When your company is sued, litigation often involves producing large volumes of confidential business documents to the other side—internal communications, financial records, personnel files, customer information, contracts, trade secrets, and more. Courts routinely enter protective orders to protect the confidentiality of that material.
Generative AI has created a new and serious gap in that protection. When someone feeds your confidential documents into the public, consumer-tier versions of tools like ChatGPT, Google Gemini, or Claude, those documents may be retained by the platform, used to train its model, and made available to others in ways that are, as a practical matter, impossible to undo. Courts have begun confronting this risk head-on. Recent decisions show that parties that are proactive about negotiating AI provisions in protective orders can obtain important, enforceable safeguards for their confidential information.
