A district court recently addressed whether Internet investigation by counsel about the venire, including searches of social media, should be allowed.
The court discussed three reasons to restrict, if not forbid, Internet searches about the venire by counsel, their jury consultants, investigators and clients. First, the court discussed the potential danger that jurors, upon learning of counsel’s own searches directed at them, would choose to conduct their own Internet searches about the lawyers or about the case, in violation of the court’s instructions. This danger is even more acute in high-profile lawsuits, like the one at issue here, which create enormous amounts of online commentary, not all of which is accurate. The second potential danger is that Internet searches could facilitate personal appeals to particular jurors based on information gleaned about an individual’s preferences. The court explained that, while jury arguments may employ analogies and quotations, “It would be out of bounds to play up to a juror through such a calculated personal appeal.” The third reason is to protect the privacy of the venire, which, as the court explained, is “not a fantasy team composed by consultants, but good citizens commuting from all over the district, willing to serve our country, and willing to bear the burden of deciding a commercial dispute the parties themselves cannot resolve.”
Rather than issuing an outright ban, the court requested that both parties voluntarily consent to a ban against Internet research on the venire or jury. In the absence of a complete agreement by the parties, the court instructed that certain procedures would be used. Specifically, at the outset of jury instruction, each side will inform the venire of the specific extent to which they will use Internet searches to investigate and monitor jurors both before and during the trial. At that point, the venire will be given opportunity to modify their privacy settings, if they wish. As the trial proceeds, each side must preserve an exact record of every search and all information viewed, and must immediately report any apparent misconduct by a juror. Finally, no personal appeals to particular jurors may be made at any time during the trial.
Oracle America, Inc. v. Google Inc., 3-10-cv-03561 (N.D. Cal. March 25, 2016) (Alsup, J.).