But this claim hinges entirely upon xAI proving that OpenAI poached its employees to steal its trade secrets. So, for xAI’s lawsuit to proceed, xAI will need to beef up the evidence base for its other claim, that OpenAI has violated the federal Defend Trade Secrets Act, Lin said. To succeed on that, xAI must prove that OpenAI unlawfully acquired, disclosed, or used a trade secret with xAI’s consent.
That will likely be challenging because xAI, at this point, has not offered “any nonconclusory allegations that OpenAI itself acquired, disclosed, or used xAI’s trade secrets,” Lin wrote.
All xAI has claimed is that OpenAI induced former employees to share secrets, and so far, nothing backs that claim, Lin said. Tishler noted that the court also rejected an xAI theory that “OpenAI should be responsible for what its new hires did before they arrived” for “the same reason: without evidence that OpenAI directed the theft or actually put the stolen information to use, you cannot hold the company liable.”
The strongest evidence that xAI had of employee misconduct, allegedly allowing OpenAI to misappropriate xAI trade secrets, revolves around the departure of one of xAI’s earliest engineers, Xuechen Li.
That evidence wasn’t enough, Lin said. xAI alleged that Li gave a presentation to OpenAI that supposedly included confidential information. Li also uploaded “the entire xAI source code base to a personal cloud account,” which he had connected to ChatGPT, Lin noted, after a recruiter sent a message on Signal sharing a link with Li to another unrelated cloud storage location.
xAI hoped the Signal messages would shock the court, expecting it to read through the lines the way xAI did. As proof that OpenAI allegedly got access to xAI’s source code, xAI pointed to a Signal message that an OpenAI recruiter sent to Li “four hours after” Li downloaded the source code, saying “nw!” xAI has alleged this message is short-hand for “no way!”—suggesting the OpenAI recruiter was geeked to get access to xAI’s source code. But in a footnote, Lin said that “OpenAI insists that ‘nw’ means ‘no worries,’” and thus is unconnected to Li’s decision to upload the source code to a ChatGPT-linked cloud account.