After Hack, Federal Court Announces New Procedure
The U.S. District Court for the District of Nebraska has released a general order outlining how attorneys should handle highly sensitive documents in the wake of the federal judiciary’s electronic system being hacked.
The hack was part of a broad compromise of U.S. government systems believed to have been conducted by as part of a Russian cyberespionage campaign – the so-called SolarWinds hack.
The Administrative Office of the U.S. Courts is working with the Department of Homeland Security on a security audit of vulnerabilities of the Case Management/Electronic Case Files system after identifying an apparent compromise of the confidentiality of the system.
Until the CM/ECF system is secured, federal courts were told to implement new procedures for handling highly sensitive documents.
Chief U.S. District Judge John M. Gerrard issued General Order 2021-01 last Wednesday. A copy of the general order is available from the court or can be found at omahadailyrecord.com. Highly sensitive documents are those likely to be of interest to an intelligence service of a hostile foreign government and those for which the disclosure could cause significant harm. The order lists national security, sovereign interests, cybersecurity, electronic surveillance applications, intelligence operations and valuable trade secrets as examples of such highly sensitive documents.
In general, the court notes, such highly sensitive documents does not include presentence and pretrial reports, pleadings indicative of cooperation in criminal cases, sealed indictments, criminal complaints, arrest warrants, petitions for action on condition of release, grand jury proceedings, Social Security records, medical records, mental health records, rehabilitation records, administrative records in immigration cases, attorney discipline records, juvenile proceedings, documents with personal or financial information, education records, proprietary business information not of interest to a foreign government and documents subject to a routine protective order in a civil case.
The responsibility to determine if a document may be highly sensitive is primarily that of the filing party. In such a case, the filing party should file a motion with the clerk’s office following the instructions in the general order. Should a document be too voluminous to provide in hard copy, the filing party may discuss with a judge in chambers about how to best submit the document. However, the court stresses in a footnote that should only be done in an “extremely unusual case.”
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