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Litigation Support – White Collar Fraud Investigation – Corporate Fraud Investigation

I’ve written many times about public misconceptions of our industry, including that some folks think all private investigators do surveillance, mostly on cheating spouses. They imagine us in the bushes with binoculars, spying on people.

The other thing we supposedly do all the time is find bank accounts all over the world and dutifully report this information to our clients, no questions asked.

I don’t do surveillance work. I did, quite some time ago, but it’s just not my thing.

For very different reasons, I never have—and never will—perform any kind of bank searches. I’ve written, spoken, and posted about shady operators out there who are willing to get this information. And I’ve stated repeatedly that I won’t do bank searches of any kind.

That hasn’t stopped people from asking me to, though. Every few weeks, I get an inquiry—sometimes from attorneys, fellow private investigators, or some Jane off the street who just needs Joe’s account information because he owes her money.

Legally, of course, there are ways to obtain banking information, including through permission from the account holder or through a legal authority, like a court order, subpoena, or search warrant. There is also the off chance that banking information may appear in some publicly available filing, such as a court filing, UCC filing, or the like, but it’s a rare case. Even so, the pieces of information that are accessible through permissions or public filings are generally not what people are looking for when they ask about bank searches. They are looking for the “wink, wink” bank searches where you just show them where all the money is.

I constantly see inquiries on private investigator message boards about how to get bank records and information about investment accounts. Recently, I came across a price list for an investigator offering personal or business bank account searches—for about $1,000 each.

Of course, I see the appeal in offering this service, but I just won’t do it. My answer to anyone who inquires usually goes something like this:

No.

There is no legal way to obtain banking information without permission from the account holder or legal authority.

None.

I don’t do bank searches. I know quite a few firms out there do it, but I don’t.

And I won’t do it.

Ever.

Let us start with the most obvious reason.

The Laws

Banks can only disclose information with proper legal authority.

The laws are pretty straightforward: There is no legal way to get bank records without proper legal authority.

The Right to Financial Privacy Act prohibits financial institutions from disclosing bank records or account information about individual customers to governmental agencies without: 1) the customer’s consent, 2) a court order, 3) a subpoena, 4) a search warrant, or 5) some type of other formal demand, with limited exceptions.

The Financial Services Modernization Act of 1999, commonly called the Gramm-Leach-Bliley Act, made it illegal to obtain bank information under false pretenses.

Why, do you ask, was this enacted? Because “investigators” were calling banks, pretending to be the person with the account, and obtaining financial information.

Within these laws, there are some limited exceptions. For example, GLBA allows bank searches for “State-licensed private investigators acting under court authorization to collect child support from a person adjudged delinquent.” But 99.99999% of people looking for bank records aren’t collecting child support. They are looking for some other reason.

Frankly, it’s easier and safer to just say no to all bank searches instead of playing a game of Twister to stay within the very limited permissions and exceptions. Or to describe that one time, when I was looking for a needle in a stack of needles and found a copy of bank statements in a legal filing. There just aren’t enough of the legal kind to make it worth my while. Why risk it?

There you go. That seems pretty cut-and-dried to me.

Frankly, this article should end here.

But if you want to hear more about why I keep saying no, here you go:

Ethics

My privacy standards are non-negotiable.

Close your eyes for a moment and imagine a world where anyone can find out how much money you have in your accounts.

That. Is. Frightening.

And it’s a scammer’s dream scenario.

It also horrifies me that some investigators put GPS trackers on vehicles instead of following them the old-fashioned way. That gets me pretty fired up, too. (Generally, GPS trackers can be legally placed on a vehicle you own, but not on anyone else’s.)

Nevertheless, a Nevada private investigator, for some reason, thought it was a good idea to put a tracker on the Reno mayor’s vehicle. He claimed it was “nothing personal,” but he’s still getting sued.

When a thing like this happens (and it happens pretty frequently), all I can think about is this: What if some creep put a GPS tracker on my teenage daughter’s car? I don’t care what the stated reason might be. In my eyes, it’s an outrageous invasion of privacy.

It’s stalking.

Period.

I get that some people may think traditional surveillance methods are also an outrageous invasion of privacy. Personally, I think there’s a big distinction here. In traditional surveillance, you’re observing someone from public spaces and finding out what they’re up to by following them—from a safe distance, using your own guts, skills, and simple tech like a camera with a long lens. But when you plant a spyware device on a car, there’s no skill and no distance; that device can follow people onto private property—24/7—and you can observe their movements the lazy way, by watching a screen in the comfort of your own creepy “batcave.”

The law defines the limits of legal surveillance by what places people can reasonably expect privacy—such as inside their homes or behind a high fence. If you’ve got to fly a drone or climb over a fence to go onto private property, you can’t legally get the shot. To my mind (and according to the laws in many states), GPS trackers violate that expectation of privacy in a similar vein.

And so do bank searches.

My privacy standards are non-negotiable.

Don’t you expect your banking information to be kept private?

But what if you, the investigator, have some really good reasons to use the GPS tracker … or access the bank account information? You’re the good guys. This is a tool you need, in order to defeat the bad guys on the other side.

When I ask prospective clients why they want me to fetch them some financial data, I get responses like: “We’re trying to find out where this creep is hiding his money, which he’s refusing to pay to his ex-wife and kids.”

I call those kinds of ethics “situational,” where the end supposedly justifies the unethical or illegal means.

I don’t subscribe to that. I have a set of legal, ethical, and moral standards, and I stick to them.

Doesn’t matter the situation.

Transparency

I don’t trust “secret sources.”

Every single person whom I have ever had the pleasure of speaking with about bank searches, and every single piece of written material I have ever seen about bank searches, have a few things in common: “We can’t reveal our source(s),” “it’s proprietary data,” and “it’s GLBA and FCRA compliant.”

They usually throw “trade secret” somewhere in there.

You might be saying to yourself, “Brian, give me a break. They’re not going to tell you how they do it!”

Maybe not. But if you can’t tell me how it’s done, and I can’t explain it to my client, I won’t touch it.

Period.

I won’t stick my head in the sand and just pretend it’s above board if I don’t know for sure.

You can. I won’t.

I can just imagine myself in front of a jury, trying to explain how I came across the bank account information that’s been submitted as evidence at trial: “I don’t know where it came from. I paid some guy to get it for me.”

How do you think that would go over in court?

But if you can’t tell me how it’s done, and I can’t explain it to my client, I won’t touch it.

It’s like paying someone for the contents of someone’s email inbox. The only way to get that data is through hacking, phishing, or some other illegal means.

Here’s the thing: Secret sources have a massive reliability problem. Is this “secret source” doing something illegal to obtain the information? Is the data fabricated? And if I have to testify about this, how’s that going to look to the judge and/or the jury?

The biggest problem is that what most PIs call “trade secrets” tend to be a thin cover for illegal activity. Just ask Anthony Pellicano. He was known as the private investigator to the stars, who could get information that nobody else could find, via means that were a Pellicano trade secret. “I don’t care how you get information,” one Pellicano attorney-client said. And then it was discovered that he was wiretapping phones, threatening witnesses, and paying off police officers for confidential information.

Pellicano served jail time.

And so did some of his clients.

Suddenly, people cared how he got the information. They cared from behind bars.

Unreliability

I wouldn’t bank on the results of these searches.

The results of these bank searches are extraordinarily inconsistent. These firms know it and set expectations low: Nearly every firm I’ve seen pitching these services has claimed that they are not 100% reliable.

This arouses a deep suspicion in me …

I admit that my suspicion is mainly anecdotal, based on stories told to me by investigators I know who have used the most notable firms in this space. In one case it was a personal matter—they were trying to find accounts for a family member. In the other case, the investigators used it for work relating to divorce and other legal matters.

For both investigators, the bank searches came up empty.

Like, zero.

No bank accounts in the entire United States.

In the case of the family member, it turns out there were two known accounts, NOT hidden behind six shell companies, that the bank account investigator simply didn’t find.

Seems like it should have been a pretty easy case—on the scale of breaking into your kid’s piggy bank versus breaching Fort Knox.

I’ve gotten my hands on how one firm does it: They use what they’re calling “proprietary software” that’s based on “algorithms” and data from “third-party providers,” which analyze the transactions and verify data. This firm claims that everyone who has written a check or transferred funds would be in the SWIFT payment system.

So if this is some legit technique, authenticated through the SWIFT system, what accounts for the big, whopping misfires my colleagues have told me about?

I am not willing to put my reputation on the line for some fly-by-night firm …

How is this “proprietary software” so unreliable?

I’m thinking of those claw machine games at seedy carnivals: The toys in the box are right there, enticing you, easily within reach. Nobody truly understands how the claw works, but you deploy it all the same. Occasionally, it fetches a treasure. Sometimes it snags some trash.

But usually, the damn thing comes up empty. 

Reputation

I’m not willing to put my professional standing at stake for an unreliable (and probably unethical) service.

Sometimes the unreliability problem leads to a false negative—a failure to locate existing accounts, say. Other times, a bank search error can actively endanger a case—and my professional reputation.

Let’s just say I happen to hire a bank search firm and pass on those results to my client.

I have no control over what the bank search firm does; I am just trying to help my client. Right?

Except that when I get the results back, it turns out that the firm I hired provided me with bank account information that didn’t actually exist.

That’s embarrassing, but it’s not your fault, of course, because it was the firm that you hired that messed up, not you. So you are not liable.

Or are you?

Does this seem far-fetched? Because this exact thing has happened on at least two occasions that I’m aware of.

In 2009, a Virginia investigator hired a California investigator to obtain information about foreign bank accounts. Despite the investigator finding two purported bank accounts in Puerto Rico, when the client ultimately tried to collect from those two bank accounts, the banks revealed that the accounts did not exist; the investigators fabricated the account information solely to turn a profit. Both the Virginia and California investigator were sued.

I don’t trust “secret sources.”

In or around 2020, a Tennessee investigator was hired to search bank accounts for a husband and wife. The Tennessee investigator hired a Texas investigator who, in turn, found over a million dollars in several overseas bank accounts in Luxembourg, Switzerland, South Africa, and other countries. The problem was this: The accounts did not exist, and litigation ensued against both the Tennessee firm and the Texas firm for providing false information.

That’s more than just embarrassing; it ties your agency to a fraud case and may get you embroiled in litigation. And this is never, ever a good marketing plan for an investigative firm.

Oh, and despite laws against doing so, there have been other private investigators charged with pretexting a bank, trying to ascertain bank information under false pretenses.

Imagine prospective high-profile clients Googling you. What do you want them to find?

In this business, reputation is everything. And I am not willing to put my reputation on the line for some fly-by-night firm …

The One Real Reason

In short, there’s really only one real reason you shouldn’t be doing bank searches: They are not legal, except in the tiny fraction of cases when they are. Sure, there may be some ethical grey areas where you might be able to ascertain some unreliable bank information, but why risk everything for those? And just in case you still need some convincing, I gave you four more reasons.

If those don’t tip the scales, I don’t know what will.

I don’t need to cheat.

But you know what? Just for good measure, I’ll throw in a bonus reason here at the end:

I don’t NEED to do bank searches.

I do very well working my cases the old-fashioned way, using my guts, skills, and simple tech—usually, a laptop and an arsenal of non-secret OSINT  tools that are legal, ethical, and transparent. To me, shady shortcuts like GPS trackers and “secret source” bank searches are cheating.

I don’t need to cheat.

I’m better than that.

And, I’ll wager, so are you.

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Thanks to a recommendation from Hal Humphreys at PI Education, I got a chance to listen to the Bone Valley podcast a few weeks ago while I was driving through Arizona.

It’s nine episodes (nine-plus hours) of pure entertainment that fit perfectly into my weeklong saunter from Phoenix to Sedona to the Grand Canyon and back to Phoenix. Although the atmospheric river dumping on the West Coast put a bit of a damper on things, it was still a great trip.

As for the podcast, the only time I get to listen to one is on these long trips. My commute to work is less than a mile, and sitting around my house listening to a podcast just doesn’t suit me. And working while listening never seems to work for my brain.

The podcast is hosted by Gilbert King, a Pulitzer-winning author, who was tipped off by a Florida sitting judge about Leo Schofield, a man convicted of murdering his wife in 1987. Schofield, who was 21 years old at the time of the murder, has been serving a life sentence even though another man has confessed to the murder. It’s a chilling story about a murder and a miscarriage of justice.

It’s probably the best true crime podcast I have ever listened to.

I know a lot of my colleagues in the business might have some more interesting takes on the criminal defense angle here, but as someone who doesn’t focus on that kind of work, here are a few of my takeaways from the Bone Valley podcast.

Good investigations take time and resources

King and his assistant spent nearly four years on the research and inquiries needed to wrap up their investigation. Think about the number of man hours and amount of resources and money needed to get to the bottom of this. For argument’s sake, let’s just say that King and his assistant each spent 1,500 hours a year on this for four years (12,000 hours total). Even if you don’t include any of their expenses, at a modest hourly rate, you are talking about over $1 million to get to the bottom of one case.

I understand that someone’s life is at stake here, and turning over a criminal conviction is no walk in the park, but it’s a healthy reminder that investigations take time and resources. Investigations are messy and don’t often neatly wrap up in one hour, despite what Jessica Fletcher and Frank Columbo would have us believe.

People don’t like to be wrong

This may seem pretty obvious, but nobody likes to be wrong. And admitting to being wrong is even more complicated. There seems to be a lack of admitting to anything wrong in police work regarding wrongful conviction cases. You often find police officers who go to their graves believing they were right about their work, despite any new evidence, science or confession that may contradict them.

I empathize with the officers. Nobody likes admitting to being wrong.

But getting it right — and not just “being” right — should always be the goal here.

Despite the effect it might have on one’s ego.

There are good facts and bad facts

In criminal defense, there is a saying that there are good facts and bad facts. For example, if you were accused of murdering someone, the fact that your cell phone location was in the same area as the body is a bad fact, but someone else’s DNA (and not yours) being at the scene is a good fact.

King does an excellent job of presenting all of the good and bad facts in defense of Leo—the bad facts being that he was abusive to his wife, a bizarre premonition had by Leo’s father and some interesting eyewitness testimony.

The good facts included the unknown fingerprints, the lack of a murder weapon and a timeline that didn’t add up.  

You’ve got to deal with all of the facts, good and bad.

Ignoring the facts doesn’t change them.

So, those are a few of my takeaways. What did you think of Bone Valley?

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Spoiler alert: It’s our brain.

Last year, we were contacted by an attorney who needed to serve some legal papers to someone who had just gone into a nursing home. The law firm had attempted to reach the person at their residence, but the wife told the process server that the man had recently gone into a nursing home, and she refused to provide a forwarding address.

The attorney only had a few days to serve the man and desperately needed to get the legal papers in his hands.

I told the attorney that it was going to be really difficult. Short of following the wife to the nursing home, the address wasn’t going to be found like some low-hanging fruit. And because of privacy restrictions, most nursing homes weren’t going to voluntarily provide the names of their residents. It also didn’t help that we are physically based 1,500 miles away from where the man was reported to be living.

But desperation, lack of time and limited options can bring out the best in us. 

I told the law firm that I would do as much as I could from behind my desk and let them know the following morning what we could come up with.

There was no low-hanging fruit.

The investigative databases were not helpful.

His wife’s social media wasn’t showing anything.

Vehicle sightings reports didn’t come up with anything either.

But we caught a bit of a break when his daughter posted a photo of her father at the nursing home with a small dog. The problem was that there was so little detail in the photo and the scenery was so generic, it would have been difficult to figure out without lots of man hours of trying to triangulate his position. Doable, but not within the client’s budget, and certainly not in our limited time frame.

So we put it down for the day and started fresh in the morning.

Within 20 minutes, we had found him.

The man was living in a rural part of Georgia, so I figured that the family would put him in a nursing home pretty close by. And it turned out there weren’t many nursing homes near the residence of the family. The one nongeneric thing about the photo was that the building had vinyl siding; in the South, and particularly in the area we were looking at, most of the commercial buildings are brick. 

So I did a quick Google search of the five closest nursing homes. The first three were brick, but the fourth had siding similar to that in the photo with the man’s daughter. Taking a look at the Facebook page for the nursing home, I saw hundreds of photos of their residents.

Going through the photos, we caught a glimpse of a man with the same dog, leash and harness as in the photo with his daughter.

He looked a bit different, cleanly shaven, but it was him.

Was it just dumb luck?

Maybe.

But the point here is that we didn’t find the guy through some fancy tool, artificial intelligence or nano-gadget (I might have just made up a word there).

And it wasn’t the magic all-in-one database.

Or any one of the dozens of databases that I pay thousands of dollars a month to access.

We used some simple common sense, a bit of problem-solving, an understanding of human behavior, some tenacity, a dash of magic dust and the most important tool that we have: our brains.

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Former employees are tempting sources of information in litigation for opposing counsel, given that they may be eager to divulge information, can offer some compelling information and occasionally can be disgruntled.

Generally, former employees are fair game in litigation and can prove to be a vital source of information that proves infinitely more compelling than any document. At the very least, a former employee can help connect the dots or corroborate what you already have on paper.

But there is also quite a bit of nuance involved in contacting former employees for litigation, including the legalities, finding former employees, approaching former employees and finding former employees who can be helpful to the case at hand.

So let’s dig in.

Are Former Employees Fair Game in Litigation?

When it comes to the legality of contacting former employees for litigation, the short answer is generally yes, former employees are fair game. Current employees, on the other hand, are generally off-limits.

Simply put, and without getting into the legal subtleties, the courts have made it clear that contacting former employees without notifying the company is acceptable, while current employees generally fall under the category of “no contact,” which prohibits contact with a person who is known to be represented by counsel.

There is quite a bit of nuance here that we won’t fully get into. But, for example, if you know that a former employee is represented by counsel or you are trying to induce a former employee to breach privileged or confidential information, contact is prohibited.

We are no legal experts, and we don’t pretend to be, so be sure to get legal counsel on this topic before taking our advice, as it may differ, depending on the jurisdiction.

Additional Resources

How To Identify Former Employees to Contact

Wouldn’t it be easy if there were a centralized list of employees who worked at a company, along with information regarding their titles, dates of employment, responsibilities and managers?

It would certainly make our job easier, but it just doesn’t exist.

While names of some former employees may come out in discovery, there are a number of methods of identifying former employees of a company. For example, there are dozens of resume databases available on a subscription basis; the professional business social networking site LinkedIn is also a possible resource. While resume databases tend to be better for more blue-collar workers, LinkedIn can be a gold mine if you are looking for people who have worked in positions that have more of a white-collar designation. And if you go the LinkedIn route, I strongly recommend looking into LinkedIn’s premium subscription services; they will save you a lot of time and headaches.

Other methods of finding former employees include reviewing historical captures of the company’s website; reviewing other social media websites (e.g., Facebook) for references to former employment; historical news media research; checking regulatory agencies, professional licenses, litigation filings, and corporate filings; and some deep internet research.

Dig Deeper: How To Find Former Employees — An Investigators Guide

Identifying the names of the former employees is one thing, but finding contact information for them is another. You can utilize consumer-grade investigative databases like TruthFinder, Spokeo and BeenVerified, but we have found these databases to be less than stellar when compared to professional investigative databases. Plus, these consumer-grade investigative databases don’t offer the same advanced-level research capabilities, such as radius searching, age range or employer, as the professional databases do.

We’ve also done some digging into which of the professional investigative databases are the most useful.

What Types of Former Employees Would Be Helpful?

As is often believed by those who watch too much crime drama, there always seems to be that one witness or former employee who spills the beans about everything. While we investigators can dream about the perfect witness who was in the right place at the right time and is ready/willing to talk, that’s rarely the case.

The types of former employees that might be helpful depend, of course, on what type of information you are trying to uncover. As a rule, I generally recommend starting with a range of employees who may have been in a position to have the relevant information you are seeking.

It may be helpful to interview former truckers who could speak about being overworked and undertrained, dispatchers who can talk about understaffing, or trainers who can talk about lack of support from managers.

Former employees can provide insight into the malfeasance, abuse or misconduct by the company’s officers or directors.

Former ride attendants at a theme park can speak to a history of accidents and lack of managers’ concern, but also of managers who may have reported (or disregarded) the concerns.

Former employees can also provide details on collusion between financial institutions, unreported sexual abuse allegations, allegations of corporate malfeasance or

wrongful conduct by superiors.

The truth is that I’ve seen as many janitors and executive assistants provide critical information as I have seen the “perfect” former employee who was in the right place at the right time on the right day provide it. So I recommend a bit of fluidity regarding the types of people you are going to interview, especially at the beginning.

What Is the Best Way to Interview These Former Employees?

I’ve talked quite a bit in other blog posts about telephone interviews versus in-person interviews. There are legitimate arguments for both methods. But in most cases, I would tell a client to conduct telephone interviews first, and if any interviewees are particularly helpful/meaningful, to follow up with an in-person interview to get a signed statement. The exception would be sensitive or high-profile interviews of a short list of witnesses.

Having said that, 100 percent of the time it is preferable to conduct an interview in person. In a perfect world, you would call up the former employee, set up an appointment for a specific place and time, meet the person in a neutral area, and conduct an interview with two investigators — one asking questions, the other taking notes.

But that reality doesn’t really exist in my world.

For one, these employees are under zero obligation to speak, so generally, I don’t want to give the person too much time to think about what they are going to say, so I don’t call them ahead of time to give them a heads-up. I realize that sounds sort of suspicious, but the reality is that if given the choice, most people won’t want to get involved. So, personally, catching a person off guard, so to speak, is better than giving him or her time to think about talking to me.

Also, an in-person interaction can be a logistical and budgetary nightmare when you’re trying to reach employees who are based in different parts of the state or country. Imagine flying across the country and showing up at someone’s home or business unannounced to conduct an interview only to find out that he or she is out of town.   

If there are a few key witnesses who you need to speak to who you are not sure will be cooperative, an unannounced, low-key personal visit might be the best approach.

If there are dozens of former employees based around the state or country, telephone interviews might be best.

Or it may be best to use some sort of hybrid approach, doing some telephone interviews and some in-person interviews.

What Are the Risks of Contacting Former Employees?

Interviewing former employees can be a bit of a crapshoot.

For one, these former employees are under no obligation to speak, so—depending on the sensitivity of the questions, allegiance to their former employee or general reluctance—it’s quite possible that you will get a lot of the proverbial doors slammed in your face.

Frankly, I don’t blame them. Imagine a random person showing up on your doorstep asking you questions about your former employer.

Just recently, I wrapped up an extraordinarily sensitive case where nearly every person I contacted hung up the phone before I could even finish introducing myself. It was frustrating, exhausting and disappointing, but the client was well aware of the challenges and was grateful for and empathetic about our efforts.

Depending on how loyal the person is to their former employer, he or she may go back to their former employer and warn them about somebody snooping around, despite the fact that the contact was perfectly legitimate. I have seen some aggressive attorneys use aggressive tactics to stop any contact.

And there is always the possibility of problems if you reach a current employee.

What Happens If a Current Employee Is Accidentally Contacted?

Despite your best efforts to contact only former employees, there is no centralized determinant of a person’s employment status. As an investigator, we do our best to reach out only to former employees, but on occasion, we will contact someone who is a current employee of a company.

How would one know that they are a current employee?

Because determining a person’s employment status is one of the first questions we ask. “Just to confirm, I understand that you are no longer employed at XYZ Company.”

If we had accidentally reached someone who was a current employee?

We would apologize, thank them for their time and terminate all communications.

How To Approach the Interviews

Under normal circumstances, I subscribe to the idea of interviewing from the outside in. In other words, start with the people who might be on the fringes and work your way closer to the center.

This is much like peeling an onion, first gathering as much information from the surface to get to the core issues and facts, and ultimately working your way to the center of the issue.

Also, from an interviewer’s perspective, knowing the intimate details of the case before you speak to the most relevant players helps build confidence along the way.

There are different reasons why this may not be the best way to approach the case. For tactical reasons, you may want to get to the root of the issue more quickly, but as a rule of thumb, interviewing from the outside in is preferable.

How To Get People to Talk

There is an art and a science to getting people to talk. Sometimes, it’s nothing more than getting the right person on the phone or reaching them at the right moment. But other times, you need to help convince the person to talk.

I can’t force anyone to speak to me, so in building a rapport, I have to strike a balance between persistence, transparency, honesty and pushiness.

There literally are entire courses dedicated to teaching interviewing techniques, but here are a few quick tips:

👉 Build a rapport, but get to the point.

👉 Be accommodating, but don’t give them an “out.”

👉 Have empathy; a stranger asking probing questions can be intimidating.

👉 Be transparent and honest to develop a level of comfort.

👉 Be persistent; leave a message or two or three or stop by their residence and business. But don’t take it too far.

Can You Record Interviews?

Depending on the circumstance, interviews can be recorded, but generally, we don’t record interviews.

There are various state and federal statutes that apply to whether it is legal to record a phone call or conversation. In short, most states are one-party states, in which one person who is a party to the conversation must know about the recording; other states require the consent of all parties.

So for an in-person interview, you can check the local statutes to determine whether you are in a one-party or a two-party state. But the majority of interviews we do are on the telephone, so unless I ask the person which state they are in (which is an awkward question), I don’t know whether they are in a one-party or a two-party state, especially in this period of work from home and work from anywhere.

It’s just not worth the awkwardness or risk of potentially getting a critical interview discarded because of a technicality.

I can, of course, just ask them whether I can record the conversation, but that can put the person on the other side on the edge.

Instead, I take detailed notes of the interview and draft a memo immediately following the interview, which provides a non-verbatim account of the interview. If it’s an in-person interview, we would normally do the interviews with a two-person team, with one taking notes and the other asking the questions.

Final Thought

Former employees can be an incredibly powerful source for opposing counsel in litigation. But there are some nuances in terms of finding the right former employees, approaching these employees and getting the most out of these interviews.

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Lately, we’ve done quite a few investigation interviews by telephone relating to personal injury claims, sexual abuse allegations and sourcing inquiries for board members and executive-level hires.

Many people will tell you that face-to-face is the only way to conduct investigation interviews. They say you can’t establish rapport, detect deception, observe body language or control the environment over the phone.

That’s true, but face-to-face interviews can also be impractical, costly or just downright unattainable (global pandemic, anyone?).

I’ve been doing interviews over the telephone for nearly 20 years.

Here are some tips for getting the most out of your interviews.

1Don’t Give Them an Out

After introducing myself and briefly telling the interviewee what I was trying to do in my early days of interviewing, I would always ask, “Is this a good time to talk?”

The response would often be some form of, “Actually, I’m swamped right now. Can we do this later?”

Then “later” would come, and they wouldn’t pick up the phone.

You see what I did here; I gave them an out. I let them get off the phone free of charge.

People are busy. If you give them a way to get out of something, especially a call with a stranger asking them uncomfortable questions, they will probably take it.

I generally just jump right into my line of questioning without giving them an out. If the person being interviewed needs to reschedule, by all means, I am happy to do that. But I am not going to be the one giving them an out.

2“Can You Help?”

Consider these two scenarios:

“I am a private investigator working for a high-powered law firm that has collected hundreds of millions of dollars in damages for its clients, and we are seeking to interview you relating to a tragic accident that occurred under your watch. Do you have a few minutes?”

Or

“Hi Jeff, my name is Brian Willingham, and I was wondering if you could help me out. I’m doing some research for a local firm about a horrible accident that occurred a few years ago. I’ve been reaching out to a number of your colleagues to understand better what happened.”

I’ve exaggerated here, but there are a few keys to the second method.

People. Love. To. Help.

So adding in “wondering if you can help me out” immediately takes people off their guard.

The second key is letting them know that you are also talking to others. If the person on the other end thinks that you are the sole person they are going after, they will probably clam up. 

3 Persistence

We’ve recently worked with a few law firms relating to some sensitive issues. In each case, the law firm was conducting telephone investigative interviews simultaneously. In one of those cases, we had conducted 15 interviews, while the law firm had completed only a few.

Nobody was picking up the phone for the law firm, and nobody was calling back.

What’s the trick, the firm asked?

First, in today’s world, 94.6% of phone calls from an unrecognizable number are probably some sort of spam (I just made up that number; don’t quote me on that). Most people just don’t pick up their phone anymore (you CAN quote me on that).

So there are a few things I try to do. First, I will call a few times in one single day. I’m not sure about the psychology behind it, but people get curious/worried/interested/agitated and pick up the phone after the second or third time.

Also, I don’t leave messages until I have to. And when I do leave messages, I don’t bury the person with details — just something quick and straightforward that might pique their curiosity so they call back.

4Ease Into It

I often receive a line of questioning from law firms about the relevant questions. It makes perfect sense. They know the case inside and out and want to ensure we get the pertinent details.

Usually, the first question on the list often goes straight for the jugular.

Like, “What kinds of policies and procedures were in place to prevent this fatal accident?”

It’s like walking into a bar and asking the first person you see if they want to go home with you.

The thing about telephone investigative interviews is that the person on the other end doesn’t have any responsibility to take the time to talk to you. So you have to ease into it. Get them talking first, build rapport and let them tell you stories about their dead aunt’s cat.

Let. Them. Talk.

THEN, you just might be able to go for the jugular.

5 It’s a Numbers Game

If you had 100 people to call, I think you’d be lucky to get 50 of them on the phone, depending on the type of case. And of that 50, at least a dozen or so would tell you to fly a kite.

Many of them will not have much of anything relevant to say.

All in all, you may get a couple of great interviews out of it.

I’d rather have a bunch of lukewarm leads than a couple of great leads.

Take this scenario:

Option 1: Two possible “leads” who were in the proper position, at the right time, in the right place.

Option 2: Fifteen potential leads who were in the right place, at the right time, but were not in the perfect position.

If you gave me these two options for telephone investigative interviews, I would take Option 2 every time.

Why? Because it’s a numbers game. People aren’t going to pick up their phone, won’t cooperate, will be hesitant to provide details or will simply not be very helpful.

And the reality is that you just don’t know who will be helpful.

I’ve had cases where the most unlikely people have been the most helpful.

In Closing…

Telephone investigative interviewing takes a lot of patience, persistence, listening, empathy and some thick skin, but hopefully, these tips can help make you a better interviewer.  

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Screen capture tools for saving social media pages and web pages is a topic that comes up frequently for private investigators. There are tons of tools out there, ranging from the simple snipping tools to complex screen capture software that “captures” metadata, timestamps and links.

There are some companies that offer really expensive tools for collecting evidence on a mass enterprise scale, like PageFreezer, X1 Social Discovery and the like. These services can cost thousands of dollars and are designed for big-data collection.

While those are amazing tools for massive cases, that’s not what most of us small investigation shops do.

More often than not, my typical use case would be when I need to:

  1. Screen capture something to add into a report;
  2. Save an entire web page to include as an attachment to a report or collecting “evidence” (I am using that term pretty loosely here); or
  3. Capture some critical piece of information that may disappear from the Interwebs (that’s a technical term).

While most of the work that I do as a private investigator does not end up in court, I constantly have an eye toward how the information is collected in case it ever does end up in court.

So, for example, if I am conducting a sensitive interview, I might want to record the interview (with permission depending on the state you are in), have a second witness with me to validate the conversation or draft a summary of the interview immediately after, and have the person sign an affidavit or declaration. That way, in case the person misremembers something or changes his or her mind, I’ve got some good backup.

Similarly, if I ever need to authenticate any of our background investigation research, I can refer to the court document, news article or corporate filings where we found the information. If needed, I can get certified copies of court documents of government filings to present in court.

More frequently, information for the vast majority of our casework is being collected via the Internet, especially social media. Since that type of information can be deleted or altered at any moment, simply including a link to a web page in our report may not be enough, since by the time it comes up, it may not be there anymore.

The more sensitive the case, the more cautious you need to be.

Warning

Before I get into the meat of this post, I am not a legal expert and don’t pretend to be. If you are doing some serious evidence collection with a lot at stake, you should first consult an expert and/or an attorney.

Don’t rely on what I tell you.

That being said, after years of collecting information, this is the process that I typically go through.

Screen Capture for Quick, Everyday Use

Built-in screenshot applications on Mac and the snipping tool on Windows computers are good if you need to capture something quickly to share. They can easily be stored on your computer and dropped into an email or report, and offer a great visual.

I also use the built-in features of Google Chrome’s “Save as a PDF” to capture an entire web page. These are typically pieces of information that are particularly interesting that I may want to refer to. What I like about this form of data collection over simply just taking a screenshot is that the text is searchable, so I can recall the information by simply searching my computer without much of a problem.

In terms of preserving evidence, neither of these ways is particularly good. Screenshots are just photos and can be easily altered; the same goes for PDFs. It doesn’t take much to alter those, either. 

I’ve got some pretty rudimentary Photoshop skills from 20+ years ago, but I am pretty sure I can alter a screenshot to make it look legit enough that nobody would be able to tell it is a fake.

Not that I would ever do that.

So, even if the initial manner in which you preserve the evidence isn’t the best, it might be important to capture something quickly, because it might be taken down.

Screen Capture for Good-Looking Screenshots, with Extra Protection

As described above, most web browsers give you the option to save as a PDF, which includes the URL and date/time of capture; most of these built-in features give you a jumbled-looking, ugly PDF.

There are several Firefox and Chrome add-ons that make the page look a lot prettier. Fireshot and GoFullPage are two of the most popular (although as of the date of this post, Fireshot for Chrome is not working). I strongly recommend the paid versions of these; they have features like adding a date and full URL.

There are a number of built-in features to make screenshots pretty by using “smart” PDF page splitting, and include the URL and timestamp on the page.

While this is similar to saving a page to a PDF, it makes it look so much better. It will look exactly like the web page as you see it, so it’s familiar to everyone. What you see is what you get; WYSIWYG for you nerds out there.

(Note: GoFullPage looks like they have a “legal” version in the works for legal professionals that seems interesting.)

So, if you need a pain-free way of collecting a web page exactly as you see it, to attach to a report or court filing, this may be a good choice.

Secure Collection

For cases that I think may end up in court or involve scenarios in which authenticity may be challenged, I turn to Hunchly.

This is where things start getting nerdy. But in short, if you need to collect evidence that may be ultimately challenged and attacked in court or elsewhere, you need to start thinking about collecting evidence to be preserved accurately and minimizing the risk of tampering.

For this, I use Hunchly, a lightweight Chrome extension that captures web pages in MHTML format, and that includes a timestamp and maintains links and metadata. What Hunchly captures is automatically timestamped, hashed and stored on your computer hard drive. So, while you are scrolling around the Internet, Hunchly is working in the background saving everything that you are doing in a secure way.

What’s great about this is that you can always go back and search Hunchly for something that you captured, meaning you don’t have to worry about recalling the exact web page of some little nugget of information that you found weeks ago.

All of the data is stored on your computer, where it can be saved for eternity.

I don’t use this in every case I work, but there are cases in which I will. In other cases, I might save a few web pages into Hunchly if they are important. This way, I’ve always got a record of them, in case it ever comes up again. 

Hunchly is not perfect. It doesn’t do a great job with scrolling web pages, like a Facebook or Twitter timeline. It also doesn’t always produce the prettiest looking pages that, for example, I can attach to a court filing.

So what do I typically do?

For sensitive cases, I will capture them through Hunchly; then, to preserve them and capture them, I will use GoFullPage to include in a report or affidavit. This way, I have the secured collection of Hunchly, with the lovely PDF that GoFullPage will produce.

(I spoke to Justin Seitz, founder of Hunchly, and he says that Version 3.0 of Hunchly is going to handle some things much better.)

Hunchly costs $130 per year and it is worth every penny for the peace of mind it affords.

For Secure, Court-Ready Critical Web Pages

The last recommendation is Page Vault. I have been using this company’s product for several years. What I like about Page Vault is that it is designed specifically for legal professionals, so they are speaking the same language as the attorneys I work with.

The captures from Page Vault look great and include all the metadata and secure hashing. But what separates this from other services I mentioned is that it keeps investigators out of the chain of custody of evidence and outsources the technical issues to an outside firm. So if there is a question about the authenticity of the documents, professionals at Page Vault can issue an affidavit about the screen capture process, and Page Vault can serve as an expert witness to describe the technology and storage process behind it.

I am pretty good at some things, but explaining the technology behind the capture process and technical jargon is not one of them.

So, my use case for this would be a one-off situation in which there were a few critical web pages that needed to be authenticated and saved and that may come into question down the road.

Page Vault starts at $100 per page capture, so it can get pricey depending on what you are doing.

Bonus Tools

One thing to consider when archiving web pages is saving the data to Archive.org, Archive.today or another third-party archiving site. As most of you know, Archive.org is the largest repository of historical web pages on the planet. It’s an incredible resource for so many things.

One thing you may not know, though, is that both Archive.org and Archive.today have ways that you can submit a URL to be archived onto their site. I use the Chrome extensions (Archive.org Chrome extension; Archive.today Chrome extension), where you can archive a specific page while you are on it.

I like this method because it’s permanently saved through a third party whose credibility is widely known. Having said that, you have to be careful what you are saving for these services, but you get the point.

Thanks to Steve Mason for starting up this conversation.

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(This post was originally published in May 2015 and was updated in March 2021.)

Many people working in the private investigation business share a trait: They hoard their trade “secrets.”

I guess it’s pretty common in most businesses.

I assume they think they might lose their edge if they gave them away.

The truth is that most trade secrets are not really secrets at all. As one of the great 17th-century playwrights, Jean Racine, so eloquently put it, “There are no secrets that time does not reveal.”

So, before time reveals every investigator’s secrets, I’ll reveal a few. Here are nine investigative tools that every lawyer should know about.

TLOxp

Who is this person? Where do they live? Are there any criminal records against the person? How do I get an address and a telephone number?

These are just some of the core questions that come up on a daily basis from lawyers trying to track down an individual or wanting some basic information on people.

That’s where TLOxp comes in. TLOxp for Legal Professionals is a subscription service that provides access to billions of public and proprietary records that can be used to locate people, assets and critical details such as criminal histories and phone numbers. It is an essential tool that should not be overlooked.

Seriously, it’s an absolutely indispensable resource. And if your firm is using something like TruthFinder or BeenVerified to track people down, I strongly recommend you check out TLOxp. It’s like going from a Fiat to a Mercedes.

You can thank me later.

Archive.org

The Web is a living and breathing thing. It’s constantly changing. What might be published on a website one day may be gone the next — never to be seen again. While Google may cache the most recent version of a page, it doesn’t save it forever.

That’s where the Internet Archive, aka Archive.org, comes in. Archive.org not only provides a vast digital archive of various collections, but it also keeps an archive of the Web, with over 150 billion page captures.

Archive.org’s Wayback Machine can be used to see what previous versions of websites looked like or to visit websites that no longer exist. This can come in handy if you ever need to show that a website was publishing copyrighted materials, identify former executives of a company or gather information about a website that has been taken down.

They have archived 475 billion web pages. I am no accountant, but that’s a lot.

Most people know a little about its archiving of web pages, but did you know that Archive.org has also digitized 28 million books and texts and 14 million audio recordings like radio broadcasts, and you can search the closed captions of 2 million television news shows back to 2009?

LexisNexis/Westlaw

You’re probably saying to yourself, “Every first-year law student knows about LexisNexis and Westlaw.”

It’s true.

LexisNexis and Westlaw are essential tools for every lawyer, especially when it comes to researching case law.

What many lawyers don’t know, however, is that they also have some of the largest repositories of public and proprietary information on people and businesses. Most law firms don’t subscribe to the public records portion of the LexisNexis and Westlaw databases because it’s pretty cost-prohibitive if you’re not using them on a daily basis.

In addition to their vast repository of public records on matters such as criminal histories, civil litigation, property records and other public records, these databases represent two of the single largest collections of historical news.

DomainTools

With a little know-how and in about 18 minutes, anyone can set up a website and start publishing just about anything. But getting a handle on the individuals who are behind a website can be challenging. The simplest way is to look in the Whois.net directory to see who the current registrant/administrator is. The directory can provide a wealth of information, such as the email address and contact information for the person who is behind the website.

However, it’s usually not that easy. Many Most websites are now set up with a private or proxy domain registration, especially when the registrant is trying to hide acts of wrongdoing. While you may need to jump through enormous legal hoops to uncover the site owner’s identity, there may be an easier way.

Although the Whois directory will give you the current registrant, DomainTools will give you the entire registration history for the domain going back many years. So if the domain was owned by an individual and then transferred into a proxy service, you just might have struck gold.

Since 2018, a number of privacy laws have been passed with a lot of fancy acronyms, including the CCPA and the GDPR. The bottom line is that domain information is disappearing, but as of this moment, you can still get some good decent info. 

Bonus: Alternatively, you can check out ViewDNS.info, which is a totally free option. It’s not nearly as robust, but if you want a quick, down-and-dirty way to search for a domain by a name or email address, you can check that out. 

Skopenow

The fire hose of information available via open sources and social media has expanded rapidly over the past few years. There is so much information, it’s hard to impossible to easily collect, organize and digest all of it.

That’s where Skopenow comes in.

Skopenow is a fee-based service that offers information on an individual’s social profiles, blog posts, comments, social media posts, email addresses, phone numbers, addresses, court records, family members, usernames, web sightings, pictures, screenshots and timestamps, as well as an alternative name (nickname) analysis.

Running a report from Skopenow can help you connect information using any number of data points that a layperson may fail to identify or connect.

Google

I know what you are thinking. Google is so popular it’s a verb.

But most people don’t use Google to its full potential.

For example, if you are searching for information on someone, there are at least five ways to search their name:

“John Doe” – The quote marks tell Google to search the exact phrase.

“John” “Doe” – This may seem repetitive of the above search, but the above results won’t provide results with John William Doe or John W. Doe. Searching with each word in quotes will return any results containing the two quoted words or phrases.

“Doe, John” – In some cases, the name may appear last name, first name.

“J. Doe” or “Doe, J.” – This will capture cases in which the first initial, last name format is used.

“John * Doe” – An asterisk is like using a wildcard, so this will produce results that contain, for example, John Michael Doe.

There are dozens of other advanced operators. A few of my favorites are:

“John Doe” (attack OR charge OR violate OR indict OR insult OR slander OR molest OR assault OR force OR abuse OR attack OR strike OR invasion OR assail) – This is a quick, down-and-dirty negative search string to see whether there is anything really bad out there on John Doe.

site:upenn.edu “john doe” – This search string will specifically search, for example, the University of Pennsylvania’s website to determine whether the name “John Doe” has appeared anywhere on it.

Filetype:pdf “John Doe” – This will return results of the name “John Doe” appearing in any PDF files.

Dig deeper: 6 Google Tricks That Will Turn You Into an Internet Detective and 8 Google Search Tricks Every Attorney Should Know

Newspapers.com

If you are looking for current or recent news, Googling, LexisNexis, Westlaw, Bloomberg, Factiva or subscriptions to local news websites are your best bet.

But if you want some historical information, like from the 1980s or before, Newspapers.com is the way to go.

Newspapers.com is a subscription-based service that contains information from over 20,000 newspapers dating back to the 1700s. It also reportedly adds millions of additional pages each month. This is a great source for finding information that may not have made its way to Internet search engines.

PACER

If a client asks me to do a quick, down-and-dirty background check on someone, one of the first places I always go is PACER.

As you probably know, PACER is a free public service that allows users access to a comprehensive index of docket information from all United States district, appellate and bankruptcy courts. All available court filings are also accessible through the site for a small fee.

There are a few reasons that it’s one of the first databases I use:

  1. It’s quick and really cheap;
  2. It’s comprehensive in that it contains almost every single federal court (I think it’s missing a few) in the country dating back at least 15 years, sometimes much longer;
  3. Many state courts don’t have copies of legal filings online, but PACER does, so you can quickly get the gist of a proceeding or disposition;
  4. Bankruptcy records can prove to be a gold mine of information.

Judy Records

Judy Records is a relatively new public online service that reports being the largest court-related search engine in the United States, consisting of dockets and opinions from 481 million court cases.

Yes, you read that right — 481 million court cases!

The best thing about Judy Records is that it is free of charge.

Keep in mind that it’s got some serious limitations. Don’t for one second think that it’s comprehensive; but if you are looking for some quick results, this is a good starting point.

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If the Internet age has taught us anything, especially in the last year, it’s that people are not afraid to share their opinions. Whether it be politics, social issues, or politics (see what I did there?), Internet message boards and social media offer platforms where anyone and everyone can make their opinions known.

As a private investigator, opining can be a slippery slope. More often than not, our job is simply to identify and present facts. We leave the judgments regarding guilt, innocence, character, emotion, well-being or state-of-mind to the client.

We are not judges, jurors, psychologists or mind readers.

We are fact finders.

In our line of work, we are often tasked with composing background reports on a variety of people for a variety of reasons. The report may be part of a lawsuit, for an investor, or for a business deal. The first rule of writing these reports is that we NEVER offer our opinion. Our job is to gather information, analyze it, and report the facts in a clear and concise manner that informs our clients and allows them to make informed decisions. The only opinion that matters is the client’s, not ours.

So, while we can tell the client that we identified dozens of photos of what appear to portray drug use with youngish women, calling the person a drug-dealing pimp is not something we would ever do.

Similarly, suggesting that someone is a loving person, “reformed,” or presuming that someone had turned around their life intimates that we are mind readers or psychologists. The truth is, we still get surprised at which facts our clients find relevant to their bottom line and which they find irrelevant.

We were recently provided a portion of a fellow investigator’s report in which the social media section was basically a reflection of how the investigator felt about the person. It contained multiple uses of the word “I” and their personal opinion on the person’s social media presence. The investigator also used descriptive terms about how they felt, like “heartbroken,” and that the person they were investigating was a “shining example for men like him.”

[Side note: Social media is the most dangerous place to start judging people, since people tend to portray their lives on social media as they WISH they were and not always as they are.]

We are not judges, jurors, psychologists or mind readers. We are fact finders.

When investigators offer their opinion, they are essentially controlling the narrative and steering the client’s opinion in a certain direction. Not only that, the investigator may provide an opinion that they are not qualified to make so that the stated opinion is worthless.

In doing background investigations, for example, our job is to identify any potential red flags or issues in a person’s past in order to assist the client in making what is essentially a very important business or personal decision. It is of zero importance if we think that the person being investigated seems like a really nice guy because he donated to a charity for his birthday or if we think that he got a raw deal in life because he seems to love his family.

Of course, if clients want our opinion, we would provide some color and context. But we leave the decision-making up to them.

Let me be clear about something—when you spend hours digging into someone’s life inside and out, you will undoubtedly form an opinion of the person, that’s just human nature. And your gut feeling may help guide you down whatever rabbit hole you end up going down. However, when you are hired by a client to create a report, your personal opinion must remain in your head and never reach the page.

This is not just true in background investigations. If an investigator is doing surveillance for insurance purposes, it doesn’t matter much if they think the person they are surveilling is not injured, it only matters what the facts and evidence say.

Similarly, an investigator may think that they are being lied to by a witness during an interview, but unless they have some facts and evidence to back that up, it’s nearly useless.

As always, we will stick to collecting and reporting the facts.

We’ll leave opinions to armchair quarterbacks and keyboard warriors.

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