When a new client retains any of the lawyers in the Locks Law Firm we are careful to explain to them that from that point forward, they are not to speak with anyone whatsoever about any aspect of their case and they should direct any inquiries that even seem remotely case-oriented to their attorney. A case was recently decided in federal court in New York which illustrates how far defense counsel will go to obtain information which they believe to be helpful in defending a case.
A lawsuit was filed in the District Court for the Southern District of New York as a class action against Uber. The lawyers for Uber hired unlicensed investigators to learn more about both the class action plaintiff and also his lawyer. United States District Judge Jed S. Rakoff said it best in the beginning of his July 25, 2016 opinion:
It is a sad day when, in response to the filing of a commercial lawsuit, a corporate defendant feels compelled to hire unlicensed private investigators to conduct secret personal background investigations of both the plaintiff and his counsel. It is sadder yet when these investigators flagrantly lie to friends and acquaintances of the plaintiff and his counsel in an (ultimately unsuccessful) attempt to obtain derogatory information about them.
The investigation firm in question was hired to “find out a little more about this plaintiff” and also “do a careful check on this plaintiff”. The investigation was to be kept “under the radar.”
The investigation firm retained, Global Precision Research (doing business as Ergo) assigned the project to an individual investigator who then reached out to twenty-eight acquaintances or professional colleagues of the plaintiff and his lawyer. The court found that the investigator “made materially false statements” to these individuals, telling them that his interview was “part of a research project, attempting to verify the professional record and/or previous employment of various up-and-coming researchers in environmental conservation.” The investigator told one source that he was working on a “project profiling top up-and-coming labor lawyers in the US.” He even communicated with the plaintiff’s landlord and told the landlord that his research was “part of the real estate market research project for a client… interviewing property owners in New Haven… to find out what steps property owners take to vet a potential tenant.” He followed up on those initial contacts by surreptitiously tape-recording telephone interviews with eight of the individuals without their knowledge or consent.
Judge Rakoff found that the “… purpose of the investigation was to try to unearth derogatory personal information about Mr. Myers [the class action plaintiff] and his counsel that could then be used to try to intimidate them or to prejudice the court against them,” and that this “… included inquiries into plaintiff’s family life, career prospects, and living arrangements, …”
The court held that Ergo “… was engaged in fraudulent and arguably criminal conduct, …” and that the investigator “… made blatant representations to individuals that he contacted in order to gain information about plaintiff and plaintiff’s counsel.”
Toward the end of the thirty-one page opinion the judge quite poignantly wrote that “… the Court cannot help but be troubled by this whole dismal incident. Potential plaintiffs and their counsel need to know that they can sue companies they perceive to be violating the law without having lies told to their friends and colleagues so that their litigation adversaries can identify “derogatories”.”
This is not just an isolated incident. I have been involved in litigation against a cigarette manufacturer where I found out during the course of the litigation that investigators on behalf of the defendant were calling upon potential witnesses in the case and telling them that “we are working on the [John Smith – the name of the plaintiff] case.” While this technically was true in that they were indeed “working on the case”, what they neglected to say is that they were working on the case against John Smith and working to defeat his claim, rather than working on his behalf.
The bottom line and moral of this story is once you have retained a lawyer and litigation is under way, do not talk to anyone but your lawyer or your lawyer’s trusted employees about anything even remotely related to the matter.
