“Will Courts Enforce Protective Order Restrictions on AI Use?”

Proposed Federal Rule Governing Admissibility of AI Evidence

November 11, 2026

Published by Michael Berman at November 12, 2026

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In a recent post, Phil Favro asked Will Courts Enforce Protective Order Restrictions on AI Use? (Favro Law Sep. 29, 2026). I have reviewed a lot of these orders, but Phil’s suggestion is one I have not seen before.

Phil wrote:

But what happens if parties or their lawyers violate those provisions by uploading confidential information into an unauthorized AI application? Will courts impose sanctions for protective order violations?

And if courts do levy sanctions, will the punishments be sufficiently severe to deter future violations, either in the instant case or in other lawsuits?

Courts have not directly addressed these questions.

After reviewing sanctions decisions in other contexts, Phil’s blog suggests that there is “no guarantee… that courts will even take action to address protective order violations of AI-restrictive provisions.”

Phil suggested better drafting of AI Protective Orders:

For the time being, there isn’t a foolproof way for litigants to completely prevent adversaries from revealing confidential information to unauthorized AI tools. Mistakes will happen, and sometimes disclosures may be intentional rather than inadvertent. Making some effort to consider appropriate remedies for these violations is essential if litigants wish to better safeguard confidential information in the AI era. [emphasis added].

Therefore, he suggests that: “Counsel could also consider including one or a combination of graded and progressive remedies for unauthorized disclosures of such information. For example, the parties could delineate more severe sanctions for misusing AEO materials than for just confidential information. Or sanctions could become progressively more severe with each violation of a protective order.”

Phil suggests that there is a “need for counsel to consider proactive approaches in protective orders as they relate to AI-restrictive provisions. The particular approach to be adopted will likely depend on the type of case at issue, the nature and extent of the confidential information involved, and the manner or methods of misuse of confidential information.”

For more information on Phil Favro and his practice, please visit:

For more information on A.I. Protective Orders, please visit:

I. Protective Orders Are Becoming the Standard of Care (Nov. 4, 2026);
Motion to Permit Limited A.I. Review of “Confidential” Video Was Denied (Oct. 31, 2026);
Contested Motion for AI Protective Order Was Granted (Oct. 26, 2026);
A Unique A.I. Protective Order (Oct. 9, 2026);
Three More A.I. Protective Orders (Oct. 9, 2026);
Another AI Protective Order (Sep. 16, 2026);
I. Protective Order by Consent in Google Case (Sep. 13, 2026);
No Violation of A.I. Protective Order (Sep. 11, 2026);
Another Dispute over A.I. Protective Order (Sep. 6, 2026);
I. Protective Orders Are Becoming Routine(Aug. 27 ,2026);
Another A.I. Protective Order – Part 10(Aug. 21, 2026);
Restrictions on Use of Artificial Intelligence Tools to Process Disclosure Materials(Jul. 27, 2026);
Another A.I. Protective Order(Jul. 9, 2026);
I. Protective Order—Again(Jun. 18, 2026);
Unicorn Rejects A.I. Protective/Confidentiality Order – Order Entered in Criminal Case(Jun. 4, 2026);
Are Protective Orders Limiting Upload to AI of Documents Produced by an Opponent in Discovery Becoming the Standard of Care?(May 26, 2026), discussing Rudasill v. Swiss Re American Holding Corporation, 2026 WL 1329451 (S.D.N.Y. May 13, 2026);
Another Confidentiality Order Limiting Use of AI to Analyze Protected Materials(Apr. 27, 2026), discussing In re: ByHeart, Inc., Infant Formula Marketing, Sales Practices, and Products Liability Litigation,2026 WL 1103170 (S.D.N.Y. Apr. 23, 2026);
I. Protective Orders Are Becoming Routine(Apr. 20, 2026), discussing Stansfield v. International Business Machines Corporation, 2026 WL 1031230, at *2 (D. Nev. Apr. 16, 2026);
“Deepfake Executives, Created Via Depositions, Pose Grave Threat”: Protective Order Suggested(Apr. 5, 2026);
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);
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);
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);
Dunn v. LexisNexis Risk Solutions, Inc., 2026 WL 2568346, at *1(D. Col. Aug. 31, 2026)(“The AI provision prohibits the uploading of confidential information to certain AI platforms but permits the use of secure platforms, so long as they limit training and disclosure, and allow deletion…. The agreed-upon AI provision also identifies the tools the parties intend to use.”);
James v. Cerebras Systems, Inc., 2026 WL 1962840 (Jul. 7, 2026)(stipulated);
A. v. The New York and Presbyterian Hosp., 2026 WL 2547094, at *5 (S.D.N.Y. Aug. 28, 2026)(Amended Protective Order);
A. v. Jones, 2026 WL 2607719, at *2 (S.D.N.Y. Sep. 3, 2026);
Doe v. Google LLC, 2026 WL 2584519 (N.D. Cal. Sep. 1, 2026);
ZL Technologies, Inc. v. KLDiscovery Ontrack, LLC, 2026 WL 2731631, at *9 (S.D.N.Y. Sep. 16, 2026);
v. Perez-Feliz, 2026 WL 2754823 (S.D.N.Y. Sep. 17, 2026)(consent order);
v. Montes, 2026 WL 2824059, at *1 (S.D.N.Y. Sep. 21, 2026)(by consent);
v. Hawkins, 2026 WL 2825014, at *2 (S.D.N.Y. Sep. 21, 20260(same);
A. v Amanuel, 2026 WL 2972618 (S.D.N.Y. Oct. 2, 2026)(by consent);
White v. Chime Financial, Inc., 2026 WL 3000904 (W.D. Wash. Oct. 6, 2026)(stipulated);
A. v. Lockhart, 2026 WL 3003727 (S.D.N.Y. Oct. 6, 2026)(by consent);
A. v. Santos, 2026 WL 3003653 (Oct. 6, 2026)(by consent);
A. v. Robinson, 2026 WL 3003677 (Oct. 6, 2026)(by consent);
A. v. Peplow, 2026 WL 3026474 (E.D. Cal. Oct. 8, 2026)(stipulation);
A. v. Sarris, 2026 WL 2937892, at *2 (S.D.N.Y. Sep 30, 2026)(by consent);
A. v. DeJesus, 2026 WL 3034296 (S.D.N.Y. Oct. 9, 2026)(by consent);
Orechovesky v. BNY Administrative Services, LLC, 2026 WL 1725149 (S.D.N.Y. June 15, 2026);
Pujas v. BDO USA, P.C., 2026 WL 1724307 (S.D.N.Y. June 15, 2026);
Hintermaier v. Experian Info. Solutions, Inc. – stipulated order that:
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….
Brower v. Colgate-Palmolive Co. – by consent:
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].