Tag Archive for: investigative techniques
How to Tell Fake News from Real
Every day now, we hear about the woes of readers unable to distinguish between “fake news” and real news, as if undependable news reporting is anything new. Readers and fact investigators have always needed to know how to figure out for…
Where the Electronic Data Are Makes All the Difference
It’s cloud illusions I recall
I really don’t know clouds at all
–Joni Mitchell
Today’s decision by the Second Circuit that Microsoft did not have to hand over data stored on its server in Ireland should remind us all that information…
Brexit’s Prediction Lesson for Investigators
What lesson does the Brexit vote hold for anyone conducting or contemplating fact investigation?
Don’t let confirmation bias muddy your thinking.
One of the key “Investigator’s Enemies” identified in my book, The Art of Fact Investigation,…
The First Mistake was Calling it a Science
There is a sad piece in the Wall Street Journal today about the demise of librarians and university programs in library science, In the Age of Google, Librarians Get Shelved. People trained to run computers do not have the training to gather…
More Proof: People are Bad at Risk Assessment
One of the most fruitful avenues of investigation is to look at material that nobody ever thought would harm them. That’s the kind of material people do not take great pains to hide. Why hide it when it won’t hurt you and there is…
Digital Assets: Worth Money, but Also Great Providers of Information
If you haven’t already, add digital assets to the list of things to look for in asset searches. In a world in which even modestly-trafficked internet domain names can change hands for tens of thousands of dollars, Delaware has become the…
Local Public Records: Offline and On Foot
On Election Day, it's useful to remember that Speaker of the House Tip O'Neill's famous assertion that "All politics is local" can apply to investigations as well.
When we're tasked with a public records search, our clients expect that we'll review federal and state government records. What they may not realize, though, is that an exhaustive public records search also requires digging through local public records, which may be a treasure trove of offline information unavailable elsewhere. Remember, though: There's local and then there's local. Think of it as gradually smaller geographic circles until you hone in on where the person you're investigating actually lives or works.
Confidentiality in Interviews: What You Can Promise and What You Can’t
"Three may keep a secret," wrote Benjamin Franklin, "if two of them are dead." While attorney-client privilege confers a lot of power on lawyers and their agents to keep a secret, the privilege is never absolute. It can be waived by the client anytime, and can be breached in all sorts of ways.
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.
Due Diligence on Expert Witnesses: Assume the Worst
For expert witnesses, websites abound that help to connect a particular specialty with the trial attorneys who may need someone to speak about pediatric cardiology, warning labels, or the particulars of earthquake insurance. Fewer in number are the people who can sort through the experts' backgrounds.
