Is it ethical to assess prospective jurors on the basis of their social media posts? In compliance with the lawyers’ duty of competent representation in the digital age, is it ethical not to do so? A judge in the Northern District of California has ruled that these issues, which comprise privacy as well as ethics, are too important to leave to lawyers unsupervised by the court. Expect similar rulings to “go viral” across the country.
Perhaps appropriately, the case Oracle Am., Inc. v. Google Inc., N.D. Cal., No. 3:10 –cv-03561, filed March 13, 2016, involves two Silicon Valley leaders, Oracle (plaintiff) and Google (defendant). Judge William Alsup asked the parties to provide detailed information on how they would use the results of social media searches in assessing jurors. He also indicated that he is quite concerned about the potential intrusion on jurors’ privacy as well skepticism that lawyers would not resort to social media because of time constraints when he wrote “Please do not answer that there will likely be too little time. Please answer as if you had ample time.”
Judge Alsup asked the lawyers to respond to questions regarding how, exactly, investigators would access jurors’ Facebook posts (perhaps via a “friend of a friend?”), how the lawyers could assure that their investigators were only accessing public information, rather than information not readily accessible, and how, precisely, the investigators would establish connections that would enable them to obtain the information.
Not putting too fine a point on it, the judge concluded by asking how the lawyers intend to use information regarding political preferences, relationship status, photographs, “favorite quotes,” “location check-ins”, books and movies the juror has “liked,” and “their favorite quotes,” and then to “give at least three concrete examples of information you expect to find on a prospective juror that would lead to a for-cause challenge that would be unlikely to surface during normal voir dire.”
While the court did not order a ban on social media investigation of jurors (at least not yet), he set a high bar for the lawyers to justify its use in a manner that would outweigh jurors’ potential privacy interests. Precisely the concerns regard how private the jurors’ posts may be and whether or not the investigators use nefarious means to get non-public information was left for another day. But those who try cases before juries would be well-advised to read Judge Alsup’s Order and think carefully about the boundaries of virtual voir dire. For more information or questions regarding social media uses in jury selection and as evidence, and data privacy, please contact Kenneth N. Rashbaum.