Pretty Much Anything Can Be Subpoenaed
Video Transcribed:
Can Oklahoma courts subpoena phone records? I’m Tulsa attorney James Wirth, and that’s the question that I’m being asked today, is an Oklahoma court subpoena phone records and the answer is yes. The general rule is pretty much anything can be subpoenaed.
The recipient of the subpoena could come up with a defense to that. Maybe that there’s a privilege or something else that makes it exempt. But as a general rule, pretty much anything can be subpoenaed. So it comes down to a practical matter of doing the subpoenaing.
And the question says, can the court do it? It should be noted that for civil matters lawyers, as officers of the court, actually issue their own subpoenas. So if you have an attorney in the case, the attorney can ask you to issue their own subpoena. If it is pro se, you don’t have an attorney in the case, then you go to the court clerk and the court clerk, you can have them issue blank subpoenas and then you fill them in depending on what you want to be subpoenaed from whom.
In criminal cases, defendants can do subpoenas through their attorney, or if the pro se can similarly get records or subpoenas blank from the court clerk and then send those out. Attorneys in criminal cases do not actually get to issue their own subpoenas for some reason. It’s different in civil court as opposed to criminal court so the attorneys also would go to the court clerk to get a subpoena and then they send those out.
As far as subpoenaing phone records and other things, generally, service needs to be accomplished either in person, anybody over the age of 18 can service subpoena. Whereas service of process has to be a process server to do it or a Sheriff’s deputy to do it, but anybody can serve a subpoena as long as they’re 18 or over in the state of Oklahoma. So you do that in person that way or you do it through the mail.
However, practically speaking, when we’re talking about getting phone records, generally the different phone companies, have a legal office and they have a fax number where you can just fax over subpoenas. They’ll review it and fax back the results. If it doesn’t work that way, you can’t really prove that it’s a good subpoena because that’s not technically proper service of it, so you might actually have to get it served by certified mail to the appropriately registered agent for that entity.
The other issue that we run into a lot on subpoenaing phone records is those records don’t always exist. As far as billing records that have some information on them, those are generally held by the company for long periods of time, so you can subpoena those because they still have a record of them.
But most of the time when we’re subpoenaing phone records, we’re looking for text messages, things like that and the phone companies don’t hold onto those for as long as you might like or expect. They keep it from some specified period of time and then they are destroyed or overwritten.
Each company has its own rules on how to handle that so if you’re looking at getting text messages, one, if you want to subpoena and you want to do those quickly, and you might send out a preservation letter requesting that they preserve those text messages along with your subpoena, just so they don’t get deleted subsequently.
Another thing is sometimes for text messages, the best way to get it is off of the phones in question. There’s computer forensics that can be done to download all of that information. Sometimes that’s better for authentication purposes if you have access to one of the parties that sent or received it, they can authenticate those messages.
Because when you’re just getting the documentation from the phone company, there could be objections related to authentication and hearsay and there are generally ways around that, but it’s something that you want to be aware of.
That’s a long response to the question of can courts subpoena phone records. The short answer of course is yes. If you’ve got questions about evidence, subpoenas, or how any of this may apply to your specific case, you don’t want to take this general information. You’re going to want a conversation privately with a lawyer. If you want to get that scheduled, you can go to makelaweasy.com.
