The Eastern District of Texas continued in its efforts to compel attorneys to report on all pre-trial jury research including the names of all of the research participants who might otherwise be in the jury pool for the actual trial. Although these measures may be surprising in the modern litigation environment in which pre-trial research in high dollar cases is routinely and matter-of-factly administered, these orders appear to stem from a concern that the venire has a limited number of qualified jurors.
In a January 3 order on the patent case 3rd Eye Surveillance, LLC v. The City of Fort Worth, Magistrate Judge John D. Love told the parties that “if either party intends to conduct mock trials, focus groups, or similar studies in preparation for trial, the party who commissions such a study shall retain, to the extent practicable, the name and address of each participant in the study. Any party who commissions such a study shall advise the other party to the case, as well as the court . . . Upon receipt of any jury list, the party who commissioned the study shall immediately cross-reference the jury list with the identities of the participants and advise the other party and the court of any prospective juror who participated in any study.”
This order is in keeping with a February 2012 standing ruling by Judge Rodney Gilstrap in the same district who stated that he, along with Judge Roy Payne, “strongly discourages the parties from conducting mock jury trials, focus groups, or other similar studies in which any mock jurors or similar participants reside in the division where the case is pending, ” because “Participation in such studies increases the risk that otherwise qualified venire members will be disqualified from jury service either through participation in such studies or other extrajudicial knowledge concerning the facts of the case or the law to be applied; and WHEREAS: Such risk threatens the administration of justice.” Similarly, the parties were told that if they did pre-trial research anyway, they should retain the names of participants, notify the court and opposing counsel and cross-reference lists of actual jurors.
Although we may be considered biased toward the research end, it should be noted that after two decades of doing pre-trial jury research with thousands of mock jurors all across the country, we have yet to encounter a research participant causing an obstacle to the administration of justice at trial.