Another Dispute over A.I. Protective Order

Use of an A.I. Recorder in Depositions? In a “Meet and Confer”?

September 3, 2026

Published by Michael Berman at September 6, 2026

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In U.S. v. Thomas, 2026 WL 2517653 (S.D.N.Y. Aug. 26, 2026), defense counsel wrote to the court asking for an order compelling discovery. Counsel wrote:

Th[e] hold-up in discovery production centers around the parties disagreement regarding the language in a provision in the proposed Protective Order (“PO”) concerning defense counsel’s use of Artificial Intelligence (AI) platforms in its review of discovery provided by the Government. The parties have been engaging in good faith negotiations for over a month regarding the appropriate language to be included in the PO and whether the AI obligations set forth in that provision limits defense counsel, the coordinating discovery attorney (“CDA”), and the Government. Proposals have been sent back and forth, the latest of which was provided to the Government on August 19, 2026, and was based on discussions between the Government, defense counsel and Emma Greenwood, Esq., who is appointed as the CDA in this case.

The Government is holding hostage the discovery until defense counsel executes the PO. We seem to be at an impasse. However, even though all parties are acting in good faith, the Government’s refusal to even release the discovery that is otherwise not covered by the PO is unacceptable. I am well aware of my ethical obligations on the use of AI in handling my client’s documents whether those documents are discovery or something other. The Government does not have a role in policing or overseeing or even dictating with my ethical obligations. Similarly, I trust the Government is familiar with their ethical obligation with respect to the use of AI as it relates to my client’s discovery.

Accordingly, while I remain optimistic that counsel and the Government will reach an agreement on the language of an AI provision in the PO, until such time as we do, I respectfully request the Court compel the Government to at least provide the defense with all non-sensitive Rule 16 discovery immediately. [emphasis added].

The court denied the request, writing:

The Government’s proposed protective order characterizes all discovery materials as “disclosure materials” and subjects all discovery material (whether it is designated for further restrictions as “attorneys eyes only” or “attorney’s possession only” or not) to restrictions on, inter alia, further disclosure and use other than for purposes of the defense of the charges, as well as the AI-specific restrictions of which defense counsel complains. (Docket entry no. 29-1.) In short, based on the Government’s broad definition and description of “disclosure materials,” there does not appear to be any “non-sensitive Rule 16 discovery” that the Government would be prepared to produce without restrictions on use and further dissemination.

The court also denied a request to enter the government’s protective order, writing: “The parties and the Coordinating Discovery Attorney are encouraged to continue to meet and confer to clarify the Government’s position as to whether there is any discovery material that is not within any of the categories described in the final sentence of paragraph 1 of its proposed order, and to clarify the defense’s position as to whether it believes its ethical obligations already preclude its use of AI tools that would subject the discovery material to disclosure and/or use that is incompatible with the general restrictive principles that are outlined in paragraph 5 of the proposed protective order.”

This case is in the Southern District of New York. For a post citing orders entered by consent in criminal cases in the Southern District of New York, see Another A.I. Protective Order – Part 10 (Aug. 21, 2026).

For a recent post on this issue in a civil case, see A.I. Protective Orders Are Becoming Routine (Aug. 27 ,2026).

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