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Cybersecurity Safeguards Implemented by Federal Judiciary for Filing Highly Sensitive Court Documents

The U.S. Federal Judiciary announced new safeguards and procedures to protect sensitive court records in light of a recent apparent cybersecurity breach.

Last month, the Department of Homeland Security issued an emergency directive regarding “a known compromise involving SolarWinds Orion products that are currently being exploited by malicious actors.”  The judiciary was notified of this issue by the Administrative Office of the U.S. Courts, and suspended use of this IT network tool at the national and local levels.  An apparent compromise of the confidentiality of the Federal Judiciary’s CM/ECF system is now being investigated in connection with the breach.

Under the new procedures announced January 6, 2021, all highly sensitive court documents (“HSDs”) must be filed in paper format or via a secure electronic drive (e.g., a thumb drive) to be stored in a secure, stand-alone computer system by the court.  Highly sensitive court documents are not to be filed via CM/ECF.

Not all documents a party may file seek to file under seal are considered HSDs.  Courts are anticipated to issue standing orders regarding these new procedures, including to address the specific types of documents the courts will or will not consider to be highly sensitive.  In the January 6 notice, it was noted that Social Security records and sealed filings in many civil cases are unlikely to be considered HSDs.

Some federal courts, including the District of New Jersey, the Eastern District of Pennsylvania, and the Eastern District of Missouri, have issued interim notices, acknowledging the apparent compromise and stating that they will post new procedures “as quickly as possible for the limited types of documents that meet the definition of HSDs.”  The webpages for the District of New Jersey and Eastern District of Pennsylvania provide that “[m]ost HSDs are filed under seal as preliminary documents in criminal cases.”

Other courts have issued notices with a bit more substance.  For example, the District of Minnesota issued a notice stating that “[e]ffective immediately,” HSDs are to be filed in hard copy only submitted via drop boxes located at any of the four courthouses in the state.  Neither the notice nor the court’s webpage clarify what are considered to be HSDs at this time.

The January 6 notice states that federal courts are to issue standing orders on this issue in the coming days.  These orders will likely provide the best guidance for ascertaining what materials constitute HSDs, and how to best protect sensitive information at this time.  Reference should be made to any such orders before filing documents of a sensitive nature at this time.  And, when in doubt, a call to the court’s clerk may help ensure sensitive client information remains protected.

© 2021 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume XI, Number 11



About this Author

Kaitlyn E. Stone, litigation attorney, Drinker Biddle

Kaitlyn E. Stone represents major pharmaceutical companies in products liability cases involving prescription medications in individual cases, class actions, multidistrict litigation, and coordinated state proceedings. Kate also demonstrates an unwavering commitment to serving her community by maintaining an active pro bono practice focused primarily on securing the expungement of clients’ records so as to enable clients to obtain improved employment and a higher quality of life for themselves and their families.

Prior to joining Drinker Biddle,...

(973) 549-7014
Michael Zogby, Drinker Biddle Law Firm, Florham Park, New York, Intellectual Property Litigation Attorney

Michael C. Zogby has an extensive trial and litigation practice encompassing products liability, medical device, class action, commercial, intellectual property, mass tort, and multidistrict proceedings. He has served as trial counsel, national liaison counsel, and discovery counsel in a variety of litigations throughout the United States.

Mike serves as a faculty member at the National Trial Advocacy College at the University of Virginia School of Law, an intensive hands-on- trial advocacy training program for practicing...