Can a divorce attorney subpoena text messages?

Can a divorce attorney subpoena text messages?

Subpoena for text messages is a difficult area of discovery practice.  The fact is that the service provider, absent some bizarre situation, does not store the information, so obtaining text messages really must come from the opposing party.  We have been successful in obtaining text messages through subpoenas, but success in that area is not common. 

There is no simple answer to this question, unfortunately.

Content of text messages can reveal any manner of transgressions. During a contested divorce, one party may request to subpoena the other party’s text messages to prove unfaithfulness, dishonesty about finances, potential danger to shared children, or many other grounds for divorce.

Subpoenaing text messages isn’t usually an option because most service providers do not store the actual messages, only a record of phone numbers that sent and received messages. Therefore, we can easily establish communication between two people, but in some instances, even that information may not be available from the provider. And just because there is a communication thread, that doesn’t necessarily prove misconduct.

We have been successful in obtaining messages through subpoenas in some divorce proceedings, but it is not common to have success in this area because the text must be authenticated. To authenticate a text, one of three things must happen:

1) The accused party admits sending the text

2) A witness testifies to seeing the message created

3) We must prove response authentication

As you can imagine, any one of these three proofs can be hard, if not impossible to obtain. However, communication via text, email or social media can still be damaging to the sender’s character.

If a text message is used in court, it would most likely have to be provided by the accused. This is not a common occurrence, so, in short, the answer is, yes, text messages can be subpoenaed, but, no, they are not frequently used as evidence for the reasons above.

Text messages can fall into the murky area of ‘hearsay evidence,’ which is inadmissible in court. An experienced attorney can navigate this tricky area for you if you are considering having text messages subpoenaed as evidence during your divorce.