(Bloomberg) -- The trial in Twitter Inc.’s lawsuit against Elon Musk remains on track to begin on Oct. 17 because the court has not yet received an agreement from the parties to put the case on hold, the Delaware judge overseeing the matter said in a letter Wednesday.
Musk on Monday revived his bid to buy Twitter at his original offer price of $54.20 a share. The billionaire had quit the accord in July and Twitter sued in Delaware Chancery Court to force him to go forward with the purchase.
Twitter said Tuesday that it received Musk’s revived offer and intends to close the deal at the agreed-upon price, without commenting specifically on how it will respond to Musk. That same day, the judge asked both sides to come back to her with a proposal on how the case can now proceed.
“The parties have not filed a stipulation to stay this action, nor has any party moved for a stay,” Judge Kathaleen St. J. McCormick said in the Wednesday letter. “I, therefore, continue to press on toward our trial set to begin on October 17, 2022.”
She went on to order Musk and his legal team to produce additional discovery in the case and criticized them for not properly turning over communications that could be evidence in Twitter’s lawsuit, although she declined to impose any penalty at this time. She said that that the absence of text messages from two periods in May and June suggests that Musk used “other information channels not captured by text records” such as iMessage or Signal.
While Musk said he never used Signal to communicate about the transaction after an exchange with venture capitalist Marc Andreessen in April, Signal messages with top aide Jared Birchall seem to suggest that Musk continued to use the service after that and used its auto-delete function, the judge said in the letter.
“I am forced to conclude that it is likely that Defendants’ custodians permitted the automatic deletion of responsive Signal communications between them and possibly others, and that those communications are irretrievably lost,” the judge said. “At this stage, it is unclear to me whether deletions occurred when defendants were under a duty to preserve documents. If defendants deleted documents after they were under a duty to preserve, some remedy is appropriate, but the appropriate remedy is unclear to me at this stage.”
(Updates with judge’s orders in fifth paragraph.)
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