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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 26420
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Subpoena for phone records. By when should the company comply?

Resolved Question:

When a subpoena is issued to retrieve text messages and phone records, how long does it usually take the company to respond. And does the company monitor it until the court date or is it just a one time thing?

Submitted: 5 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 5 years ago.

There is no set answer to this. Phone companies protect the privacy rights of their customers. If these are your records you should get them fairly quickly. If they are the complainants, you'll have an easier time of it if the DA subpoenas them and turns them over as part of the discovery. They are less likely to give the prosecutor a hard time, where as you might have to file an order to show cause.

Customer: replied 5 years ago.

OK. Here is the situation. My wife and I are going through a divorce, and she has been having an affair (threesomes with a man and women). She has had my daughter with her during this time. She is still continuing to act irresponsibly and taking my daughter with her to these people's house, and when they were coming over my daughter saw. In her text messages she shows how she is putting my daughter in these situation. Also my wife has a history of drug use and the phone could show records that she is still looking for drugs. Also her ex-boyfriend is a gang member and she is in contact with him again. The phone records will show all this. So what do you see the outcome of getting these things subpoenaed and emails?

Expert:  Zoey_ JD replied 5 years ago.

It's not what I see. There is no doubt about the fact that if this material is relevant for purposes of litigation, you should be able to get it and eventually will. And all of this would appear to be important for purposes of, for example, determinations of custody. But in terms of how compliant the phone company will be and/or how long something like this can take, that's going to be variable and frankly your guess is as good as mine.
You would want to look at the website of the phone carrier to find out who in their company gets served as well as exactly what they require in order to suspend their privacy policy and turn over information.

Customer: replied 5 years ago.

So even if a phone company is subpoenaed they don't have to release the records?

Expert:  Zoey_ JD replied 5 years ago.

Sometimes they won't without a battle, which is why you'd want the judge to sign off on the subpoena, which lets the phone company know that the records are needed for litigation. If they don't comply, you could do what's called an order to show cause to force them to show up in court to explain to the judge why they shouldn't be held in contempt of court for their failure to turn over the records.
I don't want to make it seem like you're going to be guaranteed to have problems getting the phone records. I am simply letting you know that it's not necessarily as simple as "I'll just write up a subpoena, get it served, and that will take care of that."
Give yourself plenty of time to get the records and follow up with the person you served, if you don't hear in a reasonable time.

Customer: replied 5 years ago.

Ok. See I have an attorney, and he seems to tell me he can get this information. That he should be able to get a judge to sign off on this subpoena fairly easy. Why would you think he is waiting on filing and not doing it already? Just your personal professional opinion? Is there some sort of benefit for waiting? Cause my thought is that if they started getting these records now then they would have more information to use if the court date is still a couple of months away. Your thoughts please?

Expert:  Zoey_ JD replied 5 years ago.

If you have an attorney who says he can get them, he will have dealt with issues like this many times before and knows how to get what he needs.
I can only guess at why he wants to wait. All or none of these may apply. But there are many potential good reasons:

It may be that he doesn't think they are as necessary as you do in order for you to prevail; he may just get the judge order the other side to get them and turn them all over; he may already know that the trial won't really go in a couple of months but will take months longer still, so waiting ensures he'll get the most up-to-date records. The person who would best know the answer to this is your lawyer.

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