Post Process

Everything to do with E-discovery & ESI

Will Lit Support Vendors need a PI License in Texas?

Posted by rjbiii on July 17, 2007

NB: Updates can be found on Post Process here, here, and here.

There has been much discussion in the litsupport groups concerning a new law set to take effect on September 1, which, among other things, expands the definition of an “investigations company.”

From 80(R) HB 2388, Here is the full text of this section (the bold font is the newly amended text):

Sec. 1702.104. INVESTIGATIONS COMPANY. (a) A person acts
as an investigations company for the purposes of this chapter if the
person:
(1) engages in the business of obtaining or
furnishing, or accepts employment to obtain or furnish, information
related to:
(A) crime or wrongs done or threatened against a
state or the United States;
(B) the identity, habits, business, occupation,
knowledge, efficiency, loyalty, movement, location, affiliations,
associations, transactions, acts, reputation, or character of a
person;
(C) the location, disposition, or recovery of
lost or stolen property; or
(D) the cause or responsibility for a fire,
libel, loss, accident, damage, or injury to a person or to property;
(2) engages in the business of securing, or accepts
employment to secure, evidence for use before a court, board,
officer, or investigating committee;
(3) engages in the business of securing, or accepts
employment to secure, the electronic tracking of the location of an
individual or motor vehicle other than for criminal justice
purposes by or on behalf of a governmental entity; or
(4) engages in the business of protecting, or accepts
employment to protect, an individual from bodily harm through the
use of a personal protection officer.
(b) For purposes of Subsection (a)(1), obtaining or
furnishing information includes information obtained or furnished
through the review and analysis of, and the investigation into the
content of, computer-based data not available to the public.

To parse the language then, the existence of new section (b) means that if you are in the business of: obtaining or furnishing information related to four areas listed above:
A Crimes or wrongs against the US;
B The identity, habits, business, occupation,
knowledge, efficiency, loyalty, movement, location, affiliations,
associations, transactions, acts, reputation, or character of a
person
C The location or disposition of stolen property; or
D An investigation into a fire
Then you are an investigations company.

This is true if the information is obtained through the “review and analysis of, and the investigation into the content of, computer-based data not available to the public.”

So the question for vendors becomes: what operational tasks meet the definition of the new section? There seems little doubt that a forensics examination of a network or pc system is covered by the new definition, because forensic examiners deliver a report based on an analysis of and investigation into the content of computer-based data” on private systems.
But what about other tasks, such as the collection of data, the processing of data for review and production, and the storing and display of data for attorney review?

We should not an exception is noted in section Section 1702.324:

This chapter does not apply to:
…(10) a person who obtains a document for use in
litigation under an authorization or subpoena issued for a written
or oral deposition…

Yet that exception seems rather narrow, as it only applies to a particular deposition, and not to a possible trial in general. Furthermore, the exception is narrowed still by text in section 1702.324 (c), which states:

The exemptions do not apply to activities or services that are independent of the service or profession that is the basis for the exemption.

It seems obvious that in order to provide a full range of litigation support services, including forensic examination, then you will have to become licensed. But will all vendors, even those who do not perform such examinations, need a license as well? Stay tuned…

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5 Responses to “Will Lit Support Vendors need a PI License in Texas?”

  1. […] by rjbiii on June 18, 2008 Post Process has already remarked on a Texas law that implies that computer forensics experts must have a private investigator’s license. Now […]

  2. […] of the lawsuit and blog what we hear. You’ll recall that we’ve discussed the Texas law (here) and the Michigan law […]

  3. […] by rjbiii on July 1, 2008 An update on the licensing issues discussed here, here, and here, with a couple of helpful […]

  4. […] comments under the articles suggest that this interpretation is stretching it, although this post from Post Process seems to more clearly illustrate the idea. It appears the idea comes from a […]

  5. […] of differing interpretations of Texas’ new PI licensing statute. The amended statute, first noted by Post Process in July 2007, expands the definition of an “investigations company” so that it may include those […]

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