[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

A trial court imposed a $10,000 sanction on attorneys for conducting juror research on a social media platform in a $174 million lawsuit.  Elliot Weld, Alston & Bird Sanctioned $10K For LinkedIn Juror Research – Law360 (Oct. 29, 2025); Contour IP Holding, LLC v. GoPro, Inc., No. 17-cv-04738-WHO (N.D. Cal. Oct. 28, 2025)(Orrick, J.).  The Judge stated that the sanction is “far more modest than I originally contemplated….” Id.   

However, on the other hand: “If you’re going to trial and your lawyer doesn’t have an iPad, you may want to seek different legal counsel.” Zachary Mesenbourg, “Voir Dire in the #lol Society: Jury Selection Needs Drastic Updates to Remain Relevant in the Digital Age,” 47 J. Marshall L. Rev. 459, 471 (2013), quoting Kashmir Hill, “Make Sure Your Lawyer Knows How to Use Facebook,” FORBES (Feb. 23, 2011). 

Hill suggested that “voir dire” is becoming “voir Google.” Id.

WHAT HAPPENED IN CONTOUR?

Importantly, Contour presented some unique facts.  In short, there was no bad faith. Instead, a human inadvertently erred. 

As Law360 explained, the Judge had a standing order on how to conduct social media research.  It prohibited the social media search that was conducted here.  The lawyers “hired a jury consultant, but did not advise it of an obligation to comply with that standing order, and the consultant hired an investigator who also was unaware, according to the order. That investigator used LinkedIn for research, which Judge Orrick said he prohibits because it sends a notification to users that someone is viewing their profile.”

Id.  The Law360 article states:

The judge said he recognizes that he “may be one of only a few judges who consider automatic notifications on LinkedIn to the juror contact” and said he appreciates “that counsel did her best to rectify the violation by prompt disclosure.”

But, the judge said, failure to comply with the standing order merits sanctions.

The Contour court wrote that the investigator followed strict standards to access only publicly available information, “but it used LinkedIn for its research, which I prohibit even for ‘anonymous’ searches because of the automatic notification setting employed by LinkedIn.  The prospective juror is still notified as a result of the investigator’s search, even if the juror can’t tell who was viewing her information.”¹

The court also wrote that the attorney acted responsibly.  She disclosed the violation and the social media information to opposing counsel.  Additionally, she did not share it with her co-counsel who conducted voir dire.  And, she promptly notified the court.

However, the Contour court wrote: “I want to emphasize that I remain convinced that the Standing Order is appropriate.”

THE ARGUMENTS AGAINST PERMITTING SEARCHES OF POTENTIAL JUROR AND SEATED JURORS’ SOCIAL MEDIA

Much of the concern about attorney searches of potential jurors during voir dire, or searches of jurors during trial, is that social media platforms may notify a juror of the search.  

Another factor is privacy. One juror in a high profile case said: “We would like the public to allow us to return to our private lives as anonymously as we came.”  Jayne S. Ressler, “Juror Privacy Via Anonymity,” 93 Fordham L. Rev. 611, 612 (2024).  At the conclusion of another high profile case, “the judge stated simply [to the jury], ‘My advice to you is that you never disclose that you were on this jury, and I won’t say anything more about it.’” Id. at 613.  Jurors have been doxed and threatened. Id. at 613-14, passim.

One court wrote:

Trial judges have such respect for juries—reverential respect would not be too strong to say—that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.

Oracle Am., Inc. v. Google Inc., 172 F. Supp. 3d 1100, 1101 (N.D. Cal. 2016)(Alsup, J.). That decision explained:

The Court, of course, realizes that social media and Internet searches on the venire would turn up information useful to the lawyers in exercising their three peremptory challenges, and, might even, in a very rare case, turn up information concealed during voir dire that could lead to a for-cause removal. While the trial is underway, ongoing searches might conceivably reveal commentary about the case to or from a juror.

Nevertheless, in this case there are good reasons to restrict, if not forbid, such searches by counsel, their jury consultants, investigators, and clients.

The Oracle court was concerned that, if lawyers searched jurors, jurors might decide to do their own internet searches on the lawyers and the case: “To return to the first concern, the apparent unfairness in allowing the lawyers to do to the venire what the venire cannot do to the lawyers will likely have a corrosive effect on fidelity to the no-research admonition.”  Id. at 1102. 

The Oracle court was also concerned that social media research would open the door to inappropriate personal appeals to jurors, such as use of a “favorite quote” or a political viewpoint.  Id. at 1102-03.

Additionally, the Oracle court had privacy concerns: “Their privacy matters. Their privacy should yield only as necessary to reveal bias or a reluctance to follow the Court’s instructions. It is a weak answer that venire persons, through their social media privacy settings, have chosen to expose their profiles to scrutiny, for navigating privacy settings and fully understanding default settings is more a matter of blind faith than conscious choice.”  Id. at 1103.

In his Contour article, Mr. Weld quoted the court:

“Individual privacy has been eroded over the last thirty years with the advent of various surveillance tools, the internet, smart phones, and social media,” the order reads. “I do not think that jurors should lose any remaining privacy interests simply because they are called to do their civic duty, any more than I think that jurors should be able to investigate the lawyers in a case before agreeing to serve.”

However, the Contour court did not prohibit all juror research. The order in Contour recited that the Court provides prospective juror names to counsel prior to jury selection, to “allow the parties to do some publicly available research on the people who may decide the case.” [emphasis added] It stated:

That latter point raises, for me, the question of whether there should be limits on individual research.  I believe strongly in the right to privacy.  Judges instruct jurors that they may not investigate the lawyers, parties, witnesses or issues in the case before them, and I think a concomitant right should preclude lawyers from rummaging around in the lives of prospective jurors.  In the days before the internet, lawyers used various services to seek public information about jury pools, such as property records, voting rolls, civil and criminal litigation history, and so forth.  With the advent of social media, of course, there is now a lot more information readily available online about individuals, including information individuals post about themselves.  And there are a variety of ways someone seeking information about another can do so, including in ways that the general public might have thought was protected from view because of the implementation of some screening mechanism.  

To my mind, information that a person discloses in a publicly available manner is fair game for lawyers preparing for voir dire.  Lawyers have an ethical duty not to contact prospective jurors, however, so they must be careful not to inadvertently use an investigative technique that notifies a juror that their information is being reviewed.  Because this is an evolving area and different judges have varying perspectives on it, I issued a Standing Order Regarding Juror Questionnaires and Social Media Research….

In short, while some juror research was not only permissible, it was facilitated by the Contour court. 

THE VALUE OF SOCIAL MEDIA SEARCHES OF PROSPECTIVE JURORS

Some courts have held or implied that attorneys must do at least a limited social media search early in the case or risk waiver of an argument based on posted and available information.  For example, Michael Thomas Murphy wrote in “The Search for Clarity in an Attorney’s Duty to Google,” 18 Legal Comm. & Rhetoric: JALWD 133, 147–48 (2021):

One case illustrates the complexity of this practice. In Johnson v. McCullough, an attorney on appeal in a medical malpractice case argued that a juror in the trial court had lied during voir dire, when asked if he had ever been a party to a lawsuit. The attorney discovered this falsehood by searching for the juror on Missouri’s automated court record system, Case.net.101. [emphasis added].

However, the search was performed too late:

The Court bristled at the idea of attorneys searching for juror information after a case to undermine a verdict, and directed attorneys to affirmatively search for information about jurors on Case.net before trial. As one observer noted, attorneys “now have a free and potentially easy means to search a prospective juror’s litigation experience.” Attorneys who fail to perform such a search risk waiving the ability to argue juror nondisclosure in voir dire on appeal. That is to say that attorneys are not just permitted to Google jurors. They may be required to Google jurors to preserve a right on appeal.

Id. (emphasis added).

The Hon. Dennis Sweeney (ret.) gave examples that show both the need and value of juror social media research:

• “In Fresno, California, a Superior Court Judge found himself sitting as a juror on a murder case, and was, indeed, designated to be the Foreman. Throughout the trial, the juror-judge sent emails to his 22 colleagues on the bench, including the judge presiding over the case, giving them periodic updates on the progress of the case. His first email announced: ‘Here I am, livin’ the dream, jury duty with Mugridge [the defense lawyer] and Jenkins [the prosecutor].’ After conviction, counsel for the Defendant discovered the emails and moved for a new trial.”

• “In a state-court civil trial in Arkansas, a $2.6 million verdict in favor of investors against a building material company was attacked because the company alleges a juror sent eight messages or ‘tweets’ via his cellular phone to his ‘followers’ about the trial. According to the Arkansas Online news site, one of the ‘tweets’ read: ‘oh and nobody buy Stoam [the building material at issue]. Its bad mojo and they’ll probably cease to exist, now that their wallet is 12 m lighter.’”
  
  
• “In England, a juror was dismissed from a child abduction and sexual assault trial after she posted details of the case on her Facebook page, including her reactions to the testimony. At one point, she solicited the views of her Facebook ‘friends’, telling them: ‘I don’t know which way to go, so I’m holding a poll.’ Luckily, her actions were discovered before deliberations began, and she was dismissed as a juror.”
  
  
• “Closer to home, Maryland’s Court of Special Appeals, in an unreported opinion, overturned a felony-murder conviction because a deliberating juror conducted an on-line search for the terms ‘livor mortis’ and ‘algor mortis’ on Wikipedia, printed out the pages, and brought them in to the jury room. The juror’s action was discovered when the jury bailiff found the printouts in the jury room after the jurors were excused for the day. When asked about it, the juror said, ‘To me that wasn’t research. It was a definition.’”²

There are many more examples:

“During jury deliberations in a four-month-long political corruption trial in federal court in Philadelphia, defense attorneys discovered that a juror was posting ‘updates’ on Facebook, such as ‘today was much better than expected and tomorrow looks promising too!’ and ‘stay tuned for the big announcement on Monday.’”  Frank J. Mastro, “Preventing the ‘Google Mistrial’: The Challenge Posed by Jurors Who Use the Internet and Social Media,” 37 ABA Litigation, Winter 2011, at 23.

“Following the conviction of the mayor of Baltimore on an embezzlement charge, her lawyers moved for a new trial after learning that five jurors communicated among themselves during trial through Facebook. The jurors became ‘friends’ on Facebook and engaged in online conversations throughout the trial. Some posts, such as ‘Hi James! Ready for round … oh I lost count! See you tomorrow,’ seemed innocuous, but others appeared less so. A non-juror named ‘Al’ added the comment ‘not guilty’ to an online conversation on one juror’s Facebook page at a time when the jury had not yet reached a verdict.”  Id. at *24.

“A potential juror in Cincinnati last year accessed his Facebook page from the courthouse and posted a status update that informed readers that he was ‘sitting in hell … aka jury duty.’ (The juror, by the way, was struck for cause when the plaintiff’s attorney, who had his laptop in the courtroom, found the Facebook update).”  Id. at *27.

The American Bar Association has weighed in.  The Oracle court added:

[I]n Formal Opinion No. 466, 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. That opinion determined that “passive review” of a juror’s website or social media that is available without making an “access request” and of which the juror is unaware is permissible within ABA Model Rule 3.5(b). The ABA likened such review to “driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury-selection decisions.” Access requests, such as friend requests on Facebook, “following” users on Twitter, or seeking to “connect” on LinkedIn, whether on one’s own or through a jury consultant or other agent, constitute forbidden ex parte communications within the rule.³

Id. at 1107.  “The bar associations of New York, New Hampshire, and Pennsylvania have issued similar opinions, though these opinions do not so much establish a bright-line rule as they analogize jurors to opposing parties with respect to the permissiveness of contact. A district judge in the Eastern District of Texas has issued a standing order providing guidelines for the Internet research of jurors, prohibiting active communication such as ‘friending’ but allowing for passive communication such as profile viewing, noting that in so doing, ‘The Court recognizes the duty imposed on diligent parties to secure as much useful information as possible about venire members.’” Murphy, “The Search for Clarity,” 18 Legal Comm. & Rhetoric: JALWD at 148–49.

There are suggestions that a failure to perform an internet search of potential jurors may be malpractice, or at least evidence of malpractice.  Id. at 151.  In New York it is “not only permissible for trial counsel to conduct Internet research on prospective jurors, but [] it may even be expected.’”  Ressler, “Juror Privacy Via Anonymity,” 93 Fordham L. Rev. at 625.  Ms. Ressler adds: “As a result, some believe that failing to conduct internet searches of the venire and jurors–including their social media profiles–could be grounds for malpractice.”  Id.

SOME SUGGESTED OPTIONS

The Oracle court cautioned: “That such searches are not unethical does not translate into an inalienable right to conduct them.”  172 F. Supp. 3d at 1107 (emphasis added). Further, the ABA explained that Judges may limit the permissive ability to search.

Any time that there is a lack of clear guidance, caution is warranted. When Must a Motion to Compel Be Filed? – Part 4 (Oct. 28, 2025).

Social media research may be both proper and important.  I suggest that, in the absence of an order such as that in Contour, attorneys notify the trial judge in advance of their proposed intent to search prospective jurors during voir dire, and seated jurors during trial, and then ask the court to both grant permission and to inform the jury that it is both the right and duty of counsel to search publicly-available social media about them, before, during, and after trial.

Of course, the risk in that approach is that the court may deny the request.  However, in that context, the risk of simply charging ahead without permission appears to me to be greater.  When Admiral David Farragut famously ordered, “damn the torpedoes, full speed ahead,” in the Battle of Mobile Bay during the Civil War, he was a hero only because he did not hit a torpedo. (“Torpedoes” were mines.)

The risk is clear.  In United States v. Watts, 934 F. Supp. 2d 451, 494 (E.D.N.Y. 2013), a defendant made such a request.  The court permitted a search of prospective jurors, but made it subject to precautions and limitations. First, direct contact was prohibited.  “This includes, but is not limited to, abstaining from searching jurors through LinkedIn or any other social networking platform which could, in certain circumstances, leave a record with the account holder of having been searched by a specific party.”  Id. at 494-95. Second, “all parties are barred from informing jurors that internet searches are being conducted of them.” Id. at 495.  Third, a duty of disclosure of any negative information to the court and opposing counsel was imposed under the duty of candor to the tribunal.

Other courts may not preclude searches.  See U.S. v. Milton, 2023 WL 5609098 (S.D.N.Y. Aug. 30, 2023)(“But the defense team had access to the full name of Juror No. 6 throughout the voir dire process and were free to research her and her online presence, at the time she was being questioned, or at any time during the trial…. At no point did the Court prevent Milton from engaging in a comprehensive search in this regard.”).

The Oracle court had a different solution that placed the burden on counsel to inform the jury:

In the absence of complete agreement [among counsel] on a ban [of social media searches of jurors], the following procedure will be used. At the outset of jury selection, each side shall inform the venire of the specific extent to which it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor jurors, including specifically searches on Facebook, LinkedIn, Twitter, and so on, including the extent to which they will log onto their own social media accounts to conduct searches and the extent to which they will perform ongoing searches while the trial is underway. Counsel shall not explain away their searches on the ground that the other side will do it, so they have to do it too. Nor may counsel intimate to the venire that the Court has allowed such searches and thereby leave the false impression that the judge approves of the intrusion. Counsel may simply explain that they feel obliged to their clients to consider all information available to the public about candidates to serve as jurors. Otherwise, counsel must stick to disclosing the full extent to which they will conduct searches on jurors. By this disclosure, the venire will be informed that the trial teams will soon learn their names and places of residence and will soon discover and review their social media profiles and postings, depending on the social media privacy settings in place. The venire persons will then be given a few minutes to use their mobile devices to adjust their privacy settings, if they wish.

172 F. Supp. 3d at 1103-04.  While such a ruling is certainly within the court’s discretion, I suggest that it effectively chills the ability of counsel to conduct such searches.  The risk of alienating the jury at the outset is, in my view, too high.

This is not the last word on the “duty to Google.” “An attorney trying a case may have a Duty to Google jurors. This specific area of law is developed but still somewhat unsettled.” Michael T. Murphy, “The Search for Clarity in an Attorney’s Duty to Google,” 18 Legal Comm. & Rhetoric: JALWD 133, 133, 147 (2021)(“This Duty to Google contemplates that certain readily available information on the public Internet about a legal matter is so easily accessible that it must be discovered, collected, and examined by an attorney, or else that attorney is acting unethically, committing malpractice, or both.”).  “So the Duty to Google really is one of technological competence….” Id. at 142.  However, the “duty” is not limited to Google: “On that note, the Duty to Google facts has extended into searching social media.”  Id.

The lack of uniformity creates uncertainty.  Quoting Kathy Ho, Mr. Murphy wrote that: “The current landscape is unclear, at best. Katy Ho put it bluntly: ‘Attorneys cannot fulfill their duty of competence if they do not know what it entails.’” [emphasis added].⁴

“Technology has changed factual investigation, much in the same way that it has changed essentially all of legal practice.”  Id. at 153. Mr. Murphy concludes: “The bar and legal academia should incorporate Internet fact-finding into basic legal training and continuing legal education.”  Id. at 163.  He wrote:

It is clear that attorneys have a requirement to perform an Internet search about prospective (and current) clients, witnesses, potential matters, and in certain cases, potential jurors. It is less clear where that requirement extends to other areas of legal representation and troubling that those areas may only be discovered after an attorney faces sanctions. Reliance on ethical opinions from state bar journals to avoid these sanctions is not enough. For guidance’s sake, it makes sense to codify this requirement as part of the rules governing an attorney’s professional responsibility. Drafters of such a rule face a real challenge of scope and depth as they search for the right balance between expectation and fairness. Greater detail with respect to an attorney’s technological competence will help the bar stop searching for answers about its Duty to Google.

Id. at 165.

A “duty to Google” was not imposed, but was discussed in, DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 867 (N.D. Ill. 2021)(subsequent history omitted). 

Social media has changed litigation, and this is only one example. See, e.g.:

• Evidence of Internet Searches About Lawful Abortion Held Inadmissible to Prove Intent to Later Kill or Harm Newborn Baby (Feb. 20, 2025);
• “Navigating Social Media Discovery: Steps Counsel Can Take to Address Mass Deletion of Social Media History”(Aug. 9, 2022);
• “Friending” by Undercover Police Officer (Apr. 29, 2022);
• District of Maryland Gives Qualified Approval to Non-Forensic Downloads of Social Media Data (Aug. 10,  2021);
• District of Maryland Clarifies Rules Governing Discovery of Social Media (Aug. 8, 2021);
• “Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media (May 12, 2020).

Notes

1. Who’s viewed your profile visibility settings | LinkedIn Help; Who’s viewed your profile differences between basic accounts and Premium accounts | LinkedIn Help ↩︎
2. Judge Sweeney’s article, 43 Md. Bar J. 44 (2010), was reprinted in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2021), Ch. 24. ↩︎
3. T. Carter, Lawyers can look up jurors on social media but can’t connect with them, ABA ethics opinion says (Apr. 24, 2014); ABA Formal Op. 466, Monitoring Jurors Social Media Pages (Apr. 24, 2014)(“The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).”). ↩︎
4. In two different contexts where lack of uniformity raises questions and therefore caution is necessary, see Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”? (Sep. 7, 2022); When Must a Motion to Compel Be Filed? – Part 4 (Oct. 28, 2025). ↩︎

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