Library Genesis, the notorious shadow library, is back in the news. Last week, Magistrate Judge Wang handed another (partial) discovery loss to OpenAI.
The most significant part of the ruling allows the plaintiffs in the In re OpenAI Copyright Infringement Litigation to discover “Slack messages between Adam Nace, Alex Paino, Bob McGrew, Matt Knight, Nick Ryder, Lilian Weng, Jeff Wu, Jakub Pachocki, Jason Kwon , and Che Chang about deleting Library Genesis.” Although some of the discovery requests involved attorney-client communications, many other communications were not privileged, Judge Wang concluded.
Log No. 14 (OPCO_NDCAL_1615282) contains Slack messages between Adam Nace, Alex Paino, Bob McGrew, Matt Knight, Nick Ryder, Lilian Weng, Jeff Wu, Jakub Pachocki, Jason Kwon , and Che Chang about deleting Library Genesis; OpenAI has withheld these Slack messages entirely. The vast majority of these withheld Slack messages are “plainly devoid of any request for legal advice,” and “counsel does not once weigh in.” In re Aenergy, S.A., 451 F. Supp. 3d 319, 324 (S.D.N.Y. 2020) (finding no attorney-client privilege and ordering production of a string of emails between non-legal employees where counsel was merely copied and did not contribute). The only participation by counsel in this document occurs when Jason Kwon changes the name of the Slack channel (i.e., the document title) from “excise-libgen” to “project-clear,” which is not privileged because document titles and changes to document titles are not privileged, notwithstanding the privileged status of any information contained in the document, unless the title itself, “without reference to the document’s contents, reveals privileged information.”
DOWNLOAD MAGISTRATE JUDGE WANG’S ORDER ANNOTATED BY US