Apple Demands Forensics, Injunction On OpenAI - Which Fired Back Hours Later

Apple went to a federal judge on Monday with a sweeping demand in its case against OpenAI - in which two former Apple employees stand accused of funneling confidential information to the ChatGPT maker.

Apple wants an order barring OpenAI, io Products, Chang Liu, and Tang Yew Tan from touching its alleged trade secrets, plus forensic imaging of OpenAI's devices, cloud storage, email, and Slack, including anything that "previously contained" Apple data. The motion landed before Judge Edward J. Davila - yes, the Theranos judge - in the Northern District of California.

OpenAI fired back Monday night in a blog post titled "Apple is getting this wrong," calling the suit "careless, aggressive and oddly personal" and publishing email chains and iMessage screenshots to back it. Both sides have now put their evidence on the table, and the two accounts are irreconcilable.

"Apple is one of the greatest companies of all time, and built a reputation for obsessing over the smallest details. This careless, aggressive and oddly personal lawsuit sadly doesn't live up to that reputation," the company posted. 

As we reported last month, Apple sued on July 10, accusing OpenAI hardware chief Tan - a 24-year Apple veteran and former VP of product design for iPhone, AirPods and Apple Watch - and former senior electrical engineer Liu of running a scheme to funnel confidential hardware information to OpenAI. The complaint says more than 400 former Apple employees now work there. It was randomly assigned to a magistrate judge before Apple declined to consent, sending it to Davila. Apple's statement then: significant evidence had emerged that OpenAI employees wrongfully took its secret information on unreleased technologies. Monday's motion is the escalation, and it is far more specific than the complaint was.

After suing, Apple sent OpenAI a letter offering to stand down on injunctive relief if OpenAI would agree to five things:

1. No future access, acquisition, use, disclosure, or solicitation of Apple trade secret information
2. Halt any ongoing access or use
3. Preserve relevant evidence
4. "Permit Apple's counsel and third-party forensic analysts to inspect, image, and analyze all devices, storage drives, and accounts in OpenAI's possession, custody, or control that contain, or previously contained, any of Apple's confidential, proprietary, or trade secret information"
5. "Search any OpenAI network location where any Apple proprietary and trade secret information may have been transferred or stored"

Per the motion, "OpenAI initially responded that it would be willing to agree to the first three items." Then, over more than two weeks of negotiations between the companies and their outside counsel, talks on items four and five went nowhere: "they could not reach agreement."

Translation: OpenAI would promise not to use Apple's secrets. It would not let Apple's lawyers image its machines. So Apple is now asking a federal judge to order it.

Apple's four-front theory

The motion accuses OpenAI of "misappropriation at the organizational level" running on four tracks - Apple's words:

"(1) using proprietary Apple information to acquire and use still more trade secrets, including from Apple's trusted business partners; (2) exfiltrating Apple's trade secret information directly (through conduct like Mr. Liu's); (3) maintaining ongoing information pipelines from contacts still employed at Apple; and (4) using Apple proprietary information during the recruiting processes to try to extract still more trade secrets from job candidates."

So - Apple is claiming they've got moles in their organization.  

The new evidence in Apple's filing

Beyond what was in the July complaint, the motion alleges:

• One of the eleven additional ex-Apple employees now at OpenAI, "in the hours before his interview with OpenAI, began screenshotting and downloading information related to the highly confidential Apple project about which Mr. Tan inquired during his interview."
• Liu allegedly told Yu-Ting "Alyssa" Peng, still at Apple, that another former Apple employee "fumbled" his answers to Tan's questions about the unannounced product - and helped her prep for her own OpenAI interview on the same subject matter.
• Tan allegedly circulated Apple's own manager exit checklist to a departing employee, writing: "One thing for sure is that Apple will probably walk you out (wasn't like that a year ago but they have been clamping down recently .... Attached below is the manager's checklist so this will give you time to plan."
• OpenAI has allegedly been "circulating to job candidates an Apple document that describes Apple's security processes when an employee leaves the company." Apple's gloss: "OpenAI's goal here is plain - to help departing Apple employees avoid the checks and protections of Apple's exit processes."
• One interviewee was reportedly "surprised" that others brought Apple parts to OpenAI interviews because he "didn't even know we could take those from the office."

On the supplier front, Apple says the Corporate Defendants "directed a trusted Apple partner" - name blacked out in the public version - to run Apple's proprietary metal-finishing process for them, and that they "knew this too because they were involved in this partnership while at Apple." Apple put its own Surface Finishing Manager, Jackie Hughes, under oath on that one, alongside eight other declarants - including James Pooley, who wrote the treatise on trade secrets law, and forensic investigator Daniel Roffman, whose exhibits supply most of the quoted messages.

One wording note: coverage of the July complaint centered on Liu allegedly exploiting a rare authentication bug - a zero-day, per TechCrunch - to reach Apple's network after leaving. This motion frames the five download sessions as exploiting "residual access to Apple's third-party cloud storage." Same alleged outcome either way: thousands of pages out the door between his January exit and April.