How to Stop a Subpoena to View Your Business Phone Records From Your Ex

A subpoena for business phone records from a spouse can usually be stopped.

A spouse in a divorce action does not usually have a legitimate reason to subpoena the business phone records of his or her spouse. Most likely they are attempting to obtain these records in the discovery process in order to prove the existence of an affair. However, every state today now recognizes no-fault divorce under their laws. As a result, it is no longer necessary to prove the existence of adultery in order to secure a divorce. Because an affair is not relevant to the divorce proceeding, a subpoena to view business records, without another legitimate reason can be quashed.

Instructions

1. Determine that there is no other legitimate reason for the subpoena. Discovery is broad in the legal forum but it is not unlimited. If your spouse can provide a legitimate and relevant reason for the subpoena, other than an attempt to prove an affair, the subpoena will likely be permitted. Fortunately, other legitimate financial or business reasons are not very likely in this context.

2. Retain separate legal counsel for the business. Separate legal counsel for the business, aside from your divorce attorney, helps strengthen the case that a fishing expedition into the confidential business phone records will serve no legitimate purpose in the divorce.

3. Have the business's legal counsel object, in writing, to the subpoena before the business phone records must be turned over or within 14 days of the issue date, whichever is earlier. After a proper objection is made, the subpoena may not be enforced unless the other party goes into court and is granted a motion to compel production. The business attorney should work to show that compliance with the subpoena will be costly for the company.

4. Ask the court to quash or modify the subpoena for one or more of the following mandatory reasons: It fails to allow a reasonable time to comply; it requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person; it requires disclosure of privileged or other protected matter, if no exception or waiver applies; or it subjects a person to undue burden.

5. Ask the court to quash or modify the subpoena for one of the following permissive reasons if it requires: disclosing a trade secret or other confidential research, development, or commercial information; disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial.

References

• Forty Years On, No-Fault Divorce Faces Scrutiny: RA Jaworski P.C. May 4, 2010.
• Cornell University Law Library Web Site: Federal Rules of Civil Procedure. Rule 45.