The craziest part of Musk v. Altman happened while the jury was out of the room

Well, I’m not a lawyer, so I only understood half of what just happened. But I’m pretty sure, given the context, that Elon Musk’s lawyers probably made a big mistake.

“Jared”James BrickhouseBirchall, Musk’s finance man and overall coordinator, took the stand after Musk today. Most of his testimony was boring and seemed to be primarily about reading some documents into the record, which is gross but a normal part of sitting through trials. But in very At the end of his boring testimony something interesting happened. I think we all got a surprise, something that rarely happens in courtrooms.

The lawyer conducting his direct questioning received a memo from another member of the team, and asked Birchall what appeared to be in the memo: Was he aware of xAI’s bid for OpenAI’s assets?

“As I recall, one of the attorneys we were working with asked the California Attorney General to ensure that as part of his fiduciary duty, the appropriate value was given to the assets of the OpenAI nonprofit,” Birchall said. In his understanding, there were negotiations “between Sam Altman on both sides of the table, both for-profit and non-profit, in an attempt to discount the value of the non-profit’s assets. We made this offer in an attempt to properly calculate the value that the organization had, and to create a market offer that would need to be considered by the Attorney General.”

Here’s some information: In February 2025, A consortium led by Musk has made a $97.4 billion bid to buy the nonprofit that controls OpenAI. The presentation was made by Mark Toberoff, one of Musk’s lawyers in the current case. The offering occurred while OpenAI was restructuring itself so that the for-profit arm could be allowed to go public. In Birchall’s testimony, this offer was made because Musk, Birchall and others believed Altman might undervalue the nonprofit while restructuring the company itself. (I’m not really sure why that’s an issue for Musk and xAI, honestly, but whatever).

The defense attorney objected, and Birchall’s statement was struck as lacking merit. So we did it piece by piece to create the foundation, and it ended with Birchall saying again, “Sam Altman was on both sides of the table.”

During questioning, Wachtell Lipton’s Bradley Wilson – OpenAI’s lawyer – rephrased the topic again. Wilson asked how much Birchall learned from sources other than lawyers. Birchall said he would have a hard time sorting that out. After a few more exchanges, Wilson moved to strike all of Birchall’s testimony about the xAI demonstration for reasons that will not be discussed before the jury.

The jury had to leave early while the attorneys were disposing of the matter, and this is where it got weird. Judge Yvonne Gonzalez Rogers began asking Birchall questions herself, clearly making Birchall nervous. Birchall said he doesn’t recall discussing the xAI demo with Musk, Sharon Zilis or any other director in Musk’s organization. It certainly looked like Musk’s lawyers didn’t provide OpenAI with proper discovery on this topic in the depositions, so we were doing a quick and dirty briefing. With the judge at that time. At some point, Gonzalez-Rogers asked plaintiff’s attorney to stop coaching the witness.

Birchall said he had spoken to other members of the consortium about the offer, but was not involved in discussions with Musk about when to send the offer letter. He claimed to have heard some things from Toberoff, but he did not know that Toberoff represented some of the other bidders. He did not know whether xAI was aware that Toperoff represented some other bidders as well.

Birchall claimed that he did not know whether other investors had direct information about OpenAI. No one had documents from within OpenAI to his knowledge. Gonzalez-Rogers remained unconvinced. “I still have a hard time figuring out how to have conversations with these individuals to raise $97.5 billion but I have no memories even in a general sense,” she said. Birchall said he had a common sense — he contacted each of the people involved to see if they would be interested in joining Musk on the show.

“Why would they do that?” Gonzalez asked Rogers. These are people with whom Musk and others have long-standing relationships, Birchall said. “You must have been very persuasive,” she said. “You’re not very convincing today.”

Birchall said there were no numbers besides the main figure he was asked when he contacted potential investors and, after speaking to him, they were passed on to lawyers. He did not remember who chose the $97.4 billion figure, said he got it from the legal team, and Gonzalez told Rogers he did not get it from Musk. Gonzalez asked Rogers if this analysis had been created by anyone other than Toberoff. Birchall said he couldn’t remember.

“Did the lawyer tell you this was part of the lawsuit?” Gonzalez asked Rogers.

No, Birchall said. It was a purely business deal.

Stephen Mollo, who was defending Musk during the deposition, apparently raised multiple objections to questions about the deal, citing privileged communications. Obviously, business deals are not special. But all exploration of OpenAI’s xAI offering was blocked before the trial began. Unfortunately, by asking Birchall about the xAI deal at the end of the live screening, Musk’s team may have opened the door to looking into it further. You’re probably wondering, “Open the door to what” and your guess is as good as mine. More discovery? Maybe something about anti-competitive behavior from Musk? It doesn’t look like it’s going to be any good for Musk, I can tell you that much.

Then Gonzalez asked Rogers who passed the note, and all the lawyers sat there like guilty children. Finally, the man in charge said he had succeeded in it, but had not written it; Act as a junior lawyer. Who wrote it? More silence. Finally, Toberov – a junior lawyer – stood up and took responsibility. Why did he do that? “I thought it was appropriate.”

“Looks like you wanted to open the door then,” Gonzalez Rogers said. We adjourned the meeting while she said she would consider what to do with this testimony. She’d probably sentence him tomorrow.