2. GSA COLLABORATIVE EXPEDITIONARY WORKSHOP #69: Transcending Socio-Cultural Boundaries in Virtual Work Settings: Creative Collaboration Efforts At the Intersection of Law and Public Policy National Science Foundation Arlington, Virginia January 29, 2008 Jason R. Baron Director of Litigation Office of General Counsel National Archives and Records Administration Musings on Social Media and The Public Sector Lawyer: Challenges and Opportunities

3. 2 There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things. Niccolo Machiavelli, The Prince, 1532

4. 3 Overview Collaboration Within The Adversarial Paradigm The Need for Interdisciplinary Coordination Wiki Tools for Smarter Federal Lawyering in the 21st Century: Some Modest Proposals

5. A New Legal Term of Art Under the Federal Rules of Civil Procedure: Electronically Stored Information or “ESI” “Electronically stored information”: - The wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of ESI…A common example [is] email … The rule … [is intended] to encompass future developments in computer technology. --Advisory Committee Notes to Rule 34(a), 2006 Amendments

6. Common Forms of ESI Email with attachments (all kinds) Text files, powerpoint, spreadsheets Voice mail, instant and text messaging Databases, proprietary applications Internet, intranet, wikis, blogs, RSS feeds (plus cache files, slack space data, cookies) Data on PDAs, cellphones Videoconferencing & webcasting Metadata

7. Selected Changes to the Federal Rules of Civil Procedure: Discussing ESI at the Rule 26(f) Initial “Meet and Confer” and at the Rule 16(b) Pre-Trial Conference New FRCP Rule 26(f) conference obligations: parties must have early meet and confer to discuss “any issues relating to preserving discoverable information,” including “any issues relating to disclosure or discovery of ESI, including the form or forms in which it should be produced.” Thus, meet and confers will necessarily include: + Scope of ESI holdings + Preservation issues + Formatting issues + Access issues Similarly, Rule 16(b) provides for pre-trial disclosure of ESI

8. A Transformative Rule Change for Litigators of all Stripes -- Understanding technical issues involved in brave new world of ESI -- Need for Greater Collaboration With One’s Adversary --Interactive Feedback Loops (Virtuous Cycles) in form of Multiple Meet and Confers --Increased attention to search issues

9. A Transformative Rule Change for Lawyers and Public Policy Makers Within Federal Agencies -- Need for greater intellectual control of ESI within agencies (an elusive RM goal) --Demand for greater enterprise search capability to respond to both internal and external demands for access --Fostering of cultural / institutional change: new ways of doing business --Recognition of power of KM

10. 9 Interdisciplinary Approaches-- Three Languages: Legal, RM, and IT

11. 10 Wiki: A “Fast” Overview A wiki brings together a "community of interest" around a simple web content management application to post and edit web content. That community of interest is not necessarily limited by Federal agency or even private or public community affiliation. Wiki uses include: ･ A method of collaborative writing; ･ A method of collaborating on projects; ･ A method of finding consensus around an issue or concept; Virtual meetings;and Vocabulary development.

12. 11 RSS: Really Simple Syndication RSS is an application that provides a mechanism for "pushing" or "feeding" content (a "feed") to subscribing consumers on the web and can be written in any one of a family of eXtensible Markup Language (XML) "syndication" schemas. RSS uses include: Automatically integrating content from other web sources into web sites; Updating desired information automatically based on posting date (i.e., updated weather reports linked on an agency site); Aggregating desired content into one web site.

13. Email v. (Wiki + RSS) Email: typically one to one, or one to a select few The big negative: volume Wiki: content communicated to many in real time, for 24/7 review by all Add RSS: dynamic updates when changes are made

14. 13 Fractal Recordkeeping

15. 14 The Tree = The Organization’s Knowledge And Every User’s Email Account as a Separate Twig

16. Baron’s Law The time and resources needed to search for information increases proportionally with the extent to which an organization allows its staff to engage in fractal (i.e., end-user, decentralized) recordkeeping.

17. 16 An Alternative View: Seeing The Wiki as… A Weapon of Mass Collaboration

18. Modest Wiki Proposals for Federal Agencies 1. Common reference libraries (knowledge repositories) for use across headquarters and regional components

19. Modest Wiki Proposals for Federal Agencies 2. Intra-agency Case or Project Related Wikis 3. Interagency Wiki Forums to share common issues

20. 19 HHS Organizational Chart

21. 20 HHS Regional Offices Map

22. Strategic Challenges Convincing lawyers to think in interdisciplinary ways, leveraging the knowledge and expertise that exists in communities outside their usual domain (including in the fields of IT and RM)

23. Challenges (con’t) Empowering individuals within organizations to use (and to want to use) new collaborative tools that are easily employed on the desktop.

24. Challenges (con’t) Ensuring that internal collaborative efforts in federal agencies are properly protected under existing law, which recognizes a deliberative process privilege, attorney work product, the attorney client privilege, and other restrictions on access including under the Privacy Act.

25. Challenges (con’t) Lawyers being open to using new and evolving Web 2.0 social media of all kinds as a means of communicating with their agency clients, and with each other.

26. 25 The Paperless Office is Just Around the Corner…. (A new corollary: The Email-free Office Is Also Coming Soon….)

27. 26 What we anticipate seldom occurs, what we least expected generally happens. Benjamin Disraeli

28. 27 References Implications of Recent Web Technologies for NARA Web Guidance (FAQs on wikis, blogs, and RSS Feeds) http://www.archives.gov/records- mgmt/initiatives/web-tech.htmlhttp://www.archives.gov/records- mgmt/initiatives/web-tech.html Dennis Kennedy and Tom Mighell, “Wikis for the Legal Profession,” Law Practice Today (Feb. 2007) www.abanet.org/lpm/lpt/articles/slc02071.shtml www.abanet.org/lpm/lpt/articles/slc02071.shtml George L. Paul and J.R. Baron, “Information Inflation: Can the Legal System Adapt,” 13 Richmond Journal of Law and Technology 10 (2007), http://law. richmond.edu/ jolt/v13i3/ article10.pdfhttp://law. richmond.edu/ jolt/v13i3/ article10.pdf Dan Tapscott and Anthony D. Willliams, Wikinomics: How Mass Collaboration Changes Everything (2006)

29. 28 Jason R. Baron Director of Litigation Office of General Counsel National Archives and Records Administration 8601 Adelphi Road Suite 3110 College Park, MD 20740 (301) 837-1499 Email: jason.baron@nara.govjason.baron@nara.gov Disclaimer: the views expressed in this powerpoint presentation are the author’s alone, and do not necessarily represent any institution or governmental component.