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Should Lawyers Refrain from 'Scouring' Jurors' Social Media?

The Legal Intelligencer

One might expect a high-profile copyright infringement action ­between two of the world's largest tech companies—with $8.8 billion in potential ­damages at stake—would involve cutting-edge technological issues and ­industry-wide implications. And since its inception in August 2010, Oracle America v. Google—currently before U.S. District Judge William Alsup of the Northern District of California—has left all those involved anxiously awaiting a decision on whether Google's use of Oracle's copyrighted Java code in its Android OS, used by over 300 million mobile devices, was allowed by the fair use doctrine.

But another issue has emerged from this epic battle between tech giants: Whether potential and empaneled jurors' online ­profiles and social media can—and, equally importantly, should—be "scour[ed] over" by trial lawyers and jury consultants to dissect their politics, religion, relationships, preferences, friends, photographs and other personal information.

With each party taking a somewhat ­surprising position on the need to conduct online juror research (given their innate access to such information), Alsup stepped in to offer the parties a novel deal: Either agree to a universal "ban" on Internet ­research and receive additional time for voir dire, or proceed with researching jurors' online presence under explicit, court-approved guidelines. But should a party choose the latter option, it must be prepared to explain to jurors why it needed to "scour" their social media.

Given the unique arrangement posed by this impressively tech-savvy jurist—and the potential Hobson's choice left to the parties—other judges may see this case as offering a roadmap to protect the privacy of their own venire persons from Internet searches.

Deal or No Deal

The dispute about acceptable juror ­research came to a head in the court's March 25 Order re Internet and Social Media Searches of Jurors, in Oracle America v. Google, 2016 U.S. Dist. LEXIS 39675 (N.D. Cal. Mar. 25, 2016).

After calling out the parties for ­requesting as much as two days to pour over a proposed two-page juror questionnaire (which delay the parties later admitted was to be used to "scrub Facebook, Twitter, LinkedIn, and other Internet sites to extract personal data on the venire") the "discussion moved to whether Internet investigation by counsel about the venire should be allowed at all."

The court had previously asked the parties to voluntarily refrain from engaging in any Internet research on the jury prior to verdict. Google said it would agree to a total online ban. Oracle would not. Rather, Oracle asked that searches be allowed—but be limited to ­"publicly-available information"—and that Google be ­prohibited from "reviewing private search history information that Google might have access to by virtue of its services."

In response, Alsup raised three main arguments against Internet searches. "The first reason is anchored in the danger that upon learning of counsel's own searches directed at them, our jurors would stray from the court's admonition to refrain from conducting Internet searches on the lawyers and the case." Moreover, "a second danger posed by ­allowing counsel to conduct research about the venire and the jury is that it will facilitate ­improper personal appeals to particular jurors via jury arguments and witness examinations patterned after preferences of jurors found through such Internet searches." Finally, "a third reason is to protect the privacy of the venire. They are not celebrities or public figures. ... Their privacy matters."

Despite reservations about Internet ­research, Alsup declined to impose an ­outright ban, explaining that he "respects the excellent trial lawyers in this case and their burden in this trial and is reluctant to order them."

Instead, Alsup opined that if Google and Oracle agreed to a voluntary prohibition, he would grant extra time for voir dire. Conversely, if the parties opted to research jurors' online presence, they must: inform the jury pool upfront about the extent of any such searches; preserve every search and any material uncovered; and immediately report any juror misconduct (regardless of whether it was favorable to the party). The judge also ordered that the parties not make any personal appeals to any juror based on information gleaned from an online search—like a favorite movie or book. Additionally, the parties could not tell the jury they are only doing online searches because the other side is, or that the court approved of the searches. Lastly, the jurors would also be "given a few minutes to use their mobile devices to adjust their privacy settings, if they wish."

Alsup further observed how the American Bar Association determined in Formal Opinion No. 466 that, with certain limitations, online searches of prospective jurors are ethical. However, "that such searches are not unethical does not translate into an inalienable right to conduct them," the court wrote. Indeed, Alsup reiterated that while "a range of activities is permitted without violating a professional duty, [the ABA] cautioned that judges may limit the scope of the searches that counsel could perform regarding the juror's social media '[i]f a judge believes it to be necessary, under the circumstances of a particular matter.'"

Finally, on March 31, Google and Oracle both agreed to a voluntary online ban, and requested an additional hour of voir dire. Alsup granted 40 minutes.

Implications: Should Parties Relinquish Power to Scour?

Alsup's opinion takes a unique approach to online juror research: Just because a lawyer may do it under the ethical rules does not necessarily mean they should.

Expressing his "reverential respect" for jurors, Alsup posed a novel approach—agree to an outright ban (with additional time for voir dire), or risk alienating the jury pool by informing them that your client will be "scouring" their online presence.

The reality, however, is this approach will not necessarily be appropriate for every case. Oracle centered on technology. And the mere mention of Google invokes the notion of Internet searches. Public perception was also squarely in play in the case; indeed, Alsup observed that "both sides [had] hired online commentators who have promoted their respective litigation viewpoints on blogs and other websites."

Nor was Oracle necessarily attempting to gain some untoward advantage by conducting online juror research. If anything, its filings indicated a desire to level the ­playing field based on a concern Google (as a search engine) would have unique access to propriety information concerning the jury. And some of Oracle's other stated concerns were equally valid. For instance, Oracle claimed that if juror online activities were not monitored in real-time, there was a possibility juror misconduct (such as commenting on the case, or expressing bias ­toward a party) would go unnoticed until after the verdict. While a legitimate concern, it was the vagaries of Oracle's intended approach that seemed to vex the judge, who wrote that "on numerous occasions, Oracle has supplied confusing answers to the court's inquiries about its plan, and its responses make little sense in light of how the court understands the most prominent social media sites to operate."

Certainly not every judge is expected to be as tech-savvy as Alsup (who even went so far as to learn the Java programming language to better understand the case). But a judge looking to offer protection to the privacy of their own venire can look to this case for guidance.

Setting aside the monumental impact Oracle will have on how software is protected by intellectual property law, this case has also served to reshape the legal landscape of online juror research. But the full impact of this ruling has yet to be seen. Indeed, Alsup himself observed that there are "precious few" decisions addressing this issue, and that the online research of jurors is "an emerging and developing ­concern."

“Should Lawyers Refrain from 'Scouring' Jurors' Social Media?” by Jeffrey N. Rosenthal was published in The Legal Intelligencer on May 10, 2016. To read the article online, please click here.

Reprinted with permission from the May 10, 2016, edition of The Legal Intelligencer © 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.