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State v. Johnson

Court of Criminal Appeals of Tennessee, Knoxville

April 12, 2017

STATE OF TENNESSEE
v.
ALEXANDER JOHNSON AND MICHAEL F. WILLIAMS

          Session December 20, 2016

         Appeal from the Criminal Court for Knox County No. 104964A, B Bob McGee, Judge.

         In this interlocutory appeal, the defendants, Alexander Johnson and Michael F. Williams, challenge the ruling of the Knox County Criminal Court granting the State's motion to quash subpoenas duces tecum issued to four State's witnesses. The State challenges that portion of the court's ruling denying its motion to quash subpoenas duces tecum issued to various electronic communications service providers. Because the State lacks standing to challenge any of the subpoenas issued in this case, we reverse that portion of the court's ruling granting the State's motion to quash the subpoenas issued to the witnesses. We affirm that portion of the trial court's ruling that the State lacks standing to challenge the subpoenas issued to the service providers. In the interest of judicial economy and to facilitate further appellate review, we have examined the preempted issues related to the subpoenas duces tecum issued in this case and have concluded that: (1) although nothing prevents the defendants in this case, generally, from obtaining the type of electronic communications at issue via a subpoena issued under the terms of Tennessee Rule of Criminal Procedure 17 to the witnesses themselves, the defendants have failed to establish entitlement to all of the requested communications as discussed more fully below; and (2) under the terms of the Stored Communications Act, see 18 U.S.C. §§ 2701 - 2703, the defendants cannot obtain the contents of the electronic communications from any of the service providers via a Rule 17 subpoena duces tecum. Accordingly, the trial court's November 3, 2015 order relative to the subpoenas duces tecum issued in this case is affirmed in part and reversed in part. The case is remanded to the trial court for proceedings consistent with this opinion.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part; Reversed in Part; Remanded.

          Steven Ross Johnson and W. Thomas Dillard, Knoxville, Tennessee, for the appellant, Alexander Johnson. David Eldridge and Loretta G. Cravens, Knoxville, Tennessee, for the appellant, Michael F. Williams.

          Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios and Kyle Hixson, Assistant District Attorneys General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Norma McGee Ogle, J., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         On February 12, 2015, the Knox County Grand Jury charged both of the defendants with two counts each of the November 2014 aggravated rape of C.C.[1] As is relevant to this appeal, the presentment lists as witnesses C.C., Bridget Boland, and cellular telephone service providers New Cingular Wireless/AT&T Wireless and Sprint/Nextel Communications. Witnesses Anna Lawn and Natalie Tavares were later added to the presentment by order. The case proceeded, and discovery materials were exchanged by the parties.

         On August 21, 2015, Mr. Johnson moved the trial court for an order to accompany subpoenas duces tecum for the production and pretrial inspection of "specified cellular telephone and social media communications and information."[2] He argued that the "requested communications are evidentiary and relevant, " that the communications were "not otherwise reasonably procurable in advance of trial by due dilligence, " that he could not prepare for trial in the absence of this information, and that the motion was "made in good faith" and was "not intended as any general 'fishing expedition.'" In support of his motion, Mr. Johnson alleged that discovery materials already provided by the State "confirm[ed] the existence of social media information and communications material and relevant to the events at issue." He stated that interviews with several of the State's witnesses indicated that many of those witnesses, including C.C., had communicated with both of the defendants and with each other via text message, iMessage, [3] and social media before and after the alleged offenses occurred. According to Mr. Johnson, Ms. Lawn indicated to the police that she "'immediately'" began texting C.C.'s roommates after Ms. Lawn left Mr. Johnson's bedroom, leaving C.C. in the company of both defendants. Mr. Johnson also alleged that interviews with the police indicated that the police "may have even instructed, advised, or at the very least insinuated to" C.C. and other State's witnesses that they should remove social media information "from public view" and should refrain from communicating about the offenses via social media. Mr. Johnson indicated that he had learned from the State that the police had searched, but had not preserved, any social media communications. He also noted that the police had preserved all the data from Mr. Johnson's cellular telephone but had preserved none from cellular telephones belonging to C.C. or any other State witness.

         At the August 24, 2015 hearing on the defendants' motion, counsel for Mr. Johnson indicated that after learning that the Knoxville Police Department ("KPD") had "sent preservation letters under the Electronic Stored Communications Act to communication providers to preserve information from certain witnesses, namely, [C.C.] and Ms. Lawn, " the defendants sent a specific discovery request for that information. In its response to the specific discovery motion, the State related that the KPD "did not, in fact, obtain the messaging information of its witnesses." Counsel insisted that the information was necessary to ensure that Mr. Johnson received a fair trial and moved the court to provide an order "that compels, along with the subpoenas that will be issued, the various service providers to provide the . . . data communications" to the trial court under seal.

         The State opposed the motion on grounds that the motion, which was filed on the Friday before the first trial was set to begin, [4] was untimely, noting that the State had "incurred a large expense . . . in preparing for this trial" and that several of the State's witnesses had obligations related to their status as student athletes that presented scheduling difficulties. The State also argued that the defendants had failed to allege specific facts to support the issuance of the subpoenas, describing the subpoena request as "nothing more than an 11th-hour fishing expedition." The State observed that the defendants had also failed to identify any particular piece of admissible evidence that would be uncovered.

         With regard to timing, counsel for Mr. Johnson stated that the State had provided them with Mr. Johnson's cellular telephone data in the week before trial and that he had only learned two days before filing the motion that the State had not obtained any electronic communications from anyone other than Mr. Johnson. Citing United States v. Nixon, 418 U.S. 683 (1974), counsel argued that Mr. Johnson need only "establish that there could be information that's material and relevant on there." He observed that the discovery materials were replete with information that "there was a lot of text messaging and social media communications that were going on about this party that night" and that, Ms. Lawn in particular, participated in social media and text messaging communications immediately after leaving C.C. in Mr. Johnson's bedroom in the company of the defendants. Counsel also pointed to KPD interviews where C.C. and other witnesses discussed with KPD detectives "about whether or not they should have their social media taken down."

         The State argued that the defendants had failed to satisfy the Nixon standard and argued that the information sought by the defendants qualified as witness statements, which would not be discoverable prior to trial under the terms of Tennessee Rule of Criminal Procedure 26.2. The defendants countered that the information could not be covered by Rule 26.2 because that rule, by its terms, is restricted to information in possession of the parties.

         At the conclusion of the hearing, the court granted the motion, stating that it felt "compelled to give the defendant[s] a full opportunity to gain any information that may be helpful to their case." The court ordered that the materials be returned to chambers by September 8, 2015. In the written order, the court found "that specific and articulable facts establish[ed] reasonable grounds to believe that records and information pertaining to designated cellular telephone and social media communications are relevant and material to a pending criminal matter." On that same day, the court entered a protective order that provided that "all materials produced to the court subject to the said Order and subpoenas duces tecum are to be filed under seal and made a part of the technical record in this matter." The protective order also provided for "[e]xact duplicates of all materials . . . to be provided in their entirety to counsel for the parties."

         Immediately following the hearing, the defendant issued and served 21 subpoenas duces tecum:

Provider

Information Requested

Persons Covered

Timeframe

AT&T Mobility

“[a]ll stored electronic communications” “and the related account records, including but not limited to the call detail records (including all incoming and outgoing calls, the duration of said calls, the time and date of said calls, and the cell site addresses and/or cell tower information associated with said calls), audio recordings, saved contacts, geolocation data, text messages or iMessages sent or received, photographs, video recordings, and voicemail messages”

C.C.

Ms. Lawn

11/1/2014 - present

Instagram[5]

“[a]ll stored electronic communications” including “basic subscriber information (including Instagram username, e-mail address, telephone number, and timestamps and IP addresses for account logins/logouts), photographs, photo captions, and other posts from the subscriber's Instagram accounts(s), and the content of messages, photos, comments, and location information”

C.C.

Ms. Lawn

Ms. Boland

Ms. Tavares

1/1/2014 - present

Twitter[6]

“[a]ll stored electronic communications” including “account/user information (including username(s)), the associated ‘Twitter archive, ' communications and/or content (including following, followed, muted, and blocked accounts, status updates (‘tweets') posted and replies received, ‘tweets' marked as a ‘favorite, ' direct messages sent and received, list memberships, lists subscribed to, and uploaded files (including photographs and video files and whether through pic.twitter.com, Periscope, Vine, or any other means)), and geolocation data”

C.C.

Ms. Lawn

Ms. Boland

Ms. Tavares

1/1/2014 - present

Snapchat[7]

“[a]ll stored electronic communications” including “basic subscriber information (including Snapchat username, e-mail address, telephone number, and timestamps and IP addresses for account logins/logouts), logs (including sender, recipient, date, and time) of ‘snaps, ' ‘stories, ' and/or ‘chats' sent to or from the subscriber's Snapchat account(s), and the content of ‘snaps, ' ‘stories, ' and/or ‘chats' sent to or from the subscriber's Snapchat account(s)”

C.C.

Ms. Lawn

Ms. Boland

Ms. Tavares

1/1/2014 - present

Facebook

“[a]ll stored electronic communications” including “basic account/user information (including user identification number(s) and/or username(s), e-mail address(es), registered mobile telephone number, etc.), expanded subscriber content (including profile contact information, status update history, shares, notes, wall postings, list of ‘friends and other accounts ‘followed, ' list of ‘pages' ‘liked, ' list of groups joined, future and past events, video files, etc.), user photos (whether uploaded by the user or by other users), private messages sent and received, activity logs, and geolocation data”

C.C.

Ms. Lawn

Ms. Boland

Ms. Tavares

1/1/2014 - present

Yik Yak, Inc. [8]

“[a]ll stored electronic communications” including “each message posted, the IP address from which each message was posted, the Global Positioning System (‘GPS') coordinates of the location from which each message was posted, the time and date when each message was posted, and the user-agent string associated with the device from which each subscriber's Snapchat account(s)”

C.C.

Ms. Lawn

Ms. Boland

Ms. Tavares

1/1/2014 - present

Facebook

“[a]ll stored electronic communications” including “basic account/user information (including user identification number(s) and/or username(s), e-mail address(es), registered mobile telephone number, etc.), expanded subscriber content (including profile contact information, status update history, shares, notes, wall postings, list of ‘friends and other accounts ‘followed, ' list of ‘pages' ‘liked, ' list of groups joined, future and past events, video files, etc.), user photos (whether uploaded by the user or by other users), private messages sent and received, activity logs, and geolocation data”

C.C.

Ms. Lawn

Ms. Boland

Ms. Tavares

1/1/2014 - present

Yik Yak, Inc. 8

“[a]ll stored electronic communications” including “each message posted, the IP address from which each message was posted, the Global Positioning System (‘GPS') coordinates of the location from which each message was posted, the time and date when each message was posted, and the user-agent string associated with the device from which each message was posted”

C.C. Ms. Lawn Ms. Boland Ms. Tavares

1/1/2014 - present

         On September 11, 2015, Mr. Johnson filed a motion asking the trial court "to set a date certain for the pretrial inspection of specified cellular telephone and social media communications and information sufficiently in advance of trial to permit the parties' meaningful inspection and analysis" of the materials and "to issue the necessary process to secure the attendance at the pretrial inspection of the out-of-state witnesses with custody of said communications and information." In support of his motion, counsel for Mr. Johnson indicated that they were "actively working" to obtain the requested materials from Yik Yak, which counsel deemed "likely to comply" with the subpoena. Additionally, counsel averred that AT&T had marked the subpoena as "'urgent'" to assure quick compliance. Counsel averred that Facebook, Instagram, Snapchat, and Twitter had "responded to the Court's Order and subpoenas with objections" in the form of a letter sent to defense counsel. Those providers "recommended" that the defendants "obtain the subpoenaed communications and information directly from the" account holders.

         Without accepting the validity of the service providers' objections, Mr. Johnson informed the court of his intention to issue additional subpoenas duces tecum to the four individual account holders requesting "the same communications and information previously subpoenaed from their service providers." To facilitate this process for the three witnesses[9] who were, at that time, residing out of state, Mr. Johnson moved the court to issue the necessary process to secure the attendance of each witness at the pretrial inspection of the materials.

         Three days later, on September 14, 2015, Mr. Johnson moved the trial court to hold Facebook, Instagram, Snapchat, and Twitter in contempt for failing to comply with the court's order and subpoenas. Mr. Johnson noted that although those service providers had objected to the subpoenas via letter, none had filed a motion to quash. On the following day, Mr. Johnson moved the court "to compel the state to request search warrants to obtain the specified social media communications and information previously subpoenaed pursuant to the Court's Order of August 24, 2015." Mr. Johnson claimed that responses from Facebook, Instagram, Snapchat, and Twitter indicated that those providers would release the subpoenaed information pursuant to a search warrant. Mr. Johnson also moved the court on September 15, 2015, "to issue the necessary process [to] secure the compliance of out-of-state service providers with the Court's previous Order and accompanying Subpoenas Duces Tecum regarding specific social media communications" and "to reset the date for compliance with the same to September 28, 2015." In a supplemental motion also filed on September 15, 2015, Mr. Johnson informed the court that counsel for Facebook, Instagram, and Twitter had informed counsel for Mr. Johnson that those entities planned to secure local counsel to file responsive pleadings and "to address the multiple matters of first impression presented in this case surrounding the [F]ederal Stored Communications Act." Mr. Johnson also noted that counsel for those providers indicated during a telephone conversation "that some of the communications at issue are no longer available possibly due to deletion by the content subscriber."

         Following a hearing on September 17, 2015, the trial court held in abeyance the motion to hold the service providers in contempt. The court also modified the time for compliance with the subpoenas to September 28, 2015. Also on that date, the defendants issued subpoenas to the four witnesses that required production of each witness' current and former cellular telephone handsets and copies "in native format" of all the data "associated with any and all" current and former Facebook, Instagram, Twitter, Snapchat, and Yik Yak accounts for the period between May 15, 2014, and December 31, 2014. Each subpoena contained directions for obtaining the necessary information from Facebook, Instagram, Twitter, and Snapchat. None explained how the data could be retrieved from Yik Yak. The trial court issued certificates of materiality to accompany the subpoenas.

         On September 28, 2015, the State moved to quash the subpoenas issued to C.C., Ms. Boland, Ms. Lawn, and Ms. Tavares, claiming that "[c]ompliance with these [s]ubpoenas is unreasonable and oppressive" and that "the [s]ubpoenas are cumulative in that they seek information and records that are already being sought by subpoenas issued to various communications/social media providers." In its motion, the State averred that "[i]n some instances, the witnesses never had social media accounts with the companies listed in the [s]ubpoenas, " that "[i]n some instances, the witnesses have found it impossible to limit data retrieval to the time period listed in the [s]ubpoenas, " and that "the [a]ttachment to the [s]ubpoenas provides no instructions at all for retrieving data from Snapchat or Yik Yak." The State attached to its motion an email from Ms. Boland's mother that it claimed "detail[ed] the onerous nature of the data-retrieval portion of the [s]ubpoenas." The State also noted that the attachment to the subpoenas issued to the four witnesses contained a requirement that the witnesses "provide for inspection any cellular telephone handset that they used primarily or exclusively between May 15, 2014 through December 31, 2014" when the trial court's order did not cover these cellular telephone handsets.

         Also on September 28, 2015, the State moved the trial court "to modify all subpoenas issued concerning the communications/social media accounts of" C.C., Ms. Lawn, Ms. Boland, and Ms. Tavares, arguing that "the time frame for most of the subpoenaed materials is overly broad." The State asked that the subpoenas issued to the social media service providers regarding C.C.'s accounts be modified to cover communications between May 15, 2014, and December 31, 2014. The State asked that the subpoenas issued to the social media service providers regarding the remaining witnesses' accounts be modified to cover communications from November 15, 2014, to December 31, 2014. In support of its request, the State posited that there had "been no showing that social media or telephonic activity concerning the event in question actually occurred before the offense."

         On October 20, 2015, Mr. Johnson moved the trial court to compel the four witnesses to show cause as to why they should not be held in contempt for failing to comply with the subpoenas. Mr. Johnson indicated that he had sent the subpoenas to the three out-of-state witnesses on September 21, 2015, "by FedEx priority overnight service with adult signature required." C.C. and Ms. Boland received and signed for the packages on the following day. C.C. was served with domesticated Florida process on September 24, 2015. Delivery to Ms. Lawn was attempted on "three consecutive days until September 24, 2015, when someone requested that the package be held at the local FedEx facility." After three more days passed without anyone retrieving the package, it was returned to counsel for Mr. Johnson. Mr. Johnson then sent a second package to Ms. Lawn without a signature requirement, and that package was delivered on September 29, 2015.

         According to Mr. Johnson, on September 22, 2015, C.C. sent a letter along with "an assortment of printouts from various social media service providers" to the trial court. This assortment did not include any electronic communications made during the week surrounding the alleged offenses in this case. It did include printouts from Instagram, Twitter, and Snapchat that appeared to explain why she had been unable to retrieve the subpoenaed information. The letter, which was filed under seal but appended to Mr. Johnson's motion, does support Mr. Johnson's statement that C.C. upgraded to a new cellular telephone handset on January 27, 2015. She claimed that the older handset had malfunctioned but stated that she had sold the telephone through a website after restoring it to the default factory settings. As of October 20, 2015, none of the remaining witnesses had returned any of the subpoenaed materials to the court. Mr. Johnson asked that the witnesses be made to show cause for their failure to comply and that the court enforce the statutory forfeiture for their noncompliance.

         Mr. Johnson also stated that the responsive documents received from AT&T indicated that both C.C. and Ms. Lawn had disposed of their cellular telephone handsets "within 24 hours of one another on January 27 and 28, 2015." In the letter, which was appended to the pleading, AT&T indicated that it had not stored the content of text messages for either C.C. or Ms. Lawn but that iMessages might be retrieved from either witness's iCloud[10] account. AT&T also stated that it could not provide access to voicemail within a certain timeframe; that, generally, it retained voicemails only for 14 to 30 days; and that voicemails deleted by the customer could not be recovered at all. Mr. Johnson moved the court to require both C.C. and Ms. Lawn to provide their iCloud login credentials to Sword & Shield Enterprise Security, Inc., "to download the witnesses' data, limit the data retrieved to the time periods stated in the [s]ubpoenas, and provide the responsive data to the Court and all counsel."

         On October 20, 2015, local counsel for Facebook, Instagram, Snapchat, and Twitter (hereinafter collectively "the social media providers")[11] filed a "Notice" of the status of the subpoenas issued to those parties. In the notice, the social media providers indicated that the subpoenas issued to all but Snapchat had been domesticated in California but nevertheless maintained that the Stored Communications Act ("SCA") did not authorize them to release the contents of electronic communications to criminal defendants. The social media providers contended that the appropriate procedure was to subpoena the information directly from the users. Twitter, in particular, "confirmed and advised" local counsel "that it has no records to produce in response to any" of the subpoenas. Facebook and Instagram agreed "to produce non-content records . . . as permitted under the SCA, after giving the users 21 days' notice and an opportunity to object." The social media providers did not take any position regarding the State's motion to quash but did "reserve any and all objections that may be asserted to the subpoenas." The social media providers also noted that "any objections that cannot be consensually resolved" would be "properly litigated in the California court from which the [s]ubpoenas issued." The notice also indicated that counsel for Mr. Johnson had agreed to stay compliance with the subpoenas and to withdraw his motion for contempt.[12]

         On October 23, 2015, Mr. Johnson moved the court to dismiss the presentment, exclude the testimony of the witnesses, or issue an adverse inference instruction based upon the State's failure to preserve the electronic communications that were the subject of the subpoenas. He argued that because the police were aware that several of the witnesses in this case used text messaging and social media to communicate before and after the alleged offenses, they should have endeavored to preserve those communications. Mr. Johnson also noted that, following the alleged offenses, C.C. gave conflicting statements and that, following her interviews with KPD detectives, she had reset her cellular telephone to its factory settings, thereby deleting her text messages and contact information. Although she claimed that she disposed of the cellular telephone because it no longer worked, she stated that she sold the device on a website. She also deleted her Twitter and Instagram accounts and deactivated her Facebook account. Ms. Lawn similarly disposed of her cellular telephone. In that same pleading, Mr. Johnson indicated that he would not contest the State's motion to modify the timeframe of the subpoena.

         On October 27, 2015, the State filed an amended motion to quash. In its amended motion, the State challenged the subpoenas issued to AT&T, the social media providers (including Yik Yak), and the four witnesses. The State argued that the defendants had failed to show that the subpoenas will produce material evidence and that compliance with the subpoenas was unreasonable and oppressive. The State asserted that the subpoena to C.C. violated her rights as a victim. Finally, the State claimed that granting subpoenas would have a chilling effect on rape reporting.

         In his response to the State's amended motion to quash, Mr. Johnson argued that the court had already determined, following a contested hearing, that the information covered by the subpoenas was both relevant and material. He stated that the information already disclosed pursuant to the subpoenas confirmed the court's finding. Mr. Johnson also claimed that the State lacked standing to challenge the subpoenas because the State had no "personal right, privilege, or proprietary interest" in the subpoenaed materials. Finally, Mr. Johnson argued that, even if the State had standing to challenge the subpoenas, it could not establish that the subpoenas were unreasonable or oppressive.

         Neither party presented evidence at the November 3, 2015 hearing on the motion to quash. The State argued that the defendants had made "no showing that these subpoenas will lead to material and admissible evidence, " explaining that materiality was "the main reason that we're here in court today." The State claimed that the defendants had failed to make even a showing that each of the witnesses had accounts with each of the social media providers. The State insisted that the defendants could obtain text messages exchanged between them and any of the witnesses from the defendants' cellular telephones. The State asserted that the defendants had presented no proof of the need to confiscate the cellular telephones of C.C. and Ms. Lawn. The State emphasized that the "main issue" as far as the State was concerned was "that these subpoenas are unsupported by material or admissible evidence." The State also argued, however, that "these subpoenas are oppressive and unreasonable, under Rule 17, " citing as proof the email sent to the prosecutor by Ms. Boland's mother as exhibited to their motion to quash, in which Ms. Boland's mother claimed that she and her husband had spent several hours attempting to assist Ms. Boland in complying with the subpoena and that compliance had been more time consuming than anticipated, to support its assertion that compliance with the subpoenas was unreasonable. Finally, the State asserted, as it had in its amended motion to quash, that requiring C.C. to comply with the subpoenas would create a chilling effect on rape reporting and prosecuting.

         The defendants argued that the State had failed to establish any need for the court to revisit its earlier ruling that the subpoenaed materials were material and relevant. The defendants also asserted that the State's motion to quash was untimely because some of the witnesses and some of the providers had already begun to comply with the subpoenas. Finally, the defendants maintained that the subpoenas were not unreasonable or oppressive and that there was no practical or legal reason to stop the subpoena process after compliance had begun and so close to trial. The defendants suggested that if the witnesses were experiencing technical difficulties, then the court should appoint an expert to help them at the defendants' expense.

         At the conclusion of the hearing, the trial court granted the motion to quash as to the four witnesses and denied the motion as to all the service providers, ruling as follows:

As we said over and over, we're plowing new ground here. This is new territory. We're faced with the reality of the computer age and the generation of incredible amounts of communication and the ability to store these communications and access them. It is a new world and there's much more information available now than there has been in the past.
And the way that legal principles concerning the acquisition of information in litigation is - is struggling to keep up. We are not - our legal processes have not fully embraced and resolved the manner in which this immense amount of information is to be shared, distributed. So we are without a great deal of guidance and authority in making these decisions and in managing this case.
In the beginning, this started with the defense argument - which the Court accepted. The Court accepted defense counsel's representations that Federal case law and Federal statutes are advancing the proposition that stored media communication should be made available to defendants in criminal prosecutions. That's how all of this started. The Court accepted that proposition. The Court reviewed 18 United States Code Annotated, 2701 et seq. And this is the Stored Wire and Electronic Communications and Transactional Records and Access Act. And that's how we began this journey into the business of computer recorded and stored communication information.
In . . . accord with that finding, and with that proposition, this Court did approve the subpoena duces tecum and the accompanying orders to cause social media service providers to provide to the Court the social media communication information relevant to this case. That was the next step.
Some information was provided to the Court pursuant to the subpoenas from some of the providers. Other servers reported that it was their policy to leave it to the end users, or customers, to provide the communication information to others.
In response, counsel for the defense sought approval by this Court for subpoenas and orders directed to the end users, or customers, identified in this case as [C.C.], Bridget Boland, Anna Lawn and Natalie Tavares.
At this point, it appeared to the Court that there was some consensus between the State and the defense that it was appropriate for the end users, or customers, to provide this information to the Court. There was some agreement that the State's attorneys would attempt to help these end users provide this information.
In the attempt to do so, however, it became apparent that the end users, or customers, were not able to access the information in spite of what appeared to be sincere efforts to do so.
At this point, the State filed the motion to quash the subpoena. Under these circumstances, this Court finds that those circumstances justify the extension of the time allowable to the State to file its motion. There w[ere] circumstances that developed after - during the attempt to comply with the subpoena that the State learned that this, in their view, was oppressive and the subpoena should be quashed.
At this point today, this morning . . . the defense is asking the Court to enforce the subpoenas and the State is asking the Court to quash the subpoenas.
It now falls to this Court, in this case, to try to find the proper response of a State trial court to evolving Federal law pertaining to access for both the prosecution and the defense to the expediential increase of stored social media communication information available today.
First, this Court is going to distinguish between two types of social media communication information. The first type the Court will refer to as structural information. By this, the Court means the existence of communications, their duration, the identities of the end users, or customers, who are sending or receiving the communications and, where possible, the location of the senders and receivers. Other types of information might also be considered as structure.
The second type of social media communication information this Court will recognize is content.
The Court now considers the four subpoenas on the individuals, [C.C.], Ms. Boland, Ms. Lawn and Ms. Tavares. First of all, the Court does find that the State has standing to move to quash subpoenas that are being used to try to seize information from their witnesses or potential witnesses.
In considering the relationship between Tennessee law and the Federal statutes and case law pertaining to subpoenas, this Court finds as follows:
Part A. In the context of this case, the term "content, " . . . is equivalent to the legal phrase "statements of witnesses."
Tennessee Rule of Procedure, Rule 17, clearly excludes statements of witnesses from the subpoena power. The Federal statute deals only with the production of information by service providers and not by end users, or customers. That's the second part.
The third part - the third finding of the Court is: That this Court does find that the subpoenas on the individuals in this case are oppressive and unreasonably demanding. The contention made by the State - rather by the defense, that the Court should appoint a computer expert to assist compliance with the subpoena only underscores the unreasonableness of the subpoena obligation as to those private end users.
And for those three reasons, the fact that Tennessee Rule of Procedure, Rule 17, excludes statements of witnesses, and the Federal law deals only with the service providers and not the end users, and in this case, certainly, the Court is finding that the subpoenas turn out to be oppressive and unreasonably demanding. For these three reasons, the Court does now grant the State's motion to quash the subpoenas that have been issued to [C.C.], Bridget Boland, Anna Lawn and Natalie Tavares.
The Court does find that the State lacks standing to move to quash the subpoenas that were issued to the service providers themselves.

         In response to questions by the defense, the court stated that the subpoenas issued to the service providers "remain intact, " explaining, "Those people truly are third . . . parties to this litigation. And they're all perfectly capable of hiring lawyers and moving to quash if they choose to." The court specifically did not rule on whether the providers had to provide the content of the communications.

         Following the trial court's November 3, 2015 order, both parties moved the trial court for permission to seek interlocutory appeal. The trial court granted permission, and this court agreed to interlocutory review, framing the scope of review as follows:

To be clear, this interlocutory review concerns only the trial court's November 3, 2015 order granting, in part, and denying, in part, the State's motion to quash subpoenas of the alleged victim, witnesses, and social media service providers, as limited by the trial court's November 3 order and order granting permission to seek interlocutory appeal.

         Thus, we review the trial court's conclusion that the State had standing to quash the subpoenas duces tecum issued to the witnesses, the court's ruling quashing those subpoenas, and the court's ruling that the State did not have standing to quash the subpoenas duces tecum issued to the various service providers.

         I. Standing

         The defendants argue that the State lacks standing to file a motion to quash any of the subpoenas issued in this case because the State lacks "a personal right, privilege, or proprietary interest" in the materials the defendants seek via the subpoenas. The State asserts that it has standing based upon its legitimate interests in preventing an unnecessary delay of the trial and protecting the State's witnesses. The State also contends that because it bears a constitutional and statutory "duty to protect the rights of crime victims and prosecution witnesses alike, " it has standing to contest subpoenas that "threaten" the rights or interests of the victim and the State's witnesses.

         As the defendants correctly observe, the trial court did not apply the test for standing to challenge a third party subpoena adopted in State v. Harrison, 270 S.W.3d 21 (Tenn. 2008), and instead concluded, without any analysis, "that the State has standing to move to quash subpoenas that are being used to try to seize information from their witnesses or potential witnesses." Similarly, the court found, in conclusory fashion, "that the State lacks standing to move to quash the subpoenas that were issued to the service providers themselves." In response to a question from defense counsel, the court clarified that the service providers "truly are third . . . parties to this litigation. And they're all perfectly capable of hiring lawyers and moving to quash if they choose to."

         The subpoenas in this case were issued pursuant to Rule 17 of the Tennessee Rules of Criminal Procedure, which rule provides that "[a] subpoena may order a person to produce the books, papers, documents, or other objects the subpoena designates" either "in court before trial or before they are to be offered in evidence." Tenn. R. Crim. P. 17(d)(1). "On motion made promptly and in any event by the time specified in the subpoena for compliance therewith, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive." Tenn. R. Crim. P. 17(d)(2). The rule is silent on the issue of who may move to quash a subpoena.

         Absent a showing that the State had standing to challenge the subpoenas, the controversy is not justiciable. West v. Schofield, 468 S.W.3d 482, 490 (Tenn. 2015) ("To determine whether a particular case involves a legal controversy, Tennessee courts use justiciability doctrines that 'mirror the justiciability doctrines employed by the United States Supreme Court and the federal courts, ' and these doctrines 'include: (1) the prohibition against advisory opinions, (2) standing, (3) ripeness, (4) mootness, (5) the political question doctrine, and (6) exhaustion of administrative remedies.'" (citations omitted)); City of Memphis v. Hargett, 414 S.W.3d 88, 96 (Tenn. 2013) ("Justiciability encompasses several distinct doctrines, two of which are . . . mootness and standing."). As the moving party, the State bore the burden of establishing its standing to challenge the subpoenas in this case. ACLU of Tenn. v. Darnell, 195 S.W.3d 612, 620 (Tenn. 2006). Because standing presents a question of law, we review the issue de novo with no presumption of correctness afforded to the trial court. Massengale v. City of East Ridge, 399 S.W.3d 118, 123 (Tenn. Ct. App. 2012) (citing Cox v. Shell Oil Co., 196 S.W.3d 747, 758 (Tenn. Ct. App. 2005)).

         Standing, "'a judge-made doctrine, '" Fannon v. City of LaFollette, 329 S.W.3d 418, 424 (Tenn. 2010) (quoting Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976)), is designed "to determine whether a particular litigant is entitled to have a court decide the merits of a dispute or of particular issues, " Darnell, 195 S.W.3d at 619. "Grounded upon 'concern about the proper-and properly limited-role of the courts in a democratic society, ' the doctrine of standing precludes courts from adjudicating 'an action at the instance of one whose rights have not been invaded or infringed.'" Id. (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975); Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001)). "Every standing inquiry requires a 'careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.'" Hargett, 414 S.W.3d at 97 (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)).

         In Harrison, the supreme court considered whether Harrison had standing to challenge a subpoena directing Dr. Dennis Wilson, a clinical psychologist who had conducted a forensic examination of Harrison, "to produce '[a]ny and all records' retained by him related to his psychological evaluation." State v. Harrison, 270 S.W.3d 21, 26 (Tenn. 2008). Although the Harrison court was examining a judicial subpoena issued under the terms of Code section 40-17-123, which prescribes the procedure to "be employed when a law enforcement officer, as defined in § 39-11-106, " requests "the production of books, papers, records, documents, tangible things, or information and data electronically stored for the purpose of establishing, investigating or gathering evidence for the prosecution of a criminal offense, " T.C.A. § 40-17-123(a), we see no reason that the court's analysis is inapplicable to subpoenas issued pursuant to Rule 17.

         In keeping with the general rule reached by numerous courts that "[a] party has standing to move to quash a subpoena addressed to another if the subpoena infringes upon the movant's legitimate interests, " see United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982), our supreme court concluded that "[a] person who does not have a legally protectable interest in subpoenaed materials has no standing to challenge either the form of a subpoena issued to a third party or the manner in which the subpoena was issued, " see Harrison, 270 S.W.3d at 28. In consequence, the court held that only "a person who has a personal right, privilege, or proprietary interest in materials subject to a third-party ...


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