The latest procedural feud between the newspapers — which includes The New York Times as well as eight regional newspapers owned by private equity giant Alden Global Capital — and OpenAI and Microsoft came in the form of a disagreement over what discovery in that suit should look like.
The two sides already fought vigorously last month over whether to consolidate discovery with a different copyright lawsuit that was filed by the Center for Investigative Reporting, publisher of the magazine Mother Jones, and which is also, separately, suing OpenAI and Microsoft. Last week, U.S. Magistrate Judge Ona Wang ordered them to consolidate that discovery.
Now, in a joint letter dated Friday, filed by New York Times lawyer Steven Lieberman of Rothwell Figg Ernst & Manbeck PC, the newspapers say they want an order from Judge Wang "requiring OpenAI to identify and admit which of … plaintiffs' works were used to train each of the GPT-1, GPT-2, GPT-3, GPT-3.5, GPT-3.5 Turbo, GPT-4, GPT-4 Turbo, and GPT-4o families of models."
Per Lieberman, this "this information is solely within defendants' possession."
"The identification of which … news plaintiffs' copyrighted works defendants took and used to train the GPT models … is foundational to these cases," he writes, adding that the newspapers and the tech companies now "have a fundamental disagreement about who is responsible for identifying this information."
Lieberman complains that the ongoing discovery "process has not gone smoothly" and that the newspaper's lawyers and the experts they have retained "are running into a variety of obstacles to, and obstructions of, their review."
OpenAI, however, disagrees.
"There is no issue for the court to decide here," reads a statement from the tech company's legal team that accompanies the letter. As it sees it, "OpenAI cannot easily identify the specific content that plaintiffs are interested in," and it wants to hold another "meet and confer" with the newspapers' legal teams over the matter.
"Taking a step back, everyone agrees the parties are navigating uncharted waters," OpenAI says.
Representatives for the companies did not immediately return a request for comment.
The New York Times is represented by Elisha Barron, Ian Crosby, Davida Brook, Ellie Dupler and Tamar Lusztig of Susman Godfrey LLP and Steven Lieberman, Jennifer B. Maisel and Kristen J. Logan of Rothwell Figg Ernst & Manbeck PC.
The other newspapers are represented by Steven Lieberman, Jennifer B. Maisel, Robert Parker, Jenny L. Colgate, Mark Rawls, Kristen J. Logan, Jeffrey A. Lindenbaum and Bryan B. Thompson of Rothwell Figg Ernst & Manbeck PC.
OpenAI is represented by Carolyn Homer, Joseph C. Gratz, Vera Ranieri and Rose S. Lee of Morrison & Foerster LLP; Robert A. Van Nest, Paven Malhotra, Michelle S. Ybarra, Nicholas S. Goldberg, Thomas E. Gorman, Katie Lynn Joyce, Christopher S. Sun and R. James Slaughter of Keker Van Nest & Peters LLP; and Sarang V. Damle and Elana Nightingale Dawson of Latham & Watkins LLP.
Microsoft is represented by Annette L. Hurst, Christopher J. Cariello, Sheryl Koval Garko and Laura Brooks Najemy of Orrick Herrington & Sutcliffe LLP.
The case is The New York Times Co. v. Microsoft Corp. et al., case number 1:23-cv-11195, both in the U.S. District Court for the Southern District of New York.
--Editing by Andrew Cohen.
For a reprint of this article, please contact reprints@law360.com.
