Three More A.I. Protective Orders

Three More A.I. Protective Orders, by Michael Berman, E-Discovery LLC.
Image: EDRM.

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

I have written a series of posts suggesting that AI protective orders are becoming the standard of care. See A.I. Protective Order by Consent in Google Case (Sep. 13, 2026).

The jointly requested A.I. protective order in Hoffman v. Univ. of Nebraska Medical Ctr., 2026 WL 2969621 (D. Neb. Oct. 2, 2026), states:

Artificial Intelligence. Qualified Recipients shall not, without the Producing Party’s express written consent, upload, submit, or otherwise provide Confidential Discovery Material (or any information extracted therefrom) or any deposition testimony taken in this matter to any open-source artificial intelligence platform or service including, but not limited to, platforms or services that use or assemble uploaded information to train or improve machine-learning models. This prohibition applies regardless of whether the artificial intelligence platform or service represents it will maintain the confidentiality of information submitted by the user. The parties and their counsel are not prohibited from uploading, submitting, or otherwise providing Confidential Discovery Material (or information extracted therefrom) or any deposition testimony taken in this matter to a closed-source artificial intelligence platform or service, including Harvey, Westlaw, LexisNexis, Servient’s AI Canvas, or any other closed-source artificial intelligence platform or service agreed to by the parties.

In ANR Pipeline Co., LLC v. B&B Metal Processing Co., Inc., 2026 WL 2970050 (E.D. Wis. Oct. 2, 2026), the court wrote:

On September 22, 2026, the parties filed a joint motion for the entry of a protective order, with a stipulated proposed order…. The parties request that the Court enter such an order to “prevent public disclosure of nonpublic confidential technical, commercial, or business information that may be exchanged in discovery.” … Federal Rule of Civil Procedure Rule 26(c) allows for an order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” including “requiring that a trade secret or other confidential research, development, or commercial information … be revealed only in a specified way.” Fed. R. Civ. P. 26(c)(1)(G); see also Civ. L.R. 26(e).

Protective orders are an exception to the general rule that pretrial discovery must occur in the public eye…. Litigation must be conducted in public to the maximum extent consistent with respecting trade secrets … and other facts that should be held in confidence….

Nonetheless, the Court can enter a protective order if the parties have shown good cause and that the order is narrowly tailored to serve that cause…. The Court can find that even broad, blanket orders are narrowly tailored and permissible when it finds that two factors are satisfied: (1) that the parties will act in good faith in designating the portions of the record that should be subject to the protective order; and (2) that the order explicitly allows the parties to the case and other interested members of the public to challenge the sealing of documents….

The Court finds that the parties have requested the protective order in this action in good faith. The parties report that this case will entail the disclosure of confidential technical information about the parties…. Thus, the Court is satisfied that there exists a sufficient basis for the requested protective order. [cleaned up].

However, the court modified the parties’ request to establish parameters for the use of A.I. as it pertains to confidential documents. Id. at *1. The order states:

A receiving party may use AI tools in connection with discovery materials produced in this action only if the AI tool is operated in a secure environment and is subject to enforceable contractual terms that (a) prohibit the provider from retaining, using, disclosing, selling, or using the materials to train, improve, or develop any AI system; (b) prohibit the materials from being made publicly available or accessible to any other customer or third party; and (c) require commercially reasonable administrative, technical, and physical safeguards to protect the confidentiality of the materials. Discovery materials, whether designated CONFIDENTIAL or ATTORNEYS’ EYES ONLY, shall not be entered into any publicly available or consumer-based AI platform. Any use of AI tools must remain consistent with this Order and with the requirement that discovery materials be used solely for purposes of this litigation.

Id. at *5.

A protective order was also entered by consent in U.S.A. v. Amanuel, 2026 WL 2964210 (S.D.N.Y. Oct. 1, 2026):

Restrictions on Use of Artificial Intelligence Tools to Process Disclosure Materials.

a. “AI tool” means any automated system that uses 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. The defense team will not submit Disclosure Materials to a publicly accessible version of an AI tool (e.g., ChatGPT, Claude, Grok, Gemini, Copilot, Perplexity, Midjourney, Canva). The defense team will not submit Disclosure Materials to an AI tool for which the AI tool provider or vendor (e.g., OpenAI, Anthropic, Microsoft, Google) uses submitted data for its own model training, allows submitted data to be publicly accessed, discloses submitted data to third parties, or, except as specified below, retains submitted data. Publicly accessible 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. The defense may submit Disclosure Materials to an AI tool (i) that maintains the confidentiality of Disclosure Materials; (ii) that will not expose any Disclosure Materials to third parties not authorized under this Protective Order to receive such materials; (iii) that 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.

Some prior posts are:

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

Author

  • Michael Berman

    Michael Berman is a practicing lawyer and an adjunct faculty member at the University of Baltimore School of Law.  He has published extensively, including as the editor-in-chief and a contributing author in “Electronically Stored Information in Maryland Courts” (Maryland State Bar Ass’n. 2020), co-editing two American Bar Association books on electronic discovery, as well as co-authoring law review and other articles regarding electronically stored information (“ESI”).  He has presented widely in venues ranging from local to National events and served as a Court Appointed ESI Discovery Supervisor for ESI Protocol.

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