A Blog About Intellectual Property Litigation and the District of Delaware

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The District of Delaware today issued guidance on the submission of "highly sensitive documents" today, following the recent breaches of government computer systems by malicious intruders. Similar orders have been issued across the country.

The procedures indicate that parties must file a motion for a document to be treated as including highly sensitive information, and the motion must be granted before the procedures are used. Once granted, the documents must be submitted in paper or via a secure drive.

Luckily, these new procedures address only a sub-category of sealed information, and do not impact current procedures other than for documents with highly sensitive information. Highly sensitive information is defined as follows:

HSI generally refers to sensitive or confidential information that is likely to be of interest to the intelligence service of a hostile foreign government or other actor intent on causing damage to this nation, and whose use or disclosure would likely cause significant harm. HSI could also include information contained in documents whose disclosure could jeopardize the safety of specific individuals.

It then lists categories of such information in more detail, including national security, the integrity of government operations, the reputational interest of the United States, a foreign sovereign interest, law enforcement and intelligence operations, safety of public officials and individuals cooperating with law enforcement, and—most interestingly—the ability of an entity to maintain cybersecurity.

As the Court recognizes in the order, typical IP cases in Delaware do not deal directly with national security concerns or the kinds of information listed in the order:

[A]ll documents other than those listed in Section II above are presumptively deemed to NOT contain HSI and to NOT be HSDs, including the following: . . . most sealed filings in civil cases, including the overwhelming majority (if not all) sealed documents filed in intellectual property . . . cases.

The Court likely called out these kinds of cases specifically to preempt the over-filing of unnecessary motions to treat documents as including highly sensitive information.

That said, the "cybersecurity" category potentially could potentially impact cases involving computer security products, of which we've had a few here in Delaware, particularly if source code is involved.

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