Aug 30, 2024
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE: )
PROCEDURES FOR REQUESTING, ) Administrative Order No. 286
FILING, AND MANAGEMENT OF ) (Third Amended)
HIGHLY SENSITIVE DOCUMENTS. )
THIRD AMENDED ADMINISTRATIVE ORDER
In January 2021, in response to widespread breaches of both private sector and
government computer systems as part of what was reported to be an intelligence-
gathering operation by a hostile foreign government, the Judicial Conference directed
all federal courts to immediately add new security procedures to protect sealed
documents containing highly sensitive information, referred to hereafter as “highly
sensitive documents” (HSD). Accordingly, this Court issued Administrative Order 286
on January 15, 2021, First Amended Administrative Order 286 on April 12, 2021, and
Second Amended Administrative Order 286 on May 7, 2024, outlining the procedures
adopted in this district for HSD. Except as expressly noted, this Third Amended
Administrative Order revises those procedures consistent with guidance received from
the Administrative Office of the United States Courts, thereby superseding all prior
orders and inconsistent local rules concerning HSDs.
The Court finds that 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 revised HSD Guidance, see Attachment A, which
includes a standard definition of HSDs, a dedicated procedure for filing, serving, and
Page 1 of 6
maintaining HSDs, and factors to be considered by judicial officers in determining if a
document is an HSD.
Therefore, it is ORDERED that, effective immediately 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
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 Order
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.
i. Examples of HSDs: Examples include ex parte sealed filings
relating to national security investigations, cyber investigations,
and especially sensitive public corruption investigations, and
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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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.
Page 3 of 6
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 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.”
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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;
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, 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.
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.
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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.
6. Questions: Any questions about how an HSD should be filed with the Court
pursuant to this Order should be directed to the Clerk’s Office at (618) 482-9371.
IT IS SO ORDERED.
DATED: August 30, 2024
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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Attachment A
HIGHLY SENSITIVE DOCUMENTS DEFINITION & GUIDANCE
Highly Sensitive Documents (HSDs) are a narrow subset of sealed
documents that must, for their protection, be stored offline. The added protection
for HSDs is important because, in the event of a breach of the courts’ electronic
case management system by a sophisticated actor, those documents are more
likely to be sought out and stolen, or their unauthorized access or exposure are
likely to have outsized consequences beyond that of most sealed documents, or
both.
The following definition and guidance are intended to assist courts in
identifying highly sensitive documents and managing the offline handling of
HSDs. 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(a). 1
(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
way. Although frequently related to law enforcement materials, especially
sensitive information in a civil case could also quality for HSD treatment.
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,
1
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. Such classified information may not be filed on CM/ECF or any
other court network or standalone computer system. Courts are assisted in their protection of
classified information by classified information security officers, who are detailed to the courts by
the DOJ’s Litigation Security Group, a unit independent of the attorneys representing the
government. Courts should direct questions regarding how to handle classified documents to the
DOJ’s Litigation Security Group. See also, Robert Timothy Reagan, Keeping Government
Secrets: A Pocket Guide on the State-Secrets Privilege, the Classified Information Procedures
Act and Classified Information Security Officers, (Federal Judicial Center, 2d ed. 2013).
1
Attachment A
HIGHLY SENSITIVE DOCUMENTS DEFINITION & GUIDANCE
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: Sources and Characteristics
i. HSD designation may be requested by a party in a criminal, civil,
appellate, or bankruptcy matter.
ii. 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.
iii. 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.
iv. An HSD in the lower court’s record will ordinarily be also regarded
by an appellate court as an HSD.
(c) HSD Designation:
i. A court’s standing order, general order, or equivalent directive
should include the HSD definition set forth in (a) above and outline
procedures for requesting, filing, and maintaining HSDs.
ii. The onus is on the party, including the Department of Justice and
other law enforcement agencies, to identify for the court those
documents that the party believes qualify as HSDs and the basis for
that belief. In moving for HSD treatment, the filing 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.
2
Attachment A
HIGHLY SENSITIVE DOCUMENTS DEFINITION & GUIDANCE
iii. 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 for the matter, 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 in (a) 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 this determination, the court 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 other party’s right of access.
(d) Exceptional Administrative Treatment for HSDs:
i. Filing: HSDs and requests for HSD treatment will be accepted for
filing only in paper form or via a secure electronic device (e.g., USB
stick or portable hard drive).
ii. Handling: The court must handle the HSDs by storing all
information offline. Furthermore, any pleadings or other filings
created in connection with the proceedings should not disclose the
subject matter of the HSD (including information that may identify
the place, object, or subject of an ex parte filing).
iii. Docketing: Docket entries for HSDs should not include personal or
other identifying details related to or contained within them. For
example:
8/25/22 [no link] SYSTEM ENTRY-Docket Entry 92
Restricted until further notice (Entered 8/25/22).
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Attachment A
HIGHLY SENSITIVE DOCUMENTS DEFINITION & GUIDANCE
iv. Storing: HSDs shall be stored and handled only 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).
v. Safeguarding Internal Communication: Care should also be taken in
judicial 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 network.
(e) 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.
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