In a March 25, 2016 Order, Judge William Alsup of the Northern District of California gave Google and Oracle the choice between agreeing to a ban on conducting Internet and social media research on jurors until the trial is concluded or agreeing to disclose details as to the scope of their intended online research. As we wrote previously, Oracle is suing Google for copyright infringement on its Java API code. Google told the Court it was willing to forego digital research on jurors so long as the ban applied equally to both parties. Oracle, however, was not willing to agree to the ban.
In a detailed order, Judge Alsup opened with his concerns, stating that:
Trial judges have such respect for juries—reverential respect would not be too strong to say—that it must pain them to contemplate 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.
While the Court noted that searches on the Internet and social media could turn up useful information for the lawyers in exercising their peremptory challenges or lead to a for-cause removal, there are “good reasons to restrict, if not forbid, such searches by counsel, their jury consultants, investigators, and clients.” The Court laid out three reasons.
First, the Court worried that upon notification of counsel’s searches directed at them, the jurors would stray from the admonition to conduct their own Internet searches on the lawyers and the case. The Court noted that such a temptation would be hard to resist by the jurors despite repeated admonitions against Internet research. Second, the Court noted that such research would facilitate the danger of using personal information from the jurors to make “improper personal appeals.” Probably understanding the significant amount of personal information provided in individual social media profiles, Judge Alsup did not want a lawyer to “ingratiate himself or herself into the heartstrings of [a] juror” by using arguments that played to a favorite book or “a favorite quote or with any number of other juror attitudes on free trade, innovation, politics, or history.” Third, the Court wants to protect the privacy of the jurors. Judge Alsup states that the jurors “are not celebrities or public figures” nor “a fantasy team composed by consultants, but good citizens commuting from all over our district, willing to serve our country, and willing to bear the burden of deciding a commercial dispute the parties themselves cannot resolve.” Likely to address the counterargument that the jurors can decide what to make private or public, Judge Alsup takes a dig at social media privacy settings and states “navigating privacy settings and fully understanding default settings is more a matter of blind faith than conscious choice. (Otherwise, there would be no need for websites explaining the intricacies of privacy settings.)”
With all those reasons, the Court considered its discretion to impose a total ban on social media and Internet searches. However, the Court did have a concern that an outright ban would restrict lawyers from information that’s readily available to the press. As a compromise, the Court provided the option that, if the parties did not voluntarily agree to a total ban on Internet research on the jurors, each side will inform the Court and the jurors the “specific extent to which it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor jurors, including specifically searches on Facebook, LinkedIn, Twitter, and so on, including the extent to which they will log onto their own social media accounts to conduct searches and the extent to which they will perform ongoing searches while the trial is underway.” One can imagine how awkward it will be for the parties to describe to the jurors how they plan to conduct invasive searches into the jurors’ online profiles.
The Order also goes on to describe how some of the more popular social media platforms protect or don’t protect personal information, before concluding with summaries of some cases addressing problems of jurors using social media and the Internet to conduct improper searches. (The Order notes that there are few decisions that address the issue of whether counsel should be allowed to conduct Internet and social media research about prospective and empaneled jurors.)
Google and Oracle agreed on March 31, 2016, to the ban on all Internet research on potential and impaneled jurors until trial is complete. It appears that the parties will rely on traditional voir dire to investigate potential jurors. (The parties did ask for an additional hour of question during jury selection.)
As the Internet and use of social media continues to grow, we can expect that the courts will face more instances that require addressing the issue of whether and to what extent counsel should be allowed to conduct online vetting of jurors. The ABA gives deference to judges to limit the scope of social media searches as needed, and most of the state bars have yet to promulgate rules or issue opinions on the issue.