page -A Yeah.
Q -- and there's a -- the first full
paragraph starts: "Without limiting your
obligations..."
Do you see that?
A I do see that.
Q And this is a letter, a commitment letter
that's addressed to X Holdings I and X Holdings
II -- correct? -- if you'd go to the first page.
A Yes.
Q And in that paragraph on page 4 that I was
referring to, if you look about seven lines down, it
states: "You agree actively to assist the Lead
Arrangers, until the earlier to occur of (i) a
Successful Syndication..."?
A Sorry. Okay. You're in the middle of that
paragraph?
Page
Q Yeah.
A Okay.
Q It's about seven lines down. It's the -A Okay. I see it.
Q It says: "You agree to actively assist the
Lead Arrangers until the earlier to occur of (i) a
Successful Syndication (as defined in the Fee
Letter) and (ii) 30 days after the Closing Date
(such earlier date, 'the Syndication Date')..."
Do you see that?
A I do see that, yeah.
Q Now, who at X1 Holdings [sic] was
responsible for actively assisting the lead
arrangers?
A Well, I'm -- again, as I mentioned, we were
leaning on Morgan Stanley exclusively to, you know,
put the debt syndicate together and, certainly, if
there was help needed, a document signed or
whatever, you know, the expectation was, is that
they would call upon me and/or Mr. Musk to address
whatever was needed.
Q And when you say whatever help was needed,
what do you mean? Sign documents?
A Yeah. Again, I -- I've never put a debt
deal together before. So I don't pretend to know
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Page
all that goes into doing that, but, yeah, just
whatever would be needed, including signing
documents.
Q Are you aware of anything else that would
be needed as far as help from X Holdings with regard
to the debt?
A Not that comes to mind.
Q Okay.
--(Birchall Exhibit 31 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 31, which is a
series of emails from the end of April to beginning
of May, and it's from Sean Lynch at Barclays.
Do you know who Mr. Lynch is?
A I do.
Q What was his role?
A As I understand it, he's part -- part of
their -- their senior member banking team.
Q And did you have communications with him
regularly with regard to the transaction?
Page
A What direction am I turning?
Q You're turning -- it's page -A Oh, I see it. Yeah, yeah. I see the next
one. Sorry.
Q We're moving forward.
A Yeah. Yeah.
Q And you see in the second bullet point, the
second sentence says: "No one seemed bothered by
the mDAU restatement."
Do you see that?
A I do see that.
Q Do you know what he was referring to?
A Well, I believe he must be referring to
Twitter's official restatement of mDAU.
Q Do you know what he meant by no one seemed
bothered by it?
A I don't.
Q Okay. And then above, Mr. Musk responds
"Got it" to the email below.
Do you know if Mr. Musk had
communications -- separate communications with
Mr. Lynch?
A I don't know.
Q Do you recall ever asking Mr. Lynch to
provide you with information?
Page
A As regularly as he would -- he tried to
reach out a lot. They were eager to be much more
involved than they were, and so to say regularly,
no. The answer is no. But they desired to have
regular communications.
Q What do you mean "they desired to have
regular communications"?
A Well, they just -- they wanted a bigger
role than what they had, and so I think they hoped
that by reaching out a lot, that would increase
their -- the potential of them having a role.
Q If you could turn to what is the -- the
email. It's on the -- the page that's Bates stamped
at the bottom 624.
A I'm there.
Q He's providing you with insight as to the
price of Twitter, the public -- public stock price.
A I see it.
Q Do you have an understanding as to why he
was doing that?
A Again, I think it was just part of his
effort to be helpful and be involved.
Q If you'd turn to the next page on
April 28th, 2022 at 3:50, you see another email from
him to you and Mr. Musk?
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A
No.
--(Birchall Exhibit 32 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 32, which is -appears to be a Microsoft chain of messages among
Morgan Stanley representatives, and on April 28th,
at the very top of the third page, Ms. Claassen says
I'm on -- writes: "I'm on with Jared."
Do you see that?
A I do see that.
Q And do you recall having a call with
Morgan Stanley on or about April 28th in the
afternoon?
A Yeah, I don't specifically have a
recollection of that call, but as mentioned, I spoke
with them, you know, probably several times a week
and at times possibly even daily.
Q And this was on the day of the mDAU recast.
Do you recall ever having discussions with
Morgan Stanley regarding the mDAU recast?
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A I don't recall specific verbiage, per se,
but I do recall it being mentioned.
Q When do you call -- recall it being
mentioned?
A Again, I -- I don't have a recollection of
a specific moment in time, but it was, you know,
picked up in the media pretty soon after, and it
would have been in response to that media coverage.
--(Birchall Exhibit 33 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 33, which is a
series of emails at Morgan Stanley, dated May 3rd
and May 4th, 2022. And in the bottom email, there's
a reference to: "Latest from conversation with EM
is that we are pushing to file the proxy on May 9."
Do you see that?
A I do see that.
Q Do you recall -- do you have an
understanding that the reference to EM is Elon Musk?
A I would think so, yes.
Page
Page
Q Okay. Do you recall there being a desire
to file the proxy on May 9th?
A I -- I don't specifically recall that.
Q Do you recall a desire to move up the
timing of the deal?
A I don't recall that.
Q Do you recall any discussions regarding
when the proxy would be filed or the timing of the
deal?
A Not specifically, I don't.
Q Do you know why there was a potential
pushing to file the proxy earlier on May 9th?
A No, I don't. I don't know.
Q Do you know who had communicated that to
Morgan Stanley?
A I -- I don't. I mean, obviously, he
references a conversation, but outside of that, I -I do not know that.
MR. SHANNON: We've been going, I guess,
for about an hour and a half. Good time to take a
break?
THE WITNESS: Sure.
THE VIDEOGRAPHER: We are going off the
record. The time is 3:24 p.m.
(Recess.)
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THE VIDEOGRAPHER: We're back on the
record. The time is 3:41 p.m.
--(Birchall Exhibit 34 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 34, which is a
series of emails, dated May 5th with Elon Musk, you,
and members of Morgan Stanley.
Do you have any doubt that you received
those emails?
A No.
Q Okay. And if you look toward the end,
there's an email from Mr. Musk -- actually, starting
at the very bottom of the page that's marked 116,
there's an email from Mr. Grimes regarding two
candidates for chief financial officer.
Do you see that?
A Yes, I do.
Q Did you have an understanding as to who
those two candidates were?
A I mean, just the information that
Michael Grimes had provided as far as their
Page
background and -- is that what you're asking?
Q One was Mr. O'Malley. Do you know who the
other one was?
A Yes. Kristina something or other.
Q Did you ever speak with them?
A Yes, I spoke with both of them.
Q And what -- when did you speak with them?
A I believe I had a call with each of them
prior to that -- the day that Elon invited them to
both join for, kind of, an in-person job training.
Q And what was the purpose of your call with
both of them?
A Just an initial vetting to see if they were
the type of people that could possibly work with
Elon.
Q Okay. And what type of person can possibly
work with Mr. Musk?
A Well, someone with evidence of excellence
who had operated at the top of their given
discipline and someone who, you know, has a very
high work ethic. And so, yeah, I was just, kind of,
trying to get understand -- understanding for their
backgrounds.
Q And what specifically were you and Mr. Musk
looking for them to do? What position would they
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fill?
A Like an interim CFO role.
Q And would that also be to help with
facilitating and closing the Twitter transaction
itself?
A Theoretically.
Q Okay. And when you say "theoretically,"
what was your understanding as to what role they
would have with regard to the Twitter transaction?
A That they would -- yeah, they would help
work towards that objective, yes.
Q And were they ever hired?
A No, neither of those two were hired.
Q Was anyone ever hired for that position?
A Hired is an interesting word. Bob Swan was
brought on for that position though he -- there
wasn't, like, an employment agreement, per se. So
I'm not sure what definition you're using for hired,
but he was -- he committed to engage in this role.
And after Bob, you know, Antonio Gracias
and -- and his team were engaged in that same
effort, so, yeah.
Q Okay. When was Bob Swan brought on?
A I don't remember the date of when he was
brought on.
Page
Page
Q Was it after you were having your
discussions with the two potential CFO candidates?
A Yes. Yeah.
Q And what exactly was Mr. Swan's position?
A Again, there weren't titles given, but you
could call it, like, an interim CFO type.
Q And who retained him?
A Again, there was no formal employment
agreement. He was -- it was more, kind of, a
handshake deal.
Q And what was the handshake deal?
A That we needed someone with his expertise
to come and help move things forward, and he agreed
to do that.
Q And how did you select Bob Swan?
A I believe the first recommendation -- or
his name first came up either from Michael Grimes or
Anthony Armstrong, and -- which led to multiple
conversations with Bob, which led to I think -- I
think a reference check with Mark Andreessen, and
then -- and then an initial call where -- almost,
kind of, like a kickoff call.
Q Do you recall when that kickoff call was?
A I don't recall the date of that, no.
Q And it's your understanding that you
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reached out to Mr. Swan after your efforts to hire
and the other potential CFO were not
successful?
A Yes. Though, they weren't the only ones
that we were speaking with, but, yes. The answer to
your question is yes.
Q Who else do you recall speaking with?
A Todd Morgenfeld.
Q Anyone else?
A Not that I recall.
Q And with this handshake deal with Mr. Swan,
was he paid anything?
A No, he was not.
Q Was there an understanding as to how he
would be paid?
A That topic had not specifically been
broached. I had certain assumptions, but that -you know, he was an operating partner of Andreessen
Horowitz and, certainly, very experienced in this
specific area, and I'd like -- you know, I can't
speak on behalf of Elon, or Bob for that matter, but
I'd like to think there was some understanding that
were he to do the job successfully, there would be
some form of compensation. But I -- I wasn't part
of a conversation where that was specifically
Page
broached.
Q So what was the handshake deal with
Mr. Swan?
A "We need you to help."
He said, "I'm ready to come help, but I am
an interim solution. This isn't what I'm looking to
do long term," and Elon said, "Perfect," because,
you know, he didn't want to commit to someone at
this point for a longer term. And so, he
immediately engaged with the Morgan Stanley team
and -- and with the Twitter team.
Q How long did Mr. Swan fill that role?
A I'm not sure exactly, but as I recall, a
few weeks.
Q Was anyone in that role before Mr. Swan?
A No.
Q And who was in the role after Mr. Swan?
A So I guess "the role" is -- is what I'm
struggling with because who was tapped to -- to kind
of take the baton from Bob was Antonio Gracias
and -- and his team, if you will.
Q When you say "his team," what do you mean?
A I believe there's one other of his business
associates that was specifically helping. It's
Brad, and I'm not sure the proper pronunciation of
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his last name. It starts with an S.
Q While Mr. Swan was working on the deal, did
he report to you or Mr. Musk?
A I mean, there were -- specifically, he
answered to Elon, but he did provide reporting to
both -- both of us.
Q Did you or Mr. Musk direct him as to what
to do?
A In some cases, yes.
Q Okay. Let's start with you. What did you
direct Mr. Swan to do?
A Well, again, there was that initial,
general discussion where it was outlined what he -what the expectation was.
And as far as what specifically I directed
Bob to do, it -- I think mostly my direct -- my
directives were mostly regarding logistics as it
pertained to updates and, you know, information
requests and things like that.
Q Is there anything specific that Mr. Musk
directed Mr. Swan to do?
A I believe the answer is yes, but I can't
think of specific things.
Q You said you had the initial conversation
with him regarding expectations. What -- what was
Page
Page
the expectation?
A We needed someone to help -- help us
consummate the transaction.
Q Help you consummate the transaction in what
regard?
A There were a lot of moving parts, and, you
know, he's been there, done that as a CFO, and I
certainly hadn't, and, you know, Elon was running
four other companies and needed someone, like, in
the day-to-day, minute-to-minute weeds, and -- and
to be his, you know, eyes and ears, and Bob was that
guy.
Q And what was your view as to the quality of
the work that Mr. Swan did in the period of time
that he was filling this role?
A I think -- well, first of all, I don't
pretend to be the -- to have the qualifications to
perfectly critique, you know, his quality of work.
But he seemed to -- up until he left the country and
was on vacation and, quite literally, phoning it in,
he seemed to be engaged and -- and doing good work.
And then there was a moment where -- one
particular analysis was where we were looking for,
you know, ultimately an answer on debt coverage that
it just didn't feel like it was as rigorous as it
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could have been, and that -- that was, I guess, my
one constructive criticism that I had. Warranted or
not, that was my feedback to him.
Q And during -- of the several-week period
that Mr. Swan was filling this role, how much of
that period was he, as you suggested, I believe you
said in Europe and nonresponsive?
A I believe there was -- well, there -- it
was meant to be a two- to three-week -- as I recall,
a two- to three-week trip and was -- I'm not saying
nonresponsive. I'm just -- like, he was -- and he
was very open about, you know, his plans to go on a
family vacation. But when you're dealing with
someone who -- who doesn't -- who rarely vacations
and when he does, it's like a one or two night type
thing, it's just hard to have a regular working
cadence that is seen as committed and rigorous.
And so I believe -- I don't know how far
into his trip he had been, but it was, at this
point, I believe in excess of a week when ultimately
Elon said -- or said something to the effect of, if
this is the approach you're going to take -- or if
you can look me in the face, you know, with a
straight face and -- and do this type of work, then
we're probably best parting ways. And Bob responded
Page
something to the effect of, "Correct. I'm looking
you straight in the face, and it's best to part
ways."
Q And just so I understand, so approximately
your recollection is over a week of the period of
time that he was serving in this role, Mr. Swan was
on a family vacation?
A Again, I recall it was going to be a
two- to three-week vacation and that he had been -had been in the midst -- bless you.
MR. SHANNON: Bless you.
THE WITNESS: -- in the midst of this
vacation over a week and -- and possibly even
getting to the second week. I just don't recall
exactly how that lined up, but -- but, yes.
BY MR. SHANNON:
Q And it was, you know, over a week, coming
into the second week when Mr. Musk, in essence,
terminated the relationship?
A Yes.
Q And you mentioned Mr. Gracias taking over
for Mr. Swan. Who is Mr. Gracias?
A He's one of the chief principals and I
think founders of Valor Capital [sic].
Q And had you ever dealt with him before?
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A I had.
Q In what capacity?
A He -- Valor is -- has been an investor in
several of Elon's companies, and I had helped with
the capital raises in multiple of Elon's companies
and corresponded with Antonio in that capacity.
Q And what experience does Mr. Gracias have
with regard to the role that you were envisioning
him filling, which was the one that Mr. Swan had
previously filled?
A I don't pretend to know the extent of that.
I know that he had I think an early career in
banking and, you know, M&A transactions, and, again,
the individual at his -- at Valor that he was
leaning on, Brad, and I apologize. I can't remember
his last name -- I believe is Valor's CFO, and so
has more of kind of that accountant type pedigree,
and so a combination of the two, Elon felt like, you
know, brought to the table what was needed.
Q Okay. Who determined to retain Mr. Gracias
and Valor for this position?
A Ultimately, that would have been Elon.
Q Okay. Did you consider any other persons
for it?
A Well, again, Todd was -- was, again, part
Page
Page
of the discussion, but I think at this point his -either the CEO had left or some -- something had
happened, and he was pretty head down focused on
things at his company and so -Q Who was it that proposed that Mr. Gracias
fill this role?
A I believe that was Elon.
Q And what were the terms of Mr. Gracias or
Valor's engagement?
A Again, I think it was similar to -- to the
Bob Swan arrangement, where Elon said, "We need
help, and you come do it?" And Antonio was willing
to answer the call and come help.
Q And how much was Mr. Gracias or Valor paid
in connection with the work they did?
A I'm -- I'm not aware of a financial
arrangement between Antonio and/or Valor beyond
benefitting as an investor or as a desired -- as
a -- yeah, as an investor.
Q Okay. When you say you're not aware of a
financial arrangement, you mean you're not aware of
him being paid for the work that he did?
A Oh, yeah, to my knowledge there was no
payment.
Q And how soon after Mr. Musk determined to
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terminate Mr. Swan did someone reach out to
Mr. Gracias to determine if he was available to do
it?
A I don't recall the -- the passage of time
between one and the other. I'm not sure.
Q You don't know how long that was?
A No.
Q Who reached out to Mr. Gracias to ask him
to -A I think it was Elon.
Q Did you have any role in reaching out to
Mr. Gracias?
A I did have a discussion and -- and did
provide the introduction to the banking team as I
recall.
Q What do you recall of your discussion with
Mr. Gracias and the introduction you just
referenced?
A Just, again, reiterating what I knew Elon
was -- was looking for him to -- to do and then -and then asking the -- asking the -- the banking
team to get him up to speed as quickly as possible.
Q And do you know what the banking team to
get -- did to get Mr. Gracias or Valor up to speed?
A I don't know all that they did other than,
Page
you know, share financial models and things like
that.
Q And after he agreed -- well, let's take a
step back.
Did Mr. Gracias and Valor agree to fill
this role?
A Yes.
Q After they did so, what's your
understanding as to what actions they took in this
capacity?
A Again, I know that they engaged the banking
team and -- and then just kind of took it from
there. I wasn't involved in their, you know,
process of bringing him up to speed.
Q Do you recall any interaction you had with
Mr. Gracias or Valor regarding what they were doing
in the role where they had replaced Mr. Swan?
A There -- there were definitely a few
different conversations where -- I don't
specifically recall, like, the subject matters
covered, but in their attempt to -- to get up to
speed.
Q And do you recall anything generally that
was said regarding your conversations with
Mr. Gracias and anyone at Valor?
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A I don't specifically recall what those
conversations were.
Q You mentioned there were conversations
about getting up to speed. Do you recall any
conversations you had with Mr. Gracias or Valor
regarding the work they were doing in the position
that was previously filled by Mr. Swan?
A Again, I -- I provided the information of
kind of what Bob had done for us or the role he had
filled and -- and what we had hoped, you know, they
could step in, and I think Elon had already primed
him on -- on that. But, you know, there were
several conversations with Antonio about what he was
seeing, what his concerns were, what, you know, his
view of the financial models were, but I -- you
know, I can't specifically recall that on this date,
you know, we discussed this topic.
Q Other than as an investor -- potentially
investor in Twitter, had there been any previous
social or personal relationships between Mr. Gracias
and Mr. Musk?
A Yeah. I think they're long-time friends.
Q What's your understanding of that
friendship?
A As far as, like, how they --
Page
Page
Q You said they're long-time friends. What's
the basis of that statement?
A I actually don't know how they first met,
but I -- from what I understand, they've known each
other for a long time, and, you know, Antonio has
been a long-term investor in several of Elon's
companies, and -- and, you know, I think various
social gatherings, you know, they've both been, you
know, present at times.
Q And how long did Mr. Gracias fill the role
as the interim CFO?
A Well, he -- he, in essence, is still
quasi-advising as we have -- you know, he's
basically said, you know, "We need, you know, a
specialist," if you will, and so they're filling in
and helping however needs be, but, you know, he's of
the opinion that a Bob Swan type is -- is someone
that, you know, we ultimately need to fill the role.
Q And when did he first raise that with you
or Mr. Musk?
A That was just in the recent week or two, as
he dug in and got up to speed and understood the
models.
Q Did he explain to you why he thinks that
you need someone like Bob Swan rather than
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Mr. Gracias or Valor to fill that role?
A I don't pretend to know all the reasons.
If -- you know, I recall him saying that there are
certainly a lot of complexities involved in a
transaction like this, and, you know, he's not -Antonio isn't in the trenches of day-to-day M&A.
Q Is he still advising you -A Yes.
Q -- with regard -- and in what capacity is
he doing that? What is he advising you of?
A Again, just on the general -- just, like,
general deal progress and structure.
Q What is the general deal progress and
structure?
A Well, we seem to be at a little bit of a
standstill.
Q I guess that's my question. Given the
standstill, what is he doing?
A I think he stands at the ready to, you
know, help as needed, and, you know, clearly the
legal proceedings have stalled, you know, things
moving forward, and so it's not like there's
ongoing, you know, meetings with him, where he's got
different opinions or models. It's just he -- he
stands at the ready to be helpful.
Page
Q And has that been true since Mr. Musk
terminated the merger agreement?
A As I understand it, yes.
Q Okay. So since that point in time, his
basically role has been to stand ready to move
forward if the transaction moves forward?
A Yeah, to be an adviser and helpful
wherever, however needed.
Q But, nonetheless, in the last few weeks he
suggested to you that you need someone more
qualified. Why did he do that?
A I think that he's always solving -- you
know, in his role as adviser, is trying to be
helpful.
Q Did he recommend anyone?
A I believe he -- let's see.
Yeah, I believe he mentioned he had some
thoughts on -- on some different firms that could be
potentially helpful.
Q Who did he recommend?
THE WITNESS: Am I able to ask you any
questions in this?
MR. SPIRO: (Shaking head.)
THE WITNESS: Okay. Sorry. Because he -let's see. He recommended -- or was part of
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recommending three different firms -- or to
consider, and I'm remembering one of the principals
at one of them, but not the name of the firm and not
remembering the name of the other firm, but
remembering the name of the third firm. So I don't
know how helpful that is.
BY MR. SHANNON:
Q And are you having communications with
those firms?
A There's been initial conversation with each
of those firms.
Q Why are you having initial conversations
with those firms given that the current transaction
is in litigation?
A Well, again, we -- our plan all along has
been -- well, from the get-go has been to prepare
ourselves in a way that -- to -- to execute the
transaction, and, obviously, there are a number of
ways the litigation could go, and I don't pretend to
know how that -- that will go.
--(Birchall Exhibit 35 was marked for
identification.)
--BY MR. SHANNON:
Page
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Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 35, which is an
email, or a series of emails, between you and
Ms. Claassen, dated May 5th, and May 6th.
A Yes.
Q Do you see that?
A I do.
Q Okay. And you see that she is sending you,
on the bottom email on the 5th, May 6th discussion
topics.
Do you see that?
A I do.
Q And what was your understanding of the
purpose of that document?
A These were proposed topics that we wanted
to cover in the meeting on site with Twitter.
Q Okay. And who came up with this list?
A I -- I mean, Kate, of course, is sending
this, but I think it's them memorializing the
collective group's, you know, questions, but -- but
it was the banking team -- oh, sorry -- it was the
banking team that created this list.
Q The banking team at Morgan Stanley?
A That's right.
Q Okay. And it refers to May 6th discussion
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topics. Was there to be a meeting on May 6th?
A That's right.
Q And did you attend that meeting?
A I did.
Q Where was the meeting?
A I believe the Twitter headquarters in
San Francisco.
Q And who else attended?
A Mr. Musk attended. There were some in
person, some virtual. But the Morgan Stanley
banking team attended; Kate, Anthony, and Michael.
The two perspective CFO candidates attended, the
ones that you referred to earlier.
Ned was there from Twitter, lawyers from
Twitter. Parag was out sick with COVID, but was
tuned in via -- via Zoom. I believe Alex attended
via Zoom, Alex Spiro, and a handful of other lawyers
as well.
Q Okay. But you and Mr. Musk were in person?
A We were.
Q Okay. And before we get to the meeting
itself, you responded to Ms. Claassen in the email
at the top: "Good outline, although Elon may blow
it up once there."
What do you mean by that?
Page
A Well, I mean, we could be as organized
and -- as -- as we want. We could propose something
specific to their team, but once there, he was
certainly going to take the meeting whatever
direction he felt impressed based on the answer
being given.
Q And you note under that: "He will also
specifically want to review all contracts where the
Company has obligations to make payments to third
party vendors."
Why did you add that?
A In some discussion, this had been one of
the topics that had been covered and him wanting to
know, like, what -- where the cash obligations of
the company were, the reoccurring cash obligations.
And I don't recall specifically if this was -- it
came from, you know, a discussion that we'd had.
Q How long was the meeting at Twitter on
May 6th?
A I don't recall specifically, but I believe
it was a couple hours.
Q And can you tell me what you recall of the
meeting?
A Well, there were a lot of pleasantries
exchanged. There were, you know, a number of
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different topics discussed. You know, Elon was
genuinely curious to, you know, learn a little bit
more about advertising among other things.
mDAU was touched on. Bot calculation was
touched on. Data center spend was touched on.
That's -- that's what I recall off the top
of my head.
Q Okay. You noted a number of things that
you recall being touched on. Do you recall any
specific statements that were made at the meeting
regarding any of those subjects?
A I -- you know, I think because of the
reaction, what is most clear to me was when the
question about bots was asked and Ned answered.
From what I recall, one of -- one of the two
prospective interim CFOs asked a question -broached the topic of bots, and Elon then said,
"Yeah. So explain how -- how is it that you get to
this -- how is it that you get to this number?"
And Ned explained the -- the process of
serving a hundred accounts each day and having
someone, kind of, eyeball those and confirm whether
or not it -- you know, their bot definition. And
Elon incredulously asked, "You mean to suggest this
is done manually?" And in -- you know, I -- you
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Page
know, there we were in San Francisco, you know, one
of the tech hubs of the world with a high-tech
company, with a software company, being told that
the -- that the data was -- for one of the most
important drivers of revenue was being derived by a
very manual and -- and mundane process, and so he
was -- he was quite shocked.
And Ned said, yes, and -- and as I recall,
Elon said, you know, "What's the criteria being used
and, you know, how is it that you determine whether
someone's a bot?"
And Ned said something to the effect of,
well, we've got, you know, protocol. I can -- you
know, I'll get it for you. Made it sound like, you
know, there was a one-pager sitting on his desk
somewhere that he could just go grab.
In fact, I think even one of the
Morgan Stanley bankers specifically asked, "Do you
have it here with you?" And he said, "No. No. No.
I'll get it for you." And he may have even
said, "I'll get it for you tomorrow." And the
meeting moved on.
There was an acknowledgment, I recall, by
Elon, and then Ned reinforced it that, you know,
Elon's Twitter experience was unique and there would
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naturally be a larger number of bots and spam on his
feed given his profile as a Twitter user.
Q Do you recall anything else that was
discussed at the meeting regarding bots or spam?
A I -- nothing else that comes to mind.
Q Do you recall, other than the conversation
you just talked about regarding bots and spam, any
other specific issues discussed?
A Again, there were -- there was a somewhat
lengthy discussion about how advertising online -how advertising revenue funds a social media
company. This is a new topic for Elon, and -- and
so he was genuinely interested. Twitter was
genuinely surprised that he was so interested and
even expressed that they would communicate this to
the team that, you know, Elon's not going to
abolish, you know, advertising because he had been
so publicly vocal, kind of, against marketing and -or traditional marketing and advertising for
Twitter -- or for Tesla. Sorry.
And -- and then like I said, there were -there were some -- somewhat in-depth questions
regarding data centers between Elon and Parag, and
then some discussions on mDAU, but I don't recall
specifics beyond that.
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Q Would you describe the meeting as cordial?
A I think the overarching feeling was that it
was cordial.
Q Would you have described it as productive?
A I think the net effect was that it was
productive.
Q You spoke a moment ago regarding the -what you recalled of the discussion relating to
bots. About how long do you recall that discussion
lasting during the meeting?
A As I recall, that was maybe five to ten
minutes.
Q Did you have any meeting or discussion with
Mr. Musk, or his advisors, after that May 6th
meeting to sort of discuss what occurred?
A I did.
Q When -- when did that occur?
A Well, I -- I left the building with Elon
and rode in his car to the airport and then rode in
his plane from San Francisco to Austin.
Q Was anyone else with you?
A Certainly there would have been security
with us. I mean, at least in our vicinity. I don't
believe there was -- I don't recall anyone else
being there beyond security.
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Q And what do you recall discussing with
Mr. Musk during that car ride and then plane ride
relating to Twitter?
A He was shocked at the answer that Ned had
given to the question about bots. He -- what I
think initiated as significant interest turned into
a concern thinking, "wow, my -- my spidey senses,
you know -- you know, are really" -- you know,
initially after their statement and, you know, it
causes one to question, you know, just I guess as a
side note, if I put together a spreadsheet with
hundreds of data points and one small cell is -- is
wrong, you know, he then rightfully questions
whether all the other cells are wrong.
And so even though the restatement by
Twitter was relatively, you know, minor in terms of
scale, it causes, you know, one to question, all
right, what else? What else?
And so, yeah, he was -- he was just
shocked, but held out hope because Ned had committed
to getting the -- you know, the information to him,
per the request in the meeting, and held out hope
that maybe, possibly, there was some -- something
that would cause him to not be as alarmed. But he
was -- he was very alarmed leaving that meeting for
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sure.
Q And during the entire car ride and plane
ride back to Austin, do you recall any issue you
discussed with Mr. Musk regarding Twitter other than
the bot issue you just described?
A Well, I mean, the bots ultimately -- like,
the reason that's significant, obviously, is -- is
ultimately mDAU, which, you know, it leads to the
bigger question of how many users can you actually
monetize. And -- and so certainly that was part of
the discussion, you know, who -- like, what
percentage of these numbers that we were being given
can actually buy a toaster.
And the answers given caused great, you
know, questions -- or caused great concern and -and more questions about how many people could
actually buy a toaster. How many Twitter users
could buy a toaster. And -- and that's ultimately
what drives the revenue model.
So -- so there was, you know, relating the
bots to mDAU and the revenue model and -- but, I
mean, it's not as though every minute of our drive
and our flight back was focused on the meeting, per
se. There were plenty of other topics covered.
Q But other than the ones you just described,
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you don't -- do you recall any others relating to
Twitter that were discussed either during the car
ride or the plane ride?
A I don't specifically recall additional
topics. Those were definitely the most salient
ones.
Q Did Mr. Musk give you any assignment or ask
you to do anything with regard to those topics?
A Well, the assignment was, and as I
understood it, the banking team fulfilled it, was to
immediately and formally request that the
information Ned had committed to providing be -- be
provided ASAP.
Q Okay. Anything else?
A No, not that I can remember.
MR. SHANNON: Where are we? Exhibit 37?
THE COURT REPORTER: No. Exhibit 36.
--(Birchall Exhibit 36 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 36, which is a
series of texts that were produced in this case from
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Mr. Musk, and I'd ask you to refer to the ones that
are toward the bottom and specifically these are
with Michael Grimes.
Do you see that, starting with the one
5/8/2022?
A I do see that, yeah.
Q Okay. And that says -- and it's at
17:54:10. It says: "Let's slow down just a few
days."
Do you see that?
A I do see that, yes.
Q And that's with Michael Grimes, and he was
with Morgan Stanley, right?
A Correct.
Q And what was his role at Morgan Stanley?
A A senior banker.
Q Okay. And then it continues on: "Putin's
speech tomorrow is extremely important. It won't
make sense to buy Twitter if we're heading into
WW3."
Do you see that?
A I do see that.
Q Do you recall Mr. Musk ever raising with
you concern about buying Twitter given the potential
situation in the Ukraine?
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A No, I don't recall that.
Q Were you aware he had sent these texts to
the banker at Morgan Stanley?
A No.
Q And was Mr. Musk the person who was giving
direction to Morgan Stanley as to how to proceed?
A Well, I wasn't aware of this -- you know,
these discussions, per se, but I think there was a
combination ultimately of -- of providing
Morgan Stanley with information, but -- but Elon
ultimately was, I think, the final say on -- on
everything.
Q So he's the final say on how quickly the
deal proceeds and whether it's slowed down or not,
correct?
A Yeah. I think that's fair.
Q And then if you look at -- at the top of
the second page, and this is on May 8th, and it's a
carryover. So you can look at the others for
context if it helps.
The very top email says: "If that number
is more than 50 percent or lower, which is what I
would guess based on my feed, then they have" -"then they have been fundamentally misrepresenting
the value of Twitter to advertisers and investors."
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Page
Do you know what that's a reference to?
A Well, it appears to be referencing mDAU
if -- because he's, prior to that, referencing
monetizable users.
Q And do you know what he's saying, when he
says: Based on -- "What I would guess based on my
feed."
Do you see that at the top?
A "What I would guess based on my feed."
Yes. So as mentioned before, he -- you
know, his personal experience on Twitter is his
personal experience and, you know, to he's
referencing what he's seeing in his own Twitter
feed.
Q And I believe you suggested at the May 6th
meeting there was a suggestion that given Mr. Musk's
position on Twitter, that his experience may be
different than others.
What do you recall in that regard?
A Just exactly what you said, that that
was -- and I think he realizes that. I -- the -but I think he's also realizing that it's not -that there's some -- it's somewhere -- there's
somewhere in between, you know, what he's seeing,
which might be on the extreme of the scale, and what
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is being purported and ultimately not supported per
information provided to us by Twitter. And so
he's -- again, I don't -- I can't, like, get into
his head here, but that's what it appears that he's
seeing.
Q And when you say what he's seeing which may
be the extreme on the scale, what do you mean by
that?
A Well, again, he's referencing his Twitter
feed -- right? -- and his Twitter feed's unique.
Q And the next text from Mr. Musk to
Mr. Grimes states: "To be...clear, this deal moves
forward if it passes due diligence, but obviously
not if there are not massive gaping issues."
Did Mr. Musk ever suggest to you that the
deal would move forward only if it passes due
diligence?
A Well, I think -- I think his use of that
word is -- is -- and, again, I can't speculate, but
I believe his use in this moment of that term is not
referencing the deal docs, per se, but referencing,
you know, that either there is fraud in publicly
stated documents or there isn't, and the diligence
that we had done involved publicly traded -- or
sorry -- publicly stated documents and financials,
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and -- and so I believe that's the diligence that
he's referring to there.
Q Okay. And when you say the diligence you
had done, what do you mean?
A Well, going back to our previous
conversations. I can't speak to all of the
diligence that Elon had done, but we certainly
leaned heavily on the banking team to provide us
with data that came directly from publicly filed
statements.
MR. SHANNON: 65, please.
--(Birchall Exhibit 37 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 37, which is a
series of emails dated, at least the later ones,
May 8th and May 9th, and I'm interested in those.
But starting on the top of the second page,
you'll see there's an email from Elon Musk to Sean
Lynch at Barclays.
Do you see that?
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A I see that.
Q Okay. And you are copied on that, correct?
A Right. I believe so, yeah. Yes, I am.
Q And Mr. Musk notes: "A serious concern
coming out of the diligence meeting was Twitter's
publicly stated calculation that only 5% of active
users are bots or multiple accounts for one person."
Do you see that?
A I do.
Q Okay. And was that the concern he raised
with you when you were in the car and on the plane?
Is that -A Yeah, that was definitely part of it.
Q And then if you look, there's a response
from Mr. Ihsan at Barclays, which is May 9th at
10:10.
A Yeah, I'm looking at that.
Q And he says: "I'm sure you've been
considering it, and may have discussed some options
with your counsel, but this could present you with
an opportunity to revisit the [sic] price."
Do you recall that?
A I do vaguely, yeah.
Q Okay. And do you recall any discussions
with Barclays or anyone else about using this as an
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Page
opportunity to revisit the price?
A I don't.
Q You respond to Mr. Ihsan and others to say:
"Please allow me to suggest that further
thoughts/ideas be discussed via phone with counsel
involved."
Why did you send that email?
A Best practices.
Q And why is that best practices?
A Well, counsel over time has tried to help
me understand that, and so, you know, when you -when there are sensitive topics being discussed,
it's always best to involve counsel.
Q And why would you have it over the phone?
A Well, the -- the first obvious reason is
that written communication isn't always the clearest
to understand sentiment and whatnot in it, but also,
you know, again, when you are discussing sensitive
topics, sometimes, you know, just best practices it
makes the most sense to do that via phone rather
than via email.
Q And that way there won't be a written
record of it?
A In some cases, yeah.
MR. SHANNON: 66.
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Exhibit 38.
--(Birchall Exhibit 38 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Exhibit No. 38, which is an email to
Mr. Musk from Sean Lynch, who we talked about
previously, and you and others.
A Yeah.
Q He notes: "Very ugly day out there.
Strain is being felt beyond equities and into credit
where the [sic] backdrop has become more challenging
to price and allocate risk."
Do you see that?
A I do.
Q Around this time, were you following the
market and seeing how it was proceeding and how it
might affect the Twitter deal?
A Definitely following the market, and I'm
sure there were thoughts, you know, as it pertained
to Twitter as well.
Q And could it affect both your ability to
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obtain debt and equity financing?
A I guess potentially if -- if one of the
debt providers chose to break their contract and/or
an equity commitment.
Q Okay. But how about soliciting equity
commitments? Could it impact that?
A Oh, theoretically, it definitely could.
Q Could it also impact what you perceive to
be the value of Twitter?
A The weakness in the macroeconomic
environment?
Q Yeah.
A I -- I mean, again, we were looking out
based on some macro changes at the company and not
all just macro, but out the next three to five
years, and, you know, interim blips in the market or
specific company, Tesla being the one that we most
regularly experience this with, are just that,
they're blips, and we don't, you know, draw
long-term conclusions. It doesn't change Elon's
long-term strategy with those companies.
MR. SHANNON: Exhibit 38.
THE COURT REPORTER: This is Exhibit 39.
MR. SHANNON: Oh, Exhibit 39. Thanks.
---
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(Birchall Exhibit 39 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 39, which is a
series of emails, the latest of which, and the ones
I'm going to focus on, are May 13th, and they
involve Mr. Musk, Mr. Lynch, you, and others.
Do you see those?
A Mm-hmm. I do.
Q And you have no reason to doubt that you
sent or received those emails?
A No.
Q At the top of the second page is an email
from Mr. Musk. He says: "One practically has to
commit murder on camera to get fired at Twitter, so
their performance must be pretty bad!"
Do you see that?
A I do.
Q Do you know what that's referring to?
A I think it's a response to his prior email
here where he references reports of people leaving
Twitter, but that's what I assume that refers to.
Page
Page
Q Okay. Did you ever inquire who was leaving
Twitter?
A I -- I didn't ask Sean who he was referring
to here.
Q Do you know if any effort was made to
determine who he was referring to?
MR. SPIRO: Objection to form.
THE WITNESS: I -- I don't know.
BY MR. SHANNON:
Q Okay. And then in that same email,
Mr. Musk states: "I suspect Twitter is looking at
very bad numbers this quarter."
Do you see that?
A I do.
Q Do you know what he means by that?
A I -- I don't, other than what it says.
Q Do you have an understanding as to what his
basis was for suspecting that Twitter was looking at
very bad numbers?
A I don't.
Q Did you ever inquire?
A No, I didn't.
Q Then -- did he ever discuss with you what
he expected Twitter's performance to be that
quarter?
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A No.
Q Did you inquire ever what he meant by that?
A I didn't.
Q If you look -A I mean, I -- it seems pretty -- again, I
just -- it's him suspecting that there could be bad
numbers. That -- I don't know. Like, it seems
pretty direct what he's meant by that.
Q If you turn to the first page, which is the
email from -(Phone ringing.)
THE WITNESS: My apologies. Let me turn
that off.
BY MR. SHANNON:
Q If you need to take it -A No, I don't need to take it. I thought I
had it off and I didn't.
It's now off.
Q There's an email on the first page from
Mr. Lynch to Mr. Musk, you, and others, and the
second line says: "Is there a renewed focus at
target on speed and urgency in which they are
sharing info? Is the company giving monthly
financials?"
Do you see that?
Page
A I do see that.
Q Do you know what he's referring to as to a
renewed focus on speed and urgency?
A I don't know what he's referring to. He
seems to be, you know, referring to a slower cadence
for providing data and then asking if there has been
an improvement in that.
Q Do you recall any communications with
Mr. Lynch regarding information that Twitter was
providing to you or your advisors?
A I don't.
MR. SHANNON: 142.
Okay. That's fine.
BY MR. SHANNON:
Q Mr. Birchall, you testified previously that
Morgan Stanley led the process as far as soliciting
equity investors, correct?
A That's right.
Q Did they provide you with updates regarding
where they stood?
A They did.
Q Was there a specific target that you were
seeking with regard to the amount of the equity
participation?
A Kind of Phase 1 of -- of -- as I recall,
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the Phase 1 effort was fielding all inbound calls,
and there's, you know, kind of a never-ending line
of people that want to be involved in an Elon deal,
and these people have been lined up at SpaceX and
The Boring Company for years. And when the Twitter
deal was announced, the line shifted to Twitter, and
so most of those initial commits were just people
that -- it was fielding inbound calls.
Q And my question may not have been clear.
Was there a specific, for example, amount that X
Holdings and Mr. Musk were seeking as far as the
amount of equity co-investment?
A Yeah, I don't recall us putting a number on
that. I guess where I was trying to go with my
answer was that we were in the middle of that
process and would -- would still be in the middle of
that process, were we not in our current
circumstance. And so I think it was just a part of
a process that was ongoing that we saw continuing to
grow to some degree, but didn't actually put a
specific target on it.
Q Okay. And when you say you were in the
middle of that process, what do you mean?
A Well, again, we were fielding all of these
commitments, and when the -- you know, when the
Page
Page
issue of termination, when the issue of questioning
data, when the lack of cooperation in providing data
that we had requested became a serious issue and
definitely slowed down the -- our ability to
continue to push that, you know, ball forward.
Q When did that first start to slow down?
MR. SPIRO: Objection to form.
THE WITNESS: Yeah, so, again, it was -- as
you can see by the emails, it -- well, you would see
by the emails, like, the -- the volume of referrals
over to the banking team and things like that, and
so I -- I think the -- the email traffic would tell
that story.
BY MR. SHANNON:
Q What's your recollection as to when it
started to slow down?
A I -- frankly, I just don't recall when that
would have been. It was us getting through that
initial wave of -- you know, of those people. And I
don't recall exactly when it was, but when it became
apparent that we weren't going to be given -- or we
weren't being given critical information that drove
the revenue model that ultimately determined our
ability to service debt and everything.
Q And -- well, when did it become apparent to
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you that you were not being given information?
MR. SPIRO: Objection to form.
THE WITNESS: Well, yeah, I mean that -that became apparent shortly after the -- the
in-person meeting where Ned had committed in person
to -- that was the first sign that I can recall
where he'd committed in person to provide certain
information that never materialized.
BY MR. SHANNON:
Q And when you say "the in-person meeting,"
you mean the May 6th meeting?
A May 6th.
Q And what information did he commit to
provide, in your recollection, that never
materialized?
A Well, specifically was the -- the exact
process that was used by the human reviewer to
quantify bots, and there were several attempts at,
kind of, dancing around it and big picture
conceptualizing it, but never was the specific
criteria provided and -- and -- as well as the data
that our data scientists needed to be able to do the
work that they were doing.
Q What work were they doing?
A Analyzing data. Massive -- or attempting
Page
to analyze massive amounts of data.
Q For what purpose?
A To, you know, verify claims that had been
made by Twitter.
Q What claims that had been made by Twitter?
A The 5 percent bots.
Q Any other claims that had been made by
Twitter?
A I -- that was the specific one that was
being addressed.
Q Okay. And when you say the 5 percent bot,
what specific claim are you referring to?
A So they've repeatedly claimed that there
are 5 percent or less bots on there.
Q Okay. And are you talking about the
specific SEC disclosure?
A Yes.
Q Okay. Any other disclosures you're
referring to?
A No, that's the main one that I'm referring
to.
MR. SHANNON: Exhibit 40.
--(Birchall Exhibit 40 was marked for
identification.)
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--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 40, which is an
email from Kate Claassen to Mr. Musk and you and
others, enclosing certain information, and it's
dated April 29th, 2022.
Do you recall receiving this?
A Generally, yes, but I don't recall it in
detail.
Q Okay. And attached to it is a deck that is
called "Unlock Twitter's Extraordinary Potential."
Do you see that?
A I see that, yeah.
Q Do you recall having seen that before?
A Before receiving this?
Q No, before I just showed it to you now.
A Oh, yes, I believe so.
Q And was that a document that Morgan Stanley
had prepared?
A Yes.
Q Okay. And what was your understanding of
the purpose of the document?
A Just to put in presentation form Elon's
Page
Page
vision.
Q And were they using it for any other
purpose, such as soliciting equity investors?
A I wasn't privy to -- once I passed them on
to -- passed the investors on to go through the NDA
and financial model discussions, I -- I wasn't privy
to those conversations.
Q Do you recall having any communications
with Morgan Stanley, or anyone else, regarding the
deck that is attached as Exhibit 142?
A If I recall correctly, maybe -- I don't
recall discussions specifically with Morgan Stanley
on this. I was trying to recall when -- the first
time I saw this, but I just can't quite -Q Do you recall discussions with anyone
regarding it?
A This was potentially shared in our meeting
when they came to Texas, but I -- I'm not certain.
Q The meeting when Morgan Stanley came to
Texas?
A Yeah.
Q Do you mean the April 20th meeting?
A Yeah, or some portion of this or a version
of this I believe was -- was shared.
MR. SHANNON: Exhibit 41.
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--(Birchall Exhibit 41 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Did you -- actually, we'll start out,
Mr. Birchall, you've been handed what's been marked
as Birchall Exhibit 41, which are a series of emails
I'll note that you are not on.
Do you recall ever having seen these?
A No.
Q They were produced in the litigation.
A No.
Q The first email is from someone named
Justin Kahl. Do you know who that is?
A I don't.
Q And he talks about "sharing notes and
presentation this morning from the meeting with
Morgan Stanley on Twitter."
Do you see that?
A I do see that.
Q Okay. Was it your understanding that
Morgan Stanley was meeting with potential investors
relating to Twitter?
Page
A Yes.
Q And did you review and approve the
presentations decks that they were using?
A Again, I believe that the presentations
and -- and decks that were being presented were -- a
version of them at least -- were -- were shared in
that meeting in -- on -- I think you said it was
April 20th in Austin.
Q And did you -- with regard to at least the
decks that Morgan Stanley had prepared and intended
to share with potential investors that you saw, did
you raise any objections or propose any changes to
those decks?
A I don't recall.
Q Do you recall Mr. Musk raising any
objections or proposing any changes to those decks?
A I do not recall.
Q Do you recall ever participating in calls
with potential investors regarding Twitter and what
the plans were for Twitter?
A Yes, but, again, as previously mentioned, I
was kind of a conduit to a pass-off to the bankers,
and so my -- any discussion that I had with the -with the bankers was -- I'm sorry -- with -- with
the potential investors was a very high-level kind
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of mission-oriented discussion and -- and then would
pass them for -- you know, pass them to
Morgan Stanley.
Q Well, and my question may not have been
clear.
When Morgan Stanley made presentations to
potential investors, whether at a road show or
otherwise -A Mm-hmm.
Q -- did you ever participate in that?
A Oh, there was a call, like, a
back-to-back-to-back Zoom call with potential
institutional investor enrollees that -- well, but
technically that wasn't -- that wasn't the
Morgan Stanley presentation. So I believe the
answer to your question is no.
Q Well, when you say it wasn't a
Morgan Stanley presentation, who was it?
A That was just Elon sharing the vision of -of -- his vision of what Twitter was.
Q And who did he share that with?
A Institutional investors.
Q How was that arranged?
A I believe that the -- that the
Morgan Stanley team stacked up interested investors
Page
Page
in a Zoom call format.
Q And do you recall what institutional
investors participated in that?
A I recall a few of them, but I'm sure
there's a list here somewhere of who would have been
there.
Q Who do you recall?
A Well, you know,
was part of that.
institutional group was a part of
that. I believe
and his team were a
part of that -who is an
institutional investor through
, and
there were a handful of others.
Q And did -- Morgan Stanley, were they on the
calls?
A I don't believe they were.
Q Was there any presentation, like,
materials?
A No.
Q And what do you recall Mr. Musk saying
during these calls as to his vision?
A I mean, as outlined in, you know, all the
materials that we viewed, his big picture vision on
preserving democracy and some of the fixed Twitter
talking points about spam and bots and subscription
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platform and entertainment destination, more
friendly for content creators. All those things.
Q And do you recall during any of those calls
them making any of these potential investors
committing to invest?
A No.
Q And were all the calls essentially similar
where Mr. Musk would make a similar presentation?
A Yeah.
Q Did you make any presentation or say
anything during these calls?
A I might have said a few words, but
almost -- almost -- said very little, maybe a couple
clarifying comments.
--(Birchall Exhibit 42 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 42, which is a
document entitled "Twitter Banker Management
Meetings, 5/1/22."
A Mm-hmm.
Page
Q Did you participate in any twinker -Twitter banker and management meetings?
A No, I don't believe so.
Q Okay. Do you recall participating in one
dated 5/1/22?
A I don't recall. When you say -- oh,
Twitter -- okay. Sorry.
The Twitter management team and the Twitter
banking team. Actually, I believe I did dial in to
one of them for a portion of one of the calls.
Q And what was your understanding of the
nature of the calls?
A As I understood it, it was just an ongoing
update in an effort to move the deal forward.
Q And was your understanding that the bankers
and Twitter management participated in meetings with
potential investors?
A I don't think -- I just want to clarify.
When you say "management," are you referring to
Twitter management, or are you referring to
management of X Holdings? Who are you -Q Is there management of X Holdings?
A Not really but, yeah.
Q Okay.
A So you're referring to Twitter
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management -Q Yes.
A -- executives?
Q Yes.
A Yeah. So I don't think there was -- I
don't know of a joint conversation that involved the
Morgan Stanley banking team and Twitter management
and a potential investor. I don't know that.
Q You said you called in at least to one call
that was between Morgan Stanley and Twitter
management. That was your understanding?
A Yeah, I believe so.
Q Okay. And do you recall what was discussed
on that phone call?
A I don't specifically recall that -- that
one. I think it was the first one that they had
scheduled. And I don't specifically recall that.
Q And do you recall ever having seen this
document that's been marked as Birchall Exhibit 42?
A I don't recall having seen this.
--(Birchall Exhibit 43 was marked for
identification.)
--THE WITNESS: Thank you.
Page
Page
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 43, which is an
email from
to others at
.
Do you see that?
A I see that.
Q Do you know what
is?
A I do.
Q What is
?
A It's a venture capital, private equity, you
know, firm.
Q Okay. And he talks about a meeting on
5/1/22 with -- or a call with Elon Musk and
Jared Birchall.
Do you remember having a call with them?
A I don't specifically recall this specific
call, but, I mean, there was a lineup of calls that
were had. So -Q Okay. And so do you think the prior email,
which refers to a 5/1 meeting with
refers to the
meeting that you and Mr. Musk had with them on
5/1/22?
A This is a
file. Is that what you're
saying?
Q Yes. If you look, it's
on the bottom.
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A Oh, it very well looks like it frankly is.
Q Okay. And do you know who
is?
A I don't. I don't know him.
Q And -- and was the -- the meeting with
on 5 -- or May 1, 2022, was that part of soliciting
co-investors?
A I -- I -- yeah. Again, I don't have a
specific recollection of this specific meeting, but
there were many meetings that -- that were had. So
I -- I don't doubt that there was a meeting.
Q And your recollection -- your recollection
is at these meetings, to the extent it was you and
Mr. Musk, that you would have said little, if
anything?
A Yeah. On a comparative basis, it was
primarily Elon speaking.
Q Okay. And how long did these meetings
typically last?
A Oh, as I recall, they were, you know,
anywhere from 20 to 60 minutes.
Q And do you have any specific recollection
as to what was said at any of these meetings?
MR. SPIRO: Objection to form.
THE WITNESS: Again, I -- I do recall the
specific outline that Elon had for, like, his plan
Page
and vision, and that was commonly shared across each
of these meetings.
BY MR. SHANNON:
Q Okay. And -- but his outline was the oral
that you talked about before. There wasn't a
written outline, correct?
A Yeah. It was just his vision of what he
was going to do with Twitter.
Q Had anyone drafted talking points for him
regarding it?
A Again, I -- certainly, there was the prior
exhibit where I think that was relating to those
institutional calls, but I don't recall.
Q Okay. And I believe your testimony before
was Mr. Musk, among other things, would address how
he planned to fix Twitter, correct?
A That was definitely part of the
conversation.
Q And one of the things he would tell people
he planned to fix was the issue of spam and bots,
correct?
A Yeah.
Q And do you recall that being discussed on
all the calls with potential investors?
A It would have most likely been a talking
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point on every call.
Q Okay. Do you recall any of the investors
having questions regarding that?
A I don't specifically recall.
Q Do you recall any questions any of the
investors had during any of these calls?
A I mean, I don't remember the specific
wording of -- of those, but, you know, there were
questions about each of these topics that -- that
were discussed, but -- but I can't regurgitate
the -- the verbiage of a specific question asked.
MR. SHANNON: We've been going for a while.
Why don't we take a short break.
THE WITNESS: Okay.
THE VIDEOGRAPHER: We are going off the
record. The time is 5:08 p.m.
(Recess.)
THE VIDEOGRAPHER: The time is 5:20 p.m.
We're back on the record.
BY MR. SHANNON:
Q Mr. Birchall, can you turn back to what is
Exhibit No. 3? It is a series of texts from you.
A Oh, Exhibit 3 is this large document?
Q No. No. Oh, I'm sorry. Exhibit 5.
A Exhibit 5.
Page
Page
I'm there.
Q If you could turn to page -- well, it's -unfortunately, there aren't page numbers on this,
but it's -- actually, there are. Page 6.
A Okay. I'm there.
Q And then at the top, there's an outgoing at
May 3rd at 21:41.
Do you see that?
A Twenty -- sorry. What was the -Q At 21:41.
A 21:41, I see that.
Q Okay. And it reads: "I had a good intro
call with PWP. Jamie - it may be helpful to have
you join a more critical call with a few people on
the banking team to stress test their thinking."
A Yes.
Q Do you see that?
And you're sending that to Antonio Gracias.
What was his role at this point in time?
A Again, I think Antonio has just been a
long-time friend, advisor, confidant, and -- and so
I was just piping in trying to be helpful. Jamie
Star was someone that he knew that -- with, I think,
experience in transactions like this and was just
trying to -- trying to be helpful with people that
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could provide information.
Q Well, you say you had a good introduction
call with PWP.
A Yes.
Q What's PWP?
A That is -- and that was one of the firms
that I couldn't remember the name of before.
Q Perella Weinberg?
A Perella Weinberg, that's who it was, yes.
Q And why were you having an introductory
call with Perella Weinberg?
A Again, this was at the recommendation of
Antonio just to have some independent team stress
test the models and -- yeah. That was basically it.
Q And I'm sorry, you said Jamie Star is who?
A An acquaintance of Antonio's, who he
thought could be potentially helpful.
Q And did you have any discussions with
Mr. Star?
A I believe there was one phone conversation.
Q What do you recall of that?
A As I recall, he was sharing his thoughts
about -- just about the, you know, Twitter financial
models that -- per Twitter, like, about -- as I
recall, it was him providing his insight based on
Page
what he saw the size of the transaction to be and
the -- you know, looking into Twitter filings and
providing commentary and insight on, kind of, the
path forward and potential hurdles and things like
that.
Q Who was on the introductory call with
Perella Weinberg?
A So I believe Antonio would have been on
that call, although I'm not certain. A guy by the
name of, I believe, Bob Green, who's, I think, one
of the senior partners there.
Q Maybe Bob Steel?
A Steel, there it is. Sorry. Bob Steel was
on that call.
Q Okay. And did you have any further
communications with Perella Weinberg?
A I did not.
Q Did they ever get retained?
A They did not.
Q So you think you had the introductory call
and there was no further communications with them?
A I think there were a few follow-up texts
where they sent a note asking status or, you know,
something like that, but nothing substantive. Them
just asking where we stood or whether or not we
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needed their help, basically.
Q Do you know if Mr. Musk ever spoke with
them?
A I don't.
Q Did he ever suggest to you that he had?
A I don't, but -- though, there's a chance
that Antonio mentioned that maybe they reached out
to him as well. I can't -- I can't remember.
Q Did he ever mention Perella Weinberg to
you, Mr. Musk?
A I -- I don't recall him proactively coming
to me with that. Though I would have discussed -let's see. I would have discussed how my call went,
and I think Antonio did as well.
Q If you look further down on that same
page -A Mm-hmm.
Q -- at 18:01 on May 4th, you'll see a
message: "From
."
Do you see that?
A Yeah, I do see that.
Q Okay. "Got message from
up to
$1b.'" Which I assume is billion.
in board meeting until late
afternoon.
suggested pencil in $1b," and then
Page
Page
you respond: "Whoa, so he backed off 2?"
Do you know what that's referring to?
A Yeah, I think
is his, like, either his
head of finance or his family office head.
Q Just -- not to interrupt, but his family -is that
?
A Yes, I believe so.
Q Okay. And -- okay. I'm sorry to interrupt
you.
A Yeah, no problem.
So I think my initial understanding was
that
was going to put two in and that he -his, kind of, final confirmation was one.
Q Do you recall any other discussions
relating to that?
A I don't.
--(Birchall Exhibit 44 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 44, which are a
series of emails, dated May 10th and 11th. There is
an email on the first page from you on May 10th at
JANE ROSE REPORTING
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3:08.
Do you see that?
A Yes.
Q Okay. And below that, it says -- the only
thing that's not redacted is: "Perella reached
out."
Do you see that?
A Oh, yes, from Mike Ringler.
Q At Skadden to you?
A Mm-hmm.
Q And you respond: "OK to begin the
conversation about engagement."
A I see that.
Q And: "We need to be specific on what we
need from them."
So did you give the okay to your counsel to
begin the conversation about engaging?
A Yes. The key word there, "begin."
Q Okay. And do you know what occurred with
regard to that conversation?
MR. SPIRO: Obviously, do not reveal
privileged communications, but without doing that,
you can answer.
THE WITNESS: Yeah, I -- I -- as I recall,
the ultimate determination there was that -- that we
Page
didn't need what they were offering, basically.
BY MR. SHANNON:
Q What was your understanding as to what they
were offering?
A Well, they were, like, a whole other
investment bank that wanted to do a lot of
duplication of what we were getting from
Morgan Stanley, and as I recall, that was -- you
know, that was the purpose of us deciding not to
move forward with them.
Q And do you recall if there were any
communications with Perella after this date, which
is May 11th?
A Again, I -- I think there may have been a
message or two where they -- where they were
checking in with me, but I -- I don't recall of any
specific messages post these times.
MR. SHANNON: 80.
--(Birchall Exhibit 45 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
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been marked as Birchall Exhibit 45, which is an
email dated May 8th, 2022 from
and -from
to you and to Mr. Musk and
Mr. Grimes.
Do you recall receiving this?
A I do generally, yes.
Q And what was your understanding as to why
was sending this?
A This was kind of the -- the next stage of
their unique job interview, where Stage 1 was
showing up for that Twitter meeting; Stage 2 was
providing a write-up of their thoughts.
Q Was there a Stage 3?
A Ultimately, no.
Q Okay. Who made the determination not to
hire them?
A Elon.
Q Do you know why he determined not to hire
them?
A Not very specifically. Just didn't feel
like it was the right fit.
Q So it's your understanding that some time
after this, which is May 8th, that Mr. Swan was
brought on board to help?
A Yes.
Page
Page
Q
Did you review the analysis that
provided?
A I don't specifically remember it, but
I'm -- I'm sure I -- I read it at some point.
Q Did you have any reaction or views
regarding his analysis?
A Not that I recall.
Q Do you recall discussing his analysis with
Mr. Musk or anyone else?
A I don't specifically recall that, no.
Q Who communicated to
that he
would not be getting the position?
A I don't recall ultimately who delivered
that message. It -- it may have been me. It may
have been Grimes -- Michael Grimes, just in an
indirect way. I'm not sure.
Q Well, did, at some point, Mr. Musk tell you
that -- to communicate to
that he was
not getting the position?
A At some point that conversation would
have -- would have happened.
Q Did you have an understanding as to how
long after this May 8th write-up was provided that
Mr. Musk made that decision?
A No, I don't.
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Q Okay. How about with regard to the other
candidate? When did he make the decision not to
hire her?
A Similar. I -- I don't recall when that
kind of, final decision was made.
Q Did she also go through a Stage 2 at which
she provided written proposals and thoughts?
A As I recall, she did.
Q Do you recall receiving that?
A Again, I don't recall the content of what
was received, but I do recall her sending something
over.
Q Do you recall having any discussions with
Mr. Musk regarding what she sent over?
A I don't have that specific recollection,
no. But, again, there would have been some
conversation which led to her -- to him determining
he wasn't going to hire her.
--(Birchall Exhibit 46 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
Page
been marked as Birchall Exhibit 46, which is a
series of emails with you and
from
.
Do you recognize that?
A I do.
Q Do you recall receiving these emails?
A I do.
Q Who is
from
?
A I believe he's one of the partners.
Q Okay. Did you know him?
A I did.
Q Okay. How did you know him?
A I didn't know him well, but he was an
investor at one of Elon's other companies -- or
multiple of Elon's other companies and former
employee at SpaceX.
Q Had you spoken or communicated with him
regarding potentially investing in Twitter?
A I believe I had at this point.
Q Okay. And what do you recall of those
communications?
A I -- I don't specifically recall. I would
just assume that it was -- it would have been me
passing or, you know, sharing kind of the big
picture mission and passing him off to
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Morgan Stanley.
Q And he sent you an email on May 10th at
10:33. Do you see that one? It's the second one in
the chain.
A I see that, yes.
Q He says: "Jared, given the market,
has updated his requested amount to $1M."
Do you see that?
A I do.
Q And if you look at the bottom, the original
interest was 5 million.
A Yes.
Q Do you see that?
Do you know what he's saying, when he's
saying, given the market,
has updated the
request to reduce it to 1 million?
A I believe he's referring to volatility in
the markets.
Q Had you heard from other investors who had
changed what they were seeking to commit as a result
of volatility in the markets?
A I -- I don't recall specifically. Though,
I think there may have been another discussion
where, you know, some of these people were direct
investors. Others were syndicating a small group of
Page
Page
people. And as I recall, there may have been a
conversation where one of those groups was saying
that a sub-investor was expressing similar feelings.
Q His next sentence on that email or the next
paragraph says: FYA -- "FYI,
's opinion is
that there is likely a path to acquiring the company
for much less at this point vs a month ago. Let me
know if you or anyone at MS would want to discuss
those specific ideas with him."
Do you see that?
A I do.
Q And you respond: "Hi,
. I'd be
interested to hear
's thoughts."
Do you see that?
A I do.
Q And why did you respond in that fashion?
A No one has a monopoly on good ideas and -or on ideas, period, and so I was open to hearing
what he had to say.
Q And do you recall having any discussions
with him?
A No. As I recall, it culminated in a
message from him saying something, like, "Yeah, I
don't think I have anything unique to add to what
you guys are probably -- what you already know," or
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something like that, as I recall.
Q So you think you got a written message from
him to that effect?
A I -- it was either written or -- or I
believe in some form, either written or spoken,
where he -- where we were going to have a call, but
the message was delivered. You know, as I think
about it, "I don't think I have anything unique to
add to what you guys are probably already thinking
about."
MR. SHANNON: Exhibit 46.
THE COURT REPORTER: Exhibit 47.
--(Birchall Exhibit 47 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 47, which is an
email from Kate Claassen to you and others, dated
May 9th, 2022.
Do you recall having received this email?
A Yes, generally, I do.
Q And what was your understanding of the
Page
purpose of the email?
A I think just an update on -- on equity
investors.
Q And she says: "Ongoing discussions for
second close..."
Do you know what that's referring to?
A Yeah. There was a first initial core
group, and then there was a second core group.
Q Okay. And to your understanding of either
of those core groups, are they all still committed
to provide equity with regard to the Twitter
acquisition?
A As far as I know.
Q Have you had any communications with any of
those investors regarding the status of the
litigation or what defendants have determined with
regard to the potential merger?
A So I would say probably at least a half a
dozen have reached out and asked about status, and
my answer has always been, our -- I should say in
the recent few weeks there's been no communication
in the -- with this list. Prior, there were several
that reached out in the wake of tweets or filings or
whatever, and the answer has always been our
intention remains the same.
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Q And when you say your intention remains the
same, what do you mean?
A The -- the intent to see the transaction
through.
Q How is your intention to see the
transaction through consistent with Mr. Musk sending
a letter on January -- or July 8th terminating the
merger?
A That's what I'm saying. The last few
weeks, these -- I'm referring to conversations that
took place with investors. You asked if I'd had any
conversations with investors asking about the
status. In the recent weeks, no. Prior to that,
there had been at least half a dozen where questions
about tweets and/or filings had been asked, and I
told them that our intention remains the same.
Q And that was what you told them up until -A Termination.
Q Okay. July 8th?
A Yes.
Q Okay. Do you recall any communications
with any of the investors after July 8th?
A I don't recall specifically, no.
MR. SHANNON: 101 and then 87.
Thanks.
Page
Page
--(Birchall Exhibit 48 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 48, which is a
series of tweets, the first one from Elon Musk on
May 13th stating the: "Twitter deal temporarily on
hold pending details supporting calculation that
spam/fake accounts do indeed represent less than 5%
of users."
Do you see that?
A I do.
Q Were you aware before Mr. Musk sent this
that he was planning to send a tweet saying that the
deal was temporarily on hold?
A I was not aware.
Q Okay. Did you reach out to him after you
saw this regarding his tweet?
A I personally did not.
Q Okay. What was your understanding as to
what he meant by "deal temporarily on hold"?
A My understanding was that he had
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information rights that he believed weren't being
met, and when and until those rights were met or
whatever, he would -- that he was -- he was waiting
for that information, basically.
Q And so it's your understanding that as of
May 13th, Mr. Musk believed that his information
rights under the merger agreement were not being
met?
A Correct.
Q Do you recall having any communications
with Mr. Musk regarding his public statement that he
was putting the deal on hold?
A No.
Q What did it mean, that the deal was on
hold?
A I think you'd have to ask him that. You
know, I could speculate what I think it means.
MR. SPIRO: Don't speculate.
BY MR. SHANNON:
Q Well, when you read the email, what was
your understanding as to what it meant?
A I, frankly, wasn't certain. You know, when
you put a phone call on hold, you don't terminate a
phone call. You know, you're waiting to accomplish
something. And so I -- you know, as I understood
Page
it, I knew that he was -- there was pending
information that he felt he had rights to that
hadn't been provided and concerned him, and -- and
so that's -- because the information was on hold, he
was forcibly put on hold is the way I took it.
Q But you did not have any advance notice
that he intended to send this?
A No.
--(Birchall Exhibit 49 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 49, which is a
series of emails starting on May 13th. The one at
the bottom is from
.
Do you know who that is?
A Yes. She's with
-Q Okay.
A -- their institutional investment team.
Q And do you know her?
A I don't know her other than through this
transaction.
Q And you see her email to you says: "We saw
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Elon's tweet last night and wanted to understand if
he's having a change of heart on the deal or if
there was an alternative motive to what he tweeted."
Do you see that?
A I do see that.
Q Okay. And is the tweet she's referring to
the one we just looked at, the "putting the deal on
hold"?
A I believe so, yeah.
Q And you responded: "Happy to speak. The
intention remains the same."
What did you mean, "intention remains the
same"?
A Our plan to see the transaction through
remained the same.
Q Did you speak with Mr. Musk, or anyone
else, before responding that "intention remains the
same"?
A I did not.
Q And how did you determine that intention
remains the same after Mr. Musk sent his tweet on
May 13th?
A Well, I mean, I felt pretty confident
that -- I mean, I knew that wasn't him terminating
the transaction. That's not even how you terminate
Page
Page
a transaction, but I felt confident that based on
all my communications with him and with everyone
else involved, advisors, counsel, that there had
been no change in our intention. That, you know,
the hold he's referring to was him needing
information.
--(Birchall Exhibit 50 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 50, which is an
email from Bob Swan to Morgan Stanley, dated
May 18th, 2022.
Do you see that?
A I do.
Q Okay. Is it your understanding that
Mr. Swan had been retained at or around this time?
A Yes. Again, I mean, I think the use of the
word "retained" is unique, but, yes.
Q That's a fair point.
A Yeah.
Q That he had started work in or around
JANE ROSE REPORTING
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May 18th?
A Approximately, yes.
Q Okay. And he notes that the "Sources and
uses: We have a $3.8b gap."
Do you know what he's referring to?
A That that -- you know, the -- I believe
what he's saying is that there was -- I think what
he's saying there is that there was 3.8 billion
additional that needed to be filled with, you know,
all of the projections of rollovers, Elon's equity,
debt, and everything. Yeah.
Q And do you recall any discussions with him
or others how that $3.8 billion gap would be filled?
THE COURT REPORTER: I'm sorry. Is it
million or billion?
MR. SHANNON: Billion. If it was a
million, we probably wouldn't be here.
THE WITNESS: Specific conversations? I
mean, I know there were numerous conversations, you
know, considering, you know, how we would fill all
of the gaps in order to, you know, consummate the
transaction. I don't recall a specific, you know,
conversation, per se.
BY MR. SHANNON:
Q What generally do you recall those
Page
discussions regarding how you would fill the gap?
A Well, he -- he's referencing one of them
when he says, "assuming no preferred." One of those
ways was by doing a preferred, adding another layer
to the deal stack. Certainly, one way or another,
that gap would have to be filled, whether through
external investors or Elon himself. And so -Q Do you know if that gap was filled?
MR. SPIRO: Objection to form.
THE WITNESS: Yeah, I mean that -- that
specific gap, per se, I -- do we believe we could
execute the transaction? Absolutely.
How that is specifically executed between,
you know, people rolling over and equity investors
and debt investors, I'd say the kind of finer
details of that are still, you know, being
finalized.
BY MR. SHANNON:
Q Still being finalized now?
A Well, I mean, we're obviously in a pencils
down state right now, so until -- if and until this
is figured out, yes, it would be -- we would -- but
there's no question about where -- where that money
would eventually have to come from. You know, it
would -- Elon's well aware that he made the
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commitment, and whether it's out of his own pocket
or elsewhere, we'd fill the gap.
--(Birchall Exhibit 51 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 51. On the bottom
is a June 10th email from Bob Swan to you.
Do you see that?
A I do see it.
Q And he notes again, "we have a pretty large
gap (roughly $3.5 to 4b)."
Do you know what he's referring to as a
gap?
A Again, I -- I believe it's the same topic
we just discussed.
Q And toward the bottom, there's a line that
says: "Rating agency: We will keep adjusting the
date in connection w the appropriate info flow and
diligence and determine who participates as we go."
Do you see that?
A I do.
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Page
Q And do you know what that's a reference to?
A I believe he's referencing what would have
been an eventual meeting with the rating agencies.
Q Was there ever a meeting with the rating
agencies?
A I don't believe so.
Q Do you have an understanding of why not?
A Again, I -- I think there was -- in order
to proceed with the debt portion, the transaction
needs to proceed, and there are conditions that were
yet to be met. There hadn't yet been a shareholder
vote. There'd been, you know, a number of things
that just hadn't happened yet, and this was one of
them.
Q Do you know when it was planned that there
would be rating agency presentations?
A I think there were preliminary, you know,
dates that moved along time, but I -- I don't -- I
don't know what the latest number was.
Q And then going to the next sentence, he
says: "Lastly, anything we can do to reduce
personnel anxiety along the way would be helpful!!"
Do you see that?
A I do.
Q Do you know what that's referring to?
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A I don't. Yeah, I don't know what he's
referring to there.
Q Well, were you speaking with Mr. Swan
during this time period?
A Periodically, there was -- we would speak.
Q Okay. And you never asked him what he
meant by: "Lastly, anything we can do to reduce
personnel anxiety along the way will be helpful!!"
-- two exclamation points?
A I didn't ask him specifically that, no.
Q Do you have any idea what he's referring
to?
A I really don't.
Q You talked before about after the May 6th
meeting information requests were made to Twitter
for certain information, correct?
A Yes.
Q Okay. Did you have any role in preparing
any of those information requests?
A No, not that I can recall. I believe those
were all Morgan Stanley and/or counsel related.
Q Did you review any of the requests before
they were made?
A Well, certainly, a list of requests came
from that May 6th meeting where we were in person,
Page
and so that was what kicked off the first, kind of,
round of requests.
Q Okay. Other than that first round of
requests, do you recall having reviewed any of the
requests?
A I don't recall reviewing a document with
requests. I mean, but the topic of requests and
what had and hadn't been delivered was an ongoing
topic.
Q Ongoing topic in what way?
A When we would have check-in calls with the
team, that information would be updated.
Q Do you know who was responsible for
reviewing the information that was provided by
Twitter in response to the requests?
A Well, the Morgan Stanley team, I believe,
was, you know, reviewing that. Bob Swan was, I
believe, reviewing that and had access to whatever,
you know, data portals or whatever were -repositories.
So those were the primary parties.
Q How about the data scientists, what role
did they have in reviewing the data?
A Again, they were retained directly by
counsel, and so I -- I wasn't advising them on --
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you know, or providing them with information, but
they were -- they were provided with certain types
of data that they then used in their analysis. But
what their process was specifically, I -- I don't
have information on that.
Q And I believe from your testimony earlier,
you don't recall any specific analysis they did or
conclusions they reached, correct?
A I don't recall, like, a final report or
anything that was provided.
Q Do you recall receiving an interim report
from any of the data scientists?
A I recall being on a phone call that
included counsel where there was some -- some sort
of progress report shared.
Q When was that phone call?
A Yeah, as I recall, that was mid-to-late
May, like, late teens maybe.
Q Okay. And you don't recall any other
communications in which you got a progress report,
correct?
A No. I believe that was the final direct
communication that I had with them.
Q Are you aware that on June 6th, Skadden
sent Twitter a letter claiming that it had breached
Page
Page
its obligations under the merger agreement?
A Yes.
Q Okay. Had you seen -- had you seen that
letter before it was sent?
A I reviewed it cursory, and I think helped
facilitate, you know, signatures.
Q What was your understanding as to the
nature of the breach that was asserted?
MR. SPIRO: Objection to the degree it
calls for privileged information. You can't reveal
those communications. So I don't know how you can
answer that. But if you can answer that without
input from counsel.
THE WITNESS: Okay. So I guess I can't
answer that.
BY MR. SHANNON:
Q Okay. So your knowledge regarding the
basis of the briefs -- basis -- let me strike that.
Your knowledge regarding the breaches
alleged in the June 6th letter were based solely
from communications you had with counsel?
A I believe so.
MR. SHANNON: Okay. And just so the
record's clear, you're instructing him not to answer
on that basis?
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MR. SPIRO: If he can answer outside of
that basis. I'm trying to -- I'm trying to not get
in your way, but that one seemed to be the legal
letter in why the call for breaches calls for
privileged communications.
BY MR. SHANNON:
Q And your recollection is that your
knowledge is based on communications with counsel?
A Yes.
MR. SHANNON: Thank you.
--(Birchall Exhibit 52 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 52, which is a
series of texts that have been produced in this case
from Mr. Musk, and I am interested in -- there are
certain texts at the bottom of the third page on
June 8th -A Okay.
Q -- starting on -- at 10:45.
Do you see the one that says: "Elon, Bob
Page
Steel here"?
A I do see that.
Q And he notes: "Antonio connected us a few
weeks ago and we had a conversation re your plans
regarding Twitter."
A Mm-hmm.
Q Were you aware that Mr. Musk had a
communication with Bob Steel at Perella Weinberg?
A I wasn't aware of this communication.
Q Are you aware of any communications
Mr. Musk had with Perella Weinberg?
A Not with communications that I wasn't
either on a call for or CC'd on.
Q Are you aware that Perella Weinberg had
raised the possibility of using a contingent value
right, or CVR, with regard to Twitter?
A I don't recall that proposal.
Q Do you recall any discussions with Mr. Musk
regarding advice Twitter had provided?
A Twitter had provided?
Q I'm sorry. Perella Weinberg had provided.
A I don't. I don't recall that. Yeah.
Q And as far as you know, Perella Weinberg
was never retained?
A Yes. Correct.
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--(Birchall Exhibit 53 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 53, which is a
series of emails, some of which have been redacted
as privileged.
Starting at the bottom of the first page,
there's an email from you to Alex Spiro.
Do you see that?
A Bottom of the first page, I see that.
Q And you say: "Just got a call from
."
Who is that?
A He's an investor that has invested in other
of Elon's companies.
Q And you note: "
is on
the" -- is that the Twitter board?
A That's what it appears to be, yes.
Q Okay. And do you recall receiving a call
from
?
A I've probably spoken with
half a dozen
Page
Page
times over the last handful of months, so I -- I do
recall speaking with him.
Q And do you recall him giving you feedback
from the Twitter board?
A I vaguely remember this.
Q And -- and when he gave that, you then sent
it to Quinn Emanuel and Skadden?
A Yes.
Q And why did you send it along to them?
A Just data to pass along, I guess.
Q Did you send it along to Mr. Musk?
A No.
Q Why not?
A I'm not sure why in that moment I didn't,
but I -- it's not the type of information I would
have passed along to him.
Q What do you mean "it's not the type of
information you would have passed along to him"?
A Well, I mean, in -- in the midst of any
given day, he's -- there's just -- there's a lot
going on. He's putting out a lot of fires, and this
is just like a random comment about someone said
that someone said, that I just wouldn't lob in a
message to him in the middle of a day about
something like this.
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Q And then if you look at the email on the
top: "I got big picture notes from the call from a
trusted source."
Do you see that?
A I do.
Q And what call are you referring to?
A That's what I'm trying to see here.
Oh, it would have been the call that Elon
did with the -- with Twitter, with Twitter
employees, I believe.
Q Your recollection is Mr. Musk did a call on
June 16th, 2022 with Twitter employees?
A I think he did. That's my recollection.
Q After he had sent the letter saying that
Twitter had breached?
A Let's see here.
I think -- I think this is referencing a
call that happened with Elon on -- with the
Twitter -- with Twitter, the company. But -Q Were you on the call?
A I wasn't.
Q And you -- but if Mr. Musk was on the call,
you -- you didn't really need notes from a trusted
source, did you?
A Well, again, you know, I'm not -- I'm not
Page
dialing him up after an engagement like that or any
other engagement of his in the middle of a week and
asking him to give me his, you know, rundown of
what -- what happened.
I felt pretty confident that he -- there
was not going to be anything on a -- on a big public
call like that that would be, you know, revelatory,
and so it was more important to me to kind of get a
third-party feel for how it was received.
Q Okay. So what you were providing was more
of a third-party view of how it was received?
A That's right.
Q Okay. Who was the trusted source?
A I do not recall. Let's see.
Yeah, I don't recall. As a -- yeah. I
vaguely remember this as -- let's see. Yeah, I
don't -- I don't recall.
--(Birchall Exhibit 54 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 54.
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Do you recognize that document?
A I do. I'm reading it right now to kind of
get up to speed on it. Who -- who is the other end
of this? Is this with Bob or -Q I believe so, yes.
A Okay.
Q Did you often text with Mr. Swan?
A I don't believe I texted with him often,
that -- though that was a mode or a medium that was
used.
Q Okay. And is this the -- the text on the
bottom that you sent to him?
A I believe so, yes.
Q You say: "It would be good to see the most
current and realistic financial projections."
Do you see that?
A Yes.
Q Who was preparing the projections?
A As I understood it, it was some combination
of Bob with the Morgan Stanley team.
Q Okay. And what were you looking to see
those projections for?
A Well, we're ultimately going to need to
service debt, and I just wanted to understand what
that picture looked like.
Page
Page
Q And you say: "And not doomsday, but with
some reflection of the challenging environment."
What do you mean by "challenging
environment"?
A Well, you know, the economic environment
had -- had shifted a bit, and I just wanted
realistic -- some of the models were taking data
from proxy statements issued by Twitter in Q1, and
that was a different economic environment, and so
I -- I just didn't want to run models based on old
data.
Q Were you running models?
A I was not personally running models.
Q So what were you going to do with the
current projections that you had asked Mr. Swan for?
A I don't specifically recall, but I would
have most likely discussed whatever he brought
with -- with Elon.
Q Do you recall having discussions regarding
projections with Elon?
A I don't recall exactly as it pertains to
this. I don't see a time for when this was actually
exchanged, but I do recall the -- the email exchange
that we had where he actually sent a model, and I
pressed him a little bit along the lines of this
JANE ROSE REPORTING
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message, and I do recall having some -- some kind of
big picture discussion with Elon about that.
Q And do you recall having any other
discussions with Mr. Musk regarding projections?
A Again, I can't recall, like, a specific
moment in time, but there would have been multiple
conversations where either he and I and/or bankers
and/or Bob and/or some combination of all those
people would have been involved in conversations
regarding projections.
Q But you don't recall any specifics of those
discussions?
A I don't recall, like, the specific moment
or specific words.
--(Birchall Exhibit 55 was marked for
identification.)
--MR. SHANNON: I should have done this
earlier. I note that this and many of the other
exhibits are marked "Confidential." So I would
propose to have the -- the transcript marked
confidential -MR. SPIRO: Agreed.
MR. SHANNON: -- until everyone has a
Page
chance to review it.
So if you could just mark the entire
transcript confidential.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 55, which is an
email from you to Mr. -- I'm sorry -- it's from
Mr. Swan to you enclosing certain scenarios.
Do you see that?
A I do.
Q Okay. And he was sending this to you on
June 21, '22, correct?
A Yes.
Q And what were you using these financial
models for?
A Again, the -- Bob was always on the mission
of push the ball forward. Get the deal done.
And -- and so the purpose of his modeling was us
understanding -- you know, trying to understand
legitimate cash flow and understand, you know, debt
servicing and things like that.
Q Do you recall having any discussions with
Mr. Swan regarding the projections that he provided?
A I don't believe there was a phone
conversation. I think he may at this point have
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been in Europe.
Q When you say "in Europe," you mean on the
family vacation you referenced before?
A Yes.
Q And is it your understanding that he was
working with Morgan Stanley in preparing the
projections?
A Yes, that was my understanding.
MR. SHANNON: If you could, 114.
BY MR. SHANNON:
Q Was there a reason that he was working on
three different scenarios: a base case, a bull
case, and a bear case?
A Just because we didn't have a crystal ball
that worked and wanted to understand what the
potential variations could look like.
Q And with regard to the different
assumptions that were made with each case, who
determined what assumptions to use?
A Well, in this case, he -- he was -- he was
primarily -- I think there'd been a conversation
before this where the desire for the -- the
different scenarios was -- was expressed, and then I
think his -- he took his own, kind of, poetic
license to decide what went into those different
Page
Page
scenarios.
Q And when you say "he took his own poetic
license," was it Mr. Swan and Morgan Stanley, or was
it just Mr. Swan?
A I believe -- I don't, frankly, know. I
believe it was a combination.
--(Birchall Exhibit 56 was marked for
identification.)
--BY MR. SHANNON:
Q And this is basically a continuation of the
email we were just looking at and -- oh, first of
all, Mr. Birchall, you've been handed what has been
marked as Birchall Exhibit 56, which is a series of
emails including Bob Swan and you, dated June 21st
and 22nd.
Do you have any doubt that you received and
sent these emails?
A No.
Q And if you look at the first -- or the
email that's on the third page, there's one
June 22nd, 2022 at 2:19 a.m. from you.
Do you see that?
A I do.
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Q And you say: "I don't know the numbers
nearly as good as you do, but I'd like to pressure
test the idea that the 'base case' assumption is
that revenue is just slightly worse than Twitter
team's questionable projections."
Do you see that?
A I do.
Q And what did you mean by that?
A Well, there's a history of -- of the
Twitter team's projections being wrong and to apply
a slight discount to what could be wrong numbers or
what they're projecting. I just -- I didn't like
that -- using that as our base case, and so I wanted
there to be a more realistic rigor applied to the -you know, to the exercise based on what we were
seeing in the market.
Q And then do you see Mr. Musk's email on
the -- the next page at 5:48 a.m.?
A I do see that.
Q "Bob, the spreadsheet looks idiotic to me."
And then at the end he says: "If this is
what you're sending me with a straight face, then it
is probably best for you to step away from this
project."
Do you see that?
Page
A I do see that.
Q And then the next email at the end,
Mr. Swan said: "Since I sent these pro formas w a
straight face, I agree it is best for me to step
away from the project. Let me know if I can help
and good luck."
Do you see that?
A I do.
Q And is this your recollection of basically
when Bob Swan ceased to be involved with the
project?
A Yes. I mean, I think he helped, you know,
in the day or days that followed to help pass the
baton a little bit, but, yes, this was kind of the
moment in time where it was clear the path
forward -- there wasn't a path forward.
MR. SHANNON: Tell you what; why don't we
take a short break, and I can give you a better
assessment.
MR. SPIRO: Yeah. Right.
We're off the record.
MR. SHANNON: Go off.
THE VIDEOGRAPHER: We are going off the
record. The time is 6:22 p.m.
(Recess.)
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THE VIDEOGRAPHER: We are back on the
record. The time is 6:27 p.m.
BY MR. SHANNON:
Q Mr. Birchall, if you could turn back to
what has been marked as Exhibit 5, which is the
text -A Mm-hmm. I'm there.
Q And specifically on June 23.
A June 23. I'm there.
Q And about midway down, you'll see one at
22:30, and this is a text from Mr. Musk.
A When you say "22" -- sorry. What -- I'm
not following.
Q Yeah. It's June -A June 23rd, right?
Q June 23rd -- I'm sorry, it's not clear if
it's the 21st or the 23rd. Maybe you can -- it's -I believe it's the message that reads: "I've asked
Bob Swan to depart the deal."
A I see that.
Q "We are not on the same wavelength. Going
forward it will be Jared and me."
Were you aware that Mr. Musk sent that
email?
A I wasn't.
Page
Page
Q Okay. And do you know who he was sending
it to?
A Well, I can see that Ned's one of those
people.
Q So he was telling Twitter that Bob Swan
would no longer be filling that role?
A Yes.
Q And that you and he would be filling the
role that Bob Swan had filled before?
A That's what he appears to be saying.
Q Was that your understanding?
A I mean, my understanding is that I'll do my
best to fill whatever role he needs me to fill and
to find someone as quickly as possible to fill it
better than me, if needed.
Q Okay. And did you believe you were
qualified to fill the role that Bob Swan had filled
previously?
A Certainly not in comparison to Bob Swan,
no.
Q Okay.
MR. SHANNON: 116.
--(Birchall Exhibit 57 was marked for
identification.)
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--THE WITNESS: Thank you.
BY MR. SHANNON:
Q This is -- Mr. Birchall, you've been handed
what has been marked as Birchall Exhibit 57, which
is a -- initially, an email at the bottom from Bob
Swan -A Yes.
Q -- to Kate Claassen, dated Wednesday, the
22nd, and he's noting that you would like
Morgan Stanley to do sensitivities around spam and
bots.
Do you see that?
A Yes.
Q And why were you asking them to do that?
A I was trying to understand how those
numbers affected the revenue model.
Q And did you give them any instructions as
to what sensitivities they should assume?
A I think there was a joint -- in that
conversation with Kate, I think we decided -- I
believe it was 15, 20, and 25 percent.
Q And how did you reach the determination to
do 15, 20, and 25 percent?
A That was just picking numbers. Again, the
Page
goal was to understand how those numbers moved the
model. It wasn't trying to make an assertion that
it was -- that one or the other was the specific
answer. It was just understanding the magnitude of
that metric.
Q And what was your understanding as to how
that moved the model?
A Well, each -- you know, each 5 percent move
moved revenue numbers by hundreds of millions of
dollars.
--(Birchall Exhibit 58 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 58, which is an -- a
series of emails. The one on top is from
Ms. Claassen to you, dated 6/24/2022.
Are these the sensitivity analysis that you
want done -- you wanted done?
A Yes.
Q Okay. And do you recall having discussions
with Morgan Stanley, or anyone else, regarding these
sensitivities analyses?
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A I don't recall if there was a follow-up
conversation with Kate or not, but -- I don't
recall.
Q Well, do you recall doing anything with the
sensitivities analysis that was prepared?
A I don't specifically recall.
Q Do you recall having any discussions with
Mr. Musk regarding the sensitivities analysis?
A I don't recall a specific conversation, no.
--(Birchall Exhibit 59 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 59, which are a
series of texts or short message reports between
Robert Steel and Antonio Gracias, and I'm interested
specifically on the one at 6/25/2022 at 4:50 a.m. -I'm sorry -- 6/25.
Do you see that?
A Yes.
Q And he says: "Hi Bob - I just landed in
Italy. I'll be here for a week. I didn't speak
Page
Page
with Elon about Twitter at all. I don't have any
idea where he is on the deal. Let's connect when I
get back. I wish you a safe and enjoyable 4th."
Do you see that?
A I do see that.
Q Okay. So this is June 25th.
A Mm-hmm.
Q And Mr. Gracias is in Italy for a week of
vacation.
When was it that you spoke with him about
taking Bob Swan's place?
A I don't recall, but I also don't think I
was the first person to speak with him about that.
I do believe that was Elon, and then there was, you
know, a handoff to me to help intro him to the team
to get him up to speed.
Q And -- but he hadn't spoken to Elon about
Twitter as of 6/25?
A Yeah, I don't know that to be the case.
Another potential explanation is I get the sense
that Bob Steel was really eager to be a part of this
transaction and could have been, you know, hounding
him, and this was his, like, "get off my back, I
don't have any information" message, but I don't
know that to be the case either. I'm just -- yeah.
JANE ROSE REPORTING
1-800-825-
September 21, Jared Birchall
Q Do you recall at any point in time when
Mr. Gracias was filling in or doing the work
relating to what Mr. Swan had previously done that
he was in Italy?
A I don't specifically recall that.
MR. SHANNON: Can you mark this as
Exhibit 60.
--(Birchall Exhibit 60 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 60, which is an
email from you to Morgan Stanley, dated 6/30/2022 -A Yeah.
Q -- and you're advising them that Elon asked
Antonio Gracias to step in and help.
Do you see that?
A I do.
Q So was it around that point in time that
Elon had asked Mr. Gracias to step in and help?
A Yeah. Again, I don't -- I don't pretend to
know exactly when Elon asked Antonio this, but this
Page
was obviously when I intro'd him to the MS team.
Q And you were asking the MS team to help get
him up to speed, right?
A That's right.
--(Birchall Exhibit 61 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 61, which is a
series of emails, dated June 27th, 2022, among
Barclays individuals.
A I see this, yeah.
Q On the second page, there's an email at the
top from Sean Lynch -A Yeah.
Q -- dated June 27th.
Do you see that? And he says: "Caught up
with Jared Birchall (Musk office) at MS today.
They've finally received the information they
believe is necessary to finalize their assessment of
integrity of T's user reported metrics."
Do you see that?
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[FINAL]
Page
A I do see that.
Q Okay. Was it your understanding that you
had received around that time, which is June 27th,
the information necessary to finalize your
assessment of the user metrics at Twitter?
A No. In fact, my recollection is that was
when we first started receiving anything useful that
our data scientists could actually parse.
Q And it's your understanding that prior to
June 27th, that you hadn't really received anything
from Twitter that your data scientists could
analyze?
A Again, I wasn't in contact directly with
the data scientists, but as I understood it, there
was a certain way or a certain type of data that -a certain way of parsing the data or certain type of
data that they needed in order to do what they were
trying to do and that over the course of many
requests and even sharing of information that -that wasn't happening.
But certainly at this point, we were yet to
have received the direct methodology on -- you know,
or the protocol for bot determination as well.
So -Q So just so I understand, it wasn't, in your
Page
Page
understanding, until around June 27th that the data
scientists had received the information they needed
to assess Twitter's user metrics?
A I mean, that's the only sense I can make of
his message, saying what he's saying. I -- to
pretend that I somehow remember on that day, you
know, some transfer of data and whatnot would be
false. I don't remember that. But clearly he's
stating his understanding or his -- his translation
of what he thought I said to him.
Q But, I mean, putting aside what you may
have said, is it your recollection that on or around
that date, which is June 27, 2022, the data
scientists had just received the information they
would need in order to make an assessment of the
integrity of Twitter's user reported metrics?
MR. SPIRO: Objection to form.
You can answer.
THE WITNESS: Yeah, again, I don't pretend
to know if it was that date. I'm trying to make
sense of what he said the information that he
received, you know, being useful to be able to
assess the integrity of report metrics. That -that is what I'm assuming he's referring to, and,
therefore, I'm -- you know, again, I'm guessing.
JANE ROSE REPORTING
1-800-825-
September 21, Jared Birchall
I'm speculating, but -MR. SPIRO: Well, don't do that.
THE WITNESS: Well, again, I don't -- that
date, that -- for me to try and say that on that
specific date certain information had been received,
I just -- I have no clue.
BY MR. SHANNON:
Q I'm not asking for on that date, but was it
your understanding that around that date, which is
the end of June?
MR. SPIRO: Objection to form.
THE WITNESS: I really don't know.
BY MR. SHANNON:
Q Mr. Birchall, when did you first hear -MR. SHANNON: Subtle.
THE WITNESS: It looks like your time's up.
MR. SHANNON: Tell you what. Let me just
ask these couple -- I have a couple more. But I
appreciate you need to leave, so let me just ask
these couple questions and we can reserve rights and
move on.
BY MR. SHANNON:
Q Mr. Birchall, when is the first time you
heard the name "Peiter Zatko" or "Mudge"?
A I believe it was in the -- in the press.
Page
Q Okay. And when you say you believe it was
in the press, do you mean when it was reported that
he had filed a whistleblower claim?
A Yes.
Q And you had never heard his name before
that?
A No.
Q Okay. Do you have any independent basis to
believe whether Mr. Zatko's claims in his
whistle-blower complaint are true?
MR. SPIRO: Objection to form.
You can answer.
THE WITNESS: No information where that's
concerned.
BY MR. SHANNON:
Q Okay. And have you ever had any
communications with Mr. Zatko or any of the people
working on his behalf?
A No.
MR. SHANNON: Why don't we do this. I
understand counsel needs to catch a plane -MR. SPIRO: Well, I don't want to -- you've
got some time. And I think we both have travel
almost identical like we discussed off the record.
So if you want to -- yeah.
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[FINAL]
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MR. SHANNON: I'm not saying that to blame
you for this. I'm simply reserving rights, and I
guess since I have a couple more questions -- and
thank you for that.
MR. SPIRO: Yeah, so finish.
BY MR. SHANNON:
Q With regard to what you testified at the
beginning of the deposition, which is your second
SEC deposition -A Yes.
Q -- you suggested it covered the period
after the merger agreement was signed?
A No. I actually believe it was after -- I
think -- I think my first -- I think that may have
been what I said, but I think it was the period up
until -- like, it was up until early April and
then -- and then it was after early April. That -those were the two sections.
Q After early April through when?
A I'm not sure what the -Q Okay. Did it go through the present -beyond asking you with regard to purchases of
Twitter stock, what was the substance or -substance of the questions in your second SEC
deposition?
Page
Page
MR. SPIRO: You want to know everything
that the SEC asked him?
MR. SHANNON: I want to know if he has a
recollection, great, but I just want to know the
topics that he recalls being covered.
THE WITNESS: I mean, are you specifically
asking -BY MR. SHANNON:
Q The second.
A -- for like the very end of the timeframe
or just the second -Q The second.
A So there were questions about filings.
There were questions about the board.
Q What questions do you recall regarding
filings?
A About -- about McDermott's efforts to file
DG stuff and HRH.
Q To be clear, are these Twitter filings or
Mr. Musk's filings?
A No. Sorry. These are Mr. Musk's filings.
Q Okay. Do you recall any questions
regarding Twitter filings?
A I don't recall questions about Twitter
filings.
JANE ROSE REPORTING
1-800-825-
September 21, Jared Birchall
Q You said there were also questions about
the board. What questions about the board?
A About Elon's, you know, acceptance, denial,
acceptance, denial.
Q What else do you recall topics being
covered?
A It's all a blur. Let's see. To be honest,
my mind's kind of blank right now. It's not -- it's
not easily coming to me.
MR. SHANNON: I'll make a request. If
there are transcripts of -MR. SPIRO: There aren't.
MR. SHANNON: There are not?
Okay. If they become available, if they do
exist, we'd request that they be produced.
BY MR. SHANNON:
Q As I was saying, I appreciate the time
you've given today. I still have some exhibits, and
I have concerns regarding the level of preparedness
for the 30(b)(6) topics. That said, we'll reserve
rights and we'll determine how best to proceed.
But, once again, thank you for very much
for your time.
A Sure.
MR. SPIRO: You don't have any further
Page
questions for him in his personal capacity at this
time?
MR. SHANNON: I have documents I could go
through, but I'm -- I understand and I'm willing to
stop now with regard -- with the reservation of
rights that I have.
MR. SPIRO: Okay. Because we have time,
but I will -- I will ask one -- one clarification
question of Mr. Birchall. But, again, if you want
to ask him other questions, I understand your
position on the 30(b)(6) topics. If you have any
other questions, by all means.
EXAMINATION BY COUNSEL FOR DEFENDANTS AND
COUNTERCLAIM-PLAINTIFFS
BY MR. SPIRO:
Q You were asked a question earlier about -it's labeled Musk ending 21789. I don't have the
stamp -- I don't have the exhibit number.
A Was it recent?
Q No, no, no. Earlier. But the topic of the
email is: "Please allow me to suggest that further
thoughts/ideas be discussed via phone, with counsel
involved."
Do you remember that email exchange that
you were asked about?
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September 21, Jared Birchall
Page
A
Q
With Barclays?
Yes.
Is it fair to say that you made a comment
that, yes, if you don't put something in email, it's
not in email, or words to that effect?
Do you remember that?
A I do.
Q Is it fair to say that when you sent this
email that you were making an effort to try to stop
the conversation about legal issues between bankers
when there's no lawyers involved and they might not
know what they're talking about? Is that also a
fair read of that?
A No. That was the ultimate -- that was the
ultimate motivation there was to stop this constant
flow of banker speak touching on legal topics that,
yeah, they didn't have, I think, business touching
on.
Q Right. And in the hundreds, if not
thousands, of other emails that you have produced in
this case, did you ever tell anybody at any point,
"Let's not do this in email. Let's talk on the
phone"?
A No.
MR. SPIRO: I have nothing further.
Page
CERTIFICATE OF SHORTHAND REPORTER-NOTARY PUBLIC
I, Joan V. Cain, Court Reporter, the officer
before whom the foregoing deposition was taken, do
hereby certify that Jared John Birchall personally
appeared before me on September 21, 2022 and was
duly sworn by the New York Remote Notary Public
Jamie S. Blair; that the foregoing transcript is a
true and correct record of the testimony given; that
said testimony was taken by me stenographically and
thereafter reduced to typewriting under my
direction; that reading and signing was not
requested; and that I am neither counsel for,
related to, nor employed by any of the parties to
this case and have no interest, financial or
otherwise, in its outcome.
IN WITNESS WHEREOF, I have hereunto set my
hand this 21st day of September 2022.
____________________________
COURT REPORTER
Page
MR. SHANNON: I have no further questions
on that.
Mr. Birchall, thank you very much.
Alex, thank you.
MR. SPIRO: Thank you.
THE VIDEOGRAPHER: We are going off the
record. The time is 6:50 p.m.
(Signature having not been discussed,
the deposition of Jared John Birchall was concluded
at 6:50 p.m.)
JANE ROSE REPORTING
1-800-825-
Page
INSTRUCTIONS FOR ERRATA
NOTARY PUBLIC SIGNATURE
Not required unless agreed upon by counsel
that notary public signature is required.
Please return a copy of the signed errata within
30 days of receipt, unless otherwise agreed upon
by counsel. Once we receive the signed errata,
we will distribute an electronic copy to all
parties.
RETURN A SIGNED COPY VIA FAX, E-MAIL OR MAIL TO:
FAX: 1-800-825-E-MAIL: janerose@janerosereporting.com
Jane Rose Reporting
Administrative Offices
PO Box Luck, WI
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[FINAL]
September 21, Jared Birchall
Page
NOTICE TO READ & SIGN
This transcript was electronically distributed
to QUINN EMANUEL URQUHART & SULLIVAN, LLP to
forward to witness.
ACKNOWLEDGMENT OF DEPONENT
I, Jared John Birchall, do hereby certify
that I have read the foregoing pages and that
the same is a correct transcription of the
answers given by me to the questions therein
propounded, except for the corrections or
changes in form or substance, if any,
noted in the attached Errata Sheet.
______
(DATE)
_________________________________
Jared John Birchall
Signed and subscribed to before me this
____ day of ________________ 2022.
____________________________
Notary Public
Page
INDEX OF EXHIBITS
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 1 Plaintiff and
Counterclaim-Defendant’s
Notice of Rule 30(b)(6)
Deposition to Defendant X
Holdings I, Inc.
EXHIBIT 2 Plaintiff and
Counterclaim-Defendant’s
Notice of Rule 30(b)(6)
Deposition to Defendant X
Holdings II, Inc.
EXHIBIT 3 Defendants’ Verified
Counterclaims, Answer, and
Affirmative Defenses to
Plaintiff’s Verified
Complaint
Page
PAGE LINE
CHANGE
REASON
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
JANE ROSE REPORTING
1-800-825-
Page
I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 4 Email Chain, 1/31/22, Bates
Nos. MUSK-XHOLDINGS_-
EXHIBIT 5 Text Messages Produced from
Mr. Birchall's Phone
EXHIBIT 6 Email Chain with Attachment,
3/8/22, Bates Nos.
MUSK-XHOLDINGS_00019717
EXHIBIT 7 Email Chain, 3/16/22, Bates
Nos. MUSK-XHOLDINGS_-
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 8 Text Messages Produced from
Mr. Birchall's Phone
EXHIBIT 9 Email from Mr. Neuhaus to
Mr. Birchall, 4/1/22, Bates
No. MSCO-
EXHIBIT 10 Email Chain, 4/2/22, Bates
Nos. QE-MUSK_000002112
EXHIBIT 11 Email from Mr. Neuhaus to
Messrs. Birchall and Malone,
4/3/22, Bates No.
MSCO-
Page
I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 17 Email Chain, 4/11/22, Bates
Nos. MSCO-0052094 -
EXHIBIT 18 Email Chain, 4/11/22, Bates
Nos. MSCO-0052334 -
EXHIBIT 19 Meeting Invite for April
11th, 2022, Bates No.
MSCO-
EXHIBIT 20 Email Chain, 4/12/22, Bates
Nos. MSCO-0052625 -
EXHIBIT 21 Email from Mr. Musk to
Mr. Taylor, 4/13/22, Bates
Nos. MUSK-XHOLDINGS_-
Page
I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 12 SEC Form 13G Filed by
Mr. Musk, 4/4/
EXHIBIT 13 Email Chain with Attachment,
4/4/22, Bates No.
MUSK-XHOLDINGS_
EXHIBIT 14 Copy of Two Tweets, 3/26/
EXHIBIT 15 Copy of a Series of Tweets,
8/9/
EXHIBIT 16 Partially Redacted Email
Chain, 4/8/22, Bates No.
MSCO-
JANE ROSE REPORTING
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 22 Morgan Stanley PowerPoint
Presentation with Cover
Email from Mr. Polhemus to
Mr. Birchall, 4/18/22, Bates
Nos. MUSK-XHOLDINGS_-
EXHIBIT 23 Email Chain, 4/18/22, Bates
Nos. MUSK-XHOLDINGS_-
EXHIBIT 24 SEC Amendment 3 to Schedule
13D, 4/20/
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 25 Email with Attachment from
Mr. Birchall to Command
Center, 4/22/22, Bates Nos.
MUSK-XHOLDINGS_00019322
EXHIBIT 26 Email Chain with
Attachments, 4/24/22, Bates
Nos. MUSK-XHOLDINGS_-
EXHIBIT 27 Morgan Stanley PowerPoint
Presentation, Scenario
Planning and Considerations,
Project X, April
Page
I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 32 Email with Attached Message
Chain from Ms. Claassen to
Multiple Recipients,
4/28/22, Bates Nos.
MSCO-0065572 -
EXHIBIT 33 Email Chain, 5/4/22, Bates
Nos. X_MSSF_00025123
EXHIBIT 34 Email Chain, 5/5/22, Bates
Nos. MUSK-XHOLDINGS_-
EXHIBIT 35 Email Chain, 5/6/22, Bates
Nos. MSCO-0218881 -
Page
I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 28 Email with Attachment from
Mr. Essaid to Mr. Musk and
Others, 4/24/22, Bates Nos.
MUSK-XHOLDINGS_00018025
EXHIBIT 29 Email Chain, 4/19/22, Bates
Nos. X_BARCLAYS_00013880
EXHIBIT 30 Project X Commitment Letter,
4/25/22, Bates Nos.
X_BARCLAYS_00017246
EXHIBIT 31 Email Chain, 5/3/22, Bates
Nos. MUSK-XHOLDINGS_-
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 36 Text Messages Produced from
Mr. Musk's Phone
EXHIBIT 37 Email Chain, 5/8/22, Bates
Nos. MUSK-XHOLDINGS_-
EXHIBIT 38 Email Chain, 5/11/22, Bates
Nos. MUSK-XHOLDINGS_-
EXHIBIT 39 Email Chain, 5/13/22, Bates
Nos. MUSK-XHOLDINGS_-
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 40 Email Chain with
Attachments, 4/29/22, Bates
Nos. MUSK-XHOLDINGS_-
EXHIBIT 41 Email Chain, 5/1/22, Bates
Nos. AH001932 -
EXHIBIT 42 Document Titled "TWTR Banker
& Management Meetings
(5/1/22)," Bates Nos.
0001218 -
EXHIBIT 43 Email from
to
Messrs.
, and
, 5/1/22, Bates Nos.
0001137 -
Page
I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 47 Email from Ms. Claassen to
Mr. Birchall and Others,
5/9/22, Bates Nos.
MUSK-XHOLDINGS_00018479
EXHIBIT 48 Copy of a Series of Tweets,
First one from Mr. Musk on
5/13/
EXHIBIT 49 Email Chain, 5/16/22, Bates
No. MUSK-XHOLDINGS_
EXHIBIT 50 Email from Mr. Swan to
Mr. Armstrong and
Ms. Claassen, 5/18/22, Bates
No. AH
Page
I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
EXHIBIT 44 Partially Redacted Email
Chain, 5/11/22, Bates Nos.
QE-MUSK_000007287
EXHIBIT 45 Email with Attachment from
to
Messrs. Musk, Grimes, and
Birchall, 5/8/22, Bates Nos.
MUSK-XHOLDINGS_00017705
PAGE
EXHIBIT 46 Email Chain, 5/13/22, Bates
Nos. MUSK-XHOLDINGS_-
JANE ROSE REPORTING
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 51 Email Chain, 6/11/22, Bates
No. AH
EXHIBIT 52 Text Messages Produced from
Mr. Musk's Phone
EXHIBIT 53 Email Chain, 6/16/22, Bates
Nos. MUSK-XHOLDINGS_-
EXHIBIT 54 Text Messages Between
Mr. Birchall and Mr. Swan,
Bates No. AH
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 55 Email with Attachment from
Mr. Swan to Mr. Birchall,
Ms. Claassen, and
Mr. Ringler, 6/21/22, Bates
Nos. SKADDEN_0000545
EXHIBIT 56 Email Chain, 6/22/22, Bates
Nos. AH001404 -
EXHIBIT 57 Email Chain, 6/22/22, Bates
No. MSCO-
EXHIBIT 58 Email Chain, 6/24/22, Bates
Nos. MSCO-0106530 -
Page
I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 59 Short Message Reports
Between Mr. Steel and
Mr. Gracias, 6/25/22, Bates
Nos. VALOR_00003136
EXHIBIT 60 Email from Mr. Birchall to
Multiple Recipients,
6/30/22, Bates No.
MSCO-
EXHIBIT 61 Email Chain, 6/27/22, Bates
Nos. X_BARCLAYS_00024768
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110:24 116:22 117:117:16,16 120:124:21,22 128:131:6 134:21 139:142:1 150:11,158:4,24 164:165:4 166:7,177:25 180:25 183:184:6 185:5 191:195:2 197:20 204:211:13 216:8 218:220:23 221:22 223:223:8,18,20 225:226:7 232:16,235:6,16 236:240:24 246:247:20 248:1 249:261:19 262:24 264:265:15,24 266:10,268:3,9 269:272:14 275:20 276:276:10 278:7 284:284:19 285:17 287:293:9 295:6 296:297:18 298:2,299:20 300:16,301:6,22 302:307:10 309:5,8,312:24 314:5,317:18 318:319:22 322:324:23 327:25 328:328:9 329:believed 85:4 135:291:1,benefit 135:benefitting 226:best 22:12 102:110:12,18 149:152:9 223:25 224:250:8,9,13,315:23 316:4 318:331:Best-and-final 182:better 27:8 48:74:16 133:22 135:158:17 159:19,173:2,2 179:316:18 318:Beykpour 70:7,71:beyond 12:8 45:3,46:1 47:24,25 64:74:23,24 82:16,90:1 92:21 123:123:15 125:8 179:179:23 226:
239:25 240:251:14 329:big 45:5,13 259:266:23 284:24 307:308:6 311:bigger 210:8 242:bill 20:billion 49:1 277:295:8,13,15,Birchall 1:16 3:4 4:5:8,22 6:10,13 7:7:10 34:20 38:12,38:23,24 39:54:14,22,23 72:6,73:12 97:25 98:5,100:17,21,22 102:102:21,22 103:105:15,20,21 107:107:16,17 109:4,109:10 111:24 112:112:5 115:9,17,119:10,15,16 124:124:12 126:23 127:128:1 132:19,24,136:7,12,13 137:138:11,16,17 141:141:14,15 144:2,7,147:5,9,10 153:155:12,17,18 162:162:23,24 168:169:2,3 176:20,177:1 184:10,15,188:21,25 189:198:14,19,20 203:204:4,5 206:17,206:23 209:10,15,212:3,8,9 213:10,213:16 215:4,8,233:22 234:1,243:19,23,24 248:248:18,19 251:3,253:1,6,7 256:260:24 261:4,263:2,8,9 267:16,267:22 269:19,270:2,3,14 273:278:18,22,23 280:280:25 281:1 283:283:25 284:1 287:287:19,20 290:2,7,292:10,14,15 294:294:13,14 297:4,297:10 303:12,17,305:2,7,8 308:19,308:25 311:16 312:312:6 314:8,14,317:4 318:24 319:
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319:5 320:12,16,321:11,16,17 323:323:14,15 324:6,324:12,21 327:14,332:9 334:3,9 335:337:10,19 341:10,344:8 345:6 350:351:6 352:19 353:354:Birchall's 340:341:bit 125:20 168:231:15 237:2 310:310:25 316:Blair 3:17 335:blame 329:blank 331:blanking 18:bless 112:17,224:10,blessing 105:blips 252:16,block 37:blow 235:bluntly 113:blur 331:board 110:25 116:117:3,23,25 118:1,120:25 121:4,123:6,8,22 124:125:3,7,11,12 126:132:10 133:18 134:134:16,20 142:277:24 281:305:21 306:4 330:331:2,boards 125:Bob 217:15,20,218:15,19 219:220:20 221:222:11 223:226:11 229:9 230:230:25 276:10,12,294:15 297:300:17 303:25 304:309:4,20 311:312:16 314:315:20 316:317:19 318:5,9,318:19 319:6 321:322:11,book 199:bookkeeper/admini...
21:Boring 257:borrowing 107:bot 57:7 135:
175:11,15,24 202:237:4,23 238:242:5 260:11 325:bothered 211:8,Botometer 53:55:14,17,25 56:4,57:bots 122:2,11,158:16 159:2 163:164:2 179:12 180:180:14 181:7,12,181:15 182:5 201:201:25 202:12,19,237:14,17 239:1,4,240:9 241:5 242:242:21 249:7 259:260:6,14 266:272:20 319:bottom 98:19,20 99:101:2 106:3,130:1 133:4 144:210:14 213:215:17 234:9 244:270:25 285:292:17 297:10,303:21 305:11,309:12 319:bought 97:12 142:bounced 154:Box 336:bracketed 118:Brad 220:25 225:Bradley 205:brain 188:breach 302:breached 301:307:breaches 302:303:break 6:5 11:6,7 51:72:8,23 149:151:16 152:153:11 214:21 252:273:13 316:brief 204:briefed 42:briefly 12:15 13:14:13 20:briefs 302:Brigham 12:17,13:bringing 228:broached 173:219:17 220:1 237:broad 45:7 46:1 51:157:9 173:broken 179:4,
brought 57:5 217:217:23,25 225:281:24 310:Bruce 68:BTW 106:buffer 104:build 118:8 127:128:building 108:7 127:127:17 128:240:built 128:13 175:176:4,bull 313:bullet 98:21 106:118:12,12 178:4,178:10 211:business 12:22 29:2,97:4 101:18 121:170:7,11 205:220:23 333:buy 89:11,13,13,16,91:19,20 110:8,110:17 242:13,17,244:buying 89:7,21 91:94:6 100:7 110:111:12 120:4,244:BYU 13:B-I-R-C-H-A-L-L 6:C
C 2:1 3:1,1 5:cadence 223:17 256:Cain 3:24 5:17 335:calculating 74:calculation 237:249:6 290:calculations 77:calendar 24:call 31:2 33:1,16,42:5,8,8 44:22 45:60:12,20,24 61:4,5,61:11 114:5,6,10,115:23 136:19 138:139:19 141:18,21,142:2,7,20 143:2,148:11 151:5,157:23 190:15 196:199:21 203:204:14,19,22 205:205:14,20 206:5,208:20 212:16,213:3 216:8,218:6,21,22,226:13 265:11,
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266:1 269:9,270:13,15,17 273:274:13,14 275:3,276:6,9,14,277:13 287:6 291:291:24 301:13,303:4 304:13 305:305:23 307:2,6,8,307:18,20,22 308:called 113:24 114:4,117:7 130:18,149:19 155:157:15 261:13 269:calling 202:12,17,calls 25:10 44:46:12 137:23 143:149:8 151:9 155:162:12 178:1 180:180:22 181:5 197:206:7,10 257:1,264:18 266:15,267:3,7,11 268:268:12 270:272:13,24 273:300:11 302:10 303:camera 253:cameras 177:candidate 283:candidates 215:19,218:2 235:cannabis 140:capacity 36:13 97:225:2,6 228:231:9 332:capital 224:24 225:270:car 240:19 241:2 242:243:2 249:care 29:cared 195:6,career 182:15 225:cares 91:carrying 90:carryover 245:case 7:12 8:3,4 12:36:21 53:11 86:100:24 107:243:25 303:313:12,13,13,18,315:3,13 322:19,333:21 335:cases 26:2 155:4,156:17 157:16 221:250:cash 89:6 107:2,111:11 236:14,312:
cash-intensive 111:catch 328:Caught 324:cause 47:11 241:caused 242:14,causes 241:10,caveat 75:18 187:CC 156:CC'd 196:5 304:CC'g 155:ceased 316:cell 241:cells 241:censorship 145:center 177:2,183:16,17 237:345:centers 165:13 239:CEO 226:certain 13:4 27:3,5,39:3 56:16 58:9 61:78:11 92:11 93:94:1 95:25 113:117:20 118:153:20,21 158:159:2 160:20,165:21 170:24 178:179:8 184:19 192:193:17 194:4,207:1 219:17 259:261:7 262:18 276:291:22 299:16 301:303:21 312:8 325:325:15,16,16 327:certainly 11:3 29:5,42:8 48:11 61:1,67:21 76:23 92:93:4 97:8 122:1,129:16 134:12 135:142:13 147:1 148:148:24 153:20 154:157:11 162:1 175:181:24 186:6 208:219:19 222:8 231:236:4 240:22 242:248:7 272:11 296:299:24 318:325:certainty 10:9 106:200:24 201:8,Certificate 4:13 335:certifications 13:certify 335:4 337:CFM 13:6,10,CFO 217:2 218:2,219:2 222:7 225:230:11 235:
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CFOs 237:chain 212:10 285:340:5,14,20 341:342:9,22 343:5,9,344:13 345:346:12,23 347:6,347:17,22 348:9,348:19 349:5,350:6,19 351:352:5,13 353:13,353:21 354:challenging 251:310:2,championed 135:chance 277:6 312:CHANCERY 1:change 15:12,74:11 100:2,135:10 158:183:21 252:20 293:294:4 338:changed 28:12,33:3 87:1 195:285:changes 133:13 135:158:18 160:161:21,21 180:192:8,10 193:17,193:23 194:4,7,252:14 264:12,337:changing 74:characterize 21:characterizing 188:chart 191:check 31:17 218:checking 280:checklist 43:check-in 41:19 62:300:check-ins 41:chief 133:9 215:224:choice 118:chose 134:24 252:circle 28:circumstance 257:circumstances 187:Civil 1:Claassen 41:21 43:44:19 145:18 162:166:20 212:12 234:235:22 261:6 287:319:9 320:19 347:351:5,23 353:claim 202:14 260:328:
claimed 260:claiming 301:claims 260:3,5,7 328:clarification 332:clarify 110:3,3 268:clarifying 267:clear 10:25 87:6 96:189:6 192:17 237:247:12 257:9 265:302:24 316:317:16 330:clearest 250:clearly 110:6 134:153:13 186:188:15 191:23,231:20 326:client 16:15,19 93:clients 14:19 15:18:close 40:6 42:25 47:288:closed 114:7 192:closing 42:15 47:208:8 217:clue 327:code 6:collaborative 174:collective 234:combination 43:78:6 107:3 225:245:9 309:19 311:314:come 18:20 22:25:25 72:9,24 89:103:24 114:125:14 130:5 132:132:7 155:8 159:160:1 161:1 218:220:5 226:12,296:comes 162:8 200:201:7,12 209:239:comfortable 103:coming 81:25 149:176:13,14 187:188:5,10 224:249:5 277:11 331:Command 177:2,183:16,17 345:comment 53:122:18 186:306:22 333:commentary 145:276:comments 61:157:3 267:
commit 220:8 253:259:13 285:commitment 48:16,48:20,24 49:4,11,49:21,24 206:207:15 252:4 297:346:commitments 49:170:10 180:7,17,252:6 257:commits 257:committed 46:14,47:2 199:12 217:223:17 241:243:12 259:5,288:committing 267:common 98:18 183:commonly 98:272:communicate 23:25:22 26:15 27:30:24 32:19,22 33:33:11 34:12,97:20 98:15 239:282:communicated 27:63:19 64:5 119:137:6 214:14 282:284:communicating
205:communication 26:26:18 27:4 51:5,63:12 85:20 121:146:22 151:250:16 288:301:23 304:8,communications
32:17 45:25 50:50:19,20,21,24 51:52:9 60:17 64:83:7,12 85:16 87:88:17 122:20 151:151:5 187:21 197:209:24 210:5,211:21,21 233:256:8 262:8 276:276:21 279:280:12 284:288:14 289:291:10 294:2 301:302:11,21 303:5,304:10,12 328:Community 201:compact 148:companies 22:
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221:5 222:8 223:225:18,22 226:7,227:10,19 229:235:23 237:1,17,238:9,24 239:12,240:18 245:10 248:248:23 257:3 265:270:13 271:16,281:17 290:9 296:303:25 307:8,310:18,20 311:322:1,14,17 323:323:23,Elon's 108:2 133:135:25 140:11 172:178:21 225:4,230:6 238:25 239:252:20 261:284:14,15 293:295:10 296:305:19 331:EM 213:19,email 26:5,20,25 30:31:1,3,10,13,20 32:32:6,9,12,17,18,32:20,21 98:16,98:20 102:25 106:109:10,13 113:19,115:19,21 124:13,137:10,13 138:139:6,17 144:145:17 147:155:19 162:25 163:163:5 177:2 184:198:21,25 200:5,204:11 205:210:13,24 211:213:18 215:16,234:3,9 235:245:21 248:23 250:250:21 251:9 253:253:23 254:255:10,19 258:261:6 263:15 270:270:19 278:25 281:285:2 286:4 287:287:23 288:1 291:292:25 294:297:11 305:12 307:310:23 312:7 314:314:22 315:17 316:317:24 319:6 323:324:16 332:21,333:4,5,9,22 340:340:14,20 341:9,341:19 342:9,343:5,9,18,22 344:
344:13 345:5,346:5,12,23 347:347:12,17,22 348:348:14,19 349:5,349:21 350:5,11,351:5,17,21 352:352:13 353:5,13,353:21 354:12,emails 31:6,21 84:98:7 102:23 105:105:25 112:6 133:136:14 138:18 144:204:6 209:17 213:215:10,13 234:248:20 253:8,258:9,10 263:278:24 284:2,292:16 305:9 314:314:19 320:324:13 333:Emanuel 3:7 5:13,8:18 11:12,19,12:8 48:3,7 74:306:7 337:employed 14:1 21:22:1,2 23:1,2 335:employee 18:19 19:72:17 166:1,284:employees 15:4 20:21:18,19,20,22:25 52:21 53:165:16,18 307:10,employers 13:employment 13:17:2 195:24 197:217:17 218:encapsulate 153:178:Enclose 191:encloses 147:enclosing 184:261:7 312:encrypted 28:endeavor 128:ended 111:engage 116:9 217:engaged 40:14 47:57:14,16 58:6,8,63:21 64:6,8 65:217:21 220:222:21 228:engagement 57:11,63:20,24 64:201:20,21 226:279:12 308:1,engagements 64:1,
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engaging 279:enjoyable 322:enjoyed 133:enjoys 91:enrollees 265:ensure 84:14 86:88:3,ensured 47:entail 15:entailed 15:22 66:entered 59:entertainment 135:267:entire 14:10 17:88:3,5 242:2 312:entities 35:18,23,51:19 53:5,9,11,84:entitled 189:2 267:entity 10:24 22:2 23:35:16 36:entry 101:environment 252:310:2,4,5,envisioning 225:equities 251:equity 44:1,3,21 46:47:18 49:19 52:131:20 168:12,252:1,4,5 256:17,257:12 262:3 270:288:2,11 295:296:equivalent 126:errata 336:1,11,337:erroneous 104:errors 74:6,Esquire 1:21 2:5,17,3:Essaid 198:21 199:346:essence 165:2 171:224:18 230:essentially 267:established 36:1,estate 97:ethic 216:Europe 223:7 313:1,evening 204:event 120:eventual 298:eventually 95:192:7 296:evidence 216:exact 59:18 70:71:16 77:14 131:
259:exactly 43:2 121:139:17 141:6 147:175:17 181:18 205:218:4 220:13 224:246:20 258:310:21 323:Examination 4:8 7:153:8 332:examined 7:example 52:3 96:181:7 190:20 257:examples 20:exceed 104:Excel 14:excellence 216:exception 193:exceptions 26:excess 223:Excession 19:19,19:24 20:22,21:12,16,18,21 22:22:3,4 23:2,10 32:exchange 310:332:exchanged 60:81:15,16 94:236:25 310:Excitement 163:exclamation 299:exclusively 32:9 35:40:15 78:25 203:208:execute 44:11 233:296:executed 296:executing 96:182:execution 36:4 79:179:21 180:2,5,executive 67:195:executives 66:22,66:25 67:2,6,9,182:11 269:exercise 315:exhibit 38:10,12,16,39:8,11,17 54:12,54:23 57:9 68:79:18 97:23,25 98:100:14,17,22 102:102:16,22 105:12,105:21 107:11,109:2,4,10 111:112:5 115:9,118:11 119:8,10,124:5,7,13 126:
126:23 127:4,128:1,5 129:7,12,132:19,25 136:7,136:18,18 137:138:11,17 141:9,144:2,8 147:5,155:10,12,18 159:162:16,18,24 168:168:22 169:3 176:176:20 177:1 181:184:8,10,16 188:188:21 189:1 198:198:14,20 203:23,204:5 206:17,209:10,16 212:3,213:10,16 215:4,233:22 234:2 243:243:17,19,24 248:248:19 251:1,3,252:22,23,24 253:253:7 260:22,261:5 262:10,263:2,9 267:16,269:19,22 270:272:12 273:22,23,273:25 278:18,280:20 281:1 283:284:1 287:11,12,287:20 290:2,292:10,15 294:8,297:4,10 303:12,305:2,8 308:19,311:16 312:6 314:314:15 317:5 318:319:5 320:12,321:11,17 323:7,323:15 324:6,332:18 339:3,5,339:19 340:3,5,340:14,20 341:3,5,341:14,19 342:3,5,342:14,17,21 343:343:5,9,13,18,344:3,5,13,18 345:345:5,12,18 346:3,346:12,17,23 347:347:5,12,17,348:3,5,9,14,349:3,5,11,15,350:3,5,11,19 351:351:5,12,17,352:3,5,9,13,353:3,5,13,17,354:3,5,12,exhibits 4:17 38:311:21 331:exist 19:25 93:
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93:2 116:24 129:129:17 165:12,172:6 205:21 226:232:23 237:7 247:278:4,heading 59:14 201:244:headquarters 77:235:hear 11:2 75:3 98:114:2 286:13 327:heard 112:20 121:2,122:16 285:327:24 328:hearing 66:4 75:127:16 286:heart 293:heavily 248:held 142:11 241:20,help 18:24 54:5 97:114:15 118:8 131:132:2 134:1 154:182:17 208:18,209:5 217:3,218:13 220:4,222:2,2,4 226:12,231:20 250:10 277:281:24 316:5,322:15 323:19,324:helped 143:21 147:161:11 225:4 302:316:helpful 132:5,8 204:210:22 231:25 232:232:14,19 233:274:13,22,25 275:298:22 299:helping 20:14,147:20 154:23 203:220:24 230:helps 55:8 68:4 245:Hercules 2:hereunto 335:Hey 114:Hi 286:12 321:high 12:16,25 81:82:21,22 200:201:13 216:highlighted 175:191:3 196:high-level 264:high-profile 181:high-tech 238:high-value 82:hindsight 135:hire 219:1 281:16,
283:3,hired 29:3 152:217:12,13,14,15,hiring 19:11 71:13,72:historically 25:9 26:27:6 32:8,history 13:24 140:315:hold 29:23 30:4,14,34:18 84:17 85:4,85:11 290:11,18,291:12,15,23 292:292:5 293:8 294:Holdings 1:8,9,17,5:10,10,22 34:25,35:3,9,12,22,36:17,17 38:2,2 39:39:2 52:22,22,83:13,23 84:7,201:5,7,12 205:207:16,16 208:209:5 257:11 266:268:21,22 339:9,holds 29:18 85:home 24:homework 132:honest 129:6 331:hope 241:20,hoped 210:9 229:Horowitz 219:horse 140:hosted 130:19,hostile 144:25 145:hostility 145:hosting 204:hounding 322:hour 72:7 167:214:hours 9:23 11:12,11:23 37:23 167:196:4 236:HR 120:HRH 330:hub 177:hubs 238:human 259:hundred 88:18 237:hundreds 241:320:9 333:hung 114:hurdles 276:I
idea 34:7 101:21,118:21 142:167:15 174:4 299:
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315:3 322:ideal 182:ideas 154:5 286:9,286:identical 328:identification 38:38:19 54:15 57:63:22 98:1 100:102:17 105:107:12 109:5 111:115:10 119:11 124:126:24 128:2 132:136:8 138:12 141:144:3 147:6 155:162:19 168:176:21 182:5 184:188:22 198:15 204:206:18 209:11 212:213:11 215:5 233:243:20 248:14 251:253:2 260:25 263:267:17 269:278:19 280:283:21 287:15 290:292:11 294:9 297:303:13 305:3 308:311:17 314:9 318:320:13 321:323:10 324:identified 22:20 38:39:24 44:9 46:8,48:15 49:8 52:57:10 63:17 64:65:14 66:11 70:73:19 79:20 82:83:3 85:13 163:identify 5:19 21:45:19 57:22 181:idiotic 315:Ihsan 198:21 199:249:15 250:ii 1:9,17 5:10 34:35:12,22 36:17 38:39:2 48:18 52:63:23 84:7 207:208:8 339:iii 52:23 63:immediately 12:17:12 114:13,220:10 243:impact 172:21 252:6,impediments 190:190:important 152:7,192:23 194:25 238:244:18 308:impressed 27:
172:10 236:improve 180:7,182:4,improved 179:180:2,4,improvement 256:improvements 180:180:19,inbound 44:13,257:1,included 14:17 151:301:including 29:12 40:44:3 48:16 50:51:23 57:12 63:64:16 65:19 84:86:6 209:2 314:incorporated 159:incorrectly 74:increase 163:180:11 210:increasing 100:108:incredulously 237:independent 21:183:11 275:13 328:Index 4:Indian 65:15,17 66:1,indicated 44:14 89:133:indicating 36:indirect 21:20 282:individual 64:20 70:70:14 72:11 101:204:11 225:Individually 1:individuals 44:18 68:184:19 324:Induce 190:info 255:23 297:inform 55:23 58:informal 13:information 26:1 27:27:10,17,23 59:60:13 61:7 62:65:5,7,10 66:6 75:76:15 77:2,3,7,10,78:4,18,23 79:3,8,79:15 81:11,13,81:18 82:18 84:84:24 86:5,6,8 87:88:8,9,13,20 94:94:25 95:2 101:102:1,6 146:149:10 150:4 151:155:4,5,9 160:171:22,24 172:2,
172:17,18 173:176:9 200:17 201:211:25 215:221:18 229:8 241:243:12 245:10 247:256:9 258:22 259:259:8,13 261:275:1 291:1,4,292:2,4 294:299:15,16,19 300:300:14 301:1,302:10 306:15,322:24 324:22 325:325:19 326:2,14,327:5 328:informed 69:initial 48:25 61:8 92:100:2 109:16 143:148:11 150:15 156:157:22 216:218:21 221:12,233:10,12 257:258:19 278:11 288:initially 15:10 49:86:17 91:13 107:137:23 149:18 161:241:9 319:initiated 31:6 241:initiative 59:12 128:144:inner 28:input 302:inquire 118:24 125:254:1,21 255:inquiring 119:125:inquiry 131:inside 150:22 164:insight 201:9 210:275:25 276:instance 100:156:instant 85:instituted 71:institutional 96:101:9 178:2 265:265:22 266:2,9,272:13 292:instructed 124:160:instructing 302:instruction 23:instructions 64:65:1,4 90:3 91:92:5 137:25 319:336:integrity 324:
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midst 224:10,306:midway 107:19 200:317:mid-May 29:22 30:30:12,mid-to-late 58:3 60:62:22 85:4 301:Mike 61:3 279:million 22:16 74:12,285:11,16 295:15,millions 320:mind 21:22 46:5 106:106:8 108:12 162:176:14 180:10 209:239:mind's 331:mine 28:5 101:minimum 77:183:minor 12:23 241:minute 183:24 242:minutes 11:25 72:149:13 205:240:12 271:minute-to-minute
222:misrepresenting
245:missed 27:mission 178:19,284:25 312:mission-oriented
265:mistakes 74:8,8,Mm-hmm 43:24 68:71:11 84:13 106:138:23 170:3 253:265:9 267:25 277:279:10 304:6 317:322:mode 309:model 158:11,15,158:17 160:12 161:161:13,14,22 162:162:9,11 167:242:19,21 258:262:6 310:24 319:320:2,modeling 312:models 160:15 162:175:1,1,2,13 176:3,176:7 228:1 229:230:23 231:275:14,24 310:7,310:12,13 312:modes 51:
modifications 176:moment 29:17 109:111:11 114:18 117:118:2,4 133:157:12 159:162:10 173:174:12 185:192:18 194:14 213:222:22 240:7 247:306:14 311:6,316:moments 162:Monday 189:204:monetizable 246:monetize 164:242:money 18:4 59:91:18 160:3 296:monitoring 177:monopoly 286:month 8:15 19:158:24 286:monthly 255:months 306:Morgan 10:12 17:9,18:5,6,13,19 40:40:20,22 41:9,43:7,11 44:11,16,45:3 46:8 47:17,49:5,7 94:6,15 95:95:9 97:5 114:115:24 116:14,117:6 130:25 131:133:1 134:13 136:136:22 137:6 138:139:1,6,11,140:19,22 141:2,142:4 143:8,144:9,20 145:5,146:13,21 148:12,150:1,3,14 152:154:4 156:6,157:1,15 160:13,161:1,6,9,24 162:163:22,25 164:5,165:6,20 166:12,167:2 171:2 173:173:17,18 178:181:1 189:2 190:199:16,18 203:9,204:12 205:4 208:212:11,17,25 213:214:15 215:220:10 234:235:10 238:244:13,15 245:3,
JANE ROSE REPORTING
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245:10 256:261:20 262:9,12,263:20,24 264:265:3,6,15,18,266:9,14 269:7,280:8 285:1 294:299:21 300:309:20 313:6 314:319:11 320:323:16 344:5 345:Morgenfeld 219:morning 5:6 7:10 12:137:14 263:Moskowitz 3:25 5:motivation 333:motivations 10:motive 293:move 91:11,16,20,110:9 116:24 146:214:4 218:13 232:247:16 268:280:10 320:8 327:moved 238:22 298:320:1,7,moves 232:6 247:moving 99:11,211:5 222:6 231:MSCO-0052094 343:MSCO-343:MSCO-343:MSCO-0065572 347:MSCO-353:MSCO-353:MSCO-354:MSCO-341:MSCO-341:MSCO-342:MSCO-343:MSCO-347:Mudge 72:17,327:multiple 35:23 53:118:9 179:21 218:225:5 249:7 284:311:6 347:7 354:mundane 238:murder 253:
Musk 1:8 5:9 7:12:13 18:15,16,18:21 19:7,13,20:7 22:8 23:6,16,23:21,25 25:1,26:16,24 28:7,30:10,25 31:1 32:32:19,22,25 33:9,34:6 35:7,15 36:36:18 38:5 50:7 53:53:8,16 59:3 60:4,60:23 62:5 63:9,66:14 67:1 75:8,78:13 83:19 85:89:1 90:21 95:96:3,14,25 97:2,100:10 107:1 111:111:21 114:117:15 119:17,120:14,25 121:122:11 123:3 124:124:20 125:21 126:126:8,16 127:11,128:6,21 130:8,130:24 133:15 134:135:2 139:2 141:141:25 142:19,147:11,13,17 148:149:4,18 150:1,151:2 152:4 153:154:3,25 156:1,2,156:11 157:4 161:161:17 162:6 163:163:21 166:12,169:16 171:2 172:174:1,20 175:178:10,17,18 183:184:4 185:15,188:2 189:23 190:190:16 191:192:23 193:5 194:195:9,24 197:4,198:5,22 202:17,203:4,13 204:205:21 206:208:20 210:211:18,20 213:215:10,16 216:17,221:3,7,20 224:226:25 229:230:20 232:1 235:235:19 240:14 241:242:4 243:7 244:244:23 245:5 247:247:15 248:23 249:251:10 253:10,254:11 255:
257:11 261:6 264:266:20 267:8 270:270:21 271:272:15 277:2,281:3 282:9,17,283:14 289:6 290:290:16 291:6,293:16,21 303:304:7,11,18 306:307:11,22 311:317:11,23 321:324:21 332:17 342:343:22 346:6 350:351:Musk's 32:3 45:93:2 94:3 122:147:25 154:8 165:181:6 192:20 246:315:17 330:20,348:6 352:MUSK-XHOLDINGS...
347:MUSK-XHOLDINGS...
344:MUSK-XHOLDINGS...
344:MUSK-XHOLDINGS...
342:MUSK-XHOLDINGS...
350:MUSK-XHOLDINGS...
346:MUSK-XHOLDINGS...
343:MUSK-XHOLDINGS...
351:MUSK-XHOLDINGS...
350:MUSK-XHOLDINGS...
349:MUSK-XHOLDINGS...
345:MUSK-XHOLDINGS...
340:MUSK-XHOLDINGS...
351:MUSK-XHOLDINGS...
340:MUSK-XHOLDINGS...
340:MUSK-XHOLDINGS...
348:MUSK-XHOLDINGS...
346:MUSK-XHOLDINGS...
345:MUSK-XHOLDINGS...
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JANE ROSE REPORTING
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116:6 121:9,126:3 131:15 149:156:15 175:20,178:4,15 180:202:24 216:9 246:253:23 270:272:11 288:289:13 325:privacy 27:12 31:private 14:16,21 15:17:9,19 27:6 31:32:1,4 101:134:10,15 142:147:12 270:privileged 75:187:21 193:197:12 279:302:10 303:5 305:privy 148:5 262:4,pro 316:proactively 277:probably 18:18 54:63:2 77:24 86:98:17 143:21 184:212:21 223:286:25 287:9 288:295:17 305:315:problem 278:problems 182:202:proceed 7:5 39:91:25 98:21 186:189:19 191:9 245:298:9,10 331:proceeded 161:proceeding 251:proceedings 153:231:proceeds 245:process 86:7 161:181:11,14 228:237:20 238:6 256:257:16,17,19,259:17 301:produced 100:107:18 243:263:13 303:331:15 333:340:10 341:5 348:352:product 163:10,164:16,productive 240:4,professionals 83:84:profile 101:8 145:1,
239:profitability 163:program 16:18 91:progress 42:10,60:14 92:8,9 231:231:13 301:15,project 144:10,206:25 315:24 316:316:11 345:346:projected 158:projecting 315:projections 157:158:2,3 159:7,161:24 162:6 165:166:5 295:10 309:309:18,22 310:15,311:4,10 312:313:7 315:5,prolonged 149:promises 181:182:promotes 108:pronunciation 220:proper 220:properly 84:properties 23:177:property 22:25 23:proposal 139:15 170:170:6 188:15 192:304:proposals 142:192:19 283:propose 236:2 264:311:proposed 139:10,139:21 157:3 158:161:21,21 180:192:10,20 193:22,194:3,4,8,21 195:198:4,5 226:234:proposing 95:115:25 116:1,192:22,25 193:196:19 264:propounded 337:prospective 237:protected 28:protocol 238:325:proven 179:22,provide 18:1 68:101:8,25 161:186:4 193:1 203:203:20 211:25 221:
JANE ROSE REPORTING
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227:14 248:8 256:259:7,14 275:288:provided 11:15,62:5,11 78:19 79:81:11,13 86:1 88:88:14,20 90:2 121:124:20,21 134:156:7 157:3 161:5,161:15,18 178:198:19 215:25 229:243:13 247:2 259:282:2,23 283:292:3 300:14 301:301:10 304:19,20,312:providers 42:16 252:provides 118:providing 85:19,86:8 96:18 156:187:18 188:3 199:210:16 243:12 245:256:6,10 258:275:25 276:3 281:301:1 308:provisions 42:196:9 197:proxy 50:17 176:213:20 214:2,8,310:prudent 110:public 3:17 6:7 7:90:4 93:17,22 96:97:12 106:14 108:119:24 131:132:12 133:134:10,17 135:3,142:16 160:16 172:173:6 174:13,18,175:7,25 176:210:17,17 291:308:6 335:1,6 336:336:7 337:publicly 89:25 95:106:16 171:172:14 201:239:18 247:22,24,248:9 249:pull 41:11 162:171:pulled 134:Punchline 145:purchase 9:4 29:90:3,11,14,17 91:99:10,11 107:108:13,16 109:110:20 111:
120:12 147:purchased 108:111:8,purchases 29:9 88:94:3 96:13 97:120:13 137:7 329:purchasing 89:2 90:91:8 92:17,23 99:108:16 110:15,purported 74:6 247:purpose 24:11 27:29:15 50:18 57:87:15 96:22 165:167:4 169:22 172:186:1,22 216:234:14 260:2 261:262:3 280:9 288:312:purposes 35:156:15 166:pursued 191:pursuing 111:push 258:5 312:pushed 195:5,9,196:7,pushing 196:213:20 214:put 113:19 131:132:1 135:22 181:208:17,24 241:257:20 261:278:12 291:23 292:333:Putin's 244:putting 178:3 257:291:12 293:7 306:326:PWP 274:13 275:3,p.m 24:6 137:152:25 153:1,3,5,214:24 215:2 273:273:18 316:24 317:334:7,Q
QE-MUSK_341:QE-MUSK_350:qualifications 222:qualified 13:18 232:318:qualifying 109:quality 222:13,quantified 165:quantify 259:quantifying 160:
quantity 91:quarter 254:12,quasi-advising 230:quasi-co-leads 199:question 11:3,4 30:49:2 52:5,7,8,11,52:15,16 74:75:19 94:24 96:101:7 104:15 113:114:16 117:2 130:139:20 151:157:10 171:13 189:193:12,25 202:219:6 231:17 237:237:16 241:5,10,242:9 257:9 265:265:16 273:296:23 332:9,questionable 315:questioned 10:questioning 9:19,10:17 258:questions 9:25 10:10:17,24 11:2,74:18,19,21 93:3,97:19 114:23,158:7 186:14 232:234:20 239:241:13 242:15,273:3,5,9 289:327:20 329:3,330:13,14,15,22,331:1,2 332:1,10,334:1 337:quick 136:quickest 184:quickly 117:12 135:145:23 146:227:22 245:318:Quinn 3:7 5:13,8:18 11:11,12,19,12:8 30:1 48:3,7,59:13 74:18,306:7 337:quite 164:24 168:222:20 238:7 262:quotation 106:21,quote 187:9,quotes 181:4 201:202:Q1 310:R
R 1:8,21 2:1,5 3:1 5:5:rack 188:
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raise 69:19 72:230:19 264:raised 69:23 76:23,92:15 113:11 249:304:raises 225:raising 69:16 71:131:19 244:264:random 306:ranging 97:rarely 223:rating 297:21 298:3,298:reach 33:5 41:18,42:1,2 96:21 97:97:14 115:4 128:130:25 131:5 210:227:1 290:20 319:reached 116:16 131:131:23 133:5 136:137:2,22 219:227:8 277:7 279:288:19,23 301:reaching 118:210:10 227:reaction 168:237:13 282:read 4:15 36:20 37:174:17,20 186:3,186:11,16,20 196:196:22,23 282:291:20 333:13 337:337:readily 94:21 160:reading 98:25 118:196:8,13 309:335:reads 40:1,4 43:47:7 48:15 50:63:18 64:15 65:73:19 79:20 86:145:22 170:4 187:274:12 317:ready 42:17 43:177:25 220:5 231:231:25 232:real 97:realistic 309:15 310:315:realizes 246:realizing 246:really 24:21 66:3,106:24 185:19 241:268:23 299:307:23 322:325:10 327:
rear-view 112:reason 7:13 16:10,16:20,22 17:5 25:69:12 105:24 109:112:10 113:14,116:9 129:2 155:194:9 242:7 250:253:13 313:11 338:reasonable 25:reasons 48:18,49:11,13,22 50:63:25 134:18,156:23 231:recall 8:24 9:22 10:11:15,23 19:9 29:29:21,25 32:23 34:37:11,13,14 41:3,6,41:16 43:11 44:44:24 45:10,15,47:3 55:2,5,6,7 58:59:23,24 60:4,10,60:23 61:2,6,10,61:17 62:9 63:6,8,67:3,4,7 69:5,21,70:2 71:3,8,16 74:74:25 75:4,5,9,12,75:23,25 76:1,4,5,76:10,13,16,17 77:77:9,14 78:1,2,13,78:18 79:10,80:15,17,21 81:85:6,8,10 86:20,86:24,25 87:2 88:89:3 91:3 92:15,102:8,13 107:115:21 116:15,17,117:22 118:23,119:5 121:1,14,121:23 122:6,8,122:15,20 123:124:1,15 125:5,125:23 126:4,8,126:12 127:130:21 131:2,3,135:24 137:18,139:15,17,21 140:141:1,2,4,6,20 142:142:8,19,22 143:143:13,23,25 145:145:8,12,13,146:15,22 147:1,148:6,24 149:150:2,4 151:17,151:22,23,24 154:156:5,8,25 157:157:22 158:9,10,158:19,22 161:10,
JANE ROSE REPORTING
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161:25 162:1,2,163:2 164:7 165:5,165:11,12,14 166:166:15,17 167:6,167:13,18,21,168:14 169:8,11,169:20 170:12,14,170:19,22,25 171:171:5,9 173:16,174:3,17,23 175:3,175:14,16,17,19,175:24 176:183:20 184:185:11,13,14 186:186:11 187:1,3,187:17 189:4,7,9,190:1,6,13,23 191:192:8,10,19,21,193:5,7,8,13 194:195:1,3,11 196:8,196:13,22 197:3,197:17,18,20,198:25 199:1,19,200:1,10,19 202:4,202:8,14,18,203:4,16,18 204:205:3 206:4,7,207:2,3,4,6 211:212:16,24 213:1,2,213:23 214:1,3,4,6,218:23,24 219:7,220:13 223:9 224:224:14 227:4,15,228:15,20,23 229:229:4,16 231:236:16,20,22 237:237:9,9,15 238:8,239:3,6,24 240:9,240:24 241:1 242:243:1,4 244:245:1 246:19 249:249:24 256:8,257:13 258:17,259:6 261:9,10,262:8,11,12,13,263:11 264:14,15,264:18 266:2,4,7,267:3 268:4,269:13,15,17,18,270:16 271:19,272:13,23 273:2,4,275:21,22,25 277:278:14 279:24 280:280:11,16 281:282:7,8,10,13 283:283:8,9,10,11,284:6,20,22 285:
286:1,20,22 287:287:23 289:21,291:10 295:12,22,299:20 300:4,301:7,9,11,13,17,304:17,18,22 305:306:2,3 308:14,308:17 310:16,19,310:23 311:1,3,5,311:13 312:320:23 321:1,3,4,6,321:9 322:12 323:323:5 330:15,22,331:recalled 240:recalls 330:recast 73:20,24 74:75:1 76:19 77:212:23,receipt 30:3 170:336:receive 29:23 62:156:9 336:received 44:21 62:64:17 65:1 85:102:6 105:25 109:110:23 112:113:22 114:6 123:123:9,9 155:215:12 253:283:11 287:23 308:308:11 314:324:22 325:3,10,326:2,14,22 327:receiving 30:16 85:114:12 115:21 124:163:2 184:21 198:199:1 261:9,281:5 283:9 284:301:11 305:23 325:Recess 73:8 214:273:17 316:recessed 153:Recipients 347:354:recite 196:recognize 98:9 284:309:recognized 181:recollection 30:59:18,18,25 60:61:19,21 87:141:17,22 142:143:1,11 152:11,152:18 157:5,162:5,7 171:173:21,24 186:
187:24 188:12 190:191:12 192:13,15,193:20 195:7,17,198:2,8 204:212:20 213:5 224:258:15 259:14 271:271:11,11,21 283:303:7 307:11,316:9 325:6 326:330:recommend 187:232:15,recommendation
35:24 36:3 139:218:16 275:recommendations
185:recommended 27:139:2 232:recommending 233:reconfirm 113:reconfirming 104:reconvene 153:record 5:7 6:11 73:73:10 152:25 153:182:14 214:24 215:250:23 273:16,316:21,24 317:328:24 334:7 335:record's 302:recurring 24:5,26:11,redacted 279:5 305:342:21 350:reduce 163:17 164:285:16 298:21 299:reduced 335:reducing 166:reduction 48:17,49:12,13,14,165:21,23 166:1,3,refer 7:24 16:23 57:79:18 192:2 203:244:reference 55:12 93:103:23 105:5,106:23 108:1 116:140:7,9,12,14,159:22 161:175:23 177:187:16 200:8 213:213:24 218:20 246:298:referenced 30:66:21 67:16,19 68:85:3 136:18 140:180:2 227:18 313:
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references 80:214:17 253:referencing 69:1 77:81:6 99:22,23,108:2 110:25 120:246:2,3,13 247:9,247:21 296:2 298:307:referrals 258:referred 10:14 56:80:5 88:23 114:202:20 235:referring 30:7 42:44:17 45:2 54:59:10 66:24 72:77:11,17 78:20,79:13 80:6 82:87:7,9 88:6 109:114:20 118:18,138:24 144:11,146:1,3 164:18,183:1 191:13 201:207:20 211:12,248:2 253:22 254:254:6 256:2,4,260:12,19,20 268:268:20,25 278:285:17 288:6 289:293:6 294:5 295:297:16 298:25 299:299:11 307:6 326:refers 49:10,20 55:70:7 84:25 116:140:17 163:6 177:189:24 200:6 205:234:25 253:270:20,reflect 165:25 179:182:reflected 161:reflection 310:refresh 141:17 186:204:refund 107:6,refused 195:regard 9:2,20 10:20:6 29:11 33:34:3 37:19,25 41:43:8 45:16 46:47:22 48:7 51:55:9 57:8,11 61:66:1 83:10,19 84:91:8 93:21 110:111:8 123:20 140:147:21 151:153:16 154:9 158:159:8 161:19 168:
170:23 171:10 179:192:21,24 195:203:6,13 209:5,217:9 222:5 225:231:9 243:8 246:256:23 264:9 279:283:1 288:11,304:16 313:17 329:329:22 332:regarding 10:21 16:31:22 37:9 43:55:24 57:1 58:59:1 60:5,11 63:1,63:13 65:4,25 66:66:22,24 75:76:15,18 77:4 80:83:23 93:14 94:94:17,17,19 99:102:9 114:16 121:121:24 122:21 123:130:22 131:9 137:138:1 140:19 142:142:22 145:5,8,147:11 154:161:24 162:6 165:165:13 167:169:11 170:173:17 176:185:15 187:4,189:23 190:14,20,193:9 197:4,200:20 201:212:25 214:7 215:221:17,25 228:16,229:6 237:11 239:239:7,23 240:242:4 256:9,262:9,16 264:272:10 273:3 282:283:14 284:288:15 290:291:11 296:1 302:302:19 304:5,310:19 311:4,312:23 320:24 321:330:15,23 331:regards 199:registrations 13:regular 164:25 210:5,223:regularly 209:25 210:210:3 252:regulated 27:17,95:regulatory 13:4 93:200:25 201:regurgitate 273:
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reinforced 238:reiterating 227:reject 197:1,5,relate 9:3,19 10:51:14 73:related 9:22 20:8 57:79:12 84:17 103:160:8 299:21 335:relates 140:relating 8:6 29:40:12 50:25 60:67:15 77:8 79:8 83:84:15 144:10 150:157:2 240:8 241:242:20 243:1 263:272:12 278:15 323:relationship 52:96:20,24 97:224:relationships 229:relatively 132:192:16 241:relay 26:relayed 155:release 91:relied 40:15 53:6 56:174:13 175:relying 44:10 171:175:8,14 176:1,remain 16:4 47:remainder 87:remained 293:remaining 46:remains 170:2 288:289:1,16 293:11,293:17,remember 18:18 41:66:3 134:14 138:139:16 150:17 152:173:22 188:5 190:195:5 202:11 217:225:15 243:270:15 273:7 275:277:8 282:3 306:308:16 326:6,332:24 333:remembering 233:2,233:remind 68:7 75:Remote 3:17 335:remove 145:24 190:192:removing 191:renewed 255:21 256:rented 23:renting 184:reoccurring 236:
repeat 11:repeatedly 260:repeating 165:rephrase 11:replaced 228:report 23:12,14 221:301:9,11,15,326:reported 324:326:16 328:reporter 3:24 4:5:17 27:18 98:100:15 105:126:21 243:252:23 287:295:14 335:2,REPORTER-NOTARY
335:reporting 1:25 3:5:18 106:14 170:221:5 336:reports 253:24 321:354:repositories 300:represent 5:20 7:35:5 38:25 100:290:representation 172:representative 10:21:16 94:representatives 10:10:13 21:24 141:142:5 166:18 199:212:represented 8:request 5:15 16:26:3 50:20 77:11,78:4,9,14,19 241:243:11 285:331:10,requested 77:3,8,81:19 83:14,258:3 285:7 335:requesting 101:158:requests 76:13 79:79:15 84:15 85:221:19 299:15,19,299:24 300:2,4,5,7,300:15 325:require 187:required 120:7 169:336:6,requirement 103:103:25 106:15 113:requirements 94:4,94:18,
requires 120:rescheduled 24:research 74:20 97:150:researching 14:reservation 332:reserve 327:20 331:reserving 329:residence 183:184:resonating 191:resources 150:respect 37:9 44:respond 33:14 108:250:3 278:1 279:286:12,responded 130:192:7 223:25 235:293:responding 130:293:responds 127:130:8 211:response 78:131:22,25 132:192:20 213:8 249:253:23 300:responses 37:1 86:86:12 181:responsibilities 14:17:24 20:6 23:responsibility 20:20:responsible 43:7 78:154:19 208:300:rest 118:restate 193:restatement 76:77:6 211:9,241:restrictions 123:10,123:result 30:16 56:170:8 285:results 64:retain 56:17 58:143:15 159:225:retained 55:18 56:56:13,22 57:23 58:58:4 61:2 143:8,167:2 218:7 276:294:20,22 300:304:retaining 93:retention 83:6,
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335:step 24:24 48:4 192:228:4 229:11 315:316:4 323:19,steps 117:9 132:136:25 143:167:19 172:stock 20:16 88:24 89:89:6,8,12,13,14,89:21,23 90:3,7,90:14,18,25 91:9,91:14,21,22,23 92:92:17,24 95:96:14 99:7,13,101:24 108:20,110:5,12,15,16,110:23 111:9,14,120:2,14 137:160:3 210:17 329:stockholder 102:stood 256:20 276:stop 332:5 333:9,storage 83:story 258:straight 223:24 224:315:22 316:straightforward
149:Strain 251:strategy 172:7 252:stratification 79:21,80:4,4,12,13,19,81:stream 144:Street 2:7,stress 158:15 162:274:15 275:strike 37:16 302:string 178:structure 53:7 101:178:3 231:12,struggling 220:stuff 153:21,21,154:1 159:17 177:179:13 330:subject 25:14 34:76:1,2 170:6,8,10,170:20 177:5 196:228:subjects 237:submitted 86:subscribed 337:subscription 266:subscriptions 164:subsequent 48:49:substance 50:
329:23,24 337:substantive 44:45:1 81:16 276:Subtle 327:sub-investor 286:succeed 179:succeeding 190:successful 180:207:23 208:7 219:successfully 219:suggest 43:3 146:237:24 247:15 250:277:5 332:suggested 20:32:24 79:11 100:130:24 151:17 223:232:10 246:277:25 329:suggesting 45:3 92:114:8 115:23 128:130:15 146:suggestion 146:246:suggests 135:148:8 205:Sullivan 3:7 337:sum 88:Sunday 89:super 116:23 186:support 14:16 200:supported 247:supporting 14:290:supposed 41:24 42:sure 20:14 21:6 39:42:1 46:13 53:57:6 58:7 59:67:10 70:17 72:73:3 75:7 81:82:16 83:24 87:87:21 88:25 106:106:25 139:19 140:146:5 152:21 156:165:22 167:3 196:196:21 198:7 214:217:18 220:13,227:5 242:1 249:251:23 266:4 282:282:16 306:329:20 331:surpass 104:surprised 125:239:surprising 125:146:surrounding 171:suspect 254:
JANE ROSE REPORTING
1-800-825-
suspecting 254:255:Swan 217:15,218:15 219:1,220:3,12,15,221:2,11,21 222:223:5 224:6,225:9 226:11 227:228:17 229:7 230:230:25 281:294:15,20 297:299:3 300:17 309:310:15 312:8,314:3,4,16 316:3,317:19 318:5,9,318:19 319:7 323:351:21 352:19 353:Swan's 218:4 322:swear 6:sworn 7:2 335:syndicate 40:4,44:2 47:9 208:syndicated 49:syndicating 285:Syndication 207:208:7,systemic 202:systems 83:T
T 3:1 339:1 340:341:1 342:1 343:344:1 345:1 346:347:1 348:1 349:350:1 351:1 352:353:1 354:table 4:1 225:tactical 189:15,191:take 6:4 11:6,7 14:24:24 36:16 64:72:8,22 143:149:11 151:152:20 156:3 172:173:3 186:6,13,186:17 188:192:12 214:220:20 223:22 228:236:4 255:15,273:13 316:takeaway 146:167:taken 5:13 29:19 70:93:17 95:12 178:335:3,talent 192:talk 163:25 164:
168:5,11 333:talked 120:24 126:148:25 151:6 163:168:3 239:7 251:272:5 299:talking 46:13,15 92:98:11 116:2 122:159:14 163:168:12 177:5 178:205:3 260:15 266:272:9,25 333:talks 105:1 110:163:9 189:15,263:18 270:tangentially 14:tango 163:tapped 220:target 91:13,13 92:106:4,8,9 145:165:23 255:256:22 257:target's 145:tax 107:6,Taylor 147:11,343:team 11:11,12 14:15:3 31:15,23 37:40:15 41:20 44:44:15,17 45:47:16,17 48:10,49:7 56:11,18 58:65:3 67:11 69:70:21 74:19,22 75:78:7,7,24 79:2 80:80:14 88:7,7 93:116:2,8,13,131:13 135:137:15 139:11 149:149:9 150:7,8 154:154:4,5,15,16 155:171:25 172:24 173:177:14,16,17 181:183:13 184:3 201:209:23 217:220:10,11,21,227:14,22,23 228:234:21,22,23 235:236:3 239:16 243:248:8 258:11 265:266:10 268:8,269:7 274:15 275:292:21 300:12,309:20 322:15 324:324:teams 27:22 35:36:4 47:24,25 53:59:8,9,12 61:1 67:
75:7 83:17 85:115:2 117:6 118:195:21,team's 146:10 315:315:team/teams 61:tech 238:technical 84:199:technically 19:18 22:84:10 116:21 265:technology 181:technology-aided
181:teens 301:telephone 24:tell 7:20 35:2 37:8 42:50:24 51:8 64:117:21 123:1 177:196:23 199:2 236:258:12 272:282:17 316:327:17 333:telling 103:13 318:temporarily 290:10,290:ten 16:3 72:8 240:tender 145:9,191:24 192:term 48:10 51:3 71:79:22 145:13 191:199:15 203:1 220:220:9 247:terminate 17:2 227:291:23 293:terminated 23:49:24 69:1,4,20,70:11,16 71:224:19 232:terminating 289:293:termination 48:19,49:21,22 67:24 69:69:15 70:19,258:1 289:terminations 67:terms 40:5 132:164:21 180:5 201:226:8 241:Tesla 32:12 90:1,93:9 97:18 130:239:20 252:test 274:15 275:315:testified 14:24 16:39:14 52:25 110:119:23 159:23 168:
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174:12 188:192:18 194:2 256:329:testify 7:4 46:testifying 37:9 73:testimony 7:14 8:12:5 97:11 272:301:6 335:8,testing 158:15 162:Texas 6:15,21 22:25:5 51:23 52:166:12 169:16,170:14 262:18,text 26:5,20,25 31:33:8,14,17 85:94:14 98:18 101:110:23 116:7 121:123:7 247:11 309:309:11 317:6,340:10 341:5 348:352:9,texted 33:13 309:texts 33:9,12,24,34:1,4,6,9 84:100:23 107:243:25 245:2 273:276:22 303:19,321:thank 6:24 7:6 38:39:12 54:10,18,98:3 102:19 105:107:14 109:7 112:115:12 119:124:10 127:1 132:136:10 138:14 139:141:12 144:5 152:155:15 162:168:25 176:184:13 198:206:20 209:13 212:213:13 248:16 251:253:4 261:2 263:267:19 269:280:23 283:287:17 290:5 294:297:7 303:10,305:5 308:22 319:321:14 323:12 324:329:4 331:22 334:334:4,thanks 38:9 118:139:9 252:24 289:that'd 133:theoretically 217:6,252:thereof 107:thesis 91:4 204:
205:they'd 63:10 74:thing 97:10 116:139:4 151:13 152:153:24 164:183:23 223:16 279:things 10:19 13:5 20:20:13 22:16 24:27:6 31:14,19 37:43:4 57:7 97:16,115:2 122:9 128:135:9,13,17 142:145:15 148:6 152:152:10,12 154:156:18,19 160:167:11,12,12 178:180:8,10 184:194:25 195:1,2,3,196:7 200:3 203:218:13 221:19,226:4 228:1 231:237:3,8 258:267:2 272:15,276:4 298:12 312:think 11:16 16:26:18 31:10 35:38:3 41:15 42:4,42:23 43:14 45:50:5 56:15 63:68:13 69:17 70:77:19 85:18 86:87:11 88:2,17 89:94:13 99:23 105:8,109:23 110:4 115:116:6 120:3,121:25 122:131:13 132:2,133:12,17 135:136:1 137:23 138:140:16 147:18 148:148:18 150:152:21 157:11,159:13,21 160:1,161:3,4 164:168:2,3 178:1,6,181:1 182:9 184:185:17 195:20 196:199:11 201:5,202:21 205:11 210:210:21 213:218:19,20 219:221:16,23 222:224:24 225:12 226:226:10 227:229:11,22 230:231:19 232:234:19 237:
JANE ROSE REPORTING
1-800-825-
238:17 240:2,241:6 245:8,11,246:21,22 247:18,253:23 257:258:12 264:7 268:269:5,16 270:272:12 274:20,276:10,20,22 277:278:3,11 280:285:23 286:24 287:287:7,8 288:291:16,17 294:295:7 298:8,302:5 307:13,17,312:25 313:21,316:12 319:20,322:12 328:329:14,14,14,333:thinking 13:20 23:31:14 45:6 128:128:18 129:2,4,130:16 132:134:22 135:7 146:241:7 274:15 287:thinks 128:11 135:230:third 80:24 81:101:5,5 156:212:12 233:5 236:303:21 314:third-party 308:9,thorough 58:thought 99:11 114:127:12,16 128:11,129:5,13 130:255:16 275:326:thoughts 61:8 109:144:24 150:24 154:232:18 251:275:22 281:12 283:286:thoughts/ideas 250:332:thousand 15:19 16:18:thousands 333:three 7:19 21:9 43:43:16 44:18 55:57:24 58:8 118:166:17 205:25 233:252:15 313:three-week 223:9,224:threshold 94:9 100:6,103:
thresholds 93:24 94:94:10 95:25 104:thrown 139:tied 167:time 5:12 9:14,14:11 15:12 18:9,19:13 21:3 24:4,7,33:2,3,4 37:21 58:60:16,22 72:13 73:73:10 89:5 90:2 96:100:3 104:17,106:7 111:11 112:113:4,11 116:4,116:22 117:1 120:120:24 121:9 122:122:10,24 125:3,126:16 131:133:20 135:5 136:137:5 143:6 145:148:3 151:11,11,152:25 153:7 155:162:3,10,15 164:167:1 170:5 171:173:21 174:181:14 185:188:16 189:191:22 194:202:22,24 204:213:6 214:20,215:2 222:14 224:227:4 230:5 232:250:10 251:262:14 273:16,274:19 281:294:20 298:18 299:310:22 311:6 316:316:24 317:2 323:323:22 325:3 327:328:23 331:17,332:2,7 334:timeframe 113:121:17 146:158:23 192:330:timeframes 28:timeline 40:7 44:63:23,23 64:18 65:times 7:18 24:7 25:5,25:10,11 31:17 41:42:4 43:15 86:87:2 113:10 119:146:24 165:212:21,22 230:280:17 306:time's 327:timing 9:7 10:18 27:70:17 71:16 116:
116:19 141:7 214:214:timing-related 9:title 19:16 35:9 153:Titled 349:titles 19:17 218:toaster 242:13,17,today 7:14 8:19 11:1,11:10,24 30:9 34:65:10 66:8 67:84:7 112:20 135:324:21 331:Today's 5:Todd 219:8 225:told 47:1 80:10,117:12 123:9 133:238:3 289:16,tomorrow 238:244:tongue-in-cheek
140:7,tool 53:23 55:14,17,55:25 56:4,top 102:24 112:137:13 138:19 139:145:17 164:192:24 212:216:19 235:23 237:245:17,21 246:248:22 253:16 274:307:2 320:18 324:topic 39:23 40:43:22 44:9 47:6,48:14 50:13 52:55:9 57:9,10 63:64:14 65:13 66:66:21 68:9 73:13,75:6 77:25 79:19,82:7 83:2 85:173:23 194:11,196:11 219:229:17 237:239:12 297:18 300:300:9,10 332:topics 10:16,22 27:37:8,19,25 39:3 51:51:10 65:4 80:168:4 234:10,235:1 236:13 237:242:24 243:5,250:12,19 273:330:5 331:5,332:11 333:total 88:touched 76:1,2 237:237:5,5,touching 333:16,
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September 21, Jared Birchall
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JANE ROSE REPORTING
1-800-825-
National Court-Reporting Coverage
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September 21, Jared Birchall
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30:5 113:3 116:118:4 121:5 139:152:13 164:20 166:194:2 230:22 243:268:13 291:309:19 325:undertaken 47:unfortunately 143:146:23 152:17 274:unique 183:19 238:247:10 281:286:24 287:8 294:united 95:3,University 12:Unlock 261:unrelated 51:Unsworth 7:update 24:13 26:42:3 60:13 168:268:14 288:updated 285:7,300:updates 29:15 62:96:18 221:18 256:urgency 91:19 135:135:25 136:1 146:255:22 256:Urquhart 3:7 337:use 27:11 29:2,11,32:7,13,18,21 33:34:12 53:23 56:92:22 107:5 111:133:23 140:11,153:22 159:160:14 247:18,294:21 313:useful 137:14 325:326:user 135:18 159:164:25 179:8,9,180:7 181:24 182:202:13 239:2 324:325:5 326:3,users 82:10,22 242:242:17 246:4 249:290:uses 91:1 295:usher 45:ushering 44:utilized 26:V
v 1:7 3:24 335:vacation 222:223:13 224:7,9,313:3 322:vacations 223:
vague 59:vaguely 54:4 169:183:22 249:23 306:308:Valley 130:Valor 224:24 225:3,225:21 226:14,227:24 228:5,16,229:5 231:Valor's 225:16 226:VALOR_354:value 82:22 91:108:25 135:10 140:148:22 245:25 252:304:variations 313:varies 24:various 87:11 230:vendors 236:venture 270:verbiage 213:1 273:verifications 164:164:Verified 54:24 339:339:verify 260:Vern 7:version 133:22 156:156:20 262:23 264:versus 5:9 7:25 27:vetting 216:vicinity 240:video 1:15 135:videographer 3:25 5:5:17 6:7 73:5,115:13 152:24 153:214:23 215:1 273:273:18 316:23 317:334:view 29:7 31:19 32:34:16 38:1 67:104:20 165:19 166:222:13 229:308:viewed 168:17 266:views 61:14,16,121:19 165:173:12 282:virtual 235:vision 161:12,13,172:11,13,21,205:5 262:1 265:265:20 266:21,272:1,vocal 239:voiced 161:
JANE ROSE REPORTING
1-800-825-
volatility 285:17,volume 5:7 91:12 99:258:vote 123:21 298:vs 286:V1 177:9,W
w 297:22 316:Wachtell 2:19 3:5:25 6:waiting 291:3,waive 172:3,22 173:173:19 174:waiving 172:wake 288:walk 204:walked 34:walk-through 205:wall 105:1,want 20:25 26:88:23 91:18 113:117:3 118:5 120:123:12 134:149:22 179:5 186:186:16 201:9 220:236:2,8 257:268:18 286:8 310:320:21 328:22,330:1,3,4 332:wanted 31:23 73:91:25 108:13,109:1 110:8,111:3 119:24 132:132:16 133:21 134:135:15 138:4,6,7,157:24 205:11 210:234:15 280:6 293:309:24 310:6 313:315:13 320:wanting 236:wants 25:20,25 26:96:4 128:Warranted 223:wasn't 11:15,17 42:72:12,12 81:88:18 96:7 110:113:3,15 114:117:25 118:1 123:123:25 125:24 126:139:16 151:12 155:158:5 172:12 173:182:3 217:17 219:228:13 245:7 262:262:6 265:14,14,272:5 283:18 291:293:24 300:25 304:
304:12 307:316:16 317:25 320:325:13,20,wave 258:wavelength 317:way 30:5 34:15 45:45:12 48:4 70:91:11,21 108:111:13,15,16 123:135:18 173:2 177:184:1 185:7 188:233:17 250:282:16 292:5 296:298:22 299:8 300:303:3 325:15,ways 178:8 179:191:9 223:25 224:233:19 296:weakness 252:wealth 14:16,21 15:17:9,web 130:10,Wednesday 319:weeds 222:week 8:13 24:4,27:14 28:6,18 30:41:3 119:4 212:223:20 224:5,13,224:17,18 230:308:2 321:25 322:weekly 24:3 26:weeks 8:13 220:232:9 288:21 289:289:13 304:weighted 91:Weinberg 275:8,9,276:7,16 277:304:8,11,14,21,went 74:18 77:175:18 192:6 277:313:weren't 88:12 122:151:8 218:5 219:258:21,22 291:West 2:we'll 11:7 73:2 98:151:15 156:19 263:331:20,we're 39:9 105:117:8 129:9 152:211:5 215:1 223:244:19 273:296:20 309:316:we've 7:10 34:14 72:188:17 214:238:13 273:
whatnot 60:3 83:84:2 113:25 147:194:17 250:17 326:WhatsApp 34:When's 122:WHEREOF 335:whichever 19:whistleblower 328:whistle-blower 328:Whoa 278:WI 336:willing 226:12 332:Wilmington 2:wish 322:witness 4:3 6:6,8,6:17,19,23 27:34:21,22 37:6 38:39:3 54:20 66:70:2 71:8 72:4,11,75:17,20 84:6 98:98:25 102:19 105:107:14 109:7 112:112:18 115:12,119:13 124:10 127:128:25 129:9,132:22 136:138:14 139:141:12 144:5 155:162:21 168:171:14 176:3,13,181:17 182:9 184:187:23 193:197:14 198:202:11 206:209:13 212:6 213:214:22 224:232:21,24 248:251:6 253:4 254:255:12 258:8 259:261:2 263:5 267:269:25 271:273:14 279:280:23 283:287:17 290:5 294:295:18 296:10 297:302:14 303:15 305:308:22 319:2 321:323:12 324:9 326:327:3,12,16 328:330:6 335:16 337:witnesses 12:word 42:23 51:161:19 196:217:15 247:279:18 294:wording 273:words 129:1 131:
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134:6 175:4 267:311:14 333:work 14:18 20:21:21 24:13 36:36:13 58:19 61:62:1,7,10,14,63:10,14 64:15,64:19,20,22 99:123:25 144:25 149:149:10,13 164:182:22,25 216:14,216:21 217:222:14,18,21 223:226:15,22 229:259:23,24 294:323:worked 19:4,12 21:7,27:13,13 96:25 97:158:17 313:working 13:7 15:55:20 64:20 178:221:2 223:16 313:313:11 328:works 20:24 21:101:world 101:17,135:25 146:172:17 238:worried 116:worse 315:worth 179:24 180:wouldn't 18:18 295:306:wow 241:writes 212:write-up 281:282:writing 100:25 147:185:written 45:25 63:250:16,22 272:283:7 287:2,4,wrong 41:16 114:139:6 241:13,315:10,wrote 182:WW3 244:X
X 1:8,9,17,17 5:9,10,34:24,25 35:2,9,35:21,22 36:17,38:2,2 39:1,1 52:52:22,23 83:13,84:6,7 144:10,201:4,7,12 205:206:25 207:16,
209:5 257:10 268:268:22 339:1,1,8,340:1,1 341:1,342:1,1 343:1,344:1,1 345:1,1,346:1,1,17 347:1,348:1,1 349:1,350:1,1 351:1,352:1,1 353:1,354:1,X.com 130:8,9,11,X_BARCLAYS_0001...
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JANE ROSE REPORTING
1-800-825-
218:3 226:19,229:22 232:7,237:18 241:19 244:245:16 249:3,13,249:23 250:251:12 252:257:13 258:8 259:261:15 262:21,267:9 268:23 269:269:12 271:7,272:7,22 275:277:21 278:3,279:24 286:23 288:293:9 294:24 295:296:10 299:1 301:304:22 308:15,15,316:20 317:322:19,25 323:17,324:15,18 326:328:25 329:5 333:year 12:19 16:7 21:26:12 104:years 7:25 14:9,15:15 16:3 17:18:19 19:6 21:10,27:8,9,13 32:14 97:97:3 160:2 182:252:16 257:year-end 103:21 104:104:Yep 104:yesterday 11:11,37:7,22 74:18,86:14,York 1:20,20 2:21,3:10,10,17,22,5:14,14,18,18 7:335:Young 12:17,24 13:Z
Zatko 72:19 327:328:Zatko's 328:zip 6:Zoom 3:18 24:235:16,17 265:266:$
$1b 277:23,$1M 285:$3.5 297:$3.8 295:$3.8b 295:$54.20 179:
000002117 341:000007289 350:00003137 354:0000547 353:0001140 349:0001233 349:00013885 346:00017120 347:00017199 344:00017212 344:00017708 350:00018038 346:00018097 343:00018481 351:00018483 350:00019230 349:00019522 340:00019704 340:00019719 340:00020033 348:00020626 346:00020794 345:00021684 352:00021788 348:00021814 348:00024770 354:00025124 347:0017326 346:0019323 345:002408 353:0052096 343:0052338 343:0052626 343:0065592 347:0106531 353:01936 349:0218883 347:1 5:7,8 24:6 38:10,38:24 39:11,17 57:79:18 112:9 159:190:8 256:25 257:271:5 281:10 285:339:1-800-825-3341 1:3:1-800-825-336:1/31/22 340:1:06 152:25 153:1:54 153:3,5,10 104:21,24 106:111:24 112:5,341:
10th 278:24,25 285:297:10% 104:16 106:5,10:10 249:10:33 285:10:45 303:100 93:9 340:10010 3:10011 3:10019 2:101 289:102 340:105 340:107 341:109 341:11 17:14 50:10 115:115:18 118:136:15 140:341:11th 137:19 138:139:14 141:16 143:146:12,20,21 148:150:15 151:6 161:278:24 280:343:11:02 73:11:17 73:111 341:114 313:115 341:116 53:24 55:215:17 318:119 342:12 39:16 40:1 43:119:8,10,16 342:12.5 49:124 342:126 342:128 342:13 124:5,7,13 342:13D 169:4,19 344:13D/G 103:13G 119:17 342:13th 47:9 147:12 148:148:16 150:16 253:290:10 291:6 292:293:1313 2:132 342:136 343:138 81:1 343:14 120:19 126:21,127:4 129:12 342:141 79:23 343:142 82:11 256:262:144 343:
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54853 336:55 311:16 312:6 353:56 314:8,15 353:57 318:24 319:353:58 320:12,17 353:59 321:11,17 354:6 102:14,16,22 274:340:6th 77:19 79:13,80:16 81:12 234:4,234:25 235:1 236:240:14 246:259:11,12 299:14,301:24 302:6/11/22 352:6/16/22 352:6/21/22 353:6/22/22 353:13,6/24/2022 320:6/24/22 353:6/25 321:21 322:6/25/2022 321:6/25/22 354:6/27/22 354:6/30/2022 323:6/30/22 354:6:22 316:6:27 317:6:50 334:7,60 271:20 323:7,9,354:600MM 106:61 324:6,12 354:624 210:65 248:66 250:
81 73:849-7000 3:87 289:9 73:21 109:2,4,213:20 341:9th 130:2 133:2 136:137:8 214:2,248:21 249:287:9:33 5:3,97 340:984-6000 2:99 12:20 14:
7 4:9 13:5 105:12,105:21 340:74 3:78738 6:15,79 68:18 73:8 107:11,17 341:8th 103:3 245:248:21 281:2,282:23 289:7,19,303:8/9/22 342:8:30 204:80 280:
JANE ROSE REPORTING
1-800-825-
National Court-Reporting Coverage
janerose@janerosereporting.comPage 195 EXHIBIT 7Page 196 September 29, BY EMAIL
David S. Mader, Esq.
Quinn Emanuel Urquhart & Sullivan, LLP
51 Madison Avenue, 22nd Floor
New York, NY
Re:
Twitter, Inc. v. Musk, et al.,
C.A. No. 2022-0613-KSJM (Del. Ch.)
Dear Mr. Mader:
On September 21, Jared Birchall sat for deposition as a Rule 30(b)(6) designee for
defendants X Holdings I, Inc. and X Holdings II, Inc. Mr. Birchall was manifestly unprepared to
fulfill that role and repeatedly admitted as much—over and over again throughout the deposition.
Mr. Birchall also admitted that he was unaware of his designation as defendants’ Rule 30(b)(6)
designee until the day before the deposition, that he had not read the Rule 30(b)(6) deposition
notice, and that he did not recall the topics for which he had been designated to give testimony.
(Tr. 36:20-37:15).Page 197 Throughout the deposition, on topic after topic, Mr. Birchall unequivocally
conceded both his lack of knowledge and his lack of preparation:
Communications with governmental authorities (Topic 11)
Q: [A]re you aware of any contacts by defendants or defendants’ advisors with
any state authority, including the Texas attorney general?
A: I’m not.
...
Q: [Y]ou haven’t asked any advisors or lawyers that question is what you’re
saying?
A: Yeah . . . . I don’t know. I have not asked that question. (Tr. 51:21-52:16)
X Holdings entities (Topic 19)
Q: Are you aware of who is the owner of any of [the X Holdings entities]?
A: I guess per my previous comment, my assumption of one of them, that would
be Mr. Musk.
Q: Did you make any effort to determine who the owners of these entities were
before your deposition?
A: No. (Tr. 53:13-20)
‘Botometer’ tool (Topic 20)
Q: Did you make an effort to — to inform yourself prior to this deposition
regarding the Botometer tool and how it was used by defendants?
A: I did not.
Q: Do you know what conclusions the data scientists that you referred to came to
as a result of using the Botometer tool?
A: I don’t. (Tr. 55:23-56:5)
Engagement of data scientists (Topic 21)
Q: Prior to this deposition, did you make any attempt to inform yourself
regarding why the data scientists were engaged, what work they are doing, and
their conclusions?Page 198 A: No. (Tr. 58:17-21)
Potential data scientists not engaged (Topic 22)
Q: Can you tell me what persons were communicated with about the potential
engagement as a data scientist that were not engaged?
A: I — I’m not aware of any engagements or discussions beyond those that we
engaged.
Q: Prior to this deposition, did you make any effort to determine if there were
any such discussions or communications?
A: I didn’t. (Tr. 64:4-12)
Work performed by data scientists (Topic 23)
Q: [W]hat instructions were received by the data scientists?
A: . . . I don’t have that information.
Q: Okay. You don’t have any of that information?
A: I don’t.
Q: Okay. Did you make any effort to obtain that information prior to your
deposition today?
A: I did not. (Tr. 64:25-65:11)
Twitter’s litigation with Indian government (Topic 26)
Q: What’s your knowledge regarding Twitter’s litigation . . . with the Indian
government?
A: I — I really don’t have much . . . .
Q: Okay. Did you make any effort before your deposition today to gain such
knowledge?
A: No, I did not. (Tr. 65:25-66:9)
Alleged ordinary course breaches (Topic 27)
Q: Which executives?
A: I don’t recall their names . . . .Page 199 ....
Q: Did you make any effort to determine the facts relating to the dismissal of the
executives you just referenced before your deposition today?
A: No. (Tr. 67:2-17)
mDAU that “see no ads” (Topic 37)
Q: [H]ow did defendants determine the basis for their allegation that nearly a
third of Twitter’s mDAU is in fact — in fact sees no ads and appears to generate
no revenue at all?
A: I’m not sure specifically where that data is coming from.
Q: Do you know what the source at all of that statement is?
A: I — I don’t. (Tr. 81:20-82:3)
mDAU growth (Topic 38)
Q: And do you have an understanding as to what was the basis for defendants’
allegation that mDAU growth is not occurring among high level — high value
users?
A: Not specifically, no.
Q: Did you make any effort to determine what the source of that statement was?
A: I — I didn’t. (Tr. 82:19-83:1)
Efforts to retrieve messages (Topic 43)
Q: Do you know what efforts were made to retrieve or obtain any messages that
had been deleted?
A: No. (Tr. 85:22-25)
*
*
*
Mr. Birchall’s failure to undertake any effort to educate himself on these topics—
much less the effort that Delaware law requires—is unacceptable and highly prejudicial to
Twitter. Rule 30(b)(6) requires parties to “ensure that before testifying the witness[es] are aware
of the organization’s full knowledge of the matters on which they will testify and any relevant
information reasonably available to the organization.” Fitzgerald v. Cantor, 1999 WL 252748,
at *3 (Del. Ch. Apr. 5, 1999). Having failed to do so, defendants are “responsible for thePage 200 consequences of [Birchall’s] testimony and apparent lack of preparation.” OptimisCorp v.
Waite, 2015 WL 357675, at *7 (Del. Ch. Jan. 28, 2015).
To mitigate the resulting prejudice to Twitter, we demand that Mr. Birchall
immediately educate himself on Topic Nos. 11, 19, 20, 21, 22, 23, 26, 27, 37, 38, and 43, and
that he be made available for a renewed Rule 30(b)(6) deposition on those topics next week at a
time and place convenient to Twitter. See, e.g., ADT Holdings, Inc. v. Harris, 2017 WL
3635303, at *2 (Del. Ch. Aug. 24, 2017) (where a 30(b)(6) witness is unprepared, noticing party
may demand that the organization “educat[e] the previously proffered witness”).
Please confirm by 3:00 p.m. EDT tomorrow (September 30) that defendants will
comply with this demand. If we do not receive confirmation by then, we will seek appropriate
relief from the Court. Twitter reserves all rights with respect to defendants’ failure to comply
with their obligations under Rule 30(b)(6).
Sincerely,
Bradley R. Wilson
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EFiled: Jul 17 2024 04:19PM EDT
Transaction ID 73703912
Case No. 2022-0613-KSJM
IN THE COURT OF CHANCERY FOR THE STATE OF DELAWARE
TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I,
INC., and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
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C.A. No. 2022-0613-KSJM
PUBLIC VERSION EXHIBITS 3-7 [Dkt 680]
Dated July 17, 2024
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EXHIBIT 3
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67952420
Aug 19 2022
11:03PM
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I, INC.,
and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
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)
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) C.A. No. 2022-0613-KSJM
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DEFENDANT AND COUNTERCLAIM-PLAINTIFF X HOLDINGS I,
INC.’S RESPONSES AND OBJECTIONS TO PLAINTIFF AND
COUNTERCLAIM-DEFENDANT’S NOTICE OF
RULE 30(b)(6) DEPOSITION TO DEFENDANT X HOLDINGS I, INC.
Pursuant to Court of Chancery Rules 26 and 30, Defendant and CounterclaimPlaintiff X Holdings I, Inc. (“X Holdings”), by and through its undersigned counsel,
hereby objects and responds to Plaintiff and Counterclaim-Defendant Twitter, Inc.’s
Notice of Rule 30(b)(6) Deposition to Defendant and Counterclaim-Plaintiff X
Holdings I, Inc. and the schedule attached thereto (the “Topics” and each a “Topic”)
as set forth below on the grounds specified herein.
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GENERAL OBJECTIONS
1.
X Holdings objects to the Topics to the extent they purport to impose
on X Holdings any requirements or obligations that are different from, greater or
more burdensome than, or contradict those required by, the Court of Chancery Rules
and Delaware law. X Holdings will respond to the Topics in a manner consistent
with its obligations under the Court of Chancery Rules and Delaware law.
2.
X Holdings objects to the Topics to the extent they seek information
protected from disclosure by any applicable privilege or immunity, including the
attorney-client privilege, the work product doctrine, the business strategy privilege,
the common interest privilege, the joint defense privilege, or other applicable
privileges, immunities, or protections. X Holdings hereby claims privilege with
respect to any such information. To the extent X Holdings discloses privileged
information in response to a Topic, such disclosure is inadvertent and shall not be
deemed a waiver of any applicable protection from disclosure or of any ground for
objection to discovery with respect to such information or to the use of any such
information in any proceeding.
3.
X Holdings objects to the Topics to the extent they contain legal
conclusions or characterize certain information, allegations, facts, events,
circumstances, issues, or ideas as undisputed fact. X Holdings’ responses to the
Topics are not an admission of any fact alleged or assumed by the Topics.
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4.
X Holdings objects to the definition of “Co-Investors” as overbroad for
the reasons set forth in Defendants’ August 17, 2022 Letter in response to Twitter’s
August 15, 2022 Letter Regarding Defendants’ Responses and Objections to
Twitter’s Document Requests and Interrogatories. In responding to the Topics,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
5.
X Holdings objects to the definition of “You” and “Your” as overbroad.
In responding to each Topic, X Holdings will interpret “You” and “Your” to mean
X Holdings I, Inc.
6.
X Holdings objects to Instruction No. 1 as overbroad. X Holdings I,
Inc. was not formed until April 19, 2022. Thus, X Holdings objects to this time
period to the extent it calls for testimony prior to April 19, 2022. To the extent
X Holdings agrees to produce a representative to testify regarding any of the Topics,
X Holdings is only agreeing to produce a representative on such Topics regarding
the time period from April 19, 2022 to July 8, 2022.
7.
All responses are made subject to these objections and are based solely
on the information known to X Holdings at the time these responses are served.
X Holdings reserves the right to revise, supplement, or clarify any objection or
response at any time, and to use at trial in this Action information later determined
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to have been responsive to these Topics. X Holdings reserves the right to object to
further discovery into the subject matter of the Topics.
8.
X Holdings is willing to meet and confer with Plaintiff on any of the
General Objections or specific responses and objections contained below.
SPECIFIC RESPONSES AND OBJECTIONS
TOPIC NO. 1:
The April 4, 2022 Letter Agreement, the April 13, 2022 Proposal, the
April 24, 2022 Offer, any consideration by Defendants of any other potential
acquisition or other strategic transaction involving Twitter, the Merger, the Merger
Agreement, the Limited Guarantee, the June 6, 2022 Letter, and the July 8, 2022
Letter, and any financing with respect to any of the foregoing or any transaction
contemplated thereby (including but not limited to the Debt Financing, the Equity
Financing, and/or the Financing Commitments).
RESPONSE TO TOPIC NO. 1:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it relates to events or
topics that pre-date its incorporation on April 19, 2022.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 1 for the time period from April 19,
2022 to July 8, 2022.
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TOPIC NO. 2:
All efforts to syndicate and/or arrange, document, negotiate the terms of, or
consummate the Debt Financing and close the Merger, including the status of or
expected timeline for such efforts.
RESPONSE TO TOPIC NO. 2:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 2.
TOPIC NO. 3:
All efforts to solicit Co-Investors, arrange or negotiate equity co-investments,
and/or arrange, document, syndicate, or consummate the Equity Financing,
including those concerning the status of or expected timeline for such efforts.
RESPONSE TO TOPIC NO. 3:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
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will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 3.
TOPIC NO. 4:
All efforts undertaken by Defendants or Defendants’ Advisors, on or after
May 13, 2022, to obtain, syndicate, arrange, finalize, and/or consummate the Debt
Financing, close the Merger, and/or cause all of the conditions for closing the Merger
to be satisfied.
RESPONSE TO TOPIC NO. 4:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 4.
TOPIC NO. 5:
The Margin Loan Commitment, including without limitation (i) the reduction
of the amount of the Margin Loan Commitment and reasons for such reduction; and
(ii) the subsequent termination of the Margin Loan Commitment and reasons for
such termination.
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RESPONSE TO TOPIC NO. 5:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 5.
TOPIC NO. 6:
Any potential tender offer by or on behalf of Defendants for some or all of
Twitter’s shares, including without limitation Defendants’ negotiation of the debt
commitment letter, dated April 20, 2022, attached as Exhibit C to Amendment No.
3 to Schedule 13D, filed by Equity Investor with the SEC on April 21, 2022.
RESPONSE TO TOPIC NO. 6:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 6.
TOPIC NO. 7:
Defendants’ requests or potential requests for information pursuant to Section
6.4 and/or Section 6.11 of the Merger Agreement and any information provided by
Twitter, or on Twitter’s behalf, in response to any such request for information,
including without limitation any analyses, audits, or investigations performed by or
at the direction of You and/or Defendants’ Advisors, the Lenders, or the CoInvestors, relating to Twitter’s API or “firehose” data provided to Defendants or any
7
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other information provided by Twitter, or on Twitter’s behalf, in response to any
information request by You or on Your behalf.
RESPONSE TO TOPIC NO. 7:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed by or at the direction of You and/or
Defendants’ Advisors, the Lenders, or the Co-Investors.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
X Holdings further objects to this Topic as overbroad to the extent it calls for
testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 7.
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TOPIC NO. 8:
Any request made by Twitter, or on Twitter’s behalf, seeking Defendants’
consent pursuant to Section 6.1 of the Merger Agreement with respect to (i) the
implementation of employee retention programs; (ii) the termination of a revolving
credit facility; (iii) an application for a money transmitter license; or (iv) any other
proposed course of action, corporate policy, or other decision related to the conduct
of Twitter’s business, including Defendants’ assessment of and/or decision whether
or not to provide their consent and/or whether or not the proposed course of action,
corporate policy, or other decision was commercially reasonable under the
circumstances, including all of the reasons Defendants declined to provide consents
to Twitter’s requests under the Merger Agreement described in paragraphs 119
through 122 of the Complaint, including without limitation all of the reasons why
You initially provided, but thereafter withdrew, any such consent.
RESPONSE TO TOPIC NO. 8:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 8.
TOPIC NO. 9:
False or spam accounts or bots on the Twitter platform and the disclosures in
Twitter’s SEC filings discussed in Paragraphs 64 and 66 of the Complaint, including
without limitation (i) any analyses, audits, or investigations performed or conducted
by or at the direction of You and/or Defendants’ Advisors, or of which You are
aware, relating to these subjects, whether performed or conducted prior or
subsequent to the execution of the Merger Agreement; (ii) any analyses, audits, or
investigations that You and/or Defendants’ Advisors considered undertaking, or that
You and/or Defendants’ Advisors considered having others undertake on Your or
their behalf, relating to these subjects; and (iii) Your decision to execute the Merger
Agreement without further due diligence on these subjects.
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RESPONSE TO TOPIC NO. 9:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed or conducted by or at the direction of
You and/or Defendants’ Advisors” and “any analyses, audits, or investigations that
You and/or Defendants’ Advisors considered undertaking, or that You and/or
Defendants’ Advisors considered having others undertake.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 9.
TOPIC NO. 10:
The effects or potential effects of changes in the price of Tesla common stock
on (i) the Merger; (ii) the Debt Financing; (iii) the Equity Financing; (iv) the
Financing Commitments; and/or (v) Your intentions with respect to closing and/or
efforts to close the Merger, and Defendants’ knowledge and consideration of such
topics.
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RESPONSE TO TOPIC NO. 10:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 10.
TOPIC NO. 11:
Any Communications between (a) Defendants or Defendants’ Advisors and
(b) any Governmental Authority, concerning (i) the Merger; (ii) the Merger
Agreement; (iii) the Proxy Statement; or (iv) Twitter, including the purpose of such
Communications, the nature and substance of such Communications, and at whose
request such Communications were made.
RESPONSE TO TOPIC NO. 11:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it seeks testimony
regarding communications that are subject to an investigative privilege belonging to
any governmental authority. As set forth in Defendants’ August 17, 2022 Letter in
response to Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and
Objections to Twitter’s Document Requests and Interrogatories, X Holdings is not
in a position to disclose any information in its possession relating to any
investigation by any governmental authority that is subject to protection from
11
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disclosure as recognized in Legent Group, LLC v. Axos Financial, Inc., 2021 WL
4514930 (Del. Ch. Oct. 4, 2021). X Holdings will respond to this Topic consistent
with the Court’s resolution of Plaintiff’s motion to compel regarding
communications with governmental authorities.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 11.
TOPIC NO. 12:
Defendants’ purported termination of the Merger Agreement, including
without limitation (i) any consideration of whether and on what grounds to purport
to terminate the Merger Agreement; (ii) any consideration of potentially
renegotiating the Merger Agreement; (iii) the preparation of the June 6, 2022 Letter;
and (iv) the preparation of the July 8, 2022 Letter.
RESPONSE TO TOPIC NO. 12:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 12.
TOPIC NO. 13:
Defendants’ contention in the July 8, 2022 Letter that Twitter is “likely to
suffer a Company Material Adverse Effect,” including without limitation any
valuations, forecasts, projections, estimates, or other analyses relating to whether
Twitter is likely to suffer a Company Material Adverse Effect.
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RESPONSE TO TOPIC NO. 13:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding the bases
for X Holdings’ contention. The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to the bases for X Holdings’ contention is the subject of
a pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 13.
TOPIC NO. 14:
Forecasts, projections, estimates, or other analyses created by Defendants,
Defendants’ Advisors, the Lenders, or the Co-Investors, or on Your or their behalf,
relating to Twitter’s current or future performance, financial condition, or value,
including without limitation any projections of Twitter’s revenues, EBITDA,
earnings, and cash flows, and all Documents and Communications concerning such
forecasts, projections, estimates, or analyses.
RESPONSE TO TOPIC NO. 14:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “analyses
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created by Defendants, Defendants’ Advisors, the Lenders, or the Co-Investors, or
on Your or their behalf.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to such analyses is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel. X Holdings further objects to this Topic as overbroad to
the extent it calls for testimony regarding interactions with “potential co-investors”
for the reasons set forth in Defendants’ August 17, 2022 Letter in response to
Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and Objections
to Twitter’s Document Requests and Interrogatories. In responding to this Topic,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 14.
TOPIC NO. 15:
Any plans or potential plans made or considered by Defendants to create or
develop a social media platform and/or alternative or competitor to Twitter,
including without limitation any plans or potential plans concerning X.com, and
including without limitation the origin, history, and timeline of such plans, and all
other Persons involved in such plans or with whom Equity Investor has discussed
such plans.
RESPONSE TO TOPIC NO. 15:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
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doctrine.
X Holdings further objects to this Topic to the extent the phrase
“alternative or competitor to Twitter” is vague and ambiguous. X Holdings will
construe “alternative or competitor to Twitter” to include any social media platform
other than Twitter, including X.com.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 15.
TOPIC NO. 16:
Your strategic or business plans for Twitter, including without limitation
(i) all plans to address issues relating to false or spam accounts on the Twitter
platform; (ii) all plans relating to employee retention programs or incentives; and
(iii) all plans relating to potential changes to the size and/or composition of Twitter’s
workforce.
RESPONSE TO TOPIC NO. 16:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent the phrase “strategic
or business plans for Twitter” is vague or ambiguous. Specifically, the phrase
“strategic or business plans” could include any number of short-term or long-term
plans about any facet of Twitter’s business, regardless of their relevance to the issues
in this litigation.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding the subtopics listed in (i), (ii), and (iii) of Topic
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No. 16. X Holdings will agree to meet and confer regarding any further testimony
sought with reference to Topic No. 16.
TOPIC NO. 17:
The engagement, the work, and the termination of Bob Swan and/or the
cessation of Bob Swan’s involvement on Defendants’ behalf in connection with the
Merger and the Debt Financing, including the reasons that Defendants determined
that Bob Swan should “depart the deal proceedings” on or about June 23, 2022,
including due to the disconnect in “wavelength” between You and Bob Swan, as
described in Paragraph 110 of the Complaint.
RESPONSE TO TOPIC NO. 17:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 17.
TOPIC NO. 18:
The actual or potential engagement or involvement of Antonio Gracias to act
on Defendants’ behalf in connection with the Merger and the Debt Financing and
the work Antonio Gracias performed in that capacity, including all of the ways that
Antonio Gracias allegedly “dove in to the financing as soon as he was brought on”
to replace Bob Swan, as referenced in Paragraph 198 of the Counterclaim.
RESPONSE TO TOPIC NO. 18:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
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Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 18.
TOPIC NO. 19:
The directors, officers, employees, and owners of X Holdings I, Inc., X
Holdings II, Inc., and X Holdings III, LLC, and the relationships between them and
Equity Investor.
RESPONSE TO TOPIC NO. 19:
Subject to and limited by the General Objections, X Holdings will produce a
representative to testify regarding Topic No. 19.
TOPIC NO. 20:
Defendants’ and Defendants’ Advisors’ use of the “Botometer” tool described
in Paragraph 116 and Footnote 16 of the Counterclaim.
RESPONSE TO TOPIC NO. 20:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ Advisors’ use.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ Advisors’ use” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
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Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 20.
TOPIC NO. 21:
The engagement of the Data Scientists, including without limitation (i) the
identification of all Data Scientists and when they were engaged; (ii) the scope and
purpose of any such engagement; (iii) how such Data Scientists came to be engaged;
(iv) the nature of any agreements, arrangements, or understandings between the Data
Scientists and Defendants or Defendants’ Advisors.
RESPONSE TO TOPIC NO. 21:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[t]he
engagement of the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[t]he engagement of the Data Scientists” is the
subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 21.
TOPIC NO. 22:
All Persons that Defendants or Defendants’ Advisors communicated with
about a potential engagement as a Data Scientist that were not engaged as a Data
Scientist, including without limitation (i) the identification of all such Persons;
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(ii) the timeline during which such potential engagement was considered; and (iii) all
reasons such engagement did not take place.
RESPONSE TO TOPIC NO. 22:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 22.
TOPIC NO. 23:
All work performed by the Data Scientists, including without limitation (i) the
instructions received by the Data Scientists; (ii) the scope of the Data Scientists’
work; (iii) the timeline of the Data Scientists’ work; (iv) a description of the work
performed by each individual working as or for a Data Scientist; (v) the findings,
conclusions, and results of such work.
RESPONSE TO TOPIC NO. 23:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[a]ll work
performed by the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[a]ll work performed by the Data Scientists” is
the subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
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Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 23.
TOPIC NO. 24:
The financial model allegedly prepared by Morgan Stanley as described in
Paragraphs 34 and 166 of the Counterclaim and, to the extent different than the
financial model, the valuations allegedly prepared by Morgan Stanley as described
in Paragraph 78 of the Counterclaim, including the extent to which Defendants
received, reviewed, or discussed the referenced model prior to April 25, 2022, and
the extent to which Defendants relied upon the referenced model.
RESPONSE TO TOPIC NO. 24:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 24.
TOPIC NO. 25:
Any “additional business models” that Defendants allegedly considered as a
means to “unlock Twitter’s true value,” as described in Paragraph 39 of the
Counterclaim, including without limitation the “subscription-based model”
referenced in that same Paragraph, the projected or anticipated value of Twitter
based on such business models, and the relevance of mDAU to such business
models.
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RESPONSE TO TOPIC NO. 25:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 25.
TOPIC NO. 26:
Defendants’ knowledge of Twitter’s litigation with the Indian government
and/or any content-removal orders issued to Twitter by the Indian government, as
discussed in Paragraphs 18 and 181 through 185 of the Counterclaim, including
without limitation when Defendants became aware of such litigation and/or contentremoval orders and who made them aware of such orders.
RESPONSE TO TOPIC NO. 26:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 26.
TOPIC NO. 27:
All “key decisions” that Twitter allegedly made “outside the ordinary course
without consulting the Musk Parties,” as alleged in Paragraphs 186 through 195 of
the Counterclaim.
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RESPONSE TO TOPIC NO. 27:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 27.
TOPIC NO. 28:
The extent to which Defendants undertook any review, prior to executing the
Merger Agreement, of each of the allegedly false and misleading statements
discussed at Paragraphs 109 through 149 of the Counterclaim.
RESPONSE TO TOPIC NO. 28:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 28.
TOPIC NO. 29:
The reliance of Defendants and/or Defendants’ Advisors on Twitter’s
representations in its SEC filings, as alleged in Paragraph 27 of the Counterclaim.
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RESPONSE TO TOPIC NO. 29:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 29.
TOPIC NO. 30:
Defendants’ beliefs about the number and/or prevalence of false or spam
accounts or bots on the Twitter platform, including all bases for such beliefs and
Defendants’ allegations set forth in Paragraphs 212 and 213 of the Counterclaim that
“[a]t the time of the Merger Agreement, Defendants/Counterclaim-Plaintiffs did not
know the false or misleading statements or omissions” and “[h]ad
Defendants/Counterclaim-Plaintiffs known about the false or misleading statements
and omissions, they would not have entered into the Merger Agreement.”
RESPONSE TO TOPIC NO. 30:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “all bases
for such beliefs.” The applicability of the work product doctrine and Chancery Rule
26(b)(4)(B) to “all bases for such beliefs” is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel.
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Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 30.
TOPIC NO. 31:
Defendants’ bases for contending that “statement[s] of material fact” in
documents that Twitter has filed with the SEC since January 1, 2022 were “untrue”
or “misleading,” including statements that Defendants contend contained
representations that “fewer than 5%” of Twitter’s mDAU are false or spam accounts.
RESPONSE TO TOPIC NO. 31:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ bases for contending.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “Defendants’ bases for contending” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 31.
TOPIC NO. 32:
Defendants’ understanding of Twitter’s mDAU recast in April 2022, as
discussed in Paragraphs 9 and 79 through 81 of the Counterclaim.
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RESPONSE TO TOPIC NO. 32:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 32.
TOPIC NO. 33:
The “preliminary analysis by Mr. Musk’s advisors” and the results thereof
described in the final paragraph of page 6 of Defendants’ July 8 letter.
RESPONSE TO TOPIC NO. 33:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding the
“preliminary analysis by Mr. Musk’s advisors.” The applicability of the work
product doctrine and Chancery Rule 26(b)(4)(B) to the “preliminary analysis by Mr.
Musk’s advisors” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 33.
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TOPIC NO. 34:
Defendants’ alleged belief that “due diligence processes can be costly and
inefficient,” as set forth in Paragraph 60 of the Counterclaim.
RESPONSE TO TOPIC NO. 34:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 34.
TOPIC NO. 35:
Defendants’ alleged assumption that Twitter “rel[ied] on automation, artificial
intelligence, and machine learning” to count false or spam accounts, as described in
Paragraph 83 of the Counterclaim.
RESPONSE TO TOPIC NO. 35:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 35.
TOPIC NO. 36:
Defendants’ understanding of the “stratification” or potential stratification of
Twitter’s mDAU, as that term is used in Paragraph 141 of the Counterclaim, whether
performed before or after the execution of the Merger Agreement.
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RESPONSE TO TOPIC NO. 36:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ understanding” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 36.
TOPIC NO. 37:
Defendants’ allegation that “nearly a third of Twitter’s mDAU in fact see no
ads and appear to generate no revenue at all,” as set forth in Paragraph 138 of the
Counterclaim.
RESPONSE TO TOPIC NO. 37:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it may call for the bases for X Holdings’ allegation. The
applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to the
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bases for X Holdings’ allegation is the subject of a pending motion to compel.
X Holdings will respond to this Topic according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 37.
TOPIC NO. 38:
Defendants’ knowledge and understanding of their allegation that “mDAU
growth is not occurring among high-value users,” as set forth in Paragraph 142 of
the Counterclaim.
RESPONSE TO TOPIC NO. 38:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ knowledge and understanding.” The applicability of the work product
doctrine and Chancery Rule 26(b)(4)(B) to “Defendants’ knowledge and
understanding” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 38.
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TOPIC NO. 39:
All allegations in Defendants’ Counterclaim.
RESPONSE TO TOPIC NO. 39:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify the particular paragraphs of the Counterclaims about which
Plaintiff seeks testimony.
Subject to and limited by the foregoing objections, and after Plaintiff
identifies which paragraphs are covered by this Topic, X Holdings will produce a
representative to testify regarding Topic No. 39.
TOPIC NO. 40:
Defendants’ understanding of how many false or spam accounts existed on
the Twitter platform as of July 8, 2022, in absolute terms and as a percentage of
Twitter’s mDAU, and all their bases for that understanding as of that date.
RESPONSE TO TOPIC NO. 40:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding” and “their bases for that understanding.”
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applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to
“Defendants’ understanding” and “their bases for that understanding” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 40.
TOPIC NO. 41:
Defendants’ policies, practices, software, hardware, and systems relating to
the storage, management, retention, and destruction of Documents and
Communications.
RESPONSE TO TOPIC NO. 41:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 41.
TOPIC NO. 42:
Defendants’ efforts to ensure that Documents relating to the discovery
requests in this Action and/or the Complaint were properly preserved, including any
related litigation hold or document preservation letters or notices.
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RESPONSE TO TOPIC NO. 42:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 42.
TOPIC NO. 43:
Defendants’ efforts to retrieve text messages, instant messages, and other nonemail Communications.
RESPONSE TO TOPIC NO. 43:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 43.
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TOPIC NO. 44:
Any sales of Tesla stock by Equity Investor from April 1, 2022 through the
present, including the purpose of any such sale, any potential use of the proceeds of
such sale considered by Defendants, and any relationship between such sale and the
Merger.
RESPONSE TO TOPIC NO. 44:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 44.
TOPIC NO. 45:
The identity, role, and nature of the work of any personnel of Tesla or Space
Exploration Technologies Corp. who worked on, analyzed, or assisted in any
capacity with the Merger, the Debt Financing, the Equity Financing, any potential
investment by a Co-Investor, the Margin Loan Commitment, any potential tender
offer involving Twitter, Defendants’ purported termination of the Merger
Agreement, or the Action.
RESPONSE TO TOPIC NO. 45:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
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2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 45.
TOPIC NO. 46:
All information contained in Defendants’ Interrogatory Responses, including
all sources of such information and Defendants’ process of ascertaining and
providing such information.
RESPONSE TO TOPIC NO. 46:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify which particular interrogatory responses Plaintiff seeks testimony
on.
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 46.
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OF COUNSEL:
Alex Spiro
Andrew J. Rossman
Christopher D. Kercher
Silpa Maruri
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010
/s/ Edward B. Micheletti
Edward B. Micheletti (ID No. 3794)
Lauren N. Rosenello (ID No. 5581)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
920 North King Street, 7th Floor
P.O. Box 636
Wilmington, Delaware 19899-0636
(302) 651-3000
Attorneys for Defendant X Holdings I, Inc.
DATED: August 19, 2022
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EXHIBIT 4
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67952420
Aug 19 2022
11:03PM
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I, INC.,
and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
)
)
)
)
)
) C.A. No. 2022-0613-KSJM
)
)
)
)
)
)
DEFENDANT AND COUNTERCLAIM-PLAINTIFF X HOLDINGS II,
INC.’S RESPONSES AND OBJECTIONS TO PLAINTIFF AND
COUNTERCLAIM-DEFENDANT’S NOTICE OF
RULE 30(b)(6) DEPOSITION TO DEFENDANT X HOLDINGS II, INC.
Pursuant to Court of Chancery Rules 26 and 30, Defendant and CounterclaimPlaintiff X Holdings II, Inc. (“X Holdings”), by and through its undersigned counsel,
hereby objects and responds to Plaintiff and Counterclaim-Defendant Twitter, Inc.’s
Notice of Rule 30(b)(6) Deposition to Defendant and Counterclaim-Plaintiff X
Holdings II, Inc. and the schedule attached thereto (the “Topics” and each a “Topic”)
as set forth below on the grounds specified herein.
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GENERAL OBJECTIONS
1.
X Holdings objects to the Topics to the extent they purport to impose
on X Holdings any requirements or obligations that are different from, greater or
more burdensome than, or contradict those required by, the Court of Chancery Rules
and Delaware law. X Holdings will respond to the Topics in a manner consistent
with its obligations under the Court of Chancery Rules and Delaware law.
2.
X Holdings objects to the Topics to the extent they seek information
protected from disclosure by any applicable privilege or immunity, including the
attorney-client privilege, the work product doctrine, the business strategy privilege,
the common interest privilege, the joint defense privilege, or other applicable
privileges, immunities, or protections. X Holdings hereby claims privilege with
respect to any such information. To the extent X Holdings discloses privileged
information in response to a Topic, such disclosure is inadvertent and shall not be
deemed a waiver of any applicable protection from disclosure or of any ground for
objection to discovery with respect to such information or to the use of any such
information in any proceeding.
3.
X Holdings objects to the Topics to the extent they contain legal
conclusions or characterize certain information, allegations, facts, events,
circumstances, issues, or ideas as undisputed fact. X Holdings’ responses to the
Topics are not an admission of any fact alleged or assumed by the Topics.
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4.
X Holdings objects to the definition of “Co-Investors” as overbroad for
the reasons set forth in Defendants’ August 17, 2022 Letter in response to Twitter’s
August 15, 2022 Letter Regarding Defendants’ Responses and Objections to
Twitter’s Document Requests and Interrogatories. In responding to the Topics,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
5.
X Holdings objects to the definition of “You” and “Your” as overbroad.
In responding to each Topic, X Holdings will interpret “You” and “Your” to mean
X Holdings II, Inc.
6.
X Holdings objects to Instruction No. 1 as overbroad. X Holdings II,
Inc. was not formed until April 19, 2022. Thus, X Holdings objects to this time
period to the extent it calls for testimony prior to April 19, 2022. To the extent
X Holdings agrees to produce a representative to testify regarding any of the Topics,
X Holdings is only agreeing to produce a representative on such Topics regarding
the time period from April 19, 2022 to July 8, 2022.
7.
All responses are made subject to these objections and are based solely
on the information known to X Holdings at the time these responses are served.
X Holdings reserves the right to revise, supplement, or clarify any objection or
response at any time, and to use at trial in this Action information later determined
to have been responsive to these Topics. X Holdings reserves the right to object to
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further discovery into the subject matter of the Topics.
8.
X Holdings is willing to meet and confer with Plaintiff on any of the
General Objections or specific responses and objections contained below.
SPECIFIC RESPONSES AND OBJECTIONS
TOPIC NO. 1:
The April 4, 2022 Letter Agreement, the April 13, 2022 Proposal, the
April 24, 2022 Offer, any consideration by Defendants of any other potential
acquisition or other strategic transaction involving Twitter, the Merger, the Merger
Agreement, the Limited Guarantee, the June 6, 2022 Letter, and the July 8, 2022
Letter, and any financing with respect to any of the foregoing or any transaction
contemplated thereby (including but not limited to the Debt Financing, the Equity
Financing, and/or the Financing Commitments).
RESPONSE TO TOPIC NO. 1:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it relates to events or
topics that pre-date its incorporation on April 19, 2022.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 1 for the time period from April 19,
2022 to July 8, 2022.
TOPIC NO. 2:
All efforts to syndicate and/or arrange, document, negotiate the terms of, or
consummate the Debt Financing and close the Merger, including the status of or
expected timeline for such efforts.
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RESPONSE TO TOPIC NO. 2:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 2.
TOPIC NO. 3:
All efforts to solicit Co-Investors, arrange or negotiate equity co-investments,
and/or arrange, document, syndicate, or consummate the Equity Financing,
including those concerning the status of or expected timeline for such efforts.
RESPONSE TO TOPIC NO. 3:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
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Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 3.
TOPIC NO. 4:
All efforts undertaken by Defendants or Defendants’ Advisors, on or after
May 13, 2022, to obtain, syndicate, arrange, finalize, and/or consummate the Debt
Financing, close the Merger, and/or cause all of the conditions for closing the Merger
to be satisfied.
RESPONSE TO TOPIC NO. 4:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 4.
TOPIC NO. 5:
The Margin Loan Commitment, including without limitation (i) the reduction
of the amount of the Margin Loan Commitment and reasons for such reduction; and
(ii) the subsequent termination of the Margin Loan Commitment and reasons for
such termination.
RESPONSE TO TOPIC NO. 5:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
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Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 5.
TOPIC NO. 6:
Any potential tender offer by or on behalf of Defendants for some or all of
Twitter’s shares, including without limitation Defendants’ negotiation of the debt
commitment letter, dated April 20, 2022, attached as Exhibit C to Amendment No.
3 to Schedule 13D, filed by Equity Investor with the SEC on April 21, 2022.
RESPONSE TO TOPIC NO. 6:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 6.
TOPIC NO. 7:
Defendants’ requests or potential requests for information pursuant to Section
6.4 and/or Section 6.11 of the Merger Agreement and any information provided by
Twitter, or on Twitter’s behalf, in response to any such request for information,
including without limitation any analyses, audits, or investigations performed by or
at the direction of You and/or Defendants’ Advisors, the Lenders, or the CoInvestors, relating to Twitter’s API or “firehose” data provided to Defendants or any
other information provided by Twitter, or on Twitter’s behalf, in response to any
information request by You or on Your behalf.
RESPONSE TO TOPIC NO. 7:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
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doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed by or at the direction of You and/or
Defendants’ Advisors, the Lenders, or the Co-Investors.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
X Holdings further objects to this Topic as overbroad to the extent it calls for
testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 7.
TOPIC NO. 8:
Any request made by Twitter, or on Twitter’s behalf, seeking Defendants’
consent pursuant to Section 6.1 of the Merger Agreement with respect to (i) the
implementation of employee retention programs; (ii) the termination of a revolving
credit facility; (iii) an application for a money transmitter license; or (iv) any other
proposed course of action, corporate policy, or other decision related to the conduct
of Twitter’s business, including Defendants’ assessment of and/or decision whether
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or not to provide their consent and/or whether or not the proposed course of action,
corporate policy, or other decision was commercially reasonable under the
circumstances, including all of the reasons Defendants declined to provide consents
to Twitter’s requests under the Merger Agreement described in paragraphs 119
through 122 of the Complaint, including without limitation all of the reasons why
You initially provided, but thereafter withdrew, any such consent.
RESPONSE TO TOPIC NO. 8:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 8.
TOPIC NO. 9:
False or spam accounts or bots on the Twitter platform and the disclosures in
Twitter’s SEC filings discussed in Paragraphs 64 and 66 of the Complaint, including
without limitation (i) any analyses, audits, or investigations performed or conducted
by or at the direction of You and/or Defendants’ Advisors, or of which You are
aware, relating to these subjects, whether performed or conducted prior or
subsequent to the execution of the Merger Agreement; (ii) any analyses, audits, or
investigations that You and/or Defendants’ Advisors considered undertaking, or that
You and/or Defendants’ Advisors considered having others undertake on Your or
their behalf, relating to these subjects; and (iii) Your decision to execute the Merger
Agreement without further due diligence on these subjects.
RESPONSE TO TOPIC NO. 9:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
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specifically insofar as it calls for the disclosure of information regarding “any
analyses, audits, or investigations performed or conducted by or at the direction of
You and/or Defendants’ Advisors” and “any analyses, audits, or investigations that
You and/or Defendants’ Advisors considered undertaking, or that You and/or
Defendants’ Advisors considered having others undertake.” The applicability of the
work product doctrine and Chancery Rule 26(b)(4)(B) to such “analyses, audits, or
investigations” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 9.
TOPIC NO. 10:
The effects or potential effects of changes in the price of Tesla common stock
on (i) the Merger; (ii) the Debt Financing; (iii) the Equity Financing; (iv) the
Financing Commitments; and/or (v) Your intentions with respect to closing and/or
efforts to close the Merger, and Defendants’ knowledge and consideration of such
topics.
RESPONSE TO TOPIC NO. 10:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 10.
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TOPIC NO. 11:
Any Communications between (a) Defendants or Defendants’ Advisors and
(b) any Governmental Authority, concerning (i) the Merger; (ii) the Merger
Agreement; (iii) the Proxy Statement; or (iv) Twitter, including the purpose of such
Communications, the nature and substance of such Communications, and at whose
request such Communications were made.
RESPONSE TO TOPIC NO. 11:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent it seeks testimony
regarding communications that are subject to an investigative privilege belonging to
any governmental authority. As set forth in Defendants’ August 17, 2022 Letter in
response to Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and
Objections to Twitter’s Document Requests and Interrogatories, X Holdings is not
in a position to disclose any information in its possession relating to any
investigation by any governmental authority that is subject to protection from
disclosure as recognized in Legent Group, LLC v. Axos Financial, Inc., 2021 WL
4514930 (Del. Ch. Oct. 4, 2021). X Holdings will respond to this Topic consistent
with the Court’s resolution of Plaintiff’s motion to compel regarding
communications with governmental authorities.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 11.
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TOPIC NO. 12:
Defendants’ purported termination of the Merger Agreement, including
without limitation (i) any consideration of whether and on what grounds to purport
to terminate the Merger Agreement; (ii) any consideration of potentially
renegotiating the Merger Agreement; (iii) the preparation of the June 6, 2022 Letter;
and (iv) the preparation of the July 8, 2022 Letter.
RESPONSE TO TOPIC NO. 12:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 12.
TOPIC NO. 13:
Defendants’ contention in the July 8, 2022 Letter that Twitter is “likely to
suffer a Company Material Adverse Effect,” including without limitation any
valuations, forecasts, projections, estimates, or other analyses relating to whether
Twitter is likely to suffer a Company Material Adverse Effect.
RESPONSE TO TOPIC NO. 13:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding the bases
for X Holdings’ contention. The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to the bases for X Holdings’ contention is the subject of
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a pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 13.
TOPIC NO. 14:
Forecasts, projections, estimates, or other analyses created by Defendants,
Defendants’ Advisors, the Lenders, or the Co-Investors, or on Your or their behalf,
relating to Twitter’s current or future performance, financial condition, or value,
including without limitation any projections of Twitter’s revenues, EBITDA,
earnings, and cash flows, and all Documents and Communications concerning such
forecasts, projections, estimates, or analyses.
RESPONSE TO TOPIC NO. 14:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “analyses
created by Defendants, Defendants’ Advisors, the Lenders, or the Co-Investors, or
on Your or their behalf.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to such analyses is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel. X Holdings further objects to this Topic as overbroad to
the extent it calls for testimony regarding interactions with “potential co-investors”
for the reasons set forth in Defendants’ August 17, 2022 Letter in response to
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Twitter’s August 15, 2022 Letter Regarding Defendants’ Responses and Objections
to Twitter’s Document Requests and Interrogatories. In responding to this Topic,
X Holdings will interpret “Co-Investor” according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 14.
TOPIC NO. 15:
Any plans or potential plans made or considered by Defendants to create or
develop a social media platform and/or alternative or competitor to Twitter,
including without limitation any plans or potential plans concerning X.com, and
including without limitation the origin, history, and timeline of such plans, and all
other Persons involved in such plans or with whom Equity Investor has discussed
such plans.
RESPONSE TO TOPIC NO. 15:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
X Holdings further objects to this Topic to the extent the phrase
“alternative or competitor to Twitter” is vague and ambiguous. X Holdings will
construe “alternative or competitor to Twitter” to include any social media platform
other than Twitter, including X.com.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 15.
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TOPIC NO. 16:
Your strategic or business plans for Twitter, including without limitation
(i) all plans to address issues relating to false or spam accounts on the Twitter
platform; (ii) all plans relating to employee retention programs or incentives; and
(iii) all plans relating to potential changes to the size and/or composition of Twitter’s
workforce.
RESPONSE TO TOPIC NO. 16:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic to the extent the phrase “strategic
or business plans for Twitter” is vague or ambiguous. Specifically, the phrase
“strategic or business plans” could include any number of short-term or long-term
plans about any facet of Twitter’s business, regardless of their relevance to the issues
in this litigation.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding the subtopics listed in (i), (ii), and (iii) of Topic
No. 16. X Holdings will agree to meet and confer regarding any further testimony
sought with reference to Topic No. 16.
TOPIC NO. 17:
The engagement, the work, and the termination of Bob Swan and/or the
cessation of Bob Swan’s involvement on Defendants’ behalf in connection with the
Merger and the Debt Financing, including the reasons that Defendants determined
that Bob Swan should “depart the deal proceedings” on or about June 23, 2022,
including due to the disconnect in “wavelength” between You and Bob Swan, as
described in Paragraph 110 of the Complaint.
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RESPONSE TO TOPIC NO. 17:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 17.
TOPIC NO. 18:
The actual or potential engagement or involvement of Antonio Gracias to act
on Defendants’ behalf in connection with the Merger and the Debt Financing and
the work Antonio Gracias performed in that capacity, including all of the ways that
Antonio Gracias allegedly “dove in to the financing as soon as he was brought on”
to replace Bob Swan, as referenced in Paragraph 198 of the Counterclaim.
RESPONSE TO TOPIC NO. 18:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 18.
TOPIC NO. 19:
The directors, officers, employees, and owners of X Holdings I, Inc., X
Holdings II, Inc., and X Holdings III, LLC, and the relationships between them and
Equity Investor.
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RESPONSE TO TOPIC NO. 19:
Subject to and limited by the General Objections, X Holdings will produce a
representative to testify regarding Topic No. 19.
TOPIC NO. 20:
Defendants’ and Defendants’ Advisors’ use of the “Botometer” tool described
in Paragraph 116 and Footnote 16 of the Counterclaim.
RESPONSE TO TOPIC NO. 20:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ Advisors’ use.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ Advisors’ use” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 20.
TOPIC NO. 21:
The engagement of the Data Scientists, including without limitation (i) the
identification of all Data Scientists and when they were engaged; (ii) the scope and
purpose of any such engagement; (iii) how such Data Scientists came to be engaged;
(iv) the nature of any agreements, arrangements, or understandings between the Data
Scientists and Defendants or Defendants’ Advisors.
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RESPONSE TO TOPIC NO. 21:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[t]he
engagement of the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[t]he engagement of the Data Scientists” is the
subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 21.
TOPIC NO. 22:
All Persons that Defendants or Defendants’ Advisors communicated with
about a potential engagement as a Data Scientist that were not engaged as a Data
Scientist, including without limitation (i) the identification of all such Persons;
(ii) the timeline during which such potential engagement was considered; and (iii) all
reasons such engagement did not take place.
RESPONSE TO TOPIC NO. 22:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
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Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 22.
TOPIC NO. 23:
All work performed by the Data Scientists, including without limitation (i) the
instructions received by the Data Scientists; (ii) the scope of the Data Scientists’
work; (iii) the timeline of the Data Scientists’ work; (iv) a description of the work
performed by each individual working as or for a Data Scientist; (v) the findings,
conclusions, and results of such work.
RESPONSE TO TOPIC NO. 23:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “[a]ll work
performed by the Data Scientists.” The applicability of the work product doctrine
and Chancery Rule 26(b)(4)(B) to “[a]ll work performed by the Data Scientists” is
the subject of a pending motion to compel. X Holdings will respond to this Topic
according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 23.
TOPIC NO. 24:
The financial model allegedly prepared by Morgan Stanley as described in
Paragraphs 34 and 166 of the Counterclaim and, to the extent different than the
financial model, the valuations allegedly prepared by Morgan Stanley as described
in Paragraph 78 of the Counterclaim, including the extent to which Defendants
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received, reviewed, or discussed the referenced model prior to April 25, 2022, and
the extent to which Defendants relied upon the referenced model.
RESPONSE TO TOPIC NO. 24:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 24.
TOPIC NO. 25:
Any “additional business models” that Defendants allegedly considered as a
means to “unlock Twitter’s true value,” as described in Paragraph 39 of the
Counterclaim, including without limitation the “subscription-based model”
referenced in that same Paragraph, the projected or anticipated value of Twitter
based on such business models, and the relevance of mDAU to such business
models.
RESPONSE TO TOPIC NO. 25:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 25.
TOPIC NO. 26:
Defendants’ knowledge of Twitter’s litigation with the Indian government
and/or any content-removal orders issued to Twitter by the Indian government, as
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discussed in Paragraphs 18 and 181 through 185 of the Counterclaim, including
without limitation when Defendants became aware of such litigation and/or contentremoval orders and who made them aware of such orders.
RESPONSE TO TOPIC NO. 26:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 26.
TOPIC NO. 27:
All “key decisions” that Twitter allegedly made “outside the ordinary course
without consulting the Musk Parties,” as alleged in Paragraphs 186 through 195 of
the Counterclaim.
RESPONSE TO TOPIC NO. 27:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 27.
TOPIC NO. 28:
The extent to which Defendants undertook any review, prior to executing the
Merger Agreement, of each of the allegedly false and misleading statements
discussed at Paragraphs 109 through 149 of the Counterclaim.
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RESPONSE TO TOPIC NO. 28:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 28.
TOPIC NO. 29:
The reliance of Defendants and/or Defendants’ Advisors on Twitter’s
representations in its SEC filings, as alleged in Paragraph 27 of the Counterclaim.
RESPONSE TO TOPIC NO. 29:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 29.
TOPIC NO. 30:
Defendants’ beliefs about the number and/or prevalence of false or spam
accounts or bots on the Twitter platform, including all bases for such beliefs and
Defendants’ allegations set forth in Paragraphs 212 and 213 of the Counterclaim that
“[a]t the time of the Merger Agreement, Defendants/Counterclaim-Plaintiffs did not
know the false or misleading statements or omissions” and “[h]ad
Defendants/Counterclaim-Plaintiffs known about the false or misleading statements
and omissions, they would not have entered into the Merger Agreement.”
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RESPONSE TO TOPIC NO. 30:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding “all bases
for such beliefs.” The applicability of the work product doctrine and Chancery Rule
26(b)(4)(B) to “all bases for such beliefs” is the subject of a pending motion to
compel. X Holdings will respond to this Topic according to the Court’s resolution
of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 30.
TOPIC NO. 31:
Defendants’ bases for contending that “statement[s] of material fact” in
documents that Twitter has filed with the SEC since January 1, 2022 were “untrue”
or “misleading,” including statements that Defendants contend contained
representations that “fewer than 5%” of Twitter’s mDAU are false or spam accounts.
RESPONSE TO TOPIC NO. 31:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ bases for contending.” The applicability of the work product doctrine
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and Chancery Rule 26(b)(4)(B) to “Defendants’ bases for contending” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 31.
TOPIC NO. 32:
Defendants’ understanding of Twitter’s mDAU recast in April 2022, as
discussed in Paragraphs 9 and 79 through 81 of the Counterclaim.
RESPONSE TO TOPIC NO. 32:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 32.
TOPIC NO. 33:
The “preliminary analysis by Mr. Musk’s advisors” and the results thereof
described in the final paragraph of page 6 of Defendants’ July 8 letter.
RESPONSE TO TOPIC NO. 33:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
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specifically insofar as it calls for the disclosure of information regarding the
“preliminary analysis by Mr. Musk’s advisors.” The applicability of the work
product doctrine and Chancery Rule 26(b)(4)(B) to the “preliminary analysis by Mr.
Musk’s advisors” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Pending resolution of the motion to compel, X Holdings will not produce a
representative to testify regarding Topic No. 33.
TOPIC NO. 34:
Defendants’ alleged belief that “due diligence processes can be costly and
inefficient,” as set forth in Paragraph 60 of the Counterclaim.
RESPONSE TO TOPIC NO. 34:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 34.
TOPIC NO. 35:
Defendants’ alleged assumption that Twitter “rel[ied] on automation, artificial
intelligence, and machine learning” to count false or spam accounts, as described in
Paragraph 83 of the Counterclaim.
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RESPONSE TO TOPIC NO. 35:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 35.
TOPIC NO. 36:
Defendants’ understanding of the “stratification” or potential stratification of
Twitter’s mDAU, as that term is used in Paragraph 141 of the Counterclaim, whether
performed before or after the execution of the Merger Agreement.
RESPONSE TO TOPIC NO. 36:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding.” The applicability of the work product doctrine and
Chancery Rule 26(b)(4)(B) to “Defendants’ understanding” is the subject of a
pending motion to compel. X Holdings will respond to this Topic according to the
Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 36.
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TOPIC NO. 37:
Defendants’ allegation that “nearly a third of Twitter’s mDAU in fact see no
ads and appear to generate no revenue at all,” as set forth in Paragraph 138 of the
Counterclaim.
RESPONSE TO TOPIC NO. 37:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it may call for the bases for X Holdings’ allegation. The
applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to the
bases for X Holdings’ allegation is the subject of a pending motion to compel.
X Holdings will respond to this Topic according to the Court’s resolution of that
motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 37.
TOPIC NO. 38:
Defendants’ knowledge and understanding of their allegation that “mDAU
growth is not occurring among high-value users,” as set forth in Paragraph 142 of
the Counterclaim.
RESPONSE TO TOPIC NO. 38:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
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doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ knowledge and understanding.” The applicability of the work product
doctrine and Chancery Rule 26(b)(4)(B) to “Defendants’ knowledge and
understanding” is the subject of a pending motion to compel. X Holdings will
respond to this Topic according to the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 38.
TOPIC NO. 39:
All allegations in Defendants’ Counterclaim.
RESPONSE TO TOPIC NO. 39:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify the particular paragraphs of the Counterclaims about which
Plaintiff seeks testimony.
Subject to and limited by the foregoing objections, and after Plaintiff
identifies which paragraphs are covered by this Topic, X Holdings will produce a
representative to testify regarding Topic No. 39.
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TOPIC NO. 40:
Defendants’ understanding of how many false or spam accounts existed on
the Twitter platform as of July 8, 2022, in absolute terms and as a percentage of
Twitter’s mDAU, and all their bases for that understanding as of that date.
RESPONSE TO TOPIC NO. 40:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information, information protected by the work-product
doctrine, or information protected by Chancery Rule 26(b)(4)(B), including
specifically insofar as it calls for the disclosure of information regarding
“Defendants’ understanding” and “their bases for that understanding.”
The
applicability of the work product doctrine and Chancery Rule 26(b)(4)(B) to
“Defendants’ understanding” and “their bases for that understanding” is the subject
of a pending motion to compel. X Holdings will respond to this Topic according to
the Court’s resolution of that motion to compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 40.
TOPIC NO. 41:
Defendants’ policies, practices, software, hardware, and systems relating to
the storage, management, retention, and destruction of Documents and
Communications.
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RESPONSE TO TOPIC NO. 41:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 41.
TOPIC NO. 42:
Defendants’ efforts to ensure that Documents relating to the discovery
requests in this Action and/or the Complaint were properly preserved, including any
related litigation hold or document preservation letters or notices.
RESPONSE TO TOPIC NO. 42:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 42.
30
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TOPIC NO. 43:
Defendants’ efforts to retrieve text messages, instant messages, and other nonemail Communications.
RESPONSE TO TOPIC NO. 43:
X Holdings objects to this Topic on the ground that it in effect seeks
“discovery about discovery,” which Plaintiff contends is improper, overly broad,
unduly burdensome, and neither relevant nor proportional to the needs of this
expedited litigation. X Holdings reserves all rights to contest Plaintiff’s objection
to “discovery about discovery.”
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 43.
TOPIC NO. 44:
Any sales of Tesla stock by Equity Investor from April 1, 2022 through the
present, including the purpose of any such sale, any potential use of the proceeds of
such sale considered by Defendants, and any relationship between such sale and the
Merger.
RESPONSE TO TOPIC NO. 44:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 44.
31
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TOPIC NO. 45:
The identity, role, and nature of the work of any personnel of Tesla or Space
Exploration Technologies Corp. who worked on, analyzed, or assisted in any
capacity with the Merger, the Debt Financing, the Equity Financing, any potential
investment by a Co-Investor, the Margin Loan Commitment, any potential tender
offer involving Twitter, Defendants’ purported termination of the Merger
Agreement, or the Action.
RESPONSE TO TOPIC NO. 45:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overbroad to the extent it calls
for testimony regarding interactions with “potential co-investors” for the reasons set
forth in Defendants’ August 17, 2022 Letter in response to Twitter’s August 15,
2022 Letter Regarding Defendants’ Responses and Objections to Twitter’s
Document Requests and Interrogatories. In responding to this Topic, X Holdings
will interpret “Co-Investor” according to the Court’s resolution of that motion to
compel.
Subject to and limited by the foregoing objections, X Holdings will produce
a representative to testify regarding Topic No. 45.
TOPIC NO. 46:
All information contained in Defendants’ Interrogatory Responses, including
all sources of such information and Defendants’ process of ascertaining and
providing such information.
32
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RESPONSE TO TOPIC NO. 46:
X Holdings objects to this Topic to the extent it calls for the disclosure of
attorney-client privileged information or information protected by the work-product
doctrine. X Holdings further objects to this Topic as overly broad to the extent it
does not identify which particular interrogatory responses Plaintiff seeks testimony
on.
Subject to and limited by the foregoing objections, X Holdings will agree to
meet and confer regarding Topic No. 46.
OF COUNSEL:
Alex Spiro
Andrew J. Rossman
Christopher D. Kercher
Silpa Maruri
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010
(212) 849-7000
/s/ Edward B. Micheletti
Edward B. Micheletti (ID No. 3794)
Lauren N. Rosenello (ID No. 5581)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899-0636
(302) 651-3000
Attorneys for Defendant X Holdings II, Inc.
DATED: August 19, 2022
33
916787-WILSR01A - MSW
PDF Page 72
EXHIBIT 5
PDF Page 73
From:
Sent:
To:
Cc:
Subject:
Matthew Fox
Tuesday, September 20, 2022 12:49 PM
Wilson, Bradley R.; Yavitz, Noah B.; Kirk, David E.; Shannon, Kevin R. (Potter Anderson &
Corroon LLP); Kelly, Christopher N. (Potter Anderson & Corroon LLP); Slights, Joseph R.
(Wilson Sonsini Goodrich & Rosati, PC)
Mader, David S. (Quinn Emanuel Urquhart & Sullivan LLP); Silpa Maruri; Emily Kapur;
Rossman, Andrew J. (Quinn Emanuel Urquhart & Sullivan LLP); Alex Spiro; Kercher,
Christopher D. (Quinn Emanuel Urquhart & Sullivan LLP); Kathryn Bonacorsi; Micheletti,
Edward B. (Skadden, Arps, Slate, Meagher & Flom LLP); Rosenello, Lauren N
RE: Twitter v. Musk -- Birchall 30(b)(6) topics
*** EXTERNAL EMAIL ***
Further to my email below, Mr. Birchall will also be Defendants’ 30(b)(6) representative on topics 11, 20‐23, 26, 27, 32,
and 36‐38 from Twitter’s August 11, 2022 notices, again subject to Defendants’ general and specific responses and
objections thereto.
From: Matthew Fox
Sent: Tuesday, September 20, 2022 12:01 PM
To: Wilson, Bradley R. ; Yavitz, Noah B. ; Kirk, David E.
; Shannon, Kevin R. (Potter Anderson & Corroon LLP) ; Kelly,
Christopher N. (Potter Anderson & Corroon LLP) ; Slights, Joseph R. (Wilson Sonsini
Goodrich & Rosati, PC)
Cc: David Mader ; Silpa Maruri ; Emily Kapur
; Andrew J. Rossman ; Alex Spiro
; Christopher Kercher ; Kathryn Bonacorsi
; Micheletti, Edward B. (Skadden, Arps, Slate, Meagher & Flom LLP)
; Rosenello, Lauren N
Subject: Twitter v. Musk ‐‐ Birchall 30(b)(6) topics
Counsel,
Defendants designate Jared Birchall as their 30(b)(6) representative on topics 2, 3, 4, 5, 19, 41, 42, 43, and 46 from
Twitter’s August 11, 2022 notices to X Holdings I, Inc. and X Holdings II, Inc, subject to Defendants’ general and specific
responses and objections thereto. Defendants, like Twitter, will not make any witnesses available for deposition more
than once.
Best,
Matt
Matthew Fox
Associate
Quinn Emanuel Urquhart & Sullivan, LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
212-849-7285 Direct
212-849-7000 Main Office Number
212-849-7100 FAX
1
PDF Page 74
matthewfox@quinnemanuel.com
www.quinnemanuel.com
NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message
may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended
recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any
review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately
by e-mail, and delete the original message.
2
PDF Page 75
EXHIBIT 6
PDF Page 76
Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, 2022
Jared Birchall
Page 1
Page 3
APPEARANCES CONTINUED
IN THE CHANCERY COURT
OF THE STATE OF DELAWARE
--------------------------------TWITTER, INC.,
Plaintiff and
Counterclaim-Defendant,
v.
ELON R. MUSK, X HOLDINGS I, INC.,
and X HOLDINGS II, INC.,
Defendants and
Counterclaim-Plaintiffs.
Civil Action No. 2022-0613-KSJM
---------------------------------
ATTORNEYS FOR DEFENDANTS AND COUNTERCLAIM-PLAINTIFFS
AND THE DEPONENT MR. BIRCHALL
Alex Spiro, Esquire
Quinn Emanuel Urquhart & Sullivan, LLP
51 Madison Avenue
22nd Floor
New York, New York 10010
(212) 849-7000
ALSO PRESENT:
VIDEO DEPOSITION OF
Jared John Birchall
Individually and as Corporate Designee of:
X HOLDINGS I, INC. AND X HOLDINGS II, INC.
September 21, 2022
New York, New York
Lead: Kevin R. Shannon, Esquire
Firm: Potter Anderson & Corroon, LLP
Nathanial P. Graham, Paralegal
Wachtell Lipton Rosen & Katz
Jamie S. Blair, New York Remote Notary Public
(Appearing via Zoom)
JANE ROSE REPORTING
74 Fifth Avenue
New York, New York 10011
1-800-825-3341
Joan V. Cain, Court Reporter
FINAL COPY - CONFIDENTIAL
JANE ROSE REPORTING 1-800-825-3341
Larry Moskowitz, Videographer
Page 2
APPEARANCES
ATTORNEYS FOR PLAINTIFF AND COUNTERCLAIM-DEFENDANT
Page 4
TABLE OF CONTENTS
Witness:
Jared John Birchall
Kevin R. Shannon, Esquire
Potter Anderson & Corroon, LLP
1313 North Market Street
Hercules Plaza
Sixth Floor
Wilmington, Delaware 19801
Examination
By Mr. Shannon..............................Page 7
By Mr. Spiro................................Page 332
(302) 984-6000
Reporter Certificate........................Page 335
-AND-
Notice to Read and Sign.....................Page 337
Noah B. Yavitz, Esquire
Index of Exhibits...........................Page 339
Jessica L. Allen, Esquire
Wachtell Lipton Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000
JANE ROSE REPORTING
1-800-825-3341
National Court-Reporting Coverage
janerose@janerosereporting.com
PDF Page 77
Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
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PROCEEDINGS
--9:33 a.m.
September 21, 2022
--THE VIDEOGRAPHER: Good morning. We are
now on the record. Here begins Media No. 1, Volume
1, in the deposition of Jared Birchall, in the
matter of Twitter, Inc. versus Elon R. Musk, X
Holdings I, Inc. and X Holdings II, Inc.
Today's date is September 21st, 2022, and
the time is 9:33 a.m. This deposition is being
taken at the office of Quinn Emanuel, 51 Madison
Avenue, New York, New York, and was made at the
request of plaintiffs.
My name is Larry Moskowitz, the
videographer, and the court reporter is Joan Cain,
from Jane Rose Reporting, New York, New York.
Will counsel please identify yourselves and
state whom you represent.
MR. SPIRO: Alex Spiro, Quinn Emanuel, on
behalf of Mr. Birchall and X Holdings.
MR. SHANNON: Kevin Shannon, Potter
Anderson, on behalf of Plaintiff Twitter.
MR. YAVITZ: Noah Yavitz, Wachtell Lipton,
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on behalf of Plaintiff Twitter.
MS. ALLEN: Jessica Allen, Wachtell Lipton,
on behalf of plaintiff Twitter.
MR. SHANNON: If you'd like to take a short
break and eat your sandwich?
THE WITNESS: I'm okay.
THE VIDEOGRAPHER: Will the notary public
please swear in the witness.
THE NOTARY: Yes.
Mr. Birchall, would you please state and
spell your name for the record, as well as state
your address, please.
THE WITNESS: Jared Birchall,
J-A-R-E-D B-I-R-C-H-A-L-L. Address:
Austin, Texas 78738.
THE NOTARY:
? I'm sorry.
THE WITNESS: I'm sorry.
.
THE NOTARY:
-THE WITNESS:
.
THE NOTARY: Oh,
. I'm sorry. Austin,
Texas.
And the zip code, please?
THE WITNESS: 78738.
THE NOTARY: Thank you.
Whereupon,
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
JARED JOHN BIRCHALL,
having been duly sworn under penalties of perjury by
the New York Notary Public, was examined and did
testify as follows:
THE NOTARY: Counsel, you may proceed.
MR. SHANNON: Thank you.
EXAMINATION BY COUNSEL FOR PLAINTIFF AND
COUNTERCLAIM-DEFENDANT
BY MR. SHANNON:
Q Good morning, Mr. Birchall. We've been
previously introduced. My name is Kevin Shannon. I
represent Twitter in this case.
Is there any reason you would not be able
to give your complete, truthful testimony today?
A No.
Q Have you ever been deposed before?
A I have.
Q How many times?
A I believe three.
Q Can you tell me in what matters you were
deposed?
A Well, I believe two connected to this
matter by government agencies, and then one -- I
don't know how I'd refer to it, but a trial four
years ago. It was Vern Unsworth versus Elon Musk, a
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defamation lawsuit.
Q Okay. And did you give both deposition and
trial testimony in that case?
A In that case, I did.
Q And you started out by alluding to two
depositions you've given relating to this matter.
Who did you give those depositions to?
A To the SEC and to -- actually, there were
two depositions with the SEC and then one with the
DOJ.
Q When did those depositions occur?
A The SEC was -- the second of the two was a
week ago. The DOJ was two weeks ago.
Q And when was the first of the two SEC?
A A month ago.
Q Okay. And who represented you in
connection with those depositions?
A Quinn Emanuel.
Q And Mr. Spiro, who's defending you today?
A Yeah. He was present at both of those.
Q Okay. Were there transcripts of those
depositions?
A I don't know.
Q You don't recall ever seeing the
transcripts?
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CONFIDENTIAL
[FINAL]
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A I've never seen a transcript.
Q With regard to the two SEC depositions,
what specifically did they relate to?
A To the purchase of Twitter shares
primarily. I mean, there was a lot of material
covered. It was kind of all the logistics and
timing as it pertained to acquiring shares of
Twitter and the merger agreement.
Q Did you have an understanding as to why
there was a second deposition before the SEC?
A Yes.
Q What was your understanding?
A My understanding was it was to cover a
different time period.
Q What was the time period of the first
deposition?
A It was up until the merger agreement, and
then the second was post.
Q What did the questioning relate to with
regard to the second deposition, which is post
signing of the merger agreement?
A As I recall, it related to filings. I
mean, it was hours of questioning. So -- but
filings among -- among other, I guess,
timing-related questions that they had. I don't
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recall all those questions.
Q Are you aware of any other representative
of defendants that were questioned by the SEC or the
DOJ in connection with the same matters?
A I -- I believe Elon was as well.
Q Anyone else?
A I mean, not firsthand knowledge. I -- I
could guess on a few, but I -- I don't know
personally with certainty.
Q What's your understanding as to who else
would likely be investigated or -A Morgan Stanley representatives,
potentially, the legal representatives.
Q You also referred to a deposition by the
DOJ. What did that relate to?
A Similar topics: Asked many of the same
questions or similar -- similar line of questioning
with regard to timing and filings and motivations
and, you know, things like that.
Q Did you have an understanding as to why the
DOJ was taking a separate deposition regarding those
topics?
A My assumption was they're a separate
government entity with separate questions.
Q Just so it's clear, even though you've been
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
deposed and deposed recently, today I'm going to ask
you a series of questions. If you don't hear a
question, certainly let me know, and I'll repeat it.
If you don't understand a question, let me know, and
I'll try and rephrase it. And at any point today
you need to take a break, just let me know, and
we'll take a break.
A Will do.
Q What did you do to prepare for your
deposition today?
A I met with the Quinn team yesterday, the
Quinn Emanuel team, for approximately five hours.
Q Did you review documents in connection with
that?
A I don't recall. I wasn't provided any
documents. I think questions were asked based on
documents, but I wasn't provided any documents.
Q Was anyone present during that meeting
other than lawyers for Quinn Emanuel?
A No.
Q Other than meeting with Quinn Emanuel
yesterday for five hours -- approximately five
hours, do you recall doing anything else to prepare
for your deposition today?
A I spent about another 40 minutes this
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morning with -- with them.
Q Anything else?
A No.
Q Have you discussed your potential
deposition testimony with any other witnesses?
A No.
Q Have you discussed it with anyone?
A No. Beyond Quinn Emanuel, no.
Q Have you reviewed any deposition
transcripts from this case?
A No. I don't have those.
Q Did you discuss your deposition with
Mr. Musk?
A No.
Q Can you briefly describe your education
post high school?
A A four-year degree at Brigham Young
University.
Q What year did you graduate?
A In '99.
Q What was your major?
A I was a Spanish language major, business
minor.
Q Did you go to Brigham Young immediately
following high school?
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CONFIDENTIAL
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A I did.
Q Do you have any certifications, such as a
CPA, or anything along those lines?
A Not a CPA. There were certain regulatory,
you know, Series 7, things like that, that at one
point I had. Those have lapsed. There was a CFM
designation that was earned while working at Merrill
Lynch.
Q And any series registrations that you have
or your CFM, your understanding those have lapsed?
A Correct. I don't know about the CFM
actually. But -Q Did you have any education after your
degree in Spanish from BYU?
A Formal education?
Q Correct.
A No.
Q You qualified your answer to formal
education. Is there informal education that you
were thinking of?
A I mean, yeah, there's a lot of training
that happened at employers, but not formal.
Q Can you briefly describe your employment
history following your graduation from Brigham
Young?
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A I was employed by Goldman Sachs in Los
Angeles.
Q When did you start at Goldman Sachs?
A That would have been late spring of -- of
'99.
Q What was your position at Goldman Sachs?
A Financial analyst.
Q How long were you at Goldman Sachs?
A A little less than two years.
Q Were you in the same position the entire
time?
A Yes.
Q Can you briefly describe your
responsibilities as a financial analyst at Goldman
Sachs?
A To support a team of private wealth
advisers and whatever they needed. That included a
lot of PowerPoint and Excel work and whatever
researching they needed and supporting clients
tangentially through them.
Q So you were on the private wealth side of
Goldman Sachs?
A That's right.
Q And you testified you were there for
approximately two years, which I take is until about
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
2001.
What did you do after that?
A Transitioned with a large team of Goldman
Sachs employees to Merrill Lynch.
Q Where were you working for Merrill Lynch?
A Geographically?
Q Yes.
A In Los Angeles.
Q What was your position at Merrill Lynch?
A Initially, the same position, which was a
financial analyst.
Q Did that change over time?
A It did.
Q How did that change?
A Several years in, I transitioned into a
financial advisory role.
Q Approximately, when did you transfer into
that role?
A Approximately, two thousand -- somewhere
between 2003 and 2004.
Q And what did that role entail?
A It entailed advising a group of clients on
their personal financial matters.
Q At Merrill Lynch, were you also on the
private wealth side?
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A That's correct.
Q How long did you stay at Merrill Lynch?
A Ten years.
Q Did you remain as a financial adviser until
you left?
A I did.
Q And what year did you leave?
A Two thousand -- let's see here. Sorry.
I believe it was 2010.
Q What was your reason for leaving Merrill
Lynch?
A I was dismissed by the firm.
Q Why were you dismissed by the firm?
A The stated reason was that I -- there was
correspondence with a client that they had not
reviewed.
Q What type of correspondence?
A Regarding a trade request, a trade program
by that client.
Q You testified the stated reason. Did you
have an understanding that there was a different
reason?
A No. I'm just, I guess, trying to refer to
what they have stated because I think that's -Q Did you have an understanding as to why the
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CONFIDENTIAL
[FINAL]
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correspondence you alluded to led -- led Merrill
Lynch to terminate your employment?
A Because they didn't review that
correspondence.
Q Any other reason?
A No.
Q What was your next position after Merrill
Lynch?
A A private wealth adviser at Morgan Stanley.
Q When did you start that position?
A In -- let's see here.
I mean, it was immediately after leaving
Merrill Lynch.
Q So 2010 or '11?
A Yeah.
Q Okay. How long were you with
Morgan Stanley?
A Between six and seven years.
Q And were you a private wealth adviser
during that entire period?
A I was.
Q Located in Los Angeles?
A Correct.
Q What were your responsibilities in that
position?
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A To provide advisory services to -- to
investor -- to clients.
Q And what type of advisory services?
A How they should invest their money.
Q And when did you leave Morgan Stanley?
A I left Morgan Stanley in two thousand -sorry. I'm blanking. It's either 2016 -- I'm
sorry. '15 or '16. I'm -Q Just the general time period -A Yeah.
Q -- is -- is fine.
A Yeah.
Q Why did you leave Morgan Stanley?
A I was offered a position to manage the
family office of Elon Musk.
Q When did you first meet Elon Musk?
A The very first time that I met Elon Musk,
though he probably wouldn't remember, was as an
employee at Morgan Stanley years earlier.
Q How did it come about that you were offered
the job to manage the family office for Mr. Musk?
A As I understood it, he had asked a friend,
adviser, a trusted person if they knew of anyone
that could help him do this, and I was one of the
names given to him.
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
Q Do you know who he asked for that advice?
A I do.
Q Who was that?
A An -- an employee that had worked at
Merrill Lynch for him for a number -- for a handful
of years, whose name is
.
Q And did you interview with Mr. Musk?
A I did.
Q Do you recall when that was, generally?
A Yeah. It was -- it was, like, the month
preceding my hiring, so whichever those dates was -Q Okay. And so have you worked as the head
of the family office for Mr. Musk since that time
period?
A I have.
Q And what is your current title?
A Titles don't mean much in -- or -- or
technically it's the managing director of the -- of
Excession, LLC, or the Musk family office.
Q And is Excession, LLC, the family office?
A That's correct.
Q And have you been in that position since
you started?
A That's right, although Excession didn't
exist when I started, but shortly thereafter.
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Q Okay.
A Yes.
Q Was there a prior name for it?
A No.
Q And can you briefly describe your
responsibilities with regard to managing the family
office for Mr. Musk?
A Primarily, all things related to his
personal financial situation and, you know, his
personal affairs.
Q Just, like, when you say "personal
financial situation," can you give me examples of
the types of things you have responsibility for?
A Sure. Helping manage his balance sheet,
helping with everything from bill pay to lending
needs to stock transactions.
Q And you also suggested you have
responsibility to some extent for managing his
personal affairs. What were you alluding to there?
A Domestic employees, security, and, you
know, whatever else was needed.
Q Does anyone else work for Excession?
A Yes.
Q Who else works for Excession?
A You want the names?
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Q Yeah.
A
.
Q And just to save some time, if you could
let me know each of their roles as you identify
them -A Sure.
Q -- how long they've worked for the company?
A Yeah. So
is an accountant and
has worked with the company for approximately three
years.
, oversees philanthropic
efforts, and she's been with Excession for less than
a year.
works as a
bookkeeper/administrative kind of ops
representative. She has been with Excession
approximately five years, and those are the only
direct employees of Excession.
Q You said direct employees. Are there
people you would characterize as indirect employees
or independent consultants who work for Excession?
A No. I guess where my mind was going is we
also have domestic employees and security
representatives that -- personal security, not,
like, financial security, but that are employed
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through -- they're not technically employed by
Excession. They're employed by another entity, but
overseen by the Excession umbrella.
Q Is there a physical office for Excession?
A There is.
Q Where is that?
A Austin, Texas.
Q And does Mr. Musk have an office there?
A No.
Q Does he ever come to that office?
A No.
Q To the best of your knowledge, has he ever
been to the office?
A No.
Q Do you have an understanding why?
A He has a million other things that he's
doing in other offices and office spaces and
companies that he's focused on.
Q Is there anyone else at that office other
than the people you've just identified?
A No.
Q Okay. In your position as head of family
office -A Actually, I'm sorry. There are -- there
are two employees that oversee property management
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
that I was thinking were -- were employed by the
other entity but are employed by Excession.
Q Are their responsibilities solely property
management?
A That's right.
Q And they are properties owned by Mr. Musk
or affiliates?
A That's right -- no, not owned. Used or
rented or, you know.
Q Okay. In your position at Excession and
head of the family office, do you -- who do you
report to?
A Elon.
Q Do you report to anyone else?
A No.
Q Does anyone other than Mr. Musk give you
instruction or direction as to what you should do?
A No.
Q Who determines how much you're paid?
A Mr. Musk.
Q Does Mr. Musk determine whether you stay
with the company or are terminated?
A Yes.
Q How often do you typically communicate with
Mr. Musk?
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A That varies significantly based on all
things that are happening, but there's a standing
weekly meeting that is fairly consistent.
Q Is that at a set time each week?
A There is a recurring calendar invite for
that that is set for
,
although it many times doesn't happen at that time.
Q You say it doesn't happen at that time. If
it doesn't happen, will it be rescheduled?
A Typically, it is.
Q And what is the purpose of that recurring
meeting?
A It is an update on all the work being done
for the week.
Q How does that meeting occur? Is it in
person, or is it Zoom? Or how does it occur,
typically?
A
.
Q
?
A
.
.
Q So are there -- let me take a step back.
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A
Q
A
?
Typically.
Okay.
I mean, within reason.
, we either would not have a
meeting or postpone it or -,
and at times they didn't happen.
Q Okay. Who else attends these meetings?
A It is mostly just the two of us. You know,
every once in a while, if there's a subject matter
expert that needs to be there with us to cover
something, they'll -- they'll join.
Q Is an agenda prepared for the meetings?
A No.
Q Does Mr. Musk ever advise you on what he
wants covered at the meetings?
A I -- sometimes.
Q How would he typically communicate that to
you?
A There's a general understanding of what he
wants covered at those meetings, and so I would come
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prepared with that information in general, and in
some cases there would be a communication, you know,
in the days leading up with a specific request. And
that could be anywhere from a phone conversation to
a text to an email to a Signal message. It could be
any of those.
Q When you say there's a general
understanding of what he wants at the meetings,
what's your general understanding?
A An update on his financials.
Q And has that recurring meeting generally
occurred throughout this year?
A Generally, yes, with some exceptions.
Q Outside of the recurring meeting, is there
a manner in which you typically communicate with
Mr. Musk?
A Primarily the -- the mediums that I just
mentioned. I -- I think most of that communication
is in person during those weekly meetings, and then
we have utilized, historically, phone, email, text,
Signal.
Q Is -- is there a manner in which you
decide, if you have something you want to relay to
Mr. Musk, how you will send it, whether by phone,
text, Signal, or email?
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
A So that would depend on the -- on the
content of -- of what I was sending and -- and the
timing. There's certain topics, of course, now,
that would -- would drive a type of communication a
certain -- through a certain medium versus another.
But, historically, things that are private
and personal and involve his personal information
would -- for the better part of the past four years,
five years maybe, Signal is -- is primarily how that
information is communicated.
Q Why do you use Signal for that purpose?
A For privacy and confidentiality. He -- the
first four years that I worked for him, I worked
half of the week at SpaceX and had it continually
pounded into me the -- the many different
adversaries that were seeking to access his
information. ITAR, a regulated company, and -THE COURT REPORTER: Say that again. I
missed it.
THE WITNESS: ITAR, I-T-A-R, a regulated
company with a lot of sensitivities, and so that was
impressed upon me and recommended by the IT teams,
to -- to communicate his personal information via
Signal.
BY MR. SHANNON:
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Q And why is Signal, in your understanding,
more protected or confidential?
A It's encrypted.
Q Are the Signal messages preserved?
A Signal -- I have a default setting on mine
that deletes in one week.
Q And do you know if Mr. Musk has a similar
one?
A I don't know what his settings are. I -- I
only know that my line of dialogue with him has that
setting on it.
Q Have you ever changed that setting?
A No.
Q Is that setting set for only Mr. Musk, or
is that for all your Signal messages?
A If I start a Signal message with any
person, it automatically -- the setting is that it
defaults at one week.
Q Have you ever changed that setting?
A I haven't. There -- there are others that
I correspond with that maybe have set different
timeframes.
Q Who else do you correspond with using
Signal?
A Primarily, his personal inner circle, his
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security. That's primarily it.
Q Do you ever use Signal for business?
A Again, I'm hired to manage his personal
family office, and so I guess it depends on your
definition of -- of business, but certainly for his
personal financial matters, yes.
Q Would you view his investment in Twitter as
one of his personal financial matters?
A His purchases of Twitter, definitely.
Yeah.
Q So did you use Signal with regard to any
matters relating to Twitter, including his purchase
of Twitter?
A I don't recall using Signal for that
purpose. The updates that I was giving him was in
person on -- you know, when I was with him in the
meetings, but certainly there was a moment
that when there were litigation holds where added
care was taken to never use it for anything
involving Twitter.
Q When do you recall that occurring?
A Approximately mid-May.
Q Who did you receive the litigation hold
from?
A I don't recall if it was from Skadden or
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Quinn, but -- or both. I don't know. But it was
from one or the other.
Q Do you know what triggered the receipt by
you of a litigation hold in mid-May of 2022?
A The way I understood it is there was
pending litigation.
Q What pending litigation are you referring
to?
A Between the two parties in question today:
Twitter and Elon Musk.
Q Did you have an understanding that
litigation was pending in mid-May 2022?
A I mean, my assumption was that a litigation
hold was correlated with some degree of litigation.
Q Okay. So is it your recollection that
since mid-May, as a result of receiving that
litigation hold, you have not used Signal?
A For Twitter-related matters, yes.
Q Are you still using it for other matters?
A I am.
Q And does it still have the auto delete at
one week?
A It does.
Q You also referenced that you communicate
with Mr. Musk via email. How do you determine when
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
you will email something to Mr. Musk as opposed to
Signal, text, or call?
A Email is much less frequent, and sometimes
it is because I have specifically asked him, whether
in our meeting or otherwise. Sometimes others have
initiated emails that it is just easier and not
overly confidential to just forward that along.
Q When you say because you specifically asked
him, what do you mean by that?
A In our -- I can just think of one email in
particular where we -- you know, sitting down with
him in a
meeting I would have asked, "Okay.
Is this okay to email?" And always with the -- I'm
always thinking of -- of the -- you know, the things
that the IT team has hammered into my head as far as
privacy and confidentiality and security risks,
and -- and so at times I would double check before
sending something.
Q What kind of things would you view as okay
to email?
A Well, one of the more recent emails that I
sent was regarding architectural plans that the
architecture team, you know, wanted him to see, and
so something like that. I -- but the less, I guess,
confidential private matters that -- you know, I
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guess the less confidential and private matters,
yeah.
Q Would you view Mr. Musk's investment in
Twitter to be a confidential and private matter?
A Yes.
Q When you email Mr. Musk, what email address
do you use?
A I've used -- historically, I've used two,
but almost exclusively the SpaceX email.
Q What are the two that you've historically
used?
A The other being his Tesla email.
Q Why do you use the SpaceX account?
A That's -- like I said, I spent four years
at SpaceX sitting, you know, at a desk a few desks
away from him, and that was just kind of where I
started my communications via email with him.
Q What email account do you use in order to
communicate through email to Mr. Musk?
A It's an Excession email address.
Q Do you ever use a different email account
to communicate with Mr. Musk?
A Not that I recall.
Q You also suggested that you speak with
Mr. Musk by phone. Is there more than one phone
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number that you call for him?
A No, not at any given time, but over -- over
time he has changed his phone.
Q But at any given time, you're only aware of
him having one phone number that you would reach out
to?
A That's right.
Q How about text? Do you communicate with
Mr. -- Mr. Musk using texts?
A Sometimes.
Q How do you determine when to communicate
with Mr. Musk using texts?
A Typically, if he has texted me, you know, I
will respond via text. Again, if it -- if it isn't
of sensitive personal confidential nature, if it's
trying to get him on a phone call or something like
that, I'll use, you know, text.
Q And I assume that would be to the one
number you have used when you call him?
A That's right.
Q And do you have more than one phone?
A I don't.
Q What is your practice with regard to
preserving texts?
A I don't delete texts.
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Q Do you recall having deleted any texts?
A I don't.
Q Does your phone have a setting with regard
to texts?
A I, frankly, don't know that.
Q Do you know if Mr. Musk deletes his texts?
A No idea.
Q Do you know if his phone has a setting for
texts?
A I don't know.
Q How about WhatsApp or any other messaging
apps? Do you use any of them to communicate?
A I don't.
Q And just so I understand, we've walked
through the way you communicate. Is it fair to say
that anything you would view as confidential and
personal, you would typically default to Signal?
A Unless subject to the litigation hold that
I mentioned.
Q Mr. Birchall, are you aware that you're
appearing as a Rule 30(b)(6) witness -- 30(b)(6)
witness today?
A Yes.
Q And you're appearing on behalf of both X
Holdings I and X Holdings II; correct?
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
A That's right.
Q And can you tell me what your role is at X
Holdings I?
A Well, I'm one of two people that I think
represent the organization that was created
exclusively for this transaction.
Q Is the other person Mr. Musk?
A Correct.
Q Do you have a title at X Holdings I?
A I don't, or at least I don't know of one
that I -Q How about X Holdings II? What is your role
there?
A The same.
Q And is Mr. Musk the only other person
involved with that entity?
A I believe so.
Q And has that been true since the entities
were formed?
A As far as I know, yes.
Q And what is the difference between X
Holdings I and X Holdings II?
A Just multiple layers of entities for
purposes at the recommendation of legal teams.
Q Do you know why both different entities
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were established?
A Like I said, at -- it was -- they were
established at the recommendation of -- of legal
teams for the -- you know, for the execution of this
transaction.
Q Do you have any specific role at either
entity?
A Not that I know of, other -- other than to
be -- you know, continue doing what I'm doing for
Mr. Musk.
Q When you say continue to be doing what
you're doing, what do you mean by that?
A I mean work as -- work in the capacity that
I always have, you know, as just, you know, adviser
or whatever.
Q And any action you would take on behalf of
either X Holdings I or X Holdings II would be at the
direction of Mr. Musk?
A In conjunction with at least, yes.
Q Have you read the Rule 30(b)(6) deposition
notices in this case?
A I don't believe I have.
Q Have you -A Is this -- is this an issue (indicating)?
No. Okay.
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Q Have you read the defendants' responses or
objections -- and objections to the 30(b)(6)
notices?
A I haven't.
Q When did you learn that you were going to
be designated as a Rule 30(b)(6) witness?
A Yesterday.
Q Can you generally tell me what topics you
are testifying on regarding -- or with respect to
the 30(b)(6) notices?
A I -- I don't recall the list. There were a
few -- a handful of things on that, but I -- I don't
recall specifically what those, you know -Q Do you recall any specific ones?
A I don't.
Q Okay. What did you prepare -- or strike
that.
What did you do to prepare in order to be a
30(b)(6) with regard to the topics that have been
designated for you?
A That was part of the block of time that I
mentioned yesterday with -- with the legal team.
Q The -- the five hours that you -A That's right.
Q With regard to the topics for which you've
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been identified, do you view yourself as the person
most knowledgeable at X Holdings I or X Holdings II?
A I think so, far as I know.
Q Would there be anyone else knowledgeable
other than you and Mr. Musk on behalf of those
defendants?
A Not that I -- no, I don't believe so.
MR. SHANNON: Can you hand me the 30(b)(6)?
Thanks.
Will you mark that as Exhibit 1.
--(Birchall Exhibit 1 was marked for
identification.)
--MR. SHANNON: And if you could mark that as
Exhibit 2.
--(Birchall Exhibit 2 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibits 1 and 2, which I
will represent to you are the 30(b)(6) notices
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
served by plaintiffs for both X Holdings I and X
Holdings II for which you've been designated as to
certain topics, the designated witness.
A Okay.
MR. SPIRO: Kevin, do you happen to have a
copy?
MR. SHANNON: Oh, sorry. Let me make sure
I give you both. Here's Exhibit 2.
MR. SPIRO: You can proceed as we're
finding them.
MR. SHANNON: There's Exhibit 1.
MR. SPIRO: Thank you.
BY MR. SHANNON:
Q And, Mr. Birchall, I know you testified you
hadn't seen these before, but I'm going to ask you
to turn to page 12 of the one that is marked
Exhibit 1.
A Okay. I'm there.
Q And -- and they should be largely the same
except for different defendants.
Do you have that in front of you?
A I do.
Q And the first topic that's listed for which
you've been identified is No. 2.
Do you see that there?
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And No. 2 reads -- and this is on page 12.
Do you see it?
A I do.
Q And it reads: "All efforts to syndicate
and/or arrange documents, negotiate the terms of,
consummate the debt financing of, and close the
merger, including the status or expected timeline
for such efforts."
Do you see that?
A I do.
Q Okay. Can you describe for me the efforts
relating to the debt financing that are covered by
that topic?
A So we engaged Morgan Stanley, their banking
team, and they -- and relied exclusively on them to
arrange and syndicate the -- the debt.
Q Did you have any role in it?
A I did not.
Q Are you aware of anyone else having a role
other than Morgan Stanley?
A I'm not.
Q And was Morgan Stanley keeping you or
anyone else advised of their effort?
A Yes.
Q How did they do that?
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A There were periodic phone conversations.
Q How often were those conversations?
A As I recall, maybe a few times per week.
Q And how long did those conversations
continue on for?
A I -- I don't recall how long those -- those
conversations were.
Q When is the last conversation you recall
with anyone at Morgan Stanley with regard to the
debt financing?
A I -- I can't pull a date out on what that
would be. I -- I don't remember the last
conversation on that.
Q Were there invites for these discussions?
A Not typically. I don't think these were,
you know -- although I could be wrong, but I recall
them as more kind of spontaneous check-ins.
Q And who from Morgan Stanley would reach out
to you for a spontaneous check-in?
A Any number of the team members. The main
points of contacts were Kate Claassen,
Michael Grimes, Anthony Armstrong.
Q And on behalf of defendants, were you the
person they were supposed to reach out to?
A I was -- I was part of phone conversations.
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I'm not sure who they were supposed to reach out to.
Q Well, who, other than you, would they reach
out to, to give an update on financing?
A You know, I think at times I wasn't the
only person on -- on a call. Who and when -- you
know, who -- others -- who else might have joined
and when, I -- I can't tell you, but I know that
there was certainly a call -- more than one call
where Elon would have been, you know, briefed on
progress.
Q What is the current status of the debt
financing?
A As I understand it, we have secured the
full amount needed, and I think there are some
closing provisions that are yet to be met, but
there's -- as I understand, the debt providers are
standing ready to fulfill their obligations.
Q And what is that understanding based on?
A Just my general understanding of progress
with the transaction.
Q You said there are covenants that need to
be met. What covenants are you referring to?
A I think I used the word "conditions," but,
I mean, they're not just going to fund the deal in
the middle of -- you know, before we get to a close
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Jared Birchall
date or something like that. So I don't know
exactly what is on their checklist, but I know that
they haven't funded yet, which would suggest there
are some things that need to happen before. But as
I understand it, they stand ready to fund.
Q And do you have an understanding as to who
at Morgan Stanley was primarily responsible with
regard to the debt financing? Who was the point
person?
A I don't.
Q Who at Morgan Stanley do you recall having
discussions with regarding the debt financing?
A As mentioned, it would have been with one
of the three people that I mentioned, and I think at
different times with some combination.
Q Just so I have it, the three people you
mentioned are who?
A Kate Claassen, Michael Grimes, and Anthony
Armstrong.
Q Okay. If you'd turn to No. 3 in the
document in front of you, which is also on page 12,
this is another topic for which you've been
designated as the Rule 30(b)(6) designee.
A Mm-hmm.
Q It reads: "All efforts to solicit
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co-investors, arrange or negotiate equity
co-investments, and/or arrange, document, syndicate,
or consummate the Equity Financing, including those
concerning the status or expected timeline for such
efforts."
Do you see that?
A I do.
Q Can you describe the efforts that are
identified in that topic?
A Yeah. So, again, we were relying on the
Morgan Stanley banking team to -- to execute this.
We -- there was a list of investors that, as I
recall, were all inbound calls and/or messages that
indicated interest, and my personal involvement was
ushering them to the banking team.
Q And when you say the Morgan Stanley banking
team, who are you referring to?
A To the three individuals that I mentioned:
Kate Claassen, Michael Grimes, Anthony Armstrong.
Q So your sole role was with respect to the
equity financing to -- if you received an inbound
call, to forward that person to Morgan Stanley?
A That's right.
Q Do you recall having any substantive
discussions with any of the potential investors?
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A When you say substantive, what are you
referring to?
Q Beyond suggesting they call Morgan Stanley?
A There were -- you know, some of those
conversations were just big picture, "What's Elon
thinking?" And then, you know, in a very general,
broad way, you know, his focus on preservation of
democracy, freedom of speech, and then would usher
them along.
Q Do you recall conveying to them anything
other than Mr. Musk's interest in freedom of speech
and democracy and the American way?
A No. And, I mean, beyond just those big
general points, no.
Q Do you recall any specific potential
investors that you spoke to in that regard?
A Yeah. I can think of a few that -- that I
had conversations with.
Q Can you identify them?
A Let's see. At -- at some point, I spoke
with the
team. I mean, there were -- were
many on the list, and so it's -- it's a long list of
people.
Q But you don't recall having any
communications with them, either oral or written,
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beyond sort of the broad, general statements that
you described?
A I mean, no. There's no specific discussion
or -- I mean, they were all -- they all run together
in my mind.
Q Are you aware of anyone else who was
involved in soliciting the co-investors, other than
Morgan Stanley, who you identified?
A No.
Q Are the efforts to solicit co-investors
ongoing?
A Fielding calls of interest has -- has
slowed down for sure, but -- are you talking about
the same list of investors that have committed?
Q I'm just talking -- you're offered to
testify about all efforts to solicit co-investors.
Are any efforts continuing?
A Yeah. So since the latest developments of,
you know -- currently, there are no on -- ongoing,
overt efforts.
Q Okay. What is the status of your equity
financing with regard to the potential co-investors
that were identified before the litigation?
A As -- as I understand it, all are remaining
committed.
JANE ROSE REPORTING
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September 21, 2022
Jared Birchall
Q Have any of them told you they are no
longer committed?
A Not that I recall.
Q If you'd turn to No. 4 on that same page -A Yes.
Q -- it's another topic for which you've been
designated, and it reads: "All efforts undertaken
by Defendants or Defendants' Advisors, on or after
May 13th, 2022 to obtain, syndicate, arrange,
finalize, and/or consummate the Debt Financing,
close the Merger, and/or cause all of the conditions
for closing the Merger to be satisfied."
Do you see that?
A I do.
Q Can you describe those efforts?
A Again, our advisory team with -- with
Morgan Stanley and our legal team have, you know,
ensured that the debt is lined up, that our equity
investors remain engaged, and that's -- that's what
I understand.
Q Are you aware of any efforts that have been
made with regard to the topic covered by this No. 4,
other than those by Morgan Stanley?
A No. I mean, beyond legal teams.
Q And when you say "beyond legal teams," what
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do you mean by that?
A Well, you know, legal advisers of, you
know, Skadden and Quinn Emanuel have been involved
in, you know, every step of the way. So that -that's what I mean.
Q Is there a distinction between the role
played by Skadden and Quinn Emanuel with regard to
the Twitter transaction or the debt financing?
A As I understand it, Skadden is what -- for
lack of a better term, kind of the -- the deal team,
and Quinn is serving as advisers and certainly
part -- part of the litigation team.
Q If you'd turn to No. 5 on the next page,
that is another topic for which you've been
identified, and it reads: "The Margin Loan
Commitment, including without limitation...the
reduction in the amount of the Margin Loan
Commitment and reasons for such reduction; and ii)
the subsequent termination of the Margin Loan
Commitment and reasons for such termination."
Do you see that?
A I do.
Q Okay. What is your understanding of the
"Margin Loan Commitment"?
A So there was -- as part of the initial
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transaction, 12.5 billion of margin loan, yeah.
Does that answer your question?
Q Did you have any role in that margin loan
commitment?
A No. Again, that was Morgan Stanley that
syndicated that.
Q And is that the same Morgan Stanley team
you previously identified?
A That's right.
Q And it also refers to the margin loan
commitment and the reasons -- I'm sorry -- the
reduction in the amount of the margin loan
commitment and the reasons for such reduction.
Are you aware there was a reduction?
A Yes.
Q Okay. What -- how much was the reduction?
A Initially, I believe it was cut in half
approximately, and that was in conjunction with us
securing equity commitments from outside investors.
Q And then it refers to the subsequent
termination of the margin loan commitment and the
reasons for termination.
Are you aware that the margin loan
commitment was terminated?
A I am.
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Q What were the reasons for that?
A Twofold: One was the cost associated with
that; and two was the risk associated with margin.
Q And who made that determination?
A I think it was just a group decision
between advisers and -- with our advisers.
Q Would Mr. Musk have been involved in that
decision?
A Yes.
Q If you could turn to No. 11, which is on
page 15 -A I'm there.
Q -- that is another topic for which you've
been designated, and it reads: "Any communications
between (a) Defendants or Defendants' advisors and
(b) any Governmental Authority, concerning...the
merger...the Merger Agreement...the Proxy Statement;
or...Twitter, including the purpose of such
Communications, the nature and substance of such
Communications, and whose request such
Communications were made."
Do you see that?
A I do.
Q Okay. Can you tell me what communications
were made by or on behalf of defendants relating to
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
the topics covered here?
A So I guess that's a -- the
word "communications" is a broad term. I -- can you
specify? Like, are you asking for modes of
communication? Are you asking the content of
communication?
Q More the content. And we can break it out.
Why don't we say -- tell me what government
authorities you're aware that have been contacted
with regard to any of these topics?
A Oh. Well, both the -- as mentioned
previously, both the SEC and the DOJ have -- is what
I'm aware of.
Q And those were the contacts that relate to
the investigation that the SEC and the DOJ are
conducting?
A Yes.
Q Are you aware of any contacts with either
of those entities unrelated to that investigation?
A I'm not.
Q How about are you aware of any contacts by
defendants or defendants' advisors with any state
authority, including the Texas attorney general?
A I'm not.
Q And what effort have you made to determine
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whether there were any such contacts?
A Such contacts with?
Q For example, the Texas attorney general.
A I -- I just don't know the answer to that
question.
Q What do you mean you don't know the answer
to that question?
A Well, I haven't asked that question, if you
will, and I'm not aware of communications.
Q When you say you haven't -- you haven't
asked any advisors or lawyers that question is what
you're saying?
A Yeah. You're asking me if I know the
answer to that question, and I don't know the answer
to that question because I haven't -- I don't know.
I have not asked that question.
Q Okay.
A Yeah.
Q If you'd turn to No. 18 -- I'm sorry -- 19,
that is another topic for which you were identified.
It says: "The directors, officers, employees, and
owners of X Holdings I, Inc., and X Holdings II,
Inc., and X Holdings III, LLC and the relationship
between them and Equity Investor."
I believe you testified previously that
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there are no directors, officers, or employees other
than potentially you and Mr. Musk; is that true?
A That's correct.
Q Okay. And who is the owner of each of
those entities?
A As I understand it -- I mean, we relied
upon the legal teams to structure these, but as I
understand it, the ultimate owner would be Mr. Musk.
Q For each of the entities?
A I -- actually, I don't know that to be the
case, thus the -- having the multiple entities. So
I -- I'm not sure who is the owner of each one.
Q Are you aware of who is the owner of any of
them?
A I guess per my previous comment, my
assumption of one of them, that would be Mr. Musk.
Q Did you make any effort to determine who
the owners of these entities were before your
deposition?
A No.
Q If -- if you'd turn to the next one listed,
which is defendants -- this is No. 20: "Defendants
and Defendants' Advisors use of the 'Botometer' tool
described in Paragraph 116 and Footnote 16 of the
Counterclaim."
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Do you see that?
I do.
Do you know what that's referring to?
Vaguely.
Actually, maybe to help you -MR. SHANNON: Can you hand me the
counterclaim? I'll mark it.
MR. GRAHAM: Which one?
MR. SHANNON: It's 53.
Thank you. I need probably a couple of
them.
Can you mark that as Exhibit 3.
--(Birchall Exhibit 3 was marked for
identification.)
--MR. SHANNON: Just two is fine.
Thank you.
Here you go.
THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 3, which is a
copy of Defendants' Verified Counterclaims, Answer,
and Affirmative Defenses filed on July 29th, 2022.
A
Q
A
Q
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
Have you seen that before?
A Not that I can recall.
Q Did you review the pleading before it was
filed with the court?
A Not that I can recall.
Q Do you recall having ever seen it before?
A I don't recall ever seeing it.
Q If you could turn -- just so it helps you
with regard to the topic, it's on page 52.
A I'm there.
Q Yes. And then you'll see in paragraph 116
there is a reference to the effect of spam and false
accounts, and then you'll see the footnote which
refers to the Botometer® tool.
A I do see that.
Q Okay. And what's your understanding of the
Botometer® tool?
A As I understand it, our counsel retained
data scientists and that -- you know, three
different groups that were working on this for us,
and so I -- I don't have an understanding of that
tool.
Q Did you make any effort to -- to inform
yourself before this deposition regarding the
Botometer® tool and how it was used by defendants?
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A I did not.
Q Do you know what conclusions the data
scientists that you referred to came to as result of
using the Botometer® tool?
A I don't.
Q Do you -- do you know if defendants relied
at all upon the conclusions or the use of the
Botometer® tool?
A I don't.
Q Who would know that?
A I'm guessing at this, but the legal team
who retained them may know.
Q Do you know who retained them?
A I believe it was through Skadden, but could
have -- yeah. I think it was through Skadden. I'm
not certain of that.
Q Who made the decision to retain them?
A The legal team.
Q Did you have any involvement in that
decision?
A No.
Q Do you know why they retained them?
A I can't speak on their behalf. I mean,
they're obviously looking for data.
Q What data are they looking for?
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A Regarding -- well, just Twitter-related
data. I -- they're, you know, data scientists and
so they were parsing data.
Q Do you know what data they were parsing?
A Well, I mean, you brought up the
Botometer®. I'm sure part of what they were looking
at was related to bot numbers and things like that.
Q Maybe it's easier to cover it with regard
to Topic 21, if you refer back to Exhibit 1.
Topic 21 you've also been identified with
regard to, and that is: "The engagement of the data
scientists, including without limitation the
identification of all data scientists and when they
were engaged, the scope and purpose of any such
engagement, how such data scientists came to be
engaged, the nature of any agreements, arrangements,
and understandings between the data scientists and
data and defendants or defendants' advisors."
Do you see that?
A I do.
Q Okay. Can you, starting with -- can you
identify for me the data scientists that were
retained?
A Yeah. As I mentioned, there were three,
and I believe they were CounterAction, Halo, and
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Cyabra or Cyabra.
Q Okay. And when were they retained?
A As I recall, it was mid-to-late May.
Q Why were they retained?
A To analyze data.
Q Were all of them engaged at the same time?
A I'm not sure. I don't know.
Q Why were the three data scientists engaged?
A I'm not certain of the answer to that, but
assume it was in an effort to have a more thorough
review of data.
Q Do they have different expertise?
A Not that I know of.
Q Are you aware of the expertise that each of
the data scientists have?
A No.
Q Prior to this deposition, did you make any
attempt to inform yourself regarding why the data
scientists were engaged, what work they are doing,
and their conclusions?
A No.
Q Have you been -- who determined to retain
the data scientists?
A The legal team.
Q Did you approve that?
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
A There may have been a discussion regarding,
you know, spending money.
Q Did you or Mr. Musk have any role in
determining what the data scientists would do?
A No.
Q Who determined what the data scientists
would do?
A The legal teams.
Q When you say "the legal teams," who are you
referring to?
A Again, I'm not sure how they were parsing
this specific initiative, but the two teams, of
course, were Skadden and Quinn, and I just don't
know which was head- -- heading up this effort.
Q Do you have an understanding as to how much
the data scientists are being paid?
A I -- I have that information. I don't have
a recollection -- a recollection of the exact
numbers.
Q Do you have the agreements that were
entered into between the data scientists and your
counsel?
A I don't recall.
Q Do you recall ever seeing those agreements?
A I -- I have a vague recollection of -- of
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potentially seeing one or more of them, but I -- I
just -- I don't have a recollection of content or
whatnot.
Q Do you recall any discussions with Mr. Musk
regarding the data scientists?
A I was on a -- well, you're saying specific
conversations with him?
Q Yes.
A No.
Q Do you recall specific conversations with
anyone regarding the data scientists?
A I -- I was on a call at one point where
information was exchanged, kind of an update of
progress that I believe Mr. Musk may have also been
on. I believe he was on.
Q Do you -- is that the only time you recall
having any communications relating to what the data
scientists were doing?
A Yes.
Q Okay. And when was that call?
A Again, it would have been around the same
time that we -- maybe mid-to-late May.
Q And other than Mr. Musk, who do you recall
being on that call?
A You know, the -- well, as far as specifics,
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I mean, certainly the -- the legal teams who
retained them, team/teams. I don't recall. It's
possible that -- it's possible that Mike Ringler was
on the call. It's possible that Alex was on the
call. I'm not certain.
Q And what do you recall of that call?
A A lot of kind of information about
methodologies and -- and kind of initial thoughts
on, you know, the data that they had gathered.
Q What do you recall as any specific comments
made during the call?
A I don't recall the specifics of that phone
conversation.
Q Did they have any views with regard to the
data they had gathered to date?
A I mean, certainly they had views. I just
don't recall what specifically they, you know,
shared.
Q What's your general recollection of the
views?
A I mean, the general recollection was that
there -- that the 5 percent number was a low number.
Q And what was that general statement based
on?
A The work that they had done.
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Q Did you ever receive any of the work they
had done?
A I don't believe I did.
Q Okay. Do you know if any of it was
provided to Mr. Musk?
A I don't.
Q Did you ever ask for any of the work they
had done?
A Not that I recall.
Q Do you know if the work they have done has
been provided to anyone but your counsel?
A I don't know.
Q Do you know if they are still doing the
work?
A I don't.
Q Do you ever get updates as to the status of
the work?
A No. I mean, that phone conversation that I
mentioned was a check-in, and I have not spoken with
them since.
Q And you believe that was sometime in
mid-to-late May?
A I believe so.
Q And have you -- even though you haven't
spoken to them, have you received any information
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
regarding their analysis?
A There was probably a follow-up conversation
with counsel, but, you know, I can't think of a
specific conversation, but, I mean, there most
likely was a follow-up conversation.
Q But you don't recall a specific one?
A I don't.
Q Do you recall having any -- ever having any
discussions with Mr. Musk regarding the data
scientists or any of the work they'd done?
A I don't.
Q Do you recall ever having a communication
with Musk, whether oral or written, regarding data
scientists or any work they've done?
A I don't.
Q Okay. If you'd turn to No. 22, it's
another topic for which you've been identified, and
it reads: "All persons that Defendants or
Defendants' Advisors communicated with about a
potential engagement as a Data Scientist that were
not engaged as a Data Scientist, including without
limitation (i) the identification of all such
Persons"; the timeline -- "(ii) the timeline during
which such potential engagement was considered; and
(iii) all reasons" for such -- that "such
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engagements did not take place."
Do you see that?
A I do.
Q Can you tell me what persons were
communicated with about the potential engagement as
a data scientist that were not engaged?
A I -- I'm not aware of any engagements or
discussions beyond those that we engaged.
Q Prior to this deposition, did you make any
effort to determine if there were any such
discussions or communications?
A I didn't.
Q Okay. If you could turn to No. 23, which
is another topic for which you've been identified,
it reads: "All work performed by the Data
Scientists, including without limitation, the
instructions received by the Data Scientists...the
scope of the Data Scientists' work, the timeline of
the Data Scientists' work...a description of the
work performed by each individual working as or for
a Data Scientist," and "the findings, conclusions,
and the results of such work."
Do you see that?
A I do.
Q Okay. Starting with first little I, what
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instructions were received by the data scientists?
A Again, the -- you know, it was the legal
team that engaged them and corresponded with them
regarding these topics, instructions, scope,
timeline, and so I -- I don't have that information.
Q Okay. You don't have any of that
information?
A I don't.
Q Okay. Did you make any effort to obtain
that information prior to your deposition today?
A I did not.
Q If you could turn to No. 26, which is on
page 19. That is another topic for which you've
been identified, and that reads: "Defendants'
knowledge of Twitter's litigation with the Indian
government and/or any content-removal orders issued"
by -- "issued to Twitter by the Indian government,
as discussed in Paragraphs 18 and 181 through 185 of
the Counterclaim, including without limitation when
Defendants became aware of such litigation and/or
content-removal orders and who made them aware of
such orders."
Do you see that?
A I do.
Q Okay. What's your knowledge regarding
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Twitter's litigation with regard -- with the Indian
government?
A I -- I really don't have much. I remember
hearing that there was a matter involving the Indian
government. I -- I don't have really any
information about what that specifically entailed.
Q Okay. Did you make any effort before your
deposition today to gain such knowledge?
A No, I did not.
Q If you could turn to the next topic, which
is No. 27 which you've also been identified as the
designated witness, it says: "All 'key decisions'
that Twitter allegedly made 'outside the ordinary
course without consulting the Musk parties,' as
alleged in Paragraphs 186 through 195 of the
Counterclaim."
Do you see that?
A I do.
Q Now, what is your knowledge regarding the
key decisions made outside the ordinary course as
referenced in that topic?
A Well, primarily regarding executives.
Q Okay. And when you say "primarily
regarding executives," what are you referring to?
A The dismissal of -- of executives without
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Jared Birchall
consulting Mr. Musk.
Q Which executives?
A I don't recall their names, but -- yeah, I
don't -- I don't recall their names.
Q When did you learn about the dismissal of
the executives?
A I don't recall when that was.
Q How did you learn about the dismissal of
the executives?
A I'm pretty sure it came from our legal
team.
Q Do you know how they learned?
A I don't.
Q Did you make any effort to determine the
facts relating to the dismissal of the executives
you just referenced before your deposition today?
A No.
Q How did you determine that the terminations
that you referenced were outside the ordinary
course?
A Well, certainly with -- under the
advisement of the legal teams and per the agreement
that had been made with -- between the two parties.
Q Is it your view that any termination of an
executive is outside the ordinary course?
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A I believe so.
Q And what is that based on?
A Again, the agreement that -- that was made.
Q And if it helps, if you could turn to
Exhibit 3 which you have in front of you -A Mm-hmm.
Q -- and that might remind you of the names
of the two individuals that you referenced, and as
noted in the topic, if you start on 186 -A Okay.
Q -- and I believe it's 187 that will provide
the name of the person.
A This is No. 3? I don't think I have that
many pages.
Q I'm sorry. Oh, did I -A You said 186.
Q I'm sorry. Paragraph 186, page -- it
starts on page 79.
A Oh, okay.
I'm there.
Q And if you'd turn to paragraph 187 -A Yeah.
Q -- do you see the name "Bruce Falck"?
A I do see that.
Q Okay. Is that one of the persons that you
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believe was terminated that you were referencing?
A Yes, I believe so.
Q Okay. And when did you learn that
Mr. Falck had been terminated?
A I don't recall when -- when that was.
Q How did you learn?
A I believe that was through the legal team.
Q And why do you believe his termination was
outside the ordinary course?
A Per -- per the agreement between the two
parties.
Q Any other reason?
A No.
Q Okay. When you learned about the
termination of Mr. Falck, are you aware of
defendants raising any objections or concern?
A I'm -- I'm not aware. I think we were
informed that it was a done deal.
Q Did you raise any objections that he should
not have been terminated?
A I don't recall.
Q Do you recall any concerns or objections
that were raised when you learned that Mr. Falck had
been terminated?
MR. SPIRO: Objection to form.
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You can answer.
THE WITNESS: I -- I don't recall. The -the opportunity to object was -- I don't -- I don't
believe -- I think the action had taken place.
BY MR. SHANNON:
Q If you'd turn to the next paragraph, it
refers to Mr. Beykpour.
Do you see that?
A I do.
Q Is that one of the -- is that the other
individual you had identified as being terminated?
A That is another -Q Okay.
A -- individual.
Q Okay. And when was Mr. Beykpour
terminated?
A Again, I'm not sure the exact timing.
Q When and how did defendants learn of the
termination?
A Through -- through the same way. Through
the legal team.
Q Okay. And how did you determine that the
termination was outside the ordinary course?
A Again, through the agreement that we had
between the two parties.
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Q Anything else?
A No.
Q And do you recall defendants or any of
their advisers raising any concerns or objections
when they learned that Mr. Beykpour was terminated?
MR. SPIRO: Objection to form.
You can answer.
THE WITNESS: I don't specifically recall.
BY MR. SHANNON:
Q If you'd turn to paragraph 189 -A Mm-hmm.
Q -- you'll see it says, "Twitter also
instituted a hiring freeze."
A I do see that.
Q And when did defendants learn of that?
A Again, I don't recall the exact timing.
Q How did defendants learn of that?
A Through the legal term.
Q And how did you determine -- how did you
determine that the hiring freeze was outside the
ordinary course?
A Through the agreement between the two
parties.
Q Anything else?
A Not that I'm aware of.
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Q When defendants learned of the hiring
freeze, did they raise any concerns or objections?
MR. SPIRO: Objection to form.
THE WITNESS: Not that I'm aware of.
BY MR. SHANNON:
Q Okay. Mr. Birchall, we've been going for
about an hour and a half, and I appreciate that.
Why don't we take a short break, ten minutes, and
then come back.
MR. SPIRO: Great.
THE WITNESS: There was one more individual
that wasn't mentioned that wasn't fired during the
time.
BY MR. SHANNON:
Q Who are you referring to?
A The -- a payment that was paid to a
prior -- prior employee, Mudge, that, you know, also
would fall under this, as I understand it.
Q And when you say Mudge, you mean Mr. Zatko?
A Yeah.
Q Okay. I'll say, Mr. Birchall, you're the
only witness who, given the opportunity to take a
break, kept going. So we can cover that when we
come back.
A Sure.
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Q And I'm just going through these. These
will relate to documents we'll go through as well,
but I just wanted to cover -- to make sure I
understand what you were testifying to.
THE VIDEOGRAPHER: Your microphones.
We are going off the record. The time is
11:02 a.m.
(Recess.)
THE VIDEOGRAPHER: We are back on the
record. The time is 11:17 a.m.
BY MR. SHANNON:
Q Mr. Birchall, can you turn to No. 32, the
Topic No. 32, in -A In the first one?
Q In the first one, correct. It's on page
20.
A Yeah. I'm there.
Q And it is another topic for which you've
been identified and it reads: "Defendants'
understanding of Twitter's mDAU recast in
April 2022, and Paragraphs 9 and 79 through 81 of
the Counterclaim."
What is your understanding of Twitter's
mDAU recast in April 2022?
A That they came back and said they needed to
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correct their numbers.
Q What's your understanding of what
corrections were made?
A Just that they had been calculating it
incorrectly, I believe, and I don't know what their
specific errors -- what they purported their
specific errors to be, but just that they'd made
mistakes and needed to correct those mistakes.
Q And how did they correct those mistakes?
A By changing the number.
Q And how much did the number change?
A As I recall, it was a few million -- by a
few million mDAUs I guess or whatever.
Q And before this deposition, did you make
any effort to go back and look at the mDAU recast to
better understand what had occurred?
A So just to that question specifically, I -I went over these questions yesterday with the Quinn
Emanuel team. I was taking your questions as to
mean, like, did I go back and research this or
something. So these questions were reviewed
yesterday with the Quinn team.
But beyond that, there was not an effort to
revisit this issue or to look into it beyond that.
Q Okay. Well, when did you first recall
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hearing about the mDAU recast in April 2022?
A The day that it happened.
Q Okay. How did you hear about it?
A I -- I recall that it was via the news.
Q Do you recall discussing it with anyone?
A Yes. It was a topic that was discussed
among the legal teams' advisory team, and I'm sure
at some point with Mr. Musk.
Q Do you recall discussing it shortly after
it was announced?
A Yes.
Q Okay. What do you recall of those
discussions?
A Again, I'm -MR. SPIRO: I'm just going to remind you,
you can't reveal privileged information.
THE WITNESS: Yeah.
MR. SPIRO: So with that caveat, you can
answer the question.
THE WITNESS: Yeah, I don't recall the
specifics of those conversations.
BY MR. SHANNON:
Q Do you recall having any -- any discussion
with Mr. Musk regarding the issue?
A I don't recall a specific conversation, but
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I -- I do recall that we touched on the subject.
Q When you say you touched on the subject,
what do you mean?
A Again, I -- I don't recall specifics of any
of those conversations, but I do recall at some
point having -- it having been part of a discussion.
Q Okay. But you don't recall who was part of
the discussion?
A I don't.
Q And you don't recall when that discussion
occurred?
A Not specifically, no.
Q Do you recall any requests made by
defendants or their advisers for additional
information from Twitter regarding it?
A I don't recall.
Q Okay. Do you recall any concerns expressed
by defendants or their advisers regarding the mDAU
recast?
A That was the nature of, you know, the
conversation, the general gist of the conversations
that were being had, you know, that a restatement
had been made and certainly it raised eyebrows.
Q Okay. And after it raised eyebrows, did
you or anyone on behalf of defendants or their
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advisers go back to Twitter and express concern or
ask for additional information?
A Additional information was requested
regarding the -- the data and -- and the
calculations. I don't recall specifically
referencing this restatement or not.
Q Okay. Was there specific information
requested relating to the recast?
A That's what I don't recall.
Q Okay. When was that information requested?
A The request that I am referring to
previously?
Q Yes.
A I don't recall the exact dates, but at -at minimum, you know, right after the meetings with
Twitter.
Q What meetings are you referring to?
A I believe in early May at the Twitter
headquarters. I think it was May 6th.
Q Okay. Were you involved in determining
what information to request?
A At post meeting?
Q Yes.
A I -- I probably was part of a conversation
that went over that topic.
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Q Do you recall any such conversation?
A I don't recall the specifics.
Q Okay. Who was primarily responsible for
determining what additional information to request
from Twitter?
A It would have been a combination of the
banking advisory team and the legal team.
Q Okay. Did you have any role in determining
what to request?
A Again, I -- I would have been involved in
certain conversations, but as far as a role, per se,
I -- I -- no, I don't -Q Do you recall Mr. Musk having any role in
determining what to request?
A Again, he would have been part of
discussions, but I don't specifically recall him -you know, his contribution to that or -Q Do you recall reviewing any information
provided by Twitter in response to the request?
A Are we referring now post meeting?
Q Yes.
A Is that what you're referring to?
So they were sending information to data
rooms that are -- that the banking team was
accessing exclusively. I never accessed a data
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room.
Q Did you ever ask the banking team to send
you any information?
A That was -MR. SPIRO: Objection to form.
You can answer.
BY MR. SHANNON:
Q Relating to information provided by
Twitter.
A Not that I recall.
Q You suggested that these information
requests related to post meeting, and you're
referring to the May 6th meeting, correct?
A That's right.
Q Are you aware of any information requests
that were made before the May 6th meeting?
A I -- I don't recall prior to that.
Q If you refer to, in Exhibit 1 in front of
you, Topic No. 36 is another topic for which you've
been identified, and that reads: "Defendants'
understanding of the 'stratification' or potential
stratification of Twitter's mDAU as that term is
used in Paragraph 141 of the Counterclaim, whether
performed before or after the execution of the
Merger Agreement."
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Do you see that?
A I do.
Q What is your understanding of the
stratification or potential stratification of
Twitter's mDAU as referred to there?
A I believe that's referring to a smaller
sliver of mDAU that contributes to a greater portion
of the revenue of the company.
Q What's that understanding based on?
A Again, just what -- what we were told by
the Twitter team.
Q So the references to stratification or
potential stratification is what you were told by
the Twitter team?
A Yeah. I specifically recall that being one
of the topics in the May 6th meeting.
Q Do you recall any other discussions or
knowledge you have regarding defendants'
understanding of the stratification or potential
stratification of Twitter's mDAU?
A I don't recall.
Q If you turn to the next one, which is
defendants -- No. 37: "Defendants' allegation that
'nearly a third of Twitter's mDAU in fact see no ads
and appear to generate no revenue at all,' as set
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forth in Paragraph 138 of Counterclaim."
Do you see that?
A I do see that.
Q What's your understanding of that
allegation?
A Again, I believe that's referencing the
same stratification issue, where a smaller
percentage actually contribute to, you know, a very
high percentage of the revenue.
Q And it's your understanding that this
information was provided to defendants at the
May 6th meeting?
A I -- as far as information provided, I
mean, there -- there was no -- as I recall, there
were no documents exchanged, and so there wasn't
any, like, substantive information exchanged, per
se. There were -- we left that meeting with -- with
the understanding that there was information that
was requested and that was forthcoming.
Q And, well, how did defendants determine the
basis for their allegation that nearly a third of
Twitter's mDAU is in fact -- in fact sees no ads and
appears to generate no revenue at all?
A I'm not sure specifically where that data
is coming from.
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Q Do you know what the source at all of that
statement is?
A I -- I don't.
Q Okay. If you could turn to No. 38 on the
next page -A I'm there.
Q -- this is another topic for which you've
been identified: "Defendants' knowledge and
understanding of their allegation that 'mDAU growth
is not occurring among high-value users,' as set
forth in Paragraph 142 of the Counterclaim."
Do you see that?
A I do.
Q Can you explain what that's referring to?
A Again, I -- I see what it says, and I'm not
sure specifically beyond what it says. I mean,
that's obviously what it says, but I -- I don't have
information beyond what it says.
Q Okay. And do you have an understanding as
to what was the basis for defendants' allegation
that mDAU growth is not occurring among high
level -- high value users?
A Not specifically, no.
Q Did you make any effort to determine what
the source of that statement was?
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A I -- I didn't.
Q If you could turn to No. 41, another topic
for which you've been identified, which is:
"Defendants' policies, practices, software,
hardware" -- software and "hardware, and systems
relating to storage management, retention, and
destruction of Documents and Communications."
Do you see that?
A I do.
Q What are defendants' policies with regard
to the retention and destruction of documents and
communications?
A Well, X Holdings doesn't have a stated
policy of any sort. As requested, we -- you know, I
can speak for myself, you know, turned over devices
and whatnot as -- as requested to, you know, legal
teams and IT professionals, but there isn't a stated
policy.
Q Okay. And with regard to Mr. Musk, can you
state what his practices and policies are?
A I -- I believe he -- well, again,
there's -- there's no policy that I'm aware of -well, there's no policy regarding X Holdings for
sure. I can't speak to any of the other companies
or anything like that. But I -- as I understand it,
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he, like me, you know, turned over devices and
whatnot to IT and legal.
Q Do you know what his practices are with
regard to preserving texts and emails?
A I don't.
Q Prior to acting as a 30(b)(6) witness for X
Holdings I and X Holdings II today, have you ever
acted on behalf of either of those entities?
A Not -- not that I know of. I don't know if
technically -- what the technical answer may be, but
I don't -- I don't believe so.
Q Okay. If -- if you'd turn to No. 42 -A Mm-hmm.
Q -- that says "Defendants' efforts to ensure
that Documents relating to the discovery requests in
this Action and/or the Complaint were properly
preserved, including any related litigation hold or
document preservation letters or notices."
Do you see that?
A I do.
Q Can you describe those efforts?
A Again, devices were turned over to IT
professionals and lawyers and information extracted,
and, you know, information preserved.
Q And that refers to what you did. Do you
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know precisely what Mr. Musk did?
A Not precisely, no.
Q You had referenced previously a litigation
hold that you believed you received in mid-to-late
May.
Do you recall that?
A I do.
Q Do you recall receiving any other
litigation hold or document preservation notice?
A I don't specifically recall additional
holds, hold requests, or whatever.
Q Okay. If you'd turn to No. 43, which is
another topic for which you've been identified, it
says: "Defendants' efforts to retrieve text
messages, instant messages, and other non-email
communications."
What's your understanding as to that?
A Yeah, again, that was I think part of the
overall effort of providing devices and -- and
communication method -- methods with -- providing
those to the IT and legal teams.
Q Do you know what efforts were made to
retrieve or obtain any messages that had been
deleted?
A No. Anything in existence would have been
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provided.
Q And turning to No. 46, which you'll
probably be glad to know is the last number for
which you've been designated, it reads: "All
information contained in Defendants' Interrogatory
Responses, including all sources of such information
and Defendants' process for ascertaining and
providing such information."
Do you see that?
A I do.
Q Have you reviewed each of defendants'
interrogatory responses in connection with this
case?
A I did review them yesterday.
Q Okay. Had you seen them before yesterday?
A Actually, I -- I believe I did back when
they were initially submitted.
Q Did you have any role in reviewing or
approving them?
A Again, I think I -- I recall reviewing the
list to ensure, you know, complete -- you know,
completion.
Q When do you recall reviewing the list?
A I don't recall when.
Q Do you recall reviewing the list many times
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as it was changed?
A I don't recall reviewing it many times.
Q Okay. Do you have any recollection of
reviewing the list more than once?
A Not specifically, no.
Q And to be clear, when you're saying the
list, what list are you referring to?
A Parties involved is what -- is the list
that I'm referring to.
Q Parties involved in what?
A I think there are various lists of people
that were -- where there are communications for the
different aspects of the transaction.
Q And when you were reviewing them, for what
purpose were you reviewing them?
A For accuracy and making sure it was
complete.
Q And how would you determine they were
accurate and complete?
A I was adding my information to a list
and -- and so I was making sure that my addition
was -- was complete.
Q How about the remainder of the list? How
did you determine whether that was accurate or
complete?
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A I -- I personally don't recall making that
specific determination. I think it was the sum
total of the entire group that contributed to ensure
that was correct.
Q When you say "the entire group," who are
you referring to?
A The legal team, the advisory team, anyone
involved that would have had that information.
Q So you would have reviewed the information
that you provided, correct?
A I believe so, yeah.
Q Okay. And you weren't able to assess the
accuracy or completeness of information others
provided, correct?
A No, not necessarily.
Q Okay.
A Because I think there were communications
that I wasn't a hundred percent involved in.
Q Did you make any efforts to ensure that the
information that others provided was accurate and
complete?
A No, not -- no.
Q I want to turn now to what you referred to
previously as the -- the purchases of Twitter stock.
A Sure.
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Q Okay. How did it come about that Mr. Musk
began purchasing Twitter stock?
A As I recall, in late January in one of our
meetings, he mentioned that he was -- so he
had just, for the first time in his life, sold
Twitter stock and had a cash position, and he
indicated that he was interested in buying some
stock, which led to a conversation on I believe -I'm sorry if my date is a day or two off, but I
think it was Sunday, January 29th-ish, wherein he
confirmed, yeah, let's -- let's go ahead and buy
some stock.
Q When you say "buy some stock," buy some
stock in what?
A Twitter.
Q How did you determine to buy stock in
Twitter?
A I don't -- I don't know.
Q Was it only Twitter -A Yeah.
Q -- he was buying stock in?
A Yeah.
Q He previously directed you to buy stock in
any other company?
A Yeah, he -- he owns no other publicly
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traded security beyond Tesla.
Q So this was the first time he ever provided
instructions for you to arrange to purchase stock in
another public company, correct?
A Outside of Tesla, yes.
Q And did he explain why he was purchasing
stock in Twitter?
A No. Just that it was an interesting
company to him.
Q Are you aware of any analysis he did before
determining to purchase stock in Twitter?
A I'm not aware.
Q Okay. Did you do any analysis before
carrying his orders out to purchase stock in
Twitter?
A I didn't.
Q Prior to starting to purchase Twitter
stock, had you reviewed any of Twitter's SEC
filings?
A I don't believe so.
Q Are you aware if Mr. Musk had reviewed any
of Twitter's SEC filings?
A I'm not aware.
Q Did he explain what it was about Twitter
that led him to invest in -- in that stock?
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
A Twitter is a service that he uses daily.
It's something that he enjoys, a release, and while
I don't recall the specifics of a conversation with
him outlining, "Here's my investment thesis," those
were, you know, the main driving forces that I know
of.
Q Okay. And did he give you specific
instructions with regard to purchasing Twitter
stock?
A Yes, that we were going to start buying
daily in a way that didn't move the stock through a
volume weighted average price purchase program, and
target -- initially target a 2 percent position in
the stock.
Q Why was he interested in it in a manner
that didn't move the price?
A He's just one who cares about the value of
money and doesn't want to -- there was -- there was
no urgency for him to, you know, buy shares, and so
there was no need to buy a quantity that would move
the stock in any way.
Q When you say "move the stock," make it more
expensive to acquire the stock?
A Yes.
Q Okay. So he wanted to proceed in a manner
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that he could acquire the stock for the least amount
possible, correct?
A Certainly.
Q And did he give you any specific
instructions as to how much you could spend?
A Again, the initial target was 2 percent,
and the -- with the knowledge that we would be
sitting down
to review progress.
Q Okay. And did you review progress with him
?
A I'm not certain it was
, but -but most likely it was discussed on most of those
.
Q And before the
meeting at the end of
January where he raised this, do you recall him ever
previously suggesting he was interested in
purchasing Twitter stock?
A No.
Q Do you recall him ever talking about
Twitter as a company beforehand?
A As a company, no, not beyond his personal
use of it.
Q Now, in connection with purchasing the
Twitter stock, did you consult with counsel?
A No.
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Q Is there counsel available to you, as the
head of Mr. Musk's family office, to consult with if
you have questions?
A I mean, certainly, there are lawyers that
exist that if there are legal questions that I have
that I can reference.
Q Okay.
A As it pertains to securities, again, you
know, Tesla has a security team that handled 100
percent of all of our regulatory transaction-related
matters up until that point.
Q Well, how about this one which is
different? Did you consider retaining counsel or
contacting counsel regarding it?
A No.
Q Okay. In your prior activities, had you
ever taken such a large position in a public company
on behalf of a client?
A No.
Q Did you have an understanding of the rules
that would apply with regard to acquiring a large
position in a public company?
A A very cursory understanding that there
were certain thresholds.
Q Okay. Given you had a cursory
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understanding that there were certain thresholds,
what did you do to investigate and confirm that
Mr. Musk's purchases were consistent with those
requirements?
A So of course discussed it with the adviser
at Morgan Stanley, who was assisting us in buying.
Q Anything else?
A I believe there were some -- you know, some
searching for threshold answers on when filings
would be made and at what thresholds.
Q When you say you believe there were
searching, what do you mean by that?
A That, you know, there was I think even a
text or two that was exchanged between our
Morgan Stanley representative regarding filing
requirements. That's what I mean -- or sorry.
Links regarding filing -- links regarding filing
requirements.
Q What do you mean links regarding filing
requirements?
A So readily available information online -Q Okay.
A -- that -- that would -- that would have
guided the answer to the filing question.
Q And is that information you looked up or
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
Morgan Stanley looked up?
A We both looked up different information,
but, ultimately, came to a united conclusion about
what needed to happen.
Q And united conclusion, who was that
conclusion with?
A Jon Neuhaus.
Q And what is his position?
A He's a financial adviser at Morgan Stanley.
Q Is he a lawyer?
A No.
Q Are you aware if he ever has taken a
position for a company of the size that you were
proposing?
A No.
Q Are you aware if he has any expertise in
SEC laws?
A I guess depends on how you define
expertise, but, I mean, he -- everything that he
does every day is regulated by the SEC.
Q Was there any discussion with Mr. Musk
about publicly disclosing that he was acquiring
Twitter stock?
A Well, yes. We knew that if we crossed
certain thresholds, we would be forced to eventually
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make that public.
Q And my question may not have been clear.
At the beginning, when Mr. Musk decides he
likes Twitter and wants to invest, was there any
discussion about him announcing it then, for
example, tweeting that he was investing in Twitter?
A There wasn't a discussion about that
specifically, but that was always something that
could happen at any time.
Q Do you understand why it didn't happen?
A No.
Q Was there anyone other than Mr. Neuhaus
that was involved in the purchases of the Twitter
stock on behalf of Mr. Musk?
A Well, there would have been a trader on the
institutional desk that was executing the trades,
and then I believe an assistant of -- of Jon Neuhaus
who was providing spreadsheets and/or updates in his
absence when he was not available.
Q And did you have a prior relationship with
Mr. Neuhaus that led you to reach out to him for
this purpose?
A Yes.
Q What was the prior relationship?
A Well, he has worked for Mr. Musk for a
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handful of years prior to this, and so -- yeah, so
he's worked for Mr. Musk for, you know, I don't know
how many years prior to this. So this was a very
normal kind of course of normal business outreach to
Morgan Stanley and to Jon to help with something
like this, but I don't know if you're -- if what
you're asking, if my personal relationship with him
predated this. Certainly, it did.
Q And when you say it was sort of a normal
thing to reach out to him, my understanding from
your testimony is that Mr. Musk had not typically
bought public securities.
A That's right.
Q In what capacity would you reach out to
Mr. Neuhaus before the Twitter purchases?
A For many, many different things ranging
from debt facilities to Twitter -- or I'm sorry -Tesla transactions to real estate loans to just
general research questions. There's many different
things. We communicate almost -- almost daily.
Q Okay.
MR. SHANNON: Would you mark that as
Exhibit 4.
--(Birchall Exhibit 4 was marked for
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identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 4, which is a
series of emails between you and Mr. Neuhaus, dated
January 31, 2022.
Do you recognize, and we'll start on the
first page, the one from Mr. Neuhaus to you?
A When you say the first page are you talking
about the front page, the first page?
Q Yes, the front page.
A I do.
Q And would you typically communicate with
Mr. Neuhaus through email?
A Probably more commonly via phone and
sometimes via text, but email was common.
Q Okay. And if you look at the bottom of -or toward the bottom of his first email, he has
bullet points on how he will proceed.
Were those all agreed upon by you?
A Let's see here.
THE COURT REPORTER: I can't hear you.
THE WITNESS: Yeah. I'm just reading what
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
is on this list.
Yes. I -- at their -- you know, we were
taking advice from them -BY MR. SHANNON:
Q Okay.
A -- based on levels -- volume levels of the
stock and -- and so it would have been a joint
conclusion based on their advice.
Q And the advice that they were giving
regarding, you know, amounts to purchase were what
they thought you could purchase without moving the
market and potentially becoming known that you were
purchasing the stock?
A Not necessarily known as much as just
moving the price.
Q Okay. And if you look toward the bottom,
there's a line from Mr. Neuhaus that says: "As we
work towards goal."
Do you see that?
A I do.
Q What's your understanding as to the -- the
goal that he is referencing?
A I think he's referencing -- referencing
just the general goal of acquiring shares of -- of
the stock.
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Q You had previously suggested that the
initial goal was 2 percent. Did that change over
time?
A It did.
Q Okay. And what led to that change?
A We -- we got to that threshold and
continued buying.
Q And to the extent you were increasing the
threshold, was that something you reviewed and -and Mr. Musk approved in each instance?
A That's right.
Q Okay.
MR. SHANNON: Can I have No. 3?
And that is Exhibit 5?
THE COURT REPORTER: Yes.
--(Birchall Exhibit 5 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 5, which I'll
represent I understand to be a series of your texts
that have been produced in this case. I apologize
that the writing is so small, but that's sort of how
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it works.
If you look toward the bottom of the first
page -A Yes.
Q -- the third -- the third to last entry is
from you on February 18th, 2022 to Mr. Neuhaus, and
you have a question which says: "Are you able to
have your analyst do provide a profile of TWTR's
owners? Both institutional and individual?"
Do you see that?
A Yes, I do see that.
Q Okay. Is that a text you believe you sent
to Mr. Neuhaus on or about that date?
A Yes, I believe so.
Q And why on or about that date were you
requesting that information?
A That's -- so in the private world, the
management world, you know, John was a business
partner of mine, and understanding who -- the
ownership structure of any company was always a
primary focus, and I just had no -- no idea. As we
started to actually accumulate a significant number
of -- or percentage ownership, I had no idea who
else owned the stock.
Q Did Mr. Neuhaus provide you with that
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information?
A Yes.
Q Okay. And what did -A Best that he could find, yes.
Q Okay. And what did you do with that
information when you received it?
A I reviewed it and I just looked at it.
Q Do you recall having any discussions with
Mr. Neuhaus regarding the stockholder composition
for Twitter?
A I mean, we likely -- given that he sent me
that, we likely had some conversation about it. I
don't recall the content of the conversation.
MR. SHANNON: Exhibit 6.
--(Birchall Exhibit 6 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 6, which is a
series of emails between you and Mr. Neuhaus and
others. I'm interested primarily in the top
email --
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
A Okay.
Q -- which is from you to Mr. Birchall [sic],
dated March 8th, 2022.
Do you see that?
A I do.
Q And then there's the one under it, and the
one under it you'll see that Mr. Neuhaus was saying
to you that: "... we are likely to cross over the
5% soon."
Do you see that?
A Yes.
Q Do you have an understanding as to why he
was telling you that? Was there any significance to
5 percent?
A Oh, yeah. As I mentioned, we had discussed
that we both knew there was a filing requirement as
it related to the 5 percent threshold.
Q Okay. And you knew it as of that date?
A Yes.
Q Okay. And he then has: "Pls confirm that
you are comfortable with year-end filing of the
13D/G."
Do you know what that's a reference to?
A Again, we had come to the conclusion that
upon crossing 5 percent, you had a requirement to
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file at the end of the year in which you crossed
that 5 percent, and then there was some day buffer.
Again, I am, of course, well aware that this was an
erroneous conclusion at this point, but -- and so he
was simply reconfirming that I guess.
Q Okay. And when you say: "Yep, fine with
the year-end filing," had you asked counsel or done
anything to confirm as to the appropriateness of the
year-end filing?
A No. I mean, the confirmation was with our
advisory firm, assuming that, you know, their advice
and compliance and everything else would -- would
guide us in a direction that would lead to the right
answer.
Q And then he also has a question: "Should
we surpass 10%, we will deal with that at that
time."
Do you see that?
A I do.
Q Was there a view at that time that you may
exceed 10 percent?
A No. It was just stating the obvious, that
there were two thresholds that we needed to be aware
of; one being 5, one being 10.
And as you can see, in that same message he
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talks about a compliance wall. And so my -- my
general assumption was that compliance was blessing,
you know, the activity that we were taking.
Q And what was your understanding of the
reference to compliance wall?
A Just -- I mean, that there is a compliance
officer, you know, in every office or in every area
of the firm, and I think he was making a reference
to confidentiality, I think, as it pertains to
adding additional people to the list of people aware
of the transaction.
MR. SHANNON: We're at Exhibit 7?
THE COURT REPORTER: Yes.
--(Birchall Exhibit 7 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 7, which is a
series of emails with you and Mr. Neuhaus, and
others, dated March 16, 2022.
Do you have any reason to doubt that you
sent and received those emails?
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A No.
Q If you look at the second page, on the
bottom, there's an email from Mr. Neuhaus that says:
BTW do you have a target in mind yet? 10" to -"10%, 20%?"
A Mm-hmm.
Q As of this time, which is March 16, 2022,
was there a target in mind?
A No, there was not a defined target.
Q And you said: "We should not" -- above it,
you said: "We should not cross the 10% mark."
Why were you saying that?
A Again, that was a level at which I knew
with certainty we would have a public reporting
requirement and that we shouldn't cross that without
making sure we were prepared to publicly disclose
the document -- or the -- the data.
Q If you look on the first page of that
document, under No. 2, there's a series of bullet
points, and toward the bottom, there's a line that
says: "We had 'secretly,'" in quotation, end
quotation, "approved lending up to 600MM."
Do you know what that's a reference to?
A I really don't. I can speculate, but I'm
not sure what secretly means.
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
Q Was Mr. Musk borrowing to purchase the
Twitter shares, or was he using cash or some
combination thereof?
A Initially, he used all cash and then at -I don't recall at what point did -- begin to use
leverage, though there was a forthcoming tax refund
that was sizable that we -- you know, any leverage
being used that this tax refund was going to cover
it.
--(Birchall Exhibit 8 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 8, which is
another series of texts that have been produced in
this case, and I'm midway through the second page,
and this is on March 25th -A Okay.
Q -- you'll see there's one at 19:31:37?
A I see that one, yes.
Q Okay. And Mr. Neuhaus says: "So when is
he announcing? Goodness. Can't be more obvious."
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Do you know what that's a reference to?
A Yes. I believe he's referencing Elon's
Twitter poll that he had launched that day about
does -- do people believe Twitter promotes democracy
or something like that and a yes or no, yeah.
Q And you respond in the next message: "He
can't announce before building most of the
position."
Do you see that?
A Yes.
Q And what did you mean by that?
A That whatever amount he had in his mind
that he wanted to purchase, he -- it would be
foolish of him to announce it -- announce to the
public that he had purchased shares prior to
purchasing what he wanted to purchase.
Q Why would it be foolish?
A Because it would likely affect the market.
Q Affect the market in what way?
A Most -- most likely the stock would go up.
Q And why would it be -- why would that be
foolish then?
A Because if he had desires to own any
additional shares of the stock, he would be kind of
self-sabotaging and increasing the value of the
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asset that he wanted to purchase.
MR. SHANNON: Exhibit 9.
--(Birchall Exhibit 9 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 9, which is an email
from Mr. Neuhaus to you, dated 4/1/2022.
Do you have any reason to doubt you
received that email?
A No.
Q In the second paragraph, it says: "At the
moment the initial thoughts are that the market
would allow for the following if the interest is
speed."
Do you see that?
A I do see that.
Q Do you know what he's referring to when he
said, "if the interest is speed"?
A Only that I think he's qualifying if -- if
speed is an objective. I don't know.
Q Was speed an objective?
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A No.
Q He also talks about -A And just to clarify -- further clarify
that, I mean, we had spent over, I think, 30 or 40
trading days, you know, buying stock, and so speed
clearly wasn't -Q But you had spent 30 or 40 trading days
because you wanted to buy it in a manner that didn't
move the market, correct?
A Yeah. There was no rush. There was no
objective other than he wanted to buy some shares of
stock, and so doing so at the best price possible is
what any prudent investor would do.
Q You just testified that when he was
purchasing stock, there was no rush, no objective.
There was no objective when he was purchasing stock?
A Other than to buy shares of Twitter, no.
Q When did he first, to the best of your
knowledge, have an objective with regard to the
purchase of the Twitter stock?
A The first I came to -- well, the first I
became aware of, as anything other than just owning
shares of Twitter stock, was when I received a text
from Martha Lane Fox, I believe her name is,
referencing a board seat, and that led to everything
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
after that.
Q Okay. If you look further down, there's a
paragraph that starts: "If you wanted to do more
than one option/derivative trade."
Do you see that?
A I see that.
Q Were there options and derivatives
purchased or considered by Mr. Musk with regard to
Twitter stock?
A There were none purchased. There was a
moment in time where I was looking at the cash being
spent on buying shares outright, and -- and I was
considering whether there was a more intelligent way
to gain exposure to the stock.
Q What do you mean "a more intelligent way"?
A Well, a less cash-intensive way. Sorry.
Q Okay. But you ended up not pursuing that?
A That's right.
Q Would any use of derivatives to purchase
the stock have been -- have to have been approved by
Mr. Musk?
A Yes.
--(Birchall Exhibit 10, was marked for
identification.)
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--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 10, which is a
series of emails with you and Mr. Neuhaus and
others -A Yes.
Q -- dated April 1, 2022.
You have no reason to doubt that you sent
or received those?
A That's right.
Q Okay. And then if you look at the top of
the second page -A I'm looking at that.
Q -- he notes -MR. SHANNON: Bless you.
THE WITNESS: Bless you.
BY MR. SHANNON:
Q -- "Today was the first time I'd heard that
one may interpret 'within 10 days of acquiring
5%...' a date which is in the near rear-view."
Do you see that?
A I do.
Q What was your understanding of what he was
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saying?
A I came back and asked the question because
I wasn't certain, but what I understood was this -this was the first time that he saw the 5 percent
requirement as different than what he and I had
determined it was.
Q And he asked you, at the beginning of that
sentence, you know: "You may want to reconfirm
(again)" -- again "with outside counsel (not that
you haven't already a few times.)"
At that point in time, had you ever raised
the issue with outside counsel?
A I had not.
Q And was there a reason?
A There wasn't a reason I guess to -- and,
again, this is -- I guess the timeframe on when he
sent this, this is after we now both had become
aware that there was a likely issue with the filing,
and to put it bluntly, this is a CYA email.
Q CYA from him?
A Yeah.
Q And what did you do when you received the
email?
A I mean, we were -- I had already called
counsel to try and correct the filing and whatnot.
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I -- there wasn't anything to be done other than I
did ask him back, like, what -- "Where did you hear
this?"
Q When you say you already called counsel,
what counsel did you call?
A Well, I -- so I received a call that
afternoon, after the market had closed, from
Mr. Neuhaus suggesting that our understanding was
wrong per Morgan Stanley's GC, which again was a
call that I would have thought maybe could have come
earlier.
But, nonetheless, so upon receiving that
call, I hung up and immediately dialed Alex and
said, "Hey, we may have an issue. Do you know
anyone -- any securities lawyers that can help
answer this question regarding 5 percent?" And he
referred me to McDermott.
Q When you say a moment ago that when an
issue arose you immediately called Alex, I assume
that's referring to Mr. Spiro?
A That's right. Yeah.
Q And would he be the person you would
normally contact if you have legal questions on
behalf of Mr. Musk?
A Some legal questions. He had been involved
JANE ROSE REPORTING
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Jared Birchall
in some prior legal matters, but we have another
half dozen legal teams that do different things for
us.
Q And you can reach out to any of them if you
think you need legal assistance?
A Absolutely.
Q Okay.
--(Birchall Exhibit 11 was marked for
identification.)
--THE WITNESS: Thank you.
THE VIDEOGRAPHER: Jared, can you adjust
your microphone?
THE WITNESS: Yeah.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 11, which is an
email from Mr. Neuhaus to you, dated April 3rd,
2022.
Do you recall receiving this email?
A Yes.
Q And he is suggesting setting up a call with
Mr. Eichorn at Morgan Stanley. Do you have an
understanding why he was proposing that?
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A I understood that he was proposing
potentially talking to the banking team?
Q And why was he proposing that at that point
in time?
A That was a perplexing thing to me. He had
prior in a phone -- or I think it was a phone
conversation, maybe a text even, asked if an intro
to the banking team was -- was of interest and I
said, no. There's no reason to engage that -- that
area of the firm.
Q And he also refers to someone by the name
of Rick. Do you know who that's a reference to?
A Another part of the banking team at
Morgan Stanley, Rick Polhemus.
Q And you recall when it was that you first
reached out to the Morgan Stanley banking team?
A I don't recall the date, but I do recall
the approximate timing.
Q What was the approximate timing?
A So after Elon had declined the board seat
technically for a second time -- well, yeah -- I
believe that was a time when he -- sorry. Was I
super loud just then?
Okay. I saw your head move. I was
worried.
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I believe that was a moment in time where
he asked himself the question, "All right. What do
I actually want to do? And if the board seat isn't
the answer, what are the answers?"
And he then asked for me to connect with
the -- with the banking teams at Morgan Stanley and
Goldman Sachs, and -- and so I called and
said, "We're exploring options of what -- of next
steps here."
Q And did you have a similar discussion with
Goldman Sachs?
A I did, but was quickly told they were
conflicted from having the conversation.
Q And the specific -- was it a conversation
that you had with Mr. Musk that led you to do this?
A I believe so. I believe it was a phone
conversation.
Q And -A Could have been in person. I'm not
certain.
Q And can you just tell me everything you
recall of that conversation?
A Again, he'd just declined the board seat,
and it was a crossroads, where he was trying to
decide if he wasn't going to sit on the board -- or
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I mean the board wasn't eliminated as a potential
option. It was just at that very moment he had just
finished saying, "No thanks," to the board seat, and
so he was, as I understood it, in this moment of
decision-making. What -- what actually do I want to
do?
And -- and he felt like, you know, the -the banking teams would be able to help build out
that multiple choice list of options.
Q If you look further down on what has been
marked as Exhibit No. 11, there's a section with
three bullet points, and in the second bullet point,
there's a bracketed section that starts with: "This
provides a certain level of plausible," and then:
"den.," which I assume is deniability.
Do you see that?
A Yes.
Q Do you know what that's referring to?
A Let me finish reading the rest of that.
Q Okay.
A I don't. I have no idea what he's
referring to there.
Q Do you recall ever reaching out to him to
follow up, to inquire?
A I don't recall.
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Q And you said you spoke to him pretty
frequently, correct?
A Yeah, communicated with him pretty
frequently. Spoke with him a couple times a week.
Q And you don't ever recall inquiring what he
meant by that?
A I don't.
MR. SHANNON: Exhibit 12.
--(Birchall Exhibit 12 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 12, which is the
13G that Mr. Musk filed on April 4th, 2022.
Do you see that?
A I do.
Q Okay. And you are aware he was making that
filing, correct?
A Yes.
Q Now, you testified earlier that Mr. Musk
wanted to complete his position before the public
announcement.
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Had he completed acquiring his Twitter
stock as of this point?
A I think whether naturally or by force,
he -- he had to pause buying at this point.
Q Why did he have to pause buying at this
point?
A Because a filing was -- was required, and I
think there was yet another filing, which, again,
this is not my expertise, but I want to say HR -- H
filing or something. But upon filing that, there
would be a period of time where you couldn't
purchase after filing.
Q Okay. And are you aware of any purchases
Mr. Musk made of Twitter stock after the date of
this filing?
A No, I'm not.
Q And on the front page, it says: "Date of
event which requires the filing of this statement."
Do you see March 14, 2022?
A Yes.
Q What's your understanding of that date?
A I believe that is referencing the date
that -- upon which we crossed the 5 percent barrier.
Q You talked before about at a point in time
Mr. Musk was asked to join the Twitter board.
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What do you recall of that?
A Again, I -- I first heard about this via
text that -- you know, with Martha Lane Fox. That
was the first I had heard of him joining the board,
and from what I understood, there were -- there was
some communication wherein an offer was made, and he
was saying he was interested, and they provided an
agreement.
Q And prior to this time -- is this early
April that this occurred?
A Yes. That's right.
Q Was it shortly after he announced that he
acquired a large position in Twitter?
A I -- I don't recall exactly, but it was all
right in there.
Q Okay.
A Yeah, right in that timeframe.
Q And prior to being asked to be on the
board, do you recall Mr. Musk ever expressing views
regarding how well Twitter was managed or operated
as a business?
A No.
Q Do you recall him ever expressing
complaints regarding the platform?
A Well, I think he had tweeted about -- well,
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certainly about democracy and maybe about the
algorithm and potentially even about bots at some
point.
Q Do you follow Mr. Musk's Twitter account?
A I do.
Q Okay. Do you recall him at any point in
time discussing with you any of those issues?
A I don't recall specific discussions on any
of those things.
Q Okay. When's the first time that you do
recall Mr. Musk talking about the number of bots on
the Twitter platform?
A With me personally?
Q Yes.
A I mean, I don't recall the date per se, but
the first I would have heard of it would have been I
think via Twitter. I mean, him tweeting some
comment about it. There weren't discussions between
he and I outside of that.
Q So you don't recall any communications with
him regarding bots, other than what you saw on his
Twitter account?
A Certainly not pre-board, you know, offer
time. And I -- there -- there likely were
conversations post, but I just don't -- I don't
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Jared Birchall
recall. I can't tell you when or what, you know.
Q Okay. And did you have any discussions
with Mr. Musk regarding whether he should or should
not join -A No, I didn't.
Q -- the Twitter board?
A I received a text saying he was joining the
board -- oh, well, sorry. He -- the first form of
agreement that he received, I received that and told
him about the restrictions involved in that
agreement, and which led to him saying, "I don't
want to join," which then led to an offer of a much
simpler agreement in which he said he needed to
join.
But beyond that, beyond me reviewing that
first agreement and sharing the restrictions
involved with that, I -- I didn't -- I wasn't
advising him one way or another.
Q And what were the restrictions that gave
you pause with regard to the first agreement?
A He had no rights. He had to always vote
with the board. He couldn't ever say anything
critical about the company. It was -- they were
looking to handcuff him completely, and I just -that wasn't going to work.
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Q And do you recall receiving a revised
agreement that was acceptable?
A I -- I do, yes.
MR. SHANNON: Can you mark that as
Exhibit 13.
--(Birchall Exhibit 13 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Exhibit No. 13, which is an email
from you to Martha Lane, dated April 4th, 2022.
Do you recall sending that email?
A Yes.
Q Okay. And you attached the signed
agreement by Mr. Musk to join the board, correct?
A That's right.
Q And Mr. Musk had provided that to you?
A I believe I was provided it from either
Martha or Sean or someone, and I believe Elon
instructed me to add his signature to it.
Q Okay. And he authorized you to send it
back?
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A That's correct.
Q And it was your understanding at that point
in time that he had agreed to join the board?
A That was my understanding.
Q Okay. And do you recall any discussions
with him whether he would or would not join the
board at any point in time?
A Beyond that review of the first agreement,
no.
Q And then a few days after agreeing to join
the board, you mentioned that he determined he was
not going to join the board, correct?
A That's right.
Q And how did that come about?
A I don't know. It just -- I then learned he
decided he would not do that.
Q How did you learn that?
A I don't recall how I learned that.
Q Were you surprised?
A A little bit.
Q Did you ever inquire of Mr. Musk, or anyone
else, why he had elected to do that?
A I -- I don't specifically recall inquiring,
but I, in general, knew that he wasn't a fan of
serving on boards. And so while it was surprising
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because he had signed the equivalent of a Letter of
Intent, it wasn't shocking because he had declined
many board seats prior.
Q Are you -- or do you recall any discussions
with Mr. Musk about potentially creating a competing
platform to Twitter or some other social media site?
A No.
Q Do you recall seeing tweets by Mr. Musk
where he talked about that?
A I -- I do recall something along those
lines, yeah.
Q And you don't recall ever discussing with
him?
A No.
Q Do you have any understanding as to whether
Mr. Musk, at any point in time, intended to create a
competitor or a similar social media platform?
A No.
MR. SHANNON: Mark this as -- what are we
up to?
THE COURT REPORTER: Exhibit 14.
--(Birchall Exhibit 14 was marked for
identification.)
---
JANE ROSE REPORTING
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Jared Birchall
THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Exhibit 14, which is two tweets dated
March 26th, 2022.
And it starts out with a different person
saying: "Would you consider building a new social
media platform?"
Do you see that?
A I do.
Q And Mr. Musk responds: "Am giving serious
thought to this."
Do you see that?
A I do.
Q And do you recall ever discussing or
hearing that Mr. Musk was giving serious thought to
building a new social media platform?
A No.
Q Would that be something he would share with
you?
A If he had plans to build another social
media platform, at some point, he would share that
with me, most likely.
MR. SHANNON: Exhibit 15.
---
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(Birchall Exhibit 15 was marked for
identification.)
--BY MR. SHANNON:
Q And before we turn to Exhibit 15, if you
see a tweet like this from Mr. Musk suggesting he is
considering a new social media platform, would it be
your typical practice to reach out to him to try and
get an understanding of what he's planning to do?
A Sometimes. But, you know -- you know, he
says he's giving serious thought to this. He thinks
about a lot of things. He is constantly thinking
about companies that are yet to be built that he
wants to build, and has been on the cusp of building
numerous companies that aren't currently in
existence.
And so this isn't, like, a new concept that
he would be thinking about some initiative or some
endeavor or some company.
Q But you -- if you saw this, then based on
your explanation, you believe that Mr. Musk was
being truthful, that he was giving serious thought
to it?
MR. SPIRO: Objection to form.
THE WITNESS: Yeah, I have no -- I mean,
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other than what the words are there, I have no
reason to doubt that he was thinking about it.
BY MR. SHANNON:
Q Well, he doesn't say he's thinking about
it. He's saying he's giving serious thought to it.
You would expect he'd be honest in his tweets?
MR. SPIRO: What are we -- what exhibit are
we on?
THE WITNESS: We're still on the previous
one.
MR. SPIRO: I apologize.
MR. SHANNON: Still on Exhibit 14.
THE WITNESS: I mean, thought, it means
it's in his head. It means he's thinking. So
whether serious or slightly serious, I can't, like,
parse that, but certainly it was running through his
head.
BY MR. SHANNON:
Q Okay. And if you could turn to what has
been marked as Exhibit 15 in front of you, which is
another series of tweets -MR. SHANNON: Can I have one more.
MR. SPIRO: I have one.
MR. SHANNON: Oh, you have one. Okay.
BY MR. SHANNON:
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Q Toward the bottom of that series of tweets,
and these are dated August 9th, 2022, the Tesla
Owners Silicon Valley pose a question, "Have you
thought about creating your own social platform? if
the Twitter deal doesn't come through."
Do you see that?
A I do.
Q And Mr. Musk responds: "X.com."
Do you know what X.com is?
A That's a web domain that he owns.
Q And what does X.com do?
A Nothing. It's just a web domain that he
owns.
Q Do you know why he responded: "X.com"?
A It appears that he's suggesting -- you
know, the person's asking about his thinking of a
social platform, and, you know, it appears that he's
responding that it would be called on that or
hosted -- it would be called that or hosted on that.
I don't know.
Q You don't recall having any discussions
with Mr. Musk regarding that?
A No.
Q You suggested that Mr. Musk asked you to
reach out to Morgan Stanley to get advice from the
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banking side.
Do you recall specifically when that was?
A I don't recall what day that was, but, I
mean, it was obviously in April.
Q Who did you reach out to?
A I believe I reached out to Rick Polhemus
first.
Q And what specifically did you state to
Mr. Polhemus regarding the potential transaction
involving Twitter?
A Yeah, I don't recall the exact words, but
it would have been just that he -- he'd like your
team to help him think through what -- you know,
what are his alternatives at this point in time.
Q Now, prior to this point, had you ever
involved in this type of transaction, the potential
acquisition of a public company?
A No.
Q Had you ever been involved in raising debt
or equity for this type of transaction?
A No.
Q And what was Morgan Stanley's response when
you reached out to them for this?
A It was just that they were going to put
together a response to the inquiry.
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Q What do you mean "put together a response"?
A Well, I'd ask them to help think through
the alternatives, and so they then took that as a
homework assignment to go and think through what
they could come back with to be helpful in terms of
considering alternatives.
Q And when you say, "what they could come up
with to be helpful," what do you mean?
A Well, again, Elon was at a genuine
crossroads here and had just declined a board seat
and -- but was sitting with a relatively large
position in a public company and wanted to have,
kind of, the experts in a field of considering next
steps sit down and advise him on what -- what he
should be thinking about. He truly didn't know what
that list looked like, and so he wanted to
understand it.
--(Birchall Exhibit 16 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 16, which is a
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series of emails internally at Morgan Stanley, dated
April 9th, 2022. I'll note that you are not copied
on these.
But if you look at the bottom one from Rick
Polhemus, that's who you originally reached out to,
correct?
A Yes, it was.
Q And he says: "Just got off the phone with
Jared (Elon's Chief of Staff)" -- that'd be you,
correct?
A Yeah.
Q "And he indicated that Elon does not think
he can make the changes needed at Twitter in a
public setting."
And is that what Mr. Musk told you?
A Again, this is his interpretation using his
banker's speak, but, again, I think his declining of
the board seat was -- was him saying that, I mean,
here is a company that he loved. That he used
daily. That he enjoyed, you know, spending time,
you know, on the platform, and he, you know, wanted
to see a better version, you know, for his own
personal use.
And when he considered -- when he got to
that moment of truth of, like, would I be able to
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help, in a board seat, accomplish, you know, what
I'm -- you know, whatever it was he felt like needed
to be accomplished, likely the answer was no.
And -- and so, again, then it became about, like,
what -- what would allow him to -- you know, what -what are alternatives now. These are his words that
he pulled together. I don't -Q Well, what was your understanding as to
what Mr. Musk wanted to do that he needed to have
Twitter in a public rather than a private setting to
accomplish?
A Well, again, certainly, you know, on the
list that was provided by Morgan Stanley was -- and
I can't remember how long that list was, but one of
those was taking the company private. But one of
the alternatives was him being a board member of a
public company, and whatever -- you know, I don't
pretend to know all of the reasons or -- I don't
pretend to clearly know the reasons why he decided
that he didn't want to be on the board.
But some of that I believe was him
deciding -- or thinking, you know, what -- what
effect he'd be able to have, you know, in that
position, and -- and so obviously he chose not to,
and so, you know, what were the alternatives.
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Q Are you aware of any specific changes that
Mr. Musk was contemplating at Twitter that he
believed could not be accomplished in a public
setting?
A Certainly, at this time I did not know what
that list looked like. Today I have the benefit of
kind of hindsight being 20/20 and thinking about,
you know, some of the -- and could speculate, you
know -- or, like, the list of things that he thinks
would be value added to change, I think I understand
what some of that list looks like.
Q What's your understanding of that list?
A Well, among other things, you have issues
with transparency and -- and the overall algorithm
that he -- he wanted to address. You have a bot
issue, spam issues, video content issues. Among
numerous other things, he just felt like there's a
better way to make the platform more user friendly,
more of an entertainment destination, more of a kind
of public forum where free speech was championed.
Q Mr. Polhaus [sic] -- Polhemus, rather,
suggests that you asked him to quickly put together
a team. Was there some urgency?
A I don't recall there being a specific sense
of urgency, but everything in Elon's world is --
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there's a sense of urgency. So I don't think it was
specific to this matter, but it was -- he has a
very -- he has expectations of a quick turnaround on
everything we do.
Q Okay.
--(Birchall Exhibit 17 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 17, which is a
series of emails, again, internal at Morgan Stanley,
dated April 11, 2022.
A Okay.
Q And actually before we go there, the
previous exhibit was Exhibit 16, which referenced a
call you had with Mr. Polhaus on April 9th?
A Yeah.
Q Okay. And that was the first time that you
reached out to Morgan Stanley about potentially a
transaction involving Twitter, correct?
A Not specifically a transaction, but a,
like, option -- list of options of what next steps
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could potentially be.
Q Okay. Had you reached out to them
beforehand regarding a transaction?
A No.
Q Okay. So the first time you had
communicated with Morgan Stanley something other
than the purchases of Twitter stock, which you'd
been doing, was April 9th?
A That's right.
Q Okay. And, then, so we have this email
which now has been marked as Birchall Exhibit 17,
which says -- and this is Mr. Polhemus again, his
top email, he said: "I had a conversation with
Jared this morning that was useful and will debrief
the team on that at 2 p.m..."
Do you see that?
A I do see that.
Q Okay. Do you recall having a discussion
with Mr. Polhemus on or about April 11th about a
potential transaction involving Twitter?
A I mean, I don't recall specifically, but I,
as mentioned previously, reached out to him
initially, and I think there were several calls in
there preparing for a conversation with Elon.
Q Okay. And were there specific instructions
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or discussions you had with him regarding preparing
for that call with Elon?
A Again, I don't remember the specifics,
other than that, you know, he wanted to understand
the alternatives at this point.
Q When you say "he wanted to understand,"
Elon wanted to -A Yeah. Yeah. He wanted to understand, you
know, what his alternatives might be.
--(Birchall Exhibit 18 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 18, which is a
series of emails internal at Morgan Stanley, dated
April 11th, 2022, and at the very top of the first
email is one that states: "I think Owen's 54.20 is
the," and then number sign.
Do you see that?
A Mm-hmm.
Q Do you know what that's referring to?
A Well, that was ultimately the price per
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Jared Birchall
share recommendation from Morgan Stanley.
Q That is what they recommended Mr. Musk
offer?
A Are you not seeing the same thing as I am?
MR. SPIRO: Oh, sorry. I'm looking at the
wrong Morgan Stanley email.
Thank you.
MR. SHANNON: It's at the very top.
MR. SPIRO: Thanks.
THE WITNESS: Yes, that was the proposed
number by the Morgan Stanley team.
BY MR. SHANNON:
Q And is it your understanding that that was
a number they had proposed on April 11th, 2022?
A No. I -- that proposal, as I recall,
was -- I don't remember the date, but it wasn't done
via email. I -- I don't recall exactly when that -when that number was thrown out there, but I believe
it was on a phone call. Yeah, I'm not sure.
If the question is what -- when was this
number proposed, I -- I just -- I don't recall.
Q Well, do you know where Morgan Stanley came
up with the 54.20?
A As I understood it, there was a, you know,
a premium over what was considered, you know, the
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market's interpretation of the fair market value and
transactions like this needed to be done at a
premium, and so this is where they came.
Q Are you aware of any other basis for
determining the 54.20?
A Well, I'm pretty sure there was a
tongue-in-cheek reference to the 420 number.
Q What do you mean a tongue-in-cheek
reference?
A Well, there's a long history of -- of -- of
that number's use and Elon's use of that number.
Q And what's the reference that it relates
to?
A Well, it -- it's become a reference to his
ongoing kicking of the dead horse, you know, joke,
but I think the -- the original reference is -refers to something with regard to cannabis culture.
Q Do you recall having any discussions with
Morgan Stanley at any point regarding what is the
appropriate price?
A No.
Q Do you know what analysis Morgan Stanley
had done as of April 11, 2022, when they referenced
the 54.20 price?
A I did not know at that point, no.
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Q Do you recall having a meeting -- do you
recall having a meeting with Morgan Stanley
representatives later that day with Mr. Musk?
A Again, I don't recall. If you say that's
when we had a scheduled meeting, I would trust that
that's true. I just don't recall exactly, you know,
the -- the timing of when that happened.
--(Birchall Exhibit 19 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 19, which is a
meeting invite for April 11th, 2022.
Does that refresh your recollection that
there was a call with Morgan Stanley on -A Yes.
Q Okay. And do you recall what was discussed
during that call?
A My recollection is that a list of
alternatives of potential courses of action was
discussed.
Q And was Mr. Musk on that call?
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A I believe so, yes.
Q And you were on the call, correct?
A Yes.
Q Anyone else, other than Morgan Stanley
representatives?
A I know it's possible that Alex was on the
call. I don't recall.
Q Okay. And what do you recall them
discussing regarding options?
A Well, the board seat was always still an
option. Whether or not he held onto his shares
and/or bought more and/or sold his shares were
options, and certainly one of the proposals was the
idea of acquiring the company, and then in what
format would you do that. Do you keep it as a
public company? Go private?
That's my recollection of the different
things that were discussed.
Q Do you recall anything that Mr. Musk said
during the call?
A I don't.
Q Do you recall any discussion regarding the
potential price that Mr. Musk would pay if he were
to seek to acquire the company?
A I don't. In fact, I -- I -- I don't
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specifically recall that, but I have a recollection
that price was not discussed on this call because
there was no determination of, you know, the course
of -- you know, that list of options that he would
take.
Q As of this point in time, which is
April 11th, was it your understanding that
Morgan Stanley had been retained?
A No. Again, this -- this was an exploratory
discussion without a determination on next steps.
Q What's your recollection as to when
Morgan Stanley was retained?
A I, unfortunately, can't recall when that
was.
Q Were you involved in determining to retain
them?
A I mean, the ultimate decision would have
been made by Elon, but involved? I guess.
Q What involvement did you have?
A Well, again, I obviously was on the calls
and set up the initial call, but probably helped
facilitate the signatures. Yeah. That's -Q But you don't recall the specific date that
that was agreed upon?
A I don't recall.
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--(Birchall Exhibit 20 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 20, which is a
series of emails, again internal at Morgan Stanley,
relating to Project X.
Do you know what Project X is referring to?
A I assume they're referring to whatever the
Twitter-related initiative would be.
Q At the bottom, there's an email from
Anthony Armstrong.
Do you know who he is?
A I do.
Q Who is he?
A He's one of the senior bankers at
Morgan Stanley.
Q Okay. And was he involved in the
transaction?
A He was.
Q Okay. He says: "A few thoughts: The
other near-term work stream is to review the hostile
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options and the target's defense profile."
Do you see that?
A I do.
Q Do you recall any discussion with
Morgan Stanley regarding the hostile options and the
target defense profile?
A I don't.
Q Do you recall any discussions regarding a
potential hostility tender offer?
A I don't.
Q At any point in time?
A No, I don't recall specific discussions. I
do recall the term at one point or another being
used, "tender offer," and tweeted about, among other
things, but I don't recall any specific discussions
regarding that.
Q If you look at the top, there's an email
from Kate Claassen, and what was her role in the
transaction?
A She was one of the -- also one of the, I
guess, more senior bankers from Morgan Stanley.
Q Her second line reads: "Punchline is that
our goal is speed, and to get this done quickly we
remove commentary in letter on censorship," and then
it goes on.
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Do you know what that's referring to?
A I do not.
Q Do you know what letter she's referring to?
A I don't. I mean, I could guess, but I -I -- I'm not sure.
Q Do you know why she's suggesting "our goal
is speed"?
A Again, I'm thinking that they're
interpreting whatever information they've been given
and -- and stating that that's what their team's
goal is. I don't know.
Q Well, on the April 11th meeting that you
had with Morgan Stanley, was there a suggestion that
the goal was to move quickly?
A I don't specifically recall. I mean, as I
stated before, everything in his world has a sense
of urgency to it, and so to suggest that this was -might have been a takeaway isn't, you know,
surprising.
Q After the 11th -- the meeting with
Morgan Stanley on April 11th, what is the next
communication you recall having with them?
A Yeah, unfortunately, that kind of gets into
a timeframe where there's just a lot of times and
dates and discussions that are all smashed together,
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Jared Birchall
and so I just don't recall. Certainly, there were
follow-up conversations and whatnot, but I don't
recall exactly when or what was discussed.
--(Birchall Exhibit 21 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 21, which is an
email from Mr. Musk to Mr. Taylor regarding taking
private Twitter. It's dated April 13th, 2022 and
encloses a letter from Mr. Musk to Mr. Taylor.
Do you see that?
A I do.
Q Now, were you aware before this was sent
that Mr. Musk was planning to send it?
A Yeah, I think I helped facilitate the
signature on this.
Q Other than helping to facilitate the
signature, did you have any role with regard to this
letter?
A As far as writing or whatever, no.
Q Did you discuss either this letter or
Mr. Musk's decision to purchase Twitter?
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A Again, I think I was on, you know, several
different phone conversations over this very, kind
of, compact period of time, and certainly there was
a -- there was a conversation at some point that I
was a part of -- or that I was privy to where these
things were discussed. I just -- I can't recall the
specifics of it.
Q Okay. So -- and this suggests he made the
54.20 per share offer on April 13th, correct?
A That's right.
Q Okay. And you had your initial call
discussion with Morgan Stanley on April 11th, 2022,
correct?
A That's right.
Q Okay. And before Mr. Musk made this offer
on April 13th, do you know what analysis
Morgan Stanley had done?
A I think there was some -- you mean as far
as analysis of -- that got them to their share
price? Is that what you're asking?
Q Analysis as to whether -- what share price
made sense. What was the value of Twitter.
Anything like that.
A I don't recall their -- certainly, they -they would have talked about how they backed into
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their price, but I don't recall the specifics on
what analytics had gone into their work at this
point.
Q Are you aware of Mr. Musk doing any
analysis of Twitter before making his 54.20 offer?
A Again, only as to -- what I would be aware
of is what, you know, the banking team would have
shared. But outside of being part of calls that
banking -- that the banking team shared, I have no
information about what work he did or didn't do.
MR. SPIRO: We almost at a point to take a
break?
MR. SHANNON: Two minutes. That work?
MR. SPIRO: Of course.
MR. SHANNON: Okay.
BY MR. SHANNON:
Q Do you have an understanding as to why
Mr. Musk was initially coming forth with what he
called his best and final offer?
A I mean, my understanding is just that he's
a pretty direct, straightforward, you know, person,
and he didn't want to go through, you know, some
prolonged negotiation.
Q Prior to making this offer, are you aware
of any diligence that had been done either by
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Morgan Stanley or Mr. Musk relating to Twitter?
A Again, I -- I don't recall the specifics
of -- of what Morgan Stanley shared, but there was
information shared. I just don't recall, you know,
all the different source material for that, and -and I don't know what Elon Musk might have done
outside of what the banking team shared.
Q And when you say "banking team shared,"
would that have been shared orally, or how were they
sharing?
A I believe so. I believe at some point
there was an in-person meeting, but I -- I don't
think that that had happened at this point.
Q So what was shared by Morgan Stanley
between the initial meeting on April 11th and when
this offer was made on April 13th?
A Again, so I don't remember the specifics,
but they would have explained how they got to the
price and -- and kind of their general -- what their
general research had -- you know, they would have
consulted with, you know, whatever resources they
had inside the firm to give us a picture of what -you know, the full picture of the -- of the -- of
their thoughts on the transaction and the price.
Q Okay. And are you aware of any
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Jared Birchall
communications they had during this period that were
with Mr. Musk that you were not included on?
A I'm not aware of those.
Q And are you aware of any oral
communications that happened between the one call we
talked about on April 11th and when this offer was
made?
A I'm -- I'd be shocked if there weren't
additional calls made, but I -- I don't -- I can't
sit here and pinpoint, like, and then there was a
call this time and this time and this time. But I
feel pretty confident saying this wasn't the first
thing that came out of that -- you know, that
meeting.
Q And just one last question, and then we'll
take the break.
You suggested that you recall there being a
discussion or a communication on how they got to the
54.20 price.
A Yes.
Q What do you recall in that regard?
A Again, I don't recall the specifics. I
just recall that they explained what -- you know,
how they came to that number, and I don't recall,
you know, again, them -- the specific information
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that they used to -- to get to that, but I know that
they did explain it. I just -- which I guess I'll
just say that how we started this day was sharing,
like, what I was hired to do for Mr. Musk, and -and so, I do a lot for him, and this is a very small
percentage of that, and -- and so while this is an
important thing, there -- there's a long list of
many other important things, and so I -- I'm trying
to remember to the best of my ability, but there's
just, like, so many other things on the list that
prevent me from having, like, a perfect recollection
of the things that you're asking about.
Q Understood.
But do you have any -- any general
recollection as to what Morgan Stanley said as to
how they came up with the 54.20 price?
A Yeah, I unfortunately, like, don't have
that recollection. Sorry.
MR. SHANNON: Why don't we go ahead and
take a break.
MR. SPIRO: Sure. And I think they've got
some food for you all.
MR. SHANNON: Oh, thank you.
THE VIDEOGRAPHER: We're going off the
record. The time is 1:06 p.m.
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(Whereupon, at 1:06 p.m., the
proceedings in the above-entitled matter were
recessed, to reconvene at 1:54 p.m., this same day.)
AFTERNOON SESSION
(1:54 p.m.)
THE VIDEOGRAPHER: We are back on the
record. The time is 1:54 p.m.
CONTINUED EXAMINATION BY COUNSEL FOR PLAINTIFF
AND COUNTERCLAIM-DEFENDANT
BY MR. SHANNON:
Q Mr. Birchall, before we took the break, you
had mentioned that although you were involved in the
Twitter transaction, it was clearly not all that you
had to do on behalf of Mr. Musk, correct?
A That's right.
Q What was your role with regard to the
Twitter transaction?
A I mean, I don't know I can define it as,
like, a role, but as -- let's see. How do I -- I
mean, certainly facilitated certain aspects of
logistics, certain admin stuff, some advisory stuff.
I don't know there's like a title to use to
encapsulate the role, per se, but just kind of,
like, whatever gaps needed to be filled type thing.
Q You mentioned advisory stuff. What
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advisory stuff were you contemplating?
A Well, I was certainly part of conversations
with Mr. Musk as well as with the Twitter team
and -- I'm sorry. Twitter team? -- Morgan Stanley
team, where ideas were being bounced off of each
other, thoughts. So, yeah, that's -- that's what I
mean by that.
Q What was your understanding of Mr. Musk's
role with regard to the transaction?
A Well, he was the acquirer. Again, I -to -- yeah, I mean, he was -- he was the acquirer of
the company and overseeing all of that effort.
Q When you say overseeing all of that effort,
what effort were you -A Efforts by the legal team. Efforts by the,
you know, banking advisory team. Yeah, just
anything regarding the transaction, he -- he was the
ultimate say in all of it.
Q Were you also responsible for overseeing
aspects of it?
A I mean, he was ultimately overseeing
everything. To say -- well, I mean, I was -- I was
helping him in his overseeing role I should say.
Q Okay. Do you recall any specific things
you did to help Mr. Musk in his overseeing role?
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A I mean, going back to what I said, just a
lot of logistics, a lot of facilitation of
conversations and calls and meetings, and in some
cases, you know, information or, you know -Q What do you mean "information"?
A Well, if I -- if I would have had a
conversation with the banking team that he wasn't on
or whatever and then come
meeting or -- or at
another time, I would have relayed information.
MR. SHANNON: Exhibit 22.
--(Birchall Exhibit 22 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked Birchall Exhibit No. 22, which is an
April 18th, 2022 email from Mr. Polhemus to you CC'g
others, attaching a document, which is called
Principal Cases.
Do you have any doubt you received this on
this day?
A No.
Q Is there a reason why Mr. Polhemus was
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sending it to you as opposed to Mr. Musk or you and
Mr. Musk?
A I don't know if it was to take an initial
look or -- I can't say why he didn't CC him.
Q Do you recall providing feedback on any of
the analysis Morgan Stanley had done before it was
provided to Mr. Musk?
A I don't specifically recall.
Q Okay. And if you receive something like
this from Morgan Stanley, would it be your practice
to forward it on to Mr. Musk?
A Not always.
Q How would you determine what to forward on?
A Well, again, I don't know if this was for,
like, preliminary review, you know, purposes prior
to -- to the final version, or, you know, I just
don't -- I'm just not sure what -- in some cases,
third parties will send things like that to me first
to review and -- and then we'll tweak things or
whatever to -- before they send the final version to
him, or if they know I'm going to be with him in
person and, you know, I'm printing it out or -- you
know, there could be a number of reasons why they
sent it to me and not him.
Q Do you recall any instance in which
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Morgan Stanley or any other advisers sent you
something relating to the Twitter that you then
proposed comments to before it was provided to
Mr. Musk?
A I don't have, like, a specific recollection
of anything.
Q Do you have a general recollection of
anything?
A I mean, it's -- that's a pretty broad, you
know, question. You know, could that have happened?
Certainly. I can't think of, like, a specific
moment or -- or document where -- where that
specifically happened.
Q Okay. And if you look at what is attached,
do you -- it's -- Morgan Stanley, it's called
Principal Cases, dated April 2022.
Do you recall ever having seen this before?
A Yeah.
Q And do you have an understanding as to why
it was prepared?
A Yeah. Let's see here. I think -- as I
recall, it was just the initial projections on the
financials based on some of the fixes, I'll call
them, that -- that they knew Elon wanted to make
with the company.
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Q And did you have any role in preparing the
projections or making assumptions for the
projections?
A I mean, any role? I don't believe I was
part of -- or I wasn't part of the creation of this
document if that's what you're asking.
Did I, you know, have questions or
feedback? I -- I very well could have, but I don't
specifically recall.
Q Do you recall ever requesting that a change
be made to a model?
A Yeah, I do.
Q What do you recall in that regard?
A Well, later on was asking for different -you know, stress testing the model with different
projected numbers of -- of bots or mDAU into the
model to better understand how the model worked.
Q Any other proposed changes you made that
you recall?
A Again, not specifically.
Q And when you say "later on," when do you
recall you were doing that?
A I mean, if you're asking for a timeframe, I
believe that would have been in the month of June,
but I'm not certain.
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
Q And why were you asking that they adjust it
for certain sensitivities around bots?
A Well, we had a debt deal to do and needed
to know if we were going to be able to service that
debt, and -- and, you know, so I was trying to see
how that lever affected the -- you know, the revenue
projections.
Q With regard to the projections that are
before you right now and marked as Exhibit 22, did
you have an understanding where it says: "Fixed
free Twitter," what fixes were incorporated into
that?
A Well, I mean, I think they list them
there -- oh, you're talking about the No. 1?
Q Yes.
A Well, it's a poorly run company, and so it
was just some basic operational stuff, some cost
cutting. As I mentioned, you know, operate with
better efficiency, make the platform better, more
user friendly, retain more of the people that, you
know, log on and never go on to use it. I think
that was the main reference to just fixing.
Q You testified a moment ago that it was a
poorly run company. When did you come to the
conclusion that it was a poorly run company?
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A I think the market has come to that
conclusion over the past few years based on a
stagnant stock price and based on losing money and
things like that.
Q And then there's fixed free Twitter revenue
assumptions.
Do you have an understanding what that
related to?
A Is there somewhere specific you're -- oh,
the -- yeah, again, they're just quantifying I think
what -- what the effect those changes would have on
the revenue model.
Q Do you know where Morgan Stanley got the
information to use for their assumptions in these
models?
A Well, Twitter's a public company, so -- so
the basis of all data being used would be the
filings that -- that are readily available to all
investors, and so I -- I know that that was the
basis of certain data, and then assumptions were
just that, you know, based on certain tweaks of
these fixes, you know, and what potential effect it
would have.
Q But were they assumptions that you had made
and instructed Morgan Stanley, or were they
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assumptions that Morgan Stanley had come up with?
A So the specific revenue model assumptions,
the fixes, per se, were -- I think were -- the fixes
were I think initially voiced by Elon, but the
revenue assumptions were -- were primarily provided
by Morgan Stanley.
Q And when you say the fixes were originally
provided by Mr. Musk, when did he provide those to
Morgan Stanley?
A I don't recall the date, but early on in
the process, he -- he helped outline kind of his
vision, and -- and then they proceeded to create a
model that reflected that vision.
Q Was it your understanding that the model
that they provided to you on April 11th -- or I'm
sorry -- April 18th, 2002 [sic] was attempting to be
consistent with the vision that Mr. Musk had
provided to them?
A Yeah. With regard to the word "fixed,"
that was -- that's a reference to, like, his
proposed changes -- the effect his proposed changes
would have on the revenue model.
Q Do you recall any discussions with
Morgan Stanley regarding these projections?
A I don't specifically recall. I generally
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recall, you know, the model, and certainly we would
have discussed it, but I can't, like, recall the
time and place or anything like that.
Q Do you recall having any specific
recollection of discussions with Morgan Stanley or
Mr. Musk regarding any projections?
A Well, the one specific recollection that
comes to my mind is the one that I mentioned
previously about stress testing the model, but to -to pull out a moment in time where we discussed the
model, no. There were numerous conversations and
numerous in-person meetings and phone calls that
happened where the models were discussed, but I
can't sit here and share the details of those
moments in time.
MR. SHANNON: Exhibit 23.
--(Birchall Exhibit 23 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 23, which is an
email dated April 18th, 2022 from Kate Claassen to
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
you and others.
Do you recall receiving that email?
A Generally, yes.
Q Okay. And in the first numbered portion of
her email, she says: "Excitement about tango."
Is it your understanding that refers to
Twitter?
A Yes.
Q And she talks about: "Belief in ability to
fix product and increase profitability."
Do you see that?
A I do.
Q Do you have an understanding she's talking
about the fixes that Mr. Musk had identified?
A Yes.
Q And if you see, under that is A, and then
it says: "Fix product - long form tweets, reduce
spam and bots," and then goes on.
Do you see that?
A I do.
Q Are those the specific fixes that Mr. Musk
had talked about with Morgan Stanley?
A At least some of them, yes.
Q Okay. How about long form tweets, did he
talk about that with Morgan Stanley?
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A Yes.
Q Reduce spam and bots -A Yes.
Q -- did he talk about that with
Morgan Stanley?
A Yes.
Q Do you recall any others that he spoke
about with Morgan Stanley?
A Well, the following one, the allowing
creators to make a living, being able to have the
top content creators monetize their work on Twitter,
that was another thing they discussed. The
verifications and the levels of verifications and
subscriptions were -- were also discussed.
Q And if you look at the next line, it says:
"B. Know product inside and out and complete
confidence in fixing it."
Do you know what that's referring to?
A I believe that is referring to -- as I
understood it, Elon, at the time, was the number one
account at Twitter in terms of interactions, I think
it was. Not necessarily followers, per se, but
in -- in account activity or whatever, and -- and so
the point there was that he knows the product quite
well, is a regular user.
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Q So she's -- you understand her to be, in
essence, saying -- repeating what he said at the
meeting?
A Yeah, I believe so.
Q Okay. Do you recall discussions with
Morgan Stanley regarding cost savings?
A Yes.
Q What do you recall along those lines?
A Again, there would have been numerous
conversations at different times and different
settings, but I do recall the general discussions
about -- about head count. I recall discussions
regarding data centers.
Q What were -- what do you recall as to
Mr. Musk's views as to head count?
A That the number of Twitter employees was
larger than the number of effective Twitter
employees.
Q Is it your view that for the purpose of
their analysis and projections, that Morgan Stanley
assumed a certain level of staff reduction?
A I'm not sure if they actually quantified a
target staff reduction. I -- I don't know whether
they did or didn't.
Q Did they -- did they seek or reflect the
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reduction in employee expense?
A Yeah, which would have been hand-in-hand
with staff reduction.
Q Okay. So you understood that they did, for
the purposes of their projections, assume that
there'd be a reduction in employee expense, correct?
A I believe so, yeah.
Q And, in your view, that would go
hand-in-hand with reducing staff?
A Yes.
Q Do you recall that there was an in-person
meeting with Morgan Stanley and Mr. Musk in Texas on
April 20th?
A I do.
Q Okay. Who do you recall attended that
meeting?
A I recall that the -- the three
Morgan Stanley representatives that I mentioned
previously, Michael Grimes, Anthony Armstrong, and
Michael -- and Kate Claassen were there. I believe
Alex may have been there as well.
Q You were there, correct?
A I was, yeah.
Q Okay. Mr. Musk was there?
A Yes.
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
Q At this point in time, which is April 20th,
had Morgan Stanley been retained?
A I'm not sure.
Q What was the purpose of the meeting?
A Just to further discuss the transaction.
Q And what do you recall being discussed
during the meeting?
A I -- I recall them going through the
financial model. Again, not specifically, but -but that was -- that was definitely shared. You
know, all the things that, you know, fix Twitter and
all these things were among the things discussed.
Q Do you recall how long the meeting lasted?
A No.
Q Any idea?
A I mean, it was most likely over an hour and
most likely under two hours.
Q Okay. Do you recall there being a takeaway
from the meeting as far as what the next steps would
be?
A I don't recall as to that specific date and
action items tied to that -- you know, to that
specific meeting.
Q Do you recall anything specifically
regarding that meeting other than what you already
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testified to?
A Not specifics. I mean, I think we also
talked about investor interest as well. I think
that was one of the topics that was -Q When you talk about investor interests,
what do you mean?
A Well, the interest from investors had
started to, kind of, pour in, and understanding, you
know, kind of what that looked like was an ongoing,
kind of, update.
Q When you talk about investors, are you
talking debt or equity?
A Equity.
Q And do you recall what was said in that
regard?
A I don't specifically.
Q Was it viewed as generally positive as far
as the reaction you were getting?
A Yeah. There was quite a bit of interest.
MR. SHANNON: Exhibit 24.
--(Birchall Exhibit 24 was marked for
identification.)
--THE WITNESS: Thank you.
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BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 24, which is a
-- a amendment to the 13D, which is filed on
April 20th, 2022.
Do you see that?
A I do.
Q Okay. Do you recall having ever seen this
document before?
A Vaguely, yes.
Q Okay. And what do you recall regarding
this document?
A You know, just another one of the filings
that was required per counsel.
Q Okay. And this is dated the same day as
your meeting with Mr. Musk in -- in Texas, correct?
A It appears it is, yes.
Q Okay. Do you recall discussing at that
meeting in Texas that there would be a 13D filed?
A I don't recall.
Q Okay. If you could turn to the second
page, and you see where it says: "Item 4. Purpose
of Transaction"?
A I do.
Q At the end of the second paragraph there,
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the second paragraph which starts: "The proposal
was (and remains) non-binding..." -A Mm-hmm.
Q There's a sentence that reads, and this is
the last sentence: "At the time of delivery, the
Proposal was also subject to the completion of
financing and business due diligence, but it is no
longer subject to financing as a result of the
Reporting Person's receipt of the financing
commitments described below and is no longer subject
to business due diligence."
Do you recall that?
A I do.
Q Do you recall at the meeting in Texas on
April 20th if there was any discussion of making the
offer no longer subject to either financing or due
diligence?
A I don't specifically recall that.
Q Okay. Do you recall any discussions
regarding making the offer no longer subject to
financing or due diligence conditions?
A Again, I -- I don't specifically recall a
conversation with that -- in that regard. I'm
certain, you know, a conversation was had. I just
don't recall the setting or details.
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
Q Do you recall any discussion at any time
with Mr. Musk, Morgan Stanley, or anyone else,
about, in essence, not having due diligence
conditions to the offer?
A I do recall that specific, you know, phrase
and it being a part of the -- you know, the
transaction. I just can't pull out a specific
conversation.
Q Okay. What do you recall being discussed
in that regard?
MR. SPIRO: Of course don't reveal any
advice you got from counsel in answering this
question.
THE WITNESS: Yeah, I -- again, I -- my -my recollection is the general concept. It isn't,
like, specific details surrounding that.
BY MR. SHANNON:
Q So what's your understanding of the general
concept?
A That -- my -- my general understanding is
that we, at that point, would be relying on all of
the publicly available information to be correct and
factual and that, kind of, the -- that some of
information that would be -- that could be acquired
from the management team or whatever was not -- we
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were waiving the -- the rights to acquire some of
that information.
Q And why were you determining to waive those
rights?
A Well, I -- I don't pretend to know
everything that was in Elon's head or all of the
strategy behind it, but we trusted in, you know,
public filings and the -- the -- the rigor that goes
into, you know, filing information and didn't feel
impressed to take the baton from the current
management's vision.
As I said before, it wasn't -- you know,
Elon had a different vision for the future of
Twitter, and so with the stamp of publicly available
documentation -- you know, with the SEC stamp and
the factual representation of all that transparent
to us and to the world, with that information being
correct, we felt like we had the information that
was needed.
Q What did you mean when you said Mr. Musk
had a different vision? How did that impact the
decision to waive due diligence?
A Well, part of the purpose of diligence is
to understand the management's team and next steps
and vision. And given that, you know, the general
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belief was that it wasn't being run well, he had a
better way, a better path forward, and didn't need
to take that baton from the current management team.
And so that -- that's what I was trying to -Q Okay. Are you aware of any other
transaction involving the acquisition of a public
company that has not involved due diligence?
A I -- I -- mergers and acquisitions isn't,
you know, my expertise, so I -- I haven't -- I don't
have information about that.
Q Are you aware of any discussions with
Morgan Stanley as to their views as to whether to
waive due diligence?
A Are you asking if -- if the advice came
from them?
Q I'm asking you if you are -- if you recall
any discussions with Morgan Stanley regarding or
advice given by Morgan Stanley as to whether to
waive due diligence.
A Yeah, again, I just don't have any specific
recollection of a point in time or a -- like a
specific conversation. Again, I -- I remember the
broad topic being broached, but I just -- I don't
have that recollection of specifics in a moment.
Q Okay. Do you recall anyone giving advice
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to you or Mr. Musk that it would -- that you should
waive due diligence?
A I don't recall what the genesis of that
idea was and, kind of, how that -- how that took on
a life, but as with most -- as with, you know, all
the other major decisions, it would have been a
collaborative discussion.
Q Who made the ultimate decision?
A Well, ultimately, Elon has to sign off on,
you know, a filing, right? So he would have signed
off on it.
Q Okay. You testified a moment ago that you
would have relied on the Twitter's previous public
filings, correct?
A That's right.
Q Okay. As of this time, which is
April 20th, do you recall having read any of the
previous Twitter public filings?
A I personally had not.
Q Okay. Do you know if Mr. Musk had read
any?
A I don't know.
Q Do you recall discussing with any of your
advisors any of Twitter's previous public filings?
A There were mentions, again, in general, and
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
I know that the models -- I always knew the models
were built upon data derived from those models, but,
again, I don't recall a specific discussion where -and the words that were used as it pertains to those
filings.
Q Do you recall discussion as to any specific
portions of the SEC or public filings for Twitter
that Mr. Musk was relying upon?
A Well, certainly, you know, one of the most
highlighted data points is -- is, you know, the
5 percent bot number. That's among the numbers that
were -- that were relied upon in our financial
models.
Q Do you recall discussions about relying
upon the 5 percent bot number?
A Again, I recall it being part of
discussions. I don't recall exactly what -- how
those conversations went specifically.
Q And you recall that being part of
discussions prior to signing the merger agreement?
A I don't. No, I don't recall that being a
discussion point prior.
Q Other than your reference to the 5 percent
bot number, do you recall any other portion of
Twitter's public filings, SEC filings, that you
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discussed as -- as relying upon?
MR. SPIRO: Objection to form.
THE WITNESS: Again, the models, the
financial models, that were built, were built using
Twitter's proxy numbers, and -- and then we made
modifications off of that base, but that was the
base of -- of the models that we used.
BY MR. SHANNON:
Q Any other information disclosed in
Twitter's public filings that you recall any
discussions regarding relying upon?
MR. SPIRO: Objection to form.
THE WITNESS: It's not coming to -- like,
there is -- aren't specifics coming to mind right
now.
BY MR. SHANNON:
Q Okay.
MR. SHANNON: Exhibit 25.
--(Birchall Exhibit 25 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
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been marked as Birchall Exhibit No. 25, which is an
email from you to Command Center, dated April 22nd,
2022.
A Yes.
Q Subject: "Talking points."
Do you see that?
A I do.
Q It says: "Please print this for" -- and
then "V1" -- is that six? "And hand it to him."
A Yes.
Q Who is that?
A That's Elon.
Q What is that reference to V1?
A It's a way in which the security team
refers to him.
Q When you say "the security team" -- oh,
okay, his internal security team?
A That's right.
Q Okay. And what is Command Center?
A That -- that's the security -- like, the
security hub that is monitoring properties and
cameras and stuff like that.
Q Okay. And the attachment, can you tell me
what that is?
A Yeah. I believe we were getting ready to
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get on a string of calls with -- I think this was
for the institutional investors, and -- and it was,
you know, just putting some structure around his,
you know, bullet points that he had shared prior.
Q Did you prepare this?
A I, along with -- I think -- I think
Morgan Stanley started it, and I tweaked it in
certain ways as well before sending it to him.
Q Okay. And you said around bullet points
that he -- Mr. Musk provided you with bullet points
and then you converted it into more talking points?
A These are -- are taken from, kind of, a few
different meetings, whether it was in person or via
phone, and attempt to encapsulate some of the things
that he had said in those prior meetings.
Q When you say "he had said," you mean
Mr. Musk?
A Elon. Yeah, Mr. Musk.
Q You start out with: "Define the mission."
What did you mean by that?
A Well, all of Elon's companies have a
mission and understanding that this was no
different, there was a larger objective that he was
working toward.
Q And what was that larger objective?
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
A As it states, you know: "...free speech
and a functioning democracy."
Q Okay. And then "Objective 2: Explain why
Twitter is broken and can't succeed."
What did you want him to convey in that
regard?
A Again, he -- he has -- is, like I said, by
certain metrics, the number one user and had
numerous frustrations about his user experience,
some of which are then, you know, further detailed
in the second -- in the next point, which reflect,
you know, spam and bots and user interface and all
that type of stuff.
So those were some of the -- the ways that
Twitter was -- is -- is broken.
Q And then if you look at the next one, it
says: "Objective...Explain why $54.20 is better..."
Do you see that?
A I do.
Q And then No. 4, it says: "With
significantly improved execution on multiple fronts
(which the company cannot do and has proven that
beyond" -- "has proven that beyond a doubt), the
company is worth what I have offered."
Do you see that?
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A Yeah.
Q What improved execution is being referenced
there?
A I mean, all of the above. Improved
execution on all fronts in terms of all of the
proposed changes. You know, Twitter had -- had made
previous commitments to improve spam and user
interface and -- and bots and things like that. And
with improved execution on -- on that and some of
the other things that Elon had in mind, it would
increase the worth of the company.
Q And was it your understanding that Twitter
had, in the past, made statements it would improve
on some of those issues on spam and bots, but it had
not been successful?
A Yes. In each of the previous investor
calls, Parag had -- had made specific commitments to
make those improvements and very little to no
improvements had been -- or noticeable improvements
had been made.
Q And had you listened in on the prior
investor calls, or how did you know he had made
those commitments?
A At some point, I -- I was shown the
transcripts, I believe, of -- of some of the
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responses that he gave. I think the Morgan Stanley
team had put together an exhibit of his promises and
then what actually happened and there's a whole list
of them, and -- and it was direct quotes from each
of those calls.
Q And what was Mr. Musk's plan to correct
those, for example, the spam and bots?
A Well, to start off was to make a
transparent platform where the algorithm was -- was
disclosed where there was a much more rigorous and
technology-aided process to discovering spam and
bots and eliminating spam and bots.
Q Was he familiar with the technology and
process used at Twitter at that time to identify and
eliminate spam and bots?
MR. SPIRO: Objection to form.
THE WITNESS: I don't -- I don't know
exactly what date this is. It appears that -BY MR. SHANNON:
Q It's April 27th.
A Yeah, pre -- yeah, it's pre the meeting.
So, mostly, he had his own personal experience to go
off of, and he recognized that, you know, as a
high-profile user, certainly there were -- there
could potentially be anomalies in his account that
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didn't reflect other user experiences. And so he
just knew that based on his own experience, it
wasn't ideal.
Q How does he know he can improve
identification elimination of spam and bots if he
doesn't understand how it is that Twitter's
currently doing it?
MR. SPIRO: Objection to form.
THE WITNESS: I think that goes back to the
general belief that Twitter was poorly run by a
group of executives that were in over their skis and
were not executing on promises that they were
making, and -- and Elon is -- has a pretty good
track record of being able to solve problems, and he
wrote software for the first 20 years of his career,
and this is ultimately a software company. And his
ability to help improve a software company would -he felt confident in his ability to do that.
BY MR. SHANNON:
Q If you look at the next one, which is:
"Objective 4: Best-and-final," you say: "I had
done my work and made my decision."
Do you see that?
A Yes.
Q When you say "I had done my work," what are
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you referring to?
A I believe, you know, his -- his diligence
to -- to get to a place where he felt good about the
offer.
Q What do you mean felt good about the offer?
A Felt like it was a more than fair price
that investors should accept.
Q And what's your understanding as to the
diligence he had done to get to that place?
A I don't know all the diligence that he
personally did independent of -- of me or meetings
that I was a part of, but at minimum, the data that
was shared by the banking team about the financials
and about how the company was currently being run.
Q And turning back to the first page where
you're sending it to Command Center, is it common
that you will send something to Command Center to
print for Mr. Musk?
A No. That was a unique day where I was due
to be with him for this meeting, and as I recall,
there was a last-minute change that prevented that
from happening, and I vaguely -- it might have even
been a COVID thing or something like that, and so it
was a very last minute attempt to get him a document
in his main residence. You know, he doesn't have a
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printer and things like that. So the quickest way
that I could figure out to get him something was
sending it to the -- the security team.
Q Mr. Musk doesn't have a printer in his -A I mean, so he was renting from a friend,
and he -- in that residence, I don't believe that
his friend had a setup with a printer in there.
MR. SHANNON: Exhibit 26.
--(Birchall Exhibit 26 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 26, which is a
letter from Owen O'Keeffe, dated April -- or an
email from Owen O'Keeffe, dated April 24, 2002 [sic]
to certain individuals, enclosing a draft -- or a
final letter, and it shows that you are copied.
Do you recall receiving this?
A I do. Again, I think I probably
facilitated the signature here.
Q Okay. And when you say "facilitated the
signature," how do you go about doing that?
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A Well, he would have asked that I apply an
electronic signature to it.
Q Okay. So you would have applied his
electronic signature?
A I believe so.
Q Okay.
A It looks that way.
Q And he -- you would only do that if he gave
you specific authorization to do so?
A That's right.
Q Do you recall him doing that orally or in
writing?
A I -- I don't specifically recall.
Q Okay. And do you recall any discussions
with Mr. Musk regarding this letter before you
applied his signature?
A I -- I don't. It's, I think, too specific
to a moment in time, and I apologize, but there's
a -- I don't have that -- I don't really have a
photographic memory.
Q Do you have an understanding as to who
drafted the letter for Mr. Musk?
A Well, I don't. I mean, I -- I'm guessing
that there was some recommendations for content, and
then he ultimately would have edited it as desired.
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Q Okay. Do you recall what the purpose of
the letter is?
A I don't. If I sat here and read it in
detail, I maybe could, like, provide a guesstimate
or, you know -Q Well, you're certainly free to take a look
at the document and any document I give you. If you
feel you need to read more of it for context, you
are -A Well, if you want me to comment on that, I
just don't -- I don't recall without having read it
in detail.
Q Well, why don't you just take -- I have a
couple questions on it. Why don't you just take -it's only one page -A You want me to read it?
Q -- why don't you take -- just let me know
when you're done.
A Okay.
Q Okay. Having now read the letter, does
that refresh your recollection as to what the
purpose of the letter was?
A Again, I -- not, like, super specifically.
You know, clearly, it was a nudge in an effort to -to get the deal -- to proceed with the transaction.
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I -- I don't recall the circumstances that -specifically.
Q Okay. Do you recall any discussions
regarding sending this letter?
A I don't.
Q Okay. If you'll look at the middle of the
second paragraph, there's a sentence that reads:
"As such, I attached a merger agreement that is,
quote, seller friendly, end quote, and that does not
require you to recommend in favor of my offer."
Do you see that?
A I do.
Q What was your understanding as to what was
meant by "the merger agreement is seller friendly"?
A I can't specifically recall right now
what -- what that reference is.
Q Do you recall any discussions regarding
providing a merger agreement that was seller
friendly?
MR. SPIRO: Do not, obviously, disclose
privileged communications with counsel.
With that caveat, you can answer.
THE WITNESS: I mean, it's not coming to
me. I don't have a recollection of that.
BY MR. SHANNON:
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Q Do you have any understanding as to why
Mr. Musk was characterizing the merger agreement he
was providing to Twitter as seller friendly?
A Yeah, that's what I've been trying to rack
my brain to remember that, and it's just not coming
to me.
Q And you don't have any understanding what
is meant by "seller friendly"?
A No. Again, I'm trying to get there. It's
just not -- it's not coming to me.
Q And you testified that, you know, your
general recollection was this was to -- to nudge the
transaction forward. What -- what did you mean by
that?
A Well, clearly, a proposal had been made and
some time had passed, and, you know, this is a way
of saying, "Here's what we've offered. We feel good
about our offer and take it or leave it."
MR. SHANNON: Exhibit 27.
--(Birchall Exhibit 27 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
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been marked as Birchall Exhibit No. 27, which is a
Morgan Stanley document entitled "Scenario Planning
and Considerations."
Do you recall ever having seen this before?
A I don't.
Q And just so my question is clear, is it
that you don't recall if you saw it, or did you not
see it?
A I don't recall ever having seen this
document.
Q Do you know when it was prepared?
A I don't. Oh, April 2022. I don't know
when it was prepared.
Q On the -- on the second page of the
document, it talks about tactical scenario planning.
A Yes. I see that.
Q You see that?
And -- and it talks about potential options
to proceed.
Do you see that?
A I do.
Q Okay. Do you recall any discussions
regarding the tactical options that Mr. Musk had
around this time which it refers to "Accept by
Monday 4/25"?
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A I don't recall any of those discussions.
Q Do you have a recollection on what date the
merger agreement was agreed upon?
A The specific date, I don't know what that
date is.
Q You don't recall the specific date?
A No.
Q If you look down at the next page, No. 1
says: Induce Counterparty to Remove Deal
Impediments.
Do you see that?
A I do see that.
Q Do you recall any discussions with
Mr. Musk, Morgan Stanley, or anyone else regarding
the -- what they call deal impediments that Twitter
may have to preclude Mr. Musk from succeeding in his
acquisition of Twitter?
A I don't.
Q Do you remember any discussions, for
example, regarding a poison pill that had been
adopted?
A I don't.
Q Do you recall any discussions regarding
section 203 of the Delaware general corporation law?
A I don't.
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Jared Birchall
Q If you look at the second point under that
section, it says: "Enclose very," underlined,
"seller-friendly," highlighted, "merger agreement in
documentation effectively removing all
conditionality."
Do you see that?
A I do.
Q And do you recall any discussion of that
being one of the ways to proceed?
A Again, that seller friendly term is still
not resonating with me. I don't have a specific
recollection as to -- as to that as a -- as to what
that specifically was referring to.
Q Well, if you look at the -- the page above
that we just looked at, which is the Tactical
Scenario Planning -A Yes.
Q -- of the options that are listed there, do
you have an understanding as to which one Mr. Musk
pursued?
A Well, again, I -- this is, I believe, the
first time seeing this chart, and I don't pretend to
clearly understand the flow here, but, clearly,
there was no tender offer, and there was, you know,
negotiation of a merger agreement. So that's what I
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understand to have happened.
Q You refer to a negotiation of a merger
agreement. What's your understanding of that
negotiation?
A Well, a proposal was sent. I don't know
what went on behind closed doors with Twitter, but
they responded eventually accepting the agreement.
Q Do you recall Twitter making any changes to
the agreement?
A I -- I do recall a few proposed changes.
There are a few that stand out.
Q Okay. Maybe I'll take a step back.
How long is it your recollection the
negotiation of the merger agreement lasted?
A Yeah, I don't have a specific recollection
of that. It was a relatively short timeframe, but I
don't -- I don't have a clear recollection of that.
Q Okay. You testified a moment ago that you
recall certain proposals that Twitter made in
response to Mr. Musk's proposed tender offer.
What do you recall in that regard?
A Well, I -- I do recall them proposing -- it
was important to Mr. Musk to be able to make
decisions with regard to top talent. They were
proposing to remove his ability to do that. They
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were proposing the ability to provide, you know,
golden parachutes and retirement packages or
whatever or severance or something like that, and he
was not -- he was not in agreement on that either.
Q Do you recall any discussions with Mr. Musk
around that?
A I don't recall discussions around that, no.
Q Do you recall discussions with anyone
regarding that?
MR. SPIRO: Obviously, you can't reveal
privileged conversations with counsel. With that
exception, you can answer the question.
THE WITNESS: I -- I don't recall
specifically.
BY MR. SHANNON:
Q Did you see a counterproposal made by
Twitter that had certain changes to the merger
agreement?
A I very well may have, but I just -- I don't
have a specific recollection of it.
Q Okay. How do you know the changes were
made proposed by Twitter?
A How do I know that changes were made that
Twitter proposed?
Q Let me restate the question and make it
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easier.
You testified before that you understood
that after Mr. Musk sent over his proposed merger
agreement, Twitter proposed certain changes,
correct?
A Yes.
Q Okay. How do you know what changes Twitter
proposed?
A Well, the main reason I know about the two
that I mentioned was because those then were not
adhered to, and it became a topic of discussion.
Q Topic of discussion -- oh, so after the
fact?
A So -- yeah, not -- not in the moment.
Q Okay.
A But -- but when -- yes, when -- when we
learned of certain people being fired and whatnot,
per our previous discussion, that -- that that's how
I -- I guess that was the confirmation that that -that's why that became an issue, because those
specific issues had been proposed as changes.
Q But you didn't know that at the time of the
merger agreement being negotiated, correct?
A No, I actually do recall that as being
among the things that were important. I mean, there
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Jared Birchall
were very few things that -- I don't recall other
things, but I believe there may have been other
things, but I do recall because those were the only
things -- well, at least the only ones that I could
remember that Elon actually pushed back on and
specifically cared about. That's -- that's my
recollection.
Q How do you know that those were the only
ones that Mr. Musk pushed back on and cared about?
A Well, because those were the only ones
that -- as I -- as I recall, those were the only
ones that were actually changed -- or that were not
accepted, I guess.
Q Okay. And what -- and your understanding
was that everything else had been agreed upon that
Twitter had proposed?
A That's my -- that's my recollection, yes.
Q And what's the source of that recollection?
A That's just my understanding of -- you
know, I think the source of most of the deal -- of
the deal and the transaction were our advisory teams
and legal teams.
Q And when did you learn that with regard to
the employment executive piece Mr. Musk had pushed
back and refused to agree?
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A I mean, it would have been the -- again, I
was -- I'm pretty sure I was involved in signing
those -- or, you know, on his behalf. And so, it
was within hours of him making that decision. I
think I may have even been CC'd on something or was
on a phone call or something where he specifically
pushed back on those things.
Q And do you recall reading the specific
provisions he pushed back on?
A I don't -- I can't recite them to you, but
I do recall the -- the topic, you know, the subject
matter.
Q Do you recall ever reading the merger
agreement?
A Not start to finish, every word.
Q Okay. What did you read?
A Again, it would have been snippets like
this that -- that, you know, were specifically
highlighted as, you know, pushing back or proposing
or accepting or declining. And, again, I -- I'm
sure there were other -- you know, other sections of
it that I read. I just don't recall. I can't sit
here and tell you that I specifically read the first
six paragraphs or something.
Q Did you have any role in determining what
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to accept or reject as far as -A No.
Q And do you recall having any discussions
with Mr. Musk regarding what he would accept or
reject?
A Not personally one-on-one, no.
Q Well, do you recall being in discussions
that others participated in regarding what he would
accept or reject?
A Yeah -MR. SPIRO: Again, I'm going to object to
the degree that that calls for privileged
communications.
THE WITNESS: Okay.
BY MR. SHANNON:
Q Well, who was in the conversation that you
recall?
A Yeah, as I recall, there were -- there
were -- I don't know if it was a phone conversation
or what, but I do recall I believe it was counsel
and -- and Mr. Musk that were part of that
conversation.
Q Do you recall anything discussed on that
conversation other than the employment provisions
that you just alluded to?
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A No, I don't.
Q And is it your recollection that that
conversation occurred between -- sometime between
when Twitter proposed -- or I'm sorry -- between
when Mr. Musk proposed his merger agreement and when
it was signed?
A Oh, yeah. Yes, for sure.
Q Okay. And do you have a recollection of
how long that period was?
A No.
Q Okay.
MR. SHANNON: Exhibit 28.
--(Birchall Exhibit 28 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been provided with
what has been marked as Birchall Exhibit 28, which
is an email from Ihsan Essaid at Barclays to
Mr. Musk and you and others, dated April 24th, 2022.
Do you see that?
A I do.
Q Okay. Do you recall receiving this email?
JANE ROSE REPORTING
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A I don't specifically recall receiving this.
Q Okay. Could you tell me who Mr. Essaid is?
A Senior leadership of Barclays banking.
Q And what was Barclays role with regards to
the Twitter transaction?
A They were, like, I guess considered a joint
book runner or a -- you know, a junior part of
the -- of the transaction.
Q What do you mean a junior part of the
transaction?
A Well, I think they also ultimately, you
know, committed to providing some of the debt as
well. But they were, I guess, considered one of the
quasi-co-leads -- or I don't know what the
technical, correct term is, but they and Merrill
Lynch were -- Morgan Stanley was lead and Barclays
and Merrill Lynch were considered kind of co-leads
or lesser than Morgan Stanley.
Q Okay. Do you recall ever having
discussions with anyone at Barclays?
A I do. I know I was on a call at some point
with Ihsan. Yeah. I did meet him over the phone.
Q Okay. And what do you recall of your
discussions that you had with representatives of
Barclays?
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A Well, again, I recall early on their
fervent desire to be part of the transaction, and,
you know, expressions of support and things like
that.
Q Okay. If you look down in the email, he
refers to an advocacy deck.
A I see that.
Q Do you know what that is a reference to?
A I don't. I opened it here when I saw that.
Q Do you recall ever having seen that deck?
A I don't.
Q Do you know who prepared the deck?
A I assume Barclays did.
Q Do you know what it was prepared for?
A I don't.
Q Do you know where Barclays got the
information it used for the deck?
A No.
Q Do you recall ever having any discussions
regarding the deck?
A I don't.
Q If you go about midway down the email, it
says: "Our offer comes with a very high degree of
certainty, it is fully funded and faces nominal
regulatory completion risk."
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Do you see that?
A I do.
Q Do you know what that's referring to?
A It appears that the "our" here would be X
Holdings, I think. Them saying that this is, I
think, a petition to the Twitter management team
saying that X Holdings offer to you comes with
certainty, fully funded, faces nominal regulatory -as if to insight them to want to accept the terms or
something like that.
Q Okay. And would you agree with his
statement that the offer that X Holdings made comes
with a high degree of certainty?
A In that we made the offer with the intent
to -- to follow through on it, yes, absolutely.
Based on correct publicly filed information, yes.
Q If you could turn to page 2 of the deck.
A Okay. I'm there.
Q The heading says: "Potential To Be 'Town
Square' For Community Engagement But Plagued by Bots
and Lack of Content Creator Engagement."
Do you see that?
A I do.
Q And then below it, there's a number of
quotes regarding issues with bots.
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used a term that would refer to the -- the things
that he was seeing in his Twitter feed.
Q And before the transaction with Twitter, do
you recall ever discussing that with Mr. Musk?
A No.
Q Okay. What role did you have with regard
to financing or helping obtain the financing of the
transaction, the debt finance?
A That was Morgan Stanley exclusively oversaw
that.
Q So you had no role?
A No.
Q Okay. Did Mr. Musk have a role with regard
to the debt financing?
A No. That was all Morgan Stanley.
Q Do you recall -A Oh, I'm sorry.
Q Do you recall having a call with the -- the
banks that were potentially going to provide
financing, on or about April 18th, to provide them
with an overview?
A I don't, no.
MR. SHANNON: Exhibit 29.
--(Birchall Exhibit 29 was marked for
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Do you see that?
A I do.
Q Have you ever seen those before?
A I don't recall ever having seen this deck.
Q Okay.
A But these -- your question, as specific to
these quotes, I don't recall having seen these.
Q Do you recall there being a fair amount of
knowledge as to potential bot problems at Twitter?
MR. SPIRO: Objection to form.
THE WITNESS: Yeah, I -- I remember Elon,
of course, calling attention to bots on his, you
know, user feed or whatever, but I -- I don't
specifically recall, like, a systemic claim or an
issue that I was aware of.
BY MR. SHANNON:
Q Okay. And when you say "Mr. Musk calling
attention to it," when do you recall Mr. Musk
calling attention to the issue of bots?
A Yeah, again, I -- I referred, you know,
earlier to I think there's a tweet or two that he
sent over time, not -- well, yeah, there have been
some in the recent past. But I'm saying back in
that time period or prior to this, where he, if I
recall, mentioned bots or -- or some -- or spam or
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identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 29, which is a
series of emails. I'm going to start at the end, if
that's helpful.
A Oh, okay. On the backside of the -Q On the backside.
A Okay.
Q And there's an email from an individual at
Morgan Stanley dated Monday, April 18th, 2022, to
others, and he says: We will be hosting a brief
call this evening (April 18) at 8:30 Eastern
Standard Time with the Principal's Family Office to
walk through the investment thesis...
A Yes.
Q Does that refresh your recollection as to
whether there was a call?
A It does actually, yes.
Q Okay. And do you recall participating on
that call?
A I did, yeah.
Q Did Mr. Musk participate as well?
A I don't believe he did.
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Q And what did you do to walk-through the
investment thesis and perspectives on the business?
A As I recall, most of the talking was done
by Morgan Stanley, and there was, again, a snippet
outlining kind of the -- the overarching vision for
the investment as it pertains to fixing Twitter.
Q And when you say there was "a snippet," was
that -- you mean what you presented?
A Yeah. Exactly. So I was a smaller portion
of whatever it is they were communicating to the -that day, and I think they wanted someone from X
Holdings on the call.
Q And did you prepare any materials for the
call?
A I did not.
Q If you turn to the first page, which is an
email from Bradley Diener at Barclays, do you know
who that is?
A No, I don't.
Q Okay. And he refers to a bank call where
the head of the Musk family office got on, and is
that you?
A I would assume so, yeah.
Q Okay. And he suggests you spoke for around
three minutes.
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Do you see that?
A Yeah. That very well could be
approximately how long.
Q Okay. Do you recall getting any feedback
from that call?
A No.
Q And do you recall having any other calls
where you spoke to the potential debt investors?
A No, I don't.
Q Were there any calls where Mr. Musk spoke
to the potential debt investors?
A Not that I know of.
Q So you don't recall any further involvement
with the debt investors after the April 19th call?
A No.
--(Birchall Exhibit 30 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 30 -A Yeah.
Q -- which is a Project X Commitment Letter
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with certain banks.
Do you recall having ever seen this before?
A I don't specifically recall this.
Q Do you -- so you don't recall ever having
been asked to review or approve it?
A I -- I do not recall, yeah.
Q Okay. If you could turn to what is the
fourth page -A Yeah.
Q -- and there's a -- the first full
paragraph starts: "Without limiting your
obligations..."
Do you see that?
A I do see that.
Q And this is a letter, a commitment letter
that's addressed to X Holdings I and X Holdings
II -- correct? -- if you'd go to the first page.
A Yes.
Q And in that paragraph on page 4 that I was
referring to, if you look about seven lines down, it
states: "You agree actively to assist the Lead
Arrangers, until the earlier to occur of (i) a
Successful Syndication..."?
A Sorry. Okay. You're in the middle of that
paragraph?
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Q Yeah.
A Okay.
Q It's about seven lines down. It's the -A Okay. I see it.
Q It says: "You agree to actively assist the
Lead Arrangers until the earlier to occur of (i) a
Successful Syndication (as defined in the Fee
Letter) and (ii) 30 days after the Closing Date
(such earlier date, 'the Syndication Date')..."
Do you see that?
A I do see that, yeah.
Q Now, who at X1 Holdings [sic] was
responsible for actively assisting the lead
arrangers?
A Well, I'm -- again, as I mentioned, we were
leaning on Morgan Stanley exclusively to, you know,
put the debt syndicate together and, certainly, if
there was help needed, a document signed or
whatever, you know, the expectation was, is that
they would call upon me and/or Mr. Musk to address
whatever was needed.
Q And when you say whatever help was needed,
what do you mean? Sign documents?
A Yeah. Again, I -- I've never put a debt
deal together before. So I don't pretend to know
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all that goes into doing that, but, yeah, just
whatever would be needed, including signing
documents.
Q Are you aware of anything else that would
be needed as far as help from X Holdings with regard
to the debt?
A Not that comes to mind.
Q Okay.
--(Birchall Exhibit 31 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 31, which is a
series of emails from the end of April to beginning
of May, and it's from Sean Lynch at Barclays.
Do you know who Mr. Lynch is?
A I do.
Q What was his role?
A As I understand it, he's part -- part of
their -- their senior member banking team.
Q And did you have communications with him
regularly with regard to the transaction?
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A What direction am I turning?
Q You're turning -- it's page -A Oh, I see it. Yeah, yeah. I see the next
one. Sorry.
Q We're moving forward.
A Yeah. Yeah.
Q And you see in the second bullet point, the
second sentence says: "No one seemed bothered by
the mDAU restatement."
Do you see that?
A I do see that.
Q Do you know what he was referring to?
A Well, I believe he must be referring to
Twitter's official restatement of mDAU.
Q Do you know what he meant by no one seemed
bothered by it?
A I don't.
Q Okay. And then above, Mr. Musk responds
"Got it" to the email below.
Do you know if Mr. Musk had
communications -- separate communications with
Mr. Lynch?
A I don't know.
Q Do you recall ever asking Mr. Lynch to
provide you with information?
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A As regularly as he would -- he tried to
reach out a lot. They were eager to be much more
involved than they were, and so to say regularly,
no. The answer is no. But they desired to have
regular communications.
Q What do you mean "they desired to have
regular communications"?
A Well, they just -- they wanted a bigger
role than what they had, and so I think they hoped
that by reaching out a lot, that would increase
their -- the potential of them having a role.
Q If you could turn to what is the -- the
email. It's on the -- the page that's Bates stamped
at the bottom 624.
A I'm there.
Q He's providing you with insight as to the
price of Twitter, the public -- public stock price.
A I see it.
Q Do you have an understanding as to why he
was doing that?
A Again, I think it was just part of his
effort to be helpful and be involved.
Q If you'd turn to the next page on
April 28th, 2022 at 3:50, you see another email from
him to you and Mr. Musk?
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A
No.
--(Birchall Exhibit 32 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 32, which is -appears to be a Microsoft chain of messages among
Morgan Stanley representatives, and on April 28th,
at the very top of the third page, Ms. Claassen says
I'm on -- writes: "I'm on with Jared."
Do you see that?
A I do see that.
Q And do you recall having a call with
Morgan Stanley on or about April 28th in the
afternoon?
A Yeah, I don't specifically have a
recollection of that call, but as mentioned, I spoke
with them, you know, probably several times a week
and at times possibly even daily.
Q And this was on the day of the mDAU recast.
Do you recall ever having discussions with
Morgan Stanley regarding the mDAU recast?
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A I don't recall specific verbiage, per se,
but I do recall it being mentioned.
Q When do you call -- recall it being
mentioned?
A Again, I -- I don't have a recollection of
a specific moment in time, but it was, you know,
picked up in the media pretty soon after, and it
would have been in response to that media coverage.
--(Birchall Exhibit 33 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 33, which is a
series of emails at Morgan Stanley, dated May 3rd
and May 4th, 2022. And in the bottom email, there's
a reference to: "Latest from conversation with EM
is that we are pushing to file the proxy on May 9."
Do you see that?
A I do see that.
Q Do you recall -- do you have an
understanding that the reference to EM is Elon Musk?
A I would think so, yes.
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Q Okay. Do you recall there being a desire
to file the proxy on May 9th?
A I -- I don't specifically recall that.
Q Do you recall a desire to move up the
timing of the deal?
A I don't recall that.
Q Do you recall any discussions regarding
when the proxy would be filed or the timing of the
deal?
A Not specifically, I don't.
Q Do you know why there was a potential
pushing to file the proxy earlier on May 9th?
A No, I don't. I don't know.
Q Do you know who had communicated that to
Morgan Stanley?
A I -- I don't. I mean, obviously, he
references a conversation, but outside of that, I -I do not know that.
MR. SHANNON: We've been going, I guess,
for about an hour and a half. Good time to take a
break?
THE WITNESS: Sure.
THE VIDEOGRAPHER: We are going off the
record. The time is 3:24 p.m.
(Recess.)
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THE VIDEOGRAPHER: We're back on the
record. The time is 3:41 p.m.
--(Birchall Exhibit 34 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 34, which is a
series of emails, dated May 5th with Elon Musk, you,
and members of Morgan Stanley.
Do you have any doubt that you received
those emails?
A No.
Q Okay. And if you look toward the end,
there's an email from Mr. Musk -- actually, starting
at the very bottom of the page that's marked 116,
there's an email from Mr. Grimes regarding two
candidates for chief financial officer.
Do you see that?
A Yes, I do.
Q Did you have an understanding as to who
those two candidates were?
A I mean, just the information that
Michael Grimes had provided as far as their
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background and -- is that what you're asking?
Q One was Mr. O'Malley. Do you know who the
other one was?
A Yes. Kristina something or other.
Q Did you ever speak with them?
A Yes, I spoke with both of them.
Q And what -- when did you speak with them?
A I believe I had a call with each of them
prior to that -- the day that Elon invited them to
both join for, kind of, an in-person job training.
Q And what was the purpose of your call with
both of them?
A Just an initial vetting to see if they were
the type of people that could possibly work with
Elon.
Q Okay. And what type of person can possibly
work with Mr. Musk?
A Well, someone with evidence of excellence
who had operated at the top of their given
discipline and someone who, you know, has a very
high work ethic. And so, yeah, I was just, kind of,
trying to get understand -- understanding for their
backgrounds.
Q And what specifically were you and Mr. Musk
looking for them to do? What position would they
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fill?
A Like an interim CFO role.
Q And would that also be to help with
facilitating and closing the Twitter transaction
itself?
A Theoretically.
Q Okay. And when you say "theoretically,"
what was your understanding as to what role they
would have with regard to the Twitter transaction?
A That they would -- yeah, they would help
work towards that objective, yes.
Q And were they ever hired?
A No, neither of those two were hired.
Q Was anyone ever hired for that position?
A Hired is an interesting word. Bob Swan was
brought on for that position though he -- there
wasn't, like, an employment agreement, per se. So
I'm not sure what definition you're using for hired,
but he was -- he committed to engage in this role.
And after Bob, you know, Antonio Gracias
and -- and his team were engaged in that same
effort, so, yeah.
Q Okay. When was Bob Swan brought on?
A I don't remember the date of when he was
brought on.
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Q Was it after you were having your
discussions with the two potential CFO candidates?
A Yes. Yeah.
Q And what exactly was Mr. Swan's position?
A Again, there weren't titles given, but you
could call it, like, an interim CFO type.
Q And who retained him?
A Again, there was no formal employment
agreement. He was -- it was more, kind of, a
handshake deal.
Q And what was the handshake deal?
A That we needed someone with his expertise
to come and help move things forward, and he agreed
to do that.
Q And how did you select Bob Swan?
A I believe the first recommendation -- or
his name first came up either from Michael Grimes or
Anthony Armstrong, and -- which led to multiple
conversations with Bob, which led to I think -- I
think a reference check with Mark Andreessen, and
then -- and then an initial call where -- almost,
kind of, like a kickoff call.
Q Do you recall when that kickoff call was?
A I don't recall the date of that, no.
Q And it's your understanding that you
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reached out to Mr. Swan after your efforts to hire
and the other potential CFO were not
successful?
A Yes. Though, they weren't the only ones
that we were speaking with, but, yes. The answer to
your question is yes.
Q Who else do you recall speaking with?
A Todd Morgenfeld.
Q Anyone else?
A Not that I recall.
Q And with this handshake deal with Mr. Swan,
was he paid anything?
A No, he was not.
Q Was there an understanding as to how he
would be paid?
A That topic had not specifically been
broached. I had certain assumptions, but that -you know, he was an operating partner of Andreessen
Horowitz and, certainly, very experienced in this
specific area, and I'd like -- you know, I can't
speak on behalf of Elon, or Bob for that matter, but
I'd like to think there was some understanding that
were he to do the job successfully, there would be
some form of compensation. But I -- I wasn't part
of a conversation where that was specifically
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broached.
Q So what was the handshake deal with
Mr. Swan?
A "We need you to help."
He said, "I'm ready to come help, but I am
an interim solution. This isn't what I'm looking to
do long term," and Elon said, "Perfect," because,
you know, he didn't want to commit to someone at
this point for a longer term. And so, he
immediately engaged with the Morgan Stanley team
and -- and with the Twitter team.
Q How long did Mr. Swan fill that role?
A I'm not sure exactly, but as I recall, a
few weeks.
Q Was anyone in that role before Mr. Swan?
A No.
Q And who was in the role after Mr. Swan?
A So I guess "the role" is -- is what I'm
struggling with because who was tapped to -- to kind
of take the baton from Bob was Antonio Gracias
and -- and his team, if you will.
Q When you say "his team," what do you mean?
A I believe there's one other of his business
associates that was specifically helping. It's
Brad, and I'm not sure the proper pronunciation of
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his last name. It starts with an S.
Q While Mr. Swan was working on the deal, did
he report to you or Mr. Musk?
A I mean, there were -- specifically, he
answered to Elon, but he did provide reporting to
both -- both of us.
Q Did you or Mr. Musk direct him as to what
to do?
A In some cases, yes.
Q Okay. Let's start with you. What did you
direct Mr. Swan to do?
A Well, again, there was that initial,
general discussion where it was outlined what he -what the expectation was.
And as far as what specifically I directed
Bob to do, it -- I think mostly my direct -- my
directives were mostly regarding logistics as it
pertained to updates and, you know, information
requests and things like that.
Q Is there anything specific that Mr. Musk
directed Mr. Swan to do?
A I believe the answer is yes, but I can't
think of specific things.
Q You said you had the initial conversation
with him regarding expectations. What -- what was
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the expectation?
A We needed someone to help -- help us
consummate the transaction.
Q Help you consummate the transaction in what
regard?
A There were a lot of moving parts, and, you
know, he's been there, done that as a CFO, and I
certainly hadn't, and, you know, Elon was running
four other companies and needed someone, like, in
the day-to-day, minute-to-minute weeds, and -- and
to be his, you know, eyes and ears, and Bob was that
guy.
Q And what was your view as to the quality of
the work that Mr. Swan did in the period of time
that he was filling this role?
A I think -- well, first of all, I don't
pretend to be the -- to have the qualifications to
perfectly critique, you know, his quality of work.
But he seemed to -- up until he left the country and
was on vacation and, quite literally, phoning it in,
he seemed to be engaged and -- and doing good work.
And then there was a moment where -- one
particular analysis was where we were looking for,
you know, ultimately an answer on debt coverage that
it just didn't feel like it was as rigorous as it
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could have been, and that -- that was, I guess, my
one constructive criticism that I had. Warranted or
not, that was my feedback to him.
Q And during -- of the several-week period
that Mr. Swan was filling this role, how much of
that period was he, as you suggested, I believe you
said in Europe and nonresponsive?
A I believe there was -- well, there -- it
was meant to be a two- to three-week -- as I recall,
a two- to three-week trip and was -- I'm not saying
nonresponsive. I'm just -- like, he was -- and he
was very open about, you know, his plans to go on a
family vacation. But when you're dealing with
someone who -- who doesn't -- who rarely vacations
and when he does, it's like a one or two night type
thing, it's just hard to have a regular working
cadence that is seen as committed and rigorous.
And so I believe -- I don't know how far
into his trip he had been, but it was, at this
point, I believe in excess of a week when ultimately
Elon said -- or said something to the effect of, if
this is the approach you're going to take -- or if
you can look me in the face, you know, with a
straight face and -- and do this type of work, then
we're probably best parting ways. And Bob responded
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something to the effect of, "Correct. I'm looking
you straight in the face, and it's best to part
ways."
Q And just so I understand, so approximately
your recollection is over a week of the period of
time that he was serving in this role, Mr. Swan was
on a family vacation?
A Again, I recall it was going to be a
two- to three-week vacation and that he had been -had been in the midst -- bless you.
MR. SHANNON: Bless you.
THE WITNESS: -- in the midst of this
vacation over a week and -- and possibly even
getting to the second week. I just don't recall
exactly how that lined up, but -- but, yes.
BY MR. SHANNON:
Q And it was, you know, over a week, coming
into the second week when Mr. Musk, in essence,
terminated the relationship?
A Yes.
Q And you mentioned Mr. Gracias taking over
for Mr. Swan. Who is Mr. Gracias?
A He's one of the chief principals and I
think founders of Valor Capital [sic].
Q And had you ever dealt with him before?
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A I had.
Q In what capacity?
A He -- Valor is -- has been an investor in
several of Elon's companies, and I had helped with
the capital raises in multiple of Elon's companies
and corresponded with Antonio in that capacity.
Q And what experience does Mr. Gracias have
with regard to the role that you were envisioning
him filling, which was the one that Mr. Swan had
previously filled?
A I don't pretend to know the extent of that.
I know that he had I think an early career in
banking and, you know, M&A transactions, and, again,
the individual at his -- at Valor that he was
leaning on, Brad, and I apologize. I can't remember
his last name -- I believe is Valor's CFO, and so
has more of kind of that accountant type pedigree,
and so a combination of the two, Elon felt like, you
know, brought to the table what was needed.
Q Okay. Who determined to retain Mr. Gracias
and Valor for this position?
A Ultimately, that would have been Elon.
Q Okay. Did you consider any other persons
for it?
A Well, again, Todd was -- was, again, part
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of the discussion, but I think at this point his -either the CEO had left or some -- something had
happened, and he was pretty head down focused on
things at his company and so -Q Who was it that proposed that Mr. Gracias
fill this role?
A I believe that was Elon.
Q And what were the terms of Mr. Gracias or
Valor's engagement?
A Again, I think it was similar to -- to the
Bob Swan arrangement, where Elon said, "We need
help, and you come do it?" And Antonio was willing
to answer the call and come help.
Q And how much was Mr. Gracias or Valor paid
in connection with the work they did?
A I'm -- I'm not aware of a financial
arrangement between Antonio and/or Valor beyond
benefitting as an investor or as a desired -- as
a -- yeah, as an investor.
Q Okay. When you say you're not aware of a
financial arrangement, you mean you're not aware of
him being paid for the work that he did?
A Oh, yeah, to my knowledge there was no
payment.
Q And how soon after Mr. Musk determined to
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terminate Mr. Swan did someone reach out to
Mr. Gracias to determine if he was available to do
it?
A I don't recall the -- the passage of time
between one and the other. I'm not sure.
Q You don't know how long that was?
A No.
Q Who reached out to Mr. Gracias to ask him
to -A I think it was Elon.
Q Did you have any role in reaching out to
Mr. Gracias?
A I did have a discussion and -- and did
provide the introduction to the banking team as I
recall.
Q What do you recall of your discussion with
Mr. Gracias and the introduction you just
referenced?
A Just, again, reiterating what I knew Elon
was -- was looking for him to -- to do and then -and then asking the -- asking the -- the banking
team to get him up to speed as quickly as possible.
Q And do you know what the banking team to
get -- did to get Mr. Gracias or Valor up to speed?
A I don't know all that they did other than,
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you know, share financial models and things like
that.
Q And after he agreed -- well, let's take a
step back.
Did Mr. Gracias and Valor agree to fill
this role?
A Yes.
Q After they did so, what's your
understanding as to what actions they took in this
capacity?
A Again, I know that they engaged the banking
team and -- and then just kind of took it from
there. I wasn't involved in their, you know,
process of bringing him up to speed.
Q Do you recall any interaction you had with
Mr. Gracias or Valor regarding what they were doing
in the role where they had replaced Mr. Swan?
A There -- there were definitely a few
different conversations where -- I don't
specifically recall, like, the subject matters
covered, but in their attempt to -- to get up to
speed.
Q And do you recall anything generally that
was said regarding your conversations with
Mr. Gracias and anyone at Valor?
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A I don't specifically recall what those
conversations were.
Q You mentioned there were conversations
about getting up to speed. Do you recall any
conversations you had with Mr. Gracias or Valor
regarding the work they were doing in the position
that was previously filled by Mr. Swan?
A Again, I -- I provided the information of
kind of what Bob had done for us or the role he had
filled and -- and what we had hoped, you know, they
could step in, and I think Elon had already primed
him on -- on that. But, you know, there were
several conversations with Antonio about what he was
seeing, what his concerns were, what, you know, his
view of the financial models were, but I -- you
know, I can't specifically recall that on this date,
you know, we discussed this topic.
Q Other than as an investor -- potentially
investor in Twitter, had there been any previous
social or personal relationships between Mr. Gracias
and Mr. Musk?
A Yeah. I think they're long-time friends.
Q What's your understanding of that
friendship?
A As far as, like, how they --
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Q You said they're long-time friends. What's
the basis of that statement?
A I actually don't know how they first met,
but I -- from what I understand, they've known each
other for a long time, and, you know, Antonio has
been a long-term investor in several of Elon's
companies, and -- and, you know, I think various
social gatherings, you know, they've both been, you
know, present at times.
Q And how long did Mr. Gracias fill the role
as the interim CFO?
A Well, he -- he, in essence, is still
quasi-advising as we have -- you know, he's
basically said, you know, "We need, you know, a
specialist," if you will, and so they're filling in
and helping however needs be, but, you know, he's of
the opinion that a Bob Swan type is -- is someone
that, you know, we ultimately need to fill the role.
Q And when did he first raise that with you
or Mr. Musk?
A That was just in the recent week or two, as
he dug in and got up to speed and understood the
models.
Q Did he explain to you why he thinks that
you need someone like Bob Swan rather than
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Mr. Gracias or Valor to fill that role?
A I don't pretend to know all the reasons.
If -- you know, I recall him saying that there are
certainly a lot of complexities involved in a
transaction like this, and, you know, he's not -Antonio isn't in the trenches of day-to-day M&A.
Q Is he still advising you -A Yes.
Q -- with regard -- and in what capacity is
he doing that? What is he advising you of?
A Again, just on the general -- just, like,
general deal progress and structure.
Q What is the general deal progress and
structure?
A Well, we seem to be at a little bit of a
standstill.
Q I guess that's my question. Given the
standstill, what is he doing?
A I think he stands at the ready to, you
know, help as needed, and, you know, clearly the
legal proceedings have stalled, you know, things
moving forward, and so it's not like there's
ongoing, you know, meetings with him, where he's got
different opinions or models. It's just he -- he
stands at the ready to be helpful.
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Q And has that been true since Mr. Musk
terminated the merger agreement?
A As I understand it, yes.
Q Okay. So since that point in time, his
basically role has been to stand ready to move
forward if the transaction moves forward?
A Yeah, to be an adviser and helpful
wherever, however needed.
Q But, nonetheless, in the last few weeks he
suggested to you that you need someone more
qualified. Why did he do that?
A I think that he's always solving -- you
know, in his role as adviser, is trying to be
helpful.
Q Did he recommend anyone?
A I believe he -- let's see.
Yeah, I believe he mentioned he had some
thoughts on -- on some different firms that could be
potentially helpful.
Q Who did he recommend?
THE WITNESS: Am I able to ask you any
questions in this?
MR. SPIRO: (Shaking head.)
THE WITNESS: Okay. Sorry. Because he -let's see. He recommended -- or was part of
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recommending three different firms -- or to
consider, and I'm remembering one of the principals
at one of them, but not the name of the firm and not
remembering the name of the other firm, but
remembering the name of the third firm. So I don't
know how helpful that is.
BY MR. SHANNON:
Q And are you having communications with
those firms?
A There's been initial conversation with each
of those firms.
Q Why are you having initial conversations
with those firms given that the current transaction
is in litigation?
A Well, again, we -- our plan all along has
been -- well, from the get-go has been to prepare
ourselves in a way that -- to -- to execute the
transaction, and, obviously, there are a number of
ways the litigation could go, and I don't pretend to
know how that -- that will go.
--(Birchall Exhibit 35 was marked for
identification.)
--BY MR. SHANNON:
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Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 35, which is an
email, or a series of emails, between you and
Ms. Claassen, dated May 5th, and May 6th.
A Yes.
Q Do you see that?
A I do.
Q Okay. And you see that she is sending you,
on the bottom email on the 5th, May 6th discussion
topics.
Do you see that?
A I do.
Q And what was your understanding of the
purpose of that document?
A These were proposed topics that we wanted
to cover in the meeting on site with Twitter.
Q Okay. And who came up with this list?
A I -- I mean, Kate, of course, is sending
this, but I think it's them memorializing the
collective group's, you know, questions, but -- but
it was the banking team -- oh, sorry -- it was the
banking team that created this list.
Q The banking team at Morgan Stanley?
A That's right.
Q Okay. And it refers to May 6th discussion
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topics. Was there to be a meeting on May 6th?
A That's right.
Q And did you attend that meeting?
A I did.
Q Where was the meeting?
A I believe the Twitter headquarters in
San Francisco.
Q And who else attended?
A Mr. Musk attended. There were some in
person, some virtual. But the Morgan Stanley
banking team attended; Kate, Anthony, and Michael.
The two perspective CFO candidates attended, the
ones that you referred to earlier.
Ned was there from Twitter, lawyers from
Twitter. Parag was out sick with COVID, but was
tuned in via -- via Zoom. I believe Alex attended
via Zoom, Alex Spiro, and a handful of other lawyers
as well.
Q Okay. But you and Mr. Musk were in person?
A We were.
Q Okay. And before we get to the meeting
itself, you responded to Ms. Claassen in the email
at the top: "Good outline, although Elon may blow
it up once there."
What do you mean by that?
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A Well, I mean, we could be as organized
and -- as -- as we want. We could propose something
specific to their team, but once there, he was
certainly going to take the meeting whatever
direction he felt impressed based on the answer
being given.
Q And you note under that: "He will also
specifically want to review all contracts where the
Company has obligations to make payments to third
party vendors."
Why did you add that?
A In some discussion, this had been one of
the topics that had been covered and him wanting to
know, like, what -- where the cash obligations of
the company were, the reoccurring cash obligations.
And I don't recall specifically if this was -- it
came from, you know, a discussion that we'd had.
Q How long was the meeting at Twitter on
May 6th?
A I don't recall specifically, but I believe
it was a couple hours.
Q And can you tell me what you recall of the
meeting?
A Well, there were a lot of pleasantries
exchanged. There were, you know, a number of
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different topics discussed. You know, Elon was
genuinely curious to, you know, learn a little bit
more about advertising among other things.
mDAU was touched on. Bot calculation was
touched on. Data center spend was touched on.
That's -- that's what I recall off the top
of my head.
Q Okay. You noted a number of things that
you recall being touched on. Do you recall any
specific statements that were made at the meeting
regarding any of those subjects?
A I -- you know, I think because of the
reaction, what is most clear to me was when the
question about bots was asked and Ned answered.
From what I recall, one of -- one of the two
prospective interim CFOs asked a question -broached the topic of bots, and Elon then said,
"Yeah. So explain how -- how is it that you get to
this -- how is it that you get to this number?"
And Ned explained the -- the process of
serving a hundred accounts each day and having
someone, kind of, eyeball those and confirm whether
or not it -- you know, their bot definition. And
Elon incredulously asked, "You mean to suggest this
is done manually?" And in -- you know, I -- you
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know, there we were in San Francisco, you know, one
of the tech hubs of the world with a high-tech
company, with a software company, being told that
the -- that the data was -- for one of the most
important drivers of revenue was being derived by a
very manual and -- and mundane process, and so he
was -- he was quite shocked.
And Ned said, yes, and -- and as I recall,
Elon said, you know, "What's the criteria being used
and, you know, how is it that you determine whether
someone's a bot?"
And Ned said something to the effect of,
well, we've got, you know, protocol. I can -- you
know, I'll get it for you. Made it sound like, you
know, there was a one-pager sitting on his desk
somewhere that he could just go grab.
In fact, I think even one of the
Morgan Stanley bankers specifically asked, "Do you
have it here with you?" And he said, "No. No. No.
I'll get it for you." And he may have even
said, "I'll get it for you tomorrow." And the
meeting moved on.
There was an acknowledgment, I recall, by
Elon, and then Ned reinforced it that, you know,
Elon's Twitter experience was unique and there would
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naturally be a larger number of bots and spam on his
feed given his profile as a Twitter user.
Q Do you recall anything else that was
discussed at the meeting regarding bots or spam?
A I -- nothing else that comes to mind.
Q Do you recall, other than the conversation
you just talked about regarding bots and spam, any
other specific issues discussed?
A Again, there were -- there was a somewhat
lengthy discussion about how advertising online -how advertising revenue funds a social media
company. This is a new topic for Elon, and -- and
so he was genuinely interested. Twitter was
genuinely surprised that he was so interested and
even expressed that they would communicate this to
the team that, you know, Elon's not going to
abolish, you know, advertising because he had been
so publicly vocal, kind of, against marketing and -or traditional marketing and advertising for
Twitter -- or for Tesla. Sorry.
And -- and then like I said, there were -there were some -- somewhat in-depth questions
regarding data centers between Elon and Parag, and
then some discussions on mDAU, but I don't recall
specifics beyond that.
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Q Would you describe the meeting as cordial?
A I think the overarching feeling was that it
was cordial.
Q Would you have described it as productive?
A I think the net effect was that it was
productive.
Q You spoke a moment ago regarding the -what you recalled of the discussion relating to
bots. About how long do you recall that discussion
lasting during the meeting?
A As I recall, that was maybe five to ten
minutes.
Q Did you have any meeting or discussion with
Mr. Musk, or his advisors, after that May 6th
meeting to sort of discuss what occurred?
A I did.
Q When -- when did that occur?
A Well, I -- I left the building with Elon
and rode in his car to the airport and then rode in
his plane from San Francisco to Austin.
Q Was anyone else with you?
A Certainly there would have been security
with us. I mean, at least in our vicinity. I don't
believe there was -- I don't recall anyone else
being there beyond security.
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Q And what do you recall discussing with
Mr. Musk during that car ride and then plane ride
relating to Twitter?
A He was shocked at the answer that Ned had
given to the question about bots. He -- what I
think initiated as significant interest turned into
a concern thinking, "wow, my -- my spidey senses,
you know -- you know, are really" -- you know,
initially after their statement and, you know, it
causes one to question, you know, just I guess as a
side note, if I put together a spreadsheet with
hundreds of data points and one small cell is -- is
wrong, you know, he then rightfully questions
whether all the other cells are wrong.
And so even though the restatement by
Twitter was relatively, you know, minor in terms of
scale, it causes, you know, one to question, all
right, what else? What else?
And so, yeah, he was -- he was just
shocked, but held out hope because Ned had committed
to getting the -- you know, the information to him,
per the request in the meeting, and held out hope
that maybe, possibly, there was some -- something
that would cause him to not be as alarmed. But he
was -- he was very alarmed leaving that meeting for
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sure.
Q And during the entire car ride and plane
ride back to Austin, do you recall any issue you
discussed with Mr. Musk regarding Twitter other than
the bot issue you just described?
A Well, I mean, the bots ultimately -- like,
the reason that's significant, obviously, is -- is
ultimately mDAU, which, you know, it leads to the
bigger question of how many users can you actually
monetize. And -- and so certainly that was part of
the discussion, you know, who -- like, what
percentage of these numbers that we were being given
can actually buy a toaster.
And the answers given caused great, you
know, questions -- or caused great concern and -and more questions about how many people could
actually buy a toaster. How many Twitter users
could buy a toaster. And -- and that's ultimately
what drives the revenue model.
So -- so there was, you know, relating the
bots to mDAU and the revenue model and -- but, I
mean, it's not as though every minute of our drive
and our flight back was focused on the meeting, per
se. There were plenty of other topics covered.
Q But other than the ones you just described,
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you don't -- do you recall any others relating to
Twitter that were discussed either during the car
ride or the plane ride?
A I don't specifically recall additional
topics. Those were definitely the most salient
ones.
Q Did Mr. Musk give you any assignment or ask
you to do anything with regard to those topics?
A Well, the assignment was, and as I
understood it, the banking team fulfilled it, was to
immediately and formally request that the
information Ned had committed to providing be -- be
provided ASAP.
Q Okay. Anything else?
A No, not that I can remember.
MR. SHANNON: Where are we? Exhibit 37?
THE COURT REPORTER: No. Exhibit 36.
--(Birchall Exhibit 36 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 36, which is a
series of texts that were produced in this case from
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Mr. Musk, and I'd ask you to refer to the ones that
are toward the bottom and specifically these are
with Michael Grimes.
Do you see that, starting with the one
5/8/2022?
A I do see that, yeah.
Q Okay. And that says -- and it's at
17:54:10. It says: "Let's slow down just a few
days."
Do you see that?
A I do see that, yes.
Q And that's with Michael Grimes, and he was
with Morgan Stanley, right?
A Correct.
Q And what was his role at Morgan Stanley?
A A senior banker.
Q Okay. And then it continues on: "Putin's
speech tomorrow is extremely important. It won't
make sense to buy Twitter if we're heading into
WW3."
Do you see that?
A I do see that.
Q Do you recall Mr. Musk ever raising with
you concern about buying Twitter given the potential
situation in the Ukraine?
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A No, I don't recall that.
Q Were you aware he had sent these texts to
the banker at Morgan Stanley?
A No.
Q And was Mr. Musk the person who was giving
direction to Morgan Stanley as to how to proceed?
A Well, I wasn't aware of this -- you know,
these discussions, per se, but I think there was a
combination ultimately of -- of providing
Morgan Stanley with information, but -- but Elon
ultimately was, I think, the final say on -- on
everything.
Q So he's the final say on how quickly the
deal proceeds and whether it's slowed down or not,
correct?
A Yeah. I think that's fair.
Q And then if you look at -- at the top of
the second page, and this is on May 8th, and it's a
carryover. So you can look at the others for
context if it helps.
The very top email says: "If that number
is more than 50 percent or lower, which is what I
would guess based on my feed, then they have" -"then they have been fundamentally misrepresenting
the value of Twitter to advertisers and investors."
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Do you know what that's a reference to?
A Well, it appears to be referencing mDAU
if -- because he's, prior to that, referencing
monetizable users.
Q And do you know what he's saying, when he
says: Based on -- "What I would guess based on my
feed."
Do you see that at the top?
A "What I would guess based on my feed."
Yes. So as mentioned before, he -- you
know, his personal experience on Twitter is his
personal experience and, you know, to he's
referencing what he's seeing in his own Twitter
feed.
Q And I believe you suggested at the May 6th
meeting there was a suggestion that given Mr. Musk's
position on Twitter, that his experience may be
different than others.
What do you recall in that regard?
A Just exactly what you said, that that
was -- and I think he realizes that. I -- the -but I think he's also realizing that it's not -that there's some -- it's somewhere -- there's
somewhere in between, you know, what he's seeing,
which might be on the extreme of the scale, and what
JANE ROSE REPORTING
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Jared Birchall
is being purported and ultimately not supported per
information provided to us by Twitter. And so
he's -- again, I don't -- I can't, like, get into
his head here, but that's what it appears that he's
seeing.
Q And when you say what he's seeing which may
be the extreme on the scale, what do you mean by
that?
A Well, again, he's referencing his Twitter
feed -- right? -- and his Twitter feed's unique.
Q And the next text from Mr. Musk to
Mr. Grimes states: "To be...clear, this deal moves
forward if it passes due diligence, but obviously
not if there are not massive gaping issues."
Did Mr. Musk ever suggest to you that the
deal would move forward only if it passes due
diligence?
A Well, I think -- I think his use of that
word is -- is -- and, again, I can't speculate, but
I believe his use in this moment of that term is not
referencing the deal docs, per se, but referencing,
you know, that either there is fraud in publicly
stated documents or there isn't, and the diligence
that we had done involved publicly traded -- or
sorry -- publicly stated documents and financials,
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and -- and so I believe that's the diligence that
he's referring to there.
Q Okay. And when you say the diligence you
had done, what do you mean?
A Well, going back to our previous
conversations. I can't speak to all of the
diligence that Elon had done, but we certainly
leaned heavily on the banking team to provide us
with data that came directly from publicly filed
statements.
MR. SHANNON: 65, please.
--(Birchall Exhibit 37 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 37, which is a
series of emails dated, at least the later ones,
May 8th and May 9th, and I'm interested in those.
But starting on the top of the second page,
you'll see there's an email from Elon Musk to Sean
Lynch at Barclays.
Do you see that?
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A I see that.
Q Okay. And you are copied on that, correct?
A Right. I believe so, yeah. Yes, I am.
Q And Mr. Musk notes: "A serious concern
coming out of the diligence meeting was Twitter's
publicly stated calculation that only 5% of active
users are bots or multiple accounts for one person."
Do you see that?
A I do.
Q Okay. And was that the concern he raised
with you when you were in the car and on the plane?
Is that -A Yeah, that was definitely part of it.
Q And then if you look, there's a response
from Mr. Ihsan at Barclays, which is May 9th at
10:10.
A Yeah, I'm looking at that.
Q And he says: "I'm sure you've been
considering it, and may have discussed some options
with your counsel, but this could present you with
an opportunity to revisit the [sic] price."
Do you recall that?
A I do vaguely, yeah.
Q Okay. And do you recall any discussions
with Barclays or anyone else about using this as an
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opportunity to revisit the price?
A I don't.
Q You respond to Mr. Ihsan and others to say:
"Please allow me to suggest that further
thoughts/ideas be discussed via phone with counsel
involved."
Why did you send that email?
A Best practices.
Q And why is that best practices?
A Well, counsel over time has tried to help
me understand that, and so, you know, when you -when there are sensitive topics being discussed,
it's always best to involve counsel.
Q And why would you have it over the phone?
A Well, the -- the first obvious reason is
that written communication isn't always the clearest
to understand sentiment and whatnot in it, but also,
you know, again, when you are discussing sensitive
topics, sometimes, you know, just best practices it
makes the most sense to do that via phone rather
than via email.
Q And that way there won't be a written
record of it?
A In some cases, yeah.
MR. SHANNON: 66.
JANE ROSE REPORTING
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September 21, 2022
Jared Birchall
Exhibit 38.
--(Birchall Exhibit 38 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Exhibit No. 38, which is an email to
Mr. Musk from Sean Lynch, who we talked about
previously, and you and others.
A Yeah.
Q He notes: "Very ugly day out there.
Strain is being felt beyond equities and into credit
where the [sic] backdrop has become more challenging
to price and allocate risk."
Do you see that?
A I do.
Q Around this time, were you following the
market and seeing how it was proceeding and how it
might affect the Twitter deal?
A Definitely following the market, and I'm
sure there were thoughts, you know, as it pertained
to Twitter as well.
Q And could it affect both your ability to
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obtain debt and equity financing?
A I guess potentially if -- if one of the
debt providers chose to break their contract and/or
an equity commitment.
Q Okay. But how about soliciting equity
commitments? Could it impact that?
A Oh, theoretically, it definitely could.
Q Could it also impact what you perceive to
be the value of Twitter?
A The weakness in the macroeconomic
environment?
Q Yeah.
A I -- I mean, again, we were looking out
based on some macro changes at the company and not
all just macro, but out the next three to five
years, and, you know, interim blips in the market or
specific company, Tesla being the one that we most
regularly experience this with, are just that,
they're blips, and we don't, you know, draw
long-term conclusions. It doesn't change Elon's
long-term strategy with those companies.
MR. SHANNON: Exhibit 38.
THE COURT REPORTER: This is Exhibit 39.
MR. SHANNON: Oh, Exhibit 39. Thanks.
---
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(Birchall Exhibit 39 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 39, which is a
series of emails, the latest of which, and the ones
I'm going to focus on, are May 13th, and they
involve Mr. Musk, Mr. Lynch, you, and others.
Do you see those?
A Mm-hmm. I do.
Q And you have no reason to doubt that you
sent or received those emails?
A No.
Q At the top of the second page is an email
from Mr. Musk. He says: "One practically has to
commit murder on camera to get fired at Twitter, so
their performance must be pretty bad!"
Do you see that?
A I do.
Q Do you know what that's referring to?
A I think it's a response to his prior email
here where he references reports of people leaving
Twitter, but that's what I assume that refers to.
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Q Okay. Did you ever inquire who was leaving
Twitter?
A I -- I didn't ask Sean who he was referring
to here.
Q Do you know if any effort was made to
determine who he was referring to?
MR. SPIRO: Objection to form.
THE WITNESS: I -- I don't know.
BY MR. SHANNON:
Q Okay. And then in that same email,
Mr. Musk states: "I suspect Twitter is looking at
very bad numbers this quarter."
Do you see that?
A I do.
Q Do you know what he means by that?
A I -- I don't, other than what it says.
Q Do you have an understanding as to what his
basis was for suspecting that Twitter was looking at
very bad numbers?
A I don't.
Q Did you ever inquire?
A No, I didn't.
Q Then -- did he ever discuss with you what
he expected Twitter's performance to be that
quarter?
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September 21, 2022
Jared Birchall
A No.
Q Did you inquire ever what he meant by that?
A I didn't.
Q If you look -A I mean, I -- it seems pretty -- again, I
just -- it's him suspecting that there could be bad
numbers. That -- I don't know. Like, it seems
pretty direct what he's meant by that.
Q If you turn to the first page, which is the
email from -(Phone ringing.)
THE WITNESS: My apologies. Let me turn
that off.
BY MR. SHANNON:
Q If you need to take it -A No, I don't need to take it. I thought I
had it off and I didn't.
It's now off.
Q There's an email on the first page from
Mr. Lynch to Mr. Musk, you, and others, and the
second line says: "Is there a renewed focus at
target on speed and urgency in which they are
sharing info? Is the company giving monthly
financials?"
Do you see that?
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A I do see that.
Q Do you know what he's referring to as to a
renewed focus on speed and urgency?
A I don't know what he's referring to. He
seems to be, you know, referring to a slower cadence
for providing data and then asking if there has been
an improvement in that.
Q Do you recall any communications with
Mr. Lynch regarding information that Twitter was
providing to you or your advisors?
A I don't.
MR. SHANNON: 142.
Okay. That's fine.
BY MR. SHANNON:
Q Mr. Birchall, you testified previously that
Morgan Stanley led the process as far as soliciting
equity investors, correct?
A That's right.
Q Did they provide you with updates regarding
where they stood?
A They did.
Q Was there a specific target that you were
seeking with regard to the amount of the equity
participation?
A Kind of Phase 1 of -- of -- as I recall,
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the Phase 1 effort was fielding all inbound calls,
and there's, you know, kind of a never-ending line
of people that want to be involved in an Elon deal,
and these people have been lined up at SpaceX and
The Boring Company for years. And when the Twitter
deal was announced, the line shifted to Twitter, and
so most of those initial commits were just people
that -- it was fielding inbound calls.
Q And my question may not have been clear.
Was there a specific, for example, amount that X
Holdings and Mr. Musk were seeking as far as the
amount of equity co-investment?
A Yeah, I don't recall us putting a number on
that. I guess where I was trying to go with my
answer was that we were in the middle of that
process and would -- would still be in the middle of
that process, were we not in our current
circumstance. And so I think it was just a part of
a process that was ongoing that we saw continuing to
grow to some degree, but didn't actually put a
specific target on it.
Q Okay. And when you say you were in the
middle of that process, what do you mean?
A Well, again, we were fielding all of these
commitments, and when the -- you know, when the
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issue of termination, when the issue of questioning
data, when the lack of cooperation in providing data
that we had requested became a serious issue and
definitely slowed down the -- our ability to
continue to push that, you know, ball forward.
Q When did that first start to slow down?
MR. SPIRO: Objection to form.
THE WITNESS: Yeah, so, again, it was -- as
you can see by the emails, it -- well, you would see
by the emails, like, the -- the volume of referrals
over to the banking team and things like that, and
so I -- I think the -- the email traffic would tell
that story.
BY MR. SHANNON:
Q What's your recollection as to when it
started to slow down?
A I -- frankly, I just don't recall when that
would have been. It was us getting through that
initial wave of -- you know, of those people. And I
don't recall exactly when it was, but when it became
apparent that we weren't going to be given -- or we
weren't being given critical information that drove
the revenue model that ultimately determined our
ability to service debt and everything.
Q And -- well, when did it become apparent to
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September 21, 2022
Jared Birchall
you that you were not being given information?
MR. SPIRO: Objection to form.
THE WITNESS: Well, yeah, I mean that -that became apparent shortly after the -- the
in-person meeting where Ned had committed in person
to -- that was the first sign that I can recall
where he'd committed in person to provide certain
information that never materialized.
BY MR. SHANNON:
Q And when you say "the in-person meeting,"
you mean the May 6th meeting?
A May 6th.
Q And what information did he commit to
provide, in your recollection, that never
materialized?
A Well, specifically was the -- the exact
process that was used by the human reviewer to
quantify bots, and there were several attempts at,
kind of, dancing around it and big picture
conceptualizing it, but never was the specific
criteria provided and -- and -- as well as the data
that our data scientists needed to be able to do the
work that they were doing.
Q What work were they doing?
A Analyzing data. Massive -- or attempting
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to analyze massive amounts of data.
Q For what purpose?
A To, you know, verify claims that had been
made by Twitter.
Q What claims that had been made by Twitter?
A The 5 percent bots.
Q Any other claims that had been made by
Twitter?
A I -- that was the specific one that was
being addressed.
Q Okay. And when you say the 5 percent bot,
what specific claim are you referring to?
A So they've repeatedly claimed that there
are 5 percent or less bots on there.
Q Okay. And are you talking about the
specific SEC disclosure?
A Yes.
Q Okay. Any other disclosures you're
referring to?
A No, that's the main one that I'm referring
to.
MR. SHANNON: Exhibit 40.
--(Birchall Exhibit 40 was marked for
identification.)
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--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 40, which is an
email from Kate Claassen to Mr. Musk and you and
others, enclosing certain information, and it's
dated April 29th, 2022.
Do you recall receiving this?
A Generally, yes, but I don't recall it in
detail.
Q Okay. And attached to it is a deck that is
called "Unlock Twitter's Extraordinary Potential."
Do you see that?
A I see that, yeah.
Q Do you recall having seen that before?
A Before receiving this?
Q No, before I just showed it to you now.
A Oh, yes, I believe so.
Q And was that a document that Morgan Stanley
had prepared?
A Yes.
Q Okay. And what was your understanding of
the purpose of the document?
A Just to put in presentation form Elon's
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vision.
Q And were they using it for any other
purpose, such as soliciting equity investors?
A I wasn't privy to -- once I passed them on
to -- passed the investors on to go through the NDA
and financial model discussions, I -- I wasn't privy
to those conversations.
Q Do you recall having any communications
with Morgan Stanley, or anyone else, regarding the
deck that is attached as Exhibit 142?
A If I recall correctly, maybe -- I don't
recall discussions specifically with Morgan Stanley
on this. I was trying to recall when -- the first
time I saw this, but I just can't quite -Q Do you recall discussions with anyone
regarding it?
A This was potentially shared in our meeting
when they came to Texas, but I -- I'm not certain.
Q The meeting when Morgan Stanley came to
Texas?
A Yeah.
Q Do you mean the April 20th meeting?
A Yeah, or some portion of this or a version
of this I believe was -- was shared.
MR. SHANNON: Exhibit 41.
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
--(Birchall Exhibit 41 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Did you -- actually, we'll start out,
Mr. Birchall, you've been handed what's been marked
as Birchall Exhibit 41, which are a series of emails
I'll note that you are not on.
Do you recall ever having seen these?
A No.
Q They were produced in the litigation.
A No.
Q The first email is from someone named
Justin Kahl. Do you know who that is?
A I don't.
Q And he talks about "sharing notes and
presentation this morning from the meeting with
Morgan Stanley on Twitter."
Do you see that?
A I do see that.
Q Okay. Was it your understanding that
Morgan Stanley was meeting with potential investors
relating to Twitter?
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A Yes.
Q And did you review and approve the
presentations decks that they were using?
A Again, I believe that the presentations
and -- and decks that were being presented were -- a
version of them at least -- were -- were shared in
that meeting in -- on -- I think you said it was
April 20th in Austin.
Q And did you -- with regard to at least the
decks that Morgan Stanley had prepared and intended
to share with potential investors that you saw, did
you raise any objections or propose any changes to
those decks?
A I don't recall.
Q Do you recall Mr. Musk raising any
objections or proposing any changes to those decks?
A I do not recall.
Q Do you recall ever participating in calls
with potential investors regarding Twitter and what
the plans were for Twitter?
A Yes, but, again, as previously mentioned, I
was kind of a conduit to a pass-off to the bankers,
and so my -- any discussion that I had with the -with the bankers was -- I'm sorry -- with -- with
the potential investors was a very high-level kind
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of mission-oriented discussion and -- and then would
pass them for -- you know, pass them to
Morgan Stanley.
Q Well, and my question may not have been
clear.
When Morgan Stanley made presentations to
potential investors, whether at a road show or
otherwise -A Mm-hmm.
Q -- did you ever participate in that?
A Oh, there was a call, like, a
back-to-back-to-back Zoom call with potential
institutional investor enrollees that -- well, but
technically that wasn't -- that wasn't the
Morgan Stanley presentation. So I believe the
answer to your question is no.
Q Well, when you say it wasn't a
Morgan Stanley presentation, who was it?
A That was just Elon sharing the vision of -of -- his vision of what Twitter was.
Q And who did he share that with?
A Institutional investors.
Q How was that arranged?
A I believe that the -- that the
Morgan Stanley team stacked up interested investors
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in a Zoom call format.
Q And do you recall what institutional
investors participated in that?
A I recall a few of them, but I'm sure
there's a list here somewhere of who would have been
there.
Q Who do you recall?
A Well, you know,
was part of that.
institutional group was a part of
that. I believe
and his team were a
part of that -who is an
institutional investor through
, and
there were a handful of others.
Q And did -- Morgan Stanley, were they on the
calls?
A I don't believe they were.
Q Was there any presentation, like,
materials?
A No.
Q And what do you recall Mr. Musk saying
during these calls as to his vision?
A I mean, as outlined in, you know, all the
materials that we viewed, his big picture vision on
preserving democracy and some of the fixed Twitter
talking points about spam and bots and subscription
JANE ROSE REPORTING
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Jared Birchall
platform and entertainment destination, more
friendly for content creators. All those things.
Q And do you recall during any of those calls
them making any of these potential investors
committing to invest?
A No.
Q And were all the calls essentially similar
where Mr. Musk would make a similar presentation?
A Yeah.
Q Did you make any presentation or say
anything during these calls?
A I might have said a few words, but
almost -- almost -- said very little, maybe a couple
clarifying comments.
--(Birchall Exhibit 42 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 42, which is a
document entitled "Twitter Banker Management
Meetings, 5/1/22."
A Mm-hmm.
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Q Did you participate in any twinker -Twitter banker and management meetings?
A No, I don't believe so.
Q Okay. Do you recall participating in one
dated 5/1/22?
A I don't recall. When you say -- oh,
Twitter -- okay. Sorry.
The Twitter management team and the Twitter
banking team. Actually, I believe I did dial in to
one of them for a portion of one of the calls.
Q And what was your understanding of the
nature of the calls?
A As I understood it, it was just an ongoing
update in an effort to move the deal forward.
Q And was your understanding that the bankers
and Twitter management participated in meetings with
potential investors?
A I don't think -- I just want to clarify.
When you say "management," are you referring to
Twitter management, or are you referring to
management of X Holdings? Who are you -Q Is there management of X Holdings?
A Not really but, yeah.
Q Okay.
A So you're referring to Twitter
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management -Q Yes.
A -- executives?
Q Yes.
A Yeah. So I don't think there was -- I
don't know of a joint conversation that involved the
Morgan Stanley banking team and Twitter management
and a potential investor. I don't know that.
Q You said you called in at least to one call
that was between Morgan Stanley and Twitter
management. That was your understanding?
A Yeah, I believe so.
Q Okay. And do you recall what was discussed
on that phone call?
A I don't specifically recall that -- that
one. I think it was the first one that they had
scheduled. And I don't specifically recall that.
Q And do you recall ever having seen this
document that's been marked as Birchall Exhibit 42?
A I don't recall having seen this.
--(Birchall Exhibit 43 was marked for
identification.)
--THE WITNESS: Thank you.
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BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 43, which is an
email from
to others at
.
Do you see that?
A I see that.
Q Do you know what
is?
A I do.
Q What is
?
A It's a venture capital, private equity, you
know, firm.
Q Okay. And he talks about a meeting on
5/1/22 with -- or a call with Elon Musk and
Jared Birchall.
Do you remember having a call with them?
A I don't specifically recall this specific
call, but, I mean, there was a lineup of calls that
were had. So -Q Okay. And so do you think the prior email,
which refers to a 5/1 meeting with
refers to the
meeting that you and Mr. Musk had with them on
5/1/22?
A This is a
file. Is that what you're
saying?
Q Yes. If you look, it's
on the bottom.
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Jared Birchall
A Oh, it very well looks like it frankly is.
Q Okay. And do you know who
is?
A I don't. I don't know him.
Q And -- and was the -- the meeting with
on 5 -- or May 1, 2022, was that part of soliciting
co-investors?
A I -- I -- yeah. Again, I don't have a
specific recollection of this specific meeting, but
there were many meetings that -- that were had. So
I -- I don't doubt that there was a meeting.
Q And your recollection -- your recollection
is at these meetings, to the extent it was you and
Mr. Musk, that you would have said little, if
anything?
A Yeah. On a comparative basis, it was
primarily Elon speaking.
Q Okay. And how long did these meetings
typically last?
A Oh, as I recall, they were, you know,
anywhere from 20 to 60 minutes.
Q And do you have any specific recollection
as to what was said at any of these meetings?
MR. SPIRO: Objection to form.
THE WITNESS: Again, I -- I do recall the
specific outline that Elon had for, like, his plan
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and vision, and that was commonly shared across each
of these meetings.
BY MR. SHANNON:
Q Okay. And -- but his outline was the oral
that you talked about before. There wasn't a
written outline, correct?
A Yeah. It was just his vision of what he
was going to do with Twitter.
Q Had anyone drafted talking points for him
regarding it?
A Again, I -- certainly, there was the prior
exhibit where I think that was relating to those
institutional calls, but I don't recall.
Q Okay. And I believe your testimony before
was Mr. Musk, among other things, would address how
he planned to fix Twitter, correct?
A That was definitely part of the
conversation.
Q And one of the things he would tell people
he planned to fix was the issue of spam and bots,
correct?
A Yeah.
Q And do you recall that being discussed on
all the calls with potential investors?
A It would have most likely been a talking
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point on every call.
Q Okay. Do you recall any of the investors
having questions regarding that?
A I don't specifically recall.
Q Do you recall any questions any of the
investors had during any of these calls?
A I mean, I don't remember the specific
wording of -- of those, but, you know, there were
questions about each of these topics that -- that
were discussed, but -- but I can't regurgitate
the -- the verbiage of a specific question asked.
MR. SHANNON: We've been going for a while.
Why don't we take a short break.
THE WITNESS: Okay.
THE VIDEOGRAPHER: We are going off the
record. The time is 5:08 p.m.
(Recess.)
THE VIDEOGRAPHER: The time is 5:20 p.m.
We're back on the record.
BY MR. SHANNON:
Q Mr. Birchall, can you turn back to what is
Exhibit No. 3? It is a series of texts from you.
A Oh, Exhibit 3 is this large document?
Q No. No. Oh, I'm sorry. Exhibit 5.
A Exhibit 5.
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I'm there.
Q If you could turn to page -- well, it's -unfortunately, there aren't page numbers on this,
but it's -- actually, there are. Page 6.
A Okay. I'm there.
Q And then at the top, there's an outgoing at
May 3rd at 21:41.
Do you see that?
A Twenty -- sorry. What was the -Q At 21:41.
A 21:41, I see that.
Q Okay. And it reads: "I had a good intro
call with PWP. Jamie - it may be helpful to have
you join a more critical call with a few people on
the banking team to stress test their thinking."
A Yes.
Q Do you see that?
And you're sending that to Antonio Gracias.
What was his role at this point in time?
A Again, I think Antonio has just been a
long-time friend, advisor, confidant, and -- and so
I was just piping in trying to be helpful. Jamie
Star was someone that he knew that -- with, I think,
experience in transactions like this and was just
trying to -- trying to be helpful with people that
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Jared Birchall
could provide information.
Q Well, you say you had a good introduction
call with PWP.
A Yes.
Q What's PWP?
A That is -- and that was one of the firms
that I couldn't remember the name of before.
Q Perella Weinberg?
A Perella Weinberg, that's who it was, yes.
Q And why were you having an introductory
call with Perella Weinberg?
A Again, this was at the recommendation of
Antonio just to have some independent team stress
test the models and -- yeah. That was basically it.
Q And I'm sorry, you said Jamie Star is who?
A An acquaintance of Antonio's, who he
thought could be potentially helpful.
Q And did you have any discussions with
Mr. Star?
A I believe there was one phone conversation.
Q What do you recall of that?
A As I recall, he was sharing his thoughts
about -- just about the, you know, Twitter financial
models that -- per Twitter, like, about -- as I
recall, it was him providing his insight based on
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what he saw the size of the transaction to be and
the -- you know, looking into Twitter filings and
providing commentary and insight on, kind of, the
path forward and potential hurdles and things like
that.
Q Who was on the introductory call with
Perella Weinberg?
A So I believe Antonio would have been on
that call, although I'm not certain. A guy by the
name of, I believe, Bob Green, who's, I think, one
of the senior partners there.
Q Maybe Bob Steel?
A Steel, there it is. Sorry. Bob Steel was
on that call.
Q Okay. And did you have any further
communications with Perella Weinberg?
A I did not.
Q Did they ever get retained?
A They did not.
Q So you think you had the introductory call
and there was no further communications with them?
A I think there were a few follow-up texts
where they sent a note asking status or, you know,
something like that, but nothing substantive. Them
just asking where we stood or whether or not we
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needed their help, basically.
Q Do you know if Mr. Musk ever spoke with
them?
A I don't.
Q Did he ever suggest to you that he had?
A I don't, but -- though, there's a chance
that Antonio mentioned that maybe they reached out
to him as well. I can't -- I can't remember.
Q Did he ever mention Perella Weinberg to
you, Mr. Musk?
A I -- I don't recall him proactively coming
to me with that. Though I would have discussed -let's see. I would have discussed how my call went,
and I think Antonio did as well.
Q If you look further down on that same
page -A Mm-hmm.
Q -- at 18:01 on May 4th, you'll see a
message: "From
."
Do you see that?
A Yeah, I do see that.
Q Okay. "Got message from
up to
$1b.'" Which I assume is billion.
in board meeting until late
afternoon.
suggested pencil in $1b," and then
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you respond: "Whoa, so he backed off 2?"
Do you know what that's referring to?
A Yeah, I think
is his, like, either his
head of finance or his family office head.
Q Just -- not to interrupt, but his family -is that
?
A Yes, I believe so.
Q Okay. And -- okay. I'm sorry to interrupt
you.
A Yeah, no problem.
So I think my initial understanding was
that
was going to put two in and that he -his, kind of, final confirmation was one.
Q Do you recall any other discussions
relating to that?
A I don't.
--(Birchall Exhibit 44 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 44, which are a
series of emails, dated May 10th and 11th. There is
an email on the first page from you on May 10th at
JANE ROSE REPORTING
1-800-825-3341
3:08.
Do you see that?
A Yes.
Q Okay. And below that, it says -- the only
thing that's not redacted is: "Perella reached
out."
Do you see that?
A Oh, yes, from Mike Ringler.
Q At Skadden to you?
A Mm-hmm.
Q And you respond: "OK to begin the
conversation about engagement."
A I see that.
Q And: "We need to be specific on what we
need from them."
So did you give the okay to your counsel to
begin the conversation about engaging?
A Yes. The key word there, "begin."
Q Okay. And do you know what occurred with
regard to that conversation?
MR. SPIRO: Obviously, do not reveal
privileged communications, but without doing that,
you can answer.
THE WITNESS: Yeah, I -- I -- as I recall,
the ultimate determination there was that -- that we
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didn't need what they were offering, basically.
BY MR. SHANNON:
Q What was your understanding as to what they
were offering?
A Well, they were, like, a whole other
investment bank that wanted to do a lot of
duplication of what we were getting from
Morgan Stanley, and as I recall, that was -- you
know, that was the purpose of us deciding not to
move forward with them.
Q And do you recall if there were any
communications with Perella after this date, which
is May 11th?
A Again, I -- I think there may have been a
message or two where they -- where they were
checking in with me, but I -- I don't recall of any
specific messages post these times.
MR. SHANNON: 80.
--(Birchall Exhibit 45 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
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been marked as Birchall Exhibit 45, which is an
email dated May 8th, 2022 from
and -from
to you and to Mr. Musk and
Mr. Grimes.
Do you recall receiving this?
A I do generally, yes.
Q And what was your understanding as to why
was sending this?
A This was kind of the -- the next stage of
their unique job interview, where Stage 1 was
showing up for that Twitter meeting; Stage 2 was
providing a write-up of their thoughts.
Q Was there a Stage 3?
A Ultimately, no.
Q Okay. Who made the determination not to
hire them?
A Elon.
Q Do you know why he determined not to hire
them?
A Not very specifically. Just didn't feel
like it was the right fit.
Q So it's your understanding that some time
after this, which is May 8th, that Mr. Swan was
brought on board to help?
A Yes.
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Q
Did you review the analysis that
provided?
A I don't specifically remember it, but
I'm -- I'm sure I -- I read it at some point.
Q Did you have any reaction or views
regarding his analysis?
A Not that I recall.
Q Do you recall discussing his analysis with
Mr. Musk or anyone else?
A I don't specifically recall that, no.
Q Who communicated to
that he
would not be getting the position?
A I don't recall ultimately who delivered
that message. It -- it may have been me. It may
have been Grimes -- Michael Grimes, just in an
indirect way. I'm not sure.
Q Well, did, at some point, Mr. Musk tell you
that -- to communicate to
that he was
not getting the position?
A At some point that conversation would
have -- would have happened.
Q Did you have an understanding as to how
long after this May 8th write-up was provided that
Mr. Musk made that decision?
A No, I don't.
JANE ROSE REPORTING
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September 21, 2022
Jared Birchall
Q Okay. How about with regard to the other
candidate? When did he make the decision not to
hire her?
A Similar. I -- I don't recall when that
kind of, final decision was made.
Q Did she also go through a Stage 2 at which
she provided written proposals and thoughts?
A As I recall, she did.
Q Do you recall receiving that?
A Again, I don't recall the content of what
was received, but I do recall her sending something
over.
Q Do you recall having any discussions with
Mr. Musk regarding what she sent over?
A I don't have that specific recollection,
no. But, again, there would have been some
conversation which led to her -- to him determining
he wasn't going to hire her.
--(Birchall Exhibit 46 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
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been marked as Birchall Exhibit 46, which is a
series of emails with you and
from
.
Do you recognize that?
A I do.
Q Do you recall receiving these emails?
A I do.
Q Who is
from
?
A I believe he's one of the partners.
Q Okay. Did you know him?
A I did.
Q Okay. How did you know him?
A I didn't know him well, but he was an
investor at one of Elon's other companies -- or
multiple of Elon's other companies and former
employee at SpaceX.
Q Had you spoken or communicated with him
regarding potentially investing in Twitter?
A I believe I had at this point.
Q Okay. And what do you recall of those
communications?
A I -- I don't specifically recall. I would
just assume that it was -- it would have been me
passing or, you know, sharing kind of the big
picture mission and passing him off to
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Morgan Stanley.
Q And he sent you an email on May 10th at
10:33. Do you see that one? It's the second one in
the chain.
A I see that, yes.
Q He says: "Jared, given the market,
has updated his requested amount to $1M."
Do you see that?
A I do.
Q And if you look at the bottom, the original
interest was 5 million.
A Yes.
Q Do you see that?
Do you know what he's saying, when he's
saying, given the market,
has updated the
request to reduce it to 1 million?
A I believe he's referring to volatility in
the markets.
Q Had you heard from other investors who had
changed what they were seeking to commit as a result
of volatility in the markets?
A I -- I don't recall specifically. Though,
I think there may have been another discussion
where, you know, some of these people were direct
investors. Others were syndicating a small group of
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people. And as I recall, there may have been a
conversation where one of those groups was saying
that a sub-investor was expressing similar feelings.
Q His next sentence on that email or the next
paragraph says: FYA -- "FYI,
's opinion is
that there is likely a path to acquiring the company
for much less at this point vs a month ago. Let me
know if you or anyone at MS would want to discuss
those specific ideas with him."
Do you see that?
A I do.
Q And you respond: "Hi,
. I'd be
interested to hear
's thoughts."
Do you see that?
A I do.
Q And why did you respond in that fashion?
A No one has a monopoly on good ideas and -or on ideas, period, and so I was open to hearing
what he had to say.
Q And do you recall having any discussions
with him?
A No. As I recall, it culminated in a
message from him saying something, like, "Yeah, I
don't think I have anything unique to add to what
you guys are probably -- what you already know," or
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Jared Birchall
something like that, as I recall.
Q So you think you got a written message from
him to that effect?
A I -- it was either written or -- or I
believe in some form, either written or spoken,
where he -- where we were going to have a call, but
the message was delivered. You know, as I think
about it, "I don't think I have anything unique to
add to what you guys are probably already thinking
about."
MR. SHANNON: Exhibit 46.
THE COURT REPORTER: Exhibit 47.
--(Birchall Exhibit 47 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 47, which is an
email from Kate Claassen to you and others, dated
May 9th, 2022.
Do you recall having received this email?
A Yes, generally, I do.
Q And what was your understanding of the
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purpose of the email?
A I think just an update on -- on equity
investors.
Q And she says: "Ongoing discussions for
second close..."
Do you know what that's referring to?
A Yeah. There was a first initial core
group, and then there was a second core group.
Q Okay. And to your understanding of either
of those core groups, are they all still committed
to provide equity with regard to the Twitter
acquisition?
A As far as I know.
Q Have you had any communications with any of
those investors regarding the status of the
litigation or what defendants have determined with
regard to the potential merger?
A So I would say probably at least a half a
dozen have reached out and asked about status, and
my answer has always been, our -- I should say in
the recent few weeks there's been no communication
in the -- with this list. Prior, there were several
that reached out in the wake of tweets or filings or
whatever, and the answer has always been our
intention remains the same.
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Q And when you say your intention remains the
same, what do you mean?
A The -- the intent to see the transaction
through.
Q How is your intention to see the
transaction through consistent with Mr. Musk sending
a letter on January -- or July 8th terminating the
merger?
A That's what I'm saying. The last few
weeks, these -- I'm referring to conversations that
took place with investors. You asked if I'd had any
conversations with investors asking about the
status. In the recent weeks, no. Prior to that,
there had been at least half a dozen where questions
about tweets and/or filings had been asked, and I
told them that our intention remains the same.
Q And that was what you told them up until -A Termination.
Q Okay. July 8th?
A Yes.
Q Okay. Do you recall any communications
with any of the investors after July 8th?
A I don't recall specifically, no.
MR. SHANNON: 101 and then 87.
Thanks.
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--(Birchall Exhibit 48 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 48, which is a
series of tweets, the first one from Elon Musk on
May 13th stating the: "Twitter deal temporarily on
hold pending details supporting calculation that
spam/fake accounts do indeed represent less than 5%
of users."
Do you see that?
A I do.
Q Were you aware before Mr. Musk sent this
that he was planning to send a tweet saying that the
deal was temporarily on hold?
A I was not aware.
Q Okay. Did you reach out to him after you
saw this regarding his tweet?
A I personally did not.
Q Okay. What was your understanding as to
what he meant by "deal temporarily on hold"?
A My understanding was that he had
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information rights that he believed weren't being
met, and when and until those rights were met or
whatever, he would -- that he was -- he was waiting
for that information, basically.
Q And so it's your understanding that as of
May 13th, Mr. Musk believed that his information
rights under the merger agreement were not being
met?
A Correct.
Q Do you recall having any communications
with Mr. Musk regarding his public statement that he
was putting the deal on hold?
A No.
Q What did it mean, that the deal was on
hold?
A I think you'd have to ask him that. You
know, I could speculate what I think it means.
MR. SPIRO: Don't speculate.
BY MR. SHANNON:
Q Well, when you read the email, what was
your understanding as to what it meant?
A I, frankly, wasn't certain. You know, when
you put a phone call on hold, you don't terminate a
phone call. You know, you're waiting to accomplish
something. And so I -- you know, as I understood
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it, I knew that he was -- there was pending
information that he felt he had rights to that
hadn't been provided and concerned him, and -- and
so that's -- because the information was on hold, he
was forcibly put on hold is the way I took it.
Q But you did not have any advance notice
that he intended to send this?
A No.
--(Birchall Exhibit 49 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 49, which is a
series of emails starting on May 13th. The one at
the bottom is from
.
Do you know who that is?
A Yes. She's with
-Q Okay.
A -- their institutional investment team.
Q And do you know her?
A I don't know her other than through this
transaction.
Q And you see her email to you says: "We saw
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Elon's tweet last night and wanted to understand if
he's having a change of heart on the deal or if
there was an alternative motive to what he tweeted."
Do you see that?
A I do see that.
Q Okay. And is the tweet she's referring to
the one we just looked at, the "putting the deal on
hold"?
A I believe so, yeah.
Q And you responded: "Happy to speak. The
intention remains the same."
What did you mean, "intention remains the
same"?
A Our plan to see the transaction through
remained the same.
Q Did you speak with Mr. Musk, or anyone
else, before responding that "intention remains the
same"?
A I did not.
Q And how did you determine that intention
remains the same after Mr. Musk sent his tweet on
May 13th?
A Well, I mean, I felt pretty confident
that -- I mean, I knew that wasn't him terminating
the transaction. That's not even how you terminate
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a transaction, but I felt confident that based on
all my communications with him and with everyone
else involved, advisors, counsel, that there had
been no change in our intention. That, you know,
the hold he's referring to was him needing
information.
--(Birchall Exhibit 50 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit No. 50, which is an
email from Bob Swan to Morgan Stanley, dated
May 18th, 2022.
Do you see that?
A I do.
Q Okay. Is it your understanding that
Mr. Swan had been retained at or around this time?
A Yes. Again, I mean, I think the use of the
word "retained" is unique, but, yes.
Q That's a fair point.
A Yeah.
Q That he had started work in or around
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May 18th?
A Approximately, yes.
Q Okay. And he notes that the "Sources and
uses: We have a $3.8b gap."
Do you know what he's referring to?
A That that -- you know, the -- I believe
what he's saying is that there was -- I think what
he's saying there is that there was 3.8 billion
additional that needed to be filled with, you know,
all of the projections of rollovers, Elon's equity,
debt, and everything. Yeah.
Q And do you recall any discussions with him
or others how that $3.8 billion gap would be filled?
THE COURT REPORTER: I'm sorry. Is it
million or billion?
MR. SHANNON: Billion. If it was a
million, we probably wouldn't be here.
THE WITNESS: Specific conversations? I
mean, I know there were numerous conversations, you
know, considering, you know, how we would fill all
of the gaps in order to, you know, consummate the
transaction. I don't recall a specific, you know,
conversation, per se.
BY MR. SHANNON:
Q What generally do you recall those
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discussions regarding how you would fill the gap?
A Well, he -- he's referencing one of them
when he says, "assuming no preferred." One of those
ways was by doing a preferred, adding another layer
to the deal stack. Certainly, one way or another,
that gap would have to be filled, whether through
external investors or Elon himself. And so -Q Do you know if that gap was filled?
MR. SPIRO: Objection to form.
THE WITNESS: Yeah, I mean that -- that
specific gap, per se, I -- do we believe we could
execute the transaction? Absolutely.
How that is specifically executed between,
you know, people rolling over and equity investors
and debt investors, I'd say the kind of finer
details of that are still, you know, being
finalized.
BY MR. SHANNON:
Q Still being finalized now?
A Well, I mean, we're obviously in a pencils
down state right now, so until -- if and until this
is figured out, yes, it would be -- we would -- but
there's no question about where -- where that money
would eventually have to come from. You know, it
would -- Elon's well aware that he made the
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commitment, and whether it's out of his own pocket
or elsewhere, we'd fill the gap.
--(Birchall Exhibit 51 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 51. On the bottom
is a June 10th email from Bob Swan to you.
Do you see that?
A I do see it.
Q And he notes again, "we have a pretty large
gap (roughly $3.5 to 4b)."
Do you know what he's referring to as a
gap?
A Again, I -- I believe it's the same topic
we just discussed.
Q And toward the bottom, there's a line that
says: "Rating agency: We will keep adjusting the
date in connection w the appropriate info flow and
diligence and determine who participates as we go."
Do you see that?
A I do.
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Q And do you know what that's a reference to?
A I believe he's referencing what would have
been an eventual meeting with the rating agencies.
Q Was there ever a meeting with the rating
agencies?
A I don't believe so.
Q Do you have an understanding of why not?
A Again, I -- I think there was -- in order
to proceed with the debt portion, the transaction
needs to proceed, and there are conditions that were
yet to be met. There hadn't yet been a shareholder
vote. There'd been, you know, a number of things
that just hadn't happened yet, and this was one of
them.
Q Do you know when it was planned that there
would be rating agency presentations?
A I think there were preliminary, you know,
dates that moved along time, but I -- I don't -- I
don't know what the latest number was.
Q And then going to the next sentence, he
says: "Lastly, anything we can do to reduce
personnel anxiety along the way would be helpful!!"
Do you see that?
A I do.
Q Do you know what that's referring to?
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A I don't. Yeah, I don't know what he's
referring to there.
Q Well, were you speaking with Mr. Swan
during this time period?
A Periodically, there was -- we would speak.
Q Okay. And you never asked him what he
meant by: "Lastly, anything we can do to reduce
personnel anxiety along the way will be helpful!!"
-- two exclamation points?
A I didn't ask him specifically that, no.
Q Do you have any idea what he's referring
to?
A I really don't.
Q You talked before about after the May 6th
meeting information requests were made to Twitter
for certain information, correct?
A Yes.
Q Okay. Did you have any role in preparing
any of those information requests?
A No, not that I can recall. I believe those
were all Morgan Stanley and/or counsel related.
Q Did you review any of the requests before
they were made?
A Well, certainly, a list of requests came
from that May 6th meeting where we were in person,
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and so that was what kicked off the first, kind of,
round of requests.
Q Okay. Other than that first round of
requests, do you recall having reviewed any of the
requests?
A I don't recall reviewing a document with
requests. I mean, but the topic of requests and
what had and hadn't been delivered was an ongoing
topic.
Q Ongoing topic in what way?
A When we would have check-in calls with the
team, that information would be updated.
Q Do you know who was responsible for
reviewing the information that was provided by
Twitter in response to the requests?
A Well, the Morgan Stanley team, I believe,
was, you know, reviewing that. Bob Swan was, I
believe, reviewing that and had access to whatever,
you know, data portals or whatever were -repositories.
So those were the primary parties.
Q How about the data scientists, what role
did they have in reviewing the data?
A Again, they were retained directly by
counsel, and so I -- I wasn't advising them on --
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you know, or providing them with information, but
they were -- they were provided with certain types
of data that they then used in their analysis. But
what their process was specifically, I -- I don't
have information on that.
Q And I believe from your testimony earlier,
you don't recall any specific analysis they did or
conclusions they reached, correct?
A I don't recall, like, a final report or
anything that was provided.
Q Do you recall receiving an interim report
from any of the data scientists?
A I recall being on a phone call that
included counsel where there was some -- some sort
of progress report shared.
Q When was that phone call?
A Yeah, as I recall, that was mid-to-late
May, like, late teens maybe.
Q Okay. And you don't recall any other
communications in which you got a progress report,
correct?
A No. I believe that was the final direct
communication that I had with them.
Q Are you aware that on June 6th, Skadden
sent Twitter a letter claiming that it had breached
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its obligations under the merger agreement?
A Yes.
Q Okay. Had you seen -- had you seen that
letter before it was sent?
A I reviewed it cursory, and I think helped
facilitate, you know, signatures.
Q What was your understanding as to the
nature of the breach that was asserted?
MR. SPIRO: Objection to the degree it
calls for privileged information. You can't reveal
those communications. So I don't know how you can
answer that. But if you can answer that without
input from counsel.
THE WITNESS: Okay. So I guess I can't
answer that.
BY MR. SHANNON:
Q Okay. So your knowledge regarding the
basis of the briefs -- basis -- let me strike that.
Your knowledge regarding the breaches
alleged in the June 6th letter were based solely
from communications you had with counsel?
A I believe so.
MR. SHANNON: Okay. And just so the
record's clear, you're instructing him not to answer
on that basis?
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MR. SPIRO: If he can answer outside of
that basis. I'm trying to -- I'm trying to not get
in your way, but that one seemed to be the legal
letter in why the call for breaches calls for
privileged communications.
BY MR. SHANNON:
Q And your recollection is that your
knowledge is based on communications with counsel?
A Yes.
MR. SHANNON: Thank you.
--(Birchall Exhibit 52 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 52, which is a
series of texts that have been produced in this case
from Mr. Musk, and I am interested in -- there are
certain texts at the bottom of the third page on
June 8th -A Okay.
Q -- starting on -- at 10:45.
Do you see the one that says: "Elon, Bob
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Steel here"?
A I do see that.
Q And he notes: "Antonio connected us a few
weeks ago and we had a conversation re your plans
regarding Twitter."
A Mm-hmm.
Q Were you aware that Mr. Musk had a
communication with Bob Steel at Perella Weinberg?
A I wasn't aware of this communication.
Q Are you aware of any communications
Mr. Musk had with Perella Weinberg?
A Not with communications that I wasn't
either on a call for or CC'd on.
Q Are you aware that Perella Weinberg had
raised the possibility of using a contingent value
right, or CVR, with regard to Twitter?
A I don't recall that proposal.
Q Do you recall any discussions with Mr. Musk
regarding advice Twitter had provided?
A Twitter had provided?
Q I'm sorry. Perella Weinberg had provided.
A I don't. I don't recall that. Yeah.
Q And as far as you know, Perella Weinberg
was never retained?
A Yes. Correct.
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--(Birchall Exhibit 53 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 53, which is a
series of emails, some of which have been redacted
as privileged.
Starting at the bottom of the first page,
there's an email from you to Alex Spiro.
Do you see that?
A Bottom of the first page, I see that.
Q And you say: "Just got a call from
."
Who is that?
A He's an investor that has invested in other
of Elon's companies.
Q And you note: "
is on
the" -- is that the Twitter board?
A That's what it appears to be, yes.
Q Okay. And do you recall receiving a call
from
?
A I've probably spoken with
half a dozen
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times over the last handful of months, so I -- I do
recall speaking with him.
Q And do you recall him giving you feedback
from the Twitter board?
A I vaguely remember this.
Q And -- and when he gave that, you then sent
it to Quinn Emanuel and Skadden?
A Yes.
Q And why did you send it along to them?
A Just data to pass along, I guess.
Q Did you send it along to Mr. Musk?
A No.
Q Why not?
A I'm not sure why in that moment I didn't,
but I -- it's not the type of information I would
have passed along to him.
Q What do you mean "it's not the type of
information you would have passed along to him"?
A Well, I mean, in -- in the midst of any
given day, he's -- there's just -- there's a lot
going on. He's putting out a lot of fires, and this
is just like a random comment about someone said
that someone said, that I just wouldn't lob in a
message to him in the middle of a day about
something like this.
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Q And then if you look at the email on the
top: "I got big picture notes from the call from a
trusted source."
Do you see that?
A I do.
Q And what call are you referring to?
A That's what I'm trying to see here.
Oh, it would have been the call that Elon
did with the -- with Twitter, with Twitter
employees, I believe.
Q Your recollection is Mr. Musk did a call on
June 16th, 2022 with Twitter employees?
A I think he did. That's my recollection.
Q After he had sent the letter saying that
Twitter had breached?
A Let's see here.
I think -- I think this is referencing a
call that happened with Elon on -- with the
Twitter -- with Twitter, the company. But -Q Were you on the call?
A I wasn't.
Q And you -- but if Mr. Musk was on the call,
you -- you didn't really need notes from a trusted
source, did you?
A Well, again, you know, I'm not -- I'm not
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dialing him up after an engagement like that or any
other engagement of his in the middle of a week and
asking him to give me his, you know, rundown of
what -- what happened.
I felt pretty confident that he -- there
was not going to be anything on a -- on a big public
call like that that would be, you know, revelatory,
and so it was more important to me to kind of get a
third-party feel for how it was received.
Q Okay. So what you were providing was more
of a third-party view of how it was received?
A That's right.
Q Okay. Who was the trusted source?
A I do not recall. Let's see.
Yeah, I don't recall. As a -- yeah. I
vaguely remember this as -- let's see. Yeah, I
don't -- I don't recall.
--(Birchall Exhibit 54 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 54.
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Do you recognize that document?
A I do. I'm reading it right now to kind of
get up to speed on it. Who -- who is the other end
of this? Is this with Bob or -Q I believe so, yes.
A Okay.
Q Did you often text with Mr. Swan?
A I don't believe I texted with him often,
that -- though that was a mode or a medium that was
used.
Q Okay. And is this the -- the text on the
bottom that you sent to him?
A I believe so, yes.
Q You say: "It would be good to see the most
current and realistic financial projections."
Do you see that?
A Yes.
Q Who was preparing the projections?
A As I understood it, it was some combination
of Bob with the Morgan Stanley team.
Q Okay. And what were you looking to see
those projections for?
A Well, we're ultimately going to need to
service debt, and I just wanted to understand what
that picture looked like.
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Q And you say: "And not doomsday, but with
some reflection of the challenging environment."
What do you mean by "challenging
environment"?
A Well, you know, the economic environment
had -- had shifted a bit, and I just wanted
realistic -- some of the models were taking data
from proxy statements issued by Twitter in Q1, and
that was a different economic environment, and so
I -- I just didn't want to run models based on old
data.
Q Were you running models?
A I was not personally running models.
Q So what were you going to do with the
current projections that you had asked Mr. Swan for?
A I don't specifically recall, but I would
have most likely discussed whatever he brought
with -- with Elon.
Q Do you recall having discussions regarding
projections with Elon?
A I don't recall exactly as it pertains to
this. I don't see a time for when this was actually
exchanged, but I do recall the -- the email exchange
that we had where he actually sent a model, and I
pressed him a little bit along the lines of this
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message, and I do recall having some -- some kind of
big picture discussion with Elon about that.
Q And do you recall having any other
discussions with Mr. Musk regarding projections?
A Again, I can't recall, like, a specific
moment in time, but there would have been multiple
conversations where either he and I and/or bankers
and/or Bob and/or some combination of all those
people would have been involved in conversations
regarding projections.
Q But you don't recall any specifics of those
discussions?
A I don't recall, like, the specific moment
or specific words.
--(Birchall Exhibit 55 was marked for
identification.)
--MR. SHANNON: I should have done this
earlier. I note that this and many of the other
exhibits are marked "Confidential." So I would
propose to have the -- the transcript marked
confidential -MR. SPIRO: Agreed.
MR. SHANNON: -- until everyone has a
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chance to review it.
So if you could just mark the entire
transcript confidential.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what has
been marked as Birchall Exhibit 55, which is an
email from you to Mr. -- I'm sorry -- it's from
Mr. Swan to you enclosing certain scenarios.
Do you see that?
A I do.
Q Okay. And he was sending this to you on
June 21, '22, correct?
A Yes.
Q And what were you using these financial
models for?
A Again, the -- Bob was always on the mission
of push the ball forward. Get the deal done.
And -- and so the purpose of his modeling was us
understanding -- you know, trying to understand
legitimate cash flow and understand, you know, debt
servicing and things like that.
Q Do you recall having any discussions with
Mr. Swan regarding the projections that he provided?
A I don't believe there was a phone
conversation. I think he may at this point have
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been in Europe.
Q When you say "in Europe," you mean on the
family vacation you referenced before?
A Yes.
Q And is it your understanding that he was
working with Morgan Stanley in preparing the
projections?
A Yes, that was my understanding.
MR. SHANNON: If you could, 114.
BY MR. SHANNON:
Q Was there a reason that he was working on
three different scenarios: a base case, a bull
case, and a bear case?
A Just because we didn't have a crystal ball
that worked and wanted to understand what the
potential variations could look like.
Q And with regard to the different
assumptions that were made with each case, who
determined what assumptions to use?
A Well, in this case, he -- he was -- he was
primarily -- I think there'd been a conversation
before this where the desire for the -- the
different scenarios was -- was expressed, and then I
think his -- he took his own, kind of, poetic
license to decide what went into those different
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scenarios.
Q And when you say "he took his own poetic
license," was it Mr. Swan and Morgan Stanley, or was
it just Mr. Swan?
A I believe -- I don't, frankly, know. I
believe it was a combination.
--(Birchall Exhibit 56 was marked for
identification.)
--BY MR. SHANNON:
Q And this is basically a continuation of the
email we were just looking at and -- oh, first of
all, Mr. Birchall, you've been handed what has been
marked as Birchall Exhibit 56, which is a series of
emails including Bob Swan and you, dated June 21st
and 22nd.
Do you have any doubt that you received and
sent these emails?
A No.
Q And if you look at the first -- or the
email that's on the third page, there's one
June 22nd, 2022 at 2:19 a.m. from you.
Do you see that?
A I do.
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
Q And you say: "I don't know the numbers
nearly as good as you do, but I'd like to pressure
test the idea that the 'base case' assumption is
that revenue is just slightly worse than Twitter
team's questionable projections."
Do you see that?
A I do.
Q And what did you mean by that?
A Well, there's a history of -- of the
Twitter team's projections being wrong and to apply
a slight discount to what could be wrong numbers or
what they're projecting. I just -- I didn't like
that -- using that as our base case, and so I wanted
there to be a more realistic rigor applied to the -you know, to the exercise based on what we were
seeing in the market.
Q And then do you see Mr. Musk's email on
the -- the next page at 5:48 a.m.?
A I do see that.
Q "Bob, the spreadsheet looks idiotic to me."
And then at the end he says: "If this is
what you're sending me with a straight face, then it
is probably best for you to step away from this
project."
Do you see that?
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A I do see that.
Q And then the next email at the end,
Mr. Swan said: "Since I sent these pro formas w a
straight face, I agree it is best for me to step
away from the project. Let me know if I can help
and good luck."
Do you see that?
A I do.
Q And is this your recollection of basically
when Bob Swan ceased to be involved with the
project?
A Yes. I mean, I think he helped, you know,
in the day or days that followed to help pass the
baton a little bit, but, yes, this was kind of the
moment in time where it was clear the path
forward -- there wasn't a path forward.
MR. SHANNON: Tell you what; why don't we
take a short break, and I can give you a better
assessment.
MR. SPIRO: Yeah. Right.
We're off the record.
MR. SHANNON: Go off.
THE VIDEOGRAPHER: We are going off the
record. The time is 6:22 p.m.
(Recess.)
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THE VIDEOGRAPHER: We are back on the
record. The time is 6:27 p.m.
BY MR. SHANNON:
Q Mr. Birchall, if you could turn back to
what has been marked as Exhibit 5, which is the
text -A Mm-hmm. I'm there.
Q And specifically on June 23.
A June 23. I'm there.
Q And about midway down, you'll see one at
22:30, and this is a text from Mr. Musk.
A When you say "22" -- sorry. What -- I'm
not following.
Q Yeah. It's June -A June 23rd, right?
Q June 23rd -- I'm sorry, it's not clear if
it's the 21st or the 23rd. Maybe you can -- it's -I believe it's the message that reads: "I've asked
Bob Swan to depart the deal."
A I see that.
Q "We are not on the same wavelength. Going
forward it will be Jared and me."
Were you aware that Mr. Musk sent that
email?
A I wasn't.
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Q Okay. And do you know who he was sending
it to?
A Well, I can see that Ned's one of those
people.
Q So he was telling Twitter that Bob Swan
would no longer be filling that role?
A Yes.
Q And that you and he would be filling the
role that Bob Swan had filled before?
A That's what he appears to be saying.
Q Was that your understanding?
A I mean, my understanding is that I'll do my
best to fill whatever role he needs me to fill and
to find someone as quickly as possible to fill it
better than me, if needed.
Q Okay. And did you believe you were
qualified to fill the role that Bob Swan had filled
previously?
A Certainly not in comparison to Bob Swan,
no.
Q Okay.
MR. SHANNON: 116.
--(Birchall Exhibit 57 was marked for
identification.)
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q This is -- Mr. Birchall, you've been handed
what has been marked as Birchall Exhibit 57, which
is a -- initially, an email at the bottom from Bob
Swan -A Yes.
Q -- to Kate Claassen, dated Wednesday, the
22nd, and he's noting that you would like
Morgan Stanley to do sensitivities around spam and
bots.
Do you see that?
A Yes.
Q And why were you asking them to do that?
A I was trying to understand how those
numbers affected the revenue model.
Q And did you give them any instructions as
to what sensitivities they should assume?
A I think there was a joint -- in that
conversation with Kate, I think we decided -- I
believe it was 15, 20, and 25 percent.
Q And how did you reach the determination to
do 15, 20, and 25 percent?
A That was just picking numbers. Again, the
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goal was to understand how those numbers moved the
model. It wasn't trying to make an assertion that
it was -- that one or the other was the specific
answer. It was just understanding the magnitude of
that metric.
Q And what was your understanding as to how
that moved the model?
A Well, each -- you know, each 5 percent move
moved revenue numbers by hundreds of millions of
dollars.
--(Birchall Exhibit 58 was marked for
identification.)
--BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 58, which is an -- a
series of emails. The one on top is from
Ms. Claassen to you, dated 6/24/2022.
Are these the sensitivity analysis that you
want done -- you wanted done?
A Yes.
Q Okay. And do you recall having discussions
with Morgan Stanley, or anyone else, regarding these
sensitivities analyses?
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A I don't recall if there was a follow-up
conversation with Kate or not, but -- I don't
recall.
Q Well, do you recall doing anything with the
sensitivities analysis that was prepared?
A I don't specifically recall.
Q Do you recall having any discussions with
Mr. Musk regarding the sensitivities analysis?
A I don't recall a specific conversation, no.
--(Birchall Exhibit 59 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 59, which are a
series of texts or short message reports between
Robert Steel and Antonio Gracias, and I'm interested
specifically on the one at 6/25/2022 at 4:50 a.m. -I'm sorry -- 6/25.
Do you see that?
A Yes.
Q And he says: "Hi Bob - I just landed in
Italy. I'll be here for a week. I didn't speak
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with Elon about Twitter at all. I don't have any
idea where he is on the deal. Let's connect when I
get back. I wish you a safe and enjoyable 4th."
Do you see that?
A I do see that.
Q Okay. So this is June 25th.
A Mm-hmm.
Q And Mr. Gracias is in Italy for a week of
vacation.
When was it that you spoke with him about
taking Bob Swan's place?
A I don't recall, but I also don't think I
was the first person to speak with him about that.
I do believe that was Elon, and then there was, you
know, a handoff to me to help intro him to the team
to get him up to speed.
Q And -- but he hadn't spoken to Elon about
Twitter as of 6/25?
A Yeah, I don't know that to be the case.
Another potential explanation is I get the sense
that Bob Steel was really eager to be a part of this
transaction and could have been, you know, hounding
him, and this was his, like, "get off my back, I
don't have any information" message, but I don't
know that to be the case either. I'm just -- yeah.
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
Q Do you recall at any point in time when
Mr. Gracias was filling in or doing the work
relating to what Mr. Swan had previously done that
he was in Italy?
A I don't specifically recall that.
MR. SHANNON: Can you mark this as
Exhibit 60.
--(Birchall Exhibit 60 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit No. 60, which is an
email from you to Morgan Stanley, dated 6/30/2022 -A Yeah.
Q -- and you're advising them that Elon asked
Antonio Gracias to step in and help.
Do you see that?
A I do.
Q So was it around that point in time that
Elon had asked Mr. Gracias to step in and help?
A Yeah. Again, I don't -- I don't pretend to
know exactly when Elon asked Antonio this, but this
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was obviously when I intro'd him to the MS team.
Q And you were asking the MS team to help get
him up to speed, right?
A That's right.
--(Birchall Exhibit 61 was marked for
identification.)
--THE WITNESS: Thank you.
BY MR. SHANNON:
Q Mr. Birchall, you've been handed what's
been marked as Birchall Exhibit 61, which is a
series of emails, dated June 27th, 2022, among
Barclays individuals.
A I see this, yeah.
Q On the second page, there's an email at the
top from Sean Lynch -A Yeah.
Q -- dated June 27th.
Do you see that? And he says: "Caught up
with Jared Birchall (Musk office) at MS today.
They've finally received the information they
believe is necessary to finalize their assessment of
integrity of T's user reported metrics."
Do you see that?
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A I do see that.
Q Okay. Was it your understanding that you
had received around that time, which is June 27th,
the information necessary to finalize your
assessment of the user metrics at Twitter?
A No. In fact, my recollection is that was
when we first started receiving anything useful that
our data scientists could actually parse.
Q And it's your understanding that prior to
June 27th, that you hadn't really received anything
from Twitter that your data scientists could
analyze?
A Again, I wasn't in contact directly with
the data scientists, but as I understood it, there
was a certain way or a certain type of data that -a certain way of parsing the data or certain type of
data that they needed in order to do what they were
trying to do and that over the course of many
requests and even sharing of information that -that wasn't happening.
But certainly at this point, we were yet to
have received the direct methodology on -- you know,
or the protocol for bot determination as well.
So -Q So just so I understand, it wasn't, in your
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understanding, until around June 27th that the data
scientists had received the information they needed
to assess Twitter's user metrics?
A I mean, that's the only sense I can make of
his message, saying what he's saying. I -- to
pretend that I somehow remember on that day, you
know, some transfer of data and whatnot would be
false. I don't remember that. But clearly he's
stating his understanding or his -- his translation
of what he thought I said to him.
Q But, I mean, putting aside what you may
have said, is it your recollection that on or around
that date, which is June 27, 2022, the data
scientists had just received the information they
would need in order to make an assessment of the
integrity of Twitter's user reported metrics?
MR. SPIRO: Objection to form.
You can answer.
THE WITNESS: Yeah, again, I don't pretend
to know if it was that date. I'm trying to make
sense of what he said the information that he
received, you know, being useful to be able to
assess the integrity of report metrics. That -that is what I'm assuming he's referring to, and,
therefore, I'm -- you know, again, I'm guessing.
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
I'm speculating, but -MR. SPIRO: Well, don't do that.
THE WITNESS: Well, again, I don't -- that
date, that -- for me to try and say that on that
specific date certain information had been received,
I just -- I have no clue.
BY MR. SHANNON:
Q I'm not asking for on that date, but was it
your understanding that around that date, which is
the end of June?
MR. SPIRO: Objection to form.
THE WITNESS: I really don't know.
BY MR. SHANNON:
Q Mr. Birchall, when did you first hear -MR. SHANNON: Subtle.
THE WITNESS: It looks like your time's up.
MR. SHANNON: Tell you what. Let me just
ask these couple -- I have a couple more. But I
appreciate you need to leave, so let me just ask
these couple questions and we can reserve rights and
move on.
BY MR. SHANNON:
Q Mr. Birchall, when is the first time you
heard the name "Peiter Zatko" or "Mudge"?
A I believe it was in the -- in the press.
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Q Okay. And when you say you believe it was
in the press, do you mean when it was reported that
he had filed a whistleblower claim?
A Yes.
Q And you had never heard his name before
that?
A No.
Q Okay. Do you have any independent basis to
believe whether Mr. Zatko's claims in his
whistle-blower complaint are true?
MR. SPIRO: Objection to form.
You can answer.
THE WITNESS: No information where that's
concerned.
BY MR. SHANNON:
Q Okay. And have you ever had any
communications with Mr. Zatko or any of the people
working on his behalf?
A No.
MR. SHANNON: Why don't we do this. I
understand counsel needs to catch a plane -MR. SPIRO: Well, I don't want to -- you've
got some time. And I think we both have travel
almost identical like we discussed off the record.
So if you want to -- yeah.
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MR. SHANNON: I'm not saying that to blame
you for this. I'm simply reserving rights, and I
guess since I have a couple more questions -- and
thank you for that.
MR. SPIRO: Yeah, so finish.
BY MR. SHANNON:
Q With regard to what you testified at the
beginning of the deposition, which is your second
SEC deposition -A Yes.
Q -- you suggested it covered the period
after the merger agreement was signed?
A No. I actually believe it was after -- I
think -- I think my first -- I think that may have
been what I said, but I think it was the period up
until -- like, it was up until early April and
then -- and then it was after early April. That -those were the two sections.
Q After early April through when?
A I'm not sure what the -Q Okay. Did it go through the present -beyond asking you with regard to purchases of
Twitter stock, what was the substance or -substance of the questions in your second SEC
deposition?
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MR. SPIRO: You want to know everything
that the SEC asked him?
MR. SHANNON: I want to know if he has a
recollection, great, but I just want to know the
topics that he recalls being covered.
THE WITNESS: I mean, are you specifically
asking -BY MR. SHANNON:
Q The second.
A -- for like the very end of the timeframe
or just the second -Q The second.
A So there were questions about filings.
There were questions about the board.
Q What questions do you recall regarding
filings?
A About -- about McDermott's efforts to file
DG stuff and HRH.
Q To be clear, are these Twitter filings or
Mr. Musk's filings?
A No. Sorry. These are Mr. Musk's filings.
Q Okay. Do you recall any questions
regarding Twitter filings?
A I don't recall questions about Twitter
filings.
JANE ROSE REPORTING
1-800-825-3341
September 21, 2022
Jared Birchall
Q You said there were also questions about
the board. What questions about the board?
A About Elon's, you know, acceptance, denial,
acceptance, denial.
Q What else do you recall topics being
covered?
A It's all a blur. Let's see. To be honest,
my mind's kind of blank right now. It's not -- it's
not easily coming to me.
MR. SHANNON: I'll make a request. If
there are transcripts of -MR. SPIRO: There aren't.
MR. SHANNON: There are not?
Okay. If they become available, if they do
exist, we'd request that they be produced.
BY MR. SHANNON:
Q As I was saying, I appreciate the time
you've given today. I still have some exhibits, and
I have concerns regarding the level of preparedness
for the 30(b)(6) topics. That said, we'll reserve
rights and we'll determine how best to proceed.
But, once again, thank you for very much
for your time.
A Sure.
MR. SPIRO: You don't have any further
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questions for him in his personal capacity at this
time?
MR. SHANNON: I have documents I could go
through, but I'm -- I understand and I'm willing to
stop now with regard -- with the reservation of
rights that I have.
MR. SPIRO: Okay. Because we have time,
but I will -- I will ask one -- one clarification
question of Mr. Birchall. But, again, if you want
to ask him other questions, I understand your
position on the 30(b)(6) topics. If you have any
other questions, by all means.
EXAMINATION BY COUNSEL FOR DEFENDANTS AND
COUNTERCLAIM-PLAINTIFFS
BY MR. SPIRO:
Q You were asked a question earlier about -it's labeled Musk ending 21789. I don't have the
stamp -- I don't have the exhibit number.
A Was it recent?
Q No, no, no. Earlier. But the topic of the
email is: "Please allow me to suggest that further
thoughts/ideas be discussed via phone, with counsel
involved."
Do you remember that email exchange that
you were asked about?
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Jared Birchall
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A
Q
With Barclays?
Yes.
Is it fair to say that you made a comment
that, yes, if you don't put something in email, it's
not in email, or words to that effect?
Do you remember that?
A I do.
Q Is it fair to say that when you sent this
email that you were making an effort to try to stop
the conversation about legal issues between bankers
when there's no lawyers involved and they might not
know what they're talking about? Is that also a
fair read of that?
A No. That was the ultimate -- that was the
ultimate motivation there was to stop this constant
flow of banker speak touching on legal topics that,
yeah, they didn't have, I think, business touching
on.
Q Right. And in the hundreds, if not
thousands, of other emails that you have produced in
this case, did you ever tell anybody at any point,
"Let's not do this in email. Let's talk on the
phone"?
A No.
MR. SPIRO: I have nothing further.
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CERTIFICATE OF SHORTHAND REPORTER-NOTARY PUBLIC
I, Joan V. Cain, Court Reporter, the officer
before whom the foregoing deposition was taken, do
hereby certify that Jared John Birchall personally
appeared before me on September 21, 2022 and was
duly sworn by the New York Remote Notary Public
Jamie S. Blair; that the foregoing transcript is a
true and correct record of the testimony given; that
said testimony was taken by me stenographically and
thereafter reduced to typewriting under my
direction; that reading and signing was not
requested; and that I am neither counsel for,
related to, nor employed by any of the parties to
this case and have no interest, financial or
otherwise, in its outcome.
IN WITNESS WHEREOF, I have hereunto set my
hand this 21st day of September 2022.
____________________________
COURT REPORTER
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MR. SHANNON: I have no further questions
on that.
Mr. Birchall, thank you very much.
Alex, thank you.
MR. SPIRO: Thank you.
THE VIDEOGRAPHER: We are going off the
record. The time is 6:50 p.m.
(Signature having not been discussed,
the deposition of Jared John Birchall was concluded
at 6:50 p.m.)
JANE ROSE REPORTING
1-800-825-3341
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INSTRUCTIONS FOR ERRATA
NOTARY PUBLIC SIGNATURE
Not required unless agreed upon by counsel
that notary public signature is required.
Please return a copy of the signed errata within
30 days of receipt, unless otherwise agreed upon
by counsel. Once we receive the signed errata,
we will distribute an electronic copy to all
parties.
RETURN A SIGNED COPY VIA FAX, E-MAIL OR MAIL TO:
FAX: 1-800-825-9055
E-MAIL: janerose@janerosereporting.com
Jane Rose Reporting
Administrative Offices
PO Box 542
Luck, WI 54853
National Court-Reporting Coverage
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Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, 2022
Jared Birchall
Page 337
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NOTICE TO READ & SIGN
This transcript was electronically distributed
to QUINN EMANUEL URQUHART & SULLIVAN, LLP to
forward to witness.
ACKNOWLEDGMENT OF DEPONENT
I, Jared John Birchall, do hereby certify
that I have read the foregoing pages and that
the same is a correct transcription of the
answers given by me to the questions therein
propounded, except for the corrections or
changes in form or substance, if any,
noted in the attached Errata Sheet.
______
(DATE)
_________________________________
Jared John Birchall
Signed and subscribed to before me this
____ day of ________________ 2022.
____________________________
Notary Public
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INDEX OF EXHIBITS
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 1 Plaintiff and
Counterclaim-Defendant’s
Notice of Rule 30(b)(6)
Deposition to Defendant X
Holdings I, Inc.
38
EXHIBIT 2 Plaintiff and
Counterclaim-Defendant’s
Notice of Rule 30(b)(6)
Deposition to Defendant X
Holdings II, Inc.
38
EXHIBIT 3 Defendants’ Verified
Counterclaims, Answer, and
Affirmative Defenses to
Plaintiff’s Verified
Complaint
54
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PAGE LINE
CHANGE
REASON
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
___ / _____ / __________ / _________________________
JANE ROSE REPORTING
1-800-825-3341
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 4 Email Chain, 1/31/22, Bates
97
Nos. MUSK-XHOLDINGS_00019513
- 00019522
EXHIBIT 5 Text Messages Produced from
Mr. Birchall's Phone
EXHIBIT 6 Email Chain with Attachment,
3/8/22, Bates Nos.
MUSK-XHOLDINGS_00019717 00019719
100
102
EXHIBIT 7 Email Chain, 3/16/22, Bates
105
Nos. MUSK-XHOLDINGS_00019702
- 00019704
National Court-Reporting Coverage
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Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, 2022
Jared Birchall
Page 341
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 8 Text Messages Produced from
Mr. Birchall's Phone
107
EXHIBIT 9 Email from Mr. Neuhaus to
Mr. Birchall, 4/1/22, Bates
No. MSCO-0199653
109
EXHIBIT 10 Email Chain, 4/2/22, Bates
Nos. QE-MUSK_000002112 000002117
111
EXHIBIT 11 Email from Mr. Neuhaus to
Messrs. Birchall and Malone,
4/3/22, Bates No.
MSCO-0199829
115
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 17 Email Chain, 4/11/22, Bates
Nos. MSCO-0052094 - 0052096
136
EXHIBIT 18 Email Chain, 4/11/22, Bates
Nos. MSCO-0052334 - 0052338
138
EXHIBIT 19 Meeting Invite for April
11th, 2022, Bates No.
MSCO-0200045
141
EXHIBIT 20 Email Chain, 4/12/22, Bates
Nos. MSCO-0052625 - 0052626
EXHIBIT 21 Email from Mr. Musk to
147
Mr. Taylor, 4/13/22, Bates
Nos. MUSK-XHOLDINGS_00018096
- 00018097
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 12 SEC Form 13G Filed by
Mr. Musk, 4/4/22
119
EXHIBIT 13 Email Chain with Attachment,
4/4/22, Bates No.
MUSK-XHOLDINGS_00017239
124
EXHIBIT 14 Copy of Two Tweets, 3/26/22
126
EXHIBIT 15 Copy of a Series of Tweets,
8/9/22
EXHIBIT 16 Partially Redacted Email
Chain, 4/8/22, Bates No.
MSCO-0199976
JANE ROSE REPORTING
1-800-825-3341
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132
144
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 22 Morgan Stanley PowerPoint
155
Presentation with Cover
Email from Mr. Polhemus to
Mr. Birchall, 4/18/22, Bates
Nos. MUSK-XHOLDINGS_00017200
- 00017212
EXHIBIT 23 Email Chain, 4/18/22, Bates
162
Nos. MUSK-XHOLDINGS_00017198
- 00017199
EXHIBIT 24 SEC Amendment 3 to Schedule
13D, 4/20/22
168
National Court-Reporting Coverage
janerose@janerosereporting.com
PDF Page 162
Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, 2022
Jared Birchall
Page 345
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 25 Email with Attachment from
Mr. Birchall to Command
Center, 4/22/22, Bates Nos.
MUSK-XHOLDINGS_00019322 0019323
176
EXHIBIT 26 Email Chain with
184
Attachments, 4/24/22, Bates
Nos. MUSK-XHOLDINGS_00020793
- 00020794
EXHIBIT 27 Morgan Stanley PowerPoint
Presentation, Scenario
Planning and Considerations,
Project X, April 2022
188
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 32 Email with Attached Message
Chain from Ms. Claassen to
Multiple Recipients,
4/28/22, Bates Nos.
MSCO-0065572 - 0065592
EXHIBIT 33 Email Chain, 5/4/22, Bates
Nos. X_MSSF_00025123 00025124
213
EXHIBIT 34 Email Chain, 5/5/22, Bates
215
Nos. MUSK-XHOLDINGS_00017115
- 00017120
EXHIBIT 35 Email Chain, 5/6/22, Bates
Nos. MSCO-0218881 - 0218883
233
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 28 Email with Attachment from
Mr. Essaid to Mr. Musk and
Others, 4/24/22, Bates Nos.
MUSK-XHOLDINGS_00018025 00018038
198
EXHIBIT 29 Email Chain, 4/19/22, Bates
Nos. X_BARCLAYS_00013880 00013885
203
EXHIBIT 30 Project X Commitment Letter,
4/25/22, Bates Nos.
X_BARCLAYS_00017246 0017326
206
EXHIBIT 31 Email Chain, 5/3/22, Bates
209
Nos. MUSK-XHOLDINGS_00020620
- 00020626
JANE ROSE REPORTING
1-800-825-3341
212
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 36 Text Messages Produced from
Mr. Musk's Phone
243
EXHIBIT 37 Email Chain, 5/8/22, Bates
248
Nos. MUSK-XHOLDINGS_00021789
- 00021814
EXHIBIT 38 Email Chain, 5/11/22, Bates
251
Nos. MUSK-XHOLDINGS_00020022
- 00020033
EXHIBIT 39 Email Chain, 5/13/22, Bates
253
Nos. MUSK-XHOLDINGS_00021775
- 00021788
National Court-Reporting Coverage
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Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, 2022
Jared Birchall
Page 349
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 40 Email Chain with
260
Attachments, 4/29/22, Bates
Nos. MUSK-XHOLDINGS_00019190
- 00019230
EXHIBIT 41 Email Chain, 5/1/22, Bates
Nos. AH001932 - 01936
263
EXHIBIT 42 Document Titled "TWTR Banker
& Management Meetings
(5/1/22)," Bates Nos.
0001218 - 0001233
EXHIBIT 43 Email from
to
Messrs.
, and
, 5/1/22, Bates Nos.
0001137 - 0001140
267
269
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 47 Email from Ms. Claassen to
Mr. Birchall and Others,
5/9/22, Bates Nos.
MUSK-XHOLDINGS_00018479 00018481
287
EXHIBIT 48 Copy of a Series of Tweets,
First one from Mr. Musk on
5/13/22
290
EXHIBIT 49 Email Chain, 5/16/22, Bates
292
No. MUSK-XHOLDINGS_00019586
EXHIBIT 50 Email from Mr. Swan to
Mr. Armstrong and
Ms. Claassen, 5/18/22, Bates
No. AH000352
294
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
EXHIBIT 44 Partially Redacted Email
Chain, 5/11/22, Bates Nos.
QE-MUSK_000007287 000007289
EXHIBIT 45 Email with Attachment from
to
Messrs. Musk, Grimes, and
Birchall, 5/8/22, Bates Nos.
MUSK-XHOLDINGS_00017705 00017708
PAGE
278
280
EXHIBIT 46 Email Chain, 5/13/22, Bates
283
Nos. MUSK-XHOLDINGS_00018482
- 00018483
JANE ROSE REPORTING
1-800-825-3341
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 51 Email Chain, 6/11/22, Bates
No. AH002375
EXHIBIT 52 Text Messages Produced from
Mr. Musk's Phone
297
303
EXHIBIT 53 Email Chain, 6/16/22, Bates
305
Nos. MUSK-XHOLDINGS_00021682
- 00021684
EXHIBIT 54 Text Messages Between
Mr. Birchall and Mr. Swan,
Bates No. AH001416
308
National Court-Reporting Coverage
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Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, 2022
Jared Birchall
Page 353
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 55 Email with Attachment from
Mr. Swan to Mr. Birchall,
Ms. Claassen, and
Mr. Ringler, 6/21/22, Bates
Nos. SKADDEN_0000545 0000547
311
EXHIBIT 56 Email Chain, 6/22/22, Bates
Nos. AH001404 - 002408
314
EXHIBIT 57 Email Chain, 6/22/22, Bates
No. MSCO-0106493
318
EXHIBIT 58 Email Chain, 6/24/22, Bates
Nos. MSCO-0106530 - 0106531
320
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I N D E X O F E X H I B I T S (Cont'd)
EXHIBIT
DESCRIPTION
PAGE
EXHIBIT 59 Short Message Reports
Between Mr. Steel and
Mr. Gracias, 6/25/22, Bates
Nos. VALOR_00003136 00003137
EXHIBIT 60 Email from Mr. Birchall to
Multiple Recipients,
6/30/22, Bates No.
MSCO-0106702
EXHIBIT 61 Email Chain, 6/27/22, Bates
Nos. X_BARCLAYS_00024768 00024770
JANE ROSE REPORTING
1-800-825-3341
321
323
324
National Court-Reporting Coverage
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PDF Page 165
Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, 2022
Jared Birchall
Page 355
JANE ROSE REPORTING
1-800-825-3341
National Court-Reporting Coverage
janerose@janerosereporting.com
PDF Page 166
Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, 2022
Jared Birchall
Page 356
JANE ROSE REPORTING
1-800-825-3341
National Court-Reporting Coverage
janerose@janerosereporting.com
Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, 2022
Jared Birchall
Page 359
JANE ROSE REPORTING
1-800-825-3341
National Court-Reporting Coverage
janerose@janerosereporting.com
PDF Page 170
Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, 2022
Jared Birchall
Page 360
JANE ROSE REPORTING
1-800-825-3341
National Court-Reporting Coverage
janerose@janerosereporting.com
PDF Page 171
Twitter v. Elon Musk
CONFIDENTIAL
[FINAL]
September 21, 2022
Jared Birchall
Page 361
JANE ROSE REPORTING
1-800-825-3341
National Court-Reporting Coverage
janerose@janerosereporting.com
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