Telephone Records in Your Divorce Case

Think of all the personal data that is collected by your smartphone. Voicemails, text messages, messaging apps, Facebook, Twitter, Instagram, and dating apps. These can all contain, if not confidential, highly personal and private information you may not want your spouse to have if you are going through a divorce. Thankfully, not all of the above can be readily accessed or requested by your spouse absent some strong showing of necessity. However, there still is some data that can be obtained by subpoena, that requires only a showing of relevancy to your case.

Your billing statements and phone call/text message logs are readily discoverable and can be obtained by subpoena. The statements typically show the amount you pay for your plan and any other billed items, such as financing a smartphone. They may show a billing address. They also typically show the other numbers that are a part of your plan, whether for family or friends. However, they typically do not show the names of the people those other numbers belong to. Income and outgoing call logs show when and for how long you talked to a certain phone number you dialed, and whether you placed the call or they did. Texts logs will show the times of sending and receipt for text messages to a certain number you texted or texted to you. It is important to note that in the logs, no content is provided. That means that know one can find out what you said or texted the other number.

So why is it useful if it does not disclose content? The data, often called metadata, can be used to pinpoint activity at a certain time or even place, if used in conjunction with GPS data. For instance, in child custody cases, one spouse may allege that when their ex has physical custody of the children they are neglectful. One way to show to the court that they are not watchful could be showing call and text logs during a period of custody. If those logs show extensive duration and activity during these times, then it can potentially be used to show that the spouse is inattentive, spending time talking and texting friends rather than caring for the children.

The way to obtain these records is often by discovery; by asking the opposing spouse for records. But a spouse and their attorney may also subpoena the carrier, a nonparty, for the billing statements and logs. Under our laws for subpoenas, a party cannot object to a subpoena issued to a nonparty without claiming some sort of privilege or other protected matter. So that means that your spouse cannot object to your subpoena on their carrier unless they can claim a legally recognized privilege or argue that they are protected in some other fashion. Our laws do not recognize such a privilege, and in criminal cases the Supreme Court has already stated that billing statements and phone logs are not protected matters because you know that they collect this data, and that the data collection and retention is normal in their business conduct. (For example, Verizon needs to know who you called/texted and for how long, because they bill you for it).

Your phone is always collecting information. Do not assume that it can be kept private. Your attorney will need your complete transparency about potential landmines lurking in your phone.