Elon Musk and America's Worst Judge Tag Team Match vs. Reality

And Look Out for the Fifth Circuit on the Top Rail!

Elon Musk is a danger to all living things, but in the short term, he poses the greatest threat of all to the First Amendment. After buying Twitter to “save” free speech, he’s filed an avalanche of trollsuits to punish media outlets, non-profits, and corporations for saying mean things about the platform or refusing to advertise on it. And thanks to like-minded jurists parked in single-member districts by Trump and Mitch McConnell, he’s been able to use the courts to bully his critics and subject them to harassing litigation that would be summarily dismissed in any other courtroom.

One of the best examples is the nonsense lawsuit he filed against the non-profit Media Matters for America after it posted screenshots of ads from companies like Apple and Oracle running next to explicitly pro-Nazi content — something which Ex-Twitter’s CEO Linda Yaccarino promised could not happen.

“The split second court opens on Monday, X Corp will be filing a thermonuclear lawsuit against Media Matters and ALL those who colluded in this fraudulent attack on our company,” Musk railed on November 18, 2023. And on November 20, he did indeed march in the Northern District of Texas, Fort Worth division and sue MMFA, the organization’s president Angelo Carusone, and reporter Eric Hananoki.

There’s no reason that this case should have been in Texas. Ex-Twitter is registered in California, and MMFA, Carusone, and Hananoki are domiciled in DC, New York, and Maryland respectively. But filing in Fort Worth virtually guaranteed that Musk could get his case in front of Judge Reed O’Connor, perhaps the only jurist in the country willing to totally disregard the most basic rules of civil procedure in his effort to stick it to the woke left.

In August, the judge denied MMFA’s motion to dismiss for lack of personal jurisdiction, despite the fact that the non-profit does essentially no business in the state of Texas. And then on September 27, he did something even crazier.

It Can’t Hurt To Ask

Ex-Twitter continued to press its advantage by requesting a bunch of frankly crazy things in discovery on the theory that they would “uncover evidence of Defendants’ motives and intentions … and reveal Defendants’ personal and political vendetta against X.” The company demanded the identity of every private donor to MMFA, all conversations with said donors or any potential donors of any kind, and all documents and communications regarding Ex-Twitter, Elon Musk, or Yaccarino — a transparent intrusion on MMFA’s reporting privilege.

The Fifth Circuit recognizes the reporter's privilege in civil cases, and Texas itself has a robust shield law. Indeed, no court has ever required news organization to cough up information on private donors as part of a generalized effort by a plaintiff to show subjective bias. But even apart from the First Amendment implications, Ex-Twitter’s discovery demands cannot pass the basic test for burden and relevance under Rule 26(b) of the Federal Rules of Civil Procedure, which says in relevant part that:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 

Media Matters, Carusone, and Hananoki refused to turn over internal reporting documents, assuming that even the worst judge in the country wouldn’t make them. To which Musk said “bet,” and filed his first motion to compel.

Ex-Twitter mostly lost that motion:

The Court therefore DENIES at this time Plaintiff’s Motion as to these RFP’s. … Because there is no privileged-documents protocol in place and the Defendants have not logged any responsive documents as privileged, the Court DEFERS ruling on RFP Nos. 17-18, 21, and 35 and any First Amendment privilege concerns until such a protocol is established and responsive documents have been identified. The Court ORDERS Defendants to log any responsive documents as privileged and deliver to Plaintiff no later than June 14, 2024.  

To a lawyer, that instruction is clear (if not pellucidly so). Judge O’Connor wasn’t going to decide a constitutional question in the abstract. MMFA needed to submit a privilege log of the documents it was withholding, specifying the authors, recipients, and various non-identifying information, as well as the legal basis for withholding it (such as attorney-client or reporter’s privilege). That would tee up a concrete discussion of how the privilege issue interacted with the sorts of documents MMFA was refusing to turn over. And so that’s exactly what MMFA did. 

Ex-Twitter, however, interpreted that instruction differently (or at least pretended to). It argued that MMFA was obliged to conduct an additional search of all of its documents, identify any that were responsive, and produce a privilege log of all of those as well — a massive undertaking of precisely the sort that Rule 26 was meant to protect against. 

That is clearly not what MMFA took from Judge O’Connor’s order to “create and deliver a privilege log of any documents being withheld from production to Plaintiff,” which pretty clearly refers to only the existing documents. [Emphasis added.] Particularly since MMFA was still objecting to even having to look for those documents, citing Rule 26(b)’s explicit protections from the “burden or expense” of unnecessary discovery. And furthermore, the order requiring the privilege log was entered on June 8, giving MMFA just six days to comply. Courts do not require a party to sort through potentially millions of emails and produce a detailed privilege log in less than a calendar week. That is not a thing!

Nevertheless, X filed a second motion to compel arguing that MMFA blew off the court when it refused to conduct an unnecessary search for additional donor documents. And that bet paid off bigly. Judge O’Connor granted the motion with extreme prejudice, excoriating MMFA for not doing a thing he did not clearly order it to do and construing its supposed “unwarranted and wholly unjustified” conduct as waiving all of its privilege claims.

Judge O’Connor Accuses MMFA Of Not Producing A Privilege Log

Judge O’Connor bases his ruling on a claim that “Defendants did not produce the privilege log at all, which is insufficient to preserve the privilege.”

That is simply false.

MMFA did produce the privilege log, and it had agreed to produce four more in the course of discovery. After the June 8 order, the court granted the parties’ joint motion to amend the scheduling order, extending discovery through April of 2025 and setting a June 28 deadline for MMFA to produce its “first” privilege log. Correspondence between the parties confirms that although Ex-Twitter disputed the contents of that log, the company never suggested that MMFA hadn’t produced one at all.

Indeed, MMFA not only turned over that log but agreed to produce supplemental privilege logs on September 6, October 11, November 15, and December 17. (The plaintiff filed its second motion to compel on August 30, before any of those additional logs would have been due.)

Contemporaneous communications between the parties’ lawyers bear this out. On July 29, counsel for X, Alex Dvorscak of Stone Hilton PLLC, criticized the contents of MMFA’s privilege log via email:

Regarding privilege assertions: it is insufficient for you to say that you’re asserting privilege arguments on a document-by-document basis when you refuse to log all responsive documents and when the Court specifically asked for the parties to “meaningfully concur” on the extent of the First Amendment privileges asserted. If our understandings of your privilege arguments are incorrect, please correct us in writing. If you continue to refuse to confer, we will raise your refusal to clarify the scope of your privilege assertions in our motion.

That same day, lawyers for MMFA responded:

With regard to your questions about our June 28 privilege log, each of your four assertions is mistaken. The privilege objections we raised in our log apply to the individual documents that were logged. Defendants have and will continue to raise objections on a document-by-document basis. Thus, it is possible that some documents falling within the four categories you enumerate will be produced and that other documents within those categories will be withheld or redacted and logged based on the Texas Press Shield laws, the First Amendment, or any other relevant privilege.

In other words, contrary to Judge O’Connor’s order, MMFA did produce a privilege and consistently asserted its First Amendment claims.

Judge O’Connor Finds That MMFA Abandoned Its First Amendment Claims (Which It Totally Didn’t)

In Judge O’Connor’s telling MMFA, Carusone, and Hananoki “amended their original objections” and “fail[ed] to reassert the First Amendment privilege,” thus waiving it. In a lengthy discussion comparing and contrasting MMFA’s original objections to its amended ones, the court notes that the second set omits to repeat objections on the basis of “associational information protected by the First Amendment privilege, the production of which would chill Defendants’ exercise of their First Amendment speech and associational rights.” And from this he infers that MMFA must no longer wish to assert such rights.

Except that on June 12, the parties jointly submitted a stipulation establishing the “privileged documents protocol,” as per the June 8 order. And that stipulation explicitly preserves those privilege objections:

Objections Preserved. Nothing in this Stipulation shall be interpreted to require disclosure of relevant information protected by the attorney-client privilege, attorney work-product doctrine, First Amendment Privilege, reporter’s privilege, shield laws, or any other applicable privilege or immunity. Except as provided expressly herein, the Parties do not waive any objections as to the production, discoverability, authenticity, admissibility, or confidentiality of documents and ESI.

That’s Some Catch, That Catch-22

As for the First Amendment claims, Judge O’Connor inexplicably held that those were waived because they were not explicitly raised in MMFA’s latest objection, even though they were argued at length in MMFA’s brief.

How, then, does Judge O’Connor get around MMFA’s explicit assertion of the undue burden claims in its objection?

Simple! Those, too, are waived, because, although MMFA asserted them in its objection, it didn’t argue them in its brief.

Defendants expressly objected that the [requests for production] were “overly broad, not reasonably particularized, unduly burdensome, harassing, and disproportionate to the needs of this case.” But insofar as they are not reasserted or relied upon in Defendants’ response, these objections are “deemed abandoned.”

In other words, MMFA’s First Amendment arguments are out because they appear only in the brief but not in the objections; and MMFA’s burden objections are also out because they appear only in the objections and not in the brief.

This is especially outrageous because MMFA’s brief was in response to Ex-Twitter'’s motion, and that motion was directed only to the First Amendment issue. So Judge O’Connor excoriated MMFA for not responding to an issue that was never raised. (Presumably, had MMFA asserted its burden objections, O’Connor would have excoriated them for briefing unnecessary issues not raised in Ex-Twitter’s motion.)

This Is Not Normal

Even if MMFA had “blown off the Court’s orders,” the proper remedy would have been sanctions, not waiver. In a normal courtroom, when there is a plausible explanation for the party’s conduct, judges do not race to impose the maximum penalty — particularly when core constitutional protections are on the line. When MMFA went back to Judge O’Connor and said words to the effect of “Sorry, your Honor, we didn’t think we had to conduct a search for these obviously inadmissible documents,” a normal judge would have said “Well, you should have,” and then ordered them to do it. Perhaps that normal judge would have ordered MMFA to pay some or all of the other side’s court costs associated with bringing the motion to compel. (Indeed, Judge O’Connor has forced MMFA to do just that in this case.)

But Judge O’Connor did far more, because the whole point of this exercise is to force MMFA to turn over documents protected from discovery under the Constitution and Texas law. And if Judge O’Connor’s ruling is allowed to stand, MMFA will be forced to hand over sensitive internal documents, which Musk will scour to see if some nonprofit donor to Media Matters received a one-time grant in 2017 from the Open Society Institute. Then he’ll launder the information through a public pleading, and post it on his social media site, where it will be cited as proof in the wingnutosphere that George Soros is bankrolling Media Matters to bring down Ex-Twitter.

And meanwhile, donors to Media Matters are likely freaking out at the possibility of being put on blast by the world’s most thin-skinned billionaire, who can summon a trollstorm or worse with the click of a mouse. All of which will make those donors less likely to give MMFA money in the future.

And Now … The Fifth Circuit (Ughhh)

MMFA’s obligation to produce the documents by last Monday has been stayed pending its interlocutory appeal. But that appeal is to the worst Circuit Court in the country, and it isn’t clear that anyone is going to ride to MMFA’s rescue.

For their part, Ex-Twitter’s lawyers are walking a tightrope, defending Judge O’Connor’s obvious lies without explicitly repeating them (so as to avoid sanctions of their own). They argue that a district court has “broad discretion to construe its own pretrial orders,” and a “district court’s interpretation of its own [prior] order is properly accorded deference on appeal when [that] interpretation is reasonable.”

Musk’s lawyers know that they can’t actually say that MMFA never filed a privilege log, because their own contemporaneous emails discuss their disagreement over the contents of the log that MMFA supposedly never produced. They’re tacitly asking the appellate judges to ignore the actual record and simply defer to Judge O’Connor’s dishonest recitation of the facts.

But this is the Fifth Circuit, so perhaps they’ll get their wish.