On January 6, 2021, we learned that federal courts’ nationwide case management system was breached as part of the SolarWinds hack, potentially giving hackers access to sealed court documents that may include trade secret information. The AP reports that a federal court official said that the “potential reach is vast” and the “actual reach is probably significant.” At this stage, officials do not know the full extent of the breach, which documents hackers accessed, or whether officials can retrieve those documents.
In response, the federal judiciary has announced new procedures relating to “highly sensitive” documents; namely, that courts will now accept sealed highly sensitive documents only in paper form or via secure electronic device (such as a thumb drive) and that the sealed documents will no longer be uploaded to the court’s CM/ECF electronic court records system. Individual courts around the country have begun to issue orders or notices relating to that national directive, including specifying which document categories will count as “highly sensitive” documents warranting special protections. The federal directive says that “sealed filings in many civil cases likely would not be sufficiently sensitive” to require the new special treatment and can continue to be e-filed.