Can divorce attorney subpoena text messages?

Dec 30, 13 Can divorce attorney subpoena text messages?

A subpoena is a written order, may be a warrant, by a government organization that the lawyer has the authority to check the authenticity of witnesses. This is generally issued by a court’s clerk in the name of the presiding judge for the case. It is usually on the letter head of the court which has the case filed, naming the parties to the case and is addressed by the name to person for whom the testimony is sought. This warrant commands the person to report personally to the clerk of the court, or in similar manner describing the date, time and location of the appearance.

In the terms of divorce practice, the clients are usually well educated and are aware of the use of electronic age. It is very common to use emails, laptops, flash drives etc for communicating a meeting. The electronic evidences also contain text messages. Nowadays, the new generation sends text messages to express the love or anger towards the other party. If the text messages are not preserved, they can lose the essence of being evidence, and are quick and cheap to be sent.

Yes, if educated about the new technology, the divorce attorney can use text message as a subpoena. The text message needs to be preserved. There are 2 methods to do this:

1.As soon as it is received, the same should be reported to a certified court reporter who can transcribe the same. This forms a witness. The court reporter has a very high weightage as a witness, that he held the mobile phone, scrolled all over the text message and transcribed them as in the phone.

2. Using the same is to get a letter and a subpoena out to the mobile phone company right away! The person will get the message from his phone only through a subpoena, and on average the system will store the message for 72 hours, after which it is gone. The subpoena has to be submitted to the court, if the copy of these messages is to be obtained.


If the documentation regarding phone calls is required, then it is readily available with mobile careers, and can be obtained via subpoena but it is meaningless. However it is not very simple task to obtain text messages. The log history can be obtained, but text messages are retained from 48-72 hours until these are purged from database. The attorney for divorce can get the same with subpoena, stating that the text message to need to be preserved for a longer period. It is then granted for 2 weeks, and this can be extended by further letters, if there is a need to extend the time of preserving the text messages. The legal department of mobile carriers might accept the request of preserving text messages from the divorce attorney and some might ask for subpoena to be signed by a court official or a judge. This all depends on the carrier’s legal department’s norms of preserving the text messages.

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