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

Issue 34 

This week I have an update on the May 13, 2025 order directing OpenAI to preserve and segregate all output log data that would otherwise be deleted. For background on the underlying dispute and the order, please see this article.  

OpenAI Answers User Questions In Relation to the Preservation Order

OpenAI has published an article on its website titled, “How we’re responding to The New York Times’ data demands in order to protect user privacy,” which addresses user questions in relation to the preservation order.[i] OpenAI’s article states that ChatGPT Free, Pro, Plus, and Team subscription users’ data is impacted by the order, as well as data of users of the OpenAI API without a zero data retention agreement.[ii] Additionally, OpenAI states that the preservation order does not impact the data of ChatGPT Enterprise or ChatGPT Edu customers, or API customers who are using zero data retention endpoints pursuant to OpenAI’s zero data retention agreement.[iii]  

If you are an OpenAI user, it would be worthwhile to review OpenAI’s article to assist in your decision-making about your data. Similarly, if you are using an AI tool that utilizes an OpenAI model via an API, you may wish to review OpenAI’s article and inquire about the AI tool company’s data retention agreement with OpenAI to understand whether your data is impacted by the order.  

OpenAI Files Objection to Preservation Order  

Additionally, on June 3, 2025, OpenAI filed an objection to Magistrate Judge Ona T. Wang’s preservation order.[iv] The OpenAI defendants have requested oral argument on their objection before the Hon. Sidney H. Stein.[v] Subsequently, on June 10, 2025, OpenAI also filed a letter to Magistrate Judge Ona T. Wang requesting modification of the preservation order.[vi] 

Attempts by OpenAI Users to Intervene in the Litigation 

Two OpenAI users have moved to intervene in the litigation. First, Jason Bramble, President of Spark Innovations Corp., moved to intervene to object to the retention and preservation of business data generated by his company and its subsidiary through the use of OpenAI’s platforms.[vii] Magistrate Judge Ona T. Wang issued an order denying the motion on the basis that a corporation cannot appear pro se, and must be represented by counsel.[viii]  

Second, Aidan Hunt filed a pro se motion to intervene to challenge discovery orders in the case, as well as a motion to vacate the preservation order.[ix]  At the time this issue of the newsletter was prepared for publication, the Court had not yet responded to these motions.  

Please consider sharing this issue of the newsletter if you know a lawyer who could benefit from reading it. You can also subscribe to this newsletter here for future updates on the OpenAI preservation order.  

Thanks for being here. 

Jennifer Ballard 

Good Journey Consulting 

P.S. If you are interested in exploring ways you can mitigate the risk of an AI-related mishap, you can sign up for my free resource, A Lawyer’s First Three Steps to Reduce AI Risk here. 

[i] Brad Lightcap, How we’re responding to The New York Times’ data demands in order to protect user privacy, OpenAI (Jun. 5, 2025), https://openai.com/index/response-to-nyt-data-demands/. 

[ii] Id. 

[iii] Id. 

[iv] Notice of OpenAI Defendants’ Objection to Preservation Order, In re: OpenAI, Inc. Copyright Infringement Litigation, No. 25-md-3145 (S.D.N.Y centralized Apr. 3, 2025).  

[v] Letter Motion for Oral Argument, In re: OpenAI, Inc. Copyright Infringement Litigation.  

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

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

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