United States District Court, N.D. California
ORDER RE: MOTION TO QUASH SUBPOENAS Re: Dkt. No.
Jacqueline Scott Corley United States Magistrate Judge.
dispute arises out of subpoenas that Plaintiff Vernon
Unsworth (the “Unsworth Subpoena”) and Defendant
Elon Musk (the “Musk Subpoena”) issued to
non-party journalist Ryan Mac in a pending defamation action
in the United States District Court for the Central District
of California. See Unsworth v. Musk, No.
2:18-cv-08048-SVW-JC (C.D. Cal.). The underlying lawsuit
alleges that Mr. Musk made “false and defamatory
accusations” about Mr. Unsworth in public statements on
Twitter as well as emails Mr. Musk sent to Mr. Mac that were
subsequently published by Mr. Mac's employer, BuzzFeed
News (“BuzzFeed”). (Dkt. No. 2-1, Ex. W at 99
¶¶ 88-96.) Before the Court is Mr. Mac's motion
to quash the subpoenas. (Dkt. No. 1.) Having considered the
parties' briefing and having had the benefit of oral
argument on October 17, 2019, the Court GRANTS Mr. Mac's
motion to quash the Musk Subpoena as unduly burdensome
because the testimony it seeks is not relevant. The Court
DENIES Mr. Mac's motion to quash the Unsworth Subpoena.
underlying lawsuit stems from several comments Mr. Musk made
about Mr. Unsworth related to the well-publicized July 2018
rescue of twelve boys and their soccer coach from the Tham
Luang Nang Non cave system in Thailand. (Dkt. No. 2-1, Ex. W
at 87, ¶¶ 1-4.) The following facts are not in
dispute. Mr. Musk made the allegedly defamatory comments
after Mr. Unsworth gave an interview to CNN on July 13, 2018,
during which he characterized Mr. Musk's attempt to aid
in the rescue efforts by providing a mini-submarine as a
“‘PR stunt'” and stated that Mr. Musk
“‘can stick his submarine where it
hurts.'” (See Id. at 95-96, ¶¶
70-72.) In response to Mr. Unsworth's interview, Mr. Musk
posted several public statements on Twitter
(“tweets”) on July 15, 2018, including one in
which he referred to Mr. Unsworth as “pedo guy.”
(Id. at 97, ¶ 76; see also Dkt. No.
20-6 at 2.) Mr. Musk deleted the July 15 tweets three days
later, and in a July 18 tweet apologized to Mr. Unsworth.
(Dkt. No. 2-1, Ex. W at 98, ¶ 80; see also Dkt.
No. 20-8 at 2.) On or about August 28 or 29, 2018, Mr. Musk
responded on Twitter to a tweet regarding the
“pedo” comment by stating, in part, “You
don't think it's strange he hasn't sued
me?” (Dkt. No. 2-1, Ex. W at 99, ¶ 83; see
also Dkt. No. 20-15 at 2.) Mr. Unsworth's counsel
responded to Mr. Musk's tweet shortly thereafter,
tweeting that Mr. Musk “should check his mail before
tweeting” and attaching a copy of an August 6, 2018
demand letter from Mr. Unsworth's counsel to Mr. Musk in
which counsel notes that he is “in the process of
preparing a civil complaint for libel against [Mr.
Musk].” (Dkt. No. 2-1, Ex. W at 99, ¶ 87; see
also 20-16 at 2.)
is a journalist for BuzzFeed based in its San Francisco
office. (Dkt. No. 3 at ¶ 1.) On August 29, 2018,
BuzzFeed published an article written by Mr. Mac entitled
“The Cave Rescuer Elon Musk Called A ‘Pedo'
Has Lawyered Up And Is Preparing A Libel Claim”
(“August Article”). (Id. at ¶ 3;
see also Dkt. No. 3, Ex. B at 27.) Prior to
publishing the August Article, Mr. Mac emailed Mr. Musk the
morning of August 29, 2018, seeking to “talk about the
letter.” (Dkt. No. 20-17 at 5-6.) Mr. Musk responded to
Mr. Mac's email within the hour, questioning whether he
had “even bothered to research basic facts.”
(Id. at 5.) Mr. Mac emailed Mr. Musk the day after
BuzzFeed published the August Article “to make sure
[Mr. Mac] did [his] due diligence to research basic facts and
follow up.” (Id. at 4.) Mr. Musk responded
shortly thereafter with an email stating, in part:
Off the record
I suggest that you call people you know in Thailand, find out
what's actually going on and stop defending child
rapists, you fucking asshole.”
(Id. at 3.) Mr. Musk then sent Mr. Mac another email
on August 30, 2018 with the heading “On
background.” (Dkt. No. 20-18 at 2.) The email primarily
disputes Mr. Unsworth's characterization of Mr.
Musk's role in the rescue efforts. (See id.)
September 4, 2018, Mr. Mac responded by email to Mr.
Musk's August 30 “Off the record” email.
(Dkt. No. 20-17 at 3.) Mr. Mac's email states, in
pertinent part, that he “didn't agree for the
conversation to be off the record.” (Id.) Mr.
Mac's email also asked Mr. Musk if he had found anything
to corroborate his “accusations” about Mr.
Unsworth. (Id.) Roughly two hours later, Mr. Musk
responded by email, stating:
Off the record
We haven't had a conversation at all. I sent you an off
the record email, which very clearly and unambiguously said
“off the record.” If you want to publish off the
record comments and destroy your journalistic credibility,
that's up to you.
As for answering more questions, I would be happy to do so,
but not with someone who just told me that they will not
honor accepted rules of journalism.
(Id. at 2-3.) Mr. Mac responded by email that day,
stating that he would “rather chat on the record[,
]” but that he was “happy to go off record with
you moving forward so you can answer specific questions
regarding the allegations you've made.”
(Id. at 2.) Mr. Musk responded by email within the
Off the record
I suggest you ask Unsworth to describe his whole [ ] 30 year
history of visiting Thailand. What was he doing in Pattaya
Beach for the better part of a decade when there are no caves
of note in the area?
(Id.) That evening, BuzzFeed published an article
written by Mr. Mac and two other BuzzFeed journalists
entitled “In a New Email, Elon Musk Accused a Cave
Rescuer of Being a ‘Child Rapist' and Said He
‘Hopes' There's a Lawsuit”
(“September Article”). (Dkt. No. 3 at ¶ 4;
see also Dkt. No. 3, Ex. C at 34.) The September
Article includes, in its entirety, Mr. Musk's August 30,
2018 “Off the record” email in which he refers to
Mr. Unsworth as a “child rapist[ ].”
(See Dkt. No. 3, Ex. C at 37, 46-47.) The Article
also includes Mr. Musk's August 30, 2018 “On
background” email in its entirety. (See Id. at
47-48.) As for Mr. Musk's use of “Off the record,
” the September Article states:
Though Musk prefaced one email with “off the record,
” BuzzFeed News did not agree to that condition of the
correspondence. (Per common journalistic practice, a
conversation is off the record only if both parties agree to
(Id. at 35-36.) Mr. Mac emailed Mr. Musk again on
September 4, 2018, after BuzzFeed published the Article.
(See Dkt. No. 20-17 at 2; see also Dkt. No.
3, Ex. C ...