• by Ray Schultz , Columnist, September 15, 2024

The debate over how documents should be numbered in discovery in the case of New York Daily News and other Alden Global Capital properties versus OpenAI and Microsoft has taken a new turn.  

OpenAI and Microsoft have written to the court, urging it to deny a motion from the plaintiffs to force production of documents using the same numbering system as that was used in the case filed by The New York Times.

“This letter motion never should have been filed,” attorneys for OpenAI and Microsoft argue in a letter to Magistrate Judge Ona T. Wang of the U.S. District Court for the Southern District of New York. “Defendants will produce relevant and responsive documents in this case with document control numbers specific to this case, and Defendants have not at any time refused to produce these documents.”

The Daily News plaintiffs had argued that it would be “confusing, inefficient, and cumulative” to use separate numbering systems in the identical cases. 

But the defense argues, “Even in a single case, it is common for the same document to have different document control numbers. For example, an email could be produced by both the plaintiff and the defendant, and yet depositions go on. It is even less surprising to find the same situation in overlapping multi-case litigations that are not formally consolidated.”

None of this addresses the central issue in the case—the alleged scraping of content by the tech companies. These players can afford legal teams to quibble over these points, but what of smaller publishers who can’t? The defense will wear them down.