Alex Castro / The Verge
Twitter’s lawyers argued David Sacks’ main reason for trying to fight a subpoena filed in their case against Elon Musk is because he said he would on a podcast, and in a ruling issued Friday, the judge agreed.
Chancellor Kathaleen St. Jude McCormick (pdf):
In an apparent effort to keep Sacks’s promise to his podcast listeners, the movants created the very burden of which they now complain.
The Motion to Quash is denied.
This closes a side story to the main event of Twitter suing Elon Musk over his attempt to get out of their $44 billion acquisition agreement after the company’s lawyers subpoenaed Sacks as “a potential investor in the merger Musk seeks to escape.” Sacks is a venture capitalist and, along with Musk, is a member of the so-called “PayPal Mafia” comprised of the company’s former power players.
As Elizabeth Lopatto explained earlier this week, Sacks reacted to the subpoena during an episode of his All-In podcast, saying, “I have no involvement in this thing, but they sent me the broadest ever subpoena. It’s like, 30 pages of requests. And now I gotta hire a lawyer to go quash this thing.”
What happened next was described by Twitter’s lawyers in their motion to oppose the request: “That evening, he Tweeted a virtual middle-finger at “Twitter’s lawyers,” then a video of a man urinating on a subpoena while yelling expletives to a cheering crowd.”
While that strategy may work if you want a bit of internet clout, it did not help his case. Twitter’s lawyers filed additional subpoenas covering Delaware and California, and lawyers representing Sacks based their motion to quash on an argument that this move added to an undue burden placed on him.
Judge McCormick decided Twitter had “valid concerns” based on Sacks’ own actions and refused his request. “In other circumstances, I might view entirely duplicative subpoenas served for such tactical purposes as problematic. Where, as here, the subpoena recipient Tweets the subpoenaing attorneys the middle finger and a video of someone urinating on subpoenas, I am less bothered by it,” writes McCormick.