Googling Jurors Or Oracle In The Jury Box

Interesting legal thinking on an “emerging and developing concern” is being presented by US District Court Judge William Alsup of the Northern District of California.  In the case, Oracle America, Inc. v. Google Inc., (10-cv-03561-WHA), Alsup addresses the question – should counsel be allowed to conduct detailed Internet and social media research about prospective and empaneled jurors?

What makes this case particularly interesting is that the parties involved are two Internet technology giants, one of whose name is synonymous with Internet searching.  Alsup’s concerns include personal privacy of jurors, as well as, equitable standards for Internet research activity for jurors and attorneys.

Previously in this case, Alsup rejected the companies’ proposed juror questionnaire over privacy intrusion concerns.  He was concerned about to what extent the parties’ lawyers and their “waiting squads of Internet investigators” would use social media and other Internet information as resources to research the members of the jury pool.   The judge had asked the lawyers to submit briefs on how the parties foresaw their review of the cache of Internet data and activity linked to individuals now available to technology experts.  He expressed concern that the lawyers would “analyze their [jurors’] politics, job searches, shopping habits, evening life, and/or personal interests.” Today, many private citizens are concerned as Judge Alsup is with the permanency of one’s Internet footprint and its intrusion into many areas of life.  An opinion expressed in a very different situation – among on-line family or friends – could be used in a claim of bias against a prospective or seated member of a jury.

Judge Alsup also asked the question — if the jurors are admonished not to research the lawyers or the case, why can the parties and lawyers or their consultants research the jurors?

Order of March 25

Judge Alsup issued an order in the case last week, on March 25, 2016, stating his opinion of the use of Internet and social media searches of jurors during this trial.  He has asked that both sides consent to a ban on Internet research.  Alsup has given the parties until March 31 to say whether they consent to his proposed ban.

You can read Judge Alsup’s March 25 order here – OracleGoogle_alsup_order_re_internet_social_media_searches_jurors.

What are Alsup’s concerns?

Case information widely available on the Internet

Judge Alsup writes in his March 25 order –

“Nearly one million hits (including tens of thousands of news results) appear in a Google search for “Oracle v. Google.” These include strong opinions on both sides and at least the usual amount of inaccurate information. In this very case, we earlier learned that both sides hired online commentators who have promoted their respective litigation viewpoints on blogs and other web sites.”

 Pop-up arguments

Judge Alsup also expresses in his March 25 order a concern that, like those irritating pop-up advertisements, the attorneys in the case may try to collect Internet use data to sell to individuals — personalizing legal arguments based on a juror’s prior Internet research or use –

“…  it will facilitate improper personal appeals to particular jurors via jury arguments and witness examinations patterned after preferences of jurors found through such Internet searches. For example, 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.”

Venire privacy

Alsup states –

“The jury is not a fantasy team composed by consultants, 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.”

Documents

Here are some other case filings and articles discussing the legal considerations and case law on balancing privacy rights with technological advances during the jury selection process:

• The Recorder article on Alsup’s March 25 order [subscription required], paper version available at Alameda County Law Library.  “Alsup-Presses-Lawyers-to-Swear-Off-the-Snooping”

• From the ABA Journal – “Google and Oracle lawyers who research jurors online must disclose it, judge rules“

• Judge Alsup’s rejection of the jury questionnaire (“Document 1523”) oraclevgoogle_rejectingjuryquestionnaire_03012016_alsup

• GOOGLE INC.’S RESPONSE TO ORDERS  Document 1523  GOOGLE_RESPONSE_juror_social_media_research_oraclevgoogle_usdcndca1003561

• ORACLE’S RESPONSE TO Document 1523 ORACLE_response_juror_social_media_research_oraclevgoogle_usdcndca1003561

 

UPDATE:  Google and Oracle agreed on March 31, 2016, to the ban on all Internet research on potential and impaneled jurors until trial is complete. It appears that the parties will rely on traditional voir dire to investigate potential jurors. (The parties did ask for an additional hour of question during jury selection.)