D.N.J.: Confidentiality Order, ¶ 8 (Brian M. Stolar 1998 Family Trust v. American General…

What the rule requires

Paragraph 8 of this stipulated confidentiality order in Stolar v. American General Life is one of the most operationally specific AI-tool restrictions any federal court has issued in a discovery protective order. The structure is conditional: AI tool use with Confidential or Attorneys’ Eyes Only (AEO) material is permitted only if the receiving party confirms in writing to the producing party that the tool satisfies a multi-prong test. The prongs are not alternatives to a default of “no AI use”; they are the exclusive pathways through which compliant AI use can occur.

The four operative pathways are:

1. Access restriction (mandatory): the AI tool must restrict receipt and access to enumerated authorized parties (paragraphs 4 and 6 of the order, which list outside counsel, in-house counsel for AEO, designated experts, court personnel, and a few specific others).

2. Retention restriction (mandatory, with two sub-branches): either (a) the AI tool does not retain the Confidential or AEO material in any form, including stored data, code changes, or algorithmic learning; OR (b) if it does retain, it is used solely in connection with the action and is decommissioned with the material securely erased upon conclusion.

3. Stateless pathway: the AI tool is stateless, meaning neither the tool nor any containing system will be modified, improved, or changed by the use of the material, including through tokenization or embedding.

4. Non-stateless pathway: if the tool is not stateless, it must be available only to authorized individuals for the limited Order purposes, and upon conclusion must be permanently reset to its pre-receipt default state or securely deleted.

The order also includes a final disposition certification: the receiving party’s certification of compliance with the protective order’s Final Disposition requirements must also certify destruction of all Confidential and AEO material submitted into any AI tool.

The ChatGPT carve-out

The order’s most quoted language is the explicit ChatGPT exclusion: “Confidential and Attorneys’ Eyes Only material shall not, under any circumstances, be used in or with any AI Tool (e.g., ChatGPT) or any other substantially similar tool, model, software, or application that does not comply with the above requirements.” The phrasing is structural: ChatGPT is named as an example of a non-compliant tool, not as a per-se forbidden product. The operative restriction is the compliance test in paragraph 8(1)-(4); ChatGPT’s exclusion is downstream of that test rather than free-standing. The order does not document its assessment of any specific tool’s compliance posture, so practitioners reading the rule should treat the ChatGPT reference as illustrative of the compliance test’s effect rather than as a finding about that product.

For partners thinking about this rule’s scope of application: the receiving party bears the compliance certification burden under paragraph 8 and must confirm in writing that the chosen tool satisfies one of the four enumerated pathways. The order does not enumerate compliant tools or vouch for any vendor’s representations; the certification’s accuracy is the receiving party’s responsibility, and any reliance on the producing party’s silence as approval would be misplaced.

Quotable language (paragraph 8, verbatim)

“Confidential and Attorneys’ Eyes Only material may only be used in an artificial intelligence tool (‘AI Tool’) that a receiving party to this litigation or non-party covered by this Order first confirms in writing to the producing party (1) restricts receipt and access of such Confidential and Attorneys’ Eyes Only to a receiving party or other individual as identified in Paragraphs 4 and 6; and (2) either (a) does not retain the Confidential and Attorneys’ Eyes Only material such that it is available to any developers, providers or operators of the AI Tool in any form or manner, whether as stored data or changes to code or algorithmic learning or otherwise, or (b) in the event of any such data retention, the AI Tool is used by or on behalf of the receiving Party solely in connection with this action and is decommissioned and all Confidential and Attorneys’ Eyes Only material securely and permanently erased, following conclusion of the action; and either (3) the AI Tool is ‘stateless’, meaning that neither the tool nor any system containing the tool will be modified, improved, or changed following use of the AI Tool with Confidential and Attorneys’ Eyes Only material such that the AI Tool will neither retain or store Confidential and Attorneys’ Eyes Only material in raw form or through any tokenization, embedding, or through any other method, or (4) if the AI Tool is not stateless, the AI Tool shall be: (a) only available to a receiving party or other individual as identified in Paragraphs 4 and 6 and only for the limited purpose set forth in this Order and (b) upon the conclusion of permitted processing under this Order, either permanently reset to a default state that existed prior to the receipt of Confidential and Attorneys’ Eyes Only material or securely deleted in its entirety.”

“Confidential and Attorneys’ Eyes Only material shall not, under any circumstances, be used in or with any AI Tool (e.g., ChatGPT) or any other substantially similar tool, model, software, or application that does not comply with the above requirements; and any such use that does not comply is unauthorized and strictly prohibited.”

Verification posture

The order is a stipulated protective order, signed by counsel for both parties on January 27, 2025 (Edward A. Velky for Defendant American General Life; Carl A. Salisbury for Plaintiff Stolar Trust) and entered by Magistrate Judge Michael A. Hammer on January 28, 2025. The full eight-page order plus Exhibit A (Agreement to Be Bound) is preserved on RECAP. Whether identical AI-restriction language appears in other Hammer-court protective orders, or whether the parties drafted it for this case specifically, is an open question; the format of paragraph 8 reads as a sophisticated party-drafted clause adopted by the court rather than a chambers-rule template.