Musk attorneys accuse judge of improper contact with witness, seek mistrial

Elon Musk will move for a mistrial in the lawsuit over tweets he posted during his purchase of Twitter, his lawyer Ellyde R. Thompson of Quinn Emauel Urquhart & Sullivan LLP told Senior U.S. District Judge Charles R. Breyer in court Friday.

Breyer told Thompson he wouldn't hear her argument at the time and wanted the motion in writing.

Thompson did not respond during the court recess when asked the reason for the mistrial request.

The interchange occurred at the end of a tense day of trial Friday, during which Musk's attorneys accused Breyer of having improper contact with a witness the day before.

Ahead of trial Friday, Michael T. Lifrak of Quinn Emanuel Urquhart & Sullivan LLP told the courtroom he wanted it on the record that the judge had told former Twitter CFO Ned Segal, who currently serves as San Francisco Mayor Daniel Lurie's housing and economic policy adviser, to "say hi to the mayor for me" during Thursday's proceedings.

Lifrak said he was hesitant to raise it and meant to show nothing but respect for Breyer but was forced to after a few decisions the judge had made to protect Segal from the defense's questions.

"Should I put on the record that I've owned a series of Teslas?" Breyer responded.

The judge said he knows the mayor and doesn't think that's a big deal, but commended Lifrak for raising the comments in front of the court, knowing it couldn't have been easy. The record should accurately reflect what happened in the case, Breyer said, and if an appellate court takes issue with his comments to Segal, so be it.

"I can take it," Breyer said. "I can sleep at night."

If his friendships are at issue, Breyer said ahead of the day's first recess but without the jury present, he should mention he's known plaintiffs' attorney Joseph W. Cotchett for years and they have a friendly professional relationship. Breyer said he's also longtime friends with a partner at Quinn Emanuel, but they haven't discussed the case.

As Friday's proceedings wrapped up, Cotchett waited at the side of the courtroom with a paper folder in his hand for 25 minutes while Thompson and Stephen A. Broome petitioned the judge.

Then Cotchett approached the bench and called Lifrak's reference to the judge's interaction with a witness "disgraceful."

Mentioning his own "about 50 years" practicing law, Cotchett said, "I have never heard a lawyer waste more time than Mr. Lifrak." He then asked Lifrak how he could stand under the court's seal and say such a thing about the judge's comment.

Cotchett then presented the folder to Breyer. It contained a copy of Musk's re-post of another user called X Freeze, who described the trial as "total joke" and "pure witch hunt" and Cotchett asked the judge to tell Musk's lawyers to control their client.

The X Freeze repost stated: "Now these greedy class-action law firms are behind the lawsuit.....not real shareholders They fake their representation of the people They sue solely to enrich themselves, pocketing 30-40% (sometimes de facto 90% when they "can't find" class members)"

Another member of Musk's team, Jesse Bernstein, stepped in to call Cocthett's conduct "completely inappropriate" and defend his colleague. Lifrak, he said, was just trying to protect "the constitutional rights of our client."

Bernstein asked Breyer to "admonish Mr. Cotchett" and "tell him to start acting civilly."

Breyer told the parties to take the weekend to calm down. Court was adjourned at midday until Monday.

Two witnesses testified during the morning: Segal, finishing from the day before, and former Twitter CEO Parag Agrawal. Giuseppe Pampena v. Elon R. Musk, 3:22-cv-05937 (N.D. Cal., filed Oct. 10, 2022).