Memo: IPG - #46 (Subpoenas for Third-Party Records)
This IPG discusses the latest case from the California Supreme Court on subpoenaing third party records in a criminal case with a focus on obtaining social media records. (Facebook v. Superior Court of San Diego County (Touchstone) (2020) 10 Cal.5th 329. If you ever plan to subpoena such records or to quash a subpoena seeking such records, this is the IPG for you. Accompanying this IPG is a bench memo based on this latest decision (and other relevant case law) that can be used to help provide guidance for a trial court asked to decide whether a criminal defendant is entitled to receive the documents despite a motion to quash the subpoena in whole or part – assuming that the federal Stored Communications Act does not otherwise bar disclosure. The memo also discusses how a court should determine whether to allow the defense to seek disclosure by way of sealed affidavits and ex parte.