The legal skirmish between Apple and OpenAI has taken yet another turn. Only days after OpenAI charged Apple with improperly adding new arguments to the trade secrets dispute, the iPhone maker has answered in kind, contending that it is OpenAI and its co-defendants who have strayed beyond the boundaries the court permits.
The lawsuit was brought by Apple against two former employees, Chang Liu and Tang Tan, together with OpenAI and io Products, on allegations that they misappropriated trade secrets. At the heart of the case lies a request for a preliminary injunction.
In essence, Apple is asking the court to bar its proprietary secrets from seeping any further into OpenAI’s hardware development while the litigation runs its course.
Over successive rounds of legal sparring on that request, Apple filed a reply brief supported by five expert declarations. The defendants swiftly objected, arguing that Apple had smuggled in new evidence, and asked the court to strike portions of the material. Alongside that objection, OpenAI and the other defendants submitted several documents of their own to rebut Apple’s claims.
Apple has now responded to that objection. Its argument is that the defendants did not confine themselves to challenging the supposedly new evidence; instead, they introduced a fresh set of arguments and testimony of their own.
According to Apple, Local Rule 7-3(d)(1) permits a party to object to new evidence raised in a reply brief, but it also cautions that such an objection may not include further argument on the motion. The defendants, Apple says, disregarded that restraint and used the objection to relitigate the merits of the injunction request itself.
By way of illustration, Apple points to the defendants’ attack on the expert Dr. Runge, questioning whether the analysis had a proper foundation, whether it adequately addressed contrary evidence, and whether it showed that some of Apple’s information had not been made public. Apple insists that such arguments are not evidentiary objections at all, since a complaint that a position lacks support or conflicts with other testimony is simply argument.
Apple also lodged a vehement protest against a new declaration from Chang Liu, branding it the most serious overreach in the defendants’ filing. The declaration runs to eight paragraphs of fresh testimony. Apple says the defendants used it to explain why Liu wiped all the data from an iMac before returning it to Apple, to dispute the meaning of certain text messages exchanged with an Apple supplier, and to justify his use of a confidential Apple computer file.
Apple argues that this testimony violates the ban on continued argument over the motion. It adds that the objection and the declaration together stretch to nine pages, in breach of the five-page limit on the body of such an objection.
Notably, when the defendants filed Liu’s declaration, they asked the court to consider it only if the court chose to admit the portions of Apple’s evidence they were contesting. Even so, Apple maintains that, since the defendants have now volunteered new arguments and evidence, the court should review the entire record and strike nothing from Apple’s reply.
In Apple’s telling, the defendants’ additional material reads far more like a sur-reply than an evidentiary objection, yet they never sought the court’s leave to file one. Because the defendants have already answered every so-called new item in Apple’s reply, Apple urges the court to deny the motion to strike and to decide the injunction request on the full record, including the arguments and evidence in Apple’s reply as well as the new material the defendants improperly submitted.
The court has scheduled oral argument on Apple’s preliminary injunction request for October 14.
