Local Rule Rule 5.3: Highly Sensitive Documents (HSDs)
D. Me. — Civil rule
Rule 5.3 Highly Sensitive Documents (HSDs)
(a) Highly Sensitive Documents Defined
(1) 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 manner. Although frequently related to law enforcement materials, especially sensitive information in a civil case could also qualify for HSD treatment. Examples of HSDs 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.
(2) 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 investigation 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 or trap and trace devices would not meet the HSD definition. This rule 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 of Justice regulation, 28 C.F.R. § 17.17(c) (civil actions), govern classified information in any form in the custody of a court.
(b) Format Any motion or document involving highly sensitive information must be filed with the Clerk in paper format and will be maintained in paper.
(c) Motion Seeking HSD Designation
(1) Before filing an HSD, the party seeking to file an HSD must file a motion that includes the following information:
(A) a certification of the movant's good-faith belief that the material meets the HSD definition;
(B) an explanation of why HSD treatment is warranted, including:
(i) the contents of the document;
(ii) the nature of the investigation or litigation; and
(iii) 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
(C) a proposed order that provides the information stated in subsection (e).
(2) The motion and the proposed HSD material must be submitted to the Clerk in a sealed envelope marked "Highly Sensitive Document." The outside of the envelope must include the case's caption (with any confidential information redacted).
(d) Service The moving party must serve the proposed HSD on the other parties as follows:
(1) civil cases: by any manner specified in Federal Rule of Civil Procedure 5(b)(2), except for service via the ECF system;
(2) criminal cases: by any manner specified in Federal Rule of Criminal Procedure 49(a)(3)(B) or (a)(4).
(e) Order Granting HSD Designation An order granting a motion seeking HSD designation or directing the filing of a document as an HSD will:
(1) identify the persons allowed to access the documents without further court order; and
(2) set forth instructions for the duration of HSD treatment. HSDs are stored temporarily or permanently in paper as the situation requires. When designating a document as an HSD, the order will indicate when the designation will automatically lapse or when the designation should be revisited by a judge. HSDs may be migrated as sealed documents to the ECF system and unsealed, as appropriate, as soon as the situation allows.
(f) Handling Highly Sensitive Documents The following procedures apply to filing documents authorized by the Court as HSDs.
(1) A copy of the order granting HSD designation must be included with any document filed as an HSD.
(2) The Clerk will maintain the HSD in a secure paper filing system.
(3) A decision, order, or other document entered by the Court related to an HSD may itself be an HSD if it reveals sensitive information. If the Court determines that a court order qualifies as an HSD, the Clerk will file and maintain the order as an HSD and will serve paper copies on the parties.
(g) Appellate Record An HSD in the District Court's record will ordinarily be treated as an HSD for purposes of the District Court's record on appeal.
(h) Termination of HSD Designation When the HSD designation expires, or is terminated by court order, the documents formerly designated as HSDs will be uploaded to the ECF system.
(i) Further Guidance Appendix E contains further guidance concerning HSDs.