Indicted Nikola Corp. founder Trevor Milton claims the electric truck manufacturer is violating his constitutional rights. Nikola seeks a protective order to block his attorneys from using conversations between the company lawyer and employees in his upcoming 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 hide critical testimony,” Milton’s attorneys wrote in a response filed Monday to Nikola’s request earlier in July.
Milton is scheduled to stand trial Sept. 12 in the U.S. District Court for the Southern District of New York on four counts of fraud.
Three of the charges relate to statements and assertions Milton made about Nikola’s technology prowess and achievements. Prosecutors claim he was trying to inflate the value of the company’s stock by misleading investors. The fourth charge involves a land deal in Utah Milton tried to pay for in part with Nikola stock options.
Milton resigned as Nikola executive chairman, left the board and separated from the company on Sept. 20, 2020. That came 10 days after a short seller’s blistering report alleging Milton lied about dozens of matters.
Nikola files to intervene in Milton’s trial
Nikola sought to intervene in the trial as a third party because Milton wants to use conversations between general counsel Britton Worthen and other Nikola employees even though Milton was not part of them.
According to Milton’s motion, Nicole Rose, Nikola’s public relations director, spoke with the government about “undisclosed communications with Worthen” about Milton’s statements. Rose purportedly told Milton “you’re all good” on media statements and social media posts. That alone, Milton’s attorneys maintain, shows the relevance of the conversation to Milton’s defense.
The company wants to block the use of that and other Worthen conversations that did not directly involve Milton.
On June 25, 2021, Nikola voluntarily waived its attorney-client privilege over documents Milton sent or received that requested or contained legal advice from Worthen concerning investor and/or public communications before Sept. 10, 2020. That is the day Hindenburg Research published a 67-page report about Milton’s alleged misdeeds.
No harm asserted, Milton defense claims
“Nikola has not demonstrated a clearly defined, specific and serious injury with particular facts, much less substantiated those facts appropriately,” his attorneys argued in their motion. “Nikola has not asserted any harm other than [Mr. Milton’s] request implicates Nikola’s privilege.”
The motion also claims the conversations are in the same area over which Nikola waived privilege.
“Nikola has not explained, and cannot explain, how disclosure of these particular communications — which contain advice related to Mr. Milton’s public statements, all of which occurred at least two years prior to the commencement of trial — will harm Nikola’s business,” his attorney’s wrote.
“Even if the court does not find a 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 under the Fifth and Sixth amendments ‘to present a defense.’”