Confidentiality and Online Jury Research: What are the Risks?

One of our clients’ top concerns is having the “other side” learn about the jury research or, worst, for the research to leak to the local media. While confidentiality can’t be guaranteed with any method of jury research (e.g., focus group, mock trial), without a doubt, confidentiality is the most difficult to control with online research. When deciding to conduct online jury research, it is important to understand upfront that, unlike traditional jury research, you will be giving up the ability to control for confidentiality of both the content and existence of the project. If this is not a goal of yours, then online jury research is a good fit for you; however, if this is a key consideration, it will be important for you to make an informed decision before moving forward with online research.

Below are some considerations for which some online providers have found solutions, but most have not.online-jury-research-confidentiality

What are the Risks to Confidentiality?

  • Is the Session Being Recorded?  Can the online mock trial or focus group provider ensure that participants can’t record the session on their end to use outside the parameters of the confidentiality agreement?  The answer is No.  Even if you disguise the party names, there will be enough detail for the jurors – or worse, the media – to figure out who the parties are after the fact.
  • Are Screen Shots Being Taken?  Screen shots are easy to take and easy to share.  No one can prevent a participant from taking screen shots of the graphics to, again, potentially share with others online (e.g., post on Facebook, Instagram, etc.) or, again, the media.
  • What Happens to the Jurors’ Notes?  At a traditional research project, jurors’ notes are shredded after the test, but what happens to the jurors’ notes when they are in the comfort of their own home?  One would hope they throw them away, but no one can control what they do with them.
  • Who is Sitting Behind the Computer?  While online jury research programs provide verification tools to ensure the right person is behind the computer, such as pop-up screens (“Are you still there?”), there is no guarantee that the person behind the computer is the person who agreed to do the research.  Someone could have put their teenage son or daughter in front of the computer while they went to answer a phone call.  This not only impacts confidentiality, but also the reliability of the project results.
  • Who Else is in the Room Who Didn’t Sign a Confidentiality Agreement?  Where is the computer?  Is it in the family room where others in the room can hear what is going on?  Those additional family members or guests didn’t sign a confidentiality agreement and can easily repeat what they heard.  Worst yet, these vicarious observers may have a connection to the litigation (e.g., potential class member).

These are all real possibilities with online research.  These jurors have better access to record the presentations than traditional mock trial or focus group  research participants do.  (If you want to learn about the methods that LI has implemented to prevent recordings, please let us know).  There are many ways the participants can breach the confidentiality of the project.  Therefore, if you are conducting online jury research and you want to ensure the other side doesn’t learn about the research, online research may not be the right research tool for you.

Merrie-Jo-Pitera

 By: Merrie Jo Pitera, Ph.D. – CEO