A few days ago, OpenAI accused Apple of improperly adding new evidence to its trade secrets case. Today, Apple fired back with its own accusation that OpenAI went beyond what court rules permit in its response. Here are the details.
Apple says OpenAI went beyond objecting to new evidence
One of the many aspects of the lawsuit in which Apple accuses two former employees (Chang Liu and Tang Tan), OpenAI, and io Products of trade secret misappropriation involves a request for a preliminary injunction.
In a nutshell, Apple has asked the court to issue a preliminary injunction, arguing that it would prevent its trade secrets from becoming further embedded in OpenAI’s hardware development while the case plays out.
As part of the legal back-and-forth over that request, Apple filed a reply brief supported by five expert declarations. That, in turn, led the defendants to accuse Apple of improperly introducing new evidence and ask the court to disregard some of the material.
In their objection filing, which accused Apple of presenting new evidence, OpenAI and the other defendants also submitted several documents countering Apple’s claims.
Today, Apple filed its response to those objections, arguing that the defendants went beyond simply objecting to new evidence, introducing new arguments and testimony of their own:
Rule 7-3(d)(1) permits a party to object to new evidence in a reply brief, but cautions that the filing “may not include further argument on the motion.” Defendants did not comply with this restriction and used their filing to relitigate the merits of Apple’s Motion for Preliminary Injunction.
For example, Defendants dispute whether Dr. Runge has a “basis to offer any analysis, adequately responds to “contrary evidence,” and demonstrates that certain Apple information is not public. […] Such arguments are not objections to new evidence. […] (“[A]rgument regarding how certain of Plaintiff’s positions are unsupported by evidence or contradicted by other testimony” is “not an objection to evidence.”).
Apple also takes exception to a new declaration from Liu, which it calls “the most egregious overreach” in the defendants’ filing:
The most egregious overreach is a new declaration from Mr. Liu, comprising eight paragraphs of new testimony. Defendants rely on this new testimony to offer excuses for why Mr. Liu “wiped” (i.e., erased) all the data from his iMac before returning it to Apple, […] argue about the meaning of certain text messages with one of Apple’s suppliers, […] and try to explain away his use of one of Apple’s confidential computer files, […] Such testimony violates the prohibition against “further argument on the motion.” Together, the filing and the declaration run 9 pages, which also violates the limitation that the objections “may not exceed 5 pages of text.” […]
It is worth noting that when the defendants filed Liu’s declaration, they argued that the court should consider it only if it also decided to consider the Apple evidence they were challenging.
That said, Apple argues that because the defendants have now presented new arguments of their own, the court should consider the full record rather than strike any of Apple’s reply evidence:
Defendants’ new arguments and evidence are more in the nature of a “sur-reply” rather than an objection. But, Defendants did not seek leave to file a sur-reply. Nonetheless, as Defendants have now adequately answered any “new” evidence from Apple’s Reply in its current filing, the Court should deny Defendants’ request to strike any of Apple’s Reply evidence, and should decide the Preliminary Injunction motion on a full record, including both the arguments and evidence in Apple’s Reply as well as the new arguments and evidence improperly submitted with Defendants’ filing.
The court is scheduled to hear arguments on Apple’s preliminary injunction request on October 14.
You can read Apple’s full filing below:
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