Environment & Energy Report

U.S. Courts Adopt Different Views of ‘Highly Sensitive’ Post Hack

Jan. 14, 2021, 9:46 AM

U.S. federal courts are taking different approaches to what documents should be categorized as “highly sensitive” and kept off an electronic filing system after a cyberattack.

There’s early consensus about materials related to national intelligence or criminal surveillance, but there is less consistency after that about what to exclude from the filing and case management system known as CM/ECF, a Bloomberg Law review of orders from 17 federal courts found.

The U.S. District Court for the Eastern District of Virginia, for example, ordered any sealed documents, which are privy only to judges and lawyers, “must be filed in paper format.” The Western District of Kentucky, on the other hand, defined only “applications for search warrants and applications for electronic surveillance” as highly sensitive.

“What we’re seeing is courts’ best efforts to figure out what exactly the judicial conference wants courts to do, without having received a ton of specific direction,” said Jaime Santos, a partner at Goodwin Procter’s appellate litigation practice.

The orders come after the Administrative Office of the U.S. Courts on Jan. 6 disclosed an “apparent compromise” of the CM/ECF. It has directed courts to keep “highly sensitive documents” off the system that handles over 41 million cases and 500 million documents. More than 700,000 attorneys file documents electronically, according to court figures.

The breach, which authorities believe is likely connected to the hack of SolarWinds’ Orion products that affected multiple government agencies and companies, is the second crisis after the pandemic to rock the federal court system within the past year. Like their response to the coronavirus to adjust operations, individual courts again have discretion in carrying out a directive from the courts’ office, which has promised more guidance.

The New York-based U.S. Court of Appeals for the Second Circuit, which is centered in the nation’s financial capital, noted on its website that it is already the court’s policy that sealed documents not be filed or stored on the electronic filing system. “These practices will continue going forward,” the court said.

In addition to considering applications for search warrants and electronic surveillance “highly sensitive,” the Atlanta-based Eleventh Circuit included “any document deemed an HSD by another federal court” in its order.

Other courts that have issued orders include the District ofthe District of Columbia, the Southern District of New York, the Northern District of Illinois, the Eighth Circuit, and the Federal Circuit.

‘Triage Mode’

Courts “appear to be in triage mode and they’re saying ‘let’s look at the things that we’re most concerned about,’ which is national security and criminal investigations,” said Reuben A. Guttman, a founding partner of Guttman, Buschner & Brooks in New York.

Any other documents that might be considered “highly sensitive” will be up to lawyers to identify and agree on in specific cases, Guttman said.

Cases about last week’s storming of the U.S. Capitol by supporters of President Donald Trump could also be affected, Santos said.

Conversations between parties to discuss classified materials already occur at the beginning of litigation, and determining what’s highly sensitive will have to be a new part of those talks, Guttman said. Highly sensitive documents will likely be the subject of legal education courses for lawyers going forward, he said.

“At some point in time, there’s going to be some standardization and the courts are going to be meeting on this, but what you’re seeing essentially is an immediate reaction to a crisis,” Guttman said.

Walking Documents to Court

Although it’s not clear what documents hackers accessed, the electronic filing system also contains documents with competitive financial information and trade secrets that could be of interest to bad actors.

Each court deals with those types of documents differently and some already chose to keep those kinds of filings off the electronic system.

Some of the filings that were kept off the electronic filing system include those containing sensitive information related to national security, said Nina J. Ginsberg, a founding partner at DiMuroGinsberg in Virginia who focuses on national security law.

The new procedures won’t change the practices already in place for those kinds of documents, Ginsberg said.

For other documents that were previously permitted to be filed on the electronic filing system and are now considered highly sensitive, Ginsberg said “the biggest difference will be that you have to walk them over to the court house.”

Other Sensitive Information

Several of the orders also specify that orders from the court could be defined as highly sensitive.

“If a judge determines that a court order contains highly sensitive information, the Clerk of Court will file and maintain the order in a secure paper filing system, and paper copies of the order will be served on the parties via mail,” Southern District of New York Chief Judge Colleen McMahon said in an order.

Courts also outlined the process for removing highly sensitive cases from the electronic filing system.

Northern District of Alabama Chief Judge Kristi DuBose said in a Jan. 11 order the court may determine documents, a case, or portions of a case that have already been filed electronically are considered highly sensitive. It can “direct that the HSD or case be removed from the Court’s electronic filing system and maintained by the clerk’s office in a secure paper filing system or a secure standalone computer system that is not connected to any network.”

—With assistance from Porter Wells and Jasmine Han

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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