Judge Restricts Research Into Potential Jurors

by Searcy Denney Scarola Barnhart & Shipley
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The Federal Judge assigned to the copyright lawsuit Google Inc. against Oracle Corporation had taken a traditional approach in jury selection.  U.S. District Judge William Alrup rejected the proposed jury questionnaire, calling it a tool for gathering information to be used in background checks on potential jurors.

The Judge stated, “The usual reasons given for using a jury questionnaire as part of voir dire are:

  • to save time;
  • to allow for more accurate answers;
  • to allow venire members the opportunity to disclose any embarrassing information in writing rather than in open court; and
  • to avoid comments prejudicial to one party or another being blurted out during voir dire.

The joint questionnaire and procedure proposed by counsel, however, will not save time.”

Judge Alsup noted, “The court suspects that a real reason the parties wish to use the proposed questionnaire and its two-day (or more) procedure is to get the names of prospective jurors and their place of residence so that they may conduct extended Internet investigation.”

The Judge seems to use this high profile case to raise questions about research tactics now commonplace in jury selection.  He noted his expectation that, even without a jury questionnaire, lawyers for the tech giants would text or e-mail the names and hometowns of potential jurors from the courtroom “to waiting squads of Internet investigators.”  The Judge also noted the contradiction between admonishing jurors to refrain from Internet searches and then allowing parties to scour their online histories.

“It will be hard for [jurors] to understand why the lawyers can do to them what the jury cannot do to the lawyers [and the case], Judge Alsup stated.  Instead of a jury questionnaire, the Judge wrote that he and the lawyers would use traditional in-person voir dire to “root out any bias.”

The Judge also suggested that lawyers for Oracle and Google may have another motive for conducting extensive Internet research on jurors. The Judge wrote that both companies would likely gather information on panel members in case of a loss and then seek to overturn an unfavorable verdict with evidence that a juror wasn’t truthful during vior dire.

Judge Alsup wrote that he’s considering a ban on “any and all Internet research on the jury prior to verdict.”  The Judge asked both sides to lay out how far the law and professional ethics rules allow them to go in accessing social media accounts to gather information about potential jurors.

The Judge also asked the lawyers to brief whether either side (one party being the world dominant search engine) contemplates reviewing Internet searches of actual or prospective jurors “to analyze their politics, job searches, shopping habits, evening life, and/or personal interests.”

As a compromise, Judge Alsup called upon the tech giants:

“…to voluntarily consent to a ban against Internet research on the [jury pool] or our jury until the trial is over… In the absence of complete agreement on a ban, the following procedure will be used. At the outset of jury selection, each side shall inform the venire of the specific extent to which it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor 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. Counsel shall not explain away their searches on the ground that the other side will do it, so they have to do it too.”

Ultimately, Google and Oracle have mutually agreed not to examine search histories or to conduct searches on jurors or prospective jurors. Whether this will be adopted in other cases or not, time will tell.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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