03/02/2020 In re 381 Search Warrants Directed to Facebook, Inc. :: 2017 :: New York Court of Appeals Decisions :: New York Case Law :: New York Law :: US … The Second Circuit has employed the same reasoning to allow the immediate appeal from an order enforcing an arbitrator's subpoena (Dynegy Midstream Servs., LP c Trammochem, 451 F3d 89, 92-94 [2d Cir 2006] [allowing appeals from independent proceedings in which "a party comes to federal court for the sole purpose of asking the court to issue an order" and dismissing appeals from orders "embedded . . . in the midst of ongoing litigation in the district court"]). Other circuits have allowed the appeal of independent proceedings involving administrative search warrants (Babcock and Wilcox Co. v Marshall Eyeglasses, 610 F2d 1128 [3d Cir 1979]; United States v Stauffer Chemical Co., 684 F2d 1174 [6th Cir 1982]). That conclusion, which tracks to a considerable extent our own jurisprudence allowing the appealability of an order resolving a nonparty's motion to quash a subpoena issued prior to the commencement of a criminal action, is further bolstered by the SCA's explicit support for Facebook's right to move to quash an order. The Supreme Court has been reluctant to close the doors of the Courts of Appeals to those whose appeal from compulsion rests on statutory provisions (Cobbledick, 309 US at 329). c. State Rules of Procedure Cannot Eliminate a Federal Right The New York Criminal Procedure Law cannot and should not extinguish a service provider's federal right to a fully adjudicated motion to quash, even if that motion is pursued —- at the choice of the government —- in state courts. To hold otherwise is to contravene both the language and the remedial and deterrent purposes of the SCA, which here would deprive Facebook of its only avenue to challenge a potentially significant harm. Although the SCA incorporates state rules governing the issuance of the bulk warrants (§ 2703 [a]),[FN13] the warrants here are federal warrants issued pursuant to federal statutory law -— not New York State law —- and no provision of the SCA adopts or references state-law procedures for the appealability of SCA warrants. Nor does any portion of the legislative history suggest that Congress intended to leave appealability of SCA warrants to the vicissitudes of the appealability rules of the several states. It is implausible that Congress, which carefully balanced Section 2703 (a)'s grant of power with Section 2703 (d)'s check on the same, intended to allow prosecutors to forum shop for the court with the rules of procedure that would best evade the statutorily-granted quasi-Fourth Amendment protections. When a service provider moves to quash under Section 2703 (d), it has initiated a collateral, civil proceeding that gives rise toa final order subject to federal rules of appeal. Even were that not so, the SCA would preempt CPL 450 when an SCA warrant is involved, requiring us to apply the federal rules for [*20]interlocutory appeals in https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 22/44