Y ou have just finished a long, grueling, com- ror interviews - - PDF document

July 2001 | The Federal Lawyer | 19

Focus On

JONATHAN M. REDGRAVE

Y

• u have just finished a long, grueling, com-

plex trial involving many scientific and tech- nical issues. Unfortunately for you and your client, you lost. During post-trial interviews of jurors, you are surprised to learn that several of the jurors surfed the Web to do their own independent re- search during the trial. In particular, these jurors used the Internet to research the meaning of scientific terms used in the trial as well as to find background information about you and your client. Most lawyers find this scenario disturbing. Unfortunately, it is not fiction.1 Most model or pattern civil jury instructions do not yet directly caution jurors not to use the Internet in connection with their jury service. This article ex- amines the standard for seeking a new trial when ju- ror misconduct involving the Internet occurs and suggests that litigators should consider an explicit jury instruction prohibiting Internet research. Juror Exposure to Extraneous Materials: Standard for a New Trial The federal circuits apply varying standards in civ- il cases to assess the merits of a new trial motion when evidence shows that jurors were exposed to materials not admitted into evidence. Several circuits presume that the consideration of extraneous materi- als is prejudicial, although cases in each circuit pro- vide various interpretations of the standard.2 Other circuits apply a test that focuses on whether there is a “reasonable probability” that the extraneous materi- als altered the jury’s verdict.3 On the other hand, the Eighth Circuit has held that, in a civil case, the expo- sure of jurors to materials not admitted into evidence mandates a new trial only upon a showing that the materials are prejudicial to the unsuccessful party.4 Counsel must understand the applicable standard when confronted with the unexpected and unfortu- nate situation of juror exposure to extraneous materials. Juror Misconduct: The Internet Looms To date, there are few reported cases involving In- ternet use by jurors. However, a review of these cas- es reveals the significant potential for mischief posed by jurors’ access to the Internet. For example, in an unpublished opinion, the Washington Court of Ap- peals employed a standard similar to the one used by the Eighth Circuit to review juror misconduct.5 In that action, a medical malpractice case, post-trial ju- ror interviews revealed that several jurors had con- ducted independent research on the Internet to look up medical terms used during the trial. One juror ad- mitted to looking up and downloading the definition

• f “bacterial vaginosis,” a condition for which the de-

fendant (a health care provider) had treated the plaintiff and which the defendant claimed produces similar symptoms to those that the plaintiff com- plained of prior to her premature delivery. Another juror testified that she had conducted an Internet search to see if she could find information on anoth- er medical condition at issue in a case of twin-to- twin transfusion syndrome (TTTS), but once she learned that information was available, she did not

• pen or read any of the retrieved documents.6

Upon reviewing the allegations of misconduct, the Washington Court of Appeals affirmed the district court’s finding that the plaintiff’s medical records, which were admitted at trial, also contained her his- tory of bacterial vaginosis. Furthermore, the informa- tion that the jurors downloaded was similar to infor- mation already in the record. For this reason, and be- cause the parties did not dispute the accuracy of the information, the Washington Court of Appeals con- cluded that the information could not have affected the verdict. Likewise, because the district court found that extensive information on TTTS was presented by both sides at trial, the Washington Court of Appeals affirmed the trial court and concluded that the added knowledge that information could also be obtained from the Internet, without more, could not have af- fected the verdict. A similar situation was presented in a criminal case in federal court in California, where one of the jurors admitted to conducting independent research

• n the Internet about telemarketing — the subject

matter of the criminal case against the defendants. The juror had typed in the search term “telemarket- ing” in an effort to find out what the term meant, but told the judge that she had seen nothing that would influence her vote. The defendants’ motion for a mis- trial was denied. Three months after the verdict, both defendants filed motions for a new trial, relying on an investigator’s discovery that, in addition to Inter- net access, the juror had also used the San Diego Union Tribune newspaper to conduct research. The investigator also attempted to simulate the Internet research conducted by the juror. The ninth “hit”

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among the first 10 articles retrieved was titled “10 Plead Guilty to Fraud in Widespread Telemarketing Scam.” The district court ruled that the motions were untimely and that, even if they were not, the juror’s actions were not prejudicial. The Ninth Circuit af- firmed the decision in an unpublished opinion.7 The results in these two cases resemble the results in cases that have involved the use of dictionaries or

• ther reference materials by jurors. Generally, courts

have been reluctant to set aside jury verdicts simply because a juror had reviewed an extrinsic document.8 The potential for mischief is far greater, however, when a juror surfs the Internet, and analogies to “dictionary” cases may not be accurate. Unlike a quick glance at a reference book, Internet search en- gines and special Web sites give jurors the tools to conduct extensive investigations about parties, their attorneys, and the very subject matter of any given

• lawsuit. Moreover, unlike a specific source of infor-

mation (like a dictionary), the Inter- net is virtually boundless, ever-changing and, for the most part, not sus- ceptible to authenti-

• cation. In addition,

it is extremely dif- ficult, if not im- possible, to re- view or duplicate the variety of in- formation a juror may or may not have encountered during an independ- ent Internet research ad- venture. The dangers of a juror’s ac- cessing the Internet are exacerbated in cases involv- ing well-known parties, products, or events. Perhaps the most significant cause for concern is that Internet use by the public is expected to continue its expo- nential growth, becoming as much a part of daily routine as an evening walk or watching television. For instance, suppose one of the parties is a contro- versial company that has engendered public criti-

• cism. Further, suppose that opponents of the corpo-

ration have engineered Internet Web sites to capture hostile and offensive material about that company. The harsh reality is that these propositions are true, the Internet boasting several Web sites devoted to such topics. One example is an apparent umbrella site organized by an advocate under the domain name www.sucks.com. The organizer of this Web site has established bulletin board areas for people to post information about 500 different companies and

• rganizations. A more specific example is www.

walmartsucks.com, a Web site containing extensive postings by disgruntled Wal Mart customers and em-

• ployees. It is not hard to imagine how easily a juror

could surf the Internet and find Web sites like these, and more. Motion for a New Trial: Gathering the Evidence If you are in a jurisdiction that allows post-trial ju- ror interviews, your client has lost the case, and you suspect that extraneous information may have made its way into the jury room, it is important to find out if any jurors had conducted any Internet research and, if so, specifically what they had done. Of course, to the extent the evidence of Internet use by the jurors is discovered, counsel will need to comply with Fed. R. Evid. 606(b) in presenting testimony (by affidavit or otherwise) to the trial court concerning any juror misconduct.9 Accordingly, the success of your motion for a new trial may depend on whether you can point to spe- cific facts showing that a juror’s use of the Internet was so expansive that it must have exposed him or her to a wide variety of specific kinds of information that was material to the juror’s decision, participation in deliberations, and the decision in your case. It may also be important to distinguish the prejudice of reviewing a single newspaper article or a dictionary definition from the mischief created by potentially broad exposure to Internet Web sites and postings. Jury Instructions: Prohibiting Internet Use One option for litigants is to request an instruction warning jurors not to use the Internet to conduct re- search concerning the case, the parties, or counsel. Certain criminal pattern jury instructions have now been modified to include a reference to the Internet, but the civil pattern jury instructions do not yet re- flect this change. In addition, the inclusion of the In- ternet reference in the criminal jury instructions does not specifically admonish jurors to forbear any re- search; it only requires jurors to avoid articles found

• n the Internet about the case.10 This warning alone

may not be enough to stop inquiring jurors, given the broad nature of information available on the In- ternet and the increasing accessibility of the Internet to everyone, including jurors.11 Of course, as with any admonishment to jurors, there is the inherent risk that the instruction could create interest in using the Internet and encourage the prohibited behavior. Jurors who may never have thought of using the Internet may be drawn to it, thinking that the parties and the court will never find

• ut.12 However, this risk must be weighed against

the growing possibility that, without a special Inter- net jury instruction, there is a greater risk that an “In- ternet juror” will introduce extraneous evidence that may change the outcome of the case. In addition, the

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presence of a specific instruction may prompt one of the other jurors to reveal the fact that another juror violated the instruction if that fact comes to light dur- ing deliberations. Tailoring proposed jury instructions to include an admonishment against Internet use is within the trial court’s discretion.13 Depending on the facts of the case or the predisposition of the court, however, it is uncertain if a court or opposing counsel would op- pose the admonishment. If the court accepts the jury instruction, it may be wise to consider including the same instruction not only during the opening and closing jury instructions but also in the court’s daily admonishment to jurors. Conclusion In the Internet age, counsel must defend their clients’ interests against the potential negative impact that juror access to the Internet may have on jury de-

• liberations. The first step should be to consider the

merits of a jury instruction warning jurors not to in- vestigate the case, the parties, or counsel on the In-

• ternet. Second, if your client is in the unfortunate po-

sition of losing a case as a result of the misconduct

• f an “Internet juror,” secure the necessary evidence

under Fed. R. Evid. 606(b) that will meet the legal standard in your jurisdiction and bring a timely mo- tion for a new trial. TFL Jonathan M. Redgrave joined the Washington, D.C.,

• ffice of Jones, Day, Reavis & Pogue in March and is

a member of the TFL editorial board. Previously, he was a principal with Gray, Plant, Mooty, Mooty & Bennett P.A. in Minneapolis. The views expressed in this article are his and do not necessarily reflect the views of either firm or any of their clients. Endnotes

1Commonwealth v. McCaster, 710 N.E.2d 605, 606

(Mass. Ct. App. 1999) (juror surfed the Internet to learn the chemical composition of cocaine); United States v. Showa, 1997 WL 801452, at *1, 2 (9th Cir.

• Dec. 19, 1997) (juror conducted an independent in-

vestigation about telemarketing); Buford v. Group Health Cooperative of Puget Sound, 2000 WL 44123, at *8, 9 (Wash. Ct. App. Jan. 18, 2000) (juror conduct- ed an independent internet investigation about med- ical terms used during the trial).

2See, e.g., Haley v. Blue Ridge Transfer Co. Inc.,

802 F.2d 1532, 1535 (4th Cir. 1986); Krause v. Rhodes, 570 F.2d 563, 568 (6th Cir. 1977); Rinker v. County of Napa, 724 F.2d 1352, 1354 (9th Cir. 1983); Mayhne v.

• St. Francis Hosp. of Wichita, 969 F.2d 919, 922 (10th
• Cir. 1992).

3Paramount Film Distrib. Corp. v. Applebaum, 217

F.2d 101, 105-6 (5th Cir. 1954); Artis v. Hitachi Zosen Clearing Inc., 967 F.2d 1132, 1142 (7th Cir. 1992).

4Anderson v. Ford Motor Co., 186 F.3d 918, 920

(8th Cir. 1999); Peterson ex. rel. Peterson v. General Motors Corp., 904 F.2d 436, 440 (8th Cir. 1990).

5Buford, 2000 WL 44123, at *8, 9 (Wash. Ct. App.

• Jan. 18, 2000).
• 6Id. at *11.

7See United States v. Showa, 133 F.3d 930 (9th Cir.

1997) (table of cases) (unpublished opinion in Unit- ed States v. Showa, 1997 WL 801452, at *1, 2 (9th Cir.

• Dec. 19, 1997)).

8Generally, the use of a dictionary by jurors is not

regarded as prejudicial per se. See United States v. Turner, 936 F.2d 221, 226-27 (6th Cir. 1991); United States v. Cheyenne, 855 F.2d 566, 567-68 (8th Cir. 1988). In Kociemba v. G.D. Searle & Co., 707 F.Supp. 1517 (D. Minn. 1989), the district court found that the fact that jurors had been exposed to certain defini- tions from a medical dictionary in a products liability action against the manufacturer of intrauterine device did not warrant setting aside the verdict in favor of the patient. 707 F. Supp. at 1541-44. In a similar situ- ation, in a products liability action relating to a wood burning stove, the United States Court of Appeals for the Third Circuit affirmed the district court’s finding that a juror’s consultation of her own owner’s manu- al constituted extraneous information. See Wilson v. Vermont Castings Inc., 170 F.3d 391, 394 (3rd Cir. 1999). However, in Wilson, the Third Circuit also af- firmed the district court’s denial of a new trial, be- cause it had not been shown that the plaintiff had consulted the owner’s manual or read the warning and further because the existence of a warning in the

• wner’s manual related solely to the issue of defect,

an issue on which plaintiff prevailed. The juror’s statement that she would continue to use the stove in contravention of the warning and in light of what she had learned at trial was not extraneous and therefore Rule 606(b) precluded further inquiry. Id.

9Rule 606(b) of the Federal Rules of Evidence

governs the testimony of a juror with respect to the validity of a verdict. “[A] juror may not testify as to any matter or statement occurring during the course

• f the jury’s deliberations or to the effect of anything

upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict.” Fed. R. Evid. 606(b). However, a juror may testify about whether “extraneous prejudicial infor- mation was improperly brought to the jury’s attention

• r whether any outside influence was improperly

brought to bear upon any juror.” Id. An affidavit may not be received on a matter about which a juror would be precluded from testifying. Id. These are very strict requirements for accepting testimony from jurors about their deliberations, and trial courts are hesitant to accept such testimony without strict com- pliance with the rule. See, e.g., United States v. Krall, 835 F. 2d 711, 715-16 (8th Cir. 1987).

10Section 11.01, Admonitions At Court Recesses —

Long Form states:

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We are about to take a (break) (recess) from the courtroom proceeding which we usually re- fer to as a recess. It is important that you keep in mind and obey the following instructions with reference to each of the recesses of court during the day and over the evening whether I specifically remind you of this instruction

• r not.

Fourth, do not read about the case in the newspapers or on the Internet or listen to radio

• r watch television broadcasts about the trial. If

a newspaper headline or news broadcast about the case catches your eye or ear, do not exam- ine the article or watch or listen to the broad- cast any further. The person who wrote or is reporting the story may not have listened to all

• f the testimony, may be getting information

from people who you will not see here in court under oath and subject to cross-examination, may emphasize an unimportant point, or may simply be wrong. You must base your verdict solely and exclusively on the evidence received in court during the trial. Kevin F. O’Malley, Jay E. Gremig, William C. Lee, Federal Jury Practice and Instructions (West Publish- ing Co., 2000) (Part II. General Instructions for Fed- eral Criminal Cases, Chapter 11: Instructions During a Criminal Trial) (emphasis added).

11A proposed additional instruction on Internet

use could include the following: Do not read about the case in the newspapers

• r on the Internet or listen to radio or watch

television broadcasts about the trial. … Do not conduct any research about the case; make any inquires about the case, the parties, or the lawyers; or communicate with anyone about the case using the Internet or any other means.

12See generally Walter F. Abbott, John Batt, A

Handbook of Jury Research, § 18.02 (e)(1) (ALI-ABA 1999) (explaining why some jurors may not follow instructions to ignore inadmissible evidence).

13More courts are beginning to see the need for

such instructions. For example, in a recent civil law- suit in New York state court, the trial judge provided the following admonishment: Now, there’s another thing you can’t do. You can’t do any private investigation. Now, that means you can’t get on the Internet and see what the Internet is saying about anything touching this case. You can’t talk to somebody who you may consider authoritative on an is- sue that you are going to hear about. You can- not do any of that. Apostolou v. The American Tobacco Company et al.,

• No. 34734/00 (Kings County Sup. Ct, Jan. 2000).

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surveil or record employee conver- sations without advance notice to and consent of all parties involved, coupled with a strong, legitimate business purpose for such activity. The potential civil and criminal penalties for violations are serious. They appear to reflect an overall so- cietal orientation against surveillance and recording activities except un- der color of law (or, under a limited exception, as necessary for commu- nications utilities’ rendering and maintenance of services.) See, e.g., 18 U.S.C. §§ 2511(2)(a)(ii); 2702(b). Employers who do choose to use monitoring devices must ensure that the devices do not inadvertently pick up nonemployees. (In Califor- nia, where I live and work, such surveillance could be a crime. Cal. Penal Code § 647(k)(1).) For a host of reasons, including possible illegality, employers must give careful consideration to the po- tential consequences of the use of electronic monitoring technology in their workplace. Next Issue Space limitations preclude a fuller analysis here. In our next column, more direct attention will be paid to the federal statutes that define and limit an employer’s rights and duties in the Cyberian workplace. TFL Mike Tonsing is a member of the edi- torial board and an attorney in San Francisco.

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