In a contested divorce case, tracing communications can be critical. Text messages often contain important evidence around issues like custody, assets, and infidelity. This leads to common questions like – can my divorce lawyer subpoena my text messages?
The short answer is – sort of. Text message logs can be subpoenaed in Arkansas, but not necessarily message content. Here’s how it works:
First, the attorney prepares a subpoena directed to the mobile provider that identifies the text message records that are being requested. Unless it is requesting the mobile provider to simply show up to trial with the requested documents (which would rarely happen), the subpoena has to be sent to the other party or their attorney before it can be sent to the mobile provider several days later. This lag time gives the other party an opportunity to oppose the subpoena by filing a motion with the court.
If approved or not otherwise contested, the subpoena is issued to the mobile provider requesting the text records. The company keeps logs of all texts.
The provider can disclose the text logs showing the sending and receiving numbers and time stamps. However, they typically cannot disclose the actual text content without the account holder’s consent due to federal privacy laws like the Stored Communications Act.
To obtain the verbatim messages, the attorney must typically request a forensic download of one or both party’s phones directly. This extracts a detailed backup of the texts.
There are some additional privacy protections in Arkansas law around subpoenaing personal communications. Expect limitations or added steps.
In summary, while text logs can be subpoenaed, providers generally cannot disclose the content of messages in civil cases like divorce without permission. But an experienced attorney can take proper steps to request relevant text records when required.
Ideally any texts containing useful evidence should be willingly shared by the parties involved. But if not, a lawyer can attempt to properly subpoena available text metadata.