Sealed Filings in CM/ECF

On January 6, 2021, the Judicial Conference of the United States announced a temporary policy change for certain sealed filings in the federal courts’ case management and electronic case file system (CM/ECF).  The Administrative Office of the U.S. Courts (AO) describes an “apparent compromise of the confidentiality of the CM/ECF system” due to recently discovered vulnerabilities revealed by a security audit of that system.  The scope of the suspected compromise, however, remains “under investigation.”

Nevertheless, the AO directed prophylactic measures be taken by all federal courts nationwide to mitigate possible exposure of “highly sensitive documents” (HSDs) that were or must be filed under seal in CM/ECF.  The AO made clear, though, that not all existing sealed documents or documents sought to be sealed should be classified as HSDs.  For now, it advised that “Title III applications and [non-public] search warrants initially should be considered HSDs.”  But many more pleadings, even if they contain confidential or legally protected information, including “sealed filings in many civil cases likely would not be sufficiently sensitive to require HSD treatment and could continue to be sealed [electronically] in CM/ECF.”  The AO does not require—nor will the Court authorize—the preemptive and blanket retroactive removal of electronically filed HSDs already in CM/ECF.

As authorized by the AO, the Court is actively considering possible orders or other equivalent procedures to protect the confidentiality of HSDs in the CM/ECF system.  As noted above, however, an essential part of this temporary filing change is defining HSDs, which the Court intends to do with dispatch.  While the definition of HSDs was left to the individual discretion of courts, the Court is currently coordinating with the Chief Judge of the Ninth Circuit and the Ninth Circuit Executive’s Office to draft a minimum definition of HSDs that can be deployed uniformly across the courts in our district.  The definition will be aligned with the then-known risks of any CM/ECF compromise and balanced against operational impacts (including constraints posed by the Court’s emergency responses and continuity-of-operation plans amid the ongoing COVID-19 pandemic).

The Court will provide updates as further information becomes available.

**********************************

Kiry K. Gray
District Court Executive/Clerk of Court
January 11, 2021