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US: Judge restricts web research into potential Googacle jurors

U.S. District Judge William Alsup, Northern District of California Photo by Hillary Jones-Mixon 9/13/2011 055-2011
U.S. District Judge William Alsup, Northern District of California Photo by Hillary Jones-Mixon

By Ross Todd From The Recorder

SAN FRANCISCO — Oracle Corp. and Google Inc. may be fighting over cutting-edge technology in their copyright brawl over Android, but the federal judge overseeing the case is intent on taking a traditional approach to jury selection.

U.S. District Judge William Alsup on Tuesday rejected the companies’ proposed jury questionnaire, calling it a thinly veiled tool for gathering information to be used in background checks on potential jurors.

“The court 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,” wrote Alsup, a judge in the Northern District of California, who presided over the companies’ 2012 copyright infringement trial.

Alsup upended that jury’s verdict for Oracle, finding that the Java application programming interfaces used by Google to build Android weren’t copyrightable. The decision was reversed in 2014 by the U.S. Court of Appeals for the Federal Circuit and the case, potentially worth billions of dollars, is set for retrial in May.

In Tuesday’s order, the judge seemed to be using the high-profile case to raise questions about intrusive research tactics now commonplace in jury selection. He noted his expectation that, even without a jury questionnaire, lawyers for the tech giants would text or email the names and hometowns of potential jurors from the courtroom “to waiting squads of Internet investigators.” Alsup also highlighted the tension between admonishing jurors to refrain from Internet searches and then scouring their online histories.

“It will be hard for [jurors] to understand why the lawyers can do to them what the jury cannot do to the lawyers (and the case),” Alsup wrote.

Instead of a jury questionnaire, Alsup wrote that he and the lawyers would use traditional in-person voir dire to “root out any bias.”

But Alsup also suggested that lawyers for Oracle and Google have another motive for conducting extensive Internet research on jurors. Alsup wrote that both companies would likely gather information on panel members in case of a loss and then seek to overturn an unfavorable verdict with evidence that a juror wasn’t truthful during voir dire.

To that end, Alsup instructed the lawyers to bring any potential discrepancy to his attention immediately after discovery.

“Failure to do so,” he wrote, “may well amount to waiver or an estoppel.”

Alsup wrote that he’s considering a ban on “any and all Internet research on the jury prior to verdict” and he gave the companies until next Tuesday to file briefs to persuade him otherwise. Alsup asked both sides to lay out just how far the law and professional ethics rules allow them to go in accessing social-media accounts to gather information about potential jurors.

Alsup also asked the lawyers to brief whether either side (one party being the world’s dominant search engine) contemplates reviewing Internet searches of actual or prospective jurors “to analyze their politics, job searches, shopping habits, evening life, and/or personal interests.”

Oracle is represented by Orrick, Herrington & Sutcliffe. Google is being defended by Keker & Van Nest. Both companies declined to comment on Alsup’s order.

Philip Gregory, a principal at Cotchett, Pitre & McCarthy, said that Alsup is “clearly sending a message” that he respects jurors’ privacy rights and won’t rubber-stamp proposals that give litigants free rein to do extensive background checks before voir dire.

IMAGE U.S. District Judge William Alsup, Northern District of California Hillary Jones-Mixon

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