In May in Facebook v. Superior Court Hunter , [2] the California Supreme Court had addressed issues concerning the propriety of criminal defense subpoenas served on social media providers, including Facebook, Inc. In Facebook Hunter , [3] the Court held, in part, that to the extent a subpoena duces tecum seeks a communication that had been configured as and remained public, Facebook could not assert the federal Stored Communications Act 18 U.
While that case was pending, the Supreme Court granted review in the instant case, a pretrial criminal discovery matter. Defendant Lance Touchstone [5] was charged with shooting and attempting to murder Jeffrey Renteria. Defendant contended that he needed all electronic communications by Renteria in order to prepare his defense.
Specifically, Defendant contended that he had a viable claim of self-defense against Renteria, and that he required the communications to investigate and present that affirmative defense. Secondarily, or alternatively, Defendant sought to prepare to impeach the character of the anticipated main prosecution witness against him—the victim, Renteria—if Renteria was to be called by the prosecution at trial.
Defendant also asserted that, to the extent the SCA allowed Facebook to block his subpoena, the SCA 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 thus the SCA was unconstitutional as applied to him.
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. Superior Court 2nd Dist.
Facebook sought a peremptory writ of mandate directing the trial court to vacate its order denying the motion to quash the subpoena and to enter a new order granting the motion. The Supreme Court of California granted review to address the propriety of the criminal defense subpoena served on Facebook. Facebook and the District Attorney contended that Defendant failed to state sufficient justification for acquiring the sought communications, and that the subpoena was not supported by good cause.
The Supreme Court explained that under Penal Code section a , various officials or persons—including defense counsel, and any judge of the superior court—may issue a criminal subpoena duces tecum. Pitchess v.
Superior Court 11 Cal. But the best advantage of all to serving a notice to appear at a trial or hearing and produce documents in California is the fact that a party who has failed to request certain essential or critical documents during the discovery phase of the litigation process, and the existence of those documents is known, and the documents can be clearly identified, that party can prepare and serve the notice on the other party to compel them to appear and produce the requested documents at the trial or hearing.
Service should be made on the party or their attorney if they have one. The notice should state the exact materials or things desired with as much specificity a possible, as well as a statement that the person has them in their possession, or under their control.
The giving of the notice to appear at a trial or hearing and produce documents in California shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court.
An experienced litigation attorney can evaluate your situation and determine if serving a notice to appear at a trial or hearing in California is appropriate given the unique circumstances of your case. Contact attorney Nathan Mubasher for a consultation and evaluation of your case. Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service.
These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts.
Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck. Attorney Nathan Mubasher earned a post-doctorate LL. If you think that the judge will want to ask the other party questions directly, have him or her testify about financial or other documents, or facts in the case, it may help you to file a Notice to Attend Hearing or Trial, so that the other party come to court to testify if needed.
These instructions apply to both types of notices: 1. Prepare a Notice to Attend. You can use this Notice to Attend template if you only need the party to go to the hearing or trial. Fill in the information for your case. If you need the other party to attend the hearing or trial AND also bring documents or other items, you can use this Notice to Attend and Bring Documents template , and fill in the information for your case.
Make sure you specify what documents and other materials you want him or her to bring to court, and clearly explain that he or she has the documents or access to those documents.
Make 3 copies of the Notice to Attend. Serve the Notice. For a Notice to Attend not including the request to bring documents : You must have it served by mail at least 15 days before the hearing date. If it is delivered in person, it must be served at least 10 days before the court date; For a Notice to Attend AND Bring Documents : You must have it served by mail at least 25 days before the court date.
If it is delivered in person, it must be served at least 20 days before the court date. A judge may order a shorter time for service, but you must ask for it. Have the server fill out a proof of service. Be sure to make at least 2 copies of the proof of service. Go to your hearing. Keep in mind Objections: The other party may object to the notice. He or she must file and serve written objections within 5 days from when the date the Notice was served or any other time ordered by the court and state the reasons for the objections.
If this happens, you may want to try to reach a written agreement with the other party if, for example, the objections are about the documents required to be produced. In your request, include a copy of the Notice to Attend, explain why the court should order the other party to attend or bring any documents that you listed, and ask the court to make an order. If you received a Notice to Attend Hearing or Trial and want to object, click to learn how.
At the hearing, you will need to show the judge the original Notice to Attend and the Proof of Service. The court could also require you to file a copy of the Notice and Proof of Service before it makes the order.
Witness fees: The other party has the right to ask for a fee for the day they appear, and reimbursement for mileage to travel to the court hearing.
You must complete these steps within 5 days of being served with the Notice to Attend or another time the court may have ordered on the Notice to Attend documents : 1. Your written objections must state your reasons for your objection to the Notice to Attend. You can object to having to attend the hearing or trial, and explain why. You can object to bringing some or all the documents that the other party requested in his or her Notice to Attend Hearing or Trial and Bring Documents. Again, explain why you are objecting and what documents you are objecting to bringing to your hearing.
Make 2 copies of your written objection all pages. Serve your objection. Take a blank Subpoena to the clerk to have it issued. Fill out the Subpoena. Make copies of your issued Subpoena. Serve the Subpoena. Fill out Page 3 of the original Civil Subpoena. Keep in mind Objections: The other party or witness has the right to object to the subpoena. If the other party objects to the subpoena, and you are not able to reach a written agreement to change the language of the subpoena, he or she must file a request for order to quash the subpoena.
If the witness is a non-party, he or she has the right to file and serve written objections, and then it becomes your obligation to seek a court order for the non-party witness to comply with the subpoena.
If you have received a subpoena and want to object, click to learn how. Witness fees: The other party or witness has the right to ask for a fee for the day they appear, and reimbursement for mileage to travel to the court hearing. How to Object to a Subpoena If you have been served with a Subpoena , and you want to object to it, you must act reasonably quickly. Follow these steps: Fill out and file a Request to Quash the Subpoena.
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