[EDRM Editor’s Note: The opinions and positions are those of the Michael D. Berman.]
Protective orders addressing the use of A.I. to review materials produced to an opponent in discovery are becoming routine. The stipulated protective order in RMME LLC v. Majestic Steel USA, Inc., 2026 WL 1831063, at *7 (D. Nev. Jun. 24, 2026), covered that topic and added a provision regarding other uses of A.I.
USE OF ARTIFICIAL INTELLIGENCE
Counsel and the Parties may use artificial intelligence (“AI”) systems—including both closed AI systems and open AI systems—to assist with tasks in this action, such as drafting documents, processing discovery, summarizing materials, organizing information, and conducting document review, provided that all such use complies with Fed. R. Civ. P. 11, the Court’s Standing Order, this Order, and all applicable legal and ethical obligations.
Protected Material may be used with a closed AI system only where the user has a good-faith basis to believe that (i) the system does not use submitted materials to train publicly accessible models, and (ii) access to such materials is restricted in a manner consistent with this Order.
Open AI systems may be used only if such use does not result in the disclosure of Protected Material in violation of this Order and does not violate Section III(4) of Judge Couvillier’s Standing Order, including its prohibition on uploading to any open AI system any document filed under seal or containing personal-data identifiers identified in LR IC 6-1(a)(1)–(6).
For purposes of this section, an “open AI system” means an AI system for which the source code, training data, or underlying models are publicly accessible. A “closed AI system” means any AI system that is not an open AI system and that is subject to contractual, technical, or administrative safeguards reasonably designed to prevent unauthorized access, disclosure, or use of submitted materials, and that does not use Protected Material to train, improve, or refine its models or algorithms or otherwise incorporate Protected Material into outputs generated for other users or matters. [emphasis added].
Interestingly, the Stipulation ends with: “The undersigned counsel certify that Artificial Intelligence was not used to prepare the foregoing document.” Id. at *8.
For more information on related decisions, please see:
- A.I. Protective Order—Again (Jun. 18, 2026);
- Unicorn Rejects A.I. Protective/Confidentiality Order – Order Entered in Criminal Case (Jun. 4, 2026);
- Are Protective Orders Limiting Upload to AI of Documents Produced by an Opponent in Discovery Becoming the Standard of Care? (May 26, 2026), discussing Rudasill v. Swiss Re American Holding Corporation, 2026 WL 1329451 (S.D.N.Y. May 13, 2026);
- Another Confidentiality Order Limiting Use of AI to Analyze Protected Materials (Apr. 27, 2026), discussing In re: ByHeart, Inc., Infant Formula Marketing, Sales Practices, and Products Liability Litigation, 2026 WL 1103170 (S.D.N.Y. Apr. 23, 2026);
- A.I. Protective Orders Are Becoming Routine (Apr. 20, 2026), discussing Stansfield v. International Business Machines Corporation, 2026 WL 1031230, at *2 (D. Nev. Apr. 16, 2026);
- “Deepfake Executives, Created Via Depositions, Pose Grave Threat”: Protective Order Suggested (Apr. 5, 2026);
- 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);
- 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);
- 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).
Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.
