San Francisco Criminal Lawyer BlogSocial Media Companies are Not Immune to Subpoenas
Snap, Inc. v. Superior Court of San Diego County (Cal. Ct. App., July 23, 2024, No. D083446) 2024 WL 3507024, at *1
Summary: This writ presented a question of first impression that was raised but not decided by the California Supreme Court in Facebook, Inc. v. Superior Court (2020) 10 Cal.5th 329, 267 Cal.Rptr.3d 267, 471 P.3d 383 (Touchstone): Whether the social media companies like Meta, Inc. (Meta) and Snap, Inc. (Snap), which access their customer’s data for their own business purposes, excludes them from the limitations imposed on the disclosure of information by the Stored Communications Act (18 U.S.C. § 2701 et seq., SCA or the Act). The Court concluded that the companies’ ability to access and use their customers’ information takes them outside the limitations of the Act.
Pina, real party in interest, was charged with the murder of his brother, Samuel, and the attempted murder of another man, and awaited trial on the charges. Pina’s defense counsel issued criminal defense subpoenas to Snap, the corporation which operates Snapchat, and Meta, the corporation that operates Facebook and Instagram, seeking social media posts and other communications made by Samuel on those platforms in the two years prior to his death. Pina sought this material because he believed it may contain information showing Samuel’s violent character.
Snap and Meta filed motions to quash the subpoenas and the court denied both motions.
Snap and Meta petitioned for writs of mandate staying the trial and vacating the trial court’s order. The Court of Appeal issued an order to show cause and stayed the trial court proceedings. Snap and Meta argued that the trial court’s order requiring them to disclose the requested communications and data to Pina is precluded by the SCA and that the trial court failed to make the good cause findings required for this pretrial discovery under Touchstone.
The Court held that the trial court conducted a sufficient analysis of good cause, that the facts presented by Pina supported the court’s determination that good cause existed, and that because the business models of Snap and Meta provide them with the ability to access and use the information sought by Pina, the SCA does not foreclose production of that information. Pursuant to Penal Code section 1326, subdivision (d), the material should first be produced to the trial court in camera for the court to determine whether the material is relevant to Pina’s defense and if it should be produced to him.
Law Governing a Motion to Quash a Subpoena Duces Tecum
Under Penal Code section 1326, subdivision (a), various officials or persons—including defense counsel, and any judge of the superior court—may issue a criminal subpoena duces tecum, and, unlike civil subpoenas, there is no statutory requirement of a “ ‘good cause’ ” affidavit before such a subpoena may be issued. But a criminal subpoena does not command, or even allow, the recipient to provide materials directly to the requesting party. Instead, under subdivision [(d)] of section 1326, the sought materials must be given to the superior court for its in camera review so that it may ‘determine whether or not the [requesting party] is entitled to receive the documents.’ (Pen. Code, § 1326, subd. [(d)]; see also People v. Blair (1979) 25 Cal.3d 640, 651, 159 Cal.Rptr. 818, 602 P.2d 738 [such materials cannot legally be given directly to the requesting party].)” (Touchstone, at pp. 343–344, 267 Cal.Rptr.3d 267, 471 P.3d 383.)
Under a motion to quash the defendant must show ‘some cause for discovery other than “a mere desire for the benefit of all information.” ’ ” (Touchstone, supra, 10 Cal.5th at p. 344, 267 Cal.Rptr.3d 267, 471 P.3d 383; see also People v. Madrigal (2023) 93 Cal.App.5th 219, 256, 310 Cal.Rptr.3d 621 (Madrigal)
Seven factors to establish good cause
In City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 252 Cal.Rptr. 789 (Alhambra) the Court set forth the seven factors for good cause for discovery
1. The defendant must show a “ ‘ “plausible justification” ’ for acquiring documents from a third party by presenting specific facts demonstrating that the subpoenaed documents are admissible or might lead to admissible evidence that will reasonably ‘ “assist [the defendant] in preparing his defense.” ’ ” (Touchstone, at p. 345, 267 Cal.Rptr.3d 267, 471 P.3d 383.)
2. Material sought must be “adequately described and not overly broad.” (Touchstone, supra, 10 Cal.5th at p. 346, 267 Cal.Rptr.3d 267, 471 P.3d 383.)
3. The court must consider if “the material [is] ‘reasonably available to the … entity from which it is sought (and not readily available to the defendant from other sources).” (Ibid.)
4. The court must consider whether “production of the requested materials violate a third party’s ‘confidentiality or privacy rights’ or intrude upon ‘any protected governmental interest.’ ” (Ibid.)
5. The request must be timely, and not premature. (Id. at p. 347, 267 Cal.Rptr.3d 267, 471 P.3d 383.)
6. The court must consider whether “the ‘time required to produce the requested information … [would] necessitate an unreasonable delay of defendant’s trial.’ ” (Ibid.)
7. The court must assess whether “ ‘production of the records containing the requested information … place[s] an unreasonable burden on the [third party].’ ” (Ibid.)
A trial court’s decision denying a motion to quash a criminal subpoena is reviewed for abuse of discretion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 534, 113 Cal.Rptr. 897, 522 P.2d 305.)
Here, the trial court’s determination that the material at issue is not available from other sources was a reasonable finding, and not an abuse of the court’s discretion. This factor also supports the court’s conclusion that Pina provided good cause for the information sought in his subpoenas to Snap and Meta that may contain information relevant to Pina’s defense to the murder of his brother.
Procedure for Disclosure
The procedure for Pina to obtain this information does not require Snap and Meta to produce the material directly to Pina. Rather, under “subdivision [(d)] of section 1326, the sought materials must be given to the superior court for its in camera review so that it may ‘determine whether or not the [requesting party] is entitled to receive the documents.’ (Pen. Code, § 1326, subd. [(d)]; see also People v. Blair (1979) 25 Cal.3d 640, 651, 159 Cal.Rptr. 818, 602 P.2d 738 [such materials cannot legally be given directly to the requesting party].)” (Touchstone, supra, 10 Cal.5th at p. 344, 267 Cal.Rptr.3d 267, 471 P.3d 383.) Accordingly, we direct the trial court to issue a modified order requiring the petitioners to provide the requested material to the trial court for its consideration of whether or not the material should be provided to Pina as relevant to his defense.
The SCA Does Not Apply to the Subpoenaed Material
The SCA
Congress enacted the Electronic Communications Privacy Act in 1986. Title II of the law, set out in chapter 121, is often referred to as the [SCA] and addresses unauthorized access to, and voluntary and compelled disclosure of, such communications and related information.
The SCA does not apply here to bar Snap and Meta’s compliance with Pina’s subpoenas based on these third parties’ ability to access and use their users’ content. Although the SCA does not protect the communications at issue here, it does not mean the third party is authorized generally to publicize the information provided to them by their users.
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