In Tremblay v. OpenAI, Inc., No. 23-cv-03223-AMO (RMI) (N.D. Cal. June 24, 2024), California Magistrate Judge Robert M. Illman rejected plaintiff’s contentions that prompts and outputs that did not support Plaintiffs’ claims were protected by attorney work product and were irrelevant, granting the request to compel production of OpenAI account information for the individuals who conducted ChatGPT testing, all prompts and outputs for Plaintiffs’ testing of ChatGPT in connection with their pre-suit ChatGPT testing, and documentation of Plaintiffs’ testing process.

Case Discussion and Judge’s Ruling

In this case involving claims that OpenAI’s ChatGPT was trained using plaintiffs’ copyrighted works without permission, defendants requested “(a) the OpenAI account information for individuals who used ChatGPT to investigate Plaintiffs’ claims; and (b) the prompts and outputs for Plaintiffs’ testing of ChatGPT in connection with their pre-suit ChatGPT testing, including prompts and outputs that did not reproduce or summarize Plaintiffs’ works or otherwise support Plaintiffs’ claims, along with documentation of Plaintiffs’ testing process.”

Defendants claimed Plaintiffs “refuse[d] to respond in full based on a claim of work product protection, offering to produce only ‘full threads of the prompts and outputs’ that led to the examples in Exhibit-B to the Complaint” – i.e., “offered up only their preferred, cherry-picked results” by refusing to tender the prompts and results that did not improperly reproduce or summarize Plaintiffs’ works. Defendants also argued that Plaintiffs waived work product protection by including some prompts and outputs in their complaint.

Plaintiffs argued that disclosing only the “successful” summaries was necessary to establish their claim and that the “negative” results and account settings were protected attorney work product revealing their attorneys’ thought processes. They also claimed these were irrelevant as they planned to prove their case using other “concrete evidence” obtained through discovery.

In addressing the issue, Judge Illman stated: “The court will first note that the account settings and the negative test results are more in the nature of fact work product than opinion work product. While Plaintiffs suggest that revealing these facts would necessarily reveal ‘the thoughts and analysis conducted by Plaintiffs’ lawyers in preparation of the litigation’…, the court finds this suggestion to be exaggerated and unpersuasive. As stated above, opinion work product consists of the attorney’s interpretation of legal theories and the application of facts to those theories, rather than the bare facts or legal theories alone. The account settings and negative test result sought here are more in the nature of bare facts. However, even assuming arguendo that to reveal these bare facts would provide a revelatory glimpse into Plaintiffs’ counsels’ thought process such as to reveal counsels’ interpretation of legal theories and the application of some facts to those theories, Plaintiffs cannot avoid the notion that by placing a large subset of these facts in the FAC and in Exhibit-B, Plaintiffs have waived the ability to assert work product protection.”

Continuing, he added: “It is therefore no answer for Plaintiffs to simply declare that the negative results are “not relevant” simply because Plaintiffs did not include them in the FAC. As stated, Defendants’ review of the negative test results, as well as the account setting used to interrogate ChatGPT, appears likely to aid in Defendants’ understanding of Plaintiffs’ positive results as well as Defendants’ ability to subject those positive test results to scrutiny. Or, to put it another way, the court disagrees with Plaintiffs’ contention that the account settings and the prompts and outputs that do not ‘support Plaintiffs’ claims’…are not ‘particularly relevant’…because while they may not be relevant to Plaintiffs’ pursuit of their claims, they are plainly relevant to Defendants’ defenses. Of course, the reason is that Plaintiffs have placed a subset of their test results at issue in this case; and, having done so, Defendants should be entitled to examine the entirety of Plaintiffs’ test results (including the negative results), as well as the account settings used in interrogating ChatGPT.”

Judge Illman also stated: “Lastly, the court is unpersuaded by Plaintiffs’ argument that Defendants can simply interrogate ChatGPT themselves…Without knowing the account settings used by Plaintiffs to generate their positive and negative results, and without knowing the exact formulation of the prompts used to generate Plaintiffs’ negative results, Defendants would be unable to replicate the same results…Here, Plaintiffs’ FAC and Exhibit-B contain a series of test results, and while Defendants can certainly produce some prompts and responses themselves, doing so will not be useful in understanding or scrutinizing Plaintiffs’ test results. On the other hand, discovery into the account settings used by Plaintiffs, and discovery into Plaintiffs’ negative test results will achieve that end.”

So, Judge Illman ruled: “the request to compel the OpenAI account information for the individuals who used ChatGPT to investigate Plaintiffs’ claims, and the prompts and outputs for Plaintiffs’ testing of ChatGPT in connection with their pre-suit ChatGPT testing, including prompts and outputs that did not reproduce or summarize Plaintiffs’ works or otherwise support Plaintiffs’ claims, along with documentation of Plaintiffs’ testing process, is GRANTED.”

So, what do you think? Is GenAI content the next big source of ESI in litigation that parties will need to address? Please share any comments you might have or if you’d like to know more about a particular topic.

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