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

Okay, I’m not a lawyer, so I only understood about half of what just happened. But I’m pretty sure, given the context, that Elon Musk’s lawyers may have completely screwed up.

Jared “James Brickhouse” Birchall, Musk’s financial manager and fixer, spoke after Musk today. Most of his testimony was boring and seemed to exist primarily to get certain documents into the record, which sucks but is a normal part of trials. But at very At the end of his boring testimony, something interesting happened. I think we all had a surprise, which rarely happens in courtrooms.

The lawyer conducting his examination-in-chief received a memo from another member of the team and asked Birchall what was apparently contained in the memo: was he aware of xAI’s bid for OpenAI’s assets?

“As I recall, an attorney we were working with had asked the California Attorney General to ensure that, as part of his fiduciary duty, appropriate value was placed on OpenAI’s nonprofit assets,” Birchall said. According to him, there was a negotiation “between Sam Altman and himself on both sides of the table, for-profit and nonprofit, to try to reduce the value of the nonprofit’s assets. And we made this offer in an effort to properly account for the value of the foundation and create a market offering that should be considered by the Attorney General.”

Here’s a bit of history: In February 2025, a coalition led by Musk made a $97.4 billion bid for the nonprofit that controls OpenAI. The offer was submitted by Marc Toberoff, one of Musk’s lawyers in the current case. This offering came as OpenAI was restructuring 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 as the company restructured. (I’m not sure why this would be a problem for Musk and xAI, frankly, but whatever.)

Defense counsel objected, and Birchall’s diatribe was dismissed as lacking merit. So we did that piece by piece to establish the foundation, ending with Birchall once again saying, “Sam Altman was on both sides of the table.”

During cross-examination, Bradley Wilson of Wachtell Lipton – OpenAI’s lawyers – picked up the thread. Wilson asked how much of this Birchall learned from sources other than the lawyers. Birchall said he would have difficulty sorting that out. After some more back and forth, Wilson decided to strike all of Birchall’s testimony regarding the xAI bid on grounds that would not be discussed in front of the jury.

The jury was able to leave early while the lawyers were fighting, and that’s where it got weird. Judge Yvonne Gonzalez Rogers began asking Birchall questions herself, and this was clearly making Birchall nervous. Birchall said he did not recall discussing the xAI offering with Musk or Shivon Zilis or any other executive in the Musk organization. It certainly looked like Musk’s lawyers hadn’t given OpenAI proper information on this topic in the depositions, and so we were doing a quick and dirty deposition. with the judge at that time. At one point, Gonzalez Rogers told the plaintiff’s attorney to stop coaching the witness.

Birchall said he spoke 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 that he had heard some things from Toberoff, but did not know that Toberoff represented some of the other bidders. He also did not know whether xAI knew that Toberoff represented some of the other bidders.

Birchall did not know whether other investors had first-hand information about OpenAI, he claimed. To his knowledge, no one had documents from OpenAI. Gonzalez Rogers is not convinced. “I still wonder how to have conversations with these people to raise $97.5 billion, but I have no recollection of it, even in general terms,” she said. Birchall said he had a general idea: He called each of the people involved to see if they were interested in joining Musk in the bid.

“Why would they do that?” » asked Gonzales Rogers. Birchall said these were people with whom Musk et al had long-standing relationships. “You must have been very convincing,” she said. “You’re not very convincing today.”

Birchall said no figures other than turnover were released when he called potential investors, and after speaking with him they were passed to lawyers. He doesn’t remember who chose the $97.4 billion figure and said he got it from the legal team, telling Gonzalez Rogers he didn’t get it from Musk. Gonzalez Rogers asked if this analysis was created by anyone other than Toberoff. Birchall said he didn’t remember.

“Did a lawyer tell you this was part of litigation?” » asked Gonzalez Rogers.

No, Birchall said. It was strictly a commercial matter.

Apparently, Steven Molo, who defended Musk during the deposition, had raised numerous objections to questions about the deal, citing privileged communications. Trade deals, apparently, are not favored. But any discovery of the xAI bid for OpenAI had been blocked before the trial began. Unfortunately, by asking Birchall about the xAI deal at the very end of the direct review, Musk’s team may have opened the door to further investigation. You may be wondering “open the door to what” and your answer is as good as mine. More discovery? Maybe something about Musk’s anti-competitive behavior? This doesn’t look good for Musk, I can tell you that.

Gonzalez Rogers then asked who passed the note, and all the lawyers stood there like guilty children. Finally, the manager said he passed it, but he didn’t write it down; a young lawyer did it. Who wrote it? No more silence. Eventually, Toberoff – not exactly a young lawyer – stood up and took responsibility. Why had he done it? “I thought it was appropriate.”

“It looks like you wanted to open the door, then,” Gonzalez Rogers said. We adjourned while she said she would think about what she would do with this testimony. She will probably rule tomorrow.

Correction, April 30: This is Shivon Zilis, not Sharon Zilis.