Tuesday, March 29, 2016

Parties and Counsel Ordered to Choose Between Ban on Jury Research or Disclosure of Research to Venire

The court ordered the parties to inform the court if they consented to a ban on Internet research of the jury pool and empaneled jury until trial was over or indicated it would order counsel to disclose to the jury panel the extent of research the trial teams planned to conduct. "[I]n this case there are good reasons to restrict, if not forbid, such searches by counsel, their jury consultants, investigators, and clients. The first reason is anchored in the danger that upon learning of counsel’s own searches directed at them, our jurors would stray from the Court’s admonition to refrain from conducting Internet searches on the lawyers and the case. . . . Given the massive volume of Internet commentary on the lawyers and the case, this presents a significant risk. A second danger posed by allowing counsel to conduct research about the venire and the jury is that it will facilitate improper personal appeals to particular jurors via jury arguments and witness examinations patterned after preferences of jurors found through such Internet searches. . . . A third reason is to protect the privacy of the venire. They are not celebrities or public figures. 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. Their privacy matters. . . . Still, the Court respects the excellent trial lawyers in this case and their burden in this trial and is reluctant to order them. Rather, the Court calls upon them to voluntarily consent to a ban against Internet research on the venire or our jury until the trial is over. . . . If all counsel so agree, counsel will be given an enlargement of time to conduct extra voir dire themselves. . . . 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."

Oracle America, Inc. v. Google Inc., 3-10-cv-03561 (CAND March 25, 2016, Order) (Alsup, J.)

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