Transcript Musings on Social Media and The Public Sector Lawyer

Musings on Social Media and The Public Sector Lawyer:
Challenges and Opportunities
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
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
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Overview
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Collaboration Within The Adversarial Paradigm
The Need for Interdisciplinary Coordination
Wiki Tools for Smarter Federal Lawyering in
the 21st Century: Some Modest Proposals
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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
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
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
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
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
Interdisciplinary Approaches-Three Languages: Legal, RM, and IT
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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.
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RSS: Really Simple Syndication
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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.
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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
Fractal Recordkeeping
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The Tree = The Organization’s Knowledge
And Every User’s Email Account as a Separate Twig
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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.
An Alternative View: Seeing The Wiki as…
A Weapon of Mass Collaboration
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Modest Wiki Proposals for
Federal Agencies
1. Common reference libraries
(knowledge repositories) for
use across headquarters and
regional components
Modest Wiki Proposals for
Federal Agencies
2.
3.
Intra-agency Case or Project
Related Wikis
Interagency Wiki Forums to
share common issues
HHS Organizational Chart
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HHS Regional Offices Map
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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)
Challenges (con’t)
Empowering individuals within
organizations to use (and to want to
use) new collaborative tools that are
easily employed on the desktop.
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.
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.
The Paperless Office is Just Around the Corner….
(A new corollary: The Email-free Office Is Also Coming Soon….)
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What we anticipate seldom occurs, what we
least expected generally happens.
Benjamin Disraeli
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References
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Implications of Recent Web Technologies for NARA
Web Guidance (FAQs on wikis, blogs, and RSS
Feeds) http://www.archives.gov/recordsmgmt/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
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.pdf
Dan Tapscott and Anthony D. Willliams, Wikinomics:
How Mass Collaboration Changes Everything
(2006)
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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: [email protected]
Disclaimer: the views expressed in this powerpoint presentation are the author’s alone,
and do not necessarily represent any institution or governmental component.
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