Investigations: Considerations for Selecting and Directing Outside Investigators

• Author: Jeremiah A. Pastrick, Esq.
• Profession: Continental Enterprises
• Pages: 231-250

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CHAPTER 13

Investigations

Considerations for Selecting and Directing

Outside Investigators

Jeremiah A. Pastrick, Esq.

Continental Enterprises

Acquiring accurate information is essential to the creation of new intellectual

property (IP), for example, an invention that already exists; a book, song, or

poem that has already been written; or a logo or product design that has already

been taken. All of these things can transform a business plan, a work of art, or a new

brand from your ticket to an early retirement, at best, to a failed venture or, at worst,

an infringement lawsuit and heavy financial penalties. Private investigators can pro-

vide a reliable and efficient me ans of collecting the inform ation necessary to keep

you, your ideas, and your brand protected.

In addition to assisting in the creation of IP and protecting you from infringe-

ment, private investigators also have a valuable role to play in the protection of

your IP. Collecting information on potential infringements, assisting in the exami-

nation of that information and the creation of an enforcement strategy, and acquir-

ing top-quality evidence are all functions that you should be able to rely on a

seasoned IP investigator to perform. Furthermore, some of the traditional and

modern skills of a private investigator also come into play in the world of IP, in-

cluding tracking and locating individuals, surveilling individuals, connecting online

identities and aliases to real persons, and uncovering anonymous or concealed

domain name owners.

Like many other professions in the 21st century, private investigation has be-

come increasingly more specialized. The person you hire to find out if your spouse

is cheating is not the same person that you hire to uncover fraudulent claims by an

insured party. And neither are the same person that you hire to assist in the creation

and protection of your int ellectual property. Inv estigators who specializ e in IP are

increasingly more common. But even among their growing ranks, the quality of the

work product that you receive from them can vary greatly. As such, it is important to

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exercise discretion when selecting an investigator to assist you in creating and/or

protecting your IP.

This chapter will provide you with guidance on the issues that should be given

considerationwhendecidingwhetherandwhenyouneedaprivateinvestigation

and how to select and manage an investigator.

Why Hire Outside Investigators

The first issue that you are likely to confront when deciding whether to hire a private

investigator is, ‘‘Do I really need to hire someone to do this?’’ In this author’s opinion,

the answer is ‘‘yes.’’ You may be thinking, ‘‘Why don’t I just have my intern/para-

legal/least favorite child do this?’’ The answers to those questions include:

&The quality of the investigation and the information that you receive is largely a

function of the investigator’s experience.

&Investigations can be dangerous, especially as they delve deeper into the sources

of counterfeit goods.

1

&The manner in which the evidence is collected, handled, and maintained will

have a significant impact on its use, especially if there’s a trial.

2

&Conducting private investigations often requires a license.

3

&The person who collected the evidence may have to act as a witness, especially if

there’s a trial, and investigators typically serve as better witnesses than an

employee or an acquaintance or a family member.

4

Experience

As with all service industries and skilled profe ssions, experience varies greatly and

matters significantly with private investigators. Good investigators may make it look

easy, but collecting information and evidence can be a difficult task, especially if

undertaken haphazardly or done by someone with little experience.

In my years working with private investigators, I have certainly come to learn

that there is both an art and a science to the field of investigations. Uncovering facts,

checking and verifying them, examining the conclusions that can be drawn from

them, and reexamining and retesting those conclusions is a process that certainly

has features akin to the scientific method. However, some of the best information

that comes out of any investigation is the information that comes directly from peo-

ple’s mouths. And, while modern technology, databases, and the increasing (and at

times irresponsible) inclination of people to publicize endless information about

themselves and their activities on the Internet has made some of the science of in-

vestigations easier, the age-old art of getting someone with key information to spill

the beans has not been furthered that much by technology. For this, you need some-

one with skill and experience. You need someone who knows how to elicit infor-

mation in a conversational style so that the person they are talking to does not feel

like they are being interviewed or interrogated. This type of person will be able to

get you information that no database will uncover. This type of person is a good

private investigator. As an attorney, I can tell you that I am not able to do it; I always

232 Intellectual Property Operations and Implementation