IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
IN RE: )
PROCEDURES FOR REQUESTING, ) GENERAL ORDER
FILING, AND MANAGEMENT OF ) 24-mc-1000-JB
HIGHLY SENSITIVE DOCUMENTS )
)
WHEREAS federal courts are updating their security procedures to uniformly protect
highly sensitive documents (HSDs), a narrow subset of sealed documents that must, for their
protection, be stored outside the court’s electronic systems;
THE COURT FINDS that good cause exists to permit nonelectronic filing under Civil
Rule 5(d)(3)(A) and Criminal Rule 49(b)(3)(A), and to adopt the revised HSD guidelines, which
includes a standard definition of HSDs, a dedicated procedure for filing, serving, and
maintaining HSDs, and factors to be considered by judicial officers in determining if a document
is an HSD.
THEREFORE, IT IS HEREBY ORDERED that, effective as of the date of this Order
and until such time as the court orders otherwise, HSDs will be filed and served in paper form
(or, if digital media, on a secure electronic device, such as a flash drive), in accordance with this
Order, and will be maintained by the clerk’s office in a secure paper filing system or secure
standalone computer system that is not connected to any network.1 This Order supersedes any
and all prior court orders and inconsistent local rules concerning HSDs, including the General
Order found at doc. 1 in Miscellaneous Action 21-1000-KD and issued on January 11, 2021.
1. Documents and Materials Subject to this Order
a. Definition: A Highly Sensitive Document (HSD) is a document or other
material that contains sensitive, but unclassified, information that warrants
exceptional handling and storage procedures to prevent significant consequences
that could result if such information were obtained or disclosed in an unauthorized
manner. Although frequently related to law enforcement materials, especially
sensitive information in a civil case could also qualify for HSD treatment.
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This guidance does not apply to classified information, which should be handled according to the
Classified Information Procedures Act (CIPA) and the Chief Justice’s Security Procedures related thereto, 18 U.S.C.
app 3 §§ 1, 9. The Chief Justice’s Security Procedures (criminal prosecutions) and the Department of Justice (DOJ)
regulation 28 C.F.R. § 17.17(c) (civil actions) govern classified information in any form in the custody of a court.
i. Examples of HSDs: Examples include ex parte sealed filings relating
to: national security investigations, cyber investigations, and especially
sensitive public corruption investigations; and documents containing a
highly exploitable trade secret, financial information, or computer
source code belonging to a private entity, the disclosure of which could
have significant national or international repercussions.
ii. Exclusions: Most materials currently filed under seal do not meet the
definition of an HSD and do not merit the heightened protections
afforded to HSDs. The form or nature of the document, by itself, does
not determine whether HSD treatment is warranted. Instead, the focus is
on the severity of the consequences for the parties or the public should
the document be accessed without authorization. Most presentence
reports, pretrial release reports, pleadings related to cooperation in
criminal cases, social security records, administrative immigration
records, applications for search warrants, interception of wire, oral, or
electronic communications under 18 U.S.C. § 2518, and applications for
pen registers, trap and trace devices would not meet the HSD definition.
b. HSDs vary in their physical form and characteristics. They may be paper,
electronic, audiovisual, microform, or other media. The term “document”
includes all recorded information, regardless of its physical form or
characteristics.
c. Any dispute as to whether a document is an HSD shall be resolved by the
presiding Judge, or when no presiding Judge is assigned, by the Chief Judge or
his/her designee.
2. Requesting HSD Designation
a. Any party seeking to file an HSD must, before such filing, seek leave of court for
such filing in the manner provided in paragraph 2(b).
i. A request for HSD designation must be accompanied by a certification
of the movant’s good-faith belief that the material meets the HSD
definition.
ii. The requesting party must articulate why HSD treatment is warranted,
including, as appropriate: the contents of the document; the nature of
the investigation or litigation; and the potential consequences to the
parties, the public, or national interests, in the event the information
contained in the document is accessed or disseminated without
authorization.
iii. The requesting party must include a proposed order that provides the
information stated in paragraph 3 below.
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iv. The requesting party shall serve the proposed HSD on the other parties
as follows:
Civil cases - by any manner specified in Civil Rule 5(b)(2), except
for service by electronic means; or
Criminal cases - by any manner specified in Criminal Rule 49(a),
except for service by electronic means.
b. The request and the proposed HSD material shall be submitted to the clerk’s
office, in the form of either two paper copies or an electronic copy on a secure
electronic device (as described below in Paragraph 6 below), of each of the
following items: the proposed HSD, the certificate of service, and, if applicable, a
copy of the Order designating the document as an HSD. All paper documents
must be submitted in a sealed envelope marked “HIGHLY SENSITIVE
DOCUMENT.” The outside of the envelope shall be affixed with a copy of the
HSD’s caption page (with confidential information redacted).
3. Order Granting HSD Designation
An order granting a motion seeking HSD designation, or directing the filing of a
document as an HSD on the court’s own motion, must:
a. State the identity of the persons who are to have access to the documents without
further order of court; and
b. Set forth instructions for the duration of HSD treatment. HSDs are stored
temporarily or permanently offline as the situation requires. When designating a
document as an HSD, courts should indicate when the designation will
automatically lapse or when the designation should be revisited by the judicial
officer. HSDs should be migrated as sealed documents to the court’s electronic
docketing system and unsealed, as appropriate, as soon as the situation allows.
4. Filing An HSD
a. A copy of the order granting HSD designation must be included with any
document filed as an HSD.
b. The clerk will maintain the HSD in a secure paper filing system or a secure
standalone computer system that is not connected to any network. Any copies
served on the parties will be done via mail.
c. The clerk’s office will make an informational docket entry in the court’s
electronic filing system indicating that the HSD was filed with the court. The
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docket entry shall not include personal or other identifying details related to or
contained with the HSD. For example:
5/25/23 [no link] SYSTEM ENTRY-Docket Entry 92
Restricted until further notice (Entered 5/25/23).
d. An opinion or order entered by the court related to an HSD may itself constitute
an HSD if it reveals sensitive information in the HSD. If the court determines that
a court order qualifies as an HSD, the clerk’s office will file and maintain the
order as an HSD and will serve paper copies of any filing issued by the court via
mail.
e. An HSD in the lower court’s record will ordinarily be also regarded by an
appellate court as an HSD.
5. Safeguarding Internal Communication
Care should also be taken in internal court communications regarding HSDs, including
notes and pre-decisional materials, not to include the protected substance of HSDs in any
communication using the internet or a computer connected to a network.
6. Secure Electronic Device
A secure device includes any device approved by this Court, including a USB flash drive
commonly referred to as a thumb drive.
7. Questions about HSD Filing Procedures
Any questions about how an HSD should be filed with the court pursuant to this General
Order should be directed to the Clerk of Court or the Chief Deputy.
IT IS SO ORDERED, this _____ day of August, 2024.
__________________________________________
CHIEF UNITED STATES DISTRICT JUDGE
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