Workplace Texts as Legal Evidence: The OpenAI Lesson

In May 2026, a federal jury in Oakland dismissed all of Elon Musk's claims against OpenAI and Sam Altman. The trial lasted three weeks. The verdict took less than two hours.

But what happened in those three weeks was more instructive than the verdict itself. Hundreds of private texts, emails, Slack messages, and even personal diary entries were placed in front of a jury. They showed how OpenAI's founders communicated in moments of crisis, what they said about each other, and what they actually believed compared to what they said publicly.

Musk's own texts to Greg Brockman, sent two days before trial, told Brockman that by the end of the week, he and Sam Altman would be "the most hated men in America." Mira Murati's texts to Altman during his firing showed she told him things were "directionally very bad." Brockman's personal diary entries, about becoming a billionaire, were read aloud in court. Microsoft CEO Satya Nadella's texts to Altman about replacing OpenAI's board were subpoenaed and used as exhibits.

None of these people thought they were writing for a courtroom. They were managing a crisis, venting, and making fast decisions. Their messages followed them anyway.

Here is what every business owner needs to understand about how workplace communications become evidence, and how to protect your business before litigation starts.

The safest assumption about anything you put in writing is that it could be read aloud in a courtroom someday. That is not paranoia. It is how discovery actually works.

How Discovery Works

When a lawsuit is filed, both sides have the right to request documents from the other. This process is called discovery, and the standard for what must be produced is broad: any document that is relevant to the claims or defenses in the case, or reasonably likely to lead to relevant evidence.

That standard captures a lot more than most people expect. It is not limited to formal company communications. It covers texts, Slack messages, emails, WhatsApp, iMessage, Signal, personal emails where work was discussed, and any written record where the subject matter touches the dispute.

A vendor contract dispute can pull in internal messages about pricing strategy. A wrongful termination claim can pull in every written comment a manager ever made about the employee being terminated. A partnership breakup can pull in every private text between co-owners about who was pulling their weight.

Courts do not let parties decide what is relevant. Opposing counsel does that, subject to a judge's oversight. Your attorneys can object, but objections are narrowly defined. If the messages exist and the subject matter is relevant, there is a strong likelihood they will be produced.

The Litigation Hold Obligation

Here is where businesses run into serious trouble. The moment you know or reasonably should know that litigation is coming, a legal obligation kicks in: you must preserve all documents that could be relevant. This is called a litigation hold.

You cannot delete emails, clear texts, or wipe a device once you are on notice of potential litigation. Auto-deletion settings on messaging platforms must also be suspended immediately. Turning off auto-deletion is required, not optional. Failing to do so is called spoliation of evidence. Courts treat it very seriously.

The litigation hold obligation is not tied to when the lawsuit is actually filed. It is tied to when you knew or should have known a dispute was heading toward litigation. A termination that ends with the employee saying "I'm going to sue you" starts the clock. A contract dispute that has progressed to formal demand letters starts the clock. An EEOC charge starts the clock.

If you are unsure whether you are at that threshold, talk to an attorney. Getting that call wrong is expensive.

The Platform Does Not Protect You

A common misconception: if we use Signal, our messages are private. If we use disappearing messages, there is no record.

Discovery does not work that way. Signal is subject to discovery. WhatsApp is subject to discovery. Slack messages on a business account are subject to discovery. iMessage is subject to discovery. Personal email accounts where work topics were discussed are subject to discovery.

More importantly, once a litigation hold is in place, you have an affirmative obligation to preserve messages on all of these platforms. Turning on disappearing messages after litigation is foreseeable can itself constitute spoliation.

The Messages That Hurt Most

Not every workplace communication carries legal risk. The ones that hurt most in litigation tend to share certain features.

The casual comment is dangerous because it reveals how someone actually thought, stripped of the careful language people use in formal settings. In the Musk v. OpenAI trial, the texts that drew the most attention were not policy memos. They were fast, unfiltered messages written in moments of pressure.

For business owners, the messages that most often surface in employment litigation are the informal ones written right before a difficult HR decision. A manager texts a co-owner: "I can't deal with this guy anymore, he's a disaster." Then that employee is terminated two weeks later. That text is now relevant to whether the termination was for legitimate business reasons or personal animus.

The humor that seems obvious in context reads differently on paper. A sarcastic comment about an employee's performance, a joke about their age or attitude, a complaint to a co-owner about someone's parental leave requests, all of these become exhibits in a wrongful termination or discrimination case if the employee sues.

The same pattern applies in contract disputes. A text to a business partner saying "we're going to squeeze them on this renewal" can undermine a later claim of good-faith dealing. An email saying "we know this is borderline but let's try it" is damaging evidence of intent.

If you are navigating a difficult employee situation right now and you want to know what you can safely put in writing, our Momentum Membership gives you direct attorney access by email for $95 a month. Ask before you write. That is significantly cheaper than defending a claim built on your own words.

Common Mistakes Business Owners Make

These are the patterns that consistently show up as damaging evidence in business disputes and employment litigation.

• Venting in writing before a termination. The frustration is understandable. But the written record of that frustration becomes the opposing party's best evidence of your real motivation.
• Treating Slack like a private conversation. Slack channels, even private ones between two people, are business records subject to discovery. Many business owners treat them as disposable chat.
• Using personal phones for sensitive business conversations and assuming they are shielded. Personal devices are not exempt. If the conversation involved business matters, it can be subpoenaed.
• Continuing to delete after a dispute has surfaced. Routine document retention policies are fine when consistently applied. Deleting specifically after a dispute arises, or after you receive a formal complaint, creates a spoliation problem.
• Claiming attorney-client privilege on communications that do not qualify. In the OpenAI case, the court found OpenAI waived privilege by making inconsistent claims. Privilege is real but narrow; copying a lawyer on a message does not automatically make it privileged.

Practical Guidance for Business Owners

None of this means you should stop communicating with your team. It means you should communicate with some awareness of how your words read outside the moment you wrote them.

A simple framework: before you write something sensitive, ask whether you would be comfortable if opposing counsel read it in a deposition. If the answer is no, pick up the phone. Some conversations are better had verbally. This is not destruction of evidence. Talking instead of texting is not evasion. Having a verbal conversation about a difficult HR situation is standard practice. The litigation hold obligation applies to documents that exist, not to conversations you chose to have in person.

For communications that do need to go in writing, keep the tone factual and the framing business-focused. Instead of "I'm done with this person," write "his performance has not met the standards we outlined in his review." The same information, far less damaging if it surfaces in litigation.

Build a document retention policy and follow it consistently. Courts distinguish between routine retention policies applied uniformly and selective deletion after a dispute surfaces. Having a written policy, training your team on it, and applying it consistently protects you in ways that ad hoc deletion never will.

What to Do If Litigation Is on the Horizon

If you are facing a dispute that may turn into a lawsuit, the most important step is getting an attorney involved early. Here is why: your litigation hold obligation is triggered by what you knew or should have known, and getting the timing wrong creates independent liability beyond whatever the underlying dispute is about.

An attorney can help you issue a proper litigation hold to your team, identify what platforms and accounts are likely in scope, assess what your existing communications look like as evidence, and advise on how to communicate going forward without creating additional problems.

Surge Business Law handles business disputes and employment matters in Iowa and Texas. If you are facing a situation where litigation is a real possibility, our dispute resolution services cover everything from pre-litigation strategy through trial support. Early involvement is almost always less expensive than getting involved after documents have been mishandled.

Book a free consultation to talk through your situation. And if you want ongoing access to business attorneys so you can ask these questions before they become problems, the Momentum Membership is built for exactly that.

The Bottom Line

The Musk v. OpenAI trial was a masterclass in how private communications become public evidence. Diary entries, texts sent in the middle of a crisis, internal Slack messages about decisions that seemed routine at the time. All of it was read in a federal courtroom.

The lesson is not that you should stop using digital communication. It is that your business communications are business records, and business records travel. They can be subpoenaed, produced, and read aloud to a jury.

Treat them accordingly from the start, and you will have far fewer problems if litigation ever arrives.