SMARTER. Jason R. Baron. Revolutionizing how the world handles information

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2 COVER STORY ] THINKING SMARTER Jason R. Baron Revolutionizing how the world handles information It is common knowledge that we are living in what has been termed The Information Age. With the advent of the personal computer in the 1970s and the Internet in the 90s, society has changed. Nearly extinct are the days of paper encyclopedias, desk rolodexes and laminated roadmaps. The way that our world interacts and communicates has been fundamentally altered, and the amount of data and information available to anyone with an Internet connection is overwhelming. To give some perspective: the amount of data stored in the world has grown exponentially over the past two decades, from 5 Exabytes in 2002 to 161 in 2006 and 988 in A single Exabyte is the equivalent of 1 million terabytes or 1 billion gigabytes. An Exabyte is also considered equal to all of the words ever spoken by humanity since the beginning of time. However, the way that we store all of this knowledge, this amalgamation of data, has changed very little. Even with all of these technological innovations, we handle information very similarly to how our predecessors did. > ]

3 This stone age mentality takes its form in dark storage rooms, stacks of external hard drives, and a physical piling up of virtual data made corporeal. In fact, many times, companies and individuals have little to no idea where or how their respective information is stored. Jason R. Baron is among a group of forwardthinkers who are looking to revolutionize the way the world handles information. In 2012, The American Lawyer Magazine named Baron one of six e-discovery trailblazers in its issue on The Top 50 Big Law Innovators in the Past 50 Years. He graduated magna cum laude from Wesleyan University, then earned his law degree at Boston University s School of Law. From 2000 to 2013, Baron served as the first Director of Litigation for the U.S. National Archives and Records Administration; previously, for a dozen years he served as a trial lawyer and senior counsel at the Department of Justice, where he acted as lead counsel on landmark cases involving the preservation of White House In 2013, he joined Drinker, Biddle & Reath, LLP as Of Counsel in the Information Governance and e-discovery Group. Additionally, he co-chair s the newly formed Information Governance Initiative (IGI), a newly formed group of industry and thought leaders regarding information governance. (See www. iginitiative.com.) According to their website, the Information Governance Initiative is a crossdisciplinary consortium and think tank dedicated to advancing the adoption of Information Governance practices and technologies through research, publishing, advocacy and peer-to-peer networking. For the last decade, I ve been on a quest to have trial lawyers and e-discovery professionals understand the limitations of keyword search - which is impossible when you have billions of documents.

4 Prior to taking part in the IGI, Baron has been a tireless advocate for smarter electronic discovery. [F]or the last decade, I ve been on a quest -- some would say a soapbox -- to have trial lawyers and e-discovery professionals understand the limitations of keyword searching and to explain that we should all be doing something beyond manual review, which is impossible when you have billions of documents. During the discovery process of a trial, lawyers often have an overwhelming abundance of information to sift through in search of relevant documents and data. With today s technological innovations, however, this amount has skyrocketed. Whereas a legal team in the early 20th century might have had hundreds of physical boxes consisting of files of correspondence and documents to search through in a large case, today a similar case might involve hundreds of thousands or even millions of s, electronic files, online data, and more. For years, legal teams have been employing keyword searching as the primary technique for filtering the relevant from the irrelevant. But Baron was an early advocate in pointing out the resource intensive and time-consuming this process, reviews, nature of through his law commentaries for The Sedona Conference, and in his founding of the TREC Legal Track, a research project funded by the National Institute of Standards and Technology which evaluated the efficacy of various search methods. In all of these efforts, he helped to move the industry towards adoption of smarter, more efficient methods, the most prevalent of which is now known as predictive coding. According to Baron, predictive coding is a process that relies on mathematical algorithms that work to cluster like documents together, coupled with the application of human judgment on the front-end. For example, if I gave you 50 documents to code as relevant or not relevant from a collection of a billion objects, and you did that, then I d have you feed those judgments into the algorithm the software that you use and the software would decide whether the rest of the billion are relevant or not.

5 So, instead of having to analyze each document individually, under this system a trained individual explores a small cross-section of data and then the software takes over analysis based on that initial input. The algorithm continuously learns about the distinctions between one document and another in terms of relevance, and does so very efficiently. This ability is transforming the legal profession, challenging lawyers to use automated technologies. Because why would any corporation pay for the hundreds and hundreds of attorneys going through a document review manually when an algorithm can be used, if it is trained properly? Of course, the secret sauce is in the training, the subject matter expertise at the front end, to make those judgments. As with most new technologies in the legal world, adoption has been slow, largely because of the large costs of early adoption, and the absence of case law approving such new methods. However, two years ago a legal precedent was set that could make the use of predictive coding in e-discovery much more prevalent in the near future. In February 2012, Magistrate Judge Andrew Peck of the Southern District of New York made a landmark ruling on discovery issues in the case of Da Silva Moore, et al., v. Publicis Groupe, et al. Judge Peck ruled that [Predictive coding] certainly works better than most of the alternatives, if not all of the alternatives. So the idea is not to make this perfect, it s not going to be perfect. The idea is to make it significantly better than the alternative without nearly as much cost. According to Baron, that is where the game is now in e-discovery: to figure out what are the best strategies for using the algorithms in a proper way. But at the end of the day, it s saves millions of dollars for clients. To do this, Baron says, the change must be trickle-down. It is critical for top-tier individuals CEOs, CFOs, managing partners, etc. to issue a call-to-action to ensure that lawyers they hire are aware of and fully conversant in using these new analytical methods. And now that a legal precedent has been set allowing for the use of predictive coding in e-discovery, Baron and his fellow advocates are turning their attention to worldwide adoption of better IG practices, where the benefits across the legal spectrum are not difficult to envision.

6 Clearly, the world s plethora of information will only continue to grow in leaps and bounds. Baron and his colleagues at the IGI believe that the only way we can wisely store and manage this overabundance of data is through the institution of better forms of information governance. We need to embrace technology and embrace new paradigms for lawyers we can t be stuck in the world of the 20th Century, Baron says. What we need to be is smart in a world of big data. We are being overwhelmed, including in the litigation space, by the amount of documents and electronically stored information that exist. Baron firmly believes that better information governance can be achieved, in part, through the types of predictive analytical methods that lawyers are getting more familiar with in e-discovery. What we need to be is smart in a world of big data. We are being overwhelmed, including in the litigation space, by the amount of documents and electronically stored information that exist. Using smart automated methods, we can do a better job at defensible deletion of legacy date, as well as autoclassification of data going forward. We, as lawyers, can also advise clients using these methods on a range of issues that fall under the name business intelligence, including recognizing bad conduct on the part of employees so as to detect and prevent litigation. And so it is all about smarter methods and now the step beyond is to think foundationally how we [can] provide value to our clients using these tools and technologies in new ways. A good national example of this, Baron notes, is the effect of President Obama s directive regarding the more effective management of government records. As a result, in July 2012, the Archivist of the United States, David Ferriero, issued a memorandum stating that, with respect to the permanent records of government that end up at the National Archives, all such records must be transferred in digital or electronic form by The policies that have been put in place urge that government work with industry to develop automated methods for the archiving and autoclassification of electronic records, along with advanced methods for searching those records. Alyson Wright Contributing Writer