Zask v. Kohl's Corporation, No. 2:25-cv-00948-JPS, E.D. Wis. (Aug. 27, 2026), full order (PDF)
A protective order entered on August 27 sets conditions on any use of AI tools with the discovery material in the case. Kerry and William Zask sued Kohl's Corporation. The parties submitted an agreed protective order. Judge J.P. Stadtmueller adopted it, then made what he called four minor modifications of his own. The fourth is a new Paragraph F on artificial intelligence.
Paragraph F sets two conditions. The tool has to run in a secure environment. It also has to be subject to enforceable contractual terms the paragraph specifies. No product and no vendor is named anywhere in it.
What happened
The parties told the court that discovery would involve documents such as medical records, carrying personal medical and financial information, trade secrets, competitively sensitive business information, and other private or confidential information. The court found that they had requested the order in good faith. On their description of the material it was satisfied that a sufficient basis for the order existed.
The court's analysis
Rule 26(c) permits an order requiring that a trade secret or other confidential commercial information be revealed only in a specified way. Protective orders are, in the court's words, "an exception to the general rule that pretrial discovery must occur in the public eye." Even where the parties agree, they still have to show good cause and narrow tailoring. A blanket order can still be narrowly tailored, the court noted, where the parties will designate in good faith and where the order explicitly allows both the parties and other interested members of the public to challenge the sealing of documents.
Paragraph F permits a receiving party to use AI tools on discovery material "only if the AI tool is operated in a secure environment and is subject to enforceable contractual terms". The contract must prohibit the provider from retaining, using, disclosing or selling the material, and from using it "to train, improve, or develop any AI system". It must prohibit the material from being made publicly available or accessible to any other customer or third party. It must require "commercially reasonable administrative, technical, and physical safeguards" protecting the confidentiality of the material.
Discovery materials, whether designated Confidential or Attorneys' Eyes Only, "shall not be entered into any publicly available or consumer-based AI platform." Paragraph F states that bar without any contractual exception. It closes by tying AI use back to the order's existing limits, so material run through a tool stays restricted to the litigation.
Why it matters
Neither condition asks what the tool can do. One asks whether it runs in a secure environment. The other asks what contract terms the tool is subject to. Those terms have to bar the provider from retaining, using, disclosing, selling or training on the material. They have to keep it from being made publicly available or reaching another customer or third party. Commercially reasonable safeguards have to be required as well. Evaluating an AI system under this order means reading a vendor agreement, not only a security datasheet.
Enterprise and consumer versions of the same product routinely differ on exactly the retention and training terms Paragraph F requires. The bar on publicly available and consumer-based platforms is stated separately from the contract conditions, so a favorable contract does not open that door.
AI provisions in protective orders usually arrive by consent. That makes it easy to read a silent order as an agreement to stay silent. Paragraph F was not in what the parties submitted. Counsel drafting a protective order in 2026 should expect AI terms to appear whether or not they proposed them. The better course is to propose language already checked against their own vendor contracts.
The full order is available as a PDF.
