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November 23, 2016 Practice Points

Researching the Public Social Media Posts of Prospective or Trial Jurors

A recent ruling out of the Northern District of California appears to be inconsistent with ABA Formal Opinion No. 466.

By Criminal Litigation Committee – November 23, 2016

In the recent case of Oracle v. Google, Inc., 2016 U.S. Dist. LEXIS 39675 (N.D. Cal. 2016), the court held that the attorneys could not research the public social-media posts of the prospective jurors unless they fully disclosed the extent of that research to each juror on the voir dire panel. According to a published report, counsel for both parties accepted the court’s ban on doing this research. This ruling appears to be inconsistent with ABA Formal Opinion No. 466, which determined that an attorney may conduct Internet searches of jurors and prospective jurors without violating ABA Rule 3.5(b), which prohibits ex partecommunications with jurors. This opinion stated that “passive review” of a juror’s website or social media that is available without making an “access request,” and of which the juror is unaware, is permissible under the rule. The court in the Oracle case did cite the ABA rule, but indicated that the same ABA opinion stated that judges may limit the scope of the searches that counsel could perform regarding jurors’ social media if a judge believed it to be necessary under the circumstances of the particular matter. Among the cases that the court cited to support its decision was United States v. Norwood, 2014 WL 1796644 (E.D. Mich. May 6, 2014), where the court overruled the defendant’s objection to the court empanelling an anonymous jury. The defense argued that counsel required access to the jurors’ identifying information to monitor social-media accounts during the trial, to ensure compliance with a no-discussion admonition (an instruction given by the court to jurors that they should not access the Internet and social media regarding the matter). Prior to researching the public social media of prospective or trial jurors, counsel should seek court approval.

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