UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
IN RE: PROCEDURES FOR REQUESTING, GENERAL ORDER
FILING, AND MANAGEMENT OF NO. 24-04
HIGHLY SENSITIVE DOCUMENTS
***
In response to the disclosure of wide-spread breaches of both private sector and
government computer systems, the Court entered General Order No. 21-02, setting forth a process
for filing, serving, and maintaining highly sensitive documents (HSDs), a narrow subset of sealed
documents that must, for their protection, be stored outside the court’s electronic systems. In light
of recent measures enacted by the Judicial Conference’s Committee on Court Administration and
Case Management revising the definition of HSDs and setting forth revised guidance regarding
the handling thereof,
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 Guidance,
Attachment A, 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 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: 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 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
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 (DOJ) regulation
28 C.F.R. § 17.17(c) (civil actions) govern classified information in any form in the custody of a court.
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 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.
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 via the court’s electronic filing system; or Criminal cases - by any
manner specified in Criminal Rule 49(a)(3)(B) or (a)(4).
b. The request and the 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
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.
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 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.
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 about HSD Filing Procedures
Any questions about how an HSD should be filed with the court pursuant to this Orders
should be directed to the clerk’s office at (502) 625-3508.
This Order shall supersede General Order 21-02.
DATED: April 22, 2024
ENTERED
J J. JR., CLERK
4/22/2024
U.S. DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
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).
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.
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).
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.
