united-states encryption discovery
Can a company or lawyer force someone to turn over an encryption key?
<p>In the Office episode The Deposition, Jan sues Dunder Mifflin for wrongful termination. During the deposition she pulls out Michael's journal to help her case.</p>
<p>Suppose Michael encrypted his entries (let's put aside if he has the intelligence to understand encryption and how to use it), if Jan found the journal and suspected it may help her, could she give it to the lawyer and have him force Michael hand over the key?</p>
<p>When Michael bring up that no one has the right to read his diary, the corporate lawyer refutes him:</p>
<blockquote>
<p>Michael: I don't think anyone in this room has the right to read my
diary.<br />
Diane Kelly: It's basic discovery. <strong>We have the right to review it</strong>.</p>
</blockquote>
<p>If Dunder Mifflin suspected his journal could help them, could they force him to hand over his encryption key?</p>
<p>Does the right to review it mean Michael has to hand over his key?</p>

<h2>Yes.</h2>
<p>The same issue arose in <a href="https://casetext.com/case/abro-indus-inc-v-1-new-trade-inc-3" rel="nofollow noreferrer"><em>ABRO Industries v. 1 New Trade</em>, No. 3:14-cv-1984-TLS-CAN (N.D. Ind. 2017)</a>, where the defendant sought to compel the plaintiff to produce encrypted e-mails. The court granted the motion and ordered the production of both the requested e-mails and the &quot;necessary encryption key.&quot;</p>
<p>Indeed, discovery orders in the federal courts routinely include language saying that “the Producing Party shall transmit the encryption key or password to the Requesting Party” <em>See</em>, <em>e.g.</em>:</p>
<ul>
<li><p><a href="https://casetext.com/case/smith-fong-co-v-idx-corp-1" rel="nofollow noreferrer"><em>Smith &amp; Fong Co. v. idX Corp.</em>, 3:22-cv-00042-TMR-CHG, 8 (S.D. Ohio Jul. 8, 2022)</a>;</p>
</li>
<li><p><a href="https://casetext.com/case/sandoval-v-uphold-hq-inc-1" rel="nofollow noreferrer"><em>Sandoval v. Uphold HQ Inc.</em>, 1:21-cv-07579 (VSB)(BCM), 9-10 (S.D.N.Y. May. 20, 2022)</a>;</p>
</li>
<li><p><em>Rabin v. Pricewaterhousecoopers LLP</em>, No. 16-cv-02276, 2016 U.S. Dist. LEXIS 142003, at *14 (N.D. Cal. Oct. 11, 2016);</p>
</li>
<li><p><em>Chromadex, Inc. v. Elysium Health, Inc.</em>, No. SACV 16-02277-CJC(DFMx), 2017 U.S. Dist. LEXIS 224417, at *12 (C.D. Cal. Sep. 26, 2017);</p>
</li>
<li><p><em>Martinelli v. Johnson &amp; Johnson</em>, No. 2:15-cv-01733-MCE-EFB, 2016 U.S. Dist. LEXIS 53146, at *26 (E.D. Cal. Apr. 13, 2016);</p>
</li>
<li><p><a href="https://casetext.com/case/montalvo-ariri-v-ethicon-inc" rel="nofollow noreferrer"><em>Montalvo-Ariri v. Ethicon, Inc.</em>, 5:14-cv-01421 VAP (SPx), (C.D. Cal. Aug. 14, 2015)</a>;</p>
</li>
<li><p><a href="https://casetext.com/case/green-v-am-modern-home-ins-co" rel="nofollow noreferrer"><em>Green v. Am. Modern Home Ins. Co.</em>, Case No. 1:14-cv-04074, 7 (W.D. Ark. Nov. 24, 2014)</a>;</p>
</li>
</ul>

<p>This is not legally different from forcing someone to turn over a document in discovery. If the is a dispute on whether the document is relevant enough for it to be subject to discovery, the parties may take the matter to the presiding judge, who will make a decision, which must be complied with unless it is possible to take an interlocutory appeal. Whether the document can be obtained by using a physical key on a file drawer or a safe deposit box, or an electronic key on an encrypted file should make no significant difference.</p>
