California Supreme Court Watch

Jul 31, 2019
#18-19 Facebook, Inc. v. Superior Court, S245203. (D027171; 15 Cal.App.5th 729; San Diego County Superior Court; SCD268262.)

#18-19 Facebook, Inc. v. Superior Court, S245203. (D027171; 15 Cal.App.5th 729; San Diego County Superior Court; SCD268262.) Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. In addition to the issues raised in the petition for review, the court directed the parties to address the following issues: (1) If, on remand and in conjunction with continuing pretrial proceedings, the prosecution lists the victim as a witness who will testify at trial (see Pen. Code, §§ 1054.1, subd. (a)), 1054.7) and if the materiality of the sought communications is shown, does the trial court have authority, pursuant to statutory and/or inherent power to control litigation before it and to insure fair proceedings, to order the victim witness (or any other listed witness), on pain of sanctions, to either (a) comply with a subpoena served on him or her, seeking disclosure of the sought communications subject to in camera review and any appropriate protective or limiting conditions, or (b) consent to disclosure by provider Facebook subject to in camera review and any appropriate protective or limiting conditions? (2) Would a court order under either (1)(a) or (1)(b) be valid under the Stored Communications Act, 18 U.S.C., section 2702(b)(3)? (3) Assuming the orders described in (1) cannot properly be issued and enforced in conjunction with continuing pretrial proceedings, does the trial court have authority, on an appropriate showing during trial, to issue and enforce such orders? (4) Would a court order contemplated under (3) be proper under the Stored Communications Act, 18 U.S.C., section 2702(b)(3)? With regard to questions (1)-(4), see, e.g., O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423; Juror Number One v. Superior Court (2012) 206 Cal.App.4th 854; Negro v. Superior Court (2014) 230 Cal.App.4th 879; and the Court of Appeal decision below, Facebook, Inc., v. Superior Court (Touchstone) (2017) 15 Cal.App.5th 729, 745-748. (5) As an alternative to options (1) or (3) set forth above, may the trial court, acting pursuant to statutory and/or inherent authority to control the litigation before it and to  insure fair proceedings, and consistently with 18 U.S.C. section 2702(b)(3), order the prosecution to issue a search warrant under 18 U.S.C. section 2703 regarding the sought communications? (Cf. State v. Bray (Or.App. 2016) 383 P.3d 883, pets. for rev. accepted June 15, 2017, 397 P.3d 30 [S064843, the state’s pet.]; 397 P.3d 37 [S064846, the defendant’s pet.].) In this regard, what is the effect, if any, of California Constitution, article I, sections 15 and 24?

Review granted: 01/17/2018

See the Court of Appeal Opinion.

Supplemental Briefing Ordered – 07/10/2019: The court directed the parties to brief whether the court should take judicial notice of the underlying preliminary hearing transcript of September 29, 2016 and related exhibits and whether it should unseal the April 21, 2017 declaration and related exhibits (quoting from and presenting copies of public social media posts and conditionally confidential probation reports) on the ground that access by petitioner Facebook, Inc. and intervenor San Diego County District Attorney is necessary to fairly address and resolve whether the underlying subpoena’s request for private and restricted social media communications is supported by good cause.