Working PI Magazine - Issue 1

PREMIERE ISSUE

Pr ivate In vestigato rs

Spring 2022, Vol. 1

TRUSTIFY FOUNDER Goes to Jail

GETTING PAID

as an Expert Witness

UBER CAUGHT

Hiring Unlicensed PIs, Pretexting

POLITICAL OPPONENTS Hire PI to Follow Judge

SETTING UP

a Digital Forensics Lab Working PI

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Editor’s Note

Spring 2022, Vol. 1

|

CONRTIBUO T RS

3

Amber Schroader

Political Opponents Hire PI to Follow u J dge

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Setting p U a Digital Forensics Lab & Services

14

rT ustify Founder Goes to a J il

COVER STORY : bUer Caught sU ing n U licensed Private Investigators

aT lking to Witnesses

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Pursuit Magazine

Personal Experience with a e R lational Fraud

Getting Paid as an Expert P ( I) Witness

Mission Working PI is published to help readers build their businesses, reduce their risk of liability and stay informed on important technology and industry issues.

Write Us! Comments and letters are welcome. All stories without attribution are written by the editor.

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Hal Humphreys Pursuit Magazine

26 30 Editor Isaac Peck | isaac@orep.org Marketing & Graphic Design Ariane Herwig | ariane@orep.org Associate Editor Kendra Budd | kendra@orep.org

rT avis Peck

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Working PI is published by OREP Insurance Services, LLC (CA Lic. #0K99465) and mailed to 20,000 private investigators nationwide. The ads and specific mention of any proprietary product contained within are a service to readers and do not imply endorsement by Working PI. No claims, representations or guarantees are made or implied by their publication. The contents of this publication may not be reproduced either in whole or in part without written consent.

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Working PI | Spring 2022

EDITOR’S NOTE

Glad to Meet You Hello and thanks for reading Working PI. My name is Isaac Peck, the Editor of Working PI and Senior Broker at OREP Insurance (OREP.org).

Working PI (Working Private Investigator), which you now hold in your hands, is a new independent industry publication designed to help you build your business, reduce your risk of liability and stay informed on important industry and technology issues.

Our promise is to cover these stories with the energy and honesty that your important industry deserves—without the slant. I hope you find that this issue lives up to that promise.

Working PI reaches over 20,000 private investigators, covering stories important to this valuable profession. Please pass along your suggestions, story ideas and comments to me at isaac@orep.org. I’ve always believed that the men and women who go out to do the actual work everyday are the ones who know best about what’s really going on and what matters most. Please let me know and I will do my best to cover the story.

Another Email Newsletter?

Yes, another email newsletter. But this one is different. The email edition of Working PI is content-driven, bringing you valuable features and important news in between print mailings. If you haven’t seen it, you’re not included in the mailing list. You can opt-in for the email edition of Working PI at www.workingpimag.com.

Finally, please support the advertisers who make this magazine possible and tell them you saw it in Working PI! Thanks again.

Isaac Peck Editor of Working PI and Senior Broker at OREP Insurance

Spring 2022 | Working PI

3

Political Opponents Hire PI to Follow Senior Judge

by Isaac Peck, Editor

In a statement issued after the hearing, Carpay said that the decision was “meant to hold officials accountable” and was done to “determine if they were breaching public health orders.”

Private investigators are no strangers

to behind-the-scenes work relating to political feuds. But for the most part, they manage to stay out of the public’s view. Not so in this case.

Last summer, a private investigator in Canada found himself in the middle of a political dispute over COVID-19 lockdown regulations! Glenn Joyal, the Chief Justice of the Manitoba Court of Queen’s Bench, found himself being

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Working PI | Spring 2022

tailed by a private investigator after being selected to preside over the court challenges related to the province ’s COVID-19 lockdown measures.

Apparently, lawyers for the Justice Centre for Constitutional Freedoms, an advocacy group representing multiple churches that have been vigorously fighting the lockdown measures, hired a private investigator to tail Joyal, hoping to catch him violating the COVID-19

protocols and use that information to embarrass him and prove their point.

Joyal realized he was being followed when he left the courthouse and proceeded to drive around the city to confirm. He says he was then followed to his private residence outside of town. The private investigator also hired a young boy to ring his doorbell, perhaps in an page 7

page 4 attempt to catch him answering the door without a mask on.

In a court hearing with the Justice Centre, Joyal mentioned that while he did not know who was behind it, the surveillance of his home and intrusion of his privacy raised “serious concerns about the privacy and safety of judges generally” and could be seen as an obstruction of justice.

“I am deeply concerned that this type of private investigative surveillance conduct could or would be used in any case involving any presiding judge in a high-profile adjudication,” says Joyal, adding that the Winnipeg police are

investigating. Later in the hearing, John Carpay, a lawyer representing the Justice Centre for Constitutional Freedoms, admitted that it was his organization that hired the private investigator to follow Joyal. Carpay went on to explain that he had hired private investigators to follow a number of public officials in order to catch them breaking public health regulations. However, Carpay was quick to apologize for his “error in judgement.”

In a statement issued after the hearing, Carpay said that the decision was “meant to hold officials accountable” and was done to “determine if they were breaching public health orders.”

News of this understandably upset many other Justices and government officials in Canada, many of whom pointed out that intimidation and harassment of Justices and Health Officers had increased due to the COVID-19 lockdown measures that were put in place in 2020 and 2021.

While no such reports have been confirmed in the United States, it would not be surprising if certain stateside political organizations contracted their own private investigators to tail prominent politicians in an effort to fight against the heavy-handed lockdowns over the last two years. We may never know!

Spring 2022 | Working PI

7

Setting Up a Digital Forensic Lab

by Amber Schroader, CEO Paraben Corporation

Digital forensics is not a spectator sport. The rest of your workforce should not view the lab area...keep the data clean, secure, and private.

For those of you that have had a lab

for a while or are just getting started, these are some great guidelines to streamline and maximize your time in the lab. From procedure steps to the machine options, there are always choices that a lot of times will depend on how much you want to spend.

Step 1. Define the Lab’s Purpose Knowing what types of digital evidence you want to process will help you to determine what equipment you need, and the processes you should have in place. It is always a good idea to know what types of data you want to be

processing, if you are processing forprofit, and to determine how long it will take you to get the money you invested in the lab back. Conduct a thorough evaluation of your capabilities and the availability of resources. We recommend doing a quick analysis that allows you to see what is going to work and what is not before you start investing.

Make sure you can extract, export, search, and convert different types of data. This will be important so you know in the end what you are going to be providing as a work product. Whether it is reports, exports, or both you need

to make sure you have a plan so that you add the science of a repeatable process into your digital forensic lab.

Once you define your services you will be able to better meet your customer’s need. Make sure they are areas you are interested in. Digital forensics is an ongoing skill set that requires continued education and development.

Step 2. What Space Do You Need?

The first concern is always space—as you need to keep your forensic area clear of other matters. Two reasons for this can make a big impact on you. The first page 10

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Working PI | Spring 2022

page 8 is evidence should always be treated as precious cargo and needs to be maintained, locked up, and have controlled access. Keep environmental controls in mind with a clean, cool, and dry environment. Nothing is worse than having damage happen to evidence due to poor controls.

The second is the mental health of your staff. When you are dealing with potential items that can be mentally draining you must have a set area to keep it in.

That way you can walk away from that zone and work from a separate area for day-to-day matters.

Address mental health as a primary need; it is often overlooked in digital forensics. Keeping your mind sharp is part of what makes you a good digital forensic examiner and knowing you can close the door and take a break is a great way to facilitate this.

Chain-of-custody issues need to be considered as well as the increased likelihood evidence could be lost, misplaced, or damaged while in transit. You may also want to consider who your main clients are for your lab. Will the lab be convenient for them and does this matter? The location of your lab may also have a large impact on some of the upcoming topics we will be reviewing, such as network connectivity, environmental controls, power requirements, and security controls.

Paraben uses lab tickets to help manage the intake of evidence into the lab.

Tickets are kept with the evidence as an internal tracking tool on top of the traditional chain-of-custody forms.

Finally, keep in mind that digital forensics is not a spectator sport. The rest of your workforce should not view the lab area. To ensure that materials are reviewed in a professional manner, keep the data clean, secure, and private.

Step 3. Pick Your Equipment As with many geeks out there you might have a bunch of equipment you can use

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in your lab. There is nothing wrong with building a forensic workstation as long as you keep a few things in mind.

1. Make sure the processing power matches what you are working on.

2. Have a clean drive with a licensed operating system.

3. Dedicate the workstation to digital forensics.

When it comes to processing power, needs change based on the types of evidence.

Consider whether you want to invest in one machine or two machines so you can dedicate a system for computer evidence processing and one to mobile evidence processing. Some labs will dedicate the less powerful systems to acquisition and have a primary power system for actually breaking down the data. No matter which option you use, it is always a good idea to have more than one machine in a lab.

Choosing a workstation configuration is an important step. The effectiveness of digital examiners depends on the way the machine is configured. The workstation should work as quietly as possible; use low-noise fans and passive cooling systems to achieve silent performance.

We recommend using two or more monitors for each workstation.

There are many forensic workstation providers out there such as Digital Intelligence, Forensic Computers, EDAS Fox, SUMURI, and many more. You can work with any one of these vendors to design a workstation that fits your needs. Many of the custom workstations will come with specialized equipment such as write blockers built into the machines.

You also need to consider the storage of your evidence. Who will need to access files? Will you store image files on individual hard drives, on your forensic workstations, on a network storage device, or some hybrid?

Many organizations will choose to set up a storage network. There are lots of options available for this configpage 12

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page 10 uration. The best practice is for your digital forensics lab to have a standalone network consisting of its cabling, switch, and router. This lab-specific network will allow all devices within the lab to communicate with each other in a secure environment while allowing connectivity to the existing corporate network infrastructure and the internet through specific secured ports and protocols. Implementing a labspecific network can be done relatively inexpensively depending on the type of hardware you choose to implement and the installation costs for cabling.

Step 4. Pick Your Software Software is one of the highest expenses beyond people that you will have in your lab. The cost of software in digital forensics varies significantly between manufacturers. Keep in mind those costs are

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often higher just based on the size of the manufacturer you are dealing with.

When purchasing software, you need to compare all your different choices.

Just because a company is the largest in the business doesn’t mean smaller companies don’t have something just as good. Do an honest evaluation and make your decisions based on a few key points.

1. Always pick software from a forensic company. Don’t pick a random tool from the internet. Make sure the software is designed to work with items as digital evidence.

A lot goes into the tool’s backend to ensure that the data is properly handled behind the scene.

2. Evaluate the company for their customer service. When you add digital forensic software into your lab you are starting a relationship with that company. You want to make sure

you know who they are and how quickly they will resolve issues you will have; this is inevitable.

3. Is it supporting what you need?

Don’t get caught up in a trend when you are starting a lab. Make sure you are getting tools that support what you need, not what is hot. If your client base is not doing a lot of chat in WhatsApp then that should not be a feature you require your tool to have.

4. Have more than one tool. Don’t think you get a one and done when it comes to digital forensic software.

You need to make sure you get a primary tool and a backup. Digital evidence should always be processed and cross-verified. There are lots of free and open-source options available such as Autopsy that can be part of your lab. Get a foundation tool and

cross-validate with something that is more budget-friendly.

Many times you will have access to comparison charts. Check the charts and ask the software provider how they generate them to ensure the data you are seeing is fair and complete before falling into a potential marketing trap.

Now that you’ve wrapped your mind around what it takes to set up the equipment of the lab, it is time to start looking at staffing the lab and managing the flow of the lab. This can be the hardest part because you are dealing with people and what they need on top of what you need digitally. This is where the f lexibility required to deal with digital data is required.

Hiring the Right People When looking to hire people in digital forensics who have the skills you need to produce the proper results out of your lab, there are a few factors to consider.

• Focus of Lab - When deciding to do digital forensics it is important to know what type of data you are going to be dealing with. The type of data will tell you where you want to focus on the skills for the team members you want in the lab.

• Focus of Cases - Not all good examiners can find data with all types of cases. If you are dealing with a lot of financial fraud cases you will want someone who understands how numbers work and what type of data they should be looking for. This is very different than the type of data you would be looking for with a child exploitation case. Understanding the data you are looking for makes a big impact on the skills you look for in a team member.

• Lab Feel & Attitude - Not everyone agrees that the feel or attitude of the lab matters, but it can affect the overall productivity of the lab if you get someone in that does not fit. If you are going to be strict on the processes, make sure you pick team members who can follow clear direc-

tions and are okay with doing the same processes over and over.

• Certifications - In a field like digital forensics where it is not regulated as a standard science, the industry is gauged by the certifications held by the different examiners. Most of the certifications in the field of digital forensics are done by a vendor of some type. Some courses will include certifications as part of the course cost, and others will not. Make sure you read the fine print of what you are getting and also how often you will need to be recertified. All certifications should have a testing component and most will have a lab with it as well. It should not just be based on the attendance of the course. I will break down the training and certifications into two categories based on vendors.

1. Software Vendors - A certificate is associated with each of the different specialized tools. A certified user will have competency in the operation of the tool in the process of an examination.

Team members must hold multiple certifications in this category to demonstrate competency in multiple software tools. Although people might have preferences on tools, they must use more than one tool. As mentioned prior, the cross-validation process is a requirement in the field to confirm that all the data was found in the investigation.

2. Training Vendors - Other vendors provide training courses known as “vendor-neutral” and teach the fundamentals of the field. Be mindful of these course selections as many times the “vendor-neutral” side is not truly followed. You need to ensure the course focuses on the principles and what needs to be done in a process and not on a method of a tool. Vendors such as Paraben can offer courses like this that are not specific to tool operation such as the Digital Forensics Fundamentals Course; this

course goes over what you should know to perform digital forensics and discusses a wide variety of tools. The courses and certifications that fall in this category can be costly, so shop around and look for both paid and open source options for learning. However, there is typically a fee for certification.

Select team members with skills and certifications that vary to keep your lab well-rounded and skilled in a large variety of digital skillsets.

Managing Expectations of Data Management is the hardest part of the process if you do not understand the processes performed by team members.

There are many training courses available that teach managers the fundamentals of the processes that should be used. It is always recommended that managers attend one of these courses.

In addition to managing people, managers must also manage the expectations of the client with the data. This is the harder part of the equation because each case that is processed is going to have different data. It is important to understand and explain to clients the difference in data types and in most cases, the recovery of data. Clients can assume you can work a miracle and that doesn’t always happen—so keep the expectations realistic and be honest and upfront with your clients.

Final Thoughts The key to managing a team and working with clients is to give reasonable expectations, executed by proper procedures. By clearly defining deliveries for both, you have the best chances for successfully delivering data and reports promptly. This makes everyone (clients and team members) happy and allows your lab to have a strong reputation.

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Spring 2022 | Working PI 13

Trustify Founder Goes to Jail (PI)

by Isaac Peck, Editor

A firm that invested over $6 million in Trustify argued that Boice “made Trustify ‘go dark,’ evading and outright ignoring…repeated requests for information.”

In March 2021, Daniel Boice, CEO and

founder of Trustify, was sentenced for his orchestration of a $18 million investment fraud scheme. Boice was sentenced to 97 months in jail followed by 3 years of supervised release. He was also ordered to pay $18.13 million in restitution and $3.7 million in forfeiture— sums that many have suggested he will never be able to repay.

Trustify, a company which Boice founded in 2015, was heralded as the “Uber of Private Investigators.” Boice claimed that he was inspired to start the company

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after his first divorce and his vision was an Uber-style website and phone application that consumers could use to hire private investigators with the push of a button.

Boice raised more than $18 million from over 250 individual and corporate investors and in a very Uber-esque style, Trustify lost money. But more importantly, Boice was able to raise funds from investors by fabricating Trustify’s financial statements, severely inflating Trustify’s revenue and performance, lying about corporate business relation-

ships, and even pretexting! According to a Department of Justice press release, Boice created a fake email account and posed as a prominent potential investor— subsequently emailing an investment firm and successfully convincing them to invest nearly $2 million in Trustify.

Boice diverted much of the company’s assets for his personal expenditures, including flying on private jets, expensive mortgages on two homes, jewelry, Caribbean vacations, and his own extravagant wedding to his second wife.

Former employees allege in a lawsuit

that he used $600,000 of company funds to make a never-completed documentary about himself and his then-wife.

The total funds diverted to his personal expenditures is estimated by the Securities and Exchange Commission to be close to $8 million.

While Trustify did actually perform some legitimate business, its model was built on relatively low wages for private investigators and it struggled to find high-quality investigators willing to work for $30 per hour. Critics pointed out that this was way under market value. This led, in part, to Trustify spending heavily on advertising.

Additionally, if you can hire a private investigator with the push of a button, who is vetting the client? What if a sexual predator or stalker used the app to collect data on a potential victim?

The many nuances, dangers, and risks involved in the private industry seemed to be brushed over by this Uber model.

These were the challenges that Trustify struggled with.

Some experienced, veteran private investigators long suspected that Trustify didn’t have a functional business model and predicted its demise—but perhaps few realized what a scam it actually was. By November 2018, Boice stopped paying his employees and then promptly fired them all right before Thanksgiving. Already facing lawsuits and collection calls regarding unpaid rent and bills due, this final action set off warning bells for the rest of his investors and a series of lawsuits followed. A firm that invested over $6 million in Trustify argued that Boice “made Trustify ‘go dark,’ evading and outright ignoring… repeated requests for information.”

Even in the face of an imploding business and investor lawsuits, Boice penned an article published by Medium in Spring 2019 titled “Trust, but Verify”—perhaps serving as the pinnacle of his gaslighting delusion.

His own staff sued him for unpaid wages and when he was court-ordered to pay his staff back and resign from

Trustify, he moved to Florida, started calling himself Keith, and got a job with a medical software company which is now also suing him for fraud and theft.

Before he was finally arrested and charged with fraud, Boice claimed that he was the victim of a “seek and destroy mission conducted by a group of old white male one-percenters and their silver spoon trust fund inheriting lackeys.”

Ultimately, the “Uber for Private Investigators” ended in disaster. It is pure irony that the founder of an app for private investigators “on demand” should’ve been investigated himself—an irony that is perhaps most appreciated by Trustify’s investors.

Sentencing Daniel Boice to eight years in prison, Judge T.S. Ellis III said: “It would be difficult to describe the havoc you created by your fraudulent actions.

It’s an egregious fraud.” For his part, Boice said: “I accept full responsibility, I make no excuses, no justification, and I am truly, truly remorseful.”

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COVER STORY

UBER CAUGHT Hiring Unlicensed PIs, Pretexting

By the late spring, the Court found itself investigating Ergo’s own investigation, finding that Neves “used false pretenses” and made “blatant misrepresentations” to individuals that he contacted in order to gain information about plaintiff and plaintiff’s counsel. ”

I

“

t is a sad day when, in response to the filing of a commercial lawsuit, a corporate defendant feels compelled to hire unlicensed private investigators to conduct secret personal background investigations of both the plaintiff and his counsel. It is sadder yet when these investigators flagrantly lie to friends and acquaintances of the plaintiff and his counsel in an (ultimately unsuccessful) attempt to obtain derogatory information about them.”

These are the opening lines of Judge Jed Radoff’s decision against Uber in the United States District Court for the Southern District of New York.

Of course, in certain sections of the private investigator community, this is (perhaps) not considered terribly uncommon—as the private investigation firm in this story admits. But this case is a good reminder of how a reputational investigation can go sideways fast.

Here’s a look inside a pretty vanilla corporate espionage case—gone wrong.

(In 2020, Uber ultimately prevailed against Meyer concerning the original case matter—but this case still

provides a classic example of corporate malfeasance.)

The Case The case began years earlier, plaintiff Spencer Meyer, a Yale environmental research, filed a lawsuit against Uber Technologies and Travis Kalanick (Uber’s then CEO) alleging that Uber’s “Surge Pricing” was price-fixing.

The day after the lawsuit was filed, Mat Henley, Uber’s Director of Investigations reached out to Ergo, which appears to be a very top-tier private security and investigation firm. Specifically, Henly contacted Ergo Managing Partners Todd Egeland, a former Chief Strategy Officer at the Central Intelligence Agency (CIA), and Matthew Moneyhon (a former State Department employee), saying “I have a sensitive, very under-the-radar investigation that I need on an individual here in the U.S.” Ergo responded the very next day indicating they were happy to take the job and that they do “quite a bit of this work for law firms.”

Within a couple of weeks, Ergo had a statement of work written up and page 19

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page 16 Uber signed off on it. Ergo was given specific instructions from Uber to keep it “general enough so that the research remains discreet from a discovery perspective.”

Pretexting Shortly thereafter, Ergo investigator Miguel Santos-Neves was put on the assignment and subsequently reached out to 28 acquaintances of Meyer, the plaintiff, and his counsel, Andrew Schmidt.

In approaching these “sources,” Neves made a number of materially false statements about why he was contacting them.

Since Meyer was a conservationist associated with Yale University, Neves told sources that he was attempting to verify the professional record and previous employment of various up and coming researchers in environmental conservation. Telling the sources that what he was doing was similar to a “head hunting process,” Neves questioned his sources on whether they “knew of any personal issues that might affect Meyer’s reputation” and whether Meyer had ever “butted heads with the law in any way.”

Similarly, since Schmidt’s law practice focused on labor law matters, Neves told other sources that he was engaged in a project profiling top up-and-coming labor lawyers in the U.S. Neves even called Meyer’s landlord, representing that “as a part of the real estate market research project for a client,” he was interviewing property owners in New Haven to find out what due diligence steps property owners take to vet a potential tenant.

After extensive pretexting, Neves ultimately failed to uncover any dirt on either the plaintiff or his counsel (at least according to court records). However, Neves did note in his report that “Meyer may be particularly sensitive to any publicity that tarnishes his professional reputation”—specifically in reference

to the idea of spreading the word about Meyer’s lawsuit against Uber.

Plaintiff Finds Out Within weeks of Neves’ action, the plaintiff’s co-counsel, Brain Feldman, Esq., became aware of the fact that an investigator had been contacting acquaintances of the plaintiff and the plaintiff’s counsel.

By the late spring, the Court found itself investigating Ergo’s own investigation, finding that Neves “used false pretenses” and made “blatant misrepresentations” to individuals that he contacted in order to gain information about the plaintiff and plaintiff’s counsel. In his deposition, Egeland, Managing Partner of Ergo and Ex-CIA Chief, testified that “he did not see it as a problem that the sources believed (falsely) that Mr. Santos-Neves was creating a report on leading figures in conservation.” Adding that, Ergo analysts, “as a more general matter, mislead sources about the reason why they are reaching out to them to collect information.”

As it turns out, New York has particularly strict rules about using false pretenses and making misrepresentations, especially as it relates to litigation work.

The Court pointed out the New York Rules of Professional Conduct “require lawyers to adequately supervise nonlawyers retained to do work for lawyers in order to ensure that the non-lawyers do not engage in actions that would be a violation of the Rules if a lawyer performed them.”

Actions that a lawyer may not ethically take include knowingly making a false statement of fact and engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.”

In its defense, Ergo cited two very popular private investigation cases: 1. Gidatex, S.r.L. v. Campaniello Imports, Ltd., wherein courts concludpage 21

Spring 2022 | Working PI 19

page 19 ed that it was not a violation of attorney disciplinary rules for investigators to pose as customers of the opposing party in order to investigate compliance with a cease-anddesist letter in a trademark case; and 2. Apple Corps Limited v. Int’l Collectors Soc., wherein courts allowed misrepresentations to determine whether the opposing party was complying with the terms of a consent order.

The court promptly rejected Ergo’s defense, arguing that Ergo’s case was sharply distinguishable from these other cases. A key distinction is that in Gidatex and Apple Corp, the private investigators posed as regular members of the public (customers) and did not “trick” the sales clerks into making statements they otherwise would not have made,” whereas in the case of Ergo, the sources would not have shared the information they did if the private investigator had not misrepresented himself.

Additionally, in Gidatex and Apple, the pretexting was done in order to discover a crime and/or a violation of a court order. In the Apple Corp case, the court wrote: “The prevailing understanding in the legal profession is that a public or private lawyer’s use of an undercover investigator to detect ongoing violations of the law is not ethically proscribed, especially where it would be difficult to discover the violations by other means.” On the other hand, Ergo’s efforts were quite clearly just an ambitious “fishing expedition.”

To make matters worse, Court records note that: “At all times relevant, Ergo’s

investigators were not licensed to conduct private investigations in New York state.”

In response to Ergo’s assertion that it was not conducting private investigation work, the Court coyly responded: “If concocting fictitious stories to induce acquaintances of a client’s litigation adversary to shed light on the adversary’s employment, finances, family life, and motivation for bringing a lawsuit does not constitute private investigation work, then the Court does not know what would.”

Conclusion In its Order, the Court spends over 20 pages taking Uber and Ergo to task for blatant misrepresentations, fraudulent conduct, unlicensed private investigator activity, illegal recording of phone calls, and reckless disregard for New York and other state laws.

However, the penalty for Uber, Ergo, and Neves was ultimately very mild.

Uber, which by this time must have anticipated a negative reaction from the Court, had already agreed to pay the plaintiff “a reasonable (though publicly undisclosed) sum in reimbursement of plaintiff’s attorneys’ fees and expenses incurred in conjunction with these matters.”

The Court ultimately closed the case with the following outcomes: 1. An order prohibiting Defendants from using any of the information obtained through Ergo’s investigation in any manner, including by

presenting arguments or seeking discovery concerning the same; 2. An order enjoining Defendants and Ergo from undertaking any further personal background investigations of individuals involved in this litigation through the use of false pretenses, unlicensed investigators, illegal secret recordings, or other unlawful means; 3. The Court retains jurisdiction to enforce Uber’s agreement to reimburse plaintiff in the sum agreed to by the parties.

In its closing arguments, the Court wrote that it “cannot help but be troubled by this whole dismal incident.

Potential plaintiffs and their counsel need to know that they can sue companies they perceive to be violating the law without having lies told to their friends and colleagues so that their litigation adversaries can identify ‘derogatories.’ Further, the processes of justice before the Court require parties to conduct themselves in an ethical and responsible manner, and the conduct here fell far short of that standard.”

Based on the Court’s ruling and other public records, it does not appear that any further sanctions were sought against Uber, Uber’s counsel, or Ergo. No record of a disciplinary complaint was found when investigating whether Neves was ultimately sanctioned by the New York Department of State.

Clearly, it pays to have a $50B+ market cap (in the case of Uber) and/or to be ex-CIA (in the case of Ergo). Stay safe out there!

4 YEARS L ATER: After litigating the case for over 4 years, the Meyer v Uber Technologies and Travis Kalanick case eventually was mandated to arbitration and Uber prevailed in the case.

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Spring 2022 | Working PI 21

Talking to Witnesses

by Hal Humphries, Founder/Lead Investigator of [FIND] Investigations

“I have a deep sense of empathy for witnesses. By the time I introduce myself to a witness, I usually have a sense of who they are and, quite often, a notion that under another set of circumstances, we would probably be fast friends.”

In a criminal case, the defense always

starts from a disadvantage. From resources to authority, the defense almost always begins a case from the back of their heels. The state has police, district attorneys, DA investigators, crime labs, experts, warrants, badges, and authority, whether actual or perceived.

The defense has a lawyer.

That lawyer may, in the best of circumstances, be able to hire investigators, independent labs, and experts. They may be able to issue subpoenas. But often,

they are crippled by lack of funding, time, and authority.

Subpoenas for defense witnesses are routinely denied. Requests for discovery are slow-walked. Information—required information—gets delivered last minute in varying degrees of usability. The state has to provide certain information, but they don’t have a requirement to provide it in an organized or even usable format. They just have to provide it, such as it is.

We defense investigators spend a goodly portion of our billable hours trying to unravel raw code and proprie-

tary video formats. It’s a time sink—and therefore, a money sink—but it’s what has to be done. We cobble together resources, call in chits, and do the best we can to sort and parse and organize.

Our counterparts on the prosecution side are police. When it comes to resources and authority, we are not equals. Police have a badge. They have the full force of the state behind them.

Police use proprietary video codecs, players for which they alone have access. Police have forensic computer and cell phone labs, some of which use technology that is expressly unavailable to private investigators. page 24

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through Instagram. I read Twitter posts. By the time I introduce myself to a witness, I usually have a sense of who they are and, quite often, a notion that under another set of circumstances, we would probably be fast friends.

Often, we share political views. Often, we like the same kinds of things. If it weren’t for the unfortunate circumstance that compels our meeting, we’d have a lot of fun and agreeable things about which to chat.

So in my peculiar version of naïveté, I often have a sinking feeling when witnesses refuse to talk.

page 22 Defense investigators have curiosity, charm, and good looks. No badge. No authority. Just a desire to suss out facts and understand the case.

It is this understanding, so very crucial to the defense, that drives me as an investigator.

When I approach witnesses, regardless of which “side” they may be on, I do so with a desire to understand. As an investigator, I don’t have an allegiance to a particular party. I have a 100% allegiance to the facts. That’s it.

Nothing more.

We are tasked with providing our clients with as many facts as we can identify so the attorneys can be as informed as possible prior to trial. This is the heart of our work. Finding facts.

Facts can be good. Facts can be bad.

Facts just are. The attorney, our client, can address those facts in any way they choose, but they MUST know as many

24 Working PI | Spring 2022

as possible—good and bad—in order to litigate a case effectively, equitably, and fairly.

I have a deep sense of empathy for witnesses. By the time I make the first approach, I’ve often gotten to know the witness through background information, social media research, and other means of open-source and readily available information. I read news reports.

I study public Facebook posts. I pore

I’ve long since stoppe d assuming that any refusal to answer my questions is personal. I do not take the rejection as a rejection of me. I see it as a rejection of the “side” for which I’m employed.

Regardless, I always feel a deep disappointment when I realize a declining witness has no interest in making sure the entirety of a story is clear to all parties. This is where my mind gets hung up. This is where I struggle.

In a perfect world, and I am under no delusion about the state of humanity, we would share the stories and inform the prosecution and defense as openly and fairly as possible. This is not a perfect world. Attorneys sometimes use tactics to ensure the letter of the law is met, while the spirit withers. Witnesses are sometimes instructed, in no uncertain terms, that they DO NOT have to talk to anyone.

It’s true. They don’t have to talk to me.

For that matter, they aren’t usually compelled to talk to the prosecution’s investigators. Though it’s much easier to say “no” to some dude with a PI license

than it is to refuse an armed detective with a badge.

I’m comfortable with my lot as an investigator. I understand why a witness might not want to talk to me. I still find it disappointing.

But hey—that’s life.

REPRINTED WITH PERMISSION Reprinted with permission from Pursuit magazine (https://pursuitmag.com).

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Spring 2022 | Working PI 25

My Personal Experience with a Social Engineering Fraud

by Travis Peck, Business Owner and Real Estate Investor

“I checked the store cameras and I could see that Stacey was there and appeared to be crying, and her parents were there as well, visibly upset. My heart raced!”

Isaac Peck, the Editor of Working PI,

is my brother. When he first told me he was starting a magazine for private investigators, I was wondering who was going to write all the articles! Little did I know that I would be one of the authors.

As he was putting this issue together, he asked me to write an article detailing a fraudulent scam that victimized one of my employees in the Summer of 2021.

You see, for most of my life, I always read about social engineering, cons, and scams—and saw it as something that would never happen to me or my business—until now.

Here’s my personal story of what happened and what I learned from it.

Background I’m the owner of Rosa’s Ice Cream and

26 Working PI | Spring 2022

Fruit Bar, a boutique ice cream shop that also sells smoothies, juices, sandwiches, and other tasty treats.

On the day in question, my store manager and another employee, let’s call her Stacey (I’ve changed her name for privacy), were working in the late afternoon. My store manager’s sister ended up going into labor and my store manager had to leave abruptly and take her sister to the hospital. This left Stacey alone to close the store that evening.

The Phone Call Later that night, I was called abruptly by my store manager, who had returned to the store after closing. She told me that I needed to come down there immediately. I checked the store cameras and I could see that Stacey was there and appeared to be crying, and her par-

ents were there as well, visibly upset.

My heart raced! What had happened?

I jumped in my car and raced down to the store. I was worried that someone had assaulted Stacey or that she was hurt. She was only 20 years old.

Upon arriving at the store, I was immediately handed a liquor store BitCoin receipt for $500 and I was told that Stacey had taken nearly all the money out of the drawer and sent it to someone via BitCoin! What?

I didn’t even know you can send BitCoin to someone at your local liquor store!

Stacey was in tears and could barely talk or look at me. Meanwhile, her parents paced back and forth in the store alternating between quietly brood-

ing and yelling admonishments at their daughter.

Apparently someone called Stacey on the store’s telephone right before closing and convinced her that both me and my store manager were engaged in some kind of financial transaction and that we needed her to take $500 out of the drawer, go down to the liquor store, and send it to us via Bitcoin!

Sounds crazy right? That’s what I thought!

Stacey and her family are Cubans who speak Spanish as their first language.

Apparently this entire call had taken place in Spanish and early on the caller had gotten Stacey to give him her cell phone number. So he called her back on her cell phone number and talked to her for nearly 20 minutes before she was finally instructed to take all the cash out of the register and head down to the liquor store.

The craziest thing is that Stacey’s parents came to see her as she was closing the store and they actually drove her to the liquor store! Now I understood why they were so upset. Because now they were complicit in the scam. Apparently they had told her repeatedly NOT to do what she did, but she didn’t listen.

The scene at the store was thick with emotion. Stacey was crying, while her

parents were pacing and yelling, and my store manager was standing there in quiet distress.

I did my best to explain to Stacey that it was ok and that I wasn’t mad at her.

That it was only money. At the mention of money, Stacey’s father insisted that he was going to pay me back. He immediately left the store, got in his car, and promptly returned with the $500— thrusting it into my hands.

I then tried to refuse the money, saying that I could not accept it and that it was my business and I was responsible for these types of risks. Surely a $500 loss meant much less to me than it did to Stacey and her family. But Stacey’s parents would not accept my answer and insisted that I take the money.

At this point, it was after 10 p.m. We had called the police but after waiting 30 minutes for them to show up, we gave up.

They all left in tears and I drove home feeling horrible about the situation.

Tracing the BitCoin, Checking the Surveillance Cameras Once I got back home and my emotions calmed, I got to thinking. I did a quick cash reconciliation of the drawer and concluded that Stacey had only taken $500 out of the drawer. Since her family

Got a personal story and/or a crazy tale that you’d like to share from your experiences as a private investigator?

We’d love to hear from you. Email the Editor at isaac@orep.org.

had insisted on paying me back immediately and I found their behavior in the store to be incredibly believable (you had to be there). I ruled out the possibility that this was some elaborate scam perpetuated by Stacey and her family.

I then proceeded to trace the BitCoin.

I had the receipt of the BitCoin Wallet it was sent to. Apparently, the BitCoin exchange rates at the local liquor stores amount to highway robbery because the amount of BitCoin that was sent to the wallet was only $438 based on BitCoin’s current price (or maybe that’s just how it fluctuates!). I noted that the amount was immediately sent to another BitCoin Wallet after it landed in the first one.

I copied down the information that I gathered and saved it for later.

Then I moved on to the cameras in the store. I remembered how Stacey had told me that a man came in and was acting creepy, even trying to flirt with her, and then left about 30 minutes before the call came in. The man had asked her if she was there alone. I knew that whoever had called her knew my name, knew my store manager’s name, and knew that she was there alone.

A perfect target.

I watched the cameras as Stacey answered the phone with a smile. Almost immediately she took on a more serious demeanor, grabbed a pen and a Post-It Note, and began writing things down.

I watched this behavior repeat for almost 10 minutes as she talked on the phone and took copious notes down, switched to her cell phone, and then proceeded to take further notes. In addition to building rapport with her, I realized that the caller must’ve also been using an old manipulation tactic wherein the target is groomed to follow smaller instructions so that when the larger “ask” is made, it is instinctively easier to say yes to. After nearly 20 minutes, Stacey promptly opens the cash drawer, page 28

Spring 2022 | Working PI 27

page 27 counts out a big pile of money, and walks out the door with her father.

What a thing to watch!

background and have also worked in high security jobs where that kind of training is mandatory for all employees.

Conclusion The next day I again tried to return the $500 to Stacey and her parents but they adamantly refused it. I also filed a police report but you will probably not be surprised to learn that the police have not done anything to date. The officer I finally spoke to was cordial, but was upfront with me that a result on this was unlikely. He told me about another recent scam that had been reported where an employee was instructed to buy $800 in gift cards and then drop them off somewhere.

For my part, I had not trained my employees on how to spot and avoid these types of scams and cons. And I had not established clear rules that no employee is to EVER take, pay, or send money anywhere, to anyone, without speaking directly to me first. Some of my employees are younger like Stacey, in their late teens or early 20s. I realized I had done a disservice to them by not giving them any training in this regard. I had assumed that they knew better. These were my mistakes.

The main lesson for me is that this type of thing can happen to anyone, or at least to anyone’s employees. I have a military

28 Working PI | Spring 2022

And so that ’s my big lesson for other small business owners out there.

If you have employees, be sure you set specific rules about cash manage-

ment and train them on how to avoid and spot scams and cons. Don’t assume that they know better—because they might not!

I know private investigators are not the type of folks that would ever fall for a scam like this. On the contrary, I imagine some of you are occasionally hired to find the perpetrators of such scams. In that, I wish you all the best!

I hope you enjoyed my story.

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Getting Paid as an Expert (PI) Witness

by Isaac Peck, Editor

While the ensuing lawsuit was obviously not practical and perhaps the result of pride instead of rational thinking, the lessons that can be gleaned from it should be of interest to other private investigators.

Some private investigators specifi-

cally solicit litigation related assignments as a matter of choice. Others might intentionally decline litigation work and do their best to avoid winding up in a courtroom or deposition.

Either way, many private investigators find their way into a courtroom or deposition hearing when they’re drawn in by opposing parties, usually because their testimony or the evidence they helped procure is deemed relevant to

30 Working PI | Spring 2022

the lawsuit at hand. In these cases the private investigator often is served a subpoena to show up.

“Witness of Fact,” meaning that they are only due a paltry $10–$15 per day— clearly not enough to pay the bills!

If the private investigator is subpoenaed by opposing counsel to provide testimony in court, or to be questioned in a deposition, the question often arises: who is responsible for paying the investigator’s hourly rate?

Legal Precedent This issue was actually litigated in the case of Leland Phelps v Dennis Moran, LeGros, Buchanan & Paul, (King Co. No. 96-2-12341-1).

Opposing counsel will sometimes attempt to cast the investigator as a

Mr. Phelps had been subpoenaed and called in for a discovery deposition by opposing counsel in a case that he

had been previously involved in. The mistake that Phelps made was that he assumed that he would paid his regular hourly rate of $95 per hour and he did not discuss his compensation prior to or immediately following his deposition.

When Phelps ultimately billed the opposing counsel, they denied him payment, arguing that he was only due a witness fee of $10 per day.

In a move that can either be described as petty or principled, the attorneys that had original hired Mr. Phelps (his original clients) represented him pro bono and filed a lawsuit against opposing counsel for $363!

While the ensuing lawsuit was obviously not practical and perhaps the result of pride instead of rational thinking, the lessons that can be gleaned from it should be of interest to other private investigators. In defense of his hourly rate, Mr. Phelps argued that “he could not stay in business, assisting the adversary system, if he was not paid a reasonable fee for his time, and that limiting private investigators to $10.00 per day would result in the elimination of that group of professionals from litigation” (CruiseLawUSA).

As to why his original clients should not have to pay his fee, Mr. Phelps (and his counsel) maintained that “the party retaining the investigator should not be required to pay for depositions noted by opposing counsel, when it is opposing counsel who controls the time expended and is able to impose undue expenses on the hiring party” (CruiseLawUSA).

In fact the opposing counsel had provided a perfect example of a how such an expense was “burdensome” on Mr. Phelps’ client because they had previously called him to appear at a deposition that was cancelled as soon as he arrived.

Unfortunately, the judge ultimately did not enforce Mr. Phelps’ demand that he be paid at his hourly rate and he left the parties where he found them.

In doing so, the judge pointed to the fact that there was no agreement on payment of fees in advance of the depositions at issue. In other words, Mr. Phelps had erred in not communicating his hourly rate and insisting on fee retainer agreement before the deposition took place.

The Lesson There are two key issues that private investigators should keep in mind to avoid “working for free” if they are doing any kind of work that might involve litigation: 1. Discuss with the primary client beforehand who will pay if the investigator is required to testify or be deposed. If your clients are attorneys—all the better—as they can often shield you from unpaid expert witness work. Having some language in your client agreement is recommended.

2. Communicate upfront with opposing counsel about the investigator’s hourly rate.

One of the challenges private investigators face is that they may sometimes be called to testify about “factual matters,” i.e. being called in as a Witness of Fact— which unfortunately only entitles the investigator to an insignificant “daily rate.”

While it is clear that private investigators (1) use their professional expertise to discover facts, and (2) it serves public policy to have investigators serve the judicial system and therefore be compensated as professionals at fair hourly rates—this case highlights the importance of private investigators discussing their rates upfront with opposing counsel in advance of discovery depositions or court hearings.

In some cases, if the opposing counsel refuses to pay the investigator’s fee, the private investigator can then move for a protective order or take the matter before a judge.

In fact, it is fairly common for attorneys to seek court orders mandating expert

witness fees for their expert witnesses when opposing counsel seeks to depose them. In this way, the retaining counsel is not footing the bill for what might otherwise be a lengthy, and costly, discovery “fishing expedition” undertaken by their opposing counsel.

For example, in the case of LaShawn English v. District of Columbia, the plaintiff sought a deposition of Defendant’s expert witness and was informed by the Defendant’s attorneys that although the expert charges $250 per hour, he would require a pre-payment with a $1,000 minimum. The plaintiffs attorney’s balked at the fee and actually sought an order from the judge arguing that the prepayment was excessive.

The judge, however, agreed that $250 per hour was a reasonable rate for the expert witness, but agreed that a $1,000 prepayment was excessive—ordering that the prepayment be lowered to $500.

This is an example of how your client can shield you from unpaid “expert witness” work as a private investigator.

Of course, it helps if they are attorneys!

So what can we learn from these cases about how private investigators can avoid working for free? Two things stand out clearly: 1. Discuss and agree with your client how these types of situations will be handled if they come up.

2. Communicate and insist on an expert witness fee with opposing counsel if you are subpoenaed.

Stay safe out there!

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Spring 2022 | Working PI 31

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