N.D.W.Va.: Standing Order: In re Use of Artificial Intelligence Tools to Review Criminal…
Hon. Thomas S. Kleeh, Chief U.S. District Judge · U.S. District Court for the Northern District of West Virginia
Verified September 28, 2026
- Citation
- Standing Order: In re Use of Artificial Intelligence Tools to Review Criminal Discovery (Chief Judge Thomas S. Kleeh, N.D. W. Va.)
- Order date
- June 16, 2026
Summary
Applies, 'effective as of the date of this Standing Order, and until such time as the Court orders otherwise', to 'all criminal actions filed in this Court.'
What does the order require?
- Applies, 'effective as of the date of this Standing Order, and until such time as the Court orders otherwise', to 'all criminal actions filed in this Court.'
- No member of the legal defense team 'shall input, transmit, upload, process, generate output from, or otherwise expose any Sensitive Materials received to any AI tool without prior written consent from the government.'
- A request for consent must 'specifically identify and describe any AI tool to be used and certify that it does not (i) retain or use any Sensitive Materials for model training, nor (ii) expose any Sensitive Materials to third parties not authorized under this Order to receive such materials.'
- Defense counsel must also certify 'that (i) defense counsel has implemented reasonable measures to ensure that any AI tool used will maintain the confidentiality of any Sensitive Materials, and (ii) defense counsel will ensure the deletion of all Sensitive Materials from the tool at the conclusion of the case.'
- 'Under no circumstances will any member of the defense team submit Sensitive Materials to a publicly accessible AI system that retains and uses submitted data to train models.'
- 'AI tool' means 'any automated system that uses statistical modeling, machine learning, or similar techniques to process inputs and generate outputs, recommendations, or predictions, including but not limited to large language models, generative AI services, or AI-assisted software tools, whether cloud-based or otherwise.'
Practice areas: federal criminal
What the order does
Chief Judge Thomas S. Kleeh’s standing order, entered June 16, 2026 as Miscellaneous No. 1:26-MC-38, applies to “all criminal actions filed in this Court.” It targets a risk that most AI rules do not reach: what happens to discovery once it is loaded into an AI tool. The order finds that “‘data-retentive’ or ‘consumer-tier’ AI tools that allow publicly accessible AI systems to retain and use submitted data to train models” pose “a threat to the integrity and security of data produced in litigation.”
Its core restriction: no one on the legal defense team “shall input, transmit, upload, process, generate output from, or otherwise expose any Sensitive Materials received to any AI tool without prior written consent from the government.”
How consent works
Defense counsel asks the government in writing. The request must “specifically identify and describe any AI tool to be used and certify that it does not (i) retain or use any Sensitive Materials for model training, nor (ii) expose any Sensitive Materials to third parties not authorized under this Order.” Counsel must also certify reasonable confidentiality measures and that the materials will be deleted from the tool at the end of the case.
One use is barred outright: “Under no circumstances will any member of the defense team submit Sensitive Materials to a publicly accessible AI system that retains and uses submitted data to train models.”
What counts as Sensitive Materials
Unless the parties agree otherwise, the order designates eleven categories, including contact and identifying information, information identifying confidential sources or undercover agents, witness-security information, third-party medical records, tax information, and footage or identifying information of minors. It excludes public-record materials, materials the defense obtains other than through discovery, and materials that “pertain solely and directly to the defendant.”
The “legal defense team” covers counsel of record (including post-conviction and appellate counsel) and the attorneys, investigators, paralegals, staff, interns, consultants, and experts assisting them. It does not include the defendant or the defendant’s family or associates.
What it does not do
The order imposes no disclosure or certification on court filings. Its duties run to the defense team’s handling of discovery, and the certifications go to the government, not the court.