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McKenna Minutes

“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

Social Media Sites Do Not Have to Produce Documents During Pretrial Criminal Discovery


What appears to be a victory for protecting social media information from being hauled into court cases from Facebook, Instagram and Twitter, is not as broad as it looks. The Courts have held open the possibility of requiring Facebook, Instagram and Twitter to produce social media postings for cross examination at a criminal trial, but have refused to require them to produce the information during the discovery part of the case. It is unlikely, however, that the Court would be more willing to let parties to civil suits have greater access to information than criminal defendants.


Recently in California, two defendants awaiting trial on murder, weapons and gang related charges stemming from a drive by shooting, served subpoenas duces tecum seeking both public and private content from the user accounts of the murder victim and a witness from Facebook, Instagram and Twitter. The social media sites moved to quash the subpoenas based on the federal Stored Communication Act 18 U.S.C. §2701 et seq. (SCA) which provides that electronic communication services “shall not knowingly divulge” the contents of a user communication to anyone, with limited exceptions. SCA §2702(a). The exceptions, which permit the disclosure of the information include those that are incidental to the provision of the intended service (§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 the subscriber (§2702(b)(3); related to child abuse (§2702(b)(6); or made in compliance with certain criminal or administrative subpoenas issued in compliance with federal procedures (§2702(b)(2), §2703). “All other disclosures – including disclosures of content pursuant to a third party subpoena in a civil litigation – are prohibited.” O’Grady v. Superior Court, 139 Cal.App.4th 1423 (2006).


Defendants argued the requested information was necessary to properly defend against the 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 and effective assistance of counsel. The California Appellate Court quashed subpoenas directed to social media sites, Facebook, Instagram and Twitter finding that the United States Supreme Court and the California Supreme Court have both held that a criminal defendant’s right to pretrial discovery is limited and lacks any constitutional foundation. However, the Court emphasized that the ruling was limited to the pretrial context and nothing in the opinion would preclude the defendants from seeking the production of the materials at trial when the trial court would be better equipped to balance the defendants’ need for effective cross-examination and the policies the SCA is intended to serve. Facebook, Inc. v. Superior Court, 240 Cal. App. 4th 2015


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