Recently, I attended a brown bag lunch program with Presiding Judge Thomas Borris and Judge Robert Moss, put on by the Orange County Trial Lawyers Association at the Orange County courthouse.

The head judges spoke at length about the precarious financial position of the courts, and how they may be forced to make substantial cuts, including cuts to security and even closing the courthouse doors two days each month. In this type of scenario, they said criminal cases would take precedence, meaning this would create (or add to) the backlog of civil cases, as dates are pushed further out due to scarce resources.

One measure they expect to help reduce the impact of the budget crisis is the rollout of the California Case Management System (CCMS), which they are working to roll out statewide. The CCMS system will be tested in San Diego County, Ventura & San Luis Obispo Counties in an effort to work out any bugs.

The Orange County courts are officially paperless, and are requiring all cases in the Complex Civil category be e-filed. They are actively encouraging e-filing in all matters makes the courts more efficient brings in funding to the courts. They hope to open up the CCMS to bar members in the near future, an exact date for this is unknown due to the uncertainty for the budgets in the 2011/2012 fiscal year. With this system, attorneys will have access to case documents, dockets, pleadings, etc., statewide. Currently, the state has contracted with One Legal to support e-filing in Orange County, though an additional vendor is expected to be added soon.

Based on the perspective from Orange County, our neighbors in Los Angeles County are in far worse shape, where courthouse closures are possible (though none have been announced).

In light of this uncertainty, Santoni Investigations can help you meet the needs of the court, with electronic submission as all of our reports, proofs of service and declarations are securely stored in electronic format for ease of transmission. We can also help with expedited service of process (particularly in the case of difficult subjects) and filings to meet statutory filing requirements.

We plan on keeping you updated as any news breaks with regard to proposed budgets and how they will affect the court system throughout the state of California.

Tim Santoni, President (Email me)

As a licensed private investigation firm, we are regularly asked by our clients to conduct asset investigations on a particular subject, whether an individual or a business entity. These requests are usually in one of two categories: a request by an attorney to investigate the assets of a party against which they are considering filing suit, or a request by an individual or attorney to identify the assets of a party against which they hold a court-issued judgment. We handle these two scenarios differently.

Our access to personal financial data is restricted by a number of Federal and state laws, linking back in many cases to the Fair Credit Reporting Act of 1970, but with several more modern additions, such as the Driver Privacy Protection Act (itself an amendment to the Violent Crime Control and Law Enforcement Act of 1994), and in particular Title V of the Gramm-Leach-Bliley Financial Modernization Act (GLBA) of 1999 (PDF here).

When we engage in a search of personal data through a professionally restricted data source, we as investigators must adhere to the provisions of these laws and, in the case of the GLBA, certify not only that our use of the data is permissible under law, but that we act to maintain the security of the protected data by guarding against its dissemination to a third party unless the receiving party is also permitted to a GLBA exception -- that is, unless our client's use falls under what have been defined as permissible uses, or exceptions to the GLBA's requirement to guard against disclosure of nonpublic personal information. Broadly, these exceptions include disclosures at the direction of (or with the consent of) the consumer, disclosures necessary for maintenance of consumer financial accounts, certain disclosures necessary to facilitate a proposed sale, merger or similar business transaction, and disclosures to "persons holding a legal or beneficial interest relating to the consumer." Similar restrictions apply for searches of assets of organizations or businesses.

The net result is that liquid assets cannot be searched without a judgment, as in the first scenario above, where we are asked to identify assets of a party who may be named as a defendant in a civil action. Without a judgment in place, detailed bank account and asset account records are off-limits (particularly identifying details like account numbers). However, some information can be shared in a consultative capacity to help an attorney identify banks or accounts to pursue further through subpoena.

These restrictions don't apply to the other types of asset investigations we can conduct to identify physical (including intangible) assets. These physical asset investigations can be focused on a range of asset types, including real property, motor vehicles, pleasure craft, aircraft and similar possessions. It is also possible to identify intangible assets which may have monetary value if liquidated, such as trademarks, patents and Internet domain names. Our asset searches also typically develop information on the subject's employment, professional licenses and business registrations, and commonly return additional useful background information on the subject such as bankruptcies, prior judgments and liens. An investigation of this type can be freely conducted and results shared because the information is based on public records.

Asset investigations may be used both to identify assets for liquidation to satisfy a judgment or, in many cases, to identify assets which an individual has fraudulently attempted to conceal. For example, an individual planning to file bankruptcy may wish to protect certain personal assets from the bankruptcy trustee (for example, by selling property to a relative a year or more in advance of their filing). Or, in the case of family law, a "deadbeat" spouse seeking to avoid payment of child support may use a similar fraudulent transfer of property. (These types of attempts to conceal assets are discussed in this Association of Certified Fraud Examiners article in greater detail.)

A corollary to this discussion of bank searching and credit searching is access to credit reports, which is generally controlled under the terms of the Fair Credit Reporting Act and subsequent amendments. We can obtain this type of information about a debtor when seeking to satisfy a judgment; without a judgment, this information can only be retrieved with the explicit consent of the subject. It's important to not confuse a "credit report" with a "credit header", which contains personal identifying information such as name, date of birth and social security number, but not credit history. We may have access to credit header information, but only as part of a broader investigation for which we have established a permissible use.

At the end of the day, we operate within the bounds of applicable state and federal information privacy laws for two very good reasons. Firstly, we would jeopardize our Private Investigator's license if we did not. But secondly, and importantly, our work product - written reports and/or testimony to support the information we retrieve and the processes we use to retrieve it - needs to be developed by the rules if it is to be admissible in a court of law, which is the standard of care we set for all our investigations.

Comments?

Serving legal documents is a more complicated task than it might seem. Here are some of the reasons investigators can do it better than the dedicated attorney service companies.

Figure out who is being served

It’s tempting not to even include this here because it seems so obvious. Of course you need to figure out who’s being served with the documents, right? It’s surprising how many process servers, particularly those who operate low-price, high-volume services, do not or cannot take the time to locate the individual or entity they need to serve. Because we are licensed private investigators who are also registered process servers, the Santoni Investigations approach involves getting basic information up front. This preliminary background investigation dramatically improves our success rate on first attempt of service.

If you know where they get their mail, you know where they are

We routinely work with the U.S. Postal Service and individual Postmasters to obtain current information on individuals to be served, including change of address information or P.O. box owner and physical address information. This is a core validation tool that helps us ensure a successful field serve.

For respondents who accept mail through a storefront mailbox store, different procedures apply. In California, state law requires private mailbox stores to obtain an acknowledgment of terms and conditions as a prerequisite for service. These conditions include the authorization of the mailbox store, sometimes referred to as a Commercial Mail Receiving Agency or CMRA, to receive service of legal documents on behalf of the boxholder and the consent of the boxholder to the receipt and forwarding of service to their address of record (see California Business and Professions Code section 17538.5). Therefore, these CMRAs often are an alternative to in-person service for orders not requiring personal appearance. It’s worth noting that the same mechanism does not apply in other mail-forwarding scenarios: for example, if your subject is traveling and a local friend is accepting and forwarding mail on their behalf, there is no guarantee the court will accept a declaration of service to the friend or friend’s address. In this scenario, a “skip trace” or locate investigation may be necessary to determine the individual’s whereabouts to facilitate an in-person serve.

Don’t let them hide

Individuals who know or suspect they are about to be served with legal documents frequently will try to avoid the server. These scenarios require additional diligence on the part of the process server to put an end to the “cat and mouse” games. While these time-wasting games can often keep away the high-volume process server (who likely does not have very much time to devote to each serve), the private investigator has some extra tools at their disposal to track down and serve evasive subjects. As a licensed private investigation firm, Santoni Investigations has decades of experience employing discreet contextual contact with subjects, and we often use these tools to create the circumstances in which to execute a serve, without giving the subject cause to suspect they are about to be served.

Make it stick

If anything, the news earlier this year from the New York attorney general’s office alleging widespread failures in properly documenting and serving respondents (the AG’s suit in July 2009 sought to vacate 100,000 default judgments, and resulted in a guilty plea last week from the service company) should serve as a wake-up call for heightened diligence in serving legal documents. Service attempts must be made and properly documented. In most cases, the courts require three legitimate attempts to complete in-person service before it’s acceptable to sub-serve the documents. In the rare instance where this becomes necessary, consider requiring your process server to provide photographic proof of the serve as evidence alongside their declaration of service. After all, the last thing you want is for your proof of service to be rejected by the court. When you work with an experienced firm who does the extra work, you can easily save yourself time and headaches in the long run.

As always, we invite you to call us to discuss your needs. (800) 966-5715