Why won’t law enforcement assist when you are serving process?

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When you are serving process involving civil cases, law enforcement will often side with the property owner, residents and guards at the gates.  This is merely because they are not trained in Code of Civil Procedure and only view their role from the criminal side.  They want to mitigate liability at all costs.  That said, they do not often understand that when you are serving process you are an officer of the court and you are permitted to trespass in order to effect service.  Law enforcement takes every step to mitigate liability and will not stick their proverbial necks out to help you get your target served.

You don’t want law enforcement called with lights and sirens when you are serving a difficult target so you must be tactful.  Abide by local rules, do not speed and do not park near parks and common areas.

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Process Serving Tactics

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Verify that the subject resides at the address you are attempting by asking the proper questions when you make contact at the residence.  For example, you should not say, “Is Tom Smith home?”  Instead you should say, “Does Tom Smith live here?”  The latter is vital because per the code, you can sub-serve documents at a location where the defendant resides, receives mail or works.  Confirming that the subject resides at a residence is vastly different than just learning that the subject is not home.

Be observant while serving legal documents.  Look for packages left on the porch that could bear the subject’s name.  Discreetly talk to neighbors to verify residence and activities.  Note vehicles including license plates observed in the driveway or on the street adjacent to the residence.  You need to assemble information that supports further attempts at the address you have or to report back that the address is no good.

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Process Serving in Gated Communities

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Service of Process also referred to as Process Serving can be accomplished when your subject resides in a gate community.  The trick is knowing the rules and codes that govern service of process in a gated community.

Remember that per the code, Registered Process Servers and Private Investigators (in some states) must be provided access to a gated a community for a “reasonable” amount of time in order to effect service.  It is wise to carry this section of the code with you at all times as guards are not aware of this rule and will often need to speak with a supervisor in order to grant you access.

Keep in mind that some guards will notify the resident of your presence; be prepared to ask them if they will be notifying the resident and ask them to refrain.  If you are professional and respectful with the guard your chances of getting their cooperation is much greater.  That means you should dress in a suit and handle yourself accordingly.  While you are within the gated community, be mindful of the fact that the residents will likely detect your presence much more quickly.  That said, if stake out is required, be very discreet as you do not want to create suspicion with neighbors and have the security guards roll on you with their lights and sirens.

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We are having difficulty locating and serving someone…can you help?

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“We are having difficulty locating and serving a… witness, defendant, debtor, etc.”  This is the type of call that a professional and licensed investigation firm receives several times every day.

The first step is to collect and review all of the information that the client has available (Database Searches, Due Diligence by the Process Server, Case Facts, Police Report, Deposition Transcripts, etc.).  Once you review all of the relevant case data, a review of the legal documents to be served is necessary.  Knowing what you are serving is key in understanding what techniques must be used to locate a subject.  The method of service (Personal / Substituted) is mandated per the Code of Civil Procedure depending on the type of legal document being served. Personal Service for matters involving personal appearance at trial, deposition or hearing and Substituted Service for Summons & Complaint and Small Claims Cases.

You then must create an investigation plan to meet the needs of the case based on the timeline.  In many cases, tracking down and serving subjects very quickly is necessary in order to meet a court-imposed deadline or to keep a deposition on calendar due to an impending discovery cutoff.

Understanding the litigation process and the Code of Civil Procedure is vital in order to meet the needs of the case and the rules outlined by the court.

Some or all of the tools below may be utilized to develop and or confirm the location of the subject.  This type of search is commonly referred to as a Skip-Trace, Locate, or People Locate.

  • Limited Credit Header Databases
  • Advanced Phone Directories (Landline & Cell)
  • Property Records
  • Employment Databases
  • Postal Letters
  • Professional Licenses
  • Utility Searches
  • Social Networking & Professional Networking Site
  • Discreet calls to neighbors, relatives and often the subject directly

Computers and databases provide information gathered from many sources.  You need to keep in mind that this data is often inaccurate, unconfirmed and so vast that it must be reviewed carefully in order to pick out what is useful and relevant.

Skilled investigators who are trained in conducting people locates and skip-tracing, who have experience making calls to third parties and to the subject directly, are more often able to effectively track down the most difficult and elusive subjects on a regular basis.

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Social Media Evidence (4 Considerations)

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Get your social media evidence to standup in court.  Keep these four things in mind when the evidence that can make or break your case is found in social media postings.

  1. Authentication
  2. Preservation
  3. Collection (preserve metadata)
  4. Establish Chain of Custody
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The Basics of Investigative Searches: Going Beyond Westlaw and LexisNexis

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We are constantly asked by the do-it-yourselfers and budget-conscious why they should hire a professional investigative firm to conduct their searched. They want to know if the databases we access are different than Westlaw and LexisNexis.  Perspective clients wonder if the information we supply is all that different from what they can find online.  What they really want to know is whether our services provide additional value and if we’re worth it.

The bottom line…

The information that attorneys and the legal community have access to, such as Westlaw, is great for basic searches and legal research.  Keep in mind that the data in those reports is not verified and is not comprehensive.  For example, the credit header data is typically from one or two sources and does not include complete social security numbers or dates of birth.  Additionally, the court records are not as comprehensive since not all county and state court records are available for electronic data scraping.

Why the extra effort matters

A professional and licensed investigation firm with secure facilities, such as Santoni Investigations, should maintain investigative level accounts with several (7-10) commercial data provides. This means they have real time access to robust data with information including complete social security numbers and other proprietary data.

Real Estate Records

An investigation firm that works with attorneys should have an account with a provider of real time, up-to-date property records, (commercial & residential) that include access to title records where available.

Telecommunications Searches

Useful data is found in many ways and experienced investigative firms will access databases that contain information on residential (landline) and cellular phone numbers.  Theses searches include obtaining subscriber information (name and address) from a landline or cell phone.  Also, having the ability to obtain phone numbers associated with certain utilities including (Internet, Cable & Satellite Television) is useful in searches.

Court Records Revealed

When conducting searches of civil court records, which are indexed by name only, an experienced investigator will work to limit the number of records to those that actually pertain to the subject. Santoni investigations work with court runners to review and examine actual court cases to insure that copies of only actual cases pertaining to a subject are obtained and reported on.

While criminal records are indexed by name and date of birth, not all counties and states maintain full or partial dates of birth. Santoni Investigations has a working knowledge and understanding of the system of record working with onsite court researchers to provide a comprehensive and verified search.

Santoni investigators are trained in effective online searches to review profiles without leaving a digital footprint so that the subject does not know who is looking at their profile(s).

Verified Facts, Comprehensive Reports

All investigations should be verified with third-party sources whenever possible to insure that the facts presented in the report are accurate.

Santoni Investigations prepares a summarized report which gives the client a high level an executive summary of findings without having to review pages and pages of data that contains duplicate records and unverified findings.

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Is Finding Assets Like a Game of Hide and Seek?

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Whether an attorney, business owner or embattled ex-spouse, the number one inquiry we receive is, “Can you find assets?”

In response to a client asking if we perform asset searches or asset checks, the first question we ask is “When you say ASSETS what exactly are you looking for?”  The prospective client oftentimes responds with, “I want to find bank accounts and liquid assets…”  While liquid assets held in bank accounts and equity type accounts are attractive, finding them is only one facet of actually collecting.  Having an active and enforceable judgment via writ, levy or garnishment is imperative as you will need to act quickly and strategically to recover any assets that are found via investigative research.

Prepare a Game Plan

Prior to conducting bank account research, it is best to do an address history and property search. These are conducted to determine if the debtor owns any property or has transferred any property pre-judgment.  Also it is vital to identify the counties in which the properties are owned so that an abstract of judgment can be filed to block a sale, transfer or re-finance without satisfaction of your judgment.

We also recommend that an asset search include an employment search, which is commonly referred to as a POE (Place of Employment) search.  If a debtor is actively employed, an attorney can work to garnish their wages and work to recover a debt owed to you.

There are also some other signs that will indicate whether a debtor either has the ability to pay or is truly suffering from financial hardship.  Some of these searches include a search of civil case filings for any active litigation or civil judgments.  We also search for evidence of Bankruptcy, Liens and Notices of Default.

While an asset search is often focused on tangible assets or employment, another key piece of information to look at is whether or not the debtor party has the ability to generate income.  That said, we typically look at professional licenses and certifications.  We also look at civil and criminal filings in which the debtor is involved to determine if he or she is employable.  If he or she has been convicted of a felony or found guilty of embezzlement or other white-collar crimes, it may be harder to find employment as companies screen for these convictions.

Stick to the Legal Game Plan When Searching for Assets

If the client has a judgment from a court, they have the right to obtain a full credit report, search for bank accounts and have their attorney conduct a Judgment Debtor Examination. This puts the legal system to work to uncover any assets that are hiding.

Business Asset Searches

When it comes to looking at privately held businesses, the size and scope has a direct impact on what information is reported and available.  Publicly held companies are required to report detailed financial and company information that can be accessed very easily.  Privately held companies can be required to provide some basic financial information to the state in which they are incorporated.

8 Key things to consider when conducting asset searches on businesses are:

  1. Property Ownership
  2. Business Credit Report
  3. UCC Filings
  4. Executives / Managers
  5. Sales / Revenue
  6. Domain Name Registrations
  7. Civil Litigation
  8. Judgments

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Trademark Nonuse/In Use Investigations- USA v. China

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Trademark protection had long afforded American companies a competitive marketplace with a fair playing field. All that can change as you begin to operate your business internationally.  To get the basics, visit the United States Patent and Trademark Office to orient yourself on what you need to know to get started on protecting your intellectual property.

In the United States, the most common reason to launch into a trademark in-use investigation is to determine if the mark is in fact being used in commerce, how it is being used and the date of first use.  Further it is important to know when the mark was first used in commerce, how it was and is being used, the scope of the use, the goods or services it is being used on and if it is no longer in use (abandonment) when did the use cease.

Protecting IP in China

For those businesses venturing out to the rapidly growing economy of China, it is necessary to look at the role that in-use or nonuse trademark investigations are conducted in China. Trademark  use investigations have been an important and necessary practice in the United States for quite some time, but that may change outside of our borders.  The U.S. is a first to use, not first to file country, which means that “common law” uses of a mark need to be uncovered and investigated.  In order to effectively conduct searches and investigations in China it is essential that your investigation partner has access to databases compiled via advanced web harvesting of unstructured data, which allows an investigative analyst to leapfrog from a single source dependency to run more cost effective searches with greater cost efficiency.

Abandoned Marks and Squatters

A mark is considered abandoned when it’s use has been discontinued with no intent to resume (See 15 U.S.C. § 1127).  In China there are similar laws and the courts have provisions that indicate the breadth of the search that must be conducted to determine nonuse.

According to Anthony Tong of Robin Bridge & John Liu in Hong Kong, when faced with a refusal on relative grounds in China, it is prudent to search popular Web portals such as sina.com.cn and baidu.com.cn to look for references to the cited mark. Unless the searching turns up many references, a nonuse application is often recommended because it is an inexpensive approach. Indeed, Tong posits that investigations are not even particularly necessary because the burden of proof is on the trademark owner, exhaustive searching is near impossible given the size of China, and it is not uncommon to find trademark owners submitting dubious evidence of use even where investigation proves nonuse.

In the U.S. we have squatters that sit on domain names hoping to make money when the brand owner or mark owner wants the digital rights to their name.  In the coming years in China, mark owners will have to prove use of their mark(s) if they want to prevent losing them due to nonuse.  That said nonuse investigations in China will likely be more common in the future.

Help Protecting Your IP Abroad

It is vital that you evaluate the use of your intellectual property not only within your country of origin, but also protect your rights abroad. Start by selecting an investigator with worldwide to avoid issues that can escalate costs and increase the time required to provide verified information.  James Tunkey, COO of I-OnAsia points out that, “Today’s brand protection spend in China is less expensive that in the US on an apples-to-apples basis.”  Tunkey adds, “It is also important to note that Chinese targets are typically manufacturers and the weighted ROI on China spend is greater than it would be in the US.”

For those with an eye on China, our partner I-OnAsia gives us boots on the ground with relationships and information sources that are trusted and quick to respond. Start your IP protection plan by contacting us.

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Getting the Legal System to Work for You When it Comes to IP Enforcement

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Pursue a civil or criminal remedy depending on the nature of the product being counterfeited.  Typically products that can put the public’s well-being in danger (pharmaceuticals, food, tobacco, medical devices, auto parts, airplane parts) grab the attention of the District Attorneys, U.S. Attorneys & Law Enforcement Agencies (FBI, DEA, ICE).

In most cases, law enforcement and the courts want as much information on the product being sold and people or company behind it.  They want to know where counterfeited products are being sold, how test purchases were made and shipped, who was selling the product, the size and scope of the counterfeiter’s operation, all locations under the control of the counterfeiter, and general background information on the operation and the principals. The main culprits will be further examined to see if there were any prior run in’s with the law and arrests or cases where they were involved in the sale and or distribution of counterfeit goods.

4 Thing to Consider When Enforcing Your IP Rights against a Counterfeiter via Raid or Ex Parte Seizure Order.

1)   What is the end goal?  Shut down the operation?  Obtain intelligence on how and where the subject is getting the counterfeit goods from?  Obtain an injunction?  Obtain a judgment and collect or seize assets?

2)   What kind of information will be available at the time of the raid or seizure?  Product, trucks, equipment, computers, servers, laptops, external storage devices, labels, printing materials, & shipping records are most typical.

3)   What type of threat is the infringer to your team? Is there a chance for retaliation or harm?  Do they possess drugs or weapons?

4)   How will you seize and inventory all infringing products? The devil is in the details if you want to keep the court on your side and get what your client wants.  Be prepared to provide any and all items included in the order.  Document entry and exit on video to protect from liability.  Complete a detailed inventory list to include product, documents, and digital evidence authorized for seizure.  Also, be prepared for the unexpected and have your locksmith, digital forensic team and additional trucks ready on a moments notice.

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