Can attorneys effectively “link in” to the social media presence of potential jurors? According to a 2015 survey conducted by the Pew Research Center, two-thirds of American adults use social networking sites. See Andrew Perrin, Social Media Usage: 2005-2015, Pew Research Center (October 8, 2015), http://www.pewinternet.org/2015/10/08/social-networking-usage-2005-2015/. Nearly 90% of adults ages 18-to-29 maintain a social media profile and 77% of adults ages 30-49 similarly have social media presences. Id. More astonishingly, 35% of seniors ages 65 and older now use social media, a figure that has increased dramatically from 2% in 2005. Id. Social media platforms such as Facebook, Twitter, Linkedin, Pinterest, Instagram, Reddit, Tumblr, and Tinder reveal intimate details about users, including a user’s political beliefs, social philosophies, recent travels, level of education, social associations, sexual orientation, and relationship status. With so many members of the venire providing valuable information on their social media sites, the question remains: how much, if any, information may an attorney access prior to selecting a jury?
At first blush, the answer appears simple: as much as the court allows. Recent court rulings have imposed restrictions on attorney access to jurors’ social media accounts. An August 2016 decision of the Middle District of Florida provides a telling cautionary tale. In Omni Healthcare Inc., et al. v. Health First Inc., et al., 6:13-cv-01509, Judge Dalton of the Middle District of Florida issued a pretrial order prohibiting attorneys from using the Internet during jury selection in a sizable antitrust matter. Omni Healthcare Inc. et al. v. Health First Inc. et al., 6:13-cv-0150, ECF No. 299 (M.D. Fla. July 22, 2016). Weeks later, the court held attorney Joe R. Whatley Jr. in contempt for accessing the internet during jury selection. Judge Dalton additionally fined Mr. Whatley $500 for his failure to comply with the pretrial order. Omni Healthcare Inc. et al. v. Health First Inc. et al., 6:13-cv-0150, ECF No. 330 (M.D. Fla. August 19, 2016).
Omni Healthcare and other similar cases illustrate the measures that courts will take to safeguard juror privacy. The dangers of the practice motivating judges to adopt a protectionist approach were well discussed in Oracle America, Inc. v. Google, Inc., 10-03561 WHA, 2016 U.S. Dist. LEXIS 39675 (N.D. Cal. March 25, 2016). There, Judge Alsup of the Northern District of California was faced with the request of counsel to provide an additional jury questionnaire that would aid the attorneys in pinpointing juror social media pages. Id. at *4. The court voiced its discomfort with attorneys who routinely “scrub Facebook, Twitter, Linkedin, and other Internet sites to extract personal data on the venire.” Id.
Judge Alsup identified three serious implications arising from the practice, noting that it encourages disobedience of court instruction, invites personal appeals to jurors, and intrudes upon juror privacy. First, Judge Alsup voiced his concern that extensive juror research may impede on jurors’ ability to abide by the court’s instruction to refrain from researching the case and the attorneys. He posited that, if jurors are informed that attorneys have studied their social media profiles, they will then ignore the court’s instruction to avoid researching both the attorneys and the case. Id. at *7-9. Second, he suggested that access to intimate personal details on social media could produce improper personal appeals to particular jurors. Judge Alsup referred to jurors who list favorite books, movies, and music on Facebook, voicing his concern that an attorney could weave in key quotations or excerpts from the media listed in “an effort to ingratiate himself or herself into the heartstrings of that juror.” Id. at *8-9. Third, and perhaps foremost, Judge Alsup registered his paramount concern for juror privacy. He emphasized that jurors are not “celebrities or public figures” nor are they “a fantasy team composed by consultants, but good citizens commuting from all our district, willing to serve our country, and willing to bear the burden of deciding a commercial dispute the parties themselves cannot resolve.” Id. at *10.
Despite evidencing a deep-seated discomfort with the practice, the court proposed a unique alternative solution. It allowed the parties to agree to either (a) completely refrain from researching jurors; or (b) retain complete access to jurors’ social media accounts on the condition that they disclose to the venire “the specific extent to which it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor jurors.” Id. at *11. If the parties elected for the second option, they would be required to tell jurors exactly what social media platforms that they intended to review. Then, the attorneys would only be permitted to view the accounts disclosed and would be required to maintain an exact record of all searches and information generated. Id. at *12-14. After the attorneys’ disclosure, jurors would be offered the opportunity to adjust their privacy settings. Id. at *12. Unsurprisingly, the attorneys in Oracle elected to refrain from researching the jurors’ social media profiles.
Not all courts, however, have viewed the practice with skepticism. The New Jersey Appellate Division, for one, has all but endorsed the practice. In Carino v. Muenzen, No. A-5491-08T1, 2010 WL 3448071, at *7 (N.J. Super. Ct. App. Div. Aug. 30, 2010), the Appellate Division held that the trial court abused its discretion by prohibiting counsel from accessing the Internet during jury selection on the ground that opposing counsel did not have the same ability because he had not brought a laptop to court. There, defense counsel brought a laptop to court in order to access the Internet and conduct research on potential jurors. Id. at *4. The Appellate Division held that the trial judge acted “unreasonably” when it prevented defense counsel from accessing the Internet. The Appellate Division credited counsel’s “foresight to bring his laptop computer to court.” Id. at *10.
When the court has not specifically addressed the extent to which attorneys may access juror social media accounts, the ethical boundaries remain relatively uncertain. A number of high-profile ethics opinions provide helpful, albeit inconsistent, guidance. The New York City Bar Association issued one of the earliest and most comprehensive guidance on point. In Formal Opinion 2012-2, the Association reflected an underlying ambivalence common to many of the authorities addressing the issue. It recognized, on one hand, that “standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case.” On the other hand, it illustrated a keen awareness that the interactive nature of social media may implicate rules prohibiting communications with jurors.
In its discussion, the New York City Bar Association isolated Rule of Professional Conduct 3.5, which prohibits ex parte communication with prospective jurors. The authors parsed the definition of “communication” at length, concluding that the defining characteristic of a communication is “the ‘transmission of,’ ‘exchange of’ or ‘process of bringing’ information or ideas from one person to another.” As such, the authors concluded that internet research amounts to impermissible ex parte communication only if a potential juror is notified that an attorney viewed its social media account. Therefore, an attorney may conduct Internet research so long as the juror is not notified. It importantly resolved that “[a] request or notification transmitted through a social media service may constitute a communication even if it is technically generated by the service rather than the attorney, is not accepted, is ignored, or consists of nothing more than an automated message of which the ‘sender’ was unaware.”
The American Bar Association has adopted a less restrictive approach. Identifying “a strong public interest in identifying jurors who might be tainted by improper bias or prejudice” as well as an “equally strong public policy in preventing jurors from being approached ex parte by the parties to the case or their agents,” the ABA largely approved of the practice. In Formal Opinion 466, the ABA recognized that passive review of jurors’ social media accounts conducted without sending an access request does not violate Model Rule 3.5(b). It equated the review to “driving down the street where the prospective juror lives” and observing the materials that the juror displays on its lawn. The ABA then deviated from the New York City Bar Association’s approach, resolving that automatically generated notices do not constitute communications from an attorney because the social media service, rather than the attorney, is communicating with the juror via a technical feature. It analogized automatic notification to “a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.”
Like the New York City Bar Association, the ABA has definitively opined that attorneys may not, either on their own accord or through another, send an access request to a prospective juror. It reasoned that “[a]n access request is an active review of the juror’s electronic social media by the lawyer.” This, the ABA noted, “would be akin to driving down the juror’s street, stopping the car, getting out, and asking the juror for permission to look inside the juror’s house because the lawyer cannot see enough when just driving past.” The ABA encouraged courts to actively discuss with jurors the prospect of attorney review while also advising courts to consider limiting attorney access to juror social media where appropriate. If Oracle and Omni Healthcare are any indication, courts have heeded the call.
Ultimately, the rules and restrictions governing access to jurors’ social media accounts will continue to evolve along with the innovative, rapidly developing social media platforms to which they respond. Before accessing potential jurors’ social media accounts, an attorney should first consult any orders of the court discussing the parameters of access. If the court has not established access parameters, an attorney should similarly consult any applicable state or local ethical authorities that have addressed the issue. As the New York City Bar Association and ABA opinions illustrate, ethics opinions may vary or even present contradictory guidance. Going forward, as social media grows increasingly ubiquitous, both the courts and the appropriate ethics authorities will play a critical role in evaluating new social media platforms and determining whether and to what extent attorneys may remain “linked in.”