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The Twitter v. Elon trial pregame heats up

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Suits, countersuits, and subpoenas galore

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Illustration by Alex Castro / The Verge

This Week In Elon, we’re talking about M&A again — but this time, we mean mergers and acquisitions — not marriages and affairs.

The Delaware Court of Chancery handed Elon Musk an unfavorably speedy schedule last month in his ongoing fight to not buy Twitter, and now we’ve got specific dates for the trial: Elon and Twitter will square off from October 17th to October 21st. That leaves two and a half months for both parties to fight over what evidence they’ll get to introduce, and Twitter has already started digging — while Musk has been preparing a counterstrike with whatever dirt he’s already got.

As The Washington Post and the newsletter The Chancery Daily reported earlier this week, Twitter has cast a broad net of subpoenas over Musk’s business dealings. It’s requested info from high-profile deal participants like Marc Andreessen as well as longtime Musk friends like the organizers of the All-In Summit, where Musk spoke extensively about Twitter’s alleged bot problems just after he unilaterally declared the deal on hold.

The targets, naturally, aren’t too happy about this. Palantir founder Joe Lonsdale, who tweeted about receiving a subpoena, called it a “giant harassing fishing expedition,” while All-In podcast co-host David Sacks responded with a picture of a Mad magazine cover with a middle finger.

It remains funny that so much of this drama is taking place on Twitter, a platform Musk is portraying as hopelessly broken and speculated might be up to “80 percent or 90 percent” bots at the summit.

Musk did a lot of work recruiting people to make the Twitter deal happen, and Twitter is apparently hoping that could come back to haunt him in court — on top of everything he’s said in public on Twitter itself. So the company is poking through Musk’s extensive Silicon Valley Rolodex for statements that contradict his dire claims about bots or indications that he might be more upset about other things, like the plummeting stock market and his own declining wealth.

Some Musk associates had their own vested interest in the deal: days before Musk’s “on hold” tweets, for instance, All-In Summit co-organizer Jason Calacanis had been canvassing for investors who could back Musk’s initiative.

That’s just one prong of Twitter’s info-seeking campaign. While Musk has filed a couple of subpoenas of his own, the full list so far is overwhelmingly heavy on Twitter’s side, including more than a dozen banks and several investment firms. Twitter also wants a host of details about Tesla’s business operations, including the stock Musk sold to finance the acquisition.

For his part, Musk tapped content moderation company TaskUs and data analytics firms Concentrix and Innodata, plausibly to back up his claims that Twitter lied about its bot-catching prowess.

Musk’s lawyers have been busy in their own right, though — although it wasn’t immediately clear how busy. Early this week, he filed his own countersuit against Twitter. It’s spent the past several days under seal while both parties fight over how and when to reveal its details.

Twitter claims Musk caught the company short by sending over a copy late last week and then trying to unseal it early. A letter from its counsel says Musk’s countersuit refers “extensively to internal Twitter information and data,” and it’s asked for time to make redactions to the 163-page document.

Musk’s attorney cast the delay in a more nefarious light, declaring that “nothing” in the suit is confidential and “Twitter should not be permitted to continue burying the side of the story it does not want publicly disclosed.” Twitter won in a hearing, giving the company until Friday afternoon to propose redactions.

[Update: Since publication, Twitter has released the lawsuit and a response, which is composed largely of burns on Elon Musk.]

Musk got access to a tremendous amount of Twitter data as part of his acquisition, including a “firehose” API of posted tweets. There’s a lot of information he could throw into a countersuit, where he’ll presumably try to make his case that Twitter has purposely misrepresented its claims in a way that would breach their deal.

It’s not clear that Musk will make a persuasive version of this case because it’s not clear that a persuasive version of this case exists. If he were sitting on a bombshell that would reveal fraud, he’s had plenty of opportunities to detonate it.

Even so, if there’s one thing tech companies know by now, it’s that an antagonistic audience granted access to lots of data will find something nefarious-looking in it. Think of it as an extension of Masnick’s Impossibility Theorem, which holds that good content moderation at scale is impossible. And if Musk can’t have Twitter on his terms, he might be more than happy to attack it however he can.

Twitter has a very real, ongoing struggle with fake or duplicate accounts. At least some details from its API may well reflect that. How well Musk could frame this as Twitter being completely full of bots or some other unsavory content — not just to the court itself but also to the public — is still an open question. And a lot of people want a piece of Twitter, including Texas Attorney General Ken Paxton, who got involved with his own investigation earlier this year.

In a worst-case scenario for Twitter, Musk could dig up information that triggers new demands from regulators. In a weirdest-case scenario, he digs up something damaging on Twitter… but loses the case and has to tangle with those regulators as its owner.

As Bloomberg’s Matt Levine has diligently outlined, making Twitter look bad doesn’t necessarily get Musk out of the deal, and Musk acquired Twitter partly because he knew it had a lot of bots and wanted to get rid of them. But legal filings are a great place to learn things that companies generally don’t want you to know, and as the Twitter trial heats up, Musk could decide he wants to punish Twitter simply by using the public record.

Outside the court battle, it’s been a comparatively quiet week for Musk. Yes, some SpaceX debris, described as looking like an “alien obelisk,” might have crash-landed on an Australian farm. And apparently his father isn’t proud of him — or at least wishes people would give the rest of the Musk family some more airtime. But look at this adorable Shiba Inu video he tweeted! We can only hope Twitter will subpoena them, too.