The Court Ruling That Changed E-Discovery
In March 2026, the U.S. Court of Appeals for the Second Circuit issued a landmark ruling in In re Litigation Privilege that fundamentally changed how law firms approach document redaction in e-discovery.
The court ruled that reversible encryption in discovery documents may constitute spoliation—the deliberate destruction or concealment of evidence—because the redacting party retains the ability to decrypt and recover the redacted information.
The ruling came in response to a case where a law firm had submitted discovery documents with "reversibly encrypted" redactions. The firm had encrypted the sensitive information but retained the encryption keys in a secure location.
The court found this problematic because:
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The redacting party still owns the information — If you encrypt but keep the keys, you haven't truly surrendered control of the redacted information. You can decrypt it anytime.
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It's not irreversible — Spoliation requires the permanent destruction or concealment of evidence. Reversible encryption doesn't meet this standard because the information can be recovered.
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It creates custody chain ambiguity — If the opposing party later discovers the encryption keys (through a subpoena, breach, or other means), they can decrypt everything. This undermines the integrity of the discovery process.