The Divorce Video and the Prior Background Check
Kai is a registered investigator employed by a Georgia private detective company. A wife hires the company in a contested divorce to surveil her husband. On a Friday night Kai videos the husband leaving a bar, stumbling into the street, and being struck by a car. The video also shows the husband had a green light and the other driver ran a red light. The wife's attorney tells Kai to delete the last two minutes because 'it makes our case messy' and says the video is work product. Kai earlier performed a background check for the husband's business partner, who is a potential witness in the divorce. Kai has not disclosed that prior work. The attorney also asks Kai to sign an affidavit saying the husband was 'unsteady on his feet' before leaving the bar, though Kai did not see him inside. Identify Kai's professional conduct issues and explain how he should respond.
1. Must Kai preserve the entire video, or may he delete the last two minutes at the attorney's request?
Read the worked answer
Kai must preserve the entire video. The recording is evidence relevant to a civil dispute and possibly to a criminal traffic matter. Selecting only favorable portions and destroying the rest can be spoliation and can expose Kai and the company to sanctions, civil liability, and Board discipline. The fact that the attorney calls it work product does not permit destruction of unfavorable evidence; work-product doctrine affects discovery, not the duty to preserve. Kai should keep the original file, note the chain of custody, and provide a complete copy to the attorney. If the attorney wants to use only part of it, that is a decision for the attorney, but Kai should not alter or delete the source.
2. What should Kai do about the prior background check for the husband's business partner?
Read the worked answer
Kai should disclose the prior work to his company and to the client or the client's attorney before continuing. The business partner is a potential witness, and Kai's earlier work for that person could create a conflict of interest or at least an appearance of divided loyalty. The company should assess whether the prior relationship is material, whether Kai obtained confidential information relevant to the divorce, and whether informed consent or reassignment is appropriate. Kai should not decide silently that the prior work is irrelevant. If the conflict is material and cannot be waived, the company should assign a different investigator.
3. Should Kai sign the affidavit saying the husband was 'unsteady on his feet' before leaving the bar?
Read the worked answer
No. Kai did not observe the husband inside the bar, so he lacks personal knowledge of how the husband was acting before he left. An affidavit must be based on personal knowledge and truthful observation. Signing a statement that exaggerates or invents facts would be a false statement and could constitute perjury or a Board conduct violation. Kai can testify accurately about what the video shows: the husband leaving, stumbling into the street, and the traffic light. He should refuse the requested wording, explain why, and provide a truthful draft if the attorney wants one. He should document the request and keep the original video.