Gag Orders in the Age of Google

How many times have you Googled today?

The urge to Google extends far beyond searching for old boyfriends and celebrity trivia, and has impacted the pursuit of justice, as a ruling suggests from a San Francisco judge overseeing a high-stakes case over Chevron's Nigerian operations.

Judge Susan Illston of the federal district court in San Francisco has ordered Chevron to take down a paid Google link sponsored by the company offering its account of a 1998 shooting incident involving a group of Nigerian villagers who came to a Chevron oil platform for what the plaintiffs say was meant to be a peaceful protest. Chevron argues that a violent hostage-taking led to the shootings.

The judge, according to comments from the bench as reported by Dan Levine of the Recorder, a daily legal publication in San Francisco, saw Chevron's move as an end-run on the gag order she has placed on the plaintiff and defense counsel, and ordered the Google link to be taken down. Chevron's defense counsel argued that the first 10 web pages produced by a search of the lead plaintiff produced pages friendly to the lead plaintiff, Larry Bowoto.

"A lot of judges would have exploded at Chevron for doing this," says Robert B. Hirschhorn, a lawyer and jury consultant with Cathy E. Bennett and Associates in Lewisville, Texas. The firm has consulted in many high-profile cases, dating back to William Kennedy Smith's trial on rape charges in 1991.

"Lawyers know that jurors are going to go to the Internet and Google," he said, "just as children will do exactly what their parents advise them not to do."

Internet sites and blog postings are a new information tool that litigants are using, Hirschhorn adds. "Corporate America is going to latch onto this. It's happening more and more."

The Google after-life of citizens called to jury duty "can be tricky," says Philip Beck of Chicago's Bartlit Beck Herman Palenchar & Scott LLP. As lead counsel for Merck & Co., defending the drug giant in a series of trials in New Orleans by users of the drug Vioxx --- and winning a majority of them --- Beck dealt with the issue frequently.

He recalled that a number of "very well meaning, solid citizen types" who came to jury duty after receiving a lengthy questionnaire on the Vioxx litigation and informed the presiding judge that they had gone onto the Internet to do their own research on the case. (Those who volunteered information about their Google searches did not land on the jury, and the same held true on Monday, in the Chevron case.)

In the Merck Vioxx litigation, there were hundreds of plaintiffs lawyers against one defendant. There, Fallon did not institute a gag order, owing to First Amendment concerns. but had a general rule that lawyers would not comment on pending cases, and agreed to take up complaints on a case by case basis.

Jurors, once sat, are instructed to stay away from newspaper or broadcast accounts of the case at trial and are now also instructed to avoid that information on the Internet. But it is a tough thing to regulate. Unlike a radio or television broadcast overheard by a juror, the Google search is --- if you will, a volitional act --- against the instructions of the judge. But human nature can intervene, and the stark reality is that the Web has a long tail, as they say.

"In some ways, putting something up on the Internet has a greater shelf life than a quote to Bloomberg," Beck says.

Karen Donovan

• Market Darwinism: Which Retailers Will Survive the Recession?
• Microsoft Unit Is the Target of a Criminal Probe
• Job of the Week: Master Liquor Distiller
• Credit Crunched: A Special Report on Wall Street Chaos