If you represented a large corporation or a wealthy individual, wouldn’t you want to know if your prospective jurors were campaigning for Bernie Sanders on Facebook? Or how about criminal prosecutors who might want to know if members of their jury panel had posted strong feelings on police conduct? If you were adverse to a drug or medical device company, maybe you would want to know if a prospective juror wrote for the Drug and Device Law Blog (although we can guarantee that you will find no more thoughtful and impartial jurors than the seven individuals who make up the collective “we”).
Millions of potential jurors make information like this (and much more) publicly available on the Internet through social media or otherwise, and what trial advocate would not want to uncover it? We got to thinking about this topic a few months ago when we read a unique order that came out of the Northern District of California in Oracle America, Inc. v. Google Inc., ___ F. Supp.3d ___, 2016 WL 1252794 (N.D. Cal. Mar. 25, 2016). The district judge in Oracle v. Google asked the parties in a high-stakes copyright action to abstain voluntarily from searching the jury panel’s social media. If the parties would not agree to a complete ban, then the court would impose specific limitations.
We’ll get to the details in a minute. But first, we set out to see if there are any rules that govern searching jurors’ social media (with research assistance from Reed Smith attorney David Chang). It turns out there are, mainly within the rules of ethics and professional conduct. The first rules obviously are our duties of competence and diligence. They are among the first duties listed under the ABA’s Model Rules and probably the rules governing lawyers in most every state. See Model Rules of Professional Conduct, Rules 1.1, 1.3. If there is publicly available information that would help us identify jurors with potential biases, a competent and diligent trial advocate needs to consider gaining access to it.
There are, however, countervailing considerations. On April 14, 2014, the ABA’s Standing Committee on Ethics and Professional Responsibility published “Formal Opinion 466, Lawyer Reviewing Jurors’ Internet Presence.” The ABA committee’s opinion came on the heels of an opinion from the Association of the Bar of the City of New York—“Formal Opinion 2012-2, Jury Research and Social Media.” These are not the only publications on the topic, but they were at the cutting edge, and they cover the major considerations.
The opinions identify essentially three additional issues that you have to keep in mind:
No ex parte communications with jurors. Of course, we cannot engage in ex parte communications with jurors or prospective jurors. We remember when we were Summer Associates and were told that if we talked to a juror, we would be fired. Kind of a strange threat to make against a bunch of wide-eyed second-year law students who stood a snowball’s chance in hell of actually being in the presence of a jury. (Rumor has it that such an incident actually occurred the prior summer, but we never learned any details.) In any event, ABA Model Rule 3.5 prohibits ex parte contact with jurors, and everyone seems to agree that affirmatively reaching out to a juror on social media—i.e., to “friend,” “connect with,” or “follow” the juror—clearly would violate that rule. Passive viewing of juror’s Internet presence is probably okay, depending on whether the juror receives notice of the surveillance. If a juror received notice of your snooping, for example through an automated message that someone has “viewed your profile,” that is okay under the ABA’s Opinion, but it might be an ex parte communication under some state’s rules, including New York’s. So be careful and tread lightly.
No deception. There are lots of rules that prohibit deception, but we follow the one that a now-retired and much-admired mentor shared with us repeatedly: “You can’t do that.” The ABA Opinion curiously does not mention deception, but the NYC Bar Opinion says flat out, “The attorney must not use deception to gain access to a juror’s website or to obtain information.” So, no, you cannot troll for information on your jurors through a Facebook profile pretending to be a 24-year-old single woman seeking a roommate, or a 54-year-old divorced male who likes waterskiing and long walks on the beach at sunset (unless you happen to be one of those things). If you search your jurors’ social media, either log in truthfully or don’t log in at all.
Report any juror misconduct. Judges admonish jurors repeatedly that they cannot discuss the case with anyone or engage in their own investigation, and that includes through the Internet and social media. Still, we hear stories of jurors describing trials on Facebook and even expressing their opinions on the case. If your social media searches turn up commentary that violates the court’s instructions, you have to reveal it to the court. You might be thinking, as we did, why on Earth would an attorney not reveal misconduct to the court? Well, the misconduct might reveal a juror’s bias in your favor. Maybe she thinks your opening was great or that your experts absolutely killed it on direct. It doesn’t matter. If a juror has engaged in misconduct and you learn about it by monitoring social media, you have to tell the judge.
These are the ground rules against which the Northern District of California approached the parties’ intent to search their prospective jurors’ Internet and social media presence in Oracle v. Google. As of the time of the March 25, 2016 order, one side had not agreed to the court’s request to abstain from searching the jurors’ social media, so the district judge asked them again to agree. If they would not, the court would inform the jury panel of the “specific extent” to which each side would use Internet searches. The judge then would give the panel “a few minutes to use their mobile devices to adjust their privacy settings, if they wish.” 2016 WL 1252794, at *3.
There are some things we like about this solution. We like that the court is forward thinking and is looking out for the jurors’ interests in a twenty-first century world. Not many courts understand privacy settings, or even know what privacy settings are. This court thoroughly educated itself. We also like that the district court did not impose an outright ban on social media searches. A federal court may or may not have the authority to impose such a ban, but assuming that it does, a complete ban would hamstring attorneys (who are bound by duties of competence and diligence) in their efforts to engage in legitimate evaluation of public information.
The order does, however, raise important questions. The court was concerned that allowing social media searches (including telling the jurors what the attorneys were doing) “will likely have a corrosive effect on fidelity to the no-research admonition.” Id. at *2. In another words, if the attorneys are searching the Internet, then the jurors may feel justified in disregarding the court’s admonition. There is certainly a risk of that, but it is uncertain to us how significant that risk would be. It is just as possible that jurors would take the admonition just as seriously whether the lawyers viewed their public profiles or not—particularly if the court instructed them that the difference is based on their role as impartial jurors, which is different from lawyers as advocates
Second, the court cited the danger of attorneys making “improper appeals to particular jurors via jury argument and witness examinations patterned after preferences of jurors found through such Internet searches.” Id. That also is a risk, but it is not unique to the Internet. The voir dire process, often supplemented by detailed juror questionnaires, also reveals jurors’ preferences and attitudes. That is the reason for the process, and ever since voir dire was invented, lawyers have known and used such information as they present their cases.
Third, the court wanted to protect the jurors’ privacy. Id. This is always a laudable goal, but we have to ask whether the court valued the jurors’ privacy more than the jurors themselves. We are continually amazed by what people choose to post on Facebook (see our posts on ediscovery of plaintiff social media), even people with senses of social responsibility sufficient to show up for jury duty. On this point, the court struck a compromise: Give the panel members some level of control by allowing them the opportunity to adjust their privacy settings. If the court followed this path, we would be interested to know how many took the court up on its offer.
The takeaway is not that this order is right or wrong. Either way, attorneys should understand first that rules apply, and they should understand second that issues surrounding juries and the Internet will get only more pervasive as time goes on.