Phone companies can be compelled to release their customers' records with document subpoenas, called subpoenas duces tecum. Subpoenas are used during discovery, which is a process in lawsuits that allows parties to gather information from each other and from others to help their cases. Generally, a subpoena must be hand-served by someone who is 18 years or older and not a party to the lawsuit. State laws governing subpoenas vary.
The Information Sought
A subpoena generally must provide the names of the court and the case, the docket number, and the identities of the parties to the lawsuit. It also must specify the records you seek and set a deadline and location for delivery. For example, you are suing Sally for telephone harassment occurring in January, 2018. You need her phone records to prove your case. Your subpoena may state, "Provide Sally Smith's January, 2018 phone records by May 1, 2019 to 426 Oak Drive, Plymouth, MI 48170."
The Power to Subpoena
Courts typically issue subpoenas if you don't have a lawyer. For example, you might be representing yourself in small claims court. If you need your opponent's phone records for your case, the court clerk can provide you with a blank subpoena form to fill out. She can sign it upon completion so you can obtain the necessary records. Attorneys can sign subpoenas without court approval. If you're represented by a lawyer, he can subpoena phone records for your case.
Read More: How to Object to a Service of a Subpoena
Relevance of the Documents
You cannot use a subpoena to harass a party or gather information that's not relevant or necessary to your lawsuit. If your co-worker sues you for using his cell phone for international calls without his permission, you can subpoena his phone bills to help prepare your defense. But you can't subpoena his sister's phone records because she's not part of the case and her records are not relevant to your defense. You must have an existing lawsuit first before you can issue a subpoena.
If your subpoena doesn't get results, you can file a motion to compel. If the court grants your motion, it will order the phone company to explain why it hasn't complied with the subpoena. A judge may grant the company another chance to comply, especially if there was good cause for noncompliance, such as that they did not receive the subpoena in time. But courts also can impose stiff penalties when a party simply refuses to honor a subpoena. A judge can order the phone company to pay attorney's fees and costs, and can even order jail terms to noncomplying parties for contempt of court.
- Leonard M. Roth: Information Regarding Your Written Discovery Responses:
- Legal Information Institute: Rule 45 Subpoena
- Virginia's Judicial System: Small Claims Court Procedures
- Resolving Discovery Disputes: It Is Too Relevant!
- Michigan Courts: One Court of Justice: Contempt of Court Benchbook: Fourth Edition
Maggie Lourdes is a full-time attorney in southeast Michigan. She teaches law at Cleary University in Ann Arbor and online for National University in San Diego. Her writing has been featured in "Realtor Magazine," the N.Y. State Bar's "Health Law Journal," "Oakland County Legal News," "Michigan Probate & Estate Planning Journal," "Eye Spy Magazine" and "Surplus Today" magazine.