Are Protective Orders Limiting Upload to AI of Documents Produced by an Opponent in Discovery Becoming the Standard of Care?

A recent protective order entered by consent stated:

The Receiving Party shall not load, import, submit, or otherwise transfer Discovery Material (defined as any documents produced in this matter) to any Large Language Model (“LLM”) or Artificial Intelligence (“AI”) platform without agreement of the parties. Should the Receiving Party want to load, import, submit, or otherwise transfer Discovery Material to any LLM or AI platform, such LLM or AI platform must meet the following security requirements: (a) does not use, retain, or incorporate produced data to train, fine-tune, or otherwise improve any AI model or system; (b) operates within a closed, private, limited, secure universe including enterprise versions of web-based systems; (c) maintains appropriate data isolation at the organization, user, and workflow levels to prevent access to or commingling of data across users, matters, or organizations; (d) the technology provider for the platform must agree to maintain confidentiality, undergo regular third-party penetration testing and security audits, and the system must regularly purge data uploaded to the system based upon a known schedule or at the time of final disposition; (e) employs industry-standard encryption and security protocols (such as AES-256 encryption at rest and TLS 1.2 or higher in transit), data confidentiality protections, and system reliability standards; (f) maintains security certifications or controls consistent with industry standards for legal technology (such as SOC2 compliance and maintaining ISO / IEC 27001, 27017, 27018, 27701 certifications); (g) tracks all information in the system, including access; and (h) maintains data only on servers located in the United States. The parties agree that Relativity’s aiR Platform and WestLaw’s CoCounsel are acceptable industry standard tools that may be used by all parties as long as data produced by the Producing Party is not used to train AI systems or platforms and thereby do not require disclosure if there is intended use by the Receiving Party. To the extent a Receiving Party intends to use any LLM or AI platform, the Receiving Party shall disclose the specific LLM or AI platform(s) it intends to use and verify its compliance with (a) through (h) above. The Producing Party reserves the right to request additional information to confirm compliance with subsections (a)–(h). If the Producing Party has concerns regarding compliance with this provision, it may seek appropriate relief from the Court. The platform and its use must otherwise comply with this Protective Order. Any LLM or AI models, AI inputs, and AI outputs developed using Discovery Material will be deemed Confidential or Highly Confidential / AEO and will not be used for any purpose other than prosecuting or defending this litigation. Such LLM or AI models, AI inputs, and AI outputs will be deleted in accordance with Paragraph 12 of this Order.

Rudasill v. Swiss Re American Holding Corporation, 2026 WL 1329451 (S.D.N.Y. May 13, 2026)(emphasis added).

I have asked whether confidentiality orders regarding use of AI on materials disclosed by an opponent in discovery are now the standard of care.  Another Confidentiality Order Limiting Use of AI to Analyze Protected Materials (Apr. 27, 2026).

Prior to that, I wrote that A.I. Protective Orders Are Becoming Routine (Apr. 20, 2026).

Protective orders in the context of “apex” video depositions have been suggested.   “Deepfake Executives, Created Via Depositions, Pose Grave Threat”: Protective Order Suggested (Apr. 5, 2026).

A protective limitation was imposed in  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).

An earlier protective order was discussed in 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).

And, a 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). Notably, in Jeffries, the protective order applied to both confidential and non-confidential information produced in discovery.