I am hunting for some useful materials for my civ pro class about pre-suit investigations, and I found a great one, except it includes this gem: "The legal investigator should not rely upon pretext or subterfuge except in situations when an honest and straightforward approach will not be effective." No, not making that up.
Back to hunting I go!
What's the citation, David?
Posted by: Monroe Freedman | January 18, 2012 at 07:31 AM
I had quite a bit of stuff on pre-suit investigation techniques (bad techniques) like "roping" and "the mess" in my book Trial Ethics (Little Brown). This was written back in the 80s though. Nobody bought it. I did have a good sale when the six copies in our law library were stolen. (I am not making this up. Somebody stole the Ethics Books!)
I let my students know that investigators have Codes of Ethics, just like (I am not making this up either) real estate agents and Elvis Impersonators. You can have a lot of fun on cross-examination with this stuff. I sent the terse Elvis Code to John Steele, because I thought he probably needed it.
Posted by: Rick Underwood | January 18, 2012 at 07:45 AM
Brian Faughnan, Mike Matula and I devote an entire chapter to covert discovery and surreptitious investigations in our recent book, Douglas R. Richmond et al., Professional Responsibility in Litigation (ABA 2011). The Midwest Motor Sports case out of the Eighth Circuit is one of the better illustrations of how things can go wrong.
Posted by: Doug Richmond | January 18, 2012 at 08:13 AM
See also In Praise of Overzealous Representation – Lying to Judges, Deceiving Third Parties, and Other Ethical Conduct, 34 Hofstra L. Rev. 771 (2006).
Posted by: Monroe Freedman | January 18, 2012 at 09:22 AM
Rick, they're called Elvis "tribute artists" now.
Posted by: John Steele | January 18, 2012 at 09:29 AM
Thanks, all. It's hard to find the right balance b/w civ pro and ethics. I don't want to teach all of 4.2/4.3/3.3... in a civ pro course. Andy P. sent me his chapter, which is good, and I'm trying to figure out what to do.
I got married by Elvis, by the way. It is on youtube. No, I am not making that up.
Posted by: David Hricik | January 18, 2012 at 11:45 AM
New interesting 6th Circuit evidence case, State Farm v. Accident Victims Home Health, 2012 WL 48338. The case is interesting as an evidence case (improper character evidence) but it is discussed at Evidence Prof Blog under the title "State Farm Is There." What happened was that State Farm had reason to think claims filed by AVHH etc were fruadulent, and they conducted a subrosa surveillance of the services employees - got video of service employees doing nothing for the patients, goofing off, etc.. So I guess the sub rosa investigation is not dead after all. The opinion did not discuss the details, which is a shame. Presumably the patients were in on it.
Posted by: Rick Underwood | January 18, 2012 at 04:18 PM