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Federal Circuit Changes Filing Rules in Wake of Courts Breach (1)

Jan. 13, 2021, 10:29 PM; Updated: Jan. 13, 2021, 11:04 PM

The Federal Circuit will require parties to file paper copies of highly sensitive documents in response to a cyberhack of the U.S. federal court filing system.

The Administrative Office of the U.S. Courts disclosed the “apparent compromise” of the electronic filing and case management system, known as CM/ECF, on Jan. 6. It ordered federal courts to determine which documents are highly sensitive and to require parties to submit them on paper or on a secure electronic device.

“The clerk of court and deputy clerks are prohibited from maintaining, storing, or transmitting any designated highly sensitive document in digital format on a computer system connected to any network,” the U.S. Court of Appeals for the Federal Circuit said in an order.

The clerk’s office will keep designated materials under seal, stored in a secure paper filing system.

In addition to filing paper copies of highly sensitive documents, parties must file redacted versions using the electronic filing system, the court said in its order.

Under the order, “highly sensitive documents” are defined as “documents containing material that, due to its highly sensitive nature, requires a level of security greater than that provided through filing as confidential or under seal in CM/ECF.”

The court clarified that “sealed and confidential filings in most civil cases in this court do not warrant highly sensitive designation under this order.”

Documents not filed as highly sensitive in the originating proceedings generally aren’t highly sensitive on appeal, and including personally identifiable information alone doesn’t make a document highly sensitive, the court said.

Parties concerned about sensitive information already filed in pending or closed cases can file a motion to remove the documents from the electronic filing system, the court said.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bloomberglaw.com

To contact the editor responsible for this story: Keith Perine at kperine@bloomberglaw.com

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