Back in 1999, a district court judge admonished a lawyer for relying on resources from the internet, cautioning that the World Wide Web was full of “voodoo information.”
As technology progressed from MySpace and floppy disks to three-dimensional aerial shots of the entire planet and computers smaller than a grain of rice, the internet has become increasingly rich with information on parties and jurors for lawyers to leverage–and sometimes lawyers even have a duty to do so.
The Death of “Dead Tree Sources”
By 2005, three cases had laid the groundwork for a “duty to Google” which requires lawyers to conduct an internet search as a part of due diligence. In Munster v. Groce, an Indiana appellate court judge chastised a lawyer for failing to search the internet for a missing party after the court itself had conducted a cursory search and immediately obtained a different address for the missing as well as an obituary listing numerous relatives who might have known his whereabouts.
The same year, a Louisiana appellate court upheld a judge’s rejection of a lawyer’s due diligence claims after that judge had conducted his own internet search and concluded that the proper contact information for the defendant was “reasonably ascertainable.” A Florida appellate judge similarly called out a lawyer who merely checked directory assistance in search of the defendant’s address, calling such a method the equivalent of “the horse and buggy and the eight track stereo.”
The following year, a D.C. Circuit judge schooled FBI lawyers that relying on a “dead-tree source” of limited scope—a Seussian-sounding compilation of noteworthy deaths titled Who Was Who?—was not sufficient to determine whether two individuals were dead or alive.
[O]ne has to ask why—in the age of the internet—the FBI restricts itself to a dead-tree source with a considerable time lag between death and publication, with limited utility for the FBI’s purpose, and with entries restricted to a small fraction of even the “prominent and noteworthy?” Why, in short, doesn’t the FBI just Google the two names?
The judge proceeded to cite an online version of the Oxford English Dictionary “defining ‘Google’ as ‘to use the Google search engine to find information on the internet.’”
The duty to conduct an internet search on parties and members of the jury continues to be expanded and debated.
A recent trademark infringement case over the name “Caveman Foods” extended this duty to missing clients. After a lawyer seeking to withdraw from representation had claimed the client was “no longer an active company” with no contact information, the court took it upon itself to conduct a simple internet search. The search revealed to the court that not only was the client company indeed still active, but that a variety of information about the client was readily available—including the client’s website, mailing address, phone numbers, email addresses, names, and other contact information. The judge ruled that the lawyer failed to meet his duty and rejected his attempt to withdraw.
Earlier in 2016, the ABA extended comparable obligations to lawyers who receive a demand for client files or information, requiring them to make reasonable efforts to notify clients or former clients. Describing in broad terms what would be “reasonable” within the meaning of Model Rule 1.0(h), the ABA said a lawyer should attempt a phone call, fax, email or other electronic communications, a letter to the client’s last known address, and an internet search.
Other courts and bar associations have imposed similar requirements in Missouri, New Jersey, California, and New York. On top of the basic duty to conduct internet searches, lawyers also often have a duty to report what searches turn up and to understand the functionality and privacy settings of any service or website used for research to avoid inadvertent communications.
12 Angry Techies
In Formal Opinion 466, the ABA also opened the door for lawyers to conduct internet searches on prospective jurors as well as other parties. However, the opinion carves out the caveat that judges may limit the scope of the searches that lawyers can perform regarding the juror’s social media if they believe it to be necessary.
Unlike the broadening support for basic internet searches when parties go missing, opinions on the use of internet searches to research prospective or impaneled jurors are still a mixed bag.
In a high-stakes copyright fight pitting two Silicon Valley tech giants—Oracle and Google—against each other earlier this year, the presiding judge found the dangers of researching potential jurors on the internet outweighed any potential benefit in that case. After lawyers on both sides requested a two-day delay to review the two-page jury survey, the tech-savvy judge realized that they planned to scrub the internet to extract personal data on potential jurors during jury selection.
Worried that the lawyers might use the information to make improper “calculated personal appeals” to pull on the heartstrings of jurors, the judge gave Oracle and Google a choice: share all of the grimy details of each internet search conducted on the jury or abstain from searching for jurors on the internet at all.
[I]f a search found that a juror’s favorite book is To Kill A Mockingbird, it wouldn’t be hard for counsel to construct a copyright jury argument (or a line of expert questions) based on an analogy to that work and to play upon the recent death of Harper Lee, all in an effort to ingratiate himself or herself into the heartstrings of that juror. The same could be done with a favorite quote or with any number of other juror attitudes on free trade, innovation, politics, or history.
After the judge sweetened the deal by offering extra time for jury selection if the parties consented not to scour the internet for information on the jurors, both sides agreed.
Google may not have replaced other traditional means of investigation or research, but internet searches have become yet another avenue lawyers must navigate as a part of due diligence when it comes to parties and jurors.