SC Lawyer, July 2005, #5. Hidden dangers of using private investigators.

• Author: By Robert L. Reibold

South Carolina Lawyer

2005.

SC Lawyer, July 2005, #5.

Hidden dangers of using private investigators

South Carolina LawyerJuly 2005Hidden dangers of using private investigatorsBy Robert L. ReiboldCriminal and civil attorneys routinely use the services of private investigators. They provide invaluable services such as locating and interviewing witnesses, conducting surveillance and performing asset searches and background investigations. Investigators can often perform these services more effectively and at a lower cost than the attorneys who retain them. Moreover, information learned from investigators is often afforded work product protection.

While the benefits of using investigators are certainly great, so are the risks associated with investigators. Investigator misconduct does occur. It may in fact be more common than generally perceived. According to the South Carolina Law Enforcement Division (SLED), a total of 641 formal complaints were filed against private investigators in South Carolina from 2000 to 2004. Data for 2005 is not yet available.

Such misconduct poses real dangers for attorneys who use private investigators. Attorneys can be held vicariously liable for torts committed by the investigators they hire; can be held directly liable for actions of investigators and their own negligence in hiring or failing to supervise careless investigators; and may be subject to disciplinary action as a result of misconduct committed by private investigators. This article will provide an overview of these dangers.

Vicarious liability

Private investigators have been sued on such theories as trespass, invasion of privacy, assault and battery and infliction of emotional distress. Investigators have been sued for conversion after removing garbage from a subject's trash barrels. See, Fordham v. Simmons Agency, Inc., 2002 WL 31356172 (Mass. Super.). Actions against investigators have even been filed by third parties who were accidentally photographed or taped while an investigator was conducting surveillance on another person.

Not infrequently, the subject of an investigation will sue not only the private investigator, but also the person who hired the investigator. See Singletary v. Fridley, 762 So.2d 692 (La.App. 1st Cir. 200) (employee sued employer, law firm and investigation agency); Kirschenbaum v. Rehfield, 530 So.2d 12 (Fla.App. 3rd Dist. 1989) (plaintiff sued law firm for criminal attack committed by investigator); see also Annotation, Liability of One Hiring Private Investigator or Detective for Tortious Acts Committed in Course of Investigation, 73 A.L.R.3d 1175 (1976).

One such case was decided in South Carolina. Watson v. American Equit. Assur. Co., 195 S.C. 463, 12 S.E.2d 30 (1940). In Watson, a fire insurance company sent its agent to investigate the circumstances of a house fire in Sumter. Id. at 30. During the course of the agent's investigation, the investigator became involved in a physical altercation with the claimants. Id. at 30-31. The claimants sued both the investigator and the insurance company. Id. The S.C. Supreme Court held that the case against the insurer should have been submitted to a jury because there was a genuine issue of fact regarding whether the investigator had been acting within the scope of his employment. Id. at 33.

The defense most frequently asserted in such cases is that the investigator was an independent contractor rather than an agent. See Dickinson v. City of Huntsville, 822 So.2d 411 (Ala. 2001); Fridley, 762 So.2d at 693-94; Inscoe v. Globe Jewelry Co., 157 S.E. 794 (N.C. 1931). As one commentator noted:

[a]n initial question to be considered in determining the liability

of the hirer of a private investigator for torts of the investigator

committed upon the persons under investigation is whether the

investigator is the servant or agent of the hirer or merely an

independent contractor. The importance of this determination

results from the general rule that a master is liable for the torts

of his servants committed within the scope of the servant's

employment, whereas the hirer of an independent contractor is

ordinarily not liable for the torts of the contractor committed

in carrying out work under the contract.

Annotation, supra at §2(a). South Carolina follows this general rule. Duane v. Presley Constr. Co., Inc., 244 S.E.2d 509, 510 (1978).

This defense may not always be available. Attorneys who claim that the results of the investigation are cloaked from discovery under the work product doctrine may forfeit the protection of the independent contractor rule. Some courts have also ruled that the duty to perform investigations in a reasonable manner is a nondelegable duty, which the hirer of the investigator cannot escape.

Work product. To qualify for work product protection, the documents or items for which protection is sought must be prepared: (1) in anticipation of litigation and (2) by a party or the party's representative. Rule 26(b)(3), SCRCP. Courts typically afford work product protection to an investigator's statement, surveillance tape or other document because the investigator is considered to be an agent of the attorney, who in turn is a representative of the client. As the U.S. Supreme Court has stated: [a]t its core, the work-product doctrine shelters the mental processes of the...