California Supreme Court Provides Seven-Factor Test for Motions to Quash Criminal Subpoenas

Investigations and White Collar Defense

On August 13, 2020, the Supreme Court of California issued its decision in Facebook, Inc. v. Superior Court (Lance Touchstone), S245203, which examines the enforceability of third-party subpoenas issued by criminal defendants in California. Chief Justice Cantil-Sakauye, who authored the opinion on behalf of a unanimous Court (as well as a separate concurring opinion), stated that “there is surprisingly little guidance in the case law and secondary literature with regard to the appropriate inquiry” for this issue. The Court, noting it “has not previously articulated a clear roadmap or set of factors to be applied by trial courts in this context,” provided trial courts and practitioners specific guidance to follow when considering a motion to quash a subpoena duces tecum issued by a criminal defendant and directed to a third party.

Under Penal Code Section 1326(a), various officials or persons, including defense counsel, may issue a criminal subpoena duces tecum. While there is no statutory requirement for “good cause affidavit” before the subpoena may be issued—unlike civil subpoenas—in order to defend a subpoena against a motion to quash, the subpoenaing party must establish good cause to acquire the subpoenaed records. Thus, the Supreme Court listed the following seven so-called Alhambra 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”:

  1. Has the defendant carried his burden of showing a plausible justification for acquiring documents from a third party 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? Or does the subpoena amount to an impermissible fishing expedition? 
  2. Is the sought material adequately described and not overly broad? 
  3. Is the material reasonably available to the entity from which it is sought (and not readily available to the defendant from other sources)? 
  4. Would production of the requested materials violate a third party’s confidentiality or privacy rights or intrude upon any protected governmental interest? 
  5. Is defendant’s request timely? Or, alternatively, is the request premature? 
  6. Would the time required to produce the requested information necessitate an unreasonable delay of defendant’s trial? 
  7. Would production of the records containing the requested information place an unreasonable burden on the third party? 

In the proceedings below, the defendant subpoenaed Facebook for certain records. Facebook sought to quash the subpoena. While the trial court denied Facebook’s motion, the Supreme Court remanded the case to the Court of Appeal to vacate the trial court’s ruling and reconsider Facebook’s motion to quash “by assessing and balancing” the Alhambra factors.

This case provides much-needed clarity to trial courts, often faced with such motions to quash by third parties, and to criminal defense attorneys and attorneys representing third parties (especially third-party social media companies) that frequently receive subpoenas in California criminal matters.



pursuant to New York DR 2-101(f)

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