Missing Text Messages Shown By Third-Party Production & Responsive Texts

Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”?
September 7, 2022

An article by Jef Feeley, Judge Slams Musk for Mishandling Records in Twitter Fight (1) (bloomberglaw.com) (Sept. 7, 2022), states that Delaware Chancery Judge Kathaleen St. Jude McCormick found “glaring deficiencies” in Elon Musk’s production of text messages in discovery. The article states:

“Third parties produced text messages with Musk that Musk himself did not produce,” she said. Some of the exchanges he produced also had obvious gaps.

McCormick noted that Musk produced two texts sent to him 18 minutes apart on June 17 by Robert Steel of Perella Weinberg. Steel first asked a question and then subsequently texted, “Ok. Got it…” The second text clearly indicated that Musk replied to the first, the judge said.

“Assuming that Musk’s response was not telepathic, one would expect some evidence of it in defendants’ document production,” McCormick wrote. “But defendants provided none by the deadline for substantially completing document discovery.”

Electronically stored information is both fragile – it is easily destroyed – and persistent – it appears in many places.

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