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If Google and Oracle are Going to Mine for Jurors’ Social Media Info, They Have to Inform the Court: eDiscovery Trends

When the big guys sue each other, the cases last forever.  We’ve been covering developments in the Apple v. Samsung case since July 2012, and that case is still going on.  Another case that we’ve covered a long time ago (way back in November 2011) is Oracle Corp. v. Google Inc. and that case is still going on too.  In that case, with a trial approaching, the judge has told lawyers to disclose Internet and social media research about jurors to the court or agree not to conduct it.

According to The Wall Street Journal (Google and Oracle Must Disclose Mining of Jurors’ Social Media, written by Jacob Gershman), U.S. District Judge William Alsup’s order urges both sides to respect the privacy of jurors.  He opened the order in this manner:

“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.”

As the order notes, apparently, both sides requested that the Court require the jury pool to complete a two-page jury questionnaire.  Then, one side asked for “a full extra day to digest the answers, and the other side wanted two full extra days, all before beginning voir dire.”  Judge Alsup eventually realized that they wanted that time to “scrub Facebook, Twitter, LinkedIn, and other Internet sites to extract personal data” and when asked about it, “counsel admitted this.”

Using the example of a juror’s favorite book being To Kill a Mockingbird and counsel constructing a copyright jury argument based on an analogy to that work and to play upon the recent death of Harper Lee, Judge Alsup noted that one of the dangers of mining juror social media use is that lawyers will use the information to make “improper personal appeals.”  Opting against a total research ban, he offered this compromise:

“[T]he Court calls upon them to voluntarily consent to a ban against Internet research on the [jury pool] or our jury until the trial is over… In the absence of complete agreement on a ban, the following procedure will be used. At the outset of jury selection, each side shall inform the venire of the specific extent to which it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor jurors, including specifically searches on Facebook, LinkedIn, Twitter, and so on, including the extent to which they will log onto their own social media accounts to conduct searches and the extent to which they will perform ongoing searches while the trial is underway. Counsel shall not explain away their searches on the ground that the other side will do it, so they have to do it too.”

Apparently, however, both parties would not agree to ban the research.  As Judge Alsup noted in his order, “Google is willing to accept an outright ban on Internet research about the venire and our jury, provided the ban applies equally to both sides. Oracle, however, will not.”  Judge Alsup also noted that “[o]n numerous occasions, Oracle has supplied confusing answers to the Court’s inquiries about its plan”.

Judge Alsup instructed both parties to “inform the Court By MARCH 31 AT NOON, whether they will consent to a ban against Internet research on the venire or the empaneled jury until the trial is over.”  That’s today, so we’ll see what happens.

So, what do you think?  Should litigants be allowed to mine social media data of prospective jurors?  Please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

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