1. Eligibility
a. Definition: Highly Sensitive Material (HSM) is a document or other material found
by the court to contain sensitive, but unclassified, information that warrants storage
in a secure standalone computer system that is not connected to any network, or in
another similarly secure storage facility. A court may find that such storage is
warranted when there is a serious risk that severe adverse consequences to the parties,
the public, or national interests could result if the information is obtained by or
disclosed to people or entities not authorized to possess it. HSM varies in its physical
form and characteristics. It may be paper, electronic, audiovisual, microform, or other
media. The term “material” includes all recorded information, regardless of its
physical form or characteristics.
i. Examples of HSM include:
(a) materials to be filed ex parte in a criminal or civil case relating to:
national security investigations; cyber investigations; and especially
sensitive public corruption investigations; and
(b) materials to be filed in a criminal or civil case containing highly
sensitive information, belonging to a private person, entity, or
government, the disclosure of which could result in adverse
consequences on a national or international scale.
ii. Examples of non-HSM:
(a) Most materials filed under seal do not meet the definition of HSM and
do not merit the heightened protections afforded to HSM. The form or
nature of the material, by itself, does not determine whether HSM
treatment is warranted. Instead, the focus is on the severity of the
anticipated adverse consequences for the parties the public, or national
interests if the document were to be accessed without authorization.
For example, trade secret information (with rare exceptions),
presentence reports, pretrial release reports, filings 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 do not meet the
definition of HSM.
(b) This local rule 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.
2. Requesting HSM Designation
a. Any party requesting to file material as HSM must, before such filing, seek leave of
court by submitting the following documents, in the manner provided in paragraph
2(b).
i. A certification of the movant’s good faith belief that the material meets the
definition of HSM.
ii. A memorandum explaining why HSM treatment is warranted, including, as
appropriate: the contents of the material; the nature of the investigation or
litigation; and the potential consequences to the parties, the public, or national
interests if the information contained in the document is accessed without
authorization.
iii. A proposed order that provides the information stated in paragraph 3 below.
b. The request to file and the proposed HSM shall be submitted to the Clerk’s Office in
a sealed envelope marked “HIGHLY SENSITIVE MATERIAL.” The outside of the
envelope shall be affixed with a copy of the case caption (with confidential
information redacted).
c. Unless the submission is made ex parte, the requesting party shall serve the motion
and the proposed HSM on the other parties as follows:
i. Civil cases - by any manner specified in Civil Rule 5(b)(2), except for service
via the court’s electronic filing system; or
ii. Criminal cases - by any manner specified in Criminal Rule 49(a)(3)(B) or
(a)(4).
3. Order Granting HSM Designation
An order granting a motion seeking HSM designation, or directing the filing of a document
as HSM on the court’s own motion, must:
a. State the identity of the persons who are to have access to the HSM without further
order of court; and
b. Set forth recommendations for the duration of HSM treatment. HSM is stored
temporarily or permanently offline as the situation requires. When designating a
document as HSM, the court will indicate when the designation will automatically
lapse or when the designation should be revisited by the judicial officer. HSM will be
migrated as sealed documents to the court’s electronic docketing system and unsealed,
as appropriate, as soon as the situation allows, but only after entry of an order by the
court authorizing this.
4. Filing HSM
a. A copy of the order granting HSM designation must be included with any material
filed as HSM.
b. The Clerk will maintain HSM in a secure standalone computer system that is not
connected to any network.
c. The Clerk’s office will make an informational docket entry in the court’s electronic
filing system indicating that the HSM was filed with the court. The docket entry shall
not include personal or other identifying details related to or contained with the HSM.
d. An opinion or order entered by the court related to HSM may itself constitute HSM
if it reveals sensitive information in the HSM. If the court determines that a court
order qualifies as HSM, the Clerk’s Office will file and maintain the order as HSM
and will serve paper copies of any filing issued by the court.
e. HSM in the lower court’s record will ordinarily be also regarded by an appellate court
as HSM.
5. Safeguarding Internal Communication
Litigants must safeguard internal court communications regarding HSM, including notes and
predecisional materials, and are not to include the protected substance of HSM in any
communication using the internet, portable storage drives, or a computer connected to a
network.
May 22, 2025
