Facebook, Inc. v. Superior Court of San Diego Cnty.

Decision Date13 August 2020
Docket NumberS245203
CourtCalifornia Supreme Court
Parties FACEBOOK, INC., Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; Lance Touchstone, Real Party in Interest; Summer Stephan, as District Attorney, etc., Intervener.

Perkins Coie, James G. Snell, Christian Lee, Palo Alto; Gibson, Dunn & Crutcher, Joshua S. Lipshutz and Michael J. Holecek for Petitioner.

Horvitz & Levy, Jeremy B. Rosen, Burbank, Stanley H. Chen, Los Angeles, and Eric S. Boorstin, Burbank, for Google Inc., Oath Inc., Twitter, Inc., and California Chamber of Commerce as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Megan Marcotte, Chief Deputy Alternate Public Defender, and Katherine I. Tesch, Deputy Alternate Public Defender, for Real Party in Interest.

Todd W. Howeth and Michael C. McMahon for the California Public Defenders Assocation and the Public Defender of Ventura County as Amici Curiae on behalf of Real Party in Interest.

Law Offices of J.T. Philipsborn, John T. Philipsborn, San Francisco; Sanger Swysen & Dunkle, Stephen K. Dunkle, Santa Barbara; The Law Office of Donald E. Landis, Jr., and Donald E. Landis, Jr., Santa Ana, for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Real Party in Interest.

Jeff Adachi, Public Defender, Matt Gonzalez, Chief Attorney, Dorothy Bischoff, Deputy Public Defender, for San Francisco Public Defender's Office as Amicus Curiae on behalf of Real Party in Interest.

Summer Stephan, District Attorney, Mark A. Amador, Linh Lam and Karl Husoe, Deputy District Attorneys for Intervener.

Opinion of the Court by Cantil-Sakauye, C. J.

We granted review to address the propriety of a criminal defense subpoena served on Facebook, seeking restricted posts and private messages of one of its users who is also a victim and critical witness in the underlying attempted murder prosecution.

In addition to discussing the Fifth and Sixth Amendment issues presented in this and recent related litigation ( Facebook v. Superior Court (Hunter) (2018) 4 Cal.5th 1245, 233 Cal.Rptr.3d 77, 417 P.3d 725 ( Facebook (Hunter) ), the parties raised four related preliminary legal issues, all potentially dispositive, in the course of their briefing.

In the meantime, our review of the record — including a key declaration and exhibits that had been presented to the trial court ex parte and sealed (and hence kept from Facebook, as well as from the prosecuting authority below, intervener San Diego County District Attorney (hereafter the district attorney)) — raised questions regarding whether this case presents an appropriate vehicle to resolve any of the earlier briefed legal issues. Specifically, our review raised the question whether the underlying subpoena was supported by good cause and, if not, whether the trial court's denial of Facebook's motion to quash the subpoena should be vacated and the matter remanded to the trial court for further proceedings regarding that motion.

Accordingly, after giving the parties notice and an opportunity to comment, we unsealed the declaration and related exhibits, took judicial notice of the preliminary hearing transcript and related exhibits, and solicited supplemental briefing from all three parties concerning the adequacy of the justifications for the subpoena. In response, real party in interest Lance Touchstone, defendant in the prosecution below (hereafter defendant) filed a supplemental brief maintaining that the subpoena is supported by good cause, and that the trial court properly denied Facebook's motion to quash. By contrast, the supplemental briefs filed by Facebook and the district attorney contend that defendant failed to state sufficient justification for acquiring the sought communications, and that the subpoena is not supported by good cause. When it came time to file reply briefs in the latest round of briefing, Facebook and the district attorney did so, responding to defendant's arguments. Defendant did not file a reply.

The most recent briefing has not alleviated our initial questions concerning the viability of the underlying subpoena. As explained in greater detail below, the trial court erred by conducting an incomplete assessment of the relevant factors and interests when it found that defendant established good cause to acquire the sought communications from Facebook and denied Facebook's motion to quash. The trial court's misstep was understandable, given that (1) the trial court did not have the benefit of full adversarial engagement, (2) there is surprisingly little guidance in the case law and secondary literature with regard to the appropriate inquiry, and (3) this court has not previously articulated a clear roadmap or set of factors to be applied by trial courts in this context.

In this case, we will provide direction to the trial court and parties, both for the benefit of this litigation and other similar cases. In doing so we will highlight seven factors that a trial court should explicitly consider and balance in ruling on a motion to quash a subpoena duces tecum directed to a third party. In the process we will reiterate our prior caution to trial courts against readily allowing a defendant seeking to enforce such a subpoena to proceed, as was done here, ex parte and under seal.

With regard to the other issues potentially presented by this case, we are generally reluctant to address significant substantive legal issues when, due to underlying factual and related problems, it may prove unnecessary to do so. Here, as we will explain, we are especially disinclined to resolve the important constitutional, statutory, and related issues addressed in the briefs when the underlying subpoena may not be enforceable for other reasons.

Ultimately, we will direct the Court of Appeal to remand this matter to the trial court with directions that the trial court vacate its order denying the motion to quash and conduct further proceedings consistent with the guidelines set forth in this opinion.

I. BACKGROUND AND UNDERLYING PROCEDURE

In Facebook (Hunter), supra, 4 Cal.5th 1245, 233 Cal.Rptr.3d 77, 417 P.3d 725, we addressed issues concerning the propriety of criminal defense subpoenas served on social media entities, including Facebook, seeking restricted posts and private messages of two of their users. We held, in part, that to the extent such a subpoena seeks a communication that had been configured as and remained public, Facebook could not assert the federal Stored Communications Act ( 18 U.S.C. § 2701 et seq. ; hereafter SCA or Act) as a shield to block enforcement of the subpoena. ( Id ., at pp. 1250, 1262–1274, 233 Cal.Rptr.3d 77, 417 P.3d 725.)

At the time when the proceeding in Facebook (Hunter) , supra, 4 Cal.5th 1245, 233 Cal.Rptr.3d 77, 417 P.3d 725 was pending in this court, we granted review in this seemingly similar pretrial criminal discovery matter. In the present case, defendant is charged with shooting and attempting to murder Jeffrey Renteria. Defendant seeks all of Renteria's Facebook communications (including restricted posts and private messages) before and after the shooting.

Defendant argues that he needs all electronic communications by Renteria in order to prepare his defense in two respects: Primarily, he contends, he has a viable claim of self-defense against Renteria, and requires the communications to investigate and present that affirmative defense. Secondarily, or alternatively, he seeks to prepare to impeach the character of the anticipated main prosecution witness against him — the victim, Renteria — if, as expected, Renteria is called by the prosecution at trial.

Defendant asserts that to the extent the SCA allows Facebook to block his subpoena, the Act must be found to violate his federal Fifth Amendment due process rights, along with his Sixth Amendment rights of confrontation, cross-examination, and counsel — and hence the SCA is unconstitutional as applied to him. Defendant recognizes that in People v. Hammon (1997) 15 Cal.4th 1117, 1128, 65 Cal.Rptr.2d 1, 938 P.2d 986, we declined to recognize such constitutional rights to pretrial discovery of statutorily privileged psychotherapy information. Yet, defendant contends, we should now limit or overrule this aspect of Hammon . These are essentially the same constitutional claims and arguments that were presented, but not reached, in Facebook (Hunter), supra, 4 Cal.5th 1245, 233 Cal.Rptr.3d 77, 417 P.3d 725.

The Court of Appeal below, observing that Facebook (Hunter), supra, 4 Cal.5th 1245, 233 Cal.Rptr.3d 77, 417 P.3d 725 was then pending before us, rejected defendant's claims ( Facebook, Inc. v. Superior Court (Touchstone) (2017) 15 Cal.App.5th 729, 739–745, 223 Cal.Rptr.3d 660 ) and denied him pretrial discovery ( id ., at pp. 745–748, 223 Cal.Rptr.3d 660 [exploring optional means by which defendant might obtain the sought information] ). In our subsequent order granting review we directed the parties to address additional issues arising from the briefing and the Court of Appeal's opinion ( id ., at pp. 746–748, 223 Cal.Rptr.3d 660 ) — specifically, whether the trial court might compel Facebook's compliance with the underlying subpoena (or alternatively compel Renteria to consent to disclosure by Facebook), and whether the trial court might compel the prosecution to issue a search warrant on behalf of the underlying defendant.

In May 2018 we permitted the district attorney, the prosecuting authority in the underlying criminal action, to intervene in this proceeding. We later allowed the district attorney to file briefs, and also permitted all parties and amici curiae to file supplemental briefs addressing the effect, if any, of our decision in Facebook (Hunter ), supra , 4 Cal.5th 1245, 233 Cal.Rptr.3d 77, 417 P.3d 725. That briefing in turn spawned two additional potentially dispositive issues: whether Facebook users expansively consent to disclosure of all communications; and whether Facebook's business...

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