[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

Orders limiting the use of artificial intelligence to analyze information produced by an opposing party are becoming routine. For example, a court recently entered the following stipulated provision:

Persons receiving Confidential information under this Stipulated Protective Order shall not upload, input, or otherwise provide any documents, data, or information produced in this litigation to any publicly available generative artificial intelligence tool or platform (including, but not limited to, ChatGPT or similar services) unless those tools or platforms can be configured so that the producing Party’s information will not train on, learn from, or otherwise incorporate the producing Party’s data into its underlying models. Any use of generative artificial intelligence for litigation support must be limited to secure, private tools that do not use the producing Party’s information to retrain or improve their systems.

Stansfield v. International Business Machines Corporation, 2026 WL 1031230, at *2 (D. Nev. Apr. 16, 2026).

Protective orders limiting the use of “apex” video depositions have been suggested. “Deepfake Executives, Created Via Depositions, Pose Grave Threat”: Protective Order Suggested (Apr. 5, 2026).

And, a Protective Order Limited Uploading Discovery Responses to Open A.I. (Mar. 26, 2026), discussing Jeffries v. Harcros Chemicals, Inc., 2026 WL 820218 (D. Kans. Mar. 25, 2026). Notably, in Jeffries, the protective order applied to both confidential and non-confidential information produced in discovery.

A protective limitation was imposed in Morgan v. V2X, Inc., 2026 WL 864223 (D. Col. Mar. 30, 2026), as also discussed in Important A.I. Work Product and Protective Order Decision (Mar. 31, 2026).

An earlier protective order was discussed in Order Prohibiting Upload of Confidential Discovery Documents to Artificial Intelligence (“AI”) (Nov. 3, 2025), based on Warner v. Gilbarco, Inc., 2025 WL 3047881 (E.D. Mich. Oct. 30, 2025).

Assume that parties negotiate a Fed.R.Evid. 502 order and Fed.R.Civ.P. 26(b)(5) “clawback.” Assume no limitation on a receiving opponent’s use of A.I., when discovery materials are produced to it. If the producing party inadvertently produced privileged material that was uploaded to an opponent’s A.I., how does the recipient terminate use and “return, sequester, or destroy” it when the “clawback” is asserted?

One may debate whether such a provision is now standard of care for protective orders. However, it is clear that such provisions are being utilized.

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.