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Thursday, February 25, 2021

The Administrative Office of the United States Courts (the “AO”) has provided notice of a national data breach of the CM/ECF system and has called upon federal courts to implement new security procedures to protect highly sensitive documents (“HSDs”) filed with the courts from disclosure. Implementation is left to each court.

HSDs are documents containing information that is likely to be of interest to the intelligence service of a foreign government and the use or disclosure of such information by a hostile foreign government would likely cause significant harm to the United States or its interests. Examples of HSDs include unclassified sealed documents involving national security, foreign sovereign interests, criminal activity related to cybersecurity or terrorism, investigation of public officials, and extremely sensitive commercial information likely to be of interest to foreign powers.

The following types of sealed documents, if they do not fall into one of the categories above, typically will not qualify as HSDs: (1) Social Security records; and (2) most sealed documents in bankruptcy cases.

All motions to seal documents with the United States Bankruptcy Appellate Panel for the First Circuit (the “BAP”) as well as the document(s) subject to the motion must be submitted in paper format pursuant to, and in compliance with, General Order No. 2, Rule 1(a)(2). This Order applies to HSDs. Therefore, at this time, the BAP has preliminarily concluded that no immediate changes to its local rules are required. Additionally, consistent with AO guidance, the BAP does not intend to review its dockets to determine if filings under seal contain HSDs.

If you believe a document you either have filed or will file with the BAP is an HSD, please contact the BAP Clerk's Office at 617-748-9650 for further guidance.