I have a bit of a problem with the following premises:

>>"2)If the record, as determined by the owner, is related to any known
or ongoing investigation or litigation involving the organization." <<

First, why would record relating to an ongoing investigation or
litigation be on a disposition list in the first place.  However, the
standard for suspension of disposition activities should not be
"ongoing".  It should also include all situations where audit,
investigation, or litigation is pending or reasonably anticipated.  As
good measure I would throw in situations where increases in retention
timeframes are reasonably expected.

>>district court judges from New York, Massachusetts, and Northern
California were very, very clear that they 1) expected companies to meet
the Zubulake checklist and 2) that they expected a seasoned litigator to
make these kinds of decisions.<<

I do believe that counsel should make the decision regarding whether
disposition is to be suspended.  However, I think the standard requested
by the court is a bit out of line.  Over the past 25 years or so, about
half of the actions requiring production of records or suspension of
disposition have directly involved the organization.  In actions where
litigation is anticipated, the suggestion of having a seasoned litigator
is well founded.  He who has the best litigator wins the most, both
cases and damages.  The reality of that has existed for a long time,
regardless of Zubulake.  On the other hand, the cost of retaining a
litigator for the remaining actions is more than a little over the top.
My experience has been that organizations are often uninterested third
parties.  There responsibility if to provide information to parties that
are actually in the fight, not participate in the action.  Any corporate
counsel worth their salt should be able to handle these, regardless of
their litigation prowess.

One final thought, seasoning is often used to cover up something
undesirable.  Not sure I want those folks around all the time.

Bill R

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