IN THE UNITED STATES DISTRICT COURT

FILED

MAY O7 2024

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

INRE:

PROCEDURES FOR REQUESTING,

FILING, AND MANAGEMENT OF

HIGHLY SENSITIVE DOCUMENTS.

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)

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CLERK, U.S. DISTRICT COURT

SOUTHERN DISTRICT OF ILLINOIS

EAST ST. LOUIS OFFICE

Administrative Order No. 286

(Second Amended)

)

SECOND AMENDED ADMINISTRATIVE ORDER

In January 2021, in response to widespread breaches of both private sector and

government computer systems as part of what was reported to be an intelligencegathering operation by a hostile foreign government, the Judicial Conference directed

all federal courts to immediately add new security procedures to protect sealed

documents containing highly sensitive information, referred to hereafter as "highly

sensitive documents" (HSD). Accordingly, this Court issued Administrative Order 286

on January 15, 2021, and First Amended Administrative Order 286 on April 12, 2021,

outlining the procedures adopted in this district for HSD. Except as expressly noted, this

Second Amended Administrative Order revises those procedures consistent with

guidance received from the Administrative Office of the United States Courts, thereby

superseding all prior orders and inconsistent local rules concerning HSDs.

The Court finds that good cause exists (1) to permit nonelectronic filing under

Federal Rule of Civil Procedure 5(d)(3)(A) and Federal Rule of Criminal Procedure

49(b)(3)(A) and (2) to adopt the revised HSD Guidance, see Attachment A, which

includes a standard definition of HSDs, a dedicated procedure for filing, serving, and

maintaining HSDs, and factors to be considered by judicial officers in determining if a

Page 1 of 6

document is an HSD.

Therefore, it is ORDERED that, effective immediately and until such time as the

Court orders otherwise, HSDs will be filed and served in paper form (or, if digital media,

on a secure electronic device, such as a flash drive) in accordance with this Order and

the HSD Guidance and will be maintained by the Clerk's Office in a secure paper filing

system or secure standalone computer system that is not connected to any network. 1

1. Documents and Materials Subject to this Order

a. Definition: An HSD is a document or other material that contains

sensitive, but unclassified, information that warrants exceptional handling

and storage procedures to prevent significant consequences that could

result if such information were obtained or disclosed in an unauthorized

manner. Although frequently related to law enforcement materials,

especially sensitive information in a civil case could also qualify for HSD

treatment.

1.

Examples of HSDs: Examples include ex parte sealed filings

relating to national security investigations, cyber investigations,

and especially sensitive public corruption investigations, and

documents containing a highly exploitable trade secret, financial

1

This guidance does not apply to classified information, which should be handled according to

the Classified Information Procedures Act (CIPA) and the Chief Justice's Security Procedures

related thereto, 18 U.S.C. app 3 §§ 1, 9. The Chief Justice's Security Procedures (criminal

prosecutions) and the Department ofJustice regulation 28 C.F.R. § 17.17(c) (civil actions) govern

classified information in any form in the custody of a court.

Page 2 of 6

information, or computer source code belonging to a private

entity, the disclosure of which could have significant national or

international repercussions.

n.

Exclusions: Most materials currently filed under seal do not meet

the definition of an HSD and do not merit the heightened

protections afforded to HSDs. The form or nature of the

document, by itself, does not determine whether HSD treatment

is warranted. Instead, the focus is on the severity of the

consequences for the parties or the public should the document

be accessed without authorization. Most presentence reports,

pretrial release reports, pleadings related to cooperation in

criminal

cases,

immigration

social

records,

security

records,

applications

for

administrative

search

warrants,

interception of wire, oral, or electronic communications under

18 U.S.C. § 2518, and applications for pen registers, trap and trace

devices would not meet the HSD definition.

b. HSDs vary in their physical form and characteristics. They may be paper,

electronic, audiovisual, microform, or other media. The term "document"

includes all recorded information, regardless of its physical form or

characteristics.

2. Requesting HSD Designation

a. Any party seeking to designate materials as HSD must file a motion in

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person at the Clerk's Office in the manner provided in paragraph 2(b). The

motion shall include the following:

i.

A certification of the movant's good-faith belief that the material

meets the HSD definition;

H.

An explanation articulating why HSD treatment is warranted,

including, as appropriate, the contents of the document, the

nature of the investigation or litigation, and the potential

consequences to the parties, the public, or national interests, in the

event the information contained in the document is accessed or

disseminated without authorization, and

iii.

A proposed order that provides the information stated in

paragraph 3 below.

1v.

The requesting party shall serve the proposed HSD on the other

parties as follows:

Civil cases - by any manner specified in Federal Rule of Civil

Procedure 5(b)(2), except for service via the Court's electronic

filing system; or

Criminal cases - by any manner specified in Federal Rule of

Criminal Procedure 49(a)(3)(B) or (a)(4).

b. The motion and proposed HSD material shall be submitted to the Clerk's

Office in a sealed envelope marked "HIGHLY SENSITIVE DOCUMENT."

The outside of the envelope shall be affixed with a copy of the HSD' s

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caption page (with confidential information redacted).

3. Order Granting HSD Designation

An order granting a motion seeking HSD designation, or directing the filing

of a document as an HSD on the Court's own motion, must:

a. State the identity of the persons who are to have access to the documents;

and

b. Set forth instructions for the duration of HSD treatment. HSDs are stored

temporarily or permanently offline as the situation requires. When

designating a document as an HSD, this Court should indicate when the

designation will automatically lapse or when the designation will be

revisited by the judicial officer. HSDs should be migrated as sealed

documents into the Court's electronic docketing system and unsealed, as

appropriate, as soon as the situation allows.

4. Filing An HSD

a. A copy of the order granting HSD designation must be included with any

document filed as an HSD.

b. The Clerk of Court will maintain the HSD in a secure paper filing system

or a secure standalone computer system that is not connected to any

network.

c. The Clerk's Office will make an informational docket entry in the Court's

electronic filing system indicating that the HSD was filed with the Court.

The docket entry shall not include personal or other identifying details

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related to or contained with the HSD. For example:

SYSTEM ENTRY-Docket Entry 92

5/25/23 [no link]

Restricted until further notice (Entered 5/25/23).

d. An opinion or order entered by the Court related to an HSD may itself

constitute an HSD if it reveals sensitive information in the HSD. If the

Court determines that an order qualifies as an HSD, the Clerk's Office will

file and maintain the order as an HSD and will serve paper copies of any

filing issued by the court.

e. An HSD in the lower court's record will ordinarily be also regarded by an

appellate court as an HSD.

5. Safeguarding Internal Communication: Care should also be taken in internal

Court communications regarding HSDs, including notes and pre-decisional

materials, not to include the protected substance of HSDs in any communication

using the internet or a computer connected to a network.

6. Questions: Any questions about how an HSD should be filed with the Court

pursuant to this Order should be directed to the Clerk's Office at (618) 482-9371.

IT IS SO ORDERED.

DATED: May 7, 2024

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

Page 6 of 6

Attachment A

HIGHLY SENSITIVE DOCUMENTS DEFINITION & GUIDANCE

Highly Sensitive Documents (HSDs) are a narrow subset of sealed

documents that must, for their protection, be stored offline. The added protection

for HSDs is important because, in the event of a breach of the courts' electronic

case management system by a sophisticated actor, those documents are more

likely to be sought out and stolen, or their unauthorized access or exposure are

likely to have outsized consequences beyond that of most sealed documents, or

both.

The following definition and guidance are intended to assist courts in

identifying highly sensitive documents and managing the offline handling of

HSDs. This guidance does not apply to classified information, which should be

handled a~cording to the Classified Information Procedures Act (CIPA) and the

Chief Justice's Security Procedures related thereto, 18 U.S.C. app 3 §§ 1, 9(a). 1

(a)

Definition: A Highly Sensitive Document (HSD) is a document or other

material that contains sensitive, but unclassified, information that warrants

exceptional handling and storage procedures to prevent significant consequences

that could result if such information were obtained or disclosed in an unauthorized

way. Although frequently related to law enforcement materials, especially

sensitive information in a civil case could also quality for HSD treatment.

1.

Examples of HSDs: Examples include ex parte sealed filings

relating to: national security investigations, cyber investigations,

and especially sensitive public corruption investigations; and

documents containing a highly exploitable trade secret, financial

information, or computer source code belonging to a private entity,

the disclosure of which could have significant national or

international repercussions.

11.

Exclusions: Most materials currently filed under seal do not meet

the definition of an HSD and do not merit the heightened protections

afforded to HSDs. The form or nature of the document, by itself,

The Chief Justice's Security Procedures_(criminal prosecutions) and the Department of

Justice (DOJ) regulation 28 C.F.R. § 17. l 7(c) (civil actions) govern classified information in any

form in the custody of a court. Such classified information may not be filed on CM/ECF or any

other court network or standalone computer system. Courts are assisted in their protection of

classified information by classified information security officers, who are detailed to the courts by

the DOJ's Litigation Security Group, a unit independent of the attorneys representing the

government. Courts should direct questions regarding how to handle classified documents to the

DOJ's Litigation Security Group. See also, Robert Timothy Reagan, Kee ping Government

Secrets: A Pocket Guide on the State-Secrets Privi1eE.e, the Classified Infonnation Procedures

Act and Classified Information Security Officers, (Federal Judicial Center, 2d ed. 2013).

1

1

Attachment A

HIGHLY SENSITIVE DOCUMENTS DEFINITION & GUIDANCE

does not determine whether HSD treatment is warranted. Instead,

the focus is on the severity of the consequences for the parties or the

public should the document be accessed without authorization. Most

presentence reports, pretrial release reports, pleadings related to

cooperation in criminal cases, social security records, administrative

immigration records, applications for search warrants, interception

of wire, oral, or electronic communications under 18 U.S.C. § 2518,

and applications for pen registers, trap, and trace devices would not

meet the HSD definition.

(b)

(c)

HSDs: Sources and Characteristics

1.

HSD designation may be requested by a party in a criminal, civil,

appellate, or bankruptcy matter.

11.

HSDs vary in their physical form and characteristics. They may be

paper, electronic, audiovisual, microform, or other media. The term

"document" includes all recorded information, regardless of its

physical form or characteristics.

111.

An opinion or order entered by the court related to an HSD may

itself constitute an HSD, if it reveals sensitive information in the

HSD.

1v.

An HSD in the lower court's record will ordinarily be also regarded

by an appellate court as an HSD.

HSD Designation:

1.

A court's standing order, general order, or equivalent directive

should include the HSD definition set forth in (a) above and outline

procedures for requesting, filing, and maintaining HSDs.

11.

The onus is on the party, including the Department of Justice and

other law enforcement agencies, to identify for the court those

documents that the party believes qualify as HSDs and the basis for

that belief. In moving for HSD treatment, the filing party must

articulate why HSD treatment is warranted, including, as

appropriate: the contents of the document; the nature of the

investigation or litigation; and the potential consequences to the

parties, the public, or national interests, in the event the information

contained in the document is accessed or disseminated without

authorization.

2

Attachment A

HIGHLY SENSITIVE DOCUMENTS DEFINITION & GUIDANCE

111.

Judicial Determination:

A. The presiding judge (or, when no presiding judge is available,

the chief judge) should determine whether a document meets the

HSD definition by evaluating whether a party has properly

articulated sufficient reasons for such treatment, including the

consequences for the matter, should the document be exposed. Most

applications for HSD treatment are likely to be ex parte, but the

presiding judge should resolve any disputes about whether a

document qualifies as an HSD as defined in (a) above. The fact that

a document may contain sensitive, proprietary, confidential,

personally identifying, or financial information about an entity or an

individual, that may justify sealing of the document or case, does not

alone qualify the document as an HSD.

B. In making this determination, the court should consider properly

articulated concerns that the unauthorized access or disclosure of the

information contained in the document at issue would result in

significant adverse consequences that outweigh the administrative

burden of handling the document as an HSD. As a general matter,

courts should give careful and appropriate consideration to the

concerns articulated by the executive branch in matters implicating

the authority of the executive branch to oversee the military and

safeguard national security. If relevant, the court has the discretion

to consider the impact of the heightened protection provided by

offline placement to any other party's right of access.

(d)

Exceptional Administrative Treatment for HSDs:

1.

Filing: HSDs and requests for HSD treatment will be accepted for

filing only in paper form or via a secure electronic device (e.g., USB

stick or portable hard drive).

11.

Handling: The court must handle the HSDs by storing all

information offline. Furthermore, any pleadings or other filings

created in connection with the proceedings should not disclose the

subject matter of the HSD (including information that may identify

the place, object, or subject of an ex parte filing).

111.

Docketing: Docket entries for HSDs should not include personal or

other identifying details related to or contained within them. For

example:

8/25/22 [no link]

SYSTEM ENTRY-Docket Entry 92

Restricted until further notice (Entered 8/25/22).

3

Attachment A

HIGHLY SENSITIVE DOCUMENTS DEFINITION & GUIDANCE

1v.

Storing: HSDs shall be stored and handled only in a secure paper

filing system, or an encrypted external hard drive attached to an airgapped system (i.e., entirely disconnected from networks and

systems, including a court unit's local area network and the

judiciary's network).

v.

Safeguarding Internal Communication: Care should also be taken in

judicial communications regarding HSDs, including notes and predecisional materials, not to include the protected substance of HSDs in any

communication using the internet or a computer network.

(e)

Duration of HSD Treatment: HSDs are stored temporarily or

permanently offline as the situation requires. When designating a document as an

HSD, courts should indicate when the designation will automatically lapse or

when the designation should be revisited by the judicial officer. HSDs should be

migrated as sealed documents to the court's electronic docketing system and

unsealed, as appropriate, as soon as the situation allows.

4