Intel admits lapse in document preservation

E-mails related to Advanced Micro Devices' antitrust case against its chipmaking rival might be lost forever because of human error.

Intel disclosed Monday that it has failed to preserve some documents related to Advanced Micro Devices' antitrust suit against it--and AMD pounced on the admission.

Santa Clara, Calif.-based Intel said human error allowed documents--mainly e-mails--to slip through the cracks of a document-retention system put in place after AMD sued Intel in June 2005. AMD alleged that the larger chipmaker used the selective distribution of rebates to prevent certain customers from using AMD's chips.

"Intel is taking this matter very seriously. It very much regrets this happened," the company said in a letter to U.S. District Court Judge Joseph Farnan, who is overseeing the case. Intel and AMD are scheduled to attend a status conference on the case later this week, and will discuss the issue.

"The paradoxical result in a lot of these situations is that the company is worse off than what the document would have shown, because people assume the worst."
--Marc Ostrau, antitrust attorney

AMD was quick to respond to Intel's disclosure. "Through what appears to be a combination of gross communication failures, an ill-conceived plan of document retention and lackluster oversight by outside counsel, Intel has apparently allowed evidence to be destroyed," AMD said in a filing Monday with the U.S. District Court in Delaware.

The day after AMD filed suit, Intel preserved the data on its network, and later sent notices asking about 600 employees to retain specific information, the company said in its letter to Farnan. However, it did not instruct those employees to preserve e-mails from their "sent" folders, and since Intel automatically erases e-mails older than a few weeks or months--depending on the employee--those messages could be gone.

The company also failed to send document-retention notices to employees identified in 2006 as additional targets for the document-retention policy, despite having put them on such a list. And despite having preserved data on its network after the complaint was filed, the company has identified "a small number of backup tapes" in its Munich offices that were erased.

Intel thinks it can assemble some of the missing documents by combing through other documents it has already preserved, said Chuck Mulloy, an Intel spokesman. For example, sent e-mails likely received a reply that was preserved in the sender's inbox, or other Intel employees on the list might have been copied on the sent e-mail and it would have appeared in their inbox.

Also, many of the e-mails in question might have been preserved on weekly backup tapes set up in October 2005 to capture documents from several hundred employees. However, not all the employees on the list were migrated to a special e-mail server set up for that purpose, and some of the tapes have been "recycled," Intel said in its letter.

AMD called on the judge to require Intel to produce a full accounting of its document retention policy and errors, and to investigate possible remedial action.

"Although Intel has agreed to restore all data captured in the thousands of backup tapes it made and preserved, no one can say with any degree of confidence that this will put Humpty-Dumpty back together again, particularly as to the documents of the one-third of custodians who were never placed on any type of retention until last month," AMD said in its court filing.

Because most antitrust cases are about the effects of certain behavior, and not necessarily the behavior itself, it's unlikely that AMD's case would hinge on a single document or e-mail that might be missing, said Marc Ostrau, co-chair of the antitrust practice at the Mountain View, Calif., law firm Fenwick & West. But it sure does look bad, he added.

"The paradoxical result in a lot of these situations is that the company is worse off than what the document would have shown, because people assume the worst," Ostrau said. "When in fact it may be that the documents are completely innocuous, no one can completely be sure."

Problems such as lost documents are generally rare, but occur more and more in the electronic record-keeping era, Ostrau said. "The fact is that complying with your document retention policies is really hard in this day and age," he said. In fact, Fenwick & West has a group of lawyers and technology professionals dedicated solely to managing electronic records.

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