United States: Did You Search Your Jurors' Social Media? There Are Rules

Last Updated: August 22 2016
Article by Steven Boranian

If you represented a large corporation or a wealthy individual, wouldn't you want to know if your prospective jurors were campaigning for Bernie Sanders on Facebook? Or how about criminal prosecutors who might want to know if members of their jury panel had posted strong feelings on police conduct? If you were adverse to a drug or medical device company, maybe you would want to know if a prospective juror wrote for the Drug and Device Law Blog (although we can guarantee that you will find no more thoughtful and impartial jurors than the seven individuals who make up the collective "we").

Millions of potential jurors make information like this (and much more) publicly available on the Internet through social media or otherwise, and what trial advocate would not want to uncover it? We got to thinking about this topic a few months ago when we read a unique order that came out of the Northern District of California in Oracle America, Inc. v. Google Inc., ___ F. Supp.3d ___, 2016 WL 1252794 (N.D. Cal. Mar. 25, 2016). The district judge in Oracle v. Google asked the parties in a high-stakes copyright action to abstain voluntarily from searching the jury panel's social media. If the parties would not agree to a complete ban, then the court would impose specific limitations.

We'll get to the details in a minute. But first, we set out to see if there are any rules that govern searching jurors' social media (with research assistance from Reed Smith attorney David Chang). It turns out there are, mainly within the rules of ethics and professional conduct. The first rules obviously are our duties of competence and diligence. They are among the first duties listed under the ABA's Model Rules and probably the rules governing lawyers in most every state. See Model Rules of Professional Conduct, Rules 1.1, 1.3. If there is publicly available information that would help us identify jurors with potential biases, a competent and diligent trial advocate needs to consider gaining access to it.

There are, however, countervailing considerations. On April 14, 2014, the ABA's Standing Committee on Ethics and Professional Responsibility published "Formal Opinion 466, Lawyer Reviewing Jurors' Internet Presence." The ABA committee's opinion came on the heels of an opinion from the Association of the Bar of the City of New York—"Formal Opinion 2012-2, Jury Research and Social Media." These are not the only publications on the topic, but they were at the cutting edge, and they cover the major considerations.

The opinions identify essentially three additional issues that you have to keep in mind:

No ex parte communications with jurors. Of course, we cannot engage in ex parte communications with jurors or prospective jurors. We remember when we were Summer Associates and were told that if we talked to a juror, we would be fired. Kind of a strange threat to make against a bunch of wide-eyed second-year law students who stood a snowball's chance in hell of actually being in the presence of a jury. (Rumor has it that such an incident actually occurred the prior summer, but we never learned any details.) In any event, ABA Model Rule 3.5 prohibits ex parte contact with jurors, and everyone seems to agree that affirmatively reaching out to a juror on social media—i.e., to "friend," "connect with," or "follow" the juror—clearly would violate that rule. Passive viewing of juror's Internet presence is probably okay, depending on whether the juror receives notice of the surveillance. If a juror received notice of your snooping, for example through an automated message that someone has "viewed your profile," that is okay under the ABA's Opinion, but it might be an ex parte communication under some state's rules, including New York's. So be careful and tread lightly.

No deception. There are lots of rules that prohibit deception, but we follow the one that a now-retired and much-admired mentor shared with us repeatedly: "You can't do that." The ABA Opinion curiously does not mention deception, but the NYC Bar Opinion says flat out, "The attorney must not use deception to gain access to a juror's website or to obtain information." So, no, you cannot troll for information on your jurors through a Facebook profile pretending to be a 24-year-old single woman seeking a roommate, or a 54-year-old divorced male who likes waterskiing and long walks on the beach at sunset (unless you happen to be one of those things). If you search your jurors' social media, either log in truthfully or don't log in at all.

Report any juror misconduct. Judges admonish jurors repeatedly that they cannot discuss the case with anyone or engage in their own investigation, and that includes through the Internet and social media. Still, we hear stories of jurors describing trials on Facebook and even expressing their opinions on the case. If your social media searches turn up commentary that violates the court's instructions, you have to reveal it to the court. You might be thinking, as we did, why on Earth would an attorney not reveal misconduct to the court? Well, the misconduct might reveal a juror's bias in your favor. Maybe she thinks your opening was great or that your experts absolutely killed it on direct. It doesn't matter. If a juror has engaged in misconduct and you learn about it by monitoring social media, you have to tell the judge.

These are the ground rules against which the Northern District of California approached the parties' intent to search their prospective jurors' Internet and social media presence in Oracle v. Google. As of the time of the March 25, 2016 order, one side had not agreed to the court's request to abstain from searching the jurors' social media, so the district judge asked them again to agree. If they would not, the court would inform the jury panel of the "specific extent" to which each side would use Internet searches. The judge then would give the panel "a few minutes to use their mobile devices to adjust their privacy settings, if they wish." 2016 WL 1252794, at *3.

There are some things we like about this solution. We like that the court is forward thinking and is looking out for the jurors' interests in a twenty-first century world. Not many courts understand privacy settings, or even know what privacy settings are. This court thoroughly educated itself. We also like that the district court did not impose an outright ban on social media searches. A federal court may or may not have the authority to impose such a ban, but assuming that it does, a complete ban would hamstring attorneys (who are bound by duties of competence and diligence) in their efforts to engage in legitimate evaluation of public information.

The order does, however, raise important questions. The court was concerned that allowing social media searches (including telling the jurors what the attorneys were doing) "will likely have a corrosive effect on fidelity to the no-research admonition." Id. at *2. In another words, if the attorneys are searching the Internet, then the jurors may feel justified in disregarding the court's admonition. There is certainly a risk of that, but it is uncertain to us how significant that risk would be. It is just as possible that jurors would take the admonition just as seriously whether the lawyers viewed their public profiles or not—particularly if the court instructed them that the difference is based on their role as impartial jurors, which is different from lawyers as advocates

Second, the court cited the danger of attorneys making "improper appeals to particular jurors via jury argument and witness examinations patterned after preferences of jurors found through such Internet searches." Id. That also is a risk, but it is not unique to the Internet. The voir dire process, often supplemented by detailed juror questionnaires, also reveals jurors' preferences and attitudes. That is the reason for the process, and ever since voir dire was invented, lawyers have known and used such information as they present their cases.

Third, the court wanted to protect the jurors' privacy. Id. This is always a laudable goal, but we have to ask whether the court valued the jurors' privacy more than the jurors themselves. We are continually amazed by what people choose to post on Facebook (see our posts on ediscovery of plaintiff social media), even people with senses of social responsibility sufficient to show up for jury duty. On this point, the court struck a compromise: Give the panel members some level of control by allowing them the opportunity to adjust their privacy settings. If the court followed this path, we would be interested to know how many took the court up on its offer.

The takeaway is not that this order is right or wrong. Either way, attorneys should understand first that rules apply, and they should understand second that issues surrounding juries and the Internet will get only more pervasive as time goes on.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.