Oracle v. Google: The Social Media Research Ban

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In a verdict handed down Thursday, May 26, 2016, jurors found that Google’s use of basic elements of the Java programming language to build its Android mobile operating system was a fair use under federal copyright law. While this is an important case in the fair use/copyright milieu, an earlier order by Judge Alsup is nearly as important to those following juror social media research issues - not just because of the substance of the order, but also because the court may have misinterpreted a state bar ethics opinion cited in that order.

In that order, counsel in the Northern District of California Oracle v. Google case agreed to Judge William Alsup’s proposed March 25, 2016 order that banned them from researching jurors’ internet presence. Oracle v. Google, No. C-10-03561, Document 1573 (N.D.Cal March 25, 2016), http://linkon.in/jurorgoogleoracle. If counsel had failed to agree with the proposed order, the judge stated that he would inform the jurors they were being researched by counsel.

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The judge acknowledged that it is not unethical for counsel to conduct Internet searches on prospective jurors and to also view their public social media profiles. However, he then went on to say,  “That such searches are not unethical does not translate into an inalienable right to conduct them.”

He also discussed ABA Formal Opinion No. 466, where the ABA considered the extent to which an attorney may conduct Internet searches of jurors and prospective jurors without running afoul of ABA Model Rule 3.5(b) (which prohibits ex parte communication with jurors). In that Formal Opinion, the ABA said that judges may limit the scope of the searches that counsel could perform regarding the juror’s social media “[i]f a judge believes it to be necessary, under the circumstances of a particular matter . . . .” 

The judge based his juror research ban on three reasons:

  • First, if they knew lawyers were researching them, Judge Alsup feared that jurors would stray from the court’s admonition to refrain from conducting internet searches on the lawyers and the case.
  • Second, if the lawyers’ research uncovered certain juror preferences, they might shape their trial arguments and witness examinations to make improper personal appeals to the jurors based on those preferences.
  • Third, the judge wanted to protect the privacy of the venire.

In the order, Judge Alsup discussed several ethics opinions related to lawyers conducting juror research, including:  “Formal opinion. No. 2013-189, issued by the Oregon state bar provides, unlike the ABA or the ABCNY, that a lawyer may affirmatively request access to private aspects of a juror’s social media profiles [emphasis added], provided the lawyer accurately represents his or her role in a case when asked by the juror.”

We think he misstated Oregon’s Formal opinion. No. 2013-189.

In footnote two, on page 578-579, the Oregon opinion actually said:

Although a lawyer may review a juror’s publicly available information on social networking websites, communication with jurors before, during, and after a proceeding is generally prohibited. Accordingly, a lawyer may not [emphasis added] send a request to a juror to access non-public personal information on a social networking website, nor may a lawyer ask an agent do to do so [emphasis added]. See Oregon RPC 3.5(b) (prohibiting ex parte communications with a juror during the proceeding unless authorized to do so by law or court order); Oregon RPC 3.5(c) (prohibiting communication with a juror after discharge if (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress, or harassment); Oregon RPC 8.4(a)(4) (prohibiting conduct prejudicial to the administration of justice). See, generally, §61:808, ABA/BNA Lawyers’ Manual on Professional Conduct and cases cited therein.

Read the Oregon Formal Opinion for yourself and see if you agree that Judge Alsup misinterpreted the Oregon Formal Opinion. You can find the Oregon Formal Opinion at: https://www.osbar.org/_docs/ethics/2013-189.pdf.

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