On January 29, 2021, Chief Judge Stark entered the below Order requiring new procedures for the filing, service, and management of highly sensitive documents (“HSD”). This is in response to recent breaches of private sector and government computer systems. Here is a summary of the Order and a brief discussion as to why it will be rarely invoked in intellectual property cases. The Court seemingly wants to avoid over-designation of HSDs in intellectual property cases. Most documents are presumptively deemed to not contain HSI (discussed below) and to not be HSD, including “most sealed filings in civil cases, including the overwhelming majority (if not all) sealed documents filed in intellectual property and Chapter 11 cases.”
HSDs contain highly sensitive information or “HSI.” HSI is sensitive or confidential information “likely to be of interest to the intelligence service of a hostile foreign government or other actor causing damage to this nation, and whose use or disclosure would likely cause significant harm.” HSI may also include information where “disclosure could jeopardize the safety of specific individuals.” If the document is an HSD, then the Order provides a separate motion procedure the designating party must follow.
The Order provides documents that are presumptively HSDs:
- Applications for electronic surveillance under 18 U.S.C. § 2518
- 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 Order further provides that “[i]n 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.”
The Order discusses how to identify HSI. The Court makes clear that just because you are filing a document under seal, that does not mean you should designate the document as HSD containing HSI. Importantly, the Order clarifies that the HSD is “exceptional treatment” and the party moving to file the documents as such bears the burden to justify filing the documents as HSDs.
For intellectual property cases, it appears that the HSD designation is unlikely to be necessary. While many confidential documents are filed under seal as exhibits due to sensitive proprietary information, these will not be HSD/HSI unless the documents themselves would jeopardize the cybersecurity of an entity or otherwise result in catastrophic financial and/or other loss for the entity.
Click here to read Chief Judge Stark’s Order requiring new procedures for the filing, service, and management of highly sensitive documents (“HSD”).