Intel Ordered to Explain Missing Evidence

The Special Master presiding over the discovery of evidence in AMD's antitrust trial against Intel, Vincent Poppiti, today gave Intel five weeks -- until April 10 -- to present a full written account of the custodial process, and the likely failing of that process, under which the company admits potential evidence in that trial was lost.

At that time, Intel must come up with what's being called a "plan of remediation," under which some of that lost data may be recovered, or at least data will be protected against future loss.

Part of the data retention problem, Intel's attorneys believe, may be the unprecedented nature of the trial itself. It would be nice for a company in Intel's position to prove that its size does not lend itself to de facto market monopolization, but in this case, that proof is more difficult to ascertain than for most companies due to Intel's size.

When AMD originally brought its case against Intel in 2005, Intel did take steps to back up its corporate communications, in case any part of them should become subpoenaed. Last December, Special Master Poppiti ordered Intel to turn over documents that might prove exclusionary conduct, including with regard to CPU sales to German retailers.

After then is when the trouble was apparently discovered: Intel had apparently given incomplete instructions, by its attorneys' own admission, to only part of the selected group of employees whose records were to be retained for subpoena.

In a prepared statement this afternoon - breaking AMD's official embargo on the subject - executive vice president for legal affairs Thomas McCoy said, "Today, Intel began to account for its destruction of potentially massive amounts of evidence, reaching to the highest executive levels of the company. Given the obvious implications to the administration of justice, it is exactly right that Intel must now prepare a full accounting, fashion an effective remedy, and be accountable for the loss of evidence."

A hearing to discuss Intel's report and recommendations is likely to be scheduled for mid-May.