FACEBOOK v. S.C.

Real Party in Interest, Lee Sullivan, Petition for Review

Cal.October 19, 2015

§230051 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA FACEBOOK,INC.,et al,, Case No. Al44315 Petitioner, (San Francisco Superior Court Nos. 13035657, 13035658) V. SUPERIOR COURT OF THE SUPREME COUR ? STATE OF CALIFORNIA, F | L ED Respondent. OCT 19 2015 DERRICK D. HUNTERand LEE SULLIVAN, Frank A. McGuire Clerk ok Deputy Real Parties in Interest. PETITION FOR REVIEW After Published Opinion by the Court of Appeal, First Appellate District, Division Five Filed September 8, 2015 SUSANB. KAPLAN(CBN:57445) JANELLE E. CAYWOOD(CBN:189980) 214 DuboceStreet San Francisco, CA 94103 Tel. (415) 271-5944 Fax. (510) 524-1657 Email: sbkapl@yahoo.com Email: janelle@caywoodlaw.com Attorneys for Real Party in Interest Lee Sullivan TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES ............ 0c cece eee eee eees iv ISSUE PRESENTED FOR REVIEW ........ 0.0 ccc cece ees 2 STATEMENT OF FACTS AND PROCEDURAL HISTORY .............. 2 WHY REVIEW SHOULD BE GRANTED... 2.0...eeene7 ARGUMENT ....... ce ccc ec ccc ee ee cee ete ee ee eee eee ene e eee 10 I. THE COURT OF APPEAL ERREDIN RULING THAT CRIMINAL DEFENDANTS DO NOT HAVE A CONSTITUTIONAL RIGHT TO PRETRIAL ACCESS TO DISCOVERY OF PRIVATELY HELD, CONFIDENTIAL RECORDS UPON A SHOWING OF GOOD CASE, WHEN THE MATERIALS ARE NECESSARYTO A FAIR TRIAL ....................0505 10 A. California Courts Are Authorized to Interpret the Federal Constitution on the Issue of Whether a Criminal Defendant’s Has A Constitutional Right to Pretrial Access to Social Media Records...... 10 B. Real Party Sullivan’s Due Process Right to a Fair Trial and to Present a Meaningful Defense Requires Access to Social Media Records Before Trial.......... 12 Cc. Denying Pretrial Access to Social Media Records to the Defense, but not Prosecution, Violates the Due Process Clause under Wardius v. Oregon .......... 16 D. The Compulsory Process Clause Compels Pretrial Production of Social Media Records Sought By Third-Party Subpoena .............. 0. eee eee eee20 li TABLE OF CONTENTS (CONT.) E. This Court Should Overrule Hammon, orin the Alternative, Limit Hammon to the Psychotherapy- Patient Records, and Hold that a Criminal Defendant’s Right to Confrontation Under the Sixth Amendment Includes The Right to Pretrial Access to Evidence Necessary to Cross-Examine Witnesses Given the United States Supreme Court Has Not Reached This Issue ........0.eeeeee 24 CONCLUSION .... 2...eceneene eee ene e eens 32 EXHIBITA: Opinion by the Court of Appeal, First Appellate District.........34 ili G TA” TABLE OF AUTHORITIES Cases Page(s) Alford v. Superior Court, 29 Cal.4th 1033(2003)..........cscecec eee eeeeeeeeeeeeeentsstseerene Chambers v. Mississippi, 410 U.S. 284 (1973)... ccc ccccecc eee ee eee eee e et ee nee ne ene ene ene es 15 Davis v. Alaska, 415 U.S. 308 (1974)... ccece cece cece ence esenseenaeteeeneeee . 24 Department ofMotor Vehicles v. Superior Court ofLos Angeles County, 100 Cal.App.4th 363 (2002)...... 0... cece cee eee ee ereeeeen ees .14 Holmes v. South Carolina, 547 U.S. 319 (2006)... 0... cece cece ecec eae e ee easerersesssscssssrssteseeeee LATS Kling v. Superior Court, 29 Cal.4th 1068 (2010)......... cece cece eee eee ee eeeeessteseeeeee 19 Pennsylvania v. Ritchie, A480 US. 39 (1987)... ..ccececec eee ne cece eee ee een cence eee en eaeessenesaes passim People v. Cox, 53 Cal.3d 618 (1991)... cece ce cee een eee tees aeessseesteseesersesseseenesl People v. Doolin, A5 Cal.4th 390 (2009).......cccccececne nee e ec eeceeceesssenesssssenseseseeeee0) People v. Hammon 15 Cal.4th 117 (1997) oo. ceesceesseceseesesscrsssesecseessenseeessenseeeeespassim People v. Memro, 38 Cal.3d 658 (1985)... 0. cece cece eee ee eee ee ee ee ene ee en en taenies 19 iv Pitchess v. Superior Court, 11 Cal. 3d 531 (1974)... cece ence een etna ree enerneeneens 19 Rubio v. Superior Court, 50 Cal. 3d 785 (1990)......:.cscceeceeeeeeeete ese seeeeastetssreeseeserees 14 United States v. Nixon, A18 US. 683(1974)... cece cece eee e nee e sneer eee nea neeeetens21,22 Wardius v. Oregon, A12 U.S. 470 (1973)... ...ccceeceeeeeeeeeeeteessesnecsr sees 16, 17, 20 Washington v. Texas, 388 U.S. 14 (1967)... ..cccccceceec reese eee seen eesasseseeseseeseeesed U.S. v Burr (CCD Va 1807) 25 F. Cas. 30 w..cceeeceseteeetenenersenetsrsesenenenseesncees21,22 Statutes 18 U.S.C. § 2701... cece cece ree ne een e rene renee ne ante n eens nen ennens passim California Penal Code §§ 1326-1327 ..........cccececeee eee ener eee et 18 California Penal Code § 1524 ........c cece cee ee eee eee ee enter ne eeees . 18 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA FACEBOOK,INC.,et al,, Case No. A144315 Petitioner, (San Francisco Superior Court Nos. 13035657, 13035658) Vv. SUPERIOR COURT OF THE STATE OF CALIFORNIA, Respondent. DERRICK D. HUNTER and LEE SULLIVAN, RealParties in Interest. PETITION FOR REVIEW TO: THE HONORABLETANIA CANTIL-SAKAUYE,CHIEF JUSTICE, AND THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Real party in interest, Lee Sullivan, respectfully petitions for review of the published decision of the Court of Appeal, First Appellate District, filed on September8, 2015, granting Facebook,Instagram, and Twitter’s petition for writ of mandate directing the trial court to vacate its January 22, 2015, order denyingpetitioners’ motion to quash the subpoenas duces tecum for the social media records of a witness and alleged victim in a homicide trial. (Exhibit A.) Real parties did not seek rehearing. The review petition is timely. (Cal. Rules of Court, rule 8.500(e).) I ISSUES PRESENTED FORREVIEW 1.) This case presents an issueoffirst impression of statewide importance regarding whethercriminal defendants are constitutionally entitled to pretrial access to social media records sought by subpoena duces tecum that are necessary fora fairtrial, to present a complete defense, and to confront and cross-examine witnesses at jury trial, as guaranteed by Fifth, Sixth and Fourteenth Amendments ofthe United States Constitution, or whether social media records can only be subpoenaed duringtrial as the Court of Appeal held below? 2.) In light of the confusion andlogistical problemscreated in the wake ofPeople v. Hammon (1997) 15 Cal.4th 117, should this Court consider whether Hammon was wrongly decided on constitutional grounds and also on practical grounds becauseit does not promote the orderly administration ofjustice. Alternatively, this Court should clarify whether Hammon’s ruling denyingpretrial access to evidenceis limited to records subject to the psychotherapist-patient privilege or applies to social media records. FACTUAL CONTEXT AND PROCEDURAL HISTORY Real parties, Lee Sullivan and Derrick Hunter, are indicted and awaiting trial for the murder of Joaquan Rice (Pen. Code § 187) and the attempted murder (Pen Code § 664/187) of minor, B.K. The charges stem from a drive-by shooting that occurred on June 24, 2013, at a bus stop located in the Bayview District of San Francisco. The District Attorney’s theory ofthe caseis that the crimes were committedfor the benefit of “Big Block” an alleged criminal street gang.' Quincy H., Derrick Hunter’s 14- year old brother, confessedto the shooting to police inspectors shortly after it occurred, explaining that he shot Mr. Rice because he feared Mr Rice would kill him first if he did not act. According to Quincy, Mr. Rice repeatedly threatened and bullied him at his job, at his home, and on social media,including tagging him in violent posts on Facebookand Instagram. Quincy told police that Mr. Sullivan was not in the vehicle whenthe shooting occurred. Although the shooting occurred in front of a crowd, no eyewitnesses placed Mr. Sullivan at the scene. 21 AE 124-128, 134-137.) The sole witness who implicates Mr. Sullivan in the incidentis Reneesha Lee, Mr. Sullivan’s jilted formergirlfriend who had rented the vehicle used in the shooting and who was detained by police driving alone in the car seven minutes after the shooting occurred. Several eyewitnesses told police a woman wasdriving the vehicle when shots were fired. Importantly, Ms. Lee did not implicate Mr. Sullivan in the shooting until several monthsafter the incident, when police threatened to charge Ms. Lee with murder if she did not implicate Mr. Sullivan. (1 AE 87-88.) In preparation for jury trial, counsel for Mr. Sullivan served third- party subpoenas duces tecum (Pen. Code, §1326) on Facebook, Twitter, and ‘Gangallegations pursuant to Penal Codesections 12022.53(d), 120022.53(e)(1), and Penal Codesection 186.22 (b)(1), as well as other enhancements werealleged. 2 Quincy wastried in juvenile court for the murder of Mr. Rice and attempted murder of Benjanay K. The petition was sustained on all counts. Instagram seeking records from the social media accounts held by the deceased alleged victim, Mr. Rice, as well as Ms. Lee. (1 AE 12-18, 53-56.) Mr. Sullivan simultaneously attempted to serve Ms. Lee with subpoena duces tecum seeking production ofher social media records, but was unable to locate herfor service either in person or through the San Francisco District Attorney despite diligent efforts. (1 AE 107.) Facebook, Instagram, and Twitter, moved to quash the subpoenas on groundsthat disclosure is prohibited under the Stored Communications Act (hereafter “SCA”) set forth in 18 U.S.C. § 2701, et. seq. Thesocial media providers arguedthat the SCAis an absolute barto producing recordsto criminal defendants, andthat petitioners need only respond to search warrants or court orders obtained by the police or prosecutorial agencies. (1 AE 1-8.) Real party, Sullivan, filed an Opposition to petitioners’ Motions to Quash,asserting that the SCA mustyield to a criminal defendant’s constitutionalright to compulsory process, to present a complete defense, and to due process guaranteedby the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Mr. Sullivan made a detailed offer of proofas to the relevance of the records sought and requested that the records be produced for an in camera review by respondent court. (1 AE 84-105.) 3 In support of his Opposition, Mr. Sullivan submitted a declaration from Quincy H.’s attorney, Rebecca Young, whostated that Quincy H. was denied his constitutional right to due process and to present a complete defense at his separate juvenile trial for the murder and attempted murder of Mr. Rice and Ms. K, respectively, because when Ms. Lee wascalled to testify as a witness, she refused to authenticate her social media posts that the defense had gathered in which Ms. Leethreatenedothers with violence. Counsel for Quincy H.was unable to lay a foundation to admit the records into evidence per the 4 On January 7, 2015, respondent court, the Hon. Bruce Chan issued a tentative ruling denying petitioners’ Motions to Quash. On January 22, 2015, the day before jury trial was to commence, respondent court affirmedthe tentative ruling and denied petitioners’ Motions to Quash ruling that Mr. Sullivan and Mr. Hunter have an independentconstitutional right to access materials necessary to defend their case, and ordered the records produced for in camera review under Penal Code section 1326 on February 27, 2015. (1 AE 264-276.) On February 24, 2015,petitioners filed a petition for writ of mandate and request for a stay of the production order in the Court of Appeal, First Appellate District, asserting that the respondent court abusedits discretion in denying petitioners’ Motion to Quash. On February 26, 2015, the Court of Appeal issued a stay of respondent court’s production order pending consideration ofthe petition. Sullivan submitted an answer which Hunter joined. An order to show cause to the respondent court wasissued on March 30, 2015. Real party, Sullivan, filed a return to which Hunterjoined. After briefing by the parties and amicus counsel, the Court of Appeal grantedthe petition for writ of mandate and issued a published opinion on September 8, 2015(Exhibit A) holding that although Hunter and Sullivan may beconstitutionally entitled to social media records attrial notwithstanding the SCA, under Peoplev. Hammon(1997) 15 Cal.4th 117, they had no constitutionalrightto pretrial trial judge’s ruling andthecritical defense evidence was not admittedat trial. (1 AE 196- 197.) access to social media records under the Compulsory Process Clause, the DueProcess Clause, or the Sixth Amendment’s Confrontation Clause. Petitioners now seek review of the Court ofAppeal’s ruling that criminal defendant’s are not constitutionally entitled to subpoena social media records pretrial even upon a showing of good cause. WHY REVIEW SHOULD BE GRANTED Review should be grantedto settle an important question of law regarding whethercriminal defendants have the constitutional right to pretrial access to social media records necessary fora fair trial. Given the explosion of social media use in recent years,trial courts throughoutthe state are grappling with whether and whencriminal defendants can subpoena social media records necessary to defenda casein light of the fact that social media recordsare increasingly offered by the prosecution as evidence without parallel access to criminal defendants under the SCA. In this case, the Court of Appeal substantively addressedforthefirst time in the nation, a criminal defendant’s right to access social media records under the SCA andruled that a criminal defendant’s constitutional right to a fair trial may require disclosure ofsocial media recordsattrial notwithstanding the federal Stored Communication Act’s provision prohibiting disclosure of electronic records except to law enforcement. (18 U.S.C. 2701, et seq.) Weagree that the SCA mustyield to a criminal defendant’s constitutional right to a fair trial. However, real parties challenge the Court of Appeal’s ruling insofar asit held that criminal defendants do not have a constitutional right to pretrial accessto this evidence and may only subpoena social media records during trial. Realparties respectfully assert the Court of Appeal is wrong as a matter of constitutional law and also in practicality because denyingpretri al access does not promote the orderly ascertainmentofthe truth. The Court of Appeal’s ruling ensures the opposite by delaying disclosure until after trial commences and then requiring continuances as they become necessary, as indeedthey will given that an increasing number of criminal cases that use of social media records as evidence. Moreover, real parties assert that delaying access until trial without affording defense counsel reasonable pretrial investigation ofthe social media records impinges on defendants’ ability to meaningfully challenge the state’s evidence and, thus, runs afoul of a defendant’s constitutional right to a due process, to receive a fair trial, to defend a case, to effective assistance of counsel, and to effectivel y confront and cross-examine witnesses. Whether a criminal defendanthas a constitutionalrightto pretrial access to social media records, or evidence in general, is an area that h as not been resolved by the United States Supreme Court. Give that this Court is under a solemn obligation to interpret and implementthe United States Constitution, this Court should grant review tosettle this important question of law. Finally, in ruling that criminal defendant’s do not have a constitutional right to pretrial access to social media records, the Court of Appealrelied heavily upon People v. Hammon (1997) 15 Cal.4th 1117, which held that a child molest victim’s confidential psychotherapy records could only be released to a criminal defendantat trial, not pretrial, upon a showing of good case. This Court should grant review to determine if Hammon was wrongly decided becauseit has created logistical problems in trial courts for 18 years, and also because criminal defendants do,in fact , have a constitutional right to pretrial access to evidence necessary to defend his or her case, as real parties argue here. Alternatively, review should be granted to clarify whether Hammonis limited to records subject to the psychotherapist-patient privilege or whetherit applies to social media records. ARGUMENT I. THE COURT OF APPEAL ERRED IN RULING THAT CRIMINAL DEFENDANTSDO NOT HAVE A CONSTITUTIONAL RIGHT TO PRETRIAL ACCESS TO DISCOVERYOF PRIVATELY HELD, CONFIDENTIAL RECORDS UPON A SHOWING OF GOOD CASE, WHEN THE MATERIALS ARE NECESSARYTO A FAIR TRIAL The Court ofAppeal erred whenit ruled that criminal defendants could not subpoenasocial media recordsuntiltrial on groundsthat the United States Supreme Court has never squarely addressed whether a defendant has a constitutional right to a pretrial access to evidence from third-parties. The Court of Appealcites Weatherford v. Bursey (1977) 429 U.S. 545 for the proposition that there is no general constitutional right to discovery in criminal cases. However, Weatherford is inapposite because it concerned a prosecutor’s obligation to disclose to the defense unfavorable evidence under a claimed Brady violation. (/d. at 559.) Here, we are not concerned with discovery between the prosecution andthe defense, but with 8 a defendant’s right to obtain relevant evidence from third-parties in order to obtain a fair trial. Weatherfordis, therefore, unhelpful. A. California Courts Are Authorized to Interpret the Federal Constitution on the Issue of Whether a Criminal Defendant’s Has A Constitutional Right to Pretrial Access to Social Media Records. It is well-settled that in the absence of controlling United States Supreme Court opinion, state courts can and must make an independent determination of federal law and are not bound by decisions in the lower federal courts. (People v. Bradley (1969) 1 Cal.3d 80, 86; Barrett v. Rosenthal (2006) 40 Cal.4th 33, 58; California Assn. for Health Services at Homev. State Dep’t ofHealth Care Servs (2012) 204 Cal.App.4th 676, 684.) “Although the courts of California are bound by the decisions of the United States Supreme Court interpreting the federal Constitution, they are not bound by the decisions of lower federal courts, even on federal questions.” (People v. Superior Court (Moore) (1996) 50 Cal. App. 4th 1202, 1211.) Given that the United States Supreme Court hasyet to squarely address whether there is a constitutional right to access materials necessary to defenda casepriortotrial, this Court should not hesitate to decide the constitutional issues in light of the importantissuesat stake for criminal defendants who need social media records to prove innocenceat trial. To that end, Justice Mosk eloquently stated the followingin his concurring opinion in Hammon,in whichhe arguedthat the California Supreme Court should hold that the Sixth Amendment right to confrontation includesthe right to pretrial access to materials necessary to cross-examine witnesses, despite that the United States Supreme Court in Pennsylvania v. Ritchie (1987) 480 U.S. 39, had not reached a majority on that issue: It should hardly need mention that “[w]e are under a solemn obligation to interpret and implement the United States Constitution” (People v. Harris (1994) 9 Cal.4th 407, 449 fn.1 (conc. and dis. opn of MoskJ.)) - - especially when,ashere, the United States Supreme Court hasitself defaulted. “We are noless capable of discharging that duty than any other court. We ‘should disabuse [«ourselves] of the notion that in matters ofconstitutional law and criminal procedure we must always play Ginger Rogers to the high court’s Fred Astaire—alwaysfollowing and neverleading.’ ” (Hammon, supra, 15 Cal. 4® at 1130-1131 (conc. opn.ofMosk,J,) quoting People v. Cahill (1993) 5 Cal.4th 478, 557-558 (conc. and dis. opn. ofKennard, J.) Justice Mosk wenton to state that the California Supreme Court should have accepted its responsibility to address whether an evidentiary privilege shouldyield to a criminal defendant's right to confrontation in pretrial discovery and not “wait untilit receives word from Washington” to do so. (Hammon,supra, 15 Cal. 4 at 1131 (conc. opn. of Mosk, J.) Realparty Sullivan respectfully urges this Court to take the lead and hold that, upon a showing of goodcause, a criminal defendant has a constitutional right to access priorto trial, social media recordsthat are necessary fora fair trial, to present a complete defense, and that such records mustbe released to the defense followingthetrial court’s in camera review subject to any protective orders deemed necessary by the trial court. 10 B. Real Party Sullivan’s Due Process Right to a Fair Trial cand46Present a Meaningful Defense Requires Access to Social Media Records Before Trial Criminal defendants are unable to meaningfully defend a criminal case within the meaning of the Due Process Clauseifthey are forced to go to trial withoutfirst obtaining relevant social media records that are material to cross-examination or support the defense. Social media records are ubiquitousand play an increasingly important role in modern life and in the criminal justice system. Especially for the younger generation, social media is not a separate, stand-alone domain in which few of life’s functions are carried out. Rather,it is the epicenter of their world, the primary vehicle by which opinionsare expressed,friends are made, and newsis shared. Because ofthe central role these records play, they are likely voluminous and important to both the prosecution and defense in criminal cases; thus, a defendant must have a parallel right pretrial access to social media records, upon a showing of good cause, following an in camera review at which time superior courts can withholdirrelevant information and issue whatever protective orders it deems necessary to protect privacy interests. The Court of Appeal’s position that criminal defendants do not have a constitutionalright to pretrial access to evidence does not give due weight to a criminal defendant’s sacrosanct and overarching constitutional right to fundamentalfairnessattrial and the right to meaningfully defend a case which are inviolate under the Fifth Amendmentand guaranteedto thestates by the Fourteenth Amendment. Thereason there is not an abundance of case law regarding a criminal defendant’s pretrial access to evidenceis 11 becauseit is axiomatic that a criminal defendant’s right to fundamental fairness, to present a defense, andto effective assistance of counselattrial, hinge onthe ability to obtain prior to trial, evidence in the possession of third-parties and the governmentthat is material to the defense,either because the records impeachesa prosecution witness or becauseit demonstrates a defendant is actually innocent of the charges and/or allegations. Indeed, even without controlling precedent from the United States Supreme Court or this Court on the issues of the constitutional right to pretrial access to evidence, lower California courts have routinely grantedpretrial access to evidence to criminal defendants underthe due process clause even in the face of conflicting statutes and constitutional provisions involving privacy issues.* 4 See e.g., the DepartmentofMotor Vehicles v. Superior Court ofLos Angeles County (2002) 100 Cal.App. 4" 363, the DMVrefused to disclose to the prosecutoror criminal defendant, both ofwhom jointly sought the records, confidential medical records in DMV’s possession which were relevant to a vehicular manslaughter prosecution. DMV claimed the records were deemed confidential and not to be disclosed to the public pursuant to Vehicle Code section 1808.5. DMVasserted it was prohibited by statute from disclosing records of a mental and physical condition. (Jd at. 367.) The DMVfiled a writ of mandate in the Court of Appeal contendingthetrial court abusedits discretion in orderingit to disclose the entirety of the records sought becausethe records werestatutorily deemed confidential. The Court of Appeal denied the writ holding, “The People and [the defendant] have an interest in a documentthatis relevant to [the defendant’s] defense to the vehicular manslaughter charge. ‘A criminal defendant’s right to discovery . . . is based upon the fundamental proposition that [an accused] is entitled to a fairtrial and an intelligent defensein light of all relevant and reasonably accessible information.” [citations ommitted.] DMV v. Superior Court, supra, 100 Cal.App.4th at 377. The Court held on balance, the DMV’sinterest is outweighedby the prosecution and defendant’s interest in a fair trial in a criminal case. (Jbid.) As such, a criminal defendants rightto a fairtrial trumpsa state statute declaring certain medical records held by the DMVto be exemptfrom disclosure despite public policy interests in promoting truthful exchanges between medical professionals and the Also, California courts have long held that the right of a criminal defendantto a fair trial, guaranteed by the Fifth Amendment, prevails overa third party’s constitutionalright privacy. For example, in Rubio v. Superior Court (1988) 202 Cal.App.3d 1342, the defendant was charged with felony sex offenses against a minor. The defendant denied molesting the minor and claimed that she had made uptheincident after watching a video tape of her parents 12 Whether rooted directly in the Due Processclause of the Fourteenth Amendmentor in the Compulsory Process Clause of the Sixth Amendment, the Constitution guaranteescriminal defendants “a meaningful opportunity to present a complete defense.” (Holmesv. South Carolina (2006) 547 U.S. 319, 324; Crane v. Kentucky (1986) 476 U.S.673, 690, (quoting California v. Trombetta, (1984) 467 U.S. 479, 485; citations omitted). The right of a criminal defendantto due process is "the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 US. at 294; see Crane v. Kentucky, supra, 476 U.S.at 690 ("Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense'"). A defendant’s right to present a complete defenseis abridged by statutes andrules that “infring[e] upon a weighty interest of the accused”andare “ ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” (Rock v. Arkansas (1987) 483 U.S.44, 58, 56.) To meaningfully defend a case, a criminal defendant must usually seek out the truth immediately. He cannot wait until the caseis called to trial. A defense lawyer cannot develop a cogenttrial strategy, decide on what defense to pursue, how to conduct voir dire, or do an opening engaging in sexualactivity. (/d. at 1346.) Thetrial court granted the parents’ motion to quash the defendant’s subpoena duces tecum seeking the video on groundsit was protected by the marit al privilege. ([bid.) The defendant sought extraordinary relief in the Court of Appeal and then the Supreme Court, who directed that an alternate writ be granted. The Court of Appeal complied. Relying upon Pennsylvania v. Ritchie, the appellate court granted the writ and remandedthe case back down to thetrial court for the court to review the tape in camera to determineofthe evidence was necessary to disclose to the defendantto ensurehis right to due process when weighed against the parent’s federal constitutionalright to privacy in the marital relationship as well as the marital privilege set forth in Evidence Code section 980. (id. at 1350.) The Court of Appealalso stated that if disclosure is required, the trial court “should recognize its concomitant power to issue whateverprotective orders are necessary should any further disclosure be compelled to preserve petitioner’s right to a fair trial.” (bid.) 13 statement unless he or she can review the relevant evidence priorto trial and investigate leads that may exonerate the defendant or undermine the credibility of witnesses. Moreover, delaying disclosure of social media recordsuntil trial will lead to mistrial after mistrial if continuances are sought duringtrial so the parties can litigate subpoenas for social media records, to allow timefortrial courts in camera reviews, and for defense counselto investigate information gleaned from the social media records, because ofjurorattrition due to long mid-trial delays. Moreover, criminal defendants cannot mount an intelligent defense if voluminoussocial media records are receivedduringtrial the contents of which may change the defense entirely midway through thetrial. Forcing defendants to wait until trial to access social media records is unworkable, does not promote the “orderly ascertainmentofthe truth” whichis best served disclosure prior to trial. (Jones v. Superior Court (1962) 58 Cal.2d 56, 60.) A defendant cannot receive fundamental fairness at trial when he does notreceive relevant evidence until trial commences. Thus, this Court should not hesitate to vindicate the demands of due process and require disclosure of relevant social media recordspriortotrial. C. Denving Pretrial Access to Social Media Recordsto the Defense, but not Prosecution, Violates the Due Process Clause under Wardius vy. Oregon The Court of Appeal’s ruling interpreting the SCA to grant the prosecution, but not the defense,pretrial access to social media recordsis arbitrary, unconstitutional, and cannot be squared with Sullivan’s right to present a defense, let alone with the due process argument that such a 14 disparity in treatment is prohibited by Wardius v. Oregon (1973) 412 US. 470, 474. In Wardius, the Unites States Supreme Court struck downa state statute that required the defendantto disclose the namesofhisalibi witnesses but did not require the prosecution to disclose the namesofits witnesses. The Court held that such inequitable discovery rules violated due process guarantees: The State may notinsist thattrials be run as a ‘search for truth’ so far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses. It is fundamentally unfair to require a defendantto divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State. (Wardius v. Oregon, supra, 412 U.S. at 476.) Further, the Court ruled that [a]lthough the dueprocess clausehaslittle to say regarding the amount of discovery which the parties must be afforded[ ] it does speak to the balance of forces between the accused and his accuser.” (Wardius v. Oregon, supra, 412 US.at 475-76, emphasis added.) Thus, the discovery statute in which defendants and prosecutors were treated differently was ruled unconstitutional. The Court of Appeal is correct that law enforcement agencies are afforded access to meansof investigation that are denied to others, including criminal defendants. But once a defendantis charged with a crime and held to answer following a preliminary hearing, the right to preparefortrial is indisputable and the access to evidence between the prosecution and the defense cannot be arbitrary, one-sided or unfair without running afoulofthe due process clause under Wardius. The Court of Appeal doesnot address the problem ofhow a defendantis to prepare for 15 trial without access to relevant evidence:with nopretrial ability to subpoena records, significant pretrial preparation would be impossible. Because a fair trial depends on counsel well-prepared to meetthe state’s case with all evidence that will shed light on the truth, the Court of Appealsposition that there is no right to pretrial discovery fails. With regard to the Wardius issue, the Court of Appealstates that “TdJefendants do not suggest why they would not be entitled to receive copies of [social media records.] either as general criminal discovery required under Penal Code section 1054.1, [fn omitted] or as potentially exculpatory Brady material.” (Exhibit A, p. 18.) Not so. Defendants have extensively explained that Penal Code section 1054.1 controls discovery between the prosecution and defense counsel only, and does not address a criminal defendants right to compelthird parties such as Facebookto produce materials the defense needsfortrial. Moreover, the state cannot compelthird parties such a Facebook to produce exculpatory evidence to the defense becausethird parties are not part of the prosecution team and the state is not required to seek out evidence and investigate a case on behalf of the defendant under Brady v. Maryland (1963) 373 U.S.83 andits progeny. Finally, defendants cannotget the records they need from the state because the state chose to subpoena some,butnot all of Joaquan Rice’s social media records and none of Reneesha Lee’s social records,all of which the defense needsto impeachherat trial and to present a complete defense. Criminal defendants cannot fully and fairly defend a criminal case 16 o based solely upon social media records obtained by police and prose cutors by utilizing the statutory discovery schemeset forth in Penal Code s ection 1054.1. The prosecution team and defense attorneys seek very diffe rent records in support of their respective adversarial roles. Law enforc ement issue search warrants to obtain evidence of criminal activity or co ntraband based upon a peaceofficers sworn affidavits establishing probable cause of criminal activity. (Cal. Pen. Code, § 1523-1524.) In contrast, the mechanism criminal defendants use to obtain evidencethatis likely t o facilitate the ascertainmentoftruth anda fairtrial, such as evid ence relevant to impeach a prosecution witness or establish an affirmative defense, is a third-party subpoena pursuant to Evidence Code section 1326. If contested, defense counselis required to make a good cause showing , as an officer ofthe court, that the requested information will facilitate the ascertainmentoffacts anda fair trial. (Pitchess v. Superior Court ( 1974) 11 Cal.3d 531; People v. Superior Court (Barrett) (2000) 80 Cal.App. 4th 1305, 1313; Alford v. Superior Court (2003) 29 Cal.4th 1033, 1045.) A good cause showing can be established by a defense counsel’s declara tion detailing the records’ relevancy, admissibility, and materiality to the d efense case. (People v. Superior Court (Barrett), supra, 80 Cal.App.4th at 13 13.) The issuance ofa third-party subpoena is a ministerial act, and thetria l court has wide authority to review the records in camera, issue prot ective orders, redactirrelevant information, and engage in whatever bala ncing of interests that needs to occur to ensure a criminal defendant has accessto records neededto present a complete defense as guaranteed by t he : wee 17 constitution. (See generally, Kling v. Superior Court (2010) 50 Cal.4th 1068.) In light of the foregoing,it is abundantly clear that respondent court rightly decidedthat petitioners should produce the records soughtto the court for an in camera review priorto trial and the Court of Appeal erred in reversing that decision. Defensepretrial subpoenasof confidential records are subject to even stricter judicial control than search warrants because two levels ofjudicial review are required before confidential records can be disclosed to the defendant:first, defense counsel must makean initial good cause showing as to relevance before the records can bereleased. If good cause is shown, then the court conducts an in camera review andonly releases relevant records to the defense, subject to a protective order. In contrast, for law enforcement, once a judge signs a search warrant, the records are released wholesale to the state without an in camera hearing as to relevance review regardless ofthe privacy rights at stake. Thus, the procedures in place pursuantto Penal Codesection 1326 for defense pretrial subpoenas of confidential records provide more privacy protectionsfor the citizenry, than the search warrantprocess used law enforcement.” Thus, the Court of Appeal’s fearsthat real parties will have unfettered access to irrelevant records, disclose private records to the general public, and will engage in “fishing expeditions” is unfoundedparticularly given that trial courts can A R S e s B R 5 Moreover,if the police are not required to give notice to a social media account a holder prior to obtaining a search warrant, there is no reason the Court ofAppeal shou ld 2 be concernedthat the defense is not required to do so given that thetrial court ha s strict : control over the release of relevant social media recordsto the defense. 2 sa be d a m e control the process and issue protective orders. In light of the foregoing, Sullivan asserts that his right to due process is violated under Wardius because underthe interpretation of the SCA enunciated by the Court of Appeal, the state, but not the defense, is granted access to social media recordspriorto trial without good reason for the distinction given superior court’s strict control over the release of the relevant social media records to defense counsel. D. The Compulsory Process Clause Compels Pretrial Production of Social Media Records Sought By Third- Party Subpoena Criminal defendants havetheright to pretrial access to social media recordsheld by electronic service providers under the Compulsory Process Clause. Asa general matter, a California criminal defendant hasthe right to obtain by subpoena duces tecumthird-party records “if the requested information will facilitate ascertainmentofthe facts and a fairtrial.” (Pitchess v. Superior Court (1974) 11 Cal.3d 53 1, 556.) Underthe federal Compulsory Process Clause one of the most fundamental of rights in our adversary system ofjustice is the right of a criminal defendant to compel the attendance of witnessesat trial and to present to the jury evidence that might influence the determination ofguilt. (Pennsylvania v. Ritchie (1987) 480 U.S. 39; accord; Washington v. Texas (1967) 388 U.S. 14.) The Supreme Court has long held that compulsory process is fundamental for the search for justice. (Taylorv. Illinois (1988) 484 U.S. 683, 709; United States v. Nixon (1974) 418 U.S. 683, 709.) Over 200 years ago, the high court in United States v. Burr, 25 F. 19 Cas.30 (C.C.D. Va.1807)held that a defendanthasthe right, as soon as his case is in court to compelthe production of evidence: “any pe rson charged with a crimein the courts ofthe United States has a right, befor e as well as after indictment, to the process of the court to compel the atten danceofhis witnesses.” (U.S. v. Burr (C.C.D. Va 1807) 25 F.Cas 30, 33. Like here, the Burr court addressed privacy objections, because th e subpoenathere was directed to the President of the United Sta tes in the Aaron Burr trial. Then, as now, a privacy objection would not o vercome the defendant’s right to compulsory processofrelevant material: “In the provisionsofthe constitution, and ofthe statute which give to the accused a right to the compulsory process of the court, there is no excepti on whatsoever. (U.S. v. Burr, supra, 25 F. Cas.at 34, emphasis a dded.) Issuing the subpoena, the Burr court observed whatis still the he art of the compulsory process clause today: “General principles, then, and general practice are in favor of the right of every accused person, so so on as his case is in court, to prepare for his defence, and to receive aid of the process of the court to compel the attendanceofhis witnesses.” (U.S. v. Bu rr, supra, 25 F. Cas. at 33.) In United States v. Nixon, (1974) 418 U.S. 683, 716, the President o f the United States invoked executive privilege to avoid complian ce with a third-party subpoena duces tecum issues by criminal! defendant s in the Watergate scandal that sought the production oftape recordin gs and documentsfive monthsprior to trial. (Id at 689.) A special pros ecutor sought to obtain information concerning meetings between the P resident 20 and certain individuals charged with obstruction ofjustice, conspiracy, and other offenses. The President's motion to quash the subpoena wasdenied. Holdingthat the President's general privilege of confidentiality did not extend to an absolute privilege of immunity from all judicial process, the U.S. Supreme Court affirmed the denial of the motion to quash. The Court ruled that because the special prosecutor had demonstrated a specific need for the evidence sought by way of subpoena it was proper to compel production based,in part, on the Compulsory Process Clause, and to examine the material in camera. In so ruling, the Supreme Court stated: Wehaveelected to employ an adversary system ofcriminal justice in which the parties contestall issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminaljustice would be defeated ifjudgments wereto be foundedon a partial or speculative presentation ofthe facts. The very integrity of the judicial system and public confidence in the system depend onfull disclosure ofall the facts, within the framework ofthe rules of evidence. To ensure thatjustice is done, it is imperative to the function of courts that compulsoryprocess be availablefor the production ofevidence needed either by the prosecution or by the defense. (United States v. Nixon, supra, 418 U.S.at p. 709, emphasis added.) Relying on Nixon, Burr and its progeny, in Pennsylvania v. Ritchie, the Supreme Court held that, “{Ojurcases establish, at a minimum, that [under the Compulsory Process Clause ofthe Sixth Amendment] criminal defendants havethe right to the government's assistance in compelling the attendance of favorable witnessesat trial and the right to put before a jury evidence that might influence the determination of guilt.” (Pennsylvania v. Ritchie, supra, 480 at 55-56, fn. omitted, emphasis added.) 21 The Court of Appeal correctly pointed out that the Supreme Court a said in Pennsylvania v. Ritchie, 480 U.S. at 55, that the High Court has yet had “little occasion to discuss the contours of the Compulsory Process Clause” and choseto analyze the issues presented therein under a Brady due process clause analyses presumably because the records the defendant sought were in possession of the government, not third parties. However,just because the Ritchie majority chose to analyze the issue under the Fourteenth Amendment, does not preclude this Court from also considering this issue under the federal Compulsory Process Clause. Sullivan contends that the Compulsory Process Clause alone, or in conjunction with the due process clause, requires pretrial production of social media records and the Court of Appealerredin failing to so hold. E. This Court Should Overrule Hammon,or in the Alternative, Limit Hammonto the Psychotherapy-Patient Records, and Hold that a Criminal Defendant’s Right to Confrontation Under the Sixth Amendment Includes The Right to Pretrial Access to Evidence Necessary to Cross- Examine Witnesses Given the United States Supreme Court Has Not Reached This Issue In the absence of United States Supreme Court authority to the contrary, this Court has the authority to decidethat a criminal defendant’s Sixth Amendment’s right to confront and cross-examine witnesses, includes the right to pretrial access to evidence necessary to conduct an effective cross-examination. In Davis v. Alaska (1974) 415 U.S. 308,the United States Supreme Court held a criminal defendant’s constitutionalright to cross-examine witnesses trumpeda state law declaring juvenile records to be confidential and notto be disclosed to the public. Specifically, the trial 22 judge prohibited defense counsel from questioning a witness about the latter's juvenile criminal record, because a state statute madethis information presumptively confidential. The United States Supreme Court foundthat this restriction on cross-examination violated the Confrontation Clause, despite Alaska's legitimate interest in protecting the identity of juvenile offenders. (/d. at 318-320.) The Court of Appeal’s opinion that defendantsare notentitled to pretrial access to social media records under the Sixth Amendment’s Confrontation Clause is based largely on People v. Hammon (1997) 15 Cal.4th 1177, a case in which this Court held that child molest victim’s confidential psychotherapy records could not be subpoenaedpriortotrial. The basis for the Hammon opinion wasthat in Pennsylvania v. Ritchie (1987) 480 U.S. 39, the a plurality of the Court led by Justice White interpreted the Confrontation Clause to mean that the right of confrontation is designed simply "to prevent improperrestrictions on the types of questions that defense counsel may ask during cross-examination" and does not create pretrial access to evidence. (Id., at 52.) Thus, the plurality in Ritchie concluded that the constitutional error in Davis v. Alaska, 415 U.S. 308 (1974), was not that state law madecertain juvenile criminal records confidential, but rather that the defense attorney had been precluded from asking questions aboutthat criminal recordattrial. (480 U:S., at 54.) However, Justice White failed to commanda majority. For their part, Justice Blackmun and Justice Brennan each expressed a view to the contrary, namely, that the Confrontation Clause gave criminal defendants 23 the constitutional right to pretrial access to evidence necessary for cross- examination. (Id; at pp. 61-65 (conc. opn. of Blackmun,J.); id at 66-72. (dis. opn. of Brennan, J.).) Justice Blackmunsaid "there are cases, perhaps most ofthem, where simple questioning of a witness will satisfy the purposesof cross-examination,"(id., at 62, BLACKMUN,J. concurring),I also believe there are cases in whicha state rule that precludes a defendant from access to information before trial may hinder that defendant's opportunity for effective cross-examination at trial, and thus that such a rule equally may violate the Confrontation Clause.”(/d., at 63-65, Blackmun,J concurring.) Real party Sullivan respectfully requests that this Court reconsiderits ruling in Hammonbecauseit gave undue weightto the plurality opinion in Pennyslvania v. Ritchie that the the Sixth Amendment does not grant pretrial right to access materials necessary for cross-examination. Plurality opinionsare not controlling precedent because they do not commanda majority. In Marks v. United States (1977) 430 U.S. 188 the Supreme Court of the United States explained how theholding of a case should be viewed wherethere is no majority supporting the rationale of any opinion: “When a fragmented Court decides a case and nosingle rationale explaining the result enjoys the assentoffive Justices, the holding of the Court may be viewed asthat position taken by those Members who concurred in the judgments on the narrowest grounds.” (Marks, 430 U.S.at 193.) Thus, Pennsylvania v. Richie is only controlling precedent for the proposition upon which the majority agreed: that the due process clause required the 24 trial court to conduct an in camera review ofa confidential child protective servicesfile to determineif it contained material evidence helpful to the accused. (Pennsylvania v. Ritchie, supra, 480 U.S. 39.) It is not authority for the proposition that the Sixth Amendment’s Confrontation Clause does notgrant pretrial access to discovery necessary to cross-examine witnesses. Defendants agree with Justice Mosk’s concurring opinion in Hammonin which hesaid that the majority wrongly relied upon the Ritchie plurality in concluding thereis nopretrial right to access evidence underthe Sixth Amendment’s Confrontation Clause. Hesaid, that in reaching their opinion, the Hammonmajority relied on Pennsylvaniav. Ritchie (1987) 480 U.S. 39 “[w]hich meansthat they rely on nothing” because no majority was reached in that case. Justice Mosk furtherstated: “It should hardly need mention that [w]e are under a solemn obligation to interpret and implement the United States Constitution [internal citations omitted] especially when, as here, the United States Supreme Court hasitself defaulted.” (Hammon, supra, 15 Cal.4th at 1130-31.) He concluded his opinion as follows: Andso, the majority, in effect, leave to another day the question whethera state law evidentiary privilege may haveto yield to a defendant's Sixth Amendmentright of confrontationin pretrial discovery. That day may not comeuntil the United States Supreme Court happens to give an answer. Unless,that is, this court should accept its responsibility to address the matter even in the absence of word from Washington. (People v. Hammon(1997) 15 Cal.4th at 1130-31, conc. opn of Mosk,J.) Defendants respectfully urge this Court to answer Justice Mosk’s call and squarely address the issue of whether a criminal defendant’s has a constitutional right to pretrial access to evidence under the Sixth 25 Amendment Confrontation Clause since the United States Supreme Court has not reachedthis issue. Defendants urge this Court to hold that Hammon was wrongly decided on constitutional grounds.° Defendants agree with Justices Mosk, Blackmun, and Brennanthat although a defendant may happen to cross-examine an adverse witness only in the courseoftrial, to do so effectively he may have to undertake preparations long before. “More generally, to defend himself meaningfully, he must usually seek outthe truth immediately: He cannot wait until the causeis calledto trial.” (Hammon, 15 Cal.4th at 1130-31, conc. opn of Mosk,J.) Defendants respectfully urge this Court to reconsider Hammon and conclude it was wrongly decided onpractical, as well as constitutional, grounds. Courts are obliged to seek the “orderly ascertainment of the truth” (Jones, supra, 58 Cal.2d at 60) which would be served bytimely pretrial disclosure. Instead, Hammonis not followed intrial courts because delaying disclosure until after trial commencesresults in mid-trial continuances andstrains an already over-burdened criminaljustice system. ° The Court of Appeal gave great weight to gang cases suchas Alvarado v. Superior Court (2000) 23 Cal.4th 1121, People v. Valdez (2012) 55 Cal.4th 82 and People v. Maciel (2013) 57 Cal.4th 482, in support ofits ruling that defendants are notentitled to pretrial accessto social media records under the Sixth Amendment’s Confrontation Clause. These cases are not germaneto the issues presented herein because the gang cases concern thetrial court’s order withholding the identity of witnesses in cases in which there has been an actualthreat on a witnesses life, which is not a consideration here. Indeed,if the release of social media records would endangerthe life of a witness, a trial court conducting the in camera reviewcertainly has the authority to limit or delay disclosure if a witnesses was threatened. Moreover, in Alvarado, Valdez, and Maciel, the defendants were not deprivedofpretrial access to materials necessary to defend their case at trial. Only the identity of the witness was delayed or withheld. In contrast, here, defendants are being wholly deprived oftheir right to pretrial access to evidence needed to mount a defense and cross-examine adverse witnesses. 26 Moreover, defendants disagree with the Court of Appeal’s assertion that trial courts are in the best position to rule on the disclosure of confidential records. In counties which use a master calendar system,it is the pretrial judges whorule on pretrial motions and conduct settlement negotiations who are mostfamiliar with the case evidence,notthetrial courts who are assigned cases without prior knowledgeofthe case depending on courtroom availability. Moreover, even if access to social media recordsis technically a “trial right” a superior court judgestill retain the inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration ofjustice.” (People v. Cox (1991) 53 Cal.3d 618, 700, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 fn.22.) Indeed, superior courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to controllitigation before them.[Citation.] (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; People v. Olsen (2014) 229 Cal.App.4th 981, 997-98; Const., art.VI, § 1.) Thus, respondent court, as master calendar judge, had the inherent authority to rule onpetitioners motions to quash a oneday before the case wasto be sent outoftrial in order to promote the efficacious administration ofjustice. Respondent court, who wasfamiliar with the evidencein this case, had the inherent authority to hear the motions to quash rather than tying up a courtroom and jury while the losing party sought extraordinary relief in the Court of Appeal for the next seven months. The Court of Appeal promoted form over substance whenit grantedthe petition based on the factthat 27 respondentcourt ruled on the motion one day before trial was to commence. Real parties respectfully urge this Court to conclude Hammon was wrongly decided. Alternatively, real parties request that this Court clarify whether People v. Hammon, supra, 15 Cal. 4" 1117,is limited to records subjected to the psychotherapist-patient privilege. Real parties contend Hammon limited its holding to confidential mental health records bestating as follows: The only recordsthe trial court declined to review in camera were those defendant sought from Jacqueline's psychologists. While defendant also sought access to Jacqueline's high school and juvenile court records,the trial court did review those records and disclose someofthem to the defense. Thus, in asking whetherthe trial court had a duty to review confidential or privileged records in camera, we are concerned exclusively with the records requestedfrom the psychologists. (Hammon,supra, 15 Cal.4th at 1122. The foregoing indicates, that this Court intendedits ruling to apply to privileged mental health records only protected by Evidence Code section 1014, not to all confidential records. This interpretation makes the most sense given that the psychotherapist- patient privilege is entitled to heightened protections dueto the vulnerability of the patients and research that has showed the patients will not seek mental health treatment unless assured of confidentiality. ’ 7 The Legislative Comment to Evidence Code section 1014 makesthis point: This article creates a psychotherapist-patient privilege that provides much broader protection than the physician-patient privilege. Abroad privilege should apply to both psychiatrists and certified psychologists. Psychoanalysis and psychotherapy are dependentuponthe fullest revelation of the most intimate and embarrassing details of the patient's life. Research on mentalor 28 Eg. Accordingly, if this Court does not conclude Hammonwas wrongly decided, defendants request that it be limited to records protected by Evidence Codesection 1014. Real parties assert that Hammon doesnot apply to the disclosure of social media records at issue here. Although the SCAis an statutory bar to the production of electronic records by social media companies, it does not create a traditional evidentiary privilege that was at issue in Hammon. (See Evidence Codesection 910, et seq.) In traditional privileges, a holder may refuse to testify as to the substance of a confidential communication, or prevent the recipient of the communication,such as an attorney or doctor, from testifying to its substance. (/bid.) In contrast, under the SCA,the “holder” of social media records cannot refuse to testify regarding the contents of his or her social media posts, nor can the social media user emotional problemsrequires similar disclosure. Unless a patient or research subject is assuredthat such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment or complete and accurate research depends. The Law Revision Commission hasreceived severalreliable reports that persons in need of treatment sometimes refuse such treatment from psychiatrists because the confidentiality of their communications cannot be assured under existing law. Manyofthese personsare seriously disturbed and constitute threats to other persons in the community. Accordingly, this article establishes a new privilege that grants to patients of psychiatrists a privilege much broader in scope than the ordinary physician-patient privilege. Although it is recognized that the granting of the privilege may operate in particular cases to withholdrelevant information,the interests of society will be better served if psychiatrists are able to assure patients that their confidences will be protected. The Commission hasalso been informed that adequate research cannotbe carried on in this field unless persons examined in connection therewith can be guaranteed that their disclosures will be kept confidential. Evid. Code, § 1014 29 C H E M l e e S e ti aB a e S prevent others whosee the posts from testifying as to the contents. Accordingly, social media posts do notfall within the ambit ofHammon because the contents of the posts are not protected from disclosurelike the traditional evidentiary privileges. Thus, the Court of Appeal erred whenit ruled Hammonpreventedpretrial access to social mediarecords. CONCLUSION For the reasons stated herein,it is respectfully requested that the petition for review be granted. Respectfully submitted this 19th day of October, 2015. (pn SUSAN KAPLAN Attorney for R¢@l Party in Interest L LIV. JANELLE E. CAYWOOD Attgmey for Real Party in Interest LEE SULLIVAN 30 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWusesa 13 point Times New Roman font and contains 8385words. Dated: October 19, 2015 JANELLE GAYWOOD Attorney/fgr Real Party in Interest LEE SULLIVAN PROOF OF SERVICE.BY U.S. MAIL Re: Facebook v. Superior Court No . A144315 I, JANELLE CAYWOOD,declare that I am over 18 years of age and n ot a party to the within cause; my business address is 1660 Mason Street #6, S an Francisco, California 94133, On October 19, 2015, I served the attached PETITION F OR REVIEW on each of the following by placing a true copy thereof enclosed in a sealed en velope with postage fully prepaid and deposited in United States mail addressed as follo ws: Heather Trevisan The Ho n. Bruce Chan Office of the San Francisco District Attorney San Francis co Superior Court 850 Bryan Street Dept. 2 2 San Francisco, CA 94103 850 Brya nt Street San Francisco, CA 94103 Jose Umali 507 Polk Street Jam esSnell San Francisco, CA 94104 Perk ins Coie, Llp. 3150 Porter Drive Court ofAppeal, First District, Div. 5 Palo A lto, CA 94304 350 McAllister Street San Francisco, CA 94102 I declare under penalty that the foregoingis true and correct. Executed on October 19, 2015 at San Francisco, California. J LLE CAYWOOD EXHIBIT A Facebook,Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (2015) 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,405 192 Cal.Rptr.3d 443 Court of Appeal, First District, Division 5, California. FACEBOOK,INC., etal., Petitioners, [2] v. The SUPERIOR COURTofSan Francisco City and County, Respondent; Derrick D. Hunteret al., Real Parties in Interest. A144315 | Filed September8, 2015 Synopsis Background: Two defendants were charged with offenses including murder. Defendants served subpoena duces tecum on Internet social network operators. The Superior Court, City and County of San Francisco, Nos. 13035657 and 13035658, Bruce E. Chan, J., denied operators' motion to quash the subpoena. Operatorspetitioned for writ of mandate. [3] Holdings: The Court ofAppeal, Bruiniers, J., held that: [1] Stored Communications Act (SCA) did not violate Confrontation Clause in prohibiting pretrial disclosure of victim's social network account contents; [2] SCA did not violate Compulsory Process Clause in prohibiting pretrial disclosure of victim's social network [4] account contents; and [3] SCA did not violate due process in prohibiting pretrial disclosure of victim's social network account contents. Petition granted. West Headnotes(13) [5] (1] Telecommunications ¢ Computer communications The Stored Communications Act (SCA) provides no direct mechanism for access by a criminal defendant to private communication content, and California's discovery laws cannot be enforced in a way that compels disclosures violating the SCA. 18 U.S.C.A. § 2701 et seq. Casesthat cite this headnote Constitutional Law @= Disclosure and Discovery Criminal Law @= In general; examination of victim or witness There is no general constitutional right to discovery in a criminalcase, and the Due Process Clause haslittle to say regarding the amount of discovery which the parties must be afforded. U.S. Const. Amends.5, 14. Casesthat cite this headnote Criminal Law € Information or Things, Disclosure of In California, at least as to nonprivileged information, the defendant generally is entitled to discovery of information that will assist in his defense or be useful for impeachmentor cross- examination of adverse witnesses. Casesthat cite this headnote Constitutional Law @ Sixth Amendment Both the Confrontation Clause and the Compulsory Process clause of the Sixth Amendment are binding on the States under the Fourteenth Amendment. U.S. Const. Amends. 6, 14. Casesthat cite this headnote Criminal Law @ Right of Accused to Confront Witnesses Criminal Law @= Cross-examination and impeachment The Confrontation clause provides two types of protections for a criminal defendant: the right physically to face those whotestify against him, and the right to conduct cross-examination. U.S. Const. Amend.6. ‘WestlawNext' © 2015 Thomson Reuters. No claim to original U.S. Government Works. Facebook, Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (2015) 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,405 [6] Casesthat cite this headnote nen lM Criminal Law @» Use of documentary evidence Telecommunications @ Validity The Stored Communications Act (SCA) did not violate the Sixth Amendment Confrontation Clause in prohibiting pretrial disclosure of murder victim's Internet social network account contents for purposes of defendants’ investigation of the prosecution's case, even though the prosecution had obtainedaccessto at least someofthe contents ofthe account pursuant to a search warrant. U.S. Const. Amend. 6; 18 U.S.C.A. § 2701 et seq. Cases that cite this headnote [9] social network account contents for purposes of defendants’ investigation of the prosecution's case, even though the prosecution had obtained access to at least some of the contents of the account pursuantto a search warrant. U.S. Const. Amend. 5; 18 U.S.C.A. § 2701 et seq. Casesthat cite this headnote Constitutional Law = Presumptions and Construction as to Constitutionality Constitutional Law @= Clearly, positively, or unmistakably unconstitutional The courts will presumea statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favorits validity. Casesthat cite this headnote {7] Telecommunications @ Validity Witnesses [10] Constitutional Law > Constitutional and statutory provisions = Creation and Definition of Offense The Stored Communications Act (SCA) did In the due process context, a defendant not violate the Sixth Amendment Compulsory challengingthe constitutionality ofa statute must Process Clause in prohibiting pretrial disclosure show that the statute offends someprinciple of of murder victim's Internet social network justice so rooted in the traditions and conscience account contents for purposes of defendants' of the people as to be ranked as fundamental, investigation of the prosecution's case, even where “fundamental” principles of justice are though the prosecution had obtained accessto at those whichlie at the base of the people's civil least some ofthe contents ofthe accountpursuant and political institutions and which define the to a search warrant. U.S. Const. Amend. 6; 18 community's sense offair play and decency. U.S. U,S.C.A. § 2701 et seq. Const. Amends.5, 14. Cases that cite this headnote Casesthatcite this headnote {8] Constitutional Law [11] Constitutional Law g= Particular Items or Information, Disclosure of Telecommunications @ Validity The Stored Communications Act (SCA) did not violate defendants’ due process rights to meaningfully prepare and present a defense to the charges against them, in prohibiting pretrial disclosure of murder victim's Internet = Evidence The due process clause of the federal Constitution requires the prosecution to disclose to the defense evidence in its possession that is favorable to the accused and material to the issues of guilt or punishment. U.S. Const. Amends.5, 14. Casesthat cite this headnote ‘WestlawNext’ © 2015 Thomson Reuters. No claim to original U.S. Government Works. Facebook,Inc. v. Superior Court, 192 Cal-Rptr.3d 443 (2015) 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,405 [12] Constitutional Law @= Disclosure and Discovery Because the concern of the due process clause is the right of the defendantto a fair trial, the focus of the due process reciprocity inquiry into “the balance offorces” between the accuseds and their accuser in discovery is whether any lack of reciprocity interferes with the defendant's ability to secure a fair trial, and thus mere mechanical repetition ofthe word “reciprocity” is not enough to show that a defendant's right to a fair hearing has been violated. U.S. Const. Amends.5, 14. Casesthat cite this headnote [13] Witnesses @=» Subpoena duces tecum A criminal defendant's issuance of a subpoena duces tecum under the Penal Code does not entitle the defendant on whose behalf the subpoena is issued to obtain access to the subpoenaed records until a judicial determination has been madethat the person is legally entitled to receive them. Cal. Penal Code § 1326. See 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence, § 419. Casesthat cite this headnote West Codenotes Limitation Recognized 18 U.S.C.A. § 2703(b),(d). Superior Court of the City and County of San Francisco, Nos. 13035657 and *445 13035658, Bruce E. Chan, Judge. (Super. Ct. Nos. 13035657, 13035658) Attorneys and Law Firms Perkins Coie, James G. Snell, Palo Alto and Sunita Bali, San Francisco, for Petitioners. Noappearance for Respondent. Jose Pericles Umali, San Francisco, for Real Party in Interest Derrick D. Hunter. Susan Kaplan and Janelle E. Caywood, San Francisco, for Real Party in Interest Lee Sullivan. JeffAdachi, Public Defender (San Francisco), Matt Gonzalez, Chief Attorney, and Dorothy Bischoff, Deputy Public Defender, as Amicus Curiae on behalf of Respondent and RealParties in Interest. Stephen P. Lipson, Public Defender (Ventura), and Michael C. McMahon, Chief Deputy Public Defender, for California Public Defenders Association and Public Defender of Ventura County as Amici Curiae on behalf of Real Parties in Interest. Donald E. Landis,Jr., Assistant Public Defender (Monterey); Law Offices of J.T. Philipsborn and John T. Philipsborn, San Francisco, for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Real Parties in Interest. Opinion BRUINIERS,J. Use of social media, in its myriad of forms, has become ubiquitous in our society. Petitioners Facebook, Inc. (Facebook), Instagram, LLC (Instagram), and Twitter, Inc. (Twitter) each provide digital platforms on which users may post communications, commentary, photographs, videoclips, or other items the user may wish to share within a social network. Evidence gathered from social media is becoming equally ubiquitous in our courtrooms. Real parties in interest Derrick Hunter and Lee Sullivan (Defendants) were indicted, and await trial, on murder, weapons, and gang-related charges stemming from a drive-by shooting. Each of the Defendants served a subpoena duces tecum on one or more of the petitioners seeking both public andprivate content from user accounts of the murder victim and a witness. Petitioners moved to quash the subpoenas, objecting under the federal Stored Communications Act (SCA or Act) (§ 18 U.S.C. § 2701 et seq.) ! to the compelled disclosure of the content of their users’ electronic communications. Section 2702(a) provides that electronic communication services “shall not knowingly divulge” the contents of a user communication to anyone, with limited exceptions (§ 2702(b)). Defendants responded that the requested information is necessary to properly defend against the \WestlawNext' © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Facebook,Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (201 5) 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,405 pending charges, and that any statutory privacy protections afforded a social media user must yield to a criminal defendant's constitutional rights to due process, presentation’ of a complete defense, andeffective assistance of counsel. 2 The trial court denied petitioners’ motions to quash and ordered petitioners to produce responsive material for in camera review. Petitionersfiled the instant petition for writ of mandate and/orprohibition in this court. We issued an order staying the production order and requested opposition. After consideration of Defendants' answer, and petitioners’ reply thereto, we denied Defendants’ request to dissolve the *446 temporary stay and issued an order requiring the respondent superior court to show cause why the relief requested by petitioners should notbe granted. We now grant the petition and direct the trial court to issue an order quashing the subpoenas. I. F ACTUAL CONTEXT AND PROCEDURALHISTORY * On June 24, 2013, Jaquan Rice, Jr., was killed and B.K., a minor, was seriously injured in a drive-by shooting in the Bayview District of San Francisco. The vehicle used in the shooting wasidentified by surveillance video. While of poor quality, the video depicts one individual shooting a handgun from the rear passenger windowonthe driver's side. A second individual is seen exiting the rear passenger-side door and shooting from behindthe rear of the vehicle with a handgun with a large attached magazine. The driver of the vehicle was not visible, but witnesses indicated that a woman was driving. Within minutes of the shooting, prosecution witness Renesha Lee was stopped driving the vehicle. She wasthe sole occupant. Hunter's 14-year-old brother was identified by several eyewitness as one of the shooters, and he confessed to the shooting when questioned by police. 4 Hunter's brother told police that he shot Rice because Rice had repeatedly threatened him in person and in social media postings on Facebookand Instagram. Rice also had “tagged”the boy in a video clip posted on Instagram that depicted guns. Lee is Sullivan's formergirlfriend. Lee gave varying accounts of the events of June 24, 2013, but ultimately told police that Defendants and Hunter's brother borrowed her car and took her homeprior to the shooting. In presenting the case to the grand jury, the prosecution contended that Defendants and Hunter's brother. were:ov. members of Big Block, a criminal street gang, and that Rice was killed because he was a member of West Mob, a rival gang, and because Rice had publicly threatened Hunter's brother. In testimony before the grandjury, Inspector Leonard Broberg, a gang expert from the San Francisco Police Department Gang Task Force, opined that the murder and attempted murder were committed for the benefit of Big Block. Brobergtestified that “gangsters are now in the 21st century and they have taken on a new aspect ofbeing gangbangers, and they do something called cyber banging. They will actually be gangsters on the internet. They will issue challenges; will show signs of disrespect, whetherit's via images or whetherit's via the written word ... Facebook, Instagram,Socialcam,Vine... [.] [{]] ... They will disrespect each other in cyberspace.” Broberg described for the grand jury a video posted by Rice on Facebookin which he rapped while giving a tour of his gang neighborhood and pointed out areas where he could be foundif rival gang members wanted to find him, including the location where Rice was shot. In a subsequent declaration, Broberg averred that he “tel[ies] heavily on records from social media providers such as Facebook, Instagram, and Twitter to investigate and prosecute alleged gang members for gang crime.” Broberg said that he regularly relied on social media records in forming an opinion whether a particular *447 crime is gang related. Broberg also said herelied, in part, on social media records as evidence that Rice and the Defendants were members ofrival gangs and that the drive-by shooting was gangrelated. Defendants were indicted and stand charged with, inter alia, the murder of Rice and the attempted murder of B.K. (Pen.Code, §§ 187, 664). Gang and firearm enhancements are alleged as to both Defendants in the indictment. (/d., §§ 186.22, subd. (b)(1), 12022, subd. (a), 12022.53, subds. (d) & (e)(1).) Sullivan's counsel served subpoenas duces tecum (Pen.Code, § 1326, subd. (b)) on Facebook, Instagram, and Twitter, seeking records from the social media accounts of Rice and Lee. As to Facebook, the subpoena seeks “{aJny and all public and private content,” including, but “not limited to user information, associated email addresses, photographs, videos, private messages,activity logs, posts, status updates, location data, and comments including information deleted by the account holder” for accounts belonging to Rice and WestlawNext’ © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Facebook,Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (201 5) 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,405 to Lee. As to Instagram, the subpoena seeks “{a]ny andall public and private content,” including, but “not limited to user information;iassociated email addresses, photographs, videos, private messages, activity logs, posts, location data, and comments,” as well as “data deleted by the account holder” associated with accounts belonging to Rice and Lee. Sullivan's subpoena to Twitter seeks similar information as to Lee only. Hunter's subpoena to Twitter seeks a subset of that information for “all accounts” registered to Lee. Sullivan's subpoenasalso seek the identity of the custodian of records for petitioners who could authenticate the requested records. Petitioners moved to quash the subpoenas, arguing that disclosure of the information sought was barred by the SCA. Defendants opposed, contending that their constitutional rights to present a complete defense, cross-examine witnesses, and a fair trial prevailed over the privacy rights of account holders under the SCA. In an offer of proof as to Lee's social media records, Sullivan alleged that Lee was the only witness who implicated him in the shootings, that the records would demonstrate Lee was motivated by jealous rage over Sullivan's involvement with other women, and that Lee had repeatedly threatened others with violence. Sullivan cited examples ofpostings on what he said was Lee's Twitter account that included a photograph of Lee holding a gun and making specific threats. In his offer of proof as to Rice's social media records,Sullivan said review ofthe records was required to “locate exculpatory evidence” and to confront and cross-examine Broberg. Sullivan cited Broberg's grand jury testimony andattached examples to his opposition of what he alleged were screen shots of violent video postings by Rice, asserting that the subpoenaed records would show that Rice was “a violent criminal who routinely posted rap videos and other posts threatening [Hunter's brother] and other individuals.” Hearings on the motions to quash were held on January 7 and 22, 2015. Thetrial court denied petitioners’ motions to quash, and orderedpetitioners to produce responsive material for an in camera review by February 27. > Petitioners filed a petition for writ of mandate in this court contending that the trial court abused its discretion in denying the motion to quash, and *448 seeking a stay of the order to produce the requested materials. On February 26, we stayed the production order pending consideration of the petition and requested opposition. Sullivan submitted an answer, in which Hunterjoined. On March 30, we issued an orderto show cause to the respondentsuperior court whythereliefrequested in the petition should not be granted, and we declined Defendants’ request to dissolve the stay. Sullivan filed a return to the order to show cause, in which Hunter joined, and to which petitioners filed a reply. 6 Il. DISCUSSION The issues of statutory interpretation and constitutional challenges presented are purely ones of law. Wetherefore exercise de novo review and accord no deferenceto thetrial court's ruling. (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 632, 92 Cal.Rptr.2d 115.) A. Petitioners Petitioners operate social networking sites. Social network sites are Web-basedservices that allow individuals to create a public profile, create a list of users with whom to share connections, and view their list of connections and those made by others within the system. (Boyd & Ellison, Social Network Sites: Definition, History, and Scholarship (2008) 13 J. of Computer—-Mediated Comm.210, 211.) Facebook was founded in 2004 and is an online social networkingservice. After registering to use thesite, users can create a user profile, add other users as “friends,” exchange messages, post status updates and photos, share videos and receive notifications when others update their profiles. As of June 2015,it claimed 968 million daily active users, and 1.49 billion monthly active users. (Facebook, Company Info < https://newsroom.fb.com/company-info/> {as of Sept. 8, 2015].) Instagram was launched in 2010, and is an online mobile photo-sharing, video-sharing and social networking service that enables its users to take pictures and videos, and share them on other social networking platforms. It reports 300 million monthly active users, posting an average of 70 million photographs per day, and over 30 billion photographssharedonits site. (Instagram, Our Story [as of Sept. 8, 2015].) Twitter was created in 2006 and is a public social networking website where users can write and respond to short messages called “tweets.” Registered users can read and post tweets, but unregistered users can only read them. Twitter has its own integrated photo-sharing service that enables users to upload a photo andattach it to a tweet. Twitter messagesare public, but users can also send private messages. Twitter reportsthat, as of June 2015, it had more than 500 million tweets sent per day and morethan 316 million monthly active users. (Twitter, WestlawNext' © 2015 Thomson Reuters. No claim to original U.S. Government Wo rks. 5 Facebook,Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (2015) 15 Gal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,405 Company < https://about.twitter.com/company> [as of Sept. 8, 2015}.) ata UK B. The SCA The SCAis a part of the Electronic Communications Privacy Act (Pub.L. No. 99-508 (Oct. 21, 1986) 100 Stat. 1860). (See Stuckey & Ellis, Internet and Online Law (2015) § 5.02[4], p. 5-18.1 (rel.# 37).) “The [Electronic Communications] Privacy Act creates a zone of privacy to protect *449 internet subscribers from having their personal information wrongfully used and publicly disclosed by ‘unauthorized private parties.’ ” (In re Subpoena Duces Tecum to AOL, LLC (E.D.Va.2008) 550 F.Supp.2d 606, 610.) Congress's intention in enacting the SCA was to protect from disclosure private, personalinformation that happensto be stored electronically. (AOL, at p. 610, citing Sen.Rep. No. 99-541, p. 3 (1986), reprinted in 1986 U.S.Code Cong. & Admin. News,pp. 3555, 3557.) “The SCA declares that, subject to certain conditions and exceptions, ‘a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service...’ (... § 2702(a)(1).) Similarly, but subject to certain additional conditions, ‘a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication whichis carried or maintained onthat service....” (... § 2702(a) (2).)” (O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1440, 44 Cal_Rptr.3d 72 (O'Grady ).) The SCA “protects individuals’ privacy and proprietary interests. The Act reflects Congress's judgmentthat users have a legitimate interest in the confidentiality ofcommunicationsin electronic storage at a communicationsfacility. Just as trespass protects those who rent space from a commercial storage facility to hold sensitive documents, [citation], the Act protects users whose electronic communications are in electronic storage with an [Internet Service Provider] or other electronic communicationsfacility.” (Theofel v. Farey-Jones (9th Cir. 2004) 359 F.3d 1066, 1072-1073.) It is undisputed that the materials Defendants seek here are subject to the SCA's protections. “The SCA enumerates several exceptions to the rule that service providers may not disclose the contents of stored messages. Among the disclosures authorized are those that are incidental to the provision of the intended service(see... § 2702(b)(1), (4), (5)); incidental to the protection of the rights or property of the service provider (... § 2702(b)(5)); made with the consent of a party to the communication or, in some cases, the consent of thesubscriber (see ... § 2702(b)(3)); related to child abuse(... § 2702(b)(6)); made to public agents or entities under certain conditions (... § 2702(b)(7), (8)); related to authorized wiretaps(... §§ 2702(b) (2), 2517, 2511(2)(a)(ii)); or made in compliance with certain criminal or administrative subpoenas issued in compliance with federal procedures(... §§ 2702(b)(2), 2703).” (O'Grady, supra, 139 Cal.App.4th at p. 1441, 44 Cal.Rptr.3d 72.) “ ‘Ail other disclosures—including disclosures of content pursuant to a third party subpoenaincivil litigation—are prohibited.’ ” (Id. at p. 1443, fn. 10, 44 Cal.Rptr.3d 72; Stuckey & Ellis, Internet and Online Law,supra, § 5.02[4] [b], p. 5-19 (rel.# 37).) In O'Grady, Apple Computer sought and obtainedauthority from the trial court, inter alia, to subpoena information from an e-mail service provider for a Web site publisher in order to identify the source of unauthorized publication of Apple's confidential product information. The trial court denied the provider's request for a protective order. (O'Grady, supra, 139 Cal.App.4th at p. 1431, 44 Cal.Rptr.3d 72.) Construing the absenceofany exception forcivil discovery subpoenasin the text of the statute as intentional, the Sixth District reversed and held that the subpoena to the e-mail service provider “cannot be enforced consistent with the plain terms of the [SCA].” (O'Grady, at pp. 1432, 1447, 44 Cal.Rptr.3d 72.) Federal decisions are *450 in accord. (See Mintz v. Mark Bartelstein & Associates, Inc. (C.D.Cal.2012) 885 F.Supp.2d 987, 991-992[“[t]he SCA does not contain an exception for civil discovery subpoenas”); Crispin v. Christian Audigier, Inc. (C.D.Cal.2010) 717 F.Supp.2d 965, 976 [same]; Jn re Subpoena Duces Tecum to AOL, LLC, supra, 550 F.Supp.2d at p. 611 [‘the clear and unambiguous language of § 2702... does not include an exception for the disclosure ofelectronic communications pursuant to civil discovery subpoenas”); Flagg v. City ofDetroit (E.D.Mich.2008) 252 F.R.D. 346, 350 [“§ 2702 ... lacks any language that explicitly authorizes a service provider to divulge the contents of a communication pursuant to a subpoenaor court order”]; Viacom Intern. Inc. v. Youtube Inc. (S.D.N.Y.2008) 253 F.R.D. 256, 264 [“§ 2702 contains no exception for disclosure of [private videos and data revealing their contents] pursuant to civil discovery requests”].) In the criminal context, the SCA provides for disclosure of the content of an electronic communication to a governmental agency, without notice to the subscriber or customer, “only ‘WestlawNext' © 2015 Thomson Reuters. No claim to original U.S. Gove rnment Works. 6 Facebook, Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (2015) 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,405 pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case éfa State court, issued using State warrant procedures) by a court of competent jurisdiction.” (§ 2703(a), (b)C1) (A).)/ Disclosure of the communication content may also be compelled by a “governmental entity,” with notice to the subscriber by (1) “administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena” (§ 2703(b)(1)(B)(i)); or (2) a court order for disclosure “only if the governmental entity offers specific and articulable facts showing that there are reasonable groundsto believe that the contents of a wire or electronic communication, or the recordsor other information sought, are relevant and material to an ongoing criminal investigation” (§ 2703(d), (b)(1)(B)Gi). Several courts have recognized that users have a Fourth Amendmentreasonable expectation of privacy in electronic communications “ ‘that are stored with, or sent or received through, a commercial [Internet Service Provider]’ ” and that a warrant, based on probable cause, may be required to obtain communication content. (U.S. v. Warshak (6th Cir. 2010) 631 F.3d 266, 288 [holding the SCA unconstitutionalto the extent that it would permit the governmentto obtain the content ofthe defendant's e-mails without a warrant]; see U.S. v. Hanna(6th Cir. 2011) 661 F.3d 271, 287 & fn. 4; U.S. v. Lucas (6th Cir. 2011) 640 F.3d 168, 178.) “As some forms of communication begin to diminish, the Fourth Amendment must recognize and protect nascent onesthat arise.” (Warshak, at p. 286.) [1] The SCA provides no direct mechanism for access by a criminal defendant to private communication content, and “California's discovery laws cannotbe enforced in a way that compels... disclosures violating the Act.” (Negro v. Superior Court (2014) 230 Cal.App.4th 879, 889, 179 Cal.Rptr.3d 215; id. at p. 888, 179 Cal.Rptr.3d 215; see O'Grady, supra, 139 Cal.App.4th at p. 1451, 44 Cal.Rptr.3d 72 [enforcing civil subpoenasto obtainidentities of sources ofpublished content from e-mail service providers would violate SCA and offend the principle of federal supremacy].) Defendants insist that, notwithstanding constraints of the SCA,the subpoenaed materials are necessary to ensure their *451 right to present a complete defense to the charges against them, and that their Fifth Amendment guarantee of due process and Sixth Amendmentright to compulsory process are implicated. (See Holmesv. South Carolina (2006) 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 [federal Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense].) Moreover , they argue that their Sixth Amendmentrights to effective assistance of counsel and confrontation of the witnesses against them require that they be given the opportunity to conduct reasonablepretrial investigation of the prosecution's case. Defendants, and amici curiae, assert that the SCA is unconstitutional to the extent that it precludes access by a criminal defendant to information potentially material to his or her defense. Wethink that Defendants overstate the extent of constitutional support for their claims. C. Criminal Defense Discovery [2] [3] “There is no general constitutionalright to discovery in a criminal case, and ... ‘[t]he Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded...’ ” (Weatherford v. Bursey (1977) 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30; see United States v. Ruiz (2002) 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586; Wardius v. Oregon (1973) 412 U.S. 470, 474, 93 S.Ct. 2208, 37 L.Ed.2d 82.) In California, at least as to nonprivileged information, “[t]he defendant generally is entitled to discovery of information that will assist in his defense or be useful for impeachment or cross-examination of adverse witnesses.” (People v. Jenkins (2000) 22 Cal.4th 900, 953, 95 Cal.Rptr.2d 377, 997 P.2d 1044.) 1. Sixth Amendment [4] The Sixth Amendmentto the United States Constitution protects both the right of confrontation and the right of compulsory process: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him; [and] to have compulsory processfor obtaining witnesses in his favor.” Both clauses are binding on the States under the Fourteenth Amendment. (Pointerv. Texas (1965) 380 U.S. 400, 403-406, 85 S.Ct. 1065, 13 L.Ed.2d 923 [confrontation clause]; Washington v. Texas (1967) 388 U.S. 14, 17-19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 [compulsory process clause].) a. Confrontation/Cross—Examination [5] “The Confrontation clause provides two types of protections for a criminal defendant: the right physically to face those whotestify against him, andthe right to conduct cross-examination.” (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 51, 107 S.Ct. 989, 94 L.Ed.2d 40 (plur. opn. Powell,J.) (Ritchie), citing Delaware v. Fensterer (1985) 474 US. 15, 18-19, 106 S.Ct. 292, 88 L.Ed.2d 15.) ‘WestlawNext © 2015 Thomson Reuters. No claim to original U.S. G overnment Works. 7 Facebook,Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (2015) 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,405 In Davis v. Alaska (1974) 415 U.S. 308, 320-321, 94 S.Ct. 1105, 39 L.Ed.2d:347 (Davis ), the Supreme Court found a violation of the confrontation clause in a trial court's refusal to allow the defendant to impeach attrial the credibility of a key prosecution witness with the witness's probationary status resulting from ajuvenile delinquency adjudication. The trial court granted a prosecution protective order, precluding cross-examination concerning the witness's juvenile record, on the basis that the records were confidential under Alaska law. (id. at p. 311 & fns. 1, 2, 94 S.Ct. 1105 .) Noting that the “primary interest” secured by the right of confrontation is the right of cross-examination (id. at p. 315, 94 S.Ct. 1105), the Supreme Court found that thestate's policy interest *452 in protecting the confidentiality ofajuvenile offender's record “cannot require yielding of so vital a constitutional right as the effective cross-examination for bias ofan adverse witness.” (Id. at p. 320, 94 S.Ct. 1105.) Subsequently, in Ritchie, the Supreme Court considered the application ofDavis to pretrial discovery. While no majority consensus emerged concerning the proper application of the confrontation clause to the pretrial discovery issue presented, four justices expressed the view that “the right to confrontation is a trial right....” (Ritchie, supra, 480 U.S. at p. 52, 107 S.Ct. 989 (plur. opn. of Powell, J.); People v. Hammon (1997) 15 Cal.4th 1117, 1126, 65 Cal.Rptr.2d 1, 938 P.2d 986 (Hammon ).) The defendant, Ritchie, was convicted ofvarious sexual offenses with his minor daughter. Prior to trial, Ritchie attempted to subpoena confidential records from a state protective services agency which had investigated the abuse allegations. The agency refused to comply with the subpoena, claiming that the records were privileged under Pennsylvania law. Ritchie argued that he wasentitled to informationin the agencyfile becauseit might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence. The trial judge declined to order production. (Ritchie, at pp. 43-45, 107 S.Ct. 989.) The high court of Pennsylvania concluded that “Ritchie, through his lawyer, [was] entitled to review the entire file to search for any useful evidence.”(/d. at p. 46, 107 S.Ct. 989, fn.omitted.) Applying a due process analysis, the Supreme Court majority rejected the idea that a defendant's right to discover exculpatory evidence would include “unsupervised authority to search through the [agency] files.” (Ritchie, supra, 480 U.S. at p. 59, 107 S.Ct. 989; see id. at pp. 58-61, 107 S.Ct. 989 [concluding in camera review of agency file sufficient to protect Ritchie's interests].) A plurality of the Supreme Court also rejected the view that the trial court interfered with Ritchie's confrontation clause right of cross-examination by denying him pretrial access to information he contended was necessary to prepare his defense. (/d. at p. 51, 107 S.Ct. 989 (plur. opn. Powell, J.).) “The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination”and “[n]othing in the case law” supports the view that the confrontation clause creates “a constitutionally compelledrule of pretrial discovery.” (Ud. at p. 52, 107 S.Ct. 989.) The plurality found that Ritchie's due process rights were sufficiently protected by in camera review at trial of the confidential files to determine if they contained information material to his defense. ® (Id. at pp. 53-54, 107 S.Ct. 989; see Weatherford v. Bursey, supra, 429 U.S. at pp. 547, 559, 97 S.Ct. 837 [no due process violation in prosecution's pretrial failure to reveal identity of undercoverinformant whosetrial testimony was unfavorable to the defendant].) Our own Supreme Court has repeatedly declined to recognize a Sixth Amendment right to defense pretrial discovery of otherwise privileged or confidential information. *453 In People v. Webb (1993) 6 Cal.4th 494, 24 Cal.Rptr.2d 779, 862 P.2d 779, the defense subpoenaed psychiatric records of a witness in a capital murder case, arguing entitlement to any information in the records affecting the competence or credibility of the witness in order to “ ‘fairly cross- examine’ ” her. (/d. at p. 516, 24 Cal.Rptr.2d 779, 862 P.2d 779.) The trial court conducted in camera review of the records and provided limited disclosure. The defendant, citing Ritchie, contended that limited pretrial disclosure of the psychiatric records prejudicially underminedhis right to cross-examine the witness effectively at trial. (Webb, at p. 517, 24 Cal.Rptr.2d 779, 862 P.2d 779.) The court refused to read Ritchie as broadly as defendant urged, and questioned whether the defendant had any constitutional right to examine the records at all, even if material, in light of the strong policy protecting a patient's treatment history. “Simplystated, it is not clear whether or to what extent the confrontation or compulsory process clauses of the Sixth Amendment grant pretrial discovery rights to the accused.” (Webb, at pp. 517— 518, 24 Cal.Rptr.2d 779, 862 P.2d 779.) Ourhigh court again considered the extentofpretrial defense discovery of otherwise privileged information in Hammon, supra, 15 Cal.4th 1117, 65 Cal.Rptr.2d 1, 938 P.2d 986. In that case, the defense served subpoenas duces tecum on WestlawNext © 2015 Thomson Reuters. No claim io original U.S. Government Works, 8 Facebook,Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (2015) 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,405 psychotherapists who had treated the complaining witness in a sexual molestation case, claiming the records would be necessary to challenge the witness's credibility. Thetial court granted the People's motion to quash the subpoenas.(/d. at pp. 1119-1121, 65 Cal.Rptr.2d 1, 938 P.2d 986.) Noting the lack ofa majority consensusin Ritchie on the proper application of the confrontation clause, the Hammon court observedthat“it is notat all clear ‘whether or to what extent the confrontation or compulsory process clauses ofthe Sixth Amendment grant pretrial discovery rights to the accused.’ ” (Hammon,at p. 1126, 65 Cal.Rptr.2d 1, 938 P.2d 986.) In declining to extend a defendant's Sixth Amendment rights of confrontation and cross-examination to authorize pretrial disclosure of privileged information, our Supreme Court expressly overruled a series of intermediate appellate cases interpreting Davis, supra, 415 U.S. 308, 94 S.Ct. 1105, to require pretrial disclosure of privileged information when a defendant's need for the information outweighed the confidentiality interest. (Hammon, supra, 15 Cal.4th at p. 1123, 65 Cal.Rptr.2d 1, 938 P.2d 986.) The Hammon court found that People v. Reber (1986) 177 Cal.App.3d 523, 223 Cal.Rptr. 139 (permitting pretrial discovery of a complaining witness's psychotherapy records) and cases following that decision were “not correct.” (Hammon, at p. 1123, 65 Cal.Rptr.2d 1, 938 P.2d 986.) “In authorizing disclosure before trial ... Reber went farther than Davis required, with insufficient justification.” (Hammon, at p. 1123, 65 Cal.Rptr.2d 1, 938 P.2d 986.) “We do not... see an adequate justification for taking such a long step in a direction the United States Supreme Court has not gone.”(Id. at p. 1127, 65 Cal.Rptr.2d 1, 938 P.2d 986.) The high court recognized that at trial, a trial court might be called upon to balance a defendant's need for cross-examination and the policies supportinga statutory or constitutional privilege, but also noted that entertaining such requests pretrial—whenthe trial court wouldnot typically have sufficient information to conductthe inquiry—presenteda seriousrisk of unnecessary invasion ofstatutory privilege. bid.) In Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 99 Cal.Rptr.2d 149, 5 P.3d 203, the trial court issued protective orders in ajail homicide case, permitting the *454 prosecution to withhold the names ofwitnesses, both pretrial and during testimony at trial. (/d. at pp. 1128-1130, 99 Cal.Rptr.2d 149, 5 P.3d 203.) The Supreme Court found the order valid to the extent it permitted pretrial nondisclosure of the witnesses’ identities, rejecting the argument that nondisclosure violated the defendants’ constitutional rights to due process of law and to confront the witnesses against them.” (Id. at pp. 1132, 1134-1136, 99 Cal.Rptr.2d 149, 5 P.3d 203; see Weatherford v. Bursey, supra, 429:.U.S. at pp. 559-561, 97 S.Ct. 837 [no constitutional violation where prosecution surprised the defendantattrial by calling to the stand a previously undisclosed witness].) In People v. Valdez (2012) 55 Cal.4th 82, 144 Cal.Rptr.3d 865, 281 P.3d 924, our high court again approveda trial court order, issued pursuant to Penal Code section 1054.7, 10 delaying and limiting disclosure of the identities of prosecution witnesses to protect the safety of those witnesses. (Valdez, at pp. 101- 105, 144 Cal.Rptr.3d 865, 281 P.3d 924.) The court again found no authority for any contention that “section 1054.7, insofar as it authorizes ‘the denialofpretrial disclosure’ based on concerns for witness safety, is ‘unconstitutional under either the confrontation or the due processclause.’ ” (Valdez, at p. 106, 144 Cal.Rptr.3d 865, 281 P.3d 924; see People vy. Maciel (2013) 57 Cal.4th 482, 506-510, 160 Cal.Rptr.3d 305, 304 P.3d 983 [rejecting similar claims by a different defendant regarding the sameprotective orders].) [6] In sum,thereis little, if any, support for Defendants’ claim that the confrontation clause of the Sixth Amendment mandates disclosure of otherwise privileged information for purposes of a defendant's pretrial investigation of the prosecution's case. b. Compulsory Process {7] We find even less support for Defendants' contention that the compulsory process clause of the Sixth Amendment separately authorizesthetrial court's order here. The Supreme Court “has had little occasion to discuss the contours of the Compulsory Process Clause.”(Ritchie, supra, 480 U.S. at p. 55, 107 S.Ct. 989.) The cases provide that “at a minimum ... criminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses attrial and the right to put before ajury evidence that mightinfluence the determination ofguilt.” (/d. at p. 56, 107 S.Ct. 989,italics added, citing Chambers v. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, Cool v. United States (1972) 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335, and Washington v. Texas, supra, 388 USS. 14, 87 S.Ct. 1920.) The Ritchie majority concludedthat “compulsory process provides no greater protections in this area than those affordedby dueprocess,” and that claims such as this are better evaluated “under the broader protections of the Due Process Clause of the Fourteenth Amendment” WestlawNext’ © 2015 Thomson Reuters. No claim to original U.S. Government Works. g Facebook,Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (201 5) 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,405 addressing the fundamentalfairnessoftrials. (Ritchie, at p. 56, 107 S.Ct. 989.) hte» TUTTO: *455 Our own Supreme Court has rejected a claim that a defendant was denied his Sixth Amendmentrightto effective counsel when he was denied access to an FBI database for use in cross-examination of a prosecution expert, allegedly thereby compromising his right to present a meaningful defense, a fair opportunity to be heard, and the constitutional right to reliable factfinding. (People v. Prince (2007) 40 Cal.4th 1179, 1233-1234, 57 Cal.Rptr.3d 543, 156 P.3d 1015.) Similar to Defendants’ contentionshere, Prince argued that lack of access to the database “ ‘depriv[ed] [him] of evidence clearly bearing on the credibility ofkey prosecution witnesses.” ” (Id. at p. 1234, 57 Cal.Rptr.3d 543, 156 P.3d 1015.) Finding it unnecessary to address the claim on evidence in the record, the court nevertheless noted that “{tJo the extent defendant's claim concerns pretrial discovery and is based upon the confrontation or compulsory process clauses of the Sixth Amendment,it is on a weak footing. ‘As we have previously observed, in light of the divided views of the justices of the Supreme Court ... it is not at all clear “whether or to what extent the confrontation or compulsory process clauses of the Sixth Amendment grant pretrial discovery rights to the accused.” ’ ” (Prince, at p. 1234 & fn. 10, 57 Cal.Rptr.3d 543, 156 P.3d 1015; see People v. Clark (2011) 52 Cal.4th 856, 982-983, 131 Cal.Rptr.3d 225, 261 P.3d 243 [rejecting a claim that failure to disclose witness's misdemeanor conviction prior to guilt phase of capital trial deprived defendant of compulsory process and confrontation rights, and declining to “recognize a Sixth Amendmentviolation when a defendant is denied discovery that results in a significant impairment of his ability to investigate and cross-examine a witness”].) 2. Fifth Amendment and Due Process [8] Defendants and amici curiae argue that failure to provide pretrial discovery would deny Defendants their due process rights to meaningfully prepare and present a defense to the chargesagainst them. They more broadly assert that the SCA is unconstitutional to the extent that it denies them access to information available to the prosecution through search warrant, subpoena, or court order. {9] [10] To prevail on a claim that a statute violates due process, a defendant “must carry a heavy burden. The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favorits validity. [Citations.] In the due process context, defendant must show that [the statute] offends some principle ofjustice so rooted in the tradittens and conscience of our peopleasto be ranked as fundamental.” (People v. Falsetta (1999) 21 Cal.4th 903, 912-913, 89 Cal.Rptr.2d 847, 986 P.2d 182; see Patterson v. New York (1977) 432 U.S. 197, 201-202, 97 S.Ct. 2319, 53 L.Ed.2d 281.) Fundamental principles ofjustice are those « ¢ « ‘which lie at the base of our civil and political institutions’ [citation] and which define ‘the community's sense of fair play and decency.’ ”'” (Falsetta, at p. 913, 89 Cal.Rptr.2d 847, 986 P.2d 182, quoting Dowling v. United States (1990) 493 U.S. 342, 353, 110 S.Ct. 668, 107 L.Ed.2d 708.) The observation of the United States Supreme Court that “ ‘It]he Due Process Clause haslittle to say regarding the amount of discovery which the parties mustbe afforded....’ ” (Wardius v. Oregon, supra, 412 U.S. at p. 474, 93 S.Ct. 2208; Weatherford v. Bursey, supra, 429 US. at p. 559, 97 S.Ct. 837) has been repeated often by our own high court. (People v. Williams (2013) 58 Cal.4th 197, 259, 165 Cal.Rptr.3d 717, 315 P.3d 1; *456 People v. Maciel, supra, 57 Cal.4th at p. 508, 160 Cal.Rptr.3d 305, 304 P.3d 983; People v. Valdez, supra, 55 Cal.4th at pp. 109-110, 144 Cal.Rptr.3d 865, 281 P.3d 924.) In City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 124 Cal.Rptr.2d 202, 52 P.3d 129, our Supreme Court rejected a due process challenge to Evidence Code section 1045, subdivision (b), limiting defense discovery of complaints ofpolice officer misconduct to a five year window.The defendantarguedthat enforcement ofthe limitation would unduly infringehis rightto a fairtrial, and that information older than five years old might qualify as evidence favorable to the accused that is material to guilt or punishmentunder Brady v. Maryland (1963) 373 US. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (Brady ). (City ofLos Angeles, at p. 7, 124 Cal.Rptr.2d 202, 52 P.3d 129.) The court found no due process“fundamentalprinciple ofjustice” implicated. (Id. at p. 12, 124 Cal.Rptr.2d 202, 52 P.3d 129.) The court “ “to restrict the prosecution's ability to suppress evidence rather than to provide the accused a right to criminal discovery.’ ” (People v. Morrison (2004) 34 Cal.4th 698, 715, 21 Cal.Rptr.3d 682, 101 P.3d 568, italics added.) has separately observed that Brady merely serves a9 D. Other Access to Information and Reciprocity [11] As petitioners correctly note, Defendants are not wholly precluded from access to much ofthe information that they now seek by subpoena. The prosecution has obtained at least some of Rice's Facebook and Instagram WestlawNext' © 2015 Thomson Reuters. No claim to original U.S. Gove rnment Works. 40 stpy Facebook,Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (2015 ) 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,4 05 communications pursuant to search warrant, as authorized by the SCA. 11 Defendants do notsuggest why they woul d not be entitled to receive copies of those communications, either as general criminal discovery required under Penal Code section 1054.1, 12 oras potentially *457 exculpatory Brady material. (See U.S. v. Pierce (2d Cir. 2015) 785 F.3d 832, 841-842 [declining to address constitutional challenge to the SCA for failure to provide reciprocal discovery rights where defendant otherwise obtained material from witness's Facebook account, and dismissing as speculative the suggestion that additional relevant exculpatory material might have been in the account].) The due process clause of the federal Constitution requires the prosecution “to disclose to the defense evidence in its possession that is favorable to the accused and materialto the issues of guilt or punishment.” (People v. Jenkins, supra, 22 Cal.4th at p. 954, 95 Cal.Rptr.2d 377, 997 P.2d 1044.) [12] Defendants respond that access only to records that tend to support the prosecution's theory of the case does not provide them with the complete materials necessary to present a full defense. They argue the SCA establishes “a one-sided, arbitrary, and unconstitutional preference that the government, but not the defense, is entitled to access to relevant electronic evidence.” They assert that such a disparity in treatment is prohibited by Wardius v. Oregon, supra, 412 U.S. 470, 93 S.Ct. 2208. In Wardius, the Unit es States Supreme Court struck down a state statute that required the defendant to disclose the namesofhis alibi witnesses, but did not require the prosecution to disclose the names of its witnesses. (Id. at pp. 471-472 & fn. 3, 93 S.Ct. 2208 .) “[A]lthough the Due Process Clause haslittle to say regarding the amount of discovery which the parties must be afforded [citation], it does speak to the balance of forces between the accused and his accuser.” (/d. at p. 474, 93 S.Ct. 2208.) The court held that “in the absence of a strong showing of state interests to the contrary, discovery must be a two-way street.” (Ud. at p. 475, 93 S.Ct. 2208.) The discovery in Wardius, however, did not involve disclosure of privileged or confidential information, and a varie ty of investigative and evidence collection proceduresare routinely available to governmental agenciesthat are not provided to a criminal defendant. The prosecution, for example, can obtain search warrants and compel attendance of witnesses before a grand jury. Because the concern of the due process clause is “the right of the defendantto a fairtrial,” the focus of the reciprocity inquiry under the due process clause is whether any lack of reciprocity “ ‘interferes with the defendant's ability to secure a fair trial.’ ” (People v. Hansel (1992) 1 Cal.4th 1211, 1221, 4 Cal.Rptr.2d 888, 824 P.2d 694.) Thus, “mere mechanical repetition of the word ‘reciprocity’ is not enough to show that[a defendant's] right to a fair hearing {has been] violated.” (/bid. fn. omitted.) In People v. Valdez, supra, 55 Cal.4th 82, 144 Cal.Rptr.3d 865, 281 P.3d 924, our Supreme Court rejected a defendant's challenge to protective orders entered in a gang-related homicide case, delaying disclosure of the identity of prosecution witnesses and permitting the prosecution to attend and transcribe defense interviews of prosecution witnesses. (/d. at pp. 93-94, 119-120, 144 Cal.Rptr.3d 865, 281 P.3d 924.) Valdez challenged the order authorizing prosecution attendance at witness interviews on due process grounds, alleging that, by granting this discovery to the prosecution “ ‘but not providing [him] with a reciprocal right, the trial court upset the “balance of forces between the accused and [the] accuser,” in violation of [his] right to due process under the Fourteenth Amendment.’ ” (Id. at p. 120, 144 Cal.Rptr.3d 865, 281 P.3d 924.) The Supreme *458 Court disagreed. “The inquiry is not whether ‘the proceduresavailable to the defendant... precisely mirror{ed] those available to the prosecution,’ but whether the defendant received ‘a full and fair opportunity to present’ a defense and whethertherulesat issue ‘tilt[ed] the balance toward the state to any significant degree.’ [Citation.] ... [T]o the extent there was any nonreciprocity, the prosecution made ‘a strong showingofstateinterests’ to justify the trial court's order.” (Id. at pp. 120-121, 144 Cal.Rptr.3d 865, 281 P.3d 924.) Defendants insist the SCA must yield to their statutory right to obtain records necessary to investigate a case and present a compete defense through useof a criminal subpoena duces tecum. (Pen.Code, § 1326.) They urge that the confidential nature of the information obtained is adequately protected by the requirementthat the records of a nonparty be delivered to the court, and bythe ability of the court to hold an in camera hearing to determinethe relevanceof the material sought. [13] Defendants are correct that issuance of a subpoena duces tecum pursuant to Penal Code section 1326 does not “entitle” the person on whose behalf it is issued to obtain access to the subpoenaed records “until a judicial determination has been madethatthe personis legally entitled to receive them.” (People v. Blair (1979) 25 Cal.3d 640, 651, 159 Cal.Rptr. 818, 602 P.2d 738.) The difficulty presented in the pretrial setting, however, is that no prior notice is required to the individual whose records are subpoenaed(cf. Code Civ. Proc., § 1985.3, subd. (b)), and the existence of WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Gove rnment Works. 11 Facebook,Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (2015) 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,405 the responsive documents may not even be disclosed to the prosecution (see Pen.Code, § 1326, subd. (c).? Such a nonadversarial ex parte processisill-suited to adjudication: of contested issues of privilege. While the court “may order an in camera hearing to determine whether or not the defense is entitled to receive the documents” (ibid.) and may elect to invite the prosecution to participate in and argue at a hearing on a defense subpoena duces tecum (see Kling v. Superior Court (2010) 50 Cal.4th 1068, 1072, 116 Cal.Rptr.3d 217, 239 P.3d 670; People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 750, 76 Cal.Rptr.3d 276, 182 P.3d 600), the court wouldstill be unlikely to ha ve any context to make a meaningful evaluation pretrial, and in most instances would not have the benefit of an adversarial response. Absent responseby the service provider, as here, the court may not even be cognizantof objections to production, and of the level of in camera scrutiny required. As noted ante, our Supreme Court has previously found “persuasive reason{s]” not to permit pretrial disclosure of privileged or confidential information, and observed that there was “tisk inherent in entertaining such pretrial requests.” ({fammon, supra, 15 Cal.4th at p. 1127, 65 Cal.Rptr.2d 1, 938 P.2d 986.) “When a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial *459 court may be called upon,as in [Davis, supra, 415 U.S. 308, 94 §.Ct. 1105] to balance the defendant's need for cross-examination and the state policies the privilege is intended to serve. [Citation.] Beforetrial, the court typically will not have sufficient information to conductthis inquiry; hence,ifpretrial disclosureis permitted, a seriousrisk arises that privileged material will be disclosed unnecessarily.” (Hammon,at p. 1127, 65 Cal.Rptr.2d 1, 938 P.2d 986.) A defendant's general right to issue subpoenas duces tecum to private persons “provides no basis for overriding a statutory and constitutional privilege.” Ud. at p 1128, 65 Cal.Rptr.2d 1, 938 P.2d 986.) Moreover, accepting Defendants’ argument would lead to an anomalous result. In order to obtain third party confidential information protected by the SCA, a governmental entity would have to obtain a search warrant, authorized in advance by a magistrate on a sufficient showing of probable cause (§ 2703(a), (b)(1)(A)), 14 or provide notice to the subscriber in order for an administrative or trial subpoena to issue (§ 2703(b)(1)(B)(i)). However, a criminal defendant could procure such confidential information simply by serving an ex parte subpoena duces tecum with no required notice to the subscriber or prosecuting authority—and which may, or may not, be subject to meaningful judicial review. 1s In sum, we find no support for the trial court's order for pretrial production of information otherwise subject to the SCA's protections. The consistent and clear teaching of both United States Supreme Court and California Supreme Court jurisprudenceis that a criminal defendant's right to pretrial discovery is limited, and lacks any solid constitutional foundation. Simply alleging that the material they seek might be helpful to their defense does not meet Defendants’ burden to show that the SCA is unconstitutional in denying them access to protected information at this stage of the proceedings. Accordingly wegrant the writ and direct that the trial court vacate its order. We emphasize that our rulingis limitedto the pretrial context in whichthetrial court's order was made. 16 Nothing in this *460 opinion would preclude Defendants from seeking at trial the production ofthe materials soughthere (orpetitioners again seeking to quash subpoenas), where the trial court wouldbe far better equippedto balance the Defendants’ need for effective cross-examination and the policies the SCA is intended to serve. 7 III. DISPOSITION Let a peremptory writ of mandate issue directing the trial court to vacateits January 22, 2015 order denyingpetitioners’ motion to quash the subpoenas for the social media records ofJaquan Rice,Jr., and ReneshaLee, and to thereafter enter a new anddifferent order granting petitioners’ motion to quash. The previously issued stay shall dissolve upon issuance ofthe remittitur. (Cal. Rules of Court, rule 8.490(d).) WE CONCUR: JONES, P.J. MARGULIES,J." All Citations 192 Cal.Rptr.3d 443, 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,405 WesttawNext © 2015 Thomson Reuters. No claim to original U.S. G overnment Works. 12 creny XE Facebook,Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (2015 ) 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A.R. 10,405 Footnotes 1 2 O o a t W 10 11 {2 13 Undésignated statutory referencesaretotitle 18 of the United States G ede. As noted post, the record before usis not clear that Hunter joined in opposition to the motions to quashbelow, but he has formally joined in Sullivan's arguments in this court. For simplicity's sak e, we refer to opposition below as that of the Defendants’ collectively. Werecite the facts as set forth by Defendants’ oppositionin the trial court, a nd we accept thosefactsas true for purposes of the petition unless specifically controverted bypetitioners. Hunter's brother wastried in juvenile court and foundguilty of Rice's mu rder and the attempted murderof B.K. Hunter apparently did not oppose Twitter's motion to quash his s ubpoena,but the trial court nonetheless denied that motion on the samebasis asits denial of the motions to quash Sulliva n's subpoenas. We subsequently granted application of the Public Defenderof the City and County of San Francisco to appear as amicus curiae on behalf of the respondenttrial court and Defendants. Wealso grant ed the applications of California Attorneys for Criminal Justice, the California Public Defenders Association, and the Pub lic Defender of Ventura County to appear as amici curiae on behalf of Defendants. in the instant case, the People obtained and served search warrants for several of Rice's social media communications. Threejustices indicated that, in some circumstances, denial of a defendant's pret rial accessto information that is needed for effective cross-examination could violate the confrontation clause. (Ritchie, s upra, 480 U.S.at pp. 61-66, 107 S.Ct. 989 (conc. opn. of Blackmun, J.); id. at pp. 66-72, 107 S.Ct. 989 (dis. opn. of Br ennan,J.).) The two remaining justices expressed no view onthis issue. (See id. at pp. 72-78, 107 S.Ct. 989 (dis. o pn. of Stevens, J. [concluding that the writ of certiorari should have been dismissed for wantofa final judgment].). ) As we discusspost, the court in Hammon, supra, 15 Cal.4th 1117, 65 Cal.Rptr. 2d 1, 938 P.2d 986, suggested a different result regarding nondisclosureattrial. Penal Code section 1054.7 permits disclosure of discovery information othe rwise required to be provided to a criminal defendantatleast 30 days beforetrial to be “denied, restricted, or deferred”f or “good cause,”limited to “threats or possible danger to the safety of a victim or witness, possible loss or destruction o f evidence, or possible compromise of other investigations by law enforcement.” Defendants argued in the trial court, and contend here, that production of s ubscriber information, including complete social media profiles for Lee and Rice, is necessary to permit authentica tion of relevant postings already in their possession. Petitioners assert that the subscriber data is unnecessary for this purpose since actual postings may be self- authenticating. (See People v. Valdez (2011) 201 Cal.App.4th 1429, 1435, 1 35 Cal.Rptr.3d 628 [printouts of MySpace Webpagessufficiently authenticated by personal photographs, communicatio ns, and otherdetails confirming that the pages belonged to defendant]; see also Evid.Code, §§ 1410 [norestriction on “the means by which a writing may be authenticated”], 1421 [authenticity may be established by the contents ofthe writi ng]; Joseph, Authentication: What Every Judge and Lawyer Needs to Know About Electronic Evidence (Autumn 2015 ) 99 Judicature 49, 51-53.) Petitioners further disclaim anyability to actually confirm the identity of the person or perso ns making a posting on a user account. Defendants and amici curiae pointto the difficulties encountered at the juven ile court trial of Hunter's brother when Lee refused to acknowledge what Defendants believe to be postings on her Twitte r account that included a photograph of Lee holding a gun and making threats of violence to others. This conflict mere ly servesto bolster our conclusionthat the necessity of disclosure is best determined by a trial judge in the contextof the evidence presented at trial. Penal Code section 1054.1 provides, “The prosecuting attorney shall dis close to the defendantor his or her attorney all of the following materials and information, ifit is in the possession of t he prosecuting attorney or if the prosecuting attorney knowsit to be in the possession of the investigating agencies: (a ) The names and addresses of persons the prosecutorintends to call as witnesses at trial. (b) Statements of all defend ants. (c) All relevant real evidence seized or obtained asa part of the investigation of the offenses charged. (d) The ex istence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. ( e) Any exculpatory evidence. (f) Relevant written or recorded statements of witnessesor reports of the statements of w itnesses whom the prosecutorintends to call at the trial, including any reports or statements of experts madein conju nction with the case, including the results of physical or mental examinations, scientific tests, experiments, or compari sons which the prosecutor intends to offer in evidenceat thetrial.” Penal Code section 1326 providesin relevant part: “In a criminal action, no par ty, or attorney or representative of a party, may issue a subpoena commanding the custodianof records or other qualifi ed witness of a business to provide books, papers, documents,orrecords,or copies thereof,relating to a personorentity other than the subpoenaed personorentity ‘WestlawNext’ © 2015 Thomson Reuters. No claim to original U.S. Gove rnment Works. 13 Facebook,Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (2015) 15 Cal. Daily Op. Serv. 10,127, 2015 Daily Journal D.A-R. 10,405 14 15 16 17 in any mannerotherthan that specified in subdivision (b) of Section 156 0of the Evidence Code. When a defendant has issued a subpoena to a person orentity that is not a party for the produc tion of books, papers, documents,or records,or copiesthereof, the court may order afi in camera hearing to determine wh etheror not the defense is entitled to receive the documents. The court may notorderthe documents disclosed to the pr osecution except as required by Section 1054.3.” Avery recent federaldecision of the Fourth Circuit has held that a law en forcement agency mayobtain at least some data protected by the SCA(in that instance, cell site location information) only by a search warrant, supported by a showing of probable cause, and maynot obtain the information under the lesser reasonable suspicion standard required for a court order undersection 2703(d). (United States v. Graham (4th Cir.2015) 796 F.3d 332["‘specific and articulable facts showingthat there are reasonable groundsto believe that... the records or other information sought... are relevant and material to an ongoing criminal investigation’ "].) At least one court has also noted the severe administrative burdens on service providers that compliance with routine subpoenaswould impose, “interfering with the manifest congressionalinte nt to encourage development and useofdigital communications.” (O'Grady, supra, 139 Cal.App.4th at p. 1446, 4 4 Cal.Rptr.3d 72.) The burdens imposed would be substantially greaterif service providers were regularly required to respon d to (and object to) routine pretrial subpoenas oncriminal matters, when the overwhelming majority of those matters will n ever result in a trial at all. (See Judicial Council of Cal., Rep. on Court Statistics: Statewide Caseload Trends 2003-200 4 Through 2012-2013 (2014) pp. 47-48 < http:// www.courts.ca.gov/documents/2014-Court-Statistics-Report.pdf> [as o f Sept. 8, 2015].) The burdens imposed on our courts, already struggling with constrained resources, in conducting hearin gs that would ultimately be unnecessary would be equally severe. At oral argument, Sullivan's counsel represented that the prop osed in camera hearing contemplatedin the trial court's order would have occurred only one daybeforetrial, and so should not be considered a “pretrial” proceeding. Counseldid not suggest what temporal proximity would make a hearing part ofthetrial . Nor did counsel suggest how this would cure the basicdifficulty of having someoneother than the trial judge weigh the co nfidentiality interests against a defendant's needfor the information,in the context of the evidence. Whetherthe balance weighsin favorof disclosure may ultimately depend on developmentsattrial, including for example, whether and how a witness testifies, or what other evidence the prosecution seeksto introduce. In Hammon, for example, the defendant sou ghtdisclosure ofthe victim's psychotherapy records on the theory that the records would provide evidence of the vi ctim's lack of credibility and her propensity to fantasize. Attrial, the defendant admitted engaging in sexual conduct with the victim “thus largely invalidating the theory onwhich he had attempted to justify pretrial disclosure of privileg ed information.” (Hammon, supra, 15 Cal.4th at p. 1127, 65 Cal.Rptr.2d 1, 938 P.2d 986.) Wefind no case that has yet addressed whethera criminal defendant ma yaskthe court to issue a “trial subpoena” under § 2703(b)(1)(B)(i) for production of information under the SCA.Thestat ute, onits face, limits production to a subpoena issued by “a governmentalentity,” and at least one federaltrial court ha s held that neither the court nor the federal public defender are governmentalentities under the SCA.(U.S. v. Amawi ( N.D.Ohio 2008) 552 F.Supp.2d 679, 680 ["court order’ for disclosure sought under section 2703(d) J; see F.T. C. v. Netsca pe Communications Corp. (N.D.Cal.2000) 196 F.R.D. 559, 561 [pretrial subpoena duces tecum not a “trial subpoena” un der § 2703(c)(1)(C) and Federal Rules of Civil Procedure].) Although the issue is not now before us, we question whe ther sucha limitation would be constitutional in light of the requirements of Davis and Hammon. Defendants may,in an y event, directly subpoenathe records they seek for production to the trial court pursuantto Penal Code section 1326 . Associate Justice of the Court of Appeal, First Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government W orks. ‘WestlawNext’ © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14