Motion to Stay Proceedings in Edgar Monserratt Plaintiff vs. Tesla Inc, et al Defendant| Trellis.Law

On January 08, 2019 a Motion,Ex Parte was filed involving a dispute between Monserratt, Edgar, and Constantino, James, Jr Corporate Service Group Llc, Loyd, Halston, Riley, James B., Riley, James P, Tesla Inc, for Neg - Negligence Other in the District Court of Broward County.

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Filing# 180797078 E-Filed 08/30/2023 08:36:02 AM

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA

EDGAR MONSERRATT, as Personal CASE NO. CACE-19-000422
Representativeof THE ESTATE OF EDGAR
MONSERRATT MARTINEZ, Deceased,

Plaintiff.

TESLA, INC. a/k/a TESLA FLORIDA, INC.,
HALSTON LOYD, JAMES B. RILEY,
individually, JAMES B. RILEY, as the
Personal Representativeof THE ESTATE OF
BARRETT RILEY, Deceased, and JR
CORPORATE SERVICES GROUP, LLC, a
Florida limited liability
company,

Defendants.
i

DEFENDANT TESLA, INC., a/k/a TESLA FLORIDA, INC.'S
MOTION FOR STAY OF ORDER COMPELLING DEPOSITION
moves to stay the Court's order
Defendant, Tesla,Inc. d/b/a Tesla Florida,Inc. ("Tesla"),

compelling the depositionof Elon Musk pending a decision by the Fourth District on Tesla's

pending Petition for Writ of Certiorari.

On July 28,2023, the Court granted Plaintiff's motion to compel the depositionof Elon

Musk and ordered that Mr. Musk's depositionmust take place within 60 days of July 28,2023,

"unless modified by the Court upon motion." (Order grantingmotion to compel, attached as Exh.

must take placeby September 26,2023.
A). Accordingly,under the current order the deposition

On August 25, 2023, Tesla timely filed a Petition for Writ of Certiorari to the Fourth

District seeking review of the Court's order grantingthe motion to attached as
compel. (Petition

Exh. B). Tesla has been clear and transparent-beginningat the hearing of Plaintiff's motion-

that it would seek review of this order.

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/30/2023 08:36:01 AM.****
CASE NO. CACE-19-000422

Given the uncertaintyas to when the Fourth District will rule on Tesla's Petition,Tesla

seeks a stay ofthe Court's order to protect the status quo during the time necessary for the Court

to issue an order. Absent a stay, Mr. Musk could be compelled to appear for depositionbefore

Tesla is able to obtain review of the order,thus negatingTesla's Petition for Certiorari. At that

point,no appellatereview could undo the harm to Tesla and Mr. Musk. A stay is proper and

necessary at this time.

CONCLUSION
Based on the foregoing,Tesla requests the Court stay its Order compelling the deposition

of Elon Musk pending a decision from the Fourth District.

Respectfullysubmitted,

/s/ Wendv F. Lumish
JEFFREY PATTERSON
Admitted Pro Hac Vice
ROBERT J. RUDOCK
Florida Bar No. 365157
WENDY F. LUMISH
Florida Bar No. 334332
WHITNEY V. CRUZ
Florida Bar No. 800821
Bowman and Brooke LLP
Two Alhambra Plaza, Suite 800
Coral Gables, Florida 33134
Tel: 305-995-5600/Fax: 305-995-6090

Attorneysfor Defendants, Tesla, Inc., d/b/a
Tesla Florida, Inc., and Halston Loyd

2
CASE NO. CACE-19-000422

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
filed with the Clerk of Court through the Florida Courts eFilingPortal and served via e-mail on

August 30,2023 to:

Scott P. Schlesinger, Esq. Philip Harnett Corboy, Esq.
Jonathan R. Gdanski, Esq. Corboy & Demetrio
David Silverman, Esq. 33 N. Dearborn Street,20th Floor
SchlesingerLaw Offices,P.A. Chicago, IL 60602
1212 S.E. 3rd Avenue fhc@corboydemetrio.com
Fort Lauderdale, FL 33316 kcozen@corboydemetrio.com
scott@schlesingerlaw.com, Co-Counsel.for Plaintiff
com,
priscilla@schlesingerlaw.
com
jonathan@schlesingerlaw. Laurie Primus, Esq.
com
monserratt@schlesingerlaw. Sellars,Marion & Bachi, P.A.
esabbagh@schlesingerlaw.com 811 North Olive Avenue
dsilverman@schlesingerlaw.com West Palm Beach, FL 33401
Attorneysfor Plaintio pleadings@smb-law.com
lprimus@smb-law. com
Adam Richardson, Esq. scrincoli@smb-law. com
Burlington& Rockenbach, P.A. Attorneysfor Defendant,James B. Riley
444 West Railroad Avenue, Suite 430 and Jr Corporate Services Group LLC
West Palm Beach, FL 33401
ajr@FLAppellateLaw.com
jrh@FLAppellateLaw.com

/s/ Wendv F. Lumish
WENDY F. LUMISH
Florida Bar No. 334332

3
HXHIB L A
**** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK. 7/28/2023 4:30:00 PM.****

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY, FLORIDA

EDGAR MONSERRATT, as Personal CASE NO. CACE-19-000422
Representativeof THE ESTATE OF
EDGAR MONSERRATT MARTINEZ,
Deceased,

Plaintiff.
..
0 B I 8
V.

JUL 28?, 2R?
TESLA, INC. a/k/a TESLA
INC., HALSTON LOYD, JAMES B. RILEY,
FLORIDA, BY: R.MhS.'
JAMES B. RILEY, as the
individually,
Personal Representativeof THE ESTATE
OF BARRETT RILEY, Deceased, and JR
CORPORATE SERVICES GROUP, LLC,
a Florida limited liability
company,

Defendants.
1

ORDER ON PLAINTIFF'S SECOND MONON TO COMPEL DEPOSITION
THIS CAUSE having come before the Court on July 5, 2023, on Plaintiffs Second

Motion to Compel Deposition of Elon Musk. This matter was previouslyaddressed by Court at

two priorhearings:(1) March 2, 2022 on Plaintiff' s Notice of Deposition served November 4,

2021 and Tesla's Motion for Protective Order filed on December 3, 2021; and (2) April 21,

2023, on Plaintiff's Motion to Compel the Deposition of Elon Musk filed on February 6,2023

and Tesla's Response filed on April 11,2023.

It is ORDERED AND ADJUDGED: Plaintiffs Motion to Compel is granted for the

of July 5,2023. The conditions of the depositionare as follows:
reasons set forth in the transcript

1. The depositionwill be limited to 60 minutes.

2. The deposition is limited to questions of Mr. Musk related to his alleged

comments to Mr. Riley regarding deactivation of the speed limiter during a brief telephone

conversation on May 14, 2018-as have been described in the depositiontestimony of James

26649571v1
**** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK. 7/28/2023 4:30:00 PM.****

Riley dated April 12, 2021, the declaration of Elon Musk dated December 1, 2021, the trial

testimonyof James Riley dated July 7,2022, and Tesla's responses to Requests for Admissions

and SpecialInterrogatories
dated May 26,2023.

3. Consistent with the procedure utilized for the majority of the depositions in this

case, the deposition will be conducted remotely, however, counsel for Tesla is permitted to be

present with Mr. Musk durmg the deposition.

4. in the remote depositionwill be limited
Participation to counsel of record and the

parties.

5. The Court will remotely
participate in order to rule on any objectionsthat may be

raised.

6. Unless modified by the Court upon motion, the depositionshall take placewithin

60 days of the date of this order.

DONE AND ORDERED m Chambers, at Broward County, Florida. 2812GZIB
ALUy
HONORABLE MARK GPEISER
Circuit Court Judge

Copies furnished to:

Scott P.Schlesinger,Esq. Scott@Schlesingerlaw.com
Jonathan Gdanski, Esq. Jonathan@Schlesingerlaw.com
Christina Sabbagh, Esq. Csabbagh@Schlesingerlaw.com
PhilipHarnett Corboy, Jr. fhc@corbovdemetrio.com
Laurie Primus, Esq. pleadings@smb-law.com
Robert J. Rudock, Esq. Bob.Rudock@bowmanandbrooke.com
Whitney V. Cruz, Esq. Whitney.Cruz@bowmanandbrooke.com
Wendy Lumish, Esq. wendy.lumish@bowmanandbrooke.com
Jeff Patterson, Esq. ieff.patterson@bowmandandbrooke.coin

2
26649571v1
**** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK. 7/28/2023 4:30:00 PM.****

3
26649571v1
**** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK. 7/28/2023 4:30:00 PM.****

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
filed with the Clerk of Court through the Florida Courts eFilingPortal and served via e-mail on

this - day of , 2022 to:

4
26649571v1
HXHIB L B
Filing# 180554500 E-Filed 08/25/2023 03:29:10 PM

IN THE DISTRICT COURT OF APPEAL
FOURTH DISTRICT OF FLORIDA
CASE NO.
L.T. CASE NO. 19-000422
HONORABLE MARK A. SPEISER

TESLA, INC. a/Ida TESLA FLORIDA, INC.,

Petitioner/Defendant,
V.

EDGAR MONSERRATT, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
EDGAR MONSERRATT MARTINEZ,
DECEASED;
Respondent/Plaintiff,

JAMES RILEY, INDIVIDUALLY JAMES B.
AS THE PERSONAL
RILEY,
REPRESENTATIVE OF THE ESTATE OF
BARRETT RILEY, DECEASED, AND JR
CORPORATE SERVICES GROUP LLC

TESLA, INC. A/K/A TESLA FLORIDA, INC.'S
PETITION FOR WRIT OF CERTIORARI

BOWMAN AND BROOKE LLP
Attorneys for Petitioner Tesla
Two Alhambra Plaza, Suite 800
Miami, Florida 33134-5214
Telephone: (305) 995-5600
By: WENDY F. LUMISH
Wendy. Lu m ish@bowmanand brooke. com
ALINA ALONSO RODRIGUEZ
Alina.Rodriguez@bowmanandbrooke.com
TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ........................................................................... iii
INTRODUCTION .......................................................................................... 1

BASIS FOR INVOKING JURISDICTION ..................................................... 4

STATEMENT OF THE FACTS .................................................................... 6

A. The Vehicle ................................................................................ 6

B. The Crash .................................................................................. 8

C. The Lawsuits ............................................................................. 9

D. Communication Between Mr. Riley and Mr. Musk ................... 10

E. Plaintiff's First Request for Mr. Musk's Deposition .................. 11

F. Plaintiff's Second Attempt To Depose Mr. Musk ..................... 15

G. Plaintiff's Third Attempt To Take Mr. Musk's Deposition ......... 19

NATURE OF RELIEF SOUGHT ................................................................ 25

ARGUMENT ............................................................................................... 26

' THE TRIAL COURT DEPARTED FROM THE ESSENTIAL
REQUIREMENTS OF LAW IN ORDERING THE DEPOSITION
OF TESLA'S CEO, ELON MUSK ..................................................... 26
A. Florida Rules Procedure 1.280(c) And (h) Set The
Of Civil
Parameters For Assessing The Propriety Of The Order For
Mr. Musk's Deposition ............................................................. 26

B. Tesla Met Burden Of Demonstrating Its Entitlement To
Its
A Protective Order Under Rules 1.280(c) And (h) ................... 30

C. P aintiff To Demonstrate That The Discovery
Failed
A ready Provided Is Inadequate, And That Mr. Musk Has
Unique Personal Knowledge Beyond What Has Been

i
TABLE OF CONTENTS
(Continued)
Page

Offered Through His Sworn Statements; Further, A
Protective Order Under These Circumstances is

Necessary To Protect Mr. Musk From Annoyance,
Oppression, Or Undue Burden Or Expense ............................ 33

CONCLUSION ........................................................................................... 40

CERTIFICATE OF SERVICE ..................................................................... 41

CERTIFICATE OF COMPLIANCE ............................................................. 42

i
28229498v12
TABLE OF AUTHORITIES
Page

Cases

Labs of Texas v. Apple, Inc.,
Affinity
No. C 09-4436CW, 2011 WL 1753982 (N.D. Cal. May 9,
2011) ......................................................................................... 29.38.39

Allstate Ins. Co. v. Boecher,
733 So. 2d 993 (Fla.1999) .................................................................... 27

In reAmend. to Fla. Rule of Civ. Proc. 1.280,
324 So. 3d 459 (Fla.2021) .................................................. 28,29,31,34

Baine Gen. Motors Corp.,
v.

141 F.R.D. 332 (M.D. Ala. 1991) ........................................................... 32

DecisionHR USA, Inc. v. Mills,
341 So. 3d 448 (Fla.2d DCA 2022) ...................................... 5,30,31,33

Dept. of Agric. & Consumer Servs. v.Broward Cnty.,
810 So. 2d 1056 (Fla.1st DCA 2002) ................................................... 30

Elkins v. Syken,
672 So. 2d 517 (Fla.1996) .............................................................. 26,27

Gen. Star indem. v. Atlantic Hospitalityof Florida, LLC,
57 So. 3d 238 (Fla.3d DCA 2011) ........................................ 5,26,27,31

Horne v. Sch. Bd. of Miami-Dade Cnty.,
901 So. 2d 238 (Fla.1st DCA 2005) ................................................. 5,30

Kobi Karp Architecture & Interior Design, Inc. v. Charms 63
Nobe, LLC,
166 So. 3d 916 (Fla.3d DCA 2015) ...................................................... 26

Mulvey v. Chrysler Corp.,
106 F.R.D. 364 (D.R.I.1985) ........................................................... 32,33

iii
TABLE OF AUTHORITIES
(Continued)
Page

Performance Sales & Mktg., LLC Lowe's Cos., inc.,
v.

No. 5:07-CV-00140-RLV, 2012 WL 4061680 (W.D.N.C.
Sept. 14, 2012) ...................................................................................... 40

Shenzhen Kinwong Elec. Co. v. Kukreja,
No. 18-61550, 2019 WL 8298217 (S.D. Fla. Dec. 12, 2019) ................. 29

Simon v. Pronational Ins. Co.,
No. 07-60757-CIV, 2007 WL 4893478 (S.D. Fla. Dec. 13,
2007) ..................................................................................................... 30

Sun Capital Partners, inc. v. Twin City Fire ins. Co.,
310 F.R.D. 523 (S.D. Fla. 2015) ............................................................ 29

Surf Drugs, inc. v. Vermette,
236 So. 2d 108 (Fla.1970) .................................................................... 27

Univ. of W. Fla. Bd. of Trs. Habegger, v.

125 So. 3d 323 (Fla.1st DCA 2013) .............................................. 28,30

Other Authorities

Florida Rule of Civil Procedure 1.280(c),

Florida Rule of Appellate Procedure 9.030(b)(2)(A)..................................... 4

Florida Rule of Appellate Procedure 9.045(e) ............................................ 42

Florida Rule of Appellate Procedure 9.210 ................................................ 42

Florida Rule of Appellate Procedure 9.100 .................................................. 4

iv
INTRODUCTION

Tesla, Inc. seeks an order quashing the trial court's order compelling

the deposition of Tesla's CEO, Elon Musk. (App. 5-7).1 The order is a

departure from the essential requirements of law, and results in material

injurythat cannot be corrected on post-judgment appeal. Fla. R. Civ. P.

1.280(c),(h).

In 2018, eighteen-year-old Barrett Riley, crashed his Tesla Model S

after drivingat 116 mph into a curve with an advisory speed limit of 25-mph.

Barrett and one passenger, Edgar Monserratt Martinez, died as a result. A

third passenger-unrestrained in the backseat-suffered fairly
mild physical

injuresand survived. Edgar's father, as the personal representative of his

son's estate, sued Tesla alleging,inter alia, negligence because a Tesla

service technician deactivated 85-mph top speed limitingsoftware previously

enabled on the vehicle when Barrett complained he could not accelerate over

85-mph. Plaintiff is also suing Barrett's estate and his father, James Riley,

relatingto the crash.
for their respective responsibilities

The crash received considerable media attention,and Tesla became

aware of it through media coverage. Following the crash and the ensuing

1
Tesla'S appendix will be referenced as (App. Page No.). All emphasis is
added unless noted.

1
coverage, Mr. Musk called Barrett's father, James Riley, to extend his

condolences. Mr. Musk and Mr. Riley also exchanged a number of emails

before and after their brief call. Mr. Musk's emails conveyed information

learned in Tesla's initialinvestigationof the crash and, following Mr. Riley's

suggestion that Tesla develop a new speed Iimiter feature that could be

controlled through the mobile phone applicationavailable for Tesla vehicles,

Mr. Musk reported on the progress of that feature which was a first of its kind

in U.S.-sold automobiles. Also, with Mr. Riley'sapproval, the release notes

vehicle owners would see when they downloaded the update to their vehicles

contained a message honoring the memory of Barrett Riley.

The call between Mr. Musk and Mr. Riley lasted no more than 20

minutes, by both of their accounts. In his deposition,Mr. Riley claimed that

during the brief conversation, Mr. Musk "said something to the effect of,

perhaps we should not have removed the Iimiter. We will have to review and
revise our policies.Something to that effect, give or take" He estimated

this portionof the 15-20 minute call lasted roughly 15 seconds.

Early in the case, Plaintiff sought to take Mr. Musk's deposition

regarding this conversation as well as a range of other engineering and

vehicle design topics. Tesla responded that Mr. Musk was entitled to

protection under Florida Rules of Civil Procedure 1.280(c) and (h). In

2
compliance with Rule 1.280(h), Tesla filed Mr. Musk's declaration in which

he described his executive role at Tesla and other companies, and affirmed

it would place a substantial burden and hardship on him if he were to be

deposed. Regarding the phone call, Mr. Musk stated, under penalty of

perjury,that he did not recall anything beyond expressing his condolences.

Tesla also produced all of the email correspondence between Mr. Musk and

Mr. Riley.

Judge Bowman granted Tesla's Motion for Protective Order, but after

the case was administrativelytransferred to Judge Speiser, Plaintiff tried

again to take Mr. Musk's deposition. In lieu of the deposition, Tesla agreed

to the unusual procedure of having Mr. Musk directlyrespond to Requests

for Admissions and Interrogatoriesabout the phone call. In his responses,

which he once again verified under oath, Mr. Musk reiterated the statement

from his declaration that, beyond extending his condolences, he does not

recall discussing the matters claimed by Mr. Riley-in a phone call that took

place roughly five years ago.

The sworn declaration and direct answers to Requests for Admissions

and Interrogatorieson the topic of the conversation were stillnot enough for

Plaintiff. On his third attempt, Plaintiff obtained an order compelling Mr.

Musk's deposition as to the brief conversation between Mr. Musk and Mr.

3
Riley regarding deactivation of the speed Iimiter.

Quite simply, there is nothing more that will be accomplished by a

deposition given that Mr. Musk has under oath that

he does not have a recollection of the matters alleged by Mr. Riley.Indeed,

following the declaration required by Rule 1.280(h),Tesla took the unusual

step of suggesting and agreeing to direct discovery to Mr. Musk (inthe form

of interrogatoriesand requests for admission) so that Plaintiff would have

statements from Mr. Musk on this issue that could be admitted in trial.Under

these circumstances, as Tesla argued, Plaintiff has not established that the

discovery obtained is inadequate and that Mr. Musk has "unique, personal

knowledge," as is the burden on the party seeking an Apex deposition. See

Rule 1.280(h). Moreover, pursuant to Rule 1.280(c),Mr. Musk is entitled to

protectionfrom a deposition where the only purpose is to harass a burden

Tesla and its CEO. That is plainlythe case here.

BASIS FOR INVOKING JURISDICTION

Tesla invokes the originaljurisdiction
of this Court, pursuant to Florida

Rules of Appellate Procedure 9.030(b)(2)(A)and 9.100, and petitionsfor a

writ of certiorari to the Fourth District Court of Appeal, State of Florida.

A petitionfor writ of certiorari is proper where, as here: (1) there is a

departure from the essential requirements of the law; (2)resultingin material

4
injuryfor the remainder of the trial;(3) that cannot be corrected on post

judgment appeal. DecisionHR USA, Inc. v. Mills,341 So. 3d 448 (F\a.2d

DCA 2022). Courts have found the first two elements (which are

to be met, and then found a departure from the essential
jurisdictional)

requirements of law in the context of depositions of CEO's. See id. at 452,

456-57; Gen. Star Indem. v. Atlantic Hospitalityof Florida, LLC, 57 So. 3d

238, 239-40 (Fla.3d DCA 2011) (granting certiorari and finding departure

from essential requirements of law);Horne v. Sch. Bd. of Miami-Dade Cnty.,

901 So. 2d 238, 240-41 (Fla.1st DCA 2005) (grantingcertiorari and quashing

a court's order compelling government official's testimony).

5
STATEMENT OF THE FACTS
A. The Vehicle

At the time of the crash, Tesla had a software feature for Tesla-owned

vehicles (service Ioaners and marketing vehicles) that limited the speed to

85 mph. (App. 1024). The software feature could be turned on and off by

service personnel who could enable or disable it while in the vehicle, or it

could be done remotely by Tesla service personnel using a service platform

capable of connecting with vehicles over a cellular network. (App. 378,1020-

21,1102). In general, use of the feature was limited to Tesla-owned vehicles

(not enabled on customer-owned vehicles) but the software feature would

occasionally be enabled on customer-owned vehicles while they were at a

Tesla Service Center for maintenance or repairs.(App. 1002, 1006, 1020-

1021,1024). There were some instances in which a former Ioaner/demo car

was sold, to a customer without the Iimiter being disabled, resulting in the

new owner requesting it be disabled during a subsequent service visit. (App.

1045).

While the registeredowner of the 2014 Model S was James Riley and

his business, JR Corporate Services Group, it was driven daily by his son

Barrett Riley.(App. 9-35). On multipleoccasions, Barrett took the vehicle to

the Tesla Service Center for repairsand service and Barrett's mother (Jenny

6
Riley) has admitted that Barrett had authorityto do so. (App. 348-350, 180).

The Tesla Service Center team knew the Riley family,knew Barrett and his

vehicle, and viewed Barrett as its primary driver-"it was his vehicle." (App.

180-181). The phone number the Service Center had on file for the Model S

was Barrett's cell phone number. (App. 163).

Two months before this crash, Barrett received a speeding ticket for

drivinghis Model S at 112 mph in a 50-mph speed zone. (App. 148). Barrett's

mother then asked Tesla service personnel to enable the speed Iimiter

software on Barrett's Model S. (App. 148, 422). Service Center employees

did so at her request. (App. 148,222-23).

Not long after this,Barrett's Model S returned to the Service Center for

an unrelated repair which ultimatelyrequired replacement of the vehicle's

high-voltagebatterypack. (App. 870-71). On April3, 2018, Barrett picked up

the Model S followingthe battery pack repairand returned the Ioaner vehicle

he had been driving.(App. 1486). The next day, Barrett returned to the

Service Center complaining of wind noise and that the vehicle would not

accelerate over 85 mph-the top speed allowed by the speed Iimiter

software-pretending he did not know why. (App. 179, 184, 190-191, 857,

1026). Co-defendant Halston Loyd, the service technician Barrett worked

with that day, correctlydeduced that the speed Iimiter (sometimes called the

7
was active, and
"Ioaner Iimiter") assumed it was enabled when the vehicle

was at the service center for repairs.(App. 187). Believingthe Iimiter was left

on inadvertently,and knowing that Iimiters are generally reserved for Tesla-

owned vehicles, Mr. Loyd deactivated the speed Iimiter to resolve Barrett's

complaint about the acceleration being capped at 85 mph. (App. 187).

Barrett knew his parents requested the Iimiter be activated because of

his speeding and bragged to his friend, Beckton Peddy, that he "snuck that

request in there" to trick Mr. Loyd into disabling the Iimiter. (App. 344).

Another friend,Jake Shapiro, corroborated this that Barrett
by testifying told

him he tricked Mr. Loyd into disabling the Iimiter. (App. 347).

B. The Crash

One month later,on May 8, 2018, Barrett was drivingthe vehicle at

116 mph on AlA in Fort Lauderdale. Where he was driving,near his home,

AlA has a speed limit of 35 mph, but as he entered a sharp curve, there is

a posted 25 mph advisory speed limit. He lost control of the vehicle, crossed

struck and then continued over a concrete curb, and
two lanes of traffic, hit

one concrete wall before slamming into a second concrete wall. The vehicle

rotated and slid across five struck and mounted a second
lanes of traffic,

curb on the other side of the road, struck a lightpole, and then reversed

rotation and came to rest. (App. 12). As fire eventually engulfed the vehicle.

8
Barrett and Edgar were fatallyinjured in the crash. (App. 12). The

unrestrained backseat passenger was ejected but survived with relatively

minor physical injuries.

C. The Lawsuits

There have been two lawsuits arising from this crash. First,James

Riley,sued Tesla in federal court for his son's death.2

Second, in this lawsuit,Edgar's father,as the personal representative

of his son's estate, sued Tesla, Mr. Loyd (the service technician),Barrett's

estate, and the co-owners of the vehicle, Mr. Riley and his company, JR

Corporate Services. (App. 9-35). In Count I,Plaintiff alleges Mr. Loyd was

negligent (and Tesla vicariously liable)because Mr. Loyd deactivated the

speed Iimiter software when Barrett complained the vehicle would not

accelerate over 85 mph. (App. 12-15).3Relevant here, Tesla denies that itor

Mr. Loyd were negligent in any way. Tesla asserts the crash was caused by

2
This matter was tried to July 2022. The jury allocated fault as
a verdict in
follows: Barrett 90%, James Riley 9%, and Tesla 1%. Plaintiff's appeal is
pending before the 11 th Circuit,Case No: 22-12515.
3 Plaintiff also asserts the batteryin the 2014 Model S was defective and that
Tesla is liable and negligent for failingto warn about this alleged
strictly
defect. (App. 16-23). Plaintiff also claims the co-owners are liable for
negligently entrusting the vehicle to Barrett, when he had a history of
speeding and endangering his passengers and the general public;that the
co-owners were vicariously liable under the dangerous instrumentality
doctrine; and Barrett was liable for negligently operated his vehicle
endangering his passengers and the public.(App. 23-35).

9
Barrett's reckless driving-with or without a speed Iimiter. It also maintains

that Barrett was authorized to request service, repairs,and configuration

adjustments to his vehicle either in his own rightor as the known agent of

James Riley.

D. Communication Between Mr. Riley and Mr. Musk

The day after the accident, Mr. Musk e-mailed Mr. Riley to express

condolences, and stated that he would make himself available to Mr. and

Mrs. Riley for a telephone conversation if they wished. (App. 300-320). Mr.

Musk also forwarded Mr. Riley an email from then general counsel, Todd

Maron, containing the accident facts known to Tesla at the time. (App. 303-

04). Additional emails between Mr. Riley and Mr. Musk discussed Mr. Riley's

request that Tesla develop a speed limit feature whereby an owner or others

with account access could set limits for top speed either within a Tesla

vehicle (using a PIN code) or using the mobile phone application.(App. 301,

400, 1236, 1239). All emails between Mr. Musk and Mr. Riley have been

produced in this litigation.
(App. 301).

A few days later, Messrs. Musk and Riley had a brief telephone

conversation. In his deposition,Mr. Riley testified that the call lasted 15-20

minutes. (App. 323). Mr. Riley alleged that during the briefest part (15

seconds) of that already "brief" phone call,Mr. Musk "said something to the

10
effect of, perhaps we should not have removed the Iimiter. We will have to
review and revise our policies.Something to that effect, give or take"

(App. 324).

E. Plaintiff's First Request for Mr. Musk's Deposition

In December 2021, Plaintiff's counsel served a Notice of Taking

Deposition of Elon Musk without specifyingareas of inquiry.(App. 292-294).

After much prompting, Plaintiff identified a wide varietyof "non-exhaustive"

topics ranging from the design of the high voltage batteryto vehicle software

changes. (App. 296-298). Relevant here, Plaintiff identified the following

subjects for Mr. Musk's examination: "[h]iscommunication regarding this

case;" "[h]is actions regarding this case after the incident," and his

"knowledge of the issues surrounding the remova[I] of the speed

governor." (App. 295-298).

Tesla's Motion For Protective Order: Citing Florida Rules of Civil

Procedure 1.280(c) and 1.280(h), Tesla argued Plaintiff failed to provide a

basis to depose Tesla's CEO. (App. 36-59).

In support, Tesla included a declaration from Mr. Musk. (App. 281-

287). Therein, Mr. Musk first described his role with Tesla:

2. I am
a co-founder and Chief Executive Officer of Tesla, Inc.
Tesla designs, develops, manufactures, and sells and leases
high-performance fully electric vehicles and energy
generation and storage systems, and offers services related

11
to our products. Tesla currently employs approximately
90,000 people worldwide. As CEO, I am responsible for
Tesla's overall operation.

3. In my as Tesla's CEO, I oversee product design,
role
engineering and manufacturing of Tesla's electric vehicles
and energy products, among many other things. In that
regard, I work closely with Tesla's executive team leaders. I
also regularlywork with engineering teams and their leads to
discuss overall product development, design, and
manufacturing objectives. I have approximately 30 people
reportingdirectlyto me within Tesla and I also meet regu arly
with others in the vehicle and energy industries,as we I as
with government officials and representatives from other
countries where Tesla conducts business.

(App. 281-282 at % 2, 3).

He also explained the burden on him as the Tesla CEO to provide a

deposition:

4. Given my obligationsand responsibilities as Tesla's CEO, it
would be a substantial burden and hardship to be deposed in
this matter. Indeed, if I were required to testifyin even a

percentage of the cases involving Tesla, it would be
extremely disruptive to my
responsibilitiesto Tesla, its

executives, employees, stockholders, and customers.

(App. 282 at 1[4).

Further, he described his various roles with other companies, including

SpaceX that would be disrupted by a deposition:

5. I also lead three other companies. I am the CEO and founder
of Space Technologies ("SpaceX") and
Exploration
Neuralink Corporation,as well as the founder of The Boring
Company. SpaceX designs, manufactures and launches
advanced rockets and spacecraft. Recently, its Falcon 9
rocket launched to orbit its third crew of NASA astronauts in

12
itsDragon spacecraft - all of which have autonomously
docked with the International Space Station. Neuralink
develops ultra-highbandwidth brain-machine interfaces to
connect the human brain to computer; and The Boring
Company combines fast, affordable tunneling technology
w th an all-electric public transportationsystem in order to
al eviate urban congestion and enable high-speed long-
distance travel. As a result,itwould be a substantial burden
and hardship to be deposed in this matter given my
obligations and responsibilities as CEO and/or founder at
these other three companies as well.

(App. 282 at 1[5).

Turning to the topic of his communication with Mr. Riley, Mr. Musk

described his limited recollection of their phone call:

6. I learned about the accident involved in this case through
Tesla's Legal Department. I was saddened to learn of the
horrific crash and the young lives lost,so I sent an email to
the decedent's father, Mr. Riley,to express my condolences.
I offered to speak with the Rileys on the phone and provided
my cell phone number. A few days later,I spoke brieflywith
Mr. Riley.I reviewed excerpts from Mr. Riley'sdeposition
testimony regarding that call (Attachment 1).4/ don't recall
discussing the matters he described beyond reiterating
my condo/ences for the /oss of his son. Beyond that, I
exchanged emails with Mr. Riley about our efforts to recover
accident data and Mr. Riley'sinquiriesregarding potential
development of software to allow the vehicle owner to limit
the vehicle speed through the app (which we later launched
as Speed Limit Mode). / understand that all of these
emails have been produced. I do not recall anything
about my communications with Mr. Riley beyond what
is contained in these emails.

(App. 282-283 at ? 6).

4
(See App. 286-287).

13
Along with the motion and declaration, Tesla attached the email

correspondence between Mr. Musk and Mr. Riley identified in Mr. Musk's

declaration. (App. 300-320).

Tesla also pointed to the followinginterrogatoryresponse:

Tesla identifies Elon Musk abundance of caution. Mr.
out of an
Musk had limited communications with James and Jenny Riley
extend condolences, to relate information about
after the crash to
Tesla's investigationinto the crash that Mr. Musk received from
Tes a's Legal Department, and to discuss the Rileys'request that
Tes a add a speed limit mode to Tesla vehicles through an over-
the-air update. The majorityof those communications were over
emails, which are being produced. The content of any other
verbal communications between Mr. Musk and the Rileys was
generally consistent with the emails, which can be confirmed by
the Rileys. Any other information Mr. Musk may have regarding
the crash or the subject vehicle was learned through privileged
attorney-clientcommunications with Tesla's Legal Department.

(App.333-335).

Tesla argued that Mr. Musk does not have any unique, personal

knowledge beyond what was set forth in the declaration, interrogatory

response, and the e-mails, and thus, Plaintiff would not gain any additional

information by taking Mr. Musk's deposition on this topic.(App. 47-48). Tesla

asserted that under these circumstances, itis harassing and burdensome to

require the CEO to sit for deposition to reiterate what he has already set out,

under oath in a declaration regarding a 15-to-20-minute call and a handful of

e-mails that speak for themselves. (App. 48).

14
Plaintiffs Response: With respect to the call,Plaintiff argued Mr.

Musk's failure to recall anything further about the conversation is not a basis

to grant a motion for protective order, and that Plaintiff should be able to

inquirefurther about the conversation. (App. 355-356).

Ruling: After a hearing, Judge Bowman granted Tesla's motion for

protectiveorder, findinginter a#a:

1. The phone conversation between Defendant James Riley
and Elon Musk was a sympathy call.

2. Mr. Musk does
not possess unique, personal knowledge to
waive the apex doctrine in any way. Mr. Musk did not
conduct an investigation.The e-mails exchanged between
Mr. Riley and Mr. Musk followingthe crash suggest outright
that Mr. Musk has absolutely no personal knowledge of the
issues. In this regard, Mr. Musk said, "I will look into it." In
the Court's view, why would someone have to look into
something if he or she already knows?

(App. 516-517).

F. Plaintiff's Second Attempt To Depose Mr. Musk
Retired Judge Speiser took over the case from Judge Bowman.5

Thereafter, Plaintiff made a second attempt to take Mr. Musk's deposition

raising virtuallythe same arguments. (App. 518-534). Plaintiff asserted,

a motion to recuse Judge Bowman after the court denied
5 Plaintiff filed

Plaintiffs motion to amend the complaint to add a claim for punitive

damages. Judge Bowman denied the motion for recusal and this Court
denied Plaintiffs Writ of Prohibition. In the interim, the case was
administratively transfered to Retired Judge Speiser. This Court later
affirmed the denial of Plaintiffs motion to amend.

15
however, that this second motion to compel was submitted "[i]nlightof the

additional discovery taken in this matter," which revealed "new evidence."

(App. 519).

As support, Plaintiff pointed to the Riley v. Tesla trial in federal court

and argued Tesla took advantage of the lack of testimony from Mr. Musk.

Plaintiff insisted that Tesla challenged Mr. Riley on his lack of a
Specifically,

specificrecollection of the conversation, and in closing argument, suggested

that if Mr. Musk had said Tesla did something wrong, Mr. Riley would have

remembered every word. (App. 528-530, 1544-1545, 1546). Plaintiff added

that Halston Loyd denied he did anything wrong, and indicated that if Mr.

Musk knew all the information available,then Mr. Loyd believed he would

have come to

Case Info

Judge

Bowman, John B. Track Judge’s New Case

Case No.

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Document Filed Date

August 30, 2023

Case Filing Date

January 08, 2019

County

Parties

Constantino, James Defendant
Jr Corporate Service Group LLC Defendant
Loyd, Halston Defendant
Lumish, Wendy Attorney for the Defendant
Monserratt, Edgar Plaintiff
Primus, Laurie A Attorney for the Defendant
Riley, James B. Defendant
Riley, James P Defendant
Rudock, Robert J Attorney for the Defendant
Schlesinger, Scott P Attorney for the Plaintiff
Tesla Inc Defendant
Whitney Cruz Attorney
Jonathan Gdanski Attorneys for Plaintiffs
Zane Berg Attorneys for Plaintiffs
Cristina Sabbagh Attorneys for Plaintiffs
Susan Shatz Attorneys for Plaintiffs
Curtis Miner Attorney
Daniel Rockenbach Attorney
Daniel Bachi Attorneys for Defendants
John Bowman Attorney
David Silverman Attorney
WENDY LUMISH Attorney
Jeffrey Patterson Attorney
Adam Richardson Attorneys for Defendants
Steven Hammer Attorney
Scott Pestcoe Attorney
Mike Reid Attorney
Michael Repiso Attorney
Alina Rodriguez Attorneys for Plaintiffs
Bart Riley Attorney
Jan Schneider Attorney
Steven Jackman Attorney
Robert Peters Attorney
Ryan McCarthy Attorney
Andrew Yaffa Attorney
Adam Cohen Attorney
Martin Goldberg Attorney
Denise Georges Attorney
Thomas Kroeger Attorney
Peter Schlesinger Attorney
Lindsey Hess Attorney
Patrick Montoya Attorney
Justin Schneider Attorney
Manuel Arteaga-Gomez Attorney
Jeffrey Haberman Attorney

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Motion,Ex Parte: Edgar Monserratt Plaintiff vs. Tesla Inc, et al Defendant

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