A federal judge who frowns on litigants Googling personal information on prospective jurors would like lawyers to give up the habit. He’s found an unlikely guinea pig for an experiment in barring online searches during jury selection: Google. The search company is scheduled to go to trial on May 9 in a $9 billion case brought by Oracle, which alleges that Google’s Android mobile operating software infringed on copyrights for its Java software. With some shrewd tactics, including a threat to make attorneys tell jurors about any online vetting they planned to do, U.S. District Judge William Alsup got both companies to agree to his old-school rules ahead of the trial.
In written exchanges with attorneys, Alsup, a 70-year-old Harvard-trained judge who’s overseen the Google-Oracle proceeding since 2010, insisted that the private lives of jurors should be off-limits. “The jury is not a fantasy team composed by consultants, but good citizens commuting from all over our district, willing to serve our country, and willing to bear the burden of deciding a commercial dispute the parties themselves cannot resolve,” the judge wrote on March 25. “Their privacy matters.” Under the agreement, the companies will refrain from doing any Internet or social media research on prospective or selected jurors for the duration of the trial.
As an incentive for their cooperation, Alsup offered the lawyers for both sides more time for their question-and-answer screening of jurors in court. Deborah Hellinger, a spokeswoman for Oracle, and William Fitzgerald, a spokesman for Google, declined to comment.
The American Bar Association, which develops ethical standards for lawyers, doesn’t discourage social media research on prospective jurors as long as attorneys don’t communicate with them directly. The practice, which has become commonplace in recent years, has been endorsed by some courts. In a 2010 ruling, Missouri’s Supreme Court suggested that lawyers have a professional responsibility to vet jurors online prior to trial, to prevent mistrials or overturned verdicts resulting from juror conflicts not discovered beforehand.
Lawyers are obligated to look out for their clients’ interests—including ferreting out jurors who may come to a case with an undisclosed bias. That necessarily creates tension in an era when people freely reveal so much about themselves online, says Carolyn Toto, a partner at Pillsbury Winthrop Shaw Pittman. Before the Internet, jury selection mostly hinged on written questionnaires and interviews, sometimes supplemented with behind-the-scenes advice and research by professional consultants. “There is just so much more at our fingertips now,” Toto says. “The advent of social media is upsetting that balance between what is public and what is private.”
The bottom line: A federal judge has blocked lawyers for Google and Oracle from researching prospective jurors’ backgrounds online.