A close reading of Twitter's legal letter to Meta

A guided tour of a weak litigation letter

This is a close reading and exposition of the letter sent on behalf of Twitter to Mark Zuckerberg, the chairman and chief executive officer of Meta.

The letter is dated 5 July 2023 and has been published at the Semafor news website.

For the reasons set out below, this letter reads to this English litigation lawyer as being weak. Perhaps that view is wrong, and that there is some super-duper legal-magic which an American lawyer can see in this letter and which this post cannot.

But unless there is something which this post is missing, this is about as weak a litigation letter as can be, without the letter saying nothing substantial at all.

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Please note that I am not an American lawyer, and so everything which now follows in this post should be read subject to this proviso.

In particular, I am an English lawyer (though trained at an American law firm in London) with twenty years of various experiences as a litigator, usually for potential defendants at early stages of disputes. This means I have read more litigation letters than is good for any human being.

Litigation letters really do comprise an odd and distinct genre of literature.

There is sometimes a lot going on - and sometimes a lot not going on - in a litigation letter.

You need to be able read what is there, and to work out what is not there.

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Let us begin with the first paragraph of the the letter sent on behalf of Twitter to Meta:

First you will see the strange “as successor in interest” formulation of who the letter is being sent on behalf of. This is because of this recent business news:

Nothing in this post rides on this strange formulation, but it is worth noticing in case X Corp ever needs to establish any legal rights to sue.

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What is more immediately interesting is the “Based on recent reports…”.

This is early warning sign of a weak letter.

The letter could say “we have direct evidence” or even “we have in our possession documentary proof which we attach”.

But the letter does not say either of these things.

Instead, the sender states that the evidence is only (news) reports.

The letter then connects these “recent reports” to “serious concerns”.

Again, this is mild.

There is no allegation of breach - just a statement of “serious concerns”.

A strong letter would begin with something like “we have in possession direct evidence [or proof] that [you are in breach of the following legal obligations]”.

But this letter backtracks straightaway from any such a robust position.

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The first paragraph then seems to become aggressive: “systemic, wilful, and unlawful misappropriation”.

To an unexperienced eye this looks striking - and it is intended to look striking.

But such strident words have already been weakened by the framing.

Compare and contrast:

“we have in possession direct evidence that you are engaged in systemic, wilful, and unlawful misappropriation in breach of your legal obligations”

with

“based on reports we have concerns that you are engaged in systemic, wilful, and unlawful misappropriation”.

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From this very first paragraph this does not look like a serious letter.

If the author of the letter could have put the allegations more highly then they would have done, but they did not.

And this is no doubt because they could not.

As a genre of literature litigation letters are often far more significant for what is not said than for what is said.

(This is perhaps the only thing litigation letters have in common with the prose of Jane Austen.)

A non-litigator may read such an opening as in this Twitter letter and be worried at what is said; but an experienced litigator will read that paragraph and will spot what is not said.

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Now the second paragraph:

We know from the first paragraph that the allegation made in the second half of this paragraph is based on reports rather than on any other evidence and so this paragraph has to be read with this in mind.

As such the allegation is nothing more than a supposition.

The language “deliberately assigned…specific intent…in violation of…” again looks forceful, but is based only on (news) reports. No evidence is offered, let alone any proof.

(And in any case Meta denies any Threads engineers are former employees of Twitter.)

There are also no specifics in this paragraph - no particularisation at all.

There is instead the vaguest possible reference to“trade secrets and other intellectual property”.

Patents? Copyright? Trademarks?

Who knows?

Perhaps nobody knows.

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The third paragraph goes over the page:

Here we have“highly confidential information” now thrown in as well, but again without specifics or particularisation.

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Then there is the deft but weak “intends to strictly enforce”.

This is not even a clear and present threat to sue.

It is at best a threat to possibly sue in the future, maybe.

The “reserves all rights” is also a weak sign.

The relevant rights of Twitter will presumably exist regardless of any formal statement of reservation.

If Twitter is able to obtain civil remedies and an injunction without notice then it does not need to tell Meta that it is formally reserving its rights. Such words are ornaments not instruments.

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And now look at what is not here: there is no deadline.

There is no ultimatum.

There is no “unless [x] by [y date] then we are instructed to do [z]”.

Nothing.

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Now onto the fourth and penultimate paragraph:

This is framed as a warning.

But it is a warning that does not substantiate anything so far in the letter.

In essence, Meta is merely being told to conduct itself lawfully.

There is no evidence, still less proof, that Meta is doing any of the things mentioned unlawfully - just a bare accusation.

And again, as in the previous paragraph, there is no deadline or ultimatum for Meta to say it will comply with this demand.

There are no requests for undertakings.

Twitter also “reserves all rights” - but nothing in this paragraph sets out how those rights are going to be enforced.

This penultimate paragraph is thereby again just decoration.

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And now the final paragraph:

At last there is some substance to the letter, but not much.

In English civil litigation there is an obligation on potential parties to a possible dispute to retain relevant evidence if they are aware that litigation is contemplated. I suspect there is a similar obligation in American civil litigation.

But in England sending a letter only to put a party on notice to retain documents for possible litigation is about level one on the litigation Richter scale.

It is the least possible substantial reason to send any litigation letter.

Such notice can make a legal difference in that Meta cannot now deny it is aware that litigation is contemplated.

This demand at least looks as if a litigation letter is doing something: that the letter is justified in its existence.

But this is a weak final paragraph to a litigation letter.

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Taken in its entirety the letter is a bundle of suppositions, bare accusations, and reservations of (already existing) rights, with a small blow of the litigation trumpet with a notice to retain documents provision in the last paragraph.

No evidence is provided or even mentioned, let alone proof; there are no specifics or particularisations; no precise laws are cited; and there are no deadlines or ultimatums; and no demands for undertakings.

The letter does not even ask for a response - such as an undertaking or confirmation.

(And one thing a wise litigator does with a weak letter is not to ask for a response, as it looks yet weaker when no response will be coming.)

Overall, this is the weakest possible letter that could have been sent on behalf of Twitter to Meta - that is other than the letter having no substance at all.

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Litigation letters have many (potential) audiences.

The best ones are written with the court in mind: how would this letter look to a judge? Those letters are the scary ones - and paradoxically the letters which are most likely to mean a case is resolved before court.

(The best way to avoid going to court in civil litigation is to prepare for court.)

Good litigation letters will also force the other side and their lawyers to think about their legal position afresh.

And then...

…there are letters which are the consumption of the client and/or the media.

Some clients sometimes demand that such a litigation letter is sent even when there is little or no case, and this is the sort of letter that gets sent in those circumstances.

The audience for this sort of letter is not the other side, still less the court, but the client itself - and perhaps the public and media.

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Perhaps evidence will come to light of wrongdoing by Meta.

Nothing in this post - a disclaimer! - should be taken to mean that there is no possible legal case that X Corp can bring to enforce its rights against Meta.

But any such claim would require a very different letter to this one.

And that would need a very different letter - with evidence and specifics and particulars and deadlines and ultimatums. The sort of letter which this letter is not.

And if such a serious letter is sent (and published) then we will know that a serious legal situation is afoot.

But, for the reasons set out above, and from the perspective of an English litigation lawyer, this is not a serious letter.

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