Joe Looby recently released his documentary The Decade of Discovery about the United States versus Philip Morris tobacco lawsuit in the early 2000s and email e-discovery issues. The film also discusses the emergence of the Sedona Conference as a think tank and forum for discussion about cooperation in e-discovery. Many prominent federal judges were interviewed about the issues with open government and record keeping. Also in the documentary, Jason R. Baron, Esq. talks about open government, record keeping at the White House, and how the e-discovery issues played out in the lawsuit. We are beginning to wonder, in this world of big data, how are we dealing with information governance, specifically within issues of open government and data security?
In this episode of Digital Detectives, Sharon Nelson and John Simek interview Jason Baron about information governance, dark data, open government, and his role in The Decade of Discovery. Baron talks about the increasing amount of electronic data affecting the Freedom of Information Act (FOIA) and the discussion e-discovery experts need to have about providing public access to government records. There is a mandate, he explains, that after 2019, all federal agencies must provide all of their permanent records to the archives in electronic or digital form. Because of this, systems and sophisticated softwares will be required to properly filter and provide access to the data. Baron also discusses information governance as a whole, including privacy, security, discovery, and management, and the need for a Chief Information Governance Officer (CIGO) going into the future. He concludes by praising Richard Braman, a leader in the e-discovery industry, for founding the Sedona Conference and creating the Cooperation Proclamation.
Jason R. Baron, Esq. serves as Of Counsel at Drinker Biddle Reath LLP in their Information Governance and eDiscovery Group in Washington DC. He is Co-Chair of the Information Governance Initiative, is currently Chair-elect of the DC Bar Litigation Section E-Discovery Committee, and is an adjunct faculty member at the University of Maryland. His 34 years of public service include serving as a trial lawyer and senior counsel at the US Department of Justice and as the first Director of Litigation at the US National Archives and Records Administration. An internationally recognized speaker and writer on the subject of electronic records, Mr. Baron has been recognized by The American Lawyer magazine as a “trailblazer” in e-discovery in its August 2013 issue of “The Top 50 Big Law Innovators of the Past 50 Years.” He was the 2013 recipient of the Federal Bar Association’s Justice Tom C. Clark Outstanding Government Lawyer award.
Digital Detectives: The Government’s Dark Data: A Decade of Discovery – 1/21/2015
Advertiser: Welcome to Digital Detectives, reports from the battlefront. We’ll discuss computer forensics, electronic discovery and information security issues and what’s really happening in the trenches. Not theory, but practical information that you could use in your law practice. Right here on the Legal Talk Network.
Sharon D. Nelson: Welcome to the 53rd edition of Digital Detectives, we’re glad to have you with us. I’m Sharon Nelson, president of Sensei Enterprises.
John W. Simek: And I’m John Simek, vice president of Sensei Enterprises. Today on Digital Detectives, our topic is, The Search for White House Email: A Decade of Discovery. We’re delighted to welcome our friend, Jason Baron. Jason serves of council at Drinker Biddle Reath LLP, and their information governance and e-discovery group in Washington, D.C. He’s the co-chair of the information governance initiative, is currently chair elect of the D.C. Bar litigation section e-discovery committee, and serves on the adjunct faculty of the University of Maryland. His 34 years of public service included serving as a trial lawyer and senior council at the U.S. Department of Justice, and is the first director of litigation at the U.S. National Archives of Records Administration. An internationally recognized speaker and writer on the subject of electronic records, Mr. Baron has been recognized by the American Lawyer Magazine as a trailblazer in e-discovery. In its August 2013 issue of the top 50 big law innovators of the past 50 years, he was a 2013 recipient of the Federal Bar Association’s Justice Tom C. Clark Outstanding Government Lawyer Award. Thanks for being here, Jason
Jason R. Baron, Esq.: Delighted to be here.
Sharon D. Nelson: Well Jason, I didn’t hear about the subject of this podcast until fairly recently, and I think there’s a lot of folks who don’t know about it. So can you tell something about Joe Looby’s documentary, called The Decade of Discovery and your role in it?
Jason R. Baron, Esq.: Sure, Sharon. This has been a wonderful project to be part of and I’m very honored that I got to be part of Joe’s film. The documentary is really two stories. One is sort of a story of how we went about searching for White House email in connection with first, the big U.S. versus Philip Morris tobacco lawsuit that was brought by the Clinton Justice department. So there were issues about searching for email that vexed me in the early 200’s and I talk about that in the film. The other thing that Joe explores at length is the emergence of the Sedona Conference as a think tank and as a forum for discussion about cooperation in e-discovery and the work of the late Richard Braman as the lead for that effort. And so Richard was interviewed in 2013, and other federal judges that are prominent in the space, including Judge Facciola, Judge Francis, Judge Grimm, Judge Scheindlin, Judge Nolan and Judge Waxse appear in the film along with some prominent e-discovery lawyers to talk about both e-discovery issues and to fill in from where my role on the film is talking mostly about open government and record keeping at the White House and how the e-discovery issue is played out in that form. So it’s just 63 minutes with a lot of interesting vignettes along the way, it’s not just talking heads; it’s filled with things like smoking guns and cars going off cliffs and all the boards testifying in the Iran-Contra hearings and other cool stuff. So it’s really a unique film.
John W. Simek: That’s quite a cast that you described there as well, Jason; but could you tell our listeners a little bit about who is Joe Looby and why did he make this film?
Jason R. Baron, Esq.: Joe is a great friend of mine, and obviously more of a friend after this experience. Joe has a wonderful background; he has served in the U.S. Navy’s Judge Advocate General Corps, he practiced as an environmental enforcing attorney for New York state, he was a founder of the forensic technology practice at Deloitte and FTI. And he left FDI in 2013 to pursue his dream, which is to be a filmmaker. This is the first from what I hope to be a number of films to come from Joe. He named his film production company 10th Mountain Films in honor of his father, who served in the 10th Mountain Division and was a U.S. army ski patrol person that brought in World War II. So, Joe has been at this for the past year and the film is his first of the set. He’s just delighted at the reception that it’s gotten.
Sharon D. Nelson: That’s an exciting adventure, I’m glad we get to meet Joe in the not-so-distant future here. You talk, Jason, about dark data in the documentary, and although everybody on this phone know what dark data is, I don’t think most of our listeners do, so can you explain what the term means?
Jason R. Baron, Esq.: What I mean by dark data is that we are living increasingly in a big data, in a future world, where everything we create, virtually, it starts out in electronic form. The issue that the film raises and that I’ve been speaking about for a number of years, is how do we provide access to all of this data. As we go digital, we’re actually, in some ways, finding it to be more difficult to open up vast amounts of government records immediately under FOIA, under the Freedom of Information Act; and ultimately is public records of the archives. Now remember that the National Archives is filled with records that are permanently valuable, they’ve been praised as permanently valuable. So what I raise in the film is how do we open them up? How long does it take to open up public records? Turns out it’s 75 years; it’s the default unless there are specific reasons to open it up earlier. No one can page through a billion emails; it’s just too much. So we need software. We need better ways of getting at, opening up, shedding light on public records in particular that are kept for many, many decades, and presumptively permanent in nature. The different issue, and the private sector has to increasingly provide access to parts of their digital world, but not under the same regimes under the FOIA and under the Federal Records Act of the Atomic Spectra. And so it’s a unique issue and it’s a very difficult issue vexing one for the National Archives.
John W. Simek: Jason, can you tell us about what lessons are to be drawn about open government and from what is depicted in the film?
Jason R. Baron, Esq.: Well the film suggests that we really do need to have a better conversation about this. I think that there is a opportunity provided by what some of us know as the Archivist’s Directive – which is a managing government records directive that was put out by the archivists of the United States in 2012 – to better fund and better employ these new techniques in terms of software technology to preserve digital information and to make it accessible. And there’s a mandate that by 2019, the end of 2019, the archives had said, to all federal agencies, they must provide all of their permanent records to the archives on a date-for basis after 2019 in electronic or digital form. But of course, be careful what you wish for. The deluge that maybe coming after 2019 needs to be accommodated by very sophisticated means of providing access to that data. So the film touches on this and it’s something I devoted a great deal of time thinking about, that we need to figure out better mechanisms to adapt PII and PHI, that means personally identifiable information or personal health information. And other parts of records that make them presumptively unavailable just out of the date. And once you interpose those kinds of restrictions on public records, that they have to be filtered, well, we need a better way of filtering. Otherwise, billions of digital objects are going to sit in the dark and we need to do something about it; and so the film raises all of these issues very well.
Sharon D. Nelson: Well that sounds like a pretty severe challenge. As I’ve mentioned, I have not yet met Mr. Looby, I have not yet seen the film, although I know we will see it shortly with you, Jason, but the film does cover the decade of discovery; primarily between 2002 and 2012. Does the film accurately portray or predict what is happening in the e-discovery world right now?
Jason R. Baron, Esq.: Absolutely, what the film traces is the evolution and thinking between where we started with manual search and keyword search and went on to what is now known as predictive coding or technology assisted review. And towards the end of the film, these techniques are explained at some length, cases are mentioned, and what we see now is really a cottage industry of predictive coding or technology assisted review cases. More and more courts, every day, are confronting the fact that in large lawsuits, the parties really need to employ automated software techniques that handle the amount of data that exists; the amount of records that are involved in the evidence of the case. So the film is really pointing towards the future and there are judges in the film that are speaking; what their steps are in it, what is law going to be like to be practiced 50 years from now. And the answer is that we all have to use means of artificial intelligence and machinal loading in newly, different ways. We’re all in a world of big data, it’s now 2015. We’re not in 1960 or 1980 or 2000 anymore, we are well into the 21st century, so we need to embrace what’s happening now. Technology is moving, it’s accelerating very fast in this space, technology assisted review is a hot topic in e-discovery. What I’m trying to do is also search classifieds for a larger information governance space so we can talk about that. The film points to the future and talks about where legal practice might be 30 or 50 years from now.
John W. Simek: Jason, you’re associated with the emerging field of information governance. Can you define what that phrase means and why the subject is so important?
Jason R. Baron, Esq.: This is something that I’m very much enthusiastic about. information governance, a shorthand definition of it is, the activities and technologies that organizations employ to maximize the value of their information while minimizing the associated risks and costs. That’s the one-sentence elevator pitch that we at this initiative that I’m part of, the information governance initiative, believe that captures the essence of it. And it’s not really not just records management, and it’s not e-discovery, it’s not any one thing. It is a set of techniques and also a set of policy prescriptions where in the C-Suite, in a corporate suite, there needs to be a champion. There needs to be someone who’s paying attention to data and how to manage it throughout its life cycle and for all of its purposes. And that brings in such issues as privacy and security that have been so much in the news as well as e-discovery and access and record keeping. If you bundle it all up, somebody needs to be paying attention to the cross cutting issues in the space and that’s what information governance is all about and it’s an emerging discipline that we think is going to be ever larger as data essentially doubles every 2 to 3 years.
John W. Simek: Well, before we move on to our next segment, let’s take a quick commercial break.
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Sharon D. Nelson: Welcome back to Digital Detectives on the Legal Talk Network. Today our topic is, The Search for White House Email: A Decade of Discovery. Our guest is Jason Baron, who serves as of council at Drinker Biddle Reath, LLP in their information governance and e-discovery group in Washington, D.C. Jason, we’re not living in a post-Snowden, post-Sony world. What does information governance bring to the vexing issues of cyber security threats and threats to the invasion of privacy?
Jason R. Baron, Esq.: We definitely are post-Snowden and post-Sony. 2015 is the year of the data breach and everyone understanding that they’re just the next target, although they’re a big corporate entity; and there needs to be a public private initiative in this country where we focus on these issues. Where a permission governance plays a role is that in securing the borders so that any given institution is not hacked. We need to pay attention to the data that’s inside the borders so it’s necessary but not sufficient. We need to make sure that emails and other forms of records are routinely preserved in institutions in large numbers, probably managed, so as to make it more difficult to have the kind of embarrassment that we’ve seen in recent headlines. It’s a very difficult proposition to stop hacking in the world – and I’m not suggesting that just greater attention by the things we do alone are going to do it – but I think that there’s an opportunity here to elevate all of the issues about data within corporations, within institutions (public and private), to have a conversation that’s really cross-disciplinary, that it’s not just sigo, that it’s not just to be information security officer or the cyber securities are; is talking only to his or her own people. We need to have chief privacy officers, we need to have chief legal counsel, we need to have chief financial officers and others in the seats we involved in conversations and to really do a risk-litigation exercise and see what can occur. There organizations that I know of that have global heads of e-discovery. The information governance commision, which I’m very pleased to be a part of, is sponsoring a summit on May 20-21st in Chicago about the new commissioner of a cigo, a chief information governance officer. But regardless of the semantics involved, this is a very important topic and it would be unfortunate if the discussion was solely limited to cyber security and privacy without embracing this larger world of what are we doing with our data; our legacy data, and how can we categorize it for the future more efficiently. So that’s where we’re coming from in the IGI of my own perspective.
John W. Simek: Jason, earlier you mentioned the late Richard Braman, the founder of the Sedona Conference. What do you think his most lasting accomplishments were?
Jason R. Baron, Esq.: Well I’ve written about this on the IGI blog, I encourage people to look at what I had to say at his memorial service. First of all, I cherish the fact that I had the opportunity to spend a day with Richard doing the Q&A’s that formed the basis of this film with Joe; Joe invited me out to go interview Richard with him, and that was the last time I saw Richard. He passed away in 2014 after a long illness. And Richard founded the Sedona Conference, but what his enormous contribution in the space – other than giving us all the platform to discuss these issues – is to push out something called the Cooperation Proclamation. It’s a document that 150 judges have signed. It’s cited to routinely in the legal case law. It has changed the culture of the law by emphasizing the need for early discussions on technology issues between the pros in council. Some people only pay lip service to it but everybody acknowledges that the Cooperation Proclamation is an aspirational goal, that we should do a better job at talking with each other early because we need to preserve electronic evidence early. And his dedication to this is shown in the film, actually shows the moment Richard got religion, it’s topped by being asked by Arthur Miller – Professor at Harvard at NYU – a question, and Richard said we need to cooperate moor. And Professor Miller said, “We’ll get back to that utopian ocean in just a moment,” or whatever. And Richard threw in his saddle, he took that as a challenge, and he did something that has changed the culture. And as of the next year when the rules are adopted, the new religions to the federal rules in civil procedure, rule 1 of the federal rules will expressively talk about cooperation among parties, in the rule and in the advisory. So it is a testament to Richard’s drive on this subject that he really has done something important in this space.
Sharon D. Nelson: Well we certainly agree with that and certainly honor his memory. This film, of course, has gotten a lot of great reviews. Can you tell us where it’s been shown and where your jetsetting travel plans for 2015 are going to take the film around the United States and the world? I hear you have quite a schedule!
Jason R. Baron, Esq.: Well, I, Sharon, am quite honored to be part of this. If the film accurately depicted all the people in the e-discovery space that had made major contributions; it would be like a Kevin Burns documentary over seven days. But the film is being shown in a number of law school venues. It has and it will continue to be throughout this year. This is a great platform for getting younger individuals excited about the field of e-discovery and I do what I can on my sort of evangelical soapbox to say to people that in a cold market, being an expert SME, as we call them, subject matter expert, in e-discovery, is a good ticket for finding or landing a job. Secondly, it is being shown in other places; Bloomberg BNA did a city tour – I think they’re committed to doing other screenings. And I have been invited to such far-from places such as Paris and London and Amsterdam and Zurich and we’ll probably be delighted to go elsewhere to plant the flag; to have this film, which I think is an important work of Joe Looby to be shown. And foster a conversation in a lot of places about U.S. litigation and what it means and where we are going in the legal space. I’m just delighted to have that opportunity and I intend to keep traveling.
John W. Simek: Finally, Jason, can you tell our audience members more about how they can attend these screenings of the film and how they can get more information about it?
Jason R. Baron, Esq.: Well the next major screening is at the National Archives, on January 27th at 7:00 PM. It’s a free, public event, and everyone listening should just walk into the National Archives in the McGowan Theater; come in on the Constitution Avenue side and come to the 7:00 PM showing. There will be a panel discussion; the archivists of the United States will be present and we will talk about federal record keeping and open government in a beautiful venue. Beyond that, anyone here listening can go to www.10thmountainfilms.com, that’s 1-0-T-H Mountain Films.com. And that will be our website and it lists where the film will be screened in upcoming venues, so keep track of that. Of course, anybody could contact me, at Drinker Biddle, or contact you guys. I really encourage people to come out; all the screenings to date have been free; you can go to the website if you’re a corporate entity and look at the FAQ’s for what licensing costs. There’s also a download that Joe has made available to individuals, so you can check that out as well. So I would encourage people to come on out to the National Archives on January 27th.
Sharon D. Nelson: You know, I think this is the first time, Jason, that we’ve ever discussed a film on this podcast, so I kind of liked that we got to do that and thank you for bringing us all of this wonderful information. We’re really looking forward to seeing you and seeing the film shortly and I hope some of our listeners will join us, but thanks very much for taking the time today to join us.
Jason R. Baron, Esq.: Well Sharon and John, I’ve always valued your support; I wish you all the best and thanks for having me.
John W. Simek: That does it for this edition of Digital Detectives. Remember, you can subscribe to all the editions of this podcast at LegalTalkNetwork.com, or on iTunes. If you enjoyed this podcast, please review us on iTunes.
Sharon D. Nelson: And you can find more about Sensei’s digital forensics, technology and security services at www.senseient.com. We’ll see you next time on Digital Detectives.
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