There are a number of misconceptions about what a professional private investigator can legally obtain. These myths may begin with your matrimonial client’s insistence that her husband has secret bank account, or your colleague has boasted about how his investigators found the smoking gun in the opponent’s phone records, or it’s possible that you picked up some ideas from the latest corporate espionage page-turner…
No matter what the reason, you need the information and you need it now! So why can’t your private investigator get it for you? Typically, there are two reasons for this:
First, the information may be private and protected by either state or federal statute. In this case, your investigator may be able to identify where the information is located. Location is extremely useful information for leverage in negotiations, future subpoena requests, or discovery motions. In some cases (e.g. employment or insurance fraud investigations), you may have a previously-signed release from the subject that will allow you to access this private information.
The second reason is that the information simply doesn’t exist. The information may not be compiled into a single database or a comprehensive format. An investigator may ultimately be able to obtain the information, but the process isn’t as simple as you might think. Here’s the list:
- Banking and Financial Records
There are two things to consider here – where are the accounts and can we gain access to account-specific information? First, there is no comprehensive registry of bank accounts in the United States and identifying undisclosed or hidden accounts is no small feat. A seasoned investigator may be able to identify accounts linked to an individual through interviews, public records searches, or other legitimate investigative techniques. Once accounts are identified, legally obtaining account-specific information is nearly impossible without a court order or the consent of the account holder. The Gramm-Leach Bliley Act, passed in 1999, imposed strict penalties for individuals who obtain information about a third party account through pretext or deceit. Check out Fred Abrams, Esq. post on Violating Federal Law In Asset Search for a great case study. - Credit Information
In recent years, the federal government has placed a number of restrictions on the ability of third parties to access and use credit information. Most important here is The Fair Credit Reporting Act (“FCRA”) and subsequent amendments. FCRA not only restricts how a third party can obtain credit information about an individual, but it also places requirements on third parties to make certain notifications to individuals when certain actions (including employment decisions) are taken using that information. - Nationwide Criminal Records
The closest thing to a nationwide criminal records check in the United States today is the National Criminal Information Center (“NCIC”) database. Access to this database is strictly limited to law enforcement agencies and authorized criminal justice organizations; private investigators and information brokers do not have access to its contents. - Comprehensive Individual Profile
Type “background investigation” into Google and you’re sure to be bombarded with claims of “Only $19.99 for a complete background check!” or “$14.95 for instant background investigations!” Such claims are dangerously overstated – it’s a virtually impossible feat. Buyers beware…these bargain sites generally just pull together information from various online sources. They are not comprehensive and miss many online public records (not to mention those records that haven’t yet made it out of the courthouses and onto the web!). Whatever information is provided in the “investigation” is frequently filled with inaccuracies and extraneous details. - Give legal advice
Our licenses and credentials can easily be taken away if we try to analyze the data given or give advice in a legal manner. This is why we work so well with attorneys or other professionals – data is provided and conclusions can be drawn by professionals in the field.
– Based off of a blog April 26, 2010 by Brian Willingham
So, what is it that we (well trained, licensed and credentialed) Investigators CAN do? Glad you asked:
- Locate People
It may be a witness or an heir. Perhaps it’s a former employee who can shed light on corporate misconduct. Or maybe you need to locate a witness in possession of the proverbial “smoking gun.” Whether you would like to interview, serve, or investigate someone, an investigator can help you to identify and locate the individual. - Locate Assets
Investigators are skilled at locating assets such as real estate, valuable property (artwork, antiques, collectibles, etc.), and vehicles (motor vehicles, aircraft, vessels, etc.). An investigator can also help attorneys to identify the location both domestic and offshore bank accounts (though the details of these assets may not necessarily be disclosed by banking institutions without court order or permission from the account holder – see above. - Leverage for Negotiations
An investigator can pull together key sources and intelligence to inform your side during litigation, an M &A deal, internal investigation, or any other adversarial situation that can make the difference between a favorable settlement and not. - Enforce Judgments
A judgment is only useful if you are able to enforce it. An investigator can help attorneys to identify current assets and any efforts to hide or misrepresent them through the transfer to family members, friends or other parties. - Connect the Dots
Investigators can help you to know who is actually sitting on the other side of the table during litigation or a potential business deal. You can gain immeasurable negotiation power by identifying who is actually behind a faceless corporation or tying together undisclosed connections. - Predict Your Opponent’s Next Move
Through an investigation, you can learn your opponent’s history and patterns of behaviors so as to best predict how they will react under pressure. This will help you to be successful in litigation strategizing, during cross examination, or at the deal table. - Prep For Cross Examination
During preparation for a deposition or courtroom testimony, an investigator’s report detailing your witnesses’ weaknesses, background, and behavioral tendencies may be one of your most valuable tools. This can also be useful in identifying information against your client, so you can be prepared for what may come up during the course of the litigation. - Collect and review electronic evidence
Whether it is an adversarial matter or an internal investigation, investigators may be used to efficiently recover electronic files – including those that a subject believes he or she has successfully deleted. Investigators are frequently used to identify and analyze a subject’s emails, documents, or other files. - Trademark and Intellectual Property Monitoring
Investigators can be used to successfully police a company’s products throughout the world. Counterfeiting and improper diversion of products onto the grey market are just two of the most common areas where an investigator can provide intelligence and assistance. - Reconstruction
A historical reconstruction may be helpful in a number of different areas. Perhaps you need to review the history of a family to locate heirs. It could be a corporate history or a chain of title issue in a real estate matter. Whatever the issue, an investigator can help to identify and piece together long lost documents, facts and witnesses.
Jeffrey H. James is the Founder and Chairman of Homeland Security Consultants and Investigations. Read more