Case 3:23-mc-80253-JSC Document 55 Filed 09/20/24 Page 1 of 5

1 MONIQUE C. WINKLER (Cal. Bar No. 213031)

BERNARD B. SMYTH (Cal. Bar No. 217741)
2 SmythB@sec.gov
ROBIN ANDREWS (Ill. Bar No. 6285644)
3 AndrewsR@sec.gov
44 Montgomery Street, Suite 700
4 San Francisco, CA 94104
Telephone: (415) 705-2500
5
Attorneys for Applicant Securities and Exchange Commission
6
7 QUINN EMANUEL URQUHART & SULLIVAN, LLP
ALEX SPIRO (pro hac vice)
8 alexspiro@quinnemanuel.com
Rachel G. Frank (Cal. Bar No. 330040)
9 rachelfrank@quinnemanuel.com
1300 I Street NW, Suite 900
10 Washington, D.C. 20005
Telephone: (202) 538-8000
11
Attorneys for Respondent Elon Musk
12

13
UNITED STATES DISTRICT COURT
14
NORTHERN DISTRICT OF CALIFORNIA
15
SAN FRANCISCO DIVISION
16

17 SECURITIES AND EXCHANGE COMMISSION,

Case No. 3:23-mc-80253-JSC
18 Applicant,
19 v. JOINT STATEMENT
REGARDING RESPONDENT’S
20 ELON MUSK, FAILURE TO APPEAR FOR
COURT-ORDERED TESTIMONY
21 Respondent.
22

23

24

25

26

27

28
JOINT STATEMENT REGARDING SEC V. MUSK
RESPONDENT’S FAILURE TO APPEAR FOR CASE NO. 23-MC-80253-JSC
COURT-ORDERED TESTIMONY
 Case 3:23-mc-80253-JSC Document 55 Filed 09/20/24 Page 2 of 5

1
I. Statement of Applicant Securities and Exchange Commission
2
A. Chronology
3
On May 14, 2024, the Court ordered Respondent Elon Musk (“Musk”) to appear for
4 investigative testimony before the SEC staff. Dkt. No. 48. On May 29, 2024, the parties agreed to
conduct that testimony on September 19, 2024. Andrews Decl. at ¶ 2. On May 31, 2024, the Court
5
ordered that, among other things, “The agreed-upon date and time for [Musk’s] testimony may be
6 rescheduled only upon written consent of the SEC or order of the Court, and [Musk] shall not seek
delay or rescheduling of the testimony absent an emergency that [Musk] did not create and could not
7 avoid.” Dkt. No. 53 (“the May 31, 2024 Order”) at 3.
8 In late July 2024, Musk’s counsel sought the SEC’s consent to reschedule Musk’s testimony
9 as a result of a counsel conflict on September 19th; SEC counsel agreed to reschedule the testimony
for September 10, 2024 at 9 a.m. in the SEC’s Los Angeles office. Andrews Decl. at ¶ 3. On
10 September 9th, three SEC counsels flew to Los Angeles for Musk’s testimony: two from San
Francisco, and one from Washington, DC. Id. at ¶ 4.
11
Shortly before 6 a.m. on September 10th, Musk’s counsel sent a letter to SEC counsel:
12

13 I have been notified that Mr. Musk is unable to attend the testimony scheduled for
today in this matter. Mr. Musk’s obligations as Chief Technology Officer of SpaceX
14 required he urgently travel to the East Coast yesterday for the high-risk Polaris
Dawn launch. The timing of the launch was highly weather-dependent and beyond
15 Mr. Musk’s control, and has resulted in him being unable to return in time for the
testimony.
16

17 Id. at ¶ 5. This letter also offered: “Please let us know what alternative dates in the next month may
work and we will reschedule the testimony promptly.” Id.
18
In an 8:45 a.m. letter on September 10th, SEC counsel offered to reschedule the testimony for
19 the following day, noting that this “allows for more than sufficient time for Mr. Musk to return to Los
Angeles, given the approximately four-hour flight time” from Florida. Id. at ¶ 6. That letter also
20
stated: “If Mr. Musk does not promptly agree to appear tomorrow at 9 a.m. at the SEC’s Los Angeles
21 office, we will bring this matter to Judge Corley today. Among other things, we may seek sanctions
against Mr. Musk.” Id.
22
Musk’s counsel responded that September 11th “does not work.” Id. at ¶ 7. After meeting-
23 and-conferring with one of Musk’s counsels, SEC counsel contacted the Court’s courtroom deputy
requesting a conference. Id. at ¶ 8. The Court’s courtroom deputy informed the parties that the Court
24
was unavailable until September 23rd. Id.
25
On September 10th, Musk’s counsel offered to reschedule the testimony to “dates in the next
26 month.” Id. at ¶ 10. On September 11th, SEC counsel sent a letter to Musk’s counsel, offering any
date in that timeframe: “We are available to take Mr. Musk’s testimony in the SEC’s San Francisco
27 office on any date on or before October 11, 2024.” Id. On September 16, 2024, Musk’s counsel
responded, declining to select any date “in the next month” as previously offered, instead proposing
28
JOINT STATEMENT REGARDING SEC V. MUSK
RESPONDENT’S FAILURE TO APPEAR FOR CASE NO. 23-MC-80253-JSC
COURT-ORDERED TESTIMONY
-2-
 Case 3:23-mc-80253-JSC Document 55 Filed 09/20/24 Page 3 of 5

1 October 29th or October 30th, only in the SEC’s Los Angeles office, and only if the SEC withdrew
its request for a discovery conference. Id. SEC counsel declined this offer. Id. On September 18,
2 2024—after the Court’s courtroom deputy indicated that the Court would schedule a discovery
hearing on this matter—Musk’s counsel finally offered a testimony date in early October 2024. Id.
3

4 B. Musk Violated the Court’s May 31, 2024 Order and the Court Should Order
Musk to Appear at Testimony on or before October 11, 2024.
5
Musk violated the May 31, 2024 Order. That Order required that Musk seek “written consent
6 of the SEC or order of the Court” to modify the date of his testimony. Musk sought neither and did
not appear at the scheduled testimony, a direct violation of the Court’s order.1 Musk’s excuse itself
7
smacks of gamesmanship. SpaceX had already announced that it was targeting a Tuesday morning
8 launch two days earlier, at 6:52 p.m. on Sunday, September 8th. Id. at ¶ 9. As the company’s Chief
Technical Officer, Musk surely was already aware by then that SpaceX was targeting the morning of
9 his SEC testimony for the launch. On Monday September 9th, Musk was interviewed at a conference
in Los Angeles, during which he discussed the SpaceX launch and stated that if the weather held up,
10 “I’m going to leave here to head to Cape Canaveral.” Id. Despite this advance knowledge, Musk did
not notify the SEC of his intent to attend the launch until three hours before his testimony was to
11
begin, and after the SEC spent thousands of dollars to fly three attorneys to Los Angeles.
12
The parties have agreed to a new date and time for Musk’s testimony in early October 2024 at
13 an SEC office. Id. at ¶ 11. But without further action by the Court, nothing deters Musk from
violating the May 31, 2024 Order again by simply failing to show up for that date. The Court should
14 consider meaningful conditional relief to compel Musk to obey the May 31, 2024 Order—relief, of
course, that will never actually be imposed if he appears. Musk has now failed to appear before the
15
SEC twice: first in September 2023, in defiance of a lawful administrative subpoena, and last week,
16 in defiance of a clear court order. The Court must make clear that Musk’s gamesmanship and delay
tactics must cease.
17

18 Dated: September 20, 2024 Respectfully submitted,

19 /s/ Robin Andrews

ROBIN ANDREWS
20 Attorney for Applicant
SECURITIES AND EXCHANGE COMMISSION
21

22

23

24

25

26
1 Pursuant to Local Rule 7-8, the SEC also intends to file a sanctions motion against Musk for an
27 Order to Show Cause why he should not be held in civil contempt of the May 31, 2024 Order, to
recoup its travel costs for the cancelled testimony, and for all other relief that the Court deems
28 proper.
JOINT STATEMENT REGARDING SEC V. MUSK
RESPONDENT’S FAILURE TO APPEAR FOR CASE NO. 23-MC-80253-JSC
COURT-ORDERED TESTIMONY
-3-
 Case 3:23-mc-80253-JSC Document 55 Filed 09/20/24 Page 4 of 5

1 II. Statement of Respondent Elon Musk

2 On May 30, 2024, this Court entered a Stipulation between the parties concerning the
scheduling of Mr. Musk’s third testimony with the SEC. Dkt. No. 52. Pursuant to that Stipulation,
3
the parties agreed that Mr. Musk would appear for investigative testimony before the SEC in Los
4 Angeles on September 10, 2024. See Spiro Declaration, ¶ 3. In that same Stipulation, the parties
agreed that testimony could be rescheduled in the case of “an emergency that Respondent did not
5 create and could not avoid.” Dkt. No. 52 at 3:8–10. Such an unavoidable emergency arose in the
early morning hours of September 10, when Mr. Musk’s presence was required in Cape Canaveral,
6 Florida, to oversee and approve the launch of SpaceX’s Polaris Dawn.
7
SpaceX’s Polaris Dawn mission was the first commercial spacewalk, a high-risk maneuver
8 during which astronauts leave a spacecraft, in this case the Dragon capsule, to explore outer space.
See Keech Declaration, ¶ 4. The Polaris Dawn’s initial target launch date was August 26, 2024, id.
9 ¶ 7, well before Mr. Musk’s September 10 testimony. Mr. Musk had to be present at the Cape
Canaveral launch site for the Polaris Dawn launch, and the timing of the launch was unpredictable
10 due to the weather. Id. ¶¶ 5–6. Whenever there is an issue with a launch, Mr. Musk makes the final
decision about whether or not to proceed. Id. ¶ 5. As such, Mr. Musk needed to be in Cape
11
Canaveral in person to effectively communicate with and lead the launch team. Id. It would have
12 caused additional and unnecessary difficulties that could have risked the lives of the Polaris Dawn
astronauts if Mr. Musk had been forced to manage this high-risk and complex launch remotely. Id.
13 The timing of the launch was unpredictable because it required clear weather conditions on both the
date of the launch and the date of the astronauts’ return five days later. Id. ¶ 6. As such, weather
14 conditions had to be appropriate on two different dates, making it impossible to predict more than a
few hours in advance when the launch could take place. Id. Since the Dragon capsule only provides
15
life support for up to six days, there was no room for error. Id.
16
The Polaris Dawn’s initial target launch date of August 26, 2024, was delayed numerous
17 times over multiple weeks due in large part to poor weather conditions. Id. ¶ 7. Two days before
the launch, there was only a 10% chance that the weather would be appropriate to allow for the
18 mission to proceed. Id. It was not until the evening of Monday, September 9, 2024 (Eastern
19 Daylight Time), that SpaceX confirmed weather conditions would finally allow for the launch of
Polaris Dawn early the next day. Id. The launch was initially scheduled for 3:38 a.m., EDT on
20 Tuesday, September 10, and then was delayed to 5:23 a.m., EDT for better weather conditions. Id.
The launch was not complete until the Dragon capsule systems were activated an hour later, and
21 Mr. Musk’s presence was necessary until that time. Id. As such, it would have been impossible for
Mr. Musk to travel from Florida to California in time for the SEC testimony.
22

23 Mr. Musk’s counsel, Alex Spiro and Rachel Frank, had traveled to Los Angeles in advance
of Mr. Musk’s scheduled testimony, which they expected to proceed on September 10. Spiro
24 Declaration, ¶ 4. When counsel for Mr. Musk learned that Mr. Musk would not be able to be present
in Los Angeles for the testimony as a result of the launch, counsel immediately notified the SEC of
25 the emergency, apologized for the inconvenience, and began work on rescheduling. Id. ¶ 5.
26 On September 18, 2024, Mr. Musk, through counsel, offered to appear before the SEC in
27 Los Angeles on October 3, 2024. Spiro Declaration, ¶ 6. The SEC responded that it would agree
to take Mr. Musk’s testimony on October 3, 2024, in Los Angeles, but it nevertheless would seek
28
JOINT STATEMENT REGARDING SEC V. MUSK
RESPONDENT’S FAILURE TO APPEAR FOR CASE NO. 23-MC-80253-JSC
COURT-ORDERED TESTIMONY
-4-
 Case 3:23-mc-80253-JSC Document 55 Filed 09/20/24 Page 5 of 5

1 the Court’s intervention to provide it “comfort that [Mr. Musk] will appear on October 3rd.” Id. ¶
6.
2
This Court’s intervention is not necessary, as the parties have already agreed to a new
3
testimony date. There is no reason to expend judicial resources to provide the SEC comfort. In any
4 event, Mr. Musk is already under an order from this Court to appear “absent an emergency that [Mr.
Musk] did not create and could not avoid.” Dkt. No. 52 at 3:8–10. Mr. Musk had to reschedule the
5 September 10 testimony only as the result of such an emergency, as described above, and there is
no reason to believe such an emergency will reoccur.
6
To the extent the SEC seeks sanctions, such drastic action would be inappropriate for at least
7
three reasons. First, that the parties specifically contemplated and agreed that rescheduling would
8 be permissible in light of an emergency like the one that occurred on September 10. Second, Mr.
Musk and his companies have cooperated and are cooperating with the SEC in multiple other
9 ongoing investigations and have provided numerous testimonies and document productions. Spiro
Declaration, ¶ 2. In this investigation alone, Mr. Musk has produced hundreds of documents, he has
10 sat for testimony twice, his wealth manager has sat for testimony three times, and other individuals
connected to Mr. Musk have also sat for testimony—all without any cancellations or rescheduling.
11
Id. Third, this third round of testimony for information about a late SEC filing is not urgent, and
12 the SEC has never argued such. The parties have already rescheduled the testimony for
approximately three weeks after the original date, an immaterial amount of time in the context of
13 this investigation which began two and a half years ago. Any request for sanctions should be denied.
14
Dated: September 20, 2024 QUINN EMANUEL URQUHART &
15
SULLIVAN, LLP
16
By: /s/ Alex Spiro
17 Alex Spiro
18 Attorney for Elon Musk
19

20

21

22

23

24

25

26

27

28
JOINT STATEMENT REGARDING SEC V. MUSK
RESPONDENT’S FAILURE TO APPEAR FOR CASE NO. 23-MC-80253-JSC
COURT-ORDERED TESTIMONY
-5-
 Case 3:23-mc-80253-JSC Document 55-1 Filed 09/20/24 Page 1 of 4

1 MONIQUE WINKLER (Cal. Bar No. 213031)

BERNARD B. SMYTH (Cal. Bar No. 217741)
2 SmythB@sec.gov
ROBIN ANDREWS (Ill. Bar No. 6285644)
3 AndrewsR@sec.gov
44 Montgomery Street, Suite 700
4 San Francisco, CA 94104
Telephone: (415) 705-2500
5 Facsimile: (415) 705-2501

6 Attorneys for Applicant

Securities and Exchange Commission
7

8 UNITED STATES DISTRICT COURT

9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN FRANCISCO DIVISION
11

12
SECURITIES AND EXCHANGE Case No. 3:23-mc-80253-JSC
13 COMMISSION,

14 Applicant, DECLARATION OF ROBIN ANDREWS

IN SUPPORT OF JOINT STATEMENT
15 v. REGARDING RESPONDENT’S FAILURE
TO APPEAR FOR TESTIMONY
16 ELON MUSK,

17 Respondent.

18

19
I, Robin Andrews, declare:
20
1. I am a Senior Trial Counsel in the San Francisco Regional Office of the Securities and
21
Exchange Commission (“SEC”). I am an attorney duly admitted to practice in the State of Illinois. I
22
am making this Declaration based upon facts within my personal knowledge, and to which I am
23
competent to testify if called upon to do so. I submit this Declaration in support of the SEC’s portion
24
of the Joint Statement Regarding Respondent’s Failure to Appear for Testimony (“Joint Statement”).
25
2. On May 14, 2024, this Court ordered Mr. Musk to appear for investigative testimony
26
in this matter. Dkt. No. 48. On May 29, 2024, the parties agreed to conduct that testimony on
27
September 19, 2024. Pursuant to a stipulation, on May 31, 2024 the Court ordered that, among other
28
things, “The agreed-upon date and time for [Musk’s] testimony may be rescheduled only upon

ANDREWS DECL. ISO JOINT STATEMENT SEC V. MUSK

REGARDING RESPONDENT’S FAILURE TO CASE NO. 23-MC-80253- JSC
APPEAR FOR TESTIMONY
 Case 3:23-mc-80253-JSC Document 55-1 Filed 09/20/24 Page 2 of 4

1 written consent of the SEC or order of the Court, and [Musk] shall not seek delay or rescheduling of
2 the testimony absent an emergency that [Musk] did not create and could not avoid.” Dkt No. 53 (“the

3 May 31, 2024 Order”) at 3. Musk also waived his right to appeal: (1) the Court’s Order; or (2) the

4 SEC’s right to this additional session of testimony. Id.

5 3. In late July 2024, Musk’s counsel informed SEC counsel that he was scheduled for
6 trial the entire week of September 16th and thus asked the SEC’s consent to reschedule Musk’s

7 testimony. Musk’s counsel refused to explain how—despite the May 31, 2024 Order—he was

8 scheduled for trial that week. Nevertheless, pursuant to the procedures set forth in the May 31, 2024

9 Order above, SEC counsel consented in writing to reschedule Musk’s testimony for September 10,
10 2024 at 9 a.m. in the SEC’s Los Angeles office.

11 4. On September 9, 2024, three SEC counsels flew to Los Angeles for Musk’s testimony;
12 two from San Francisco, and one from Washington, DC.

13 5. Shortly before 6 a.m. PT on September 10, 2024, Musk’s counsel sent an email to
14 SEC counsel, stating:

15
I have been notified that Mr. Musk is unable to attend the testimony scheduled for
16 today in this matter. Mr. Musk’s obligations as Chief Technology Officer of SpaceX
required he urgently travel to the East Coast yesterday for the high-risk Polaris Dawn
17 launch. The timing of the launch was highly weather-dependent and beyond Mr.
Musk’s control, and has resulted in him being unable to return in time for the
18 testimony. We appreciate your flexibility in scheduling this testimony and apologize for
19 any inconvenience this may cause. Please let us know what alternative dates in the next
month may work and we will reschedule the testimony promptly.
20 According to publicly available information, the Polaris Dawn launch took place at 2:23 a.m. PT on

21 September 10th at the Kennedy Space Center in Florida.

22 6. At 8:45 a.m. on September 10th, SEC counsel sent a letter to Musk’s counsel, offering
23 to reschedule Musk’s testimony for the following day (September 11th), noting that this “allows for

24 more than sufficient time for Mr. Musk to return to Los Angeles, given the approximately four-hour

25 flight time” from Florida to Los Angeles. In that letter, SEC counsel informed Musk’s counsel that

26 “If Mr. Musk does not promptly agree to appear tomorrow at 9 a.m. at the SEC’s Los Angeles office,

27

28
ANDREWS DECL. ISO JOINT STATEMENT 2 SEC V. MUSK
REGARDING RESPONDENT’S FAILURE CASE NO. 23-MC-80253- JSC
TO APPEAR FOR TESTIMONY
 Case 3:23-mc-80253-JSC Document 55-1 Filed 09/20/24 Page 3 of 4

1 we will bring this matter to Judge Corley today. Among other things, we may seek sanctions against
2 Mr. Musk.”

3 7. At 8:58 a.m. on September 10th, Musk’s counsel responded via email that September
4 11th “does not work” and stated, among other things, “We can pick a new date in the near term. If

5 something were to occur at that point I would maybe understand bringing the matter to federal court.”

6 8. At 9:40 a.m. on September 10th, SEC counsel conducted a meet-and-confer via

7 videoconference with Musk’s counsel Ms. Frank. Ms. Frank informed SEC counsel that Mr. Spiro

8 was unavailable as he was currently on a flight, but that he would be able to attend a conference later

9 in the week. At 11:45 a.m. on September 10th, SEC counsel contacted the Court’s courtroom deputy
10 requesting a hearing before the Court. At 5:30 p.m. PT that day, the Court’s courtroom deputy

11 informed the parties that the Court was unavailable until September 23rd.

12 9. Unbeknownst to SEC counsel, at 6:52 pm PT on Sunday, September 8th, SpaceX had

13 already announced that it was targeting a Tuesday morning launch, according to a public X.com post

14 (https://x.com/SpaceX/status/1832960331737653692). Also unbeknownst to SEC counsel, on

15 Monday, September 9th, Musk was interviewed at a conference in Los Angeles

16 (https://summit.allinpodcast.co/), during which he discussed the SpaceX launch, and stated, “in fact,

17 there’s an important, a very exciting launch that is maybe happening tonight, so if the weather is

18 holding up, then I’m going to leave here to head to Cape Canaveral for the Polaris Dawn mission…”

19 (https://www.youtube.com/watch?v=pSFvOUswFwA at 30:18-30:38).

20 10. On September 10th, Musk’s counsel offered to reschedule the testimony to “dates in
21 the next month.” On September 11th, SEC counsel sent a letter to Musk’s counsel, offering any date

22 in that timeframe: “We are available to take Mr. Musk’s testimony in the SEC’s San Francisco office

23 on any date on or before October 11, 2024.” On September 16th, Musk’s counsel responded,

24 declining to select any date “in the next month” as previously offered, instead proposing October

25 29th or October 30th, only in the SEC’s Los Angeles office, and only if the SEC withdrew its request

26 for a discovery conference. SEC counsel declined this offer. On September 18th—after the Court’s

27 courtroom deputy indicated that the Court would schedule a discovery hearing on this matter—

28 Musk’s counsel finally offered a testimony date in early October 2024.

ANDREWS DECL. ISO JOINT STATEMENT 3 SEC V. MUSK
REGARDING RESPONDENT’S FAILURE CASE NO. 23-MC-80253- JSC
TO APPEAR FOR TESTIMONY
 Case 3:23-mc-80253-JSC Document 55-1 Filed 09/20/24 Page 4 of 4

1 11. On September 18, 2024, the parties agreed to a new date and time for Musk’s
2 testimony in early October 2024 at an SEC office. Musk’s counsel has agreed that, pursuant to the

3 May 31, 2024 Order, this new agreed-upon date and time “may be rescheduled only upon written

4 consent of the SEC or order of the Court, and [Musk] shall not seek delay or rescheduling of the

5 testimony absent an emergency that [Musk] did not create and could not avoid.”

8 I declare under penalty of perjury under the laws of the United States of America that the foregoing is

9 true and correct and that this Declaration was signed on September 20, 2024.
10

11

12 ROBIN ANDREWS
COUNSEL FOR SECURITIES AND
13 EXCHANGE COMMISSION
14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
ANDREWS DECL. ISO JOINT STATEMENT 4 SEC V. MUSK
REGARDING RESPONDENT’S FAILURE CASE NO. 23-MC-80253- JSC
TO APPEAR FOR TESTIMONY
 Case 3:23-mc-80253-JSC Document 55-2 Filed 09/20/24 Page 1 of 2

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP

Alex Spiro (pro hac vice)
2 51 Madison Ave, 22nd Floor
New York, NY 10010
3
Telephone: (212) 849-7000
4 Facsimile: (212) 849-7100
alexspiro@quinnemanuel.com
5
Christopher G. Michel (pro hac vice)
6 Rachel G. Frank (California Bar No. 330040)

7 1300 I Street NW, Suite 900

Washington, D.C. 20005
8 Telephone: (202) 538-8000
Facsimile: (202) 538-8100
9 christophermichel@quinnemanuel.com
rachelfrank@quinnemanuel.com
10

11 Attorneys for Respondent Elon Musk

12 UNITED STATES DISTRICT COURT

13 NORTHERN DISTRICT OF CALIFORNIA

14 SAN FRANCISCO DIVISION

15

16 SECURITIES AND EXCHANGE Case No. 3:23-mc-80253-JSC

COMMISSION,
17 DECLARATION OF ALEX SPIRO IN
Applicant, SUPPORT OF JOINT STATEMENT
18 REGARDING DISCOVERY DISPUTE
v.
19

20 ELON MUSK,

21 Respondent.
22
DECLARATION OF ALEX SPIRO
23
I, Alex Spiro, declare as follows:
24
1. I am an attorney at the law firm Quinn Emanuel Urquhart & Sullivan, LLP. I submit
25
this declaration in support of Mr. Musk’s Joint Statement Regarding Discovery Dispute. The
26
matters in this declaration are based on my personal knowledge and my review of the filings in this
27
case.
28

Case No. 3:23-mc-80253-JSC

Declaration of Alex Spiro in Support of Joint Statement Regarding Discovery Dispute
 Case 3:23-mc-80253-JSC Document 55-2 Filed 09/20/24 Page 2 of 2

1 2. Mr. Musk and his companies have cooperated with the SEC in multiple other

2 ongoing investigations, providing numerous testimonies and document productions. In this

3 investigation alone, Mr. Musk has produced hundreds of documents, he has sat for testimony twice,

4 his wealth manager has sat for testimony three times, and other individuals connected to Mr. Musk

5 have also sat for testimony, all without rescheduling or cancelling any of those testimonies.

6 3. Pursuant to a Stipulation with the Securities & Exchange Commission (SEC) filed

7 before this Court, Dkt. No. 52, the parties agreed that Mr. Musk would appear for investigative

8 testimony before the SEC in Los Angeles on September 10, 2024.

9 4. Mr. Musk’s counsel, myself and Rachel Frank, traveled to Los Angeles in advance

10 of Mr. Musk’s scheduled testimony, which we expected to proceed on September 10.

11 5. Early in the morning of September 10, we learned that Mr. Musk could not appear

12 for the scheduled testimony because his presence was required for the Polaris Dawn launch in Cape

13 Canaveral, Florida. We immediately notified the SEC of the emergency, apologized for the

14 inconvenience, and sought to reschedule the testimony for a date in the near future. See Exhibit A

15 (Sept. 10, 2024 Letter from A. Spiro to R. Andrews).

16 6. On September 18, the parties agreed to reschedule Mr. Musk’s testimony for October

17 3, 2024 in Los Angeles. Nevertheless, the SEC stated that it would seek the Court’s intervention to

18 provide it “comfort that [Mr. Musk] will appear on October 3rd.”

19 I declare, under penalty of perjury, that the foregoing is true and correct to the best of my

20 knowledge and belief.

21 Executed in Miami, Florida, on September 20, 2024.

22

23 Dated: September 20, 2024 By: /s/ Alex Spiro

24 Alex Spiro

25 Attorney for Elon Musk

26

27

28

-2- Case No. 3:23-mc-80253-JSC

Declaration of Alex Spiro in Support of Joint Statement Regarding Discovery Dispute
Case 3:23-mc-80253-JSC Document 55-3 Filed 09/20/24 Page 1 of 3

EXHIBIT A
 Case 3:23-mc-80253-JSC Document 55-3 Filed 09/20/24 Page 2 of 3

quinn emanuel trial lawyers | new york

51 Madison Avenue, 22nd Floor, New York, New York 10010-1601 | TEL (212) 849-7000 FAX (212) 849-7100

WRITER'S DIRECT DIAL NO.

(212) 849-7364

WRITER'S EMAIL ADDRESS

alexspiro@quinnemanuel.com

September 10, 2024

FOIA CONFIDENTIAL TREATMENT REQUESTED

VIA ELECTRONIC MAIL

Robin Andrews
Senior Counsel, Division of Enforcement
United States Securities and Exchange Commission
44 Montgomery Street, Suite 2800
San Francisco, CA 94104

Re: In the Matter of Certain Purchases, Sales, and Disclosures of Twitter Shares (SF-4519)

Dear Mr. Andrews:

I have been notified that Mr. Musk is unable to attend the testimony scheduled for today in
this matter. Mr. Musk’s obligations as Chief Technology Officer of SpaceX required he urgently
travel to the East Coast yesterday for the high-risk Polaris Dawn launch. The timing of the launch
was highly weather-dependent and beyond Mr. Musk’s control, and has resulted in him being
unable to return in time for the testimony. We appreciate your flexibility in scheduling this
testimony and apologize for any inconvenience this may cause. Please let us know what alternative
dates in the next month may work and we will reschedule the testimony promptly.

* * *
Mr. Musk requests, under 17 C.F.R. § 200.83, that the Commission afford confidential
treatment to and not disclose this submission or any other information or documents that may be
provided to the Staff in the future by Mr. Musk—in response to any request under the Freedom of
Information Act, 5 U.S.C. § 552.

A copy of this written request for confidential treatment has been sent to the Office of
Freedom of Information and Privacy Act Operations, Securities and Exchange Commission, 100
F Street, N.E., Washington, D.C. 20549, as required by 17 C.F.R. § 200.83(c)(3). Should a request
be received by the Commission under the Freedom of Information Act for disclosure of the
information to which this request for confidential treatment relates, Mr. Musk asks that the

quinn emanuel urquhart & sullivan, llp

ATLANTA | AUSTIN | BOSTON | BRUSSELS | CHICAGO | DOHA | HAMBURG | HONG KONG | HOUSTON | LONDON | LOS ANGELES | MANNHEIM |
MIAMI | MUNICH | NEUILLY-LA DEFENSE | NEW YORK | PARIS | PERTH | RIYADH | SALT LAKE CITY | SAN FRANCISCO | SEATTLE | SHANGHAI |
SILICON VALLEY | STUTTGART | SYDNEY | TOKYO | WASHINGTON, DC | ZURICH
 Case 3:23-mc-80253-JSC Document 55-3 Filed 09/20/24 Page 3 of 3

Commission immediately notify the undersigned by telephone or electronic mail, so that we may
provide any additional information regarding this request for confidential treatment that may be
necessary. We further request that you communicate our request for confidentiality to any other
self-regulatory organization or government agency that may request access to these materials.

The information in this letter is made available to the Commission without prejudice to any
privilege that Mr. Musk may have, including the attorney-client and work product privilege, which
privileges are expressly reserved. In the event that any information provided herein constitutes
information protected by any privilege that Mr. Musk may have, including the attorney-client and
work product privilege, Mr. Musk requests the immediate return of such information, and any such
inadvertent production shall not constitute a waiver of any such privilege. Furthermore, Mr. Musk
has made a diligent effort to be thorough and accurate in providing this information, there may be
omissions or inaccuracies of which we are not presently aware. Accordingly, this response is
subject to possible supplementation or revision.

Very truly yours,

Alex Spiro

2
 Case 3:23-mc-80253-JSC Document 55-4 Filed 09/20/24 Page 1 of 3

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP

Alex Spiro (pro hac vice)
2 51 Madison Ave, 22nd Floor
New York, NY 10010
3
Telephone: (212) 849-7000
4 Facsimile: (212) 849-7100
alexspiro@quinnemanuel.com
5
Christopher G. Michel (pro hac vice)
6 Rachel G. Frank (California Bar No. 330040)

7 1300 I Street NW, Suite 900

Washington, D.C. 20005
8 Telephone: (202) 538-8000
Facsimile: (202) 538-8100
9 christophermichel@quinnemanuel.com
rachelfrank@quinnemanuel.com
10

11 Attorneys for Respondent Elon Musk

12 UNITED STATES DISTRICT COURT

13 NORTHERN DISTRICT OF CALIFORNIA

14 SAN FRANCISCO DIVISION

15

16 SECURITIES AND EXCHANGE Case No. 3:23-mc-80253-JSC

COMMISSION,
17 DECLARATION OF STUART KEECH IN
Applicant, SUPPORT OF JOINT STATEMENT
18 REGARDING DISCOVERY DISPUTE
v.
19

20 ELON MUSK,

21 Respondent.
22
DECLARATION OF STUART KEECH
23
I, Stuart Keech, declare as follows:
24
1. I, Stuart Keech, am the Vice President of Dragon at SpaceX.
25
2. I report directly to SpaceX’s Chief Operating Officer, who in turn reports to Elon
26
Musk, SpaceX’s founder, Chief Executive Officer, and Chief Technology Officer.
27

28

Case No. 3:23-mc-80253-JSC

Declaration of Stuart Keech in Support of Joint Statement Regarding Discovery Dispute
 Case 3:23-mc-80253-JSC Document 55-4 Filed 09/20/24 Page 2 of 3

1 3. I am responsible for the design and operation of Dragon, the space capsule used in

2 the Polaris Dawn launch. The launch took place on September 10, 2024 at the Kennedy Space

3 Center in Cape Canaveral, Florida.

4 4. Mr. Musk played a critical role managing the development and execution of the

5 Polaris Dawn mission. The Polaris Dawn mission was groundbreaking because it was the first

6 commercial spacewalk. During a spacewalk, astronauts leave a spacecraft to explore outer space, a

7 high-risk maneuver. The Polaris Dawn spacewalk was especially risky because the entire spacecraft

8 had to be depressurized for the astronauts to exit, because Dragon does not have an airlock, unlike

9 the International Space Station. Mr. Musk was heavily involved in the Polaris Dawn mission. I

10 typically meet with Mr. Musk once a month to update him on SpaceX projects and this frequency

11 increases as we get closer to a mission. I communicated with Mr. Musk four times in the month

12 leading up to the initial Polaris Dawn launch target date of August 26, 2024, and he participated in

13 the Launch Readiness Review on August 25, 2024, as well.

14 5. It was necessary that Mr. Musk be present at the Cape Canaveral launch site for the

15 Polaris Dawn launch. Whenever there is an issue with a launch, Mr. Musk makes the final decision

16 about whether or not to proceed. It was necessary that Mr. Musk be in Cape Canaveral in person to

17 effectively communicate with and lead the launch team. It would have caused additional and

18 unnecessary difficulties that could have risked the lives of the Polaris Dawn astronauts if Mr. Musk

19 had been forced to manage this high-risk and complex mission remotely.

20 6. The timing of the Polaris Dawn launch was unpredictable due to the weather. The

21 Polaris Dawn mission required clear weather conditions on both the date of the launch and the date

22 of the astronauts’ return five days later. Thus, weather conditions had to be appropriate on two

23 different dates, making it impossible to predict more than a few hours in advance when the launch

24 could take place. Since the Dragon capsule only provides life support for up to six days, there was

25 no room for error.

26 7. The Polaris Dawn’s initial target launch date of August 26, 2024, was delayed

27 numerous times over multiple weeks due in large part to poor weather conditions. On Sunday,

28 September 8, 2024, there was only a 10% chance that the weather would be appropriate to allow for

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Declaration of Stuart Keech in Support of Joint Statement Regarding Discovery Dispute
 Case 3:23-mc-80253-JSC Document 55-4 Filed 09/20/24 Page 3 of 3

1 the mission to proceed on September 10, 2024. It was not until the evening of Monday, September

2 9, 2024 (Eastern Daylight Time), that we confirmed that weather conditions would finally allow for

3 the launch of Polaris Dawn early the next day. The launch was initially scheduled for 3:38 a.m.,

4 EDT on Tuesday, September 10, and then was delayed to 5:23 a.m., EDT for better weather

5 conditions. The launch was not complete until the Dragon capsule systems were activated an hour

6 later, and Mr. Musk’s presence was necessary until that time.

7 I declare, under penalty of perjury, that the foregoing is true and correct to the best of my

8 knowledge and belief.

9 Executed in Hawthorne, California, on September 20, 2024.

10

11 Dated: September 20, 2024

12 By: /s/ Stuart Keech

Stuart Keech
13

14 VP of Dragon at SpaceX

15

16 LOCAL RULE 5-1(i)(3) ATTESTATION

17
Pursuant to L.R. 5-1(i)(3), I, Alex Spiro, attest that the signatory identified above, and on
18 whose behalf the filing is submitted, concurs in the filing’s content and has authorized the filing.

19 By: /s/ Alex Spiro

Alex Spiro
20

21

22

23

24

25

26

27

28

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Declaration of Stuart Keech in Support of Joint Statement Regarding Discovery Dispute