[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]
I have been posting about A.I. protective orders since last year. This is the 10th post. A.I. protective orders, in one form or another, are becoming the standard of care.
Basically, these orders limit use of artificial intelligence by the recipient of discovery materials. But, they are not always fair.
Craig Ball has explained that these orders can create a double standard. He quoted a District of Colorado decision stating “that practically speaking, and in light of the current state of AI, this provision will (at least for now) bar the parties from using most, if not all, mainstream low-to-no cost AI to process Confidential Information.” Craig added:
If other courts follow uncritically, it will do what every prior technology-gatekeeping effort has done: widen the gap between well-funded litigants and everyone else, while delivering no meaningful improvement in data security. My hope is that this post will shed light on a distinction without a difference so as to not hinder the use of properly configured, ‘consumer grade’ AI for processing sensitive data.
U.S. v. Dygdon, 2026 WL 2225226 (S.D.N.Y. Aug. 3, 2026), provides another example of an AI protective order entered by consent in a criminal case. The materials disclosed in discovery would affect “the privacy, confidentiality and business interests of individuals and entities,” and “would risk prejudicial pretrial publicity if publicly disseminated….” The consent order states:
9. Restrictions on Use of Artificial Intelligence Tools to Process Disclosure Materials.
a. “AI tool” means any automated system that uses statistical modeling, machine learning, or similar techniques to process inputs and generate outputs, recommendations, or predictions, including but not limited to large language models, generative AI services, or AI-assisted software tools, whether cloud-based or otherwise.
b. Under no circumstances will any member of the defense team submit Disclosure Materials to a publicly accessible AI tool, or any AI tool, that retains and uses submitted data to train models. Such AI tools pose unique risks to the security and integrity of Disclosure Materials, given the practical inability to claw back or delete data once it has been incorporated into a model.
c. With respect to any AI tool used by the defendant, defense counsel must be able to certify that (i) the AI tool(s) will maintain the confidentiality of any Disclosure Materials; (ii) the AI tool(s) will not expose any Disclosure Materials to third parties not authorized under this Protective Order to receive such materials; (iii) the AI tool(s) will not retain or use any Disclosure Materials for model training; and (iv) all Disclosure Materials will be removed from the AI tool(s) at the conclusion of this case.
I suggest that AI protective orders are now the standard of care.
Michael D. Berman, Owner, E-Discovery LLC.
I suggest that there is general agreement that a degree of protection of materials produced in discovery is reasonable. Craig has some excellent suggestions, writing: “I’m not arguing for anarchy or carelessness. I’m arguing for proportionality….”
Craig lists five provisions for a “properly scoped Ai provision….” They are: 1) no training; 2) no public accessibility; 3) matter isolation; 4) deletion at conclusion; and, 5) documentation. He adds: “Five requirements, all achievable at any budget. All providing genuine protection against the actual risks that protective orders target: unauthorized use, competitive exploitation, and ongoing exposure. Anything beyond this isn’t really protecting data. It’s protecting market position.”
[W]e can protect discovery materials without building a toll booth that only the well-heeled can pass through.
Craig Ball, The AI Protective Order Double Standard, Ball in Your Court.
I suggest that AI protective orders are now the standard of care. I agree with Craig’s well-written suggestion that “we can protect discovery materials without building a toll booth that only the well-heeled can pass through.”
I also very much appreciate Craig’s endnote: “Hat tip to my friend Michael Berman, whose frequent and excellent series of posts about AI and discovery law got me thinking about this today.”
For more on this topic, please visit:
- Restrictions on Use of Artificial Intelligence Tools to Process Disclosure Materials (Jul. 27, 2026);
- Another A.I. Protective Order (Jul. 9, 2026);
- 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.
