Google and Oracle lawyers who research jurors online must disclose it, judge rules
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A federal judge has asked lawyers for Google and Oracle to voluntarily agree to a ban on Internet research on potential jurors or to disclose the extent of their online searches during jury selection.
U.S. District Judge William Alsup offered that choice to lawyers in an order (PDF) on Friday, report the Hollywood Reporter, the Recorder (sub. req.), Courthouse News Service and the Wall Street Journal Law Blog. He ruled in advance of a second trial in May on Oracle’s claim that Google used Oracle’s copyrighted code in the Android operating system.
Alsup said he decided to give lawyers the choice after realizing the reason they wanted more time to review a two-page juror questionnaire was so they could “scrub Facebook, Twitter, LinkedIn, and other Internet sites to extract personal data on the venire.” He gave the lawyers until March 31 to decide whether they will agree to a ban.
If the lawyers opt to conduct the searches, their juror disclosure “shall not explain away their searches on the ground that the other side will do it, so they have to do it too,” Alsup wrote. “Nor may counsel intimate to the venire that the court has allowed such searches and thereby leave the false impression that the judge approves of the intrusion.”
Alsup said the disclosure should include how the lawyers will research jurors’ social media accounts before and during the trial. Potential jurors would be told, however, that Google won’t be mining their Internet searches. The lawyers would also have to keep a record of every search and all information viewed.
Alsup acknowledged the online searches could turn up information that aids the lawyers in their peremptory challenges and could even lead to a for-cause removal of a potential juror. But Alsup saw potential problems with the searches.
First, he wrote, jurors who learn of lawyers’ own searches could be tempted to “stray from the court’s admonition to refrain from conducting Internet searches on the lawyers and the case.”
Second, Alsup said, lawyers could use their Internet research to make improper personal appeals to particular jurors. “For example,” he wrote, “if a search found that a juror’s favorite book is To Kill A Mockingbird, it wouldn’t be hard for counsel to construct a copyright jury argument (or a line of expert questions) based on an analogy to that work and to play upon the recent death of Harper Lee, all in an effort to ingratiate himself or herself into the heartstrings of that juror. The same could be done with a favorite quote or with any number of other juror attitudes on free trade, innovation, politics or history.”
Third, Alsup said, he was concerned about protecting the privacy of the venire. “The jury is not a fantasy team composed by consultants,” he said, “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. Their privacy matters.”
Alsup said few decisions address the issue of lawyers’ Internet research on jurors, though the ABA has issued an ethics opinion finding no ethical violation with a lawyer’s “passive review” of a juror’s website or social media. Friend and follower requests, however, amount to forbidden ex parte communications. The opinion also says judges could limit the scope of lawyers’ research based on the circumstances of a particular matter.
