Revisiting a decade of discovery: Q&A with Jason R. Baron
True North discusses eDiscovery and all things ESI with the internationally renowned thought leader, speaker, and author on the topic of preservation of and access to electronic documents.
Jason, welcome to True North. And welcome to Hollywood! You now also have a movie credit to your name in IMDB, as you appear in Joe Looby’s documentary “The Decade of Discovery™.” We understand that the film follows your quest to find a better way to search White House email, as well as the career of the late Richard Braman in founding The Sedona Conference® and urging that lawyers cooperate in eDiscovery.
If you go back in time over the past decade or so, what were your hopes (and expectations) about how the bench and bar would address the challenges of electronically stored information (ESI) and how does the current reality compare?
JRB: First, let me say that I considered it the highest honor to serve for over three decades in the public service, including at the Justice Department and at the National Archives. During the 1990s and early 2000s, I had the opportunity of a lifetime to be involved in landmark cases of public importance, including representing successive Presidents in litigation involving the preservation of White House email under the records laws, as well as having lead agency responsibility on eDiscovery requests in big tobacco litigation affecting NARA’s holdings. In particular, my experience in handling an email production in the tobacco litigation involving tens of millions of White House emails convinced me that lawyers needed to think more deeply about how ESI should be efficiently searched, beyond naïve and inefficient ways of searching using keywords. This was especially true given that I saw no end in sight to the exponential, inflationary era of growth we all were experiencing, in terms of the amount of digital data to be searched for purposes of meeting eDiscovery.
It certainly does not surprise me that data is now doubling every two or so years. Nor does it surprise me that outside a certain “bubble” represented by those who attend The Sedona Conference, the Georgetown Advanced Institute, and Legal Tech, many lawyers (and most judges at the state and federal levels), are now only just beginning to confront how to handle large ESI productions using advanced search techniques. But change is coming, even if it is a bit slower than one would hope for, due to the thought leadership represented by a cadre of federal magistrate and district court judges whom have seen the future.
Looking back, what were the key pivot points that drove developments in the eDiscovery space?
JRB: Obviously, we all owe a huge debt to Richard Braman, whose vision in forming The Sedona Conference has been of outsized importance. Not only did The Sedona Conference Principles pre-date and contribute to the development of the 2006 rules changes, but Richard’s legacy includes The Sedona Conference Cooperation Proclamation, an important milestone in changing the culture of discovery in courtrooms across the U.S., as well as dozens of other commentaries produced by Sedona volunteers.
I’d also like to think that the creation of the TREC Legal Track assisted in being a driver of change in eDiscovery practice. Before the TREC Legal Track there was the Blair and Maron study — but not much else by way of research into evaluating how well lawyers did in finding relevant documents in a given universe of potential ESI. The six years of TREC Legal Track research, subsequent research using TREC data (particularly the work of Maura Grossman and Gordon Cormack), as well as studies from the Electronic Discovery Institute, all have helped to validate the use of a variety of advanced search techniques in the eyes of both the bench and the bar. I remain extremely grateful to all the individuals and organizations who contributed so much to the TREC Legal Track over the years, including of course Bruce Hedin and others at H5.
The use of technology in eDiscovery has been a hot topic over the past decade, but following the discussions in Victor Stanley, O’Keefe and Da Silva Moore, the courts don’t appear to have a problem with it. Even with the best intent, however, it’s difficult for lawyers to keep up with the knowledge and experience the ever-evolving world of ESI (and the rules of professional responsibility) demands. Any advice for them?
JRB: You are of course quite correct that the judicial validation of technology assisted review and other advanced search methods in the above-mentioned cases is of significant importance — and especially after Judge Peck’s decision in Da Silva Moore we have seen a dozen or more reported cases that openly discuss advanced search and document review techniques. But as I indicated above, these still represent a small fraction of eDiscovery cases (and litigators) that have had serious exposure to the new techniques. In the past year, however, we have seen the ABA adopt a comment to the Rules of Professional Responsibility that stresses the need for lawyers to keep up their competence in technology. While I certainly don’t read this comment as requiring a Ph.D. in linguistics or information retrieval techniques, it would behoove all of us to at least to know what we don’t know, and seek out expert advice to assist in appropriate cases. There are enormous opportunities for younger lawyers entering the profession to become more expert than their more senior colleagues in manipulating ESI using advanced techniques, to advance their own careers while advancing the path of the law. The flip side of this is that those in the profession who are not willing to embrace new ways of handling discovery in the age of massive amounts of ESI are at increased risk of failing to provide true value to their clients (and in some cases should be considering retirement)!
eDiscovery and Information Governance (IG) intersect in ways that could lead to very productive outcomes in both the corporate and legal domain if counsel and the C-suite could share a unified vision. What obstacles stand in the way and what do you think is the path of least resistance in making progress?
JRB: I’m delighted you asked me about information governance! I have been dedicating my time now that I am in private practice to advancing the idea that what we have learned in the eDiscovery space about advanced analytics can be successfully applied on a much larger corporate playing field, where as lawyers we can provide real value to clients in all sorts of new ways. One aspect of good IG practice is foundational to eDiscovery, namely, being more efficient (prior to the onset of litigation) in categorizing and remediating data flowing within networks and captured in corporate repositories. But practicing IG goes well beyond eDiscovery concerns: as Bennett Borden and I wrote about in our article in the Richmond Journal of Law and Technology, “Finding the Signal in the Noise,” we believe that counsel can use analytics to perform a variety of important legal services to clients, loosely considered under the rubric “business intelligence.” This is definitely a growth industry for the legal profession.
Now, I readily concede that there are significant barriers to getting traction in the C-suite on IG issues, especially in the absence of what has been termed a “black swan” event (i.e., significant sanctions or litigation and investigation resource burdens expended). But there are forward looking companies that do have designated heads of global information governance – individuals who act as clearinghouses for finding ways both in maximizing ROI with respect to legacy networks and applications, as well as planning a coherent path forward on future IT acquisitions. Law firms that recognize the importance of IG issues can be brought in to assist in a variety of ways, including rendering legal opinions on the sufficiency of existing IG practices, as well as providing legal advice on specific hot topics after analytics have been applied to large data sets of email or other types of records.
Ten years from now, what do you predict will be the highlights of “The Decade of Discovery” sequel?
JRB: Let me first say that it’s been an honor to be featured in Joe’s movie, along with Richard Braman and other judges and lawyers. A one hour documentary could never include dozens of friends and colleagues I know who have made major contributions to our work in the eDiscovery space. I suspect that ten years from now someone may come along and title a movie “TAR Wars” — describing how the battle played out in pitting different methods of machine learning, using human review in the loop, to maximize efficient eDiscovery. The pace of technological change is accelerating, along with the increase in data volumes: more and more of the legal profession will see 20th Century manual review methods receding into history, replaced by a variety of automated means aimed at getting to the most relevant and material documents at issue in litigation. Younger lawyers will naturally expect and demand that such methods be used, as they will be surrounded in their professional lives by growing awareness of the power of analytics all around us. Beyond that, my crystal ball is a bit cloudy: I would like to think that the emerging discipline of IG will help transform corporate culture into paying closer attention to our data driven universe, in more coherent ways. To be a lawyer in the eDiscovery and IG space in the second decade of the 21st century is to live in interesting times. I myself have never been more excited to practice law, and I’d like to think that there are many others that continue to share my enthusiasm for what the future brings.
Jason R. Baron is Of Counsel in the Information Governance and eDiscovery Group at Drinker Biddle & Reath LLP. An internationally recognized thought leader, speaker and author on the topic of preservation of and access to electronic documents, Jason is Co-Chair of the newly formed Information Governance Initiative, a consortium of industry and thought leaders in the IG space, and Chair-Elect of the D.C. Bar eDiscovery Committee. He was also a founding coordinator of NIST’s TREC Legal Track and the DESI (Discovery of ESI) Workshop series, and is active in The Sedona Conference®, where he has served as a past co-chair of WG1 and as editor in chief on three Sedona commentaries. He has received numerous awards in his career, including the prestigious international Emmett Leahy Award for his career contributions in records and information management, and the Justice Tom C. Clark Award for Outstanding Government Lawyer, awarded by the Federal Bar Association. In 2013, The American Lawyer magazine singled Jason out as an “e-discovery trailblazer,” in its issue on “The Top 50 Big Law Innovators of the Past 50 Years.” Email: email@example.com