IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
FILING OF HIGHLY DISTRICT COURT GENERAL ORDER
SENSITIVE DOCUMENTS 2024-1
This order supersedes General Order 2022-5.
WHEREAS, federal courts are updating their security procedures to uniformly protect
highly sensitive documents, sometimes referred to as “HSDs”, a narrow subset of sealed
documents that must, for their protection, be stored outside the Court’s electronic systems;
WHEREAS, good cause exists to permit nonelectronic filing under Fed. R. Civ. P.
5(d)(3)(A) and Fed. R. Crim P. 49(b)(3)(A) and to adopt HSD Guidance, 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; it
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 an encrypted external hard drive attached to
an air-gapped system (i.e. entirely disconnected from networks and systems, including a court
unit’s local area network and the judiciary’s network). This Order supersedes all prior court
orders and inconsistent local rules concerning HSDs.
1. Documents and Materials Subject to this Order:
a. Definition: A Highly Sensitive Document (“HSD”), as the term is used below, 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.
i. Examples of HSDs: 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.
2. Filing of Motions to Treat a Document as an HSD
a. If a case has not been opened, a party intending to file an HSD should proceed as follows:
i. Counsel for the filing party shall prepare a motion to treat a document as an HSD and
a proposed order in the same manner as a motion to restrict under D.C.COLO.LCrR
47.1 (c ) and D.C.COLO.LCivR 7.2(c). The motion should explain why the proposed
document constitutes an HSD under the criteria set out in paragraph 1 above or why it
should otherwise be subject to filing protection as an HSD.
ii. Counsel for the filing party shall deliver to the criminal duty magistrate judge two
paper copies of the motion, proposed order, and HSD. These documents shall be
submitted in a sealed envelope marked “HIGHLY SENSITIVE DOCUMENT” along
with counsel for the filing party’s name, telephone number, and e-mail address.
iii. The presiding judge shall issue an order on the motion. If granted, counsel for the
filing party shall then deliver the paperwork to the Clerk’s Office which shall then
assign a case number. The Clerk’s Office shall maintain the HSD in a secure paper
filing system, or an encrypted external hard drive attached to an air-gapped system
(i.e. entirely disconnected from networks and systems, including a court unit’s local
area network and the judiciary’s network).
b. If a case has been opened, a party intending to file an HSD should proceed as follows:
i. Represented parties:
1) A represented party shall file electronically a motion to treat a document as an
HSD and a proposed order in the same fashion as a motion to restrict under
D.C.COLO.LCrR 47.1 (c ) and D.C.COLO.LCivR 7.2(c), except that a copy of
the proposed HSD shall not be filed electronically. The motion shall explain why
the proposed document constitutes an HSD under the criteria set out in paragraph
1 above or why it should otherwise be subject to the filing protection for HSDs.
If the motion cannot be filed without revealing the highly sensitivity information
contained within the HSD, then the motion should be filed in paper along with the
HSD in accordance with paragraph a.ii above.
2) As soon as practicable after the motion is filed, the filing party shall deliver to the
Clerk’s Office two paper copies of the HSD along with a certificate of service.
These documents shall be submitted in a sealed envelope marked “HIGHLY
SENSITIVE DOCUMENT” and marked with the applicable case number,
attorney’s name, telephone number, and e-mail address.
3) The filing party shall serve the proposed HSD on the other parties as follows:
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a. Criminal cases – by any manner specified in Fed. R. Crim. P. 49(a)(3)(B)
or (a)(4); or
b. Civil cases – by any manner specified in Fed. R. Civ. P. 5(b)(2), other than
service via the Court’s electronic filing system.
4) The presiding judge will issue an order on the motion and, if granted, an
informational entry will be made on the docket indicating that the HSD has been
filed with the Court. The Clerk’s Office will maintain the HSD in a secure paper
filing system, or an encrypted external hard drive attached to an air-gapped
system (i.e. entirely disconnected from networks and systems, including a court
unit’s local area network and the judiciary’s network).
ii. Pro se parties:
1) Pro se parties authorized to file electronically shall follow the procedures for
represented parties outlined above.
2) Pro se parties not authorized to file electronically shall submit to the Clerk’s
Office two paper copies of a motion to treat a document as an HSD, the HSD
sought to be filed, and a certificate of service. These documents shall be
submitted in a sealed envelope marked “HIGHLY SENSITIVE DOCUMENT”
and marked with the applicable case number, party’s name, and telephone
number.
3) The filing party shall serve the proposed HSD on the other parties as specified in
paragraph b.i.3 above.
4) The presiding judge will issue an order on the motion and, if granted, an
informational entry will be made on the docket indicating that the HSD has been
filed with the Court. The Clerk’s Office will maintain the HSD in a secure paper
filing system, or an encrypted external hard drive attached to an air-gapped
system (i.e. entirely disconnected from networks and systems, including a court
unit’s local area network and the judiciary’s network).
3. Judicial Determination:
a. The presiding judge (or, when no presiding judge is available, the chief judge) should
determine whether a document meets the HSD definition by evaluating whether a party
has properly articulated sufficient reasons for such treatment, including the consequences,
should the document be exposed. Most applications for HSD treatment are likely to be ex
parte, but the presiding judge should resolve any disputes about whether a document
qualifies as an HSD as defined above. The fact that a document may contain sensitive,
proprietary, confidential, personally identifying, or financial information about an entity
or an individual that may justify sealing of the document or case does not alone qualify
the document as an HSD.
b. In making a determination, the presiding judge should consider properly articulated
concerns that the unauthorized access or disclosure of the information contained in the
document at issue would result in significant adverse consequences that outweigh the
administrative burden of handling the document as an HSD. As a general matter, courts
should give careful and appropriate consideration to the concerns articulated by the
executive branch in matters implicating the authority of the executive branch to oversee
the military and safeguard national security. If relevant, the court has the discretion to
consider the impact of the heightened protection provided by offline placement to any
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other party’s right of access.
c. 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. Orders 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.
If the presiding judge determines that a court order contains highly sensitive information, the
Clerk’s Office will file and maintain the order to that effect in a secure paper filing system or an
encrypted external hard drive attached to an air-gapped system (i.e. entirely disconnected from
networks and systems, including a court unit’s local area network and the judiciary’s network).
Paper copies of the order will be served on the parties.
5. Removal of Existing HSDs or Highly Sensitive Cases from the Court’s Electronic Filing
System
a. Upon motion of a party or upon its own motion, the presiding judge may determine that a
document or case that has been filed electronically is highly sensitive and direct that the
HSD or case be removed from the Court’s electronic filing system and maintained by the
Clerk’s Office in an encrypted external hard drive attached to an air-gapped system (i.e.
entirely disconnected from networks and systems, including a court unit’s local area
network and the judiciary’s network).
b. A party’s motion to remove an HSD or highly sensitive case from the Court’s electronic
filing system shall explain why such document or case is highly sensitive under the
criteria set out in paragraph 1 above or why it should otherwise be subject to the filing
protection for HSDs.
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6. 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’s Office at 303-844-3433.
Dated at Denver, Colorado this 4th day of June, 2024.
BY THE COURT
PHILIP A. BRIMMER
Chief United States District Judge
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