Social media impacts every facet of life and is often discussed in DuetsBlog posts. Courts are now having to address social media issues in connection with jurors. A federal judge in California is considering banning the use of social media altogether in a copyright case before him brought by Oracle America, Inc. against Google, Inc. at case No. C 10-03561 (WHA).

The parties jointly proposed the use of a juror questionnaire, and a multiple-day procedure for a neutral vendor to collect the information for the parties. The judge suspected that this was designed to obtain information about the potential jurors so that the parties could perform extended internet investigations on them prior to the voir dire process. He did not like it.

The judge ruled that no juror questionnaire would be used in the case. Instead, the judge’s usual voir dire process would be used. In addition, the judge ruled that if a potential contradiction develops between a juror’s voir dire answers and investigative material the parties uncovered, then it needed to be brought to the judge’s attention immediately. If the party fails to do so, the judge stated that he might find that there was a waiver or estoppel from raising the issue to attack the verdict at a later date. In connection therewith, the judge ordered the parties to retain all of their investigative material acquired about the jurors.

Other problems with the parties’ proposal for the judge included that the questionnaire would: (1) lengthen, not shorten, voir dire; (2) reduce the invaluable air time with the potential jurors where they can be “sized up” (e.g., clarity of answers, tendency to dominate, mental disorders and possible bias); and (3) provide a basis for the loser to attempt to impeach the verdict by investigating the jury to find a lie or omission during voir dire.

Finally, the judge noted that he would be instructing the jurors that they could not conduct internet searches about the case or the lawyers while the case was pending. He was concerned that, if and when the jurors found out that the lawyers conduced internet searches on them, they would not understand why they had not been allowed to do the same thing. Accordingly, the judge ordered the parties to show cause in a ten-page submission as to why he should not impose a ban on any and all internet research related to the jury. The parties were required to include detailed specifics about how far they may go under the law and/or rules of professional conduct in accessing Facebook, LinkedIn, Twitter and other social media accounts to obtain information about the jurors.

What role do you think social media should play in our jury system?