Lawyers Weekly Poll: Nardizzi Inc. is top investigative firm in state



MA high court: high court rules warrant needed for cell phone search

In an interesting cell phone data privacy case, the Supreme Judicial Court of Massachusetts held that law enforcement must obtain a warrant before using a suspect's cell phone data to track his movements via GPS. SJC held a warrantless search violated Article 14 of the Massachusetts Constitution, which bars unreasonable searches and seizures.

The plaintiff in the case, Shabazz Augustine, was a suspect in a 2004 homicide of his girlfriend. Police obtained his cell phone records from Sprint that showed what towers were used as he traveled in Boston. Police relied on a federal law that only requires “information to be relevant to an investigation” in order to get the data, as opposed to requesting a search warrant (and having a judge find probable cause regarding the target’s involvement in the case).

Practically speaking, the case is somewhat dated: police in most criminal cases now request warrants for such data anyway.

Massachusetts medical malpractice

The state of Massachusetts recently passed a health care bill that has an intriguing medical malpractice angle: the disclosure, apology and offer clause, which prompts health care providers to give information to patients about medical errors in a timely manner and offers a timeframe for an apology and offer of damages. An apology has been shown to be an incredibly important part to a process that too often lacks any emotional depth. One intriguing section in the bill might be an area for future litigation: a doctor's (or hospital’s) apology is inadmissible in future court proceedings unless the doctor says something later that contradicts the apology.

Reduce your Massachusetts alimony payments


Massachusetts reputation as the only state where alimony never ends is over as of March 1, 2012. The Massachusetts Alimony Reform Act has addressed the issue of changing financial circumstances, and places time limits on payments.

Judges can now reduce or terminate alimony to your ex-spouse if he / she is living with another person and receiving financial support from that person.

Cohabiting is defined as keeping a common household with another person for a continuous period of at least 3 months. The law does not limit co-habitation to sexual relationships. Reinstatement of alimony is possible if cohabitation ends however.

If you need evidence to prove that your ex-spouse is living with someone, supporting them financially, paying rent and groceries, then we can help. Ensure that you pay only your fair share. Call us for further details.

Wiretaps for suits

The recent insider trading conviction of billionaire Raj Rajaratnam shows that federal prosecutors will increasingly be using wiretaps to build fraud cases involving Wall Street executives. It also signals the growing acceptance by federal judges that, despite the extraordinary cost and invasiveness of such procedures (agents are directed to stop listening when talk turns from business to private--yes, stop the laughter), wiretaps have reached a kind of critical mass of acceptance in the surveillance nation we now inhabit.

In a related matter, Massachusetts law enforcement officials are pushing for a change to antiquated state wiretap laws. An interesting side note is that if the law is changed, it should signal the end to a large number of frivolous wiretapping charges brought against Mass. citizens who are documenting police activity. The Boston Police Dept. is being sued in a major case on that exact issue. The case is Glik v. Cunniffe et al., Civil Action No. 10-10150.
The story and video from the arrest is available here.

Judge refuses to snip non-compete

A Massachusetts court in Zona Corp. v McKinnon upheld a 1 year non-compete signed by a hair dresser who had been fired from the salon. The fact that the hair dresser employment came to end involuntarily did not affect the enforcement of the clause. At stake was the usual scenario that investigators are called upon to prove: the former employee was using confidential information to make contact with former customers. Some memorable situations at this firm have involved men who are violating a non-competition agreements and can't help bragging at the hotel bar to the lovely and attentive brunette--who is, of course, a private investigator.

DAs: We didn't know cops work on our cases.

At the State House last week, several Massachusetts district attorneys tried to convince a skeptical crowd that their budget, in which they left out a $1.4 billion dollar investigative item (ie., the police who investigate their cases) was underfunded compared to the budget for public defenders. They did not make the same mistake when presenting the CPCS/public defender budget.

Judge for yourself when the DAs try Fuzzy Math 101 again at the Indigent Defense program at Suffolk Law School at 7:30 AM on Monday, November 22, 2010.

SJC melts old snow/ice accumulation standard

The SJC in Papadopoulos v. Target Corp abandoned the bizarre Mass. distinction between "natural and unnatural accumulations of snow and ice" which had constituted an exception to the general rule of premises liability that a property owner owes a duty to all lawful visitors to use reasonable care.

The new standard: "We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk. … If a property owner knows or reasonably should know of a dangerous condition on its property, whether arising from an accumulation of snow or ice, or rust on a railing, or a discarded banana peel, the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against the danger.

Bottom line: start shoveling.

Governor Patrick signs CORI Reform

The new Criminal Offender Record Information law (CORI) prohibits employers from asking on an “initial written application form” about an applicant’s “criminal offender record information,” which includes information about criminal charges, arrests, and incarcerations. The term “initial written application" in the new text may allow employers to continue to question applicants about felony and certain misdemeanor convictions later in the process. Moreover, the law does not address classic court docket research conducted by investigators.

Massachusetts Wiretap Act Governs Out of State Telephone Recording Massachusetts Wiretap Act Governs Out of State Telephone Recording

A Massachusetts Superior Court judge ruled in In Heffernan v. Hashampour that the state Wiretap Act applies when a party outside of Massachusetts secretly records a telephone call to a party in this state. Thus Massachusetts continues to provide its citizens with protection (some say over-protection) from secretive audio recordings. The flip side of this protection can be seen in the case of Simon Glik, who was arrested for video recording police officers making an arrest near Boston Common in 2007. The criminal charges were dropped and Glik has filed a civil rights lawsuit against the City of Boston and three Boston police officers, arguing that public space is not covered by the wiretap law (ie. there is no expectation of privacy in a public place).

How to do a background check in Massachusetts

The big problem facing HR people is balancing costs with coverage. For example, some firms offer a "statewide criminal check" or even "national criminal check". Often times they are simply checking a database of convictions only -- a small universe of people compared to those who are charged. So if your guy has a record of being charged with sexual assaults against women in the workplace, but somehow pled out to misdemeanors or had the cases dismissed, a statewide convictions database would give you no reason to pause.

By searching the lower district courts for any cases filed, your background due diligence would allow you to find the cases and make your own evaluation. This is especially true in certain states such as Massachusetts, where the lower courts hear some felony cases, assaults, and various other serious crimes.

Privacy, surveillance & civil litigation: a Massachusetts guide for private investigators

The Massachusetts Bar Association hosts a good summary of privacy laws as they apply to video surveillance in Massachusetts civil litigation, including insurance cases. One of the leading cases in Mass. is DiGirolamo v. D.P. Anderson & Associates, Inc., The court wrote that investigators may generally observe, or photograph a person in public places. A gray area arises when a person enters the privacy of their own home. The court looked at 4 scenarios as to whether a private investigator violates a person's statutory right to privacy:

~ the investigator looks through a window into an apartment with the naked eye;

~ the investigator looks with the naked eye when a person walks out onto a balcony;

~ the investigator photographs, or looks at the person on a balcony with enhanced vision;

~ the investigator photographs or looks at a person inside the home with enhanced vision.
 
The Mass. court concluded that only the fourth scenario would constitute an unreasonable and substantial interference with the plaintiff’s right to privacy.

The court adopted the United States Supreme Court’s Fourth Amendment analysis from Oliver v. United States. It also quoted a Second Circuit Court of Appeals’ case United States v. Taborda: “Observation of objects and activities inside a person’s home by unenhanced vision from a location where the observer may properly be does not impair a legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair a legitimate expectation of privacy.”

Written by lawyers Joseph M. Desmond & David Viens, this article has some good information on Massachusetts state laws applicable to video surveillance, audio recordings, pretext interviews and pretrial discovery.

Massachusetts sees increase in patent litigation

Mass Lawyers Weekly reported an increase in patent cases filed in Massachusetts after streamlined procedures and rules were implemented. Top venues for filing cases continue to be headed by the usual suspects: Northern California, Eastern Texas, and Delaware (which has long had a reputation for sophisticated handling of complex business cases).