Motion to Permit Limited A.I. Review of “Confidential” Video Was Denied

An ESI Protocol is Not a Shield Against Discovery Obligations – Is There a Duty to “‘Fess Up” – Part III
October 31, 2026
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AI Protective Orders address how or if a receiving party can use artificial intelligence to analyze discovery materials produced by an opponent.  Some address all discovery materials.  Others are limited to confidential discovery materials.  Some specify permitted and prohibited platforms by name.  Others specify functionality.  A few do both.  Some are a page long; others are only a paragraph.  Most are entered by agreement of the parties.  However, there are a few cases in which a request for an AI Protective Order is contested.  This blog focuses on one of the contested cases.

Plaintiff filed a Motion to Modify Protective Order to Permit Limited Artificial Intelligence (“AI”)-Assisted Review of Body-Worn Camera (“BWC”) evidence. The motion was denied in Baqleh v. Altamirano, 2026 WL 3257576 (N.D. Cal. Oct. 28, 2026).

After plaintiff sued for claims arising out of his arrest, “the Parties stipulated to a Protective Order (‘PO’) that mirrored the Court’s model protective order, which the Court granted.”

However, “Plaintiff now moves the Court to modify the PO to allow Plaintiff to use ChatGPT to review body-worn camera footage Defendant produced in discovery and marked as ‘CONFIDENTIAL.’” The court explained that:

Plaintiff seeks to use ChatGPT to create timestamps, prepare a chronology, transcribe the video, and identify events within the video for purposes of discovery, motion practice, settlement, and trial preparation, but says he will not prepare analysis to use as admissible evidence.

After Defendant replied, Plaintiff narrowed his request and “now seeks AI-assisted review through a ‘business or private AI service’ with ‘safeguards required by the Court.’”  In my words, Plaintiff’s modification proposed to use a secure, enterprise, or fiduciary grade A.I. provider instead of a public, consumer-grade system.  However, the Plaintiff asked the court to set those safeguards.

The Baqleh court wrote: “Some courts have recently permitted the use of AI-assisted review when parties have agreed to use AI during discovery to analyze large quantities of data….  In this instance however, Plaintiff is not seeking to use AI for that purpose. Instead, Plaintiff asks the Court to permit disclosure of confidential information to a third-party within the structure of the existing PO.”

The Baqleh court held that, balancing the need for discovery against the need for confidentiality, Plaintiff had not shown good cause.

The Plaintiff’s argument was:

Plaintiff believes the Court should permit him to use ChatGPT to review confidential evidence because he is pro se and does not have support “reviewing and organizing audiovisual discovery.”…

Defendant countered:

Defendant responds that Plaintiff does not need AI assistance because the BWC video evidence is only 30 minutes long, and Plaintiff does not contest this representation about the length of the footage…. Defendant argues that, aside from being unnecessary, there is substantial risk in using a public large-language model platform to process confidential information…. Defendant represents that uploading confidential evidence to ChatGPT risks disclosure of information such as non-party criminal history, parole status, probation status, drug use, police investigations, and driver’s license numbers, all of which Plaintiff acknowledges to be “sensitive information.”

Id. at *2.  The court explained its reasoning:

The Court finds that the balance of conflicting interests weighs in favor of Defendant’s position. It is not disputed that exposing confidential information to ChatGPT creates at least some risks with respect to how that information will be used and safeguarded…. While Plaintiff proposes several potential safeguards to prevent disclosure of the information Defendant identifies, he does not cite anything confirming the availability or reliability of those safeguards…. So, there would need to be some substantial offsetting benefit that outweighs these risks, but Plaintiff has not shown that specific harm will result if his motion is not granted. Reviewing a 30-minute video for the purposes Plaintiff says he would use ChatGPT for is not an overbearing task that disadvantages a pro se party. For example, to the extent Plaintiff wants to create a chronology of the video, he can easily do so by taking handwritten notes. The Court thus denies Plaintiff’s request to use ChatGPT to review the confidential BWC evidence.

Id. at *2 (emphasis added).

In a footnote, the court addressed and rejected Plaintiff’s offer to narrow the request:

Plaintiff’s Reply appears to narrow his request by asking for “AI-assisted review through a business or private AI service” where he can show that safeguards exist…. Plaintiff’s new formulation does not change the Court’s analysis, because the balance between (some) risks and (essentially no) benefits remains unchanged. Plaintiff also requests in the alternative for the Court to modify the PO using the framework outlined in Morgan v. V2X, Inc., 2026 WL 864223 (D. Colo. Mar. 30, 2026), to accommodate Plaintiff’s request to use AI to review the video footage…. The Court declines in its discretion to do so for the reasons it has already explained.

Baqleh may be a unicorn.  As the court pointed out, it was for a very limited purpose and not for review of voluminous ESI.  The video was “confidential” and short, unlike the voluminous discovery materials in many other cases. And, Plaintiff asked the court to do his “homework” for him by specifying the safeguards that the court would impose instead of offering a specific plan.

A.I. protective orders are one of the hottest recent topics in civil and criminal litigation. I have suggested that they are now the standard of care.

I have also echoed Craig Ball’s concerns that equity be considered and that they not become an obstacle to unrepresented or indigent litigants. See  A.I. Protective Orders Are Becoming Routine (Aug. 27, 2026), and  Another A.I. Protective Order – Part 10 (Aug. 21, 2026), both citing Craig Ball, The AI Protective Order Double Standard | Ball in your Court (Jul. 27, 2026).

Craig’s post also tackles the thorny issue of terminology.  He suggests specific terms that should be avoided in these protective orders. His list of five things that a properly-scoped order should contain is well worth reading. The AI Protective Order Double Standard | Ball in your Court.

For more information, please visit:

Restrictions on Use of Artificial Intelligence Tools. No party, non-party, or other person permitted to receive information designated “Confidential” [or “Confidential—Attorneys’ Eyes Only”] under Paragraph 6 of this Order may input, upload, or submit such information to any artificial intelligence tool, chatbot, generative AI system, large language model, or similar automated platform (“AI”) unless the AI provider is contractually prohibited from both:

(a) using the inputs, or information derived from them, for any purpose other than providing the specific service requested, including using them to train any model or to develop or improve any product or service; and

(b) disclosing the inputs, or any information derived from them to any third party, except where such disclosure is essential to delivering the requested service. Where disclosure to a third party is essential to delivering the requested service, that third party must be bound by obligations no less protective than those required by this paragraph.

Any party seeking to use AI under this paragraph must also confirm that the AI provider will, upon request, delete from its systems all information designated “Confidential.” The party must retain written documentation of the contractual protections required by this paragraph and provide that documentation to the Designating Party or the Court upon request….

Protected Material shall not be submitted to any “Open Generative AI Tool” (e.g., ChatGPT) or any substantially similar tool that is available to or accessible by the public, with or without a subscription or license. Providing Protected Material to any “Open Generative AI Tool” is considered a prohibited disclosure to a third party. The parties may use a closed Generative AI Tool that is private and secured, where there is a contractual agreement providing that the generative AI tool does not retain information beyond any use session, except to the extent retention is reasonably necessary for investigation of abuse violations, system functionality or internal data security operations, provided such information is not used for model training or product improvement purposes and remains subject to the provider’s confidentiality obligations. This provision is not intended to limit use of technology assisted review via qualified data storage persons (i.e., electronic discovery or litigation-support vendors). Any party receiving Protected Material must ensure that the contract, software license, terms of use, or any other agreement or terms for use of the AI tool complies with this Protective Order. [emphasis added].

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