A federal judge in the U.S. District Court for the Northern District of California ruled that the lawyers in a prominent copyright suit may not research the public social media posts of their prospective jurors—unless they fully disclose the extent of that research to each juror involved. Faced with such a choice, both counsel accepted the court’s proposed ban. Oracle Am., Inc. v. Google, Inc. The court’s order pushes back on a fairly standard litigation practice—trial counsel quietly examining what jurors publicly disclose about themselves in online forums and on social media.

 

Reversing a Typical Practice
To mitigate against unnecessary juror intrusions, the court – sua sponte – presented counsel with a choice to reverse typical juror selection practices: voluntarily accept an outright ban on all Internet research for the duration of the trial, or publicly disclose to each prospective juror which of their pictures, profiles, posts and platforms the trial team had examined. The court offered the choice to the parties based on “reverential respect” that trial judges have for juries. The court noted 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 framed as two co-equal alternatives, the court acknowledged that it “would much prefer to fully protect the privacy of all venire persons from Internet searches,” and only “reluctantly” allowed the disclosure option. Following the court’s framing of the issue and its preferences, Oracle and Google opted for the outright ban.

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