Think Twice About What You Post on Social Media: The Ever-Expanding Role of Social Media Within Jury Selection

Digital Strategist, Jure Klepic, stated, “What happens in Vegas stays in Vegas; what happens on Twitter stays on Google forever!”

 
Although this saying might be a warning the Millennial Generation has continued to ignore, the recent decision within Google and Oracle’s lawsuit should give Millennials reason to pause regarding their next tweet or Facebook status.
Oracle and Google’s lawsuit began in 2010 when Oracle claimed that the Android platform infringed upon the patents and copyrights inherent within Java. Since the beginning the lawsuit has provided continuous buzz within intellectual property legal news, however the most recent attention has been on whether the social media accounts of potential jurors should be at the parties’ disposal prior to the voir dire process.
Although Google and Oracle did not blatantly request approval to screen potential jurors through their social media accounts, their agenda was not unnoticed by United States District Judge William Alsup. Oracle and Google both attempted to request additional time in order to review the results of a questionnaire that was given to potential jurors. However Judge Alsup did not grant the parties’ requests due to his belief that their underlying objective was to obtain additional time to search potential jurors’ social media accounts.
Instead Judge Alsup requested that Oracle and Google both provide their opinions regarding the investigation of potential jurors over social media prior to issuing an Order on the matter. Oracle asserted that it would be an abuse of discretion for the United States District Court for the Northern District of California to order an absolute ban on the parties conducting Internet research on the potential jurors. Rather than an absolute ban, Oracle recommended a limited ban on Internet research for potential jurors—parties may only use the Internet to obtain information that is publically available. Google agreed with Oracle that there should not be a ban on the parties obtaining publically available information. However it also made a statement that “[p]rovided the ban applies equally to both parties, Google has no objection to imposition of such a ban in this case.”
In addition to both parties, Judge Alsup also took common practice into consideration. Various jurisdictions, such as New Jersey and Missouri, have held that the Internet and social media should be available during the voir dire process. In New Jersey, an attorney was permitted to conduct Internet research on potential jurors while participating in voir dire in the courtroom. As the appellate judge stated the opposing attorney was not at a disadvantage since “[t]he ‘playing field’ was, in fact, already ‘level,’ because Internet access was open to both counsel—even if only one of them [chose] to utilize it.” Missouri has also permitted Internet search within the voir dire process. In fact the Supreme Court of Missouri established that Internet research during voir dire should be a standard of professional care. Furthermore, the American Bar Association permits use of the Internet and social media in researching potential jurors, as long as it is a passive review and does not require access to a potential juror’s social media account.
Thus taking into account the parties’ positions and common practice, Judge Alsup requested that both Oracle and Google voluntarily vow to abstain from conducting Internet research on jurors—both potential candidates and those chosen—until the trial’s culmination. However if Oracle and Google cannot abstain, Judge Alsup held that both parties must provide a detailed explanation of the information that will be sought in the investigation of jurors’ social media accounts, as well as provide full disclosure of any information found on each potential juror prior to trial.
Judge Alsup supported this decision through the concerns that arose on both sides of the spectrum of Internet research. He raised a multitude of concerns that would ensue if he were to permit unlimited use of the Internet to research jurors. Information, such as one’s favorite book, could be used to sway jurors during the trial through personal appeals. Additionally, jurors could believe that since attorneys could search their social media accounts, they in turn would have the right to research the attorneys and/or the case at issue. However there were concerns with an absolute ban on Internet research. An absolute ban could be detrimental, since Judge Alsup admitted that the Internet can be a useful tool used to create a level playing field between the attorneys and the members of the public and the press regarding public information on jurors.
Google and Oracle have been given until March 31 to inform Judge Alsup whether both parties will consent to the ban on Internet research and the jurors.
For a more in depth look at the opinion of the United States District Court for the Northern District of California regarding the screening of potential jurors’ social media accounts, see the full text of the Order at http://www.bloomberglaw.com/public/desktop/document/Oracle_America_Inc_v_Google_Inc_Docket_No_310cv03561_ND_Cal_Aug_1/19?1459124829.