Exhibit 2 🔗 **Source:** [Exhibit 2](https://readwise.io/reader/document_raw_content/449369982) > [!note]+ Document Notes > ```markdown > > --- > tags: [litigation, discovery, subpoenas] > author: Suhr, Rachel Rose > source: [MISSING] > reference: [https://readwise.io/reader/document_raw_content/449369982] > date created: 2026-04-29 00:00 > > --- > > # 🏷️ Title: Exhibit 2 > <!-- deep-read:sections start --> ## 🧭 Table of Contents - [📝 Summary](#-summary) - [📖 Main Content](#-main-content) - [🗒️ Notes](#️-notes) - [📚 References](#-references) - [🗣️ Paraphrase](#️-paraphrase) - [📰 Newsletter](#-newsletter) - [✅ Action Items](#-action-items) - [🧪 Hypotheses](#-hypotheses) - [📊 Methodology](#-methodology) - [❓ Questions](#-questions) - [🔮 Future Research](#-future-research) - [💡 Implications](#-implications) - [🧠 Learning Styles Assessment](#-learning-styles-assessment) - [📊 Accessibility Assessment](#-accessibility-assessment) - [🌍 DEIB Assessment](#-deib-assessment) - [✅ Logical Validity](#-logical-validity) - [🛡️ DARVO Analysis](#-darvo-analysis) - [🎯 Conclusion](#-conclusion) ### 🔗 References - Include links cited in or relevant to the article. ## 📝 Summary - What happened: Counsel for Silver Lake and Automattic/other defendants exchange emails about subpoenas and discovery related to Silver Lake, Lee Wittlinger, and David Zhang in *WP Engine v. Automattic, et al.* - Why it matters: Dispute over scope and burden of discovery on non‑party Silver Lake and individual directors, especially search terms and personal devices. - Key stakeholders: WP Engine (plaintiff), Automattic and co‑defendants, Silver Lake, Lee Wittlinger, David Zhang, counsel (Coblentz, Quinn Emanuel). - Risks and tradeoffs: Overbroad discovery vs. risk of missing relevant texts/emails; Rule 45 burden on non‑parties vs. defendants’ need for evidence. - Bottom line: The parties reach an impasse on search strings, device scope, and meet‑and‑confer obligations, prompting threats of unilateral joint discovery letters and sanctions requests. ## 📖 Main Content - Core arguments: - Silver Lake’s counsel (Becher/Quinn) argues defendants’ proposed search terms and device searches are overbroad, improperly expanded, and inconsistent with Judge Krishnan’s Standing Order and Rule 45 obligations to avoid undue burden on non‑parties. - Defendants’ counsel (Bruggebrew/Coblentz) argues Silver Lake has not adequately searched/produced custodial data for Wittlinger and Zhang, especially text messages from personal devices, and that search terms are not protected work product (citing *FormFactor* and *Price v. Facebook*). - Silver Lake insists Silver Lake, not the individuals, will produce any work‑related communications from their devices and that duplicative subpoenas to the individuals are harassment and an attempt to evade page limits. - Defendants insist on specific confirmations about preservation, search terms, apps used, and date ranges for communications from personal devices. - Context & terms: - Rule 45 (FRCP) governs subpoenas to non‑parties and requires reasonable steps to avoid undue burden/expense. - “Joint discovery letter” is the Northern District of California’s short, joint briefing format for discovery disputes. - Search terms include both neutral and loaded words (e.g., “acquis*”, “monopol*”, “war”, “parasite”, “WooCommerce”, “WP Engine”) aimed at surfacing potentially key communications. - Uncertainties: - Exact completeness of Silver Lake’s production; whether all relevant SMS from Wittlinger/Zhang were collected. - How the court will weigh non‑party burden vs. defendants’ need for individualized discovery from directors. ### 🗒️ Notes - The exhibit is an email chain (March–April 2026) between: - Dan Bruggebrew (Coblentz) for Automattic/defendants. - Robert Becher and Sara Jenkins (Quinn Emanuel) for Silver Lake, Wittlinger, Zhang. - Key disputes: - Defendants want detailed search strings run across Silver Lake and personal devices, including terms like “acquis*”, “monopol*”, “war”, “parasite”, “WooCommerce”, “WP Engine”, “wordpressenginetracker.com”, “takeover”, “steal*”. - Silver Lake objects that many terms (60 identified) were not previously shared and are newly introduced in a draft joint letter. - Silver Lake demands defendants explain: - What unique information each term would uncover beyond WP Engine’s own productions. - How burden on non‑party individuals is minimized as required by Rule 45 and a December 22, 2025 court order. - Defendants stress: - They have narrowed requests to specific categories (A–E) and a set of RFPs. - There is a “dearth of responsive text messages” and missing messages (e.g., between Wittlinger and Heather Brunner), suggesting incomplete searches. - Personal devices: - Silver Lake represents that any Silver Lake‑related data on Wittlinger/Zhang personal devices is Silver Lake’s responsibility and will be produced as Silver Lake documents. - Defendants ask for explicit confirmation that: - Personal devices and accounts were searched. - All responsive communications stored only on those devices are being produced. - Only SMS (not WhatsApp/Signal/Telegram) were used for work communications. - Date ranges for collections are defined. - Work product & search terms: - Defendants argue search terms are not protected work product and cite: - *FormFactor, Inc. v. Micro-Probe, Inc.*, 2012 WL 1575093 (N.D. Cal. May 3, 2012). - *Price v. Facebook, Inc.*, 2020 WL 13200227 (N.D. Cal. Apr. 2, 2020). - Silver Lake counters that defendants have not complied with meet‑and‑confer obligations before escalating via joint letter. - Process & tone: - Both sides accuse the other of bad faith and “obstreperous and duplicative litigation tactics.” - Silver Lake threatens to seek reimbursement of fees and costs as sanctions. - Defendants threaten to file a unilateral joint letter if Silver Lake refuses to participate on their proposed schedule. - The correspondence documents multiple Zoom/phone meet‑and‑confers, schedule negotiations, and confirmation requests. ## 📚 References - *FormFactor, Inc. v. Micro-Probe, Inc.*, 2012 WL 1575093 (N.D. Cal. May 3, 2012). - *Price v. Facebook, Inc.*, 2020 WL 13200227 (N.D. Cal. Apr. 2, 2020). - Federal Rule of Civil Procedure 45 (Subpoenas). - Standing Orders of Judge Krishnan (N.D. Cal) – joint discovery letters and meet‑and‑confer requirements. ## 🗣️ Paraphrase - Paragraph A: The emails show defense counsel pressing Silver Lake to run extensive, specific search terms against Silver Lake and individual custodians’ devices, arguing prior searches were incomplete and that search methodologies must be shared. - Paragraph B: Silver Lake’s counsel pushes back that the requests are overbroad, duplicative of WP Engine’s productions, impose undue burden on non‑party individuals, and were advanced without proper meet‑and‑confer, warranting resistance and potential sanctions. ## 📰 Newsletter In this week’s WordPress‑adjacent legal corner, *WP Engine v. Automattic* continues to highlight how discovery on investors and directors can become a battleground. Exhibit 2, an email chain between Automattic’s counsel and Silver Lake’s counsel, unpacks disputes over search terms, personal devices, and Rule 45 limits on non‑party subpoenas. For WordPress builders and hosts, the lesson is clear: governance, data retention, and communication channels (SMS vs. apps) matter long before litigation appears. Good documentation and clear policies can reduce friction if regulators or courts come knocking. Keep sharpening your stack with: - WordPress.org documentation on [site administration best practices](https://wordpress.org/support/article/administration-screens/). - Guides to legal‑adjacent issues like logging and privacy from your hosting provider or legal counsel. ## ✅ Action Items #### DevRel - Clarify internal guidance for contributors and partners on acceptable communication channels and retention. - Develop a short workshop on “Discovery‑aware development” for enterprise WordPress teams. - Add examples/snippets that show how to log key product decisions in auditable systems, not private chats. - Publish a blog post explaining, in neutral terms, how litigation‑driven discovery can touch open‑source communities. #### OSPO - Document policies on using personal devices and accounts for project/business communications. - Ensure license and contribution policies clarify ownership and control of communications and artifacts. - Coordinate with legal on playbooks for responding to subpoenas targeting maintainers or corporate sponsors. - Track upstream dependencies and investors to understand which entities might become discovery targets. #### Community - Provide maintainers with simple templates for data retention and communication expectations. - Offer “governance clinics” that explain how board/investor involvement intersects with open‑source projects. - Encourage contributors to avoid sensitive negotiations in ephemeral, private channels where possible. #### WordPress - Core: Encourage structured decision records (e.g., in tickets or Make posts) instead of private messaging. - Core Performance: Log performance decisions and experiments transparently to reduce reliance on private chats. - Core AI: Define guidelines for storing prompts/results where they may be relevant to future audits. - **Core Program Team:** Establish rituals for capturing decisions in public, searchable places. - Mobile: Ensure app telemetry and error logging policies are documented and discoverable. - Playground: Use Playground for reproducible bug reports that reduce reliance on informal communications. - Community: Add a “communications hygiene” section to WordCamp/meetup organizer handbooks. - Training: Create lessons on legal‑adjacent good practices for agencies/hosts using WordPress at scale. - Marketing: Avoid making unverifiable claims that could later complicate legal discovery. - Support: Encourage use of official support channels so issue resolution is documented. - Design: Capture design decisions in tickets and Figma comments linked from public issues. - Documentation: Expand guidance on governance, data handling, and enterprise practices. - Photos: Maintain clear metadata and consent records for assets to reduce later disputes. - TV: Ensure session recordings and transcripts are archived and easy to reference. - Polyglots: Document major terminology decisions publicly for auditability. - Accessibility: Keep accessibility review discussions in public channels or documented summaries. - Meta: Improve .org tools for tracking decisions, issues, and releases. - CLI: Document design rationales for major commands and flags. #### The WPCC - Offer microgrants for documentation sprints that improve governance and decision records. - Support maintainers facing legal process with connections to pro‑bono or low‑bono counsel. - Pilot programs that fund “governance maintenance,” not just code. ### FAIR - Encourage projects to record governance and funding arrangements in durable, accessible formats. - Promote covenants that clarify expectations around subpoenas, data retention, and non‑party burden. - Share templates for operator agreements that anticipate discovery and clarify responsibilities. ## 🧪 Hypotheses - H1: Requiring parties to share search terms improves discovery completeness without materially increasing non‑party burden. - H2: Clear policies on use of personal devices for work reduce disputes over custodial scope in litigation. - H3: Early, detailed meet‑and‑confer on search methodology lowers the likelihood of sanctions motions. - H4: Emotionally loaded search terms (e.g., “war”, “parasite”) yield little unique probative value compared with more neutral, topic‑specific terms. ### 📊 Methodology - For H1–H3: Comparative case study of ND Cal discovery disputes, coding for presence/absence of shared search terms, device policies, and depth of meet‑and‑confer; correlate with motions to compel, sanctions, and court rulings. - For H4: Analyze hit reports (where available) for loaded vs. neutral terms; measure unique responsive documents and their impact on dispositive motions or trial evidence. ### ❓ Questions - How often do courts treat search terms as work product vs. discoverable in practice? - What standards do judges apply when evaluating burden on non‑party investors or board members? - When do courts compel production directly from individuals despite overlapping corporate productions? - Could standardized discovery protocols for venture‑backed companies reduce these conflicts? ### 🔮 Future Research - Empirical study of subpoena practice toward private equity/VC firms in tech litigation. - Best‑practice frameworks for communication and retention policies in open‑source‑heavy ecosystems. - Tooling that helps counsel simulate the burden/benefit of proposed search strings before negotiation. ### 💡 Implications - Practice: Counsel should prepare detailed, defensible search methodologies and be ready to share them. - Policy: Organizations may need explicit rules on personal devices and messaging apps for work. - Security: Centralizing sensitive decisions in secure, logged systems can both improve security and streamline discovery. - Education: Legal and technical training for engineering leaders can reduce missteps in litigation. - Funding: Investors in infrastructure (like WordPress ecosystem companies) should anticipate and plan for discovery exposure. ### 🧠 Learning Styles Assessment - Reading level estimate: Approximately college/graduate level; dense legal and procedural language, multi‑clause sentences, and case citations (roughly Flesch–Kincaid Grade 14–16 by inspection). #### 👀 Visual learners - Present: None; this is plain text email. - Improve: Add flow diagrams showing discovery requests, custodians, and data sources; timelines of correspondence; tables mapping RFPs to search terms. #### 🔊 Aural learners - Present: None. - Improve: 3–5 minute audio summary of the dispute and its stakes; optional narrated walkthrough for non‑lawyers. #### 🗣️ Verbal learners - Present: Rich legal language, quotations from rules/cases, explicit argumentation. - Improve: Glossary of legal terms (RFP, Rule 45, meet‑and‑confer, work product); short analogies for non‑lawyers. #### 🧩 Kinesthetic learners - Present: None. - Improve: Step‑by‑step exercise where readers design a discovery plan, draft search terms, and evaluate burden. #### 🧠 Logical learners - Present: Structured argumentation around burden, duplication, and relevance; conditional requirements (i–v) from Silver Lake. - Improve: Decision trees for when to seek non‑party discovery; matrices mapping search terms to RFPs. #### 🧑‍🤝‍🧑 Social learners - Present: Multi‑party negotiation context in emails. - Improve: Role‑play scenarios simulating meet‑and‑confer; moderated discussions on discovery strategy. #### 🧘‍♀️ Solitary learners - Present: Text suitable for close reading and annotation. - Improve: Reflection prompts (“How would I narrow these requests?”), self‑check questions. #### 🌿 Naturalistic learners - Present: No environmental context. - Improve: Analogies between data ecosystems and natural ecosystems (e.g., minimizing disruption when sampling). ### 📊 Accessibility Assessment #### Screen reader semantics - Present: As a PDF/email exhibit, underlying semantics depend on how it was generated; likely minimal structure. - Improve: Tag headings, identify sender/recipient metadata, and mark quotations; add document language. #### Keyboard navigation - Present: Basic page navigation only. - Improve: Provide HTML or accessible PDF with bookmarks for each major email segment. #### Contrast and readability - Present: Standard black text on white background. - Improve: Ensure sufficient line spacing and font size; avoid cramped footnotes. #### Text resizing and reflow - Present: Depends on PDF settings; may not reflow gracefully. - Improve: Offer responsive HTML version that reflows at higher zoom levels. #### Media and captions - Present: Text only. - Improve: None needed; ensure any embedded images (if present) have alt text. #### Forms and interactions - Present: None. - Improve: N/A. #### Standards reference - Map improvements to WCAG 2.2 AA: 1.3.1 (Info and Relationships), 1.4.3 (Contrast), 1.4.4 (Resize text), 2.4.1 (Bypass blocks), 2.4.6 (Headings and labels). ### 🌍 DEIB Assessment #### Cultural breadth - Present: US federal civil procedure context only. - Improve: Provide brief note that civil procedure and discovery burdens vary by jurisdiction and legal culture. #### Inclusive language - Present: Formal legal tone, largely neutral but combative. - Improve: Reduce emotionally charged descriptors (“obstreperous”) in explanatory summaries; add plain‑language restatements. #### Neurodiversity support - Present: Long paragraphs, dense arguments. - Improve: More headings, bullet points, and summaries; consistent structure per email. #### Representation - Present: Limited to named lawyers and corporate entities. - Improve: In commentary, acknowledge broader ecosystem (developers, users, smaller hosts) potentially affected. #### Psychological safety - Present: Adversarial framing, as typical in litigation. - Improve: Add content warnings around adversarial language; provide neutral, explanatory framing in summaries. ### ✅ Logical Validity #### Strong reasoning - Silver Lake’s five‑point list (particularized relevance, non‑duplication, burden minimization, narrowing steps, and timing) is a structured, logically coherent framework for opposing discovery; it ties directly to Rule 45 and prior court rulings. - Defendants’ focus on specific missing messages and explanation requests for collection processes is a targeted causal argument that incomplete methods likely led to incomplete productions. #### Fallacies - Some rhetoric arguably approaches ad hominem/poisoning the well (e.g., characterizing tactics as “pure harassment” and “obstreperous”), which attacks motives more than addressing the substantive discovery needs. A cleaner approach would be to focus solely on burden metrics, redundancy, and case law. #### Tone of voice - Silver Lake: Defensive, formal, and occasionally accusatory (“no colorable basis,” “pure harassment”). - Defendants: Insistent, procedural, and somewhat exasperated, invoking rules and case law to justify demands. ### 🛡️ DARVO Analysis - Deny: Silver Lake denies that additional individual discovery is necessary or appropriate, emphasizing existing and forthcoming Silver Lake productions. - Attack: Silver Lake characterizes defendants’ tactics as harassment and attempts to evade page limits, undermining their credibility rather than only their legal position. - Reverse victim/offender: By emphasizing non‑party burden and potential sanctions, Silver Lake positions itself (and the individuals) as victims of defendants’ duplicative, overbroad discovery efforts, despite defendants claiming they are victims of inadequate production. ## 🎯 Conclusion The exhibit captures a focused discovery dispute: how far defendants can push non‑party Silver Lake and its directors for communications—especially from personal devices—without imposing undue burden. For practitioners, the practical takeaway is to anticipate these conflicts with clear device, retention, and discovery‑planning policies, and to document search methodologies early to support or resist later motions. ## 🧱 Refactor Appendix (append after 🎯 Conclusion) ### 📚 Literature Split Pad - Purpose: Stage Konik CEE units that become per-source Literature notes. - Split level: **H3**. - Include verbatim quotes under 25 words and a [view highlight] link. ### [H1] 5–10-word present-tense claim > [!quote] [{Title or entity}](https://readwise.io/reader/document_raw_content/449369982) by [[{Author or [MISSING]}]] via [[{Site or [MISSING]}]]. Published {DATE_OR_[MISSING]}. Accessed {{date:YYYY-MM-DD}}. > “Short quote, verbatim, ≤25 words.” Two lines: context and use. Cite data if relevant. [view highlight](https://readwise.io/reader/document_raw_content/449369982#H1) #xref #articleseed ID:rw_[MISSING] ### [H2] 5–10-word present-tense claim > [!quote] [{Title or entity}](https://readwise.io/reader/document_raw_content/449369982) > “Short quote, verbatim, ≤25 words.” Two lines: context and use. [view highlight](https://readwise.io/reader/document_raw_content/449369982#H2) #xref ID:rw_[MISSING] --- ### 🔖 Atomic Split Pad (Zettel Candidates) - Purpose: Promote reusable claims into Atomic notes. - Split level: **H4**. - Each item: one idea, present tense, specific, testable. #### [Z1] 5–10-word present-tense claim - Scope/condition in one line. - Pointer to page/time or dataset. - Links: [[Parent-Concept]] [[Related-Idea]] #### [Z2] 5–10-word present-tense claim - Scope/condition in one line. - Pointer to page/time or dataset. - Links: [[Parent-Concept]] [[Related-Idea]] --- ### ✏️ Fleeting Queue (Extract by Selection) - Purpose: Capture quick actions or sparks for Fleeting notes. - Extraction: **Select one line** → “Refactor: Extract selection to new note (content only).” - Keep each line short and self-contained. - [F1] Short action — context/https://readwise.io/reader/document_raw_content/449369982 #fleeting #inbox - [F2] Short action — context/https://readwise.io/reader/document_raw_content/449369982 #fleeting #inbox - [F3] Short action — context/https://readwise.io/reader/document_raw_content/449369982 #fleeting #inbox <!-- deep-read:sections end -->