By Bill Hartzer · Published · How this site is researched
Custody and confidentiality. Before any material is submitted to a system, the expert confirms that doing so is consistent with the protective order, the engagement terms, and any applicable confidentiality obligation, and establishes what leaves the expert's environment and who retains it.
An upload is a disclosure
Most of the Standard treats AI as a question of method. This clause treats it as a question of custody, governed by a different authority. A flaw in method leaves an opinion open to attack. A lapse in custody can breach a court order, with consequences that run through contempt, termination of the engagement and counsel's standing with the court rather than through Rule 702.
Submitting material to a service run by a third party discloses it to that party. The material leaves the expert's environment, is processed on hardware the expert does not own, and is likely retained on a schedule the expert does not set. The account tier therefore matters: a personal consumer account is the weakest position; an organizational account is stronger, though the employer can retrieve the content; an account with contractual commitments on retention, training and deletion is the ordinary answer for protected material; and a locally hosted model is the only answer where the order bars third-party disclosure outright. An excerpt of protected material is protected material, names stripped by hand are not anonymization, and a vendor's assurances do not override the order.
Settling it before material arrives
The order comes before the tool. At retention, ask counsel for the operative protective order (a court order restricting who may see designated material and what may be done with it) and read four provisions: the designation tiers, the permitted recipients, the permitted handling, and the return or destruction duty at the end. Where the order is silent on AI, the silence is an unresolved question, not permission. Ask counsel, or apply the more restrictive reading and record why. A half-page compliance memorandum, written once, captures the result.
Two further checks belong in that memorandum. Licensed material, such as a purchased technical standard or a subscription database, may carry terms that forbid feeding it to automated tools. Health records and personal data carry obligations that follow the material whatever the order says. The mechanics are plain: hash on receipt, encrypt at rest, never synchronize protected files to consumer cloud storage, and remember that disposal reaches anything sent to an outside service. The preservation protocol sets out the folder structure.
Orders that have made it concrete
In Fry v. Fry (Claude upload and sealing), a self-represented petitioner disclosed that he had uploaded redacted documents to non-enterprise versions of Claude. The court allowed narrow redactions, such as children's identifiers and sensitive medical information, and denied the rest of the motion. On the AI point it reasoned that sealing a document already provided to a private company, whose published pages made clear such information was not private, would be inappropriate. Nobody was fined.
Two federal magistrate judges wrote AI terms into protective orders in the matters collected as AI clauses in protective orders (Jeffries; Dunn), one extending the bar on open tools to all produced material. Morgan v. V2X (AI work product) amended a protective order to forbid entering confidential information into any platform whose provider is not contractually barred from storing it, training on it or disclosing it. And in United States v. Heppner, a criminal defendant rather than an expert, the court rejected privilege and work product claims over documents generated with Claude, pointing to the provider's privacy policy. Two state trial courts have since declined to follow that ruling, and no appellate court has addressed the question.
The rules it sits beside
The Standard does not restate any court rule and does not depend on one. In United States federal courts, Federal Rule of Civil Procedure 26 authorizes the protective orders that govern where produced material may go, including, now, into an AI system. Other systems ask the same questions in their own terms, and the matters below include tribunals in several of them.
Matters in the record that engaged Clause 6
22 of the 103 matters in AI in the Courtroom engaged this clause. Each is listed with the sentence from its entry that says how. The mapping describes conduct, not blame, and each entry sets out the facts it rests on.
Expert witnesses and AI
- NSW Supreme Court Practice Note SC Gen 23 “The leave application engages Clause 6, custody and confidentiality.”
- Plonit v. Clal Insurance (DigitalOwl summary) “Clause 6, custody and confidentiality, is engaged by the route the records traveled.”
AI-generated and altered evidence
- TRAX International Corp. v. United States “Clause 6, custody and confidentiality, is engaged because offerors' proposals were processed through an AI platform outside the evaluation itself; the opinion does not address that point.”
- Fry v. Fry (Claude upload and sealing) “This is Clause 6, custody and confidentiality, with the clearest consequence in the record.”
- Shealy v. Seaside Investments “The matter engages Clause 6, custody and confidentiality, at the point where most exposure is actually created.”
- Assini v. Hayward (subpoena to OpenAI quashed) “The conduct engaged Clause 6 of the Standard, custody and confidentiality.”
- Tate Group Automotive v. Legacy Automotive Capital “That is Clause 6 of the Standard, custody and confidentiality, arriving as a discovery obligation rather than as an ethical one.”
- Tym v. Cerno (AI work product) “The ruling also engages Clause 6, custody and confidentiality, in that the protection recognized here says nothing about whether the provider retains the material or what its terms permit.”
- Morgan v. V2X (AI work product) “The amended protective order is Clause 6, custody and confidentiality, written as a court order rather than as professional guidance.”
- Matter of M.S. (M.H.)
- United States v. Heppner “It illustrates Clause 6, custody and confidentiality.”
- Warner v. Gilbarco (ChatGPT work product) “The decision engages Clause 6, custody and confidentiality, from the direction experts least expect.”
Judges, courts and AI
- Senate Judiciary inquiry into judges' AI use “The chairman's question about non-public case information goes to Clause 6, custody and confidentiality: what may be submitted to a system at all.”
- Colombia: Cartagena ChatGPT ruling and Sentencia T-323/24 “According to a summary of the judgment published by Universidad Externado, the Court also noted that no personal data of the parties was entered into the system, a Clause 6 consideration.”
AI inside the courtroom
- State v. Boles juror ChatGPT research (Paulding County, Ga.) “A lawyer or expert who consults a system about a pending matter brings the same kind of untested material into the work, and may also disclose case information to a third party, which engages custody and confidentiality, Clause 6.”
- DoNotPay "robot lawyer" and FTC order “The plan also depended on recording the proceeding, which engages custody, Clause 6, since court rules restrict what may be captured and transmitted from a courtroom.”
Rules, orders and guidance
- California SB 574 (Statutes of 2026, chapter 858) “The confidentiality duty corresponds to Clause 6, custody and confidentiality, which requires an expert to confirm before submitting any material to a system that doing so is consistent with the protective order and the engagement.”
- AI clauses in protective orders (Jeffries; Dunn) “These orders are Clause 6 of the Standard, custody and confidentiality, written into the case as a court order.”
- New York courts: interim AI policy and Part 161 “The approved-tools list and the bar on confidential input correspond to Clause 6, custody and confidentiality.”
- AI Judicial Guidance, England and Wales (October 2025) “Treating anything entered into a public chatbot as published corresponds to Clause 6, custody and confidentiality.”
- California Rule of Court 10.430 and Standard 10.80
- ABA Formal Opinion 512 “Its informed-consent passage corresponds to Clause 6, custody and confidentiality.”
Clause 5: Reproducible analysis · All eight clauses · Clause 7: Contemporaneous record