Working PI
by Kelly E. Riddle, Kelmar Global
If you have been a private investigator for very long, chances are you have received a subpoena to produce “any and all” documents, video, notes, invoices, communications, and emails, including everything but the kitchen sink. So, what is your duty to your client without violating the subpoena?
The initial question relates back to the beginning of your relationship with the client as well as licensing regulations. The very essence of our profession, being private investigators, means we have a duty to protect our clients and the information we develop on their behalf. Confidentiality is at the very core of what we do. This duty usually extends to third-party information received during the investigation on behalf of your client. A good contract should spell out the client’s duty not to interfere with or intentionally mislead the investigator. Likewise, the contract should specify the investigator’s duties related to client confidentiality. In many states, the licensing regulations, as well as the code of ethics, specify the duty to maintain confidentiality.
Documents created during the investigation and especially any correspondence with the client or final reports should include “Privileged and Confidential” or “Privileged and Confidential, Prepared at the Direction of Counsel.” This should also be in the subject line of emails. It should be noted that just because you post this assertion doesn’t mean that it fits into the confidentiality interpretations. Confidential information includes all recorded information that is non-public, including notes and copies in both digital and printed form. Anything that could adversely affect the client or should require legal analysis would be deemed confidential. In a high-profile case or one you know is destined for depositions and trial, even communications between your staff should be marked privileged and confidential. The adage, “better to have it and not need it than to need it and not have it,” certainly applies in this scenario.
Once an investigator receives a subpoena, the client should immediately be notified. This provides them with an ample opportunity to file an objection. A good tactic when issuing final reports can be the use of the investigator’s initials instead of their names. In doing so, the investigation agency will have to be contacted ahead of time to determine who the investigators are so they can be issued a subpoena. This provides an opportunity to determine that a subpoena is in the making.
Regarding the argument of work-product, in the case John Gross and Company, Inc., et al. v. Agri Stats, Inc., et al (U.S. District Court – Northern District of Illinois Eastern Division), the court ruled on whether the work-product doctrine, or other limits on civil discovery, applies to protect investigative work. The investigation was conducted through a third-party who retained investigators shortly before the filing of this action and apparently before a named plaintiff engaged a law firm to file the lawsuit. The court ruled that it did not matter if the investigators were hired prior to the client hiring legal counsel as long as it was done “in anticipation of litigation.” The work-product doctrine therefore extended to the investigators’ work on behalf of the client according to the ruling.
In situations where you suspect you may have to provide a deposition, you should discuss the fees associated with this, as well as the client paying for an attorney to represent you. An attorney hired by your client has the legal and ethical duty to watch out for their good. The attorney can “assist” you but if an issue arose requiring them to choose between you and their client, their duty is clear. Some opposing attorneys are very aggressive and having an attorney present to represent your interest may be money well spent, regardless of who pays for the representation.
Finally, at some point you must respond to the subpoena. If you supply documents such as emails, invoices or similar documents, these may be confidential and in violation of your contract, regulations and ethical responsibilities if provided. Responding to the subpoena by providing a copy of your final report and video obtained during surveillance is pretty standard. You should also make sure that what you give them is the same as what was given to your client.
Speaking of video, it is becoming way too common for investigators to shoot video with their cellphones. Understand that you may be required to turn over the camera used for taking video so a forensic analysis can verify the authenticity of the video.
Turning over your personal cellphone would be detrimental. If you are going to shoot video with a cellphone, make sure it is an old one that has been reset to factory settings and cleaned up.
The investigator has a duty and a legal responsibility to answer subpoenas and to notify the client before doing so. It is important to understand how to ensure you maintain client confidentiality while abiding by the subpoena.
About the Author
Kelly E. Riddle is the President of Kelmar Global Investigations and has more than 40 years of investigative experience. He earned a Bachelor of Science degree in Criminal Justice from the University of North Alabama. He was chosen as the “PI of the Year” by the National Association of Investigative Specialists, while PI Magazine named Mr. Riddle the #1 PI in the U.S. Kelly is the past President of the Texas Association of Licensed Investigators and is on the Florida Association of Private Investigators Advisory Board. He founded the PI Institute of Education in 1989, which provides online learning. Kelly has published 14 books, over 40 articles, and spoken at over 650 events.
We’re always listening. Send your story submission/idea to the Editor: kendra@orep.org.
