Defendant was accused of the rape of J. The defense learned that she kept a journal on Google, and the defense sought to get it by subpoena from Google under the Stored Communications Act. There were hearings and the state was ordered to help. Ultimately, Google refused without a search warrant. The case went to trial without it, and defendant was convicted. J testified and she testified she destroyed the computer. The trial court did all that it could do but Google refused, and the trial court did not err in refusing to dismiss the case. The state could not be compelled to issue a search warrant for the defense. [There is a helpful explanation of the SCA.] State v. Bray, 363 Ore. 226 (July 5, 2018):
In this case, the trial court issued an order requiring the district attorney to take action permitted by the SCA to obtain J’s internet searches, and the validity of that order is not before us. As noted, the state did not seek a writ of mandamus contesting the order, and the district attorney responded by issuing a subpoena that Google rebuffed. The question before us is whether, when defendant sought the court’s assistance in compelling the district attorney to take further action, such as applying to the court for a search warrant or an SCA order, due process required the court to provide that particular assistance. It did not. Although the internet searches may have been sufficiently important and exculpatory to justify the trial court’s initial order, there are two reasons that, together, persuade us that the need for the evidence was not so great that the court’s failure to order the district attorney to issue process to Google deprived him of a fair trial. First, even if defendant could not prove the precise search terms that J used to search the internet without the searches themselves, he could prove that J had consulted the internet to determine whether what happened to her counted as rape. And second, issuance of process to Google was not the only means available to defendant to obtain evidence of the searches that J conducted. As more fully discussed below, J’s computer may contain that evidence. Given those alternative means of informing the jury that J may have had doubts about whether she had been raped, we are not convinced that the Supreme Court would hold that the trial court’s failure to order the district attorney to issue process to obtain that information from Google constituted a due process violation. The Court has been clear that, to prove a due process violation based on a deprivation of evidence, a defendant must demonstrate that the loss of evidence was so material and favorable that it prevented a fair trial. United States v. Valenzuela-Bernal, 458 U.S. 858, 872, 102 S Ct 3440, 73 L Ed 2d 1193 (1982). Accordingly, we conclude that the trial court did not err in retreating from its initial order and refusing to compel the state to apply for a search warrant or an SCA order.