These days, text messaging is often at the forefront of communication between family members. Like e-mail, text messaging provides a quick and convenient avenue for non-verbal communication between parties. Text messaging can be especially valuable in contentious co-parenting situations where one or both of the parents may not feel comfortable speaking with the other parent. Depending on the type of cellular telephone or service options, text messages may also be sent to a party’s e-mail account in order to keep a written record of text messages that have been sent and received.
It is common in family law situations for clients to request text message records. The availability of text message content (obtainable pursuant to subpoena) varies depending on cellular service provider. For example, both Sprint and AT&T will answer subpoenas for text message records with information regarding the number of text messages sent from an account and will provide the telephone number the text messages were sent to. However, through conversations with Sprint and AT&T representatives, we have learned that each company has a different policy regarding the retention of text message content (whereas AT&T does not retain any text message content in a readily available format, Sprint will retain some content, but only for a very limited number of days after the text messages were sent). Additionally, representatives from both Sprint and AT&T mentioned that retrieval of text message content is typically reserved for law enforcement purposes due to extremely prohibitive cost associated with text message content retrieval. But remember, a party’s cellular telephone itself could possibly be subpoenaed for the text message content stored on it.
The bottom line is that while text messaging can be a highly effective and useful tool communication tool, remember that, like any other communication, text messaging can be overused or abused and is not a panacea for communication difficulties between family members or ex-spouses. Even though a cellular provider may not retain content in accessible form, a party may have already have sent the content of a text message to their e-mail account for future reference. One should assume that any electronic communication could be preserved somewhere. Even innocuous statements can be construed negatively by future readers without the proper context, so it is very important to carefully consider the content of any electronic communication that comes from your e-mail account, cellular telephone, or a social networking account such as Facebook. Use these wonderful communication tools, but use them wisely.