In the case In re OpenAI ChatGPT Litigation, No. 23-cv-03223-AMO (RMI) (N.D. Cal. May 7, 2024), California Magistrate Judge Robert M. Illman granted the plaintiffs’ request in part for social media username(s) of current and past employees and board members (but only if they have engaged in discussions on those accounts relevant to the case) and denied their request for information about individuals and entities who possess or have possessed stock or ownership interests in OpenAI greater than five percent, calling that request “a fishing expedition based on suspicion and assumption”.

Case Discussion

In this OpenAI ChatGPT litigation involving claims of direct copyright infringement and unfair competition by authors who claimed that ChatGPT was trained on plaintiffs’ works without their permission, Plaintiffs sought “basic information with respect to the identity of social-media usernames of certain current and former employees of Defendants who used personal social-media accounts to communicate on the subjects of the litigation” via Interrogatory (“ROG”) No. 12. Ultimately, plaintiffs requested that for “current employees or board members listed in response to any interrogatory” defendants “inquire as to whether any such person has used any of their personal social media accounts to discuss anything relevant to this litigation, and, if so, Defendants will produce those individuals’ social media usernames”. Plaintiffs also requested that defendants “produce the social media usernames of those individuals to the extent they are known to Defendants” for past employees or board members.

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Defendants contended that this “[i]sn’t a narrow request,” and that “OpenAI does not collect from its employees and Board Members information about personal social media accounts, or monitor those accounts in the ordinary course of business.” They also objected that the information wasn’t in their possession, custody or control and objected to plaintiffs’ cited cases, stating: “the court ordered the identification of personal accounts only after the defendant admitted at least one such account was relevant[,] [and] [h]ere, OpenAI disputes relevance as to all the personal accounts.”

Plaintiffs also sought information about individuals and entities who possess or have possessed stock or ownership interests in OpenAI greater than five percent because such “individuals or entities may have discoverable documents or information relevant to the claims in this action,” and because “such individuals may have sought to exert influence and/or voice concerns vis-à-vis decisions by Defendants.”

Judge’s Ruling

Addressing the social media request for the OpenAI ChatGPT litigation, Judge Illman stated: “Having considered the Parties’ arguments, and having reviewed the authorities cited, Plaintiffs’ request is GRANTED in part, and the court fashions the following ruling to balance each Party’s rights. Defendants are ORDERED to promptly investigate and inquire from current directors and employees whether they have engaged in any discussions, the contents of which might be relevant to the claims or defenses involved in this case, using their personal social media accounts. The court finds that the burden associated with undertaking this inquiry is minimal and that it is proportionate and responsive to the needs of the case. If all current directors and employees report that they have engaged in no such discussions on their social media accounts, Defendants are ORDERED to certify that fact to Plaintiffs, which will put the matter to rest. If, on the other hand, any current director or employee answers that inquiry in the affirmative, Defendants are ORDERED to gather and disclose that person’s relevant social media username(s) forthwith. As to past employees, Defendants are ORDERED to produce the social media usernames of any such persons if Defendants know, or learn, that any that such persons have engaged in discussions on social media that might be relevant to claims or defenses in this case, and the social media username(s) of such persons are known to Defendants.”

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As for the request for information about stock holding individuals or entities for the OpenAI ChatGPT litigation, Judge Illman stated: “Plaintiffs’ portion of the letter brief does not indicate any concrete basis on which the court could conclude that entities or persons owning more than 5% of the shares of OpenAI actually would have (rather than could have) any relevant documents or information, or that they actually (rather than might have) sought to exert influence or voice concerns about OpenAI’s relevant business decisions. The asserted basis for compelling this discovery appears to be purely speculative – as does the contention that the identities of these shareholders would help Plaintiffs ‘understand the Defendants’ corporate relationship and structure of relationship.’”

In denying that request, Judge Illman added: “The identity of a company’s shareholders does not appear to be something that would shed any light on the company’s financial condition, or the company’s ability to respond to a judgment. Thus, the request to compel information pursuant to ROG No. 14 must be DENIED because this discovery appears to be more in the nature of a fishing expedition based on suspicion and assumption rather than a request for discoverable material premised on concrete facts and assertions.”

So, what do you think? Should a party be responsible for identifying any information regarding the personal social media accounts of their employees and board members? Please share any comments you might have or if you’d like to know more about a particular topic.

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