Facebook, Inc. v. Superior Court of City and County of San Francisco (2020) 46 Cal.App.5th 109

In a recent case out of San Francisco County, the court of appeals concluded that the trial court failed to adequately consider all of the relevant factors under the Stored Communications Act to show good cause to allow the disclosure of private social media communications.

Defendants were indicted on gang-related charges related to a drive by shooting. Defendants served a subpoena duces tecum on multiple social media providers including Facebook, Twitter, and Instagram, seeking public and private communications from the social media accounts of both the murder victim and a witness. The providers moved to quash the subpoenas, arguing that the federal Stored Communications Act barred them from disclosing the communications to a non-governmental entity without the consent of the user, addressee, or intended recipient. 

The trial court found that the defendants’ constitutional rights of due process and right to confrontation overrode the protections afforded under the SCA.  Consequently, the provider’s motions to quash were denied—and the providers were ordered to produce the public and private communications. The court of appeal disagreed however, and concluded there was no finding of good cause to order the providers to produce the private communications. Because defendants did not present a ripe conflict between the Constitution and the Act, the Court of Appeals did not believe it was necessary to address the constitutional argument posed by the defense. 

The Court of Appeals concluded that the trial court did not consider all the relevant factors for good cause, and instead incorrectly focused only on the justification for the requested discovery. The court cited City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1134, a case that discussed the factors a trial court must consider when deciding whether or not a defendant is allowed discovery of evidence that might lead to third party culpability. Those factors are: 

1. Whether the material is adequately described;
2. If the material is reasonably available to the governmental entity from which it is sought and not available from other sources;
3. If production of the material would violate third party confidentiality or privacy rights or any protected governmental interest;
4. Whether or not defendant acted in a timely manner;
5. Whether production would cause an unreasonable delay in defendant’s trial;
6. If production would be an unreasonable burden on governmental entity involved; and
7. If defendant has shown a sufficient plausible justification for the information sought.

Here, the trial erroneously considered only the first and seventh factors. Moreover, the trial court failed to adequately address the second factor with regard to availability of material requested via alternative sources. 

Defendant Sullivan argued an inability to obtain the requested communications from the witness, Lee, herself because they incorrectly presumed Lee would invoke the Fifth Amendment. The court of appeals found this to be pure speculation. Significantly, the trial court failed to consider (1) if Lee’s social media communications could be obtained from Lee, or from any recipient of the communications and, (2) if the trial court would be able to order Lee to consent to disclosure by the providers.

Before ordering the social media providers to turn over private communications, in violation of the protections offered by the Stored Communications Act, the trial court should have considered all of the good cause factors, with particular emphasis on the ability to obtain the communications by other means. 

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