In the continued use of confidentiality orders to restrict the use of discovery materials by the other party in the other party’s AI system, consent orders have been entered into by consent in criminal cases as follows:
Restrictions on the use of artificial intelligence tools to process disclosure materials.
a. “AI Tool” means an automated system that uses statistical modeling, machine learning, or similar techniques to process input and produce output, recommendations, or predictions. This includes, but is not limited to, large-scale language models, generative AI services, or AI-assisted software tools, whether cloud-based or not.
b. Under no circumstances will members of the defense team submit disclosure materials to publicly accessible AI tools or to AI tools that retain submitted data and use it to train models. Such AI tools pose unique risks to the security and integrity of disclosure materials, as it is virtually impossible to undo or delete data once incorporated into the model.
c. Regarding the AI tools used by the defendant, defense counsel must be able to prove that: (i) AI tools maintain the confidentiality of disclosed materials; (ii) AI Tools will not disclose any Disclosed Materials to any third party who is not authorized to receive such materials under this Protective Order; (iii) AI Tools does not retain or use any Disclosed Materials for training models; (iv) all Disclosure Materials will be removed from the AI Tools at the conclusion of this litigation;
America vs. Mora, 2026 WL 2058416 (SDNY July 16, 2026).
This is no longer front page news. It’s becoming standard practice.
One clause seems problematic to me. “AI Tools will not disclose any disclosed material to any third party who is not authorized to receive such material under this confidentiality order.” Considering most AI privacy policies, this seems an unduly high standard.
Suppose that the next day, A exercises his “clawback” right. How will B return, quarantine, or destroy documents on AI?
Michael D. Berman, Owner, E-Discovery LLC
One of the assumptions discussed in some of the blogs below and reflected in this order is the issue of exercising “clawback” rights when material is uploaded to an AI.
Suppose A and B have Fed.R.Evid. 502 Non-Exemption Order and Fed.R.Civ.P. 26 “Clawback” Agreement. Further assume that A creates a privileged document for B on discovery. The next day, B uploads it to consumer AI. Suppose that the next day, A exercises his “clawback” right. How will B return, quarantine, or destroy documents on AI?
See below for related order details.
- Separate AI Protection Order (July 9, 2026).
- AI Protection Order – Again (June 18, 2026).
- Unicorn Refuses AI Protection/Confidentiality Order – Order Commenced in Criminal Case (June 4, 2026).
- Are Confidentiality Orders Restricting the Uploading of Discovery-Produced Documents to AI Becoming Standard Care? (May 26, 2026), Under Discussion Rudashil v. Swiss Re American Holding Corporation2026 WL 1329451 (SDNY, May 13, 2026).
- Separate Confidentiality Order Restricting Use of AI to Analyze Protected Materials (April 27, 2026), Discussion ByHeart, Inc., regarding infant milk marketing, sales practices, and product liability litigation.2026 WL 1103170 (SDNY April 23, 2026);
- AI protection orders are becoming the norm (April 20, 2026), under discussion Stansfield v. International Business Machines Corporation. 2026 WL 1031230, *2 (D. Nev. April 16, 2026);
- “Deepfake executive creates in deposition poses serious threat”: Proposed protective order (April 5, 2026).
- Morgan v. V2X, Inc.2026 WL 864223 (D. Col. March 30, 2026), also discussed in Determination of Significant AI Work Product and Protective Order (March 31, 2026).
- Pursuant to the Order Prohibiting the Uploading of Confidential Disclosure Documents to Artificial Intelligence (“AI”) (November 3, 2025) Warner v. Gilbarco, Inc. 2025 WL 3047881 (ED, October 30, 2025);
- Limited Upload of Discovery Responses to Open AI Due to Protection Order (March 26, 2026), Discussion Jeffries v. Harcross Chemicals, Inc.2026 WL 820218 (Kans. State Democratic Party, March 25, 2026).
