AMD Accuses Intel of Destroying Evidence in Antitrust Trial
In a troubling development late Monday, AMD filed a brief with US District Court Judge Joseph J. Farnan, Jr. accusing Intel of having destroyed e-mails and other documentation that may have been important to its antitrust case. The brief comes in response to a letter submitted by Intel's attorneys to Judge Farnan acknowledging the loss of documents that AMD has sought, and blaming Intel's document preservation process for their loss rather than intentional destruction.
“Through what appears to be a combination of gross communication failures, an ill-conceived plan of document retention and lackluster oversight by outside counsel,” reads AMD’s brief, “Intel has apparently allowed evidence to be destroyed. Though all the facts are not in, potentially massive amounts of e-mail correspondence generated and received by Intel executives and employees since the filing of the lawsuit may be irretrievably lost, as may other relevant electronic documents.”
As Intel’s attorneys’ letter to Judge Farnan acknowledges, beginning in July 2005, Intel began an urgent program to retain all backups of current and past company e-mails and communications. In addition to freezing the most current and readily available backup, and archiving all system-wide backups on a weekly basis, employees were asked to retain copies of all their e-mails.
But the communications and business materials for several years belonging to approximately 100,000 Intel employees could yield a database of enormous proportions that would be impossible to either manage or peruse. So in May 2006, Intel and AMD agreed upon a process where certain select employees from lists developed by both companies, called “custodians,” would provide original copies of documentation, in order to avoid redundancy.
Here is where the process apparently fell apart. Intel spokesperson Chuck Mulloy told BetaNews this afternoon, “In the 20 months since this case was first filed, Intel has gone to extraordinary lengths to preserve documents that may be relevant to the lawsuit. The volume of these documents has grown to an enormous amount of material and it continues to grow by hundreds of megabytes month after month.
“In the course of routine work on the case,” Mulloy continued, “we learned that a small percentage of post-filing e-mail was not being retained in the way we believed it was. This led to a broader study and the implementation of new procedures. We are still actively checking the availability of backup tapes and secondary sources to find every bit of e-mail in question. We haven't yet finished that effort.”
As Intel’s attorney’s letter explained, “Intel has identified a number of inadvertent mistakes in the implementation of the...preservation process. These document retention issues are the result of human errors in implementation.” If you’ve ever used Microsoft Outlook and back up your e-mails to separate archive files, you’re probably familiar with this little problem, and maybe you’ve even done this yourself: When you drag-and-drop messages from your Inbox to the Archive Folder, you’re only copying the messages you’ve received, not the ones you’ve sent. Intel’s e-mail system automatically purges messages that haven’t been archived, after a given period – according to AMD, 35 days.
If someone at Intel sent e-mails to someone else at Intel, then certainly at least one employee had to have received them at some time – so it’s possible that fewer archived e-mails were lost than just those that were archived from the Inbox.
But it gets worse from there: The list of custodians agreed upon by Intel and AMD (initially numbering 1,027) was apparently updated...very frequently, by both sides. When an employee was selected to be a custodian of documents, he was supposed to receive a detailed set of instructions. But because the list contents kept shifting back and forth, according to Intel’s lawyers, several hundred Intel employees ended up receiving instructions for retaining documents even though they weren’t on the custodians list, and perhaps hundreds of others – by AMD’s estimate, 384 - didn’t receive instructions at all, or at least not at first.
“AMD first learned about a document preservation ‘problem’ three weeks ago,” reads its brief this afternoon, “though we understand Intel’s counsel discovered the breakdown late last year. Intel’s counsel now seem to be working diligently to attempt to assess and address the data loss and to keep AMD and the Class Plaintiffs informed. But the problems should never have arisen in the first place, and they may have case-impacting significance.”
AMD’s charges today go further, however, claiming that Intel’s IT department in Europe overwrote important backup tapes in 2006; and that its Munich office in particular overwrote backup tapes just three weeks after they were made. As a result, AMD believes, there may be incomplete records for an estimated 50 – 70% of the selected custodians.
“In order to be completely transparent, we voluntarily disclosed the issue to AMD several weeks ago,” Intel’s Mulloy told BetaNews, “and today we have done the same for the court. What I can tell you is that what's involved is a very small percentage of e-mail traffic, we have absolutely no idea whether the e-mail is even relevant to the case, and we are doing everything we can to recover the material.”
AMD’s brief asks Judge Farnan to order Intel to provide a complete accounting of its entire document retention process, in three weeks’ time. AMD has declined further comment on the issue until Wednesday afternoon.
"Intel filed its own brief detailing how it failed to keep the required e-mail records, and destroyed them," Taylor stated. "We filed a separate brief in response. This is not a matter of accusation."