need a answer pleeeeze!

[cbinva]

What is the name of your state? Va.
My wife and i are in separation and she is still denying the affair that brought us here.My cell phone co. tells me that i have to have a subpeona for my text manifest and contents.Do i have to get a lawyer to do this?can i do it without her knowing?i want to fix my marriage but i cant go on without knowing for sure the nature of their relationship.The cell phone is in my name but i have to read the 100 or so txt messages that they sent to each other befor i can begin to forgive and repair please help me.

 

[seniorjudge]

With very few exceptions (for investigative subpoenas--done in criminal cases by prosecutors), the GENERAL rule in civil cases is that a lawsuit must be filed before anyone can get a subpoena.

 

[Zephyr]

if the cell phone is in your name you should be able to get the log without a subpoena- I got mine (from sprint) when I was getting numerous harrassing calls and messages....cost me 70 bucks, but it was worth it

 

[cbinva]

thanks

I need the actual txt messages to be able to know 4 sure.The fact that her phone does not have a sim card is really making this difficult any mor advice?cb

 

[nextwife]

Again, if it's YOUR phone, and retrieving the messages is technically possible, YOU can request copies of those records. Even if you must pay a fee. If she's "borrowing" your phone (in your name, paid by you), you can request the records of your own phone.

 

[JerryNH]

If your wife was using a cell phone to send text messages, she might well have also used a computer to send email and instant messaging. You can find a treasure trove of stuff on a computer whether it's been deleted or not.

 

[tuffbrk]

Tread carefully! OP should check his state's statutes on reading someone else's Email - especially if it's password protected.

 

[JerryNH]

Tread carefully! OP should check his state's statutes on reading someone else's Email - especially if it's password protected.

Certainly one should never invade someone else's privacy, but the OP should be consulting an attorney anyway. He can certainly request such Electronically Stored Information as part of discovery. He has a right to this information, in fact.

 

[Ohiogal]

Certainly one should never invade someone else's privacy, but the OP should be consulting an attorney anyway. He can certainly request such Electronically Stored Information as part of discovery. He has a right to this information, in fact.

How do you figure he has a RIGHT to this information? What rule/law are you basing your answer upon?

 

[JerryNH]

I base my statement on the Federal Rules of Civil Procedure as well as court precedent.

Rule 26. General Provisions Governing Discovery; Duty of Disclosure
(a) Required Disclosures; Methods to Discover Additional Matter.
(1) Initial Disclosures.

Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:

(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information;

(B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;

Rule 26 (a)(5)(b)(1) says:
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

The Fourth Amendment notwithstanding, the courts have allowed discovery where it is not prohibited by certain restrictions. For example, if a corporation makes it known that ESI on the corporate network is not private, the courts have allowed admissability of evidence recovered. See American Postal Workers Union, Columbus Area Local AFL-CIO v. United States Postal Serv., 871 F.2d 556, 59-61 (6th Cir. 1989). Also United States v. Bunkers, 521 F.2d 1217, 1219-1221 (9th Cir. 1975), etc, etc.

 

[Ohiogal]

The Federal Rules of Civil Procedure govern FEDERAL courts. Not state courts. There you would have to turn to the State Rules of Civil Procedure.

 

[JerryNH]

VA Rule 4:9 (c)(1:12) addresses the same issue. Ohio's Title V, Rule 26 (b)(1) says the same thing, in essence, as the Federal rules, albeit without expressly mentioning ESI. But I betcha ESI is admissible in Ohio.

In fact, I suspect that if you check the Rules of all states, they all have some definition of Discovery which would validate ESI.

There are numerous online references to state rules. Here is a good one: http://www.depo.com/discovery_rules.htm