AI clauses in protective orders (Jeffries; Dunn)

What happened

Two federal magistrate judges wrote artificial intelligence provisions into protective orders in 2026, and between them they mark where this practice is heading.

In the Kansas toxic-tort cases Jeffries v. Harcros Chemicals and Tucker v. Harcros Chemicals, the original protective order already required notice and an opportunity to object before a particular AI tool could be used on confidential information, required use in a secure environment, barred training on confidential information except by a tool used exclusively in the action, and required deletion at the end of the case. The practical effect was to confine confidential information to closed tools.

In the Colorado case Dunn v. LexisNexis Risk Solutions, the parties agreed on most of an AI provision. It prohibited uploading confidential information to certain AI platforms, permitted platforms that limit training and disclosure and allow deletion, and identified the specific tools the parties intended to use. They disagreed on one sentence, which would have required disclosure, consent and an amendment each time a party wanted to use a new tool with confidential information.

What the courts did

In Jeffries, on March 25, 2026, Magistrate Judge Angel D. Mitchell granted the defendants' motion to amend and extended the AI restrictions from confidential material to all discovery materials. The amended order prohibits uploading even non-confidential produced documents into public or open-loop generative AI tools, while permitting closed tools. The court reasoned that allowing all produced non-confidential material into open tools would make it amenable to public consumption, which would cause parties to under-produce or over-redact, and that the closed-tool rule would "facilitate discovery by incentivizing more fulsome document productions."

In Dunn, on August 31, 2026, Magistrate Judge Maritza Dominguez Braswell entered the protective order without the disputed sentence. She rejected the plaintiff's characterization of the dispute as motivated by a wish to make the other side suffer, stating that "Knowing how confidential information is handled is a legitimate interest," while acknowledging concerns about an AI protective order double standard and observing that a court must balance the competing interests against the current state of the technology.

Where it stands

Both orders stand. Neither has been reviewed on appeal, and no court of appeals has addressed AI provisions in protective orders. Related orders in the same line include Morgan v. V2X, Inc., 2026 WL 864223 (D. Colo. Mar. 30, 2026), which permits AI use only where the provider is contractually barred from storing, training on, or disclosing inputs, and requires parties to retain written documentation of those contractual protections.

The obligation it engaged

These orders are Clause 6 of the Standard, custody and confidentiality, written into the case as a court order. The clause asks the expert to confirm, before any material is submitted to a system, that doing so is consistent with the protective order. In a case with a Jeffries-style provision, the answer for open tools is no, and it covers everything produced, not merely what is stamped confidential.

Two consequences follow for an expert. The first is that the question has to be asked before the work starts, because the restriction attaches to the material rather than to the task. The second is documentary: Morgan requires the party to retain written documentation of the provider's contractual protections. That means the operative terms for the tier the expert actually used, dated. An expert working on a consumer account cannot produce that, and increasingly will be asked to.

Clause 7, contemporaneous record, is what shows compliance after the fact. An order limiting which tools may touch which materials is only enforceable against a record of which tools touched what.

Sources

• U.S. District Court, D. Colo. · August 31, 2026
  Order granting second joint motion for entry of protective order
• U.S. District Court, D. Kan. · March 25, 2026
  Order granting motion to amend the protective order, ECF No. 152
• Sidley Austin · April 6, 2026
  Generative AI in Discovery: Protective Orders as an Emerging Point of Dispute

What could not be confirmed

The Morgan v. V2X order was not opened; its terms are taken from secondary reporting and from the Dunn and Tate Group orders' descriptions of it. This entry covers two matters in two districts and is organized by the practice rather than by a single caption.