Judge Upholds OpenAI Data Preservation Order

Issue 38

This week I’m sharing an update on the OpenAI data preservation order. This is relevant in relation to AI data governance for lawyers who use ChatGPT or another AI tool that utilizes an OpenAI model via an API, as well as lawyers who advise clients who are users of OpenAI models. 

My previous coverage of the OpenAI data preservation order can be found here:  

Issue 30: Federal magistrate judge directs OpenAI to preserve output log data regardless of users' requests or privacy laws and regulations   

Issue 34: OpenAI clarifies which users’ data is impacted by Court’s preservation order

District Court Judge Denies OpenAI’s Objection to Magistrate Judge’s Data Preservation Order 

Thirteen copyright infringement lawsuits against OpenAI have been centralized in the United States District Court for the Southern District of New York.[i] On May 13, 2025, in this centralized litigation grouping against OpenAI, Magistrate Judge Ona T. Wang issued an order directing OpenAI “to preserve and segregate all output log data that would otherwise be deleted on a going forward basis until further order of the Court (in essence, the output log data that OpenAI has been destroying), whether such data might be deleted at a user’s request or because of ‘numerous privacy laws and regulations’ that might require OpenAI to do so.”[ii]  

For more information on which users of OpenAI models are impacted by this broad data preservation order according to OpenAI, please see Issue 34. 

On May 15, 2025, OpenAI filed a request for reconsideration of the Magistrate Judge’s order, and asked the Court to vacate the order or stay the order pending a hearing on May 27^th, which the Court denied.[iii]  On June 10, 2025, OpenAI also filed a letter to Magistrate Judge Ona T. Wang requesting modification of the preservation order.[iv]  

Additionally, on June 3, 2025, OpenAI filed an objection to Magistrate Judge Ona T. Wang’s preservation order.[v] The Hon. Sidney H. Stein agreed to hear oral argument on the objection.[vi]  On June 26, 2025, the Hon. Sidney H. Stein ordered as follows, “IT IS HEREBY ORDERED that for the reasons set forth on the record today, the Open AI defendants' objection to Magistrate Judge Wang's May 13, 2025, Order [Doc. No. 33] is denied.”[vii] 

Second Motion to Intervene Denied 

Additionally, as covered in Issue 34, two OpenAI users have moved to intervene in the litigation. Both motions have now been denied. The first motion to intervene, filed by a pro se on behalf of his company and its subsidiary, was denied on the basis that a corporation cannot appear pro se and must be represented by counsel.[viii]  

The second motion to intervene, filed by a pro se to challenge discovery orders in the case, as well as to file a motion to vacate the preservation order, was denied on numerous bases, including failure to comply with Fed. R. Civ. P. 24(c), because the motion was not timely made, and because the proposed intervenor did not have an interest in the action or adequately plead impairment.[ix] 

 If you know a lawyer who uses ChatGPT or another AI tool that utilizes an OpenAI model via an API, or who advise clients who are users of OpenAI models, please consider forwarding this issue of the newsletter to them. Thank you! If you are interested in receiving weekly AI news and analysis for lawyers, you can sign up for my weekly newsletter here.    

Thanks for being here. 

Jennifer Ballard 

Good Journey Consulting   

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[i] See In Re: OpenAI, Inc. Copyright Infringement Litigation, Case No. 1:25-md-03143. 

[ii] Order at 2, In Re: OpenAI, Inc., Copyright Infringement Litigation., No. 25-md-3143 (S.D.N.Y. centralized Apr. 3, 2025), document in relation to The New York Times Company v. Microsoft Corporation et al., No. 1:23-cv-11195 (S.D.N.Y. filed December 27, 2023).  

[iii] Reconsideration of Order Directing OpenAI to Preserve Output Logs at 4, In Re: OpenAI, Inc., Copyright Infringement Litigation, Order dated May 29, 2025, In Re: OpenAI, Inc., Copyright Infringement Litigation. 

[iv] Letter Requesting Modification of Order Directing OpenAI to Preserve Output Logs, In re: OpenAI, Inc. Copyright Infringement Litigation.  

[v] Notice of OpenAI Defendants’ Objection to Preservation Order, In re: OpenAI, Inc. Copyright Infringement Litigation.   

[vi] Order dated June 20, 2025, In re: OpenAI, Inc. Copyright Infringement Litigation. 

[vii] Order, In re: OpenAI, Inc. Copyright Infringement Litigation. 

[viii] Motion to Intervene by Jason Bramble, President of Spark Innovations Corp at 1, Order at 1, In re: OpenAI, Inc. Copyright Infringement Litigation. 

[ix] Motion to Intervene Under Rule 24 and Conditional Motion Under Rule 72 at 1-3, Order dated Jun. 20, 2025 at 3-7, In re: OpenAI, Inc. Copyright Infringement Litigation.