UNITED STATES SEPTEMBER 7, 2015 : In order to meet the criteria of attorney work product, a document must be “prepared in anticipation of litigation”. This means that the evidence developed by the investigator is not protected from discovery by the other side until an actual dispute or claim has arisen.
Attorney-client privilege and work product protection of internal investigations often turns on a complicated and fact intensive inquiry. Companies can protect themselves by properly structuring their internal investigations from the outset.
For example, if an employer believes that one of its employees has been embezzling money while working in the accounting department, it can hire an attorney, who can then retain the services of an investigator, and they can begin preparing a case against the employee. The “work product” resulting from the work of the attorney and his or her investigator is then protected and the information they gather may be used for civil and possibly criminal prosecution. This is the point at which the ‘anticipation of litigation’ begins.
Even when a privilege applies to an investigator’s work, it may be waived under the same rules and exceptions applicable to attorneys. By listing a private investigator as a witness, a party is deemed to waive the work product privilege with respect to matters covered in the investigator’s testimony. United States v. Nobles, 422 U.S. 225 (U.S. 1975). Voluntary disclosure to others and failure to timely assert work product protection or attorney-client privilege are other common sources of waiver.
Litigation typically involves an Inquiry into the assets of each of the parties in a lawsuit. Any asset investigation should include the expertise of a private investigator and the unique resources they can access for the parties and attorneys on each side. AssetSearchPro.com can help you with this important service.
Being knowledgeable about the specific nuances of the numerous information brokers and their databases is critical for anyone engaged in public record data research. An expert investigator who is adept at accessing this data has a broad range of important information readily available. However, one must have both the knowledge and experience required to access the full scope of the public records information network.
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