Answer: carefully. 

Recent cyberattacks have exposed sealed documents filed across several Federal Courts. Those attacks present risks ranging from criminals discovering the identities of informants to businesses having their trade secrets revealed to competitors or publicly disclosed. In the wake of the discovery of these cyberattacks, several courts have implemented procedures for parties to file highly sensitive documents outside of the federal court CM/ECF electronic filing systems. See, e.g., Western District of Washington Amended Procedures for Highly Sensitive Documents.  Those procedures allow for some particularly sensitive information, such as information containing highly exploitable trade secrets, to be filed via paper or on secure electronic media. 

The risk of data exfiltration from case filings requires caution from all litigants, but it presents a particular risk to trade secret litigants, who must present the Court with evidence of trade secrets and their misappropriation or defenses to such claims. Trade secret holders in particular face increased risk that their secrets may be stolen from breached court files. But there are steps they should take to mitigate those risks. 

Litigants should negotiate protocols for disclosure and handling of highly sensitive information and engage with the Court on appropriate protocols. This has long been typical in IP cases involving source code, where parties often agree to inspect source code on standalone, non-networked computers, print only limited portions, use hard-copy printouts at depositions, and work with the Court on how to present source code evidence when necessary at trial. Similar protocols can extend to other types of trade secret information to prevent digital copies of the information from being stored on systems that could be breached remotely.  

Descriptions of trade secrets and their protection mechanisms can also be crafted to present the necessary disputes and evidence without disclosing all of their secret details. Of course, relevant evidence will need to be made available through discovery, but court filings can be fashioned to present the issues and evidence without disclosing the most sensitive aspects of the underlying evidence –- the secret sauce. And documents that may be attached to court filings, such as discovery responses and expert reports, should likewise be drafted to avoid disclosing the most secret information where possible.  

When documents containing trade secret information must be filed, parties should deliberately consider what information can be redacted even from sealed exhibits. In many complex IP cases parties sometimes must submit numerous lengthy exhibits that include volumes of sensitive information, but often times limited portions of each exhibit offer the material evidence. In such cases, parties will need to balance the benefit of potentially disclosing additional context with redactions to secure sensitive information. 

Cybersecurity is an arms race. The security of the court filing systems and protocols for protecting sensitive information will improve, but court systems will remain targets of cybercriminals and nation-state backed hacking groups whose capabilities will likewise improve (especially aided by AI advances). Given these evolving risks, trade secret litigants must put deliberate thought into how to develop and present their cases to mitigate risk of their secret information being disclosed through data breaches.