A high-profile copyright case between Oracle and Google, pending in federal court in the Northern District of California, has resulted in an interesting order from the court regarding the lawyers’ use of social media to research the backgrounds of potential jurors. In the Order, the court asked the lawyers to consent to a ban on all juror research, including Internet and social media, until the trial concluded.
The order came about as a result of what the court considered suspicious conduct by the lawyers. As the court put it: “In this high-profile copyright action, both sides requested that the Court require the venire to complete a two-page jury questionnaire. One side then wanted a full extra day to digest the answers, and the other side wanted two full extra days, all before beginning voire dire. Wondering about the delay allocated to reviewing two pages, the judge eventually realized that counsel wanted the names and residences from the questionnaire so that, during the delay, their teams could scrub Facebook, Twitter, LinkedIn, and other Internet sites to extract personal data on the venire. Upon inquiry, counsel admitted this.”
This concerned the court for several reasons. First, the court noted the “apparent unfairness” in allowing lawyers to investigate the jurors, while the jurors, per the court’s previous admonishment, were forbidden from looking up the lawyers. The court felt that once the jurors learned what the lawyers were up to, they would do the same, court order or no court order.
The court’s second concern was that the research would “facilitate improper personal appeals to particular jurors via jury arguments and witness examinations patterned after preferences of jurors found through such Internet searches.” As an example, the court noted, “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.”
The court’s third concern was for the privacy of the jurors. On this point it noted: “They are not celebrities or public figures. 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.”
I respectfully disagree with the court on all three points. On the first point, no matter how it “appears” – it is not “unfair” that the lawyers research the jurors while the jurors are prohibited from researching the lawyers. The lawyers’ job is to represent their clients “zealously within the bounds of the law." That includes learning as much as possible about potential jurors. But the jurors’ job is to listen to the evidence presented and make a decision. So there is no need for the jurors to be snooping around on social media to learn more about the lawyers. Life isn’t always “fair.”
On the second point, I’m not sure how I’d wrap a copyright argument around To Kill A Mockingbird, but be that as it may, of course lawyers want to ingratiate themselves to jurors. And there is plenty of information provided in traditional voire dire for lawyers to use in that regard. If I find out in voire dire that I have baseball fans on my jury, you can bet I’m going to use a baseball reference or two at some point in the trial (actually, given how much I like baseball, I’d probably do that anyway, but you get the point). So the availability of information on social media may provide more data to use, but the concept is already part of every competent trial lawyer’s arsenal.
And I’m not buying the privacy argument. The lawyers can only view publicly available information – they can’t see anything the jurors shield from public view. If the lawyers use deception to see more than what is publicly available they should be sanctioned. But to ban the use of social media entirely to protect a non-existent privacy right really makes no sense.
But as it turns it out, on March 31, lawyers for Google and Oracle agreed to the requested ban. Perhaps they concluded that at the end of the day, the smartest thing to do in trial is not get the judge mad. Not a bad rule of thumb actually.