D. Me. Loc. R. 5.3

(a) Highly Sensitive Documents Defined

(1) A Highly Sensitive Document (HSD) is a document or other material

that contains sensitive, but unclassified, information that warrants

exceptional handling and storage procedures to prevent significant

consequences that could result if such information were obtained or

disclosed in an unauthorized manner. Although frequently related to

law enforcement materials, especially sensitive information in a civil

case could also qualify for HSD treatment. Examples of HSDs include

ex parte sealed filings relating to national security investigations, cyber

investigations, and especially sensitive public corruption investigations;

and documents containing a highly exploitable trade secret, financial

information, or computer source code belonging to a private entity, the

disclosure of which could have significant national or international

repercussions.

(2) Most materials currently filed under seal do not meet the definition of

an HSD and do not merit the heightened protections afforded to HSDs.

The form or nature of the document, by itself, does not determine

whether HSD treatment is warranted. Instead, the focus is on the

severity of the consequences for the parties or the public should the

document be accessed without authorization. Most presentence

investigation reports, pretrial release reports, pleadings related to

cooperation in criminal cases, social security records, administrative

immigration records, applications for search warrants, interception of

wire, oral, or electronic communications under 18 U.S.C. § 2518, and

applications for pen registers or trap and trace devices would not meet

the HSD definition. This rule does not apply to classified information,

which should be handled according to the Classified Information

Procedures Act (CIPA) and the Chief Justice’s Security Procedures

related thereto, 18 U.S.C. app. 3 §§ 1, 9. The Chief Justice’s Security

Procedures (criminal prosecutions) and the Department of Justice

regulation, 28 C.F.R. § 17.17(c) (civil actions), govern classified

information in any form in the custody of a court.

(b) Format

Any motion or document involving highly sensitive information must be filed

with the Clerk in paper format and will be maintained in paper.

(c) Motion Seeking HSD Designation

(1) Before filing an HSD, the party seeking to file an HSD must file a motion

that includes the following information:

(A) a certification of the movant’s good-faith belief that the material

meets the HSD definition;

(B) an explanation of why HSD treatment is warranted, including:

(i) the contents of the document;

(ii) the nature of the investigation or litigation; and

(iii) the potential consequences to the parties, the public, or

national interests, in the event the information contained

in the document is accessed or disseminated without

authorization; and

(C) a proposed order that provides the information stated in

subsection (e).

(2) The motion and the proposed HSD material must be submitted to the

Clerk in a sealed envelope marked “Highly Sensitive Document.” The

outside of the envelope must include the case’s caption (with any

confidential information redacted).

(d) Service

The moving party must serve the proposed HSD on the other parties as follows:

(1) civil cases: by any manner specified in Federal Rule of Civil Procedure

5(b)(2), except for service via the ECF system;

(2) criminal cases: by any manner specified in Federal Rule of Criminal

Procedure 49(a)(3)(B) or (a)(4).

(e) Order Granting HSD Designation

An order granting a motion seeking HSD designation or directing the filing of

a document as an HSD will:

(1) identify the persons allowed to access the documents without further

court order; and

(2) set forth instructions for the duration of HSD treatment. HSDs are

stored temporarily or permanently in paper as the situation requires.

When designating a document as an HSD, the order will indicate when

the designation will automatically lapse or when the designation should

be revisited by a judge. HSDs may be migrated as sealed documents to

the ECF system and unsealed, as appropriate, as soon as the situation

allows.

(f) Handling Highly Sensitive Documents

The following procedures apply to filing documents authorized by the Court as

HSDs.

(1) A copy of the order granting HSD designation must be included with any

document filed as an HSD.

(2) The Clerk will maintain the HSD in a secure paper filing system.

(3) A decision, order, or other document entered by the Court related to an

HSD may itself be an HSD if it reveals sensitive information. If the

Court determines that a court order qualifies as an HSD, the Clerk will

file and maintain the order as an HSD and will serve paper copies on

the parties.

(g) Appellate Record

An HSD in the District Court’s record will ordinarily be treated as an HSD for

purposes of the District Court’s record on appeal.

(h) Termination of HSD Designation

When the HSD designation expires, or is terminated by court order, the

documents formerly designated as HSDs will be uploaded to the ECF system.

(i) Further Guidance

Appendix E contains further guidance concerning HSDs.