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(Photo by Nathan Laine/Bloomberg via Getty Images)
Elon Musk continues to rack up legal milestones. From waiving due diligence and belatedly learning that he could no longer dip out on buying Twitter to filing a “thermonuclear” lawsuit alleging aggravated fact talking, Musk navigates the legal world with all the reliability of the SpaceX Starship. But he’s not managed to get a Biglaw firm sanctioned.
Yet!
In a new motion, attorneys for Benjamin Brody, the student that Musk publicly tied to a neo-Nazi fight suggesting that it was “a probable false flag” operation, filed a motion for sanctions against Quinn Emanuel’s Alex Spiro over his conduct in the case.
It starts off with a heater:
Spiro, a Madison Avenue celebrity lawyer, does not feel compelled to obey our rules. As shown below, he has seriously overstepped his bounds, and sanctions should issue.
Did not know there was an official antonym to the “I’m just a simple country lawyer” trope, but we’ve found it.
The heart of the motion is Musk’s March 27th deposition — which Musk and Spiro tried unsuccessfully to keep sealed — where Musk managed to bumble his way into admitting most of the elements of the suit, shrugging off the whole “making incorrect statements of fact” with “There’s some risk that what I say is incorrect, but one has to balance that against having a chilling effect on free speech in general, which would undermine the entire foundation of our democracy.” No, in fact, you do not.
In any event, Spiro showed up to defend Musk in that deposition, notably without local counsel.
However, neither of these attorneys were present at Musk’s deposition. Instead, and unbeknownst to Plaintiff ’s counsel, out-of-state attorney Alex Spiro showed up to the deposition with no notice. Spiro is not licensed in Texas, nor is he admitted pro hac vice.
Perhaps if he’d had local counsel present he might’ve known that the bid to mark the deposition confidential after it concluded would run into a brick wall with the court. Texas requires protective orders be litigated out before the discovery takes place, while Musk’s lawyer only asked for the protection as he prepared to jump off the deposition.
Things veered into the wall faster than a Tesla on a bad day.
Q. Mr. Musk, I’m referring to the fact that on June 24th, 2023, as described in the plaintiff Ben Brody’s lawsuit, there was a brawl in Oregon between right wing extremists. Were you aware that that was the subject matter of the lawsuit?
MR. SPIRO: I don’t know that that’s the subject matter of the lawsuit. I think the subject matter of the –
MR. BANKSTON: A subject matter of the lawsuit. And, Mr. Spiro, again, your objections to questions in an oral deposition under Rule 199.5 are limited to objection; leading and objection; form, or objection; nonresponsive. Those objections are waived if not stated as phrased. All other objections need not be made or recorded during the oral deposition to be raised to the court. You must not give any suggestive or argumentative or any explanations during the deposition.
MR. SPIRO: Well, then don’t say things that are misleading.
MR. BANKSTON: No. That’s not — that’s why you should object to the form of the question.
MR. SPIRO: No, no, it’s not –
MR. BANKSTON: That’s misleading. Mr. Spiro, you know — Mr. Spiro —
MR. SPIRO: Listen, if you want to go back and forth with me and waste your time, you can. Go on to your next question.
MR. BANKSTON: Oh, we’re going to get more time if you keep doing this.
MR. SPIRO: No, you’re not. No, you’re not. Go to the judge —
MR. BANKSTON: You’re violating Rule 199, you’re not even pro hac admitted.
MR. SPIRO: Okay. Okay. You’re just giving speeches that nobody’s listening to but you. You’re just doing them for yourself.
MR. BANKSTON: Oh, they’re for the record, Mr. Spiro, they’re for the court to listen to.
MR. SPIRO: Okay. So keep —
MR. BANKSTON: And I would appreciate it — I’m going to give you an instruction. I would appreciate it if you would abide by Rule 199.5 of the Texas Rules.
MR. SPIRO: I heard you the first three times.
MR. BANKSTON: Mr. Spiro, please do not interrupt me.
MR. SPIRO: I heard you the first three times.
MR. BANKSTON: Mr. Spiro, please do not interrupt me. I’m asking you on the record to obey Rule 199.5. If you continue to violate Rule 199.5, I will move for sanctions against you. So I please ask you to obey the rules in the remainder of this deposition.
Pushing the envelope on speaking objections is a time-honored practice, but most lawyers at least play it off with mock contrition and a “did I do that?” The flipside would be…
MR. SPIRO: I am going to interrupt again, and I don’t really care that rule you keep reading because it has nothing to do with –
MR. BANKSTON: I know you don’t.
MR. SPIRO: Good.
There will be another several references to Rule 199.5 throughout the deposition despite ample breaks that might’ve afforded anyone an opportunity to look it up. But the sanctions request goes beyond the form of objections:
MR. SPIRO: This isn’t like a real case. This is just some stupid —
MR. BANKSTON: Mr. Spiro.
MR. SPIRO: Yeah, so —
MR. BANKSTON: Lawyers do not — It is not in accordance with the Lawyer’s Creed to just start making random statements about the alleged frivolity of a case to a lawyer in a deposition. You know that’s not proper. You know that.
MR. SPIRO: Do you give these lectures in all of your depositions?
Hopefully not? Because most depositions don’t involve lawyers insulting the case on the record. Or the other attorneys:
- “I’m surprised you don’t know they’re not proper questions.”
- “Maybe just ask proper questions.”
- “There’s nothing about me saying that that changes what he’s going to answer. That’s not how witness coaching works. I’m surprised you don’t know that.”
- “Any judge reviewing this will tell you it’s not a proper question.”
It remains to be seen whether or not “any judge” will say these are improper questions, but given the Musk team’s track record with the confidentiality requests, I’m not sanguine about their chances.
Look, Texas isn’t exactly known for genteel depositions…
But even that fight was a product of trying to keep objections in check, so Spiro should’ve known the state’s attorneys get testy with objections that they don’t think conform to local rules.
The motion lodges more arguments for sanctions based on disagreements over relevance and the scope of the deposition that present contestable disputes for the judge to resolve. But using a deposition to denigrate the plaintiff’s case and the attorneys involved is a breach of professional decorum regardless of the specific Texas rules. Musk may want “hardcore” lawyers, but this behavior is less hardcore than petulant. Call the case “meritless” and call the questions “wildly improper” in a brief, but keep the “This isn’t like a real case. This is just some stupid –” remarks off the record. Especially a video record!
And then there’s this footnote…
Another troubling issue should be noted for context. During his deposition, Musk was asked about a Twitter account called @ermnmusk that he was rumored to use. (Id. at 44:11-12; see also Ex. 2, @ermnmusk account). Musk testified that he used the account during the summer of 2023, which means he viewed and interacted with tweets on this account around the time when Brody was defamed. (Id. at 45:17). Thus, information Musk interacted with on this account near the time of the defamation could be relevant to Brody’s claims. However, when Plaintiff ’s counsel checked the account after the deposition, they discovered it had been deleted. According to @BigTechAlert, an automated bot that tracks Twitter activity, it appears the @ermnmusk account was deleted on or about February 21, 2024….
This deletion is alarming because February 21, 2024 is the date of the Court’s discovery order. In other words, after almost a year of inactivity on the account and with no recent public discussion about it, it appears Musk chose to delete the account on the day the Court ordered discovery to go forward, which is either intentional spoliation or an extraordinary longshot coincidence.
Um. That’s… not good.
Earlier: Elon Musk Will Beat Twitter! WSJ Says It’s Obvious… Assuming You Change Every Single Fact And Law.
Elon Musk’s ‘Thermonuclear Lawsuit’ Is Here And It’s… Positively Tepid.
Elon Musk Takes Time Out From Failing To Buy Twitter To Fail To Build His Own Law Firm
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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