The Expert Podcast

If you are a licensed private investigator or looking to hire an investigator, one of the key phrases to be aware of is called pre-texting. Pre-texting is basically pretending to be somebody else or making up a fake story in order to gather information. Pre-texting by itself is not illegal, but if you're using it to get information under certain categories, it may not be legal. For example, if you use pre-texting to pretend you are a person to get somebody's bank account records, that's illegal.

If you use pre-texting just to observe something, it's probably not illegal. For example, if you walk around with a yellow vest on to make it look like you're official, just to be able to walk down the street and observe what's going on in a neighborhood, that's probably not illegal. But if you pretend that you are a UPS driver, put a UPS patch on, carry a box, and go up to somebody's house to look inside their house, that may be pre-texting to invade somebody's privacy. There are many laws at the federal and state levels that will determine whether or not your pre-texting is allowed.

So, you might think, “Who cares if it's legal? Why shouldn't I just do pre-texting and get away with it?” Well, part of the reason is, if the information you're obtaining is ever going to be used in court, which more than likely is the reason you're gathering it—to use assets for asset recovery or to use evidence in court—at some point, you're going to be asked how you obtained that information. If it's discovered that you obtained the information through illegal pre-texting, not only can the evidence not be usable, but the person who performed this activity can be sanctioned and face legal trouble. Sometimes, it’s actually a criminal offense to do this. You, as a client, may be held liable under vicarious liability, where you might have damages against you civilly. In the worst-case scenario, your entire legal case could be found against you.

Now, remember we're not attorneys, and we're not giving you legal advice, so you want to get qualified legal advice. The important thing is to make sure that if you're gathering information, whoever is gathering it for you is doing it using proper procedures and not using illegal pre-texting. There's a federal law called The Gramm-Leach-Bliley (GLB) Act, which covers a lot of this illegal pre-texting. This came about because there was a large case where a board of directors for a company hired an investigator to pretend they were another person to get cell phone records, and these records were used in a court case. This led to the Gramm-Leach-Bliley Act.

If you obtain records improperly, it can have a domino effect on your case, the assets you're trying to recover, and all the efforts you've made. One of the other factors in pre-texting is that it doesn’t have to be a big thing. A few years ago, we had a case where a client was in a lawsuit with an opposing party. Both parties were trying to gather information on each other's assets to determine if the other side had enough money to fight the case or how much could be recovered. We were doing an asset search, bank account search, and all the type of searches you normally would for a case, but we were doing it legally, using GLB-compliant methods with no illegal pre-texting.

However, as we always do, we counsel our clients to be aware of things that might be used against them. We tell them, "Look, be on the lookout for things that might be another investigator investigating you." We ask them to be aware of any unusual actions from the opposing party, their attorney, or their investigator. It's called counterintelligence. We ask our clients to notify us if anything strange happens, like receiving weird mail, phone calls, or if someone is following them, so we can investigate it.

Sure enough, a couple of weeks later, the attorney for our client said they received a piece of mail that didn’t make any sense. It was a rebate check from a generic company called USA Rebate, for $10, thanking them for purchasing a product. The letter didn’t make sense, and the company name seemed strange—it was from a P.O. Box. We investigated it further, tracked the P.O. box, and traced it back to the person who sent it. We advised our client to take the check, open a new bank account at a different bank, deposit a small amount to open the account, and then deposit the rebate check. We wanted to see what would happen with the check.

The reason for this check being sent to our client was that the opposing party in the lawsuit wanted to see if this check was deposited and which account it went to, in order to perform an asset search on that account. This was technically illegal pre-texting, as it was a fake story about a rebate and a product purchase that didn’t actually exist. While making up a fake story is not illegal, using it to gather sensitive information, such as bank account information, is illegal.

We traced the P.O. Box back to a private investigator located near the opposing party’s area. We took it a step further and found out that this investigator had previously done work for the attorney representing the other side. It was a complete circle, and we presented this evidence to our client’s attorney. The attorney brought the evidence to court, and sanctions were placed on the other side for hiring an investigator who had engaged in illegal pre-texting.

This case shows that even a small act of illegal pre-texting can have significant consequences. The investigator involved was deposed, and when I looked at the transcript of the deposition, I believe they didn’t even know what they were doing was illegal. Many times, investigators think they’re doing something legit, but it’s actually illegal. That’s why it's so important to ensure that your resources are using proper methods, so you don't lose traction on your case or risk having critical evidence thrown out.