Text messages are often the most damaging — or most exonerating — evidence in a family law case. Naturally, clients ask whether they can subpoena the other side’s text messages. The answer is nuanced, and getting it wrong wastes time and money.
Why you usually cannot subpoena text content from the carrier
The instinct is to send a subpoena to the phone carrier — Verizon, AT&T, T-Mobile — for the other party’s messages. In almost all cases this fails. The federal Stored Communications Act generally bars carriers from disclosing the content of communications to private litigants, even under a civil subpoena. What a carrier can typically produce is metadata — the record that a text was sent between two numbers at a certain time — but not the words themselves. And most carriers retain message content for only a very short time, if at all, so “how far back can you subpoena text messages” usually has a disappointing answer: the content is simply not there to get.
How text messages actually become evidence
Texts get into a California family law case through discovery directed at the party, not the carrier. The primary tools are a Request for Production of Documents demanding the other spouse produce relevant texts, a deposition where the person is questioned about their communications, and — where justified — a court-ordered forensic examination of the device itself. A party has a duty to preserve and produce relevant messages, and deleting them after litigation is anticipated can lead to sanctions for spoliation of evidence.
The most reliable source: your own phone
The single best source of text evidence is usually the phone in your own hand. Messages you exchanged with the other party, or screenshots showing the sender, date, and full thread, are ordinarily admissible if you can authenticate them. Preserve them carefully — back them up, do not edit them, and keep the full conversation rather than isolated snippets, because context and authenticity are what a judge scrutinizes.
Do it the right way
Because text messages in a divorce raise both privacy law and evidence-authentication issues, the wrong approach — an improper subpoena, or worse, accessing the other person’s phone or accounts without authorization — can backfire and even expose you to liability. Gathering electronic evidence lawfully is a job for your attorney.
Talk to Furubotten Law
Every page on this site ends the same way it began: with a real lawyer. If you are navigating any of the issues discussed above, Denise Furubotten, Esq. brings 30 years of California family law experience to your matter. Call Furubotten Law, APC at (714) 795-3862 to schedule a confidential evaluation.