Subpoenaing Text Messages in California

April 10, 2024

Text messages can provide clear, date-specific records of what people have said, their supposed intentions, and even details about their location at a given time. These kinds of details can serve as vital evidence in different kinds of court cases including divorce proceedings, business disputes, and criminal cases. As such, California courts can take text messages as valid and usable evidence as long as they can be verified and are relevant to the case at hand.

To access text messages using a subpoena, you’ll have to issue a subpoena duces tecum to the entity or organization that has the text messages in their records. The entity can be a party to the case who has the text on their device, or the telecommunications provider or phone carrier. However, a subpoena for text messages must be served correctly to be valid, and the best way to serve a subpoena is through a professional process server.

We, at On-Call Legal, are experienced in handling various types of subpoena services in California and across the United States. Our seasoned nationwide process servers are always here to help you subpoena any legal documentation for your case to anywhere in the country. Schedule a free consultation with us today and we will guide you throughout the process.

This article will discuss how far back you can subpoena text messages in California and key factors that can prolong or shorten this duration.

Legal Framework For Subpoenas in California

Legal Framework For Subpoenas in California

The California Code of Civil Procedure (CCP) regulates the issuing, serving, and enforcing of all kinds of subpoenas. These rules make sure that parties seeking relevant evidence in legal proceedings do not cause undue burdens to subpoena recipients. The rules also specify how you may serve a subpoena – in person, through certified mail, or by a professional process server.

At the federal level, the Electronic Communications Privacy Act (ECPA) regulates how you access and interact with different kinds of live and stored electronic communications in the United States. The Act consists of three provisions:

  • The Stored Communications Act (SCA)
  • The Pen Register Act
  • The Wiretap Act.

The Wiretap Act was stipulated to ascertain that people do not access, disclose, or use wire, oral, or electronic communication without being properly authorized. It also determines the guidelines that law enforcement agencies must follow to monitor digital communication in real-time. On the other hand, the Pen Register Act governs the use of pen registers and trap-n-trace devices. It ensures that these devices do not capture the main content of wire or electronic communications while recording transmission information.

The Stored Communications Act (SCA) is the part of the ECPA that is most relevant to subpoenaing text messages. The SCA seeks to ensure that the privacy of the contents of the files and records held by service providers is not compromised. Under the SCA, a government entity must get a search warrant to access electronic communications (such as emails or texts) stored for 180 days or less (relatively new messages). To access older communications, the entity can issue a subpoena with prior notice to the subscriber.

How Far Back Can You Subpoena Text Messages?

How Far Back Can You Subpoena Text Messages?

How far back you can subpoena records of text messages and how far back they can be retrieved depends on several factors, such as the service provider policies, technological infrastructure, the complexities surrounding the case, privacy concerns, etc. Different text messaging platforms and carriers have distinct policies that define how long they can retain text message data, usually ranging from a few days to several months. 

As stated in the U.S. Criminal Code, 18 USC § 2703, a telecommunication or phone company is required to make all necessary efforts, on the request of a government entity, to preserve and retain records, including text messages and call logs, for a period of 90 days. They can also retain the records for an additional 90 days on further request by the government entity.

However, some companies may have longer retention periods, depending on their specific service provider policies. For example, Verizon Wireless keeps records of text message details, such as the date, time, and phone numbers involved, for up to one year. AT&T keeps communication data such as those involving text records, call records, cell sites, and tower dumps for 7 years. T-Mobile retains data for a year or more, while Sprint keeps data for up to two years. The majority of these companies hold text message content for 3-5 days.

Most times, what prevents service providers from keeping text messaging for long may be their technological limitations. For instance, some providers have strong systems that can retain data for the long term, while others may have to delete data for new ones to be stored. Also, due to storage costs, telecommunication companies may come up with policies to maximize their resources and control spending.

Other factors that can affect how far back your text messages can be retrieved include technical infrastructure, storage costs, age of text records, technological constraints, etc. Generally, newer text messages are easily retrievable, but the cell phone provider may likely delete or overwrite older messages. Note that text messages containing sensitive information may be encrypted for security reasons, which makes them difficult to retrieve.

How Far Back Can Text Messages Be Used as Evidence?

Generally, you can use text messages as evidence as far back as two years or more, depending on your jurisdictional regulations and if the messages are relevant to the case.

In California, the statute of limitations greatly affects the time limits for filing your lawsuit. For instance, the California statute of limitations will be two years if your case is a car accident or personal injury case. Contract disputes take four years, while most felony crimes in California take three years from the time they occur. This means that you can only take legal action in your case within these time limits. Therefore, it’s crucial to subpoena the relevant text messages as early as possible; otherwise, you may lose them forever.

In What Cases Can Text Messages be Subpoenaed?

You can subpoena text messages in various legal proceedings, such as personal injury lawsuits, divorce cases, contract disputes, employment disputes, employment discrimination cases, regulatory investigations, etc., as long as they are relevant to the litigation. 

For example, you may need to subpoena text messages in a case where an employee suffers alleged discrimination through text messaging from employers or colleagues. Also, you may want to subpoena relevant messages between your spouse and a third party as valuable evidence for child custody in a divorce case.

Legal Requirements For Subpoenaing Text Messages

Legal Requirements For Subpoenaing Text Messages

A text message subpoena can be invalidated if it does not fulfill the necessary requirements. It’s important to understand and follow these requirements to be sure your subpoena is effective. The requirements are as follows:

  • The subpoena should clearly describe the text messages you are requesting and the reasonable period for which the recipient must provide them.
  • You or your attorney must properly serve the subpoena to the party required to provide the text messages. This can either be through personal service, a licensed process server, certified mail, or other legally approved methods in your jurisdiction.
  • Ensure that your attorney notifies the subscriber or individual who owns the text messages you are subpoenaing.
  • According to ECPA, you must always consider the subscriber’s privacy when subpoenaing text messages. Request only records that are relevant to the case.
  • The recipient of the subpoena has the right to object to your subpoena or file a motion to quash the subpoena if they can provide sufficient proof of improper service.

The Process of Subpoenaing Text Messages

The Process of Subpoenaing Text Messages

Although there might be slight variations in the subpoena process for various state and telecom companies, the following general procedures can guide you through the process:

  1. Determine if the text messages are relevant to your case and if you have legal grounds to request them.
  2. Prepare the text message subpoena and include relevant information such as the names of the parties, case number, court name, and name and address of the recipient. In this case, the recipient is most likely the party’s cellular service provider. Also, always specify the exact text message you are subpoenaing, including their date ranges.
  3. File your subpoena with the court handling the case and wait for approval.
  4. If approved, serve a copy of the subpoena to the telecom company. In California, you can serve subpoenas by mail, electronically, or through process servers like On-Call Legal.
  5. The service provider will then review your subpoena request to ensure it is in line with legal requirements. Sometimes, they may ask you to provide a court order or other legal documents before disclosing any text messages.
  6. Once the provider processes your request, they will then disclose all the required records according to the terms of the subpoena.

Challenges and Considerations of Subpoenaing Text Messages

Challenges and Considerations of Subpoenaing Text Messages

The retention policy of the service provider is one major challenge because they may not retain text messages for a longer period. This reduces your chances of accessing older messages. It also depends on the category of the text messages you’re requesting. Traditional SMS and MMS may have different retention policies from messages sent through WhatsApp, Signal, iMessage, and other instant messaging apps.

Privacy Concerns and the Fourth Amendment

Although text messages are valuable evidence in your case, privacy concerns are crucial. There must be a balance between an individual’s rights to privacy and the need for evidence, especially if you’re requesting personal and sensitive information. The Fourth Amendment is a provision that protects individuals against unreasonable seizures and searches. You may need a warrant to obtain text messages, especially if your case is 180 days old.

The federal government also has other laws that protect phone users’ data against fraudulent access. For example, according to the Telephone Records and Privacy Protection Act and the Communications Act, the service provider must obtain customer approval, a subpoena, or a court order before they can provide any requested records.

How to Ensure You Subpoena Text Messages Effectively

To ensure you subpoena text messages effectively, it’s advisable to consult with a legal professional experienced with the subpoena process and retention policies of notable providers. They can make sure the process complies with federal and state laws, such as privacy and data protection laws.

Ensure to understand the policies of the party’s telecom provider. Also, ensure your instructions and the terms of the subpoena are clear and concise to speed up the process. Additionally, make sure you serve the subpoena legally to avoid issues associated with an invalid subpoena.

All-Inclusive Support Services For Legal Professionals

In California, how long text messages can be subpoenaed depends on the retention policy of the telecommunications company, technology constraints, and the legal requirements. Determining the duration can be difficult. Hence, it’s wise to consult with legal professionals, like a licensed attorney experienced in California law and data retention policies. Furthermore, make sure to hire an expert process server to avoid issues due to incorrect subpoena service.

At On-Call Legal, we are committed to serving your subpoena or court order with professionalism and reliability, ensuring it complies with California legal regulations. Don’t leave such a crucial part of your legal process to chance. Contact On-Call Legal today for exceptional nationwide process service, and rest easy knowing your legal needs are in expert hands. Remember, your ideal process server is just a call away!

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