SNAP, Inc. v. Superior Ct. of San Diego Cty.

323 Cal.Rptr.3d 576

SNAP, INC., Petitioner,

v.The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

Adrian Pina et al., Real Parties in Interest.

Meta Platforms Inc., Petitioner,

v.The Superior Court of San Diego County, Respondent;

Adrian Pina et al., Real Parties in Interest

D083446

D083475

Court of Appeal, Fourth District, Division 1.

Filed July 23, 2024

ORIGINAL PROCEEDINGS on petitions for writs of mandate. Daniel F. Link, Judge. Relief denied in part and granted in part, peremptory writ issued modifying order. (San Diego County Super. Ct. Nos. SCN429787, SCN429787)

Fenwick & West, Tyler G. Newby, San Francisco, Janie Yoo Miller, Santa Monica, Esther D. Galan, Santa Monica, and David W. Feder, Los Angeles, for Petitioner Snap, Inc.

Perkins Coie, Julie E. Schwartz, Palo Alto, Natasha Amlani, Los Angeles, Michel C. Bleicher, and Ryan Mrazik for Petitioner Meta Platforms, Inc.

Paul Rodriguez, Public Defender, Troy A. Britt, Deputy Public Defender, for Real Party in Interest Adrian Pina.

Summer Stephen, District Attorney, Linh Lam and Karl Husoe, Deputy District Attorneys for Real Party in Interest The People.

McCONNELL, P. J.

This writ proceeding presents a question of first impression that was raised but not decided by the California Supreme Court in Facebook, Inc. v. Superior Court (2020) 10 Cal.5th 329, 267 Cal.Rptr.3d 267, 471 P.3d 383 (Touchstone): Whether the business models of social media companies like Meta, Inc. (Meta) and Snap, Inc. (Snap), under which they access their customer’s data for their own business purposes, excludes them from the limitations imposed on the disclosure of information by the Stored Communications Act (18 U.S.C. § 2701 et seq., SCA or the Act¹). As we shall explain, we conclude that the companies’ ability to access and use their customers’ information takes them outside the strictures of the Act.

Adrian Pina, real party in interest, was charged with the murder of his brother, Samuel, and the attempted murder of another man, and currently awaits trial on the charges. Last September, Pina’s defense counsel issued criminal defense subpoenas to Snap, the corporation which operates Snapchat, and Meta, the corporation that operates Facebook and Instagram, seeking social media posts and other communications made by Samuel on those platforms in the two years prior to his death. Pina seeks this material because he believes it may contain information relevant to his defense, specifically showing Samuel’s violent character.

After Snap sent a letter to Pina’s counsel indicating it would not provide the requested information and Meta ignored the initial subpoena, the trial court issued an order directing compliance by a hearing set for January 8, 2024. This prompted Snap to file a motion to quash the subpoena, asserting its compliance with it was precluded by the SCA. Meta filed a motion to quash during the January 8, 2024 hearing. At the conclusion of that hearing, the court denied both motions.

Snap and Meta promptly petitioned this court for writs of mandate staying the trial and vacating the trial court’s order. In response, we issued an order to show cause, stayed the trial court proceedings, and consolidated the two petitions. Among other arguments, Snap and Meta assert the trial court’s order requiring them to disclose the requested communications and data to Pina is precluded by the SCA and that the trial court failed to make the good cause findings required for this pretrial discovery under Touchstone.

We agree with Pina that the trial court conducted a sufficient analysis of good cause, that the facts presented by Pina supported the court’s determination that good cause existed, and that because the business models of Snap and Meta provide them with the ability to access and use the information sought by Pina, the SCA does not foreclose production of that information. However, we agree with Pina that the material should not be disclosed directly to him. Rather, under Penal Code section 1326, subdivision (d), the material should first be produced to the trial court in camera for the court to determine whether the material is relevant to Pina’s defense and if it should be produced to him.

FACTUAL AND PROCEDURAL BACKGROUND

Pina is charged with murder (Pen. Code, § 187), attempted murder (id., §§ 664, 187), and possession of a firearm by a felon (id., § 29800). The murder and firearm charges relate to the shooting death of Samuel that took place on December 26, 2021. The attempted murder charge relates to a shooting incident involving another victim that is alleged to have occurred earlier the same day. During the preliminary hearing on December 7, 2022, Samuel’s girlfriend testified that Samuel and Pina shared the gun used in his murder. She also stated she had posted a picture of Samuel with another gun on her Snapchat account, and that the photo might be saved in her "Snapchat memories."

During pretrial discovery, the prosecution provided Pina’s defense counsel with an extraction of data from Samuel’s cell phone. According to Pina’s counsel, the extraction contained over 100,000 PDF pages and was not in a format that allowed for viewing of the raw data or navigation through the phone’s contents. On October 20, 2023, defense counsel brought a partially successful motion to compel, and was permitted to view the phone at the Oceanside Police Department. The phone contained videos of fights and suggested gang affiliation, and showed there was data on the phone that was not previously provided to Pina’s defense counsel. This resulted in an additional court order to "re-extract" Samuel’s cell phone data and provide the full contents, including its raw data, to Pina’s counsel. The defense received the data on November 16, 2023.

The information defense counsel viewed on the cell phone also prompted Pina’s counsel to believe that Samuel’s social media accounts might contain relevant evidence to support Pina’s defense. On September 26 and 28, 2023, respectively, Pina issued subpoenas duces tecum to Snap and Meta to compel the corporations to bring to court or produce to the defense the contents of Samuel’s social media accounts on or by October 20, 2023. The subpoena to Snap called for the production of "any and all account information, including posts, photos, and messages …. " The subpoena to Meta called for the production of "[a]ll records associated with Samuel’s account including basic subscriber records as well as stored contents of the account, including timeline posts, messages, phone calls, videos, location information, and information from 1/1/2020 to December 31, 2021."

In response to the subpoena, on October 16, 2023, Snap sent a letter to defense counsel objecting and stating it would not produce any records. Meta did not respond to the subpoena. On December 8, 2023, the trial court signed an order directing both corporations to produce the records, which, on December 12, 2023, defense counsel served on Snap and Meta with new versions of the subpoenas.² The production was ordered by January 8, 2024, and a hearing was set for the same date.

On December 29, 2023, Snap filed a motion to modify in part, and quash in part the subpoena. Snap agreed to produce basic subscriber information, but asserted it could not provide any additional information because doing so was prohibited by the SCA. Meta did not file any response to the subpoena before the January 8, 2024 hearing date, but did submit a motion to vacate, modify, or quash Pina’s subpoena during the hearing. Like Snap, Meta asserted the communications and data sought by Pina were protected by the SCA, as well as the Revised Uniform Fiduciary Access to Digital Assets Act (Prob. Code, § 870 et seq.). Meta also argued that Pina had not shown good cause for the requested information. Specifically, it argued Pina had not shown any relationship between the requested information and his defense, or that he could not obtain the information from other sources. Finally, Meta argued it was deprived of due process because it had no record of receiving Pina’s first subpoena and thus had no opportunity to object.

Also on the date of the hearing, Pina filed an opposition to Snap’s motion to quash. Pina, citing Touchstone, supra, 10 Cal.5th 329, 267 Cal.Rptr.3d 267, 471 P.3d 383, asserted Snap did not fall within the purview of the SCA because its terms of service require users to agree to allow Snap to retain and use the information they put on Snapchat for its own business purposes. Pina also asserted his right to prepare his defense, specifically to show Samuel’s violent nature, outweighed any privacy concern of Samuel.

At the hearing, the trial court indicated it was inclined to deny both Snap’s and Meta’s motions. The court noted Snap’s and Meta’s arguments, and Pina’s assertion that the communications at issue were not protected by the SCA because the corporations "mine data" and use it for profit. The court was also concerned with the lopsided nature of Snap and Meta’s position, noting "the problem I’m having . . let’s say that this subpoena came from the prosecution or … from a law enforcement agency, hypothetically [the] San Diego Police Department, or just this court … would you have filed a motion to quash?" Snap’s and Meta’s counsel both responded they would have complied with a valid search warrant for the same information. The prosecutor stated she did not oppose Pina’s request for this information. She also stated, however, that she was not willing to seek the information herself because the "Oceanside Police Department ha[d] conducted [its] investigation," the prosecution had the evidence it needed and was ready to proceed to trial, and Pina was conducting a "fishing expedition" to try to paint Samuel "in a negative light, as a violent person."

The court then stated it had already determined by its prior order compelling the production that the information sought was relevant and that there was probable cause for the information....