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July 21, 2016 Top Story

Judge Restricts Lawyers from Researching Jurors Online

Disclose extent of research to venire or don't do it at all, judge says

Carl A. Aveni

A federal judge in the U.S. District Court for the Northern District of California ruled that the lawyers in a prominent copyright suit may not research the public social media posts of their prospective jurors—unless they fully disclose the extent of that research to each juror involved. Faced with such a choice, both counsel accepted the court’s proposed ban. Oracle Am., Inc. v. Google, Inc. The court’s order pushes back on a fairly standard litigation practice—trial counsel quietly examining what jurors publicly disclose about themselves in online forums and on social media.

Reversing a Typical Practice

To mitigate against unnecessary juror intrusions, the court - sua sponte - presented counsel with a choice to reverse typical juror selection practices: voluntarily accept an outright ban on all Internet research for the duration of the trial, or publicly disclose to each prospective juror which of their pictures, profiles, posts and platforms the trial team had examined. The court offered the choice to the parties based on “reverential respect” that trial judges have for juries. The court noted that “in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs and other personal information.”

Although framed as two co-equal alternatives, the court acknowledged that it “would much prefer to fully protect the privacy of all venire persons from Internet searches,” and only “reluctantly” allowed the disclosure option. Following the court’s framing of the issue and its preferences, Oracle and Google opted for the outright ban.

“This decision limits a standard tool of 21st century trial practice. Trial lawyers have been conducting online juror research for as long as social media has been around,” says Marcus R. Chatterton, Birmingham, AL, cochair of the Copyright Subcommittee of the ABA Section of Litigation’s  Intellectual Property Litigation Committee. “This order is completely against the flow of what I would expect, and what’s allowed by ethics opinions across the country.”

The ABA, for example, issued a formal opinion expressly approving such online juror research as consistent with “a strong public interest in identifying jurors who might be tainted by improper bias or prejudice.” Although lawyers are prohibited from contacting jurors under the ethical rules of every state, no such concerns are raised by a passive review of publicly available social media, per the ABA opinion. Accordingly, “as long as there’s no impermissible communications directed to jurors, I would expect a court to take the opposite stance, that is that it’s totally permissible – even to be encouraged – for litigators to research potential jurors on their social media and internet posts,” Chatterton adds.

Indeed, the order expressly recognized that through such online research, lawyers learn useful information about the venire, and assist in policing the integrity of the trial itself. As the opinion noted, “[t]he Court, of course, realizes that social media and Internet searches on the venire would turn up information useful to the lawyers in exercising their three peremptory challenges, and might even, in a very rare case, turn up information concealed during voir dire that could lead to a for-cause removal.” Indeed, “while the trial is underway, ongoing searches might conceivably reveal commentary about the case to or from a juror.”

“Useful information about every juror is so readily available online” says Zascha B. Abbott, Fort Lauderdale, FL, vice-chair of the Section of Litigation’s Trial Practice Committee. “If not able to search jurors online, lawyers will have a harder time ensuring juror compliance with the court’s orders not to discuss the case,” Abbott adds. “It is important for a fair trial that jurors not obtain information or communicate about the case online. By prohibiting social media research, the court could impede efforts at enforcing its own orders.”

Preserving Privacy in a Public Proceeding

While acknowledging these benefits, the court nevertheless concluded that they were outweighed by the risked intrusions on juror privacy: the jurors “are not celebrities or public figures. The jury is not a fantasy team composed by consultants…their privacy matters.”

Moreover, the court warned, given the wealth of personal data now available on social media, lawyers will be tempted to tailor personal appeals to the preferences of individual jurors, as revealed online. Such personal appeals do occur, and are improper, notes James A. King, Columbus, OH, cochair of the Section’s Trial Evidence Committee. “If someone lists on their Facebook page that their favorite novel is ‘To Kill a Mockingbird’, and then . . . opposing counsel starts making references to Atticus Finch throughout the trial, you know what they’re trying to do.”

Not Much of a Choice

To mitigate these risks, the court presented counsel with two alternatives: accept an outright ban or identify to each juror which of their specific posts, photographs, and data the lawyers examined. Oracle and Google opted for the outright ban. “It would really make the jurors feel uncomfortable if the lawyers had to admit the extent to which they’re already researching their jury online,” Abbott cautions. The lawyers had little choice but to accept the ban under the circumstances. “The judge said it was voluntary, but they were really being ‘volun-told’” Chatterton laughs.

 Carl A. Aveni is a contributing editor for Litigation News.

Keywords: juror, venire, voir dire, social media, research, Internet, privacy

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