Filing Classified or Highly Sensitive Documents in Federal Courts

If your criminal or civil federal case involves classified or certain other sensitive information, then check your federal Courts website for General Orders, of Standing Orders, concerning how to classify and file highly sensitive documents (HSDs). For example, I just received notice of an Amended General Order, concerning HSDs, from the United States Court of Federal Claims, signed March 9, 2021, and have been receiving such notices from other Federal Courts since February 2021. In response to reports of widespread cybersecurity breaches of government and private computer systems, directives were sent all federal Courts from the Executive Committee of the Judicial Conference of the United States. The federal courts were directed to implement new security procedures to protect documents (“HSDs”) that, if obtained without authorization and improperly released, could cause harm to the United States, the Federal Judiciary, litigants and others. These Court Orders impact what you can, and cannot file on-line.

The Courts’ Orders define what are HSD documents and what are not, and the process, to classify documents HSD, and to handle HSDs. The Orders apply to both Criminal and Civil cases. 

HSD documents tend to be a limited category, however.  Examples of HSDs are documents containing classified information or information which, if disclosed, could reasonably be expected to harm national security, or cause grave damage to a person, entity, institution, or interest the United States.  Your federal Judge usually will make that determination upon motion, or on the Judge’s own motion. In deciding whether your information is HSD, and how to protect it, check your local court web site for the HSD definitions and processes used by your federal Court because the Courts’ Orders and processes, may differ.

Be mindful that, even if a document is not an HSD, federal Courts’ procedures to protect medical, minors, and other privacies remain in place, and still require extra care by you.   Most sealed filings, for example, are not HSDs, but still require protections. 

If your document is an HSD, then even during these pandemic, automated times, you may have to file your HSDs the old-fashioned way, with a protected stand-alone drive (not by email or on-line filing) or (gasp!) on paper, in an envelope!

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