Just before Musk backtracked, a judge said Twitter could hunt for secret chats with whistleblower

Elon Musk may have said the deal is back on, but his legal fight with Twitter is still producing some eleventh-hour twists and turns.

In a late Monday filing with the Delaware Court of Chancery, Judge Kathaleen McCormick weighed in on Twitter’s request for additional discovery around potential messages between Musk’s inner circle and the Twitter whistleblower, former head of security Peiter “Mudge” Zatko. While Zatko has stated under oath that he did not contact Musk or his team, Twitter wants to keep looking in light of a mysterious email from May 6 that turned up in the files of Quinn Emanuel, a legal firm that represents Musk.

Specifically, someone reached out with an anonymous ProtonMail account on that date purporting to be a “former Exec at Twitter leading teams directly involving Trust & Safety/Content Moderation.” In the email, the sender suggests that Musk’s team get in touch on another platform (through “alternate secure means”) in order for them to provide information about Twitter.

Musk’s team wanted to limit any additional search for possible messages with Zatko, while Twitter pushed to search any digital communications, including texts, instant messages and printed documents, from a wider swath of Musk’s close contacts.

In the new letter, Judge McCormick rejected Musk’s legal team’s argument that Zatko’s denial makes additional discovery irrelevant. She also shot down the argument that because the email, which was sent to Musk lawyer Alex Spiro, wasn’t forwarded to anyone else that there’s nothing else to learn from additional searches:

“Defendants’ interrogatory answers do not obviate the need for Plaintiff to test those answers through document discovery; if they did, document discovery would rarely be permitted. Zatko’s testimony, while sworn, is not susceptible to a credibility assessment at this stage and is therefore not dispositive. Moreover, Defendants’ statements concerning the May 6 email raise more questions. For example, Defendants do not state whether anyone replied to the May 6 email or took any steps (successful or otherwise) to determine the sender’s identity. The timing and the contents of the May 6 email render it at least plausible that Zatko was the author.”

McCormick notes that because Musk relies heavily on new revelations from Zatko, Twitter has the right to figure out if he had any prior contact with Musk or Musk’s team that hasn’t come to light. Ultimately, she says that Twitter can search “beyond emails,” using 15 search terms of their choosing to find what they’re looking for, including in paper files. Musk’s team was ordered to provide the additional documents by this Friday, October 7. Spiro would also be required to explain what he did after receiving the anonymous email in an affidavit that should be filed by this Wednesday, October 5 — but that’s assuming there’s still a trial.

In his letter to Twitter, filed with the SEC, Musk says that he’ll proceed with buying Twitter as promised, but only if the Chancery Court will “adjourn the trial and all other proceedings related thereto pending such closing or further order of the Court.”

With anyone but Musk, we’d assume a letter of intent filed with the SEC would mean a done deal, but this entire saga has never resembled anything approaching a done deal. The timing of Musk’s decision to suddenly put the deal back on the rails is curious and so is the mysterious May 6 email that we may never have answers about, assuming the trial indeed does get called off.

It’s impossible to know if his about-face has anything to do with the Mudge intrigue or the realization that new intel from the whistleblower might not carve him a clear exit out of the deal, but this is Silicon Valley’s most mercurial man we’re talking about — it’s just as likely that miscellaneous rich men sliding into his texts or an unscientific Twitter poll about complex and sensitive geopolitical events tipped the scales the other way.

Letter Addressing the Parti… by TechCrunch