How far can lawyers go in researching potential jurors history on-line, on social?

Here’s a new one. In a big — really big — court case, a California judge banned the lawyers from researching what jurors posted on social media. Both counsels agreed to the order rather than have the judge announce to the jurors that they were being researched. The judge noted that the practice of searching for info online is common and not unethical, but that doesn’t mean lawyers have an “inalienable right to conduct them.”.

“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.” — Judge William Alsup

The court case was a battle of titans. Oracle was suing Google for using elements of its Java programming language in the Android mobile OS. The jury ruled in Google’s favor, saying, in essence, it was fair use.

American Bar Association’s opinion

The American Bar Association has put out a formal opinion on attorneys and internet searches of jurors. It allows for judges to limit the scope of the searches if they think it might be necessary.

The issue is being debated all across the country. The New York State Bar Association advised its members that, prior to selection of a jury, the judge should address the issue and resolve it on a case-by-case basis. One of the items cited is whether anything discovered would be subject to the rules of discovery and, therefore, turned over to opposing counsel and the judge.

“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 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 same could be done with a favorite quote or with any number of other juror attitudes on free trade, innovation, politics, or history. Jury arguments may, of course, employ analogies and quotations, but it would be out of bounds to play up to a juror through such a calculated personal appeal, all the more so since the judge, having no access to the dossiers, couldn’t see what was really in play.” — Judge William Alsup

It’s not just the jurors

The law firm Gibson-Dunn said the number of cases using discovery from social media continues to skyrocket. A recent survey of American Academy of Matrimonial Lawyers shows how prevalent social media is — at least in divorce proceedings:

• 97% have seen an increase in divorce evidence being taken from smart phones and other wireless devices during the past three years.
• 99% of respondents have cited a rising number of text messages being used in cases
• 67% noted more evidence being gathered from apps. 41% citing Facebook, 17% Twitter, and 16% Instagram.

Here’s the Judge’s Opinion in the Oracle v. Google case.