In response to recent questions about a potential breach of the CM/ECF system, the Northern District issued a General Order setting out a definition of Highly Sensitive Documents (HSD). The General Order states that “[m]ost sealed filings in civil cases do not constitute HSDs” and specifically excludes “[c]ommercial [and] proprietary information” from HSD classification. Documents will not be classified as HSD solely because they include personal identifying or financial information. In addition to various criminal filings, the following categories of material can be classified as HSD:

  • “Materials whose disclosure could jeopardize national security or place human life or safety at risk;” and
  • “Materials whose disclosure to a foreign power or its agents (as defined by 50 U.S.C. § 1801) would be unlawful under U.S. law or would substantially assist a foreign power or its agents in the development of that foreign power’s competing commercial products or products with military applications.”

HSD are required to be filed with the Clerk in paper form. In order to have a document classified as HSD, a party must seek leave to file as HSD, including a Rule 11 certification that the document qualifies as an HSD. The order granting the motion must identify the persons allowed access to the documents and instructions for handling of the documents after the case concludes.

Two copies of any HSDs are to be filed in separate, sealed envelopes “conspicuously labelled as HSD Sealed Material,” the case caption, and identifying the attorney’s or party’s name and address, including email. A copy of the order authorizing the HSD filing must also be included with any document presented for filing as an HSD. 3.

Parties may seek to reclassify documents already filed as confidential as HSD by motion pursuant to Local Rules 5.8 (filing motions under seal) and 26.2 (sealed documents).