Tag Archive for: investigations
Finding Phone Records: Usually Out of Bounds
Last week, the Associated Press reported that the Department of Justice had obtained confidential phone records for more than 20 telephone lines used by the staff of the Associated Press while investigating leaks of classified information. …
The Masters: In Golf, Facts and Law Just Like in Real Life
There has been no end of snobbery over the years that makes fun of the conservatism of golf: so much space to serve so few athletes, the cost to the environment, the exclusivity of the private clubs, and so on. But this fascinating New York…
Taping Phone Calls Is Not Worth the Risk
Clients often ask us whether we tape-record phone calls we make in the course of an investigation. Our brief answer is, “never.” Here is why: Recording could be illegal. Some states allow tape recording conversations if one of…
The Ethics of Using Social Media in Investigations
Investigators need to be familiar with all the ins and outs of social media sites in order to best help their clients. For example, through social media we've tracked down witnesses for litigation and beneficiaries of wills and trusts. Social media is a great tool for uncovering evidence of adultery in a divorce case. In addition, social media can provide evidence of intellectual property infringements or corporate policy violations.
Unfortunately, keeping up with the changes in social media technology may be easier than keeping up with the changes in Internet law. The legal community and the courts are still trying to figure out how social media, free speech, legal ethics and privacy laws intersect. In fact, it seems like every other week there is an important judicial decision or ethical ruling regarding how social media can and cannot be used in legal and corporate investigations.
Case in point: earlier this month a federal judge in California significantly curtailed the social media postings that defendant Home Depot could obtain in an unlawful termination case brought by a former employee. The Southern California magistrate judge explained that the federal rules dictating that electronic document requests be specific and directly relevant to the lawsuit apply to social media postings as well. Therefore Home Depot's expansive request for all posts that reveal the plaintiff's emotional state and every photograph she posted on her social media accounts was impermissibly broad.
So what sort of social media information can investigators working for attorneys obtain for their clients? State Bar associations have been wrestling with this issue for the past several years. The general consensus appears to be that any information that a user made publically available to all members of a network can be obtained without restriction. (see the NYSBA Opinion #843 (9/10/2010) and Philadelphia Bar Opinion 2009-02 (March 2009)) This means that everything is fair game if the user's privacy settings are turned off.
But what happens if the social media user has privacy settings that block access to anyone who is not a "friend?" In those cases clients will ask if we can overcome this pesky restriction and friend the person using an alias. Our answer is always an unequivocal "No, we can't."
Legal ethics decisions dictate that neither an attorney nor an agent working on their behalf, like an investigator, can gain access to any secure information if doing so requires either directly or indirectly deceptive behavior. This means an investigator can't use an alias and pretend to know the social media user in order to be deemed a "friend" and be granted permission to otherwise restricted information.
Keep in mind that even if the investigator does not use an alias, the act may be deemed unethical. This is because the investigator has omitted a material fact to the social media user--namely that they were being contacted solely to obtain information for an attorney to be used in a pending matter.
The issue is much more complicated if the social media user is a represented or unrepresented party in a pending litigation. If the person is a represented party, then under no circumstances can they be contacted without the prior consent of their lawyer. And if they are unrepresented, then the lawyer can't claim that they are disinterested in the issue at hand. Furthermore, if the user is unrepresented, the lawyer has an obligation to correct any misunderstandings as to their role and to ensure that they don't offer any legal advice if the social media user's interests conflict with those of the attorney's client.
Good Investigations: A Second Opinion on Most Everything
Good investigators are not necessarily smarter than the people they help. What often makes a good investigation is one in which "known" facts are independently evaluated once again. Just as we sometimes want a second opinion on a complex medical or legal matter, gathering and weighing the credibility of facts can also benefit from a fresh pair of eyes.
Foreign Due Diligence on U.S. Companies is a Must
We have had a number of recent cases involving foreign companies who entered into large-scale sale agreements with American-based corporations. These companies are run by sophisticated, experienced executives. In most instances, the agreements…
Strategy Tips for Asset Searches
Recently we were hired to track down a man who defaulted on a million dollar judgment against him by our clients. The man's family owned and operated a successful retail business. Since the judgment against him, the man had declared…
Staying Afloat in a Sea of Data
Adam Davidson recently wrote "Making Choices in the Age of Information Overload," for the New York Times magazine where he explained how consumer choices have changed in the Information Age. With so much data about a potential purchase—from…
Sorting and Unsorting Facts
Context matters. We know this instinctively, and yet somehow we forget. We still tend to assume that facts live in their own separate bubbles. So when we research and analyze, we warily keep our findings in separate categories—information…
The Investigation Starts With the Client Interview
We have written extensively about the importance of good interview skills, in our blog entries "What Greg Smith and Goldman Sachs Tell Us About Investigations" and "Hiring Due Diligence Should Include an Attitude Check." Professionals…
