| In Re: Administrative Orders of the Chief Judge | ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
Case No: 3:21-mc-1-TJC |
AMENDED ORDER REGARDING PROCEDURES FOR FILING HIGHLY SENSITIVE DOCUMENTS1
On January 6, 2021, the Judicial Conference of the United States notified federal courts of widespread cybersecurity breaches of government computer systems.2 In response, the Court is implementing a new system for filings with highly sensitive, non-public information. Under Rule 5(d)(3)(A), Federal Rules of Civil Procedure, and Rule 49(b)(3)(A), Federal Rules of Criminal Procedure, good cause exists to require the filing of a “highly sensitive document” (HSD), as described below, in paper format outside of the Case Management/Electronic Case Files (CM/ECF) system, using the procedures in this Amended Order.1. Definition of an HSD
An HSD is a document that contains sensitive or confidential information that may be of interest to the intelligence service of a hostile foreign government and whose use or disclosure by a hostile foreign government would likely cause significant harm. The Court anticipates that few documents filed in this Court will qualify as HSDs. The Court expects that HSDs may be filed in a case involving:b. a foreign sovereign interest;
c. cybersecurity;
d. an ongoing law-enforcement investigation or intelligence-gathering operation;
e. information that would risk the safety of a public official or the integrity of a governmental operation; or
f. non-public intellectual property, including a trade secret.3
b. an application for electronic surveillance under 18 U.S.C. § 2518.
b. a pretrial-release report and related documents;
c. the administrative record in a social security case;
d. the administrative record in an immigration case; and
e. a sealed filing in a civil case.
2. Motion to Treat a Document as an HSD
A party contending a document should be treated as an HSD must request permission to file the document outside of CM/ECF by filing a “Motion to Treat a Document as an HSD.” The motion must be filed using the procedures in section 3 below. The motion must comply with Local Rule 1.11(c)(2) – (7), state why the document is an HSD, and state why filing the document in paper (as opposed to filing the document under seal on CM/ECF) is necessary.5 If the motion is granted, the filing party shall submit the HSD to the court using the procedures in section 3 below.A dispute about whether a document is an HSD will be resolved by the presiding judge or, if no presiding judge is assigned, the administrative judge of the division.
3. Filing of Authorized HSDs
When filing an HSD motion or an HSD, a party must submit two paper copies to the clerk’s office. If applicable, the filing party also must submit a certificate of service and two copies of the order authorizing the filing to be treated as an HSD. The motion or documents must be submitted to the clerk’s office unfolded in a sealed envelope marked “HIGHLY SENSITIVE DOCUMENT.” A copy of the applicable caption page (with confidential information redacted) must be attached to the outside of the envelope.If applicable, the filing party must serve the motion or HSD on the other parties consistent with the Federal Rules of Criminal and Civil Procedure, but not using CM/ECF.
The clerk’s office will prepare an informational docket entry in CM/ECF showing that the HSD was filed with the court and will maintain the HSD in a secure paper filing system.
4. Court Orders with Highly Sensitive Information
A court order containing HSD or a ruling on an HSD issue will be maintained in a secure paper filing system and served through U.S. mail.5. Removal of Existing HSDs or Highly Sensitive Cases from CM/ECF
Upon a party’s motion or the court’s own motion, the court may determine that a document or a case is an HSD and order its removal from CM/ECF. A party’s motion must comply with Local Rule 1.11(c)(2) – (7), state why the document is an HSD, and state why removal from CM/ECF is necessary.6. Public Right of Access
There is a strong presumption favoring public access to court filings. Like other sealed filings, an HSD designation should be used only when necessary to protect highly classified or highly confidential information. |  |
| Timothy J. Corrigan Chief United States District Judge |
