Can a judge subpoena full text messages from a cell phone carrier to prove adultery?

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Can a judge subpoena full text messages from a cell phone carrier to prove adultery?

The carrier has told me that they cannot give them to me as they do not keep them once the texts are delivered.

Asked on November 5, 2010 under Family Law, Georgia

Answers:

Rob MacKenna / The MacKenna Law Firm

Answered 11 years ago | Contributor

Also, you should consider if this is actually necessary.  Georgia is a no-fault divorce state, meaning that you don't need to prove adultery in order to get a divorce.  There are some reasons why you might want to prove that there was adultery taking place, such as if your soon-to-be ex-wife is seeking alimony.  You should consult an attorney to determine if you actaully need to get these records, as well as the proper procedure for obtaining and serving a subpoena on a non-party.

 

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Clarify with the carrier: they do not store text messages on their server once the message is delivered to the recipient.  Make sure that you get that in writing because some carriers do indeed store them on their servers and archive them on heir websites if you are signed up for that service.  It is true that it is not a uniform thing across the board with each carrier.  There is another alternative.  You could subpoena the sim card from her phone and obtain a sim card reader that can read deleted text messages.  They are available to purchase.  Just go on line and look them up.  See if the court will allow this.  Good luck.


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