Can A Divorce Attorney Subpoena Text Messages?

Name: Sherwood Family Law
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There are ways Oregon divorce lawyers can get or subpoena text messages in an Oregon divorce.

Can I Get Text Messages From My Spouse Or Third Party?

People often want to know if they can subpoena or otherwise get text messages from either a spouse or maybe even a third-party in the Oregon divorce process. The short answer with respect to your spouse is “probably.” The short answer with respect to a third-party is “probably not.” The long answer to both parties is much, much, longer.

How To Get Text Messages In An Oregon Divorce

In a family law matter, Oregon law gives the parties the right to request information that “appears reasonably calculated to lead to the discovery of admissible evidence.” That is an incredibly broad standard that allows a party to request, and requires the opposing party to produce, a potentially vast amount of information. Could text messages contain information that is reasonably calculated to the lead to the discovery of admissible evidence? Of course. They could contain admissions from the opposing party. They could confirm the dates and times of specific incidents. They could identify important witnesses. From that perspective, you can absolutely request text messages from the opposing party, and they would be likely required to produce them.

Subpoena For Third Party Text Messages

Obtaining text messages from a third-party can present a series of different problems. First, a third-party is not a party to the legal proceedings, and so they are not obligated to voluntarily provide text messages or respond to a request for production. This means that you would need to subpoena them from the third-party, which is almost certainly going to be met with resistance.

Imagine how you would feel if a potential stranger attempted to compel you to provide your text messages to them. If the subpoena was contested by the third-party, there are not a lot of circumstances within the family law context in which a judge would order a third-party to produce the text messages. People have a fundamental right to protect their own privacy interests and Judges are not going to want to get in the habit of requiring non-parties to disclose personal and private information in a case they are not even a party to.

There are some circumstances in which a judge likely would order that a third-party produce certain text messages, but the scope of what they were ordered to produce would be very narrow. For example, a third-party might be compelled to produce specific messages, from a specific person, that were generated on a specific date and time. It is exceedingly unlikely that a judge would issue a “blanket” order requiring a third-party to provide all of their test messages.

The Problems With Getting Text Messages

The problem with requesting and obtaining text messages is often more practical than legal. People often struggle to find a way to format and print text messages in a way that makes them user friendly as evidence in court. When printed, chains of text messages are often disjointed with one-half of one message being on the bottom of one page, and then the whole message appearing again at the top of the next page. It can be difficult to follow a text conversation once printed. In addition, when printed, it can often times be difficult to easily identify the date and time a message was sent. There are programs you can use to more readily print the text messages into a user-friendly format, but they produce mixed results and they don’t work across all formats and all types of cellphones.

As indicated, if you want text message evidence from the other party, the easiest thing to do is to request it from them and then ask the court to order them to produce it if they refuse. If they have deleted the messages, this produces a whole another set of potentially expensive problems.

Subpoena Text Messages From Verizon, T-Mobile, Sprint, AT&T

Theoretically, a subpoena can be issued to a telecommunications provider like AT&T, Sprint, Verizon and T-Mobile, requiring that they produce the text messages.

The problems are: (1) they will likely resist the subpoena and they probably have a cadre of high priced lawyers that will assist them in doing so which will be expensive for you; and (2) even if they have to produce them, they don’t have the actual text of the messages. They’ll just have a list of the date and time a message was sent and to what number the message was sent to. Ordinarily, that won’t be especially valuable information, although it could be if that is the issue we are trying to prove.

Is It Worth Getting The Text Messages?

One reason people want to subpoena text messages is because they want to know if they can get the text messages between their spouse and the person with whom they are having an affair. Again, the answer is maybe. Even though people want these messages, the important questions are, “Do I need my spouses text messages” or, “Is the cost of getting the text messages exceeded by the value of what they contain?”

Oregon is a no-fault divorce state. From a legal perspective, whether a spouse is or is not having an affair, and what they are or are not texting to their new lover usually does not have a lot of relevance to the divorce process, although there are rare situations where it does. People can spend thousands of dollars trying to obtain text messages that prove something that gives them little value in return with regard to overall results.

This brings up the most important point regarding what people choose to focus on in the divorce process. People often focus too much on the question of what they can do, and not whether they need to do it. The process of gathering and finding the evidence needed to best represent a client’s interests should be surgical and precise in nature. This is true because you want the best evidence and you want to avoid extraneous and unnecessary costs and attorney fees.

The discovery process should not be one in which people are throwing good money after bad. One shouldn’t just ask if they can obtain certain information, but why they need to obtain that information. Even if they felt that there was some critical piece of evidence contained within the text messages, it’s possible that the same evidence exists in a more easily obtainable, and better format. As they say, “there is more than one way to bake a cake.”

Attorneys and their clients have lots of tools in their tool belt for gathering, finding, and compelling the opposing party to produce and provide evidence. Ultimately, they should use the best tool for the job. We can help you make those good decisions. Call us or set up a consultation to discuss in more detail.