Encryption may soon be a recurring challenge for civil litigators. Encryption appears to be growing across electronic devices that create, store and transmit electronic information.
Public awareness of government surveillance and perceived invasions of privacy highlight the existence of encryption technologies and the perceived ability to use encryption to protect privacy. The conflict between privacy and law enforcement needs has been played out in disputes between the U.S. Department of Justice in the Northern District of California and the Eastern District of New York earlier this year. See, e.g., J.H. Koo, “Encryption Called Essential for Privacy, Security, Economy,” 16 DDEE 246 (2016); J. DaSilva, “4th Amendment Should Balance Safety, Privacy: Panelists,” 16 DDEE 287 (2016). Yet, the same devices that can be at issue in criminal investigations may well contain electronically stored information (ESI) relevant and therefore discoverable in civil litigation in New York state as well as federal courts. What arguments might be advanced in support of and in opposition to discovery requests for encrypted ESI? How might a court rule?
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