The Perfect Enemy | Musk declined to attend in-person Twitter deposition, citing COVID exposure risk
October 27, 2023

Twitter’s attorneys accused Elon Musk of seeking to evade his deposition in the ongoing legal battle between Musk and the company after he refused to attend in person, citing the interviewing attorney’s exposure to COVID-19.

In a newly public letter to the Delaware Court of Chancery, Twitter’s attorneys said Musk was slated to sit down for a two-day, in-person deposition beginning Sept. 28 but later claimed “Covid exposure risk” because the attorney interviewing him had brief contact four days prior with a person who tested positive the following day.

Twitter filed the suit against Musk in an attempt to require him to follow through with his agreement to acquire the social media company, which he later tried to back out of. But with a trial approaching later this month, Musk on Tuesday said he would move forward with buying the company at the price he originally offered.

Twitter’s attorneys cast doubt on Musk’s sincerity in declining to attend last month’s deposition, noting that the infected contact initially tested negative after seeing the attorney and that the attorney had not shown any symptoms and repeatedly tested negative for COVID-19.

“Trial begins in under three weeks,” they wrote. “Mr. Musk is a central witness and Plaintiff is concerned he is seeking to evade fair examination commensurate with his role in the matters in dispute.”

Musk’s attorneys pushed back on that characterization in a subsequent letter filed with the court, saying Twitter’s letter “omits critical facts.” They said Musk offered to testify remotely instead but Twitter itself decided to reschedule the deposition.

“Defendants made the reasonable request — consistent with [Centers for Disease Control and Prevention] guidelines,” Musk’s attorneys wrote.

Musk’s deposition was rescheduled for Thursday and Friday, according to Twitter’s letter.

Musk had attempted to walk away from the Twitter deal for weeks, arguing the company misrepresented how many spam accounts exist on the platform.

His attorneys also tried to back out of the deal over Twitter’s handling of high-profile whistleblower Peiter “Mudge” Zatko, the social media company’s former security chief who came forward with allegations of widespread security deficiencies. 

Even with Musk’s decision this week to move forward with his takeover bid, the trial has yet to be canceled.

Kathaleen St. Jude McCormick, the court’s chancellor, said on Wednesday that neither Twitter nor Musk had moved to stop the trial.

“The parties have not filed a stipulation to stay this action, nor has any party moved for a stay,” she wrote. “I, therefore, continue to press on toward our trial set to begin on October 17, 2022.”