The OpenAI NY Times case is becoming a blueprint for the handling of discovery of AI-related content in litigation. Here’s why.

We’re coming up on nearly two years since The New York Times (NYT) sued OpenAI and Microsoft for copyright infringement (in late December of 2023 – it’s the Christmas gift that keeps on giving! 😉). It’s probably not surprising that this case has been highly active over that time. Some of the recent developments in this case have illustrated why this case is addressing a lot of considerations for discovery of AI related content in litigation. Here are some recent examples:

• In May, New York Magistrate Judge ordered OpenAI to preserve all ChatGPT user logs – including deleted chats and sensitive chats logged through its API business offering – because the news organizations suing OpenAI accused the AI company of destroying evidence. OpenAI demanded oral arguments in a bid to block the controversial order, calling the claims “unfounded”. This decision spotlighted the challenge of balancing evidentiary preservation considerations vs. the privacy rights of literally hundreds of millions of subscribers to ChatGPT and other OpenAI products.
• In August, OpenAI offered to produce 20 million user chats in the case, but the NYT said that wasn’t enough and requested 120 million (!) chats. This dispute illustrated just how voluminous discovery can be for AI related content, especially in a case involving an AI company.
• In September, Judge Wang ruled on defendants OpenAI and Microsoft attempt to compel the NYT to preserve and produce logs from its internal AI tool, “ChatExplorer,” which interfaces with OpenAI’s models via an API. They argued this data was relevant to their copyright defenses. As Phil Favro discussed in this blog post here, Judge Wang rejected the motions, finding that the information requested was neither relevant nor proportional, after the NYT estimated that a review of over 80,000 entries for attorney-client and reporter’s privileges would require 1,333 hours and cost more than $1 million.
• Earlier this month, Judge Wang approved a joint motion from news organizations and OpenAI to terminate the May preservation order (although some ChatGPT users’ deleted and temporary chats will still be monitored).
• Also earlier this month, Judge Wang rejected OpenAI’s contention that Slack messages related to the deletion of the Library Genesis dataset of copyrighted materials were protected by attorney-client privilege, finding that most of them did not involve legal advice. As Angela Delvecchio of Project Counsel Media discusses, “If OpenAI were to be found to have intentionally destroyed evidence by deleting copyrighted materials, it could be in deep trouble.”

The last order is notable in that the first several pages is simply listing all the attorneys involved in the case! 🤣 Another sign of how involved this litigation is: the massive docket of 698 entries, just since April 3rd!

Delvecchio stated this case is “is offering a Master Class in eDiscovery practice - to OpenAI’s chagrin”. Couldn’t agree more, and there may be lots more to come!

So, what do you think? Do you agree that the OpenAI NY Times case is becoming a blueprint for the handling of discovery of AI-related content in litigation? Please share any comments you might have or if you’d like to know more about a particular topic.

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