In Jeffries v. Harcros Chems. Inc., Nos. 25-2352-KHV-ADM, 25-2569-KHV-ADM (D. Kan. Mar. 25, 2026), Kansas Magistrate Judge Angel D. Mitchell, rejecting Plaintiffs contention that Defendants’ proposal for protective order modifications would drive up Plaintiffs’ costs by denying them access to open AI Tools to analyze “otherwise unprotected discovery materials”, found that “Defendants have shown good cause for entry of Defendants’ proposed amended protective order”.

Case Discussion and Judge’s Ruling

In this case, the Court had entered the original protective order that “resolved the parties’ first round of disputes over restrictions for using AI Tools in relation to Confidential Information” that was produced to that party by an opponent in discovery.

Defendants now sought to amend the protective order language to expand the AI provisions described above to apply more broadly to all documents and information produced in discovery, seeking to prevent parties from uploading even non-confidential documents into open generative AI tools.

Defendants asserted the availability and use of AI Tools in litigation “represents a paradigm shift of yet-to-be defined proportions, but what is clear is that the way AI Tools function poses a potential threat to the integrity and security of data produced in litigation.” Defendants also stated that, because an open AI Tool uses the data submitted to it to continually develop and improve the tool, it is “practically impossible” to claw back data later determined to be privileged, or delete data from the open AI Tool at the conclusion of the action (as required by the deletion clause in the Protective Order) because the information was used to train the AI Tool. Defendants also stated that wholesale submission of discovery materials to an open AI Tool may violate U.S. data privacy laws and the GDPR and their proposed amendment was necessary to protect against exposure of critical infrastructure and data breach.

Plaintiffs disputed that Defendants have shown good cause for what Plaintiffs characterize as an “umbrella” protective order that is disfavored by courts and contended that Defendants’ proposal would drive up Plaintiffs’ costs by denying them access to open AI Tools to analyze “otherwise unprotected discovery materials.” Plaintiffs also argued that Defendants’ proposal deprives Plaintiffs of their First Amendment right to use and disseminate nonconfidential discovery materials to public-use, open AI Tools. Plaintiffs also said that Defendants’ arguments regarding the impossibility of clawing back or deleting the documents submitted to an open AI Tool and regarding potential violations of privacy laws and the GDPR were only speculative.

Addressing Plaintiff’s arguments, Judge Mitchell stated: “To begin, the court disagrees with Plaintiffs’ characterization of Defendants’ proposal as a disfavored ‘umbrella’ protective order. Umbrella protective orders preemptively designate all discovery as protected without any review by either the court or the parties… Although Defendants’ proposed protective order covers all discovery materials, the parties will still be reviewing and screening discovery materials to determine the extent to which they should be marked ‘Confidential.’ So, Defendants are not proposing the type of ‘umbrella’ protective order that is disfavored by the courts.”

Continuing, she said: “The court turns next to Plaintiffs’ contention that Defendants’ proposal seeks to increase Plaintiffs’ litigation costs by depriving them of open AI Tools to analyze discovery materials and making it more burdensome for Plaintiffs to pursue this litigation…Plaintiffs have not presented any support for the increased burden, such as by attempting to quantify the extent of any such increased cost. Thus, the court does not find that Plaintiffs would suffer an undue burden if the court were to grant Defendants’ motion. Indeed, Plaintiffs and their attorneys initiated this lawsuit knowing that class action litigation is expensive, including the costs of eDiscovery, expert witness fees, and administrative, court-filing, and other expenses. And, as Defendants point out, their proposal ‘applies equally to all parties and allows all parties to use Closed AI Tools that meet basic security requirements,’ thereby putting the same financial burden on Plaintiffs and Defendants.”

Judge Mitchell also rejected Plaintiff’s contention that Defendants’ proposed amended protective order deprives Plaintiffs of their First Amendment rights, stating: “Defendants’ proposed amended protective order does not prohibit the parties from disseminating non-confidential documents to the public. Indeed, Defendants concede that their proposed amended protective order ‘does not in any respect affect how all parties—consistent with applicable law, ethical requirements, and professional standards—can publicize non-confidential documents by posting such documents to a website, making documents available to the media, or attaching documents to a court filing.’”

Judge Mitchell also rejected Plaintiff’s argument that Defendants have not met their burden to show the need for the relief sought, given that they did not submit an affidavit from a cybersecurity expert to back up their claims of risk or to analyze the regulatory framework of the GDPR or provide specific examples of problematic discovery materials. She stated: “On balance, Defendants have the better arguments. Plaintiffs never directly address Defendants’ argument that clawing back or deleting data submitted to an open AI Tool is impossible as a practical matter because such data is used to continually develop and improve the tool. Nor do they address Defendants’ argument that the use of an open AI Tool may expose Defendants’ critical infrastructure information to cyber criminals and risk data breach.”

Stating “Defendants’ proposal does not foreclose a party from using any AI Tools; it only prohibits using open AI Tools while allowing the use of closed AI Tools—for good reason”, Judge Mitchell said, in granting Defendants’ Motion to Amend the Protective Order: “If the court were to allow a party to upload all non-confidential documents and materials produced by another party to an open AI Tool, thereby making all such data amenable to public consumption, parties may err on the side of under-producing potentially responsive documents or seek to make extensive redactions of irrelevant or non-responsive information. Defendants’ proposed amendment allowing the use of closed AI Tools, as opposed to open AI Tools, will facilitate discovery by incentivizing more fulsome document productions.”

So, what do you think? Should requesting parties have access to open AI tools to analyze productions? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today. Hat tip to Michael Berman for the original coverage of this case.

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