FACEBOOK v. S.C.Amicus Curiae Brief of California Attorneys for Criminal Justice and National Association of Criminal Defense LawyersCal.April 12, 2016FLEDWITHPERMISSIUinSupremeCourt Copy =. * IN THE SUPREME COURT OF THE STATE OF CALIFORNIA “s FACEBOOK,INC., INSTAGRAM,LLC, and TWITTER, INC., No. 8230051 Petitioners, 1* D.C.A. Div 5 No.: A144315 VS. S.F.C. S.Ct. SAN FRANCISCO COUNTY SUPERIOR COURT, No.: 13035657 and 13035658 Respondent, Hon. Bruce E. DERRICK D. HUNTERand LEE SULLIVAN, Ghan = * Real Parties in Interest. Lona re § ome Po ee ~ Trey FILEDJOINT APPLICATION OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE AND NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS _ TO APPEARASAMICUS CURIAE ON BEHALF OF REAL PARTIES IN INTEREST PURSUANT TO CALIFORNIA RULE OF COURT, RULE8.520 (f), AND _FrankA. McGuire Clerk BRIEF IN SUPPORT OF REAL PARTIES FEA me Ft APR 12 2016 < DONALDE. LANDIS,JR. (CBN 149006) Monterey County Assistant Public Defender 111 W. Alisal St. ° Salinas, CA 93901 831) 784-5651 andisde@co.monterey.ca.us JOHN T. PHILIPSBORN (CBN 83944) Law Offices of J.T. Philips Civic Center Building 507 Polk Street, Ste. 350 San Francisco, CA 94102 (415 ) 771-3801 philipsbo@aol.com Attorneysfor Amicus Curiae CACJ DAVID M. PORTER(CBN 127024) Office of the Federal Public Defenders 801 I Street, 3rd Floor Sacramento, CA 95814 916) 498-5700 avidPorter@fd.org Attorneyfor Amicus Curie NACDL TABLE OF CONTENTS Table of Authorities... 2.0...cece een ey il Joint Application for Amicus Curiae .... 0.0.0.0... cece eee eee 1 I. JOINT APPLICATION OF CACJ AND NACDL TO APPEARAS AMICUS CURIAE ON BEHALF OF REAL PARTIESIN INTEREST 20.ccce nee nent eneeeneg 2 A. Identification of CACI. «0...eee2 B. Identification of NACDL...........0.. 00.00. eee, 2 C. Statement of Interest ofAmicus Curiae....... 00.0... 0 0 ee, 3 D. Applicationto File........ 0...0.eee 4 I]. BRIEF ON THE MERITS. ........0.0 0.000000 cee eee een 4 A. Introduction... 0...cccece eee ne 4 B. All State Court Judges. Including This State Supreme Court, Have the Authority, Duty, and Responsibility to Rule on the ederal Constitutionality of Federal Statutes Arisingin State Court Proceedings ......... 0.0.0. cc cee eee cee ueeeee 7 C. People vy. Hammon, Supra, Should Be Overturned or Limited to Just the Psychotherapist-Patient Privilege................ 11 CONCLUSION..... 0... ccc cece ee eee unt t eee enes 15 Rule 8.204 (c)(1) Certification ....... 0.0000. ce eee 16 Proof of Service ... 0.0... 000.ebeen enn eeeee 17 TABLE OF AUTHORITIES Page FEDERAL CASES Davis v. Alaska (1974) 415 US. 308 20...eens 5 Marbury v. Madison (1803) 1 Cranch 137, 2 L.Ed. 60 ............... 9 Pennsylvania v. Richie (1987) 480 U.S. 39 22.eeee 5 State ofOhio ex rel. Bryant v. Akron Metropolitan Park Dist., (1930) 281 U.S. 74 ooccceens 9,10 Theofel v. Farey-Jones (9" Cir. 2004) 359 F.3d 1066 .............0. 12 Wardius v. Oregon (1973) 412 U.S.470 2... eecece 5 STATE CASES Barrett v. Rosenthal (2006) 40 Cal.4th 33 20... 0.0.0.0... cc eee 8 Belshe v. Hope (1995) 33 Cal.App.4th 161 ....... 0.0... 2c c eee ee eee 9 California Assn. For Health Servis. At Home v. State Dep’t ofHealth Care ervs. (2012) 204 Cal.App.4th 676 2.0...ceceeae 9 Conrad v. Bank ofAmerica (1996) 45 Cal.App.4th 133 .............. 8 Etcheverry v. Tri-Ag Serv., Inc. (2000) 22 Cal.4th 316 .............. 8 Facebook v. Superior Court (2015) 240 Cal.App.4th 203, review granted December 16, 2016 , 11 Forsyth v. Jones (1997) 57 Cal.App.4th 776 2.02.2... ccc cece eee 8 Homev. State Dep't ofHealth Care Servs. (2012) 204 Cal.App.4th 676 . 9 Irwin v. City ofHemet (1994) 22 Cal.App.4th 507 ..............000. 8 Kling v. Superior Court (2010) 50 Cal.1068 ......... 0.0.02 00 008. 5,6 Miller y. Municipal Court ofCity ofLos Angeles (1943) 22 Cal. 2d 818 2...eeeee 9, 10 Negro vy. Superior Court (2015) 230 Cal.App.4th 879 .............. 11 O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423 ........... 11 People v. Bradley (1969) 1 Cal.3d 80 1.0.0...eeeee 8 li People v. Hammon (1997) 15 Cal.4th 1117 ........... 5, 6, 7, 12, 13, 15 People v. Western Union Tel. Co., 70 Colo. 90, 198 P. 146, IS A.L.R. 326 2.0... ee eee eee 9 Pitchess v. Superior Court (1974) 11 Cal.3d 531 ..........0..00.0.. 5 Roberts v. City ofPalmdale (1993) 5 Cal.4th 363 ...............00. 13 Rohr Aircraft Corp. v. County ofSan Diego (1959) 51 Cal.2d 759 ..... 8 Valley Bank ofNevada v. Superior Court (1975) 15 Cal.3d 642 ...... 13 Wagnerv. Apex Marine Ship Mgmt. Corp. (2000) 83 Cal.App.4th 1444 . 8 FEDERAL CONSTITUTION U.S.Const. art. VI, cl.2ceceteen en es 8 U.S. Const., Fifth Amendment ........... 0000... e eee eee nee 4 U.S. Const., Sixth Amendment ......... 0.0.0... 0c cece eee eee ean 5 U.S. Const., Fourteenth Amendment ..........0........ 0000. c ea, 4 STATE STATUTE Penal Code § 1326 0...ecccete eens 4,5 Rules of Court, Rule 8.520 2.0.00...cena 1 ill IN THE SUPREME COURTOF THE STATE OF CALIFORNIA FACEBOOK,INC., INSTAGRAM,LLC, and TWITTER, INC., No. 8230051 Petitioners, 1° D.C.A. Div 5 No.: A144315 VS. S.F.C. S.Ct. SAN FRANCISCO COUNTY SUPERIOR COURT, No.: 13035657 and 13035658 Respondent, Hon. Bruce E. DERRICK D. HUNTER and LEE SULLIVAN, Chan Real Parties in Interest. JOINT APPLICATION OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE AND NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERSTO APPEAR AS AMICUS CURIAE ON BEHALF OF REAL PARTIESIN INTEREST PURSUANT TO CALIFORNIA RULE OF COURT, RULE8.520 (f), AND BRIEF IN SUPPORT OF REAL PARTIES TO: THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: California Attorneys for Criminal Justice (hereafter “CACJ”) and the National Association of Criminal Defense Lawyers(hereafter “NACDL”) jointly apply, under California Rules of Court, Rule 8.520 (f), for permission to appear as amicus curiae on behalf of Real Parties in Interest (hereafter “real parties”). Underthe California Rules of Court, Rule 8.520 (f), this brief may be filed by permission of the Presiding Justice of this Court, based on a showing of good cause. CACJ and NACDLhasfiled this brief within 30 days ofreal parties’ Replyand respectfully tenders its showing of good cause below. L JOINT APPLICATION OF CACJ AND NACDL TO APPEAR AOLECES CURIAE ON BEHALF OF REALPARTIESIN A. Identification of CACJ. CACJis a nonprofit California corporation. According to Article IV of its bylaws, CACJ was formedto achieve certain objectives including“to defend the rights of persons as guaranteed by the United States Constitution, the Constitution of the State of California and other applicable law.” CACJ is administered by a Board of Governors consisting of criminal defense lawyers practicing within the State of California. The organization has approximately 1,700 members,primarily criminal defense lawyers practicing before federal and state courts. These lawyers are employed throughoutthe State both in the public and private sectors. CACJ has appeared before the United States Supreme Court, the California Supreme Court, and the Courts of Appeal in California on issues of importance to its membership. CACJ’s appearance as an amicuscuriae before California’s reviewing courts has been recognized in a numberof published decisions. The undersigned, Donald E. Landis, Jr., at the request of John T. Philipsborn, Chair of the Amicus Committee of CACJ, certifies to this Court that no party involvedin this litigation has tendered any form of compensation, monetary or otherwise, for legal services related to the writing or productionofthis brief, and additionally certifies that no party to this litigation has contributed any monies, services, or other form of donation to assist in the production ofthis brief. B. Identification of NACDL. NACDLis a nonprofit voluntary professional bar association that works on behalf of criminal defense attorneys to promote justice and due process for those accused of crime or misconduct. NACDL wasfounded in 2 1958. It has a nationwide membership of approximately 9000 members, and up to 40,000 including affiliates’ members. NACDL’s members include private criminal defense lawyers, public defenders, military defense counsel, law professors, and judges. NACDLis the only nationwide professional bar association for public defenders and private criminal defense lawyers. The American Bar Association recognizes NACDLas an affiliated organization and awardsit representation in the ABA House of Delegates. NACDLis dedicated to advancing the proper, efficient, and just administration ofjustice and files numerous amicusbriefs each yearin this Court and other federal and state courts, addressing issues of broad importance to criminal defendants, criminal defense lawyers, and the criminal justice system as a whole. The undersigned, Donald E. Landis,Jr., at the request of David M. Porter, Co-Vice Chair of the Amicus Committee ofNACDL,likewise certifies to this Court that no party involvedin this litigation has tendered any form of compensation, monetary or otherwise, for legal services related to the writing or production ofthis brief, and additionally certifies that no party to this litigation has contributed any monies, services, or other form of donation to assist in the production ofthisbrief. C. Statement of Interest ofAmicus Curiae. CACJ and NACDLhaveboth a general and specific interest in the subject matter ofthis litigation. First, CACJ and NACDL’s memberships consists largely of criminal defense lawyers who practice either with defender offices or in private practice. CACJ and NACDL’s memberships are regularly involved in state and federal constitutional and statutory criminal discovery issues that affect the defense of those charged with crimes across this State. As a result, CACJ and NACDL’s memberships have an interest in ensuring the vitality of the constitutionally protected 3 right to trial, counsel, and confrontation that is ensured by a full and vigorous investigation, discovery search, case preparation,andtrial presentation. Second, CACJ and NACDLhavea specific interest in the issues presented here, as someofthe realparties in interest are represented by lawyers who are CACJ and/or NACDL members. CACJ and NACDL were contacted by lead counsel for real parties and requested to assert the interests of the defense bar, generally, as it is represented by CACJ and NACDLand its memberships, in the issues presented by this litigation. D. Application to File. For the reasons explained immediately above, CACJ and NACDL respectfully urge this Court to find that there is sufficient good cause for this Court to permit CACJ and NACDLtofile a brief on the merits. Il. BRIEF ON THE MERITS A. Introduction. CACJ and NACDLsubmit the following arguments in support of the positions taken byreal parties in their Petition for Review in this Court and in their defense of respondentsuperior court’s order from social media’s sustained Writ of Mandate in the First District Court of Appeal, Division Five. Realparties and fellow amici have already provided a thorough and expert analysis ofall the potential arguments supporting respondent court’s order authorizing production of the Facebook, Instagram, and/or Twitter account contentof the identified persons pursuant to a lawfully served criminal subpoena duces tecum under Penal Code § 1326 et.seq. in anticipation of real parties’ upcoming murdertrial. CACJ and NACDL agree with andaffirm their arguments that the due process clause of the Fifth and Fourteenth Amendments and the confrontation and competency of 4 counsel clauses of the Sixth Amendmentensurereal parties’ use ofa subpoenato produce social media records regardless of whether a general constitutional right to pretrial discovery has been recognized yet (Pennsylvania v. Richie (1987) 480 U.S. 39, 56; People v. Hammon (1997) 15 Cal.4" 1117, 1131 (conc. opn. of Mosk, J.)); that federal “privacy” statutes may not infringe, and in fact must bow to real parties’ federal constitutional right to obtain such relevant, material, and potentially exculpatory discovery via subpoena (Davis v. Alaska (1974) 415 U.S. 308, 318; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536); that criminal defendants must have reciprocal avenuesavailable to obtain relevant discovery post indictmentthat the prosecution has pre-indictment (Wardius v. Oregon (1973) 412 U.S. 470, 472); that the State’s post (probable cause) indictment criminal subpoena duces tecum process under Penal Code § 1326 et.seg. requiring production directly to the trial court for in camera inspection for a relevancy, reasonableness, and privacy determinations before receipt by the defenseis parallel to and provides the same adequate Court oversight as the State’s pre indictment search warrant process (Penal Code § 1326; Kling v. Superior Court (2010) 50 Cal.1068, 1074); and finally that it is specious to require real parties to first seek the information from the social media users where one of the users is dead, the other cannot be found by any party, another has and will assert her right against self- incrimination, and it takes an advanced degree in computer programming to figure out how to download with any reliability the totality of one’s user profile in today’s advancedandrich social media world. Butlike fellow amicus California Public Defender’s Association, CACJ and NACDLstrives for focused advocacy, and as such, we will not rehash these already excellent arguments with our additional analysis. Instead, CACJ and NACDLwill address whatsocial mediastill is not 5 understanding as displayed by their latest Answer, that this State Supreme Court cannotrule on the federal constitutionality of a federal statute as applied in a state court criminal proceeding where the United States Supreme Court has yet to rule (Answer, p. 15), and that social media content does notrise to the level of privileged information protected until trial as defined bythis Court ruling in People v. Hammon (1997) 15 Cal.4th 117. Missing the significance of the lower court’s findings regarding federal constitutional authority to compel discovery despite the federal Stored Communications Act’s (hereafter “SCA”) (18 U.S.C. § 2701, et.seq.) prohibition - albeit at trial (Facebook v. Superior Court (2015) 240 Cal.App.4th 203, 226, fn. 17, review granted December16,, 2016),' social media insistently continues to arguethatit is simply a matter of federal supremacy that respondent court must enforce the SCA’s alleged ban on subpoenasto obtain digital communicationsin any court proceedings. (Answer, p. 9-13.) Falling downits own rhetorical rabbit hole, social media goes as far as to even suggest that State prosecuting agencies may be limited in the introduction of its evidence, be restricted by other undefined remedies, or pay the ultimate price of being forced to set aside the indictment and dismiss the case,all in an effort to maintain SCA’s sanctity. (Answer,p. 10.) However, as real parties correctly argue, it is not an issue of federal supremacy, becausereal parties do not invokestate law to defeat application of the SCA.(Reply, p. 4.) Rather, they invoke the federal constitution, which can and doesprevail over a federal statute when that | Amicuscites to the underlying case’s official citation despite being depublished upon acceptance of Review by this Court to provide consistency, clarity, and ease of page references. statute impedesthe criminal defendant’s federal constitutional rights while even in state court proceedings. (Reply, p. 5.) Indeed, respondent court — as do all state courts — has the legal authority, unfaltering duty, and ultimate responsibility to rule on the federal constitutionality of any federal statute that arising in the context of a state court proceedings, andthat is precisely what respondentcourt did here when weighing real parties’ federal constitutional rights to due process, confrontation, and competent counsel against the nonparty witnesses/victims’ conflicting federal statutory protections under SCA. Likewise, real parties correctly advocate that People v. Hammon's ruling denying pretrial access to privileged psychotherapist-patient evidence should not be expanded to include muchlesssensitive social media records, andif it does, real parties rightly question whether Peoplev. Hammon, supra, should be overturned, because it just does not promote the orderly administration ofjustice. This review is eighteen yearsin the making,in that People v. Hammon, supra, has been andis simply unworkable in the real world of overwhelmedcourts, stretched prosecution offices, and under-resourced public defender offices and/or private criminal defense attorneys, all with struggling budgets and limited manpowerto get investigation completed andtrial preparation done so that everyone may confidently announceready for trial and actually havethat trial go. B. All State Court Judges, Including This State Supreme Court, Have the Authority, Duty, and Responsibility to Rule on the Federal Constitutionality of Federal Statutes Arising in State Court Proceedings. Real parties have thoroughly presented the significant federal and state legal authority permitting all courts in this country to uphold the federal constitution in its proceedings. However, CACJ and NACDL would like to further accent the rich legal history in this State regarding this awesome responsibility. “While decisions of the United States Supreme Court are binding on state courts on federal questions [U.S.Const.art. VI, cl. 2], ‘the decisions of the lower federal courts, while persuasive, are not binding on [state courts]. [Citation.] Thus, in the absence of a controlling United States Supreme Court opinion, [state court judges] make an independent determination of federal law.” (Wagnerv. Apex Marine Ship Mgmt. Corp., (2000) 83 Cal.App.4th 1444, 1451, as modified on denial of reh'g (Oct. 27, 2000); Forsyth v. Jones (1997) 57 Cal.App.4th 776, 782-83 [same and “the presence or absence ofa decision by the Ninth Circuit on this issue is not determinative”; People v. Bradley (1969) 1 Cal.3d 80, 86 [sameandstate courts “are not bound by the decisions of the lower federal courts even on federal questions”]; /rwin v. City ofHemet (1994) 22 Cal.App.4th 507, 520, fn. 8 [same and “[w]here the federal circuits are in conflict, the decisions of the Ninth Circuit are entitled to no greater weight than those of other circuits]; Barrett v. Rosenthal (2006) 40 Cal.4th 33, 58 [“[w]here lower federal precedents are divided or lacking, state courts must necessarily make an independentdetermination of federal law [citation], but where the decisions of the lower federal courts on a federal question are ‘both numerousand consistent,’ [state courts] should hesitate to reject their authority”]; Rohr Aircraft Corp. v. County ofSan Diego (1959) 51 Cal.2d 759, 764 [‘‘[a]ny rule which would require the state courts to follow in all cases the decisions of one or more lower federal courts would be undesirable, as it would have the effect of binding the state courts where neither the reasoning nor the numberof federal cases is found persuasive. Such a rule would not significantly promote uniformity in federal law, for the interpretation of an Act of Congress by a lower federal court does not bind other federal courts except those directly subordinatetoit. 8 (citations)”]; Conrad v. Bank ofAmerica (1996) 45 Cal.App.4th 133, 150 [same]; Etcheverry v. Tri-Ag Serv., Inc. (2000) 22 Cal.4th 316, 320-21 [same]; Belshe v. Hope (1995) 33 Cal.-App.4th 161, 171 [federal precedents are lacking on this question andthis court is free to adopt its own interpretation”); California Assn. for Health Servs. at Homev. State Dep't ofHealth Care Servs. (2012) 204 Cal.App.4th 676, 684 [‘[i]In the absence of controlling authority from the United States Supreme Court, [state courts] make an independent determination of federal law”].) Likewise, in enacting a statutes wherestate courts possess jurisdiction to enforceit, the United States Congress may not at the same time foreclose state courts from considering the federal constitutionality of the act, because state court judges may not enforce federal statutes whose terms are clearly unconstitutional. (Miller v. Municipal CourtofCity ofLos Angeles (1943) 22 Cal. 2d 818, 827-829.) In Miller v. Mun. Court ofCity ofLos Angeles; supra, at p.p. 827-29, the California Supreme Court considered whether “a state court upon which, if the contentionsofthe petitioner and the intervenerare correct, has been conferred jurisdiction to pass upon consumeractions, be foreclosed by congressional mandate from considering the constitutionality of the act whichit is to enforce.” The Supreme Court concludedthat “if Congress,in enacting the Emergency Price Control Act, so intendedtorestrict the jurisdiction of the courts to whichit delegated the duty to entertain such actions, there would be considerable doubt as to the statute’s validity, for the decisionsindicate that, underthe constitutional provision, the judge ofa state court may not enforcea statute whose termsare clearly unconstitutional. See Marbury v. Madison, | Cranch 137, 2 L.Ed. 60; People v. Western Union Tel. Co., 70 Colo. 90, 198 P. 146, 15 A.L.R.326; ef. State ofOhio ex rel. Bryant v. Akron Metropolitan Park Dist., 281 U.S. 9 74, 50 S.Ct. 228, 74 L.Ed. 710, 66 A.L.R. 1460.” bid.) The Supreme Court was concernedthat, “the question of whetherthe act, as applied to the individual, conformsto constitutional due process in giving the one regulated adequate notice of the existence of the order for which enforcement is sought and sufficient opportunity to be heard or to exhaust his administrative remedy, under the facts of the particular case, is one which a court, particularly in a criminal proceeding, would be reluctant to ignore.” (/bid.) Of course, at no point has social media offered any United States Supreme Court authority that directly addresses the federal constitutionality of the SCAas it relates to criminal defendants seeking social media content by way of subpoena, and any federal appellate and/or district court citations providedare all over the map on this novel and quickly growing phenomenonandlegal conflict. The SCA itself was enacted over 29 years ago when no one even knewor could really contemplate how huge the social media way oflife would becomein this twenty-first century or what Facebook, Instagram, and/or Twitter were, and the United States Congress has donelittle to update a very dated andlegally insufficient federal statute in light of how pervasive the digital world has become. Faced with dead and/or vanished social media users who were of paramount importanceto the prosecution and defense ofreal parties in a life top murder case, respondent court conducted a proper review ofthe corresponding federal and state case law, considered the federal statutory SCAprivacy rights of these social media users, and weighedrealparties’ federal and state constitutional rights to due process, compulsory evidence, competent attorneys, and a speedytrial to ultimately concludethatreal parties should receive this information for presentation at the upcoming jury trial. Respondentcourt possessed the legal authority and took the 10 responsibility to make this very reasonable and measured determination that as framed bythe facts of this case real parties had a federal constitutional right to this social media content despite what petitioners’ argue the SCA prohibits. In no way did respondent court abuseits discretion in rendering this federal constitutional ruling of a federal statute, but instead invokedits constitutional authority as a memberofthe third branch to make such a ruling. The factthat it was a federal constitutional decision affecting a federal statute has no momentto its responsibility. Social media continues to argue that cases like Negro v. Superior Court (2015) 230 Cal.App.4th 879 and O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, have already settled this issue in California, holding that the federal Stored Communications Act preempted civil discovery subpoenasserved on e-mail service providers seeking e-mail documents identifying persons who supplied content. However, these lower court decisions involved only the civil subpoena process where other meansof discovery to the parties exist — interrogatories and depositions — that do not exist in criminal prosecutions. Finally, these cases did not address any federal constitutional issues raised by this case and which are germanetoall state criminal prosecutions. As such, Negro v. Superior Court, supra, and O'Gradyv. Superior Court, supra, should be disregarded. C. People vy. Hammon, Supra, Should Be Overturned or Limited to Just the Psychotherapist-Patient Privilege. Barely acknowledged by social mediain its briefing, the lower court created seminal legal precedent when concluding that criminal defendants possess federal constitutional rights to social media’s information regardless of SCA’s potential statutory prohibition. (Facebook v. Superior Court, supra, at p. 226, fn. 17.) However,in granting social media’s writ quashing real parties’ duly issued subpoenasfor relevant social media records, the 11 S p e e n t l e si ga rat e2 ye s Oe sae lower court restricted this federal constitutional mandate for production to trial only ([bid.), believing the SCA has somehow created a privilege for social media information equal to that afforded sensitive mental health records acknowledgedby this Court in People v. Hammon, supra. In People v. Hammon, supra, this Court barred discovery prior to trial of information shielded by the psychotherapist-patient privilege: “the trial court was not required, at the pretrial stage of the proceedings,to review or grant discovery ofprivileged information in the handsofthird party psychotherapy providers.” (/d., at p. 1119.) Real parties argue, and CACJ and NACDLagrees, that People v. Hammon, supra, should not be expanded to imbuesocial media content with the sameprivileged status as psychotherapist-patient records. Instead, criminal defendants should be constitutionally entitled to pretrial access of these ubiquitous records obtained through respondentsuperior court’s protective in camera subpoenareview process which protects non-party users’ privacy concerns while ensuring criminal defendants receive fair and speedytrials, complete defenses, competent counsel, and full confrontation as guaranteed by Fifth, Sixth and Fourteenth Amendments of the United States Constitution. | The lower court correctly described the SCA as creating a “‘zone of privacy” around protected material to prevent disclosure of private content or the divulging of personal communications. (Facebook v. Superior Court, supra, at p. 212.) Quoting Theofel v. Farey-Jones (9" Cir. 2004) 359 F.3d 1066, 1072-73, that the SCA “reflects Congress’ judgment that users have a legitimate interest in the confidentiality of communication in electronic storage at a communicationsfacility,” the lower court expatiated this confidential protection to that of a legal privilege. The SCA, however, secures confidential information; it does not create any sort of privilege. 12 As aptly noted by amici Los Angeles County Public Defenders Office in its letter supporting review, privileges are created by statute in California. (Letter, p. 4.) Courts are not permitted to create privileges unless some constitutional provision requires them to: “the Legislature has determinedthat evidentiary privileges shall be available only as defined by statute. Courts may notadd to thestatutory privileges except as required by state and federal constitutional law.” (Roberts v. City ofPalmdale (1993) 5 Cal.4th 363, 373 [citations omitted].) “Furthermore, it is clear that the privileges contained in the Evidence Code are exclusive and the courts are not free to create new privileges as a matter ofjudicial policy.” (Valley Bank ofNevada v. Superior Court (1975) 15 Cal.3d 642, 656 [citations omitted].) Federal statutory enactments providing for confidentiality of information do not create privileges, and as such, the SCA doesnotcreate any privilegesat all, but instead only a concern for privacy or confidentiality. Like medical records, not all personal information needs or deserves the samelevel of protection psychiatric records require where one’s deepest, darkest, and most vulnerable thoughts, feelings, and emotions are potentially exposed to harsh public ridicule, condemnation, and exclusion. Some Facebookposts may be potentially embarrassing and somelevel of privacy or confidentiality may be important to maintain whenpossible (even though Facebook does muchto circumventprivacy settings andsell profile information to the highest advertisement bidder). But ubiquitous Facebook postings of one’s vacation or even more cute kittens videos simply do not rise to the same level of protection neededfor legislatively privileged psychiatric records. Furthermore, People v. Hammon’s discovery attrial distinction was and has been a tenuous, unworkable, and untenable process for everyone 13 involved, but prejudicing most harshly the criminal defendant. To be forced to start trial without the most crucial evidence that could makeor break the case, then put a jury on hold while one seeks a subpoena; compelsits physical production; conducts a hearing to determineit’s relevance; reviews the produced records; investigates its content; preparesit for trial; conducts in limine motions to determine admissibility; and then finally introducesit at the resumedtrial to an unhappily delayed jury is completely inefficient and is an affront to true due process anda fairtrial. As the Los Angeles County Public Defender’s Office amici further explainedin its Review letter and as undersigned counsel canattest, trial courts facing the Hammon discovery request from criminal defendants in the middle of trial may deny the motion, grant the motion and grant a mistrial, or grant the motion and continuethe trial, but most often simply denies the motion or grants a short continuance to review the proffered material in the face of an impatient jury and a huge investmentin resources to bring thetrial to fruition. Neither actually promotes the ascertainment of the truth for the State nora fair trial for the criminal defendant, leading to successive reversals on appeal for information the defense is constitutionally entitled to receive, but effectively precluded from presenting given howlate in the gameit is finally produced. Slavishly adhering to this form over function led to the absurd result in this case wheretheparties litigated the social media subpoenaissue literally the day before the trial was to begin, but the lower court steadfastly held to the notion that the proceedings werestill in the pretrial stage, and as such, real parties were not entitled to even begin serving subpoenasfor the highly relevant social media content, let along moveforits production,trial preparation review,and ultimate introduction. Again,this delay makes no sense where the lower court found real parties were constitutionally entitled 14 to the social media content and they are represented by officers of the court who would have honoredany protective orders issued by the respondent trial court and professionally retained these records to protect any nonparty privacy concernsin the lead up to and duringtrial. As such, this Court should overrule People v. Hammon, supra, as applied to facts raised in this case orlimit its holding to only that discovery relating to the Psychotherapist-Patient Privilege and not expandit to include contested social media content. CONCLUSION Forall of the reasons advancedbyreal parties, fellow amici, and as discussed above, undersigned amici respectfully requests that this Court uphold respondent court’s order by grantingreal parties’ Petition for Review and proffered prayers within. Dated: April 6, 2016 Respectfully submitted, aTR. State Bar No. 149006 Attorney for Amicus Curiae CACJ/NACDL 15 RULE8.204 (c)(1) CERTIFICATION I, Donald E. Landis, Jr., declare as follows: I represent petitioner on the matter pending in this court. This Writ of Mandate/Prohibition was prepared in Wordperfect X4, and according to that program’s word count, it contains 4153 words. I declare under penalty of perjury the aboveis true and correct. Executed on April 6, 2016, in Salinas, California. ‘f= DONALD E. LANDIS, JR. State Bar No. 149009 Declarant 16 PROOFOF SERVICE STATE OF CALIFORNIA |) ) § COUNTY OF MONTEREY) I, the undersigned, do herebydeclare: [am employed in the County of Monterey, California. [am over the age of eighteen (18) years; a citizen of the United States; and not a partyto the within action. My business address is: 111 West Alisal Street, Salinas, CA 93901. Onthis date, Wednesday, April 6, 2016, I served the attached JOINT APPLICATION OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE AND NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS TO APPEAR AS AMICUS CURIAE ON BEHALF OF REAL PARTIES IN INTEREST PURSUANT TO CALIFORNIA RULE OF COURT, RULE 8.520(9 .AND BRIEF IN SUPPORT OF REAL PARTIES in case number No. $230051 , lst D-C.A Div 5 No. > AL4315. 8. F.C.S Ct, No.: 13035637 and 13035638: Petitioners vs. SAN FRANCISCO COUNTYSUPERTOR COURT respondent, DERRIK D. HUNTER and LEE SULLIVANonthe interested parties in said cause, as designated below: Said document(s) is/are addressed as follows: X (By U.S. Postal Service) By placing on that date at myplace of business. a true copythereof. enclosed in a sealed envelepe with postage fully prepaid, for collection and mailing with the United States Postal Service where it would be deposited with the United States Postal Service that same dayin the ordinary course of business. Heather Trevisan Janelle Caywood Office of San Francisco County 3223 Webster Stree District Attorney San Francisco, CA 94123 839 Bryan Street Room 322 janelle. caywood @ gmail. com San Francisco , CA 94103 heather.irevisan e stgov.org Susan Kaplan The Hon. Bruce Chan 214 Duboce Street San Francisco Superior Court Dept. 22 San Franeiseo , CA 94103 850 Brvant Street , 3rd Floor sbkap! @vahoo.com San Francisco, CA 94103 James Snell Jose Umali Perkins Cote.Llp 507 Polk Street 3150 Porter Drive San Francisco. CA 9410-4 Palo Alto , CA 94304 17 Court of Appeal, First District , Div. 5 Albert J. Menaster 350 McAllister Street Los Angeles County Deputy Public San Francisco , CA 94102 Defender Attorneys for Amicus Curiae Michael C. McMahon , Chief Deputy 590 Hall of Records 800 S. Victoria Avenue 320 West Temple Street Ventura , CA 93009 Los Angeles , CA 90012 Phone: (805) 477-7114 (213) 974-3002 michael.mcmahon@ventura.org [ declare under penalty of perjury underthe lawsofthe State of California that the foregoing is true and correct, and that this declaration was exec ed on Wednesday,April 6, 2016, at Salinas. California. Q afM84 XRACELInae LEGAL SECRETARY
