Be Prepared for the Subpoena
A good investigator was surprised that on a small domestic relations case – all of his records were subpoenaed in an overly broad overreaching subpoena.
My guess is that he did some excellent work and caused the adversary a “red faced moment” RFM. Thus, the opposing side is not interested in the embarrassing quality of the facts unearthed by the investigator, but rather are trying to find where the investigator has broken a law or bent a rule and use that to challenge everything the investigator has done. That seems to have been the impetus behind all of the subpoenas I have received.
Here is what I have learned in 25 plus years of this profession.
1. You have no right of privacy or privilege granted to you from the state by virtue of an investigator’s license. In practice, it is worse than being a private citizen as now you, as a licensed professional, are required to keep records so that they can be subpoenaed and reviewed by the adverse party, and that includes keeping records under the preservation and production of electronic records laws and regulations of both the federal government and any state version there of. Yes, this means cell phones, email, photos videos, etc…
2. I never accept a case unless we and our work product come under an attorneys’ privilege. Yes, the client is responsible for payment, but all reports are addressed to the attorney. I also ask the attorney, “Do you anticipate that at any time you will wave privilege? I wish to know so I can prepare for a full and proper disclosure if so required.”
3. I have had over 20 (honestly I have stopped counting) subpoenas served on myself and my firm, 2 from law enforcement. The answer to all, the records are all under privilege. Really every single case. Did I get blow back? None from the professional attorneys or law enforcement, and tons on one case that has resulted in a company leaving the US market. Privilege held on all cases. (As a sub note I might ask – who the heck told the opposing side we were on the case, but that is a question I ask at the end of each one of these cases.)
4. If records are to be produced, you need to ask who will bear the brunt of your time and expense for delivering the records; your client, the adverse party or a bit by both. To me – I do not care, but my time (and your time) is valuable and the cost of answering a subpoena needs to be discussed when engaged, ideally, or when the subpoena arrives.
We specialize in multinational financial investigations and due diligence and just by the virtue of the numbers and weight of choices made by people in the possession of our work product we get cross investigated by other investigators and subpoenaed. It is part of the game, nothing more and nothing less, just be prepared for that card to be played and when it is – thus, there is no surprise.