This afternoon the Federal Circuit announced that it has adopted new procedures for the handling of what it is calling “highly sensitive documents.” The court indicated it is doing so given “recent disclosures of widespread breaches of both private sector and government computer systems.” Notably, the court indicated it will treat these documents “outside of the court’s electronic case filing system.” Moreover, it will adjust not only how it will handle documents filed in the future, but also how it will handle highly sensitive documents that already have been electronically filed both in pending and even closed cases. Here is the text of today’s announcement, which includes links to the related order and modified Electronic Filing Procedures, along with a summary.
First, here is the text of today’s announcement:
In response to recent disclosures of widespread breaches of both private sector and government computer systems, the United States Court of Appeals for the Federal Circuit has adopted new procedures for the handling of highly sensitive documents outside of the court’s electronic case filing system (CM/ECF) as well as for documents already electronically filed in CM/ECF. The administrative order and new procedures go into effect immediately and are available on the court’s website.
The Clerk’s Office has also finalized updates to the court’s Electronic Filing Procedures, which are available on the court’s website. Please direct any questions to the Clerk’s Office at 202-275-8000.
The new procedures define “highly sensitive documents” as documents “containing material that, due to its highly sensitive nature, requires a level of security greater than that provided through filing as confidential or under seal in CM/ECF.” Significantly, “[d]ocuments not filed as highly sensitive documents in the originating proceedings generally are not considered highly sensitive documents on appeal.”
The procedures vary depending upon whether a document contains “material already receiving highly sensitive document protection in the originating proceeding.” If the material has received such protection already, the Federal Circuit requires a “Certificate for Highly Sensitive Document Protection” where the highly sensitive document is filed and served in paper form. If the material has not received such protection already, the Federal Circuit is requiring a “Motion for Highly Sensitive Document Protection.” Again, the document considered to be highly sensitive is filed and served in paper form.
Notably, the Federal Circuit is also allowing previously-filed highly sensitive documents to be removed from the government’s electronic filing database. Parties who have pending cases and who “seek to designate already sealed or confidential filings as highly sensitive documents may file a ‘Motion to Remove Document from CM/ECF.’” In addition, parties “with closed, mandated cases as of the date of this Order seeking to remove already sealed or confidential filings as highly sensitive documents may file a nonconfidential ‘Motion to Remove Document from CM/ECF.’”
The Federal Circuit has indicated that it will store “in a secure paper filing system” highly sensitive documents filed by parties. As for court-created documents that contain highly sensitive material, “the document will be afforded the same protection afforded to highly sensitive documents filed by the parties, including filing in a secure paper filing system or a secure standalone computer system and service on the parties by mail.” Significantly, this discussion of “afford[ing court-created highly sensitive documents] the same protection afforded to highly sensitive documents filed by the parties” coupled with discussion of use of a “secure standalone computer system” raises the question whether documents filed by parties may also be subject to storage in a standalone computer system.
Another notable point is that these new procedures go into effect immediately.
Given today’s announcement and these new procedures, it would seem litigators at the Federal Circuit–past and present–need to contact clients to ensure these clients’ highly sensitive documents receive the protection they are due.