A.I. Protective Orders Are Becoming the Standard of Care

Daniel B. Garrie posted AI Protective Orders Are Becoming the Standard of Care (Law and Forensics Oct. 9, 2026). Mr. Garrie notes that “AI-specific protective order provisions are rapidly becoming an expected feature of federal litigation, not an outlier negotiating point.”  I agree.

AI Protective Orders address how or if a receiving party can use artificial intelligence to analyze discovery materials produced by an opponent.  See Motion to Permit Limited A.I. Review of “Confidential” Video Was Denied (Oct. 31, 2026).  These agreements and orders are one of the hottest topics in civil and criminal litigation.

I have suggested the standard-of-care approach several times.  For example, I wrote that “A.I. protective orders, in one form or another, are becoming the standard of care.”  Another A.I. Protective Order – Part 10 (Aug. 21, 2026)(emphasis added).

In Motion to Permit Limited A.I. Review of “Confidential” Video Was Denied (Oct. 31, 2026), I cited to over 40 examples of AI Protective Orders.

I have also echoed Craig Ball’s cautions and concerns that equity be considered and that these orders 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).

There is a wide variety of AI Protective Orders. 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.  Motion to Permit Limited A.I. Review of “Confidential” Video Was Denied (Oct. 31, 2026).

For more information, please visit:

• A.I. Protective Orders Are Becoming Routine (Apr. 20, 2026);
• Another Confidentiality Order Limiting Use of AI to Analyze Protected Materials (Apr. 27, 2026);
• Are Protective Orders Limiting Upload to AI of Documents Produced by an Opponent in Discovery Becoming the Standard of Care? (May 26, 2026);
• Unicorn Rejects A.I. Protective/Confidentiality Order – Order Entered in Criminal Case (Jun. 4, 2026);
• A.I. Protective Order—Again (Jun. 18, 2026);
• Another A.I. Protective Order (Jul. 9, 2026);
• Examples of a Very Detailed A.I. Protective Order and Less Detailed Agreements and Orders (Oct. 16, 2026).

Some contested protective orders have been entered over objection. Compare  Contested Motion for AI Protective Order Was Granted (Oct. 26, 2026), with Court Denies Motion to Prohibit Use of GenAI by Opponents (Oct. 29, 2026);  Motion to Permit Limited A.I. Review of “Confidential” Video Was Denied (Oct. 31, 2026).

However, the vast majority have been entered by consent.  And, I agree with Mr. Garrie’s suggestion that “Litigation teams that address these obligations at the outset — in the Rule 26(f) conference, in the protective order, and in their internal workflows — will be far better positioned than those who treat the question as a future problem. The standard of care is forming now, and the record of how a party managed its AI tools will follow the matter to its conclusion.”

In my view, AI Protective Orders are now part of the standard of care in many cases; however, the scope and form is not a one-size-fits-all standard.