Indicted Trevor Milton, the founder of Nikola Corp., believes the electric truck manufacturer is violating his constitutional rights. Nikola is requesting a protective order to prevent his lawyers from exploiting discussions between the company counsel and employees in his impending trial.
“With his liberty at stake, Mr. Milton has the right to present a complete and robust defense rather than one compromised by Nikola’s artificial and self-serving assertion of the attorney-client privilege to conceal critical testimony,” Milton’s attorneys wrote in a response to Nikola’s request earlier in July, which was filed Monday.
Milton is slated to go on trial in the United States District Court for the Southern District of New York on four counts of fraud on September 12.
Three of the allegations are related to Milton’s remarks and representations concerning Nikola’s technological competence and achievements. Prosecutors believe he lied to investors in order to boost the value of the company’s stock. The fourth accusation concerns a land deal in Utah that Milton attempted to finance in part through Nikola stock options.
Milton resigned as executive chairman of Nikola, left the board, and left the company on September 20, 2020. This happened just ten days after a short seller published a scathing report suggesting Milton misled about hundreds of issues.
Nikola seeks to intercede in Milton’s case.
Nikola seeks to intervene as a third party in the trial because Milton wishes to use communications between general counsel Britton Worthen and other Nikola workers in which Milton was not present.
According to Milton’s move, Nicole Rose, Nikola’s public relations director, discussed “undisclosed discussions with Worthen” about Milton’s remarks with the government. On media statements and social media posts, Rose allegedly informed Milton, “you’re all okay.” Milton’s attorneys argue that this alone demonstrates the conversation’s significance to Milton’s case.
The corporation wants to prohibit the use of that and other Worthen talks in which Milton was not personally involved.
Nikola voluntarily waived its attorney-client privilege for any materials Milton provided or received that requested or contained legal guidance from Worthen regarding investor and/or public communications prior to September 10, 2020, on June 25, 2021. That was the day Hindenburg Research released a 67-page study detailing Milton’s alleged wrongdoings.
There is no claim of harm, according to the Milton defense.
“Nikola has not proven a clearly defined, specific, and substantial injury with specific facts, much less correctly substantiated those facts,” his attorneys stated in their application. “Nikola has not claimed any injury other than the fact that [Mr. Milton’s] request violates Nikola’s privilege.”
The motion also says that the chats took place in the same area where Nikola waived privilege.
“Nikola has not stated, and cannot explain,” his attorneys argued, “how the publication of these specific emails — which contain counsel connected to Mr. Milton’s public pronouncements and all of which happened at least two years previous to the opening of trial — could hurt Nikola’s business.”
“Even if the court finds no subject matter waiver over general counsel Worthen’s legal advice regarding Mr. Milton’s statements, the court should deny Nikola’s motion to intervene and for a protective order to protect Mr. Milton’s constitutional rights to present a defense under the Fifth and Sixth amendments.”
