Vernon Unsworth is suing Musk for calling him a "pedo guy" in one of a series of tweets. Musk posted the tweets after Unsworth accused Musk in a CNN interview of grandstanding by offering to help Unsworth's diving team rescue 12 boys and their soccer coach from a cave in Thailand in July 2018.
Asked after Tuesday's session in U.S. District Court in Los Angeles if there was any chance Musk would settle before the civil trial, his attorney Alex Spiro told Reuters: “No.”
The defamation suit is one of the last remaining issues hanging over Musk from a turbulent period in 2018 and early 2019, during which the tech entrepreneur's use of Twitter and his personal behavior rattled Tesla shareholders and drew pressure from regulators.
Lawyers for Musk and Unsworth argued for a second day on Tuesday about evidence that could be used in next week's trial. U.S. District Judge Stephen Wilson said those arguments would continue on Monday before he provides a written ruling.
Unsworth's attorney L. Lin Wood wants to present a series of emails Musk wrote to a Buzzfeed reporter in August of last year, including one in which he told the reporter to "stop defending a child rapist."
Unsworth‘s legal team withdrew the Buzzfeed emails from the basis of its defamation suit last week, and is suing now only for the four tweets Musk published in July 2018. But Wood told the court he wants to present the emails as supporting evidence pointing to Musk’s "state of mind" in the original tweets.
Musk has apologized for the "pedo guy" comment, saying it was a common insult in his native country of South Africa, and that he did not intend to accuse Unsworth of pedophilia.
"BACKDOOR EVIDENCE"
Spiro told the court Musk was "not trying to block evidence" by wanting the emails excluded.
“(But) from our perspective, this is trying to backdoor evidence,” which, Spiro said, could prejudice a potential jury after Wood removed the emails from the defamation claim against Musk.
Lawyers for both sides said on Monday that Musk and Unsworth would testify in what promises to be a combative trial.
"Evidence is going to be through Mr. Musk (testifying) that in fact Mr. Musk didn't call him a pedophile. Mr. Musk deleted the tweet, apologized and moved on," Spiro told the court.
Unsworth, who is seeking compensatory and punitive damages, will provide evidence of damages by “talking about his worries, his anxieties, his concern by being branded a pedophile,” Wood told the court on Monday.
Last week, Wilson rejected Musk's attempt to have the lawsuit dismissed and also ruled that Unsworth was not a public figure - which makes it easier to prove defamation.
Unsworth can now win if he shows Musk acted negligently in making his comments.
The dispute between the two men arose after the cave search team in Thailand decided not to use a mini-submarine offered by Musk's SpaceX rocket company to help with the rescue. Unsworth told CNN the offer was a "PR stunt" and Musk could "stick his submarine where it hurts."
The case is Unsworth v Musk, U.S. District Court, Central District of California, No. 18-08048.