As the patent infringement case between Mark Barry, M.D. ("Barry") and Medtronic approached trial, the district court informed the parties that it intended to provide the parties with a list of potential jurors to assist counsel in preparing for voir dire. As a result, the district court issued guidelines on permissible jury investigation on social media.
First, the district court ordered that the parties and their agents, including jury consultants, were prohibited from communicating with any juror or potential juror or family members of any such potential jurors.
Second, the parties and their agents, including jury consultants, were prohibited from personally or through another "sending an access request to the electronic social media ("ESM") platform of any juror or potential juror, including for example a Facebook friend request or an Instagram request to "Follow" that juror. Other forms of ESM include LinkedIn, Twitter, and Instagram."
Third, although the district court did not preclude research on social media, it did preclude the parties and their agents, including jury consultants, "from conducting or causing another to conduct any type of investigation by which a juror or potential juror may become aware that his or her ESM is being reviewed or scanned. For example, lawyers are prohibited from reviewing the LinkedIn accounts of jurors or potential jurors if network settings would alert that juror or potential juror to the fact that a lawyer from the case has reviewed his or her LinkedIn account. This of course requires that any individual using ESM to investigate jurors review the terms and conditions, including privacy features, which change frequently, as well as his or her own network settings before investigating jurors on such platforms."
Finally, apparently to make sure the parties and their attorneys understood the seriousness of the district court's order, the district court stated that "[a]ny violation of this Order may result in sanction by the court, referral to the appropriate committee of the State Bar, and/or institution of criminal proceedings."
Mark Barry, M.D. v. Medtronic, Inc., Case No. 1:14-CV-104 (E.D. Tex. Oct. 2016)
The authors of www.PatentLawyerBlog.com are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or SGibson@jmbm.com.