Judge fines Alston & Bird $10,000 for LinkedIn research on prospective juror

A federal judge in San Francisco has fined Alston & Bird LLP $10,000 for violating a court order against using LinkedIn to research a prospective juror because the platform notifies the target, amounting to impermissible contact.

U.S. District Judge William H. Orrick described the fine as "far more modest than I originally contemplated," acknowledging that other judges might not consider LinkedIn notifications to be improper contact. He emphasized that "it was Alston & Bird's obligation to comply with my Standing Order, whether it agreed with it or not."

He imposed the sanction Tuesday after the law firm reported that its jury consultant and investigator used LinkedIn to research a prospective juror during voir dire in a patent trial against action-camera maker GoPro.

The research triggered automatic notifications to the prospective juror.

Attorneys at Alston & Bird who represent GoPro in the matter could not be reached immediately for comment.

Orrick praised Alston & Bird's counsel for telling him immediately when the standing order violation had been discovered, though he did not make clear which attorney had contacted him. Contour IP Holding, LLC v. GoPro, Inc. 3:17-cv-04738 (N. D. Cal. filed Nov. 13, 2015).

"She did the responsible thing," Orrick wrote in his sanctions order. "She provided the information she had received to opposing counsel, so that his firm would not be disadvantaged by not having access to the information her firm possessed. And she notified me of the violation at her first opportunity before jury selection."

Law firms representing the plaintiffs -- Contour IP Holding LLC and iON Worldwide Inc. -- include Winston & Strawn LLP, Sheppard, Mullin, Richter & Hampton LLP and Honigman Miller Schwartz and Cohn LLP.

The sanction sends a warning to trial lawyers about the ethical boundaries of digital research on jurors, according to Michael Rubinstein, who runs his own personal injury law firm in Beverly Hills and posted about the decision on his LinkedIn account.

Rubinstein emphasized the lines in Orrick's sanctions order that read, "Counsel in every case before me are forewarned against future violations. No one should take as precedent the modest nature of the sanction in this particular case."

Orrick's order makes clear that even inadvertent online "contact" can amount to a breach of court rules, Rubinstein said in a phone interview Thursday, adding that Orrick was "mad."

"The judge is basically saying, 'If this happens again in the future, someone else is going to have to pay a lot more than 10 grand.' He's adamant he does not want this happening again," Rubinstein said.

Someone on a trial team researching jurors is normal, according to Rubinstein, but in this instance the court found the research to be too "invasive."

Orrick explained in his August 2023 standing order that while lawyers may use publicly available information to prepare for voir dire, they must avoid any method that could alert a juror that their profile has been viewed.

Orrick's standing order specifically prohibited LinkedIn searches for that reason, stating that even so-called "anonymous" views constitute impermissible contact because of the platform's automatic notification feature.

"Lawyers have an ethical duty not to contact prospective jurors," Orrick wrote in his sanctions order. "They must be careful not to inadvertently use an investigative technique that notifies a juror that their information is being reviewed."

Alston & Bird's consultant hired a private investigator who, according to the judge, was unaware of the order's restrictions. The investigator said she only accessed publicly available information--but used LinkedIn as part of that research, resulting in the violation.

Although Orrick determined a mistrial was unnecessary, he still levied a financial penalty to underscore the importance of adhering to court orders.

His standing order prohibits any form of online activity that could alert a juror, including "likes," "follows," or views of temporary posts such as Instagram or Snapchat stories.

"Individual privacy has been eroded over the last thirty years," the judge wrote in the sanctions order. "I do not think that jurors should lose any remaining privacy interests simply because they are called to do their civic duty."

Rubinstein said it may be "procedurally difficult" for Alston & Bird to appeal the decision, but a motion to reduce the sanctions amount is possible.

The case centers on alleged patent violations over GoPro's digital portable cameras, which the plaintiffs allege copies their own cameras' functions for remote image viewing and control.

Contour and iON claim GoPro knowingly used their patented technology to gain a dominant share of the action-camera market.