Elon Musk. Picture: REUTERS
Elon Musk. Picture: REUTERS

San Francisco/Los Angeles — Elon Musk is known to mouth off, and get in trouble as a result.

His ability to keep his emotions, and words, in check will be put to the test this week when — barring a last-minute settlement — he is set to take the witness stand in a high-profile defamation trial.  

The CEO of Tesla and Space Exploration Technologies will have to go before a federal jury in Los Angeles and defend calling a British caver a “pedo guy”.

The civil trial is sure to be a spectacle. It is the first time in his career that Musk will be called as a witness even though he is no stranger to litigation. In 2018, a US Securities and Exchange Commission lawsuit led to Musk stepping down as Tesla’s chair for three years. Earlier in 2019, Musk was deposed for several hours as part of an ongoing shareholder lawsuit regarding Tesla’s 2016 acquisition of SolarCity.

But the defamation case largely centres on Musk’s ego. In 2018, as the world was riveted by the plight of a Thai youth soccer team trapped in a flooded cave, Musk and engineers at his companies prepared a mini submarine, built with rocket parts, to help with the rescue efforts. The children were ultimately saved without the sub.

The high-profile effort from the celebrity CEO drew derision from Vernon Unsworth, a British caver who helped in the rescue effort. He told CNN that Musk could “stick his submarine where it hurts” and that it had no chance of working.

Musk responded on Twitter, as he often does. He referred to Unsworth as a “pedo guy”. Later, he asked why Unsworth had not sued him. Unsworth obliged and filed a lawsuit in September 2018. Musk deleted the tweet before the suit was filed.

“It’s another PR landmine that Elon Musk has to navigate,” said analyst Gene Munster, a managing partner at venture capital firm Loup Ventures and a Tesla bull. “Good news is he has practice.”

Unsworth is represented by L Lin Wood, an Atlanta attorney best known for representing Richard Jewell, the security guard falsely accused of being connected to the Centennial Olympic Park bombing during the 1996 Summer Olympics. A Clint Eastwood-directed film about Richard Jewell opens next week. Wood himself is also on Twitter, telling followers recently that Unsworth would not settle.

“Musk described Unsworth as a paedophile,” Wood said in a phone interview on Monday. “No reasonable person is going to disagree with that fact.”

Musk’s legal team is led by Alex Spiro, a former prosecutor based in New York who has represented rapper Jay-Z, New England Patriots owner Robert Kraft and several NBA players, including  former Knick Charles Oakley. Spiro did not respond to a request for comment, with a spokesperson saying the lawyer was “incommunicado”.

But in documents filed on Monday, Musk’s lawyers previewed their arguments, saying Unsworth asked for it.

“Mr Unsworth invited or otherwise induced Mr Musk’s allegedly defamatory tweets by airing a baseless accusation on an international CNN news broadcast accusing Mr Musk of engaging in a PR stunt, alleging that Mr Musk did not care about the lives of the trapped Thai children, and telling Mr Musk to stick his submarine where it hurts,” the lawyers wrote.

“Mr Unsworth’s criticism and insult invited a response from Mr Musk,” they said.

Though it is unusual for high-profile defamation cases to go to trial, Musk is not a typical defendant.

When cases do not settle before trial, it usually means the parties are too far apart on the amount of money that would make the case go away, or there is a lot of emotion involved, said Sean Andrade, a litigator with Andrade Gonzalez in Los Angeles, who is not involved in the Musk trial.

Unsworth may have a better than 50-50 chance of winning because there are tweets to show what Musk said, according to Andrade. But it may be harder to prove actual damages because Unsworth became more of a celebrity after the tweets, he said.

“He’s a little more favoured to win, but the question is win what?” said Andrade.

The case will not affect Tesla’s electric cars or SpaceX’s rocket launch business. But the public testimony will provide a window into Musk’s state of mind and how he runs his companies.

Musk’s witness list includes David Arnold, a former communications director at Tesla; Jared Birchall, who works for Musk’s family office; and Steve Davis, the president of Boring, Musk’s tunnelling start-up.