As the battle between Oracle and Google approaches nearer to trial, the United States District Court for the Northern District of California has denied Google's objection to the selection of the pool of jurors who will hear the trial. The district court previously notified Oracle and Google that the district court intended to pre-clear a large number of potential jurors for a multi-month criminal trial and that it intended to use this same pool of potential jurors for the trial between Oracle and Google in the event the criminal trial was postponed. Oracle did not object to the procedure. Google did.

In its objection, Google argued that many potential jurors who would normally be available to serve on a three week trial would have significant personal or professional commitments that would prevent them from serving in a much longer criminal trial. As a result, Google reasoned that the pool cleared for the much longer criminal trial would be less diverse and less representative than a group specifically cleared for a shorter three week trial. In Google's words, "[t]o maximize the size and diversity of the venire, enhance the [quality] of the jury-selection process, and increase the likelihood that the jury eventually selected will provide the parties with a fair cross section of the community, Google respectfully requests that the Court not use the pre-clearance process."

In overruling Google's objection, the district court noted that although Google's predictions regarding the pool cleared for the longer criminal trial might be accurate, Google had failed to identify any right that would be violated by using such a pool. The district court found that 28 U.S.C. § 1861, which provides that litigants entitled to a jury trial shall have jurors selected at "random from a fair cross section of the community," does not require that the district court maximize the diversity of a jury pool. Rather the statute only requires that that the "pool constitute a 'fair cross section of the community." The district court then concluded that Google had not shown how the pool selected for the criminal case would not be a fair cross section of the community.

Relying on Duren v. Missouri, 439 U.S. 357, 364 (1979), which sets out the standard for establishing a prima facie violation of the fair-cross-section requirement, the district court found that Google had not identified a distinctive group that would be excluded from the pool. "Groups that have been recognized as distinctive for purposes of this analysis typically are defined by race, ethnicity, gender, or some other discrete characteristic. Google cites no authority showing that individuals with 'significant personal or professional commitments' have been or should be recognized as a distinctive community group."

Accordingly, the district court overruled Google's objection to the pool.

* * * To prevail on such an objection as the one made by Google, it is apparent that some evidence of a distinctive group must be presented, e.g., some type of statistical data that would demonstrate that the time screen used by the district court would somehow result in the exclusion of a distinctive group. Because Google did not do that, it lost the objection. More fundamentally, were such an objection to be sustained, it would likely have wide reaching consequences for jury selection around the country for longer trials and would likely result in requiring potential jurors with significant personal or professional commitments to disregard those commitments to sit on lengthy jury trials.

Oracle America, Inc. v. Google Inc., Case No. C 10-03561-WHA (N.D. Cal. Sept. 7, 2011)