Facebook, Inc. v. The Superior Court of the City and County of San Francisco, Derrick D. Hunter, Real Party in Interest

Real parties in interest Derrick D. Hunter and Lee Sullivan

(defendants) were indicted on murder, weapons, and gang-related charges

stemming from a drive-by shooting. Each defendant served a subpoena duces

tecum on one or more of the petitioners, social media providers Facebook,

Inc., Instagram, LLC, and Twitter, Inc. (collectively, providers), seeking both

public and private communications from the murder victim’s and a

prosecution witness’s accounts. Providers, none of whom are parties to the

underlying criminal case, repeatedly moved to quash the subpoenas on the

ground that the federal Stored Communications Act (Act; 18 U.S.C. § 2701 et

seq.) barred them from disclosing the communications without user consent.

2

In the challenged order, the trial court concluded that the Act must yield to

an accused’s due process and confrontation rights, denied the motions to

quash, and ordered providers to produce the victim’s and witness’s private

communications for in camera review. Providers seek a writ of mandate

directing respondent court to quash the subpoenas.

We conclude the trial court abused its discretion. The record does not

support the requisite finding of good cause for production of the private

communications for in camera review. Accordingly, we grant the petition and

direct the trial court to quash the subpoenas.

BACKGROUND

A.

Subject to limited exceptions, the Act prohibits electronic

communication service providers from “knowingly divulg[ing]” the contents of

a user communication. (18 U.S.C. § 2702(a)(1)-(2), (b)-(c); accord, Facebook,

Inc. v. Superior Court (Hunter) (2018) 4 Cal.5th 1245, 1262, 1264-1265

(Hunter II).) Disclosure is authorized if it is made “with the lawful consent of

the originator or an addressee or intended recipient of such communication.”

(18 U.S.C. § 2702(b)(3); Hunter II, supra, at p. 1265.) Other exceptions are

provided for disclosures made to government entities pursuant to a warrant,

court order, or a subpoena. (18 U.S.C. § 2703(a)-(c).) It is undisputed that

the Act prohibits the providers from producing private communications to a

non-governmental entity without the user’s consent. (Hunter II, supra, at pp.

1250, 1290; 18 U.S.C. § 2702(a)(1)-(2), (b)(3).) However, the Act allows a

provider to divulge information about a subscriber, other than the contents of

the communications, “to any person other than a governmental entity.” (18

U.S.C. § 2702(c)(6).)

3

The Act “protects individuals’ privacy and proprietary interests [and]

reflects Congress’s judgment that users have a legitimate interest in the

confidentiality of communications in electronic storage at a communications

facility.” (Theofel v. Farey-Jones (9th Cir. 2004) 359 F.3d 1066, 1072–1073.)

Congress also sought to encourage the use and development of new

technologies by “significantly limit[ing] the potential onus on providers by

establishing a scheme under which a provider is effectively prohibited from

complying with a subpoena issued by a nongovernmental entity—except in

specified circumstances.” (Hunter II, supra, 4 Cal.5th at p. 1290, italics

omitted.)

B.

In June 2013, Jaquan Rice, Jr., was killed and B.K., a minor, was

seriously injured in a drive-by shooting. The car used in the shooting was

identified by surveillance video. The video shows the two shooters in the rear

passenger seats. The driver of the vehicle was not visible on the video.

Witnesses provided inconsistent descriptions of the driver’s gender.

Within minutes, police stopped prosecution witness Renesha Lee

driving the car used during the shooting. She was its sole occupant. Lee and

Sullivan had been dating at that time. When interviewed by police that day,

Lee initially “just made up names and stuff.” Eventually she told the police

that Hunter and his younger brother were among those who had borrowed

her car. Lee did not mention Sullivan’s name until sometime later when she

“ ‘told them the truth’ ”—that Sullivan had been involved along with Hunter

and his brother. Although Lee told police she had not been in the car at the

time of the shooting, one witness identified her as the driver.

4

The police obtained search warrants directed at Rice’s Facebook and

Instagram accounts.1 The prosecution later shared with the defense

information obtained from some (but possibly not all) of Rice’s social media

accounts. The police did not seek search warrants as to Lee.

When questioned by police, Hunter’s 14-year-old brother confessed to

the shooting. He told police he shot Rice because Rice had repeatedly

threatened him, both in person and in social media postings on Facebook and

Instagram. Rice also had “tagged” the boy in a video on Instagram that

depicted guns. Hunter’s brother was ultimately tried in juvenile court.

In presenting the case against defendants to the grand jury, the

prosecution contended defendants and Hunter’s brother were members of Big

Block, a criminal street gang, and that Rice was killed because he was a

member of a rival gang, West Mob, and because Rice had publicly threatened

Hunter’s brother on social media. Defendants were charged with the murder

of Rice and the attempted murder of B.K. (Pen. Code, §§ 187, 664.)

2

C.

Before trial, in 2014, Sullivan’s counsel served subpoenas duces tecum

(§ 1326, subd. (b)) on Facebook, Instagram, and Twitter, seeking records from

their social media accounts. As to Facebook and Instagram, the subpoenas

sought “[a]ny and all public and private content,” including user information,

associated email addresses, photographs, videos, private messages, activity

logs, posts, location data, comments, and deleted information for accounts

belonging to Rice and to Lee. Defendants’ subpoenas to Twitter sought



1 Providers asked us to take judicial notice of the warrants. We deny

the request because providers have not shown the warrants were before the

trial court. (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325 [reviewing

courts need not take judicial notice of evidence not before trial court].)

2 Undesignated statutory references are to the Penal Code.

5

similar information as to Lee only. To authenticate the requested records,

Sullivan’s subpoenas also sought the identity of each providers’ custodian of

records.

D.

Providers moved to quash defendants’ subpoenas, asserting the Act (18

U.S.C. § 2702(a)(1)-(2)) bars them from disclosing any communication

(whether configured as public or private) and that no exceptions applied.

Defendants implicitly accepted providers’ conclusion that the Act barred

providers from complying with the subpoenas but nonetheless argued

compliance was required because the Act violated their rights under the Fifth

and Sixth Amendments to the United States Constitution. Sullivan pointed

out Lee was the only witness who implicated him in the shootings. The trial

court (Honorable Bruce E. Chan) accepted the defendants’ constitutional

argument, denied providers’ motions to quash, and ordered providers to

produce the requested communications for in camera review.

Providers sought, and this Division issued, a stay of that order. A

different panel of this court concluded the Act barred enforcement of

defendants’ subpoenas and rejected defendants’ arguments that the Act, as

applied pretrial, violated their rights under the Fifth and Sixth Amendments

to the federal Constitution. (Facebook, Inc. v. Superior Court (Hunter) (2015)

240 Cal.App.4th 203, 215-221, judg. vacated and cause remanded by Hunter

II, supra, 4 Cal.5th at p. 1291.)

Our Supreme Court granted defendants’ petition for review. In Hunter

II, supra, 4 Cal.5th 1245, the court concluded the Act’s lawful consent

exception (18 U.S.C. § 2702(b)(3)) allowed providers to disclose

communications configured by a user to be public. (Id. at p. 1274.) Hunter II

also concluded the pretrial subpoenas were unenforceable under the Act

6

“with respect to communications addressed to specific persons, and other

communications that were and have remained configured by the registered

user to be restricted.” (Id. at p. 1250.) Because production of public

communications could obviate the need for additional communications, and

because the trial court did not develop an adequate record on alternative

ways to obtain communications, the Hunter II court declined to address the

parties’ constitutional arguments and remanded the matter to the trial court.

(Id. at pp. 1250-1251, 1275-1276.)

In particular, the Hunter II court observed: “[I]n the lower court

proceedings the parties did not focus on the public/private configuration

distinction. The trial court made no determination whether any

communication sought by defendants was configured to be public (that is,

with regard to the communications before us, one as to which the social

media user placed no restriction on who might access it) or, if initially

configured as public, was subsequently reconfigured as restricted or deleted.

Nor is it clear that the trial court made a sufficient effort to require the parties

to explore and create a full record concerning defendants’ need for disclosure

from providers—rather than from others who may have access to the

communications. Consequently, at this point it is not apparent that the court

had sufficient information by which to assess defendants’ need for disclosure

from providers when it denied the motions to quash and allowed discovery on

a novel constitutional theory. In any event, because the record is

undeveloped, we do not know whether any sought communication falls into

either the public or restricted category—or if any initially public post was

thereafter reconfigured as restricted or deleted. [¶] In light of our

interpretation of the Act, it is possible that the trial court on remand might

find that providers are obligated to comply with the subpoenas at least in

7

part. Accordingly, although we cannot know how significant any sought

communication might be in relation to the defense, it is possible that any

resulting disclosure may be sufficient to satisfy defendants’ interest in

obtaining adequate pretrial access to additional electronic communications

that are needed for their defense. For these reasons, we will not reach or

resolve defendants’ constitutional claims at this juncture.” (Hunter II, supra,

4 Cal.5th at pp. 1275-1276, italics added, fn. omitted.)

E.

On remand, the trial court heard renewed motions to quash the pretrial

subpoenas. Following Hunter II, the Honorable Tracie Brown ruled that the

Act prohibited pretrial disclosure of private communications. Judge Brown

also ordered Twitter to produce public content to the clerk under seal and

scheduled an evidentiary hearing to address Facebook’s and Instagram’s

argument that producing public content would be unduly burdensome.

In reaching these conclusions, Judge Brown rejected the providers’

argument that defendants could not subpoena public content from third

parties unless there was no other way to obtain it. She also rejected

providers’ argument that the court could order the prosecutor to issue a

search warrant: “[A] warrant can only issue when there’s probable cause that

evidence of a crime can be found in the location to be searched which is

plainly not the situation here.” However, Judge Brown made clear that the

viability of alternatives to the providers’ production of private content was to

be considered at trial.

F.

In 2019, after Judge Brown was elevated to the court of appeal, the

case was assigned to the Honorable Charles Crompton for trial. Providers

renewed their motions to quash the subpoenas to the extent defendants

8

continued to seek disclosure of restricted or private content from Rice’s or

Lee’s accounts. Sullivan opposed the motions, contending that, now that the

case was in a trial posture, his federal due process rights prevailed over

users’ privacy rights. Sullivan also argued the safe harbor provision (18

U.S.C. § 2707(e)(1)) gave providers a complete defense to any liability under

the Act.3

Sullivan filed a declaration under seal that provided further detail on

the defense theory—that restricted communications were needed to

demonstrate Lee’s bias stemming from her jealousy over Sullivan’s

involvement with other women and/or a motive to protect herself from

criminal liability for the shootings. Sullivan provided examples of postings

on what he claimed to be Lee’s Twitter account, such as a photograph of Lee

holding a gun and making specific threats. Providers countered that

defendants’ constitutional arguments were not ripe because any restricted

information from Lee’s account could be obtained from Lee herself, either

voluntarily or as compelled by the trial court, or from the recipients of her

communications.

G.

At hearings in March and May 2019, Judge Crompton indicated he was

considering the matter as if it involved trial subpoenas (even though new

subpoenas had not been served). By May 1, providers had produced all

responsive public communications to the court, but they had not yet been

reviewed by the trial court or by defense counsel. Providers withdrew their



3 “[G]ood faith reliance on . . . [¶] a court warrant or order . . . [¶] is a

complete defense to any civil or criminal action brought under this chapter.”

(18 U.S.C. § 2707(e)(1); accord, McCready v. eBay, Inc. (7th Cir. 2006) 453

F.3d 882, 892.)

9

argument that producing private communications would be unduly

burdensome.

Judge Crompton denied the providers’ motions to quash and ordered

them to produce responsive private communications to the court for in

camera review (the May 1 order). He explained that defendants’ Sixth

Amendment and due process rights were “very important” and that he was

unaware of any viable alternatives “for obtaining this information in the form

and the manner, and [with] the authenticity guarantees that the defendants

would need it.” He added, “to the extent there’s any weighing that can be

done with the withdrawal of the burden argument, I think that these rights

are important enough in this particular case, as I’ve said, given the relevance

of electronic messages that’s been raised in this particular case, with these

particular charges and these particular defendants, it would certainly

outweigh any . . . burden [incurred by providers].”

H.

Providers filed a petition for writ of mandate in this court and sought a

stay of the production order. We initially stayed the production order

pending consideration of the petition. After reviewing the briefs we

requested, we dissolved the stay and issued an order to show cause why the

relief requested in the petition should not be granted. (See Pugliese v.

Superior Court (2003) 146 Cal.App.4th 1444, 1448; Omaha Indemnity Co. v.

Superior Court (1989) 209 Cal.App.3d 1266, 1274.) Defendants filed a return

to the order to show cause and providers filed a reply. Providers also stated

they would not produce private communications, as ordered by the trial court,

because they believed compliance would violate the Act.

10

DISCUSSION

Defendants argue the trial court’s May 1 order is correct because the

Act violates the federal Constitution to the extent it precludes a criminal

defendant from obtaining impeachment evidence or other information

material to the defense. We need not reach the constitutional arguments.

We agree with providers that the May 1 order should be vacated “for the

same reasons that the [Hunter II court] remanded this case in 2018.”

Defendants have not yet presented a ripe conflict between the federal

Constitution and the Act. (See Hunter II, supra, 4 Cal.5th at p. 1275, fn. 31

[ “ ‘[W]e do not reach constitutional questions unless absolutely required to do

so to dispose of the matter before us’ ”].) Because it did not adequately

consider the appropriate factors, including alternatives that would avoid a

constitutional conflict, the trial court abused its discretion when it found good

cause to issue the May 1 order. (See John B. v. Superior Court (2006) 38

Cal.4th 1177, 1186 [abuse of discretion standard applies to discovery orders].)

A.

In Hunter II, our Supreme Court declined to address the same

constitutional arguments at issue here (albeit raised pretrial) because the

conflict potentially could be obviated by providers’ production of public

communications or by obtaining private communications through alternative

means. (Hunter II, supra, 4 Cal.5th at pp. 1275-1276.)

In a footnote at the very end of the opinion, immediately after our

Supreme Court concluded the providers’ undue burden argument was best

addressed on remand, Hunter II states, “The trial court on remand might also

consider two additional and somewhat related legal issues . . . (1) whether a

trial court may compel a witness to consent to disclosure by a provider,

subject to in camera review and any appropriate protective or limiting

11

conditions; and (2) whether a trial court may compel the prosecution to issue

a search warrant under the Act, on behalf of a defendant.” (Hunter II, supra,

4 Cal.5th at p. 1291, fn. 47, italics added.)

Defendants attempt to dismiss our Supreme Court’s concerns

altogether. Specifically, they argue consideration of alternative sources

became a moot issue when providers waived their argument that production

of private content would be unduly burdensome. Defendants are wrong.

Hunter II and other authorities make clear that these factors are part of the

defendants’ good cause showing. (See, e.g., Hunter II, supra, 4 Cal.5th at pp.

1275, 1290, 1291, fn. 47.)

When a criminal defendant requests document discovery from a third

party, the third party responds by delivering the materials to the clerk of the

court. (Pen. Code, § 1326, subds. (b)-(c); Evid. Code § 1560, subd. (b); Kling v.

Superior Court (2010) 50 Cal.4th 1068, 1074.) “[T]he court may order an in

camera hearing to determine whether or not the defense is entitled to receive

the documents.” (Pen. Code, § 1326, subd. (c).) “Th[ese] restriction[s]

maintain[] the court’s control over the discovery process, for if the third party

‘objects to disclosure of the information sought, the party seeking the

information must make a plausible justification or a good cause showing of

need therefor.’ ” (Kling, supra, 50 Cal.4th at pp. 1074-1075.) “Of course, any

third party or entity—including a social media provider—may defend against

a criminal subpoena by establishing that, for example, the proponents can

obtain the same information by other means, or that the burden on the third

party is not justified under the circumstances.” (Hunter II, supra, 4 Cal.5th

at p. 1290, italics added.)

To support the latter proposition, our high court cited City of Alhambra

v. Superior Court (1988) 205 Cal.App.3d 1118, 1134 (City of Alhambra),

12

which discusses factors a trial court must consider and balance when

deciding whether a defendant may obtain discovery of police reports that

might lead to third party culpability evidence. (Id. at p. 1134.) “Specifically,

the court should review (1) whether the material requested is adequately

described, (2) whether the requested material is reasonably available to the

governmental entity from which it is sought (and not readily available to the

defendant from other sources), (3) whether production of the records

containing the requested information would violate (i) third party

confidentiality or privacy rights or (ii) any protected governmental interest,

(4) whether the defendant has acted in a timely manner, (5) whether the time

required to produce the requested information will necessitate an

unreasonable delay of defendant’s trial, (6) whether the production of the

records containing the requested information would place an unreasonable

burden on the governmental entity involved and (7) whether the defendant

has shown a sufficient plausible justification for the information sought.”

(Ibid., italics added and internal citations omitted; cf. Delaney v. Superior

Court (1990) 50 Cal.3d 785, 809-814 [describing similar factors to be balanced

when trial court determines whether accused’s due process right overcomes

immunity created by state newsperson’s shield law].)

Accordingly, the trial court should have considered these factors, to the

extent they are relevant, before finding good cause.

B.

Turning to the factors, we conclude that the trial court did not

adequately explore them, particularly options for obtaining materials from

other sources, prior to issuing its order. Thus, the trial court abused its

discretion.

13

Judge Crompton was principally focused on defendants’ justification for

seeking the private communications. Defendants did make some attempt to

respond to the Hunter II court’s record development concerns—by filing a

sealed declaration from Sullivan’s counsel. The sealed declaration

sufficiently identifies at least one possible direct message (purportedly

originating from Lee) potentially relevant to show her bias. (See Evid. Code,

§ 780.) Thus, the first (adequate description of material) and final (plausible

justification for request) factors weigh in favor of the trial court’s ruling.

With respect to the second factor (availability of material via

alternative sources), Judge Crompton found, “for reasons that I think we’ve

discussed before,” defendants had no viable alternatives to obtain the private

social media communications they sought. The record does not support this

finding.

Preliminarily, providers maintain the “availability via alternative

sources” factor is of elevated importance in this context—where the Act bars

only one source of discovery in certain circumstances, rather than an entire

category of evidence—under the principle of constitutional avoidance. They

emphasize that if the documents an accused seeks are reasonably available

elsewhere (or from the providers with user consent), the Act cannot possibly

conflict with the accused’s constitutional rights by prohibiting him from

obtaining them. (See 18 U.S.C. § 2702(b)(3) [consent may be given by “an

addressee or intended recipient of such communication”]; Hunter II, supra, 4

Cal.5th at pp. 1275, 1290; Facebook, Inc. v. Superior Court (2017) 15

Cal.App.5th 729, 745, fn. 6 (Touchstone), rev. granted Jan. 17, 2018, S245203

[“we fail to see how the [Act] impacts his right to present a complete defense

where the evidence he seeks is available through the victim”].) We anticipate

our high court will soon specify the precise role this factor plays in

14

Touchstone. Here, however, we need not decide whether it serves as a

threshold requirement or just one of several factors to be balanced because,

even under a balancing test, we conclude the trial court gave this factor (and

others) inadequate attention.

We are now concerned primarily with Lee’s private communications,

not Rice’s. It was undisputed below that defendants already had access to at

least some of Rice’s private communications, which the People obtained via

warrant. Yet, in these writ proceedings, defendants failed to address the

need for further discovery (from providers) of Rice’s private content, even

after we sought supplemental briefing requesting support for the trial court’s

May 1 order. By failing to brief the issue, defendants concede providers’

entitlement to relief as to Rice’s accounts.

As to alternative ways to obtain private communications from Lee, we

agree with the trial court that ordering the People to issue a search warrant

was not a viable alternate route to obtain the identified private content. (See

§ 1525 [“A search warrant cannot be issued but upon probable cause,

supported by affidavit”]; Illinois v. Gates (1983) 462 U.S. 213, 238 [probable

cause means “a fair probability that contraband or evidence of a crime will be

found in a particular place”].)

However, we reject Sullivan’s assertion that it would be futile to try to

obtain the communications from Lee because (Sullivan presumes) she will

invoke the Fifth Amendment. This is speculation. When the trial court

entered its May 1 order, Sullivan had shown no recent effort to subpoena Lee,

and Lee had not taken the stand. Moreover, the trial court should have

considered whether it could order Lee to consent to disclosure by providers.

(See Hunter II, supra, 4 Cal.5th at p. 1291, fn. 47; Touchstone, supra, 15

15

Cal.App.5th at p. 746, rev. granted [“the trial court can order the account

holder to consent to the disclosure by Facebook under section 2702(b)(3)”].)

Furthermore, Sullivan fails to explain why he cannot obtain either

consent to the providers’ production or the private communications

themselves directly from the recipient of Lee’s messages. In the sealed

declaration, Sullivan’s defense counsel identifies the recipient of a key

communication by name. If a recipient consents to production of private

content by providers (who have preserved the content of Lee’s account), both

the conflict with the Act and Sullivan’s concerns regarding authentication

and spoliation are avoided. (18 U.S.C. § 2702(b)(3); Touchstone, supra, 15

Cal.App.5th at p. 737, rev. granted [“under section 2702(b)(3), anyone can

seek the contents of private electronic communications by obtaining the

consent from the originator of the communication . . . , or any addressee or

intended recipient of the communication” (italics added)].)

Finally, the trial court made no effort to evaluate Sullivan’s continuing

need for private content after the public content was produced. On May 1,

neither the trial court, nor defense counsel, had reviewed the public in

camera production. The sealed declaration from Sullivan’s counsel was filed

almost two months before the May 1 hearing. Thus, it was impossible for

defense counsel to reassess Sullivan’s need for Lee’s private communications

in light of what had already been produced. In other words, we do not know

whether providers had already produced the key communication identified in

the sealed declaration, or comparable communications, as part of their public

production. We question how the trial court could properly balance all the

good cause factors, including Lee’s privacy interests and the other policies

served by the Act, without any review of what had already been produced.

16

In sum, the trial court did not follow our Supreme Court’s instructions

to consider all the relevant factors (Hunter II, supra, 4 Cal.5th at pp. 1275-

1276, 1290) and, instead, appears to have focused solely on Sullivan’s

justification for discovery. The trial court abused its discretion in finding

good cause to order providers to produce private content from Rice’s and Lee’s

accounts for in camera review. We need not address the parties’ additional

arguments.

Let a peremptory writ of mandate issue directing the superior court to

vacate its May 1, 2019 order and to enter a new and different order granting

providers’ motion to quash.