Boston University School of Law

March 7, 2008

baron

National Archives Director of Litigation Jason R. Baron (’80) speaks on impact of electronic records

In an age both blessed and blighted by infinite technological capability, more information is being generated and released to the masses than ever before. With the creation of critical electronic documents expanding, what are the legal repercussions? Addressing similar concerns, National Archives’ Director of Litigation, Jason R. Baron (’80), recently spoke on the complications of ESI and the preservation of electronic records at a leadership summit sponsored by H5 at Georgetown University Law Center.

The leadership summit, “And Justice For All: How the Electronic Information Explosion is Transforming the American Legal System,” was held in March 2007, moderated by Harvard Law’s Arthur R. Miller, and had over 100 participants. The event aimed to “foster broad, interdisciplinary cooperation that may serve as a launching point toward an effective, enduring course through the data deluge,” according to H5 Technologies.

“The issues addressed mainly concerned the tremendous growth of electronic records over the past decade, and how judges and lawyers will of necessity have to devise new procedures and new strategies in the discovery process for dealing with ESI (i.e., 'electronically stored information,' a new term of art written into the Federal Rules of Civil Procedure) in all of its volume and complexity,” says Baron.

“…When it is estimated that 60 billion e-mails are sent daily on the planet; when over 90 percent of all business documents are now created electronically; and when, as some experts predict, the total number of electronic records will be doubling every 60 minutes by 2014, we have entered an uncharted situation that the American legal system was never designed to support and cannot sustain without major, systemic adaptation,” says H5 Technologies.

In working for the National Archives and Records Administration (NARA) for the past eight years, Baron has faced ESI issues head on. “As the Nation’s permanent record repository, for the past decade NARA has anticipated what is now a tremendous influx of electronic records into its archives, starting with White House e-mail. We have 32 million e-mails from the Clinton Administration, with much more substantial amounts coming from the present and especially future Administrations. But e-mail is just a subset of the electronic records created by hundreds of federal agency components of government. NARA is working on building an ‘Electronic Records Archives’ to take in e-records in all proprietary data formats,” says Baron.

Despite the continuous, rapid influx of electronic information, participants in the leadership summit drew conclusions on a corrective course of action. “Among the conclusions drawn was a call for greater transparency and collaboration among adversaries in litigation, in terms of the ‘meet and confer’ process contemplated under Rule 26, on issues going to preservation of and access to ESI, and a call for ‘smarter’ lawyering in the form of new and improved ways to search for, retrieve and process information in electronic form,” says Baron.

As NARA’s first director of Litigation, Baron serves on many Federal lawsuits across the U.S. concerning access to both Federal and Presidential government records. “Just this past week, NARA was made aware of a new lawsuit requesting the opening of sealed grand jury records in NARA’s custody, pertaining to testimony given by Julius and Ethel Rosenberg used to convict and execute them on charges of espionage. There isn’t a week that goes by where there isn’t a new and interesting lawsuit involving some current or historical matter of national interest, where records held by or due to be coming to the National Archives are in some way at issue,” says Baron.

Recently, the Justice Department, CIA, Pentagon and the Library of Congress have invited Baron to speaking engagements on search and retrieval. He speaks both nationally and internationally on behalf of an international research project he co-founded called TREC Legal Track, sponsored by the National Institute of Standards and Technology; and also on behalf of NARA in The Sedona Conference®. Currently, he is editor-in-chief of the Sedona Conference® Best Practices Commentary on Search and Retrieval Methods.

Baron will be featured in the March 24 edition of Federal Computer Week as a recipient of the "Fed 100" award. The annual award highlights 100 people for their contributions to federal information technology.

Reported by Lauren Shiraka