Something strange happened in the Musk v. Altman courtroom this week, and it might end up costing Elon Musk more than the trial itself. According to The Verge AI, a note quietly slid across the plaintiff’s table prompted Musk’s lawyer to ask his finance chief, Jared Birchall, about the $97.4 billion xAI-led bid for OpenAI’s nonprofit assets. That single question may have blown open a topic Musk’s team had spent months keeping out of discovery.
What stands out here is the timing. The exchange came at the very end of Birchall’s direct examination, after dull document-reading testimony. Then the note appeared, the question got asked, and Birchall delivered the line Musk’s team clearly wanted on record: “Sam Altman was on both sides of the table.”
What Birchall Actually Said
Birchall, Musk’s longtime fixer, claimed the February 2025 bid was made because Musk’s camp feared Altman would undervalue OpenAI’s nonprofit during the company’s restructuring. The argument: a $97.4 billion offer would force the California attorney general to take the foundation’s true value seriously.
Then things unraveled. OpenAI’s lawyers from Wachtell Lipton moved to strike the testimony. The jury was sent out. Judge Yvonne Gonzalez Rogers took over the questioning herself, and that’s when Birchall started looking shaky.
Key moments from the bench:
- Birchall couldn’t recall discussing the bid with Musk, Shivon Zilis, or any other Musk principal.
- He said he personally called prospective investors to gauge interest, but couldn’t remember the financial details discussed.
- He didn’t know if xAI was aware that lawyer Marc Toberoff represented multiple bidders in the consortium.
- He said the $97.4 billion figure came from the legal team, not Musk.
Gonzalez Rogers wasn’t buying it. “I’m still struggling with how you can have conversations with these individuals to raise $97.5 billion but have no recollections even in a general sense,” she said. Then came the line that’s going to follow Birchall around: “You must have been very convincing. You’re not very convincing today.”
Why This Matters for the AI Industry
This trial isn’t just personal drama between two billionaires. The outcome shapes who controls OpenAI’s restructuring, how nonprofit-to-for-profit conversions get scrutinized, and whether competitors can use legal pressure to slow rivals during pivotal corporate transitions.
The xAI bid was always strange. Musk runs a direct competitor to OpenAI, so a $97.4 billion offer for the nonprofit assets looked less like a real acquisition and more like a tactical move. If discovery opens up here, the court may get to examine whether the bid was a genuine business deal or a litigation tool dressed up as one. That distinction matters because business deals aren’t covered by attorney-client privilege. Litigation strategy is.
Musk’s lawyer Steven Molo had been blocking deposition questions on the deal by citing privilege. By voluntarily raising the topic on direct examination, Musk’s team may have waived that protection.
The Note Mystery
The judge then asked who passed the note. Silence. The lawyer who delivered it said he hadn’t written it, blaming a junior. More silence. Eventually Marc Toberoff, the same lawyer who submitted the original $97.4 billion bid, stood up and took responsibility.
That detail isn’t trivial. Toberoff is now positioned as someone who orchestrated both the bid itself and the courtroom moment that put it on the record.
What Comes Next
Discovery into the xAI bid was blocked before trial. After this exchange, OpenAI’s lawyers have a real argument to reopen it. That could mean depositions of consortium investors, internal communications about the bid’s purpose, and potentially questions about anticompetitive intent.
For anyone tracking the AI industry’s legal landscape, this is the moment where a procedural choice may have shifted the case. Whether it’s good or bad for Musk depends on what discovery turns up. Right now, it doesn’t look promising.
Full details on the courtroom exchange are available at the original source.