24-05-23 OpenAI letter re. discovery issues

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May 23, 2024
Hon. Sidney H. Stein
Daniel Patrick Moynihan
United States Courthouse
500 Pearl St.
New York, NY 10007-1312
cc: All Counsel of Record Line (via ECF)
Re: New York Times Company v. Microsoft Corp., et al., Case No 1:23-cv-11195-SHS
Dear Judge Stein:
Pursuant to Rule 2(G) of Your Honor’s Individual Practices, OpenAI seeks an informal
discovery conference concerning two issues. First, Plaintiff, The Times, refuses to commit to a
substantial completion deadline in response to OpenAI’s requests for production, served on March
8, despite the Court’s adoption of Plaintiff’s own expedited discovery schedule. OpenAI seeks an
order compelling Plaintiff to substantially complete document production by a date certain.
Second, Plaintiff has refused to produce certain documents underlying core allegations of
Plaintiff’s complaint relating to allegedly infringing outputs from ChatGPT. Plaintiff’s privilege
and work product claims are baseless, and OpenAI seeks an order compelling production.
Substantial Production Deadline. The parties submitted competing proposals for the case
schedule in the Rule 26(f) report on March 8. Dkt. 72 at 14-15. Plaintiff sought an accelerated
discovery schedule, requiring substantial production by June 14 for RFPs served by February 28,
and close of fact discovery on September 17. Id. OpenAI sought a longer schedule, with
substantial production by February 7, 2025 and close of fact discovery on April 7, 2025. Id.
OpenAI served RFPs on Plaintiff on March 8, the same day that the Rule 26(f) Report was filed.
On May 3, 2024, the Court accepted Plaintiff’s schedule. Dkt. 112.
In light of the short discovery period, OpenAI asked Plaintiff to commit to a substantial
production deadline of June 24 for the March 8 RFPs. This mirrors the amount of time the Court
ordered for OpenAI to substantially complete production in response to Plaintiff’s February 23
RFPs. After meeting and conferring, Plaintiff refused to commit to this deadline, or any substantial
completion deadline at all. We respectfully request the court to compel Plaintiff to make a
substantial production of documents responsive to the March 8 RFPs by June 24.
Plaintiff’s Regurgitation Efforts. The centerpiece of Plaintiff’s complaint is a claim that
OpenAI’s ChatGPT large language models (LLMs) “output near-verbatim copies of significant
portions of Times Works when prompted to do so.” Compl. ¶ 98. That assertion is purportedly
supported by a lengthy exhibit—Exhibit J—containing one hundred allegedly infringing outputs
generated using ChatGPT. See id. Ex. J. Plaintiff asserted this evidence shows that “individuals .
. . will likely” access Times’s content “without having to pay for it” to such a degree that it will
“divert readers, including current and potential subscribers, away from The Times, thereby
reducing” The Times’s revenues. Compl. ¶ 157. Thus, a central question in this case is exactly
Case 1:23-cv-11195-SHS Document 124 Filed 05/23/24 Page 1 of 4
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