On 10/12/05, Roach, Bill J. <[log in to unmask]> wrote:
> 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.

I think this is a matter of interpreting what was written. lets look
at this scenario. The RM staff produces a destruction authorization
report. The report is delivered to the business unit owner for
authorization. The owner knows that just a few days ago they received
word that some of the records on this list may be subject to an
ongoing audit investigation or lawsuit. No hold notice for this group
of records had been issued at the time the authorization report was
developed and issue. this is how a record related to an ongoing
whatever could get on list. scope expands and narrows all the time.


>  As
> good measure I would throw in situations where increases in retention
> timeframes are reasonably expected.

For every destruction authorization process I developed I included the
fact that the business unit may need the records for some period after
the approved retention date. Since these 'holds' were not the same as
litigation, investigations or audits, the manager was required to
provide some type of written justification. The hold was good for only
6 months or 1 year depending upon the need of the business unit. No
other extensions were allowed.


>
> >>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.<<

This is interesting in that the Zubulake opinions really only have an
affect within the district in which they were issued. There has
already a court case in California in which the court denied the
applicability of the Zubulake requirements. that said I fully expect
that the Zubulake requirements will become what is know as best
practices, and if your organization isn't following them then you'll
be asked why not. And when you're asked that question you will need to
provide solid evidence that your process is as good as if not bette r
than that proposed by Zubulake.


>
> 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.

I agree and disagree. If the hold decision is directly related to
litigation then yes counsel must be consulted. But others must be
consulted if other actions are taken such as tax departments for tax
audits, corporate/internal security with regards to investigations,
business units when the records are being used for a business reason.
In all cases there must be some written justification for why the hold
was put in place and when the hold was removed.

let's be careful with the term standard. This is not a standard in the
normal sense as no standards body has developed or reached a consensus
on this process. The Zubulake requirements are best described as best
practices or guidelines. In today's business environment I don't
believe that the Zubulake guidelines are entirely out of line. If an
organization uses workflow or automated business processes it would be
very easy to keep all parties concerned fully informed  as required by
Zubulake #2 Affirmatively and repeatedly communicate legal holds to
all affected parties.

A good records hold policy will include forms and processes. The forms
are used to document the reason for the hold, the removal of same,
updates, etc. The process is your roadmap for ensuring that you are
consistent in your application of the holds.

pak


--
Peter Kurilecz
Richmond, Va

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