WP Engine is asking the federal court to sanction Matt Mullenweg and Automattic for destroying evidence. Automattic fired back at WP Engine with a late-night blog post that called the request for sanctions “desperate,” explaining that what’s missing is “personal communications with romantic partners” that has nothing to do with the case.
Call For Sanctions Against Mullenweg And Automattic
WP Engine filed a motion for sanctions on July 28th that alleges Mullenweg and Automattic destroyed evidence that was on Signal, Telegram, and WhatsApp. They are asking the court to sanction them by dismissing Automattic’s trademark infringement counterclaims, awarding attorney’s fees and other relief.
The motion by WP Engine includes:
“Throughout this period, Mr. Mullenweg actively steered communications about WPE into channels designed to leave no record. For instance, on September 21, 2024, Mr. Mullenweg publicly directed members of the public to contact him about WPE using ephemeral messaging: “[f]or the people sending me stuff from inside companies, please do not do it on your work device. Use a personal phone, Signal with disappearing messages, etc. I have a bunch of journalists happy to connect you with as well.””
And in the conclusion, WP Engine’s motion explains:
“Mr. Mullenweg’s relevant communications during the most critical time period in this case were not preserved, and Defendants lied about it, both to WPE and to this Court. Defendants’ actions have deprived WPE of critical evidence at the core of this litigation.”
Automattic Fires Back
A court filing and a late-night post by Automattic pushes back on WP Engine’s claims that Mullenweg destroyed evidence.
The post, titled “Wrong Again,” explains:
“WP Engine’s motion is a desperate attempt to get sanctions and other extreme remedies because Matt used ephemeral messaging in personal communications with romantic partners having nothing to do with this case.
WP Engine cannot identify a single missing message about anything having to do with this case.”
They also explain that 1.5 million documents were reviewed and five of Mullenweg’s devices were imaged.
The Defendants Opposition to Plaintiffs Motion for Sanctions claims that Matt Mullenweg did not delete case-relevant messages or use auto-delete for business communications. They argue that WP Engine is using baseless spoliation claims to secure a verdict in their favor without a trial.
The motion explains:
“The only disappearing messages identified in this record are Mr. Mullenweg’s personal communications with romantic partners, which are categorically irrelevant, and were never subject to any preservation duty. “
Then elsewhere in the filing:
“The distance between the motion and the record is not an ordinary disagreement about evidence. WP Engine describes a defendant hiding behind vanishing messages, a preservation effort that never occurred, and evidence destroyed beyond recovery. None of that is true, and WP Engine knew it was not when it filed.
It had the vendor’s explanation. It had the filing it now calls false. It had sworn testimony it could not shake. What it has placed before the Court is not the record of this litigation. It is a portrait created for this motion, and it does not survive contact with the evidence behind it.
The purpose of that portrait is evident from the relief it is meant to justify.”
And again:
“WP Engine relies significantly on Mr. Mullenweg’s September 21 public X post, which advised people sending him information from “inside companies” to use personal rather than work devices and referenced “Signal with disappearing messages.”
WP Engine’s lengthy motion omits Mr. Mullenweg’s deposition testimony that his Signal address was tied to his unpublished “personal phone number,” …and that his “Signal account settings were configured to prevent other users from discovering [his] account through a directory search or phone number lookup.”
And even if someone had discovered his number and sent him a message in response to his post, he testified that the account “wouldn’t have been able to receive [it]” because his settings required any such individuals to have been “approved as a contact or in [his] contact book.”
Consistent with that configuration, he does not believe he received a single message in response to his post, …and further testified under oath: “if I did, I did not see it.”
WP Engine’s separate theory that an unidentified third party may have activated disappearing messages likewise fails. Mr. Mullenweg shared his understanding that messaging platforms may allow a sender to control the disappearing-message setting and thereby “delete a message in a way that deletes it from both of your devices without you knowing.”
But his sworn declaration attested that he “do[es] not recall seeing any communication from a third-party related to WP Engine or this litigation that was auto-deleted from [his] device as a result of settings enabled by a third party,” and that regardless, he is not aware of any feature that would allow him “to prevent a third party from enabling or using an auto-delete or disappearing messages setting.””
The filing makes a strong case on behalf of Mullenweg.
Conflict Between WP Engine Versus Mullenweg/Autommatic
The conflict between Mullenweg/Automattic and WP Engine has been messy from the start. Mullenweg initiated the conflict by going “nuclear” on WP Engine at a WordPress conference and taking other actions against WP Engine.
A possible side effect is that WordPress has lost market share beginning shortly after the conflict began. This latest stage of the dispute appears to be getting even messier.
Automattic tweeted a link to their blog post and the following message:
“In a desperate attempt to get sanctions because they can’t prove their case, @wpengine says @photomatt destroyed evidence. Want to know what really happened?”
One of the responses to the tweet basically shrugged:
“More Matt drama 🎭”
Featured Image by Shutterstock/Vladimka production
