Chief Judge Smith issued a Standing Order Regarding Highly Sensitive Documents. It is available here. The Standing Order creates new procedures for materials defined therein as “Highly Sensitive Documents” (“HSD”). Such documents are those “involving: (1) Title III applications; (2) initial applications for search warrants; (3) matters of national security; (4) foreign sovereign interests, or cybersecurity; (5) terrorism; (6) investigation of public officials; (7) intellectual property or trade secrets likely to be of interest to foreign powers; or (8) the reputational interests of the United States.”
Documents designated by a District Court as HSD, or documents that a party wishes the Third Circuit to so designate, or documents that already in the Third Circuit’s filing system, are covered by the Standing Order. In general, an application for treatment as HSD can be made by filing a motion in paper form or, if the materials are voluminous, by use of a secure electronic device. Instead of the normal electronic filing, applications are to be filed and served by mail, hand delivery, or courier.
The new procedure is not an open door to file entire documents as HSD unless a sufficient showing is made. “The party may request HSD designation for only such portion of the document that falls within the HSD definition, such as specific pages of the document or transcript. An entire document will not be designated HSD simply because discrete portions of it that are susceptible to being redacted qualify for HSD status.”
Finally, the Standing Order clarifies that “[s]ealed documents that do not fall within the HSD definition shall be filed and served in accordance with established procedures under 3rd Cir. L.A.R. 106 and will be maintained under seal in CM/ECF.” The following categories of documents are listed as “continu[ing] to be subject to restricted access under the current rules and policies, but generally will not qualify as HSDs: (1) presentence reports and related documents; (2) pleadings related to cooperation in most criminal cases; (3) social security administrative records and case filings; (4) immigration administrative records and case filings; (5) railroad retirement board administrative records and case filings; and (6) most sealed documents in civil cases.”