NY judge weighs in on whether ‘tagging’ violates order of protection
Lawyers and Social Media in 2016

Oracle v. Google: Judge begrudgingly permits online research of jurors

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Oracle v. Google: Judge begrudgingly permits online research of jurors

In a recent Order issued in Oracle v. Google, No. C 10-03561 WHA, United States District Court Judge for the Northern District of California, William Alsup, had a lot to say about lawyers using social media to research jurors—and none of it was very positive. His viewpoint on this practice was made all too clear in the first sentence of his Order:

“Trial judges have such respect for juries — reverential respect would not be too strong
to say — that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.”

Although I’ve often asserted that online activities are simply an extension of those occurring offline, Judge Alsup begs to differ. In his mind, researching jurors using 21st century methods diverges from more traditional methods in a way that is downright invasive. This, despite the fact that said jurors have voluntarily created their online profiles and made them publicly available.

According to Judge Alsup, this only occurs because most social media users are an uninformed, naive bunch: “It is a weak answer that venire persons, through their social media privacy settings, have chosen to expose their profiles to scrutiny, for navigating privacy settings and fully understanding default settings is more a matter of blind faith than conscious choice. (Otherwise, there would be no need for websites explaining the intricacies of privacy settings.)”

In other words, Judge Alsup is contending that for some reason, information publicly available online somehow differs from information that is publicly available offline. Granted, it’s a simpler matter to obtain information online, but lawyers have always researched publicly available information about jurors using more traditional methods. That the methodology is different should be of no moment. As you’ll see, Judge Alsup’s outlined concerns regarding the proposed online jury research only underscore this idea, since his concerns apply equally to information obtained both online and offline.

One concern he raises is “the apparent unfairness in allowing the lawyers to do to
the venire what the venire cannot do to the lawyers will likely have a corrosive effect on fidelity
to the no-research admonition.” But it has always been the case that lawyers can research jurors but jurors cannot research the lawyers or the case. That the information sought to be gleaned about the jurors in this case will be obtained from online resources is irrelevant to this concern (or should be).

In the Order, Judge Alsup also expresses the concern that “by allowing counsel to conduct research about the venire and the jury is that it will facilitate improper personal appeals to particular jurors via jury arguments and witness examinations patterned after preferences of jurors found through such Internet searches.” Again, this same information has always been available from offline resources, such as, for example, “letters to the editor” or other published writings penned by jurors.

Another perceived problem was that said online research was a threat to the “privacy of the venire…Their privacy should yield only as necessary to reveal bias or a reluctance to follow the Court’s instructions.” As for this concern, the online research that the attorneys would conduct arguably forwarded one of the court’s stated goals: to reveal bias or a failure to follow court orders. And in the case of online conduct by jurors that violated court orders during the pendency of the case, the effects could be far reaching do to the nature of online communications and thus the incentive to prevent such conduct would arguably override the concern for the jurors’ need to protect their online information (that they’ve allowed to be made publicly available).

In other words, this Order strikes me as a classic case of a knee jerk reaction to technology. In the end, Judge Alsup begrudgingly permitted the attorneys to conduct online research of potential jurors, as long as they were informed that it would be occurring. But he did so only after engaging in the judicial equivalent of waving a stick and yelling “get off my lawn, you young whipper snappers!” that being said, it’s progress, nonetheless, and I suppose that reluctant progress is better than none at all.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.