FACEBOOK v. S.C.

Real Party in Interest, Lee Sullivan, Reply to Answer to Petition for Review

Cal.November 19, 2015

SUPREME COURT FILED IN THE SUPREME COURT NOV 19 2015 OF THE STATE OF CALIFORNIA FACEBOOK,INC.,et al,, Case No. $230051 Frank A. McGuire C lerk Petitioner, Deputy (San Francisco Superior Court Nos. 13035657, 13035658) Vv. SUPERIOR COURT OF THE STATE OF CALIFORNIA, Respondent. DERRICK D. HUNTERand LEE SULLIVAN, RealParties in Interest. REPLY TO ANSWER FOR 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 ........ 0.00 cece eee eens il ARGUMENT 1.0.0.0...ceene eentne nee 1 I. Uf. REVIEW SHOULD BE GRANTED BECAUSE CRIMINAL DEFENDANTS’ ACCESS TO SOCIAL MEDIA RECORDSPRE-TRIAL IS AN IMPORTANT ISSUE OF FIRST IMPRESSION THAT AFFECTS VIRTUALLY EVERY CRIMINAL CASEIN THIS STATE AND NATION ........0 0. cee eeeeet tenes 1 THE COURT OF APPEAL ERRED IN RULING THAT CRIMINAL DEFENDANTS DO NOT HAVE A CONSTITUTIONAL RIGHT TO PRE-TRIAL ACCESS TO DISCOVERY OF PRIVATELY HELD, CONFIDENTIAL RECORDS UPON A SHOWING OF GOOD CAUSE, WHEN THE MATERIALS ARE NECESSARY TO A FAIR TRIAL .............02 0000008 6 A. The Court of Appeal’s Opinion Recognized that Disparity of Access to Social Media Records At Trial, Between the Prosecution and Defense, Was Likely Unconsitutional .............-.22000 055 6 Fourth AmendmentJurisprudenceis Irrelevant To Sullivan Because He is A Private Citizen, Not a State Actor and Not Subject To the Warrant Requirement ©2660...eeeeee7 Respondent Court Correctly Ruled That Social Media Records Sought By Subpoena Duces Tecum Are Not Accessible to the Defense Through Mr. Rice, Ms. Lee. or Their Friends .................. 10 il D. The Prosecution Cannot be Compelled to Seek Out Discovery on a Criminal Defendant’s Behalf in Possession of Third Parties................04. 11 E. The Fifth, Sixth and Fourteenth Amendments Are Meaningless If Trial Courts Do Not Have the Authority to Permit Criminal Defendants to Subpoena Records Necessary to Mount a Defense Prior to Trial Upon A Showing of Good Cause, Subject to an In Camera Review... 0...c eens14 CONCLUSION .......0 02 ceccene ten ene net nents 17 ill TABLE OF AUTHORITIES Cases Page(s) Burdeau v. McDowell (1921) 256 US. 465 266.eeeeee eee 8 Coolidge v. New Hampshire (1971) 403 U.S. 443...etree tere e eee ne teers 8 FICv. Netscape (N.D. Cal.2000) 196 F.R.D.559 2...2 Inre Facebook Inc. (2012) 923 F.Supp. 2d 1204.......... 0600s eee eee 2 Negro v. Superior Court (2015) 230 Cal. App.4th 879.0... eee eee eee2,3 O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423 ...... 06.60. eee eee eee 3 Pennsylvaniav. Ritchie, (1987) 480 U.S. 39... ccc cecce reece enter renee ene e eee e ee atataenenspassim People v. Hammon (1987) 15 Cal.4th 117 (1997)occecseeeeeseeeeeeneeeneneeypassim United States v. Pierce (2015) 785 F3d 832 . 0... eeeeeeens4-5 United States v. Nixon, (1974) 418 U.S. 6831974)... 0. cece cece eee rte eee e eee e ee ereneeeny 15 United States v. Jacobsen (1984) 466 U.S. 109.6... eee eee eens 8 U.S. v Burr (CCD Va1807) 25 F. Cas. BO ccesececcccccccccccecceevssseeesesecsvecseserereterees 15 iv TABLE OF AUTHORITIES (CONT.) Walter v. United States (1980) 447 U.S. 649...eertener terre retin 8 Statutes 18 U.S.C. § 2701... cece cencenecesnee nner nents passim California Penal Code §§ 1326-1327 ...........eeceeene teen eee eeee .8 California Penal Code § 1524 .........c cece cece eee eee nent nent eee ees .8, 13, 14 ARGUMENT 1. REVIEW SHOULD BE GRANTED BECAUSE CRIMINAL DEFENDANTS’ ACCESS TO SOCIAL MEDIA RECORDS PRE-TRIAL IS AN IMPORTANTISSUE OF FIRST IMPRESSION THAT AFFECTS VIRTUALLY EVERY CRIMINAL CASEIN THIS STATE AND NATION Social media’s contention that this Court should not grant the instant petition because the question oflaw is settled is without merit. (Answer,p. 1-2, 7.) To our knowledge, the Court of Appeal’s published opinionis the first in the nation regarding whether a criminal defendant has the constitutional right to obtain social media records pre-trial to preserve his or herrightto a fair trial, to present a complete defense, to cross-examine witnesses, notwithstanding the federal Stored Communications Act (“SCA”) which unfairly grants prosecutorial access to electronic records with a subpoena, court order, or search warrant, but bars criminal defendants from seeking the same records. (18 USC § 2701, et seq.) Thus, the issue is far from settled. Although there are not split opinions in the Court of Appeal, the issue ofwhether a defendant can obtain pretrial access to social media records to mount a defenseat trial, is such a pressing and important issue that truly reaches across California and the United States, affecting almost all criminal cases, that review should be grantedto settle this important issue that was wrongly decidedin the court below insofaras it denied defendants’ pretrial access to potentially voluminousrecords necessary to mount a defense. This Court should resolve the issue definitively so that countless criminal defendants across the state are not deprived of the right to a fair trial, by the inability to obtain relevant evidence until the middle of trial, for the sole purpose of waiting for other cases to work their way up through the appellate courts. Most indigent criminal defendants, particularly those in custody, do not havethe timeor resourcestolitigate with social media companies and proceed totrial without the social media records necessary to their defense. Thus, delaying review until there is a split of opinion could take years andresult in manifest unfairness to a great number of defendants. This Court should grant review because the time to ensure criminal defendants receivea fair trial, when that right is in jeopardy, should always be right now. Moreover, social media providers mislead the Court whenthey states that review should be denied becausethe law issettled given that “appellate courts in California and throughout the country have uniformly held that the SCA prohibits the use of a subpoena alone to compel Providers to disclose electronic communication content.” (Answer, p.1.) The cases social media cites for this proposition [See e.g. In re Facebook Inc. (2012) 923 F.Supp. 2d 1204, Optiver Australia Pty. & Anor V. Tibra Trading Pty. & Ors (N.D. Cal.Jan. 23, 2013) 2013 WL 256771 at 2, FTC v. Netscape (N.D. Cal.2000) 196 F.R.D. 559, 560, Negro v. Superior Court (2015) 230 Cal. App.4th 879, 888-889,] are inapposite because theyare civil cases, in whichthelitigants do not have the sameconstitutional rights to due process, to fundamental fairness, to present a complete defense, to effective counsel, and to cross-examine witnesses, as do criminal defendants. (Answer, p. 8- 9.) These civil cases are inapposite and should be disregarded because they shed no light on whether a criminal defendantis entitled to pretrial access to social media records. To that end, social media argues that O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, has already settled this issue in California. Not so. O’Grady held that the SCA preempted civil discovery subpoenas served on email service providers seeking email documents identifying persons who supplied content. However, O’Grady was decided almost ten years ago before the huge explosion of social media hit every facet of our everydaylife, including criminaltrials. Also, O’Grady is of marginal relevance because it involved only the civil discovery process where other meansofdiscovery to the parties existed — interrogatories and depositions—that do not exist in criminal prosecutions. O’Grady did not address the federal constitutional issues raised by this case regarding pretrial access to social media records which are germaneto all criminal prosecutions. As such, O’Grady should be disregarded. In reality, prior to the opinion in the court below,no court state or federal appellate court had issued a published opinion regarding whether a criminal defendant’s constitutionalrightsto a fair trial and to present a complete defense trump the SCA andrequires social media to produce the records for the local court to review in camera prior totrial upon in response to a defense subpoena. To create the false impression thatthis issue has been decided in criminal courts so review would be denied, social media companiescite United States v. Pierce (2™ Cir 2015) 785 F. 3d 832 and asserted that “(federal courts have uniformly... rejected any implied exception for subpoenas, and declined prior requests from criminal defendants to invalidate the SCA.” (Answer, p. 8.) This misstates the holding ofPierce. In Pierce the court simply declined to rule on the constitutionality of the SCA, on appeal following jury trial, because the defendant’s belief that Facebook had relevant records he did not possess was speculative and because the defendant failed to show howtherecords he sought would be helpful to his defense. Furthermore, the court foundit problematic that he failed to subpoena the account holder who was otherwise available. (Id. at 842.) In contrast to Pierce, here, the superior court determined that Sullivan made a strong offer ofproof as to the relevancy of the records sought and that production to the court for an in camera review was necessary to preserve Sullivan’s right to due process and present a complete defense, which prevailed over the SCA. Theinstantcase is also distinguishable from Pierce because subpoenaing the accountholdersis futile because one personis dead, and the other vanished, despite diligent efforts by the defense to locate her. Even if Ms. Lee could be located, respondentcourt correctly noted that she made incriminating statements in her social media posts and cannot be compelled to admit ownership ofthe account or posts because ofher Fifth Amendmentprivilege against self- incrimination. (Transcript of January 7, 2015, hearing in respondent court.) Finally, respondent court was aware that Ms. Lee refused to authenticate her social media postsat the trial of the juvenile co-defendant and took that into consideration into deciding whether the records should be produced by H N N the social media companies. Accordingly, Pierce is distinguishable and e & ae :does not constitute controlling precedent on any issue because the constitutionality of the SCA was not addressed due to the defendant’s failure to show why the records would have been helpful attrial. 2 R A A T S o h p p a Rv ed in s This Court should grant review to decide this importantissue offirst impression regarding pre-trial access to social media records necessary for a fair trial, an issue that affects virtually al l criminal cases in California. i THE COURT OF APPEAL ERR EDIN RULING THAT CRIMINAL DEFENDANTSDO NOT HAVE A CONSTITUTIONAL RIGHT TO PRE TRIAL ACCESS TO DISCOVERY OF PRIVATELY HELD , CONFIDENTIAL RECORDS UPON A SHOWING OF G OOD CAUSE, WHEN THE MATERIALS ARE NECESSAR Y TO A FAIR TRIAL A. The Court of Appeal’s Opinion Recognized that Disparity of Access to Social Media Records At T rial, Between the Prosecution and Defense, Was Likely Unconsitutional Social media providers contendthat the SCA is an absolutebar to criminal defendants receiving social me dia records, both pretrial andattrial, regardless of whether the records are nece ssary and material to the defense despite that the SCA gives police and prosecutors access to the same records with a subpoena, court ord er, or search warrant. (18 U.S.C. § 2703.) Social media providers wrongl y suggest that the Court of Appeal expressed no opinion on the constituti onality of the SCA insofar as it grant s police and prosecutors access to s ocial media records, but not the de fense via a trial subpoena. (Answer,p. 5, fn. 1.) Although the Court of A ppeal, ruled that defendants were not entitle d to pretrial access to these records,i t madeclear that its ruling did not app ly to a subpoena issued by the defen se at trial by stating, “[nJothing in this opinion would preclude Defendants 6 from seekingat trial the production of records sought here. . .” (Facebook v. Superior Court (2015) 240 Cal.App.4th 203.) The Court of Appeal also notedthatthe lack ofparity between the prosecution and defendants’ability to procure social media records under the SCAvia trial subpoena would likely be unconstitutional: “Although the issue is not now before us, we question whether such a limitation would be constitutional under Davis and Hammon. Defendants may, in any event, directly subpoena the records they seek for production to the trial court pursuant to Penal Code section 1326.” (/d. at 226, fn 17.) Thus,real parties correctly represented the holding of the appellate court and now turn to the issue ofpretrial access. B. Fourth Amendment Jurisprudenceis Irrelevant To Sullivan Because He is A Private Citizen, Not a State Actor and Not Subject To the Warrant Requirement Real party Sullivan contendshe hasa constitutional right to pretrial access to social media records via subpoena duces tecum, subject to an in camerareview bythetrial court. In response, social media providers contend that Sullivan is not entitled to social media records because some federal appellate courts have held that the Fourth Amendmentrequires that the government to get search warrantto obtain electronic records covered by the SCA. (United States v. Warshak (2011) 631 F.3d 266; United States v. Graham (2015) 796 F.3d 332.) The Fourth Amendmentjurisprudence cited on pages 9 and 10 of the Answeris irrelevant because Sullivan is a private person, not a state actor. The fundamental purpose of the Fourth Amendment "is to safeguard the privacy and security ofindividuals against arbitrary invasions by governmentofficials." (Camara v. Mun. Ct. (1967) 387 U.S. 523, 528; see Skinner v. Ry. Labor Execs.' Ass'n (1989) 489 U.S. 602, 613-14 ("The [Fourth] Amendment guarantees the privacy, dignity, and security ofpersons against certain arbitrary and invasive acts by officers of the Governmentor those actingat their direction.") The United States Supreme Court has consistently construed the Fourth Amendmentas proscribing only governmentalaction; it is wholly inapplicable "to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Governmentor with the participation or knowledge of any governmentalofficial." (United States v. Jacobsen (1984) 466 US. 109, 114, fn. 6; Walter v. United States (1980) 447 U.S. 649, 662 (BLACKMUN,J., dissenting), Coolidge v. New Hampshire (1971) 403 U.S. 443, 487-490 ; Burdeau v. McDowell, 256 U.S. 465 (1921). Accordingly, the fact that under the Fourth Amendment, a search warrant may be required for the police to procure social media records, does not mean that criminal defendants’ access is barred. The Fourth Amendmentis not a sword social media providers can weild to curtail a criminal defendant’s access to evidence;rather, it is a safeguard applicable only to the government, to ensure the government does not overreach. Indeed, there are many types of searches for which the government much procure a warrant pursuant to Penal Code section 1524, whereas a criminal defendant need only issue a subpoena pursuant to Penal Code section 1326, subject to judicial scrutiny to ensure only relevant records are released. For example, a criminal defendant can subpoena documents from the homeofa private party whereas the government would have to get a warrant. Also, criminal defendants regularly subpoenatelephone, text, and cell cite records from wireless providers, whereas the government must obtain a search warrant. Thetrial court maintains strict control overthe release ofprivate records and issues protective orders as appropriate. That the government may be required to procure a warrant does not compelthe conclusion that a criminal defendant’s accessis barred if obtaining those records is necessary to prepare fortrial. Social media providers’ extensive reliance on the Sixth Circuit’s opinion United States v. Warshak (2011) 631 F.3d 266 is misplaced. In that case, the issue was whether the government could obtain the criminal defendant’s emails from his internet service provider without a warrant. The court said it could not given Warshak had a reasonable expectation of privacy in the content of his own emails. In contrast, here, the issuance of a defense subpoenais nota searchor seizureby state actor; therefore, the Fourth Amendmentprotections do not apply. Also, Warshak did not involve a criminal defendant’s constitutional right to gather evidence from third parties to defend a criminal case or to cross-examine adverse witnesses. As such, Warshak mustbe limitedtoits facts. C. Respondent Court Correctly Ruled That Social Media Records Sought By Subpoena Duces Tecum Are Not Accessible to the Defense Through Mr. Rice, Ms. Lee, or Their Friends Social media providers contend the SCA does not haveto yield to afford defendants pre-trial access to evidence because the same evidence can be obtained from the account holders. (Answer, p. 19-20.) We disagree. Respondentcourt correctly ruled that it could not compel Mr. Rice to authenticate the records because he is dead and Ms. Leeis an adverse witness with a history of refusing to authenticate her own social media records as evidenced by her behaviorin the juvenile co-defendant’s separate trial during which she refused to authenticate her social media posts. Because the social media recordspertain to her threats of gun violence and other criminal acts, respondentcourt correctly ruledthat he cannot compel Ms. Leeto authenticate her social media records involuntarily because she has Fifth Amendmentprivileges. 10 Even if Ms. Lee agreed to produce her social media records by downloading them herself, or was ordered by this Court to provide them, the defense has no wayofensuringthat she, in fact, presented the records soughtin their entirety given that they implicate her in threatening others with gun violence andother threats of violence. Also, Ms. Lee cannot provide her social media records because manyofthe accounts have been deleted. She does not have access to the same subscriber information - such as email addresses, IP addresses, and location data - to which the social media providers have access as for Ms. Lee’s inactive and active accounts social media accounts. Thus, if the social media providers are not ordered to comply with the subpoena, Mr. Sullivan is deprived ofthe information he needs to persuadeajury that the records in question originated from Ms. Lee’s social media accounts. Additionally, Mr. Rice’s records cannot be accessed because heis dead. Even though Mr. Sullivan has access to some of Mr. Rice’s social media records throughthe discovery process, Mr. Sullivan does not have access to the complete records he needs becausethe police onlyissued a search warrants for records from someofthe providers. The defense has no authority to force the prosecution to investigate a case nor seek out evidence on his behalf. Thus, social media providers’ argument that the court need 1] not producethe records pre-trial on groundsthat the same evidenceis available from other source is without merit, as discussed below. D. The Prosecution Cannot be Compelled to Seek out Discovery on a Criminal Defendant’s Behalf in Possession of Third Parties Real party Sullivan contends that heis constitutionally entitled to pre-trial access to social media records he needs defendhis case pursuant to the Fifth, Sixth, and Fourteenth Amendments. Social media providers argue in response, that instead of forcing them to comply with subpoenas, trial courts should simply orderdistrict attorneys to obtain relevant or exculpatory evidence for criminal defendants pursuant to Brady v. Maryland (1963) 373 U.S. 83. (Answer, p. 21-22.) This procedureis unauthorized. It is well-settled that the prosecution has no generalduty to seek out, obtain, and disclose all evidence that might be beneficialto the defense that is not in the hands ofthe prosecution team. (See Jn re Koehne (1960) 54 Cal.2d 757, 759 ["the law does not impose upon law enforcement agencies the requirementthat they take theinitiative, or even any affirmative action, in procuring the evidence deemed necessary to the defense of an accused"]; People v. Hogan (1982) 31 Cal.3d 815, 851 [There is no general duty onthe part ofthe police or the prosecution to obtain evidence, conductany tests, or " 'gather up everything which might 12 eventually proveuseful to the defense.’ "]; In re Littlefield (1993) 5 Cal.4th 122 [The prosecution has no general duty to seek out information from other agenciesor sources that might be beneficial to the defense.].) Federal law is in accord: A prosecutor doesnot have a duty to obtain evidence from third parties. (United States v. Combs (10th Cir. 2001) 267 F.3d 1167, 1173 [observing that Brady v. Maryland does notoblige the governmentto obtain evidence from third parties]; United States v. Baker (7th Cir. 1993) 1 F.3d 596, 598 [("Certainly, Brady does not require the government to conduct discovery on behalf of the defendant."); ]; United States v. Lujan, 530 F. Supp. 2d at 1231 [stating there is no affirmative duty to discover information in possession of independent, cooperating witness and not in government's possession).] Thus, the District Attorney cannot be compelled to obtain evidence for criminal defendants that the prosecution team did not chooseto seek out on its own. Moreover, as respondent court correctly pointed out, search warrants can only be issued based uponstatutorily enumerated groundsset forth in Penal Code sections1524 for propertythat was “stolen or embezzled”, (Cal. Pen. Code, § 1524(a)(1),) that was “used as the means of committing a felony” (Cal Pen. Code § 1524(a)(2),) as well as “evidence that tends to show a felony was committed”(Cal. Pen. Code, § 1524(a)(4),) and other 13 exceptionsnot pertinent here. Penal Code section 1524 does not authorize law enforcementto issue search warrants issued to obtain evidencethat supports a criminal defendant’s defense or to impeach adverse witnesses. Thus, social media providersare plain wrong whenthey arguethat social media providers can simply get what they need to defend a case from the prosecution. Certainly, the prosecution must disclose exculpatory evidence it obtains as a result ofits own search warrants; however, it is under no obligation to seek out records a criminal defendant needs to impeach a witness or establish an affirmative defense. Contrary to social media’s assertions, criminal defendants cannot fully and fairly defend a criminal case based solely upon social media records obtained by police and prosecutorsbyutilizing the statutory discovery schemeset forth in Penal Code section 1054.1 or Brady. The prosecution team and defense attorneys seek very different recordsin support of their respective adversarial roles. Law enforcement issue search warrants to obtain evidence of criminal activity or contraband based upon a peace officers sworn affidavits establishing probable cause of criminal activity. (Cal. Pen. Code, § 1523-1524.) In contrast, the mechanism criminal defendants use to obtain evidencethatis likely to facilitate the ascertain of truth anda fair trial, such as evidencerelevant to impeach a 14 prosecution witness or establish an affirmative defense, is a third-party subpoena pursuant to Evidence Codesection 1326 subject to judicial scrutiny. E. TheFifth, Sixth and Fourteenth Amendments Are Meaningless If Trial Courts Do Not Have the Authority to Permit Criminal Defendants to Subpoena Records Necessary to Mount a Defense Prior to Trial Upon A Showing of Good Cause, Subject to an In Camera Review Social media providers contend that due processis not violated becausepolice are entitled to use investigatory tools to which criminal defendants do not have access. (Answer, p. 11-12.) Criminal defendants are not seeking to investigate a case, but to obtain a fair trial and to presenta complete defense. Once a defendant is charged with a crime and held to answerfollowing a preliminary hearing, the only mechanism available for a criminal defendantto preparefortrial, is a subpoena. Not permitting defendants to issue subpoenasuntil the middle oftrial when the police have access to social media records even before the person is charged, is unfair and unconstitutional. Criminal defendants do not seek the same investigatory tools as police, only the opportunity to reasonably prepare for trial, so the defense canbeintelligent and well-prepared to meet the state’s evidence and cross-examine witnesses. With regard to the Sixth Amendment’s Compulsory Process Clause, 15 wereject social media’s contention that it applies only to the production of witnesses and not documentary evidence. Asstated in the petition, United States v. Nixon (1974) 418 U.S. 683and U.S. v. Burr (C.C.D. Va 1807 25 F.Cas 30 both pertained to obtaining documentary evidence underthe Compulsory Process Clause. Moreover, as the Supreme Court stated in Ritchie, one of the most fundamentalofrights in our adversary system of justice is the right of a criminal defendant to compel the attendance of witnesses attrial and to present to the jury evidence that mightinfluence the determination ofguilt. (Pennsylvania v. Ritchie (1987) 480 U.S. 39. ) The Compulsory Process Clause has never been limited to witnesses. Indeed, the distinction is irrelevant for purposes of social media records because Sullivan seek to compel the attendanceofthe custodian of recordsto testify to lay the foundation that the social media records came from the accounts ofthe Mr. Rice and Ms.Leein addition to obtaining the social media records. Finally, social media’s contention thatrevisiting the issue regarding whether defendant’s Sixth Amendmentconstitutional right to cross- examine witnesses can, in some cases in which the records are voluminous, require the records be producedpretrial, and whether People v. Hammon (1997) 15 Cal.4th 1117 should be revisited, disrupts a long line of 16 established Supreme Court precedent, overstates the matter. Social media records are much more ubiquitous and voluminousthan psychiatric records at issue in Hammon,the rap sheets at issue in People v. Clark (2007) , or the juvenile records in People v Martinez (2009) 47 Cal.4th 399, Notably, those cases discussed Hammon and the Sixth Amendmentissue in a footnote, as an aside. Certainly, in someinstancestrial courts should have the authority to delay disclosure until trial if there are concernsthe case will settle or if the records a defendantseeks are private, and involves a collateral matter. However,trial courts shouldalso have the authority to permit pretrial production of social media records via subpoena when the records sought are voluminous, exculpatory, and necessary to review priorto trial for effective cross-examination and to mountan intelligent defense. This case presents an important opportunity for this Court to clarify, limit, or disapprove Hammon.to ensurethat the constitutional right to cross-examine witnesses includesrightto pretrial access to materials necessary to be effective and to obtain the truth from the witnesses. Finally, real parties agree with social media providersthatit is an issue of first impression whethertheright to present a complete and meaningful defense under the Due Process Clause, includestheright to to obtain and review social media recordspriorto trial upon a showing of good cause that the records will 17 shed light on the disputed issues of fact. Petitioners contend that this Court should grant review to resolve this very important and unsettled question that impacts criminal defendants throughoutthe state on a daily basis. CONCLUSION For the reasonsstated herein,it is respectfully requested that the petition for review be granted. Respectfully submitted this 19th day ofAube SUSAN KAPLAN Attoyne for Real Party in Intetest LEE 18 CERTIFICATION I hereby certify that the foregoing Reply to Answerto Petition for Review consists of 3,941 words and that the font used was 13 point Times New Roman. Dated: November 19, 2015 J LE E. CAYWOOD Attorney for Real Party Lee Sullivan PROOF OF SERVICE BY U.S. MAIL Re: Facebook v. Superior Court No. 8230051 L, JANELLE E. CAYWOOD,declare that I am over 18 years of age and not a party to the within cause; my business address is 1660 MasonStreet #6, San Francisco, California 94133. On November 19, 2015, I served the attached REPLY TO ANSWER TO PETITION FOR REVIEWoneachofthe following by placing a true copy thereof enclosed in a sealed envelope with postage fully prepaid and deposited in United States mail addressedas follows: Heather Trevisan The Hon. Bruce Chan Office of the San Francisco District Attorney San Francisco Superior Court 850 Bryan Street Dept. 22 San Francisco, CA 94103 850 Bryant Street San Francisco, CA 94103 Jose Umali 507 Polk Street, Suite 340 James Snell San Francisco, CA 94102 Perkins Coie, Llp. 3150 Porter Drive Palo Alto, CA 94304 Clerk of the Court Court ofAppeal, First District, Div. 5 350 McAllister Street San Francisco, CA 94102 ct) Executed on I declare underpenalty that the foregoing is true and co November19, 2015 at San Francisco, Califo eaE. CAYWOOD