The Ohio Firm's Kentucky Job
A Louisville personal-injury firm retains Buckeye Investigative Group, an Ohio-licensed agency in Columbus, to surveil a claimant in Jefferson County. Buckeye's owner assigns the file to Marcus, a Kentucky resident who has done investigative work for years but holds no Kentucky credential; he is paid $45 an hour as a 1099 contractor. Over three days Marcus films the claimant from a public street, then walks up the driveway to photograph a vehicle plate. He also asks a friend at the county clerk's office to run the claimant's registration. Buckeye invoices the law firm, and the law firm's paralegal coordinates directly with Marcus. When the claimant's attorney learns of the surveillance, she sends a preservation letter, demands the raw footage, and says she will complain to the Kentucky board. The law firm asks Buckeye to "just confirm Marcus is covered under your license."
1. Does anyone in this arrangement need a Kentucky license, and does Buckeye's Ohio license or the law firm's involvement change the answer? Identify the exposure for each party.
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Start with the baseline: KRS Chapter 329 requires a license to engage in private investigation in Kentucky, and the board's reach turns on where the investigating happens, not where the client sits. Buckeye's Ohio license is authority in Ohio only; Kentucky has no automatic reciprocity, so Buckeye must either hold a Kentucky license or have its authority recognized by the board. Nothing in the file shows either, and asking that a contractor be "covered" by the agency license is backwards - a licensed agency may direct and supervise its own employees or registered investigators, but it cannot lend its license to an independent contractor.
Marcus is the person physically conducting surveillance and record queries in Jefferson County, so the licensure question attaches to him first, and to Buckeye second for contracting work it is not licensed to perform. The law firm is not automatically exempt merely because it is a law firm; if the statute contains an exemption for investigators working under an attorney, read the text closely - such provisions typically cover the attorney's own employees working under direction, not an outside agency's 1099 subcontractor.
Exposure: penalties under KRS Chapter 329, a board complaint, a contract that may be unenforceable as against public policy, and an insurer that may balk at defending a claim arising from unlicensed activity. The fix is to stop, verify with the board in writing, staff the file with a Kentucky-licensed investigator, and document who directs whose work.
2. Evaluate the three collection acts: filming from the public street, the walk-up to the driveway, and the clerk's-office registration lookup.
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Three separate analyses.
Street filming. The claimant was on his own lawn in view of the roadway. There is generally no reasonable expectation of privacy in what is plainly visible from a public place, so this is the safest part of the file - assuming no zoom or vantage that would let you see into the house.
Driveway walk-up. This is where risk begins. A residential driveway close to the house sits within the curtilage. Kentucky's trespass provisions (KRS 511.060 through 511.080) turn on entry and remaining upon premises, with the higher degrees depending on posting, fencing, or warning. Civil exposure runs independently through intrusion upon seclusion even if no charge is ever filed. One walk-up to photograph a plate, with no gate and no posting, is low risk but not zero; repeating it after any warning converts a gray area into a charge.
The clerk's favor. The Driver's Privacy Protection Act, 18 U.S.C. § 2721, gives a licensed investigator a permissible use under (b)(8), but only with the required certification and an auditable purpose. A personal favor from a clerk bypasses the certification and the trail, and it exposes both the clerk and you. Log every query - requester, purpose, date, authority - because the query itself becomes evidence.
3. What should be done now - preservation, client communication, and internal correction - and what goes in the written response to opposing counsel?
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The file cannot be repaired retroactively, but the response can be disciplined.
- Preserve. Raw video in native format, the chain-of-custody log such as it is, the invoice, and the emails showing the paralegal's direct coordination. Do not trim, re-encode, or "clean up" the footage.
- Write to opposing counsel. Confirm what exists, the date range, and that the raw files are being preserved - no characterization of the claimant's conduct and no admissions about licensure.
- Tell the retaining attorney in writing that the subcontractor's Kentucky credential is unverified and that surveillance occurred before that was resolved. The attorney needs this before relying on the product in a filing or a deposition, and needs it from you rather than from a motion to exclude.
- Correct the structure. Run a licensing check on every person in the chain, convert the relationship to a lawful one, and fix the contract so the agency's obligations match who is actually working.
- Board posture. If a complaint is filed, cooperate and produce records rather than asserting a thin "licensed agency" defense.
Finally, price the risk to the client: if the footage is vulnerable because of the investigator's status, say so before the other side files.