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Top 10 tools for collecting evidence outside the discovery process

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By Jennifer Anderson

Discovery is one of the most critical parts of litigation. Of course, one of the reasons information gleaned through discovery is so important is that the producing party must generally swear under penalty of perjury that the items or information they’re providing are authentic and truthful.

Unfortunately, people are not always as authentic or truthful as we’d like them to be. As such, it can be important to collect evidence outside of formal discovery to make sure your opponents are on the up and up. While much of this evidence will not be admissible at trial, your informal discovery efforts may lead you to additional forms of admissible evidence.

We’ve compiled a list of the top 10 tools for collecting evidence outside the discovery process. Some are highly practice-area specific and others will work in just about any case. Regardless, they just may provide the information you need when your case is on the line.

#1: Social media

These days, it might be considered malpractice not to search an opponent’s records on social media. The truth is, most people use social media with reckless abandon. They post pictures and news of everything from vacations to personal tragedies. Imagine, for example, litigating a personal injury lawsuit where the plaintiff claims he’s been incapacitated, only to find recent pictures of him rock climbing on Facebook. Game over, right? Well, so long as you follow the ethical considerations of using social media as an informal discovery tool, your social media research may have just won the case.

#2: Blogs, podcasts, and other media

In addition to “regular” social media sites like Facebook, Instagram, and Twitter, a lot of people are now throwing themselves into homemade broadcast media. Consider the fact that over 2,000,000 podcasts currently exist. Think that’s a lot? Well, there are over 600 million blogs in existence. With numbers like that, it’s probably worth your time to check into whether your opponent is producing content that is relevant to your case.

#3: Private investigators

Private investigators have probably been around as long as the legal system itself. They can do things like follow an individual to see where she goes, or purchase suspected counterfeit products from a fraudulent seller. The usefulness of these professionals cannot be overstated. Nonetheless, just make sure that your use of a P.I. stays within the ethical bounds of litigation.

#4: Good old Google

Of course, Google isn’t the only search engine in existence, but it is believed to be the most widely used. In any event, a simple Google search of your opponent or her business may yield all kinds of information you’ll want to follow up on. Don’t forget that Google also has a host of lesser-known discovery tools. For example, Google Earth can provide a plethora of information to assist in any property dispute you may be litigating.

#5: Cargo tracking apps

I once worked on a case where my client suspected that our opponent had stolen a shipment of steel by diverting it from one shipping port to another. Guess what? My client was right and we were able to prove his suspicion by using an app called Marine Traffic. There are several of these types of tools available today — from Shipment Link to e-Cargo. It may cost you a few bucks to use these tools, but it might also break your case wide open.

#6: Public property records

From time to time, a litigant will fail to reveal all of the assets she owns. Perhaps you suspect your opponent is hiding real property interests. One good place to look is the website for the County Assessor in the area you’re interested in. These sites, like this one for Santa Clara County, California, will give you all sorts of ownership information, property tax records, etc.

#7: Local police

What if your opponent swears he’s an angel but you suspect he’s less innocent than he’d like you to believe? Why not go talk to his local police department to see if he’s been arrested, cited, or made the subject of a protective order? As with other ideas on this list, the initial information you receive may not be admissible in court, but it may lead to the discovery of admissible evidence.

#8: Court websites

Often, you need to know whether your opponent has been involved in any prior lawsuits. Not only are there dozens of paid sites that will pull nationwide court records, but many states and counties will allow you to pull case records by doing a simple name search. If you find something that interests you, you can likely pull the case file for that matter for a nominal fee.

#9: Informal witness interviews

Sometimes, you suspect that a certain person might have information relevant to your lawsuit but you’re not so sure as to want to go through a formal subpoena/deposition process. That’s ok. An informal witness interview is a perfectly acceptable form of discovery. That said, this tactic comes with all sorts of ethical traps. Just be sure to read up on those ethical boundaries before you start contacting witnesses.

#10: Research about opposing counsel

When you’re doing initial informal discovery on a case, don’t forget to look into your opposing counsel as well. Obviously, I’m not suggesting you breach her personal privacy. That said, you do want to know whether and to what extent your opponent has been sanctioned for unethical behavior. A quick search of your state bar website (like this one from California) should give you all the information you need about your opponent’s past transgressions.

 

Remember, the whole point of informal discovery is to find information that will become admissible evidence at trial. If you don’t play by the rules, even the juiciest of evidence may be subject to exclusion. So have fun, be thorough, but mind your ethics.

Author

  • Lindsey Dean leads strategic marketing and growth at InfoTrack, where she is focused on exploring and sharing concepts and ideas in accessible and nuanced ways. She has been a writer and researcher in the legal profession for more than 6 years and has authored reports and articles on eFiling, service of process, trends in the legal support field, and more.