Apple wants OpenAI's late-filed testimony kept in the record for its injunction hearing

Chang Liu handed his iMac back to Apple with the data erased. Apple's filing puts the verb in quotation marks: Liu "wiped" the machine before returning it ^[7]. According to Apple, his new declaration gives his reasons for that. It also gives his reading of text messages with an Apple supplier and his account of using one confidential Apple file ^[7]. Apple's latest filing attacks that declaration and also asks the judge to consider it along with everything else ^[10].

The defendants called their filing an objection. According to Apple, it argued the merits, down to disputing whether one Apple expert, Dr. Runge, has a "basis to offer any analysis" ^[13]. They also attached documents countering Apple's claims ^[4]. The local rule Apple cites, 7-3(d)(1), lets a party object to new evidence in a reply but says the filing "may not include further argument on the motion" ^[5]. Apple wrote that the defendants' new arguments and evidence read more like a sur-reply than an objection, and that the defendants never sought leave to file a sur-reply ^[11]. By Apple's count, the objection and the declaration together ran nine pages against a five-page limit ^[8]. That is four pages over ^[14].

Apple's own filing has a similar gap between label and request. It is framed as a complaint about overreach. The relief it asks for is that nothing be struck: deny the defendants' request to set aside Apple's reply evidence, and decide the injunction on a full record with the defendants' new material included ^[10].

Set that request beside the condition the defendants put on Liu's declaration ^[9], and no party is asking for a split result. The two positions leave the judge two records to choose from. One is everything. The other is a narrower record with Apple's challenged reply evidence and Liu's explanation both left out ^[15].

The choice matters to OpenAI's hardware team because of what the injunction is for. Apple says the injunction would keep its trade secrets from being worked any deeper into OpenAI's hardware development while the lawsuit is pending ^[2]. The evidence ruling sets what the court weighs when it hears arguments on October 14 ^[12]. It does not decide the motion, and the filings as reported do not spell out what an injunction would order OpenAI to stop doing. I think Apple is betting that five expert declarations ^[3] hold up against eight paragraphs from Liu ^[6].

Outside the courtroom, this case is for the people who hire out of a rival's hardware group and then have to explain the hire when a lawyer asks. The evidence in dispute is the ordinary record of someone leaving a job. A hiring team can ask two questions about any such hire. One is whether the person's old devices went back intact or erased. The other is whether their contact with the old employer's suppliers, and any confidential file they opened, has a written account made at the time. A hire whose devices went back intact, with that account on file, leaves the least to explain. When a device went back erased and nothing was written down, the explanation comes later, as testimony, while a judge decides whether to read it. Liu's iMac went back erased, and his explanation reached the court as new testimony in the middle of a fight over page limits ^[7][8].