Jeanette M. Bruce v. Potomac Electric Power Company

Respondent Pepco served a subpoena duces tecum commanding production of the personal cell phone of Petitioner Jeanette Bruce after she witnessed a downed high voltage power line across the street from her home and voluntarily produced a photo of a resulting fire that she took with her cell phone. The trial court disregarded Riley v. California, 573 U.S. __, 134 S.Ct. 2473 (2014), as “wholly inapplicable” to determining whether the subpoena to inspect and copy the contents of her phone was overbroad or unduly burdensome in light of her right to privacy. The District of Columbia Court of Appeals dismissed her appeal without addressing Riley on the basis that the trial court has “considerable discretion.” This Court is again addressing Fourth Amendment rights regarding cell phone information this Term in Carpenter v. United States, No. 16-402, this time in the context of subpoenas duces tecum. The Questions Presented are:

1. Whether this Court should grant, vacate, and remand the District of Columbia Court of Appeals’s decision allowing the party issuing a subpoena duces tecum to command possession of a non-party’s cell phone, with only “discretionary” consideration of the right to privacy for information stored on the cell phone.

2. Whether a court in evaluating a subpoena duces tecum that commands the production of a non-party’s cell phone must weigh the non-party’s right to privacy