In the latest twist in the Twitter v Musk proceedings, Musk’s legal team has subpoenaed Twitter founder, Jack Dorsey, ahead of the court battle due to take place in October.

Dorsey famously stepped away from the tech giant in November 2021, before being replaced by Parag Agrawal. He has previously tweeted that Twitter is “held back” by its current model.

To remind you, and as I discussed in more detail in my earlier article, Twitter has issued proceedings against Musk seeking that the Court compel him to complete the deal to buy the company. Musk has counterclaimed via a 165-page document, which boils down to alleged misrepresentations by Twitter regarding the number of spam bots on the site.

The subpoena requests any communication between Dorsey and his Twitter executives since 1 January 2019 that may be relevant to the “impact or effect of false or spam accounts on Twitter’s business and operations”.

The decision to subpoena Dorsey is an interesting one given his longstanding friendship with Musk. Dorsey has previously publicly endorsed Musk’s buyout and move to take the company private. In April 2022, he tweeted that he believed Musk was the “singular solution” for Twitter. 

A recent ruling by Judge McCormick sitting at Delaware Chancery Court also gave Musk’s team access to information from Kayvon Beykpour, the former head of product, and another former exec, Bruce Falck.

It is anticipated the purpose of the subpoenas is to cast a wide net as to the information or documentation that may be in existence to support Musk’s case. In particular, any information that shows that Twitter have not been upfront with the level of spam bots on the platform.

What is a subpoena?

Essentially, a subpoena is simply another term for a witness summons. There are two separate types of subpoena. A “subpoena duces tecum” where the court requires you to provide certain, specified documents, or a “subpoena ad testificandum”, which requires you to go to court and give evidence. In this instance, Dorsey was served with a subpoena duces tecum only.

A subpoena can be served in either civil or criminal cases (for example, see the latest news regarding the FBI and Donald Trump).

Once subpoenaed can you avoid giving evidence? 

Provided a subpoena is served correctly, which appears undisputed in this instance, failure to comply is potentially punishable by contempt of court.

In the first instance, where a witness fails to comply or objects to a subpoena, the issuing party may need to ask the court to intervene. The party seeking to compel compliance must prove the circumstances of the witness’s non-compliance, and why their objection lacks justification. Explanations as to why an individual is unable or unwilling to comply with a subpoena can be wide ranging, from the request being overly broad and unduly burdensome, or where the information sought is privileged (i.e. subject to a legal right which allows a person to resist compulsory disclosure of documents or information).

If successful in defending an objection, the primary relief is likely to be the court compelling the individual to comply with the terms of the subpoena. Contempt sanctions will generally only follow when and if the individuals fails to comply with the court’s order.

Time will tell whether Dorsey will comply with the subpoena and what, if anything, is retrieved which furthers Musk’s counterclaim.

Obtaining legal advice at an early stage of a contract dispute can help address problems before they escalate and can prevent cases going to court unnecessarily. If you are dealing with a contract dispute, Ince can help. Please contact me here