Last week, the Associated Press reported that the Department of Justice had obtained confidential phone records for more than 20 telephone lines used by the staff of the Associated Press while investigating leaks of classified information.  Only days later, news surfaced that the DOJ had also accessed the phone records and emails of James Rosen, chief Washington correspondent for Fox News, in connection with an information leak involving Jin-Woo Kim. 

We have previously talked about phone records in this blog, but the topic bears revisiting in light of recent events. Phone records can be investigative gold, and our clients often ask us to get our hands on them. Our answer is nearly always an unequivocal no. Congress outlawed the unauthorized access of telephone records when it passed the Telephone Records and Privacy Protection Act of 2006. 

We recommend steering clear of any investigator who promises to find phone records for you.  At the very least, be wary of investigators who will not tell you exactly how they plan to obtain phone records or emails, since it could be a warning sign that they are operating in dangerous territory (pretending to be the person whose records they are requesting, for instance).  Attorneys hiring investigators should be especially careful since the attorney may ultimately bear responsibility for the investigator’s acts. 

We will only review telephone records or emails if our client has a legal right to provide them to us. For example, in a recent matrimonial case, our client gave us legally-obtained phone records for her spouse and asked us to track down any numbers she told us she did not recognize. She was looking for people who may have helped her husband secretly invest money, such as financial professionals or attorneys.  By searching databases and public records, we not only found several brokerage firms and hedge fund managers her husband had contacted, but also a handful of mistresses he had been calling.