EFFECTIVE DETECTIVE Presented for: February 22, 2017 Presented By: Jeffrey M. Lenkov, Esq. (Los Angeles) ; jml@manningllp.com David V. Roth (San Francisco); dvr@manningllp.com Robert B. Zelms (Phoenix); rbz@manningllp.com

Setting a goal is not the main thing Setting a goal is not the main thing. It is deciding how you will go about it and staying with that plan. - Tom Landry

Essential Elements To Preparing To Win Completing a Through Investigation Know Your Adversary Winning with Surveillance

INITIAL INVESTIGATION GENERALLY DOCUMENTS THAT MAY BE NEEDED Incident Report; Employee Statements; Photographs; Emergency Personnel Reports (Traffic Collision Reports; Police, Fire) Gov’t Investigation Reports (OSHA) Employee Schedule; Video Surveillance; Identity of Vendors – Contracts with Potential Third Parties; Policy and Procedure Manual; Safety Policy and Procedures; Training Manuals and Videos.

INITIAL INVESTIGATION Duty To Preserve Evidence? California : No specific duty to preserve evidence absent a request; Federal : Uncompromising duty to preserve evidence once litigation can be reasonably anticipated; Sanctions For Failure to Preserve Evidence Jury Instruction With Negative Inference; Monetary Sanctions; Evidentiary Sanctions (Federal – Court Has Inherent Power To Dismiss Causes of Actions and Defenses)

INITIAL INVESTIGATION CRITICAL INITIAL FOLLOW-UP INCIDENT REPORT; Determine if Supervisor obtained any written statements from employees not included with Incident Report; Determine If Anyone Took Any Photographs; Conduct interview of all employee and non-employee witnesses; Privilege applies under certain circumstances. Payless Drug Stores v. Superior Court (1976) 54 Cal. App. 3d 988; SAFETY POLICIES AND PROCEDURES; Determine who was involved in the development and creation of safety policies and procedures; Determine who was responsible for assuring safety policies and procedures were provided to employees; Determine who was responsible for implementation of safety policies and procedures; Determine if there are any documents evidencing the implementation and compliance with safety policies and procedures.

INITIAL INVESTIGATION Cont’d. CRITICAL INITIAL FOLLOW-UP C. VIDEO SURVEILLANCE Was The Incident Captured On Video; If You Receive a Preservation Letter- Attempt to Comply With As Much As Reasonable; Save As Much As Reasonably Possible of Events Before And After Accident – Will the video show employees were following client’s Policies and Procedures; Any and all video of the guest – from entrance to exit;

INITIAL INVESTIGATION Cont’d. CRITICAL INITIAL FOLLOW-UP Prior Incidents - Determine Prior Incidents – SIMILAR INCIDENTS – Plaintiff will attempt to use as Notice of as evidence of failure to follow Policies and Procedures; E. Personnel Information - Personnel File – Not typically discoverable in California; - Training documentation; Description of duties and responsibilities;

KNOW YOUR ADVERSARY EFFECTIVE USE OF SOCIAL MEDIA HOW SOCIAL MEDIA INVESTIGATIONS CAN MAKE OR BREAK YOUR CASE

KNOW YOUR ADVERSARY UNCOVERING YOUR CLAIMANT’S ONLINE IDENTITY -Photos -Aliases -Date of Birth -Relationship Status -Educational Background -Email Address -Employment

BE THOROUGH CHECK EVERY POSSIBLE SPELLING OF THE NAME KNOW YOUR ADVERSARY BE THOROUGH CHECK EVERY POSSIBLE SPELLING OF THE NAME

KNOW YOUR ADVERSARY What you might find: -If you are lucky: -Photos of the Incident, or and or statements, descriptions, blogs/messages related to the circumstance or events surrounding the incident. -Messages or blogs from witnesses to the incident -Messages or statements from friends or family members about Claimant’s injuries -What were the Claimant’s activities the day of the incident? -Where did he/she check-in that day? -Any posted messages about plans for the day/evening? -Did he/she message or post anything about meeting anyone the day of the incident? -Can serve as surveillance of Claimant’s activities post-accident?

KNOW YOUR ADVERSARY -Exclude irrelevant terms that will skew your search. -Search for specific documents types (ppt.) -Set up google alerts -Focus on comments to news articles about the incident -ID witnesses, ex-employees, important - specific facts

KNOW YOUR ADVERSARY Other websites: people.yahoo.com ask.com Yelp.com Live.com clusty.com dogpile.com zabasearch.com cupid.com match.com grindr.com jdate.com christianmingles.com finder.com bigfoot.com

KNOW YOUR ADVERSARY Archived Information **Go to www.archive.org, and look for “Wayback Machine.” Type in the web address for the website you want to check, and if it has an archived version, it will display the date and the link to the version.

KNOW YOUR ADVERSARY WHEN IT’S PUBLIC Monitor Social Media Websites Closely and Often Send Facebook Preservation Requests (as you never know when they are going to activate privacy settings) Do NOT “Friend” them, message them, chat with them, or post on their pages.

FURTHER INVESTIGATION WHEN PRIVACY SETTINGS ARE ACTIVATED HOPE IS NOT LOST.......

KNOW YOUR ADVERSARY THINK OUT SIDE THE BOX Use what is accessible to you If you can see the Friends list Cross-Reference list of “Facebook” friends with: Family Members Co-workers Individuals identified as having key information about the case

WINNING WITH SURVEILLANCE

WINNING WITH SURVEILLANCE What type of case warrants surveillance? When to conduct surveillance? Cost Factors Who to Use? Discovery Issues When do you reveal? When do you have to reveal? Using Surveillance for ADR Arguments to expect by the other side. Additional Examples