Our office has only recently begun having problems with cell phone companies refusing to provide detail cell phone records in response to a subpoena. Recent responses from providers - Verizon and Metro PCS - have claimed that because they do not keep the individual calls detailed in the normal course of business they are required to create records and are therefore entitled to a fee. The companies say they charge only for unlimited usage and therefore have no business purpose to keep a record of the individual calls.

Previously, when we would receive a bill from a company asking for payment for production of records, we would send them a letter with a copy of AG Opinion JC-0181, and deny payment. Now, the cell phone companies are demanding payment before production of the records.

Are others having this problem? We would like to subpoena a live person with a duces tecum instructing them to bring these records, but the record custodians appear to be out of state. Suggestions?

We have had good luck contacting the phone company and explaining to them that the opportunity to provide records to us in response is really a courtesy to them, but if they would rather haul their records down to the court and come give live testimony in response to the court's order (with or without peace officer escort), they should be our guest! Every single one of our responders has decided that it would probably be easier to send the records.

What about CCP 18.21 sec 9(a)? As this was enacted in 2005, doesn't it "trump" an AG's opinion issued in February, 2000?

CCP Art. 18.21. PEN REGISTERS AND TRAP AND TRACE DEVICES; ACCESS TO STORED COMMUNICATIONS; MOBILE TRACKING DEVICES.

Reimbursement of costs

Sec. 9. (a) Except as provided by Subsection (c) of this section, an authorized peace officer who obtains information under this article shall reimburse the person assembling or providing the information for all costs that are reasonably necessary and that have been directly incurred in searching for, assembling, reproducing, or otherwise providing the information. These costs include costs arising from necessary disruption of normal operations of an electronic communications service or remote computing service in which the information may be stored.


I've been seeing a lot more of the "pay before you get it" issues lately, as well. Not sure what can really be done about it; especially when the subpoena is directed at an organization out of state.

The cost provision in 18.21 applies to records sought under that article only. There is another thread on this I need to find. There is a federal statute that at least one circuit court has said applies to State DA's when they seek records that don't already exist, e.g. cell tower info. Did you request anything other than copies of bills? They already have call detail in bills, don't they. Mine show what numbers were called or called me, when, and how long. That wouldn't seem covered under the federal statute IIRC.

Here's an earlier thread that mentions a case: link

How are these cell phone companies going to create records of activity that occurred in the past? I would question them a little more about their record keeping. Sounds like they are trying to make a buck. If they have the ability to go back and create the records, they must be storing that info already somewhere.

It can be stored somewhere without being stored in a manner useful for your purposes.

Suppose for example the call data is not stored under a specific phone number but rather in activity logs from each tower within the network.

In this example creating a history for a specific number would mean searching the logs for each tower and then merging those data points with information from multiple out-of-network providers.

I'm not trying to justify this behavior on the part of the telecoms ... just saying that it could be a significant amount of work depending on the phone company's IT infrastructure.

If you put a duces tecum whats to stop them from appearing with a truckload of raw data and telling you to go ahead and knock yourself out.

But they have to store it under a phone number somehow because everything is charged by minutes.

Even the phone cards count minutes attributable to that card...so the company must keep them together for billing purposes--or for blocking when the minutes exceed the purchase.

More and more plans (like the one I have) are "unlimited" plans and there are no per minute charges. Thus, records of individual calls or numbers called may not be maintained for those accounts. The original post specifically addresses this issue - the cell phone companies are claiming that they charge only for unlimited calls, and thus do not maintian the records requested in the usual course of business. Imagine a request for the records of your office for all persons for whom the digits of their date of birth totaled 9. You probably have that information, just not in that form. To produce such a list, you would have to go through all the records, total the digits in the date of birth, and provide a response. The point is that just because you have information, it may not be kept in the form requested, so the provider may be entitled to a fee.