A common mistake made by people involved in legal disputes is to behave as if they are not being watched. Due to developments in society, technology, and government, you are safer to assume that your actions are being monitored, and you should be candid with your attorney about your conduct.
It is very common for people to hire private investigators, even if no lawsuit has been filed. A private investigator can be engaged by an attorney, so the work of the private investigator is private and protected by a legal doctrine called “work product.” This means that the investigation is protected from disclosure.
Private investigators can be expensive, but so are attorneys. If your opponent can afford an attorney, you should assume they can also afford a private investigator. If you think that no one is watching you because you haven’t noticed anything out of the ordinary, that may simply mean that the investigator is doing an excellent job staying out of your sight.
The worst thing that can happen in your case is for your attorney to be the only person in the case who does not know what you have been up to, even if you have been up to no good. Your attorney can only help prepare your case if they know the necessary information. You know what you did. If the investigator, the other side and their attorney know what you did and your attorney does not, then you will have a serious disadvantage in negotiations and in court because your attorney is handicapped by what they do not know. Your conversations with your attorney are completely protected by the attorney-client privilege, so you should be up front and candid with your attorney about your activities to help them prepare you and your case.
Even if there is no private investigator, your mobile devices constantly record your activities, especially your location. Your cell phone, smart watch, and fitness monitor are all sophisticated tracking devices. With effort, you can change the default settings to limit tracking, but if you are carrying a cell phone or any device that has GPS or Bluetooth, you should assume that an expert could look at the device’s data and retrace your steps.
Many appliances and home fixtures are Internet-connected, “smart” devices that record data about your activity in your home. It may be possible for someone to access data from your thermostat, refrigerator or doorbell to see if you were home or not at any given time. In the event of a lawsuit this information may be accessible to the other side.
If your car has a navigation system or Internet activity, the location of your car is being recorded. Additionally, some cars have “event data recorders,” which operate like the “black boxes” in airplanes. EDRs record information about car wrecks. They are extremely difficult to remove. If your car has a satellite connection or a toll pass transponder, it is relatively easy for an adversary to obtain data about where you have been.
The largest, most frequently-used search engines, including Google, Yahoo and Microsoft, all record information about you and your searches. Facebook also records your search history. Your computers and mobile devices also retain information about your internet activity. Your internet activity and search history is stored in at least two locations: on your device and by the company you used to access the internet.
Friends and Neighbors
A common mistake people make is to confide in their neighbors and other acquaintances they believe to be “friendly.” If you share your private information with someone, you make them a potential witness about your life. Adversaries in legal disputes were typically partners in life or in business. This usually means that they shared intimate information with one another and that they shared a similar circle of friends. You have no way of knowing if someone in your circle will be loyal or friendly to you or is actually acting on behalf of your former partner now opponent. You cannot afford to confide details about your circumstances to anyone other than your attorney. Again, the biggest mistake you can make for your case is to allow your attorney to be the last one to learn key information about you. You must assume that you have been and are being watched and that your attorney needs to know the truth in order to effectively work for you.
If you are being investigated, if you are a witness, or if you are a party to a lawsuit:
- Do not engage in illegal or suspect behavior.
- Tell your attorney everything.
- Assume you are being watched at all times.
After this blog was first posted, The Week published an article, The perils of the risk-averse society, asking, "Do we really want to live like this?" The article addresses some of the many tradeoffs between government and private monitoring (surveillance) and risk mitigation.