On January 29, 2021, Chief Judge Leonard P. Stark issued a Standing Order setting forth new procedures for the filing, service, and management of highly sensitive documents, defined as “HSD”. The Standing Order was issued in response to recent widespread disclosures of breaches of both private sector and government computer systems.
As the Order makes clear, most documents are presumptively deemed to not contain highly sensitive information (“HSI”), including “most sealed filings in civil cases, including the overwhelming majority (if not all) sealed documents filed in intellectual property and Chapter 11 cases.” Standing Order, at 3.
If the document qualifies as an HSD, then the Standing Order provides a separate motion procedure the designating party must follow.
The Standing Order provides that the following documents are presumptively HSDs: (i) applications for electronic surveillance under 18 U.S.C. § 2518, and (ii) documents that adversely affect: national security; integrity of government operations; reputational interests of the US; a foreign sovereign interest; on-going law-enforcement investigations and intelligence-gathering operations; safety of public officials or individual cooperating with law enforcement; and the ability of an entity to maintain cybersecurity.
The Standing Order clarifies that few documents will qualify for this designation, however, stating that, in connection with business and other entities, “documents will likely constitute HSI only (if ever) when they are among the most sensitive records created in the entity’s history and that, if wrongfully disclosed, could result in catastrophic financial and/or other loss for the entity.” Standing Order, at 2.
Of significance, the Order clarifies that the HSD is “exceptional treatment” and the party moving to file the documents as such “bears the burden to justify such exceptional treatment.” Standing Order, at 2.
Carl D. Neff is a partner with the law firm of FisherBroyles, LLP, and practices in Delaware. You can reach Carl at (302) 482-4244 or at Carl.Neff@FisherBroyles.com.