In Litton v. Roblox Corp., No. 25-cv-03088 (N.D. Cal. May 27, 2026), California Magistrate Judge Peter H. Kang rejected Defendants proposed changes from the Model Protective Order primarily addressing the use of Confidential/Highly Confidential Information with an AI tool, stating: “Because there already exists a set of provisions addressing AI tools in that Standing Order, Defendants did not demonstrate sufficient cause to overcome the presumption of reasonableness and to warrant editing the Model Protective Order to address those same issues.”

Case Discussion and Judge’s Ruling

In this litigation involving 28 related cases alleging various harms including products liability and negligence, Judge Kang issued a discovery management order to address several discovery disputes. One of those related to Section 7.1 of a Proposed Stipulated Protective Order submitted by the parties. As Judge Kang stated:

“With regard to Section 7.1, Defendants proposed changes from the Model Protective Order primarily addressing the use of Confidential/Highly Confidential Information with an Artificial Intelligence (AI) tool…At the DMC, the Parties and the Court noted that the undersigned’s Standing Order for Civil Cases has multiple provisions addressing Artificial Intelligence tools and the responsible use of such tools by lawyers (and experts and Parties generally)…The Court ordered at the DMC and hereby confirms that it is ORDERED that Section VII(C) of the undersigned’s Standing Order for Civil Cases shall apply to all matters within the scope of referral to the undersigned in these cases, including these discovery matters. Because there already exists a set of provisions addressing AI tools in that Standing Order, Defendants did not demonstrate sufficient cause to overcome the presumption of reasonableness and to warrant editing the Model Protective Order to address those same issues.”

As a result, Judge Kang stated: “Section 7.1 SHALL not be edited as proposed and the Model Protective Order language shall be used for the Protective Order in these cases. Further, the Court ORDERS that Section VII(C) of the undersigned’s Civil Standing Order regarding artificial intelligence is now applicable to these cases”.

One paragraph of Section VII(C) of Judge Kang’s Civil Standing Order relates to AI and confidentiality, as follows:

“AI and Confidentiality: Third parties and non-parties to an action may own and operate publicly available AI tools such as large language models, machine learning tools, artificial neural networks, deep learning neural networks, and all other forms of generative AI for creating text, documents, or other materials. The owner or operator of any such AI tool may have access to, ownership of, or otherwise retain information input or submitted to such AI tool, including queries or prompts. Accordingly, in the course of preparing filings with the Court or other documents for submission in an action, counsel and Parties choosing to use an AI or other automated tools shall fully comply with any applicable protective order and all applicable ethical/legal obligations (including issues relating to privilege) in their use, disclosure to, submission to, or other interaction with any such AI tools. Such counsel and parties using any AI tool shall maintain records sufficient to establish and corroborate their compliance with this Standing Order, if asked by the Court, such as by keeping records of all prompts or inquiries submitted to any such third-party AI tools.”

It seems to me that the “set of provisions addressing AI tools in that Standing Order” refers back to complying with the protective order that Defendants were trying to change because it didn’t provide protection for confidential information. Not sure I understand the logic here.

Hat tip to Michael Berman who covered the case here and noted that “A.I. protective or confidentiality orders are becoming a standard of care.” I couldn’t agree more.

So, what do you think? Do you agree with the Court’s decision to reject Defendants proposed changes from the Model Protective Order? Please share any comments you might have or if you’d like to know more about a particular topic.

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