Highly Sensitive Documents May Not Be Filed on CM/ECF


Highly Sensitive Documents May Not Be Filed on CM/ECF
January 11, 2021

Recent disclosures of widespread cybersecurity breaches of government computer systems have prompted the federal courts to add new security procedures to protect highly sensitive documents filed with the courts. Effective January 11, 2021, highly sensitive documents ("HSDs") may no longer be filed under seal in the court's Case Management/Electronic Case Files system ("CM/ECF").
Not all sealed documents on CM/ECF qualify as HSDs, which are a narrow subset of currently sealed court filings. HSDs will be accepted for filing by one of two methods: 1) in the form of an encrypted electronic portable storage disc or drive, or 2) in paper format. HSDs will not be uploaded to CM/ECF, though a record of filing will be placed on the CM/ECF docket. This new practice does not alter current policy regarding public access to court records, since sealed records are confidential and generally not available to the public.

The court will post new procedures for the filing, service, and management of HSDs as quickly as possible; in the meantime, the parties should determine prior to filing whether a document is "highly sensitive," e.g., contains information involving national security, foreign sovereign interests, or cybersecurity; government enforcement information; closely held trade secrets; or the reputational interests of the United States. Conversely, the vast majority of sealed filings - including documents containing proprietary, source-selection, or similar confidential information; medical records; and documents containing personal identifiers as defined in RCFC 5.2 - are not HSDs.  

To file an HSD, the party must file a motion in paper format explaining why the document should be treated as such, and attach to the motion the proposed HSD, submitted either in the form of an encrypted electronic portable storage disc or drive or in paper format. Submission of the motion and attachment must otherwise comply with the Rules of the United States Court of Federal Claims. Whether a document is an HSD shall be resolved by the presiding Judge or, when no Judge is assigned, the Chief Judge.

For more information, please visit https://www.uscourts.gov/news/2021/01/06/judiciary-addresses-cybersecurity-breach-extra-safeguards-protect-sensitive-court.