January 26, 2017

Can an Attorney Get Copies of Text Messages in a Divorce case?

It depends. First, there has to be an active civil case pending (ie divorce) for any records to be obtained without a wireless customer’s permission. The attorney isn’t authorized to request any records if there’s not civil case that is ongoing.

If there is a civil case pending then an attorney may request a party to produce his or her cellular records by sending him or her a Request for Production of Documents or a Notice to Produce. The attorney can ask for screen shots of text messages that are in the party’s possession as well as copies of documents reflecting the call and text history printouts that the party receives from his cellular service provider. In my experience these documents quite often mysteriously disappear from the party’s possession as soon as I request them. They somehow get “accidentally” deleted. There are consequences for deliberately destroying evidence that has been requested in a court case, but it is often difficult to prove that intentional destruction has in fact occurred.

The attorney’s best option is to request the records directly from the cellular service provider (ie. Verizon). Federal law prevents production of these documents without a court order or subpoena. An attorney can easily obtain a court order or subpoena to get the records directly from the service provider, but there are limitations on what the provider can produce. Federal law makes a distinction between “content of the communication” and “records concerning the communication”.

Text message content (what is actually communicated in the text messages) may only be obtained from the provider by a law enforcement officer or prosecutor pursuant to a search warrant in a criminal case or criminal investigation. Even in these cases the information has to be requested very quickly. Cellular service providers maintain records of text message content for a very short period of time. Verizon, for example, will purge text message content from its electronic storage system after just 10 days. The content is forever lost after this occurs. Regardless, the “content” cannot be obtained in civil cases.

Records of communications such as printed histories of phone calls and text messages sent and received are treated differently. These documents may be obtained by the lawyer in a civil case through a subpoena or court order. The history printouts will typically contain the date and time of the communication, the phone number that sent or received the communication, the duration of the communication if it is a phone call and the amount of data used if the communication is a text message. Verizon will typically keep these records for 18 months before archiving them. When I request these records pursuant to a subpoena I typically receive them from the cellular service provider within a few weeks on a CD which can be downloaded or printed.

So, in a civil case an attorney can’t obtain the text message content, but the attorney case obtain copies of the history of communications sent and received.

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