Phone records can be a crucial piece of evidence in a variety of types of litigation. A party may need to subpoena phone records in order to get an official copy. A party may also need to subpoena phone records if the provider is unwilling to release records absent a court order. The legal process used to subpoena phone records is to issue a subpoena duces tecum, often referred to as a third-party or non-party subpoena, to the provider of the phone service.
Phone records may be needed in a civil or criminal legal case. In a criminal case, phone records could substantiate an alibi for a defendant or prove a pre-existing relationship between a victim and a suspect for the prosecution. In a civil case, phone records may help establish that a conversation regarding terms of a contract, for instance, actually took place.
In order to subpoena phone records, the first step is to determine who is the custodian of the records. While this may seem easy, in some cases where the provider is a large company, it may be necessary to determine exactly who the subpoena must be addressed to and at what address. Large companies generally have a particular person or section designated for the receipt of subpoenas or other legal documents.
A subpoena must then be prepared. In some jurisdictions, an attorney may subpoena phone records without prior court approval, while, in others, the subpoena must be prepared and filed with the court for the judge's approval prior to issuance. The subpoena must be as specific as possible, as the recipient of the subpoena is not legally required to produce anything not listed in the subpoena. Common information found in a subpoena for phone records includes the name of the subscriber or customer and account number, telephone number, and the dates that are covered under the subpoena.
Once the subpoena has been prepared and approved, if required, the subpoena is then sent to the appropriate person or section at the phone company. A subpoena is a court order, meaning that the recipient is under a legal obligation to produce the records listed in the subpoena absent a valid reason not to. If the recipient of the subpoena feels that he or she has a valid objection to the order to produce the records, such as a confidentiality issue, then an objection must be filed with the court. Likewise, if the recipient is unable to comply with the subpoena because the records have been lost, stolen, or destroyed, or were never in the recipient's custody, then the recipient must inform the court.