DocketNumber： S245203A
Filed Date： 8/14/2020
Status： Precedential
Modified Date： 8/14/2020
IN THE SUPREME COURT OF CALIFORNIA FACEBOOK, INC., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; LANCE TOUCHSTONE, Real Party in Interest; SUMMER STEPHAN, as District Attorney, etc., Intervener. S245203 Fourth Appellate District, Division One D072171 San Diego County Superior Court SCD268262 August 13, 2020 (reposting corrected version) Chief Justice Cantil-Sakauye authored the opinion of the Court, in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger and Groban concurred. Chief Justice Cantil-Sakauye filed a concurring opinion. Justice Cuéllar filed a concurring opinion. FACEBOOK, INC. v. SUPERIOR COURT S245203 Opinion of the Court by Cantil-Sakauye, C. J. We granted review to address the propriety of a criminal defense subpoena served on Facebook, seeking restricted posts and private messages of one of its users who is also a victim and critical witness in the underlying attempted murder prosecution. In addition to discussing the Fifth and Sixth Amendment issues presented in this and recent related litigation (Facebook v. Superior Court (Hunter) (2018)4 Cal.5th 1245
(Facebook (Hunter)), the parties raised four related preliminary legal issues, all potentially dispositive, in the course of their briefing. In the meantime, our review of the record — including a key declaration and exhibits that had been presented to the trial court ex parte and sealed (and hence kept from Facebook, as well as from the prosecuting authority below, intervener San Diego County District Attorney (hereafter the district attorney)) — raised questions regarding whether this case presents an appropriate vehicle to resolve any of the earlier briefed legal issues. Specifically, our review raised the question whether the underlying subpoena was supported by good cause and, if not, whether the trial court’s denial of Facebook’s motion to quash the subpoena should be vacated and the matter remanded to the trial court for further proceedings regarding that motion. Accordingly, after giving the parties notice and an opportunity to comment, we unsealed the declaration and 1 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. related exhibits, took judicial notice of the preliminary hearing transcript and related exhibits, and solicited supplemental briefing from all three parties concerning the adequacy of the justifications for the subpoena. In response, real party in interest Lance Touchstone, defendant in the prosecution below (hereafter defendant) filed a supplemental brief maintaining that the subpoena is supported by good cause, and that the trial court properly denied Facebook’s motion to quash. By contrast, the supplemental briefs filed by Facebook and the district attorney contend that defendant failed to state sufficient justification for acquiring the sought communications, and that the subpoena is not supported by good cause. When it came time to file reply briefs in the latest round of briefing, Facebook and the district attorney did so, responding to defendant’s arguments. Defendant did not file a reply. The most recent briefing has not alleviated our initial questions concerning the viability of the underlying subpoena. As explained in greater detail below, the trial court erred by conducting an incomplete assessment of the relevant factors and interests when it found that defendant established good cause to acquire the sought communications from Facebook and denied Facebook’s motion to quash. The trial court’s misstep was understandable, given that (1) the trial court did not have the benefit of full adversarial engagement, (2) there is surprisingly little guidance in the case law and secondary literature with regard to the appropriate inquiry, and (3) this court has not previously articulated a clear roadmap or set of factors to be applied by trial courts in this context. In this case, we will provide direction to the trial court and parties, both for the benefit of this litigation and other similar cases. In doing so we will highlight seven factors that a trial 2 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. court should explicitly consider and balance in ruling on a motion to quash a subpoena duces tecum directed to a third party. In the process we will reiterate our prior caution to trial courts against readily allowing a defendant seeking to enforce such a subpoena to proceed, as was done here, ex parte and under seal. With regard to the other issues potentially presented by this case, we are generally reluctant to address significant substantive legal issues when, due to underlying factual and related problems, it may prove unnecessary to do so. Here, as we will explain, we are especially disinclined to resolve the important constitutional, statutory, and related issues addressed in the briefs when the underlying subpoena may not be enforceable for other reasons. Ultimately, we will direct the Court of Appeal to remand this matter to the trial court with directions that the trial court vacate its order denying the motion to quash and conduct further proceedings consistent with the guidelines set forth in this opinion. I. BACKGROUND AND UNDERLYING PROCEDURE In Facebook (Hunter), supra,4 Cal.5th 1245
, we addressed issues concerning the propriety of criminal defense subpoenas served on social media entities, including Facebook, seeking restricted posts and private messages of two of their users. We held, in part, that to the extent such a subpoena seeks a communication that had been configured as and remained public, Facebook could not assert the federal Stored Communications Act (18 U.S.C. § 2701
et seq.; hereafter SCA or 3 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. Act) as a shield to block enforcement of the subpoena. (Id., at pp. 1250, 1262–1274.) At the time when the proceeding in Facebook (Hunter), supra,4 Cal.5th 1245
was pending in this court, we granted review in this seemingly similar pretrial criminal discovery matter. In the present case, defendant is charged with shooting and attempting to murder Jeffrey Renteria. Defendant seeks all of Renteria’s Facebook communications (including restricted posts and private messages) before and after the shooting. Defendant argues that he needs all electronic communications by Renteria in order to prepare his defense in two respects: Primarily, he contends, he has a viable claim of self-defense against Renteria, and requires the communications to investigate and present that affirmative defense. Secondarily, or alternatively, he seeks to prepare to impeach the character of the anticipated main prosecution witness against him — the victim, Renteria — if, as expected, Renteria is called by the prosecution at trial. Defendant asserts that to the extent the SCA allows Facebook to block his subpoena, the Act must be found to violate his federal Fifth Amendment due process rights, along with his Sixth Amendment rights of confrontation, cross-examination, and counsel — and hence the SCA is unconstitutional as applied to him. Defendant recognizes that in People v. Hammon (1997)15 Cal.4th 1117
, 1128, we declined to recognize such constitutional rights to pretrial discovery of statutorily privileged psychotherapy information. Yet, defendant contends, we should now limit or overrule this aspect of Hammon. These are essentially the same constitutional claims and arguments 4 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. that were presented, but not reached, in Facebook (Hunter), supra,4 Cal.5th 1245
. The Court of Appeal below, observing that Facebook (Hunter), supra,4 Cal.5th 1245
was then pending before us, rejected defendant’s claims (Facebook, Inc. v. Superior Court (Touchstone) (2017)15 Cal.App.5th 729
, 739–745) and denied him pretrial discovery (id., at pp. 745–748 [exploring optional means by which defendant might obtain the sought information]). In our subsequent order granting review we directed the parties to address additional issues arising from the briefing and the Court of Appeal’s opinion (id., at pp. 746– 748) — specifically, whether the trial court might compel Facebook’s compliance with the underlying subpoena (or alternatively compel Renteria to consent to disclosure by Facebook), and whether the trial court might compel the prosecution to issue a search warrant on behalf of the underlying defendant. In May 2018 we permitted the district attorney, the prosecuting authority in the underlying criminal action, to intervene in this proceeding. We later allowed the district attorney to file briefs, and also permitted all parties and amici curiae to file supplemental briefs addressing the effect, if any, of our decision in Facebook (Hunter), supra,4 Cal.5th 1245
. That briefing in turn spawned two additional potentially dispositive issues: whether Facebook users expansively consent to disclosure of all communications; and whether Facebook’s business model removes it from coverage under the SCA. 5 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. II. FACTS ALLEGED IN THE PETITION FOR REVIEW — CONTRASTED WITH THE PRELIMINARY HEARING TESTIMONY AND RELATED EXHIBITS Defense counsel’s recitation of the facts in the petition for review, which is substantially identical to what defense counsel previously told the trial court and the Court of Appeal, advanced three key representations, as follows: (1) “In August 2016, [defendant] drove to San Diego . . . to visit his sister Rebecca . . . . When he arrived, he discovered that Rebecca’s boyfriend, Jeffrey Renteria, had moved into her home. Over the next several days, [defendant] observed odd behavior by Renteria . . . [and] grew concerned for their safety on August 8, 2016, when he [and Rebecca] noticed that Rebecca’s personal firearms were missing from the home, [and] . . . Renteria himself . . . appeared to have moved out [of the house]. [(2)] When [defendant] and Rebecca attempted to contact Renteria over the phone about the missing firearms, Renteria made threatening statements that he was coming to harm [defendant] and Rebecca. [(3)] Hours later, while [defendant] and Rebecca were home alone, Renteria burst through the front door and lunged at them. [Defendant], armed with his personal handgun, immediately fired, hitting Renteria three times.” (Pet. for rev., italics added.)1 1 The petition continued: “None of the wounds were fatal. [¶] [Defendant] set aside his weapon, called 911, and was ultimately arrested for assault. He was compliant and cooperative with responding officers, giving a detailed explanation of the day’s events and efforts to defend himself and his sister against Renteria. He was ultimately charged . . . with . . . attempted murder, with allegations of personal use of a 6 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. We obtained the underlying preliminary hearing transcript and exhibits from the superior court, and without objection we took judicial notice of those items. These materials paint a picture different from the facts set forth by defendant in his petition for review and related prior (and subsequent) briefs. With regard to defendant’s first representation — that defendant and his sister feared Renteria had taken his sister’s guns from their home — testimony at the preliminary hearing suggests that on the morning of the shooting Renteria had placed Rebecca’s firearms, and some of defendant’s ammunition, into a secure container in Rebecca’s attic. On cross-examination of Renteria at the preliminary hearing, and on redirect examination, Renteria repeatedly confirmed that he had hidden the weapons in the attic. A police officer who responded to the shooting further testified at the preliminary hearing that during a search immediately following the shooting, those same guns were found in Rebecca’s room: a rifle was in a locked bag that was apparently in plain sight; a Glock handgun was in a dresser; and two loaded magazines for the handgun were outside the dresser. Defense counsel declined to cross-examine the officer. This testimony appears to suggest that defendant and Rebecca had themselves found the firearms and magazines, placed them in her room, and hence would have had no reason to believe at the time of the shooting that any of those items were in Renteria’s possession. Thus, defendant’s characterization of the facts in his presentation to the lower firearm and inflicting great bodily injury[,] . . . expos[ing] him to a maximum sentence of twenty-two years in State Prison.” 7 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. courts and this court appears inconsistent with the evidence submitted at the preliminary hearing. With regard to defendant’s second factual recitation — that Renteria had threatened that he was coming to harm defendant and his sister — the preliminary hearing transcript reveals Renteria testified that, after receiving increasingly aggressive messages from Rebecca, he had responded to Rebecca and her brother, telling them that “if you try anything, you’re going to jail for a long time.” On cross-examination, Renteria confirmed that he had told Rebecca and defendant that if they were “setting [him] up for something,” then they “would be arrested.” With regard to defendant’s third factual recitation — that Renteria “burst through” Rebecca’s front door and “lunged at” defendant and Rebecca — Renteria testified at the preliminary hearing that, soon after sundown, he told Rebecca by phone that he would return to the house to speak with her. Renteria testified that after unlocking and entering the home’s front door, and immediately before he was shot, he was holding (only) a smartphone, which he used to take two photographs of defendant while defendant, sitting on a couch with Rebecca, raised his gun and prepared to shoot Renteria. Those two photos, and other related photos taken by police officers, all introduced as exhibits at the preliminary hearing, show a person identified as defendant, sitting back and cross-legged on a sofa, apparently in the early and then later process of raising his gun, while seated next to Rebecca. Defendant and Rebecca appear to be approximately six to eight feet from the front door where Renteria stood and took the pictures in the lighted room. This evidence is in tension with the narrative that defense counsel represented to all three levels of courts until very 8 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. recently — that Renteria “burst though” the door, and that he “lunged at” (and inferentially posed a deadly threat to) defendant or his sister. Again, on cross-examination, Renteria confirmed his testimony, emphasizing that he had his phone in his right hand when, intending to make a video, he instead “only hit the camera button,” and took the two pictures. Defense counsel thereafter declined the court’s invitation to offer “[a]ny affirmative evidence of the defense.” In sum, the testimony and exhibits introduced at the preliminary hearing call into question (1) defendant’s asserted self-defense justification for obtaining access to Renteria’s restricted posts and private messages and (2) defendant’s contention that his need for access to such communications is particularly weighty and overcomes any competing privacy interests of victim and social media user Renteria. Although this is, to be sure, merely preliminary hearing evidence, it nevertheless constitutes relevant material that could properly be considered by a trial court that, having been presented with an assertedly viable claim of self-defense, is required to rule on a motion to quash a subpoena seeking restricted and private social media communications. III. SUBSEQUENT PROCEDURE: THE PRESERVATION ORDER; THE SEALED DECLARATIONS AND EXHIBITS OPPOSING THE MOTION TO QUASH; UNSEALING OF THE DECLARATIONS AND EXHIBITS; AND REQUEST FOR SUPPLEMENTAL BRIEFING Five months after the preliminary hearing described above, defendant sought, before a different judge, the underlying subpoena at issue in this litigation. He supported his demand for all of Renteria’s Facebook communications 9 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. (including restricted posts and private messages), and a related request that Facebook preserve all such communications, by offering a sealed declaration describing and quoting certain public Facebook posts made by Renteria after the shooting that, defendant asserted, revealed Renteria’s violent general musings.2 The trial judge ordered Facebook to comply with the subpoena or appear in court to address any objection to it and to preserve the account and related stored communications. Facebook preserved Renteria’s account as directed, and then moved to quash the subpoena. Defendant’s publicly-filed brief opposing the motion to quash recited the familiar trilogy noted earlier: (1) on the day of the shootings defendant “noticed that Rebecca’s personal guns and ammunition were missing from the apartment”; (2) upon contacting Renteria about this, he “made threatening statements to harm [defendant] and Rebecca,” causing them to be “concerned, alarmed, and afraid”; and (3) immediately before the shootings, “Renteria burst through the front door and charged at them.” 2 The sealed declaration added: “It is unknown whether additional relevant posts have been made to . . . Renteria’s [Facebook] page that are not visible to the public, or whether additional relevant messages have been sent through the Facebook messaging system that have not been disclosed to defense counsel. . . . Through this subpoena, defense counsel seeks to preserve and obtain the stored contents of . . . Renteria’s personal Facebook page; these records are relevant, material, exculpatory, and reflect upon the character and propensity for violence of the prosecution’s key witness.” This initial sealed declaration did not attach the described public posts or any document supporting the declaration’s other statements. 10 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. Defendant argued in his brief opposing the motion to quash that he had established the requisite “plausible justification” (see, e.g., City of Alhambra v. Superior Court (1988)205 Cal.App.3d 1118
, 1134 (Alhambra)) for acquiring any restricted posts and private messages, and that the motion to quash should be denied. In support, defendant invited the trial judge to “review . . . the specific plausible justifications establishing [defendant’s] right to compel the disclosure of documents” set out in a second and also sealed declaration in opposition to the motion to quash filed that date, April 21, 2017, simultaneously with the opposition brief.3 A redacted version of the key April 21 declaration, along with supporting redacted exhibits, was made available to the other interested parties (and was subsequently included in Facebook’s Appendix supporting its writ petition), employing blackout to mask all descriptions of, and quotes from, the public posts and other documents referred to in counsel’s declaration opposing the motion to quash. Defense counsel asserted: “Based on the foregoing recitation of facts and beliefs, the sought content from [the] account is relevant because (1) it may contain additional information that is inconsistent with the information previously provided by . . . Renteria to law enforcement and the prosecution as it related to this case, (2) it may contain 3 Trial court documents reflect that, at defense counsel’s request, the trial judge permitted that declaration to be filed under seal. In so requesting, counsel asserted that the declaration was “privileged” within the meaning of the federal Constitution, constituted protectable “work product, and [was] confidential [with respect] to a percipient witness (Jeffery Renteria)” — and that “[t]he redacted declarations [had been] narrowly tailored in order to protect . . . [these] rights, and permit interested parties” to respond substantively. 11 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. additional information that demonstrates a motivation or character for dishonesty in this matter, (3) it may contain additional information that demonstrates a character for violence that is relevant to the self-defense that will be asserted by defense counsel at trial, and [(4)] it may contain additional information that provides exonerating, exculpatory evidence for [defendant].” And this, counsel asserted, established a plausible justification for disclosure via the underlying subpoena. The unredacted version of the April 21 sealed declaration and related exhibits was made available to the trial court. Those documents also were subsequently called up by the Court of Appeal, and thereafter we obtained them from the appellate court. After reviewing those documents and considering that material in conjunction with the earlier-described preliminary hearing transcript and exhibits, we advised the parties under California Rules of Court, rule 8.46(f)(3), that we contemplated unsealing the declaration and related exhibits. We gave the parties an opportunity to comment and, receiving no objection, we unsealed the documents.4 4 Our order specified that “[a]s to the parties,” we unsealed “the entirety of the April 21, 2017 declaration and all related exhibits, which in turn quote from and present copies of public social media posts and conditionally confidential probation reports. (Cal. Rules of Court, rule 8.46(f)(3).)” We also specified: “As to all others, the passages of the declaration and related exhibits that quote from and present copies of the public social media posts are unsealed; but the passages of the declaration and related exhibit that quote from and present copies of the probation reports are and remain sealed.” 12 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. IV. RELEVANT LAW CONCERNING A MOTION TO QUASH A CRIMINAL SUBPOENA DUCES TECUM At this point it is useful to describe the relevant statutes and case law relating to criminal subpoenas. Under Penal Code section 1326, subdivision (a), various officials or persons — including defense counsel, and any judge of the superior court — may issue a criminal subpoena duces tecum, and, unlike civil subpoenas, there is no statutory requirement of a “ ‘good cause’ ” affidavit before such a subpoena may be issued. (Pitchess v. Superior Court (1974)11 Cal.3d 531
, 535 (Pitchess); City of Woodlake v. Tulare County Grand Jury (2011)197 Cal.App.4th 1293
, 1301 [no requirement of a “good cause affidavit” “[i]n criminal matters”].) It is important to note, however, that such a criminal subpoena does not command, or even allow, the recipient to provide materials directly to the requesting party. Instead, under subdivision (c) of section 1326, the sought materials must be given to the superior court for its in camera review so that it may “determine whether or not the [requesting party] is entitled to receive the documents.” (Pen. Code, § 1326, subd. (c); see also People v. Blair (1979)25 Cal.3d 640
, 651 [such materials cannot legally be given directly to the requesting party].) Although no substantial showing is required to issue a criminal subpoena duces tecum, as explained below, in order to defend such a subpoena against a motion to quash, the subpoenaing party must at that point establish good cause to acquire the subpoenaed records. In other words, as we have observed, at the motion to quash stage the defendant must show “some cause for discovery other than ‘a mere desire for the 13 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. benefit of all information.’ ” (Pitchess, supra, 11 Cal.3d at p. 537.) How should a trial court assess good cause to enforce a subpoena duces tecum in the face of a motion to quash? A helpful decision by Justice Croskey, filed more than three decades ago, lists seven factors that “[t]he trial court . . . must consider and balance” when “deciding whether the defendant shall be permitted to obtain discovery of the requested material.” (Alhambra, supra,205 Cal.App.3d 1118
, 1134, italics added.)5 In turn, those seven factors are helpfully set forth, along with citations to some of the cases concerning discussion of the issue we face in this case — that is, the enforcement of a criminal subpoena duces tecum issued to a third party — in a leading criminal discovery treatise, Hoffstadt, California Criminal Discovery (5th ed. 2015) § 13.03, pages 390–391 (Hoffstadt on Criminal Discovery). Most recently, the appellate court in Facebook v. Superior Court (Hunter) (2020)46 Cal.App.5th 109
, 5 In Alhambra, the defendant, who was charged with capital murder, sought (1) by judicial subpoena, police reports relating to other ostensibly similar homicides; and subsequently, (2) pretrial discovery from the prosecution, again concerning similar police reports relating to other ostensibly similar homicides. The Court of Appeal determined that the judicial subpoena had been improperly issued (by a pretrial judicial officer instead of the trial judge) and hence should have been quashed; accordingly, the appellate court vacated the order denying the motion to quash. (205 Cal.App.3d at pp. 1127–1129, 1136–1137.) Regarding the related discovery request, the court rejected the prosecution’s objections to compliance and affirmed the propriety of that requested discovery. (Id., at pp. 1129–1136, 1137.) In the course of resolving the defendant’s discovery request, the Court of Appeal proceeded to review and apply seven “well established . . . principles” (id., at p. 1132), which it eventually summarized on page 1134. 14 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. 119–121 (review granted June 10, 2020, S260846; Facebook (Hunter) II) applied these factors in the context of evaluating the same criminal defense subpoena that we addressed in Facebook (Hunter), supra,4 Cal.4th 1245
. A. The Alhambra factors We list the seven factors that should be considered by a trial court in considering whether good cause has been shown to enforce a subpoena that has been challenged by a motion to quash. In the process, we include additional relevant case citations to those set forth in Alhambra and Hoffstadt on Criminal Discovery: (1) Has the defendant carried his burden of showing a “ ‘plausible justification’ ” for acquiring documents from a third party (Kling v. Superior Court of Ventura County (2010)50 Cal.4th 1068
, 1075 (Kling); Hill v. Superior Court (1974)10 Cal.3d 812
, 817–818 (Hill) [discovery context]; Joe Z. v. Superior Court (1970)3 Cal.3d 797
, 804 (Joe Z.) [discovery context]; Ballard v. Superior Court (1966)64 Cal.2d 159
, 167 (Ballard) [discovery context]; see also, e.g., Facebook (Hunter) II, supra, 46 Cal.App.5th at p. 119, rev. granted; Alhambra, supra, 205 Cal.App.3d at pp. 1124, 1128, 1131–1136 [discovery context]; Lemelle v. Superior Court (1978)77 Cal.App.3d 148
, 162–164 (Lemelle) [discovery context]; Pacific Lighting Leasing Co. v. Superior Court (1976)60 Cal.App.3d 552
, 566–567 (Pacific Lighting); In re Valerie E. (1975)50 Cal.App.3d 213
, 218 [discovery context]) by presenting specific facts demonstrating that the subpoenaed documents are admissible or might lead to admissible evidence that will reasonably “ ‘assist [the defendant] in preparing his defense’ ”? (People v. Superior Court (Barrett) (2000)80 Cal.App.4th 1305
, 15 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. 1318 (Barrett); Alhambra, supra,205 Cal.App.3d 1118
, 1133– 1134 [discovery context].) Or does the subpoena amount to an impermissible “ ‘fishing expedition’ ”? (Pitchess, supra, 11 Cal.3d at p. 538; Barrett, supra, 80 Cal.App.4th at p. 1320, fn. 7.)6 (2) Is the sought material adequately described and not overly broad? (People v. Serrata (1976)62 Cal.App.3d 9
, 15 (Serrata); Alhambra, supra, 205 Cal.App.3d at p. 1134 & 6 The decision in Alhambra, supra, 205 Cal.App.3d at page 1134, lists plausible justification as the last of its seven factors — but we agree with Justice Hoffstadt’s treatise that this consideration should be given prominence and listed first. We also note that although most decisions phrase this factor as “plausible justification,” in Kling,supra,
50 Cal.4th at page 1075, we referred to “ ‘a plausible justification or a good cause showing of need,’ ” quoting the lead opinion in Alford v. Superior Court (2003)29 Cal.4th 1033
, 1045 (Alford), which used that phrasing. Alford in turn cited to Barrett, supra, 80 Cal.App.4th at pages 1320–1321, which, in footnote 7, employed the disjunctive phrasing. Earlier, the appellate court’s decision in Hinojosa v. Superior Court (1976)55 Cal.App.3d 692
, 695, also employed the disjunctive phrasing, while citing to our own decision in Hill, supra, 10 Cal.3d at page 817, which, like our earlier decisions in Ballard, supra, 64 Cal.2d at page 167, and Joe Z., supra, 3 Cal.3d at page 804, spoke only of “plausible justification.” On reflection, we believe that Justice Hoffstadt’s phrasing, reflecting that of most other cases (see, e.g., those cited in the text immediately above), is correct. The plausible justification consideration is but one (albeit the most significant) of multiple factors that, together, reflect a global inquiry into whether there is good cause for a criminal subpoena. It is included within the overall good-cause inquiry and is not an alternative to that inquiry. Accordingly, we decline to employ the disjunctive phrasing used in Kling, Alford, Barrett, and Hinojosa. 16 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. fn. 16 [discovery context]; see also Lemelle, supra,77 Cal.App.3d 148
, 165, and cases cited [discovery context].) (3) Is the material “reasonably available to the . . . entity from which it is sought (and not readily available to the defendant from other sources)”? (Alhambra, supra, 205 Cal.App.3d at p. 1134, italics added [discovery context]; see also Facebook (Hunter), supra, 4 Cal.5th at p. 1290 [noting prospect that “the proponents can obtain the same information by other means”] and id., at p. 1291 [suggesting that the trial court on remand consider alternative mechanisms]; Hill, supra,10 Cal.3d 812
, 817 [posing whether the defendant “cannot readily obtain the [discovery] information through his own efforts”]; Facebook (Hunter) II, supra, 46 Cal.App.5th at pp. 120–121, rev. granted [considering various alternative sources for the subpoenaed information]; People v. Von Villas (1992)10 Cal.App.4th 201
, 228–236 (Von Villas) [concluding, in light of factors set out in Delaney v. Superior Court (1990)50 Cal.3d 785
, that the trial court properly granted a freelance newsperson’s motion to quash a subpoena duces tecum on the ground that there existed an alternative source for the requested information7].) 7 In Delaney, supra,50 Cal.3d 785
, we held that when a criminal defendant who seeks “unpublished information” protected by the newsperson’s shield law (Cal. Const., art. I, § 2, subd. (b); Evid. Code, § 1070) subpoenas a reporter and establishes “a reasonable possibility the [sought] information will materially assist his defense” (50 Cal.3d at p. 809, italics omitted), the court must consider and balance various factors, including whether there is an “alternative source” for the information sought. Moreover, in considering whether to impose a “universal and inflexible” alternative source 17 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. (4) Would production of the requested materials violate a third party’s “confidentiality or privacy rights” or intrude upon “any protected governmental interest”? (Alhambra, supra, 205 Cal.App.3d at p. 1134 [discovery context]; Facebook (Hunter) II, supra, 46 Cal.App.5th at p. 121, rev. granted [noting a social media user’s “ ‘privacy interests’ ” in subpoenaed material]; Barrett, supra, 80 Cal.App.4th at p. 1316 [noting governmental interest in preventing disclosure of “ ‘official information’ ” as to which there is a necessity of preserving confidentiality]; Millaud v. Superior Court (1986)182 Cal.App.3d 471
, 475 [subpoena must not constitute “an unreasonable search and seizure as to the third party”]; Pacific Lighting, supra,60 Cal.App.3d 552
, 567 [“protection of the witness’s constitutional rights requires that the ‘ “plausible justification” for inspection’ [citation] be so substantiated as to make the seizure constitutionally reasonable”]; see also Kling,supra,
50 Cal.4th at p. 1078 [noting that the People have an interest in ensuring that evidentiary privileges are not sacrificed merely because a subpoena recipient lacks interest to object] & p. 1080 [noting crime victims’ rights under Marsy’s Law, Cal. Const., art. I, § 28, subd. (b)(4), to prevent disclosure of confidential information to a defendant]; Alford,supra,
29 Cal.4th 1033
, 1038–1039 [describing law enforcement officers’ privileges and procedures relating to third-party discovery concerning officer records]; Hammon,supra,
15 Cal.4th 1117
, 1127 [noting a patient’s statutory privilege and constitutional right of privacy]; Delaney, supra,50 Cal.3d 785
, requirement in that setting, the trial court must consider “the type of information being sought . . . , the quality of the alternative source, and the practicality of obtaining the information from the alternative source.” (Id., at pp. 812–813.) 18 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. 798–816 [construing scope of the state constitutional and statutory newsperson’s shield law in the context of a criminal defense subpoena].) (5) Is defendant’s request timely? (Hill, supra,10 Cal.3d 812
, 821 [discovery context]; People v. Cooper (1960)53 Cal.2d 755
, 771 [discovery context]; Alhambra, supra,205 Cal.App.3d 1118
, 1134 [discovery context].) Or, alternatively, is the request premature? (See People v. Lopez (1963)60 Cal.2d 223
, 247 [“[u]nder certain circumstances, delayed disclosure [via discovery] may well be appropriate”].) (6) Would the “time required to produce the requested information . . . necessitate an unreasonable delay of defendant’s trial”? (Alhambra, supra, 205 Cal.App.3d at p. 1134 & fn. 17 [discovery context]; see also Kling,supra,
50 Cal.4th at p. 1087 [noting the People’s right to a speedy trial].) (7) Would “production of the records containing the requested information . . . place an unreasonable burden on the [third party]”? (Alhambra, supra, 205 Cal.App.3d at p. 1134 [discovery context]; see also Facebook (Hunter), supra, 4 Cal.5th at pp. 1289–1290 [regarding asserted burdens on a social media provider]; Serrata, supra,62 Cal.App.3d 9
, 15; cf. People v. Kaurish (1990)52 Cal.3d 648
, 686 [criminal discovery may be denied if “the burdens placed on government and on third parties substantially outweigh the demonstrated need”].) For convenience, we will refer to these seven considerations as the “Alhambra factors.” 19 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. B. Applying the Alhambra Factors — With Emphasis on the Plausible Justification and Confidentiality/Constitutional Rights Considerations We will review selected prior decisions cited above in order to illustrate key underlying principles, with emphasis on the plausible justification and confidentiality/constitutional rights considerations, which are especially pertinent to the present litigation. 1. The plausible justification factor a. Ballard We first articulated the plausible justification consideration in Ballard, supra,64 Cal.2d 159
. There the defendant, a doctor, stood charged with drugging and raping his patient. The prosecution, with the cooperation of the victim, made recordings of telephone conversations in which the defendant incriminated himself. The defendant was granted discovery, and the prosecution also agreed to provide defense counsel with the names and addresses and the statements of witnesses that would be called at trial. But, in addition, the defendant sought to discover the names and addresses of all persons interviewed by the police regarding the charge. (Id., at p. 166.) We found the trial court properly denied the blanket request for information beyond that already provided to the defendant. We explained that “ ‘[a]lthough the defendant does not have to show, and indeed may be unable to show, that the evidence which he seeks to have produced would be admissible at the trial [citations], he does have to show some better cause for inspection than a mere desire for the benefit of all information 20 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. which has been obtained by the People in their investigation of the crime.’ ” (Ballard, supra, 64 Cal.2d at p. 167, italics added.) We elaborated: “A defendant’s motion for discovery must . . . describe the requested information with at least some degree of specificity and must be sustained by plausible justification.” (Ballard, supra, 64 Cal.2d at p. 167, italics added.) We immediately followed on that same page by quoting a passage from a then-recent law review article by Chief Justice Traynor, which, although not employing the italicized phrase, states: “ ‘A showing [. . .] that the defendant cannot readily obtain the information through his own efforts will ordinarily entitle him to pretrial knowledge of any unprivileged evidence, or information that might lead to the discovery of evidence, if it appears reasonable that such knowledge will assist him in preparing his defense. . . .’ (Traynor, Ground Lost and Found in Criminal Discovery (1964) 39 N.Y.U. L.Rev. 228, 244; italics added.)” (Ballard at p. 167.) We then proceeded to apply and give meaning to the “plausible justification” standard, while determining that “[i]n the instant case petitioner has not met these requirements.” (Ballard, supra, 64 Cal.2d at p. 167.) We first observed that the defendant had failed to carry his burden of explaining to the trial court his reasons for procuring the names and addresses of those persons whom the prosecution does not intend to call as witnesses. (Id., at pp. 167–168.) In reaching this conclusion, we addressed the defendant’s “recently advanced ground for such discovery.” (Id., at p. 168.) We noted that the defendant claimed “he needs the names of these persons in order to determine ‘whether or not the accusatory stage had been reached’ ” when “ ‘the complained-of tape recordings were made.’ ” (Ibid.) “According to [the defendant], if that stage had been reached, 21 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. the failure of the police to advise him of his rights to counsel and to remain silent renders any evidence of his recorded statements inadmissible” under case law construing those constitutional rights. (Ibid.) But we rejected “such justification for discovery” because, we explained, the defendant “was not in custody at the time he gave such statements” and hence “the accusatory stage could not have been reached.” (Ibid.) After undertaking an extended analysis of the defendant’s right-to-counsel and right- to-remain silent claims underlying his asserted “plausible justification” for acquiring the sought information (id., at pp. 167–170), we concluded that because the defendant “was clearly not in custody at the time he uttered the incriminating statements to the victim, he cannot successfully challenge the admissibility of those statements on the basis of [the cited case law authority].” (Id., at p. 170.) Consequently, we held, the defendant’s invocation of possible issues concerning his rights to counsel and to remain silent did not plausibly “justify discovery in the instant case.” (Ibid.) As this recitation shows, in our first decision articulating the plausible justification standard we measured the defendant’s stated justification for acquiring the sought information against the legal claims (in that case, asserted violations of the rights to counsel and to remain silent) pursuant to which the defendant urged the information would be relevant. In resolving that plausible justification inquiry we considered the facts as then known, determined the underlying legal claims to be inapplicable on those facts, and hence found no plausible justification for acquiring the sought information to support such a legal claim. An analogous inquiry in the present case concerning defendant’s stated primary ground for acquiring and inspecting the sought information — that is, to support an 22 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. assertion of self-defense — calls for an examination of the facts as alleged in the briefs and also as reflected in the preliminary hearing transcript described earlier, in order to assess whether a claim of self-defense is sufficiently viable to warrant the intrusion that would occur if the sought communications were required to be disclosed. b. Hill As noted earlier, defendant in the present case asserts two bases for acquiring the sought information. In addition to his primary justification (to help establish a claim of self-defense against Renteria), he also advances a secondary (or, if the primary basis fails, an alternative) justification — to impeach the prosecution’s anticipated witness, Renteria, by highlighting his character for untruthfulness and violence. In this regard, Hill, supra,10 Cal.3d 812
, which we decided eight years after Ballard, is enlightening. As explained below, in Hill we found that the defendant had indeed shown plausible justification to acquire such impeachment evidence — but that he had not established justification under other theories. The defendant in Hill, charged with attempted burglary, sought to discover (1) any public records of felony convictions that might exist regarding the prosecution’s prospective key witness against him — in order to impeach that witness; and (2) any general arrest and detention records that might exist regarding the prosecution’s prospective key witness against him — in order to argue that the prosecution witness, who had reported the alleged crime to the police, in fact committed that 23 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. underlying crime.8 The trial court denied both aspects of discovery on the ground that the defendant had not shown that any such records existed concerning the witness. (Id., at p. 816.) We first addressed the request for records of felony convictions, in order to impeach. We observed that “ ‘[i]n criminal cases, the trial court retains wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest.’ ” (Hill, supra, 10 Cal.3d at p. 817.) Then we highlighted the plausible justification factor, as first articulated in Ballard, and we quoted again from the same passage in Chief Justice Traynor’s article in the course of explaining that trial courts have “discretion to deny discovery in the absence of a showing which specifies the material sought and furnishes a ‘plausible justification’ for inspection.” (Ibid., italics added.) We found that the defendant had adequately described the sought felony conviction records, and we acknowledged that the evidence code allows for such felony records to impeach a witness’s credibility. (Hill, supra, 10 Cal.3d at p. 817.) We determined that the defendant could not “ ‘ “readily obtain the information through his own efforts” ’ ” (ibid.; see also id., at pp. 817–819), and then we turned to the justification for 8 The motion for discovery asserted that such records, if they exist, “may show that [the witness] has a bias or motive to lie in the current action.” Moreover, the defendant asserted, “[The witness] may have prior arrests . . . for burglary. These incidents may be similar to the current offense” and could demonstrate that the witness “may be the actual perpetrator of the offense for which [the defendant] is now charged, thus giving him a motive to lie.” (Hill, supra, 10 Cal.3d at p. 815.) 24 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. acquiring and inspecting any such felony conviction records. We noted that the subject of the records request “was an eyewitness to the felony charged,” he was evidently “the only eyewitness other than the persons he claimed perpetrated it,” and “the corroboration of his report was not strong.” (Id., at p. 819, italics omitted.) Echoing Chief Justice Traynor’s phrasing first quoted in Ballard, we observed: “ ‘ “[I]t appears reasonable that such information will assist [the defendant] in preparing his defense.” ’ ” (Id., at p. 817.) We concluded, “[m]anifestly it would be of help in preparing the defense to obtain information regarding any prior felony convictions of [the key prosecution witness], whose credibility was likely to be critical to the outcome of the trial.” (Id., at p. 819.) Considering and balancing these factors, we determined that the defendant had established good cause for the proposed acquisition and inspection concerning impeachment of the prospective prosecution witness. (Id., at p. 819.)9 We then turned to the defendant’s additional request for access to and inspection of any “arrest and detention” records, which as noted earlier the defendant sought in order to probe whether the prospective witness, and not the defendant, committed the charged attempted burglary. (Hill, supra, 10 Cal.3d at p. 822.) We acknowledged that the prospective 9 We were careful to stress, however, that our conclusion was based on a consideration of all of the relevant factors — and we pointedly cautioned that a finding of good cause should not flow automatically “in every case in which a defendant charged with a felony seeks discovery of any felony convictions in any ‘rap sheet’ of prosecution witnesses.” (Hill, supra, 10 Cal.3d at p. 819.) Instead, we clarified, discretion remains with the trial judge to determine, based on all the relevant factors, whether to grant such discovery. (Id., at p. 820.) 25 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. witness’s “ ‘rap sheet,’ if it exists, might contain information regarding arrests or detentions for prior burglaries or attempted burglaries, and such information conceivably might lead to the discovery of evidence of prior offenses by [the prospective witness] having a distinctive modus operandi common to both the prior offenses and the offense with which [the defendant] is charged.” (Ibid.) But, we held, “[e]ven if it be assumed that such evidence would be admissible as tending to show that [the prospective witness] committed the instant offense, a matter that might affect his credibility by showing he had a motive to lie, it does not follow that [the trial court] erred in denying discovery of the arrest and detention records, if any.” (Ibid.) We explained: “In view of the minimal showing of the worth of the information sought and the fact that requiring discovery on the basis of such a showing could deter eyewitnesses from reporting crimes, we are satisfied that [the trial court] did not abuse its discretion in denying discovery of those records, if they exist.” (Ibid., italics added.)10 10 We elaborated: “Before ruling, [the trial court] inquired whether there were any facts in [defense counsel’s] declaration indicating that [the prospective witness] ‘may have been involved’ other than his claiming to have been an eyewitness, and [defense counsel] replied, ‘No . . . .’ [Defense counsel] also advised the court that [the prospective witness] was the one who ‘initially called the police’ apparently regarding the crime charged against [the defendant]. Even if [the prospective witness] committed prior offenses having a distinctive modus operandi common to both the prior offenses and the offense charged, that fact, together with his calling the police and claiming to have been an eyewitness to the offense charged would not, without more, warrant a reasonable belief that [the prospective witness] committed that offense and therefore had an interest in the case which might affect his credibility. Those 26 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. As this recitation from Hill again shows, each legal claim that a defendant advances to justify acquiring and inspecting sought information must be scrutinized and assessed regarding its validity and strength. In Hill, the defendant’s request to acquire and inspect any existing public records of felony convictions in order to facilitate proposed impeachment of the prospective witness was, under the circumstances, supported by plausible justification because: it was adequately described; the prospective (and sole) witness’s credibility was likely to be critical to the outcome, that person was particularly subject to impeachment, and the information sought was relevant to that impeachment; and it reasonably appeared that such information would assist in preparation of the defense. But the defendant did not meet the same plausible justification test concerning his effort to acquire and inspect any existing, and even more sensitive, records concerning mere arrests or detentions, which he sought in order to attempt to shift blame from himself to the prospective prosecution witness. As noted, we found only a “minimal showing of the worth of” that information, and expressed concern that requiring discovery of such sensitive information (contrasted with disclosure of public records of facts at best would raise only a suspicion that [the prospective witness] might have committed the instant offense. And in the words of [the trial] court, ‘it seems . . . that what [[defense counsel] is] suggesting [i.e., allowing discovery of [the witness’s] arrest and detention records, if any] would have an awesome effect on people reporting crime.’ ” (Hill, supra, 10 Cal.3d at pp. 822–823.) At the same time, and of potential significance to the present case, we suggested that such discovery might be proper if it related to a valid claim of self-defense, and if a jury could reasonably determine from the sought information, along with any other proffered evidence, that the defendant had been acting in self-defense. (Id., at p. 823.) 27 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. actual felony convictions) based on such an insubstantial showing could have the undesirable effect of “deter[ring] eyewitnesses from reporting crimes.” (Hill, supra, 10 Cal.3d at p. 822.) Consistent with the approach undertaken in Ballard and Hill, in assessing the present defendant’s primary basis for plausible justification to acquire and inspect the sought restricted posts and private messages (to support a claim of self- defense), an appropriate inquiry would focus on the facts as alleged in the briefs and also as reflected in the preliminary hearing transcript in order to assess whether a claim of self- defense is sufficiently viable to warrant that significant intrusion. Likewise, in assessing the present defendant’s secondary (and, if the self-defense-claim justification fails, alternative) basis for plausible justification in the present case — to impeach prospective witness Renteria — an appropriate inquiry would consider whether such a significant intrusion is warranted and necessary to facilitate the contemplated impeachment. The analysis should be informed by the circumstance that defendant has already acquired, not only Renteria’s public posts (which, defendant asserts, contain substantial relevant information) but also, and perhaps most importantly, Renteria’s probation reports (see ante, fn. 5), which in turn detail his prior convictions and contain other substantial related impeachment information. Moreover, as explained below, when as here a subpoena seeks restricted social media posts and private messages, in the absence of an apparent relationship between the underlying crime and such communications, a trial court should examine even more closely the proffered showing of plausible justification in support of such a privacy intrusion. 28 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. 2. A third party’s confidentiality or constitutional rights and “protected governmental interests” As the Court of Appeal stressed in Pacific Lighting, supra,60 Cal.App.3d 552
, when considering the enforceability of a criminal defense subpoena duces tecum, “[t]he protection of [the subject of a subpoena’s] right to be free from unreasonable search and seizure constitutes a ‘legitimate governmental interest.’ Thus, though ‘ordinarily’ a criminal defendant may be entitled to pretrial knowledge where ‘it appears reasonable that such knowledge will assist him in preparing his defense,’ [citation] the protection of the witness’s constitutional rights requires that the ‘ “plausible justification” for inspection’ [citation] be so substantiated as to make the seizure constitutionally reasonable.” (Id., at pp. 566–567.) When, as in the present case, a litigant seeks to effectuate a significant intrusion into privacy by compelling production of a social media user’s restricted posts and private messages, the fourth Alhambra factor — concerning a third party’s confidentiality or constitutional rights and protected governmental interests — becomes especially significant. It is important, as an initial matter, to bear in mind the substantial differences underlying the justifications offered in the two cases that we have encountered to date — Facebook (Hunter), supra,4 Cal.5th 1245
(see also Facebook (Hunter) II, supra,46 Cal.App.5th 109
, rev. granted)), and the present matter. In the earlier case, Facebook (Hunter), there was significant evidence that the underlying shooting and resulting homicide may have related to, and stemmed from, social media posts — and hence the nexus, and justification for intruding into a victim’s or witness’s social media posts (public and restricted, 29 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. and/or private messages), was substantial.11 Indeed, the Court of Appeal, in its recent treatment of the plausible justification factor issue in that prior case, had no difficulty finding such justification for the proposed intrusion. (Facebook (Hunter) II, supra, 46 Cal.App.5th at p. 119, rev. granted].)12 11 In Facebook (Hunter) the defendants sought social media communications related to two persons: The homicide victim, Rice; and the prosecution’s key witness, Lee. Concerning the deceased Rice, the information was sought, not for character impeachment, but to (1) directly challenge the prosecution expert’s anticipated testimony that the underlying shooting was gang-related; and also to (2) “ ‘locate exculpatory evidence’ ” (and attempt to establish a form of self-defense, or imperfect self-defense), in light of Rice’s public posts showing that he was a violent person who had previously threatened the defendants and others on social media. (Facebook (Hunter), supra, 4 Cal.5th at p. 1256; see also id., at p. 1257.) Concerning witness Lee, defendants sought to obtain yet more of her violence-inflected social media posts so as to impeach her by emphasizing her threats made to others, and to argue that her testimony against defendants, one of whom was her former boyfriend, was motivated by jealous rage. (Id., at p. 1257.) In addition, Lee had been implicated by some witnesses as the driver of the car used by defendants when the shooting occurred. (Id., at p. 1253, fn. 4.) These facts gave the defense a more specific basis for seeking the communications of Rice and Lee, beyond identifying general character impeachment evidence. Under the Alhambra framework, a trial court may take into account these kinds of case-specific considerations in evaluating whether a defendant has established a colorable and substantial basis for seeking social media communications by subpoena. 12 Ultimately the Court of Appeal determined that the trial court abused its discretion in denying Facebook’s motion to quash by failing to properly consider and balance all of the relevant good cause factors — “particularly options for obtaining materials from other sources.” (Facebook (Hunter) II, 46 Cal.App.5th at p. 119, rev. granted; see also, id., at pp. 120– 30 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. In the present case, by contrast, it is questionable whether there is any similar substantial connection between the victim’s social media posts and the alleged attempted murder. Moreover, although it is always possible that material in a prior or subsequent social media post may be relevant to something that the defendant would like to rely upon, the requirement that a social media user or a social media provider disclose social media posts, even to a judge for ex parte review (see Pen. Code, § 1326, subd. (c)), as a predicate to possible broader disclosure, itself constitutes a significant impingement on the social media user’s privacy with respect to restricted posts and private messages. Accordingly, plausible justification — which, as noted above, must in all cases be “so substantiated as to make the seizure constitutionally reasonable” (Pacific Lighting, supra, 60 Cal.App.3d at p. 567) — must be subject to even closer examination in the absence of an apparent relationship between the alleged crime and the sought private communications. (Cf. Hammon,supra,
15 Cal.4th at p. 1127 [courts should be especially reluctant to facilitate pretrial disclosure of privileged or confidential information that, as it may turn out, is unnecessary to use or introduce at trial].) An appropriate 121.) Moreover, and significantly, the appellate court correctly observed that the trial court also failed to “evaluate [the] continuing need for private content after the public content [had been] produced” by Facebook, as we had directed. (Id., at p. 121.) In the latter regard, the court stated: “[W]e do not know whether providers had already produced the key communication . . . , or comparable communications, as part of their public production. We question how the trial court could properly balance all the good cause factors, including [the prospective prosecution witness’s] privacy interests and the other policies served by the Act, without any review of what had already been produced.” (Ibid.) 31 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. assessment of a social media user’s rights implicated by such a subpoena would take into account the likelihood of that the asserted connection between an underlying crime and any sought private communications actually exists. Finally, we note that in the present circumstances, the California Constitution, as amended to incorporate Marsy’s Law, calls for yet additional special inquiry. (Cal. Const., art. I, § 28, subds. (b)(4), (b)(5), (c).) As alluded to earlier, the subpoena seeking Renteria’s private communications implicates these constitutional provisions, which recognize a victim’s right to prevent disclosure of matters “otherwise privileged or confidential by law” (id., at subd. (b)(4)) and to refuse a discovery request by a defendant (id., at subd. (b)(5)). Moreover, subdivision (c)(1) of section 28 allows the prosecution to enforce a victim’s rights under subdivision (b). We have observed that these provisions contemplate “that the victim and the prosecuting attorney would be aware that the defense had subpoenaed confidential records regarding the victim from third parties.” (Kling, supra,50 Cal.4th 1068
, 1080.) Accordingly, in circumstances like those here it would be appropriate to inquire whether such notice has been, or should be, provided.13 13 As recited ante, part III, the trial court ordered Facebook to preserve the sought files and information, and Facebook reported that it had done so. In these circumstances an appropriate assessment of a victim’s rights under the constitutional provision would consider whether, after such preservation has occurred (hence presumably addressing concerns about possible spoliation by a social media user), notice to a victim/social media user should be provided in order to facilitate the victim’s confidentiality and related rights. 32 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. V. THE UNDERLYING HEARING ON THE MOTION TO QUASH, AND THE COURT’S RULING UPHOLDING THE SUBPOENA TO FACEBOOK The superior court judge who conducted the hearing on the motion to quash (and who had not been involved in any of the earlier proceedings in this matter) denied the motion, finding good cause for the subpoena. Neither the reporter’s transcript of the hearing, nor the resulting minute order, reflects that the court expressly considered and balanced the most relevant Alhambra factors. Specifically, there was no express mention of, let alone explicit assessment concerning, the primary good cause factor — whether defendant had shown plausible justification for acquiring crime victim Renteria’s restricted posts and private messages. Neither did the court explicitly address the potential overbreadth of the subpoena. Nor did the court adequately consider defendant’s ability to obtain the material from other sources, such as the messages’ recipients, or friends who could view Renteria’s restricted posts and private messages. The court did consider, and evidently credited, defense counsel’s assertion that Renteria would not be a reliable source for handing over the communications. Yet nothing in the record suggests that the court assessed, or balanced, any confidentiality or constitutional interests or privileges that Renteria might have, including possible rights under Marsy’s law, in securing notice and avoiding cooperation with defense counsel and disclosure of his restricted posts and private messages. The absence of such a record of consideration in the present case is somewhat understandable. At the time of the 33 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. hearing, Alhambra’s useful seven-factor balancing summary, although having been set forth nearly 30 years prior, had gone uncited except for in the 2015 edition of Justice Hoffstadt’s California Criminal Discovery treatise in a passage addressing a trial court’s in camera review of produced documents. (See Hoffstadt on Criminal Discovery, supra, at pp. 390–391.) Nevertheless, as shown above, a number of long- established decisions have discussed, quite extensively, several of these factors, including the two that deserve special attention in the present circumstances — plausible justification, and confidentiality or constitutional interests that a person in Renteria’s position might have. In other words, as these and related cases demonstrate, the Alhambra framework is built upon a firm foundation, and the Alhambra decision itself is innovative only in the sense that it collected these principles in a handy list. As recently acknowledged by the Court of Appeal in Facebook (Hunter) II, supra,46 Cal.App.5th 109
, 119–121 (rev. granted), the seven Alhambra factors are relevant, and properly should be considered by a trial judge, when ruling on a motion to quash a subpoena directed at a third party. It is especially at that point in the subpoena process that the judicial officer should assess and balance, not only the important plausible justification factor, but also all of the other factors — including the adequacy of the description/overbreadth, availability of the sought material from other sources, privacy/confidentiality and constitutional concerns, timeliness, potential for delay of trial, and asserted undue burden on a producing third party. The trial court did not do so here. 34 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. VI. PROBLEMS RAISED BY PROCEEDING EX PARTE AND UNDER SEAL — AND RELATED “BEST PRACTICES” CONSIDERATIONS In addition to failing to clearly apply the Alhambra factors, the trial court also chose to proceed ex parte and under seal. We have acknowledged in cases such as Kling,supra,
50 Cal.4th 1068
, that in criminal proceedings, by virtue of Penal Code section 1326, “[t]he Legislature granted the defense special protections” — permitting criminal defendants to make the necessary showing of need for any sought materials outside the presence of the prosecution, if necessary to protect defense strategy and/or work product. (Kling,supra,
50 Cal.4th at p. 1075.)14 At the same time, we have cautioned trial courts against allowing sealing in this setting unless there is “ ‘a risk of revealing privileged information’ and a showing ‘that filing under seal is the only feasible way to protect that required information.’ ” (Ibid.) Moreover, we explained, proceeding ex 14 See also Kling,supra,
50 Cal.4th, at page 1075 [the defense “ ‘is not required, on pain of revealing its possible defense strategies and work product, to provide the prosecution with notice of its theories of relevancy of the materials sought’ ”].) Instead, a defendant may make “ ‘an offer of proof at an in camera [and ex parte] hearing.’ ” (Ibid.; see alsoid.,
at pp. 1076–1077.) Nonetheless, as noted earlier, a failure to establish good cause — amounting to a mere fishing expedition — will lead to the granting of a motion to quash. (Id., at p. 1075; see also Barrett, supra,80 Cal.App.4th 1305
, 1320, fn. 7.) In this case, defendant has freely disclosed his self-defense and impeachment strategy, both in the trial court and the Court of Appeal, and also in this court. As he concedes, it “is no secret” that his strategy has been and will be (1) primarily to claim self- defense; and (2) secondarily and alternatively, to impeach the victim’s character and portray him as violent. 35 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. parte is “generally disfavored” (id., at p. 1079) because doing so may lead judges, uninformed by adversarial input, to incorrectly deny a motion to quash and grant access to pretrial discovery. (Ibid.) We elaborated on the “inherent deficiencies” of ex parte proceedings: “ ‘ “[T]he moving party’s . . . presentation is often abbreviated because no challenge from the [opposing party] is anticipated at this point in the proceeding. The deficiency is frequently crucial, as reasonably adequate factual and legal contentions from diverse perspectives can be essential to the court’s initial decision. . . .’ ” [Citations.] Moreover, ‘with only the moving party present to assist in drafting the court’s order there is a danger the order may sweep “more broadly than necessary.” ’ ” (Ibid.) Accordingly, we explained, a trial court should “balance the People’s right to due process and a meaningful opportunity to effectively challenge the discovery request against the defendant’s constitutional rights and the need to protect defense counsel’s work product.” (Id. at p. 1079.) A trial court has discretion to balance these “competing interests” in determining how open proceedings concerning the subpoena should be. (Id. at p. 1080.) The balancing called for in circumstances such as these can be complex and nuanced. For example, as noted, defendant stresses his right to acquire and present all relevant evidence in his defense, and insists he has established good cause to invade Renteria’s privacy interests by acquiring his restricted posts and private communications via his underlying subpoena. Yet the district attorney asserts that victim Renteria’s constitutional rights, including under Marsy’s Law, were violated when the trial court ordered Facebook to preserve the information, and then issued the subpoena, without giving the victim or the 36 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. People adequate notice and an opportunity to be heard concerning issuance of the subpoena. In the trial court in present case, defense counsel was allowed to proceed ex parte and to file under seal the key declaration and exhibits opposing the motion to quash. Accordingly neither the district attorney nor Facebook was permitted to learn what public posts defendant relied upon — and neither was in a position at the hearing concerning the motion to quash to address whether those posts support a finding of good cause for the underlying subpoena. When a trial court does conclude, after carefully balancing the respective considerations, that it is necessary and appropriate to proceed ex parte and/or under seal, and hence to forego the benefit of normal adversarial testing, the court assumes a heightened obligation to undertake critical and objective inquiry, keeping in mind the interests of others not privy to the sealed materials. Finally, we caution that even when other entities are not excluded from full participation in the proceedings, a trial court ruling on a motion to quash — especially one that, like this, involves a request to access restricted social media posts and private messages held by a third party — should bear in mind the need to make a record that will facilitate appellate review. We acknowledge that the trial court below was not required to issue a written statement of decision concerning its ruling on the motion. (See In re Marriage of Askmo (2000)85 Cal.App.4th 1032
, 1040 [Code of Civil Proc. § 632, which requires a trial court to issue a statement of decision that explains the factual and legal basis for its determinations, generally applies only “when there has been a trial followed by a judgment,” and “does not apply to an order [resolving a] motion”].) Yet because we today articulate seven factors that courts must balance when ruling 37 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. on a motion to quash, we emphasize that courts should create a record that facilitates meaningful appellate review. Accordingly, a trial court should, at a minimum, articulate orally, and have memorialized in the reporter’s transcript, its consideration of the relevant factors. VII. WE WILL REMAND TO THE TRIAL COURT TO CONSIDER THE GOOD CAUSE FACTORS WITH FULL PARTICIPATION BY ALL THREE PARTIES, AND WE WILL DECLINE TO RESOLVE THE CONSTITUTIONAL AND RELATED SUBSTANTIVE ISSUES RAISED IN THE BRIEFS Defendant insists in his most recent briefing, and at oral argument, that the underlying subpoena is supported by good cause, and that although its scope should be narrowed, the subpoena is generally enforceable. After recently being permitted to see the unsealed declaration and supporting exhibits, Facebook and the district attorney both contend the subpoena is not supported by good cause. The trial court, having allowed defendant to proceed ex parte and under seal, has not considered the input that we have obtained from the district attorney and Facebook. We review a ruling on a motion to quash, like other discovery orders, for abuse of discretion. (Pitchess, supra, 11 Cal.3d at p. 535; see also Facebook (Hunter) II, supra, 46 Cal.App.5th at p. 118, rev. granted.) We conclude that the trial court below abused its discretion when ruling on the motion to quash by failing to apply the seven-factor Alhambra test. Under these circumstances we find it prudent to afford the trial court an opportunity to consider the good cause issue anew, this time with full participation by all three parties. 38 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. Facebook nevertheless urges, and the district attorney suggests, that we should overlook questions concerning the enforceability of the underlying subpoena and proceed to address and decide the various important underlying substantive legal issues discussed in the briefs. We recognize that the parties have undertaken substantial efforts to explore the Fifth and Sixth Amendment issues implicated in this case, as well as the various theories under which a proper state subpoena might be enforced against Facebook without resolving those constitutional issues. In light of the potential significance of all of these issues, however, we conclude it is preferable to reserve judgment on these questions until we can be confident that we are dealing with an otherwise enforceable subpoena. Accordingly, in light of questions concerning whether the underlying subpoena is supported by good cause, we will direct the Court of Appeal to vacate the trial court’s denial of the motion to quash and instruct the trial court to reconsider that motion. VIII. WHETHER FACEBOOK IS COVERED UNDER THE SCA Although we will not decide the important constitutional and related issues raised in the earlier briefs, we briefly address Facebook’s suggestion that in Facebook (Hunter), supra,4 Cal.5th 1245
, we resolved in its favor the question of whether it is covered and bound by the SCA. Facebook raises this argument in response to the assertion, jointly advanced by defendant and the district attorney, that Facebook’s business model places it outside key provisions of the SCA and renders it subject to an enforceable state subpoena. The theory suggested by defendant and the 39 FACEBOOK, INC. v. SUPERIOR COURT Opinion of the Court by Cantil-Sakauye, C. J. district attorney, which is premised on Facebook’s Terms of Service15 and Data Policy,16 is that Facebook’s business model of mining its users’ communications content, analyzing that content, and sharing the resulting information with third parties to facilitate targeted advertising, precludes it from qualifying as an entity subject to the SCA. That law, defendant and the district attorney observe, covers only two types of entities — (1) those that provide “electronic communication service” (ECS) and (2) those that provide “remote computing service” (RCS) — and the law bars such entities from divulging to others the contents of their users’ communications.17 Defendant and the district attorney assert that Facebook is neither a provider of ECS nor of RCS under the provisions of the Act. As noted, Facebook suggests our opinion in Facebook (Hunter) supra,4 Cal.5th 1245