Social media profiles and postings by potential jurors can provide litigation counsel with substantial information about these individuals, including their likes, dislikes, and views on various issues and potential biases. A March 25, 2016 federal trial court ruling, however, led both parties to agree to forego these searches.
The case involved a high-profile copyright dispute between Google and Oracle. Oracle claimed that Google’s Android smartphone operating system software infringed Oracle’s copyright in its Java technology, and Google denied the claim.
By way of background, in the United States, a federal trial judge will typically instruct jurors that they are prohibited not only from discussing on social media the cases in which they are involved, but also from using the Internet and social media during the trial to research or comment on anything relating to the case.
Concerns regarding social media searches on potential jurors
The court in this case used a two-page questionnaire for potential jurors, and was surprised when the parties requested up to two days to review the responses before beginning questions to potential jurors (voir dire). The judge stated that he “eventually realized” that the purpose of the delay was to permit counsel and their clients and agents to research the potential jurors’ online information. The judge stated three reasons “to restrict, if not forbid, such searches by counsel, their jury consultants, investigators and clients”:
- “The danger that, upon learning of counsel’s own searches direct at them, our jurors would stray from the Court’s admonition to refrain from conducting Internet searches on the lawyers and the case.”
- Allowing that research “will facilitate improper personal appeals to particular jurors via jury arguments and witness examinations patterned after preferences of jurors found through such Internet searches.”’ The judge cited examples of trial counsel using quotes from a juror’s favorite books or attitudes on “fair trade, innovation, politics, or history” in order to sway the jurors.
- “To protect the privacy of the venire.” With respect to jurors, the court stated: “Their privacy matters. Their privacy should yield only as necessary to reveal bias or a reluctance to follow the Court’s instructions.”
The court’s options to the parties
The court considered exercising its discretion to ban counsel and the parties from conducting social media and Internet searches on potential jurors, but instead gave the parties a choice:
A. Consent to a ban against Internet and social media research on jurors until the trial is over or
B. Conduct the searches subject to all of the following:
i. Counsel would be required to inform the jurors of the specific extent the party will use the Internet searches to investigate and monitors jurors “including specifically searches on Facebook, LinkedIn, Twitter, and so on, including the extent to which they will log onto their own social media accounts to conduct searches and the extent to which they will perform ongoing searches while the trial is underway.”
ii. Counsel could not explain their searches “on the ground the other side will do it.”
iii. Counsel could not intimate that the court permitted the searches “and thereby leave the false impression that the judge approves of the intrusion.”
iv. Jurors would be informed that the trial teams would discover and review their “social media profiles and postings, depending on the social media privacy settings in place. The venire persons will then be given a few minutes to use their mobile devices to adjust their privacy settings, if they wish.”
v. Jurors would be reminded that they cannot do electronic research on the case.
vi. Counsel would not be permitted to make any personal appeals to any juror “exploiting information learned about a juror via searches.”
Both parties chose the ban against Internet and social media research on potential jurors.
Companies may wish to consider how they would respond to such a choice, and may want to consider requesting a similar choice in jury trials. Another question to consider is the arguments to make against having to make such a choice, including questions of potential juror bias.