OAKLAND, CALIFORNIA — Elon Musk attempted to settle his lawsuit against OpenAI two days before the trial began, sending a message to OpenAI President Greg Brockman to gauge interest in resolving the case, according to court filings. OpenAI did not accept the settlement terms, and the trial started last week with Musk as the first witness.

The lawsuit alleges that under Sam Altman's direction, OpenAI abandoned its mission to serve as a nonprofit making artificial intelligence to benefit humanity. Brockman responded to Musk by suggesting that both sides drop their claims, but Musk refused to drop his.

"By the end of this week, you and Sam will be the most hated men in America. If you insist, so it will be." Musk wrote in the message to Brockman.

Communications made during proposed settlements are not typically admissible in court. OpenAI argued that Musk's message to Brockman should not be considered privileged or a sincere settlement effort because it was coercive rather than conciliatory. The company alleged that the litigation is a harassment campaign intended to eject Altman due to Musk's personal grudge, and that the message tends to prove motive and bias by showing his motivation is to attack a competitor and its principals.

OpenAI pointed to an exception to settlement privilege made during Musk's 2022 lawsuit in which he attempted to back out of his Twitter purchase. In that case, Musk's legal team invited a renegotiation of the purchase price so that the lawsuit could be dropped, and threatened that "it would be World War III until the end of time for real." During the same exchange, Musk reminded Twitter executives that if he ended up owning the company, he would have access to all company records and could review emails. That exchange was admitted as evidence because Musk's legal team intended to disclose the threat to opposing counsel.

William Savitt, who questioned Musk on the stand, was part of Musk's legal team during the 2022 Twitter purchase lawsuit. On the witness stand, Musk made concessions, backing off claims that AI risks may quickly become existential and admitting he lacked expertise in AI safety at his own company, xAI.

Judge Yvonne Gonzalez Rogers has yet to decide whether to admit Musk's email to Brockman as evidence ahead of Brockman's testimony starting today. The court may allow Brockman to testify about the message as evidence of Musk's motives in pursuing the litigation.