Litigation Support – White Collar Fraud Investigation – Corporate Fraud Investigation

The Immeasurable Value of Witness Interviews in Civil Litigation

Witness interviews can be one of the most valuable sources of information in civil litigation.  Most people envision a “witness interview” as the clichéd scene of an investigator grilling a suspect in a tiny, dingy police room with a single bulb hanging from the ceiling. This image is ever-present in cop shows and typically involves some type of criminal activity, usually murder, arson or something equally disturbing and dramatic.  And, admittedly, it’s good TV.

Far less riveting, but equally as valuable, are the interviews private investigators conduct with witnesses in civil cases.  It’s not that the details are unimportant, but the review of  P&L statements, sales projections, and employment contracts or digging around for background information on a witness can seem fairly dry to anyone not involved in the case.

Whether working on behalf of the plaintiffs or the defense, information provided by witnesses in civil cases can verbally corroborate what is discoverable, such as emails, financial statements, memorandums, and contracts, as well as reveal vital information not found on paper.

For example, in a securities fraud case, it is useful for the plaintiffs to know if the defendant CEO’s email inbox has in it damaging financial reports that were generated by the finance department.  

But, it is far more useful if three current or former employees reveal during their interviews that the CEO was seen reading these finance reports every day.  The CEO can no longer claim that he or she did not read the damaging information about the company just because it was sitting in his email inbox.  The plaintiffs know the reports were read because the witnesses confirmed it.

Why does the use of a investigator to assist with interviews in civil litigation makes good sense?

  • Early in the process, investigators utilize numerous tools to identify potential witnesses, including proprietary databases and extensive networks of industry sources. Additionally, investigators can find contact information, such as an addresses or phone number, for a witness—even if they are hiding.
  • Private investigators are careful to adhere to state laws when meeting witnesses in person—especially if they must doorstep (showing up at a potential witness’s home, place of work, or a scheduled event unannounced to see if the witness will speak with them).  Done right, this is an effective strategy.
  • Investigators also adhere to state laws when cold-calling witnesses or interviewing witnesses expecting their call. For example, there are strict laws regarding when a call can be recorded. These laws vary state-by-state.
  • Investigators are careful with their interview notes and understand they are likely discoverable.
  • Lastly, but probably most important, investigators know that a witness must be treated well.  If the witness is unable to trust the investigator or feels taken advantage of, they are likely to disappear or flip—scenarios all investigators work hard to avoid.

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Reasons to be Thankful for Corporate Investigators

Since most are already in the spirit of giving thanks, here are some reasons why a corporate investigator can make you feel very grateful!

We go through the trash so you don’t have to…

We will determine the legalities, abide by them and then grab that trash. A goldmine of information can be found mixed in with your target’s half-eaten bologna sandwich.

We can help stop bad deals and make you look good…

We’ll provide you with information on your target that reveals financial solvency, civil and criminal history and overall reputation in the community.  This will help you move forward with the best decision…and make you look brilliant in the process.

We find witnesses who help win cases…

In an internal investigation, or litigation, a witness can be infinitely more compelling than any document. At the very least, a witness can help connect the dots in a case or corroborate what’s you have already got on paper.

We conduct background investigations that spare you embarrassment, financial hardship and a hit to your reputation…

Whether it’s a potential new employee or a board member, our background checks are thorough.  We dig deep—interview sources, personally search the courts and extend the searches back several years to insure you get as much data as possible.

We help you stay ahead of the competition…

Using clever, but legal techniques, we’ll tell you what those bastards are up to!

Does your target have assets?  We’ll find ‘em…

Whether we interview Harbor Masters to find a boat or pour through property records, we are creative and know where to look.

We employ old school investigative techniques and advanced technologies at the same time…

We will knock on as many doors as it takes to find a witness or use sophisticated computer forensics to find emails that have been deleted.

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Finding the Best Private Investigator With the Right Skill Set

Say the word private investigator to anyone and most people envision the stereotypical fedora and trench coat wearing, wisecracking, cigar-chomping “old school” street detective. But technology advances have created a “new school” of investigators who mine data, the Internet and various database sources to gather information. Although every case is different, most situations need skilled investigators who have the best skills and experience in both types of investigative work to make the case successful.

The Old Gumshoe

We’ve all come across a private investigator we would consider to be an “old school” investigator. Like Sherlock Holmes, Columbo, or the esteemed members of Scooby-Doo’s Bloodhound Gang, these investigators know how to talk to people and extract the right information. Using their astute observations, logic, and deduction, they have the potential to break a case wide open. Many of them have worked in law enforcement or intelligence posts in the past and they have innumerable hours of interrogation, interview, and surveillance experience.

Old school investigators are extraordinarily useful in many types of cases, but they do have their limitations. Having boots on the ground can be expensive, increase the potential that the subject will be tipped off to the investigation, and without knowing the best questions to ask, clients can wind up with investigator who drifts into an ethical grey area.

New School Investigator

Members of this newest generation of investigators are intelligent, tech-savvy researchers who can pull together and analyze large amounts of information from online sources. As technology has allowed investigators to access more and more information online, clients have increasingly found that this type of investigation meets their due diligence and investigative needs. Online and remote investigations are discreet, economical, and can be extremely thorough. In many cases this is a good start and all a client will need, but in other cases, online and public records investigation will reveal a clear need for field work.

Can you really have it both ways?

Certainly! Any number of cases may benefit from a combination of both old school and new school techniques. It simply takes the right person or team to do it. While it may be hard to imagine Columbo shelving his interview techniques in favor of sitting at a computer terminal conducting a comprehensive background investigation on a witness, it’s easy to imagine a present-day Sherlock Holmes walking around with an iPhone and consulting Lexis-Nexis or checking out their Twitter account before heading to a witness interview.

There are a number of skilled investigators who have experience in both old school and new school tecniques. Some firms have decided to hire specialists in each of the areas and can assign investigators with various skills to a single case. Clients need to be able to communicate their needs and work with investigators who have the right skills to make the case successful.

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Expert Witness Background Investigation: Discrediting the Witness

In high stakes litigation, an expert witness background investigation may uncover information that could potentially discredit the expert witness and ultimately lead to a favorable outcome.

Pretrial discovery provided you with the opposing expert’s CV and details about his compensation for testimony. You may have Googled the expert witness or pulled up a few of his articles on Google Scholar. But what does this really tell you about your adversary’s expert? What do you truly know about your own expert, for that matter?

It’s easy for anyone to do some basic searches and get a “snapshot” of the expert that will be on the stand. It’s even easier to rely on the information provided by the expert. But what are you missing? Unless you find a glaring discrepancy or a front page scandal, basic research won’t provide you with the ammunition to discredit or disqualify your adversary’s expert.

In a comprehensive expert witness background investigation, an experienced investigator can dig deeper into the background of an opposing expert witness to help you on cross examination. In high stakes litigation, you should assume that your opponent is doing the same thing – what will they find? Investigating your own expert may prevent potential problems at trial and you will be better able to anticipate the other side’s attack.

Below are some areas that could be uncovered in a expert witness background investigation that could potentially discredit the witness:

The CV

Verifying the veracity of the information in the expert witness’s CV is a good, basic starting point. It is critical to know that the information contained in the CV is complete and accurate.  In addition to verifying “directory information” of former affiliations, organizations and educational institutions, investigators can also speak with former colleagues or associates, learning additional details about the expert.

Affiliations and Conflicts of Interest

In the past, attorneys have tried to obtain information about experts’ affiliations and monetary arrangements through discovery. As judges begin to limit the scope of discovery motions this tool may not always yield useful information. Having an investigator dig into an expert’s affiliations (e.g., organizations, educational institutions, employers, business partners etc.) may reveal conflicts of interests or other information useful for discrediting the witness.

Prior Statements

Pulling testimony in cases is time consuming, and frequently requires personnel to go to the court in question, but it can be a goldmine of information. Contradictory testimony in prior cases is, of course, a fantastic way to discredit a witness. Attorneys should also consider using other statements by the expert made in the media, scholarly articles, and other sources.

Past Acts

In the past there have been notable examples of discredited experts throughout the United States and the world. Prior criminal records and a history of work issues have come to light both in the United Kingdom and in the San Francisco forensic crime lab. In Florida, psychologist George Rekers’ testimony in numerous parental rights cases, was called into question.

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Hiring a Private Investigator? 6 Questions You Need to Ask

Hiring a private investigator is probably not something you do every day – not every attorney, investor, fund manager or individual has a private investigator on retainer.

In fact, you may rarely find yourself in a situation where you need a private investigator.  However, those tend to be the situations where it really counts.

Of course you want the best investigator you can get…but what does that really mean?  Here are some questions you should ask before hiring a private investigator.

Are you licensed and insured?

Every state has different requirements for licensed private investigators and the scope of the work they may perform.

Both the client and investigator have a responsibility to be aware of the laws in the states where the investigation is to be performed.  Investigators should also be able to provide proof of liability insurance.

Can you provide references and work samples?

Most experienced private investigators will be able to provide you with references and samples of several different types of cases.

It is important to understand that, due to client confidentiality, there is a good chance that work samples will have identifying information redacted or the facts of the case changed to protect the subjects’ identities.

However, samples are helpful to see the quality of the reports, the thoroughness of the investigation, and the various sources utilized by the investigator.

Who will handle my case?

In many cases, the experienced professional private investigator will manage the case and delegate lesser investigative tasks – or even the entire case – to other individuals.

It’s important that you know who will handle the case, and request information about their experience and background.

Request examples of their prior work and obtain an understanding of how closely the primary investigator will supervise the case.

As we’ve noted here previously, if there is an international component to the case, you need to ask your investigator detailed questions about the capabilities of the investigator’s international contacts (see related post International Background Investigation – What You Need to Know).

Do you belong to any professional organizations?

Many investigators belong to membership organizations such as the Association of Certified Fraud Examiners (ACFE) or the National Council of Investigation and Security Services (NCISS).

These organizations offer rigorous training and certification for investigators, have codes of ethics, and other education and experience standards for membership.

Do you use “shady” or unethical methods to obtain information?

Between a fully above board investigation and illegality lies a vast grey area.

Over the years, many clients have found themselves embroiled in scandal because of their investigators (e.g., HP , Anthony Pellicano, and others).

It is important to set parameters for your investigator at the outset – ideally through an engagement letter that explicitly outlines your expectations and requirements before.

Both you and your investigator should be aware of the laws in the jurisdiction where the investigation will occur.

Will our communications be privileged?  Do I need to tell you everything?

Privilege laws for investigator-client communications also vary widely by state.

Clients and investigators should be familiar with the particular laws in their state.

When it is an attorney who retains the investigator, additional legal work product and communications privileges may apply.

Of course, an investigator does not need to be told every detail.

However, providing the investigator with adequate information before hiring a private investigator, and throughout as new developments occur, will increase the likelihood of an efficient, thorough, and successful case.

Summary

Hiring a private investigator is not something that most people do every day. Asking the right questions before hiring a private investigator can help you avoid a potential disaster down the road.

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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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Hidden Asset Search: 5 Not-So-Obvious Sources

Investigative firms are often called upon to conduct an asset search in the context of litigation; whether a law firm is in pre-litigation mode and wants to see if a case is worth filing or to potentially gain leverage in the course of negotiations.  In most cases, attorneys don’t have the luxury of having the legal authority to access information about liquid assets such as bank accounts and investment accounts.

Legally conducting an asset investigation through open sources is one of an investigator’s most difficult tasks. Privacy laws prevent investigators from identifying the most obvious assets (i.e. bank accounts) and people are willing to take extreme measures to hide their financial interests and defraud creditors.

Below are 5 not-so-obvious areas that an asset search can identify records through open source records:

1Real Property

You may be thinking that real property is pretty obvious, considering that for most people it is the most significant asset held in their lifetime.  But identifying the ownership and true net worth (including outstanding loan obligations) of real property may not be so easy.  

Assets may not be held in the individual’s name –  they may be held by a close associate, family trust, family member or shell company.  Real property assets may also be held overseas.  One of the best ways to locate any hidden property assets is through investigator interviews with former colleagues, associates or neighbors.

2Corporate Filings

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.  Assets are often transferred into shell companies to hide them under a corporate umbrella.

3UCC Filings

UCC filings, which are filed with a designated state government agency, are financing agreements between a corporation and a financial institution and typically require an individual or corporation to post some type of collateral in order for the bank to accept the loan.  

A review of the UCC filings can identify collateral such as merchandise and equipment, and in certain instances individuals or corporations will use rare art collections, vintage cars or valuable jewelry as collateral.

4Civil Litigation

A review of court filings relating to civil litigation involving a corporation or individual may not be the most obvious place to identify potential assets.  However, in certain situations an individual or company may have been awarded a large financial settlement as part of the litigation.  

In other situations, parties may have had to supply financial statements or asset information as part of the litigation and that information will be preserved in the public record.  Litigation can also develop a web of professionals, such as attorneys or accountants, who the subject could have utilized to hide assets.

5Divorce Filings

Although divorce records are not available publicly in every jurisdiction ( e.g. New York), in many of the most populated states (e.g. Illinois, Connecticut, Florida and California), divorce cases are available to the public.  

Identification of assets is a typical part of the divorce proceedings and publicly-available documents may contain a wealth of information relating to bank accounts, employment information, investment income and other sources of income.

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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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