The Protection Should Follow the Material

Courts are beginning to draw lines around what information should and should not be placed into GenAI tools. I have written recently about the protective order in Morgan v. V2X, Inc. and a standing order from the Northern District of West Virginia, both of which restrict the use of certain confidential or particularly sensitive material with these systems.

That makes sense. But as courts gain access to similar GenAI tools in chambers, we need to remember that those protections may matter on our side of the bench too.

Judges and court staff may use GenAI to summarize filings, review transcripts, organize records, assist with research, or help with other parts of the judicial workflow. Some of the material involved in that work may be subject to the very protective order or standing order already governing the case.

If we have signed an order because certain material should not be placed into a GenAI tool, or should only be used with a particular kind of tool under particular settings, the concern does not disappear when the user is the court. The point is to protect the information from retention, training, or exposure to unauthorized third parties, regardless of who happens to be using the tool.

What makes this worth saying out loud is that the restriction may not be obvious by the time the material reaches chambers. A protective order designation is usually made early on in the case during discovery, so it does not necessarily follow the same path a sealed document would. The limitation appears in an order entered earlier in the case, while the material itself shows up later as an exhibit, part of a transcript, or a few pages inside a much larger filing. It looks like everything around it.

That means part of using GenAI responsibly in chambers is knowing not only what the tool can do, but what we are putting into it. Before protected material is uploaded, we should ensure that our use of GenAI tools is consistent with the protections already in place.

This is not a new reason to be afraid of GenAI or another argument for keeping it out of chambers. It is simply one more thing courts should be paying attention to as these tools become part of the judicial workflow.

The protection should follow the material.