Preserving Evidence When It's On the Phone

In a custody or divorce file, the most important record is often a text conversation, and it usually reaches the office in the worst possible form: a phone slid across the desk, or two hundred screenshots in an email. The phone cannot stay with you. The screenshots are out of order, cropped and frequently undated, and someone on your staff will spend hours sorting them.

Most of that work can be avoided with three requests made at the right time. None of them needs special software, and all of them are things the client does, not the firm.

At intake: stop the losses

Before anyone collects anything, make sure nothing more disappears. Three questions cover most of it.

Is the phone set to delete old messages? iPhones have a “Keep Messages” setting that can be set to 30 days or one year, and older texts are removed automatically when it is. Ask the client to open the Messages settings on the phone and set it to “Forever” while they are sitting with you.

Was any of it on Snapchat? By Snapchat's own published schedule, most chats are deleted 24 hours after everyone has viewed them, and unopened ones after 31 days, unless a message was saved in the chat. If Snapchat matters, the client should save what is still there today.

Has the client been tidying up? People delete messages they find embarrassing or think are irrelevant. Ask them to stop deleting, editing or “cleaning up” anything, on any app, and to keep the conversation on the phone even after they send you a copy.

In the first week: ask for the export

Nearly every messaging app can produce the whole conversation as one file, with each message's sender, date and time. That is an export, and it is what to ask for in place of screenshots. A sentence for the intake letter: “Please do not screenshot your messages. Export the full conversation from the app and send us the file exactly as you receive it.”

What that means depends on where the conversation lives:

• WhatsApp: open the chat, choose Export chat and pick “Without media.” The client gets a text file, inside a zip on an iPhone.
• Android texts: the free app SMS Backup & Restore makes one file with every text on the phone. It is large, often hundreds of megabytes, because photos sent by text are stored inside it, and it covers every contact, not just the one you need.
• iPhone texts: there is no export button. The full record is a database file called chat.db, found on a Mac that syncs the client's messages, or inside a backup of the phone made to a computer. This is the slow one, so ask first.
• Facebook Messenger and Instagram: the client requests “Download your information,” ticks Messages, and Meta emails a link. A big download comes as several zip files, and recent end-to-end encrypted Messenger chats come from a separate download in Messenger's privacy settings.
• Coparenting apps: OurFamilyWizard message reports can only be made on its website, not in the phone app. TalkingParents issues a PDF record and will not produce one until the parent has opened every new message.

When the file arrives, save it exactly as received and work only from a copy. A text file can be edited by anyone; the untouched original is what you point to if that is ever suggested.

Before you rely on a date: check how it was written

Exports are precise, but two details catch people.

WhatsApp writes dates in the regional format of the phone that made the export. A phone set to the United States puts the month first; most of the world puts the day first. So 03/04/24 can be March 4 or April 3, and nothing on the line says which. Find a date in the file where one of the first two numbers is above 12. That settles the order for the whole file.

Clock times depend on time zone. A Telegram export, for instance, records each message in the local time of the computer that made the export as well as in a universal timestamp, so two exports of the same chat made in different cities show different times. When the hour matters, note which zone you are quoting.

Before a hearing: refresh, and do not count on the carrier

A report from a coparenting app is a snapshot of the day it was made. Have the client download a fresh one close to the hearing so the record is current.

Clients often believe the phone company can supply whatever is missing. Generally, it cannot. The most specific public figures are from a 2010 U.S. Department of Justice chart of carrier retention periods: Verizon kept the content of texts for three to five days, and AT&T and T-Mobile did not keep it at all. Carriers do keep records of which number texted which, and when, for longer, and the federal Stored Communications Act limits what a provider may disclose in response to an ordinary civil subpoena. The realistic source for the words is the phone, or the other party.

If screenshots are all there is: Sometimes the phone is gone, and screenshots are the only record. Ask for them full screen and uncropped, in order, each overlapping the last by a message or two, with the date lines between days left visible. They can then be put in sequence, and gaps are easy to see.