Another Confidentiality Order Limiting Use of AI to Analyze Protected Materials
Incomplete ESI Protocol Negotiations Do Not Justify Delay in Production
April 26, 2026No Right to a “Hit Report” for Facially Overbroad Search Terms?
May 4, 2026As the title indicates, In re: ByHeart, Inc., Infant Formula Marketing, Sales Practices, and Products Liability Litigation, 2026 WL 1103170 (S.D.N.Y. Apr. 23, 2026), is complex litigation.
One significant issue was an order limiting the use of artificial intelligence to analyze protected materials produced by an opponent in discovery. I have suggested that A.I. Protective Orders Are Becoming Routine (Apr. 20, 2026)(citing several examples), and ByHeart is another example.
Defendants proposed “targeted modifications” to the court’s model protective order. They asserted that highly sensitive personal and commercially competitive information would be produced. One proposed modification addressed “appropriate limitations on the use of artificial intelligence tools to analyze protected materials….” Id. at *1. The court adopted that proposal.
The order is not reprinted in Westlaw. However, it is available on Bloomberg In Re: ByHeart, Inc., Infant Formula Marketing, Sales Practices, and Products Liability Litigation, Docket No. 1:26-md-03178 (S.D.N.Y. Apr 02, 2026), Court Docket, by subscription. In part, it stated:
The parties agree that individuals or entities with access to Protected Materials are prohibited from inputting documents, ESI, load files, and other materials produced pursuant to this Order into generative artificial intelligence tools or similar applications unless the tools or applications provide the following protections against inadvertent disclosure of data: (1) confirmation that the tool or application will not train the model or incorporate into model weights any inputs containing those Protected Materials or otherwise inadvertently produce outputs containing identifiable parts of Protected Materials; (2) administrative controls to allow deletion of Protected Materials by the user and to prevent unauthorized access to Protected Materials; and (3) adherence to cybersecurity best practices
Document 45, Docket No. 1:26-md-03178 (S.D.N.Y. Apr 23, 2026), ¶20. Is this now the standard of care in appropriate litigation?
