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Federal Court Seeks to Crack Down on Lawyers' Use of Social Media To Research Jurors
Practical Law Legal Update w-001-4998 (Approx. 3 pages)
Federal Court Seeks to Crack Down on Lawyers' Use of Social Media To Research Jurors
by Practical Law Litigation
| Law stated as of 11 Mar 2016 • USA (National/Federal) |
A recent order issued by the US District Court for the Northern District of California in Oracle America, Inc. v. Google, Inc. highlights the prevalence of social media use both in and out of the courtroom.
In Oracle America, Inc. v. Google, Inc., a federal judge recently issued an order requiring the parties to show cause why any and all internet research on jurors before a verdict should not be banned (see No. 3:10-cv-03561 (N.D. Cal. Mar. 1, 2016) (Ruling Rejecting Jury Questionnaire)).
In its order, the court also prohibited the parties from using their joint proposed jury questionnaire and procedure during voir dire. The court discussed its suspicion that the real reason for the proposed questionnaire and procedure was to obtain the names and addresses of potential jurors, so that the parties could:
- Conduct extensive internet searches on the venire.
- Enable jury consultants to run demographics against the pool and rank potential jurors before the oral voir dire procedure.
To help prevent this, the court ordered that it would instead use "traditional safeguards" to root out any bias. However, it noted that, even with a normal voir dire procedure, it appeared that both sides intended to email or text potential juror information as soon as venire members were called forward to "waiting squads of internet investigators." Because the court found a greater than average risk that the losing party in the case would seek to impeach the verdict by claiming that a juror answered falsely during voir dire, the court ordered the parties to:
- Raise any inconsistency between a juror's answers and internet research results before the jury was sworn.
- Retain all information acquired during internet investigations.
- Note the date when the information was acquired.
- Record the specific investigative steps the parties took to obtain the information.
Noting the paradox of prohibiting jurors from conducting internet searches about the case and lawyers while allowing lawyers to conduct internet searches on jurors, the court then ordered the parties to show cause why the court should not ban any and all internet research on the jury during trial before a verdict. The court subsequently required briefing from the parties detailing, among other things, their proposed social media use during trial, including the extent to which counsel would access the Twitter accounts of jurors or contact their Twitter followers, Facebook friends, or LinkedIn connections.
The court's order is an interesting attempt to turn back time, especially given the current prevalence of social media both in and out of the courtroom. Because of society's growing dependence on social media, it seems nearly impossible to keep social media out of the courtroom. Social media has become a common tool for lawyers to use (within certain ethical confines) to research jurors during voir dire and during trial.
Practical Law has several resources to assist counsel with picking a jury in the modern age, including:
Practical Law's Trial Toolkit (Federal) also contains numerous other maintained resources to assist counsel with preparing for and conducting trial in federal court.