(a) Consistent with guidance received from the Administrative Office of the
United States Courts, good cause exists (1) to permit nonelectronic filing
under Federal Rule of Civil Procedure 5(d)(3)(A) and Federal Rule of
Criminal Procedure 49(b)(3)(A) and (2) to adopt the HSD Guidance, see
Appendix F, 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.
(b) Until such time as the Court and these Local Rules hold 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 Local Rule
and the HSD Guidance 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
(1) Documents and Materials Subject to this Local Rule
(A) Definition: An 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.
1 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 regulation 28 C.F.R. § 17.17(c) (civil actions) govern
classified information in any form in the custody of a court.
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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.
(2) Requesting HSD Designation
(A) Any party seeking to designate materials as HSD must file a
motion in person at the Clerk’s Office in the manner provided
in paragraph 2(B). Parties shall not file any materials or
motions seeking designation of materials as HSD
electronically. The motion shall include the following:
i. A certification of the movant’s good-faith belief that the
material meets the HSD definition;
ii. An explanation articulating why HSD treatment is
warranted, including, as appropriate, the contents of the
document, the nature of the investigation or litigation, and
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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, and
iii. A proposed order that provides the information stated in
paragraph 3 below.
iv. The requesting party shall serve the proposed HSD on the
other parties by non-electronic means (paper or secure
electronic device) directly upon the party or, when the
Civil or Criminal rules permit or the Court orders, upon
the attorney representing the party.
(B) The motion and proposed HSD material shall be submitted to
the Clerk’s Office 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
(A) 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:
i. State the identity of the persons who are to have access to
the documents; and
ii. 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, this Court should indicate when the designation will
automatically lapse or when the designation will be
revisited by the judicial officer. HSDs should be migrated
as sealed documents into 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.
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(B) The Clerk of Court will maintain the HSD in a secure paper
filing system or 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 HSD was
filed with the Court. The 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 an 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 United States 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.
