UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: PROCEDURES FOR
FILING, SERVICE, AND
MANAGEMENT OF
HIGHLY SENSITIVE DOCUMENTS
HSD
GENERAL ORDER NO. 21-2
WHEREAS, in response to recent disclosures of wide-spread breaches of both
private sector and government computer systems, federal courts are immediately
adding new security procedures to protect highly sensitive documents filed with the
courts;
THE COURT FINDS that, pursuant to Rule 5(d)(3)(A) of the FEDERAL
RULES OF CIVIL PROCEDURE and Rule 49(b)(3)(A), of the FEDERAL RULES OF
CRIMINAL PROCEDURE, good cause exists to require all parties to file certain highly
sensitive documents outside the court’s electronic filing system until further order
of the court.
THEREFORE, IT IS HEREBY ORDERED that, effective as of the date of
this Order and until such time as the court orders otherwise, the filing of certain
highly sensitive documents shall be subject to the procedures and requirements set
forth below. This General Order supersedes any and all inconsistent provisions in
existing local rules or other general orders of this court.
1. Documents Subject to this Order
Highly Sensitive Documents (HSDs) contain information of a particular
highly sensitive nature. Highly sensitive information (HSI) includes, but is
not limited to, sensitive or confidential information that is likely to be of
interest to the intelligence service of a hostile foreign government and whose
use or disclosure by a hostile foreign government would likely cause
significant harm. Very few documents filed under seal in federal court
contain HSI.
a. The court anticipates that sealed documents containing HSI may
often be filed in cases involving the following.
1) national security;
2) foreign sovereign interests;
3) criminal activity related to cybersecurity or terrorism;
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4) ongoing law-enforcement investigations or intelligence-gathering
operations;
5) indictments or criminal complaints filed under seal, where the
United States Attorney moves for such designation, for good
cause shown;
6) investigation of public officials;
7) information that would put at risk the safety of public officials or
the integrity of governmental operations;
8) extremely sensitive commercial information likely to be of
interest to foreign powers; or
9) the reputational interests of the United States.
b. Applications for electronic surveillance under Title III of the
Omnibus Criminal Control and Safe Streets Act of 1998, including
matters arising under 18 U.S.C. § 2518, are presumptively HSD.
c. Documents presumed to be HSDs under paragraph 1 above do not
require a motion before filing and should be filed as indicated in
paragraph 3 below.
2. Documents Not Generally Considered to be HSDs.
The Court anticipates that the following types of sealed documents are
unlikely to contain HSI:
a. Presentence reports, pretrial release reports, probation violation
reports, and documents related to such reports;
b. Pleadings related to cooperation in most criminal cases;
c. Social security records;
d. Administrative immigration records;
e. Qui tam complaints; and
f. Most sealed filings in most civil cases.
If the document is NOT presumptively an HSD under this HSD General
Order, a motion to file it as an HSD must be made under paragraph 4 below.
Any dispute as to whether a document is an HSD shall be resolved by the
presiding judge or, when no presiding judge is assigned, the chief judge.
3. Filing of Authorized HSDs
a. A party filing a presumptive HSD or a document which has been
designated by court order to be HSD shall submit to the clerk’s office
two physical paper copies of the HSD, the certificate of service, if
applicable, and a copy of the court order authorizing the treatment of
that document as highly sensitive, if applicable.
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b. Of the two physical paper copies of the HSD document that are being
submitted, one is for the court record and one is for the presiding
judge. No separate courtesy copy of the document is needed unless the
presiding judge requests it.
c. Requests by a filing party for a file-stamped copy of an HSD while this
HSD General Order is in effect will not be granted unless the
requesting party provides the clerk of court with a written request, an
extra copy, and a self-addressed stamped envelope as part of the filing.
For documents filed in person, the filing party must present the
requested extra copy to be file-stamped at the time of filing.
d. When filed in person, the required documents, unfolded, 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 any confidential or
sensitive information redacted).
e. HSDs shall be submitted to the clerk’s office in paper form in person,
by U.S. Mail, or by a commercial delivery service (i.e., Federal Express
or UPS). When HSDs and related motions are submitted for filing by
U.S. Mail or by a commercial delivery service, the outer transmission
envelope shall contain NO indication that the filing relates to an HSD.
The outer envelope shall also be opaque so that the inner envelope is
not visible through the outer envelope.
f. The filing party shall serve the HSD on the other parties (if applicable)
as follows:
1) Civil cases - by any manner specified in Rule 5(b)(2) of the
FEDERAL RULES OF CIVIL PROCEDURE except for service via the
court’s electronic filing system; or
2) Criminal cases - by any manner specified in Rule 49(a)(3)(B) or
(a)(4) of the FEDERAL RULES OF CRIMINAL PROCEDURE.
g. The clerk’s office will make a non-identifying docket entry in the
court’s electronic filing system indicating that a sealed document was
filed with the court and will maintain the HSD in a secure paper filing
system or stand-alone, air-gapped computer system.
4. Filing of Motions to Treat a Document as an HSD
a. Represented parties
1) A represented party shall submit to the clerk’s office a motion to
treat a document as an HSD and a proposed order in paper form
following the procedures described above in paragraph 3. The
motion shall explain why the proposed document constitutes an
HSD under the criteria set out in paragraphs 1 and 2 above or
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why it should otherwise be subject to the heightened protection
for HSDs.
2) The filing party must present two physical paper copies of all filed
documents. These documents should be packaged as specified
above in sections 3a through 3e of paragraph 3.
3) The filing party shall serve the proposed HSD on the other parties
as specified above in section 3f of paragraph 3 when applicable.
4) The court will issue an order on the motion. The clerk’s office will
make non-identifying entries on the court’s electronic docket. The
clerk’s office will maintain orders granting a motion to treat a
document as an HSD, the HSD, and documents related to the
HSD in a secure paper filing system or in a stand-alone, air-
gapped computer system.
5) The party filing a motion to treat a document as an HSD shall
clearly indicate in the motion and in the proposed order who
should be served with a copy of the order, including the filing
party if the filing party is to be served with a copy of the HSD,
HSD-related order, or other HSD related documents.
b. Pro se parties
1) Pro se parties shall submit to the clerk’s office for filing a motion
to treat a document as an HSD. The HSD sought to be filed and
the certificate of service, if applicable, must also be submitted.
The filing party must present two physical paper copies of all filed
documents packaged as specified in sections 3a through 3e of
paragraph 3.
2) The filing party shall serve the proposed HSD on the other parties
as specified in section 3f of paragraph 3 when applicable.
3) The court will issue an order on the motion. The clerk’s office will
make a non-identifying entry on the court’s electronic docket. The
clerk’s office will maintain orders granting a motion to treat a
document as an HSD, the HSD, and documents related to the
HSD in a secure paper filing system or stand-alone, air-gapped
computer system.
4) The party filing a motion to treat a document as an HSD shall
clearly indicate in the motion and in the proposed order who
should be served with a copy of the order, including the filing
party if the filing party is to be served with a copy of the HSD,
HSD-related order, or other HSD related documents.
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5. Service of Highly Sensitive Court Orders
a. If the court determines that a document contains highly sensitive
information, the clerk’s office will serve paper copies of the order on
the parties via U.S. Mail.
b. Paper copies of HSD orders will only be served by the clerk’s office
on those the court clearly directs be served in the HSD-related
order.
6. 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 court may
determine that a document, case, or any portion of it, that has been
filed electronically is highly sensitive and may direct that the HSD
or case be removed from the court’s electronic filing system and
maintained by the clerk’s office in the secure paper filing system, or
a stand-alone, air-gapped computer system, described above.
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 paragraphs 1
and 2 above or why it should otherwise be subject to the heightened
protection for HSDs.
7. Objections to Filing Under These Procedures
a. Disputes as to whether all or part of a document is an HSD and
subject to this General Order may be raised by motion or under the
procedures of the presiding judge and will be resolved by the
presiding judge or, when no presiding judge is assigned, the chief
judge or designee.
b. Any party may object to a document designated as an HSD and file
a motion to have it filed in CM/ECF.
c. The challenged document will remain subject to these HSD
procedures pending the court ruling on the motion. The motion
must explain why the document should not be subject to protection
as an HSD.
d. If the court determines that a document should not be treated as an
HSD, it will be filed and docketed into CM/ECF.
8. Filing Sealed Documents That are Not Presumptive HSDs or that
Parties are not seeking to be Designated HSDs
a. If this Order does not presumptively designate a document as HSD
and the Filing Party is not moving for an order designating the
document as an HSD, the court’s regular procedures for filing
public and sealed documents shall continue to apply.
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b. If some, but not all, of a document consists of or includes highly
sensitive information, a redacted version must be electronically
filed through CM/ECF.
9. 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, not the judge’s
chambers, by contacting the following persons: Case Administrator
Supervisor Laura Guillot at (504) 589-7702, Criminal Magistrate Duty Unit
Supervisor Dean Oser at (504) 589-7686, or Intake Supervisor, Stephanie
Kall at (504) 589-7717.
NEW ORLEANS, LOUISIANA, this 19th
____ day of January, 2021.
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____________________________________
NANNETTE JOLIVETTE BROWN
CHIEF U.S. DISTRICT JUDGE
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