Chapter 2: Investigation

Investigation begins for the lawyer when a client retains the lawyer or notifies counsel that a dispute exists — and this chapter walks through the legal research, fact gathering, and calendar discipline that turn a client's tale of woe into a litigable, arbitrable, or administratively-cognizable claim.

Chapter 2

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The Lord God called the man and said to him, “Where are you?” Then the Lord God said to the woman, “Why have you done this?”

God’s First Investigation Genesis 3:8–13

§ 2.1 Introduction

The advocacy process begins for the lawyer when a client retains the lawyer or when a retained client notifies the lawyer that a dispute exists. Many cases fall within the realm of the litigator’s experience and expertise. Other cases fall beyond a lawyer’s abilities. An advocate in these situations needs to convert capabilities into abilities or refer the case to someone who already has the abilities. Some inquisitive and curious moments spent discussing a case with someone who knows more, even if it costs $600 an hour or a healthy low-calorie organic lunch, will not only bring the advocate up to speed but may save substantial time and effort during later stages of the case.

Lawyers often plunge mistakenly into the initial “urgent” task without gauging the depth of the project. Clients and attorneys both tend to want action and results. Initially serving a summons and complaint may provide psychic satisfaction that may prove superficial or short-lived. Maybe the case has to be arbitrated, or maybe an administrative agency has exclusive jurisdiction. Before commencing litigation—or arbitration or an administrative case—counsel should first review the considerations advanced in this chapter to properly prepare for a case. A plaintiff’s lawyer should take the time necessary to conduct fully appropriate legal research and to complete essential factual investigations. This procedure applies to defense counsel as well, even though time may be abbreviated.

Some cases provide little time for systematic preparation. Legal research and fact investigation are essential to all litigation settings and must be done in a streamlined, sometimes frantic, manner. The client who seeks an immediate temporary restraining order or who first visits a lawyer two hours before the statute of limitations runs presents severe time constraints. In these situations, lawyers will need to adopt efficient litigation strategies rather than ignore the need to conduct necessary legal and factual inquiries. Extensions of time may be available to provide defense lawyers time to do research and investigation.

Whatever occurs, counsel should place on the calendar important litigation dates and events. The applicable statute of limitations, the availability of witnesses, the timing needs of a client, and the forum docket, all need to be reviewed prior to action.

§ 2.2 Legal Investigation

Not all wrongs can be remedied. Some events have legal consequences, others do not. When the client spins a tale of woe, counsel must soon determine whether these facts, assuming as true the client’s story, make for a right to legal relief. Defense counsel needs to make nearly the same judgment shortly after receiving the complaint. Similar evaluations must occur throughout the case as discovery disputes and motions arise. Aware of the potential legal consequences, counsel can choose the appropriate strategy (e.g., a motion to dismiss, a hard-hitting discovery campaign, negotiation, or capitulation).

Normally, some rudimentary legal research should follow basic fact-gathering but precede extensive fact investigation. If the basic facts, even as construed favorably to your client, fail to support a legal right to relief, further fact investigation will usually be futile. At the risk of duplicating your first-year legal research course (and likely not doing as well), we briefly review research sources and approaches.

Much of what will and can be done will occur at a computer keyboard. Research, legal and factual, can be yours via the wonders of the Internet and LLMs. Ah, GenAI traversing and summarizing those websites and social media sources can reveal wonders. But there are limits to what technology can do, which we explain in a bit(!). Getting out of the office, hitting the streets, chatting with folks, unearthing tell-all documents, and being that private eye investigator you always dreamt of being may be necessary. And, of course, you can always visit a modern informational resource center (a/k/a library). You can walk through the racks, locate the right text, blow off the dust, find a comfortable chair, and go back in time.

At the outset, defense lawyers have an edge. They need not uncover every possible legal issue. They only need to assess the legal issues raised by the claimant. Occasionally, a bright and industrious judge will spot and apply a legal ground for relief missed by plaintiff’s lawyer. That’s rare. In addition, even this mythical Solomon must give the defendant an opportunity to respond to the legal issue raised sua sponte, preserving defense counsel’s edge in avoiding legal research. Where counterclaims or cross-claims are contemplated, defense counsel shares the plaintiff’s burden to research and not miss applicable law.

Planning Research. How legal research should be conducted depends upon what the researcher knows and doesn’t know and what is available. Whether research needs to be conducted in a law library, whether you have to go visit a legal guru, or whether technology can help you search the law depends upon what is the most efficient and economical way of discovering or re-discovering the law.

Secondary sources (e.g., treatises, practice guides) have historically sorted and guided practitioners through the primary law (cases, statutes, and regulations). Attorneys sometimes display an undue reluctance to consult books, or perhaps even buy one for the desk or law office. The modern view of law office management tends to discourage use of the printed word on space and cost grounds. But this can be shortsighted. An overview canvassing of the law, particularly “secondary” sources such as treatises and practice books, may require a trip to the local county or university law library, but it may also save a day of potentially fruitless or misleading research that can occur when counsel plunges in without first getting the larger picture. If a book is particularly helpful, buying it (even at law publisher prices) and avoiding future time-consuming physical trips to the research site, may be in the interests of both lawyer and client.

Today, many benefits from secondary sources might be achieved more efficiently and effectively through GenAI. Modern LLMs can improve upon secondary sources by offering real-time updates on case law, statutes, and regulations. Treatises might be updated annually; LLM-backed tools can have the case decided yesterday. Treatises summarize and explain primary law; LLMs can do that, too, going further by applying the primary law’s legal principles to your client’s facts. Traditional research often requires consulting multiple treatises—civil procedure, contracts, copyright—to cobble together relevant legal insights. LLMs streamline this process by consolidating information from various legal domains into a single, integrated resource, saving time and improving efficiency. As such, GenAI can improve upon treatises’ one-size-fits-all approach, instead provide tailored analysis in what might dubbed a “me-tise.” Rather than relying on static texts and time-consuming library visits, attorneys can use LLM-backed tools for faster, more comprehensive legal research.

Of course, your appetite for books or higher-technology solutions might include a variety of factors, including age and passion for physical media. So, whether you rely upon books, treatises, or LLM-backed tools will largely depend upon your individual proclivities, coupled with your clients’ willingness to pay.

*Where to Start? *We do not recommend relying exclusively on Internet research or the use of GenAI foundational models (e.g., ChatGPT), but those tools—coupled with cases, statutes, and regulations—are extremely helpful. Even bare foundational models, alone, are good places to start and consult early and often in the investigation process. A prompt query may yield a lot of applicable and useful information. And if the LLM has yesterday’s case, statute, and regulation, then such a law-backed LLM tool can produce relevant judicial decisions, case reports, statutes, regulations, and summary articles precisely on the issue you are researching. Treatises and practice books are also good places to start, as they help provide an overview to the area and guidance on where else to search, as explained below.

Index Research. Lawyers depend first upon their own knowledge to raise possible legal grounds for relief. Thereafter, they should brainstorm with colleagues. After that comes basic, boring index research studying potentially applicable statutes and the common law digests. Although it may not be the height of the profession’s creativity, this task can test the lawyer or clerk’s mettle. Will the answer be under “strict liability,” “products liability,” “torts,” “negligence,” “punch presses,” “master and servant,” or some other index category? Learning the language of reference sources can make a big difference in the speed and accuracy of early legal research. Local annotated statutes and case digests are usually the best places to begin introductory legal research.

Practice Books. Another preliminary and instructive source includes practice books written for a specialized area of the law and publications (either bound or electronic) that cover the legal waterfront of an area of the law. These sources not only provide citations but also provide textual explanations of basic and sophisticated legal analyses, at times a welcome source of information. Consulting them beats embarrassing yourself by asking a colleague who pauses and after feigning a puzzled look says: “What was your class rank, really?” The danger in reviewing these specialized materials early on in the legal research process is that the researcher may ignore or miss other potentially applicable areas of the law.

Encyclopedias. A search through the index to legal periodicals or other applicable indexes may provide additional and broader sources. Legal encyclopedias such as Corpus Juris Secundum and single-subject treatises such as Prosser on Torts can provide both a general understanding and overview of the potentially applicable law as well as doctrinal analysis and reference to more narrowly focused and detailed sources.

Treatises. If the lawyer already has the big picture of the law governing the particular question but desires more specific information or case citations to support what the lawyer already knows to be the truth, multi-volume treatises with annual supplements usually are most useful. In the pretrial litigation field, the Wright & Miller’s Federal Practice and Procedure and Moore’s Federal Practice treatises are particularly authoritative. Shorter treatises dealing with civil procedure issues may provide faster, simpler answers to initial questions.^[1]^ Other books focusing on the procedural and practical aspects of pretrial litigation may be useful as well.^[2]^ These books may be especially useful because of the increased role that pretrial proceedings, rather than trials, have in most civil cases.^[3]^

Legal Periodicals. Although less pragmatically focused and often given to faddishness (e.g., a symposium on the Law of Kumquats), law review articles may be useful both for assembling information and providing reflections on a legal issue. Print and online lawyer magazines are mercifully much shorter and usually more practical—especially magazines for litigators. Some day you will author an insightful and why-didn’t-I-think-of-this article.

Cases and Statutes. Consultation of these various sources should produce some general rules of doctrine and promising case citations. Yes, one really should read the cases at this point rather than taking the annotated summary at face value. These cases will cite other cases, many of which should also be reviewed. The most important cases, pro and con, should be updated to determine whether they remain good law or have been interpreted further. If leading cases from other jurisdictions are found, legal research platforms will surface similar cases in the applicable jurisdiction. These cases can be traced further using citators, determining whether the specific proposition remains “good law.” In using traditional legal resources, counsel may wish to concentrate on the thing involved in the case (e.g., a punch press), the act complained of (e.g., assault and battery), the persons involved (e.g., minors, or landlord and tenant), the place in question (e.g., public lands), or some combination of these components.

Technology-Enabled Research. Of course, today’s technology revolutionizes the legal-research process. Yesteryear’s legal-research tools were limited to rigid keyword-based Boolean queries, while LLMs replace keywords with natural language queries, allowing attorneys to ask legal questions conversationally. LLM-backed legal-research tools can structure research by summarizing key cases and statutes, customizing the analysis to your client’s facts. Modern tools also improve case retrieval by filtering results based on legal relevance, jurisdiction, and procedural posture, reducing the need to sift through irrelevant cases. Vector-based searches further enhance accuracy by recognizing synonyms and semantically related concepts, retrieving relevant precedents even when your query’s exact keywords are absent. For rare legal issues, LLMs can go beyond simple case retrieval by identifying analogous precedents, providing legal context, and suggesting applicable legal theories. When research involves broad topics (e.g., whiplash injuries), well-designed LLMs prioritize authoritative cases, summarize holdings, and highlight key judicial reasoning, drastically reducing research time and improving efficiency.

Lawyers should take a similar approach when assessing legal doctrines. Historically, the best sources for assessing legal doctrines have been authoritative textbooks and treatises, which provided tables of contents and analytical frameworks. LLMs and GenAI can improve upon that by generating instant, jurisdiction-specific treatises and tailored case law analysis. They can summarize key doctrines, highlight precedent, and adapt explanations to a lawyer’s expertise, reducing inefficiencies in traditional research. For example, you can provide your clients’ specific facts, and LLM-backed tools can provide relevant and analogous cases, summarize holdings, and compare reasoning across jurisdictions, all customized to your facts (and analogous facts). By contextualizing cases within broader frameworks—and focusing on only those cases that relate to your facts—LLMs can provide the best of both worlds: Enough breadth and context to identify trends, while enough customization to assess case strength, building stronger arguments efficiently. Modern legal research benefits from an adaptive, LLM-backed approach.

Modern research tools can help to convince the client or senior partner that there really isn’t a case in any jurisdiction discussing whether a circus promoter may obtain specific performance of a contract with a singing camel. Technology-enabled research can also find the case known only by name or subject matter through a conversation and recent cases not yet published in printed reporters. Technology can also quickly find the citation to the official report of the most recent opinion read about in a trade publication and can be a wonderfully efficient way to provide the latest and greatest updates.

Specialized Research. The research sources and techniques listed above suffice for most of a litigator’s legal questions. But specialized areas might require using legal-research tools that contain specialized sources. Legislative history requires sources that contain legislative proceedings. Similarly, administrative litigation might require tools that contain the Code of Federal Regulations, the Federal Register, Administrative Law Judge Decisions, Agency Board of Appeals Reports, and informal rulings. Computer science has a helpful phrase: “Garbage in, garbage out”—shortened to GIGO. Conversely, if your litigation require specialized knowledge, that often requires specialized sources containing information relevant to the research question.

§ 2.3 Determining the Applicable Law

In researching the law, one should be sure to get to know the right law. Normally, this is obvious and reflexive. Most litigation involves parties within the same state or subject to the same federal laws. The typical case may not require any choice of law analysis. Where a case does admit of some choice of law issue, most often either the choice is clear or the differences between the choices are inconsequential. Occasionally, however, the case requires consideration of choice of the applicable law. This should occur early in the case analysis to avoid wasted effort or taking an unwarranted position.

State Litigation. State courts usually apply their own law unless the law of another state applies. See, you too could have written some of this book. The strong preference of most state courts is to apply their own law unless there is a clear reason why the law of another state should apply. Under contract law, the law of the state where the contract was executed usually applies, but the law of another jurisdiction may apply if one or both parties have significant relationships in that state. The parties may also specify the law that will apply, and these provisions are usually enforced, at least if there is some connection of that law to the transaction. Under tort law, the state law where the incident occurred typically applies, but the law of another jurisdiction may apply if substantial contacts exist in that state. Cases that involve facts occurring in multiple states may present a complex choice of law question, the resolution of which extends far beyond the parameters of this book and the care of the authors. Section 4.5.2 explains the concepts of minimum contacts. Other authoritative sources provide answers to such questions for those with either an insatiable curiosity or a client with fee-paying abilities.^[4]^

Federal Litigation. Federal courts apply federal law much of the time, not an odd result considering that federal statutes, decisions, regulations, and the Constitution comprise the usual subjects of federal court jurisdiction. However, federal jurisdiction may also be based on diversity of citizenship involving state law claims worth in excess of $75,000 between citizens of different states. In these cases, based on state law claims, which comprise 25 percent of federal case filings and half the cases tried, the federal court must apply the most appropriate state law.^[5]^ In selecting the applicable law, the federal court applies the choice of law principles of the forum state,^[6]^ as discussed in the previous paragraph. Generally, all states now provide for the weighing of the contacts of the various states with the claims presented and parties involved in the litigation^[7]^ and often the governmental interests of each state as well in choosing the applicable law. Although federal courts are reputedly not as prone to apply forum law as state courts, both courts tend to favor local law.

The applicable law in federal diversity cases involves both state and federal law. Federal courts apply state law to the substantive issues and federal law to the procedural aspects of the case. They also apply any other applicable federal law intended to override state law concerning the subject matter of the case.^[8]^ In determining whether state law is substantive, the court must decide whether its application would significantly affect the outcome of the case.^[9]^ Generally, state rules regarding the existence of a cause of action, liability, and the measure of damages, are substantive and outcome-determinative. Rules regarding pleadings, motions, pretrial practice, case management, and admissibility of evidence are procedural. Some, such as the right to a jury trial, are both procedural and implicate a strong federal policy interest or law such as the Seventh Amendment.

Statutes of limitation, although obviously important to case outcomes, are usually viewed as procedural. If you can sue in a jurisdiction with a long limitations period, you get the benefit of the extra time even if the case has little relation to that forum. Because of the ultimate impact any procedural rule may have on the ultimate result in a case, the rules and precedent regarding the substantive/procedural distinction under [Erie Railroad Co. v. Tompkins](https://www.westlaw.com/Document/I2e1a10979ca411d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I2e1a10979ca411d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)^[10]^ are complex and sometimes apparently inconsistent. (If you do not recall the Erie doctrine you may want to check your passing grade in Civil Procedure or the professor’s resume.)

Applicable Law. A vertical (federal-state) election of judicial forum usually does not influence the substantive law applied. Whether a state law claim is decided in a federal court or in a state court, the same state law will apply. Whether a federal claim is decided in a state court or a federal court, the same federal law will apply. However, horizontal (state-state) forum selection may well determine the substantive law, because different forums will apply different substantive law because these forums apply different choice of law factors. Further, the procedural law of a case may influence its progress and outcome, and a litigator who has an option of more than one forum must determine the influence of the various procedural laws. Section 3.1 details these and other considerations involved in selecting the most appropriate judicial forum.

Arbitration and Administrative Law. Arbitrations are governed by the laws that govern arbitration. Yes, you could have written that last sentence. The determination of what law applies is a function of the terms of the agreement between the parties and the applicable substantive and procedural law. The arbitration clause of a contract term may designate the laws of a specific state to govern the case. If not, the same analysis for a choice of law determination discussed above in litigation also applies to arbitration cases. However, unlike judges, arbitrators may not be strictly required to follow the law although an arbitration award may be vacated if the arbitrator displays “manifest disregard” of the law. This rarely happens, although arbitrators must be careful to decide only matters within the “scope” of the parties’ submission to arbitration. The law of an administrative case is commonly determined by the applicable administrative statutes, regulation, or rule.

§ 2.4 Fact Investigation

§ 2.4.1 Introduction

A fact source is anything that provides, describes, or explains facts helpful to the litigation. The most common fact sources include people, documents, records, physical objects, and scientific data. Much of the information obtainable by investigation methods may also be obtainable pursuant to discovery requests and subpoenas. Chapters 5 through 10 discuss these formal methods. This Chapter covers fact investigation.

There are several investigative approaches used to obtain information from or about people and events. These approaches include: searches for documentary or physical evidence, interviewing, and obtaining witness statements. As is discussed in Section 2.4.6, below, the Internet has dramatically changed how one may go about collecting information. Many types of information that would be difficult and expensive to obtain—if available at all 10 or 20 years ago—now can be accessed easily from a laptop computer by relatively skilled personnel (i.e., you or a paralegal). Think of what would have been necessary to obtain an aerial photo of the scene of an accident only a few years ago. Now Google Maps yields a very high-quality image in a matter of seconds. There is a wealth of similarly useful information available to assist in the evaluation and preparation of almost every dispute.

The success of a case depends upon preliminary factual investigation as much as any other facet of litigation practice. Perceptions and memories of witnesses are invariably incomplete and filtered. Interview techniques employed may easily affect the information obtained. Identifying and locating documents can be an elusive project. Informal investigation substantially increases the chances of success. Prior to litigation, counsel must depend upon the cooperation of witnesses, the professional skills and ingenuity of the investigator, and such devices as the Freedom of Information Act.^[11]^ Many investigatory tasks can be and should be done by non-lawyers. Litigators do need to understand investigation techniques to evaluate and direct the litigation and, without supportive resources, actually conduct the research themselves.

§ 2.4.2 The Investigation Process

The legal and practical ramifications of an investigation affect the determination of whether and how an investigation should proceed. Before and during an investigation, the litigator must review and consider the various facets of the process. These questions include:

• When should an investigation begin? (§ 2.4.3)
• Who should conduct the investigation? (§ 2.4.4)
• What sources of information are available? (§ 2.4.5)
• What Internet sources are available? (§ 2.4.6)
• What physical evidence is available? (§ 2.4.7)
• Who should be interviewed? (§ 2.5.1)
• Why should a witness be interviewed? (§ 2.5.1)
• How can a witness be located? (§ 2.5.2)
• What types of interviews are there? (§ 2.5.3)
• What types of witnesses are there? (§ 2.5.4)
• Why should a witness talk? (§ 2.5.5)
• How can the cooperation of a witness be obtained? (§ 2.5.6)
• What types of questions should be asked? (§ 2.5.7)
• What topics should be covered? (§ 2.5.8)
• How should the interview be conducted? (§§ 2.6.1 & .2)
• What record should be made of the interview? (§ 2.6.3)
• Should a witness statement be obtained? (§§ 2.6.4 & .5)
• Should the interview be recorded? (§ 2.6.6)
• Who should be provided a witness statement? (§ 2.6.7)
• Can a witness be paid? (§ 2.6.8)
• What advice can be provided a witness? (§ 2.6.9)
• How may AI/LLMs assist in the investigation and development of information (§ 2.6.10)
• Is Alicia Vikander or Javier Bardem available, or their script writers?

The resolution of these questions has a profound impact upon the development of a case. Who conducts an investigation and under whose authority may ultimately determine whether the information obtained is privileged. See § 5.7. The existence and location of individuals who have information about a case and whose identity is obtained through investigatory efforts may be discoverable even if those individuals have unfavorable information. See § 5.7.5. A signed witness statement may be discoverable in some jurisdictions where an unsigned statement would not be discoverable. See § 5.7.6.

§ 2.4.3 Timing of Investigations

The best time to begin an investigation is when the investigation begins. But you knew that before you took this course. A litigator should review several factors that influence the determination of when an investigation should be initiated.

Type of Case. Certain cases lend themselves to early investigation. An auto accident case usually prompts the lawyer to immediately conduct an investigation including obtaining photographs and videos, preserving potential documents and other evidence, and identifying and contacting eyewitnesses. A commercial contract case usually can be factually developed through formal discovery and depositions without the need for immediate informal investigation. The facts of each case ultimately determine the timing of an investigation.

Legal Issues. The nature of the legal claims and defenses also affect factual investigations. Cases that involve simple and straightforward legal matters often proceed without much factual investigation. Cases that involve complex claims or complicated defenses often entail attempts to dismiss, clarify, or narrow the issues before conducting extensive investigation.

Initial Client Contact. The point at which the client contacts a lawyer also influences the need to begin immediate investigative efforts. If the events creating the claims or defenses are completed before the initial client contact, then a complete investigation may commence. If the events are still evolving when the client contacts the attorney, then an investigation may await completion of the events, unless it is advisable to begin collecting information immediately. Attorneys may find it useful to visit the client and talk to more than just one representative of the client. For example, a visit to the home office of a business client enables counsel to get information from several different employees and to assemble many of the relevant records, emails, invoices, photographs, or other documents that may be important to the case. By contrast, depending on the client to unilaterally review its files and pass them along may be slow and incomplete.

Sources to Be Investigated. The source of the factual information further affects the beginning of the investigation. The search for documentary information that is not subject to change or loss may be delayed until later in the investigation process. The search for accurate and reliable information from a witness should begin as soon after an event as possible to avoid loss of memory.

There are other advantages to the early interview of a witness. Interviewing a witness before the other side does increases the probability that the story will be fresh, will reduce the chance that the witness will have developed a bias or prejudice, and may develop an interest on the part of the witness toward the party who conducts the first interview. A neutral witness may not consider the first interview as much a bother as subsequent interviews and may be susceptible to suggestions made by the first investigator. An adverse witness, particularly an unsophisticated witness, may provide information or give a statement that may harm the adversary later. Further, an unfriendly witness may not yet have developed enough hostility to refuse to be interviewed.

Social media may be another relevant and most likely entertaining source of information and potential evidence. The client may be directly involved in these network exchanges as a participant or perhaps a victim. Those ubiquitous personal and professional messaging and image-sharing sites may reveal highly relevant and why-did-we-do-or-say-that surprises. Clients may or not be surprised about what they or you can discover on YouTube, TikTok, Instagram, Facebook, X (the media artist formerly known as Twitter), Bluesky, Snapchat, WeChat, LinkedIn, and Pinterest. Did we list your favorite?

Ethical Considerations in Investigation Activity. A potential party who has not yet retained an attorney will still be able to be interviewed because Rule 4.2 of the Model Rules for Professional Conduct and DR7–104(A)(1) of the Code of Professional Responsibility bars such contact only if an attorney has been retained. Application of Rule 4.2 to individual parties is relatively straightforward but can become complicated as applied to businesses represented by counsel in a dispute. May company employees be interviewed? The answer depends on the nature of the employee’s position with the corporation and her or his relation to the case.

The answer also depends on the law of the particular state in which counsel is licensed or where the interview takes place. A few states allow counsel to interview any employee outside top company management. A similarly small number appear to treat all employees as “represented persons” under the rule and bar attorney interviews. A few more states allow interviews with any employee who is not a “managing or speaking agent” for the company.

There is also support for keeping off limits any employee whose statements would be admissible as a “party admission” under [Federal Rule of Evidence 801](https://www.westlaw.com/Document/N7628C6F08D6211EFB96292A2D3FA2FFC/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N7628C6F08D6211EFB96292A2D3FA2FFC/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). The bulk of states allow the interview of employees who are merely witnesses but not of employees whose statements may have binding effect in the litigation. This is the position taken by the American Law Institute’s Restatement of the Law Governing Lawyers. To protect oneself and the client’s case, attorneys must determine applicable law in this area before launching into interviews. This rule cannot be evaded by using a non-lawyer investigator to conduct the interview. Agents of an attorney acting under counsel’s direction are subject to the rule. They already thought of that.

As if legal life were not already complicated enough, there are other Rules of Professional Responsibility that must be kept in mind when conducting witness interviews or other types of investigation. Rule 3.4 prohibits counsel from obstructing another party’s access to evidence. A lawyer (or agent) may not conceal, alter, or destroy a document or other material having potential evidentiary value. Rule 3.4 also provides that a lawyer may not request anyone other than the client to refrain from giving information to others. Even then, counsel must reasonably believe that refusing to voluntarily give information will not adversely affect the client. For example, it is generally not effective lawyering to instruct the client to refuse to cooperate if this will earn the client jail time for contempt or obstruction of justice. Plus, you’d have to visit them and explain.

Rule 4.1 mandates that counsel be truthful when representing a client. This means that attorneys conducting interviews cannot pretend to be “taking a survey” or inquiring about the quality of the interviewee’s phone service as a pretext for the interview. Law practice is not espionage and lawyers are not undercover operatives. In one extreme case, lawyers pretended to be interested in hiring a judge’s law clerk in order to attempt to elicit information that might be used in litigation, perhaps even to disqualify the judge. This sort of deceit is of course despicable and should result in severe sanctions. But too many lawyers seem to get the wrong idea from television, movies, and ethically challenged colleagues or clients. Under these circumstances, novice lawyers may want to remember the famous adage “if somebody has to go to jail, make sure it’s someone else (or the senior partner trying to get you to do the dirty work).”

On a less cloak-and-dagger level, Rule 4.3 bars the lawyer from claiming to be impartial or disinterested when conducting an interview. It’s better and wiser to let the interviewee clearly know whom you represent. This keeps you out of ethical hot water and also makes it far less likely that you might be barred from utilizing the information obtained during an interview. See Section 2.5.3 for more insights.

Pursuing interests in the case should not and ought not require hostility or bellicosity in conducting the interview. As in all matters, counsel should be civil and polite when addressing a witness, especially witnesses more likely to identify with the litigation opponent. “You catch more flies with honey than with vinegar” is a cliché but like most clichés it has a significant core of truth. But no matter how well you get along with interviewees, do not provide legal advice or give them any basis to think you are their lawyer. This is also barred by Rule 4.3. You may, however, recommend that interviewees consult counsel of their own

In addition, some investigations should not be conducted by an attorney as this may result in the lawyer becoming a witness at the trial. Rule 3.7 of the Model Rules for Professional Conduct strongly discourages attorneys from testifying in a case, lest the jurors have to evaluate the credibility of the lawyer as a witness as well as an advocate. In situations where the investigator may become a witness, for example, to provide impeachment testimony, a non-attorney should conduct that part of the investigation.

Delaying Investigation. Delaying factual inquiries may prevent potential opposing parties from becoming aware of possible litigation and conducting themselves in a way that favors their interests. Parties made aware of the legal consequences of their conduct may immediately begin to act differently to avoid potential liability. Postponing an informal interview may be appropriate in favor of a deposition. Delaying factual investigation may also permit necessary legal research. The pursuit of legal research before the pursuit of facts may provide new insights and perspectives that make initial factual investigation more effective and efficient.

§ 2.4.4 Investigative Personnel

There are a number of individuals who can and should conduct a factual investigation. The litigating attorney, an associate attorney, a paralegal, a law clerk, the client, a law firm investigator, a retained technical expert, and a private investigator are all possible candidates.

It is proper and legal for a law firm to hire a full time investigator or to retain a private investigator for a specific task. Most states require investigators to be licensed. These statutes establish qualifications, create a board to review complaints, and establish grounds for revocation or suspension. For example, it is improper for an investigator to solicit business for a lawyer, to impersonate a law officer or government official, or to commit dishonest or fraudulent acts. Who knew? Information obtained by an investigator may be privileged and only communicable to a client.^[12]^

Who should do what depends upon their availability, their knowledge of the case, their qualifications and abilities, and what needs to be done.

Knowledge of Case. Before conducting an investigation, an investigator needs to know information relevant to the investigation. Exactly what needs to be known will depend upon the type and scope of the investigation. The more extensive the investigation to be conducted, the more an investigator needs to know about the entire case. The narrower or limited the scope, the less an investigator needs to understand.

Whoever is selected to investigate facts must be qualified and have the abilities to effectively conduct the investigation. Obviously simple investigative tasks, e.g., going to a governmental office and obtaining public documents may only require a map. Not as obvious is that the interview of any witness, however favorable or cooperative, demands special knowledge and abilities. Whether an attorney, or a paralegal, or an experienced investigator should investigate depends upon an analysis of the preceding factors. An attorney will usually be more knowledgeable about a case; a paralegal will usually cost less; and an experienced investigator may be the most effective and efficient. The degree of difficulty required for the investigation, along with the availability of an individual, will determine who will do what.

§ 2.4.5 Sources of Information

Most sources of information are apparent from the nature of the case. Individuals with information are often known by a client. The whereabouts of many documents are apparent from the circumstances. The following list details common sources of information available.

City and county directories provide an alphabetical list of the name, address, marital status, and occupation of each resident and the name, address, office personnel, and nature of business of firms and corporations. These directories list people who have unlisted telephone numbers or who may not appear in the local telephone directory.

The Post Office will supply a forwarding address upon receiving an address correction request (assuming the last address is known) and a small fee.

Private courier services may be able to obtain a current address in attempting to deliver a letter to an addressee.

The state agency that licenses drivers will usually make available the current address of a driver. The agency will need the name of the person along with some other information, such as date of birth.

Real estate records maintained by the local government office will provide information about a person’s property assets.

It may be advisable or necessary in some situations to contact a source to schedule an appointment to obtain information. Scheduling an interview may prevent a wasted trip and may allow a source to gather some information. On the other hand, providing notice may prepare a source when it would be better if the contact was a surprise.

Another consideration relating to information sources is to determine the order of seeking information. Who should be contacted first? Who should be interviewed next? What documents should be gathered when? Counsel must answer these and other questions before an investigation begins.

As discussed below, always consider whether you can conduct broad Internet searches or enlist AI to gather the information. LLM-backed tools can visit and aggregate many public-domain sources that would otherwise require time-consuming individual visits. If nothing else, think of using LLM prompts at the beginning to cull the world’s databases or at the end to make sure you haven’t missed something. After receiving AI-retrieved information and sources, be sure to visit the sources directly to verify information, rather than exclusively depending on the LLM results. Trust but verify.

§ 2.4.6 The Internet as a Source

of Information

The Internet continues to make information dramatically more available at relatively low cost. Counsel (or their more computer-literate staff with a lower hourly billing rate) should routinely use online searches as a “first pass” looking for information simply because there is so much available that can often be accessed without leaving the office. However, not all online sources are created equal. Researchers should approach unfamiliar or problematic websites and their contents with healthy skepticism. To note a well-publicized example, the online encyclopedia Wikipedia contains contributions from many disparate authors without any central and controlling editorial authority. Some Wikipedia entries have even been altered by visitors. But this does not mean that there is not much of value to be found from this source—it simply means counsel must be careful when relying on such sources. It may be informative; it is hardly authoritative.

The Internet also creates a potential problem for litigators. Clients need to be counseled about not creating litigation problems by web postings, blogs, and social media communications that might reveal either confidential litigation strategy or information that impeach a party or witness’s credibility. Instagram, Facebook, X/Twitter, TikTok, YouTube, and other platforms can be useful sources. Prudent advice to clients is to curtail their discussions about the litigation dispute, how it is being resolved, conversations with the lawyer, communications with just about anyone, how the court is handling it, and whining about having you as their lawyer. It is just easier not to have to deal with these problems, and firmly counseling the client to avoid discussion of the issues in the case is usually excellent advice.

Several search engines can be used to locate information. Google is best known, but other search engines such as Bing, Yahoo, Dogpile, DuckDuckGo, Baidu, and Yandex should be consulted as necessary.

One advantage of litigation is that you generally are not looking for information about the world at large. You are looking for information about parties, witnesses, and the subject matter of your particular case. Consequently, much information can often be conveniently gained by visiting the websites of businesses adverse to your client or that otherwise play a role in the dispute. You may be able to get information concerning company records, personnel, subsidiaries, agents for service, location, and the nature of the business in general.

You might also consider opposing counsel as a “fact” to be investigated (although you may not know the identity of opposing counsel until later in the litigation). A check on opposing counsel’s law firm website, LinkedIn, Martindale-Hubbell, or legal-research platforms (e.g., Westlaw, Lexis, vLex) may give you useful information about and insights into the other party’s lawyers, law firm, and litigation track record. In addition, specialized websites for lawyer organizations such as the Federation of Defense and Corporate counsel (thefederation.org), the Defense Research Institute (dri.org), and the American Institute for Justice (aijinc.org) contain information about their members. Lastly, comprehensive court-docket databases from can immediately reveal whether opposing counsel (and their firm) usually does plaintiffs’ or defendants’ work.

Much of the government-based information discussed in the previous subsection is on websites maintained by government organizations. Examples are sec.gov (for the Securities Exchange Commission), epa.gov (Environmental Protection Agency), dol.gov (Department of Labor), nlrb.gov (National Labor Relations Board), osha.gov (Occupational Safety and Health Administration), noaa.gov (for the National Oceanic and Atmospheric Administration); ntsb.gov (National Transportation Safety Board), dot.gov (Department of Transportation), faa.gov (Federal Aviation Administration), usda.gov (Department of Agriculture), fda.gov (Food & Drug Administration), cdc.gov (Center for Disease Control), nhtsa.gov (National Highway Traffic Safety Administration), cpsc.gov (Consumer Products Safety Commission), and nahnahnah.gov (paying attention?). In addition, the Bureau of Labor Statistics website (bls.gov) includes a considerable amount of economic data. Also, there are websites that collect statistics from a variety of sources. One example—until it was pulled down, was fedstats.gov, which collected material from more than 60 federal government agencies and provides links to each. The removal of these sources of information poses obvious problems not only for litigation investigation. Vigilance for restoration or new, alternative sites will reward counsel.

Nongovernmental organizations or organizations that are only government affiliated may also have websites rich in information. For example, the National Safety Council Website (nsc.org) provides considerable information, as do a number of organizational websites. Nongovernmental entities or organizations can be particularly good sources of information about doctors or medicine generally. The Mayo Clinic has a website (www.mayoclinic.com) described as “a great point to start any medical research."^[13]^ It also helps diagnose law school malaise.

The website for the Federal Judicial Center (fjc.gov) contains considerable information pertinent to litigation and the court system, as does the website for the National Center for State Courts (ncsc.org), the U.S. Supreme Court website (supremecourt.gov), the United States courts website (uscourts.gov), and various state court websites.

In addition, individual court files may be sources of documentary information. Since Federal Rule of Civil Procedure 5(d) no longer provides for automatic filing of discovery documents with the court, the traditional presumption of public access to court documents has been diluted, but where discovery materials are filed in connection with a motion, this “judicial use” should make them presumptively available to investigating counsel.^[14]^ With PACER (Public Access to Court Electronic Records) in federal court, dockets and documents from federal courts throughout the country can be retrieved at a relatively modest cost. And commercial databases permit enhanced search capabilities across the PACER dataset, as well as the state-court equivalents.

Investigating counsel should also remember that general informational searches through basic search engines and the mainstream electronic media (whatever that may be in the coming decades) also often yield valuable information about parties, persons, organizations, or the subject matter of the case. Even obscure and esoteric pursuits seem usually to be represented by some organization or publication. Finding these sources of information is much more feasible in the digital age than “back in the day” when obtaining such information meant a trip to the subbasement of a mega-library in search of back issues of the Upper Midwest Cross-Pollinators Bi-Monthly Flying Insect Newsletter and Recipe Digest.

Another very useful tool is searching website archives. Anyone attempting to use the Internet for research may find it very helpful to access the Wayback Machine. This archive maintains copies of websites maintained by the non-profit Internet Archive. The site, archive.org, preserves hundreds of billions of webpages beginning in 1996. It may be very informative about changes in a party’s website—both additions and deletions may be of interest. The archive includes web pages, 20 million books and texts, millions of audio recordings, videos, pictorial images, and some 200,000 software programs. The Wayback Machine can produce exhibits that will be admissible at trial.^^[15]^^

§ 2.4.7 Social Media Information

Social media posts and exchanges can be an important source of information in many cases. Users of social media may be quite unfettered in their use of social media and post personal information that would not disclose readily in other contexts. Some users are somewhat—shall we say—“casual” in their attention to the privacy settings on their accounts, making the information more accessible than intended by the user.

As is true about many searches for information, start with your favorite search engine. Google, Bing, or Yahoo may yield surprisingly helpful information. A public social media profile may provide information about a person’s location, lifestyle, activities, and interests. Social media services may also supply helpful information, so checking out Facebook, Instagram, LinkedIn, or even X/Twitter might yield valuable information about the target of your research.

Accessing social media information is a highly variable challenge in pretrial investigation. Some information can be obtained with fairly simple searches; other data might require an image search; and still other information may be nearly impossible to obtain. The most accessible information may be readily obtained by a lawyer or paralegal; for more challenging searches, hiring an investigator with Internet skills may be much more efficient and more likely to bear fruit.^^[16]^^

It also may be wise to preserve the revealed information. Social media posts are ephemeral and can be easily removed or revised by the user. Screenshots will maintain a record of posts which may be helpful later in a case.

Even simple pre-litigation social media investigation is useful in evaluation of a potential case and identifying legal and factual issues that need to be developed before undertaking litigation. It may also be valuable as a guide to disclosure and discovery requests once litigation has begun. It is important to remember, however, that social media investigation can be much easier during litigation. Both parties and non-parties can be compelled to produce copies of relevant social media postings or otherwise permit access to their social media accounts.^[17]^ Broad assertions of generic privileged, confidential, or privacy protections usually do not shield relevant information, from whatever source.^^[18]^^ Courts are, however, protective of the potential that private information of limited or no relevance to the claims and defenses in the case would be exposed.

“Social media” is not a monolithic place—the different social media platforms are used by different demographic groups. Snapchat, Instagram, Facebook, and LinkedIn are much more likely to be used by different age groups, for example. If you don’t know particular social media platforms used by the target, it is possible to predict which ones may be more likely. The Pew Research Center provides abundant information on how members of individual groups use each platform.^^[19]^^ This information can help focus the investigation on sites that are likely to be helpful.

One important limitation on attempting to obtain information on social media is the general prohibition on lawyers’ use of misrepresentation or subterfuge to gain access to information.^[20]^ While it is permissible to locate public information on a social media site, it is generally verboten to masquerade as a college classmate of a target to justify a “Friend” request. One can ask as long as subterfuge is avoided. Some users will permit access to their accounts from someone asking to become a “friend,” even from someone they do not know. Be forewarned, creating a fake Facebook persona for the purpose of friending a target is likely to create professional discipline problems for the lawyer doing it. (It is also important to remember that if you are not allowed do it yourself, you may not circumvent that restriction by hiring someone else to do it.

A last resort—contacting the host social media network company—in an effort to obtain information will not yield any data. Even more accurately, such a wasted effort will not produce anything except a resounding no. These companies guard the paramount privacy rights of their users, even if a government agency attempts to seek the truth.^^[21]^^

§ 2.4.8 Documents, Objects, Physical Evidence

Cases will usually involve some form of documents as well as tangible objects or physical evidence that need to be investigated or preserved. Categories of such information include:

Documents including statements, contract letters, records, computer discs, email prints, and other writings and forms of writings.

Electronically stored information on files, blogs, websites.

Photographs, slides, movies, video, x-rays and other scans.

Diagrams, maps, charts, models.

Computer generated or preserved data, disks, drives.

Laboratory or medical tests and results.

Objects or articles involved in the event.

Physical surroundings and the location of an event.

An investigator may only need to collect and catalogue some of these objects, such as documents, and may need to create or supervise other exhibits, such as photographs. Typical tasks include the collection and copying of exhibits, sending and reviewing of documents, taking of photographs and drawing of diagrams, visiting a scene, and testing of an object and related tasks.

Documents and Electronically Stored Information

Documentary evidence including electronically stored information is particularly useful and persuasive in a case. Witnesses may be mistaken or confused, but a document speaks for itself, especially if an opponent’s document produces helpful information. Usually, documents will be available from friendly or neutral sources. An unfriendly source, e.g., a potentially adverse party, will not often cooperate in voluntarily disclosing the smoking email. Friendly sources usually cooperate. Neutral witnesses may balk at first, but after being reminded that the documents can be subpoenaed, may mellow. Custodians of privileged documents (such as medical and hospital records) may not be able to disclose such information without a written release. Governmental sources may disclose through the Federal Freedom of Information Act and related state law statutes.

Photos and Videos

An investigative technique that involves the creation of evidence is photographing or video-recording an adverse witness or party. In a personal injury case, for example, the defendant or potential defendant may video the plaintiff to prove what the plaintiff can do or looks like to reduce claims of injury and damages. Surveillance videos may be taken after litigation has begun and close to the trial date. There is nothing unethical per se in the creation of these videos, even though done surreptitiously. The tactical use of the information will depend upon its results. If the plaintiff, a supposed paraplegic, is recorded playing playground basketball then the video should be used and later sold to Steven Spielberg. A video showing a real paraplegic who looks depressed 60% of the time should be left in the editing deck. Jurors usually resent invasions of privacy unless the film portrays the party as a malingerer or liar.

For cases of less severe claimed injury, the same rules apply. Watching a plaintiff shuffle through a grocery store will show that the plaintiff is not catastrophically injured, but everyone already knew that. Lackluster movement may not reflect excruciating pain, but that hardly paints the claimant as a faker and can cast a bad light on the “spying” party, particularly if it is an insurance company trying to deny, reduce, or terminate benefits.

Another source of relevant images may come from the ever-present cameras on smart phones and smart alecs. It is amazing what is captured on those photos and videos, not that we would know. Security cameras are another source of who-did-what-when, although not as readily available as appears on crime shows. Other potential image capturing devices may be in likely or unlikely locations, from ATM machines to home and business security and surveillance cameras.

Videoconferencing platforms (e.g., Zoom, Teams, Webex, Google Meet) can be used for efficient communications, and those platforms often permit recordings. Those recordings can provide a treasure trove of litigation fodder. That is particularly true when modern videoconferencing platforms helpfully offer to transcribe every word spoken. Plaintiffs’ lawyers, imagine being able to do a keyword search across every one of a company’s internal meetings. Better yet, imagine doing an LLM-backed vector (concept) search, seeking every meeting involving the disputed topic, where the speaker seemed “cagey.” People will speak about things that they wouldn’t write in emails. And those spoken (recorded and transcribed) words can very well be used against them in a court of law.

Visits

Visits to the scene of an accident or incident can often be enlightening. In accident cases, lawyers should also remember to collect information regarding the scene generally. Perhaps it is a frequent accident site, which may provide additional information bearing on liability, particularly where the defendant is a government or business responsible for the site. Special effort should be made to assemble information about the scene as it was at the time of an incident. Thorough lawyers not only know the time of an incident but also whether it was light or dark in Bugtussle at 4:30 p.m. on February 29. Similarly, they should know whether it was wet or dry outside, whether there were sand drifts or snowdrifts obstructing the driver’s view, or whether a construction project impacted the area. When interviewing witnesses (discussed below), consider holding the interview at or near the scene of the incident. This can jog the witness’s memory and provide them with an opportunity to educate counsel or the investigator.

Visits to the client’s home or business are also often useful. Getting a feel for the client as a person or organization can give lawyers added context that helps them better understand the case. Visits to the defendant’s neighborhood or business may also yield useful information but require care not to violate ethical rules restricting an attorney’s conduct with represented persons.

When conducting this sort of investigation, counsel should often work with or through and investigator or nonlawyer assistant. Professional Conduct Rule 3.7 provides for disqualification of a lawyer who become a “necessary witness” in a case. If the seemingly innocuous initial visit to a person or site later becomes an important contested fact of the case (e.g., Was plaintiff ambulatory last March? Was the shoulder of the road paved at the time of the collision? And how wide was it?) that cannot easily be established through other evidence, counsel would face a disqualification motion. This tactic should only be used to attack opposing counsel when justified.

There is a mitigating factor. Rule 3.7 provides that even if the individual lawyer is disqualified, the law firm is not, an exception to an individual lawyer’s conflicts being generally imputed to the law firm (Rule 1.10). But the absence of the lawyer most familiar with the case is an unnecessary headache resulting in additional work replicating work and perhaps irrevocably losing expertise and rapport with the client. The Rule also provides an escape hatch from disqualification if it would “work substantial hardship on the client.” But don’t count on that to save you. Be careful about putting yourself in a position where you might become a potential witness subject to disqualification.

Preservation of Evidence

Preservation of evidence is an important duty of every party to a dispute, and it has become both more important and easier to overlook. The duty to preserve evidence is fundamental, and falls to the parties and, to some degree, to their lawyers. This duty requires a party to preserve any evidence including information on smart phones, tablets, and laptops that is reasonably likely to be relevant to prove or disprove any issue in a case. The duty arises when it becomes reasonably likely that the information will be of use to any potential parties or when litigation or governmental investigation is probable or imminent. Unfortunately, the reasonableness of a party’s efforts to preserve evidence is often measured after the fact, and judges have to assess the reasonableness with the knowledge of how useful the missing evidence might later appear to be. Because of the importance of preservation of evidence, advising clients on it (and the consequences of failure to comply), attorneys should view it as an obligation to provide clear advice on the preservation duty.

Preservation Holds

The best wisdom on how to deal with these duties and accompanying uncertainties is to issue a “litigation hold.” Such a preservation hold is a direction to the party, and for organizations, to the employees likely to have relevant information to identify that evidence from whatever source and preserve it. See § 1.4. The most important step is to make sure that information isn’t inadvertently destroyed or lost. For paper files, this may require collection and segregation of the files in some secure location. If the organization regularly destroys old records, it is important that that regular process be interrupted as to these records.

The litigation hold process is even more important for electronically stored information wherever located, as it may be more complicated to ensure that all data are preserved. Certainly, some efforts to collect and save these data and to override automatic backup of the files will go a long way to meet one’s duty. Ultimately this duty becomes a competence responsibility of the lawyer, because the consequences for a client of not preserving evidence can be dire, including large monetary sanctions and default or dismissal of claims or entire lawsuits.

§ 2.5 Witness Interviews

Three major sources of information are documents, photos and videos, and witnesses. You have just read about documentary materials and recorded images. Quite fascinating. Now you will read about witnesses. Equally compelling.

§ 2.5.1 Who Should Be Interviewed and Why?

All persons should be interviewed who have information whether helpful or harmful. Witness interviews serve several purposes, including:

• Learning everything the witness knows about an event.
• Seeking specific information about a particular incident.
• Obtaining admissions from the witness and committing the witness to an established story.
• Leading the witness and suggesting what happened in an attempt to have the witness agree with favorable facts and disagree with unfavorable facts.
• Obtaining information useful to impeach the witness or to reduce credibility.
• Uncovering information the other side already knows.
• Discovering information no one knew.

§ 2.5.2 Locating Witnesses

Many individuals with information about a case will be known to the client, obvious from the circumstances, or identifiable through investigation. Known individuals may know of unknown witnesses. A canvas of people who might have seen or heard something may produce additional witnesses. Searching through sources listed in § 2.4.5 may likewise produce witness leads. As discussed in § 2.4.6, the growing supply of information about individuals and business that exists on the Internet, in a computer-generated file, or somewhere in the ethereal world of electronic data may provide a useable source of relevant information.

In some cases, witnesses will avoid being contacted or may disappear. It may be necessary in these situations to retain an experienced investigator or “skip tracer” to locate difficult to find witnesses. Traditional methods to locate witnesses may be unsuccessful, prompting the use of legitimate subterfuge or pretexts to find a witness. Often individuals, such as relatives, friends or employers, who know the whereabouts of a prospective witness will not disclose the location of the witness if they know why the witness is being sought. In these circumstances the investigator may attempt to conceal the actual motive for seeking the witness. Although some degree of craftiness by the investigator is usually countenanced by the courts, investigators should not engage in blatant deception. Lawyers should be particularly careful not to fabricate information when speaking to witnesses or mislead them.

§ 2.5.3 Types of Witness Interviews

There are three types of witness interviews.

1. The Overt Interview. The witness knows the true identity of the interviewer and the purpose of the interview. This is by far the most common type of interview in litigation.

2. The Discreet Interview. The witness knows the identity of the interviewer but is not told the real reason for the interview. The interviewer may not fully explain the purpose of the interview.

3. The Covert Interview. The witness does not know either the true identity of the interviewer nor the real purpose of the interview. The interviewer may or may not lie or be deceitful and may allow the witness to talk without fully briefing the witness on the nature of the case or the client’s position.

Legal investigators should always conduct or try to conduct an overt interview. Neither the Code of Professional Responsibility nor the Rules for Professional Conduct provide any specific guidance regarding the ethical nature of discreet or covert interview techniques. The occasions when a discreet or covert interview is necessary should be reserved for those situations when the witness will not talk if they fully appreciate the identity of the interviewer or the purpose of the interview. This is far easier said than done. It is difficult to anticipate whether a witness will balk at being interviewed. Obviously, it will be too late to use those approaches if the witness refuses to cooperate after learning the interviewer’s goal.

A legal investigation should not rely upon pretext or subterfuge. The first instinct of a legal investigator should be to apply investigative techniques that persuade a reluctant witness to talk. The second instinct should be to try those techniques again. Only then should a legal investigator consider using other methods to obtain information.

Tactical reasons also militate against using lies and falsehoods to obtain information. How facts are obtained may taint their value in the litigation. Judges and jurors may consider pretexts and subterfuge improper and view the lawyer who authorized or used such tactics as less credible. These methods are more acceptable in criminal cases where certain crimes could not be successfully prosecuted without the use of informants or surreptitious surveillance. Fortunately, legitimate and honest investigative approaches usually are effective in civil cases.

Many lawyers find pretext and subterfuge techniques sleazy and ethically improper. Some lawyers believe they are useful investigative tools necessary in exceptional circumstances. These varying beliefs are grist for a debate regarding what is proper or improper. Questionable techniques may appear unseemly and may not project an image of an honest and fair profession. However, questionable techniques may prove necessary in some cases if a lawyer is to obtain essential information and represent clients zealously. It’s worth seeing The Verdict, Erin Brokovich, and A Civil Action again (you will see some things that arguably or actually cross the line) and then pondering what can and should be done in your case. As you know from agency law and the above comments, the ethical dilemma does not disappear by having an independent investigator conduct the investigation.

§ 2.5.4 Types of Witnesses

Witnesses may be favorable or unfavorable, cooperative or uncooperative, neutral or biased, impartial or prejudiced. A witness may begin as cooperative and become uncooperative. A witness may have both helpful and harmful information. The approach taken towards a favorable, cooperative witness may be far different than the approach taken toward an unfavorable, uncooperative witness. The anticipated information and the expected reaction of the witness need to be analyzed in preparing for a witness interview.

Friendly Witness Interviews. These interviews, though usually easy to conduct, involve some aspects that may be troublesome. The investigator must be careful that the witness does not provide slanted or biased information, that the witness does not withhold unfavorable information, and that the cooperative attitude of the witness does not reduce the credibility of the witness.

Neutral Witness Interviews. These interviews may be easy or difficult to conduct depending upon the reaction of the witness. Some will be forthcoming, others willing to talk, and still others recalcitrant.

Unfriendly Witness Interviews. These witnesses usually make it difficult for an interviewer to obtain helpful information. Commonly effective tactics to employ are: (1) attempting to obtain information with the least harmful explanation possible and (2) establishing the factual or other basis for the unfriendly attitude and prejudice.

Favorable Information Interview. It is usually best to record favorable information obtained from a witness. This procedure preserves the very helpful nature of the facts.

Unfavorable Information. It may not be best to record unfavorable information. There may be no need to preserve such facts. The other side will benefit more from the information and the witness may later change the story reducing the unfavorable impact.

§ 2.5.5 Reasons to Talk

Witnesses will usually be willing to be interviewed if they have a reason to talk. Cooperative witnesses will have their own reasons to provide information. Neutral or uncooperative witnesses may need to be provided a reason by the interviewer. A reasonable explanation by the interviewer of the vital need of the information usually prompts most witnesses to talk. This direct explanation may not persuade all witnesses, and an interviewer needs to consider employing additional or alternative techniques that may convince a witness of the wisdom of talking now.

If you tell me what you know now it will help resolve the matter without any further involvement on your part.

This will only take a few minutes of your time now and save you time later.

These explanations point out to the witness the convenience of providing information now.

If you were in my client’s position you would want someone like yourself to help, wouldn’t you?

We all have some responsibility to help others and this will be your way of helping my client.

These reasons play to the sense of responsibility a witness may have.

You don’t have to tell me everything but you can confirm or deny what others have said so I can make sure it’s accurate. I’ll tell you what I know and you can say yes or no, O.K.?

This approach may induce the witness to begin giving yes or no responses followed by some narrative information.

You may want to tell me some things, at least that relate to you, because you are now involved. Let me ask you a few questions to clarify what happened.

This technique attempts to gain information by suggesting that it is in the best interests of the witness to answer some questions.

You may change your mind if you knew what some people have said about you. Another witness told me you were drunk that night and laughed when you saw the people get hurt. What happened?

This approach may prompt some witnesses to become defensive or emotional and talk to protect themselves.

If you decide not to talk to me now you’ll have to talk to me later. You will be subpoenaed and will have to appear at some very inconvenient time and place to testify under oath. Let’s talk now to avoid that.

This approach may result in the witness talking, but it may also backfire with the witness becoming irritated over the threat.

§ 2.5.6 Obtaining and Maintaining

Witness Cooperation

An interviewer can significantly increase the cooperation provided by a witness by following effective interviewing approaches.

Select the Appropriate Time, Place, and Circumstances for an Interview. The interview should not occur at a time and place of major inconvenience for the witness. A time should be selected when the witness will have sufficient time to talk. The location of an interview should provide sufficient privacy, avoid distractions, and make the witness comfortable.

Consider the Effect of the Presence of Others. A witness can be interviewed separately to avoid any influence from others present. If there is more than one witness available, this may take more time but produce more independent recollections. If a witness is with a spouse, relative, friend, or group it may be difficult to talk with them individually. When someone else is present the interviewer should concentrate on obtaining information from the witness while attempting to reduce whatever influence others may have.

If the witness is a client or part of a client organization (e.g., an employee of a corporation), you need to consider the application of attorney-client privilege and its preservation (which can be complicated in the organizational context: see § 5.5.7). The presence of nonlawyer personnel on the litigation team will not destroy the privilege but the presence of others who are not the client often will. So be careful of this as well as the lawyer-as-witness-subject-to-disqualification problems previously discussed.

Create and Maintain a Comfortable Atmosphere. Effective eye contact, appropriate body language, supportive facial expressions, appropriate physical distance, and other nonverbal behavior should be employed to establish a comfortable environment for the witness to talk.

Empathize with and Respect the Witness. It can be inconvenient, uncomfortable, and difficult for a witness to be interviewed. An interviewer who treats the witness with respect and who appears to care about the witness may be more favorably received.

Listen and Identify with the Witness. Listening provides the interviewer with the opportunity to identify with anything mentioned by the witness. The interviewer should listen for matters that relate to the personal interests of the witness. Inquiries into these areas may make the witness more willing to disclose more information.

Personalize the Client. Witnesses may be more inclined to talk if they perceive themselves as helping someone who deserves their assistance. A description of the client that portrays an individual who needs help creates such an image.

Be Polite and Courteous While Being Persistent. An impolite and rude interviewer will obtain little or nothing. It is difficult to remain polite and courteous with witnesses who may themselves act that way. The professional investigator needs to remain calm and persist in continuing.

Reinforce Responses and Behavior by the Witness. Witnesses who are continually encouraged to talk during an interview will often provide additional information.

Try to Establish a Relationship. An interviewer can prevent a witness from becoming defensive or refusing to talk by being cognizant of questions or answers that may trigger such a response. The timing of inquiries may determine whether a witness responds. Certain questions asked early in the interview may not be answered, but may be answered if asked later after a relationship is established.

§ 2.5.7 Interview Questions

A variety of interview questions may be employed by an interviewer to obtain information. The type and timing of a question will depend upon the kind of information sought and the purpose for asking the question. Investigation questions are identical or similar to questions used during client interviews, depositions, and direct and cross-examinations and are not unique to the investigative process.

Narrative Questions. Broad, open-ended questions usually lead to narrative responses. “What happened?” and “What did you see?” questions are designed to allow the witness to describe events generally.

Specific Questions. Narrow, closed-ended questions seek specific information. “Where was Mr. Kost standing?” and “What was the license number?” are designed to obtain detailed facts.

Probing Questions. Witnesses may not reveal everything they know. Persistent follow up questions or unanswered questions asked again later may result in a witness providing the missing information. “Ok. What did you see exactly?”

Yes/No Questions. These questions seek a response to verify or confirm affirmative or negative facts. “Did you see Ms. Alicia sign the contract?” and “Were you at the office at 3:30 p.m.?” These questions differ from leading questions in that they do not suggest the answer.

Leading Questions. Questions that suggest and contain the answer may be asked to validate or invalidate facts. “You saw the car speeding through the intersection, didn’t you?” and “You left the accident scene before the police came, right?”

Opinion Questions. Information disclosing opinions in addition to facts will be helpful to an investigation*. *“Why do you think he did that?” and “About how far away was she?”

Attitude Questions. These questions may result in useful information. “Did you like that he said that?” and “How did you feel then?”

Memory Aid Questions. Witnesses may not initially remember a fact or may only recall a portion of an event, and the interviewer needs to help the witness recall the forgotten. Retrospective questions that place the witness back at the time, place, and situation may help. “What time of the day did it happen? Who else was present? Where were you rollerblading?”

§ 2.5.8 Interview Topics

Interview preparation requires the investigator to decide what topics need to be covered. The facts of each case influence what is asked and a review of generic topics can assist in determining what to cover.

• Identity of witness, including the name, address, phone number, email, employment, and related information.
• The who, what, where, when, why and how.
• Documents and physical objects.
• Favorable and unfavorable information.
• What the witness does not know.
• Hearsay and gossip.
• Corroborating or contradictory information.
• Prior interviews or written statements.

Thorough interviews require multiple questions seeking detailed answers. For example, when a witness is asked to describe a person, the witness may describe the person’s sex, race, apparent age, height, weight, and perhaps some additional details. Numerous specific questions may reveal substantially more information, such as the person’s:

A common alternative tactic is to conduct two interviews. The first interview is designed to determine how cooperative the witness is and what the witness knows or does not know. The second interview will follow if more information is needed and should be preserved. The investigator during the first interview may conduct a narrative interview and during the second interview may solicit or suggest information through direct and cross-examination techniques and preserve the information provided by the witness. These multiple interviews avoid the problem of having the investigator make a spontaneous decision of how to best approach a witness and preserve the information.

§ 2.6 Witness Interview Approaches

§ 2.6.1 Interview Techniques

The three most common interviewing techniques are: (1) the narrative approach, (2) direct examination, and (3) cross-examination. These techniques may be and usually are mixed during any one interview. The narrative approach has the witness relate in story form what the witness knows. Direct examination involves the use of specific questions and elicits new information, clarifies previous information, and adds details. Cross-examination resembles the approach taken during depositions to resolve conflicting information, complete and pursue evasive answers, draw inferences, test the perception and memory of the witness, evaluate the credibility of the witness, and search for impeachment areas.

§ 2.6.2 Influencing the Interview Responses

Investigators may attempt to influence the responses a witness gives during an interview. This approach recognizes that witnesses did not see or hear everything, will have forgotten some things, or may be mistaken regarding their perceptions. An investigator may assist a witness in accurately remembering and correctly providing information. This approach also provides an opportunity for misuse if an investigator tries to force the witness to provide questionable or false information. This latter approach is clearly unethical and illegal.

Techniques that investigators employ to influence witnesses are subtle and indirect and include:

• Word Choice. The selection of certain words may create a more helpful and persuasive witness story and statement. The suggestion or inclusion of adjectives and impact words may strengthen a witness’s version. For example, adding “very” to modify the word fast will make an obvious difference; and substituting “slapped” for “hit” or “screamed” for “yelled” may make a difference. Investigators can try to have witnesses adopt certain words or phrases.
• Leading Questions. As mentioned previously, these questions that suggest and contain the answer may have the witness agreeing.
• Filling in Details. A witness may forget a detail and the interviewer may tell the witness what it is so the witness may agree.
• Other Versions. The investigator may tell the witness what other witnesses have said to influence the response. “Three witnesses told me the light was green, what color did you see?” This technique uses peer pressure to influence the witness.
• Disagreeing with the Answers. After a witness relates some information, the interviewer may explain why the information is inaccurate, implausible, or mistaken in an effort to change the story.
• Composing the Story for the Witness. After an interview, the investigator may draft a witness statement and compose the story in as favorable a light as possible for the client.

§ 2.6.3 Maintaining a Record of the Interview

Information obtained from a client interview that is not recorded may be difficult to use, corroborate, or contradict. The information may be useful for planning purposes, but unless it is preserved, it may be difficult to recreate later. The three primary ways to corroborate or contradict an oral statement are: (1) another witness who is present, (2) interview notes, and (3) a recording. The first two means are fraught with deficiencies because the issue focuses on the credibility of the witness and investigator. The recording option is the most common and effective.

An investigator who needs to make a record of the interview for future reference may select from three main techniques.

1. A memo to the case file.

2. A written statement (See §§ 2.6.4 and 2.6.5).

3. A contemporaneous recording (See § 2.6.6).

File Memo

A file memo of an interview may contain several parts:

• A summary of the information obtained.
• A description of the demeanor, characteristics, and credibility of the witness and the importance of the information for trial.
• Additional relevant comments produced in the interview.

All memos should be composed under the direction and supervision of the litigator. The content and comprehensiveness of the memo should reflect the needs of the litigation. The reasons for the memo—to assist with a preliminary analysis of the case, to be a source for references, to summarize information, or to preserve information for later use—influence the content of the file memo.

These file memos usually are not discoverable either because they are trial preparation materials or include attorney mental impressions, both components comprising protected “work product.” Section 5.7 discusses in detail these protections.

A file memo may be composed to be discoverable in part. A section of a memo that contains facts provided by a witness may be discoverable as a source of information; a portion that includes comments by the investigator will be non-discoverable as trial preparation materials or protected mental impressions (even if the interviewer is a nonlawyer so long as working under the direction of counsel, but there can be exceptions). Portions of memos may be excised with the opposing party gaining access to the discoverable portions. A memo that contains a summary of the facts may be made non-discoverable if the drafter mixes the facts with mental impressions and weaves comments by the investigator throughout the memo.

Usually, it is best that the memos not be automatically discoverable by the opposing party. It is better for the litigator to have the option to disclose or not disclose a memo rather than be compelled by the rules. A litigator can voluntarily disclose a memo to the other side if it contains information the litigator wants the opposition to have.

A litigator may have to disclose documents containing facts as required by Federal Rule 26(a). This rule and similar state rules require the identification and disclosure of documents that contain certain information. Section 5.3 describes the nature of these disclosures in detail.

In addition to creating an electronic or paper file memo, an investigator may preserve a witness statement in writing or through a recording.

§ 2.6.4 Witness Statements

The precise components of a witness statement depend upon its purposes. An example of a statement appears in Case C in Appendix B. Witness statements typically include the following components:

1. The Identity of the Witness. The name and address or other identifying information should be included (phone and email). This information serves two purposes: to identify the person making the statement and to provide information for locating the witness later.

2. Statements in the First Person. Usually, a witness statement will be written as “I” statements, as if the witness was telling the story. This will make the story more accurate and reliable and avoid the problems of describing an event in the third person.

3. The Witness’ Own Language and Expressions. The statement should be written employing the words and method of expressions the witness used. The statement should read as if the witness provided the information not the investigator.

4. Clear and Understandable Language. The information contained in the statement should not be ambiguous or confusing unless that approach serves the interests of the client.

5. Objective Information. Usually, the information should be stated in as objective a manner as possible, unless another version serves the purpose of the interview and is true.

6. Opinion Information. In addition to including acts in the statement, the addition of helpful opinions and conclusions by the witness may strengthen the impact of the statement.

7. Edited Information. Favorable information can be emphasized. Unfavorable information can be subordinated. Inconsequential information can be added to bolster the witness’ perception and memory.

8. Negative Information. What the witness does not know can be mentioned.

9. Inadmissible Evidence. Whether or not a statement should include information that would be inadmissible at trial depends upon the reasons for including the information.

10. Concluding Remarks. The last sentence should include a statement that the witness has read the statement and that the statement is true and complete. Additional statements may be added, for example, that the witness voluntarily made the statement.

11. A Witness Statement May Contain Additional Information Including: a title, persons present, date and beginning time, location where statement is made, and date and ending time. A statement may also include a preamble that specifies some of the conditions for taking the statement to prevent the witness from later reneging.

My name is Oscar the Grouch and I live on Sesame Street. I agree to be interviewed by Kermit the Frog who is investigating this case for Ms. Piggy. I voluntarily make the following statement of my own free will that concerns my garbage can. I want to tell all the facts I know. I will not withhold any information. I agree to tell the truth. I understand this statement may be used in a hearing or trial.

This form may be revised and instead included at the end of the statement as part of the closing remarks.

§ 2.6.5 Witness Statement Mechanics

Timing. A witness statement may be composed during or immediately after an interview has been completed or may be composed at a later date. Completing the statement in the presence of the interviewee is the most efficient and economic procedure. Useful resources include a laptop computer with a printer or scanner to compose, print, preserve, or deliver a statement. Completing the statement later requires the investigator to meet with the witness again, which permits events to occur in the interim that may cause the witness to change the story. The advantage of not composing a statement during the initial interview is that the investigator can draft a more favorable and thorough or selective statement at a later date having had time to carefully reflect.

Format. Witness statements may be handwritten, typed, or prepared on a laptop and scanned or printed. They may be prepared either by the investigator or an assistant or the witness. The investigator in composing the statement is able to decide on its content, what is included and excluded, and whether optional accurate words may be used. The format chosen depends upon various factors, including the purpose for the statement and the nature of the information. The format and content may affect its discoverability. Section 5.7.5 explains discoverable witness statements.

Affidavit. A witness statement may also be composed as an affidavit or declaration. Such a statement begins with an affidavit preface and includes a declaration by the witness who affirms to tell the truth or an inscription signed by a notary who witnesses the signature of the witness who signs under oath. An example appears in § 12.2.4. The value in using a sworn statement is the witness may take the matter more seriously, the oath or affirmation will influence the witness to tell the truth, and the impeachment value will be increased. The disadvantage of an affidavit is the witness may be overly cautious or reluctant to sign it.

Review. After the statement has been composed the witness may read it for accuracy and completeness. This procedure is necessary to conform to a concluding sentence, if included, that states that the witness has read the statement. This procedure is also necessary to correct any mistakes. Some investigators who draft a statement intentionally include one or more errors that the witness discovers or that are pointed out to the witness. The witness will then correct and initial the corrections. These corrections are evidence that the witness did read the statement, the other uncorrected information is accurate, and the investigator did not make up the statement.

Adopting the Statement. There are a variety of ways in which a witness may adopt a statement. The witness who writes the statement in her or his own hand, or who initials each page, and or who signs it clearly vouches for the statement. Some witnesses refuse to do any of these. An investigator may use alternative adoption approaches. Some witnesses will agree to initial the last page of the statement; others will be comfortable signing a postscript after the statement that states they read the statement and that it is true and complete; others will agree to sign a postscript that the investigator read the statement to the witness and that the witness agrees it is true and complete; and still others may balk at doing anything no matter how persistent the investigator may be.

§ 2.6.6 Recording the Statement

A witness interview may be recorded and may be the preferred way to preserve the statement of a witness depending on the circumstances. The two most common forms of recording are electronic recordings and reporter statements.

1. Electronic recordings may be made with an audio recorder or a video recorder. Specialized recording equipment or smartphones, tablets, computers, and similar devices with recording capabilities may be used. Recordings can be done in person, over the phone, or through voice calls or videoconferencing services. The equipment can be operated by the investigator or someone else.

In most states it is permissible to electronically record an interview without the knowledge or consent of the interviewee. It is permissible in all states to electronically record an interview if the participants consent. It is permissible under the regulations of the Federal Communications Commission to record an interview as long as one party consents.^[22]^

2. A reporter statement is a transcript prepared by an independent reporter who accompanies an investigator and who contemporaneously records the interview with an electronic recorder (audio or video) or steno machine or both. The statement is taken under an oath administered to the witness by the notary public reporter or given as an affirmation by the declarant witness. A transcript of the statement may later be produced by the reporter. An example of an abbreviated sworn statement appears on the adjacent page.

WITNESS STATEMENT UNDER OATH FORM

STATEMENT OF JANE EVERS

Stenographic report of statement of Jane Evers taken at [Outer Temple Inn], commencing at about the hour of 10:00 a.m. on [day and date].

PRESENT:

Brook Swane, Attorney-at-Law [or Investigator]

Jane Evers, Witness

Gene Ortiz, Reporter and Notary Public

Jane Evers, being first duly sworn by Gene Ortiz, a notary public, was interrogated by Brook Swane and stated as follows:

Q. Your name is Jane Evers?

A. Yes.

Q. You understand this statement is being [reported] [recorded]?

A. Yes.

Q. Ms. Evers, I am Brook Swane and I am going to be asking you some questions about an accident . . . [interview Q & A follows]

Swane: Well, I think that is all. Thank you very much.

(Statement concluded at 10:45 a.m.)

These alternative methods have advantages and disadvantages. An electronic recording is efficient and preserves the exact words of the witness. An audio recording captures the voice inflections and sounds of the witness, and the video recording captures everything. A digital recorder or camera may make some witnesses uncomfortable causing them to decline to be interviewed but may also convey useful information thought the physical reaction of the interviewee. Electronic recordings may result in poor quality recordings if other people interject or comment when the recorder is on or if mechanical difficulties occur. Witnesses may balk at having a reporter present to record their statement. A transcribed statement also adds additional cost.

Which if any of these methods are used depends upon the resources available, the issues at stake, and the cooperation of the witness. Insurance claim agents investigating a minor case may conduct a recorded interview over the telephone and if investigating a major case may conduct a face-to-face recorded interview. Some lawyers prefer a reporter statement if the matters at stake merit such a method and if the client can afford such an expense. Electronic recording devices may be less intrusive and can be easily operated. An investigator can readily record an interview without the need for an assistant or a reporter.

§ 2.6.7 Copies of Witness Statements

Section 5.7.6 discusses the discoverability of witness statements by a party or by the witness under the rules of civil procedure. It may be advisable for an investigator to voluntarily give a copy of a statement to a witness immediately after the interview so that the witness can provide that statement to subsequent investigators and avoid making a second, and different, statement. This tactic is particularly applicable if the witness has favorable information. It may be inadvisable to provide a copy of a statement to a witness if the opposing side can prematurely obtain access to such information.

Many states have rules or statutes requiring anyone obtaining a written or recorded statement to provide the witness with a copy upon request. And some states require witness statements be provided to all parties. Federal Rule 26(a) mandates that documents used to support a claim or defense, which includes supportive witness statements, must be disclosed to other parties. State discovery rules may permit a party to submit a production request to another party for all witness statements, making them discoverable.

§ 2.6.8 Payments to Witnesses

The general rules concerning payments to witnesses are: (1) the only expenses that may be reimbursed to a lay witness include reasonable costs of travel and compensation for loss of time, (2) a lay witness cannot receive money or compensation for being interviewed or for testifying, and (3) expert witnesses may be paid for their professional services and time. Jurisdictions usually codify or modify these general rules and may further restrict the scope of permissible compensation or the amount.

Rule 3.4(b) of the Model Rules of Professional Conduct clearly prohibits any “improper inducement” to a lay witness. Payment or advance of reasonable expenses incurred by a witness to attend or testify” and reasonable reimbursement for lost time or earnings is permitted under the view of the Model Rules drafters. Tactical considerations should also influence the decision on payment of compensation, even if legitimate, to witnesses. A witness who receives substantial reimbursement may appear to be biased in favor of the party who paid the money.

Some witnesses may expect to receive reimbursement for their time spent being interviewed. Individuals who are often eyewitnesses, such as police and highway patrol officers, anticipate or request payment for their time. Unless a witness requests payment or unless the local practice requires the tender of expenses, it is advisable not to offer to pay a witness. The amount that is authorized is usually so low that it will be an insufficient incentive to encourage the witness to cooperate and any larger payment may be illegal or unethical and will surely be a tactical mistake appearing to be an improper influence.

Other witnesses may expect and demand to be paid for providing information to an investigator about the location of a witness, document, or other source of information. Payment in these situations does not appear to run afoul of the ethical standards because the money does not pay for facts or testimony but only pays for source information. In some cases, this distinction may be blurred rendering payment inappropriate. For example, if a witness provides both factual information and location information then it would be improper to pay that witness because of the mix of information. Criminal investigators will be able to pay informants but civil litigators may not, notwithstanding what you see in movies.

§ 2.6.9 Informing Witnesses

An attorney cannot render legal advice to a witness unless the attorney represents the witness. Neither can an attorney cause an investigator to provide legal advice. The most tempting advice to give a witness is not to talk to anyone else about the case. But it is both unethical and a tactical error to tell a witness to refuse to talk. It is clearly improper and a conflict of interest for an attorney to provide legal advice to a non-client witness. It is also a tactical mistake allowing the other side to later argue that the advocate had something to hide and had to rely on withholding information in an attempt to win.

Some witnesses may ask during or after the interview whether they should talk to anyone else. An investigator in this situation may be able to carefully explain the consequences to a witness of talking or not talking to the other side without providing legal advice. There may be a fine line between answering that question and providing legal advice. The difference may be that the investigator cannot advise the witness what to do (and should expressly tell the witness this when answering a question seeking advice). But the investigator can explain generally what witnesses may or may not do. If a witness statement has been obtained the witness may be able to provide a copy of the statement to the other side instead of being interviewed. Or if no statement is preserved, the witness may talk with the other side but not give a witness statement.

§ 2.7 Use of Experts

In many cases it is desirable or even necessary to obtain expert assistance in the beginning stages of an investigation. This assistance may take the form of an investigator with expertise in a specific type of investigation. For example, if a case involves issues relating to the cause of a fire, it may be imperative to hire an experienced arson or fire cause-and-origin investigator. Early expert assistance may be obtained not to conduct an investigation, however, but rather to assist in guiding the attorney’s investigation. For another example, an accountant might provide valuable assistance to the lawyer in evaluating a creditor/debtor case and determining what financial records need to be preserved.

Experts can provide invaluable assistance to lawyers investigating complex cases. Often, early guidance allows the investigator to preserve certain facts that, without expert assistance, the attorney would not know to do. In product liability actions most attorneys would have the presence of mind to secure the product involved in causing the injury. There may be other conditions which bear on the question of the product’s defectiveness or causal relation to the loss that even an astute lawyer would not realize are vital without the guidance of an expert.

Retaining an expert early in the investigation is a decision with important ramifications. Often the expert retained at the beginning of the case as a consultant will be the most logical expert to use at trial. Even if that the expert will not be available or suitable to testify later, it may be worthwhile to retain the expert to assist in identifying and hiring other experts who may be needed or who can testify at trial.

Expert witnesses may be located through a wide variety of means. Other attorneys may be contacted. It may be possible to obtain in a short phone call to a colleague what would take days to locate by other means. Moreover, the information to be learned from another attorney will ordinarily include valuable information not available elsewhere: Is the expert plaintiff- or defense-oriented? How does the witness appear on the witness stand? How reliable is the witness in meeting deadlines? What is the expert’s reputation in the community? If an expert is known to have opinions available to anyone willing to pay the fee, it may be counter-productive to retain that expert, particularly if settlement is the goal. Opposing counsel will not be impressed with overly malleable experts.

As discussed in § 2.4.6, the use of the Internet or LLM-backed tools may produce helpful information. Search words associated with the area of expertise may produce available experts. Some experts, or sources of experts, will have web sites or home pages. Email may be used to contact potential experts but some sensitivity may be required because some communications with experts may be discoverable even though drafts of expert reports are not. See Federal Rule 26(b)(4)(B). Rule 26(b)(4)(C) protects communications “required to provide a report” but exempts communications regarding compensation or the identification of facts or assumptions provided to and relied upon by the expert. So be careful about how the case is presented to the expert so that any discoverable information does not make it appear that the expert was misled toward a distorted or incorrect analysis.

Professional associations may be helpful in locating an expert in the specific area. Many law firms maintain records of experts who have either been used by the firm or by the firm’s adversaries and these records may be sought. Local colleges and universities are also potential sources of experts.

Support staff can do much of the initial work in identifying and contacting experts and canvassing them to ascertain their interest in consulting. Litigators need to conduct the interviews and ascertain the expert’s qualifications, credibility, and potential value to the case as well as to develop an effective working relationship.

HDE v. Tri-Chem

ADDITIONAL BOND-MOR INFORMATION

Ordinary cement mortar lacks sufficient adhesive strength to permit construction of a single width brick wall without reinforcement. Tri-Chem developed a family of Zetes Latex products that provides mortar with additional and substantial strength and adhesion. Bond-Mor is a mortar additive that allows Tri-Chem prefabricated brick panels to be used without additional reinforcement. This family of products, primarily Bond-Mor, was created to fill a need in the construction industry and to provide more economical and efficient ways to construct buildings.

Zetes Latex is described as a polymer or copolymer with vinylidene chloride as the primary non-aqueous component. Bond-Mor contains approximately by weight 70% of vinylidene chloride and 30% of vinyl chloride. Prestressed concrete is susceptible to corrosion problems when very low levels of chlorides are present. The American Concrete Institute (ACI) established a 0.06% limit for chloride by-weight of cement. Bond-Mor and other Zetes Latex additives typically release 35 to 50 times the 0.06% chloride standard when mixed with concrete or mortar.

Chloride is highly corrosive to steel and other metals. Steel and iron embedded in cement mortar is normally resistant to or passified against corrosion because the mortar itself is highly alkaline. Alkalines effectively neutralize ordinary rust and corrosion. Zetes Latex additives, Bond-Mor in particular, contain a small amount of free chloride ions in hydrochloric acid that can be highly corrosive to steel and other metals. The highly alkaline cement in mortar and concrete can continuously react with the Bond-Mor additive, which reaction may adversely strip additional chloride ions from the vinylidene chloride component of Bond-Mor. Water and heat, among other things, will cause and accelerate the stripping process resulting in excessive corrosion.

The American Bonding Institute (ABI) and the Structural Products Institute (SPI) have recommended against the use of excessive chloride in brick masonry, cinder block, and similar materials. Under standard masonry practices, more disruptive chloride ions are emitted in Bond-Mor systems containing metals. For example, SPI, in its suggested practices for construction, recommended that “calcium chloride or admixtures containing it shall not be used in mortar or grout in which reinforcement metal ties or anchors are to be embedded.”

The presence of chloride ions can corrode steel and iron. The free chloride ions initially present in Bond-Mor, plus those continuously coming into being due to stripping, may corrode metals embedded in or adjacent to the Bond-Mor mortar. Rust generated from the corrosion of steel or iron and the by-products related to the corrosion of metals occupies more space than is occupied by the metal itself prior to corrosion. This creates expansive forces in the surrounding mortar and brick. Cracks result that deteriorate and weaken the masonry. These adverse results may, or may not, occur over time when Bond-Mor is added to mortar used in masonry.

Bond-Mor was first test-marketed over eighteen years ago. From that time to the present, it has been marketed nationally to the construction, masonry, and architectural industries. Several years ago, bricks fell from HDE’s Ohio building. After the bricks fell, HDE was told to cordon off the area beneath and to post warning signs so that customers will not walk near or touch the bricks. Tri-Chem investigated this problem, made repairs to the walls, and removed the fallen bricks.

Practice Problems and Assignments

Attitudes Toward Clients

The views, opinions, and feelings a lawyer has about a client affect the professional relationship and representation. Consider the positive, neutral, and negative attitudes an attorney may have toward representing:

1. Hot Dog Enterprises (at end of Chapters 1 & 2).

2. Tri-Chem (at end of Chapters 1 & 2).

3. Martha Giacone in Giacone v. City of Mitchell (Case D).

4. The Danforths in Northern Motor Homes v. Danforth (Case J).

5. Northern Motor Homes in Northern Motor Homes v. Danforth (Case J).

6. Farah and Jamal Ehran in *FJE Enterprises v. Arbor Vineyards *(Case L).

7. Gravitas Grinch in Grinch v. ProtectCo Life Insurance (Case O).

8. Denial Mutual Insurance Co. in Case N (Mullarkey v. Denial Mutual)

9. A party in a case assigned by your professor.

Client Participation

What degree of participation should the following client(s) have regarding (A) the initiation of litigation, (B) the taking of a deposition and the progress of other discovery requests, (C) the bringing of motions, (D) the use of alternative dispute methods, and (E) the settlement of the case:

10. Hot Dog Enterprises (Chapter 1, Practice Problems).

11. Tri-Chem (Chapter 1, Practice Problems).

12. Mack and Meg Luger in Luger v. Shade (Case H).

13. Juanita Vasquez in Vasquez v. Hot Dog Enterprises (Case F).

14. Farah and Jamal Ehsan in FJE Enterprises v. Arbor Vineyards (Case L).

15. Mike Mullarkey in Mullarkey v. Denial Mutual Insurance Co. (Case N).

16. Gravitas Grinch in Grinch v. ProtTectCo Life Insurance Co. (Case O).

17. A party in a case assigned by your professor.

Client Counseling

Counsel the following client including (A) seriousness of the case, (B) alternative solutions, (C) advantages and disadvantages of these alternatives, (D) the consequences to the client, (E) the litigation process, (F) discovery costs including electronic discovery expenses, (G) a prediction of the outcome of the case, (H) the extent of the client’s participation, (I) attorney fees and expenses, (J) and any other information and advice:

18. Hot Dog Enterprises (Chapter 1, Practice Problems).

19. Tri-Chem (Chapter 1, Practice Problems).

20. Mack and Meg Luger in Luger v. Shade (Case H).

21. Juanita Vasquez in Vasquez v. Hot Dog Enterprises, (Case F).

22. Farah and Jamal Ehsan in FJE Enterprises v. Arbor Vineyards (Case L).

23. A party in a case assigned by your professor.

Counseling Problems

24. In Giacone v. City of Mitchell (Case D), Martha Giacone comes to your law office before her water is shut off and tells you: “The City has threatened to turn my water off. I was wrong in not doing something about this before. I should have known better. And I may owe how much they claim I owe. I know the law favors the City, and there’s nothing you can do for me. Do you know where I can get some extra money to pay off the water bill?” How would you respond?

25. In Giacone v. City of Mitchell (Case D), Martha Giacone comes to you for legal assistance before her water is shut off by the City. She asks you: “Can they turn my water off? Can’t you sue them to stop that? Or should you contact the mayor. I used to work for her. So, what can you do for me?” How would you answer her questions?

26. In Pozdak v. Summit Insurance Company (Case B), Fran Pozdak retains you to represent him after the fire. During the course of your initial interview with him he says to you: “I’m not really sure how valuable some of my work was. I think it’s worth a lot of money, but the actual market value may be much less. I figure at least we have to really inflate the value of the personal property a lot so that I can get as much money as I can from the insurance company. What do you think?” How would you respond?

27. In FJE Enterprises v. Arbor Vineyards (Case L), Farah and Jamal Ehran retain you. During the initial interview with them, Farah says: “We’ve been operating like this for years. Our success has come about because we take a remarkedly different approach to business.” And Jamal follows: “That’s right. It seems like our legal system is stacked against us. Why are we treated differently?” How would you respond? What questions might you ask them? What advice do you offer them now and for the future?

28. In Vasquez v. Hot Dog Enterprises (Case F), Juanita Vasquez retains you. During your initial interview with her she says: “I really want to sue HDE and Wankle and everyone else involved who was trying to get me. I want to teach them a lesson they won’t forget. I want them to suffer the way they made me suffer. It’s about revenge.” How would you respond?

29. In Vasquez v. Hot Dog Enterprises (Case F), Juanita Vasquez retains you. Before you explain the status of the law to her and her available remedies, she says: “I know I’m going to win. A friend of mine was in a similar situation and her lawyer was able to get her a lot of money. It seems pretty obvious to me that HDE violated the law, and any judge or jury is sure to agree with me. Right?” How would you respond?

30. In Vasquez v. Hot Dog Enterprises (Case F), Dan Wankle retains you to defend him. During the course of the initial interview, he says: “I don’t know what to do. The more I think about it the more confused I get. I just don’t know. You’re the expert? I’m paying you. Tell me what to do. What would you do if you were in my place?” How would you respond?

31. In Vasquez v. Hot Dog Enterprises (Case F), Dan Wankle retains you to defend him.

(A) After you explain the law and procedures to him, he says: “Well I may have said and did some inappropriate things, but it will be my word against hers. Who will know what really happened? My memory may not be really clear about some things. I already got rid of some of those emails that were pretty bad. Can I also get rid of the others?” How would you respond?

(B) After you respond, he says: “Yea, I know. But you can tell me what I should avoid saying and help me say things that sound better. And you can tell me how I can best explain how I “inadvertently” deleted those emails. That’s what lawyers do. So, come on, help me out here.”

Lawyer Representation

32. In Vasquez v. Hot Dog Enterprises (Case F), presume that Vasquez sues Hot Dog Enterprises and Dan Wankle. Should these defendants retain separate counsel? Outline the reasons for and against separate counsel.

33. In Luger v. Shade (Case H), presume the Lugers sue Sam Shade and the Develco Corporation. Should these defendants retain separate counsel? Outline the reasons for and against separate counsel.

Legal Research

What legal research efforts would you conduct if you were representing this client; follow the directions from your professor in completing this assignment:

34. Hot Dog Enterprises in its potential lawsuit against Tri-Chem (Chapter 1, Practice Problems).

35. Tri-Chem in HDE’s action (Chapter 1, Practice Problems).

36. Hot Dog Enterprises in Vasquez v. Hot Dog Enterprises (Case F).

37. Mack and Meg Luger in Luger v. Shade (Case H).

38. Juanita Vasquez in Vasquez v. Hot Dog Enterprises (Case F).

39. The Tymons in Tymons v. Allgoods and Razzle (Case M).

40. A party in a case assigned by your professor.

Judicial Forum

What factors need to be reviewed to determine in what judicial forum the following case should be brought:

41. Mack and Meg Luger versus defendants in Luger v. Shade (Case H).

42. Juanita Vasquez versus defendants in Vasquez v. Hot Dog Enterprises (Case F).

43. A case assigned by your professor.

Investigation

Presume no lawsuit has been started and the other side has not retained an attorney. Follow the directions from your professor in completing this assignment. Plan how you would investigate the following case and consider:

(a) When should the investigation begin?

(b) Who should investigate?

(c) What sources of information are available?

(d) What Internet search engines are available to assist in obtaining useful information?

(e) What social network systems and electronic devices can be searched and how?

(f) What documents and electronically stored information likely have to be preserved?

(g) What documents and electronically stored information can be destroyed or deleted in the ordinary course of business?

(h) What physical evidence is available?

(i) What experts should be contacted?

(j) Who should be interviewed and why?

44. You represent Hot Dog Enterprises in its potential lawsuit against Tri-Chem (Chapter 1, Practice Problems).

45. You represent Tri-Chem in defense of the potential litigation involving Bond-Mor (Chapter 1, Practice Problems).

46. You represent the family of Mariko Miyamoto in *Miyamoto v. Snow Cat *(Case C).

47. You represent the Summit Insurance Company in Pozdak v. Summit Insurance Company (Case B).

48. You represent the Tymons in Tymons v. Allgoods and Razzle (Case M).

49. You represent Mike Mullarkey in Mullarkey v. Denial Mutual Insurance Company (Case N).

50. You represent ProTectCo Property & Casualty Insurance Company in Estate of Dara Domestic v. Gravitas Grinch (Case O), who is being defended by the liability insurer but where the insurer believes Grinch intentionally caused the injury that is the subject of the lawsuit.

51. You represent a party in a case assigned by your professor.

Witnesses

Presume no lawsuit has been started and the witness is not represented by an attorney. Follow the directions from your professor in completing this assignment. For the following case determine:

(a) What witnesses would you interview?

(b) How would you approach each witness?

(c) How would you maintain the cooperation of the witness during the interview?

(d) How would you conduct the interview?

(e) What types of questions would you ask?

(f) What social network communications would you ask about?

(g) What documents and electronically stored information would you ask about and what would you want to review and copy or reproduce?

(h) What topics would you cover?

(i) What does a law based LLM or GenAI source suggest as responses to these queries?

52. You represent Hot Dog Enterprises in its potential lawsuit against Tri-Chem (Chapter 1, Practice Problems).

53. You represent Tri-Chem in defense of the potential litigation involving Bond-Mor (Chapter 1, Practice Problems).

54. You represent the family of Mariko Miyamoto in Miyamoto v. Snow Cat (Case C).

55. You represent Juanita Vasquez in Vasquez v. Hot Dog Enterprises (Case F).

56. You represent ProTectCo Life Insurance Co. in Grinch v. ProTectCo (Case O).

57. You represent a party in a case assigned by your professor.

Witness Interviews

Presume no lawsuit has been started and the witness is not represented by an attorney. Follow the directions from your professor in completing this assignment. Select a major witness from the assigned case and:

(a) Decide how you would contact the witness to obtain an interview.

(b) Plan to interview the witness.

(c) Outline the topics to be covered in a witness statement.

(d) Should the interview be recorded? Why? How?

(e) Outline the topics for an audio recording.

(f) Outline the topics for a video recording.

(g) You anticipate the witness will refuse to be interviewed. Prepare some reasons why the witness should consent to an interview.

(h) You hope to obtain as much favorable information as possible. What words or phrases will you suggest the witness adopt? What techniques may be effective to influence the witness to provide favorable information?

(i) You anticipate the witness may refuse to talk unless you pay some money. What can you do? What should you do?

(j) What kind of witness statement might you create to be signed?

(k) If the witness asks for a copy of the witness statement or recording. What do you do?

(l) If the witness asks whether it is okay to talk to other investigators. How do you respond?

(m) Interview the witness provided you.

(n) Outline what should be included in a post interview file memo.

(o) Draft a file memo.

(p) Use an audio recorder, smart phone, or other device and conduct an interview.

(q) Use a video recorder, smart phone, or other device and conduct an interview.

(r) Compose a witness statement for the witness to sign.

(s) How can an LLM or GenAI assist with these tasks?

58. You represent Hot Dog Enterprises in its potential lawsuit against Tri-Chem (Chapter 1, Practice Problems).

59. You represent Tri-Chem in defense of the potential litigation involving Bond-Mor (Chapter 1, Practice Problems).

60. You represent Martha Giacone and plan to interview Kay Olsheski in Giacone v. City of Mitchell (Case D).

61. You represent Juanita Vasquez and plan to interview Robert Clune and co-workers in Vasquez v. Hot Dog Enterprises (Case F).

62. You represent a party and plan to interview a witness assigned by your professor.

Critiquing Witness Statement

63. Critique the witness statements of Byron Cascades and Alma Weymuth in Miyamoto v. Snow Cat (Case C). How would you, as the plaintiff lawyer conducting the interviews, improve the statements?

Case Planning

Prepare an overall litigation plan by planning these topics and follow the directions from your professor in completing this assignment:

(a) The pleadings

(b) The investigatory approaches to be used

(c) The Internet investigatory search engines that may be used

(d) A preliminary discovery plan with deadlines

(e) Anticipated disclosures by the other party

(f) Anticipated documents and electronically stored information to be obtained

(g) Anticipated e-discovery protocols

(h) Anticipated depositions to be taken

(i) Anticipated other discovery

(j) Anticipated procedural motions

(k) Anticipated dispositive motions

(l) Anticipated negotiations

(m) Possible ADR methods, including mediation

(n) The use of an LLM or GenAI platform to assist with these tasks.

64. You represent Hot Dog Enterprises in its potential lawsuit against Tri-Chem (Chapter 1, Practice Problems).

65. You represent Tri-Chem in defense of the potential litigation involving Bond-Mor (Chapter 1, Practice Problems).

66. You represent Summit Insurance in Pozdak v. Summit Insurance Company (Case B).

67. You represent the family of Mariko Miyamoto in Miyamoto v. Snow Cat (Case C).

68. You represent Martha Giacone in Giacone v. City of Mitchell (Case D).

69. You represent the Mitchell Computer Club in Mitchell Computer Club v. Rainbow Computer Company (Case E).

70. You represent Juanita Vasquez in Vasquez v. Hot Dog Enterprises (Case F).

71. You represent Arbor Vineyards in *FJE Enterprises v. Arbor Vineyards *(Case L).

72. You represent a party in a case assigned by your professor.

Presentations

73. You have been requested by Summit Continuing Legal Education to make a presentation at its annual Investigation CLE Program. Follow the directions from your professor in completing this assignment. Prepare a concise outline of your presentation regarding an assigned topic:

(A) Top Ten Internet Investigation Search Engines

(B) Top Ten Resources for Information about Businesses

(C) Top Ten Resources for Information about Persons

(D) Top Ten Resources for Information from the Federal Government

(E) Top Ten Resources for Information from Your State Government

(F) How to Go About Using the Internet, Websites and/or AI systems to Investigate Cases

Additional problems relating to e-discovery and electronically stored information appear at http://fundamentalspretriallitigation.com/. These assignments provide you with the opportunity to investigate, disclose, and discover ESI information from an electronic database that contains ESI and that can be searched for documents. Your professor may assign some of these problems, or you can visit this website and conduct document searches on your own.

1. See, e.g., Jack Friedenthal, Jr., et al., Civil Procedure (Hornbook Series 4th ed.2010); Charles Alan Wright & Mary Kay Kane, Law of Federal Courts (Hornbook Series, 8th ed. 2016). Texts used for law school courses may also serve as treatise-like sources of information and ideas. See, e.g., Jack Friedenthal, et al., Civil Procedure: Cases and Materials (13th ed. 2022); Brooke D. Coleman, et al., Learning Civil Procedure (4th ed. 2022). ↑
2. • See* David F. Herr & Roger S. Haydock, Motion Practice (8th ed.2020); Roger S. Haydock & David F. Herr, Discovery Practice (9th ed.2020). These books not only cover everything a litigator needs to know but also make wonderful gifts for just about anyone. ↑
3. • See* American Bar Association, Section of Litigation, The Litigation Manual (John G. Koetl & John Kiernan eds. 1999) (3 vol. Looseleaf); Roger S. Haydock, Negotiation Practice (1984) This can include sources that might help with reaching an informal settlement, or at least trying, prior to filing suit. See, e.g., Roger Fischer, et al., Getting To Yes: Negotiating Agreement Without Giving In (2011); Robert H. Mnookin, et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes (2004). ↑
4. • See, e.g.,* American Law Institute, Restatement (Second) of Conflicts of Laws (1971)(a Restatement (Third) of Conflicts is currently in progress); Russell J. Weintraub, Commentary on the Conflict of Laws (6th ed. 2010); Robert Leflar, American Conflicts Law (4th ed. 1986); Albert A. Ehrenzweig, Treatise on the Conflict of Laws (1962). ↑
5. [Erie Railroad Co. v. Tompkins,](https://www.westlaw.com/Document/I2e1a10979ca411d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I2e1a10979ca411d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 304 U.S. 64 (1938)](https://www.westlaw.com/Document/I2e1a10979ca411d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I2e1a10979ca411d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
6. [Klaxon Co. v. Stentor Electric Mfg. Co.,](https://www.westlaw.com/Document/I2e1e08379ca411d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I2e1e08379ca411d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 313 U.S. 487 (1941)](https://www.westlaw.com/Document/I2e1e08379ca411d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I2e1e08379ca411d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
7. See [Restatement (Second) of Conflict of Laws § 6 (1971)](https://www.westlaw.com/Document/I67a34a0bdc5d11e28ffbce485a8faf03/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I67a34a0bdc5d11e28ffbce485a8faf03/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
8. [Hanna v. Plumer](https://www.westlaw.com/Document/I0a4635aa9bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0a4635aa9bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 380 U.S. 460 (1965)](https://www.westlaw.com/Document/I0a4635aa9bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0a4635aa9bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
9. *See *Byrd v. Blue Ridge Rural Electric Co-op, Inc., 356 U.S. 525 (1958); Guaranty Trust Co. v. York, 326 U.S. 99 (1945). ↑
10. [304 U.S. 64 (1938)](https://www.westlaw.com/Document/I2e1a10979ca411d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I2e1a10979ca411d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
11. • See* 5 U.S.C.A. § 552. ↑
12. • See, e.g*., Nev. Rev. Stat. § 648.200. ↑
13. See Bradley C. Nahrstadt & Claire L. Lunardini, Using the Internet as a Discovery Tool, The Practical Litigator, May 2005, at 33, 37 (providing wonderful compilation of suggestions and internet sources of information). ↑
14. See Gregory P. Joseph, Rule 5(d) and Public Access to Discovery Materials in Federal Court, The Practical Litigator, Jan. 2007, at 45. ↑
15. See, e.g., [Pohl v. MH Sub I, LLC](https://www.westlaw.com/Document/I142bd0c0f13411e9831490f1ca5ff4e0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I142bd0c0f13411e9831490f1ca5ff4e0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 332 F.R.D. 713 (N.D. Fla. 2019)](https://www.westlaw.com/Document/I142bd0c0f13411e9831490f1ca5ff4e0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I142bd0c0f13411e9831490f1ca5ff4e0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). See generally Hon. Paul W. Grimm, Daniel J. Capra & Gregory P. Joseph, Authenticating Digital Evidence, 69 Baylor L. Rev. 1 (2017). ↑
16. *See, e.g., *https://losspreventionmedia.com/8-free-tools-to-help-with-your-social-media-investigations/. ↑
17. See [Rhone v. Schneider Nat’l Carriers,](https://www.westlaw.com/Document/I0ee13e60084f11e6be97c29f3a4ca000/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0ee13e60084f11e6be97c29f3a4ca000/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 2016 WL 1594453 (E.D. Mo.)](https://www.westlaw.com/Document/I0ee13e60084f11e6be97c29f3a4ca000/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0ee13e60084f11e6be97c29f3a4ca000/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(plaintiff ordered to produce entire “Download Your Info” report from Facebook account). It should be fairly clear that a third party’s request for that information would be rebuffed by Facebook. ↑
18. • **[T.C. on Behalf of S.C. v. Metro. Gov’t of Nashville & Davidson Cty., Tennessee](https://www.westlaw.com/Document/Ia7291cc0841111e8b29df1bcacd7c41c/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia7291cc0841111e8b29df1bcacd7c41c/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)*[, 2018 WL 3348728 (M.D. Tenn.)](https://www.westlaw.com/Document/Ia7291cc0841111e8b29df1bcacd7c41c/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia7291cc0841111e8b29df1bcacd7c41c/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); [Gondola v. USMD PPM, LLC](https://www.westlaw.com/Document/Ia5fceab0264a11e68cefc52a15cd8e9f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia5fceab0264a11e68cefc52a15cd8e9f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 223 F. Supp. 3d 575 (N.D. Tex. 2016)](https://www.westlaw.com/Document/Ia5fceab0264a11e68cefc52a15cd8e9f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia5fceab0264a11e68cefc52a15cd8e9f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
19. See pewresearch.org/internet/fact-sheet/social-media/. ↑
20. *See *ABA Model Rule of Professional Conduct 4.2. ↑
21. *See *reruns of the X-Files. ↑
22. See 18 U.S.C.A. § 2511 and regulations promulgated thereunder. ↑