Date: 03-10-2020

Case Style:

Case Number: A157143

Judge: Burns, J.

Court: California Court of Appeals First Appellate District, Division Five on appeal from the Superior Court, County of San Francisco

Plaintiff's Attorney: Joshua S. Lipshutz, Joshua S. Lipshutz, John Randall Tyler, Anna M. Thompson and Michael J Holecek

Defendant's Attorney: Michael J Holecek, Susan B. Kaplan and Bicka Barlow

Description: 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.

Outcome: 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.

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