Wisconsin Lawyer: Practice Tips: Gathering Competitive Intelligence:

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    Practice Tips: Gathering Competitive Intelligence

    In the business sense, competitive intelligence is information about the external business environment that can affect a company's plans, decisions, and operations. Taken further, competitive intelligence is information about parties to a legal matter that can be useful in determining strategy in just about any lawyer's practice area.

    Tony Chan

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 80, No. 4, April 2007

    In September 2006, Hewlett-Packard (HP) chair Patricia Dunn landed herself in hot water and triggered a congressional hearing when she hired a security consultant who uses a questionable tactic called "pretexting" to obtain personal information.1 According to the Federal Trade Commission, pretexting is the practice of getting an individual's personal information under false pretenses, and it is against the law.2 Unfortunately, pretexting creates a misconception about what competitive intelligence is.

     

    Tony Chan

    Tony Chan is an information specialist at Quarles & Brady LLP, Milwaukee. He has taught Internet research and technology classes for the State Bar of Wisconsin and the National Business Institute. He serves on the boards of the Law Librarian Association of Wisconsin and the Wisconsin Chapter of the Special Libraries Association.

    So what exactly is competitive intelligence (CI)? Simply put, CI is collecting information about others. The Society of Competitive Intelligence Professionals (SCIP) states that CI professionals should "comply with all applicable laws, domestic and international" and "accurately disclose all relevant information, including one's identity and organization, prior to all [research] interviews."3

    Just a few months before the HP debacle, the U.S. Government Accountability Office issued a report finding that the federal and data security laws have limited applicability to information sellers.4 In response to the U.S. GAO finding, the federal government passed additional privacy legislation in an attempt to alleviate the existing problem.5

    The goals of CI research run the gamut from verifying an individual's credentials to gaining a competitive edge in the marketplace. This investigative effort may include skip tracing; finding assets; identifying ownership, affiliations, or relationships; or discovering who gets the most business from certain clients. Oftentimes public and private information on people and companies is selectively available via government databases as well as via commercial and noncommercial databanks.

    Online Sources of Public Records

    Bankruptcies, liens and judgments, professional licenses, intellectual property filings, real estate records, business filings, and public company and Uniform Commercial Code filings fall into the broad category of public records. Each state also has its own public record laws defining the format of public records (paper versus electronic) and retention and disposition policies.

    People and Assets Finder. Preliminary searches for information about individuals may involve simple address and phone number lookups using services such as switchboard.com. A good starting point to begin CI research is BRB Publications Inc. It offers a pathfinder to identify searchable lists of free public record sites that provide information such as current address, voter registration, and real property data that is extracted from local, state, and federal government entities' databases.

    Accurint.com, LexisNexis, and Westlaw all provide sizeable public record databases to supplement the BRB searches. The advantage of using these commercial vendors is that their search engines allow for multi-state queries and keyword searching. In addition to extracting past and recent addresses and phone numbers, a key feature of Accurint reporting is that it attempts to identify the subject's neighbors, relatives, and associates or business partners.

    For property assets research, BRB provides links to government Web sites in all 50 states, and Accurint, LexisNexis, and Westlaw have excellent sources for locating other types of assets such as motor vehicles, watercraft, and aircraft.

    Individual stock holdings are reported in many public company filings. These company filings are generally available via the U.S. Securities and Exchange Commission's EDGAR system. Westlaw's STOCK database provides current information on stock transactions and holdings of shareholders owning at least 10 percent of stock in public companies and the directors and executive officers of those companies.

    Background Checks

    Before engaging in a business relationship with a potential client, some firms opt to perform a background check on individuals and their affiliates. Information obtained from background checks may include civil and criminal records, credit history, educational history, medical history, and military records.

    • Civil and Criminal Records. Although most states maintain some form of searchable databases for civil and criminal records, information on individuals may be incomplete due to inadequate computer systems or record management issues.

      In Wisconsin, the Wisconsin Circuit Court Access (WCCA) system provides coverage of family, forfeiture, and traffic cases, as well as information about civil and criminal cases and judgments in most counties that have docket entries.

      While many states provide case information from their local court systems, PACER allows authorized users to obtain civil and criminal case docket information and selected pleadings from federal district, appellate, and bankruptcy courts. In addition, Legal Dockets Online provides a subscription pathfinder service identifying local, state, and federal Web sites that contain court case and other public records information.

      Criminal records for individuals fall into two categories: arrest records and conviction records. In general, most state law enforcement databases provide conviction records rather than arrest records. An exception is the Wisconsin Online Criminal History Record Check System, which contains records for arrests as well as convictions occurring since 1971.

      Not all state systems provide information on minor infractions such as vehicle accidents. However, the Police Department of the City of Madison, Wisconsin Accident Information Query provides free PDF images of police reports for accidents occurring since January 2002.

      Although PACER and many state systems provide certain coverage on criminal records, the FBI's National Crime Information Center provides the most comprehensive source of state and federal criminal records in existence. This resource, however, is available only to law enforcement and government agencies.

      Choicepoint's National Criminal File contains criminal conviction records from all 50 states. However, it does not cover misdemeanor cases.

      Incarceration Checks. To determine whether an individual currently is incarcerated or has served time in a federal prison, try the Federal Bureau of Prisons Inmate Locator. In addition, the U.S. Department of Justice National Sex Offender Registry provides information on the location (residential address) of registered sex offenders.

      • Health Professional Licensing Checks. To check licensing status of or disciplinary actions against medical and health professionals, the Public Citizen Health Research Group provides state-by-state links to the respective regulatory or agency Web sites. The Wisconsin Department of Regulation and Licensing License Lookup offers searches to verify business and medical professional credentials.

       

      • Attorney Licensing Checks. For attorney license status or disciplinary actions, the ABA Center for Professional Responsibility provides a Directory of Lawyer Disciplinary Agencies in the United States. In Wisconsin, the Wisconsin Attorneys' Professional Discipline Compendium provides information on attorneys who have been disbarred or reprimanded. Individual lawyers' license status and contact information can be obtained using "Lawyer Search" on WisBarTM, the State Bar's Web site.

       

      • Credit History. Credit information on individuals is maintained by Equifax Credit Information Services Inc., Experian Information Solutions Inc., and TransUnion. In most situations, information obtained from these consumer reporting agencies is governed by the Fair Credit Reporting Act. Persons seeking an individual's credit information from one or more of these agencies must first obtain consent from the individual.

       

      • Educational History. For educational checks, a phone call to the school's registrar may suffice. Some schools may require a signed release by the individual. The National Student Clearinghouse (www.studentclearinghouse.org) will check academic credentials for a small fee. To verify accredited programs offered by academic institutions, the U.S. Department of Education Office of Post-Secondary Education maintains a searchable database of reported names and duration of accredited programs.

       

      • Medical Records. Medical records generally are not accessible without the subject's explicit consent to release of such information. Medical records privacy issues are covered under the federal Health Insurance Portability and Accountability Act (HIPAA). HIPAA only applies to medical records maintained by health care providers, health plans, and health clearinghouses - and only if the facility maintains and transmits records in electronic form.
      However, medical records may be subpoenaed for court cases. If an individual is involved in litigation, an administrative hearing, or a worker's compensation hearing and the individual's medical condition is an issue, the relevant parts of the medical record may be copied and introduced in court. Once the case docket is identified, the medical records, if they are not under seal, could be obtained via many of the court document retrieval services.

       

      • Military Records. The U.S. National Archives maintains a database on current and former military personnel. The records include the subject's Army serial number; residence; place, date, and term of enlistment; grade; year of birth; race and citizenship; education; civilian occupation; and marital status.

      In addition, the U.S. Department of Defense Manpower Data Center provides a database to verify current active military status. Military service information also is accessible to the public without authorization of the veteran or the next-of-kin of deceased veterans if the information is requested pursuant to the Freedom of Information Act and the Privacy Act.

      Most of the civilian military employees personnel records held at the National Personnel Records Center are the legal responsibility of the agency under which the records were created. Go to the NPRC Web site for more information on obtaining civilian personnel records.

      Finding Company and Industry Information - Predicting Industry Trends and Market Shares

      •Company and Industry Information. For free preliminary research about companies, CorporateInformation.com features a simple search engine (name/ticker) to retrieve brief company profiles. More detailed company information can be obtained via services such as Dun & Bradstreet, which claims to contain more than 100 million business records in its global commercial database. D&B reports include a company's recent payment history, cash flow information, credit ratings, and information on assets and litigation history. Other sources of company information include Dialog's Business Information & News and Investext services.

      For securities information, both AMEX.com and NYSE.com provide current stock quotes, and finance.yahoo.com serves up historical stock data going back to 1987.

      While the LexisNexis Nelson's Public Company Profiles database contains brief descriptions of 22,000 publicly traded corporations worldwide, the Standard & Poor's Register of Corporations provides vital business facts on more than 400,000 executives, 55,000 leading companies including 45,000 private, subsidiary, and affiliate companies, and more than 10,000 publicly-held corporations. Relevant news and trends on particular companies and industries can be obtained from services such as Factiva.com.

      To determine whether a firm or company is blacklisted by the federal government, EPLS.gov provides the electronic version of the Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs. The Better Business Bureau also provides free reports on complaints and other claims filed against registered companies.

      • Marketing and Industry Trends. As a legal business marketing tool, the Courtlink Strategic Profile reports help lawyers and law firms to identify potential business clients and the type of cases the clients are involved in. Lawyers can then use the Strategic Profile reports to match their practice area with potential client needs. Armed with this information, the lawyer can make informed decisions on best business practices, practice area staffing needs, and client development activities. Furthermore, comparing litigation trends on a court-by-court basis can help lawyers identify growth opportunities or emerging risks regionally and nationally.

      Another business marketing tool, Firm360 is capable of generating reports that reveal legal activity and litigation trends by company, industry, and law firm. Company litigation profiles can help law firms to identify cross-selling opportunities within existing client accounts.

      Firm360 also features a company monitor that aggregates information from public records, Westlaw, Thomson Financial, and numerous third-party providers to create online "Company Watch Lists." The information provides an up-to-date view of key client developments.

      The LexisNexis Legal Industry Monitor offers a daily electronic newsletter, which is provided free to LexisNexis subscribers. This is another tool to keep lawyers abreast of what is happening in the legal market.

      TrackEngine.com is another useful service to add to the competitive intelligence toolbox. It allows users to specify the Web pages they want to monitor and can be used to track corporate press releases, executive appointments, new partnerships and alliances, forums, and discussion groups.

      To market their legal services, some major legal firms send out direct mail to particular markets and regions. Whosmailingwhat.com provides detailed information on direct mail in nearly 200 categories, including financial services, insurance, publishing, and legal services.

      Know Your Opponent or Cocounsel: Arbitrator and Attorney Bios and Trial Track Records

      • Arbitrator Bios. Labor arbitrator biographies are sometimes available from state and local government agencies or associations. LexisNexis offers arbitrator bios via the Martindale-Hubbell Alternative Dispute Resolution Services Locator and the BNA Labor Relations Reporter Selected Arbitrators' Biographies database. Westlaw's ARB-BIO database also provides profiles of selected arbitrators who have participated in arbitration proceedings related to human resources issues involving federal government employees.

        Securities arbitrator decisions are provided for free via the SAC Library of NASD Arbitration Awards Online database, which covers decisions from 1980. NASD arbitration awards also are covered in Westlaw's NASD-ARB and FSEC-ARB databases. Another service that provides labor arbitrator information is R.C. Simpson's Arbitrator Qualification Reports (http://rcsimpson.com).

        Disciplinary actions are found in the LexisNexis National Association of Securities Dealers Disciplinary Actions and the National Financial Institutions Abstracted Disciplinary Actions and Sanctions databases. In Westlaw, disciplinary actions are in the NASD-DISP database.

        Westlaw covers arbitrator information in its LRR-DIR database and the "Arbitrator Directory" of the Labor Arbitration Information System (LAIS). In addition, the LAIS Arbitrator Directory provides statistics on the number of cases the arbitrator decided in favor of management, the number in favor of the union, and the number that were split decisions.

        •Attorney Bios. Martindale-Hubbell is a reliable source to find brief biographical information on attorneys.

        There are two ways to find out the types of cases a lawyer has handled. In Wisconsin, the Wisconsin Circuit Court Access system allows you to search for cases handled by particular lawyers by using the lawyer's State Bar member number. Member numbers can be found on the State Bar's Web site, www.WisBar.org, using the Lawyer Directory function.

        For federal cases, Courtlink allows attorney name searches in conjunction with other criteria such as the type of suit. The site identifies lawyers who have argued the case type in front of a particular judge. The report also provides a sampling of a lawyer's or law firm's experience in a specific type of suit or in front of a particular judge.

        Both LexisNexis and Westlaw can pinpoint published and some unpublished cases handled by particular lawyers and judges. To determine whether a lawyer handled a patent and trademark registration, the United States Patent and Trademark Office provides lawyer name searches.

        • News Sources. News resources include newspapers, TV news programs, interviews, and wire services. They can be a valuable source of information on individuals and companies. Both LexisNexis and Westlaw have clipping or alert news services that keep the researcher abreast of the latest developments.

        Free services such as newspaperlinks.com provide a gateway to U.S. and international newspapers that have a listed Web site. For archival newspaper research, NewspaperARCHIVE.com offers a database to search more than 2,100 historical newspapers, with coverage from 1759 to the present.

        Conclusion

        To minimize research costs, any attempt to locate or verify information should begin with many of the known free resources. The objective is to collect readily available information and use it as a building block for further in-depth research.

        In light of recent incidents of data theft,6 both government and commercial information brokers are closely scrutinizing access to their databases. Many states have begun to propose legislation to change open access laws so that personal and corporate information can be redacted or removed from public records.7

        Researchers should gather competitive intelligence legally and for legitimate business purposes. In the case of outsourcing, the individual who outsources the research also bears the responsibility to make certain that third party investigators and data brokers obtain information in a legal manner and in compliance with the privacy laws.

        Endnotes

        1David A. Kaplan, "Suspicions and Spies in Silicon Valley," Newsweek, Sept. 18, 2006, at 40.

        2"Pretexting: Your Personal Information Revealed," FTC Facts for Consumers Feb. 2006.

        3Society of Competitive Intelligence Professionals Code of Ethics.

        4"Personal Information: key federal privacy laws do not require information resellers to safeguard all sensitive data," GAO Highlights GAO-06-674, a report to the Committee on Banking, Housing and Urban Affairs, U.S. Senate, June 2006.

        5See Telephone Records and Privacy Protection Act of 2006, Pub. L. No. 109-476 (2007).

        6Stephen H. Wildstrom, "Personal Data Theft: It's Outrageous," BusinessWeekOnline, April 15, 2005.

        7Tamara Thompson, "Why the judgments and liens databases will become obsolete," PI Buzz, Feb. 3, 2007.




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