Subpoena seeking pretrial discovery of victim’s private Facebook communications should have been quashed where content is protected from disclosure under the Stored Communications Act (SCA). Defendant Touchstone was accused of attempting to murder victim Jeffrey R. After the victim posted updates on Facebook about his personal use of guns and drugs, defendant served Facebook with a subpoena for the contents of the victim’s Facebook account. Facebook filed a motion to quash the subpoena on the ground the SCA (18 U.S.C. § 2701 et seq.) prohibited such disclosure. The trial court denied the motion and ordered Facebook to produce the records for in camera inspection. Facebook filed a petition for a writ of mandate directing the trial court to vacate its order. Held: Petition granted. The issue of whether a criminal defendant has a constitutional right to obtain social media records from an electronic communication or remote computing service is currently under review by the California Supreme Court. (See Facebook, Inc. v. Superior Court (2015) 240 Cal.App.4th 203, review granted 12/16/2015 (S230051/A144315).) Subject to limited exceptions inapplicable here, the SCA expressly prohibits electronic service communication providers like Facebook from “knowingly divulg[ing]” the contents of a communication in electronic storage. (§ 2702, subd. (a)(1) & (2).) Defendant argued his constitutional right to confrontation and cross-examination should prevail over the victim’s privacy rights under the SCA. However, a criminal defendant has no general constitutional right to discovery, and the rights of confrontation and cross-examination under the Sixth Amendment do not extend to pretrial disclosure of privileged information. (People v. Hammon (1997) 15 Cal.4th 1117.) Absent a change in the law, the confrontation clause does not mandate disclosure of otherwise privileged information for purposes of defendant’s pretrial investigation of the prosecution’s case.

The SCA does not violate defendant’s right to due process or compulsory process. Defendant argued the SCA must allow a mechanism for defendants to gain access to the same records routinely obtained by the prosecution and the government. The court disagreed, observing a criminal prosecution is not a “symmetrical proceeding,” and a defendant’s right to present relevant evidence is not unlimited. While defendant argued the statute is unconstitutional, he did not show the SCA violates a fundamental conception of justice: he seeks pretrial discovery, and a criminal defendant does not possess a general constitutional right to discovery. Moreover, there are other options available to defendant to obtain the victim’s social media records. For example, the trial court can order the account holder, here the victim, to consent to disclosure by Facebook. (See § 2702, subd. (b)(3).) Because the trial court’s order cannot be enforced without compelling Facebook to violate the SCA, thereby running afoul of the supremacy clause, the petition for writ of mandate was granted.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D072171.PDF