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Contacting Former Employees for Litigation – A Private Investigators View

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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Private Investigators: Fact Finders or Opinion Givers?

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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What Is Pretexting, and Is It Legal?

I have had an ongoing debate about pretexting with a fellow private investigator over the past several years.

This colleague loathes the word “pretexting,” in part because of the definition of the term.

Pretexting is defined by the Federal Trade Commission as “the practice of getting personal information under false pretenses.” Sounds pretty ominous, right? Expanding on the definition, “personal information” is described as bank and credit card account numbers, information in a credit report, bank account and investment portfolio information, and Social Security numbers.

In much simpler terms, pretexting means representing yourself as one person in order to obtain private information about another person.

There are a few types of pretexting that are completely off-limits and punishable by law:

The Telephone Records and Privacy Protection Act of 2006 made it a federal offense to utilize pretexting to buy, sell, or obtain phone records.

Pretexting for financial records was specifically outlawed in 1999 under the Gramm-Leach-Bliley Act, which made it illegal to solicit others to obtain financial information via pretext.

In addition, while there is no pretexting provision in the law, HIPAA privacy laws protect an individual’s medical records unless consent is provided by the patient.

Although not exactly considered pretexting in the classic sense, there are also a few other forms of pretexting, better described as “impersonation,” that are also punishable by law:

Representing yourself as a police officer or law enforcement officer in any capacity or giving the impression that you are a police officer or law enforcement officer is illegal.

Falsely pretending to be an officer or employer acting under the authority of the United States or any U.S. department or agency is illegal.

Some examples of completely illegal activity are contacting a doctor’s office and falsely pretending to be a patient in order to obtain medical records, inquiring at a telephone company to obtain phone records of another individual, and asking a bank or credit card company for the statements of another individual.

But if you consider the definition once again as “the practice of getting personal information under false pretenses,” pretexting includes a number of practices that private investigators utilize on an almost daily basis. While most people apply the definition of pretexting to some sort of scam, private investigators typically use pretexts to do their jobs.

For example, surveillance investigators may contact an individual’s residence to determine whether the person is home. The surveillance investigator may call the residence and ask for the target person, pretending to be a friend, colleague, or business associate.

They may also call saying they have a delivery for John Smith and want to know when Mr. Smith will be home to sign for the package. An investigator who is looking for someone may call a cell phone to confirm that the number is in fact that of the person sought. In each case, the investigator, when asked, “Who is this?,” is certainly not going to say, “private investigator Danny Jones.” More likely than not, the investigator will use a fabricated name.

So, in these examples, is this pretexting? Technically, yes, because the investigator is using false pretenses to elicit information.

Is it illegal?

In my view, and in the view of many investigators, obtaining “sensitive information” under some form of pretext is troubling and concerning. I’m not a legal expert, but I think you will be hard-pressed to find anyone who has ever been charged for conducting an innocuous investigation such as the ones described immediately above.

There is a gray line here, however. There are lots of techniques used by investigators that are completely unethical but may not be technically illegal; for example, if I called pretending to be a former employee of a company and obtained salary information of the former employee, or if I impersonated a hotel guest to get a copy of a bill or posed as an airline passenger to confirm a flight.

Ethically, I wouldn’t touch those with a 10-foot pole; legally speaking, I am not sure if this crosses the line.

Also, I don’t know an investigator out there who doesn’t have a fake social media profile. That certainly violates terms of service of the social media firm, but the reason investigators typically use a fake profile is to avoid getting caught snooping around. You would cross the line if you were “friending” a target to get nonpublic information or engaging with them to get access to information you wouldn’t otherwise be able to get.

A few years ago, the investigative firm Ergo used a fake-journalist ruse to dig up dirt on an adversary of Uber. Ergo was ripped to shreds by a federal judge overseeing the case, who highlighted a litany of irresponsible and “arguably criminal” acts; however, it doesn’t appear that the company was criminally charged.

Reckless? Careless? Unethical? For sure, but not illegal.

So is pretexting illegal? In certain cases, the answer is absolutely yes. But between that illegal area and the not-so-illegal area, there is a cavernous gray area.

So, where do you draw the line in pretexting?

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5 Lessons from Corporate Investigations Gone Bad

This has been a bad couple of weeks for private investigators.

First, there was the story of Credit Suisse, which hired private investigators to follow a former top executive whom the bank thought was trying to poach employees and clients. But the former executive got into a confrontation with the investigator hired to tail him. The investigator is facing a criminal probe, and the consultant who helped Credit Suisse hire the investigators to trail the executive committed suicide just this week. Now Credit Suisse is reeling from the controversy, saying that the surveillance on the former executive was “wrong,” which ultimately led to the resignation of the COO, who authorized the surveillance.

ext, there was the story of Neil Gerrard, a partner from the white-collar law firm Dechert, who was suing an investigative firm for spying on him after they placed a camouflaged camera on his property to try to gain access to a private Caribbean island where he was vacationing. Operatives were questioned by police after claiming that they were the nephews of the Gerrards. Police found a “large amount of electronic equipment, including a camera adjusted for night vision use” on one operative, who was denied entry to the island; and at least two operatives have been interviewed by British Police.

The investigative firm doing the work, Diligence of London, was allegedly doing work for ENRC, which Gerrard formerly represented. ENRC is being investigated by the UK Serious Fraud Office amid allegations of fraud, bribery and corruption, and is currently involved in litigation against Dechert and Gerrard, accusing them of breach of contract and overcharging for Dechert’s services.

Then yesterday, the Wall Street Journal posted a story about Greg Lindberg, who is facing criminal charges in what has been described as potentially “one of the biggest U.S. life-insurance insolvencies in recent decades.” Lindberg reportedly hired dozens of surveillance operatives to spy on “actual and prospective romantic partners, assembling dossiers on the way.” According to the Wall Street Journal, “Mr. Lindberg paid for dozens of surveillance operatives to tail the women up to 24 hours a day, taking surreptitious photos and sometimes putting GPS trackers on their vehicles.”

The firm that was doing the work? Apex International, a North Carolina firm that happened to be owned by Lindberg. (Funny how you can’t even find a website for the company.) It is interesting to note that GPS trackers are illegal in Apex’s home state of North Carolina without the permission of the owner of the vehicle.

Lindberg also spied on one woman by having someone secretly enroll in the school she attended, and tracked another woman by having one of his agents rent an apartment across the hall from where she lived to keep tabs on her. Investigators were told that the woman had “agreed to the surveillance,” but suspected that it was not true when one investigator said, “I realized what I was doing was horrible” when “I was putting fear in a woman in a certain situation.”

What can investigators and businesses learn from this?

Think Before You Hire an Investigator

Most of the casework that we do never gets to court, but every time we need to make an ethical or moral decision that may cross the proverbial gray line, I ask myself, “What would a jury of reasonable people think?” If there is even a hint of unscrupulous behavior, I won’t do it. It’s not worth risking my reputation, license or standing in the investigative community, no matter how much money it will make us.

If you are conducting corporate “espionage,” you should be asking, “How is this going to look when I read about it in the Wall Street Journal?”

If you think that placing a surveillance camera on someone’s private property to monitor the comings of goings might not look so good, don’t do it.

If you think that the CEO of a billion-dollar company using company funds to create dossiers on his prospective romantic partners might not result in favorable media coverage, don’t do it.

Or if you think surveillance of a former executive that could result in a confrontation might lead to weeks of bad public relations, don’t do it.

It might seem like overkill, but it might also save you from some serious embarrassment, like ending up on the front page of the Wall Street Journal.

The More Sensitive, the More Caution

If we get near that proverbial gray area, we typically won’t do the work. But if there is a really touchy case, which is either a sensitive topic (e.g., sexual harassment), politically motivated or dealing with powerful people, we advise you to proceed with extreme caution.

That means following the letter of the law to a T; using the most experienced, trustworthy investigators that you can find; and taking riskier steps only when you have exhausted every other possibility.

If you want to do surveillance on a former executive because you think he might be violating the terms of your agreement, go for it. But don’t skimp by hiring only a few operatives, who might get caught. And at the first sign of any issue, the surveillance should be broken off completely.

If you are going to do surveillance on a partner of a white-collar law firm, it’s probably not a good idea to trespass on private property.

On a personal note, I was personally surveilled by another investigative firm recently. These guys were all over the local Facebook page of my local community, surveilling the wrong house until they found me. And when they finally did find me, they had only one guy trying to follow me.

Spoiler alert! That didn’t end very well for them.

A Little KYC (Know Your Customer) Goes a Long Way

Businesses need to know who they are getting involved with.

Investigo GmbH, who carried out the surveillance for Credit Suisse, has Google reviews ranging from “Very unfriendly staff” and “Only fixated on money” to “Bad experience, not to be recommended, rude and stubborn,” resulting in 1.4 out of five stars.

All that took was a five-second Google search to learn.

Likewise, as an investigator, you need to know who you are working for, their motives, and whether or not they are going to push you into some unscrupulous behavior.

Would I track down an address for an attorney to serve a lawsuit? Absolutely.

But tracking down the lover of my client’s ex-husband in order to “deliver some boxes she left behind”? Nope.

Who You Hire Is a Reflection of You

The three cases I described above have one thing in common: an element of surveillance or on-the-ground work.

It’s clear that, at least in a few of these cases, the investigators were either breaking the law (e.g., going onto private property, attaching GPS trackers to unsuspecting vehicles) or at the very least skirting it in a really gray ethical area. 

It’s clear that there will be a lot of questioning of the judgment of those who hired the investigators.

Rightfully so.

Another Notch in the Belt for Open Source Intelligence

Over the past few years, there has been an explosion of information available to investigators through open source intelligence (OSINT) and public records. With the right training and access, there are millions of points of data available at an investigator’s fingertips, sources ranging from social media, historical domains and deep web research to historic newspapers, litigation filings and credit header information. There is an entire cottage industry of people who only do covert research, which, if done properly, is nearly impossible to detect.

At the end of the day it is hard to dispute the value of making in-person inquiries with friends, families, neighbors and colleagues, former business partners, or local law enforcement. Or doing surveillance.

But those inquiries have risks, namely that it may get back to the target of the investigation. There are, of course, times when only surveillance, interviews and on-the-ground work can get the answers you are looking for.

But you have to ask yourself if it’s worth the risk if someone finds out?

I guess you will have to ask Credit Suisse, Greg Lindberg and ENRC.

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Need to Hire a Private Investigator? 6 Questions to Ask Yourself

Not every person, corporation or law firm needs to hire a private investigator on a regular basis.  Realistically and thankfully, a private investigator is not someone that everyone has on speed dial.

But if a situation requires one, before you hire a private investigator, take into consideration these questions:

What is your objective?

Are you trying to find someone, collect on a judgment, determine if it’s worth suing someone or perhaps investigate a complex matter? With some cases, the specific objective may be obvious, but often clients are not sure what they really want. Having an ultimate goal or objective before you hire a private investigator can help control costs and focus the investigator in the right direction.

Do you need subject matter expertise?

Investigators often have a specialty. These include surveillance, matrimonial cases, insurance disability matters, internal fraud investigations, adoption, computer forensics, forensic accounting, litigation support, due diligence investigation and background checks.  Hiring the wrong investigator for the wrong job may doom your case from the start. Before you hire a private investigator make sure the investigator you hire has a proven track record in the area you present to them.

What do you already know?

It’s important to collect every relevant piece of written or electronic information in your possession to provide to the investigator. Also, be sure to tell them everything you know—even if it’s not written down. This insures that the investigator has the best tools to be effective and efficient so that they can hit the ground running.

How will the information be used?

Are you trying to get information for your own use or do you anticipate litigation relevant to the information?  In the first instance, it may be appropriate to deal directly with the investigator, but if there is litigation in the works, your investigator should be retained by an attorney to protect work product privilege.

What are your expectations?

We all love a good Sherlock Holmes novel or an old episode of Colombo, but it’s called fiction for a reason. Understanding what the investigator can legally, properly and ethically do will save you from unrealistic expectations and trouble down the road.

What are the risks if inquiries become known?

What if the investigator is caught digging around? If the inquiries the investigator is making are exposed, what’s the backlash?  Think this through. This is key to developing a leak proof investigative strategy to avoid embarrassment or worse.  An investigative approach depends on the sensitivity of the case—make sure you and the investigator are on the same page about technique. Is it necessary to take every precaution and be sensitive or can the investigator go in with guns blazing?

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Should you Sue? Conducting a Pre-Litigation Asset Search

A pre-litigation asset search can provide you or your client with valuable information to determine if a lawsuit is worth filing or to gain leverage in the course of negotiations prior to filing a lawsuit.

Going through litigation is expensive.  There is nothing worse than racking up tens of thousands of dollars in attorney’s fees only to find the person or company you are suing doesn’t have anything of value.  In other cases, you may be in the midst of negotiating a settlement prior to filing a lawsuit and want to see how far you can push the negotiations, or if you should cut your losses and settle.

In pre-litigation mode, attorneys don’t have the luxury of having the legal authority to access information about liquid assets such as bank accounts and investment accounts.  Attorneys need information quickly, discreetly and most importantly, legally.

What to consider?

Determining whether you should sue a person or a company has two parts – what they may own and what other potential liabilities they may have.  Of course there may be a whole host of hidden assets, but here are a few key assets and potential liabilities that can be identified quickly, discreetly and legally in a pre-litigation asset search:

Assets

Personal Assets

The most significant asset that people own is typically their home, but other assets that can be identified through open sources include motor vehicles, boats and airplanes.  Beyond the obvious assets held directly by a person, assets may also be held by a close associate, family trust, family member or shell company.  Real property assets may have also been recently transferred to other related parties or held overseas.

Business Assets

In addition to holding individual assets, assets may also be held in a corporate entity.   Identifying corporate affiliations through secretary of state filings and other research is an important step in identifying assets held by affiliated companies which may not be held by the subject directly.

Liabilities

Bankruptcy

Obviously, if the person or company has filed for bankruptcy protection, you will eventually be notified and you can file a claim in the bankruptcy proceeding.  What if you haven’t been notified yet?  If the person or company has a history of filing for bankruptcy protection, wouldn’t you want to know?

Civil Litigation

If other civil litigation has already been initiated against the person or company you are about to sue, you may be in a long line of creditors once your lawsuit has finally been settled.  It may also be a sign that you should settle fast.

Judgments/Liens

If the person or company has been subject to recent judgments and/or lien filings, this may be a sign that the company is already heading for trouble.

Final thought

Conducting a pre-litigation asset search can quickly identify assets and potential liabilities that can help you make a more informed decision about whether you should file a lawsuit or if you should cut your losses and settle prior to filing a lawsuit.

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Why Hire a Legal Investigator? Hazards of Using Legal Support Staff

A risky and growing trend in the legal arena is the use of in-house paralegals or support staff as an alternative to hiring a trained legal investigator. Although this is understandable, particularly given the cost-effectiveness and convenience of in-house resources, there is no substitute for a professionally trained legal investigator. It takes much more than just an inquisitive mind and Internet savvy to consider oneself an “investigator.” Before assigning investigations to in-house researchers, attorneys should be asking themselves, “How important is getting this information?” and “What if the other side finds out something I did not know about?”  A trained legal investigator can identify facts to assist an attorney or law firm achieve a desired result for a client.

Who Needs a Legal Investigator Anyway?

Attorneys and support staff are becoming increasingly adept at using publicly-available search engines (i.e. Google) and accessing third-party resources such as Lexis-Nexis and Westlaw. These resources are, of course, also commonly utilized by professional private investigation firms. What attorneys may not realize is that every Lexis-Nexis or Westlaw subscription may contain records from different databases. The research databases in a licensed private investigator’s subscription may contain millions of records and publications that are not available to private law firms. Because of federal and state privacy restrictions, these data brokers will generally provide attorney clients with only limited access to public records. Attorneys should consider what information they may be missing by only using their in-house resources.

Cost Effectiveness v. Cost Efficiency

In an age of shrinking budgets and increased scrutiny of client costs, it is understandable that many attorneys will first look to internal resources and research. However, no amount of Internet savvy will help a paralegal or researcher whose sphere of information is limited by the databases available to him or her. An attorney who uses in-house personnel is at risk of missing critical information that could cost the case, the client, or both.

Where Can Professional Investigator help?

Though it may not be necessary to assign every investigative task to a professional, it could be beneficial to consult an investigator for additional recommendations regarding your case. Certain investigators are immensely skilled at locating a subject for a difficult process service, identifying and interviewing witnesses with critical first-hand knowledge, locating personal assets of an individual or business entity or conducting a thorough background investigation on an expert witness.

Conclusion

A legal investigator is trained to pursue information and facts so that an attorney can intelligently proceed in the best interest of their client. In high-stakes litigation, you may be doing your client a disservice by not retaining the services of a professional. While it may be more cost effective to utilize in-house capacity, it is strongly advised to reconsider cutting corners when it comes to gathering information and case intelligence.

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Using a Private Investigator in a Civil Lawsuit: 5 Scenarios

A private investigator is routinely called upon at various stages of a civil lawsuit. The case may not yet be filed – the attorney wants to find out as much information before he or she has to file a complaint. Perhaps the attorney is looking for additional information to bolster the amended complaint. It is also possible that litigation has been going on for years, and the attorney is trying to re-energize his case or prepare for a tough round of cross-examination.

Below are 5 scenarios where investigators were able to provide attorneys with valuable assistance:

The Reluctant Witness

After years of litigation, attorneys were trying to get the last of their key depositions completed. One of the defendant’s witnesses simply refused to appear for his deposition. He claimed that, due to his deteriorating health, he was no longer working and his doctor advised that the stress of a deposition would be too taxing for him.

Attorneys called in their private investigators who quickly discovered that the witness had recently purchased a small sailboat and a sports car. Furthermore, the witness had recently received a speeding ticket for driving significantly over the speed limit in his new car. Additional investigation revealed photos of the witness splashed across the society pages – at galas, regattas, and the theatre. He even tweeted about his recent deep sea fishing excursion. The judge was furious, the opposing attorneys were embarrassed, and the witness was soon deposed.

The Internal Investigation

The general counsel at a major corporation contacted her outside counsel for advice. An executive was suspected of receiving kickbacks from international suppliers. Private investigators were brought in by the outside counsel and they began to conduct discrete interviews and review the executive’s corporate telephone records and email exchanges.

While they did substantiate the kickback allegations, the intelligence led investigators to uncover evidence of a larger cover-up by the executive and others at one of the overseas facilities. There was proof of a significant environmental accident that had been hidden from corporate management and the local government officials.

The Employment Discrimination Suit

An employee of a large corporation alleged that during the workday for the past two years, he had experienced sexual harassment and threats through phone calls and emails. Although the communications were anonymous, the information conveyed to the employee led him to believe that they came from someone within the corporation. When he felt the company didn’t address his complaints and reporting of the incidents adequately, the employee quit his job and filed a multi-million dollar lawsuit against the company.

Through interviews, phone records, and intelligence gathering, investigators were able to narrow the pool of potential harassers down to three individuals. The employees’ company-owned computer hard drives were imaged and searched, revealing documents and an Internet history that supported the employee’s allegations. The lawsuit was settled to the company’s satisfaction. The offending employee was fired, arrested, and named as a defendant in several civil lawsuits.

The Insider’s Secrets

The highly-anticipated release of Company X’s new video game was shrouded in secrecy. All of Company X’s employees and contractors signed non-disclosure agreements and significant security measures were in place at the warehouse and development sites. As a result, there was shock throughout the industry when Company X’s game showed up on the Internet sites weeks before the release. Company X’s sales were half of what they had anticipated. The Company X CEO was furious and convinced that someone had leaked information to their biggest competitor.

Investigators were immediately brought in to review of surveillance, computer and phone records. A tip line was established and numerous interviews conducted. Through significant intelligence-gathering, investigators were able to prove that a group of key Company X executives had recently attended the same Asian conference as their competitors. During that time, the competitors purchased a development copy of the game and other corporate information regarding Company X. A criminal investigation commenced and Company X immediately filed a civil lawsuit against its competitor.

The Class Action

Two neighbors approached an attorney with complaints about recurring problems and broken parts in their dishwashers. The appliances were the same model, manufactured by a national company and serviced through regional centers. The attorney brought in investigators who were able to locate and interview people who had previously worked for the manufacturer and the service centers.

Many of the witnesses spoke of a systemic problem that was ignored by corporate management. In fact, several of the former employees had also owned that model of dishwasher and suffered similar problems. Using the information from the investigators, the attorney filed a class action lawsuit and eventually obtained a large settlement for his clients and class members.

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