It is important to note that we are not concluding that the Government’s knowledge of the content of the devices is necessarily the correct focus of the “foregone conclusion” inquiry in the context of a compelled decryption order. Instead, a very sound argument can be made that the foregone conclusion doctrine properly focuses on whether the Government already knows the testimony that is implicit in the act of production. In this case, the fact known to the government that is implicit in the act of providing the password for the devices is “I, John Doe, know the password for these devices.” Based upon the testimony presented at the contempt proceeding, that fact is a foregone conclusion.
However, because our review is limited to plain error, and no plain error was committed by the District Court in finding
that the Government established that the contents of the encrypted hard drives are known to it, we need not decide here that the inquiry can be limited to the question of whether Doe’s knowledge of the password itself is sufficient to support application of the foregone conclusion doctrine.