The Public Side of Private Investigations

"You should hire the guy who tells you no a lot," said James Mintz, founder of the Mintz Group. "You have to do things that are not only legal but acceptable in the eyes of a judge or a jury."

Mintz said his firm had been asked in the past if it could obtain bank and phone records using pretexting -- the method of lying that has led to criminal charges for HP's former board chairman, general counsel and several of the investigators they hired. "We've told clients you would be insane to do that."

His firm largely shies away from deception and from digging into irrelevant details of personal lives. While they will pose as buyers in a counterfeiting case, the investigators generally do not misrepresent themselves when interviewing potential witnesses or doing background checks, he said.

Some techniques have the potential to backfire if they become public, so different investigators draw the line in different places. Take garbage-stealing. It's legal as long as the trash is removed from the street rather than private property.

But Oracle Corp. was deeply embarrassed in 2000 when investigators it hired from Investigative Group International were caught going through the trash of think tanks and nonprofit groups that had been supportive of Oracle rival Microsoft Corp. The IGI team rented offices in the same building as the Association for Competitive Technology in the District and paid janitors $1,200 to hand over the trash.

As a result, some of the biggest firms say they won't engage in trash-stealing, and many prominent lawyers say they won't allow investigators to do it when their client is a big public company or a prominent individual.

"With a big corporation, the cosmetics are as important as the substance," said attorney Robert G. Morvillo, who represented Martha Stewart at her criminal trial. "If you get caught, it looks like you are doing something wrong. . . . You've got to exercise veto power every now and then."

But some investigators and lawyers do not take as hard a line. They avoid introducing stolen trash as evidence in court because they would have to explain where it came from. But they're sometimes willing to engage in a little Dumpster diving behind the scenes.

Larry Lopez, the owner of a small Cambridge, Mass., agency called Strategic Research, recalled a case in which he was working for a business that suspected one of its former employees had violated a non-compete agreement. The standard ruse in such cases would be to pose as a potential investor and approach the person directly, but because the matter was already in litigation, legal ethics canons prohibited direct contact with an opponent.

So Lopez arranged to have the former employee's trash removed and identical bags substituted in its place. His firm went through the garbage looking for names and addresses from the former employee's correspondence. The lawyers would then subpoena the correspondents directly, yielding evidence that could be introduced in court without embarrassment. "For six months, we took trash on these people and they never found out. There was nothing illegal or unethical, but the jury would have turned up its nose," if it knew the whole story, Lopez said.

Surveillance is similarly legal -- as long as it's done on public property and avoids the appearance of harassment or stalking -- but image-conscious firms often limit the practice, said Robert Seiden, chief executive of Fortress Global Investigations Corp., which has about 100 employees. "When we do surveillance for corporations, we're very cognizant [to avoid] allegations that the surveillance was over the line or intrusive," he said. "We have a code of ethics. If we see someone is with their children, we pull away."

By contrast, some investigators trying to disprove disability or workers' compensation claims openly shadow their targets. Insurance investigators say that claimants who know they are being watched sometimes agree to lesser settlements.

Faced with a need for phone records, image-conscious firms generally shy away from pretexting and try the direct approach.

"They say: 'We have a fiduciary duty to look into this. We want your phone records; give them to us or resign,' " Lopez said.

Staff writer Ellen Nakashima contributed to this report.