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Unsworth v. Musk

United States District Court, N.D. California

October 28, 2019

VERNON UNSWORTH, Plaintiff,
v.
ELON MUSK, Defendant.

          ORDER RE: MOTION TO QUASH SUBPOENAS Re: Dkt. No. 1

          Jacqueline Scott Corley United States Magistrate Judge.

         This 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.)[1] 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.

         BACKGROUND

         The 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.)

         Mr. Mac 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.)

         On 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 hour, stating:

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 the terms.)

(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 ...


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