regarding text messages, can text messages be retrieved from a cell phone carrier by subpeona? I was under the impression that they were only able to retrieve them for a few days.

I am going through a divorce and my husband tried to kill me after I left, he is
now saying that the reason he tried to kill me was because I was having an
affair. He is going to subpeona my phone records. What can they get from those
records?

Asked on December 17, 2018 under Family Law, Missouri

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

There are two different issues here:
1) Legally, since these messages are relevant to your divorce case (e.g. to establish marital fault), he can subpoena them: in a court case, a subpoena can be used to get information or documentation (e.g. text messages) from third parties (e.g. the carrier) so long as they are relevant.
2) Technically, whether or not they can be retrieved at his point is a question for your phone carrier, not a lawyer. I will note that since my phone still has text messages from over a year ago, I assume that they do not expire as quickly as you apparently believe.
Bear in mind that if you delete any messages now that you know they are relevant and your husband wants them, that is "spoilation" (or destruction) of evidence and that can be used against you in the divorce case--e.g. the court would be legally entitled to assume you deleted them because they are bad for you and show what your husband claims they will show.


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