Fact Investigation Class Notes

Fact Investigation – Class Notes

Focus on 3 things

Basic investigative tools available to counsel or to the investigator
How to work with those tools
The law that relates to fact investigation.

When you want to use an investigator:

What you could do
Ex: you can call an ex employee who was maybe harassed, but the investigator may be better at it.
What you cant do
Sometimes you cant talk to the witness
Or sometimes you will have to put the person on the stand, so better that be a third party not the attorney
If you talk to some witnesses you need to bring a witness, a third party.
In Virginia attorneys cant do some investigations
Then ask,
Who is Better to do the work?
Who is Less Expensive?
Investigator might be more efficient. They do it all the time
How do we do these things without doing something wrong.
Ex: Breaking the law
Wiretapping – privacy laws, state laws are all different on this.
In CA – need 2 party consent to interview someone.
Some forms of Pre-texting
you can’t get phone records using pretext.
Trespass
Ethics Rules
Theft
Need to know the law wrt going thru people’s garbage.
You are responsible for what your investigator does if you send him.
Your evidence might be excluded
Fines
A law suit against you

Skill areas

Interview techniques
Background investigations

Jones Exercise

Want to know these facts
D’s assests
Background of D and P
Policies of the Firm
Has the firm been sued before
What sources can we use to get this info
Ex-employees – they have nothing to lose
Talk to the client to find out
Other litigation
People quoted in any articles about the firm.
Current Employee
Your client might be friends with them.
Public Records searches
Court house – to find previous lawsuits
look up everyone – D, D Firm, Client
Assets
Real property records – all records wrt real estate are accessible. What does the firm own, and the head partner.
Is the prop all mortgaged?
Advantages and disadvantages
Ex-employees
Advantages
confirm story
pre litigation so we can do a confidential investigation.
Disadvantages
they can be hard to find
might lie
Current Employees
They might tell the boss – the other side finds out
They are inside the firm and might be able to tell you a lot.
Court Records
We know they have been sued before for sexual harassment.
Only the cases that went to litigation

Types of Cases where Investigation is used most: bc facts are disputed.

Criminal Law
Personal Injury
Insurance Defense
Employment Litigation

Where investigation is not used much:

Contracts
Family – no fault divorce
Probate
Med Mal

Investigation in the life of a case

Before a suit is filed
Interview clients witnesses
Do you even have a case
Investigate D’s assets
Insurance coverage
Are they financially viable
Home –totally mortgaged?
Investigate D’s and Firm’s prior conduct.
Investigate your client
Intake interview – thorough and complete.
Have you ever been fired before
Public records work -Background
Interview other witnesses
Current employees are more accessible before suit is filed.
After filing the suit
Early confidential investigation vs. early aggressive investigation
Aggressive – P and D can do this
1 or the other will SEND a message
Aggressive – might lead to early settlement
Summary judgment motions
Using affidavits
Settlement Discussions
If investigation gives you bad facts before the other side knows – you don’t want to go to trial.
know something about their financial situation.
Contact opposing witnesses before the depositions
You get the prelim, the depo and trial
Send investigator to their door
Trial Preparation
Use investigation to get bad facts so that you can keep it out at trial.
File motion to keep it out
Use investigation to lock witnesses into stories
If they change it → impeach w/ prior statements
Investigate opposing witnesses background
Felony convictions?
Similar misconduct?
Contradiction in testimony
Experts
Investigate their background
Do they have their degree in reality.
Shape the experts work with investigation.

Post Trial
You win
Investigate their assests
You Lose
Might want to talk to the jury
You might be able to change the outcome
D counsel gets hit with big verdict – jury investigation might be able to ↓ the verdict
Look for jury misconduct

There are always limits to what you do.

January 22, 2007

Privilege

Who has it, who can claim it, and what is covered by it?
What are they?
Attorney client
Work product
Spouses
Sometime child parent
Priest Pentanent
Is there a PI privilege?
There is a duty of disclosure on certain things, but no privilege.
Who gets to assert the priv?
The holder of the privilege and their agent.
PI can assert ACP or WPD?
When is the investigator the agent?
Employee who talks to atty – priv. but is PI is a subcontractor there might not be priv. so the incentive is to employ PI’s so that they become your agent.
Before PI starts working for a co, there is no priv to protect them. You can take their depo.
If client hires PI there is no priv. this is why the Atty should hire the PI not the Client!! The client can pay for the investigator as long as you hire them.
We want priv so that the work is not discoverable. You want the other-side to have to work for the info, you don’t want to have to give them your entire investigation file. You want them to have to ask the right questions.

MR 5.3

Covers non-lawyers, paralegals, secretaries, bookkeepers.
Read the comments for the exam

Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Comments:

[1] Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

[2] Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with the Rules of Professional Conduct. See Comment [1] to Rule 5.1. Paragraph (b) applies to lawyers who have supervisory authority over the work of a nonlawyer. Paragraph (c) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.

MR 1.6 – Confidentiality of Information

Does PI have obligation that atty does to reveal the info if imminent bodily harm is likely to result? We don’t know. PI should give this info to the atty. If the atty does not agree you should try to find another atty in the firm.
Standard – imminent bodily harm or death.
Does suggest that a lawyer can reveal info to avoid a serious act of fraud.
Rationale – if atty knows they are essentially participating.

MR 3.3 – Candor Toward the Tribunal

What if PI is in court and hears their atty say something that is fraud – the PI does not have to say anything under this rule.
This rule applies to the atty.
The investigator usually does not have to speak up. The pi should go to the atty.
If the pi tells the atty they were wrong, the atty should correct themselves.

MR 3.4

(a) is important – if the PI takes or move stuff you might be altering their access
(f) – if you don’t want witness to talk to the other side you should: (bc often you can’t request a witness to not talk, see rule for when you can ask them not to talk).
The client can call her friends and tell them that if they talk to d atty they will hurt her case. client must say that they CAN talk to the other side, but they have no legal obligation to talk until they get a sopena or a notice of deposition.
You can always tell people the law.

MR 4.1

Be honest about who you are but might not need to volunteer the info. PI should not make specific misrepresentations. But is this not allowed?
You can use this rule to get info in that you otherwise would not be able to. Ie, send info to opp counsel showing the doc works at UCLA when they before claimed he did not in order to keep info out. They can no longer claim this in court.

MR 4.2

You cant go talk to people who are repped by counsel.
Who is represented by counsel?
If a co is repped by counsel, are their employee’s repped? It depends on their position in the company.
Upper level management – dept manager is represented so atty can’t talk to her but your client, an employee can talk to her.
You can talk to low level employees
Talking to them might hurt their job, so try to get the info in another way if possible.
Remember PI’s actions are attributable to you if he breaks the law.

MR 4.3

If there is a misunderstanding, you have to tell the unrepped person what you are doing.

Flynn Case:

Investigator tries to claim 5th amendment. Court says no based on legislative intent.
Law firm gets rid of trash with private service and there was a PI going thru the trash. They want PI to have to tell the identity of his employer. PI claims § 7539.
Holding: PI does have to reveal identity of his employer. Bc this is not info acquired for the client.
Court does not want to shield the employer from liability. This case is based on practical result.
Sets up who is responsible for actions of PI? The court wants to know who is behind the PI’s actions. This can result in atty and client liability.
You are responsible for actions of investigators especially when you send them to do things.

Noble Case:

PI went into hospital room to talk to P to get a certain persons address. P brings invasion of privacy claim.
If PI screws up you are not liable, but if there is a plan that you took part in to investigate people’s rights then you are on the hook.
Also if you know the PI is not competent bc they have screwed up before or if you talk to previous client –you might be liable. You should set out guidelines for the PI and make sure that he knows them.
Pg 3 – a Georgia ct held an investigation in a intimidating manner – not okay. Improper surveillance, invasion of privacy. We don’t want people to feel scared so the court takes this seriously.
Torts in this case: that a PI might commit on your behalf due to negligent supervision. Make sure to discuss these standards with your PI.
Invasion of privacy
Trespass
Assault and battery
Wrongful arrest/imprisonment – usually happens with possible shoplifting. If people have the impression that they can not leave.

Wilson Case:

Bc PI went and asked questions – this is discoverable. Had it been the atty, this would have been work product.
When the client/insurance company hires the PI the work product rule and priv does not apply – there is no priv info communicated

February 12, 2007Prof. Quinn

Going to ct of appeals on a writ – you addressed the issue at the TC

Writ of mandamus– you are asking a higher court to instruct a court or a civil servant to do a thing.

Going to the ct of appeals on appeal – saying you think the tc ruled the wrong way in the case.

Following cases are about documents

Wellpoint Case:

Procedure of what has happened prior to the writ –
There is no complaint or answer on file – they are in the lower court because the D demurred and the case was dismissed w/o prejudice.
You file a complaint – usually the other party will demurrer – the court can grant it in full or in part. If in full – the case is over, but without prejudice you can re file the case. if in part w/ leave to amend – you can amend your complaint.
If the answer is filed and the complaint is dismissed on demurrer the answer is bounced too.
The parties are fighting about the demurrer, they have also begun discovery – issue of whether they are entitled to the docs in the investigation. There are 2 parallel tracts in this case before different groups. One judge ruled on investigation. The court issues a ruling but they could have said this was moot.
In both cases – they talk about privilege logs. This is a chart that describes the documents that you won’t disclose.
Put date, what it is (if letter who it is to and from), the substance of it, and the privilege claimed (atty client, work product) give then enough info but not too much.
Some courts allow a review of docs to determine if it is atty client privileged.
Purpose of log – so both parties know what they are fighting about.
You don’t want to release info that you are trying to protect by giving too much info.
Facts:
You can be fired, but they cant fire you bc of your race, sexual orientations, origin, religion,
Here – P claims he is fired because of his race. He complains about a crime – he is a whistle blowers. You are not allowed to fire people bc of this.
D has a law firm investigate the claim and P wants info from the investigation. The firm says no claiming atty client priv. the employer also refuses.
P goes to discovery referee – and he said the priv does not apply.
D takes a writ and the court says there might be a priv.

Why does it matter if there is a complaint and answer?
Relevance – need to determine the scope of the claim thru the complaint. And need to answer because one of the possible aff defenses is “we did an investigation and it is what we rely on.” If they claim this the other side should be able to look at the docs from the investigation to determine if the investigation was okay.
You want to know who they talked to and was it a coercive situation. Did they interview an employee with a boss in the room, was it a glass conference room, what were the questions that were asked. Need to see how the investigation was handled. Were people told that it had to be confidential, were they offered confidentiality. Atty can coerce people and if you are going to rely on an investigation – need to see if was done right.

Does the court say that the priv could ever apply? Standards for when the privs apply
Atty Client -
Here atty is working for employer and they are talking to ee’s. may or may not be their atty.
The atty client also applies to legal advice when no litigation is threatened, for it to be priv where corp entity is the client the dominant purpose must be for transmittal to an atty in the course of professional employment. (pg 5) need to give info for the purpose of getting legal advice.
Here, atty evaluated the info – looks like both priv.
Here, company hires atty to do the investigation to obtain legal advice. With the legal advice they get – they have the lawyer write a letter to discourage to suit.
Argument – argue all ee were covered by atty client priv bc they are the only way to communicate the info to the atty. You can claim ee are clients even if this is usually not the case.
Here they want to rely on this info to show they are responsible.
Is this priv waived?
Atty does not get to waive atty client priv, client does
Who waives work product – atty but only do it if the client wants you to.
Distinction that the court looks at?
Atty’s work as a PI and his work as an Atty.
Quinn thinks this is an unnec distinction.
But court wants to make sure that just bc an atty does something it gets the atty client priv or WPD priv.
If the atty investigates and gets non priv info – it does NOT become priv.
Thus the q is not was the atty acting in a legal capacity, the q is what is the nature of the document.
When Atty goes out to investigate is he getting priv or non priv info?
We don’t know – need priv logs. And the other side needs to know the facts.
If the atty does not want to give the notes that might be priv on the investigation the atty can insteadgive them access to the same people.
This is expensive

Determining if the info is protected under a priv
Pg 6 – party claiming priv need to est the PF case
What is the activity of the client? Is the client going to rely on what happened in the investigation as an aff defense, or a defense then the client will have to disclose what happened in the investigation.
If an investigator has done a report- it will usually be discoverable bc it is an act of preservation.

Montobello Rose Case
Lawyer investigated in a way could have been done by non atty so the court says this is non priv. Quinn thinks this is crazy.

2 privileges