These days everyone literally lives on and through their smartphones. We take them everywhere, and we are constantly on them checking email, texting, calling, social media, etc. Whether you realize it or not, your cell phone is tracking almost everything you do all day long and storing that information as data.
Anyone who watches reality crime shows on TV knows that cell phone records have become critically important as evidence in criminal proceedings. But cell phone data has also become pivotal in criminal cases, civil lawsuits, auto accidents, and personal injury cases. Cell phone providers maintain logs of all user actions, primarily for billing purposes. Every call, text message, and internet activity is timestamped.
In this post, we will explain how you can go about getting cell phone records by subpoena (and other means) and how to use these records to your advantage in a civil lawsuit.
Obtaining Cell Phone Records by Subpoena
The primary method of obtaining cell phone records is by subpoena. The subpoena is issued to the cell phone company or wireless carrier (e.g., Verizon Wireless, AT&T, etc.) requesting all available cellular use records and data for a specific wireless customer or phone number. The cellular carrier usually has a compliance department that reviews the subpoena to verify it meets certain requirements. Once compliance is passed, the cell phone company will generate the requested records and produce them in response to the subpoena.
What is a Subpoena?
A subpoena is a legal order directing someone to produce or bring documents or other physical evidence or directing someone to physically appear to testify in court. The subpoena has the effect of a compulsory court order so that if the person served with the subpoena does not comply, they may be subject to judicial penalties.
How Do You Get a Subpoena?
In order to get a subpoena and serve it on someone, you need to be a party in a pending civil court case and the subpoena must be related to that case. If you do not have an active court case you cannot get or serve a subpoena. If you are represented, your attorney will have pre-stamped subpoena forms and can issue the subpoena for you. You must get a stamped subpoena form from the court clerk’s office if you do not have a lawyer.
What Information Do You Need to Include in the Subpoena?
Any subpoena for phone records will need to include some fairly basic and straightforward information. For starters, you will need to identify the account holder’s cell phone number and name for that particular cell phone number. You will also need to provide a detailed description of exactly what records you are requesting.
Be sure to include some sort of limited time frame parameters in your request because if the request is too broad, the cell phone company might object. For example, don’t just request “all cell phone records for Jane Smith.” That is just too broad, and if Jane has been with the cell phone carrier for a long time, that type of open-ended request could involve years’ worth of records that probably have no relevance to the case. A better approach is to put a reasonable time frame in your request, such as cell phone records for the last two years.
How Much Does It Cost to Subpoena Phone Records?
The expense of obtaining phone records through a subpoena varies. That sounds like a lawyered up answer. But it is true. Telecom providers usually have varying charges, a per request charge and additional costs for each phone record they provide. Some states limit the amount of the charges. So the cost can range from less than $100 to thousands of dollars.
Serving the Subpoena
A subpoena for cell phone records must be formally served on the cell phone company by the rules of service in your state. Service requirements vary by jurisdiction, but they usually require that the subpoena be hand delivered or sent by certified mail. Hand delivery of the subpoena can be done through the sheriff or a private process server.
The tricky part is finding who and where to serve the subpoena for the phone company. You can’t just send it by certified mail to the address on the phone company website. All big corporations have registered agents in each state who are appointed to accept service of legal documents on behalf of the company. You will need to find out who the registered agent is for the phone company in your state and then serve the subpoena on that agent.
Most cellular carriers may have a separate compliance office set up expressly to handle legal requests for cell phone records. You can usually speed up the response time by sending your subpoena directly to the compliance office for the carrier. You will still need to serve the subpoena on the registered agent, even if you also send a copy to the compliance office.
How Long Does it Take for the Cell Phone Company to Respond?
Don’t expect a quick response when you subpoena cell phone records. Each carrier is different, but they all take a long time when responding to subpoenas. The average response time can be anywhere from 6 weeks to several months. The best way to ensure a quick response is to make that you follow all of the proper steps and procedures. This includes the court rules for proper service of a subpoena and any internal guidelines or policies that the cellular carrier might have for subpoenas.
Also, the cellular company is entitled to charge a reasonable fee for producing the phone records in response to your subpoena. These fees are usually not very much, but you must pay the fee before the phone company produces the requested records.
The decision to issue a subpoena usually hinges on the specifics of a case. Of course, it’s advisable to issue a subpoena as early as possible for two main reasons. As we already said, obtaining certain records might be time-consuming based on the nature of the information required. Secondly, you just do not know how long the company is retaining the data. So you want to get it before it is deleted.
What Information Can You Get from Cell Phone Records?
When you subpoena cell phone records, you can only get a detailed record of texts and calls. You can get a list of incoming and outgoing text messages and the date and time they were sent or received. The records will show the phone number that the text message was sent to or from and indicate whether a picture or media file was attached to the text. You can get the same information for phone calls (e.g., time, date, and length of incoming and outgoing calls).
The phone records you get in response to your subpoena will not give you the content of actual text message conversations. You can only see the time, date, and direction. It is possible to obtain the content of text messages, but it usually requires a court order rather than a subpoena. It can also be costly to get these types of detailed records.
It is possible to get location data from cell phone records. When your phone is the one it will regularly ping off the nearest cell phone communication tower, and the cellular carrier tracks this information which can be used to identify where the phone is at a given time and date. If you want to get location information, you must specify that in the description of the mobile phone records in your subpoena. You will also need to be prepared to pay for this, which can be pretty expensive.
How to Use Cell Phone Records in Personal Injury Cases
If you properly subpoena cell phone records in a personal injury case, they will usually be admissible as evidence in court. This means you can introduce the cell phone records as evidence at trial or in connection with a summary judgment. Cell phone records can be used to prove or refute various facts in a personal injury lawsuit. Exactly how you use cell phone records in a civil lawsuit depends on the factual circumstances of each individual case.
Using Cell Phone Records to Prove Texting and Driving
One of the most common and most powerful ways that cell phone records are used in personal injury lawsuits is to prove per se negligent in an auto accident case. Texting and driving is against the law in all states. If you are involved in an accident, and you can prove that the other driver was texting at the time of the accident, you may be able to establish that he or she was legally responsible for the accident.
Example Cell Phone Record Subpoena Language
SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS
To: Verizon Wireless 1320 North Courthouse Road Arlington, VA 22201
You are hereby commanded to produce and permit inspection and copying of the following documents and things located at your place of business or under your control and to bring them to the office of Miller & Zois, located at One South Street in Baltimore, Maryland on August 16, 2023, at 8:00 a.m:
- All business records and billing records relating to the telephone number assigned to Jane Doe from March 1, 2023, to March 31, 2023.
- Any records identifying any calls made to or from the above-referenced telephone number during the above-referenced period, including, but not limited to, call detail records, call logs, and telephone bills.
- Any records identifying any text messages sent to or from the above-referenced telephone number during the above-referenced period, including, but not limited to, text message logs and text message content.
- Any records identifying any internet activity performed on the above-referenced telephone number during the above-referenced period, including, but not limited to, internet usage logs, internet search history, and internet browsing history.
Please provide the requested documents and things in their original format and in a reasonably usable format, such as a printout or electronic copy.
This subpoena is issued under the authority of Maryland. You must comply with this subpoena and produce the requested documents and things on the date and at the time specified above.
If you fail to comply with this subpoena, you may be held in contempt of court and subjected to sanctions, fines, or imprisonment.
Date: August 16, 2023
Cell Phone Appellate Opinions
- Davis v. Disability Rights New Jersey (New Jersey 2023): The New Jersey Appellate Division found that a former employee’s private social media accounts and personal cell phone records are relevant in a wrongful termination case especially when the employee alleges severe emotional distress from the termination. The case underscores the limited privacy scope of personal digital data in litigation.
- Edwards v. Jabar (Arkansas 2023): In a car accident case, the plaintiff provided multiple incorrect phone numbers and carriers to the defendants, leading to extended delays and additional legal motions. The defendants argued this was intentional withholding, while plaintiff contended it was a genuine mistake. The Arkansas federal court judge found that plaintiff knowingly failed to provide the required information within the stipulated timeline, causing the defendants unnecessary legal expenses. As a sanction, the court ordered Edwards to compensate the defendants for their related attorney’s fees and costs, though stopped short of imposing a spoliation inference at trial regarding the cell phone records.
- Ortiz v. Amazon (California 2018): In an employment dispute where the plaintiff accused his former employers of underpayment and denying him adequate breaks, the court ruled the plaintiff did not have control over his cell phone records since they were under his wife’s name. But the plaintiff’s delayed communication and refusal to provide details about the account led the federal court to order him to give his wife’s details for a subpoena.