WEBVTT

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accompanying tweet, and he said, well,
that was

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the trigger for the statute of
limitations. I expect you recall that from

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the conversation this morning. And I
think, I think to that, we have to

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respectfully say nonsense, members of the
jury. You've seen the evidence that Musk

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was on notice long before twenty
twenty-two. For years,

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um, this wasn't Musk finding out about
what OpenAI was doing.

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This was when OpenAI had suddenly become
very successful as ChatGPT was launched.

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As Mr. Musk realized he'd made a big
mistake, that he'd gotten the whole thing

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wrong, then he shows up. But there was--
it wasn't new information.

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What was new is his realization that he'd
gotten it wrong. But this was how can they

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look to the twenty twenty-three

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event as the triggering event for their
statute of limitations when this happened

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in twenty twenty-two? It doesn't make any
sense. Fact is, he was on notice from

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twenty seventeen, twenty nineteen, twenty
twenty.

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And as to the,

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as to the twenty twenty-three as the date
of the claim,

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um,

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you, you, you heard, I'm sure, members of
the jury, that Mr. Mollo said that the

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twenty nineteen and twenty twenty-one
Microsoft deals were not breaches. The

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twenty twenty-three was a breach.

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Um, you heard that the breach happened in
twenty twenty-three, even though there's

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no conceptual difference between the
three,

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the three investments.

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Have in mind,

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the things Musk is complaining about,
those happened in twenty twenty-three, and

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you heard a lot about Brockman getting
equity. That happened in twenty nineteen.

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You heard about Microsoft getting its
license. That was in twenty nineteen.

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Uh, all-- You heard about the caps being
so important. The twenty twenty-three deal

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was capped. The pieces of this puzzle
don't fit together, members of the jury.

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Uh, let me speak briefly about the two
remaining issues, which you'll probably

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get to last in the order of operations
when you all go back into the, into the

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jury room. One is called latches. Latches
is a cousin of the statute of limitations.

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It says if you wait too long, you can't
bring a claim, and there has to be a

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showing of prejudice. The prejudice to our
clients here is, um, obvious. OpenAI has

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relied for years

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on the structure that it put in place
first in twenty nineteen and then in, in

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twenty twenty-one. It relied on that for
years. It accepted investment for years.

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It paid people for years. It entered into
contracts for years.

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You can't put someone in the position

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of waiting for years to sue and upending
everything they've been doing. If you find

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that there was notice here and that there
was prejudice, which there is,

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um, you need to find latches, and
respectfully, we think you should.

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Finally, unclean hands is the last
defense. It's sort of at the tail end of

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the argument, but it's kind of a nice
summary of the trouble here. Unclean hands

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is an old-fashioned legal defense. It
applies when the person who brings the

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claim here, Mr. Musk,

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has engaged in unconscionables, a legal
word, but bad conduct related to the

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claims. If you don't act-- If you act
badly, you don't get relief, and that's

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what we have here. Mr. Musk's pursuit of
these claims is the definition of

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unconscionable. Mr. Musk kept tabs on
OpenAI through a close associate whose

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relationship was concealed. He repeatedly
poached and tried to poach OpenAI

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employees. He promised to fund the
organization to a tune of billion dollars

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and then used his funding promise as
leverage to get control. And then only

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after OpenAI succeeded against Musk's
prediction, only then did he start

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threatening litigation. Only after he was
launching a competitor did he

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threat-threaten litigation. And then
finally, after bringing suit, Musk

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coordinated a campaign with other folks in
the tech sector to organize, um, an

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OpenAI investigation. This

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a, um, back and forth with,

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with Mr. Zuckerberg.

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And then he tried to generate leverage by
lobbying in a bid

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to buy OpenAI, completely inconsistent
with the claim that this was going to be a

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not-for-profit. xAI was gonna buy it and
make it a totally for-profit, zero

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mission-driven, closed source
e-e-enterprise. None of all this is in

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good faith.

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I'm gonna close quickly. I want to say a
word about credibility because you've

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heard a lot about it. Um,

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Mr. Musk isn't here today.

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Um,

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m-my clients are. You see Greg Brockman,

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Sam Altman. Next to them is Josh Akiam,
who is the corporate representative for

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OpenAI. These are, these are my clients,
and they're here because they care a lot

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about this. They care a lot about it. Mr.
Musk isn't here. Mr. Musk came to this

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court for exactly one witness,

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Elon Musk,

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and he hasn't been seen since. Now he's in
parts unknown. Mr. Musk's counsel

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is happy to take shots at other people's
credibility, but Mr. Musk claims

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he doesn't remember things that are
inconvenient. He claims to remember things

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that he used to not remember when that's
con-convenient. The key witness in this

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case is Elon Musk, make no mistake, and he
has had the most selective amnesia one

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can imagine. He's the witness who claims
to have heard promises that no one else

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heard. He heard promises that the other
people involved in the discussions,

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including the people who worked for him,

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never heard. He claims to have heard
things high atop a windy hill where no one

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else can hear.

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No one else heard them.

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Elon Musk heard them.

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Consider whether that's credible. Consider
whether a man as sophisticated and as

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lawyer as Elon Musk would make donations
of this magnitude with a significant

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condition that he just never bothered to
write down or tell anyone. It's not

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credible at all, Your Honor, members of
the jury, and I'll tell you, that's the

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relevant credibility question for this
case. Members of the jury, I want to say

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thank you. You've been very patient with
me. We've walked through, by our count,

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the various independent grounds on which
Mr. Musk claims fail.

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He's come to this court

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claiming that promises were made to him
and broken, but the pieces of the puzzle

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don't fit together that way. And that's
not the reason we're here. The reason

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we're here is that Mr. Musk didn't get his
way at OpenAI. We're here because he

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turned outTo have been very vocal about
OpenAI. We're here because Mr. Musk is now

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a competitor to OpenAI and has every
motive to attack it. And you'll recall

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that motive is a primary basis to
evaluate,

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um, cre-credibility per the judge. We
don't have another opportunity to address

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you, members of the jury.

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Um,

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Mr. Molla will stand up, and he'll argue
his case one last time.

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Um,

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I wanna say before sitting down that I
feel like I'm gonna miss you all. It's,

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um, it's been a pretty intense number of
weeks, and we really do appreciate your

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patience.

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Um, and I ask of you three things.

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Um, keep the evidence in mind, members of
the jury.

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Keep in mind the judge's instruction.
Judge Gonzales Rogers has lit a clear

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pathway for you. We urge you to follow
that pathway. Follow it carefully, follow

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it faithfully, and consider your common
sense about what you know goes on in the

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world. And if you do those things, we know
you're gonna bring a verdict for the

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defense. I really do appreciate it. Thank
you.

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Okay.

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Um, so I'm gonna stand and stretch as, uh,
Mr. Cohen, uh, gets ready for the,

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his closing.

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After that, we'll take a short break, and
then we'll get the rebuttal. So it is,

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it's going to be longer

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than 3:00.

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Anybody need to make a phone call?

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It's gonna be longer than 3:00.

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Does anybody need to go make a phone call?

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See.

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-Yeah. Yeah, we'll quite visible.
-Okay.

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Be good.

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Yeah.

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Seems to be very good.

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Okay.

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All right, so we're gonna take a short
break. I think someone... I think, uh...

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Go ahead. You need to make a phone call?

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Go ahead.

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Go ahead. Okay.

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It's

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gonna

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be long.

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See what I told you all about
uncomfortable silence?

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[laughs]

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Okay.

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All right, let's get going.

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Okay, we're back on the record. Mr. Cohen,
you may proceed.

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Uh, thank you, Your Honor.

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Members of the jury,

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I appreciate this one last chance to speak
with you.

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I just wanna thank you in advance on
behalf of myself,

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my team, Ms. Patel, Mr. Gerada,

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and our client, Becky Francis from
Microsoft, who's been sitting in the

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courtroom every day along with you.

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I told you in my opening statement that
you wouldn't hear very much from

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Microsoft, and over the past three weeks,
I think you haven'tAnd

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I think you all know why that is.

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Microsoft wasn't involved in the key
events

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that are at the center of this case.
Microsoft only became involved

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beginning in twenty-nineteen

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after Mr. Musk left, and OpenAI needed
massive amounts of capital and compute.

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And when it did get involved,

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I told you that the evidence would show
that Microsoft was a responsible partner

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at every step.

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You've now heard that Microsoft did its
diligence before partnering,

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and that the partnership helped OpenAI
obtain the capital and the compute that it

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needed to advance its research.

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And you also heard

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how that partnership helped Microsoft
better compete with Google.

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And I told you that the evidence would
show

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that Microsoft never learned anything

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about specific conditions on Mr. Musk's
donations to OpenAI.

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And now you've heard why that is.

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There were no specific conditions.

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Nobody knew about those conditions.

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Nobody told Microsoft about those
conditions,

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and Microsoft never found a single page of
a single document that referenced any

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such conditions.

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But it's even worse than that because not
even Mr. Mollo and Mr. Musk

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can keep these specific purposes straight.

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They said the purposes were nonprofit and
open source.

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But then you heard

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that

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a for-profit with caps, well, that was
okay, but

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caps couldn't be too high. They said a
nonprofit with a for-profit that is an

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adjunct,

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well, that's okay if it was a subsidiary
of the nonprofit. But if it's not an

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adjunct, that's not okay. They said three
billion dollars, that was okay, but

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ten billion dollars was not.

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They said a lot of things, but if they
can't keep it straight,

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how could Microsoft possibly know,

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actually know, as the judge has instructed
you, about the specific charitable

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purposes of Mr. Musk's donations?

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So I'm gonna spend the next forty minutes
or so showing you how,

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in the judge's words, these pieces fit
together and why Mr. Musk can't prove his

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one claim against Microsoft.

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So let me start with a roadmap.

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The court explained to you that there is
only one claim against Microsoft for

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aiding and abetting a breach of charitable
trust.

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But the court also explained to you that
if you find that Musk did not prove that

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Altman, Brockman, or the OpenAI Foundation

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committed a breach of charitable trust,

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you must find that Microsoft is not liable
for aiding and abetting. In other words,

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you have to find that

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Musk created a charitable trust and that
it was breached to even consider a claim

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against Microsoft. If the answer to either
of those questions is no,

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then there is no claim against Microsoft.

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And as you've just heard from OpenAI,

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Mr. Musk cannot prove with evidence in
this case, bearing the burden,

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that there was a charitable trust because
there were no specific conditions on his

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donations and no breach.

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And that means you don't even reach the
claim against Microsoft.

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Now, every one of these witnesses said
that they didn't know about any conditions

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or restrictions

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or specific charitable purposes, it's the
same thing, for Musk's donations, or they

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don't recall them at all.

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And that includes Mr. Birchall,

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the person who helped Mr. Musk make these
donations. It includes Mr. Teller, his

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right-hand man, and Ms. Zillis, who helped
Musk communicate

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with OpenAI.

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00:16:32.524 --> 00:16:33.664
No one knew.

cue-218
00:16:34.944 --> 00:16:37.964
And no one knew because there is no
specific charitable purpose.

cue-219
00:16:38.584 --> 00:16:42.244
And if there's no specific charitable
purpose, there is no charitable trust,

cue-220
00:16:42.244 --> 00:16:46.444
which means there is no claim against
Microsoft. And that, that should be the

cue-221
00:16:46.444 --> 00:16:46.924
end of it.

cue-222
00:16:48.364 --> 00:16:52.764
But let me also walk you step by step

cue-223
00:16:53.484 --> 00:16:57.984
and show you why Mr. Musk can't prove his
aiding and abetting claim against

cue-224
00:16:57.984 --> 00:16:59.104
Microsoft either.

cue-225
00:17:00.284 --> 00:17:03.004
So the first thing he has to show is that
Microsoft

cue-226
00:17:03.644 --> 00:17:08.444
actually knew of Musk's specific
charitable purpose, and he can't do that.

cue-227
00:17:09.764 --> 00:17:13.224
But let me start with the burden of proof.
You heard the judge explain it to you,

cue-228
00:17:13.224 --> 00:17:14.124
and it's important

cue-229
00:17:14.944 --> 00:17:16.344
because on this claim,

cue-230
00:17:17.204 --> 00:17:21.123
Mr. Musk has the burden. On the claim
against Microsoft, Mr. Musk has the

cue-231
00:17:21.124 --> 00:17:23.884
burden. It means he has to show you the
evidence.

cue-232
00:17:25.424 --> 00:17:31.424
For each step, he has to show you enough
evidence to persuade you that his story is

cue-233
00:17:31.424 --> 00:17:33.144
more likely true than not.

cue-234
00:17:34.384 --> 00:17:39.624
And on that first step, what does he need
to prove? He needs to prove that Microsoft

cue-235
00:17:39.624 --> 00:17:45.904
had actual knowledge that Musk made his
donations for specific charitable

cue-236
00:17:45.904 --> 00:17:48.284
purposes, that Microsoft actually knew,

cue-237
00:17:49.464 --> 00:17:52.364
actually knew why Musk made those
donations to OpenAI.

cue-238
00:17:52.984 --> 00:17:55.624
Not that Musk made donations to OpenAI,

cue-239
00:17:56.424 --> 00:18:01.464
not that Musk was a donor, but that he
made the donations to do something

cue-240
00:18:01.464 --> 00:18:02.224
specific.

cue-241
00:18:03.264 --> 00:18:08.294
And ask yourself, did you see any evidence
that Microsoft actually knew that?

cue-242
00:18:11.544 --> 00:18:13.304
This is what else the judge told you.

cue-243
00:18:14.264 --> 00:18:18.604
A vague suspicion of wrongdoing or a hunch
is not actual knowledge, and that's

cue-244
00:18:18.604 --> 00:18:19.164
important.

cue-245
00:18:20.424 --> 00:18:23.648
It's a high barShe also told you

cue-246
00:18:24.708 --> 00:18:28.228
should have known is not enough. Should
have known is not enough.

cue-247
00:18:29.908 --> 00:18:35.048
Mr. Musk has a high standard here, and let
me show you why he doesn't even come

cue-248
00:18:35.048 --> 00:18:35.528
close.

cue-249
00:18:38.148 --> 00:18:43.028
So you recall that Microsoft was not there
at the founding of OpenAI. It was not

cue-250
00:18:43.028 --> 00:18:46.108
there when Mr. Musk made his donations.

cue-251
00:18:46.888 --> 00:18:50.988
It was not there when the founders
discussed the formation of a for-profit.

cue-252
00:18:51.828 --> 00:18:54.608
It was not there when Micro-- when Mr.
Musk left.

cue-253
00:18:55.908 --> 00:19:00.448
It was not involved in OpenAI creating the
for-profit subsidiary, and it was not

cue-254
00:19:00.448 --> 00:19:07.188
involved in the transfer of employees and
IP to the for-profit subsidiary. And why

cue-255
00:19:07.188 --> 00:19:07.828
does that matter?

cue-256
00:19:08.868 --> 00:19:10.708
Because if Microsoft wasn't there,

cue-257
00:19:11.848 --> 00:19:16.428
it wouldn't have any first-hand knowledge
of any specific charitable purpose for Mr.

cue-258
00:19:16.428 --> 00:19:17.908
Musk's donations.

cue-259
00:19:19.088 --> 00:19:23.428
And that means that Microsoft would only
know if someone told Microsoft,

cue-260
00:19:24.328 --> 00:19:26.968
somebody told them about the specific
charitable purposes.

cue-261
00:19:27.727 --> 00:19:29.688
But the evidence is that no one did.

cue-262
00:19:32.068 --> 00:19:35.208
In this courtroom, you heard us ask the
same question

cue-263
00:19:35.888 --> 00:19:41.608
about conditions, about restrictions over
and over and over again, and every time

cue-264
00:19:41.648 --> 00:19:47.028
the answer was the same. Sam Altman never
told Microsoft. Greg Brockman never told

cue-265
00:19:47.028 --> 00:19:48.468
Microsoft. Ilya Sutskever

cue-266
00:19:49.248 --> 00:19:53.708
never told Microsoft. Mira Murati, Tasha
McCauley never told Microsoft.

cue-267
00:19:54.628 --> 00:19:56.128
Mr. Musk's associates,

cue-268
00:19:57.348 --> 00:20:00.068
Siobhan Sylas didn't recall telling
Microsoft.

cue-269
00:20:01.228 --> 00:20:02.288
Same with Jared Birchall.

cue-270
00:20:03.508 --> 00:20:04.808
Same with Sam Teller.

cue-271
00:20:05.808 --> 00:20:08.908
No one told Microsoft because there was
nothing to tell.

cue-272
00:20:10.188 --> 00:20:13.268
And Mr. Musk never told Microsoft either.

cue-273
00:20:14.148 --> 00:20:17.478
You heard Mr. Nadella testify. Mr. Musk
had his phone number.

cue-274
00:20:18.108 --> 00:20:23.608
He never told Microsoft about any specific
charitable purposes for his donations.

cue-275
00:20:26.488 --> 00:20:31.428
So how could Microsoft have known about
specific charitable purposes if it wasn't

cue-276
00:20:31.428 --> 00:20:31.728
there

cue-277
00:20:32.628 --> 00:20:33.548
and it wasn't told?

cue-278
00:20:34.588 --> 00:20:36.408
Well, maybe if somebody had written it
down.

cue-279
00:20:39.468 --> 00:20:44.908
But Microsoft confirmed for itself through
its due diligence that there was nothing

cue-280
00:20:44.908 --> 00:20:47.468
that would stop OpenAI from partnership.

cue-281
00:20:48.688 --> 00:20:51.928
You heard from Mr. Scott and from Mr.
Wetter just yesterday.

cue-282
00:20:53.148 --> 00:20:58.548
Microsoft spent more than a year from
first learning about OpenAI's plans for a

cue-283
00:20:58.548 --> 00:21:03.348
commercial venture before it got
comfortable recommending a partnership to

cue-284
00:21:03.348 --> 00:21:04.188
its own board.

cue-285
00:21:05.208 --> 00:21:08.628
And then it spent another three months
before it was finalized.

cue-286
00:21:09.348 --> 00:21:12.288
Even Mr. Mullow said that Microsoft did
its diligence,

cue-287
00:21:13.528 --> 00:21:18.888
and Microsoft never found a single page
referencing any conditions on Mr. Musk's

cue-288
00:21:18.888 --> 00:21:23.288
donations, you heard the testimony, let
alone specific charitable purposes that

cue-289
00:21:23.288 --> 00:21:24.868
would prevent it from partnering. Now,

cue-290
00:21:26.288 --> 00:21:30.868
maybe the diligence testimony wasn't the
most interesting testimony at this trial,

cue-291
00:21:30.868 --> 00:21:35.368
but I hope you realize how seriously
Microsoft took the due diligence.

cue-292
00:21:37.288 --> 00:21:41.927
So this timeline really shows just how
deliberate and responsible Microsoft was

cue-293
00:21:41.928 --> 00:21:42.808
before partnering.

cue-294
00:21:43.448 --> 00:21:46.587
You recall Mr. Nadella testified hearing
from Mr. Altman

cue-295
00:21:47.408 --> 00:21:50.928
about a proposal in February of
twenty-eight-- twenty eighteen.

cue-296
00:21:51.868 --> 00:21:56.068
Mr. Scott wrote his email raising
questions about it in March of twenty

cue-297
00:21:56.068 --> 00:21:56.528
eighteen

cue-298
00:21:57.188 --> 00:22:01.328
and then began gathering information, had
conversations with Satya, had

cue-299
00:22:01.328 --> 00:22:02.908
conversations with Reid Hoffman,

cue-300
00:22:03.968 --> 00:22:06.028
did a site visit, learned more.

cue-301
00:22:08.368 --> 00:22:13.628
And then in November twenty eighteen, he
started to get answers. He learned that

cue-302
00:22:13.628 --> 00:22:18.848
OpenAI had created a for-profit subsidiary
that was controlled by the nonprofit

cue-303
00:22:19.288 --> 00:22:22.188
and that they had investors. That was
important.

cue-304
00:22:24.488 --> 00:22:29.948
Every step of the way, at no step of the
way did he learn anything about Mr. Musk,

cue-305
00:22:29.948 --> 00:22:34.708
about Mr. Musk's donations, or about any
specific charitable purpose.

cue-306
00:22:36.288 --> 00:22:40.037
And then finally, yesterday, you heard
from Mr. Wetter about Microsoft's

cue-307
00:22:40.037 --> 00:22:44.828
comprehensive formal due diligence
process, and that showed nothing about Mr.

cue-308
00:22:44.828 --> 00:22:47.308
Musk's specific charitable purpose.

cue-309
00:22:49.528 --> 00:22:54.368
So Microsoft only partnered after more
than a year of consideration, and in that

cue-310
00:22:54.368 --> 00:22:58.618
year never found anything showing that
Musk made his donations for specific

cue-311
00:22:58.618 --> 00:23:02.368
charitable purposes because there was
nothing to find.

cue-312
00:23:03.748 --> 00:23:05.378
And because there was nothing to find,

cue-313
00:23:06.148 --> 00:23:07.428
as Mr. Wetter explained,

cue-314
00:23:08.188 --> 00:23:11.448
OpenAI, right in the contracts themselves,

cue-315
00:23:12.108 --> 00:23:13.928
represented and warranted

cue-316
00:23:15.188 --> 00:23:17.168
that the partnership was authorized,

cue-317
00:23:17.788 --> 00:23:22.668
that it was authorized by the nonprofit
board, and that it wouldn't violate any

cue-318
00:23:22.668 --> 00:23:25.248
third-party rights. And who is the third
party?

cue-319
00:23:26.028 --> 00:23:28.848
It could be any donor, including Mr. Musk,
and of course,

cue-320
00:23:29.488 --> 00:23:31.108
no other donor has ever sued.

cue-321
00:23:32.528 --> 00:23:36.248
So OpenAI made this representation in
twenty nineteen,

cue-322
00:23:37.168 --> 00:23:38.308
and it did it again

cue-323
00:23:39.028 --> 00:23:41.568
and again in every agreement after that.

cue-324
00:23:44.788 --> 00:23:45.488
And finally,

cue-325
00:23:46.968 --> 00:23:50.168
these three witnesses, Mr. Musk's
witnesses,

cue-326
00:23:50.788 --> 00:23:52.828
who are laser-focused on the mission,

cue-327
00:23:53.528 --> 00:23:58.748
they approved the partnership on behalf of
OpenAI's nonprofit board

cue-328
00:23:58.808 --> 00:24:02.028
because they all thought it was in the
best interest

cue-329
00:24:02.768 --> 00:24:03.568
of OpenAI.

cue-330
00:24:04.908 --> 00:24:08.348
Did you hear Mr. Mullow mention even once
this fact?

cue-331
00:24:11.648 --> 00:24:15.788
Everything Microsoft was told, everything
it reviewed, and every assurance by

cue-332
00:24:15.788 --> 00:24:22.328
OpenAI, especially the approval of the
OpenAI nonprofit board, this board

cue-333
00:24:23.308 --> 00:24:28.548
confirmed there were no specific
charitable purposes on Mr. Musk's

cue-334
00:24:28.548 --> 00:24:34.204
donations.So on this first step of proving
Microsoft's actual knowledge, there,

cue-335
00:24:34.204 --> 00:24:39.084
there is no evidence. There's no evidence
that Microsoft had actual knowledge that

cue-336
00:24:39.084 --> 00:24:45.244
Mr. Musk made his donations for specific
charitable purposes, and indeed, there is

cue-337
00:24:45.244 --> 00:24:47.604
overwhelming evidence showing the
opposite.

cue-338
00:24:49.284 --> 00:24:50.624
So what does Mr.

cue-339
00:24:51.384 --> 00:24:52.564
Mullow say about this?

cue-340
00:24:53.564 --> 00:24:55.984
Uh, to-today he said very little, frankly.

cue-341
00:24:57.164 --> 00:25:02.163
But I wanna take you back to something he
said at the very start of this case in his

cue-342
00:25:02.163 --> 00:25:03.314
opening statement,

cue-343
00:25:03.964 --> 00:25:06.394
because I think it tells you everything
you need to know.

cue-344
00:25:07.884 --> 00:25:09.444
You remember in his opening,

cue-345
00:25:10.164 --> 00:25:14.224
Mr. Mullow told you to write down three
questions. This was question number three.

cue-346
00:25:14.224 --> 00:25:16.144
He asked you

cue-347
00:25:17.124 --> 00:25:22.144
to write down, did Microsoft know about
the charitable mission?

cue-348
00:25:24.704 --> 00:25:27.824
But that's not enough. That is the wrong
question.

cue-349
00:25:28.684 --> 00:25:32.784
The judge has now instructed you on the
law, and she has given you the right

cue-350
00:25:32.784 --> 00:25:33.244
question.

cue-351
00:25:34.124 --> 00:25:38.804
The right question is that Microsoft had
actual knowledge that Musk made his

cue-352
00:25:38.804 --> 00:25:42.094
donation for a specific charitable
purpose,

cue-353
00:25:42.884 --> 00:25:45.784
and that difference is so important.

cue-354
00:25:47.604 --> 00:25:49.264
So why do you think Mr. Mullow did that?

cue-355
00:25:50.864 --> 00:25:54.444
'Cause he doesn't have any evidence that
Microsoft knew anything

cue-356
00:25:55.064 --> 00:26:00.364
about a specific charitable purpose. He
only has evidence that Microsoft knew

cue-357
00:26:00.364 --> 00:26:02.094
about the mission of the nonprofit,

cue-358
00:26:03.024 --> 00:26:04.583
but that's not enough.

cue-359
00:26:07.764 --> 00:26:12.944
Remember in the instructions there was an
example involving a hospital about what a

cue-360
00:26:12.944 --> 00:26:14.844
specific charitable purpose is.

cue-361
00:26:15.644 --> 00:26:19.984
Well, first of all, what it's not, it's
not a gift to the hospital generally.

cue-362
00:26:21.764 --> 00:26:27.424
It is a gift to a hospital to support
medical research on a particular disease.

cue-363
00:26:28.464 --> 00:26:30.484
So what is it that Microsoft knew?

cue-364
00:26:31.964 --> 00:26:36.444
Microsoft knew that OpenAI was a
nonprofit. It knew that Musk gave to

cue-365
00:26:36.444 --> 00:26:37.064
OpenAI.

cue-366
00:26:37.704 --> 00:26:42.404
Microsoft knew that OpenAI had a
charitable mission.

cue-367
00:26:43.044 --> 00:26:48.164
But that's very different from knowing
that Mr. Musk made his donations for

cue-368
00:26:48.164 --> 00:26:50.684
specific charitable purposes.

cue-369
00:26:52.884 --> 00:26:56.324
And what does Musk rely on to show
Microsoft's knowledge?

cue-370
00:26:57.144 --> 00:26:57.344
Well,

cue-371
00:26:58.384 --> 00:27:03.024
you've seen this document a lot. It's the
certificate of incorporation. Mr. Mullow

cue-372
00:27:03.024 --> 00:27:04.453
kept coming back to this.

cue-373
00:27:05.264 --> 00:27:08.214
Microsoft knew about the certificate of
incorporation.

cue-374
00:27:09.624 --> 00:27:14.624
Mr. Mullow read to you from today, but as
Professor Hemel explained yesterday,

cue-375
00:27:15.704 --> 00:27:17.724
it contains boilerplate language,

cue-376
00:27:18.484 --> 00:27:22.064
language that the IRS requires be included
in this document.

cue-377
00:27:23.354 --> 00:27:28.824
The certificate of incorporation is like
the general gift to a hospital. The

cue-378
00:27:28.824 --> 00:27:31.424
mission is like a general gift to the
hospital.

cue-379
00:27:35.264 --> 00:27:40.584
The certificate of incorporation does not
mention Mr. Musk or specific charitable

cue-380
00:27:40.584 --> 00:27:45.224
purposes for his donation. It does not
prove anything.

cue-381
00:27:50.444 --> 00:27:53.164
And remember, I asked Mr. Wetter the
question,

cue-382
00:27:53.984 --> 00:27:58.203
how could you look at the certificate of
incorporation and proceed with

cue-383
00:27:58.204 --> 00:27:59.944
partnership? And he explained to you,

cue-384
00:28:00.824 --> 00:28:06.384
well, the other thing we looked at is that
the nonprofit board itself created the

cue-385
00:28:06.384 --> 00:28:07.924
for-profit structure,

cue-386
00:28:08.664 --> 00:28:10.844
and it authorized the partnership.

cue-387
00:28:12.444 --> 00:28:15.763
The certificate of incorporation does not
prove anything.

cue-388
00:28:18.824 --> 00:28:21.404
Mr. Mullow also pointed to this email.

cue-389
00:28:22.314 --> 00:28:26.844
He pointed to it in his opening statement,
and he referenced it just a few hours

cue-390
00:28:26.844 --> 00:28:33.824
ago. He said, "This email from Mr. Scott
means that Microsoft knew what it was

cue-391
00:28:33.824 --> 00:28:34.124
doing."

cue-392
00:28:35.264 --> 00:28:38.424
But you heard Mr. Scott testify about this
yesterday.

cue-393
00:28:39.604 --> 00:28:40.244
He never knew,

cue-394
00:28:41.264 --> 00:28:47.563
he was never told, and he never found out
anything about Mr. Musk's donations.

cue-395
00:28:49.363 --> 00:28:55.404
Mr. Scott asked questions, he got answers,
and he did due diligence.

cue-396
00:28:56.504 --> 00:29:00.924
This email is not evidence of knowledge.
It's not evidence of anything except that

cue-397
00:29:00.924 --> 00:29:06.084
Mr. Scott had questions and that Microsoft
took time to get answers to those

cue-398
00:29:06.084 --> 00:29:10.564
questions before entering a risky and
important partnership.

cue-399
00:29:12.684 --> 00:29:16.184
Now, Mr. Musk has not proved actual
knowledge. He has not proved that

cue-400
00:29:16.184 --> 00:29:21.444
Microsoft actually knew there was a
specific charitable purpose, and on that

cue-401
00:29:21.444 --> 00:29:22.324
ground alone,

cue-402
00:29:23.044 --> 00:29:23.984
the claim fails.

cue-403
00:29:26.024 --> 00:29:28.284
And if you see the evidence as I see it,

cue-404
00:29:29.524 --> 00:29:30.964
you don't even get to the next step,

cue-405
00:29:31.724 --> 00:29:34.554
but Mr. Musk fails here as well.

cue-406
00:29:36.084 --> 00:29:41.104
He also has the burden to show you that
there is evidence that proves that

cue-407
00:29:41.104 --> 00:29:45.864
Microsoft gave substantial assistance in
breaching the charitable trust.

cue-408
00:29:47.164 --> 00:29:49.204
Here's what the court instructed you.

cue-409
00:29:49.924 --> 00:29:54.444
Microsoft gave substantial assistance to
Altman Brockman or the OpenAI Foundation

cue-410
00:29:55.284 --> 00:29:58.004
in breaching the charitable trust created
by Musk.

cue-411
00:29:59.324 --> 00:30:01.044
But the evidence does not show that

cue-412
00:30:02.524 --> 00:30:05.424
for two reas-- for two reasons, excuse me.
First,

cue-413
00:30:06.644 --> 00:30:10.644
Microsoft wasn't involved in the creation
of the for-profit and the transfer of the

cue-414
00:30:10.644 --> 00:30:14.324
assets, and it can't substantially assist
what it wasn't involved in.

cue-415
00:30:15.544 --> 00:30:16.184
And second,

cue-416
00:30:17.624 --> 00:30:21.864
partnering with OpenAI and providing it
with billions in cash and compute

cue-417
00:30:22.764 --> 00:30:25.564
was in the best interest of OpenAI

cue-418
00:30:26.584 --> 00:30:33.523
as the nonprofit board members themselves
confirmed at trialEvery step of the

cue-419
00:30:33.524 --> 00:30:38.104
way, from the launch of the partnership in
twenty nineteen to the ten billion dollar

cue-420
00:30:38.104 --> 00:30:43.804
investment in twenty twenty-three,
OpenAI's nonprofit board, as well as many

cue-421
00:30:43.804 --> 00:30:48.244
other witnesses who are here, Ms. Moradi,
Mr. Sutskever, Brett Taylor, Greg

cue-422
00:30:48.244 --> 00:30:53.344
Brockman, Sam Altman, they all confirmed
how essential the partnership was for

cue-423
00:30:53.344 --> 00:30:53.944
OpenAI.

cue-424
00:30:56.964 --> 00:30:58.364
So we already looked at this slide,

cue-425
00:30:59.204 --> 00:31:03.764
and Microsoft wasn't involved in creating
the for-profit subsidiary. You heard the

cue-426
00:31:03.764 --> 00:31:08.124
testimony on that. It wasn't involved in
the transfer of the assets. It can't

cue-427
00:31:08.124 --> 00:31:11.064
substantially assist what it wasn't
involved in.

cue-428
00:31:12.764 --> 00:31:14.804
So what is it that Microsoft did?

cue-429
00:31:15.564 --> 00:31:17.944
What was the purpose and effect of the
partnership?

cue-430
00:31:18.944 --> 00:31:19.104
Well,

cue-431
00:31:20.004 --> 00:31:23.744
you've heard about this. Microsoft was
providing the resources and the compute

cue-432
00:31:23.744 --> 00:31:24.844
that OpenAI needed,

cue-433
00:31:25.504 --> 00:31:28.324
and without which it likely would not have
survived,

cue-434
00:31:29.284 --> 00:31:33.943
and it was allowing Microsoft itself to
better compete against other AI platform

cue-435
00:31:33.944 --> 00:31:35.324
companies like Google.

cue-436
00:31:37.964 --> 00:31:42.084
Remember when the judge asked Dr.
Sutskever about the importance of compute

cue-437
00:31:42.084 --> 00:31:44.144
and what it allowed OpenAI to do?

cue-438
00:31:47.824 --> 00:31:51.894
He was asked, "If he could quantify what
the level of technology was at the time

cue-439
00:31:51.894 --> 00:31:55.804
that you left." And he said, "If you
compare twenty eighteen to now, it's like

cue-440
00:31:55.804 --> 00:31:59.414
the difference between an ant and a cat.
It's a big difference."

cue-441
00:32:00.404 --> 00:32:04.804
And then she asked him, "And if you
received no funding?" He went on to

cue-442
00:32:04.804 --> 00:32:10.764
explain, "If there's no funding, then
there's no big computer, it was not going

cue-443
00:32:10.764 --> 00:32:11.264
to work."

cue-444
00:32:12.514 --> 00:32:15.404
That is not substantially assisting a
breach.

cue-445
00:32:16.244 --> 00:32:21.504
OpenAI needed billions. Mr. Musk himself
knew it needed billions. That's what he

cue-446
00:32:21.504 --> 00:32:24.784
said when he walked out the door in
December of twenty eighteen, that it

cue-447
00:32:24.784 --> 00:32:26.064
needed billions.

cue-448
00:32:27.564 --> 00:32:31.694
Mr. Taylor also testified that the
partnership was essential.

cue-449
00:32:32.754 --> 00:32:38.164
"I think without Microsoft's investment,
I'm not sure OpenAI would exist in its

cue-450
00:32:38.164 --> 00:32:39.524
current form today."

cue-451
00:32:40.924 --> 00:32:43.884
That is not substantially assisting a
breach.

cue-452
00:32:46.904 --> 00:32:52.244
Now, Mr. Mullow said that Microsoft did
something wrong by pushing OpenAI to

cue-453
00:32:52.244 --> 00:32:53.084
commercialize,

cue-454
00:32:54.384 --> 00:32:57.184
but that's not what the evidence shows.

cue-455
00:32:58.904 --> 00:33:02.294
Ms. Moradi testified about this. She was
asked,

cue-456
00:33:03.104 --> 00:33:07.024
"Is it fair to say that it was OpenAI's
decision to commercialize?"

cue-457
00:33:07.764 --> 00:33:12.324
"Absolutely." "And that decision to
commercialize was made independent of

cue-458
00:33:12.324 --> 00:33:13.084
Microsoft?"

cue-459
00:33:13.704 --> 00:33:19.984
"Yes." "Why did OpenAI make that change?"
And she explained, "Because it was core to

cue-460
00:33:19.984 --> 00:33:21.404
achieving the mission."

cue-461
00:33:26.584 --> 00:33:31.104
Contrary to what Mr. Mullow said to you,
OpenAI was making its own decisions

cue-462
00:33:31.784 --> 00:33:32.744
for its own reasons,

cue-463
00:33:33.364 --> 00:33:38.024
and Microsoft was not calling the shots.
Ms. Moradi was clear about that in her

cue-464
00:33:38.024 --> 00:33:38.604
testimony.

cue-465
00:33:39.884 --> 00:33:45.564
She testified just yesterday on video that
the negotiations with Microsoft were at

cue-466
00:33:45.564 --> 00:33:47.404
arm's length, is how she described it,

cue-467
00:33:48.224 --> 00:33:52.124
and that Microsoft did not have any undue
control over OpenAI.

cue-468
00:33:53.464 --> 00:33:58.144
And Microsoft never had a voting member on
OpenAI's board.

cue-469
00:34:00.444 --> 00:34:06.683
So here is the bottom line. You recall Mr.
Nadella explaining the partnership using

cue-470
00:34:06.684 --> 00:34:09.104
this demonstrative. He called them the
gets.

cue-471
00:34:09.944 --> 00:34:13.184
There were gets for OpenAI, there were
gets for Microsoft,

cue-472
00:34:14.144 --> 00:34:17.384
and that's why he called this a win-win.

cue-473
00:34:18.504 --> 00:34:22.964
He also said this was a classic case of
the pie getting larger. You remember that?

cue-474
00:34:22.964 --> 00:34:25.284
Professor Cote said that yesterday as
well.

cue-475
00:34:29.184 --> 00:34:32.844
This is another way of saying the same
thing. It's what I explained to you a few

cue-476
00:34:32.844 --> 00:34:34.594
weeks ago in my opening statement,

cue-477
00:34:35.764 --> 00:34:41.764
that with investment and compute, OpenAI
was able to produce more research and more

cue-478
00:34:41.764 --> 00:34:47.183
models and IP, which led to more
investment and compute, which led to more

cue-479
00:34:47.184 --> 00:34:49.404
models, and so it went.

cue-480
00:34:50.704 --> 00:34:53.123
And now OpenAI's technology is,

cue-481
00:34:54.364 --> 00:35:00.344
with Microsoft's partnership, available
for free and used by hundreds of millions

cue-482
00:35:00.344 --> 00:35:00.904
of people.

cue-483
00:35:02.544 --> 00:35:07.384
So the answer to Mr. Mullow's claim that
Microsoft's investments expanded over

cue-484
00:35:07.384 --> 00:35:07.774
time,

cue-485
00:35:08.784 --> 00:35:11.384
yes, it is this virtuous cycle.

cue-486
00:35:12.624 --> 00:35:16.064
And the answer to why there was more IP
over time,

cue-487
00:35:16.924 --> 00:35:19.044
it is this virtuous cycle.

cue-488
00:35:19.744 --> 00:35:25.104
And the answer to why there was more value
being created and the pie was getting

cue-489
00:35:25.104 --> 00:35:25.384
bigger,

cue-490
00:35:26.284 --> 00:35:28.404
it is this virtuous cycle.

cue-491
00:35:29.504 --> 00:35:34.244
Now, Microsoft's spending on this
partnership is upward of one hundred

cue-492
00:35:34.244 --> 00:35:35.124
billion dollars.

cue-493
00:35:36.344 --> 00:35:37.884
That is what Microsoft has done.

cue-494
00:35:38.744 --> 00:35:41.544
It is not substantially assisting a
breach.

cue-495
00:35:45.884 --> 00:35:49.444
So is it any surprise that OpenAI's
nonprofit board,

cue-496
00:35:50.504 --> 00:35:52.984
which included Ms. Zillis,

cue-497
00:35:53.824 --> 00:35:58.084
and I think Mr. Mullow described her
earlier as having no agenda,

cue-498
00:35:58.724 --> 00:36:00.044
is it any surprise

cue-499
00:36:00.784 --> 00:36:04.454
that she approved the twenty twenty-three
agreement

cue-500
00:36:05.124 --> 00:36:07.274
as well as the twenty twenty-one
agreement,

cue-501
00:36:08.044 --> 00:36:11.044
and the entire board approved the twenty
nineteen agreement?

cue-502
00:36:14.224 --> 00:36:19.084
Now, before I finish on substantial
assistance, I just wanna talk briefly

cue-503
00:36:19.084 --> 00:36:23.584
about the two professors you heard from on
nonprofit custom and practice.

cue-504
00:36:24.484 --> 00:36:27.424
Uh, you heard from Professor Hemel, uh,
yesterday.

cue-505
00:36:28.184 --> 00:36:29.724
He explained that for-profit,

cue-506
00:36:30.444 --> 00:36:33.464
nonprofit collaborationsAnd

cue-507
00:36:34.284 --> 00:36:38.984
nonprofits having for-profit affiliates,
it's very common. He also explained that

cue-508
00:36:38.984 --> 00:36:43.534
nonprofits are not limited to forming
for-profits that are only small adjuncts,

cue-509
00:36:44.364 --> 00:36:47.084
and that they commonly license their IP.

cue-510
00:36:48.984 --> 00:36:52.574
At the same time, you heard from Professor
Schizer,

cue-511
00:36:53.414 --> 00:36:57.804
uh, that in fact he had nothing relevant
to say about Microsoft. He didn't have any

cue-512
00:36:57.804 --> 00:37:02.304
opinions about whether Microsoft knew of
the conditions. He wasn't asked to opine

cue-513
00:37:02.304 --> 00:37:07.104
on that, and he wasn't offering any
opinions about Microsoft's conduct. He

cue-514
00:37:07.104 --> 00:37:11.804
wasn't offering any opinions about
for-profit companies, which of course,

cue-515
00:37:11.804 --> 00:37:12.984
Microsoft is.

cue-516
00:37:14.004 --> 00:37:16.664
And Mr. Mullow himself said today that

cue-517
00:37:17.344 --> 00:37:21.484
Microsoft wasn't subject to these same
standards that Mr. Schizer was talking

cue-518
00:37:21.484 --> 00:37:21.804
about.

cue-519
00:37:25.204 --> 00:37:28.704
So let me briefly touch on the third
element

cue-520
00:37:29.644 --> 00:37:34.204
of aiding and abetting, and that's
answering the question whether Microsoft's

cue-521
00:37:34.204 --> 00:37:39.684
conduct was a substantial factor in
causing harm to Mr. Musk.

cue-522
00:37:41.604 --> 00:37:44.764
Ask yourself, ask yourself, in the course
of this trial,

cue-523
00:37:45.644 --> 00:37:48.964
did you hear anything at all about how Mr.
Musk was harmed

cue-524
00:37:49.624 --> 00:37:50.984
by Microsoft's partnership?

cue-525
00:37:52.064 --> 00:37:55.044
Anything from Musk, from his associates,
from anyone?

cue-526
00:37:56.304 --> 00:38:02.004
This is yet another reason to find in
favor of Microsoft, because Mr. Musk has

cue-527
00:38:02.004 --> 00:38:03.684
failed to show this too.

cue-528
00:38:09.144 --> 00:38:09.434
[sighs]

cue-529
00:38:10.804 --> 00:38:13.824
Let me turn to November of twenty
twenty-three.

cue-530
00:38:16.364 --> 00:38:20.324
Mr. Mullow has spent a lot of time talking
about November twenty twenty-three today

cue-531
00:38:20.324 --> 00:38:21.204
with the witnesses.

cue-532
00:38:22.484 --> 00:38:27.544
It has nothing to do with whether
Microsoft knowingly helped to breach a

cue-533
00:38:27.544 --> 00:38:32.644
charitable trust. It has nothing to do
with Mr. Musk or his donations. It has

cue-534
00:38:32.644 --> 00:38:36.864
nothing to do with Microsoft's actual
knowledge of specific charitable purposes.

cue-535
00:38:36.864 --> 00:38:41.524
It has nothing to do with whether
Microsoft's partnership substantially

cue-536
00:38:41.524 --> 00:38:44.004
assisted a breach. It is a distraction.

cue-537
00:38:45.164 --> 00:38:47.224
But I will set the record straight.

cue-538
00:38:49.284 --> 00:38:50.284
Mr. Mullow

cue-539
00:38:51.224 --> 00:38:51.544
said

cue-540
00:38:52.364 --> 00:38:55.324
that Satya Nadella was controlling,

cue-541
00:38:56.004 --> 00:38:57.864
but that's not what Mira Murati said.

cue-542
00:38:59.144 --> 00:38:59.804
She was asked,

cue-543
00:39:00.544 --> 00:39:02.964
"Why was the board inviting Satya to meet
with it?

cue-544
00:39:04.344 --> 00:39:08.644
He was the voice of reason. It was a crazy
situation. Did the board authorize that?"

cue-545
00:39:09.274 --> 00:39:09.664
"Yes."

cue-546
00:39:14.544 --> 00:39:19.484
Mr. Mullow said that Microsoft controlled
them, and Satya Nadella said that in an

cue-547
00:39:19.484 --> 00:39:22.804
interview. Mr. Mullow likes this quote,
"Below them, above them, around them."

cue-548
00:39:23.924 --> 00:39:29.044
Uh, but you heard Mr. Nadella explain it
and explain the interview he gave in the

cue-549
00:39:29.044 --> 00:39:32.564
midst of this crisis, and it doesn't mean
what Mr. Mullow said.

cue-550
00:39:34.024 --> 00:39:39.064
Satya Nadella wanted and needed to
reassure Microsoft's customers by

cue-551
00:39:39.064 --> 00:39:41.004
confirming that Microsoft

cue-552
00:39:43.324 --> 00:39:48.034
had the supercomputers it needed to
continue to provide the services,

cue-553
00:39:48.704 --> 00:39:53.784
that it had the applications that its
customers were relying on, and it had the

cue-554
00:39:53.784 --> 00:39:56.384
APIs that the developers were writing to.

cue-555
00:39:57.204 --> 00:39:59.804
That's what Mr. Nadella meant.

cue-556
00:40:01.704 --> 00:40:02.404
And critically,

cue-557
00:40:03.224 --> 00:40:07.524
who made the final decision about who was
on the OpenAI board?

cue-558
00:40:09.034 --> 00:40:11.564
The OpenAI nonprofit board.

cue-559
00:40:12.344 --> 00:40:13.664
That's what Mr. Taylor said.

cue-560
00:40:14.484 --> 00:40:17.644
The outgoing board appointed the new
directors.

cue-561
00:40:18.324 --> 00:40:23.304
That's what Ms. McCauley said, who was
part of that board. OpenAI had the final

cue-562
00:40:23.304 --> 00:40:28.534
say on any decisions about who would be
added to the OpenAI board.

cue-563
00:40:31.504 --> 00:40:36.184
If Microsoft wanted to control OpenAI,
November twenty twenty-three would have

cue-564
00:40:36.184 --> 00:40:39.884
been the perfect opportunity to do that.
That's not what it did.

cue-565
00:40:40.604 --> 00:40:43.244
It supported OpenAI, and it helped
stabilize it.

cue-566
00:40:44.014 --> 00:40:45.724
And Microsoft didn't control it then,

cue-567
00:40:46.504 --> 00:40:52.184
and it doesn't control it now. In fact,
you heard Mr. Altman testify just this

cue-568
00:40:52.184 --> 00:40:56.764
week that OpenAI has since accepted
billions of dollars in additional

cue-569
00:40:56.764 --> 00:41:01.264
investments, investments far, far larger
than what Microsoft invested from

cue-570
00:41:01.264 --> 00:41:05.744
companies like Amazon, NVIDIA, SoftBank,
and many others.

cue-571
00:41:08.704 --> 00:41:10.754
So let me turn to the final element,

cue-572
00:41:11.464 --> 00:41:16.364
whether Mr. Musk sued on time within three
years as required by law. And I'm, I'm

cue-573
00:41:16.364 --> 00:41:20.784
talking about this last, but as you've
heard, this will be the first question you

cue-574
00:41:20.784 --> 00:41:25.524
have to answer because if Mr. Musk didn't
sue on time, and, and the evidence shows

cue-575
00:41:25.524 --> 00:41:25.924
he didn't,

cue-576
00:41:26.704 --> 00:41:29.564
then you don't even get to the other
questions.

cue-577
00:41:30.604 --> 00:41:34.314
And you've heard this referred to, this is
the statute of limitations, and it is

cue-578
00:41:34.314 --> 00:41:35.704
very important in this case.

cue-579
00:41:36.364 --> 00:41:40.484
We have statute of limitations because if
people wait too long,

cue-580
00:41:41.104 --> 00:41:46.464
it is unfair. People forget. The evidence
is lost. You saw that in Mr. Savitt's

cue-581
00:41:46.464 --> 00:41:50.984
presentation, and you remember that
because so many of Mr. Musk's witnesses

cue-582
00:41:50.984 --> 00:41:53.904
testified that they didn't recall or
didn't remember.

cue-583
00:41:54.744 --> 00:42:00.504
And it's also unfair because people rely
on things as they are. Like Microsoft has

cue-584
00:42:00.504 --> 00:42:05.294
continued to build and spend for more than
seven years of this partnership,

cue-585
00:42:06.804 --> 00:42:09.564
now spending over a hundred billion
dollars.

cue-586
00:42:10.184 --> 00:42:14.004
That's why we have statutes of
limitations, and that's why Mr. Musk

cue-587
00:42:14.004 --> 00:42:19.134
should not be permitted to sit on his
hands and only sue years later at the time

cue-588
00:42:19.134 --> 00:42:19.914
of his choosing,

cue-589
00:42:20.544 --> 00:42:25.104
at the time of his choosing after the
success of ChatGPT, after he launches a

cue-590
00:42:25.104 --> 00:42:29.924
competing AI company, and as part of a
campaign to go after his competitor.

cue-591
00:42:32.324 --> 00:42:36.184
So this is what the judge has instructed
you, and it is important to read these

cue-592
00:42:36.184 --> 00:42:40.024
instructions carefully, each piece of
them, and there are a lot of pieces to the

cue-593
00:42:40.024 --> 00:42:42.748
statute of limitations instruction.But

cue-594
00:42:43.408 --> 00:42:45.428
a simple way you can think about it is,

cue-595
00:42:46.048 --> 00:42:51.488
did Mr. Musk know or could he have found
out? Did Mr. Musk know or could he have

cue-596
00:42:51.488 --> 00:42:51.988
found out?

cue-597
00:42:53.068 --> 00:42:57.008
And if the answer to any of those
questions is yes, his claim is too late.

cue-598
00:42:58.168 --> 00:43:00.738
So the first step is whether Musk's
claims,

cue-599
00:43:02.168 --> 00:43:07.588
Musk's claimed harm occurred before
November 14th, 2021. And that's, that's

cue-600
00:43:07.588 --> 00:43:11.568
easy because he told you that it did. He
told the world that he did when he sent

cue-601
00:43:11.568 --> 00:43:16.968
that tweet on September 24th, 2020. He
said no, that OpenAI was no longer open,

cue-602
00:43:16.968 --> 00:43:22.318
it was captured by Microsoft. So no longer
open, captured by Microsoft, that was his

cue-603
00:43:22.318 --> 00:43:25.298
supposed promise, and he told the world
that it had been broken.

cue-604
00:43:26.328 --> 00:43:30.828
Now, he'll tell you he didn't know and
could not have known, but let's walk

cue-605
00:43:30.868 --> 00:43:34.908
through the evidence so you can decide for
yourself. So here's the tweet.

cue-606
00:43:35.818 --> 00:43:38.738
There's a reason why it's important. It
shows that in 2020,

cue-607
00:43:39.408 --> 00:43:41.878
he believed his supposed promise was
broken.

cue-608
00:43:42.848 --> 00:43:44.668
And you heard his testimony about it.

cue-609
00:43:46.248 --> 00:43:48.348
You were trying to say what you meant,
right?

cue-610
00:43:49.188 --> 00:43:49.428
Yeah.

cue-611
00:43:50.668 --> 00:43:54.268
You thought OpenAI was no longer an open
source, right? Yeah.

cue-612
00:43:55.348 --> 00:43:58.608
And you thought OpenAI had been captured
by Microsoft.

cue-613
00:43:59.408 --> 00:44:01.368
I said it seemed like it. Yeah, sure.

cue-614
00:44:04.128 --> 00:44:04.618
So Mr.

cue-615
00:44:05.288 --> 00:44:10.488
Mullow and Mr. Musk know how damaging this
tweet is to their case, so they've done

cue-616
00:44:10.488 --> 00:44:13.068
everything they could to distance
themselves from it.

cue-617
00:44:14.488 --> 00:44:19.218
Remember when he said that when we showed
it to you in the opening, we were tricking

cue-618
00:44:19.218 --> 00:44:19.508
you?

cue-619
00:44:20.648 --> 00:44:22.928
I think you should ask yourself, who is
tricking who?

cue-620
00:44:25.728 --> 00:44:31.468
Mr. Musk testified and said, "Oh, you
should disregard the tweet because Mr.

cue-621
00:44:31.468 --> 00:44:36.148
Altman immediately reassured me that the
promises were not broken."

cue-622
00:44:37.728 --> 00:44:38.668
Here's what Mr.

cue-623
00:44:39.328 --> 00:44:40.368
Musk testified.

cue-624
00:44:41.468 --> 00:44:46.788
Sam Altman immediately reached out to
reassure me that OpenAI was on its-- was

cue-625
00:44:46.788 --> 00:44:49.788
staying on mission as a nonprofit.

cue-626
00:44:50.508 --> 00:44:55.428
He was reassuring me that OpenAI, the
foundation, retains autonomy to release

cue-627
00:44:55.428 --> 00:44:59.568
work, and that they would continue to
provide access to everyone, not just

cue-628
00:44:59.568 --> 00:45:04.747
Microsoft. So he was reassuring me that
OpenAI, the nonprofit, was staying on

cue-629
00:45:04.748 --> 00:45:05.148
mission.

cue-630
00:45:07.208 --> 00:45:09.588
But that's just not credible.

cue-631
00:45:10.588 --> 00:45:13.308
Let's look at what Mr. Altman actually
said.

cue-632
00:45:15.268 --> 00:45:18.068
He said, "We need many billions of
dollars."

cue-633
00:45:18.688 --> 00:45:24.808
He said, "Microsoft, Microsoft still seems
like the best way for us to get that." He

cue-634
00:45:24.808 --> 00:45:29.268
said, "We gave Microsoft a copy of
GPT-3."

cue-635
00:45:31.268 --> 00:45:34.148
Mr. Altman just gave Mr. Musk the facts.

cue-636
00:45:35.168 --> 00:45:38.287
And what didn't Mr. Altman say in his
text?

cue-637
00:45:39.128 --> 00:45:40.328
He didn't mention the mission.

cue-638
00:45:41.528 --> 00:45:43.268
He didn't mention the nonprofit.

cue-639
00:45:44.748 --> 00:45:48.148
And how does Mr. Musk conclude this
conversation?

cue-640
00:45:49.968 --> 00:45:54.408
He says, "I don't think it's a winning
approach to be or at least appear to be

cue-641
00:45:54.408 --> 00:45:57.828
hypocritical. At least change the name."

cue-642
00:45:59.568 --> 00:46:02.268
Does that sound like he was reassured?

cue-643
00:46:03.308 --> 00:46:05.048
Telling them to change the name from open.

cue-644
00:46:07.108 --> 00:46:08.468
And there's more than that.

cue-645
00:46:10.328 --> 00:46:13.978
Remember, Mr. Musk said that when he had
that text exchange,

cue-646
00:46:14.618 --> 00:46:17.608
he didn't trust Mr. Altman. He hadn't
trusted him for some time.

cue-647
00:46:18.348 --> 00:46:19.398
But despite that,

cue-648
00:46:20.328 --> 00:46:23.888
he said, "Well, the reassurance was
enough. That was my due diligence."

cue-649
00:46:24.948 --> 00:46:27.148
But that is not due diligence.

cue-650
00:46:28.428 --> 00:46:32.608
Did Mr. Musk know in twenty twenty? Could
he have found out in twenty twenty?

cue-651
00:46:33.428 --> 00:46:36.407
If the answer is yes, his claim is too
late.

cue-652
00:46:38.008 --> 00:46:42.468
Look carefully at Mr. Altman's text for
yourself. It is exhibit one zero five, and

cue-653
00:46:42.468 --> 00:46:46.268
decide for yourself whether you believe
Mr. Musk was truly reassured.

cue-654
00:46:48.948 --> 00:46:54.168
But it is not just that he knew in twenty
twenty. In August twenty eighteen, Mr.

cue-655
00:46:54.168 --> 00:46:58.828
Musk received a copy of the term sheet for
the for-profit. You've heard a lot about

cue-656
00:46:58.828 --> 00:47:02.768
that. He admitted to receiving it. His
team analyzed it. They made

cue-657
00:47:02.768 --> 00:47:07.628
recommendations. He discussed it with Mr.
Altman. He was invited to invest. And what

cue-658
00:47:07.628 --> 00:47:09.788
did OpenAI say it was going to do?

cue-659
00:47:10.568 --> 00:47:13.248
It said it was going to do a second raise,

cue-660
00:47:13.868 --> 00:47:19.258
ten-plus billion at a fifteen x expected
target redemption.

cue-661
00:47:20.428 --> 00:47:22.868
And what is it that OpenAI actually did?

cue-662
00:47:24.928 --> 00:47:29.148
Microsoft's actual investment, ten-plus
billion.

cue-663
00:47:29.768 --> 00:47:35.208
And the TRAs went from twenty to six. And
if you average that out, it's more like a

cue-664
00:47:35.208 --> 00:47:36.328
seven TRA.

cue-665
00:47:37.108 --> 00:47:41.928
So OpenAI did exactly what it said it
would do, exactly what it said it would do

cue-666
00:47:41.928 --> 00:47:47.208
in twenty eighteen, even better, in fact.
And for years, Mr. Musk never said a word

cue-667
00:47:47.208 --> 00:47:51.388
about it, but now comes to court to say
that Microsoft helped breach his

cue-668
00:47:51.388 --> 00:47:52.308
charitable trust.

cue-669
00:47:53.308 --> 00:47:54.308
And the only excuse you've

cue-670
00:47:54.948 --> 00:47:59.148
heard this already is that he didn't read
the fine print on a four-page document.

cue-671
00:47:59.788 --> 00:48:03.107
One of the most sophisticated business
people in the world didn't read the fine

cue-672
00:48:03.108 --> 00:48:03.388
print.

cue-673
00:48:05.008 --> 00:48:08.808
Did he know in twenty eighteen? Could he
have found out in twenty eighteen? If the

cue-674
00:48:08.808 --> 00:48:11.168
answer is yes, his claim is too late.

cue-675
00:48:13.728 --> 00:48:13.928
Now,

cue-676
00:48:15.668 --> 00:48:17.228
because he knew in twenty twenty,

cue-677
00:48:19.808 --> 00:48:22.008
and because he knew in twenty eighteen,

cue-678
00:48:22.878 --> 00:48:24.708
and because that means his claim is too
late,

cue-679
00:48:26.168 --> 00:48:29.988
Mr. Musk and Mr. Mullow have tried to move
the goalposts.

cue-680
00:48:31.788 --> 00:48:35.448
They now say it is not about twenty
eighteen and the creation of the

cue-681
00:48:35.448 --> 00:48:36.148
for-profit.

cue-682
00:48:37.588 --> 00:48:40.868
It's not about the transfer of the
employees in the IP. It's not about the

cue-683
00:48:40.868 --> 00:48:44.788
twenty nineteen partnership. It's not
about the one billion. It's not about the

cue-684
00:48:44.788 --> 00:48:49.348
two billion. Instead, it's about the
twenty twenty-three investment. And

cue-685
00:48:49.348 --> 00:48:54.256
thatConveniently is within three years of
his bringing this case.

cue-686
00:48:57.296 --> 00:49:03.376
Do you remember when Mr. Mullow told you
in the opening that twenty

cue-687
00:49:03.376 --> 00:49:07.916
twenty-three, uh, this was his phrase I
think, was a horse of a completely

cue-688
00:49:07.916 --> 00:49:08.656
different color?

cue-689
00:49:09.996 --> 00:49:11.756
I bet you had no idea what he was talking
about.

cue-690
00:49:13.316 --> 00:49:19.056
Can you remember how many times in this
trial he has talked about and asked about

cue-691
00:49:19.056 --> 00:49:24.796
the twenty twenty-three investment while
seemingly ignoring the fact of the twenty

cue-692
00:49:24.796 --> 00:49:26.956
nineteen and twenty twenty-one?

cue-693
00:49:28.476 --> 00:49:33.156
Well, now you know why he's doing this, to
try to save an untimely claim.

cue-694
00:49:35.656 --> 00:49:37.796
So Mr. Mullow said this in the opening.

cue-695
00:49:39.476 --> 00:49:44.196
Twenty twenty-three was a ten billion
dollar investment by Microsoft. This was a

cue-696
00:49:44.196 --> 00:49:45.156
game changer.

cue-697
00:49:46.376 --> 00:49:50.816
But we just looked at this. The term sheet
in twenty eighteen that Mr. Musk received

cue-698
00:49:50.816 --> 00:49:55.496
said they needed ten-plus billion. Mr.
Musk, when he walked out the door, said

cue-699
00:49:55.496 --> 00:49:56.676
they needed billions.

cue-700
00:49:57.916 --> 00:50:00.236
That's what Mr. Musk said at the time.

cue-701
00:50:01.396 --> 00:50:07.235
And the multiple of six x is even lower
than the multiple in twenty nineteen.

cue-702
00:50:07.996 --> 00:50:12.095
But somehow we now hear that twenty
twenty-three is the breach, but twenty

cue-703
00:50:12.096 --> 00:50:14.056
nineteen was just fine.

cue-704
00:50:16.776 --> 00:50:21.196
Mr. Mullow also said this in his opening.
Twenty twenty-three, it was no longer open

cue-705
00:50:21.196 --> 00:50:21.666
source.

cue-706
00:50:22.336 --> 00:50:28.516
But that's just wrong because Mr. Musk
tweeted that it was no longer open in

cue-707
00:50:28.516 --> 00:50:29.216
twenty twenty.

cue-708
00:50:31.196 --> 00:50:36.896
And he also said, "Oh, well, all of the
intellectual property had moved over to

cue-709
00:50:36.896 --> 00:50:38.836
the for-profit in twenty twenty-three."

cue-710
00:50:40.536 --> 00:50:44.436
But again, that was in the twenty eighteen
term sheet.

cue-711
00:50:46.176 --> 00:50:50.416
And lastly, you heard from Professor
Schizer that the twenty twenty-three had

cue-712
00:50:50.416 --> 00:50:52.516
these twenty percent increase in caps,

cue-713
00:50:53.256 --> 00:50:55.716
but that is just a distraction because

cue-714
00:50:56.356 --> 00:50:57.076
as you've heard,

cue-715
00:50:57.776 --> 00:51:02.276
no profits were ever paid under the caps,
nothing.

cue-716
00:51:08.456 --> 00:51:12.016
There is a three-year statute of
limitations on the claim against

cue-717
00:51:12.016 --> 00:51:16.296
Microsoft. That means Mike-- that Mr. Musk
had to sue within three years, but he

cue-718
00:51:16.296 --> 00:51:21.676
didn't do that. What it means is if he
knew in twenty eighteen,

cue-719
00:51:22.916 --> 00:51:27.096
and he did because he received the term
sheet, his team reviewed it, he had the

cue-720
00:51:27.096 --> 00:51:28.316
opportunity to invest,

cue-721
00:51:29.216 --> 00:51:32.276
he would have had to sue by twenty
twenty-one. And if he knew in twenty

cue-722
00:51:32.276 --> 00:51:32.736
nineteen,

cue-723
00:51:33.476 --> 00:51:36.756
and we know he did because he testified he
knew about the partnership,

cue-724
00:51:37.596 --> 00:51:40.816
he would have had to sue by twenty
twenty-two. And if he knew in twenty

cue-725
00:51:40.816 --> 00:51:45.696
twenty, and we most certainly know he knew
because he tweeted that OpenAI was no

cue-726
00:51:45.696 --> 00:51:49.456
longer open, and it was captured by
Microsoft, and he meant what he said,

cue-727
00:51:50.096 --> 00:51:52.596
he had to sue in twenty twenty-three.

cue-728
00:51:53.896 --> 00:51:55.295
But when did he sue?

cue-729
00:51:56.236 --> 00:51:58.276
He sued in twenty twenty-four

cue-730
00:51:59.036 --> 00:52:05.276
only after the success of ChatGPT and
after launching xAI. He sued Microsoft as

cue-731
00:52:05.276 --> 00:52:09.896
part of his campaign to stop OpenAI, a
competitor that was succeeding, a

cue-732
00:52:09.896 --> 00:52:14.496
competitor he walked away from after
giving it a zero percent chance of

cue-733
00:52:14.496 --> 00:52:15.036
success.

cue-734
00:52:16.456 --> 00:52:22.596
And waiting as long as he has is not only
transparent, you know why he sued when he

cue-735
00:52:22.596 --> 00:52:28.716
did, it is also very unfair to Microsoft,
which has invested resources and employee

cue-736
00:52:28.716 --> 00:52:32.836
and time and now upward of one hundred
billion dollars.

cue-737
00:52:39.836 --> 00:52:44.026
So you will get a chance to deliberate. We
will finish today, all of us.

cue-738
00:52:45.356 --> 00:52:50.316
And the first question you're going to be
asked on the verdict form is whether Mr.

cue-739
00:52:50.316 --> 00:52:55.376
Musk's claims were filed on time. And I'll
remind you, you only get to the claim

cue-740
00:52:55.376 --> 00:52:56.476
against Microsoft

cue-741
00:52:57.176 --> 00:53:02.156
if you first find that the claim against
OpenAI was filed, was filed on time.

cue-742
00:53:02.956 --> 00:53:06.876
But if you get to this question, if you
reach this question on whether the aiding

cue-743
00:53:06.876 --> 00:53:10.855
and abetting claim is barred by the
statute of limitations or not,

cue-744
00:53:11.576 --> 00:53:14.276
we just ask you to remember one thing, the
tweet.

cue-745
00:53:15.056 --> 00:53:16.376
Just remember the tweet,

cue-746
00:53:17.776 --> 00:53:20.656
and we would ask you to check yes.

cue-747
00:53:24.816 --> 00:53:25.356
And if

cue-748
00:53:27.316 --> 00:53:33.156
you reach the merits, if you find his
claim is timely despite all the evidence,

cue-749
00:53:34.876 --> 00:53:39.676
you recall you can only reach the claim
against Microsoft for aiding and abetting

cue-750
00:53:39.676 --> 00:53:44.816
if you first find there was a charitable
trust and that OpenAI breached it. If you

cue-751
00:53:44.816 --> 00:53:50.516
don't find that, then you don't even reach
the claim against Microsoft. But if you

cue-752
00:53:50.516 --> 00:53:51.916
reach question six,

cue-753
00:53:53.236 --> 00:54:00.036
please remember the following. Mr. Musk
has to prove that Microsoft had actual

cue-754
00:54:00.036 --> 00:54:05.056
knowledge of the specific charitable
purpose for his donation to OpenAI.

cue-755
00:54:05.666 --> 00:54:10.196
And remember the evidence. Microsoft was
not involved in the key events at the

cue-756
00:54:10.196 --> 00:54:11.136
center of this case.

cue-757
00:54:12.576 --> 00:54:17.956
No witness told Microsoft about any
conditions because they don't exist.

cue-758
00:54:18.856 --> 00:54:24.516
Microsoft's due diligence never revealed
any conditions because they don't exist.

cue-759
00:54:25.156 --> 00:54:30.196
And OpenAI's nonprofit board approved the
partnership, and the agreements

cue-760
00:54:30.196 --> 00:54:35.256
represented and warranted that they would
not violate third-party rights, Musk's

cue-761
00:54:35.256 --> 00:54:38.296
rights, donors' rights, because they don't
exist.

cue-762
00:54:40.516 --> 00:54:45.456
And second, Mr. Musk has to prove that
Microsoft substantially assisted a breach.

cue-763
00:54:45.456 --> 00:54:50.656
But Microsoft can't substantially assist
what it wasn't involved in,

cue-764
00:54:51.336 --> 00:54:56.276
and the partnership has been a win-win,
creating huge benefits for OpenAI, for

cue-765
00:54:56.276 --> 00:55:02.706
Microsoft, and the nonprofit OpenAI
FoundationAnd finally, Mr. Musk must prove

cue-766
00:55:02.706 --> 00:55:08.206
that Microsoft was a substantial factor
in causing harm to Mr. Musk, but ask

cue-767
00:55:08.206 --> 00:55:11.386
yourself whether there was any evidence at
all of harm to him.

cue-768
00:55:12.486 --> 00:55:13.936
If you reach this question,

cue-769
00:55:14.646 --> 00:55:17.186
we ask that you check no.

cue-770
00:55:20.646 --> 00:55:24.126
Mr. Musk has not come close to meeting his
burden.

cue-771
00:55:25.726 --> 00:55:27.006
I thank you for your time.

cue-772
00:55:28.426 --> 00:55:31.146
I ask that you enter a verdict in favor of
Microsoft.

cue-773
00:55:32.166 --> 00:55:33.605
We all appreciate it. Thank you.

cue-774
00:55:37.186 --> 00:55:42.176
Okay. So now, um, plaintiff gets their
rebuttal, but I do think it's--

cue-775
00:55:42.786 --> 00:55:45.726
just so that you're fresh, we should just
take, like, a ten-minute break,

cue-776
00:55:46.686 --> 00:55:48.926
and then we'll come back. You'll get the
rebuttal,

cue-777
00:55:49.586 --> 00:55:52.786
my last set of instructions, which are
just a couple pages.

cue-778
00:55:53.726 --> 00:55:53.966
Uh,

cue-779
00:55:54.746 --> 00:55:59.756
and then I'll, like, I'll send you back
for deliberations. I n-- I suspect at this

cue-780
00:55:59.756 --> 00:56:04.166
point there won't be much that happens
today, but that's, that's the rest of the

cue-781
00:56:04.166 --> 00:56:04.646
day, okay?

cue-782
00:56:05.346 --> 00:56:06.546
So let's just stand. It's--

cue-783
00:56:07.406 --> 00:56:11.426
We'll go get you at three o'clock. It's
two fifty-two. Just a short little break,

cue-784
00:56:11.426 --> 00:56:11.606
okay?

cue-785
00:56:12.326 --> 00:56:13.406
Please rise for the jury.

cue-786
00:56:41.266 --> 00:56:44.666
All right. The record will reflect that
the jury has left. Let me just put this on

cue-787
00:56:44.666 --> 00:56:47.166
the record very quickly, given the
objections.

cue-788
00:56:48.186 --> 00:56:54.086
Um, the issue that was raised during the
examination to which, um, plaintiffs

cue-789
00:56:54.086 --> 00:56:54.626
objected,

cue-790
00:56:55.506 --> 00:57:00.126
when I dealt with that issue in the
summary judgment, I dealt on the issue of

cue-791
00:57:00.126 --> 00:57:00.626
standing.

cue-792
00:57:01.426 --> 00:57:04.946
That was the topic. In terms of unjust
enrichment,

cue-793
00:57:05.626 --> 00:57:08.106
there were, uh,

cue-794
00:57:10.526 --> 00:57:13.735
issues that were raised in that summary
judgment motion.

cue-795
00:57:14.466 --> 00:57:16.806
One, that Musk chose to sue in tort.

cue-796
00:57:17.686 --> 00:57:20.806
Two, that his quasi-contract claim could
not succeed.

cue-797
00:57:21.546 --> 00:57:27.306
Three, that he failed to show that he
expected to be compensated for his

cue-798
00:57:27.306 --> 00:57:27.966
services.

cue-799
00:57:28.726 --> 00:57:30.826
And four, that the claim was untimely.

cue-800
00:57:31.586 --> 00:57:34.526
That's all I dealt with. That's all that
was presented to me.

cue-801
00:57:35.166 --> 00:57:37.426
The objection was properly sustained.

cue-802
00:57:38.606 --> 00:57:39.866
I have a, I have a separate issue.

cue-803
00:57:40.546 --> 00:57:44.286
Five times during Mr. Savitt's argument,
he used the term restitution.

cue-804
00:57:45.086 --> 00:57:45.096
I

cue-805
00:57:46.046 --> 00:57:49.586
said we are not asking you for money
because the verdict form doesn't ask for

cue-806
00:57:49.646 --> 00:57:49.886
money.

cue-807
00:57:50.786 --> 00:57:55.766
-He brings up restitution-
-Is the claim. I have explained this to you

cue-808
00:57:55.766 --> 00:58:00.166
multiple times. You may wanna morph what
the law is,

cue-809
00:58:01.086 --> 00:58:07.706
um, but I instructed the jury on the claim
of restitution under a theory of unjust

cue-810
00:58:07.706 --> 00:58:10.466
enrichment. That's the way I understand
it.

cue-811
00:58:11.126 --> 00:58:12.746
That's the way the law is written,

cue-812
00:58:13.406 --> 00:58:16.666
and you can take it to the court of
appeal. But there was nothing

cue-813
00:58:16.666 --> 00:58:17.326
inappropriate.

cue-814
00:58:18.026 --> 00:58:22.146
The objection is, um, noted for the record
for appellate purposes.

cue-815
00:58:22.146 --> 00:58:22.566
Thank you.

cue-816
00:58:28.206 --> 00:58:43.346
This

cue-817
00:58:43.346 --> 00:58:48.466
is

cue-818
00:58:48.466 --> 00:58:51.766
relevant in determining

cue-819
00:58:54.206 --> 00:59:01.186
whether the

cue-820
00:59:01.186 --> 00:59:10.116
attorneys'

cue-821
00:59:10.116 --> 00:59:15.586
fee award

cue-822
00:59:15.586 --> 00:59:19.366
will be

cue-823
00:59:21.866 --> 00:59:45.746
based

cue-824
00:59:45.746 --> 00:59:50.586
on the next

cue-825
00:59:52.386 --> 01:00:04.026
level

cue-826
01:00:04.026 --> 01:00:05.406
of

cue-827
01:00:06.286 --> 01:00:10.766
hearing

cue-828
01:00:11.946 --> 01:00:16.666
instead

cue-829
01:00:17.446 --> 01:00:20.266
of

cue-830
01:00:21.466 --> 01:00:24.046
the appeal

cue-831
01:00:25.786 --> 01:00:42.296
after

cue-832
01:00:42.296 --> 01:00:44.056
that order. Do

cue-833
01:00:45.326 --> 01:00:47.116
you think

cue-834
01:00:48.426 --> 01:00:54.606
it's, uh, do you intend to make sure that
can escalate to the appellate?

cue-835
01:00:54.606 --> 01:00:56.866
-Yeah, we should have a back-up plan.
-Okay.

cue-836
01:00:56.866 --> 01:00:57.845
We should put with you.

cue-837
01:01:00.986 --> 01:01:01.716
I think you're right

cue-838
01:01:20.776 --> 01:01:56.116
The

cue-839
01:01:56.116 --> 01:01:56.496
platform?

cue-840
01:01:57.316 --> 01:02:04.316
That's it. I'm trying to remember. Ten
minutes. Um, you should be back in two.

cue-841
01:02:04.316 --> 01:02:05.956
Yeah, I thought that.

cue-842
01:02:05.956 --> 01:02:07.136
It's 3 PM.

cue-843
01:02:13.116 --> 01:02:13.876
For the,

cue-844
01:02:14.976 --> 01:02:17.356
-the reports?
-Yes, it

cue-845
01:02:18.176 --> 01:02:19.836
would be.

cue-846
01:02:20.556 --> 01:02:20.566
Okay.

cue-847
01:02:21.336 --> 01:02:21.456
I'm gonna use, uh, I'm

cue-848
01:02:21.456 --> 01:02:32.416
gonna

cue-849
01:02:32.416 --> 01:02:37.996
-use this one.
-All

cue-850
01:02:37.996 --> 01:02:42.295
right. All right.

cue-851
01:03:24.336 --> 01:03:29.256
I need a job. [laughs]

cue-852
01:03:30.536 --> 01:03:30.836
Okay.

cue-853
01:03:32.216 --> 01:04:31.536
[in audible conversations]

cue-854
01:05:31.676 --> 01:05:34.526
-Board are back in session.
-Okay.

cue-855
01:05:49.656 --> 01:06:09.696
Awards,

cue-856
01:06:10.576 --> 01:06:11.656
um, or awards.

cue-857
01:06:13.096 --> 01:06:14.996
-Is that fact?
-I just wanted to make sure you could do

cue-858
01:06:14.996 --> 01:06:15.776
-it.
-Okay, good.

cue-859
01:06:18.256 --> 01:06:22.096
All right, we're back on the record. You
may be seated. The record will reflect the

cue-860
01:06:22.096 --> 01:06:23.056
jury is back.

cue-861
01:06:24.086 --> 01:06:24.716
Uh, go ahead.

cue-862
01:06:25.656 --> 01:06:27.176
When you are ready, Mr. Mullen.

cue-863
01:06:30.856 --> 01:06:36.366
-You may proceed.
-How much time do I have?

cue-864
01:06:36.366 --> 01:06:39.556
That they only have so much more, uh, time
to

cue-865
01:06:40.216 --> 01:06:42.755
-give you, so-
-Threw a lot at me. I mean, there was a,

cue-866
01:06:42.756 --> 01:06:45.716
you know, there was a lot to clean up
here. Very easy to stand up there and

cue-867
01:06:45.716 --> 01:06:49.596
throw things at the wall, but, uh, they
don't always stick, and that's what I'd

cue-868
01:06:49.596 --> 01:06:53.316
like to just kinda take you through. Um,
it, it seemed like we were at different

cue-869
01:06:53.316 --> 01:06:55.656
trials, uh, in hearing my colleagues,

cue-870
01:06:56.356 --> 01:06:58.176
um, speak earlier today.

cue-871
01:06:59.116 --> 01:07:01.856
So, um, I'm just gonna take these things,
uh, one by one

cue-872
01:07:02.476 --> 01:07:03.856
and, uh, and, uh, um,

cue-873
01:07:05.216 --> 01:07:08.676
have the greatest confidence in you to
have heard the evidence and paid attention

cue-874
01:07:08.676 --> 01:07:12.596
to it, and I think you'll follow. So
first was this issue that was raised about

cue-875
01:07:12.596 --> 01:07:19.584
Mr. MuskLacking a specific purpose in
forming charitable trust. This is a

cue-876
01:07:19.584 --> 01:07:20.264
complete

cue-877
01:07:20.904 --> 01:07:25.384
re, you know, revision, a complete
rethinking of what this was.

cue-878
01:07:26.664 --> 01:07:27.504
Mr. Musk

cue-879
01:07:28.164 --> 01:07:28.504
was

cue-880
01:07:29.324 --> 01:07:29.544
a,

cue-881
01:07:30.244 --> 01:07:35.204
he, he was a founder. He wasn't just
someone who was donating money. He

cue-882
01:07:35.204 --> 01:07:40.244
conceived of this idea. So when we talk
about having a specific purpose, this is a

cue-883
01:07:40.244 --> 01:07:44.723
first of its kind organization. Of
course, it's a specific purpose. He

cue-884
01:07:44.724 --> 01:07:45.294
created it,

cue-885
01:07:45.934 --> 01:07:50.784
um, personally, carefully crafted the
mission along with, uh, the other

cue-886
01:07:50.784 --> 01:07:55.584
founders. He insisted that his financial
support was conditioned upon that. I

cue-887
01:07:55.584 --> 01:07:57.924
showed you testimony, uh, about that.

cue-888
01:07:58.584 --> 01:08:01.544
And as a founder, um, his contributions,

cue-889
01:08:02.384 --> 01:08:03.744
uh, to the mission were

cue-890
01:08:04.984 --> 01:08:06.244
more unique, more special.

cue-891
01:08:06.944 --> 01:08:10.824
Um, the defendants claim there's no
documents to this, but you've seen all

cue-892
01:08:10.824 --> 01:08:14.484
sorts of emails. Uh, can we just put up
quickly Plaintiff's Exhibit three?

cue-893
01:08:18.323 --> 01:08:18.864
And, um,

cue-894
01:08:19.484 --> 01:08:20.324
this is an email

cue-895
01:08:21.464 --> 01:08:22.424
in which, um...

cue-896
01:08:23.164 --> 01:08:26.864
Well, let me just pull it up so everyone
sees where he's from. It's a Sam Altman,

cue-897
01:08:26.864 --> 01:08:27.864
Elon Musk email.

cue-898
01:08:28.604 --> 01:08:29.344
And, you know,

cue-899
01:08:30.324 --> 01:08:35.404
it says plainly, "Mission would be to
create the first general AI and use it for

cue-900
01:08:35.404 --> 01:08:39.224
individual empowerment, i.e., distrib-
distrib-- " excuse me, "distributed."

cue-901
01:08:40.024 --> 01:08:40.284
Yes.

cue-902
01:08:41.104 --> 01:08:42.844
Yes, without, without stuttering.

cue-903
01:08:43.684 --> 01:08:50.084
Okay. [laughs] So, "The mission would be
to create the first general AI and use it

cue-904
01:08:50.084 --> 01:08:51.484
for individual empowerment,

cue-905
01:08:52.244 --> 01:08:56.944
uh, the distributed version of the future
that seems safest. Technology would be

cue-906
01:08:57.004 --> 01:09:02.384
owned by the foundation, used for the good
of the world." Plaintiff's Exhibit seven.

cue-907
01:09:03.064 --> 01:09:03.824
Mr. Musk

cue-908
01:09:04.524 --> 01:09:09.884
clearly conditions, uh, if we could put up
seven, please, clearly conditions his

cue-909
01:09:09.884 --> 01:09:10.664
donations,

cue-910
01:09:11.764 --> 01:09:11.984
um,

cue-911
01:09:13.024 --> 01:09:13.184
on--

cue-912
01:09:14.434 --> 01:09:18.084
In response to the question, "Can you
donate thirty million dollars over the

cue-913
01:09:18.084 --> 01:09:19.164
next five years?"

cue-914
01:09:20.124 --> 01:09:26.804
And he says, um, "Let's discuss
governance," right? Uh, "This is critical.

cue-915
01:09:26.804 --> 01:09:29.804
I don't want to fund something that goes
in what turns out to be the wrong

cue-916
01:09:29.804 --> 01:09:35.804
direction." Could not be clear this was
focused on something specific, and, uh,

cue-917
01:09:35.804 --> 01:09:40.124
these ideas that this is some kind of a
general contribution to a general charity

cue-918
01:09:40.124 --> 01:09:45.364
are just simply wrong. This idea of the
money being gone, okay? This was taken

cue-919
01:09:45.364 --> 01:09:48.004
care of yesterday, although I don't know

cue-920
01:09:48.064 --> 01:09:52.624
whether everyone in the courtroom
appreciated what happened. They called,

cue-921
01:09:52.624 --> 01:09:53.774
um, this, uh,

cue-922
01:09:54.444 --> 01:09:58.664
expert witness who testified about the,
um,

cue-923
01:09:59.304 --> 01:10:02.164
about the money and the segregation of the
accounts. Remember him late in the day.

cue-924
01:10:02.824 --> 01:10:03.644
And, um,

cue-925
01:10:04.524 --> 01:10:09.284
this is a very, very narrow defense that
they're raising. Judge Gonzalez Rogers

cue-926
01:10:09.284 --> 01:10:12.374
will instruct you that, um, if a-- uh,

cue-927
01:10:13.834 --> 01:10:17.584
the, the instruction you're gonna get is,
is gonna say, "If a trust is created and

cue-928
01:10:17.584 --> 01:10:23.344
subsequently the whole of the trust
property ceases to exist, the trust is

cue-929
01:10:23.344 --> 01:10:28.144
terminated because the trustee or
defendant no longer holds anything in the

cue-930
01:10:28.144 --> 01:10:28.564
trust."

cue-931
01:10:29.304 --> 01:10:34.704
Um, so the defendants have to show that
the whole of the trust property is gone

cue-932
01:10:34.704 --> 01:10:38.724
and that whatever Elon donated, not a
single penny of it, not a single penny of

cue-933
01:10:38.724 --> 01:10:40.464
it, uh, remains. Now,

cue-934
01:10:41.204 --> 01:10:43.704
um, they can't show that, and the reason
that we know that is Mr.

cue-935
01:10:44.464 --> 01:10:44.924
Dudney,

cue-936
01:10:45.544 --> 01:10:49.124
who was the witness I was just referring
to, the forensic, uh, accountant, he

cue-937
01:10:49.124 --> 01:10:52.004
testified, and these were the questions
that, that he was asked and the answers he

cue-938
01:10:52.004 --> 01:10:57.204
gave. "Mr. Dudney, you testified that
OpenAI commingled," mixed together,

cue-939
01:10:58.234 --> 01:11:02.484
"Mr. Musk's donations with other
donations, correct?" Answer: "That's

cue-940
01:11:02.484 --> 01:11:02.884
correct."

cue-941
01:11:03.584 --> 01:11:08.344
Question: "And because OpenAI commingled
its donations in a single account, you

cue-942
01:11:08.344 --> 01:11:14.844
can't actually determine with specificity
and certainty when Elon's contributions

cue-943
01:11:14.844 --> 01:11:17.824
were spent versus the contributions from
other donors, correct?"

cue-944
01:11:18.484 --> 01:11:23.384
Answer: "You can't specifically tie
specific dollars." So,

cue-945
01:11:24.304 --> 01:11:27.224
[coughs] excuse me. He used this, uh,
so-called FIFO method,

cue-946
01:11:28.364 --> 01:11:31.444
first dollars in, first dollars out. The
money is still mixed together.

cue-947
01:11:32.064 --> 01:11:34.044
And, um, even if

cue-948
01:11:34.784 --> 01:11:38.504
OpenAI did spend all of Elon's money, it
used that money to purchase other

cue-949
01:11:38.504 --> 01:11:39.964
valuable, um, assets.

cue-950
01:11:40.684 --> 01:11:45.783
So, uh, and Mr. Dudley admitted that. He
said there was a question, "OpenAI spent

cue-951
01:11:45.784 --> 01:11:50.104
those funds on salaries for engineers and
employees." Answer: "Yes." Question: "And

cue-952
01:11:50.104 --> 01:11:51.474
it also spent those funds

cue-953
01:11:52.124 --> 01:11:58.204
on the compute that it used to develop its
AI software, right?" Answer: "Correct."

cue-954
01:11:58.204 --> 01:11:58.364
So,

cue-955
01:11:59.744 --> 01:12:00.564
so much for that

cue-956
01:12:01.664 --> 01:12:02.004
claim.

cue-957
01:12:03.004 --> 01:12:03.204
Um,

cue-958
01:12:04.984 --> 01:12:08.744
this one's

cue-959
01:12:09.624 --> 01:12:13.224
one of my favorites 'cause it's kinda two,
two for one here, so maybe it'll help us

cue-960
01:12:13.224 --> 01:12:14.104
get out of here quicker.

cue-961
01:12:14.784 --> 01:12:14.964
Um,

cue-962
01:12:17.744 --> 01:12:20.884
all this talk about the term sheet, all
right? The term sheet. First of all,

cue-963
01:12:21.644 --> 01:12:21.904
um,

cue-964
01:12:23.684 --> 01:12:28.384
to hear these folks say, "Oh, it's a
four-page term sheet. He can't read the

cue-965
01:12:28.384 --> 01:12:29.864
fine print." I mean,

cue-966
01:12:31.324 --> 01:12:37.084
what a crazy argument. The, the, the truth
is, you heard two witnesses testify.

cue-967
01:12:38.164 --> 01:12:42.544
One of them was Sam Altman, so believe it
or not, and then Sam Teller, who was, uh,

cue-968
01:12:42.544 --> 01:12:45.244
the fellow that was a senior advisor to
Mr. Musk, who testified on video.

cue-969
01:12:46.004 --> 01:12:52.184
They both testified that Mr. Musk wasn't
interested in private, um, for-profit

cue-970
01:12:52.184 --> 01:12:56.404
investments if he couldn't control the
investment. They both testified to that.

cue-971
01:12:56.404 --> 01:13:01.524
So the fact that Altman would be saying
now, "Aha, Musk didn't read this term

cue-972
01:13:01.524 --> 01:13:01.614
sheet,"

cue-973
01:13:02.564 --> 01:13:06.664
I, I mean, look, Elon Musk has one or two
things going on in his life, right? So to

cue-974
01:13:06.664 --> 01:13:11.384
sit and comb through a term sheet, even if
it's four pages, if it's one page, and he

cue-975
01:13:11.384 --> 01:13:15.744
has no interest in investing in it, I
mean, that's just a, a very, very silly

cue-976
01:13:15.744 --> 01:13:20.260
argument to make. The fact that he would
look at that box because-They say, look at

cue-977
01:13:20.260 --> 01:13:25.479
the box, and because it's highlighted in
purple, that does make sense. But in any

cue-978
01:13:25.480 --> 01:13:30.320
event, um, I want to review with you, uh,
some testimony that Mr.

cue-979
01:13:30.960 --> 01:13:32.480
Altman gave. Um,

cue-980
01:13:33.140 --> 01:13:33.940
he was asked

cue-981
01:13:35.559 --> 01:13:35.920
about,

cue-982
01:13:36.800 --> 01:13:37.360
um--

cue-983
01:13:39.220 --> 01:13:39.980
Here. Okay.

cue-984
01:13:40.780 --> 01:13:43.660
Uh, in the term sheet that you say that
you reviewed with him,

cue-985
01:13:44.560 --> 01:13:48.920
that didn't state who would invest the ten
billion dollars

cue-986
01:13:50.040 --> 01:13:50.720
in the round,

cue-987
01:13:52.259 --> 01:13:53.460
in the round two raise.

cue-988
01:13:54.340 --> 01:13:54.740
Answer:

cue-989
01:13:55.540 --> 01:13:58.100
In the twenty eighteen version of it,

cue-990
01:13:58.880 --> 01:14:02.940
that was before we had really entered into
serious conversations with Microsoft.

cue-991
01:14:03.680 --> 01:14:04.340
So at that time,

cue-992
01:14:05.060 --> 01:14:09.640
there wasn't... You know, we talked about
needing that amount of capital, but it

cue-993
01:14:09.640 --> 01:14:11.340
wasn't until twenty nineteen

cue-994
01:14:12.020 --> 01:14:15.580
that it became clear that Microsoft was
seriously willing to go,

cue-995
01:14:16.200 --> 01:14:20.200
uh, to do it at the level we, we would
need. And then there's ano-another

cue-996
01:14:20.200 --> 01:14:20.780
question. And

cue-997
01:14:21.780 --> 01:14:22.620
the term sheet

cue-998
01:14:23.320 --> 01:14:26.460
didn't explain any of the IP rights

cue-999
01:14:27.120 --> 01:14:28.600
that OpenAI would give away

cue-1000
01:14:29.240 --> 01:14:35.320
to a ten billion dollar investor, did it?
Answer: I don't think at the time of the

cue-1001
01:14:35.320 --> 01:14:39.840
twenty eighteen term sheet, we had
contemplated the IP structure.

cue-1002
01:14:40.480 --> 01:14:40.940
Question:

cue-1003
01:14:41.640 --> 01:14:47.600
And the twenty eighteen term sheet did not
mention a twenty percent annual increase

cue-1004
01:14:47.600 --> 01:14:52.000
in the target redemption amounts. Is that
right? Answer: No,

cue-1005
01:14:52.620 --> 01:14:58.500
that didn't come up until much later as we
understood more how the shape of the AI

cue-1006
01:14:58.500 --> 01:15:04.320
rollout was going to go, and that it was
not going to be this one-time thing we had

cue-1007
01:15:04.320 --> 01:15:09.600
imagined, but we would need to continue
to exist for a long time. Question:

cue-1008
01:15:10.300 --> 01:15:15.780
The twenty percent increase, annual
increase in the target redemption amounts

cue-1009
01:15:15.780 --> 01:15:20.880
didn't come about until twenty
twenty-three, right? Answer: Correct.

cue-1010
01:15:21.600 --> 01:15:21.840
And

cue-1011
01:15:22.640 --> 01:15:28.699
the term sheet doesn't mention that one
day the profit caps will be removed

cue-1012
01:15:28.699 --> 01:15:32.420
together, does it? Answer: No. That came
about

cue-1013
01:15:33.560 --> 01:15:39.080
out of our much later, further, deeper
understanding of how AI was going to be

cue-1014
01:15:39.080 --> 01:15:44.260
developed and what companies would need to
do over a very long period of time. So

cue-1015
01:15:44.260 --> 01:15:48.989
when Mr. Cohen gets up and says, "Mr. Mohl
said in his opening statement that twenty

cue-1016
01:15:48.989 --> 01:15:51.660
twenty-three was a horse of a different
color,"

cue-1017
01:15:52.500 --> 01:15:52.650
um,

cue-1018
01:15:53.440 --> 01:15:57.840
he was absolutely right. That is what I
said because that is what it was. The

cue-1019
01:15:57.840 --> 01:16:02.540
terms in twenty twenty-three are quite
different. You have the larger investment.

cue-1020
01:16:02.540 --> 01:16:08.900
You have this twenty percent kicker,
which Nadella said in four years could end

cue-1021
01:16:08.900 --> 01:16:09.500
up doubling.

cue-1022
01:16:10.100 --> 01:16:13.160
We have the, that kicker and the, um,

cue-1023
01:16:13.760 --> 01:16:20.480
the increased TRAs decreasing the amount
of the residual that's there. And then we

cue-1024
01:16:20.480 --> 01:16:27.100
have the very broad IP rights in twenty
twenty-three that are granted. Now, this

cue-1025
01:16:27.100 --> 01:16:31.020
is another two-for-one for you because
those IP rights,

cue-1026
01:16:31.660 --> 01:16:36.549
um, if we could put up, um-- Do we have
the email from Mr., um, Nadella?

cue-1027
01:16:44.300 --> 01:16:46.720
Uh, two fifty-nine. Exhibit two
fifty-nine, please.

cue-1028
01:16:49.220 --> 01:16:51.580
You'll see that as a precursor--

cue-1029
01:16:52.820 --> 01:16:57.480
So this is an email dated April
twenty-eighth of twenty twenty-two. You

cue-1030
01:16:57.480 --> 01:17:01.620
might remember I spent a fair amount of
time with the, with Mr. Nadella asking him

cue-1031
01:17:01.620 --> 01:17:02.200
about this.

cue-1032
01:17:02.880 --> 01:17:04.880
And, um, can we scroll down? Okay.

cue-1033
01:17:05.880 --> 01:17:06.020
So

cue-1034
01:17:07.560 --> 01:17:08.370
this is where--

cue-1035
01:17:09.160 --> 01:17:15.740
Remember I asked him, "In return, we want
full IP rights and also need to embed our

cue-1036
01:17:15.740 --> 01:17:17.080
folks across every layer

cue-1037
01:17:18.040 --> 01:17:20.780
of the stack so we can be self-sufficient
if,

cue-1038
01:17:21.800 --> 01:17:25.020
if need came. Self-sufficient if need
came." So,

cue-1039
01:17:25.640 --> 01:17:30.440
I mean, this shows you that prior to the
twenty twenty-three deal, Microsoft did

cue-1040
01:17:30.440 --> 01:17:34.780
not have the IP rights that they got in
the twenty twenty-three deal.

cue-1041
01:17:35.560 --> 01:17:36.320
And, um,

cue-1042
01:17:37.440 --> 01:17:38.300
it, you could,

cue-1043
01:17:39.519 --> 01:17:44.160
you could accept Mr. Altman's testimony or
not. You heard what I had to say earlier.

cue-1044
01:17:44.160 --> 01:17:49.520
But, uh, on cross-examination, um, he
himself acknowledged that the deals were

cue-1045
01:17:49.520 --> 01:17:54.780
different. Another interesting thing that,
uh, that, that occurs in connection with,

cue-1046
01:17:54.780 --> 01:17:54.940
uh,

cue-1047
01:17:55.640 --> 01:18:01.159
with the term sheet, um, Mr. Altman
testified that he never told, uh, Elon

cue-1048
01:18:01.160 --> 01:18:05.140
about the twenty twenty-three investment
for the ten billion dollars. Why didn't he

cue-1049
01:18:05.140 --> 01:18:07.420
tell Elon, he said? Because, um,

cue-1050
01:18:08.360 --> 01:18:09.600
the deal, he said,

cue-1051
01:18:11.600 --> 01:18:14.860
before it closed-- Because he didn't tell
him about it before it closed because we

cue-1052
01:18:14.860 --> 01:18:19.200
were aware he was working to start a
competitor, and so it would have been,

cue-1053
01:18:19.880 --> 01:18:20.620
uh, inappropriate.

cue-1054
01:18:21.300 --> 01:18:24.340
Now, um, Mr. Altman,

cue-1055
01:18:28.560 --> 01:18:30.180
Mr. Altman, um,

cue-1056
01:18:31.000 --> 01:18:35.980
told you that he knew that Elon was
starting a competitor before the Microsoft

cue-1057
01:18:35.980 --> 01:18:36.940
deal, right? That's what

cue-1058
01:18:37.540 --> 01:18:44.020
he, he said. Um, the Microsoft deal closed
on January twenty-third of twenty

cue-1059
01:18:44.020 --> 01:18:44.680
twenty-three.

cue-1060
01:18:45.360 --> 01:18:48.080
But, um, you know that Siobhan Zillis

cue-1061
01:18:48.860 --> 01:18:51.200
testified, um, that

cue-1062
01:18:52.460 --> 01:18:56.380
Sam Altman first discovered Elon was
starting the AI company.

cue-1063
01:18:57.100 --> 01:19:00.320
Um, she testified that-- I think we have a
slide for this actually.

cue-1064
01:19:01.300 --> 01:19:03.080
She test- she testified that around

cue-1065
01:19:03.880 --> 01:19:07.880
February twenty-first of twenty
twenty-three, Altman called her to ask if

cue-1066
01:19:07.880 --> 01:19:12.220
she knew anything about Elon working on a
competitive effort. That was one month

cue-1067
01:19:12.220 --> 01:19:18.840
after the Microsoft deal closed. So, um,
and you heard Ms. Zillis testify that four

cue-1068
01:19:18.840 --> 01:19:23.380
days later, Altman confirmed that Elon
was starting an AI company, and it was

cue-1069
01:19:23.380 --> 01:19:29.000
time for Siobhan to step down from the
board. So, um-All of his business with the

cue-1070
01:19:29.000 --> 01:19:31.320
term sheet and when the deal was going to
close and such

cue-1071
01:19:31.920 --> 01:19:36.740
is, uh, is frankly, you assign the name to
it. Is it nonsense? Is it smoke and

cue-1072
01:19:36.740 --> 01:19:40.420
mirrors? Is it subterfuge? But I can tell
you one thing it's not, and that's the

cue-1073
01:19:40.420 --> 01:19:40.720
truth.

cue-1074
01:19:41.520 --> 01:19:47.280
Um, so a few other things that are there
that, that they've raised. Um,

cue-1075
01:19:48.780 --> 01:19:49.820
oh, Mr., um,

cue-1076
01:19:50.680 --> 01:19:51.500
Mr. Savitt

cue-1077
01:19:53.020 --> 01:19:53.580
said that

cue-1078
01:19:55.020 --> 01:19:56.560
when you think something's wrong,

cue-1079
01:19:57.360 --> 01:19:59.140
you stop it, you take action,

cue-1080
01:19:59.980 --> 01:20:04.100
and, um, Mr. Musk, you know, didn't do
that.

cue-1081
01:20:05.100 --> 01:20:06.200
He waited too long.

cue-1082
01:20:06.800 --> 01:20:07.980
Well, the evidence

cue-1083
01:20:08.580 --> 01:20:11.700
that was very clearly adduced, uh, during
the course of the trial,

cue-1084
01:20:12.580 --> 01:20:19.380
both from Mr. Musk and from Mr. Altman,
was that in-- on October 22nd of

cue-1085
01:20:19.380 --> 01:20:21.440
2022, it's the exact date, I can give it
to you,

cue-1086
01:20:23.220 --> 01:20:26.500
Elon gets this news article, industry
article,

cue-1087
01:20:27.140 --> 01:20:29.620
that says that this Microsoft deal is
gonna happen.

cue-1088
01:20:30.400 --> 01:20:34.980
And this is when he texts Sam Altman and
says to him,

cue-1089
01:20:35.660 --> 01:20:38.720
you know, this is the, this is the
article. It describes the deal. It's not

cue-1090
01:20:38.720 --> 01:20:42.280
closed yet. This is October. It's a
January deal, as I mentioned, January

cue-1091
01:20:42.280 --> 01:20:47.940
2023. But he texts him, and this is where
he says to him, "Hey, what is going on?

cue-1092
01:20:47.940 --> 01:20:49.080
This is a bait and switch."

cue-1093
01:20:50.020 --> 01:20:50.720
And, um,

cue-1094
01:20:52.540 --> 01:20:55.420
and we talked about this a little bit this
morning, and maybe it did or didn't

cue-1095
01:20:55.420 --> 01:20:59.330
register, or it certainly didn't register
with my, my friends, uh, on the other side

cue-1096
01:20:59.330 --> 01:21:03.150
of the room. He says, "It's a bait and
switch." He's angry. He's upset

cue-1097
01:21:03.800 --> 01:21:07.540
because what's going on here? This is, you
know, I provided this funding. This was

cue-1098
01:21:07.540 --> 01:21:08.740
supposed to be a nonprofit.

cue-1099
01:21:09.350 --> 01:21:14.000
This is not an email or a text from
somebody who knew what was going on.

cue-1100
01:21:14.620 --> 01:21:19.140
This is a text from someone who's saying,
"I just discovered this. I just found out

cue-1101
01:21:19.140 --> 01:21:19.500
about it."

cue-1102
01:21:20.820 --> 01:21:23.040
And what else does this text chain reveal?

cue-1103
01:21:23.820 --> 01:21:24.730
It reveals that,

cue-1104
01:21:25.360 --> 01:21:25.540
um...

cue-1105
01:21:26.160 --> 01:21:31.490
What is Altman's response? Altman's
response isn't, "Hey, Elon, you knew about

cue-1106
01:21:31.490 --> 01:21:38.160
this. Hey, Elon, this is the same deal
that was in, um, our, uh, in, in the term

cue-1107
01:21:38.160 --> 01:21:42.600
sheet that you reviewed years ago. Hey,
Elon, you have no right to be complaining

cue-1108
01:21:42.600 --> 01:21:48.440
about this." None of that, none of that is
in Altman's text. Instead, he says, "I

cue-1109
01:21:48.440 --> 01:21:49.960
agree this feels bad.

cue-1110
01:21:50.840 --> 01:21:56.090
I agree this feels bad. We offered you
equity when we established the cap profit,

cue-1111
01:21:56.740 --> 01:21:58.840
which you didn't want at the time,

cue-1112
01:21:59.500 --> 01:22:02.800
but we are still happy." And I-- which I--
this morning I mentioned that Elon

cue-1113
01:22:02.800 --> 01:22:05.800
considered this a bribe. You can
characterize it however you want to

cue-1114
01:22:05.800 --> 01:22:12.440
characterize it. But what is clear is that
this is just what Mr. Savitt said should

cue-1115
01:22:12.440 --> 01:22:16.740
have happened. You think something is
wrong, you stop it, you take action. He

cue-1116
01:22:16.740 --> 01:22:18.290
filed the lawsuit w-

cue-1117
01:22:19.370 --> 01:22:23.620
um, I guess it was within a year certainly
of that, so it's well within the statute

cue-1118
01:22:23.620 --> 01:22:29.920
of limitations. So it's not a question of,
um, us trying to resurrect

cue-1119
01:22:29.920 --> 01:22:36.020
a late-brought claim. In fact, it's just
the opposite. It's a claim for conduct

cue-1120
01:22:36.020 --> 01:22:37.060
that is outrageous,

cue-1121
01:22:37.780 --> 01:22:43.200
and we brought it in a timely fashion.
They're mischaracterizing it as something

cue-1122
01:22:43.200 --> 01:22:47.540
that we had knowledge of at an earlier
date. And they raised this latches point,

cue-1123
01:22:47.540 --> 01:22:48.320
too. The latches

cue-1124
01:22:48.940 --> 01:22:53.340
point, I think Mr. Savitt referred to it
something along the lines of some kind of

cue-1125
01:22:53.340 --> 01:22:56.880
an old-fashioned defense or something like
that. It's-- it, it, it, it doesn't

cue-1126
01:22:56.880 --> 01:23:01.440
apply. It's effectively like the statute
of limitations, but it applies in what are

cue-1127
01:23:01.440 --> 01:23:04.700
called equitable claims, which is not--
it's not even worth going into. It's just

cue-1128
01:23:04.700 --> 01:23:06.940
there is no delay in bringing the claim.

cue-1129
01:23:07.620 --> 01:23:11.520
And again, the twenty twenty-three deal
was different.

cue-1130
01:23:12.240 --> 01:23:12.440
Um,

cue-1131
01:23:14.520 --> 01:23:15.080
you had,

cue-1132
01:23:16.140 --> 01:23:20.360
uh, the ten billion dollar investment
rather than one or two billion dollars.

cue-1133
01:23:20.360 --> 01:23:25.840
You had, um, the constraints that were
earlier there. The profit caps are gone.

cue-1134
01:23:25.840 --> 01:23:31.140
The IP rights are bigger. Under the terms
of the twenty twenty-three deal, OpenAI

cue-1135
01:23:31.140 --> 01:23:35.200
would need to earn roughly two hundred and
seventy-five billion dollars in profit

cue-1136
01:23:35.200 --> 01:23:39.400
for the nonprofit to receive any excess
profits, those residuals that we talked

cue-1137
01:23:39.400 --> 01:23:44.120
about. And again, that twenty percent
kicker that comes along, in addition to

cue-1138
01:23:44.120 --> 01:23:48.380
any increase for inflation, uh, two years
into the deal. So,

cue-1139
01:23:49.060 --> 01:23:49.219
um,

cue-1140
01:23:49.880 --> 01:23:54.500
it is a horse of a different color, and
that's when, uh-- th- that is why we base

cue-1141
01:23:54.500 --> 01:23:58.109
the claim on it. It's a timely claim. Mr.
Savitt said that,

cue-1142
01:23:58.870 --> 01:24:02.880
um, he was talking fast, so you may not
have caught it, but he mentioned my name,

cue-1143
01:24:02.880 --> 01:24:08.640
so I caught it. And he said that, um, that
I've said at some point today that the,

cue-1144
01:24:08.700 --> 01:24:10.040
uh, breach occurred in twenty twenty.

cue-1145
01:24:10.660 --> 01:24:10.670
Um,

cue-1146
01:24:12.460 --> 01:24:15.760
I, I don't think I said that. If I did say
it, I didn't mean to say it throughout

cue-1147
01:24:15.760 --> 01:24:20.180
this trial. We just heard Mr. Cohen quote
me as saying in the opening statement that

cue-1148
01:24:20.180 --> 01:24:24.280
I said it was in twenty twenty-three. It
was in twenty twenty-three. We've sued in

cue-1149
01:24:24.280 --> 01:24:27.560
twenty twenty-three. And there's, of
course, the other conduct that occurs in

cue-1150
01:24:27.560 --> 01:24:29.980
twenty twenty-three that we mentioned. Um,

cue-1151
01:24:30.700 --> 01:24:34.100
the argument on unclean hands, another,

cue-1152
01:24:34.720 --> 01:24:34.880
uh,

cue-1153
01:24:36.520 --> 01:24:41.220
old-fashioned defense as, as, as Mr., uh,
Savitt called latches.

cue-1154
01:24:41.840 --> 01:24:48.830
Um, the basic argument here is that, um,
Mr. Musk engaged in conduct that

cue-1155
01:24:48.830 --> 01:24:49.560
was somehow,

cue-1156
01:24:50.260 --> 01:24:55.220
um, unconscionable, all right? But there's
a few requirements to this claim. First,

cue-1157
01:24:55.220 --> 01:24:59.940
it's gotta be unconscionable. Second, that
the conduct is directly related to the

cue-1158
01:24:59.940 --> 01:25:05.180
claims that we're bringing, okay? It can't
just be some other, um, an- another

cue-1159
01:25:05.180 --> 01:25:11.000
claim. And third, that M- Mr. Musk's
conduct resulted in such prejudice to the

cue-1160
01:25:11.000 --> 01:25:17.240
defendants that it would be unfair to hold
them liable for Mr. Musk's claims. So

cue-1161
01:25:17.240 --> 01:25:22.560
what's the conduct that they, that they
base this on? It's first, the, uh, they

cue-1162
01:25:22.560 --> 01:25:28.860
complain about Mr. Musk hi- hiring, uh,
Andrej Karpathy away from OpenAI to work

cue-1163
01:25:28.860 --> 01:25:33.300
at Tesla.Now, the conduct wasn't
un-unconscionable. We heard from Elon, who

cue-1164
01:25:33.300 --> 01:25:38.579
told you that Karpathy was going to leave
OpenAI. Um, question: Did you consider

cue-1165
01:25:38.580 --> 01:25:42.460
that there was anything wrong to hire him?
No. He said he was going to be leaving

cue-1166
01:25:42.460 --> 01:25:47.680
OpenAI anyway, so I thought, "Well, you
should join Tesla." Ilya Sutskever's

cue-1167
01:25:47.680 --> 01:25:51.780
testimony was consistent with that. He
told you he wasn't even that bothered when

cue-1168
01:25:51.780 --> 01:25:56.260
Karpathy left. And, you know, the
defendants could have called Karpathy as a

cue-1169
01:25:56.260 --> 01:25:59.520
witness if they wanted to. They could
have issued a subpoena, and if he wasn't

cue-1170
01:25:59.520 --> 01:26:03.060
here close enough to the court, they could
have taken his deposition, just like we

cue-1171
01:26:03.060 --> 01:26:05.860
did with the witnesses that couldn't be
here. They didn't do it, and there's a

cue-1172
01:26:05.860 --> 01:26:11.040
reason they didn't do it, because this
claim is, uh, and th-this whole idea of,

cue-1173
01:26:11.040 --> 01:26:11.220
um,

cue-1174
01:26:11.860 --> 01:26:13.600
of unclean hands is, is just bogus.

cue-1175
01:26:14.280 --> 01:26:17.880
Um, there's no relationship to the hiring
in our claim,

cue-1176
01:26:18.640 --> 01:26:18.920
and

cue-1177
01:26:19.720 --> 01:26:23.680
it has nothing to do with whether there
was a breach of the charitable trust. Um,

cue-1178
01:26:23.680 --> 01:26:29.460
they, they then argue that they complain
about a letter that Elon had co-signed

cue-1179
01:26:29.460 --> 01:26:33.740
calling for a pause in the advance of AI
development,

cue-1180
01:26:34.360 --> 01:26:40.120
uh, in March of twenty twenty-three before
he launched the, um, the, uh, xAI

cue-1181
01:26:40.120 --> 01:26:40.500
venture.

cue-1182
01:26:42.400 --> 01:26:42.550
That,

cue-1183
01:26:43.560 --> 01:26:49.020
again, i-is consistent with his sincere
belief in the dangers of AI.

cue-1184
01:26:49.680 --> 01:26:53.539
Um, his testimony was, question: When you
signed that letter in March twenty

cue-1185
01:26:53.540 --> 01:26:57.300
twenty-three, you didn't disclose that you
had just incorporated your own AI

cue-1186
01:26:57.300 --> 01:26:57.760
company?

cue-1187
01:26:58.380 --> 01:27:00.580
And, um, and he answers, "No."

cue-1188
01:27:01.620 --> 01:27:05.960
There was, like, an open letter signed by
five hundred people saying that, "Hey,

cue-1189
01:27:05.960 --> 01:27:06.940
perhaps we should go,

cue-1190
01:27:07.660 --> 01:27:11.600
uh, slower with AI in the interest of
public safety." So that's not there. And

cue-1191
01:27:11.600 --> 01:27:17.130
then the third thing they raise is this
idea that xAI and other investors

cue-1192
01:27:17.130 --> 01:27:19.520
submitted a bid to purchase OpenAI,

cue-1193
01:27:20.260 --> 01:27:21.980
and, um, if you,

cue-1194
01:27:23.280 --> 01:27:25.440
if you were confused by that testimony,
um,

cue-1195
01:27:26.520 --> 01:27:30.220
you were in what I would consider good
company because I was too. I thought that

cue-1196
01:27:30.220 --> 01:27:32.890
I, I wasn't sure what they were trying to
do with that. Uh,

cue-1197
01:27:33.540 --> 01:27:34.710
the bid was rejected,

cue-1198
01:27:35.340 --> 01:27:40.330
and there, there's no claim. So, so this
whole unclean hands, uh, thing is just

cue-1199
01:27:40.330 --> 01:27:44.620
nonsense. It's their burden, not ours, to
disprove it. It's their burden to prove

cue-1200
01:27:44.620 --> 01:27:47.730
it. And, you know, I have to say, it's
really kind of bothering me because

cue-1201
01:27:49.540 --> 01:27:56.300
we're here on a very, very serious charge,
very serious allegation that

cue-1202
01:27:56.300 --> 01:28:02.200
these people stole a charity, enriched
themselves. And to hear them talk, "Oh,

cue-1203
01:28:02.200 --> 01:28:02.420
you know,

cue-1204
01:28:03.040 --> 01:28:07.600
everything is great, and, you know, we've
done all of these things," where did this

cue-1205
01:28:07.600 --> 01:28:08.040
start?

cue-1206
01:28:09.000 --> 01:28:11.520
You don't get to, you don't get to start a
charity

cue-1207
01:28:12.140 --> 01:28:16.900
and get people's money and go along and
then all of a sudden decide, "Hey, you

cue-1208
01:28:16.900 --> 01:28:19.920
know what? I don't like this. I want to
turn it into a for-profit, and maybe I'll

cue-1209
01:28:19.920 --> 01:28:22.380
give the charity some money." That's not
the way this works.

cue-1210
01:28:23.140 --> 01:28:27.240
There was a, a breach of the charitable
trust here. And to make arguments like

cue-1211
01:28:27.240 --> 01:28:30.150
things like Karpathy and make things like
him writing the letter,

cue-1212
01:28:30.760 --> 01:28:36.360
or frankly, the cross-examination that you
saw of, of Professor Schizer, where they

cue-1213
01:28:36.360 --> 01:28:38.130
were asking him about, um,

cue-1214
01:28:38.940 --> 01:28:44.540
to compare two different computers, and
they were asking him to, um, how many

cue-1215
01:28:45.640 --> 01:28:49.480
AI cases were before the Supreme Court of
the United States when he clerked there in

cue-1216
01:28:49.480 --> 01:28:54.620
the early nineteen nineties. I mean,
it's, it's a big, um, take this shiny

cue-1217
01:28:54.620 --> 01:28:58.950
thing and wave it over there so that
you're not focused on the central issues.

cue-1218
01:28:58.950 --> 01:28:59.610
And by the way,

cue-1219
01:29:00.220 --> 01:29:03.960
uh, Mr. Cohn mentioned those questions
that I gave you at the end. And when I did

cue-1220
01:29:03.960 --> 01:29:06.780
give you-- at the end of my opening
statement. When I did give you those

cue-1221
01:29:06.780 --> 01:29:11.080
questions, I was very clear that, that,
that the judge would instruct you on the

cue-1222
01:29:11.080 --> 01:29:15.320
law, and I said, "Those are questions that
you may look at during the course of the

cue-1223
01:29:15.320 --> 01:29:20.500
trial that may help you as you consider
the evidence." There was no attempt to say

cue-1224
01:29:20.500 --> 01:29:24.680
that that was the law. In fact, I was
quite clear that that was not the case.

cue-1225
01:29:24.680 --> 01:29:24.690
Um,

cue-1226
01:29:25.420 --> 01:29:29.100
we have the question about Mr. Musk's, um,
tweet

cue-1227
01:29:29.800 --> 01:29:32.040
in, um, which is exhibit, uh,

cue-1228
01:29:33.220 --> 01:29:34.100
two ninety-one.

cue-1229
01:29:35.260 --> 01:29:36.560
It's a twenty twenty tweet,

cue-1230
01:29:37.860 --> 01:29:41.260
and they claim that this somehow shows
that he was aware and, and that he should

cue-1231
01:29:41.260 --> 01:29:44.260
have brought the claim back then. I think
we're, we're done with that, but I just

cue-1232
01:29:44.260 --> 01:29:45.960
want to put this issue to rest.

cue-1233
01:29:46.570 --> 01:29:49.159
Uh, so this is the tweet that they're
referring to. They said this somehow

cue-1234
01:29:49.159 --> 01:29:54.120
indicates that Mr. Musk's aware that
Microsoft has these extraordinary rights,

cue-1235
01:29:54.120 --> 01:29:57.760
which it clearly couldn't have happened.
But, but what happens next?

cue-1236
01:29:58.900 --> 01:30:03.160
Within a week, he gets a text from Mr.
Altman, which is, um,

cue-1237
01:30:05.080 --> 01:30:06.460
uh, exhibit one oh five.

cue-1238
01:30:07.360 --> 01:30:07.820
And in it,

cue-1239
01:30:08.660 --> 01:30:13.220
um, I won't go through all the detail of
it, but he basically attempts to assure

cue-1240
01:30:13.220 --> 01:30:18.240
him that there's no problem here, and he
is not completely, uh, fulsome and candid

cue-1241
01:30:18.240 --> 01:30:20.280
in his description of what the situation
is.

cue-1242
01:30:20.980 --> 01:30:23.280
So, um, this tweet is, is all,

cue-1243
01:30:24.040 --> 01:30:25.340
uh, nonsense as well.

cue-1244
01:30:25.960 --> 01:30:30.090
So, I mean, and then the last thing I want
to raise is this stuff about this,

cue-1245
01:30:30.820 --> 01:30:31.000
this

cue-1246
01:30:31.840 --> 01:30:32.240
current

cue-1247
01:30:34.340 --> 01:30:39.700
nonprofit foundation and how they're
touting this as the greatest thing ever.

cue-1248
01:30:40.800 --> 01:30:41.000
Um,

cue-1249
01:30:41.800 --> 01:30:43.880
the testimony was clear,

cue-1250
01:30:44.620 --> 01:30:47.140
and this seems to get ig-ignored, that

cue-1251
01:30:48.480 --> 01:30:53.000
as of the fall, they had no employees.
They were doing no work. They raised no

cue-1252
01:30:53.000 --> 01:30:53.320
money.

cue-1253
01:30:54.040 --> 01:30:57.600
And yes, they did get an interest in the
for-profit,

cue-1254
01:30:58.240 --> 01:30:58.410
but

cue-1255
01:30:59.440 --> 01:31:03.140
that was something that they could have
somehow financed. I mean, I asked Mr.

cue-1256
01:31:03.140 --> 01:31:07.800
Altman that, and he conceded as much. So
it's, it, it, you know, the fact that it

cue-1257
01:31:07.800 --> 01:31:11.460
happened, that they hire a couple of
employees and announce that they're now

cue-1258
01:31:11.460 --> 01:31:14.620
doing things, making grants, not things
that are consistent with the mission, by

cue-1259
01:31:14.620 --> 01:31:20.040
the way, which is to develop safe AI on a,
um, on an open source basis with no

cue-1260
01:31:20.040 --> 01:31:23.500
person profiting. You know, the things
they're doing are grant-making type

cue-1261
01:31:23.500 --> 01:31:28.040
things. The fact that they're doing that
is, a-a-and they do it, they start doing

cue-1262
01:31:28.040 --> 01:31:32.900
it six weeks before this trial, I mean,
you can draw your own conclusions about,

cue-1263
01:31:32.900 --> 01:31:35.900
you know, the sincerity of that and what
they're really trying to do.

cue-1264
01:31:36.580 --> 01:31:36.800
So,

cue-1265
01:31:37.460 --> 01:31:41.588
um-I don't know that I've covered
everything. I've tried to. Maybe there's

cue-1266
01:31:41.588 --> 01:31:42.948
one or two more things.

cue-1267
01:31:44.848 --> 01:31:45.628
Uh, oh, yeah.

cue-1268
01:31:47.148 --> 01:31:47.728
There were so many,

cue-1269
01:31:49.168 --> 01:31:54.547
so many arrows that, uh, on the experts,
uh, they, they talked about-- They had

cue-1270
01:31:54.548 --> 01:31:57.088
Professor Hemel and, um,

cue-1271
01:31:58.148 --> 01:31:58.808
and the,

cue-1272
01:32:01.188 --> 01:32:06.088
and the Wachtell guy, Professor Coates,
who used to work at Wachtell, and Wachtell

cue-1273
01:32:06.088 --> 01:32:07.408
uses all the time on their cases.

cue-1274
01:32:08.048 --> 01:32:08.248
Um,

cue-1275
01:32:08.988 --> 01:32:10.857
they both testified to things that,

cue-1276
01:32:11.488 --> 01:32:16.408
uh, were critical of Professor Schizer,
but they didn't do their own independent

cue-1277
01:32:16.408 --> 01:32:19.168
analysis. And frankly, especially
Professor Hemel,

cue-1278
01:32:19.998 --> 01:32:24.808
um, he agreed with professors, Professor
Schizer, uh, again. And a lot of this is

cue-1279
01:32:24.808 --> 01:32:29.308
again, is trying to confuse something that
we are in agreement with. There can be a

cue-1280
01:32:29.308 --> 01:32:34.908
for-profit. It just has to be subservient
to the nonprofit. And, um,

cue-1281
01:32:35.808 --> 01:32:40.128
I don't think their testimony really did
anything, anything that disputed that or

cue-1282
01:32:40.128 --> 01:32:45.388
really did anything to, uh, contradict
anything that was said by Professor

cue-1283
01:32:45.388 --> 01:32:49.548
Schizer. The question that Coates had
raised about the, uh, pie chart,

cue-1284
01:32:50.348 --> 01:32:53.728
Professor Schizer was very
straightforward, talked about how this is

cue-1285
01:32:53.728 --> 01:32:56.818
an example of how this would work. So,
um...

cue-1286
01:33:02.648 --> 01:33:09.568
Ah, Mr. Savitt told you that the, um,
firing of Sam Altman wasn't about safety.

cue-1287
01:33:09.568 --> 01:33:09.848
All right?

cue-1288
01:33:10.808 --> 01:33:13.168
And, uh, when you, um,

cue-1289
01:33:14.968 --> 01:33:18.838
when you see the testimony of Helen Toner,

cue-1290
01:33:19.788 --> 01:33:22.918
uh, which, you know, she testified by
video,

cue-1291
01:33:23.788 --> 01:33:25.048
she said that, um...

cue-1292
01:33:26.008 --> 01:33:26.708
Where is it? Okay.

cue-1293
01:33:29.688 --> 01:33:34.148
"The decision is not about product safety
or secur-security."

cue-1294
01:33:35.208 --> 01:33:40.168
Do you see that? Answer, yes. Question, is
that an accurate statement? Answer, this

cue-1295
01:33:40.168 --> 01:33:43.828
was a complicated issue to communicate
about, but I believe the phrasing is more

cue-1296
01:33:43.828 --> 01:33:47.908
accurate. Um, and she goes on, but she
said, um, "And its board--

cue-1297
01:33:48.808 --> 01:33:53.678
And the reason that trust, accountability,
and oversight mattered for OpenAI and for

cue-1298
01:33:53.678 --> 01:33:59.408
its board were because of potentially
severe risks and safety issues that its

cue-1299
01:33:59.408 --> 01:34:06.048
technologies could pose now or in the
future, as well as the board obligation

cue-1300
01:34:06.048 --> 01:34:11.228
to ensuring that AI benefits to humanity,
not just harm them." So,

cue-1301
01:34:11.908 --> 01:34:15.868
uh, we don't have to go through any more
of that. That statement that it wasn't

cue-1302
01:34:15.868 --> 01:34:19.508
about, the firing wasn't about safety
issues. It was safety, but, but it was

cue-1303
01:34:19.508 --> 01:34:22.988
candor, and it was candor about safety,
right? I mean, that's what they were

cue-1304
01:34:22.988 --> 01:34:23.268
saying.

cue-1305
01:34:23.868 --> 01:34:25.828
So none of that holds any water.

cue-1306
01:34:26.908 --> 01:34:27.228
What else?

cue-1307
01:34:35.548 --> 01:34:35.688
Oh,

cue-1308
01:34:36.408 --> 01:34:37.288
on Microsoft.

cue-1309
01:34:38.428 --> 01:34:38.668
So

cue-1310
01:34:39.508 --> 01:34:40.348
Microsoft,

cue-1311
01:34:42.078 --> 01:34:46.307
this is interesting, you know. Did you
hear a single witness or even a single,

cue-1312
01:34:46.308 --> 01:34:49.588
uh, you know, w-witness at a trial, they
certainly didn't cite any testimony,

cue-1313
01:34:50.308 --> 01:34:50.528
um,

cue-1314
01:34:51.208 --> 01:34:52.808
about this virtuous circle thing?

cue-1315
01:34:53.508 --> 01:34:56.768
We didn't hear Mr. Nadella talk about
Microsoft having a virtuous circle. None

cue-1316
01:34:56.768 --> 01:35:00.747
of the Microsoft witnesses talk about
that. I mean, I, I don't know where, where

cue-1317
01:35:00.747 --> 01:35:05.968
that comes from. Um, there are several
things that happened here. Microsoft

cue-1318
01:35:05.968 --> 01:35:07.548
clearly knew,

cue-1319
01:35:08.188 --> 01:35:12.668
um, that Elon was publicly concerned about
AI safety. That's something that Mr.

cue-1320
01:35:12.668 --> 01:35:17.848
Nadella testified to himself, that they
knew that he founded and funded OpenAI

cue-1321
01:35:17.848 --> 01:35:20.648
because of his concerns about AI safety,

cue-1322
01:35:21.388 --> 01:35:26.178
um, and about one company being cornered.
Remember that testimony from Mr. Nadella?

cue-1323
01:35:26.178 --> 01:35:29.828
He said he was concerned with one company
sort of monopolizing that,

cue-1324
01:35:31.178 --> 01:35:32.188
um, concentration risk.

cue-1325
01:35:32.928 --> 01:35:37.208
OpenAI was a nonprofit subject to all the
nonprofit obligations. Again, Mr. Nadella

cue-1326
01:35:37.208 --> 01:35:41.328
testified that. OpenAI was dedicated to
advancing digital intelligence in a way

cue-1327
01:35:41.328 --> 01:35:44.888
that is most likely to benefit humanity as
a whole. These are from Microsoft

cue-1328
01:35:44.888 --> 01:35:45.338
documents.

cue-1329
01:35:45.968 --> 01:35:51.008
And OpenAI's basic tenet was sharing its
research, uh, and that's directly from an

cue-1330
01:35:51.008 --> 01:35:57.728
email of Microsoft. So, um, what matters
is that Microsoft knew that Elon donated

cue-1331
01:35:57.728 --> 01:36:03.448
to OpenAI, that he founded OpenAI, that it
had a very specific purpose, and it knows

cue-1332
01:36:03.448 --> 01:36:07.928
that nonprofits have a duty to use those
donations for their intended purpose to

cue-1333
01:36:07.928 --> 01:36:10.488
further the mission, and that's absolutely
clear.

cue-1334
01:36:11.288 --> 01:36:11.548
Um,

cue-1335
01:36:15.128 --> 01:36:16.848
so I want to do one more thing,

cue-1336
01:36:17.828 --> 01:36:22.068
uh, with you here. I want to show you the
verdict form you're going to have, okay?

cue-1337
01:36:22.068 --> 01:36:22.178
Um,

cue-1338
01:36:23.268 --> 01:36:29.148
and this is, this is again, directly from
the judge's, uh, instructions that you're

cue-1339
01:36:29.148 --> 01:36:32.987
gonna get. We, we, we get them, the other
side gets them, and we just printed them

cue-1340
01:36:32.988 --> 01:36:34.328
here. So I just want to show you.

cue-1341
01:36:39.268 --> 01:36:51.548
So

cue-1342
01:36:51.548 --> 01:36:54.868
there's a microphone behind you. Perhaps
use that one. I don't s--

cue-1343
01:36:58.528 --> 01:37:00.638
-Otherwise, people can't hear.
-Right.

cue-1344
01:37:04.628 --> 01:37:07.828
-Mr. Coinko is turning it on.
-Yes, Your Honor.

cue-1345
01:37:07.828 --> 01:37:11.927
Okay. Um, so this is what you're gonna
get. We, the jury, in the above entitled

cue-1346
01:37:11.928 --> 01:37:15.768
case, unanimously find, your verdict's got
to be unanimous, on the claim for breach

cue-1347
01:37:15.768 --> 01:37:19.748
of charitable trust. Is the claim barred
by the statute of limitations, right?

cue-1348
01:37:20.428 --> 01:37:25.588
And for all the reasons that we talked
about, including those just now, it's not

cue-1349
01:37:25.588 --> 01:37:28.958
barred by the statute of limitations. So
your answer to that

cue-1350
01:37:29.948 --> 01:37:34.448
is going to be no. On the claim for aiding
and abetting a breach of a charitable

cue-1351
01:37:34.448 --> 01:37:34.848
trust,

cue-1352
01:37:35.468 --> 01:37:39.358
uh, is the claim barred by statute of
limitations? Again, because of the timing,

cue-1353
01:37:39.358 --> 01:37:44.232
the answer to that will be no.On the
claim of restitution based on unjust

cue-1354
01:37:44.232 --> 01:37:49.432
enrichment, is the claim barred by the
statute of limitations? Again, no.

cue-1355
01:37:51.172 --> 01:37:52.672
That'll be the first thing that you're
gonna fill.

cue-1356
01:37:54.332 --> 01:37:54.562
Then...

cue-1357
01:37:57.092 --> 01:38:13.072
Oops.

cue-1358
01:38:13.072 --> 01:38:16.632
Much clearer than you might think, even
though there's a series of questions,

cue-1359
01:38:16.632 --> 01:38:21.232
because then, uh, only answer question
four if you answered no to question one,

cue-1360
01:38:21.232 --> 01:38:24.051
which you will have done, and said
differently if you answered yes to

cue-1361
01:38:24.112 --> 01:38:27.632
question one, skip the question. So on the
first claim for breach of charitable

cue-1362
01:38:27.632 --> 01:38:33.072
trust, did Musk prove the claim against
any of these defendants? And the answer,

cue-1363
01:38:33.072 --> 01:38:36.462
for the reasons of all the evidence that
we-- that you've seen and the evidence

cue-1364
01:38:36.462 --> 01:38:41.792
that we talked about today and earlier,
um, against Sam Altman, yes. Greg

cue-1365
01:38:41.792 --> 01:38:44.292
Brockman, yes. OpenAI Foundation, yes.

cue-1366
01:38:45.252 --> 01:38:48.652
Answer question five if you answered no to
question three.

cue-1367
01:38:49.292 --> 01:38:53.652
Um, on the second claim for restitution
based upon unjust enrichment, did Musk

cue-1368
01:38:53.652 --> 01:38:58.052
prove the claim by a preponderance of the
evidence against any of these defendants?

cue-1369
01:38:58.052 --> 01:39:03.292
Answer, Sam Altman, yes. Greg Brockman,
yes. OpenAI Found- Foundation, yes. OpenAI

cue-1370
01:39:03.292 --> 01:39:04.712
Group, ABC, yes.

cue-1371
01:39:06.292 --> 01:39:07.332
If your answer to question...

cue-1372
01:39:07.972 --> 01:39:12.672
Only answer question six if you answered
no. You've answered yes, so you won't have

cue-1373
01:39:12.672 --> 01:39:13.432
to worry about that.

cue-1374
01:39:28.592 --> 01:39:32.432
So if you answered no for every defendant
in questions four, five, and six, which

cue-1375
01:39:32.432 --> 01:39:37.512
you haven't, on the affirmative defense,
um, of latches, did the defendants

cue-1376
01:39:38.272 --> 01:39:44.292
prove by a preponderance of the evidence
that Musk delayed bringing his lawsuit for

cue-1377
01:39:44.292 --> 01:39:48.552
an unreasonable length of time? But for
the same reasons that it's within the

cue-1378
01:39:48.552 --> 01:39:53.552
statute of limitations, the answer will
be, uh, uh, yeah, defense of latches.

cue-1379
01:39:54.292 --> 01:39:58.052
Did the defendants prove, because this is
the defendant's burden of proof, not, not

cue-1380
01:39:58.052 --> 01:39:58.372
mine,

cue-1381
01:39:59.092 --> 01:39:59.292
um,

cue-1382
01:39:59.912 --> 01:40:02.762
that Musk delayed bringing this lawsuit?
The answer is no, he did not.

cue-1383
01:40:03.382 --> 01:40:07.382
And on the affirmative defense of unclean
hands, those were those five project

cue-1384
01:40:07.382 --> 01:40:11.232
claims that I've mentioned, um, on the
affirmative defense of unclean hands, did

cue-1385
01:40:11.232 --> 01:40:15.672
the defendants prove by a preponderance of
the evidence that Musk engaged in conduct

cue-1386
01:40:15.672 --> 01:40:20.312
that was unconscionable, directly related
to his claims? The answer is no. And then

cue-1387
01:40:20.312 --> 01:40:21.112
whoever

cue-1388
01:40:21.712 --> 01:40:25.412
is, uh, among you who decides that you're
gonna be the, the, the chairman, or you

cue-1389
01:40:25.412 --> 01:40:31.312
all elect the chairman, will sign it. So,
uh, these forms sometimes for jurors,

cue-1390
01:40:32.272 --> 01:40:34.952
you know, there's a little discomfort
because it's just an unusual thing that we

cue-1391
01:40:34.952 --> 01:40:40.572
do. You, uh, judge-- the judge took a
great deal of, um, pain and effort to make

cue-1392
01:40:40.572 --> 01:40:46.052
sure that these were clear instructions
that would give you a clear path, but I

cue-1393
01:40:46.052 --> 01:40:47.372
felt that I wanted to just

cue-1394
01:40:48.552 --> 01:40:50.172
start and see

cue-1395
01:40:50.232 --> 01:40:52.812
what it would be to, to decide to write
it.

cue-1396
01:41:03.492 --> 01:41:03.652
So

cue-1397
01:41:05.172 --> 01:41:06.312
I just wanna talk about one more thing,

cue-1398
01:41:07.852 --> 01:41:08.832
and that is, um,

cue-1399
01:41:10.892 --> 01:41:13.532
this case and what it means. And

cue-1400
01:41:15.552 --> 01:41:17.432
it, it was really gratifying,

cue-1401
01:41:18.152 --> 01:41:20.412
really gratifying to go through jury
selection

cue-1402
01:41:21.152 --> 01:41:21.472
and

cue-1403
01:41:22.212 --> 01:41:23.272
have each of you,

cue-1404
01:41:24.192 --> 01:41:25.532
you know, say, "Hey, I'm gonna,

cue-1405
01:41:26.212 --> 01:41:28.672
I'm gonna judge this case on the law and
facts.

cue-1406
01:41:29.652 --> 01:41:32.602
I may have negative feelings about Elon
Musk. I may have positive feelings on,

cue-1407
01:41:33.322 --> 01:41:37.572
uh, Elon Musk, but that's not what this is
about. This is the system of justice.

cue-1408
01:41:37.572 --> 01:41:40.931
This is a system where we decide what the
law

cue-1409
01:41:42.312 --> 01:41:42.952
affords

cue-1410
01:41:44.132 --> 01:41:47.792
the people that are in this courtroom as
litigants." All right? Everybody here has

cue-1411
01:41:47.792 --> 01:41:48.112
rights,

cue-1412
01:41:49.032 --> 01:41:51.372
even really rich guys like Elon Musk.

cue-1413
01:41:52.072 --> 01:41:59.052
And his claim is a claim that comes from a
very deep place inside him over

cue-1414
01:41:59.052 --> 01:42:01.412
his, um, passion for this issue.

cue-1415
01:42:03.452 --> 01:42:05.792
The evidence establishes that we're right.

cue-1416
01:42:07.112 --> 01:42:08.932
We are. And

cue-1417
01:42:10.052 --> 01:42:12.742
I'd ask you to think about the
consequences if

cue-1418
01:42:14.452 --> 01:42:17.672
we're not found that we're right. For some
reason, somebody says that, "Well, geez,

cue-1419
01:42:17.672 --> 01:42:18.602
-that's not right."
-So thank-

cue-1420
01:42:18.602 --> 01:42:20.912
That means that someone can take a, a
charity-

cue-1421
01:42:20.912 --> 01:42:21.922
-Mr. Mull.
-Yes.

cue-1422
01:42:21.922 --> 01:42:23.292
-Just be careful.
-Okay.

cue-1423
01:42:24.512 --> 01:42:24.772
And

cue-1424
01:42:25.932 --> 01:42:26.052
w-

cue-1425
01:42:27.172 --> 01:42:27.572
that

cue-1426
01:42:30.252 --> 01:42:31.552
this case as, as

cue-1427
01:42:32.352 --> 01:42:35.512
the facts here are the facts here, but
there's a lot of high-profile people

cue-1428
01:42:35.512 --> 01:42:35.952
involved.

cue-1429
01:42:37.312 --> 01:42:40.252
You will make the decision on the law and
on the evidence.

cue-1430
01:42:41.212 --> 01:42:41.952
It's all you're gonna do.

cue-1431
01:42:42.892 --> 01:42:46.372
But I'd, I'd invite you to think what it
is that, um,

cue-1432
01:42:47.032 --> 01:42:50.612
that we're doing here with, with, with
something that is this great. Not many

cue-1433
01:42:50.612 --> 01:42:52.122
people in life

cue-1434
01:42:53.312 --> 01:42:55.772
get the opportunity to do what

cue-1435
01:42:56.532 --> 01:42:57.612
we're asking you to do,

cue-1436
01:42:58.792 --> 01:43:00.132
and that is to

cue-1437
01:43:00.752 --> 01:43:01.272
right a wrong.

cue-1438
01:43:02.532 --> 01:43:04.432
I mean, a lot of us go through our lives,

cue-1439
01:43:05.292 --> 01:43:09.071
we are wronged in some fashion or another,
or we certainly think we are, or we see

cue-1440
01:43:09.072 --> 01:43:09.812
people wronged,

cue-1441
01:43:10.552 --> 01:43:13.912
and we feel like there's nothing that can
be, can be done about it.

cue-1442
01:43:15.872 --> 01:43:18.032
We are here asking you for justice.

cue-1443
01:43:18.812 --> 01:43:20.592
That's all we're asking for.

cue-1444
01:43:21.392 --> 01:43:22.272
And, um,

cue-1445
01:43:23.592 --> 01:43:27.492
very, very capable lawyers, very
well-funded parties on the other side.

cue-1446
01:43:28.932 --> 01:43:29.352
Obviously, Mr.

cue-1447
01:43:30.212 --> 01:43:32.612
Musk, um, is, is who he is.

cue-1448
01:43:33.332 --> 01:43:36.432
But at the end of the day, what we're
about here is to decide

cue-1449
01:43:38.552 --> 01:43:40.692
an issue before a court of law,

cue-1450
01:43:41.972 --> 01:43:42.272
and

cue-1451
01:43:43.332 --> 01:43:49.072
we trust that-The decision you make will
be a fair one that is consistent with the

cue-1452
01:43:49.072 --> 01:43:51.352
law, that will administer justice.

cue-1453
01:43:52.332 --> 01:43:54.392
We thank you very much for the time that
you've

cue-1454
01:43:55.452 --> 01:43:58.932
spent listening to this case and for the
time that you're gonna spend deliberating

cue-1455
01:43:58.932 --> 01:43:59.512
on this case,

cue-1456
01:44:00.192 --> 01:44:05.471
and we have a high degree of confidence in
placing our trust in you. So thank you

cue-1457
01:44:05.472 --> 01:44:06.611
very much.

cue-1458
01:44:06.612 --> 01:44:08.892
We, uh, wish you good luck in your
deliberations

cue-1459
01:44:09.552 --> 01:44:13.702
and, um, I guess we'll see you again at
some point in the not too distant future.

cue-1460
01:44:14.892 --> 01:44:17.321
-[laughs]
-All right. Thank you.

cue-1461
01:44:17.321 --> 01:44:17.572
-Yeah.
-Okay.

cue-1462
01:44:18.372 --> 01:44:19.172
Members of the jury.

cue-1463
01:44:20.532 --> 01:44:20.892
-Oh-
-Before-

cue-1464
01:44:20.892 --> 01:44:23.712
Your Honor, there's ... Mr. Cry had one
issue.

cue-1465
01:44:23.712 --> 01:44:26.772
Yeah. I, I'm sorry, Your Honor. I ... One,
one housekeeping matter. The plaintiff

cue-1466
01:44:26.772 --> 01:44:31.252
would, uh, move under Rule 50(a) against
the affirmative defenses for sufficiency

cue-1467
01:44:31.252 --> 01:44:31.821
of the evidence,

cue-1468
01:44:32.672 --> 01:44:33.872
Rule 50(a).

cue-1469
01:44:35.352 --> 01:44:35.532
Uh-

cue-1470
01:44:36.162 --> 01:44:36.432
-D-
-Thank you.

cue-1471
01:44:38.092 --> 01:44:41.952
All right. Members of the jury, before you
begin your deliberations,

cue-1472
01:44:42.792 --> 01:44:46.992
you should elect one member of the jury as
your presiding juror.

cue-1473
01:44:48.052 --> 01:44:52.692
The presiding juror will preside over your
deliberations and serve as the

cue-1474
01:44:52.692 --> 01:44:58.572
spokesperson for you here in the court. We
can take that down, Edmund.

cue-1475
01:44:58.572 --> 01:44:59.312
Oh, this one.

cue-1476
01:45:00.232 --> 01:45:03.432
You should, um, and this is there in your
book, it's the end,

cue-1477
01:45:04.152 --> 01:45:09.492
you shall diligently strive to reach
agreement with all the other jurors if you

cue-1478
01:45:09.492 --> 01:45:10.172
can do so,

cue-1479
01:45:11.252 --> 01:45:13.652
and your verdict must be unanimous.

cue-1480
01:45:15.312 --> 01:45:17.812
Each of you must decide the case for
yourself,

cue-1481
01:45:18.812 --> 01:45:19.052
but

cue-1482
01:45:19.832 --> 01:45:24.492
you should do so only after you have
considered all the evidence, discussed it

cue-1483
01:45:24.492 --> 01:45:27.752
fully with the other jurors, and listened
to their views.

cue-1484
01:45:28.912 --> 01:45:34.092
It is important that you attempt to reach
a unanimous verdict, but, of course, only

cue-1485
01:45:34.092 --> 01:45:35.452
if each of you can do so

cue-1486
01:45:36.132 --> 01:45:39.192
after having made your own conscientious
decision.

cue-1487
01:45:40.172 --> 01:45:46.192
Do not be willing, unwilling to change
your opinion if the discussion persuades

cue-1488
01:45:46.192 --> 01:45:47.072
you that you should.

cue-1489
01:45:47.992 --> 01:45:52.122
But do not come to a decision simply
because other jurors think it is right,

cue-1490
01:45:52.792 --> 01:45:56.732
or change an honest belief about the
weight and effect of the evidence simply

cue-1491
01:45:56.732 --> 01:45:57.452
to reach a verdict.

cue-1492
01:45:58.512 --> 01:46:03.552
Because your decision and verdict must
only be based on the evidence received in

cue-1493
01:46:03.552 --> 01:46:05.492
this case and on these instructions,

cue-1494
01:46:06.292 --> 01:46:10.792
I remind you that you must not be exposed
to any other information about the case or

cue-1495
01:46:10.792 --> 01:46:12.112
the issues involved

cue-1496
01:46:12.832 --> 01:46:13.052
in it,

cue-1497
01:46:14.192 --> 01:46:17.491
except for discussing the case now with
your fellow jurors during your

cue-1498
01:46:17.492 --> 01:46:18.292
deliberations.

cue-1499
01:46:19.032 --> 01:46:23.372
It's been a while since I've read this to
you, but I'm gonna go ahead and read it

cue-1500
01:46:23.372 --> 01:46:23.752
again.

cue-1501
01:46:25.212 --> 01:46:31.051
Do not communicate with anyone in any way
and do not let anyone else communicate

cue-1502
01:46:31.052 --> 01:46:35.232
with you in any way about the merits of
this case or anything to do with it.

cue-1503
01:46:36.072 --> 01:46:39.932
This includes discussing the case in
person, in writing, by phone, tablet,

cue-1504
01:46:39.932 --> 01:46:41.512
computer, or any other means,

cue-1505
01:46:42.132 --> 01:46:47.172
via email, text messaging, or any internet
chat room, blog, website, or application,

cue-1506
01:46:47.852 --> 01:46:53.072
including but not limited to Facebook,
YouTube, X, formerly known as Twitter,

cue-1507
01:46:53.072 --> 01:46:57.632
Instagram, LinkedIn, Snapchat, TikTok, or
any form of social media.

cue-1508
01:46:58.492 --> 01:47:02.532
This applies to communicating with your
family members, your employer, the press,

cue-1509
01:47:02.532 --> 01:47:03.032
the media,

cue-1510
01:47:04.212 --> 01:47:08.572
um, the people involved in this trial. If
you're asked or approached in any way

cue-1511
01:47:08.572 --> 01:47:14.192
about your jury service or anything about
this case, you must respond that you have

cue-1512
01:47:14.192 --> 01:47:18.672
been ordered not to discuss this matter
and report any contact to the court.

cue-1513
01:47:19.482 --> 01:47:23.992
Do not read, watch, or listen to any news
or media accounts or commentary about the

cue-1514
01:47:23.992 --> 01:47:24.772
case

cue-1515
01:47:24.972 --> 01:47:27.992
or anything to do with it. Do not do any
research,

cue-1516
01:47:28.732 --> 01:47:33.452
such as consulting dictionaries, searching
the Internet, or using any other

cue-1517
01:47:33.452 --> 01:47:38.712
reference materials. Do not make any
investigation or in any way try to learn

cue-1518
01:47:38.712 --> 01:47:40.812
anything about the case on your own.

cue-1519
01:47:42.152 --> 01:47:43.472
Also, do not research,

cue-1520
01:47:44.272 --> 01:47:48.852
um, do any research about the case, the
law, or the people involved, including the

cue-1521
01:47:48.852 --> 01:47:50.672
parties, the witnesses, or the lawyers,

cue-1522
01:47:51.272 --> 01:47:53.051
until you've been excused as jurors.

cue-1523
01:47:54.352 --> 01:47:57.632
If you happen to read or hear anything
touching on the case in the media, just

cue-1524
01:47:57.632 --> 01:47:59.972
turn away and let me know as soon as
possible.

cue-1525
01:48:01.052 --> 01:48:05.932
These rules are here to protect each
party's right to have this case decided

cue-1526
01:48:05.932 --> 01:48:09.092
solely on the evidence that was presented
here in court.

cue-1527
01:48:10.092 --> 01:48:14.362
Witnesses here in court take an oath to
tell the truth, and the accuracy of their

cue-1528
01:48:14.362 --> 01:48:18.732
testimony is tested through the trial
process.

cue-1529
01:48:19.592 --> 01:48:23.472
If you do any research or investigation
outside of the courtroom or gain

cue-1530
01:48:23.472 --> 01:48:26.042
information through improper
communications,

cue-1531
01:48:26.712 --> 01:48:32.212
then your verdict may be influenced by
inaccurate, incomplete, or misleading

cue-1532
01:48:32.212 --> 01:48:36.772
information that has not been tested by
the trial process.

cue-1533
01:48:38.032 --> 01:48:42.152
Each of the parties is entitled to a fair
trial by an impartial jury,

cue-1534
01:48:42.892 --> 01:48:47.352
and if you decide the case based on
information not presented in this, uh,

cue-1535
01:48:47.352 --> 01:48:47.572
court,

cue-1536
01:48:48.532 --> 01:48:51.592
you will have denied the parties a fair
trial.

cue-1537
01:48:52.692 --> 01:48:56.412
Remember, you've taken an oath to follow
these rules, and it's important that you

cue-1538
01:48:56.412 --> 01:48:56.932
do so.

cue-1539
01:48:58.172 --> 01:49:02.512
Any juror who violates these restrictions
jeopardizes the fairness of these

cue-1540
01:49:02.512 --> 01:49:03.232
proceedings.

cue-1541
01:49:04.232 --> 01:49:06.092
If you're exposed again, just let me know.

cue-1542
01:49:07.272 --> 01:49:10.972
If it becomes necessary during your
deliberations to communicate with me,

cue-1543
01:49:11.672 --> 01:49:16.492
you may send a note through the courtroom
deputy, and Mr. Cuenco will provide you

cue-1544
01:49:16.492 --> 01:49:16.992
forms.

cue-1545
01:49:17.812 --> 01:49:20.092
A note to me can be signed by any of you,

cue-1546
01:49:20.712 --> 01:49:21.972
not just the foreperson.

cue-1547
01:49:22.812 --> 01:49:26.352
It does not have to, as a note, does not
have to be the presiding juror.

cue-1548
01:49:27.312 --> 01:49:31.592
No member of the jury should ever attempt
to communicate with me except by signed

cue-1549
01:49:31.592 --> 01:49:34.932
writing, and I will not communicate with
any member of the jury

cue-1550
01:49:35.552 --> 01:49:41.192
on anything concerning this case except in
signed writing or here in open court.

cue-1551
01:49:42.272 --> 01:49:46.932
If you send out a question, please
understand I must consult with the lawyers

cue-1552
01:49:46.932 --> 01:49:48.022
before answering it,

cue-1553
01:49:48.832 --> 01:49:53.232
so it may take some time. Please continue
your deliberations while waiting for the

cue-1554
01:49:53.232 --> 01:49:59.262
answer to any question.Remember, you are
not to tell anyone, including the court,

cue-1555
01:49:59.262 --> 01:50:00.342
how the jury stands,

cue-1556
01:50:00.982 --> 01:50:05.782
whether in terms of a vote count or
otherwise, until after you have reached a

cue-1557
01:50:05.782 --> 01:50:09.642
unanimous verdict or you have been
discharged.

cue-1558
01:50:11.101 --> 01:50:14.482
As I noted, a verdict form has been
prep-prepared for you.

cue-1559
01:50:15.102 --> 01:50:18.661
I've instructed you on the law that you're
to use in answering the questions, and

cue-1560
01:50:18.662 --> 01:50:20.212
you should follow my instructions

cue-1561
01:50:20.822 --> 01:50:22.382
and the form carefully.

cue-1562
01:50:23.712 --> 01:50:28.202
You must, uh, consider each question
separately,

cue-1563
01:50:29.382 --> 01:50:33.422
and after you answer a question, the form
tells you what to do next.

cue-1564
01:50:34.102 --> 01:50:39.282
You must be unanimous on each answer of
the questions.

cue-1565
01:50:39.922 --> 01:50:40.202
Okay.

cue-1566
01:50:41.922 --> 01:50:46.962
I would ask that, uh, before you leave
today, you confer and let us know what

cue-1567
01:50:46.962 --> 01:50:50.062
your schedule is. That will help the
parties for next week.

cue-1568
01:50:50.722 --> 01:50:55.042
I've told them you will not be here
tomorrow, so I expect you to be back on

cue-1569
01:50:55.042 --> 01:51:00.382
Monday. But if you could do that before
you leave and let Mr. Quenco know, again,

cue-1570
01:51:00.382 --> 01:51:01.942
on a note, write it in a note,

cue-1571
01:51:02.622 --> 01:51:04.142
and then deliver it back to him.

cue-1572
01:51:05.262 --> 01:51:09.482
Before I let you go, are there any
questions? And we will be providing lunch

cue-1573
01:51:09.482 --> 01:51:12.202
every day, so you don't have to worry
about that. Okay.

cue-1574
01:51:12.842 --> 01:51:13.882
Any questions?

cue-1575
01:51:15.722 --> 01:51:15.942
No.

cue-1576
01:51:17.842 --> 01:51:24.762
All right. Then, uh, you may leave the
courtroom, and we'll stand in recess, uh,

cue-1577
01:51:24.762 --> 01:51:27.702
-until Monday morning.
-Please rise for the jury.

cue-1578
01:51:37.902 --> 01:51:52.302
Thank

cue-1579
01:51:52.302 --> 01:51:54.102
you, ladies and gentlemen.

cue-1580
01:51:55.142 --> 01:51:57.862
Um, okay, there's just, uh,

cue-1581
01:51:59.142 --> 01:52:03.422
there are just a couple of technical
things. One, the, the transcript at

cue-1582
01:52:04.142 --> 01:52:06.202
fourteen colon fifty-three,

cue-1583
01:52:07.182 --> 01:52:08.932
uh, which was at the recess, uh,

cue-1584
01:52:09.762 --> 01:52:13.702
I used the word, uh, sustained. It should
have been overruled.

cue-1585
01:52:15.002 --> 01:52:16.022
Um, next,

cue-1586
01:52:16.682 --> 01:52:22.542
there is an outstanding gavel at docket
number three ninety-five.

cue-1587
01:52:23.342 --> 01:52:24.962
This has to do with some,

cue-1588
01:52:25.922 --> 01:52:30.902
uh, meet and confer that was supposed to
happen over sealed document that I bel- I

cue-1589
01:52:30.902 --> 01:52:32.562
think it's a Microsoft issue.

cue-1590
01:52:33.462 --> 01:52:34.882
Um, would you all please,

cue-1591
01:52:35.602 --> 01:52:39.182
uh, let me know what to do with that by
tomorrow?

cue-1592
01:52:39.182 --> 01:52:39.542
Will do.

cue-1593
01:52:40.242 --> 01:52:43.302
Okay. It's, it should-- I'm hoping it's
some small thing.

cue-1594
01:52:45.462 --> 01:52:45.802
Okay.

cue-1595
01:52:46.792 --> 01:52:47.102
Um,

cue-1596
01:52:49.542 --> 01:52:51.942
as soon as we, uh, know what the jury,

cue-1597
01:52:53.242 --> 01:52:59.162
uh, their schedule is gonna be, we will
let you all know. Anything that you all

cue-1598
01:52:59.162 --> 01:53:00.582
need at this point,

cue-1599
01:53:02.862 --> 01:53:06.162
-um, from the plaintiffs? No.
-Nothing.

cue-1600
01:53:06.222 --> 01:53:06.542
Okay.

cue-1601
01:53:07.362 --> 01:53:10.202
And, uh, from the defense? Anything-

cue-1602
01:53:11.262 --> 01:53:17.502
Should we just supply your staff with a
phone number or for deliberations or what

cue-1603
01:53:17.502 --> 01:53:20.522
-is, what's appropriate to the court?
-Yeah. So, um,

cue-1604
01:53:21.902 --> 01:53:27.962
a-as I think I've indicated, um, I'd like
someone from every side to be here within,

cue-1605
01:53:28.702 --> 01:53:33.382
you know, preferably five, no more than
ten minutes to the courtroom while the

cue-1606
01:53:33.382 --> 01:53:34.542
jury's deliberating.

cue-1607
01:53:35.622 --> 01:53:35.732
Um,

cue-1608
01:53:36.542 --> 01:53:37.882
why don't you, um,

cue-1609
01:53:39.062 --> 01:53:44.442
leave Mr. Quenco whichever number is, uh,
you need, or if we're communicating with

cue-1610
01:53:44.442 --> 01:53:47.602
you by email, that's fine too. But I would
just talk to him

cue-1611
01:53:48.942 --> 01:53:54.442
later. I do have a, a criminal matter that
I need to deal with at four o'clock, so

cue-1612
01:53:54.442 --> 01:53:57.442
he's not gonna have a ton of time. You can
also just send him an email.

cue-1613
01:53:58.062 --> 01:53:59.102
-That's-
-Thank you very much, Judge.

cue-1614
01:54:00.022 --> 01:54:03.522
Okay. Anything else, Mr. Savitt, Ms. Eddy?

cue-1615
01:54:04.842 --> 01:54:09.302
N-no, thank you, Your Honor. We'll await
court's instructions respecting Monday

cue-1616
01:54:09.302 --> 01:54:12.462
-count.
-Yeah. And, um, so we'll start our part at

cue-1617
01:54:12.462 --> 01:54:15.142
nine o'clock. I think we don't have to be
here at eight.

cue-1618
01:54:16.202 --> 01:54:19.062
-Thank you.
-Mr. Cry told me he would really like that.

cue-1619
01:54:19.062 --> 01:54:21.462
Okay.

cue-1620
01:54:22.282 --> 01:54:22.462
Um,

cue-1621
01:54:23.382 --> 01:54:25.362
then we'll stand in recess. Thank you very
much.

cue-1622
01:54:28.702 --> 01:54:33.112
-Oh.
-[clears throat] Hmm.

cue-1623
01:54:53.201 --> 01:56:00.802
[background chattering]

cue-1624
01:56:05.394 --> 01:56:09.894
May I have representatives from the
parties for as far as jury meals are

cue-1625
01:56:09.894 --> 01:56:11.074
concerned?

cue-1626
01:56:12.454 --> 01:56:13.274
This is for Monday.

cue-1627
01:56:31.834 --> 01:56:37.074
Mike wasn't [background noise]

cue-1628
01:56:37.074 --> 01:56:41.874
They did submit their preferences,

cue-1629
01:56:42.694 --> 01:56:47.974
and not everyone, not everyone submitted
for Monday evening, whatever order they

cue-1630
01:56:47.974 --> 01:56:48.174
had.

cue-1631
01:56:49.254 --> 01:56:50.874
Okay. Oh, I see.

cue-1632
01:56:51.874 --> 01:56:53.794
But the boards, the boards worked out for
you.

cue-1633
01:56:54.754 --> 01:56:56.664
You know what? March will

cue-1634
01:56:59.374 --> 01:56:59.874
be

cue-1635
01:57:03.274 --> 01:57:21.074
great.

cue-1636
01:57:21.234 --> 01:57:29.754
[background noise]

cue-1637
01:57:29.754 --> 01:57:33.414
Oh, those are just eight copies of what I

cue-1638
01:57:33.414 --> 01:57:35.914
got. Perfect.

cue-1639
01:57:40.054 --> 01:57:42.534
That's my phone number.

cue-1640
01:57:48.074 --> 01:57:50.554
Um, yes, but what are changes for Monday?

cue-1641
01:57:54.494 --> 01:57:57.854
Those who are not there, it means they get
the same lunch for Monday.

cue-1642
01:57:58.694 --> 01:57:59.994
Those are just seven.

cue-1643
01:57:59.994 --> 01:58:06.754
[background noise] And they included their

cue-1644
01:58:06.754 --> 01:58:10.114
preferences for drink. [background noise]

cue-1645
01:58:10.114 --> 01:58:16.934
Council.

cue-1646
01:58:16.934 --> 01:58:22.794
You're most welcome. You're

cue-1647
01:58:22.794 --> 01:58:27.254
welcome. [background noise]

cue-1648
01:58:29.394 --> 01:58:36.314
I'm opening it. [background noise] Oh,
they're-- I would say that they're

cue-1649
01:58:36.314 --> 01:58:39.474
all of them, I'm sure. Thank you, Council
Member Gordon. [background noise]

cue-1650
01:58:40.594 --> 01:58:44.274
I'm, I may need representative, uh,
council from each side because I'm

cue-1651
01:58:44.274 --> 01:58:45.434
expecting a jury.