United States: Judge In High-Profile Case Obtains Attorney Agreement Not To Engage In Juror Social Media Snooping

It seems that almost everyone uses social media today. Of course, this means that most every juror is a social media user, and that courts are dealing with the thorny questions that arise out of the proliferation of social media usage among jurors.

Like the long-standing practice of warning jurors not to talk about the case with friends and family or to read press reports about the case during the course of trial, courts now routinely caution jurors not to send messages about the case through social media, tweet about the case or look for reports about the case on social media sites. Courts are also taking notice of the potential pitfalls that arise when attorneys poke around prospective jurors' social media sites to try to decide who may be a friendly (or unfriendly) juror.

Recently, a federal court in the Northern District of California addressed this subject in the high-profile copyright case Oracle v. Google. The case concerns allegations that Google unlawfully incorporated parts of Oracle's copyrighted Java code into the Android operating system.

In a recent order, the court asked counsel for Oracle and Google to refrain from conducting any Internet research on potential or empaneled jury members prior to the trial verdict. Because an outright ban would have the unintended consequence of prohibiting the lawyers for the parties—but no one else in the courtroom—from accessing online information on the jurors, the court opted instead to seek the parties' agreement to a voluntary ban. As added incentive to reach agreement, the court offered counsel for both sides extra time to screen potential jurors during voir dire. Both parties ultimately agreed to the voluntary ban.

The court cited three reasons to support its decision to seek the ban.

First, the court reasoned that jurors, upon learning that counsel was investigating them, might be tempted to investigate the lawyers and the case online themselves. And because there is plenty of information online about the high-profile dispute, the court saw an "unusually strong need" to deter any jury member from conducting out-of-court research. The court noted, for example, that a Google search for "Oracle v. Google" yields almost one million hits, and that both parties have hired online commentators to promote their respective sides of the case on blogs and other websites. Because the large amount of online commentary in particular could present a significant risk to a fair hearing, a ban would help ensure that the jury reaches a verdict on the basis of trial evidence only.

Second, the court ruled that online jury research could enable counsel to make "improper personal appeals" to individual jurors during jury argument. For instance, if counsel learns through a social media search that a juror's favorite book is To Kill a Mockingbird, counsel could, in an attempt to capture the attention of an empaneled juror, craft an argument regarding copyright law that weaves in references to that book and the recent death of Harper Lee. The court reasoned further that such calculated appeals would be "out of bounds" because the judge might not "see what was really in play."

Third, a voluntary ban would protect the privacy of potential jurors. Because "[t]hey are not celebrities or public figures," the court ruled that the privacy of potential jurors should not be invaded except to reveal bias or a disinclination to follow court instructions. In anticipation of the argument that potential jurors choose to expose themselves to public scrutiny through their social media privacy settings, the court ruled that "understanding default settings is more a matter of blind faith than conscious choice."

The court's approach creates new precedent in the area of jury selection procedure, where to date parties have been left with little guidance. Indeed, the court itself recognized that "there are precious few decisions" that address the specific issue of whether counsel may conduct Internet and social media research on jurors in their cases.

Existing guidance on this issue stems largely from the American Bar Association (ABA), which has stated that counsel's "passive review" of a juror's website or social media profile, while refraining from making access requests to jurors, does not violate ethical rules on ex parte jury communications. That being said, even the ABA has cautioned that courts may limit social media research in certain cases.

Similarly, the New York State Bar Association (NYSBA) advised recently that, prior to jury selection, judges should address and resolve, on a case-by-case basis, use of social media by attorneys for the purpose of investigating jurors. Relevant questions to consider include what social media services attorneys may review; which social media platforms counsel or her reviewing agent (e.g., a jury consultant) is a member of; and whether results of social media monitoring will be shared with opposing counsel and the court.

The Google v. Oracle decision represents a key step toward marking clear boundaries for social media and Internet investigation by counsel. Further, the decision shows that, left unchecked, online jury research could lead to improper jury appeals, unwarranted privacy invasions, and—perhaps most importantly—compromise of the fair trial process.

As social media use continues to proliferate, we can expect that courts and bar associations will provide further guidance on how attorneys can properly use social media to research the background of both prospective and sitting jurors.

For more on ethical considerations arising from social media use by attorneys, see our recent blog post on New Jersey Supreme Court Questions Ethics of "Friending" a Litigation Foe.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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J. Alexander Lawrence
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