As the re-trial in the Oracle v. Google case approaches, both parties requested an opportunity to use a jury questionnaire followed by a limited, one hour oral voir dire. The district court reviewed the proposed questionnaire and found that it would not save time and was likely suggested to permit the parties to learn the jurors names and addresses in order to perform Internet research on the backgrounds of the prospective jurors.
The district court explained that “[t]he joint questionnaire and procedure proposed by counsel, however, will not save time. At a minimum, it will add an extra day to the jury-selection procedure while the parties’ neutral vendor collects, copies, and distributes the responses. The proposed questionnaire, moreover, includes vague questions that seem more likely to generate vague answers than accurate answers, which will lead to the need for verbal follow-up and consume even more time.”
In addition, the district court explained that it “suspects that a real reason the parties wish to use the proposed questionnaire and its two-day (or more) procedure is to get the names of prospective jurors and their places of residence so that they may conduct extended Internet investigations on the venire prior to the oral voir dire procedure, all in an effort by jury consultants to run demographics against the pool and rank the potential jurors.”
Accordingly, the district court ordered that no joint questionnaire would be used.
The district court took an additional step because of the potential Internet searching of the jurors, explaining “it appears to the Court that both sides intend to email or text the names and places of residences of venire members as soon as they are called forward to waiting squads of Internet investigators, who will feed results to counsel table via reverse text or email. If the social media and other investigation conducted by counsel actually develops information which counsel wish to use during voir dire to examine a prospective juror, then counsel must be prepared themselves to confront the prospective juror with that information.”
The district court further explained that “[t]here is a greater than average risk that the loser in this case will seek to impeach the verdict by claiming a member of the jury answered falsely during the voir dire (even without a questionnaire). It would be unfair to make such a post-verdict accusation based upon information that was known to counsel through their social media and other investigation before jury selection ended or, for that matter, before the verdict. If a potential contradiction develops between voir dire answers versus the investigative material, counsel must bring this inconsistency to the attention of the judge before the jury is sworn (or if learned later, before the verdict) or bring it up directly with the prospective juror during voir dire. Failure to do so may well amount to waiver or an estoppel. Furthermore, counsel are hereby ordered to retain all information acquired during their investigations (and to note when it was acquired) as well as a record of what specific investigative steps were taken.”
The district court then directed the parties to explain why they should be permitted to conduct Internet searches of the jurors: “We will go to some lengths to exhort the jury not to conduct Internet searches about the case or the lawyers. If and when it comes out, however, that the lawyers have been conducting Internet searches on the jury, the Court is concerned that continuing fidelity to the admonition to the jury to conduct no such searches will wane. It will be hard for them to understand why the lawyers can do to them what the jury cannot do to the lawyers (and the case). To eliminate this risk, the Court is considering imposing on both sides a ban on any and all Internet research on the jury prior to verdict.”
As a result, the district court directed that “both sides shall state the detailed specifics of how far the parties and/or law firms and/or their investigators may go under the law and/or the rules of professional conduct in accessing Facebook, LinkedIn, Twitter, and other social media accounts — as well as Google accounts — to gather information on prospective or actual jurors, including (without limitation) the full extent to which they may use investigators/lawyers with more detailed levels of privacy access than the general public. This should include as well analysis of the extent to which either side is allowed to review Google, Yahoo!, and/or other Internet searches conducted by prospective or actual jury members in order, for example, to analyze their politics, job searches, shopping habits, evening life, and/or personal interests.”
Oracle America, Inc. v. Google Inc., Case No. C 10-03561-WHA (N.D. Cal. March 1, 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.