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1 COOLEY LLP ROBBINS GELLER RUDMAN & DOWD LLP JOHN C. DWYER (136533) DANIEL S. DROSMAN (200643) 2 ([email protected]) ([email protected]) JESSICA VALENZUELA SANTAMARIA TOR GRONBORG (179109) 3 (220934) ([email protected]) ([email protected]) LUCAS F. OLTS (234843) 4 BRETT DE JARNETTE (292919) J. MARCO JANOSKI GRAY (306547) ([email protected]) CHRISTOPHER R. KINNON (316850) 5 3175 Hanover Street HEATHER G. SCHLESIER (322937) Palo Alto, CA 94304-1130 655 West Broadway, Suite 1900 6 Telephone: (650) 843-5000 San Diego, CA 92101-8498 Facsimile: (650) 849-7400 Telephone: (619) 231-1058 7 Facsimile: (619) 231-7423 KATHLEEN GOODHART (165659) 8 ([email protected]) MOTLEY RICE LLC AARTI REDDY (274889) GREGG S. LEVIN (pro hac vice) 9 ([email protected]) ([email protected]) LAURA ELLIOTT (286702) LANCE OLIVER (pro hac vice) 10 ([email protected]) ([email protected]) 101 California Street, 5th Floor MEGHAN S.B. OLIVER (pro hac vice) 11 San Francisco, CA 94111-5800 MAX N. GRUETZMACHER (pro hac vice) Telephone: (415) 693-2000 CHRISTOPHER F. MORIARTY (pro hac vice) 12 Facsimile: (415) 693-2222 MEREDITH B. WEATHERBY (pro hac vice) 28 Bridgeside Boulevard 13 Attorneys for Defendants Mt. Pleasant, SC 29464 TWITTER, INC., RICHARD COSTOLO Telephone: (843) 216-9000 14 AND ANTHONY NOTO Facsimile: (843) 216-9450

15 Co-Class Counsel for the Class 16 [Additional counsel appear on signature page.]

17

18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA 20 OAKLAND DIVISION

21 In re TWITTER INC. SECURITIES ) Case No. 4:16-cv-05314-JST (SK) LITIGATION ) 22 ) CLASS ACTION ) 23 This Document Relates To: ) JOINT PRETRIAL STATEMENT ) 24 ALL ACTIONS. ) ) 25

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1 TABLE OF CONTENTS 2 Page

3 I. SUBSTANCE OF THE ACTION ...... 1

4 II. RELIEF REQUESTED ...... 2

5 III. UNDISPUTED FACTS ...... 2

6 IV. DISPUTED FACTUAL ISSUES ...... 4

7 A. Plaintiffs’ Statement of Disputed Factual Issues ...... 4

8 B. Defendants’ Statement of Disputed Factual Issues ...... 5

9 V. AGREED STATEMENT ...... 7

10 VI. STIPULATIONS ...... 7

11 VII. WITNESSES TO BE CALLED ...... 12

12 A. Plaintiffs’ Witnesses ...... 12

13 B. Defendants’ Witnesses ...... 21

14 VIII. EXHIBITS, SCHEDULES, AND SUMMARIES ...... 23

15 IX. DISPUTED LEGAL ISSUES ...... 23

16 A. Plaintiffs’ Statement of Disputed Legal Issues ...... 23

17 B. Defendants’ Statement of Disputed Legal Issues ...... 24

18 X. PENDING MOTIONS ...... 25

19 XI. BIFURCATION OR SEPARATE TRIAL OF ISSUES ...... 25

20 XII. USE OF DISCOVERY RESPONSES ...... 25

21 XIII. ESTIMATE OF TRIAL TIME ...... 26

22 XIV. SETTLEMENT DISCUSSION ...... 26

23 XV. MISCELLANEOUS ...... 26

24 A. Recalling Witnesses in Defendants’ Case-in-Chief ...... 26

25 B. Exchange of Demonstratives to Be Used with Witnesses ...... 28

26 C. Resolution of Exhibit and Demonstrative Objections at Trial ...... 31

27 D. Use of Exhibits or Demonstratives in Opening Statements ...... 34

28 E. Number of Jurors ...... 35

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2 F. Plaintiffs’ Use of Leading Questions with Current or Former Twitter Officers and Managers ...... 35 3 G. Bar on Substantive Communications with Sworn Witnesses ...... 39 4

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 I. SUBSTANCE OF THE ACTION 2 The lead plaintiffs and class representatives in this case are KBC Asset Management NV 3 (“KBC”) and National Elevator Industry Pension Fund (“NEIPF”). KBC is an asset management 4 company that manages mutual funds, private funds, and institutional funds. NEIPF is a pension 5 fund that provides retirement benefits for the members of the International Union of Elevator 6 Constructors. KBC and NEIPF (collectively, “Plaintiffs”) represent a certified class of all persons 7 and entities who purchased or otherwise acquired shares of the publicly traded common stock of 8 Twitter, Inc. (“Twitter” or the “Company”) between February 6, 2015 through July 28, 2015 (the 9 “Class Period”), and were damaged thereby. 10 The defendants in this case are Twitter, Inc. (“Twitter”), Richard Costolo, and Anthony 11 Noto (collectively, “Defendants”). Defendant Twitter was founded in 2006 and became a publicly 12 traded company in November 2013. Defendant Richard Costolo joined Twitter in 2009 and was 13 its Chief Executive Officer from October 2010 through July 1, 2015. Defendant Anthony Noto 14 joined Twitter in 2014 as its Chief Financial Officer and was CFO throughout the Class Period. 15 Plaintiffs claim that Defendants made false or misleading statements that caused the price 16 of Twitter stock to trade at artificially high prices during the Class Period. Plaintiffs allege that 17 Defendants misled investors during the Class Period by making public statements that did not 18 reflect the actual state of Twitter’s user engagement, which they contend is relevant to evaluating 19 Twitter’s potential user growth and financial performance. The alleged misstatements and 20 omissions concern Twitter’s ratio of daily active users (“DAU”) to monthly active users (“MAU”) 21 (“DAU/MAU”), which Plaintiffs contend measures user engagement or frequency of use. 22 Plaintiffs allege that persons who purchased Twitter stock during the Class Period suffered 23 economic losses when the price of Twitter stock declined as a result of two sets of corrective 24 disclosures that revealed the problems with user engagement and user growth that the challenged 25 statements had allegedly concealed. See ECF No. 478 at 1-2. 26 Plaintiffs contend that Defendants made the challenged statements in violation of §10(b) 27 of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 promulgated thereunder. 28 Plaintiffs further contend that Defendants violated §20(a) of the Exchange Act. Defendants deny

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1 these allegations. The operative pleadings are Lead Plaintiff’s Consolidated Amended Complaint 2 for Violations of the Federal Securities Laws (ECF No. 81) and Defendants’ Amended Answer 3 (ECF No. 119).

4 II. RELIEF REQUESTED 5 Plaintiffs seek the following relief concerning their claims against Defendants: 6 1. Find that Defendants violated §§10(b) and 20(a) of the Exchange Act; 7 2. Award Plaintiffs and the Class actual damages in an amount to be determined at 8 trial. Specifically, Plaintiffs and the Class seek an award of per-share damages, measured by the 9 artificial inflation present in Twitter’s stock price during each day of the Class Period, ranging up 10 to $20.34 per share; 11 3. Award Plaintiffs and the Class pre-judgment and post-judgment interest at the 12 maximum rate permitted by law; 13 4. Award Plaintiffs their reasonable costs, including attorneys’ fees; and 14 5. Provide such other relief as the Court may deem just and proper.

15 III. UNDISPUTED FACTS 16 The following material facts are admitted by the parties and may be incorporated into the 17 trial record without supporting testimony or exhibits: 18 1. Twitter was founded in 2006. 19 2. Twitter operates as a global social media platform. 20 3. Twitter publicly filed its Form S-1 to register its stock with the Securities and 21 Exchange Commission on October 3, 2013. 22 4. Twitter became a publicly traded company on the New York Stock Exchange 23 (“NYSE”) on November 7, 2013. 24 5. From November 7, 2013 and thereafter including through the end of the Class 25 Period, Twitter’s common stock was listed and traded on the NYSE under the symbol TWTR. 26 6. On November 12 2014, Twitter conducted a seven-hour meeting with securities 27 analysts, investors, and the media referred to as “Analyst Day.” 28

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1 7. On February 5, 2015, Twitter conducted an earnings call discussing Twitter’s Q4 2 2014 financial results. This call was open to the public, and a transcript of the call was made 3 publicly available following the call. 4 8. On February 5, 2015, Twitter publicly disclosed its Q4 2014 Earnings Press 5 Release entitled “Twitter Reports Fourth Quarter and Fiscal Year 2014 Results.” 6 9. On April 28, 2015, at 3:07 p.m. EST, Selerity published the following four tweets:

7  “#BREAKING: Twitter $TWTR Q1 Revenue misses estimates, $436M vs. $456.52M expected”; 8  “#BREAKING: Twitter $TWTR Q1 Average Monthly Active Users 9 (MAUs) 302M inline with expectations”; 10  “#BREAKING: Twitter $TWTR Q1 Mobile Monthly Active Users 11 (MAUs) misses estimates, 241.6M vs. 243M expected”; and

12  “#BREAKING: Twitter $TWTR Q1 Non-GAAP EPS beats estimates, $0.07 vs. $0.04 expected.” 13 10. On April 28, 2015, the NYSE halted trading of Twitter stock from 3:27 p.m. to 3:47 14 p.m. EST. 15 11. On April 28, 2015, at 3:36 p.m. EST, Twitter published its Q1 2015 press release 16 entitled “Twitter Reports First Quarter 2015 Results; Lowers Full-Year 2015 Expectations.” 17 12. On April 28, 2015, at 5:00 p.m. EST, Twitter conducted an earnings call discussing 18 Twitter’s Q1 2015 financial results. This call was open to the public, and a transcript of the call 19 was made publicly available following the call. 20 13. On July 28, 2015, at 5:00 p.m. EST, Twitter conducted an earnings call discussing 21 Twitter’s Q2 2015 financial results. This call was open to the public, and a transcript of the call 22 was made publicly available following the call. 23 14. On July 28, 2015, Twitter publicly disclosed its Q2 2015 Earnings Press Release 24 entitled “Twitter Reports Second Quarter 2015 Results.” 25 15. Twitter personnel prepared “Earnings Binders” for Anthony Noto to rely on, in part, 26 in connection with the February 5, 2015, April 28, 2015, and July 28, 2015 earnings conference 27 calls. 28

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1 16. Twitter had a goal of increasing user engagement during the Class Period. 2 17. During the period between February 6, 2015 to July 1, 2015, Defendants Richard 3 Costolo and Anthony Noto were ultimately responsible for determining which metrics Twitter 4 would disclose to the market.

5 IV. DISPUTED FACTUAL ISSUES 6 A. Plaintiffs’ Statement of Disputed Factual Issues 7 The following is a list of issues of fact that Plaintiffs believe are contested and remain to 8 be litigated at trial: 9 1. Whether Defendants Violated §10(b) of the Exchange Act: 10 (a) Whether any of the following statements made by Defendants on the 11 February 5, 2015 and April 28, 2015 earnings conference calls was an untrue statement of a 12 material fact or omitted a material fact necessary under the circumstances to keep the statements 13 that were made from being misleading:1

14 February 5, 2015 Statements 15 (i) Anthony Noto: “In our more mature markets, we have very high 16 DAU to MAU, 50% plus. In the emerging markets, we have very low DAU to MAU, at 20% 17 range. They all migrate up to a higher rate over time.” 18 (ii) Richard Costolo: “The user numbers we saw in January, again, 19 indicate that our MAU trend has already turned around, and that Q1 trend is likely to be back in 20 the range of absolute net ads that we saw during the first three quarters of 2014. So we’re in a 21 great place there.”

22 April 28, 2015 Statement 23 (i) Anthony Noto: “DAU to MAU ratios in the quarter were similar to 24 what they were by market relative to Analyst Day.” 25 26

27 1 As set forth in the parties’ jury instruction position statements, the parties disagree as to whether Plaintiffs may prove at trial that: (1) Mr. Noto’s February 5, 2015 statement was both 28 false or misleading; and (2) Mr. Noto’s April 28, 2015 statement was both misleading or false.

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1 (b) Whether Defendants acted knowingly or with reckless disregard for the 2 truth in making the alleged misrepresentations or omissions; and 3 (c) Whether the alleged misrepresentations or omissions played a substantial 4 part in causing the injury or loss the Plaintiffs suffered. 5 2. The amount of per share damages the Plaintiffs suffered; and 6 3. Whether Defendants violated §20(a) of the Exchange Act: 7 (a) Whether any of the Defendants possessed, directly or indirectly, the actual 8 power to direct or cause the direction of the decision making processes of any Defendant who 9 violated §10(b) of the Exchange Act; and 10 (b) Whether any such “controlling” Defendant acted in good faith and did not 11 directly or indirectly induce the act or acts constituting the violation of §10(b).

12 B. Defendants’ Statement of Disputed Factual Issues 13 The following is a non-exhaustive list of issues of fact that Defendants believe are 14 contested and remain to be litigated at trial: 15 1. Whether the omission of DAU or the DAU/MAU ratio rendered the following 16 statements made on February 5, 2015 misleading: 17 By Richard Costolo: “The user numbers we saw in January, again indicate that our MAU trend has already turned around, and that Q1 trend is likely to be back in the 18 range of absolute net ads that we saw during the first three quarters of 2014. So we’re in a great place there and I would stress that it’s seasonality, return to organic 19 growth, and product initiatives all taken together.” 20 By Anthony Noto: Additionally, on the consumer side, many companies use DAU to MAU. And while that is a long term goal of ours to become a daily product, 21 today we have great variance in DAU to MAU across geographies. In our more mature markets we have very high DAU to MAU, 50% plus, and in emerging 22 markets we have very low DAU to MAU at 20% range. They all migrate up to a higher rate over time. (collectively, “February 5 statements”) 23 2. Whether disclosure of DAU or additional DAU/MAU ratio data on February 5, 24 2015 would have significantly altered the total mix of information available to the market. 25 3. Whether Richard Costolo intentionally or recklessly misled investors by omitting 26 DAU or additional DAU/MAU ratio data from his February 5 statement. 27 28

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1 4. Whether Anthony Noto intentionally or recklessly misled investors by omitting 2 DAU or additional DAU/MAU ratio data from his February 5 statement.2 3 5. Whether Anthony Noto’s statement on Twitter’s April 28, 2015 Q1 2015 earnings 4 call that “DAU to MAU ratios in the quarter were similar to what they were by market relative to 5 Analyst Day” (“April 28 statement”) was false. 6 6. Whether there is a substantial likelihood that an investor would have acted 7 differently in deciding whether to buy or sell Twitter stock if Anthony Noto’s April 28 statement 8 had not been made. 9 7. Whether Anthony Noto intentionally or recklessly deceived investors in making the 10 April 28 statement. 11 8. The amount by which Twitter’s stock price was artificially inflated on February 5, 12 2015 and April 28, 2015 due to Twitter’s failure to disclose DAU or the DAU/MAU ratio. 13 9. Whether Plaintiffs can establish the elements of the fraud-on-the-market 14 presumption of reliance. 15 10. Whether Defendants can rebut the fraud-on-the-market presumption of classwide 16 reliance. 17 11. Whether the alleged corrective disclosures on April 28, 2015 (revision in the FY 18 2015 revenue guidance and MAU headwinds) were the result of adverse trends in DAU or the 19 DAU/MAU ratio, as opposed to numerous other factors. 20 12. Whether the alleged corrective disclosures on April 28, 2015 caused Twitter’s stock 21 to drop in value on April 28, 2015 and April 29, 2015, as opposed to Twitter’s numerous other 22 disclosures, and if so, by how much. 23 13. Whether the alleged corrective disclosures on July 28, 2015 (that Twitter did not 24 “expect to see sustained meaningful growth in MAUs until we reach the mass market” and that 25 Twitter’s DAU/MAU ratio for its top 20 markets was 44% in Q2 2015) caused Twitter’s stock to 26 2 The dispute referenced in Plaintiffs’ footnote 1 – whether Plaintiffs may proceed on a theory 27 of falsity, in addition to omission, for the February 5 statements and a theory of omission, in addition to falsity, for the April 28 statement – is addressed in the parties jury instruction position 28 statements.

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1 drop in value on July 29, 2015 through August 3, 2015, as opposed to the numerous other Twitter 2 disclosures on July 28, 2015, and if so, by how much. 3 14. Whether the alleged corrective disclosures on April 28, 2015 and July 28, 2015 4 were the materialization of a known risk. 5 15. Whether Anthony Noto controlled Richard Costolo with regard to the challenged 6 statement made by Costolo on February 5, 2015. 7 16. Whether Richard Costolo controlled Anthony Noto with regard to the challenged 8 statements made by Noto on February 5, 2015 or April 28, 2015.

9 V. AGREED STATEMENT 10 The parties do not believe that any part of the action may be presented upon an agreed 11 statement of facts.

12 VI. STIPULATIONS 13 Stipulated Facts: The parties stipulate to the facts set forth in Section III, Undisputed Facts, 14 above so that they need not be separately proven at trial. The parties reserve all rights during trial 15 to present the facts set forth in Section III for purposes of background and context, and all 16 objections to such presentation are reserved as well. As discussed in the parties’ jury instruction 17 position statements, the parties do not agree on whether the stipulated facts will be presented to 18 the jury in writing as well as orally.

19 Examination of Witnesses: The parties have agreed in principle that it is most efficient for 20 each live witness to testify only once at trial. To that end, the parties further agree that on cross- 21 examination of witnesses called live at trial, testimony beyond the scope of the direct examination 22 but relevant to the cross-examining party’s case may be elicited (e.g., Defendants may elicit 23 testimony relevant to their case-in-chief during cross-examination of Plaintiffs’ live witnesses 24 called during Plaintiffs’ case-in-chief). However, the parties disagree on whether Defendants must 25 seek leave of Court to re-call a witness during their case-in-chief as described below in 26 Section XV.A.

27 Sequestration of Witnesses: The parties agree that all percipient fact witnesses appearing 28 on either side’s current witness list shall be sequestered from the courtroom during the testimony

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1 of other witnesses until they are called to testify. Defendants Richard Costolo, Anthony Noto, and 2 each party’s expert witnesses and designated corporate representatives shall not be subject to 3 sequestration. Plaintiffs’ dual purpose witness, Jan Dawson, shall be sequestered from the 4 courtroom prior to testifying as a fact witness, and thereafter shall be exempt from sequestration 5 in his role as an expert witness.

6 Marking of Trial Exhibits: Pursuant to the Court’s Standing Order for Civil Jury Trials, 7 the parties shall designate all of their exhibits as “Plaintiffs’ Exhibit” and “Defendants’ Exhibit,” 8 and shall mark them using non-overlapping ranges of numbers, with Plaintiffs using numbers 9 0001-2000 and Defendants using numbers 2001-4000. The parties have also agreed to endeavor 10 to compile their exhibits into a single joint exhibit list prior to the start of trial.

11 Voir Dire: The parties understand that the Court generally allows approximately 20 12 minutes per side of voir dire with each panel of potential jurors with discretion for some brief 13 additional time as necessary. The parties are in agreement that a jury questionnaire should be sent 14 and received in advance of voir dire and are meeting and conferring with the goal of a stipulated 15 set of questions for that questionnaire.

16 Resolution of Exhibit and Demonstrative Objections: The parties are continuing to meet 17 and confer in an attempt to resolve evidentiary objections. To aid in that effort, the parties wish 18 to jointly file with the Court a set of exhibits for which the parties have been unable to resolve 19 evidentiary disputes with the goal of obtaining rulings that may guide resolution of disputes with 20 respect to similar exhibits.3 For any objections to exhibits unresolved prior to trial, the parties 21 disagree on the timing of presentation of such objections to the Court as discussed in Section XV.C, 22 below. 23 The parties have also met and conferred regarding the use and exchange of demonstrative 24 exhibits but have not been able to reach a resolution as addressed in Sections XV.B. and XV.C. 25

26 3 The parties’ agreement with respect to a procedure for resolving exhibit objections is not intended to waive any party’s rights or procedures with respect to addressing objections, including, 27 for example, Defendants’ intent to file a business records certification with the Court under Federal Rules of Evidence 803(6)(D) and 902(11), seeking to lay the foundation for certain business 28 records before trial.

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1 However, the parties agree that demonstratives that are created in the courtroom through manual 2 processes (e.g., drawings on whiteboards, lists written on easels, etc.) or by highlighting certain 3 aspects of admitted exhibits (e.g., excerpts, call-outs, blow-ups, or highlighting of admitted 4 exhibits, without more) need not be exchanged before they are used.

5 Rule 30(b)(6) Trial Testimony of Krista Bessinger: The parties agree that Krista 6 Bessinger’s trial testimony as Twitter’s corporate representative shall be limited to the scope of 7 Ms. Bessinger’s May 17, 2019 deposition testimony on the topics for which she was designated to 8 testify as a corporate designee.4 The parties further agree that: (1) Ms. Bessinger shall first be 9 called in her capacity as Twitter’s corporate designee and that following the direct, cross- 10 examination and re-direct examination of Ms. Bessinger in her capacity as corporate designee, she 11 may be called as a witness in her capacity as an individual; and (2) the parties will request that the 12 Court give the instruction set forth in the parties’ Stipulated Special Evidentiary Instruction No. 5 13 (Testimony from Corporate Designee) to minimize the potential for juror confusion associated 14 with Ms. Bessinger’s testimony in two different roles.

15 Schedule for Trial Disclosures:

16 1. Witness Disclosures. The parties have agreed to exchange second amended 17 witness lists no later than July 1, 2021. These lists shall reflect each parties’ good faith effort to 18 identify only those witnesses the disclosing party intends to examine at trial. By August 23, 2021, 19 Plaintiffs shall identify, to the best of their ability, the order they intend to examine those witnesses 20 at trial. By August 30, 2021, Defendants shall identify, to the best of their ability, the order they 21 intend to examine those witnesses at trial.

22 2. Witnesses/Deposition Testimony. The parties have agreed to identify witnesses 23 to be called live, in the order in which they will be called, by 5:00 p.m. two business days before 24 the intended testimony. For example, if a witness will be called live on Thursday, that witness 25 must be disclosed by 5:00 p.m. Tuesday. For deposition testimony, the disclosure must be made 26

27 4 Defendants believe that the list of agreed topics must be submitted to the Court in advance of trial so that the Court will have a basis to rule on any objections pertaining to scope during trial. 28 The parties are continuing to meet and confer.

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1 by 5:00 p.m. three business days before the intended testimony and must also include what 2 testimony is designated. The responding party shall disclose counter-designations (and objections 3 to the deposition testimony to the extent objections are not resolved by that point) by 5:00 p.m. 4 two business days before the intended testimony is to be offered. To the extent there remain any 5 disputes on the admissibility of the designated or counter-designated testimony, the parties will 6 raise these issues with the Court the following morning, one business day before the intended 7 testimony is to be offered. The party seeking to offer the deposition testimony shall provide the 8 offering party with a copy of the actual video file to be played by 8:00 p.m. one business day before 9 its intended use. The video file must include all designated and counter-designated testimony in 10 chronological order. For any witness whose testimony was recorded by video, the designating 11 parties must play the video file and not perform a live reading.5 For clarity and absent good cause, 12 all designations, counter-designations, and corresponding objections must be from those 13 previously disclosed as part of the pretrial exchange process set forth in Exhibits C and D below.

14 Evidence and Argument at Trial: As set forth in ECF No. 499, the parties further stipulate 15 to the following:

16 1. Preclusion of Evidence or Argument Concerning Counsel and/or Contingency 17 Fee Arrangements. The parties agree not to present evidence or argument regarding counsel for 18 any party or such counsel’s fee arrangements, including references to opposing counsel as “class 19 action trial lawyers,” “contingency lawyers,” “corporate defense lawyers,” “well-paid lawyers,” 20 and/or similar argumentative characterizations of counsel.

21 2. Preclusion of Evidence or Argument Concerning the Class Representatives 22 and/or Characterizations of the Class. The parties agree not to present evidence or argument 23 regarding the Class Representatives or absent Class Members. The Class Representatives may be 24 identified once in the opening statements and/or by the Court as follows: KBC Asset Management 25 is an asset management company that manages mutual funds, private funds, and institutional funds. 26 The National Elevator Industry Pension Fund provides retirement benefits for the members of the 27 5 The parties disagree as to whether video deposition testimony may be played during trial for 28 purposes of impeachment.

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1 International Union of Elevator Constructors. In addition, the Court may also identify, and/or the 2 parties may identify once in the opening statements, that the National Elevator Industry Pension 3 Fund managed more than $6 billion in assets during the Class Period for the International Union 4 of Elevator Constructors. The parties may describe the Class during the remainder of the trial in 5 neutral terms, consistent with the Court’s class certification order, as persons or entities that 6 purchased or otherwise acquired common stock of Twitter, Inc. during the Class Period, or as a 7 class of investors in Twitter stock. Consistent with the proposed trial structure agreed to by the 8 parties, evidence and argument concerning the Class Representatives or individual absent Class 9 Members, other than as discussed above, shall be excluded from the first phase of trial, including 10 any argument or representation regarding the benefits of a class action.

11 3. Preclusion of Pleadings and Orders. Neither Plaintiffs nor Defendants shall 12 introduce any pleading, Court order regarding any pleading, or the Court’s Summary Judgment 13 order as a trial exhibit.6

14 4. Preclusion of Evidence or Argument Concerning Expert Witnesses. Neither 15 Plaintiffs nor Defendants shall introduce evidence or argument regarding the personal lives of any 16 expert, such as any criminal record or religious or political beliefs, unrelated to the expert’s 17 educational or professional experience.

18 5. Preclusion of Evidence or Argument Concerning Absence of Class 19 Representatives, Class Members, or Defendants from Portions of Trial. Neither Plaintiffs nor 20 Defendants shall introduce evidence or argument concerning the absence of the Class 21 Representatives, individual Class members, or Defendants from the courtroom during portions of 22 the trial.

23 6. Preclusion of Evidence or Argument Concerning Other Litigation or 24 Investigations Involving Defendants. Neither Plaintiffs nor Defendants shall introduce any 25 evidence or argument regarding other litigation or external investigations involving any of 26

27 6 This stipulation does not preclude any party from utilizing any pleading or Court order on any pleading in any arguments to the Court, including any arguments regarding whether claims have 28 been alleged or dismissed or any facts have been judicially admitted.

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1 Defendants or Plaintiffs (including any governmental investigation or investigation by or for 2 Twitter’s Board of Directors, any committee of the Board of Directors, or any counsel working for 3 or on behalf of Twitter or any Twitter shareholder), and neither Plaintiffs nor Defendants shall 4 introduce any evidence or argument regarding the lack of any other litigation or such investigation 5 involving any of Defendants or Plaintiffs.

6 VII. WITNESSES TO BE CALLED 7 Below is a list of all witnesses likely to be called at trial other than solely for impeachment 8 or rebuttal, and a brief statement following each name describing the substance of the testimony 9 to be given. The parties understand that leave of the Court is required to call any witness in its 10 case-in-chief who is not disclosed in its respective section below.

11 A. Plaintiffs’ Witnesses 12 Plaintiffs reserve the right to call additional witnesses for its rebuttal case as appropriate.

13 1. Fact Witnesses

14 PLAINTIFFS’ FACT WITNESSES 15 Witness Substance of Testimony Adam Bain Adam Bain was Twitter’s President of Global Revenue during the 16 Class Period. He will testify regarding the following topics: 17  Internal and external communications regarding user growth, user engagement, and related metrics, including churn, TLV, DAU, 18 MAU, and DAU/MAU;  Twitter data, analyses, and conclusions regarding user growth, 19 user engagement and related metrics, including churn, TLV, DAU, MAU, and DAU/MAU; 20  Internal and external communications regarding advertising, 21 revenue, and revenue guidance and forecasts;  Communications about the market’s concerns, questions, 22 expectations, and impressions; 23  Preparation for earnings calls and other events at which Twitter made public statements; 24  Twitter’s corporate objectives; 25  The relationships between user engagement, user growth, advertising, revenue, and revenue guidance and forecasts; 26  The witness’s employment with Twitter, including his compensation and stock sales; 27  The witness’s state of mind; 28

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1 PLAINTIFFS’ FACT WITNESSES 2 Witness Substance of Testimony  Facts relevant to rebut any defense asserted by Defendants; and 3  Any other subject matter addressed in this witness’s deposition. 4 Krista Bessinger Krista Bessinger was Twitter’s Senior Director of Investor 5 Relations during the Class Period. She will testify regarding the following topics: 6  Internal and external communications regarding user growth, user engagement, and related metrics, including churn, TLV, DAU, 7 MAU, and DAU/MAU; 8  Twitter data, analyses and conclusions regarding user growth, user engagement and related metrics, including churn, TLV, DAU, 9 MAU, and DAU/MAU;  Preparation for earnings calls, Analyst Day, and other events at 10 which Twitter made public statements; 11  Twitter’s Investor Relations Department;  Communications about the market’s reaction to Twitter’s public 12 disclosures; 13  Communications about the market’s concerns, questions, expectations, and impressions; 14  Analyst reports and commentary, including any internal summaries; 15  The witness’s employment with Twitter, including her 16 compensation and stock sales;  The relationships between user engagement, user growth, 17 advertising, revenue, and revenue guidance and forecasts; 18  The witness’s state of mind;  Facts relevant to rebut any defense asserted by Defendants; 19  Twitter’s disclosure and insider trading processes and policies; 20  The subject matters addressed in the witness’s Rule 30(b)(6) deposition; and 21  Any other subject matter addressed in this witness’s 22 depositions. 23 Nick Bilton Nick Bilton is a journalist-author and special correspondent with Vanity Fair. Mr. Bilton has authored three books including, 24 Hatching Twitter: A True Story of Money, Power, Friendship, and Betrayal (2013), which told the story of Twitter’s early days and its 25 four founders. He also wrote the 2016 Vanity Fair article, “Twitter is Betting Everything on Jack Dorsey. Will it Work?” He will 26 testify regarding the following topics:  The witness’s experience and employment; 27  Interviews and communications while researching or writing 28 about Twitter; and

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1 PLAINTIFFS’ FACT WITNESSES 2 Witness Substance of Testimony  The subjects relating to Twitter about which the witness has 3 researched or written, including MAU, user growth, and user engagement. 4 Richard Costolo Defendant Richard Costolo was Twitter’s Chief Executive Officer 5 during the Class Period. He left Twitter in June 2015. He will testify regarding the following topics: 6  Internal and external communications regarding user growth, 7 user engagement, and related metrics, including churn, TLV, DAU, MAU, and DAU/MAU; 8  Twitter data, analyses and conclusions regarding user growth, user engagement, and related metrics, including churn, TLV, DAU, 9 MAU, and DAU/MAU; 10  Preparation for earnings calls, Analyst Day and other events at which Twitter made public statements; 11  Communications about the market’s reaction to Twitter’s public disclosures; 12  Communications about the market’s concerns, questions, 13 expectations, and impressions;  Twitter’s corporate objectives, including “strengthen the core” 14 and “largest daily audience”; 15  The witness’s employment with Twitter, including his compensation and stock sales; 16  The witness’s state of mind; 17  Facts relevant to rebut any defense asserted by Defendants;  Twitter’s disclosure and insider trading processes and policies; 18 and 19  Any other subject matter addressed in this witness’s deposition or declaration submitted in support of summary judgment. 20 Jan Dawson Jan Dawson was the Founder and Chief Analyst at Jackdaw 21 Research during the Class Period. He will testify regarding the following topics: 22  The witness’s experience as a technology analyst; and 23  The witness’s research and analyst coverage of Twitter and other social media companies before and during the Class Period, 24 including the relevance of information regarding user growth, user engagement, and related metrics. 25 Jeff Dejelo Jeff Dejelo was Twitter’s Director of Sales Finance during the 26 Class Period. He will testify regarding the following topics:  Internal and external communications regarding user growth, 27 user engagement, and related metrics, including churn, TLV, DAU, MAU, and DAU/MAU; 28

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1 PLAINTIFFS’ FACT WITNESSES 2 Witness Substance of Testimony  Twitter data, analyses and conclusions regarding user growth, 3 user engagement, and related metrics, including churn, TLV, DAU, MAU, and DAU/MAU; 4  Internal and external communications regarding advertising, 5 revenue, and revenue guidance and forecasts;  Twitter’s Sales Finance group; 6  Communications about the market’s concerns, questions, 7 expectations, and impressions;  Preparation for earnings calls and other events at which Twitter 8 made public statements; 9  The witness’s employment with Twitter, including his compensation; 10  The relationships between user engagement, user growth, advertising, revenue, and revenue guidance and forecasts; 11  The witness’s state of mind; 12  Facts relevant to rebut any defense asserted by Defendants; and 13  Any other subject matter addressed in this witness’s deposition. 7 14 Kenney Deng Kenney Deng was a Senior Financial Analyst in Twitter’s Corporate Finance Group during the Class Period. He will testify 15 regarding the following topics:  Communications with the SEC regarding Twitter; 16  Twitter’s analytics team; 17  Twitter’s FP&A and Corporate Finance Groups; 18  Internal and external communications regarding user growth, user engagement, and related metrics, including churn, TLV, DAU, 19 MAU, and DAU/MAU;  Twitter data, analyses and conclusions regarding user growth, 20 user engagement and related metrics, including churn, TLV, DAU, MAU, and DAU/MAU; 21  Preparation for earnings calls, Analyst Day and other events at 22 which Twitter made public statements;  Communications about the market’s reaction to Twitter’s public 23 disclosures; 24  Communications about the market’s concerns, questions, expectations, and impressions; 25  The witness’s employment with Twitter, including his compensation; 26  The witness’s state of mind; 27

28 7 Witness will appear by videotaped deposition.

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1 PLAINTIFFS’ FACT WITNESSES 2 Witness Substance of Testimony  Facts relevant to rebut any defense asserted by Defendants; and 3  Any other subject matter addressed in this witness’s deposition. 4 Akash Garg Akash Garg was a Senior Director of Engineering and the co-head 5 of Twitter’s Growth Team during the Class Period. He will testify regarding the following topics: 6  Twitter’s Growth Team; 7  Internal and external communications regarding user growth, user engagement, and related metrics, including churn, TLV, DAU, 8 MAU, and DAU/MAU;  Twitter data, analyses and conclusions regarding user growth, 9 user engagement, and related metrics, including churn, TLV, DAU, MAU, and DAU/MAU; 10  Communications about the market’s reaction to Twitter’s public 11 disclosures;  Communications about the market’s concerns, questions, 12 expectations, and impressions; 13  Twitter’s corporate objectives;  The witness’s employment with Twitter; 14  The relationships between user engagement, user growth, and 15 revenue;  The witness’s state of mind; 16  Facts relevant to rebut any defense asserted by Defendants; and 17  Any other subject matter addressed in this witness’s deposition. 18 Austin Johnsen Austin Johnsen was a Corporate Finance Manager and a member of Twitter’s Metrics Task Force during the Class Period. He will 19 testify regarding the following topics: 20  Internal communications regarding user growth and user engagement related metrics, including TLV, DAU, MAU, and 21 DAU/MAU;  Twitter data regarding user growth and user engagement related 22 metrics, including TLV, DAU, MAU, and DAU/MAU; 23  The witness’s employment with Twitter, including his compensation; 24  Twitter’s Metrics Task Force; 25  The relationships between user engagement, user growth, advertising, revenue, and revenue forecasts; 26  The witness’s state of mind; 27  Facts relevant to rebut any defense asserted by Defendants; and  Any other subject matter addressed in this witness’s deposition. 28

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1 PLAINTIFFS’ FACT WITNESSES 2 Witness Substance of Testimony Adam Messinger Adam Messinger was Twitter’s Chief Technical Officer during the 3 Class Period. He will testify regarding the following topics: 4  Internal and external communications regarding user growth, user engagement and related metrics, including churn, TLV, DAU, 5 MAU, and DAU/MAU;  Twitter data, analyses, and conclusions regarding user growth, 6 user engagement, and related metrics, including churn, TLV, DAU, MAU, and DAU/MAU; 7  Twitter’s corporate objectives, including “strengthen the core” 8 and “largest daily audience”;  The witness’s employment with Twitter, including his 9 compensation; 10  The relationships between user engagement, user growth, advertising, and revenue; 11  The witness’s state of mind; 12  Facts relevant to rebut any defense asserted by Defendants; and  Any other subject matter addressed in this witness’s deposition. 13 Anthony Noto Defendant Anthony Noto was Twitter’s Chief Financial Officer 14 during the Class Period. He will testify regarding the following topics: 15  Internal and external communications regarding user growth, 16 user engagement, and related metrics, including churn, TLV, DAU, MAU, and DAU/MAU; 17  Twitter data, analyses, and conclusions regarding user growth, user engagement, and related metrics, including churn, TLV, DAU, 18 MAU, and DAU/MAU; 19  Communications about the market’s reaction to Twitter’s public disclosures; 20  Communications about the market’s concerns, questions, expectations, and impressions; 21  Twitter’s corporate objectives, including “strengthen the core” 22 and “largest daily audience”;  Preparation for earnings calls, Analyst Day and other events at 23 which Twitter made public statements; 24  The witness’s employment with Twitter, including his compensation; 25  The witness’s employment with Goldman Sachs; 26  The relationships between user engagement, user growth, advertising, revenue, and revenue guidance and forecasts; 27  The witness’s state of mind; 28  Facts relevant to rebut any defense asserted by Defendants; and

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1 PLAINTIFFS’ FACT WITNESSES 2 Witness Substance of Testimony  Any other subject matter addressed in this witness’s depositions 3 or declaration submitted in support of summary judgment. 4 Christian Oestlien Christian Oestlien was a Vice President of Product Management and the co-head of Twitter’s Growth Team during the Class Period. 5 He will testify regarding the following topics: 6  Internal communications regarding user growth, user engagement, and related metrics, including churn, TLV, DAU, 7 MAU, and DAU/MAU;  Twitter data regarding user growth, user engagement, and 8 related metrics, including churn, TLV, DAU, MAU, and DAU/MAU; 9  The witness’s employment with Twitter, including his 10 compensation;  Twitter’s Growth Team; 11  The relationships between user engagement, user growth, and 12 churn;  Facts relevant to rebut any defense asserted by Defendants; and 13  Any other subject matter addressed in this witness’s deposition. 14 Celia Poon Celia Poon was Twitter’s VP of Finance during the Class Period. 15 She will testify regarding the following topics:  Communications with the SEC regarding Twitter; 16  Internal and external communications regarding user growth, 17 user engagement, and related metrics, including churn, TLV, DAU, MAU, and DAU/MAU; 18  Twitter data, analyses, and conclusions regarding user growth, user engagement, and related metrics, including churn, TLV, DAU, 19 MAU, and DAU/MAU; 20  Preparation for earnings calls, Analyst Day, and other events at which Twitter made public statements; 21  Twitter’s Corporate Finance, FP&A, and Sales Finance Groups; 22  The witness’s employment with Twitter, including her compensation; 23  The witness’s state of mind; 24  Facts relevant to rebut any defense asserted by Defendants;  Any other subject matter addressed in this witness’s deposition. 25 David Rivinus David Rivinus was a Senior Manager of Investor Relations at 26 Twitter during the Class Period. He will testify regarding the following topics: 27 28

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1 PLAINTIFFS’ FACT WITNESSES 2 Witness Substance of Testimony  Internal and external communications regarding user growth, 3 user engagement, and related metrics, including churn, TLV, DAU, MAU, and DAU/MAU; 4  Twitter data, analyses, and conclusions regarding user growth, 5 user engagement, and related metrics, including churn, TLV, DAU, MAU, and DAU/MAU; 6  Preparation for earnings calls, Analyst Day, and other events at which Twitter made public statements; 7  Twitter’s Investor Relations Department; 8  Communications about the market’s reaction to Twitter’s public disclosures; 9  Communications about the market’s concerns, questions, 10 expectations, and impressions;  Analyst reports and commentary, including any internal 11 summaries; 12  The witness’s employment with Twitter;  The relationships between user engagement, user growth, 13 advertising, revenue, and revenue guidance and forecasts; 14  The witness’s state of mind;  Facts relevant to rebut any defense asserted by Defendants; and 15  Any other subject matter addressed in this witness’s deposition. 16 Alex Roetter8 Alex Roetter was Twitter’s Senior Vice President of Engineering 17 during the Class Period. He will testify regarding the following topics: 18  Internal communications regarding user growth, user engagement, and related metrics, including churn, TLV, DAU, 19 MAU, and DAU/MAU; 20  Twitter data, analyses, and conclusions regarding user growth, user engagement, and related metrics, including churn, TLV, DAU, 21 MAU, and DAU/MAU;  Twitter’s corporate objectives; 22  The witness’s employment with Twitter, including his 23 compensation and stock sales;  The witness’s state of mind; 24  Facts relevant to rebut any defense asserted by Defendants; and 25  Any other subject matter addressed in this witness’s deposition. 26 27

28 8 Witness is currently expected to appear by videotaped deposition.

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1 PLAINTIFFS’ FACT WITNESSES 2 Witness Substance of Testimony Gabriel Stricker Gabriel Stricker was Twitter’s Vice President of Marketing and 3 Communications during the Class Period. He will testify regarding the following topics: 4  Internal and external communications regarding user growth, 5 user engagement, and related metrics, including churn, TLV, DAU, MAU, and DAU/MAU; 6  Twitter data, analyses, and conclusions regarding user growth, user engagement, and related metrics, including churn, TLV, DAU, 7 MAU, and DAU/MAU; 8  Preparation for earnings calls, Analyst Day, and other events at which Twitter made public statements; 9  Twitter’s Communications Department; 10  Communications about the market’s reaction to Twitter’s public disclosures; 11  Communications about the market’s concerns, questions, expectations, and impressions; 12  The witness’s employment with Twitter, including his 13 compensation and stock sales;  The witness’s state of mind; 14  Facts relevant to rebut any defense asserted by Defendants; 15  Twitter’s disclosure and insider trading processes and policies; and 16  Any other subject matter addressed in this witness’s 17 depositions. 18 Kevin Weil Kevin Weil was Twitter’s Senior Vice President of Product during the Class Period. He will testify regarding the following topics: 19  Internal and external communications regarding user growth, user engagement, and related metrics, including churn, TLV, DAU, 20 MAU, and DAU/MAU; 21  Twitter data, analyses, and conclusions regarding user growth, user engagement, and related metrics, including churn, TLV, DAU, 22 MAU, and DAU/MAU;  Communications about the market’s reaction to Twitter’s public 23 disclosures; 24  Twitter’s corporate objectives;  The witness’s employment with Twitter, including his 25 compensation and stock sales; 26  The witness’s state of mind;  Facts relevant to rebut any defense asserted by Defendants; and 27  Any other subject matter addressed in this witness’s deposition. 28

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1 2. Expert Witnesses9

2 PLAINTIFFS’ EXPERT WITNESSES 3 Witness Substance of Testimony Jan Dawson (Rebuttal) Jan Dawson will testify regarding the subject matters set forth in 4 his expert rebuttal report dated August 7, 2019. 5 Frank Partnoy (Rebuttal) Frank Partnoy will testify regarding the subject matters set forth in his expert rebuttal report dated August 7, 2019. 6 M. Todd Henderson M. Todd Henderson will testify regarding the subject matters set forth in his expert report submitted on June 21, 2019. 7 Steven Feinstein Steven Feinstein will testify regarding the subject matters set forth 8 in his expert report dated June 21, 2019. Sam Hui San Hui will testify regarding the subject matters set forth in his 9 expert report dated June 21, 2019 and his expert rebuttal report dated August 7, 2019. 10 B. Defendants’ Witnesses 11 DEFENDANTS’ WITNESSES 12 Witness Substance and Purpose 13 Adam Bain Twitter’s business, strategy, products and metrics; advertising platform and revenue; relationship and communication with 14 advertisers. 15 Krista Bessinger Twitter’s communication with investors and analysts; public disclosures and quarterly earnings communications; analyst 16 conferences; Twitter metrics. 17 Richard Costolo Twitter’s business, revenue, strategy, products and metrics; communications with investors and analysts; public disclosures and 18 quarterly earnings communications; Costolo’s public statements; Costolo’s stock transactions; personnel transitions. 19 Peter Currie Twitter’s business, revenue, strategy, products and metrics; 20 personnel transitions. 21 Twitter, Inc. Custodian Issues relating to admissibility of trial exhibits. of Records 22 Jeff Dejelo Twitter’s financial and revenue analyses; Twitter metrics. 23 24

25 9 Based on the April 20, 2020 Order Granting in Part and Denying in Part Motions to Exclude 26 Expert Testimony (ECF No. 482) and the Court’s holding that evidence of any SEC investigation or action is irrelevant and prejudicial (ECF No. 482 at 15-16), Plaintiffs have removed Jason 27 Flemmons from their list of expert witnesses to be called at trial. But Plaintiffs reserve the right to call Flemmons as an expert witness if Defendants are permitted to introduce evidence regarding 28 any purported action or inaction of the SEC with respect to Twitter’s statements to investors.

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1 DEFENDANTS’ WITNESSES 2 Witness Substance and Purpose Jack Dorsey Twitter’s business, revenue, strategy, products and metrics; 3 Dorsey’s public statements; public disclosures and quarterly earnings communications; personnel transitions. 4 Derek Dukes Twitter’s metrics. 5 Akash Garg Twitter’s metrics. 6 Arvind Hariharan Twitter’s metrics. 7 Austin Johnsen Twitter’s financial and revenue analyses; Twitter metrics. 8 Daryush LaQab Twitter metrics. 9 David Loftesness Twitter metrics. 10 Andrew Manson Twitter metrics. 11 Adam Messinger Twitter’s strategy, product initiatives, engineering and metrics. 12 Derek Mihlfeith Twitter metrics. 13 Anthony Noto Twitter’s business, revenue, strategy, products and metrics; 14 financial and revenue analyses; communications with investors and analysts; public disclosures and quarterly earnings 15 communications; financial and revenue analyses; Noto’s public statements; Noto’s stock transactions. 16 Christian Oestlien Twitter’s strategy, product initiatives and metrics. 17 James Payne Twitter metrics. 18 Celia Poon Twitter’s financial and revenue analyses; Twitter’s metrics; public 19 disclosures and quarterly earnings communications; communications with investors and analysts. 20 Alex Roetter Twitter’s strategy, product initiatives, engineering, and metrics. 21 Alex Scott Twitter’s metrics. 22 Kevin Weil Twitter’s strategy, product initiatives and metrics. 23 Ethan Yeh Twitter’s financial and revenue analyses and metrics. 24 John Carr Coates IV Expert opinions submitted in this case. 25 Martin Dirks Expert opinions submitted in this case. 26 Peter Fader Expert opinions submitted in this case. 27 Paul Gompers Expert opinions submitted in this case. 28

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1 DEFENDANTS’ WITNESSES 2 Witness Substance and Purpose Wayne Guay Expert opinions submitted in this case. 3 Michele Madansky Expert opinions submitted in this case. 4 Steven Feinstein Expert opinions submitted in this case. 5 Sam Hui Expert opinions submitted in this case. 6

7 VIII. EXHIBITS, SCHEDULES, AND SUMMARIES 8 Attached hereto as Exhibit A is Plaintiffs’ exhibit list, including Defendants’ objections 9 and Plaintiffs’ responses to Defendants’ objections. Exhibit A identifies those exhibits that were 10 designated by both Plaintiffs and Defendants with an asterisk. 11 Attached hereto as Exhibit B is Defendants’ exhibit list, including Plaintiffs’ objections 12 and Defendants’ responses to Plaintiffs’ objections. Exhibit B identifies those exhibits that were 13 designated by both Plaintiffs and Defendants with an asterisk. 14 For numbering purposes, Plaintiffs have reserved the use of Exhibit Nos. 1 through 2,000. 15 Defendants have reserved the use of Exhibit Nos. 2,001 and on. 16 Each party hereby acknowledges by signing this Joint Pretrial Statement that any 17 objections not specifically raised in Exhibits A and B are deemed waived. 18 IX. DISPUTED LEGAL ISSUES 19 A. Plaintiffs’ Statement of Disputed Legal Issues 20 The following is a list of issues of law that Plaintiffs believe are contested and remain to 21 be litigated: 22 1. The proper jury instructions to present to the jury, which are addressed in the 23 parties’ joint proposed jury instruction submission; 24 2. The elements required to prove Plaintiffs’ §§10(b) and 20(a) claims, which are 25 addressed in the parties’ joint proposed jury instruction submission; 26 3. Whether any question as to the element of reliance, specifically the fraud-on-the- 27 market presumption of reliance, need be presented to the jury; and 28

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1 4. The proper verdict form to present to the jury.10

2 B. Defendants’ Statement of Disputed Legal Issues 3 The following is a non-exhaustive list of disputed points of law concerning liability or relief 4 that Defendants believe are contested and must be resolved by the Court: 5 1. The proper instructions to present to the jury, which are addressed in the parties’ 6 respective jury instruction briefing. Included among those disputed legal issues are the following: 7 (a) Whether the state of mind of non-Defendant employees is imputable to 8 Twitter for purposes of Plaintiffs’ securities fraud claims (see Parties’ Joint Set of [Proposed] Jury 9 Instructions at Instruction No. 19); 10 (b) Whether mere knowledge of the omitted fact is sufficient to demonstrate 11 scienter, as opposed to knowledge that the omission would render an affirmative statement 12 misleading or deliberately reckless disregard for whether the omission would render an affirmative 13 statement misleading (see id.); 14 (c) Whether Plaintiffs must prove reliance as an element of their 10b-5 claim 15 (see id. at Instruction No. 16); and 16 (d) Whether Plaintiffs must separately prove that artificial inflation and any 17 dissipation of that inflation were caused by the alleged misrepresentation or omissions in 18 calculating per share damages (see id. at Instruction No. 22).

19 2. The proper verdict form to present to the jury. Defendants’ position is that the 20 verdict form should:11 21 (a) Require a determination of liability for each alleged statement and each 22 named Defendant with respect to each statement; 23 (b) Include the full statement, rather than excerpts of the allegedly false or 24 misleading language; 25 26 10 During the April 30, 2020 Case Management Conference, the Court indicated that it did not 27 want briefing on the parties’ competing verdict forms in advance of the Final Pretrial Conference. 11 Defendants respectfully request the Court’s consideration of disputes pertaining to the parties’ 28 respective verdict forms in advance of trial.

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1 (c) Inquire whether Plaintiffs have met their burden of proof for each Rule 10b- 2 5 element; 3 (d) Require a finding on artificial inflation caused by alleged false or 4 misleading statements; 5 (e) Not prompt the jury to select “Plaintiffs’ per share damages quantification”; 6 and 7 (f) Include the total stock price decline alleged by Plaintiffs in this action as a 8 cap on damages.

9 X. PENDING MOTIONS 10 There are no pending motions.

11 XI. BIFURCATION OR SEPARATE TRIAL OF ISSUES 12 As set forth in ECF No. 499, the parties agree that the trial currently set for September 20, 13 2021 shall address class-wide issues (Phase One), and if Plaintiffs prevail at trial, individual issues 14 will be addressed in Phase Two.

15 XII. USE OF DISCOVERY RESPONSES 16 Attached hereto as Exhibit C is a list of deposition designations that Plaintiffs may offer at 17 trial, other than those to be used solely for impeachment or rebuttal, along with Defendants’ 18 objections, completeness designations, counter-designations, and Plaintiffs’ objections to 19 Defendants’ completeness and counter-designations.

20 Attached hereto as Exhibit D is a list of deposition designations that Defendants may offer 21 at trial, other than those to be used solely for impeachment or rebuttal, along with Plaintiffs’ 22 objections, completeness designations, counter-designations, and Defendants’ objections to 23 Plaintiffs’ completeness and counter-designations.

24 Attached hereto as Exhibit E is a list of written discovery responses that Plaintiffs may use 25 at trial, other than those to be used solely for impeachment or rebuttal, along with Defendants’ 26 objections. 27 28

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1 Attached hereto as Exhibit F is a list of written discovery responses that Defendants may 2 use at trial, other than those to be used solely for impeachment or rebuttal, along with Plaintiffs’ 3 objections. 4 Counsel certify that they have conferred on the objections contained in Exhibits C-F and 5 will continue to meet and confer to resolve objections to designated testimony and discovery 6 responses.

7 XIII. ESTIMATE OF TRIAL TIME 8 The Court has allotted the parties 20 days for trial. ECF No. 567. The parties have 9 estimated that 16 days (or 72 hours) will be needed for trial time (excluding jury selection and 10 deliberations) (ECF No. 565), and understand that each trial day will be approximately 4.5 hours 11 of jury time, excluding breaks (8:30 a.m. to 1:30 p.m. Monday through Thursday). Dependent on 12 the Court’s preference, the parties stipulate to equally divide the 72 hours between each side. 13 The parties further stipulate that each side shall spend no more than 60 minutes for opening 14 and 120 minutes for closing.

15 XIV. SETTLEMENT DISCUSSION 16 The parties have engaged in private mediation sessions with the Honorable Layn R. 17 Phillips (Ret.), which did not result in settlement.

18 XV. MISCELLANEOUS 19 The parties have met and conferred and remain in disagreement on the following trial and 20 witness procedures:

21 A. Recalling Witnesses in Defendants’ Case-in-Chief 22 1. Plaintiffs’ Position 23 In accordance with Fed. R. Evid. 611(a), the Court has the discretion to allow a witness to 24 be recalled during trial. See Great Lakes Airlines, Inc. v. Civil Aeronautics Bd. of the U.S., 291 25 F.2d 354, 364 (9th Cir. 1961) (“[D]enial of the motion to recall these witnesses represents an 26 exercise of discretion.”). Defendants propose eliminating the Court’s discretionary power to 27 control the mode and order of examining witnesses and giving themselves the unfettered right to 28 recall witnesses in their case-in-chief. But particularly when, as here, the parties have stipulated

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1 that “on cross-examination of witnesses called live at trial, testimony beyond the scope of the direct 2 examination but relevant to the cross-examining party’s case may be elicited,” the Court should 3 retain the authority to decide whether a witness can be recalled. Because, in addition to being 4 inefficient, recalling witnesses is likely to lead to the parties disputing – and the Court having to 5 police – the scope of the recalled witnesses’ testimony, and it introduces “a danger that a witness 6 who frequents the witness stand . . . will become unfairly credible.” United States v. Hamilton, 7 No. 16-20062, 2017 WL 11469632, at *1 (E.D. Mich. Apr. 18, 2017). Defendants do, of course, 8 retain the right to move to recall a witness, but the Court should maintain the power to exercise its 9 discretion and rule on any such motion if and when it is made.

10 2. Defendants’ Position 11 Defendants do not believe they should be required to seek leave of Court to recall witnesses 12 in their case-in-chief. As Plaintiffs acknowledge in Section XV.B, Defendants will be presenting 13 the bulk of their case-in-chief through cross-examination conducted during Plaintiffs’ case-in- 14 chief. While the parties have agreed to this procedure to minimize the burden on testifying 15 witnesses and to promote trial efficiency, it deprives Defendants of the opportunity to fully assess 16 Plaintiffs’ completed case-in-chief before its witnesses are dismissed. While Defendants will 17 make every effort to anticipate Plaintiffs’ case and to elicit comprehensive testimony from each 18 witness on cross-examination, it is impossible for Defendants to make a final determination on 19 whether to call any particular witness in their case-in-chief until Plaintiffs rest their case-in-chief. 20 Defendants therefore should be free to recall witnesses during their case-in-chief to offer non- 21 cumulative testimony that is responsive to issues raised by Plaintiffs after the recalled witnesses’ 22 dismissal. 23 Plaintiffs’ concerns about efficiency and undue credibility are unfounded. Defendants do 24 not seek to elicit cumulative testimony and have agreed to attempt to fully examine witnesses 25 during Plaintiffs’ case in order to promote efficiency. Defendants must retain the right to recall 26 witnesses to address issues raised by examinations that occur subsequent to the dismissal of the 27 recalled witness. Of course, Plaintiffs retain the opportunity to object to testimony offered by 28 recalled witnesses and to cross-examine those recalled witnesses. Finally, Defendants do not seek

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1 to call any witnesses to give testimony “episodically or via installments” such that they would 2 “guid[e] or shepherd[] the evidence at trial,” and therefore do not risk endowing witnesses with 3 any unwarranted credibility or reliability. Contra United States v. Hamilton, No. 16-20062, 2017 4 WL 11469632, at *1 (E.D. Mich. Apr. 18, 2017).

5 B. Exchange of Demonstratives to Be Used with Witnesses 6 1. Plaintiffs’ Position 7 Plaintiffs propose that all demonstrative exhibits to be used with a witness shall be 8 exchanged by 4:00 p.m. one business day before the witness is to be called. Defendants would 9 limit that requirement to just the party calling the witness, and propose that demonstratives to be 10 used on cross-examination would only be exchanged immediately before the cross-examination is 11 to begin. In doing so, Defendants seek to exploit and benefit from the unusual procedural posture 12 of this case. With three exceptions, all fact witnesses that Plaintiffs will call in their case-in-chief 13 are represented by defense counsel and identified with Defendants. In other words, the vast 14 majority of witnesses that Plaintiffs will call in their case-in-chief are hostile witnesses subject to 15 cross examination under Federal Rule of Evidence 611. As a result, the usual direct examination/ 16 cross examination sequence for these witnesses will be essentially reversed: Plaintiffs will cross- 17 examine these witnesses, and Defendants, who will have prepared these witnesses for their 18 examination in advance of trial, will follow with a direct examination. As such, Defendants will 19 undoubtedly know which demonstrative exhibits they intend to use with their own witnesses well 20 in advance of trial or certainly before the witness is called to testify. They should not gain an 21 unfair advantage by waiting until the moment they begin their examination to provide these 22 demonstratives to Plaintiffs. 23 Defendants contend that Plaintiffs’ proposal fails to account for the fact that demonstratives 24 may be used with Plaintiffs’ expert witnesses, who Defendants will not have prepared with in 25 advance. But Defendants have had Plaintiffs’ experts’ reports for more than two years and know 26 the exact scope of each expert’s testimony. Defendants also contend that for the fact witnesses 27 that they will prepare in advance of trial, they cannot fully anticipate Plaintiffs’ examination of the 28 witnesses. But Plaintiffs have identified the substance of the testimony expected for each of these

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1 fact witnesses, all of whom were previously deposed in the case. And Defendants’ examination is 2 not constrained by Plaintiffs’ examination of these witnesses. Indeed, it strains credulity to believe 3 that Defendants are going to be creating demonstrative exhibits on the fly, while a witness is being 4 examined by Plaintiffs. 5 Moreover, with respect to both fact and expert witnesses, Defendants’ proposal would be 6 inefficient. Effectively, the jury would need to be excused and a break would need to be taken for 7 every witness between Plaintiffs’ examination and Defendants’ examination so that the 8 demonstratives could be exchanged, Plaintiffs could review them, and disputes about the 9 demonstratives resolved by the parties or the Court (with additional time needed to revise 10 demonstratives, if required, to resolve any objections). That would waste an inordinate amount of 11 the jury’s and the Court’s time. In contrast, under Plaintiffs’ proposal, both parties will have the 12 opportunity to review all of the demonstratives to be used with a witness the day before the witness 13 is called, meet and confer in an effort to resolve any objections and, if not successful, present those 14 objections to the Court prior to the start of the trial day.

15 2. Defendants’ Position 16 Defendants propose that any demonstratives to be used in Defendants’ examination of a 17 witness called in Plaintiffs’ case-in-chief shall be provided at the end of Plaintiffs’ examination of 18 that witness and before Defendants’ counsel begins examination of the witness. Defendants 19 further propose that the same procedure apply during Defendants’ case-in-chief. That is, any 20 demonstratives to be used in Plaintiffs’ examination of a witness called in Defendants’ case-in- 21 chief shall be provided at the end of Defendants’ examination of that witness and before Plaintiffs’ 22 counsel begins examination of the witness. This approach will allow the parties to prepare 23 effective cross-examination demonstratives that directly respond to the testimony presented on 24 direct examination. 25 By requiring exchange of demonstratives to be used with a witness during cross- 26 examination the day before the start of the witness’s direct examination, Plaintiffs would preclude 27 the creation of any responsive demonstratives, thereby impeding the parties’ ability to educate the 28 jury about their competing views of the evidence. Plaintiffs’ proposal is based on an argument

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1 that Defendants will have prepared the “vast majority” of witnesses in the case and therefore will 2 know which demonstratives they plan to use on cross-examination in advance of the witnesses’ 3 direct examinations. The flaws in this argument are two-fold. First, Plaintiffs fail to account for 4 Defendants’ use of demonstratives in cross-examination of Plaintiffs’ expert witnesses, none of 5 whom will have been prepared in advance by Defendants. Although typical expert discovery 6 occurred, Defendants do not know whether Plaintiffs will call any of their experts at trial, much 7 less what Plaintiffs will actually introduce to the jury through those experts. 8 Second, Defendants cannot fully anticipate Plaintiffs’ examination of any witness and 9 should not be required to produce demonstratives in advance of Plaintiffs’ examination. Notably, 10 Plaintiffs seek to avoid advance disclosure of exhibits to be used with witnesses because such 11 disclosure would “provid[e] Defendants with a roadmap to Plaintiffs’ examination the day before 12 a witness was called.” (See Section XV.C.) Moreover, Plaintiffs’ proposed procedure for 13 exchange of demonstratives would require the simultaneous exchange of demonstratives to be used 14 for direct and cross-examination of a witness, meaning that Defendants would be unable to prepare 15 any demonstrative that responds to the direct examination of a witness. Given that Defendants 16 cannot know the content of Plaintiffs’ direct examinations prior to the completion of those 17 examinations, Defendants cannot know which demonstratives they will use in a witness’s cross- 18 examination until the direct examination of that witness is complete. 19 Plaintiffs’ concerns about inefficiency are unfounded. Courts, including this one, routinely 20 adopt procedures similar to the one proposed by Defendants. See, e.g., Amended Joint Pretrial 21 Statement at 8, ECF No. 724, Liveperson, Inc. v. 24[7].ai, Inc., No. 4:17-CV-01268-JST (N.D. 22 Cal. May 7, 2021) (“The parties will exchange copies of all demonstratives they plan to use at trial 23 for direct examination—but not for cross-examination—by 5:00 p.m. the night before their 24 intended use.”); Biscotti Inc. v. Microsoft Corp., 302 F. Sup. 3d 797, 817 (E.D. Tex. Mar. 23, 2018) 25 (parties agreed to “exchange copies of all demonstratives they plan to use at trial for opening 26 statements . . . and direct examination—but not for cross-examination—by 7:00 p.m. the night 27 before their intended use”). Moreover, Plaintiffs’ claim that resolving objections to cross- 28 examination demonstratives before use of those demonstratives would “waste an inordinate

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1 amount” of time rings particularly hollow given their insistence that the Court interrupt 2 examinations to rule on the parties’ numerous objections to exhibits as those exhibits are 3 introduced. The number of demonstratives to be used on cross-examination will be far fewer than 4 the number of exhibits to which the parties have lodged objections, and the burden of ruling on 5 objections to demonstratives between exams cannot justify the severe limitations proposed by 6 Plaintiffs.

7 C. Resolution of Exhibit and Demonstrative Objections at Trial 8 1. Defendants’ Position 9 As described above in Section VI, the parties are continuing to meet and confer in an effort 10 to resolve evidentiary objections before the start of trial, and, to the extent that the parties are 11 unable to resolve objections, the parties have agreed to jointly file with the Court a set of exhibits 12 with the goal of obtaining rulings that may guide resolution of disputes with respect to other, 13 similar exhibits. 14 The remaining disputes arise from Plaintiffs’ refusal to provide Defendants all exhibits to 15 be used with a witness the day prior to the witness’s testimony and refusal to agree on a procedure 16 for resolving any remaining objections outside of the jury’s presence. Defendants respectfully 17 propose that the Court adopt the following procedure for exhibit exchange and resolution of any 18 remaining exhibit objections at trial: 19 The party calling the witness will identify the lists of exhibits they intend to use with live 20 and by-designation witnesses by 4:00 pm one business day before their intended use. The opposing 21 party will serve any objections to those exhibits by 7:00 p.m. one business day before their intended 22 use. The parties shall then meet and confer and, for any unresolved disputes, submit any 23 unresolved objections to the Court by 10:00 pm the night before the disputed exhibit’s intended 24 use. The parties will ask the Court to resolve these objections before the start of the next trial 25 day.12 26

12 27 Defendants propose that this procedure also be used with demonstrative exhibits to be introduced in the parties’ cases-in-chief. Plaintiffs have declined to stipulate to this procedure for 28 demonstratives and have offered only to “meet and confer” on demonstratives before objections are raised with the Court between 8 and 8:30 a.m. Defendants believe that it is appropriate to have JOINT PRETRIAL STATEMENT - 4:16-cv-05314-JST (SK) - 31 - 4847-9378-3020.v1 Case 4:16-cv-05314-JST Document 584 Filed 06/14/21 Page 35 of 47

1 Defendants’ proposal is similar to procedures adopted in complex civil litigation trials 2 before this Court and in others in this district. See, e.g., Joint Pretrial Statement at 6, ECF No. 727, 3 Liveperson, Inc. v. [24]7.ai, Inc., Case No. 4:17-CV-01268-JST (N.D. Cal. Aug. 28, 2019); see 4 also Corning Optical Commc’ns Wireless Ltd. v. Solid, Inc., No. 5:14-CV-03750-PSG, 2015 WL 5 5569095, at *3 (N.D. Cal. Sept. 22, 2015) (“By 6:00 PM the night before a party intends to call a 6 witness, it must provide the other side and the court with all the exhibits and demonstrative 7 evidence it intends to use with that witness. By 8:00 PM that same night, the other side must state 8 any objections thereto or they are deemed waived. The parties will attempt to meet and confer 9 that night or in the morning to resolve such objections.”); Novadaq Techs., Inc. v. Karl Storz 10 GmbH & Co. K.G., No. 14-CV-04853-PSG, 2015 WL 9266497, at *7 (N.D. Cal. Dec. 18, 2015) 11 (“By 6:00 PM the night before a party intends to call a witness, it must provide the other side and 12 the court with all the exhibits and demonstrative evidence it intends to use with that witness. By 13 8:00 PM that same night, the other side must state any objections thereto or they are deemed 14 waived. The parties will attempt to meet and confer that night or in the morning to resolve 15 such objections.”). 16 Plaintiffs oppose this procedure and refuse to disclose exhibits in advance of witness 17 examinations such that the Court may resolve exhibit objections outside the presence of the jury. 18 This would be inefficient and impracticable. Each party has more than a thousand exhibits on their

19 respective exhibit lists. Plaintiffs have objected to all but 17 documents on Defendants’ exhibit 20 list and have, so far, declined to enter into any reasonable stipulations regarding admissibility, with 21 the exception of waiving authentication objections to documents they have produced. (See JPTS 22 Ex. B.). It would be distracting and a waste of the Court and the jury’s time to resolve numerous 23 objections in the presence of the jury. Plaintiffs’ concern that advanced disclosure of exhibits 24 would allow Defendants an unfair advantage because they will “script a response to incriminating 25 documents” is baseless. Advance disclosure of the exhibits to be introduced in court the next day 26

27 a deadline by which objections must be made, and a deadline by which the dispute must be submitted without further edits to the proposed demonstrative, to avoid lengthy or undefined 28 argument to the Court before the jury is seated each morning.

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1 furthers, rather than hinders, the pursuit of truth by improving the quality of trial preparation and 2 increasing the efficient use of the jury’s time. Plaintiffs’ argument ignores the fact that the parties 3 are familiar with all of documentary evidence at this stage of the proceedings and the “scripting” 4 of witness testimony generally results in the jury discrediting it. Finally, the disclosure of exhibits 5 will apply equally, so Plaintiffs will enjoy the “advantage” for all witnesses called by Defendants 6 in their case-in-chief. 7 Defendants therefore respectfully request that the Court either adopt their proposal or 8 another procedure that would permit the parties to resolve exhibit objections outside the presence 9 of the jury either before or after the trial day.

10 2. Plaintiffs’ Position 11 Plaintiffs do not believe that they should be required to provide Defendants with the 12 specific documentary evidence they intend to use with a witness the day before they put on that 13 witness. Given that Defendants represent the vast majority of the witnesses that Plaintiffs intend 14 to call, their proposal would give Defendants an unfair advantage – Defendants would be able to 15 show the evidence to their witness and script a response to incriminating documents before the 16 witness took the stand. Because all but three of the fact witnesses that Plaintiffs will call are 17 hostile, Plaintiffs intend to rely disproportionately on documentary evidence to examine these 18 witnesses. Defendants’ proposal that Plaintiffs disclose these documents the day before their 19 examination would force Plaintiffs to reveal their case strategy, providing Defendants with a 20 roadmap to Plaintiffs’ examination the day before a witness was called. This would substantially 21 hinder the truth-finding function of this trial and dramatically favor Defendants in this litigation.13 22 Rather, Plaintiffs suggest that the parties continue to meet and confer in an effort to resolve 23 objections to trial exhibits. For example, as the Court may suspect, the lion’s share of the exhibits 24 that Plaintiffs intend to use are statements of a party opponent. Nonetheless, Defendants have 25

26 13 This discussion relates to documentary evidence only. Plaintiffs propose exchanging demonstrative exhibits at 4:00 p.m. one business day before the demonstrative exhibit is shown to 27 the witness. See Section XV.B.1., supra. Plaintiffs propose that the parties then meet-and-confer on any objections and, to the extent any objections remain unresolved, the parties raise them with 28 the Court the following morning prior to the jury being seated.

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1 objected to virtually all of these documents on hearsay grounds. To the extent that parties are 2 unable to resolve objections after conferring, Plaintiffs propose that prior to the start of trial, each 3 party submit a relatively few number of representative exhibits to the Court, whose rulings will 4 serve to guide the parties’ decisions on similar exhibits. If disputes still remain as to the 5 admissibility of exhibits – and Plaintiffs expect that the number of such disputes would be 6 substantially reduced following the Court’s ruling on representative exhibits – the Court could rule 7 on those remaining disputes either before trial or at the time that a party offers an exhibit into 8 evidence, depending on the Court’s preference.

9 D. Use of Exhibits or Demonstratives in Opening Statements 10 1. Plaintiffs’ Position 11 Plaintiffs intend to use both trial exhibits and demonstrative exhibits during their opening 12 statement in order to provide an effective and engaging opening statement. As the Court has 13 observed during a prior status conference in this case, most jurors learn better by seeing and 14 hearing, rather than just listening. Indeed, studies have repeatedly found that combining a visual 15 presentation with an oral presentation enhances the listening and learning experience for the 16 audience.14 Thus, the use of exhibits will enable the jury to better understand the opening. 17 Accordingly, Plaintiffs propose that the parties simultaneously exchange all trial exhibits with 18 objections and demonstrative exhibits they intend to use in opening statements five business days 19 before the start of trial to allow time for the parties to meet and confer on any objections and raise 20 any unresolved objections with the Court prior to the start of trial.

21 2. Defendants’ Position 22 Defendants object to the use of both trial exhibits and demonstratives during opening 23 statements. The parties cannot immediately probe the fairness of or provide context for trial 24 exhibits presented during opening statements. Further, the jury would need to be instructed that 25

26 14 See Matt McCusker, Opening Statement? We've Got an App for That, Deliberations Blog (June 29, 2010, 4:45 p.m.), http://jurylaw.typepad.com/deliberations/2010/06/opening-statement- 27 weve-got-an-app-for-that.html (“[I]nformation is retained at a remarkably higher rate when it is presented orally and visually (65% retention), rather than orally alone (10% retention) or visually 28 alone (20% retention).”).

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1 demonstratives are not themselves evidence, despite the fact that the opening statements should be 2 limited to the evidence. Defendants also anticipate that any demonstrative prepared by Plaintiffs 3 will necessarily be argumentative and, therefore, objectionable. In the event that the Court decides 4 to entertain Plaintiffs’ request to use exhibits or demonstratives in their opening statement, 5 Defendants agree that that the parties should exchange all trial exhibits and demonstrative exhibits 6 they intend to use in opening statements five business days before the start of trial allowing time 7 to raise any unresolved objections with the Court prior to the start of trial.

8 E. Number of Jurors 9 1. Plaintiffs’ Position 10 In accordance with Federal Rule of Civil Procedure 48(a), Plaintiffs respectfully 11 recommend that the Court empanel nine jurors.

12 2. Defendants’ Position 13 Given the length of trial and the likelihood of juror attrition due to the pandemic, 14 Defendants respectfully request that the Court consider empaneling twelve jurors.

15 F. Plaintiffs’ Use of Leading Questions with Current or Former Twitter Officers and Managers 16 1. Plaintiffs’ Position 17 In addition to the two Individual Defendants, 11 of the 14 fact witnesses Plaintiffs intend 18 to call live during their case-in-chief are current or former officers or managers of Twitter and 19 have been represented by Twitter’s counsel during the course of this litigation.15 Plaintiffs should 20 be permitted to examine these witnesses on direct examination using leading questions, which is 21 allowed “when a party calls a hostile witness, an adverse party, or a witness identified with an 22 adverse party.” Fed. R. Evid. 611(c) (emphasis added). “Courts addressing the question of when 23 a witness may properly be considered ‘identified with’ an opposing party have found that, for 24 example, an opposing party’s employee . . . is sufficiently closely identified with the opposing 25

26 15 In addition to the Individual Defendants – who qualify as “adverse part[ies]” under Federal Rule of Evidence 611(c) – the following witnesses Plaintiffs intend to call live are current or former 27 Twitter officers or managers: Adam Bain, Krista Bessinger, Jeff Dejelo, Austin Johnsen, Adam Messinger, Christian Oestlien, Celia Poon, David Rivinus, Alex Roetter, Gabriel Stricker and 28 Kevin Weil.

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1 party to warrant reliance on leading questions when interrogating such witnesses.” Bixby v. KBR, 2 Inc., No. 3:09-CV-632-PK, 2012 WL 4754942, at *3 (D. Or. Oct. 4, 2012). The same holds true 3 for witnesses who are former employees of a defendant. See, e.g., S.E.C. v. Moshayedi, No. SACV 4 12-01179 JVS (MLGx), 2013 WL 12129282, at *12-*13 (C.D. Cal. Nov. 20, 2013) (allowing 5 leading questions of current and former employees who “reported directly or indirectly” to the 6 defendant, “were closely involved in the subject matter of this case” and were “represented at 7 deposition by [defendant]’s counsel”). 8 The 11 Twitter witnesses who will be called in Plaintiffs’ case-in-chief are all “identified 9 with” Defendants. Each was or continues to be an officer or manager of the Company. Each was 10 closely involved in the events underlying the alleged securities fraud, including providing 11 Defendants with the user engagement metrics and financial results central to this case, and had 12 direct communications with one or both of the Individual Defendants during the relevant time 13 period. Each prepared with and was represented by Defendants’ counsel at their depositions with 14 one exception, Gabriel Stricker, whose attorney was paid for by Twitter and who prepared for his 15 deposition with Twitter’s counsel under a claim of joint defense privilege.16 And with the 16 exception of Stricker, each was identified in Defendants’ Federal Rule of Civil Procedure 26 17 disclosures with Defendants’ counsel provided as the contact for the witness. These facts 18 demonstrate not only that there is a relationship between the witnesses and Defendants that would 19 give rise to a presumption of bias, the touchstone of the “identified with” analysis, but that the 20 witnesses have actually aligned themselves with Defendants. Accordingly, Plaintiffs should be 21 permitted to use leading questions with these witnesses, even if they are called in Plaintiffs’ case- 22 in-chief. See Alpha Display Paging, Inc. v. Motorola Commc’ns & Elecs., Inc., 867 F.2d 1168, 23 1171 (8th Cir. 1989) (“Generally, when a witness identified with an adverse party is called, the 24 25 26

27 16 Defendants and Stricker asserted that their communications, including Defendants’ preparation of Stricker for his deposition were privileged and protected from disclosure by the joint defense 28 privilege.

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1 roles of the parties are reversed. Leading questions would be appropriate on direct examination 2 but not on cross-examination.”).17 3 Defendants have not identified which, if any, of the 11 Twitter witnesses at issue are 4 supposedly not identified with them. Instead, they argue that the mere fact that a witness was an 5 “employee” of a Defendant’s company is not sufficient to establish they are identified with the 6 Defendant. But none of the 11 witnesses at issue here were just employees of Twitter. They are 7 or were all executives or managers of the Company who, according to Defendants’ own Federal 8 Rule of Civil Procedure 26 disclosures, were in senior enough positions to have knowledge of 9 “Twitter business, strategy, products, and metrics,” “Twitter financial and revenue analysis,” and 10 “Twitter communication with investors and analysts.” Defendants also contend that the fact their 11 counsel represented the witnesses at deposition does not automatically mean they are identified 12 with Defendants. But, with the exception of Stricker, Defendants’ counsel did not just represent 13 these witnesses at their depositions, they prepared the witnesses for that testimony (including 14 Stricker), continue to represent the witnesses through today, and all of the attorney fees (including 15 Stricker’s) have been paid for by Defendants. Each of the 11 witnesses identified by Plaintiffs are 16 identified with the Defendants and in accordance with Federal Rule of Evidence 611(c), Plaintiffs 17 should be permitted to use leading questions with them on direct examination.

18 2. Defendants’ Position 19 Plaintiffs improperly seek a blanket ruling that all former employees should be treated as 20 adverse for purposes of Rule 611(c). As court after court has recognized, whether a former 21 employee is adverse is a “fact-dependent” determination that is typically resolved at trial. See, 22 e.g., Doe ex rel. Watson v. Russell Cnty. Sch. Bd.; No. 1:16CV00045, 2018 WL 1089277, at *1–2 23

24 17 While technically, Defendants’ counsel will be cross-examining these witnesses, as well as the Individual Defendants, during Plaintiffs’ case-in-chief, they would not be permitted to use leading 25 questions. See Advisory Committee’s Note to Fed. R. Evid. 611 (“The purpose of the qualification ‘ordinarily’ is to furnish a basis for denying the use of leading questions when the cross- 26 examination is cross-examination in form only and not in fact, as for example the ‘cross- examination’ of a party by his own counsel after being called by the opponent (savoring more of 27 re-direct).”); Wilson v. Frito-Lay N. Am., Inc., 260 F. Supp. 3d 1202, 1210 (N.D. Cal. 2017) (explaining an attorney’s “questions to his own client were improper leading questions of a non- 28 hostile witness”).

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1 (W.D. Va. Feb. 28, 2018); Yousefi v. Delta Elec. Motors, Inc., No. C13-1632RSL, 2015 WL 2 11217257, at *1 (W.D. Wash. May 11, 2015) (granting in part and denying in part motion to ask 3 leading questions; stating that “[l]eading questions are disfavored” and that “[t]he mere fact that 4 Mr. Gibbs used to work for [Defendant] is not . . . enough to trigger an assumption that he would 5 automatically align himself with that party”). “In analyzing this question, courts have come to 6 differing conclusions based upon the former employee’s position and involvement, if any, in the 7 events giving rise to the litigation.” Watson, 2018 WL 1089277, at *1–2 (collecting authorities). 8 Further, “[p]ast employment . . . does not, standing alone, give rise to an inference that the witness’ 9 self-interest or affections would align him with defendants or make him hostile to plaintiffs.” 10 Yousefi, 2015 WL 11217257, at *1. Here, Plaintiffs have established no foundation that would 11 permit them to ask leading questions of these witnesses, other than their bare assertions that these 12 individuals are former Twitter “executives or managers” who were “closely involved in the events 13 underlying the alleged securities fraud.” In fact, all but one of the witnesses Plaintiffs identify are 14 former Twitter employees whose interests are not necessarily aligned with Twitter’s. Indeed, 15 several witnesses currently work for companies that might be viewed as Twitter’s competitors. 16 Moreover, Plaintiffs themselves have previously taken the position that Mr. Stricker—whose 17 employment was terminated at the end of the Class Period—had interests that were “plainly at 18 odds with defendants’ interest in this litigation.” (ECF No. 265 at 3.) 19 Further, the mere fact that the same counsel represented many of these witnesses for 20 purposes of their deposition does not mean they are “identified with” Twitter or the individual 21 defendants. There is no per se rule that a witness—even an employee of a company who shared 22 the same counsel as a defendant at a deposition—can automatically be treated as a hostile witness 23 at trial. See S.E.C. v. Manouchehr Moshayedi, SACV 12 01179 JVS (MLGx), 2013 WL 12129282, 24 at *13 n. 19 (C.D. Cal. Nov. 20, 2013) (determining that two employees of the same company 25 affiliated with the defendant, each of whom was represented by the same law firm as the defendant 26 at deposition, were not “so closely linked to [Defendant] . . . that they are identified with him” 27 under Rule 611(c)). For these reasons, Defendants request that the Court require Plaintiffs to make 28

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1 an “individualized factual showing” at trial before permitting Plaintiffs to ask leading questions of 2 non-party witnesses. See id. at *13.

3 G. Bar on Substantive Communications with Sworn Witnesses 4 1. Plaintiffs’ Position 5 Plaintiffs request that, once a witness has been sworn, counsel be prohibited from 6 communicating with that witness about the substance of his or her testimony until it is completed. 7 Such a prohibition not only facilitates the efficient and orderly questioning of witnesses, but it will 8 also aid in eliciting truthful testimony. See United States v. Sandoval-Mendoza, 472 F.3d 645, 651 9 (9th Cir. 2006) (noting that “[c]ross examination best exposes the truth when a witness must 10 answer questions unaided”) (citing Perry v. Leeke, 488 U.S. 272, 284 (1989)). And “[i]t should

11 go without saying that no lawyer in [a] civil case (including in-house counsel) or a lawyer’s agent 12 or employee may talk to any witness during his or her testimony – including during recesses, lunch 13 breaks and overnight recesses.” Minebea Co. v. Papst, 374 F. Supp. 2d 231, 236 n.4 (D.D.C. 2005) 14 (emphasis in original). Accordingly, Plaintiffs request that the Court order that no attorney in this 15 action may communicate with any sworn witness about the substance of their testimony until the 16 completion of his or her testimony. 17 Defendants contend, incorrectly, that Plaintiffs’ proposal would infringe upon their due 18 process rights, as well as upon the due process rights of witnesses Defendants’ counsel represents 19 (which is all but two of the fact witnesses Plaintiffs intend to call in their case). But as the Supreme 20 Court held, even in a criminal context, “when a defendant becomes a witness, he has no 21 constitutional right to consult with his lawyer while he is testifying.” Perry, 488 U.S. at 281-82 22 (“when he assumes the role of a witness, the rules that generally apply to other witnesses – rules 23 that serve the truth-seeking function of the trial – are generally applicable to him as well”). And 24 that rule would certainly apply to non-defendants who, after all, are appropriately “sequestered to 25 lessen the danger that their testimony will be influenced by hearing what other witnesses have to 26 say, and to increase the likelihood that they will confine themselves to truthful statements based 27 on their own recollections.” See id. at 281-82. Thus, Perry repudiates Defendants’ counsels’ claim 28 that they have a right to “speak openly and freely with witnesses whom they represent . . . during

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1 Defendants’ examination.” Rather, even a criminal defendant has no constitutional right to consult 2 with counsel about “testimony while it is in process.” Id. at 284. 3 Plaintiffs’ proposal is limited to communications about the substance of the witnesses’ 4 testimony and thus in accord with the restrictions permitted by Perry and courts in this District: it 5 would not prevent “the normal consultation between attorney and client” unrelated to the substance 6 of the witness’s testimony, nor would it prevent substantive discussions between attorney and 7 witness before the witness was sworn or after the witness finishes testifying. Id. at 284; see also 8 Hernandez v. Peery, No. 14-cv-01605-JSW, 2018 WL 11251904, at *5 (N.D. Cal. Dec. 18, 2018) 9 (“The Supreme Court has never held that a limited restriction (as opposed to a complete denial of 10 all communication between [counsel and defendant witness]) on the matters that defense counsel 11 could discuss with his client amounts to [depriving a defendant of their right to counsel].”); Hovey 12 v. Calderon, No. C 89-1430 MHP, 1996 WL 400979, at *5 (N.D. Cal. July 10, 1996) (finding 13 “limited” bar on criminal defendants’ consultation with counsel did not vitiate defendant’s right to 14 counsel).18 15 Defendants’ contention that there should be no limit on communications with witnesses 16 other than during Plaintiffs’ examination should be rejected because it would impair the trial 17 court’s prerogative to protect the integrity of witness testimony by preventing “an opportunity to 18 regroup and regain a poise and sense of strategy that the unaided witness would not possess.” 19 Perry, 488 U.S. at 282.

20 2. Defendants’ Position 21 Plaintiffs’ proposal would deprive witnesses represented by Defendants’ counsel of their 22 well-established right to communicate with counsel during Defendants’ own examination of those 23 witnesses. The parties have agreed that Defendants may exceed the scope of Plaintiffs’ 24 examination of witnesses called in Plaintiffs’ case-in-chief to facilitate the goal of witnesses being 25 18 Defendants’ pre-Perry, out-of-circuit authorities are inapposite but not to the contrary. In 26 Aiello v. City of Wilmington, Del., 623 F.2d 845, 859 (3d Cir. 1980), the Third Circuit held that the trial court did not commit reversible error by refusing to allow a criminal defendant to consult 27 with his attorney while on cross-examination. In Potashnick v. Port City Const. Co., 609 F.2d 1101, 1119 (5th Cir. 1980), the trial judge prohibited “any attorney-client communication” for “a 28 period of seven days.”

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1 called only once at trial, which results in Defendants conducting direct examination of witnesses, 2 including the Defendants, after Plaintiffs’ have cross examined them. Plaintiffs’ request that the 3 Court issue an order barring counsel from communicating with witnesses regarding the substance 4 of his or her testimony “once a witness has been sworn . . . until [testimony] is completed” is overly 5 broad and would preclude any attorney-client communication not only during Plaintiffs’ (cross) 6 examination of witnesses, but also during the Defendants’ counsel’s direct examination of 7 Defendants or of witnesses who may be represented by Defendants’ counsel. Plaintiffs’ proposal 8 would infringe on the due process right to hire and retain counsel by barring communications 9 between client and counsel during a witness’s trial examination. Potashnick v. Port City Constr. 10 Co., 609 F.2d 1101, 1119 (5th Cir. 1980) (“We hold that the judge’s rule pertaining to attorney- 11 client communication impinged on Port City’s due process right to retain counsel”); id. at 1117- 12 18 (“[P]rohibiting a litigant from consulting with his attorney during breaks and recesses in the 13 litigant’s testimony impinges upon [the litigant’s] right” “to retain hired counsel.”); Aiello v. City 14 of Wilmington, Del., 623 F.2d 845, 859 (3d Cir. 1980) (overruling objection that district court erred 15 in prohibiting plaintiff to confer with counsel during breaks because the district court permitted 16 party to consult with counsel during a ten-minute break prior to redirect examination). Plaintiffs’ 17 proposal violates this basic principle. 18 Plaintiffs’ purported concern about potential “coaching” of witnesses during cross- 19 examination is misplaced. Defendants do not seek to engage in substantive communications with

20 witnesses within breaks or recesses during Plaintiffs’ examination. Rather, Defendants must be 21 able to speak openly and freely with witnesses whom they represent as necessary within breaks or

22 recesses during Defendants’ examination. Multiple courts have recognized that it is both 23 Defendants’ prerogative and right to do so, and the Court should therefore decline to adopt 24 Plaintiffs’ proposal.19 See Potashnick, 609 F.2d at 1118. Adopting Plaintiffs’ proposal also would 25 have the practical result of undermining the parties’ stipulation intended to result in trial efficiency. 26

19 27 Plaintiffs’ cited cases are inapposite. See Perry, 488 U.S. at 273, 284 (upholding a decision to prevent a witness from consulting with counsel after the close of direct examination and before 28 cross-examination); Sandoval-Mendoza, 472 F.3d at 651 (holding that “trial courts may prohibit all communication between a defendant and his lawyer during a brief recess before or during JOINT PRETRIAL STATEMENT - 4:16-cv-05314-JST (SK) - 41 - 4847-9378-3020.v1 Case 4:16-cv-05314-JST Document 584 Filed 06/14/21 Page 45 of 47

1 * * * 2 The foregoing admissions having been made by the parties, and the parties having specified 3 the foregoing issues of fact and law remaining to be litigated, this order shall supplement the 4 pleadings and govern the course of trial of this case, unless modified by the Court to prevent 5 manifest injustice. 6 DATED: June 14, 2021 Respectfully submitted, 7 ROBBINS GELLER RUDMAN & DOWD LLP DANIEL S. DROSMAN 8 TOR GRONBORG LUCAS F. OLTS 9 J. MARCO JANOSKI GRAY CHRISTOPHER R. KINNON 10 HEATHER G. SCHLESIER

11 12 s/ J. Marco Janoski Gray J. MARCO JANOSKI GRAY 13 655 West Broadway, Suite 1900 14 San Diego, CA 92101-8498 Telephone: (619) 231-1058 15 Facsimile: (619) 231-7423 [email protected] 16 [email protected] [email protected] 17 [email protected] [email protected] 18 [email protected] 19 20 21 22 23

24 cross-examination”) (emphasis added); Minebea Co., 374 F. Supp. 2d at 235 & n.3 (prohibiting communications between attorneys and witnesses during witness testimony “based on the conduct 25 of counsel for both sides during discovery and the history of the case” where “[c]ounsel on both sides ha[d] been criticized by both the Special Master and the Court for their conduct during 26 discovery”); Hernandez, 2018 WL 11251904, at *5 (trial court’s decision to prohibit trial counsel from consulting with their client about sealed declarations and plea transcripts by two co- 27 defendants did not constitute error); Hovey, 1996 WL 400979, at *5 (gag order that precluded defendant from discussing competency hearing during the prosecution’s case did not violate Sixth 28 Amendment).

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1 ROBBINS GELLER RUDMAN & DOWD LLP 2 MAUREEN E. MUELLER 120 East Palmetto Park Road, Suite 500 3 Boca Raton, FL 33432 Telephone: (561) 750-3000 4 Facsimile: (561) 750-3364 [email protected] 5 MOTLEY RICE LLC 6 GREGG S. LEVIN LANCE V. OLIVER 7 MEGHAN S.B. OLIVER MAX N. GRUETZMACHER 8 CHRISTOPHER F. MORIARTY MEREDITH B. WEATHERBY 9 28 Bridgeside Boulevard Mt. Pleasant, SC 29464 10 Telephone: (843) 216-9000 Facsimile: (843) 216-9450 11 [email protected] [email protected] 12 [email protected] [email protected] 13 [email protected] [email protected] 14 Co-Class Counsel for the Class 15 BLEICHMAR FONTI & AULD LLP 16 LESLEY E. WEAVER 555 12th Street, Suite 1600 17 Oakland, CA 94607 Telephone: (415) 445-4003 18 Facsimile: (415) 445-4020 [email protected] 19 Liaison Counsel 20 21 DATED: June 14, 2021 COOLEY LLP KATHLEEN GOODHART 22 AARTI REDDY LAURA ELLIOTT 23

24 s/ Kathleen Goodhart KATHLEEN GOODHART 25 26 27 28

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1 101 California Street, 5th Floor 2 San Francisco, CA 94111-5800 Telephone: (415) 693-2000 3 Facsimile: (415) 693-2222 [email protected] 4 [email protected] [email protected] 5 COOLEY LLP 6 JOHN C. DWYER JESSICA VALENZUELA SANTAMARIA 7 BRETT DE JARNETTE 3175 Hanover Street 8 Palo Alto, CA 94304-1130 Telephone: (650) 843-5000 9 Facsimile: (650) 849-7400 [email protected] 10 [email protected] [email protected] 11 SIMPSON THACHER & BARTLETT LLP 12 JAMES G. KREISSMAN (206740) 2475 Hanover Street 13 Palo Alto, CA 94304 Telephone: (650) 251-5000 14 Facsimile: (6500 251-5002 [email protected] 15 JONATHAN K. YOUNGWOOD (pro hac vice) 16 JANET A. GOCHMAN (pro hac vice) JOHN A. ROBINSON (pro hac vice) 17 425 Lexington Avenue New York, NY 10017 18 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 19 [email protected] [email protected] 20 [email protected]

21 Counsel for Defendants Twitter, Inc., Richard Costolo and Anthony Noto 22

23 24 25 26 27 28

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