Confidential Group Messages: The Hunter Cases and Discovery Rights
First, this article briefly discusses the fairly recent decision from the California Supreme Court in Facebook, Inc. v. Superior Court (Hunter II) 4 Cal. 5th 1245, 233 Cal. Rptr. 3d 77, 417 P.3d 725 (Hunter II). Second, following remand, the trial court issued subsequent orders concerning the issues presented in Facebook, again the trial court erred, for which the parties sought a writ of mandate. On March 6, 2020, the First Appellate Court of Appeal certified the opinion for publication (Hunter III).*
In Hunter II defendants were charged with a murder which arose from a drive-by shooting. During the course of discovery, defendants served a subpoena duces tecum seeking the business records of social media providers (Facebook, Inc.** and Twitter, Inc.) and the communications of particular users--including private message, group messages, and public messages of the murder victim and a witness.
Upon receipt of the subpoena the social media providers filed motions to quash the subpoenas arguing the disclosure of communications was barred by the federal Stored Communications Act (18 U.S.C. §2701 et seq., the "SCA"). (Hunter II, supra, 4 Cal. 5th at 1249.) Defendants countered and argued, if the communications were not released pursuant to the SCA, then the application of the SCA would infringe their constitutional rights under the Fifth and Sixth Amendments of the United States Constitution. (Ibid.) The trial court denied the social media providers motion and directed the social media provider to comply, produce the records of communications.
The California Supreme Court stated, "communications configured by a social media user to be public fall within section [the Act's] lawful consent exception, presumptively permitting disclosure by a provider." (Id. at 1274.) However, the Court would not extend the notion of a "public communication" to messages sent to a group. The Court stated, "implied consent to disclosure by a provider is not established merely because a communication was configured by the user to be accessible to a 'large group' of friends or followers." (Id. at 1281.)
However, since Congress did not express preemption of state laws when it enacted the SCA, the social media providers may have been required to produce the documents pursuant to state law unless the providers could show a state law basis for refusing to produce such documents, i.e., availability from other sources with a lesser burden to the providers or the defendants could show good cause for the subpoena.
On remand, the trial court, again, denied the providers motion to quash the subpoenas directing them to produce records for in camera review. The providers sought a writ of mandate from the first appellate court of appeal. On March 6, 2020, the First Appellate District certified its opinion in Facebook v. Superior Court (Hunter III) for publication finding the trial court's denial of the social media providers' motions to quash were an abuse of discretion as the trial court failed to discuss the relevant factors as directed in the Supreme Court's decision. (Hunter III, slip opinion at pg. 11-12.)
A litigant may obtain such social media records, but it must first show good cause.
* The slip opinion for Facebook Inc. v. Superior Court (Hunter III) may be found here.
**Facebook, Inc. is the parent company of social media and messaging platforms Instagram, WhatsApp, etc..
In Hunter II defendants were charged with a murder which arose from a drive-by shooting. During the course of discovery, defendants served a subpoena duces tecum seeking the business records of social media providers (Facebook, Inc.** and Twitter, Inc.) and the communications of particular users--including private message, group messages, and public messages of the murder victim and a witness.
Upon receipt of the subpoena the social media providers filed motions to quash the subpoenas arguing the disclosure of communications was barred by the federal Stored Communications Act (18 U.S.C. §2701 et seq., the "SCA"). (Hunter II, supra, 4 Cal. 5th at 1249.) Defendants countered and argued, if the communications were not released pursuant to the SCA, then the application of the SCA would infringe their constitutional rights under the Fifth and Sixth Amendments of the United States Constitution. (Ibid.) The trial court denied the social media providers motion and directed the social media provider to comply, produce the records of communications.
The California Supreme Court stated, "communications configured by a social media user to be public fall within section [the Act's] lawful consent exception, presumptively permitting disclosure by a provider." (Id. at 1274.) However, the Court would not extend the notion of a "public communication" to messages sent to a group. The Court stated, "implied consent to disclosure by a provider is not established merely because a communication was configured by the user to be accessible to a 'large group' of friends or followers." (Id. at 1281.)
However, since Congress did not express preemption of state laws when it enacted the SCA, the social media providers may have been required to produce the documents pursuant to state law unless the providers could show a state law basis for refusing to produce such documents, i.e., availability from other sources with a lesser burden to the providers or the defendants could show good cause for the subpoena.
On remand, the trial court, again, denied the providers motion to quash the subpoenas directing them to produce records for in camera review. The providers sought a writ of mandate from the first appellate court of appeal. On March 6, 2020, the First Appellate District certified its opinion in Facebook v. Superior Court (Hunter III) for publication finding the trial court's denial of the social media providers' motions to quash were an abuse of discretion as the trial court failed to discuss the relevant factors as directed in the Supreme Court's decision. (Hunter III, slip opinion at pg. 11-12.)
A litigant may obtain such social media records, but it must first show good cause.
* The slip opinion for Facebook Inc. v. Superior Court (Hunter III) may be found here.
**Facebook, Inc. is the parent company of social media and messaging platforms Instagram, WhatsApp, etc..
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