A Costly Lesson from the Northern District of California on Online Juror Research

A Costly Lesson from the Northern District of California on Online Juror Research

Social media has been around for more than twenty years and is no longer a foreign concept to most lawyers. Litigators have long been familiar with the major platforms, and mining them for evidence is now commonplace, whether it involves researching litigants, witnesses, or jurors. 

Over a decade ago, ethics committees began issuing opinions to help litigators navigate the online world. Guidance was offered on topics ranging from social media evidence mining to juror research, providing a path forward for lawyers seeking to ethically obtain information to support their clients’ cases.

By 2014, most ethics committees had concluded that lawyers may view publicly available online information about jurors without violating their ethical obligations. However, ethics opinions have made it clear that it’s forbidden to engage in deception when attempting to obtain information on social media platforms that is behind a privacy wall, regardless of whether the party from whom the information is sought is represented by counsel. 

However, when it came to researching jurors, opinions were divided on the issue of whether passive notifications, such as profile views sent to users on platforms like LinkedIn, constitute impermissible contact with jurors.

For example, ABA Formal Opinion 466 (4/24/14) permits lawyers to research jurors on social media as long as the information is publicly viewable, even if passive notifications regarding the profile view are sent to the juror. In comparison, New York County Lawyers Association Formal Opinion 743 likewise allows an attorney or their agent to monitor a juror’s social media activity, but only if no passive notifications are sent that would alert the juror to the monitoring.

Fast forward to 2025, when trial judges often preemptively address these issues in standing orders, ensuring that litigants in their courtrooms fully understand the types of social media evidence gathering that is permissible. 

It was one of those standing orders that was at issue in a recent matter pending before District Court Judge Orrick of the Northern District of California. In this case, the law firm Alston & Bird, LLP, retained a jury consultant who conducted an “anonymous” search of publicly available information on LinkedIn seeking to learn more about prospective jurors. 

Unfortunately, that search violated Judge Orrick’s Standing Order Regarding Juror Questionnaires and Social Media Research, which became effective on August 23, 2023. That Order prohibited the use of LinkedIn to research jurors, “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.”

In an Order dated October 25, 2025, Judge Orrick determined that Alston & Bird had been informed of the existence of the Standing Order and failed to advise their jury consultant to abide by it. Upon realizing that a violation had occurred, counsel for the firm attempted to remedy the situation by providing the information she had received to opposing counsel. She did not share the information obtained with the lawyer at her firm who conducted voir dire, and immediately notified Judge Orrick of the violation prior to jury selection.

Despite her efforts, the judge concluded that the firm had nevertheless violated the Standing Order; thus, sanctions in the amount of $10,000 were deemed appropriate.

He explained the rationale behind the sanction imposed: “Individual privacy has been eroded over the last thirty years with the advent of various surveillance tools, the internet, smart phones, and social media. I do not think that jurors should lose any remaining privacy interests simply because they are called to do their civic duty…And I think the ethical rule that lawyers not contact jurors should be strictly enforced.”

Even though social media is yesterday’s news, ensuring compliance when mining online platforms for information remains front and center. Whether you’re researching jurors or relying on outside help, everyone involved must understand the ethical obligations and any standing orders that apply. A quick review of those requirements before conducting online searches can prevent avoidable violations, protect juror privacy, and ensure that routine research doesn’t jeopardize your client’s case—or your firm’s bottom line.

Nicole Black is a Rochester, New York attorney, author, journalist, and Principal Legal Insight Strategist at 8am, the team behind 8am MyCase, LawPay, CasePeer, and DocketWise.She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@mycase.com.