Discovery in Authors’ Suits vs. Microsoft, AI Showing ‘Indicia of Delay,’ Judge Told

The plaintiffs in two consolidated authors’ complaints for copyright infringement against Microsoft and OpenAI agree with the defendants in proposing Feb. 28, 2025, as the date for completing summary judgment briefing in their litigation, said their joint letter Friday (docket 1:23-cv-08292) to U.S. District Judge Sidney Stein for Southern New York in Manhattan. But the parties are at an “impasse” over proposing a deadline for the “substantial production” of documents for discovery requests submitted before Jan. 31, with the plaintiffs proposing May 10 and the defendants proposing Aug. 31, said the letter. The plaintiffs deem the May 10 deadline “reasonable” because it gives OpenAI, which was first served Nov. 13 with document requests, more than six months to respond, and Microsoft, which was served Jan. 24, more than four months, said the letter. The defendants believe that the plaintiffs’ document requests “potentially implicate large collections of data” that can’t “feasibly be copied for production, and the parties will need to negotiate the means of handling such data,” said the letter. Following the adoption of the discovery “protocol,” the defendants “will still have to search for, collect, review, and produce documents,” it said. “Each of these steps takes time,” and the defendants believe the plaintiffs’ proposed May 10 deadline “ignores these realities,” it said. The plaintiffs think the court’s intervention “to set a firm, and quick, timetable” for initial document production “is especially warranted here because the discovery process already reflects indicia of delay,” said the letter. According to the plaintiffs, OpenAI has refused “categorically” to produce documents “already collected and turned over to legislative bodies and regulatory agencies,” said the letter. Those include materials “obviously relevant to the copyright claims at issue,” like those turned over to the Copyright Office or the House Subcommittee on Courts, Intellectual Property and the Internet, it said. The plaintiffs contend that of the documents that OpenAI has agreed to produce, OpenAI will produce them only after the entry of a protective order in this case, said the letter. But the plaintiffs sent OpenAI a draft protective order more than a month ago, and it has “yet to respond,” it said. According to the plaintiffs, the delay has “held hostage all document productions in the case,” it said. The plaintiffs believe that “a quick timetable for production is warranted to put an end to these delays,” it said. The plaintiff authors in the two lawsuits allege that Microsoft and OpenAI copied their protected works on a mass scale without consent or compensation, then fed those copyrighted works into their large language models to train their AI algorithms (see 2401120005).