California Supreme Court Ruling Provides Guidance on Assessing Subpoenas to get Social Media Evidence


By: Barry Miller

Litigators fight a continuing battle in trying to get social media evidence. When an opponent does not cooperate, the only option may be to subpoena that information directly from the owner of the social media platform. On August 13, the Supreme Court of California issued an opinion that may guide other courts considering whether to enforce such subpoenas.

In Facebook, Inc. v. Superior Court of San Diego County, a criminal defendant sought restricted posts and private messages from a user who may testify as a witness in his murder prosecution, and who also is an alleged victim of the defendant. A trial court denied a motion to quash the subpoena finding good cause for the subpoena.

After taking issue with the facts as stated by the defendant in his argument for getting the posts the Supreme Court remanded the case to the trial court, instructing it to reconsider its order by balancing seven factors:

  1. Did the defendant show “plausible justification” for getting the posts and messages?
  2. Does the subpoena describe the material sought adequately or is it overbroad?
  3. Is the material sought reasonably available from other sources?
  4. Would production violate a third party’s right of confidentiality or privacy, or invade a governmental interest?
  5. Is the request timely?
  6. Would the time required to produce the information delay the defendant’s trial, and if so, would the delay be unreasonable.
  7. Would production place an unreasonable burden on the platform?

The Supreme Court indicated that the first factor, plausible justification, was particularly relevant to the case at hand. It did not say that this factor—or any other factor among the seven—was entitled to more or less weight in all cases.

While this case arose in the context of criminal discovery, implicating the defendant’s Fifth and Sixth Amendment rights under the Constitution, the Court did not limit its holding to criminal cases.

The Court may not be done considering the issues in the context of this case. A concurring opinion from Chief Justice Cantil-Sakauye noted that both the defendant and prosecutor argued for a “business model theory” that would mean that Facebook is not governed by the federal Stored Communications Act. Justice Cantil-Sakauye called the SCA “woefully outdated” when applied to modern forms of communication. She suggested that the issue might be addressed again depending upon how the trial court rules on the remanded motion.

In the meantime, the Court’s seven-factor test provide a framework for litigators on how to attack or defend subpoenas to social medial platforms.

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