Juror Number One v. Superior Court

Following the conviction of real parties in interest for various offenses stemming from an assault, respondent court learned that one of the trial jurors, fictitiously named Juror Number One, had posted one or more items on his Facebook account concerning the trial while it was in progress, in violation of an admonition by the court. The court conducted a hearing at which Juror Number One and several other jurors were examined about this and other claimed instances of misconduct. Following the hearing, the court entered an order requiring Juror Number One to execute a consent form *858 pursuant to the Stored Communications Act (SCA) ( 18 U.S.C. § 2701 et seq.) authorizing Facebook to release to the court for in camera review all items he posted during the trial.

Juror Number One filed a petition for writ of prohibition with this court seeking to bar respondent court from enforcing its order. He contends the order violates the SCA, the Fourth and Fifth Amendments to the United States Constitution, and his state and federal privacy rights.

We conclude the SCA is not applicable to the order at issue here and Juror Number One has otherwise failed to establish a violation of…

The majority opinion states that “even assuming Juror Number One’s Facebook postings are protected by the [Stored Communications Act (SCA) ( 18 U.S.C. § 2701 et seq.)], that protection applies only *869 as to attempts by the court or real parties in interest to compel Facebook to disclose the requested information. Here, the compulsion is on Juror Number One, not Facebook.” (Maj. opn., ante, at p. 864.)

It is true the compulsion is on Juror Number One to “consent” to the production of documents. But the trial court is seeking the documents from Facebook, not from Juror Number One. The trial court crafted its order to take advantage of the consent exception in the SCA (Stored Communications Act). ( 18 U.S.C. § 2702 (b)(3).) It ordered Juror Number One to “execute a consent form sufficient to satisfy the exception stated in Title 18, U.S.C. section 2702 (b) allowing Facebook to supply the postings made by [Juror Number One] during trial.” In essence, the trial court’s order is an effort to compel indirectly (through Juror Number One) what the trial court might not be able to compel directly from Facebook. This is arguably inconsistent with the spirit and intent of the protections…