Case Information
*1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA GIUSEPPE PAMPENA, et al., Case No. 22-cv-05937-CRB (DMR) Plaintiffs, ORDER ON REQUESTS FOR ADMISSION v.
Re: Dkt. Nos. 207, 208 ELON MUSK, Defendant.
Plaintiffs initially challenged 92 requests for admission (“RFAs”) [Docket Nos. 129, 169],
and Defendant contested 233 RFAs [Docket Nos. 136, 172]. On April 25, 2025, Plaintiffs filed a unilateral letter stating they were withdrawing their motion to compel responses to all but seven RFAs. [Docket No. 199.] The court ordered the parties to meet and confer, [Docket No. 200], and the parties refined their disputes and significantly narrowed them. Defendant now moves to compel further responses to 24 RFAs. [Docket No. 207 (Def. JDL).] Plaintiffs move to compel further responses to seven RFAs. [Docket No. 208 (Plf. JDL).]
This matter is suitable for determination without oral argument. Civ. L.R. 7-1(b). For the reasons stated below, the court grants the motions in part and denies them in part.
I. BACKGROUND
This is a securities class action. Plaintiffs allege that on April 25, 2022, Twitter and an entity wholly-owned by Defendant Elon Musk entered into an agreement (the “Merger Agreement”) for the acquisition of Twitter at $54.20 per share. [Docket No. 48 (Order on MTD) at 2]. According to Plaintiffs, Musk then made several misrepresentations to “artificially depress the price of Twitter stock and to pressure Twitter to lower the price Defendant would have to pay to acquire it.” at 1.
*2 A. Legal Standards for Securities Fraud
“Plaintiffs alleging securities fraud under Section 10(b) must plead the following elements:
(1) a material misrepresentation or omission; (2) scienter; (3) a connection with the purchase or
sale of a security; (4) reliance on the misrepresentation; (5) economic loss; and (6) loss causation
(a causal connection between the material misrepresentation and the economic loss).” Order on
MTD 17 (citing
Dura Pharm., Inc. v. Broudo
,
for failure to state a claim. [Docket No. 34 (FAC).] The Honorable Charles R. Breyer granted the motion in part and denied it in part. In so doing, the court analyzed each of the alleged misstatements to determine whether Plaintiffs met the pleading standard to state a securities fraud claim. The court held that, as alleged, Defendant’s statements on May 13, 16, and 17, 2022 met the “material misrepresentation” standard. Order on MTD at 20, 23-25. Specifically, Defendant’s May 13 tweet suggested that “the Twitter deal was on hold—and would not close—until Twitter provided information supporting its bot calculations. Or, put another way, a reasonable investor could have plausibly understood that Twitter was obligated to provide Defendant with the requested information for the deal to close.” Id. at 19. “Because Plaintiffs have plausibly alleged that Twitter did not have that obligation, Defendant’s statement that the deal was on hold pending details from Twitter about its bot calculations was materially misleading to reasonable investors.” Id. at 20. Defendant’s May 16 statement and tweets stated that 20% of Twitter’s users were bots; the court held that Plaintiffs plausibly alleged the investing public was misled to believe Defendant had received this information from Twitter, when in fact he had not. at 23. Defendant’s May 17 tweet suggested that the percentage of Twitter bots could be higher than 20% *3 and that the deal could not move forward without proof from Twitter that the bots were less than 5%. The court held that Plaintiffs sufficiently pleaded these statements were false, for the same reasons stated above. Id. at 24-25.
With respect to Defendant’s letters sent to Twitter on July 8, August 29, and September 9, 2022 terminating the Merger Agreement, the court held that they did not support a securities fraud claim because Plaintiffs had not sufficiently pleaded that the letters were false. Id. at 27. “Plaintiffs do not adequately specify which statements within the various letters are misleading or state the reason or reasons why they are.” Id. (citing the PSLRA standard).
The court then analyzed scienter regarding the May 13, 16, and 17 statements. Specifically, the court examined the allegations that: “(a) Defendant ‘personally negotiated’ the Merger and therefore had actual knowledge of the falsity of the statements; (b) Defendant had a motive to depress Twitter stock; (c) Defendant’s actions and ultimate settlement in the Delaware action are evidence of scienter; and (d) Defendant’s dismissal of his financing lead is evidence of scienter.” Id. at 29. The court found that Plaintiffs’ allegations, “when viewed holistically, give rise to a strong inference of scienter.” at 30. II. LEGAL STANDARDS A party may serve on any other party a written request to admit the truth of any nonprivileged matter that is relevant to any party’s claim or defense relating to (1) facts, (2) the
application of law to fact, or opinions about either, or (3) the genuineness of any described
documents. Fed. R. Civ. P. 36(a);
see also
Fed. R. Civ. P. 26(b)(1). “While the party seeking to
compel discovery has the burden of establishing that its request satisfies relevancy requirements,
the party opposing discovery bears the burden of showing that discovery should not be allowed,
and of clarifying, explaining, and supporting its objections with competent evidence.”
Lofton v.
Verizon Wireless (VAW) LLC
,
It is well-established that “[t]he purpose of Rule 36(a) is to expedite trial by establishing
certain material facts as true and thus narrowing the range of issues for trial.”
Asea, Inc. v. S. Pac.
Transp. Co
.,
17 Most of Defendant’s disputed RFAs seek admissions about Plaintiffs’ interpretation of the 18 Merger Agreement. These RFAs fall into two groups. The first group asks whether the Merger 19 Agreement is “ambiguous” or “decipherable” on certain issues. For example, RFA 35 states: 20 “Admit that the Merger Agreement is ambiguous as to whether Twitter was required to provide 21 Bot Data as a condition to closing under the Merger Agreement.” [Docket No. 207-1.] RFA 36 22 states the opposite: “Admit that the Merger Agreement is not ambiguous as to whether Twitter 23 was required to provide Bot Data as a condition to closing under the Merger Agreement.” Id. 24 RFAs 37-38, 45-46, 49-50, and 61-64 ask similarly paired questions, either seeking admissions 25 about whether the Merger Agreement is or is not “ambiguous,” or is or is not “decipherable.” 26 The second group of disputed RFAs about the Merger Agreement (230-231, 234-235, 238- 27 239, and 242-245) asks Plaintiffs to admit or deny specific interpretations of the Merger 28
*5 Agreement related to Sections 6.4 and 6.11. For example, RFA 230 states: “Admit that the Merger Agreement required Twitter to comply with Section 6.4 of the Merger Agreement from April 25, 2022 through the Closing Date.” RFA 238 states: “Admit that had Twitter breached Section 6.4 of the Merger Agreement prior to the Closing Date, it would not have performed or complied in all material respects, with its obligations required under the Merger Agreement to be performed or complied with by Twitter on or prior to the Closing Date.”
Plaintiffs object to all of these RFAs for a variety of reasons, including that the RFAs call
for legal conclusions, that Plaintiffs had no control or authority over the Merger Agreement, that
the terms used in the RFAs such as “decipherable” are vague and ambiguous, and that the RFAs
are premature because discovery (including expert discovery) is ongoing related to the requests.
Whether it is appropriate to use an RFA to seek an admission about a party’s interpretation
of a contract provision depends on the circumstances.
See AETC II Privatized Hous., LLC v.
United States
, No. 22-345C,
Here, RFAs 230-231, 234-235, 238-239, and 242-245 do not ask about specific terms in
Plaintiffs’ own contract. Rather, they ask Plaintiffs to admit or deny different interpretations of
the Merger Agreement; for example, to admit or deny if Twitter would have been in breach of the
Merger Agreement if it withheld certain information. The court finds that these RFAs are
improper because what the Merger Agreement did or did not require Defendant and Twitter to do
is hotly disputed and central to Plaintiffs’ theory of securities fraud. “Issues obviously subject to
dispute should be resolved at trial, not in a discovery motion [to compel a response to an RFA].”
Stokes v. Interline Brands Inc
, No. C-12-05527 JSW (DMR),
RFAs 61-64 ask whether the Merger Agreement was “decipherable” as to Defendant’s
rights. Defendant does not explain what he means by “decipherable,” other than by pointing to
one of Plaintiffs’ briefs from last year which used the word “decipher” two times. Def. JDL 3;
[Docket No. 62]. Plaintiffs’ brief did not use “decipher” as a legal term, and the brief does not
elucidate Defendant’s use of the term “decipherable” in his RFAs. Generally, if the parties are
unable to agree with the exact wording of an RFA, they should agree to an alternate wording or
stipulation.
See Marchand v. Mercy Med. Ctr
.,
The court finds that RFAs 35-38, 45-46, and 49-50 are permissible because they ask
whether the Merger Agreement was “ambiguous” as to Defendant’s rights according to Plaintiffs’
own understanding of the contract. There appears to be no genuine dispute about this. Plaintiffs
already stated in response to Defendant’s Interrogatory No. 4 that they “do not believe that any
provisions in the Merger Agreement were ambiguous,” a position which they reiterated in the joint
discovery letter. Def. JDL 3. As such, Plaintiffs cannot credibly claim they lack information
sufficient to admit or deny that the Merger Agreement was ambiguous as to Defendant’s rights.
See Sorenson Grp. Holdings
,
available at https://sparktoro.com/blog/sparktoro-followerwonk-joint-twitter-analysis-19-42- ofactiveaccounts-are-fake-or-spam/, which is attached hereto as Exhibit 2.” [Docket No. 207-1.] RFA 222 states the opposite: “Admit that on May 15, 2022, SparkToro did not publish a post available at https://sparktoro.com/blog/sparktoro-followerwonk-joint-twitter-analysis-19-42- ofactiveaccounts-are-fake-or-spam/, which is attached hereto as Exhibit 2.” Id. Plaintiffs objected on the basis of lack of personal knowledge, noting that the referenced link “results in a message ‘404. Oops! That page can’t be found.’” Id.
“[A] party may not refuse to admit or deny a request for admission based upon a lack of
personal knowledge if the information relevant to the request is reasonably available to him.”
Asea, Inc. v. S. Pac. Transp. Co.
,
Defendant asserts that Plaintiffs demonstrably have access to the SparkToro article because Plaintiffs attached it to their own discovery requests. Def. JDL 3. During meet and confer, Defendant located the internet archive version of the article which indicated that the article was published on May 15, 2022 and sent it to Plaintiffs. Defendant argues that Plaintiffs could have conducted a reasonable inquiry and discovered enough information to answer the RFAs. Defendant’s arguments lack merit. The link in the RFAs is broken. Defendant made no attempt to amend the RFAs to provide Plaintiffs with a functional link. Furthermore, having access to a third party’s article and an archived version of the article does not mean Plaintiffs are in a position to verify that the third party published the article on a particular date, which is what the RFA asks. Defendant’s motion to compel a response to RFAs 221-222 is denied. IV. PLAINTIFFS’ REQUESTS FOR ADMISSION (JDL 208) Plaintiffs seek to compel a response to RFAs 229, 383-386, and 388-389. Plf. JDL.
Defendant refuses on the basis that the RFAs are not relevant or are improper. Id.
A. Twitter’s Content Moderation After Acquisition (Plf. RFA 229) Plaintiffs’ RFA 229 states: “Admit that, since October 26, 2022, Elon Musk personally has made decisions about content moderation on the Twitter Platform.” [Docket No. 208-1.]
Defendant argues that Twitter’s post-class period content moderation activities, and
Defendant’s alleged involvement in them, are irrelevant to the elements of Plaintiffs’ securities
fraud claims. Plf. JDL 3-4. Plaintiffs asserts that the RFA is relevant because they expect
Defendant to testify that he bought Twitter to “advance free speech.” at 2. To rebut this
expected motive testimony, Plaintiffs seek evidence to support that after Defendant acquired
Twitter, he banned or suspended Twitter accounts that did not match his own political beliefs.
Id.
*9
At this stage, it is not clear whether particular evidence about Defendant’s motives for
buying Twitter will be admissible. However, information “need not be admissible in evidence to
be discoverable.” Fed. R. Civ. P. 26(b)(1). Defendant cites
Graf v. United States
, No. CR 04-
00492 MMM,
Here, Plaintiffs assert that Defendant might testify about his motives for purchasing Twitter at trial, and Defendant does not dispute this. In addition, Defendant’s motives for purchasing Twitter could go toward Defendant’s state of mind during his alleged later attempts to back out of the purchase or renegotiate it. In such circumstances, evidence that would tend to contradict Defendant’s testimony about his motives could go to Defendant’s credibility as a witness on a material fact. This would not be a collateral matter. The response to the RFA might not ultimately be admissible, but under the broad scope of Rule 26(b), it is relevant and discoverable. Plaintiffs’ motion to compel a response to RFA 229 is granted. B. Renegotiating the Price (Plf. RFAs 383-384) Plaintiffs’ RFA 383 states: “Admit that Elon Musk never publicly stated that he wanted to renegotiate the price of the Twitter deal after May 11, 2022 but before October 4, 2022.” [Docket
No. 208-2.] Plaintiffs’ RFA 384 states: “Admit that Elon Musk never publicly stated that he wanted to pay a lower price than $54.20 per Twitter share after May 11, 2022 but before October 4, 2022.” Id. Defendant objects that these RFAs are not relevant. 21 Plaintiffs argue that these RFAs “go to the heart of Plaintiffs’ theory—that Musk made
22 misstatements and engaged in a fraudulent scheme in an attempt to renegotiate the price of the 23 Twitter deal.” Plf. JDL 2-3. Defendant asserts that because there is no allegation that Defendant 24
made any misrepresentations concerning a desire to renegotiate the price of Twitter, the RFAs are 25
irrelevant. at 4.
26
Defendant interprets relevance too narrowly. Even though Plaintiffs do not allege that 27
Defendant made a misrepresentation about renegotiating the price of Twitter, Plaintiffs do allege 28
*10 that Defendant made other misrepresentations as part of a secret scheme to pressure Twitter into lowering the price of the deal. Defendant’s public statements (or lack thereof) about renegotiating the Twitter price are thus relevant to Plaintiffs’ overall theory of liability. If no public statements on this topic were made, the responses to the RFAs could lend support to Plaintiffs’ argument that Defendant was enacting a secret scheme to try to renegotiate the price. Plaintiffs’ motion to compel a response to RFAs 383-384 is granted.
C. Calculation of Spam Accounts (Plf. RFAs 385-386)
Plaintiffs’ RFA 385 states: “Admit that, as of June 25, 2022, Twitter had provided Elon
Musk, or his advisors, with an explanation of Twitter’s methodology for calculating the number of
spam or fake accounts as a percentage of mDAU.” [Docket No. 208-2.] Plaintiffs’ RFA 386
states: “Admit that, as of June 25, 2022, Twitter had provided Elon Musk, or his advisors, with
some of the data Elon Musk had requested in order to calculate the number of spam or fake
accounts as a percentage of mDAU.”
Id.
Defendant objects that the RFAs are “not drafted in a
way to elicit a meaningful response from Defendant.”
Id.
Defendant provides no authority for his assertion that he can simply refuse to answer an
RFA if the answer would give “misleading impressions.” JDL 4. Defendant takes issue with
describing Twitter’s explanation of its bot calculation as a “methodology” because of how
allegedly “laughable” the explanation was.
Id.
This is not a reason to refuse to answer the RFAs.
Defendant may in good faith admit to only part of the RFA, or add a qualification to his answer to
explain the surrounding context.
See Tesla
,
Plaintiffs’ motion to compel a response to RFAs 385-386 is granted.
D. Advice of Counsel Defense (Plf. RFAs 388-389)
Plaintiffs’ RFA 388 states: “Admit that you are not asserting any defense based on advice of counsel, reliance on counsel, presence of counsel, or involvement of counsel in this case.” [Docket No. 208-2.] Plaintiffs’ RFA 389 states: “Admit you are not relying on, or intend to use, the presence, involvement or advice of counsel as evidence of your good faith, lack of intent, or state of mind in this case.” Id. Defendant objects on the basis that the RFAs are overbroad, as it is *11 not clear whether they encompass Defendant relying on the testimony of lawyers other than legal advice to Defendant (such as deposition testimony of a lawyer acting as a witness). Plf. JDL 4.
Plaintiffs assert that they simply want to confirm whether Defendant will rely on the advice of counsel defense. Plf. JDL 3. Defendant states that he is willing to confirm that he will not rely on the advice of counsel defense, and that he is willing to meet and confer with Plaintiffs to clarify the scope of the RFAs, but that Plaintiffs have not been open to that discussion. at 4.
The court finds that the wording of the RFAs is ambiguous. Plaintiffs have not explained why they cannot amend their RFAs to clearly state what they seek to confirm. The court orders the parties to meet and confer on language regarding the advice of counsel defense. Plaintiffs shall then amend the RFAs and Defendant shall answer them.
V. CONCLUSION The court grants Defendant’s motion to compel a response to Def. RFAs 35-38, 45-46, and
49-50. Plaintiffs shall respond to these RFAs by July 21, 2025. The court denies Defendant’s motion to compel a response to Def. RFAs 221-222, 230-231, 234-235, 238-239, and 242-245. The court orders the parties to meet and confer on Def. RFAs 61-64; any amended RFAs shall be served by July 21, 2025 , and Plaintiffs shall answer them by July 28, 2025 . The court grants Plaintiffs’ motion to compel a response to Plf. RFAs 229 and 383-386. Defendant shall respond to these RFAs by July 21, 2025. The court orders the parties to meet and confer on Plf. RFAs 388-389; Plaintiffs shall serve amended RFAs by July 21, 2025 and Defendant shall answer them by July 28, 2025 .
IT IS SO ORDERED.
Dated: June 30, 2025
______________________________________ Donna M. Ryu Chief Magistrate Judge