eDiscovery Daily Blog

Jason R. Baron of Drinker Biddle & Reath LLP, Part 2: eDiscovery Trends

This is the fifth of the 2017 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY (aka Legalweek) this year to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Jason R. Baron of Drinker Biddle & Reath LLP.  Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice and co-chair of the Information Governance Initiative.  An internationally recognized speaker and author on the preservation of electronic documents, Jason previously served as the first Director of Litigation for the U.S. National Archives and Records Administration, and as trial lawyer and senior counsel at the Department of Justice.  He also was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.  He served as lead editor of the recently published ABA book, Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal Practitioner.

Jason provided so much good information that we decided to publish his interview in two parts.  The first part of his interview was published on Friday and Craig Ball’s interview originally scheduled for today will be published on Wednesday and Thursday of next week (also in two parts).

Since you mentioned the recent trend we’ve seen toward an emphasis on technology competence for attorneys, I was going to also mention that we’re up to 26 states that have adopted some sort of technology competence requirement, with Florida being the first state that has required technology CLE for their attorneys.  Do you think the increased emphasis on technology competence will change the general lack of understanding of technology (and advanced search technologies) within the legal profession?

Doug, I’m happy to say that, in the 36+ years that I’ve practiced law, I’ve never had to meet a CLE requirement – the Massachusetts and the DC bars don’t require it!  (Call me lucky.  I’ve also vowed never to take another bar exam.)  But there is clearly a movement towards states’ adoption of the ABA professional rules, including the comment to Rule 1.1 mentioned above.  And in addition to California’s ethics opinion, there are any number of local courts where a great deal of e-discovery competency has been expected of counsel for some time.  (The Seventh Circuit Electronic Discovery Pilot Program, Judge Paul Grimm in Maryland, and state and federal courts in New York have all led the way on this.)   Anyone who practices eDiscovery in a large, complex case is going to have to confront this fact.   Technical competency is of course also needed in a larger percentage of smaller cases in state and federal court as well, given that the need to search Facebook and related apps, as well as GPS devices and other smart technologies, all will be increasingly useful for handling smaller cases involving personal injury, divorce or employment law.  You just can’t hide from the world that we are in – we are immersed in ESI and increasingly immersed in algorithms and analytics that affect all of our lives.

So, to be technically competent in e-discovery in 2017, you do need to know what you don’t know.  Like the California ethics opinion states, that means either knowing the technical points spelled out in the opinion, or knowing enough to know you need help by going to an expert within your firm or a consultant.  Or to step aside and get a co-counsel to help.  And, I think that will be a trend line that we will see.  I don’t think we are all required by these opinions to be Maura Grossman or Judge Peck, or that we need to get an advanced degree in information science or data analytics (although it might help!).   We just need to know enough to ask questions about what it takes to do a better job in eDiscovery.

The highest goal for the e-discovery bar will continue to be working in a way that is consistent with Rule 1, with a just, speedy and economical approach to litigation.  And, in the information governance arena, we can make ourselves valuable and competent as well, by knowing something about advanced search.   At Drinker Biddle, my colleague Bennett Borden is a partner and Chief Data Scientist of our firm – to my knowledge the only lawyer who holds those two titles at an AmLaw 100 firm.   Bennett has been on a “soapbox” as well, saying that we can apply what we have learned using analytics in eDiscovery to every field of practice at a law firm, whether it’s mergers and acquisitions or employment law or anything.  Our practice group routinely is called upon to advise and be part of an ongoing firm-wide discussion of how clients need insight into their large data sets.

We all know where these lines are going.  In terms of technology, at least, the world is not going backwards.  We’re not heading to a place where computers are getting less smart – just the opposite.  Whether you agree with me that the pace of change is itself accelerating,  or just think change is happening, we are in a world where (for the rest of our lives) we are going to be confronting new apps and new technologies.  And, as lawyers, we need to understand the implications across a range of engagements across all legal domains.

In addition to what we’ve already discussed, what are you working on that you’d like our readers to know about?

A few things come to mind: One is that the Information Governance Initiative celebrated its third anniversary during this year’s Legaltech.  Under Barclay Blair and Bennett Borden’s stewardship, the IGI has grown now to 25+ supporters from the legal tech community.  The IGI is widely recognized as a robust “think tank” providing thought leadership about IG topics.  Aside from white papers and benchmark studies, what we have focused on in the last couple of years is holding a Chief Information Governance Officer (CIGO) summit and, this year, that will take place on May 10 and 11 in Chicago.  As we have in the last two years, we will endeavor to gather 60 or 70 “card carrying” members of the IG profession – people who are in a leadership role within IG at their respective organizations.  Many of those who come are de facto Chief Information Governance Officers except that they have some other title on their business card.  This year we will again have a serious conversation about what it means to be a leader in IG.

I have written a recent article in Ethical Boardroom (a magazine out of the UK that may not be very well known in the US, but has really good content regarding corporate governance issues), that I would like to be a theme for 2017 and going forward: how to involve the boards of directors in companies in participating in oversight of information governance issues, to essentially deputize them as fiduciaries of IG in some sense.  Through Sarbanes-Oxley and through the efforts of many companies, board members have developed expertise on cybersecurity issues, and there have been many articles about how you can get involved in that.  But, I think there’s a broader conversation than just data breach issues which encompasses IG – and I have written an article on that.  I’ve also been interested in data ethics issues including moderating a panel at the last annual ACC meeting in San Francisco, so I’ll also be talking about algorithmic bias this year as well.

The last thing that I’ll bring up which is very close to my heart is that, since 2007, I’ve been asked to lead a workshop with my fellow organizers, called the DESI (Discovery of ESI) VII workshop series at the International Conference of AI and Law (ICAIL).  The format of the workshop is that people come and present work that they’ve done, either research papers or even just position papers of 4 or 5 pages.  So, it’s a very easy lift to be part of a very smart community of PhDs and lawyers talking about sophisticated topics.

This year, the workshop will be held on June 12 at King’s College in London.  In prior years we’ve had workshops in Barcelona, Rome, Beijing, Pittsburgh, San Diego, Palo Alto, as well as once before in London itself.   Now, we’re back in London, and I encourage all of your readers to attend and consider participating by putting in a paper.  Maura Grossman and Gordon Cormack graciously have agreed to be the opening keynote speakers at this year’s workshop, which will be especially focused on identifying and protecting sensitive information in large collections.  This is an eDiscovery problem in complex litigation involving privileged documents, but it’s also a problem for privacy related materials (like PII and PHI), and a problem that comes up in audits and internal investigations as to what is proprietary and what can be provided.

Filtering content is also a problem in terms of allowing public access to the vast digital archives of government.  In the case of White House email, we’ve been accumulating emails since the 1990s and there will soon be close to a billion emails that are in existence at the National Archives.  One cannot, however, walk into the National Archives and see any of those e-mails, at least any time soon.  One can walk in and see paper records — but the large and growing collections of e-mails and certain other forms of electronic documents remain off limits because of the sensitive nature of content scattered throughout the collections.  In fact, it may be many, many decades before the vast bulk of NARA’s e-mail collection is made available to the public.  So, that’s an issue that I’ve been writing and speaking on, and that I trust will be discussed at DESI VII.  I will also be speaking on this subject at CeDEM 2017, an upcoming e-Democracy conference being held outside of Vienna, Austria this coming May. 

Thanks, Jason, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Don’t forget our webcast tomorrow: Best Practices for Effective eDiscovery Searching at noon CST.  Click here to register!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.