In a trial in­volv­ing Google, its lawyers have to re­frain from Googling prospec­tive ju­rors

▶ The search gi­ant agrees to pick ju­rors the old-fash­ioned way ▶ “There’s just so much more at our fin­ger­tips now”

Bloomberg Businessweek (North America) - - Con­tents - Edited by Al­li­son Hoff­man

A fed­eral judge who frowns on lit­i­gants Googling per­sonal in­for­ma­tion on prospec­tive ju­rors would like lawyers to give up the habit. He’s found an un­likely guinea pig for an ex­per­i­ment in bar­ring on­line searches dur­ing jury se­lec­tion: Google. The search com­pany is sched­uled to go to trial on May 9 in a $9 bil­lion case brought by Or­a­cle, which al­leges that Google’s An­droid mo­bile op­er­at­ing soft­ware in­fringed on copy­rights for its Java soft­ware. With some shrewd tac­tics, in­clud­ing a threat to make at­tor­neys tell ju­rors about any on­line vet­ting they planned to do, U. S. District Judge Wil­liam Al­sup got both com­pa­nies to agree to his old-school rules ahead of the trial.

In writ­ten ex­changes with at­tor­neys, Al­sup, a 70-year- old Har­vard­trained judge who’s over­seen the Google-or­a­cle pro­ceed­ing since 2010, in­sisted that the pri­vate lives of ju­rors should be off-lim­its. “The jury is not a fan­tasy team com­posed by con­sul­tants, but good cit­i­zens com­mut­ing from all over our district, will­ing to serve our coun­try, and will­ing to bear the bur­den of de­cid­ing a com­mer­cial dis­pute the par­ties them­selves can­not re­solve,” the judge wrote on March 25. “Their pri­vacy mat­ters.” Un­der the agree­ment, the com­pa­nies will re­frain from do­ing any In­ter­net or so­cial me­dia re­search on prospec­tive or se­lected ju­rors for the du­ra­tion of the trial.

As an in­cen­tive for their co­op­er­a­tion, Al­sup of­fered the lawyers for both sides more time for their ques­tion-and-an­swer screen­ing of ju­rors in court. Deb­o­rah Hellinger, a spokes­woman for Or­a­cle, and Wil­liam Fitzger­ald, a spokesman for Google, de­clined to com­ment.

The Amer­i­can Bar As­so­ci­a­tion, which de­vel­ops eth­i­cal stan­dards for lawyers, doesn’t dis­cour­age so­cial me­dia re­search on prospec­tive ju­rors as long as at­tor­neys don’t com­mu­ni­cate with them di­rectly. The prac­tice, which has be­come com­mon­place in re­cent years, has been en­dorsed by some courts. In a 2010 rul­ing, Mis­souri’s Supreme Court sug­gested that lawyers have a pro­fes­sional re­spon­si­bil­ity to vet ju­rors on­line prior to trial, to pre­vent mis­tri­als or over­turned ver­dicts re­sult­ing from ju­ror con­flicts not dis­cov­ered be­fore­hand.

Lawyers are ob­li­gated to look out for their clients’ in­ter­ests—in­clud­ing fer­ret­ing out ju­rors who may come to a case with an undis­closed bias. That nec­es­sar­ily cre­ates ten­sion in an era when peo­ple freely re­veal so much about them­selves on­line, says Carolyn Toto, a part­ner at Pills­bury Winthrop Shaw Pittman. Be­fore the In­ter­net, jury se­lec­tion mostly hinged on writ­ten ques­tion­naires and in­ter­views, some­times sup­ple­mented with be­hind-the-scenes ad­vice and re­search by pro­fes­sional con­sul­tants. “There is just so much more at our fin­ger­tips now,” Toto says. “The ad­vent of so­cial me­dia is up­set­ting that bal­ance be­tween what is pub­lic and what is pri­vate.” �Peter Blum­berg

The bot­tom line A fed­eral judge has blocked lawyers for Google and Or­a­cle from re­search­ing prospec­tive ju­rors’ back­grounds on­line.

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