Home | Print

Baron breaks down art of e-mail discovery

by Ian Fisher
Law Student Writer/ 2L

Jason Baron, director of litigation for the National Archives and Records Administration, spoke to law students on Thursday about learning to sort through electronic data during discovery. (UF Law/ Chen Wang)

Jason R. Baron just received over 200 million e-mails.

But that’s nothing compared to what someone in his position could get in eight years.

Baron is the director of litigation for the National Archives and Records Administration.

The moment President George W. Bush’s term ended, Baron’s office took possession of all of the e-mails that went through the White House in Bush’s eight years. Baron expects a lot more from the Obama administration.

“What I’ve estimated in my law review article, is that whoever was the next president – I didn’t know it was President Obama at the time – but now President Obama, if he lasts two terms, at the end of eight years, he will have generated, at the rate that we’re going, a billion e-mails.”

Although Baron is planning to retire in two years, he broke down what a logistical nightmare it would be if his office had to go through the e-mails for litigation.

If Baron hired 100 people to work for 10 hours a day every day of the year, it would still take 54 years to review all of the e-mails, costing approximately two billion dollars.

Even if they narrowed down the e-mails using searches to only 10 million (one percent), it would still take 28 weeks and cost 20 million dollars. This is a problem that needs to be fixed, Baron said.

“This is just absurd,” Baron said. “One percent of a billion after a keyword search is too much. Something has got to change… You have to take that huge volume and somehow cut down the haystack as much as possible that’s reasonable to do searches against, and then those searches need to be more efficient than what they are today. But that problem is a hard one; doing efficient searches is very hard.”

In a real life example, Baron and the National Archives and Records Administration were involved in the United States v. Philip Morris, a multi-billion dollar case.

Philip Morris sent 1,726 requests to produce documents to 30 federal agencies. The last paragraph said “All the other paragraphs apply to the National Archives.”

In the case, Baron was responsible for searching over 20 million e-mails from the Clinton administration as well as 50 years of tobacco-related documents.

Baron used 12 keywords to search all of the e-mails, narrowing it down to 200,000.

After that, 25 lawyers took six months going through every e-mail to determine which were relevant. They determined about 100,000 were relevant and produced about 80,000. Only a few were ever introduced at trial, which is troublesome according to Baron.

“The natural inclination is to figure out a bunch of keywords that you can then go query your own client’s database or think of keywords to propound to the other side,” Baron said. “That is what people do. That’s not wrong. I guess my proposition is that it’s a little naïve to think that 12 keywords are going to reliably and efficiently get the relevant evidence that’s in a haystack in a giant collection, like White House e-mail, of 20 million documents.”

Baron gave one example of the many problems that arose with keyword searching: when Marlboro was searched, many e-mails with Upper Marlboro, a city in Maryland, came up.

Because of these and other problems with information retrieval, Baron got involved with TREC, which is the Text Retrieval Conference and is run by the National Institute of Standards and Technology. Its goal is to promote research into the science of information retrieval.

Until TREC, Baron said only one study had been done on lawyers finding relevant documents. In that study, there were 350,000 pages of 40,000 documents. Lawyers estimated that they found 75 percent of the relevant documents, however a research team found that the lawyers only identified about 20 percent of the relevant documents.

Many software companies are trying to solve these search problems with new programs that promise more efficient searches, but Baron said it is unclear which expensive program to buy and if they actually work as promised.

“You’ll get a lot of hype from the legal tech community selling their products and saying that they can do everything under the sun,” Baron said. “But there is no Consumer Reports that’s out there as lawyers. There are no red dots and black dots to tell us what product to buy.”

With all of these e-discovery issues, Baron recommended that students really learn the area because knowledge of it will give them a head start in a rough job market.

“We are just at the beginning, sort of the dawn of some new paradigm in the law,” Baron said. “There is something happening out there, something different – and you can feel it.”