While in the field there is nothing more important to the veracity and foundation of your investigation than to take extremely detailed and copious notes. Whether it be in writing on a legal pad or a little memo pad or dictated into a voice recorder, no detail is too small to not note and record! These notes will become the basis of your investigative report which is the final and most important product of any investigation. If something was worth noting then it is worth putting into your report; what may seem insignificant to you at the time, may be the lynch-pin of the investigation when your client gets that information.
But what do you do with these notes when you’ve finished writing your report? Are they important?
There has always been a lively debate regarding what to do with investigative notes that are naturally developed in the field during the course of an investigation. One side of the argument is that all notes should be maintained in case there are questions at a later date, while the other side advocates destroying them after completing the investigative report.
Those against destroying field notes think that destroying the notes begs more questions than answers and I can certainly see their point; nothing raises the suspicions of others than to hear that you may have destroyed evidence. If you are retained by an attorney, notes are considered work-product and are not discoverable whether they exist or not. So, why not just give the notes to your attorney-client to hold and then invoke the confidentiality of attorney work product altogether?
The problem here is that probably greater than 70 percent of all cases worked by PIs would not fall under attorney-client privilege. I would say that only 40% of my company’s case load is privileged attorney work product.
Some might argue that the notes are probably more accurate and detailed than the final investigative report (best evidence) in the event they are needed for reconstruction purposes; what if the investigator was no longer available for deposition or trial? What would happen if your client wanted the notes sometime in the future for some unforeseen purpose, or questioned your fees or your investigation?
Personally, we destroy all notes after completing our report and this is a written, company-wide directive I issued to our investigators a long time ago. I purposefully made it a written policy so that if there is ever any question why an investigator destroyed his or her case notes they can point to me and say, “My boss told me to.” and I simply say that it is a long standing company policy in an effort to increase operational security, protect our client’s privacy and that all facts significant to an assignment are detailed in our final investigative report. Since all notations become an entry into the investigative report the notes should not be any more or less precise than the report. We are only obligated to give a client a report, not our notes.
I don’t want opposing council getting a hold of some hastily scrawled notes and inject his or her own interpretation of those notes into the conversation or start running with additional unrelated information that an investigator may have written down in their notepad about other clients, schedules, cases, etc., especially if he or she may not be able to testify to their meaning.
It’s not discoverable if it no longer exists. The less available discoverable material that can be misinterpreted or taken out of context the better.
Our clients stand behind the idea, appreciate the policy and especially love it when our people are being grilled in deposition and can only refer to their final report (it really frustrates the hell out of opposing council when you have no further recollection of the investigation other than what is already in writing).
Ultimately, you will have to decide whether or not you will maintain your field notes but I would strongly insist that you consult with your clients first.
Steve Johnson is a legal investigator in Birmingham, AL. He has been in business for nearly 14 years and has given testimony in hundreds of depositions and trials in Federal and Alabama State courts.