Musk seeks summary judgment in case of diver he called ‘pedo’

When Elon Musk accused a British diver in Thailand of pedophilia in a highly publicized 2018 Twitter spat, the Tesla CEO was relying on the word of a private investigator he paid $50,000, according to a new court filing.

A motion for summary judgment filed Monday in the Central District of California likely marks Musk's last chance to avoid a December trial over defamation claims brought by diver Vernon Unsworth as the bombastic and aggressively-toned filing salts the earth for any settlement talks.

Musk's filing claims he'd been contacted by the investigator after calling Unsworth "pedo guy" on Twitter in response to comments made by Unsworth in June 2018. Unsworth, who at the time was advising rescuers working to save a trapped youth soccer team in Thailand, belittled offers made by Musk to design a "mini-submarine" to rescue the youth, Unsworth called the SpaceX CEO's offer a "PR stunt."

Musk claims in Monday's motion that he and a team of 50 engineers worked around-the-clock to develop and potentially ship a working prototype. His altruism earned praise and encouragement from leaders of the rescue team and the Thai government, according to the filing. Musk v. Unsworth, 18-cv-08048 (C.D. Cal., filed Sept. 17, 2018).

When he called Unsworth a "pedo guy" -- a "common insult in South Africa during his youth," which Musk says in his motion is synonymous with "creepy old man" and "not an accusation of pedophilia" -- Musk says he received an email reporting Unsworth "had skeletons in his cupboard."

A month later Musk says he retained the services of the e-mail's author, an investigator named James Howard, whose firm's high profile clients purportedly included the likes of Paul Allen and George Soros, according to the filing. His subsequent comments, particularly those made to a reporter in an e-mail Musk says he'd thought was off-the-record, were informed by Howard's reports.

"Musk based his comments to BuzzFeed on what a private investigator said about Mr. Unsworth, both in written reports and by phone, based on an investigation he claimed to have undertaken in Thailand and England," wrote Alex Spiro, an attorney at Quinn Emanuel Urquhart & Sullivan LLP in the Monday filing.

Plaintiff's attorney L. Lin Wood told the Daily Journal Monday that not only had Musk paid the investigator $52,000, he offered a $10,000 bonus if he came up with "any evidence of nefarious conduct of Unsworth." He said the bonus wasn't paid and depositions later made clear Musk had known the reports weren't truthful.

Kenneth White, a First Amendment litigator at Brown, White & Osborn LLP not involved in the case, said to prevail on his motion Musk would have to show there are no material facts in genuine dispute, and he's entitled to a judgment under the law. It's an aggressive move to bring such a motion so early in the case, even before discovery, White said, and seems like a "method of getting as much nasty stuff about the plaintiff into the public record as possible."

"That's the thing about defamation lawsuits. Once you start them, it's open season on bringing in any rumors or trifles that might go to the issue, and because it's being done in court pleadings they're absolutely privileged and can't be the basis of a new defamation claim," White said. "So this is a vehicle for Musk to pour all of the rumors his investigator got into the record."

Wood decried the tone of Monday's filing, calling it part of a "calculated strategy" to falsely defame Unsworth and contrasting it with civil interactions he had with Musk's prior counsel at Hueston Hennigan LLP.

"We will address every point in our responsive brief," Wood said. "And we will be relying on sworn testimony that will contradict every significant argument they've made."

Neville Johnson, a senior partner at Johnson & Johnson LLP not involved in the case, said he'd wager against Musk's motion prevailing given his own claims about his sources of information. "It's a question of whether you can rely on the information you've been given," Johnson said. "And he's relying on an investigator he paid $50,000."