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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.

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?

When Michael bring up that no one has the right to read his diary, the corporate lawyer refutes him:

Michael: I don't think anyone in this room has the right to read my diary.
Diane Kelly: It's basic discovery. We have the right to review it.

If Dunder Mifflin suspected his journal could help them, could they force him to hand over his encryption key?

Does the right to review it mean Michael has to hand over his key?

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4 Answers 4

Reset to default
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Yes.

The same issue arose in ABRO Industries v. 1 New Trade, No. 3:14-cv-1984-TLS-CAN (N.D. Ind. 2017), 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 "necessary encryption key."

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” See, e.g.:

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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.

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In discovery in a civil case, if you are asked to provide a document and refuse to do so, the judge will assume that the contents speaks against you.

If you have your documents in a locked filing cabinet, nobody will force you to unlock it. But if you don’t provide documents from the locked cabinet that will be to your disadvantage. And an encrypted hard drive is like a filing cabinet with a very good lock.

So what do you mean by “force”? The judge can say “if you don’t hand over this document you will lose the case with maximum damages”. Is that “forcing” someone?

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  • A judge won't ever say that, especially if the trier of fact is a jury. The question is will the case even make it to trial if the OP refuses to hand over the document, or will the trial be stalled until they do?
    – Greendrake
    Jul 18, 2022 at 12:13
  • FRCP 37 actually does permit the court to enter default judgment against a party that refuses to comply with discovery orders.
    – bdb484
    Jul 19, 2022 at 1:15
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No, but …

They can force the handover of the relevant parts of the unencrypted journal.

There are no secrets in civil litigation - parties must disclose all relevant evidence irrespective of if it helps or hinders their case. No doubt, much of the journal will be irrelevant to the particular unfair dismissal case - that doesn’t need to be disclosed and is, in fact, inadmissible. Anything relevant does have to be disclosed.

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    This answer would be improved with a citation to relevant law, as it otherwise appears to be just a blind guess. What prevents a court from ordering the disclosure of an encryption key?
    – bdb484
    Jul 18, 2022 at 1:45
  • @bdb484 relevance. They key is not relevant. The evidence behind the encryption may be. Remember, this is civil law, not criminal law.
    – Dale M ♦
    Jul 18, 2022 at 3:58
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    I'm comfortable saying your understanding of what is discoverable is at variance with virtually every court in the country. As laid out above, courts can and do require the disclosure of encryption keys.
    – bdb484
    Jul 18, 2022 at 11:19

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