The World Still Turns
The film noir image of the hard–bitten private eye does not feature him (and it is always a him) sitting at his desk looking through documents. He is out and about, whether following the bad guys down some dark alley or trying to wring a lead out of some character over a whiskey in a dimly lit bar. A pandemic would have forced Sam Spade to hang up his raincoat for good.
Not so the modern shamus. While COVID–19 has caused tremendous disruption to business as usual, business is still being done. Due diligence needs to be performed, whether for transactions set to close before the onset of the pandemic or for deals that have grown out of the crisis, such as workouts and refinancing arrangements. Many courthouses are closed, but litigation continues, as motions are filed and discovery is made. Even in the upside–down markets, parties act to limit exposure and to take advantage of opportunities. Activists and short–sellers are about.
Clients continue to seek the assistance of investigators and, fortunately, being unable to pound the pavement is no impediment to conducting an effective investigation. While COVID–19 presents some obstacles, they are not insurmountable.
The Way We Were
Our general investigative protocol has two phases. The first is open source research, a review of all information in the public record about a subject. This includes research conducted on the Internet; in digital records maintained by vendors; in proprietary databases; in archives maintained by government agencies; in clerks’ offices; and in records repositories. Thorough and thoughtful open source research can provide a good picture of the subject and her activities, and can also give an accurate picture of her reputation and trustworthiness.
Inquiries with sources—talking to people—are often used to augment open source research. These inquiries take two forms. First, investigators speak with confidential sources, typically individuals with whom they have previously worked and whose discretion and reliability are unquestioned. Second, investigators can talk to knowledgeable third parties identified through open source research. These sources might include former colleagues or employees, business partners, creditors, and litigation adversaries. Properly used, material developed through source inquiries can fill in gaps and provide context to information derived from the public record.
Adapting to the Pandemic
The approach to conducting an investigation during the coronavirus pandemic is not significantly different.
The protocol for online and desktop research is the same—the Internet, electronic databases, and online court dockets remain available for review. Some adjustments are warranted, notably for court filings and property records. Federal courts and many state courts use e–filing, meaning case documents are filed and can be retrieved online. However, some state and many local courts do not use e–filing, and only a docket may be available online. Further, criminal records maintained online may be incomplete. In many instances, property records and mortgage documents are not available online from the local recorder.
Savvy investigators can work around these obstacles. Property records are sometimes available online, for an additional fee, from subscription services. Criminal records can also be identified, and related details learned, through creative workarounds. In a recent case in which COVID–19 closures delayed civil and criminal record research in the town where the subject resided, we discovered that the town newspaper published a weekly police blotter in which the subject had been named a few years earlier. While court records were unavailable, the local police department provided the arrest report in response to an email request.
People are now turning to social media in unprecedented numbers to communicate with friends, family, business associates, and colleagues. This heightened social media activity provides a trove of timely information about a subject’s activities and associations. A smart investigator will search various internet platforms to develop information about a subject.
Let Your Fingers Do the Walking
With courthouses closed, source inquiries have become more important than ever. A former litigation adversary, work colleague, or business partner can provide information contained in now–inaccessible court records and add background and context to the information already developed about the subject.
But what’s the right approach? The most effective practice is to approach people in–person. In our experience, this method produced the best response rate, as people are typically more responsive to an investigator who appears in–person, on their doorstep. It is just too easy to hang up the phone.
The pandemic has changed the calculus somewhat. Cold–calling is now a critical tool. Increased reliance on the telephone has made people more receptive to phone interviews, as “social distancing” requires using electronics to communicate. And the telephone is not the only medium through which investigators manage to contact sources. We’ve recently interviewed sources and witnesses via Zoom, FaceTime, and messaging applications.
Nimble Sleuthing Will See Us Through
Even before COVID–19, modern investigative work bore scant resemblance to Sam Spade’s approach. As illuminated by the current crisis, the need for thorough, creative research never ends. Luckily, agile professional investigators have adapted to this challenging environment and will continue to provide the answers their clients need, even without pounding the pavement.