Private Investigators and Privilege

Sean Gladney
2021-06-11

We are often contacted by clients who need investigative services relating to a litigation matter and need us to conduct research or uncover facts that they may or may not wish to disclose in the litigation.  Records such as witness statements, expert opinions, and investigation report are types of records where the question of litigation privilege arises. 

When hiring a private investigator, it is important to be aware that the private investigator’s reports are not, in and of themselves, protected by privilege.    The exception however is if the private investigator was retained in contemplation of litigation and the dominant purpose of the investigator’s report was for litigation, either contemplated or existing.

Therefore, when contacting a private investigator, here are some useful suggestions to help maintain a claim of litigation privilege over the investigator’s report:

  • Start with careful note-keeping to keep track of when litigation was contemplated;
  • Label your notes “privileged and confidential” to build a paper trail to support the dominant purpose of litigation;
  • Have a lawyer or the insurer retain the private investigator; and
  • Ensure that your instructions to the private investigator clearly state that the work product is intended for use in litigation.

By Sean Gladney, Vice-President, The Investigators Group Inc. 
For more information regarding privilege, you can contact Sean via email at sean@investigators-group.com

The Investigators Group Inc. (IGI) was established in 1995 as a full service private investigation and security firm serving individuals across North America. We serve the legal, insurance and corporate communities as well as individuals through our civil and executive services. IGI provides professional surveillance services, fraud investigators, workplace investigations, undercover operations, loss prevention and security services. 

Contact us today so we can provide the appropriate investigative solution for all your needs.

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