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In-state P.I. license not necessary to testify as expert, court rules

The Nevada Supreme Court upheld, on September 19, the dismissal of an unlicensed practice citation issued by the state’s private investigator licensing board to an expert witness who performed private investigator-type work as part of his preparation for testimony

(Private Investigator’s Licensing Board v. Tatalovich).

Dwayne Tatalovich, a private investigator licensed in Arizona, was hired as an expert witness in a lawsuit against a Nevada property owner who allegedly failed to provide adequate security for his premises; the plaintiffs were injured by what they claimed was a preventable crime that occurred on the property.  To prepare for his testimony, Tatalovich investigated the crime scene and performed background checks.

The private investigator licensing statute mandates a license for any person who is “engage[d] in the business of” or “advertise[s] his or her business as” a private investigator, which is defined to include a person who investigates “the cause or responsibility for fires, libels, losses, accidents or damage or injury to persons or property” or “secur[es] evidence to be used before any court, board, officer or investigating committee,” among other things.


When the Nevada private investigator board learned of his work, it cited Tatalovich for unlicensed practice.  However, a district court dismissed the citation, ruling that, because Tatalovich’s actions were performed as part of his expert testimony preparation, they were not subject to the private investigator laws.

The board appealed and the case went up to the Nevada’s Supreme Court, which held in favor of Tatalovich.

“The Board’s reading of the licensing statutes gives them greater reach than their text and evident purpose allows,” wrote Justice Katrina Pickering in the court’s published opinion rejecting the board’s appeal.

The statute’s reference to advertising, Pickering wrote, “suggests that the statute regulates those who solicit and accept employment for the purpose of providing the professional services named, not just anyone who incidentally undertakes activities also commonly performed by the those professionals en route to providing a different service–here, forensic consulting or expert opinion testimony.”

The licensing statute, Pickering noted, “governs professionals providing a primary service to clients who either rely or act upon that service for their own safety or welfare.”  “No similar purpose is achieved,” she wrote, “by extending the licensing requirement to expert witnesses,” whose work would be evaluated in court.

The board argued that Tatalovich was different from other expert witnesses because he was not licensed in a separate profession, which would ensured that his activity was regulated.  However, Justice Pickering responded, “work by forensic experts, even work not subject to other professional licensing requirements, is not unregulated.  It is limited by the rules of the court, the judge’s approval of the expert’s qualifications to provide the opinion, and the judge’s determination of what testimony, if any, to allow.”

The board’s interpretation of the statute was so broad, she wrote, that it would encompass other professions, such as reporters doing legitimate journalistic investigation.

“Is a plumber who inspects a drain to determine whether a lost wedding ring is lodged in a sink’s pipe acting as a private investigator by obtaining information about ‘[t]he location . . . of lost . . . property?” Pickering asked, citing another enumerated activity in the statute. What about a prospective employer who calls past employers to learn an appli- cant’s work history? (act-ing as a private investigator includes obtaining ʺ″information with reference to . . . [t]he . . . honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty . . . reputation or character of any personʺ″).

The Legislature has not endorsed the Board’s expansive view of what constitutes private investigation.