D.S.D. Crim. LR 49.1

A. What constitutes filing/official record. Electronic transmission of a

document to the Electronic Filing System together with the transmission of

a Notice of Electronic Filing from the court constitutes filing of the document

for all purposes of the local rules of this court and the Federal Rules of Civil

Procedure and constitutes entry of the document on the docket kept by the

clerk of court under Fed. R. Civ. P. 58 and 79. When a document has been

filed electronically, the official record is the electronic document as stored by

the court and is deemed filed at the date and time stated on the Notice of

Electronic Filing from the court. The party filing the document is bound by

the document as filed.

B. What constitutes an electronic signature. In addition to the requirements

contained in Rule 49(b)(4) of the Federal Rules of Criminal Procedure, the

name of the filing user under whose login and password the documents are

submitted must be preceded by a “/s/” and typed in the space where the

signature would otherwise appear unless a facsimile of the filing user’s

signature appears in the signature block.

C. Duty to protect login and password. No filing user or other person may

knowingly permit a filing user’s login and password to be used by someone

other than an authorized agent of the filing user. If they learn that their

password has been compromised, they must immediately notify the clerk.

Attorneys may be subject to sanctions for failure to comply with this

provision.

D. Documents requiring the signature of more than one party. Documents

requiring signatures of more than one party may be electronically filed either

by (a) submitting a scanned document containing all necessary signatures;

or (b) in any other manner approved by the court. When filing documents

that require signatures from other parties, it is not permissible to insert a

“/s/” for another persons signature.

E. Restricted Hyperlinks. Because a website address within a court filing

becomes a hyperlink to the internet location upon filing in the CM/ECF

system, counsel must redact from any filed documents any website address

that directs the court to a website that contains pornography or personal

identifiers. After filing the redacted document, counsel must provide an

unredacted version to the clerk of court for filing under seal.

F. Filing Documents outside of CM/ECF. Highly sensitive documents

may be filed outside of the court’s Electronic Filing System.

1. Highly Sensitive Documents. 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 way. Although frequently

related to law enforcement materials, especially sensitive information in a

civil case could also qualify for HSD treatment.

a. Examples of HSDs: Examples 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.

b. Exclusions: 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 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, trap, and trace devices would not meet the HSD

definition.

Any dispute as to whether a document is an HSD will be resolved

by the presiding judge or, when no presiding judge is

assigned, the Chief Judge.

2. Motion Required. A represented or pro se party must file a motion to treat

a document as an HSD and a proposed order in the same manner as a

motion to file under seal pursuant to D.S.D. Civ. LR 7.1 A and Crim. LR

47.1 B. The motion and proposed order must state the duration of the HSD

designation or whether the HSD designation should be permanent. The

motion must explain why the proposed document constitutes an HSD

under paragraph F.1 or why it should otherwise be filed without revealing

the highly sensitive information contained within the HSD.

a. The filing party must deliver to the clerk’s office where the

presiding judge is chambered two paper copies of the motion and

HSD sought be filed along with a certificate of service. These

documents must be submitted in a sealed envelope marked

“HIGHLY SENSITIVE DOCUMENT” and marked with the

applicable case number, attorney’s name, street address,

telephone number, and email address. Upon receipt, the clerk’s

office will make an informational docket entry that a motion to

treat a document as an HSD has been filed.

b. Unless being submitted as an ex parte filing, the filing party must

serve the proposed HSD on the other parties by any manner

specified in Criminal Rule 49(a), except for service via the court’s

Electronic Filing System.

c. If the court grants the motion, an informational entry will be made

on the case docket indicating that the HSD has been filed with the

Court. The clerk’s office will maintain the HSD in a secure paper

filing system or a secure standalone computer system that is not

connected to any network.

3. Service of HSD Orders. The clerk’s office will serve paper copies of

the order on the parties via mail.