Text messages are used often in family law cases, particularly in divorce and child custody litigation. However, anyone who has ever tried to obtain text messages through a court proceeding knows how difficult, and often impossible, it can be.
The most important concept to understand about text messages is that the content of text messages (i.e., the message communicated by one person to another through a cell phone) is only kept by the cell carrier for two to three days. This provides a very limited time frame to obtain the data from the carrier directly.
Moreover, carriers often rely on the federal Stored Communications Act to refuse to comply with state court-issued subpoenas. Federal law requires the cell phone subscriber consent to the request before a carrier is obliged to provide any information.
So How do you get Text Messages by Subpoena?
1. First, it is best to try and get the cell phone company to retain the content of the text messages by sending a letter to the carrier explaining that the text messages are evidence and must be preserved. It is wise to have an attorney draft and send the letter, citing the relevant provisions of the Stored Communications Act and applicable state law. The letter should be sent certified by overnight delivery.
2. Second, prepare the subpoena to seek the relevant text message(s).
3. Third, file an ex parte motion with your divorce court and request that court order the other party to sign a notarized consent to release the text messages.
4. Fourth, serve the subpoena. This may be tricky depending on what state your divorce is being handled, as the rules for service vary from state to state. You may need to have a “commission” set up in the state that the cell carrier’s records are kept to ensure the subpoena is properly served.
Obviously, this is a significant amount of work. Fortunately, there are far better options.
Alternatives to Subpoena
There are two significantly better alternatives than sending a subpoena to a cell carrier.
1. First, the recipient of the message will have a copy of the text message (which might be you). You can print off the text messages and produce those as evidence. The recipient of the message can “lay the foundation” for the message by establishing that the message was sent by a specific phone number to their phone number.
2. Second, get the text message from the sender. This can be accomplished a number of ways. Most often, divorce attorneys can prepare and send a “Demand for Inspection and Production of Documents or Things” to serve on the opposing party, which can include a request for copies of text messages or better, the opposing party must actually produce his or her cell phone for inspection. If the sender of the text message is not a party to the case, your divorce attorney can send a deposition subpoena and have the person appear in the attorney’s office for a deposition.
Keep in mind that while the text message content may be difficult to obtain, the fact that a text message was sent on a specific date and time can be obtained on the subscriber’s cell phone bill. That is helpful in some situations, such as domestic abuse cases where one party sends hundreds of text messages to their spouse or significant other to harass or threaten them.
Another Useful Tip to Print Text Messages from Your Device
Do you have an iPhone? Download and use iExplorer, which is a file transfer app that helps create printable pages for your text messages. Gone are the days of having to take a picture of a text message and then emailing that picture so you are able to print.