AMD Claims Intel Inadvertently Destroyed Evidence in Antitrust Case

Marcus Yam writes "In an unpublished statement to the U.S. District Court of Delaware, AMD alleges Intel allowed the destruction of evidence in pending antitrust litigation. According to the opening letter of the AMD statement, '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.'"

Comments

Well...

[SCPRedMage]

...at least they aren't claiming Intel did it on purpose. I would hate to see AMD turn into the next SCO.

That is a bit silly

[sphealey]

Historically e-mail systems were never designed for intensive archiving and ad-hoc searching across the database. In fact, even the current generation of systems require bolt-on archivers to meet the new federal evidence requirements. And I talk to people every day at very large entities that are still using Outlook Express, local mailbox storage, and have no usable archiving system.

Suggesting that the inability to search e-mail in legacy systems is "destruction of evidence" is more than a bit silly in my personal opinion.

sPh

Re:That is a bit silly

[Chris Burke]

Suggesting that the inability to search e-mail in legacy systems is "destruction of evidence" is more than a bit silly in my personal opinion.

Describing it as accidental destruction of evidence though is perfectly accurate, at least from a non-technical legal point of view.

"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."

That's pretty much what you're describing, right? Large organizations with completely inadequate data retention, which inevitably destroys data irrespective of that data's importance, in large degree because the company just doesn't have a solid plan in place? That's all AMD is alleging, that their system was inadequate to the task, not that Intel deliberately crippled their email system to lose emails they didn't want showing up during discovery. The fact that this isn't uncommon in email systems makes the argument more believable, not less.

If they were alleging deliberate destruction of evidence, that would be a whole different ball of wax.

Data Retention part is True

[Anonymous Coward]

I work at Intel and the retention policy is VERY short on sent items and equally short for all the other mail folders in the inbox. I hear of people losing emails all the time because of this. Hell, I have lost a few sent emails myself. Also, from what I heard (from friends in IT) that we only keep a backup of 7 days of all the exchange server data only for disaster/worst case scenario reasons.

Re:Data Retention part is True

[$RANDOMLUSER]

That sounds reasonably "advertent" to me...
Almost like a policy of data loss.

Re:Data Retention part is True

[networkBoy]

No, it's server resource protection.
If something is needed for archival, then it can be stored appropriately. The simple truth is the bulk of any large org's e-mail is not essential to anything. Why save all of it? make the users save what they need. Personally I like Intel's thought on the issue.
It's not like that can't archive processor designs and such, just why archive spam, inter-office bullsh!t, like love letters, plans for the pub and whatnot (ok, the loveletters may be interesting reading...)
-nB

Re:Data Retention part is True

[DrWho520]

It's not like that can't archive processor designs and such, just why archive spam, inter-office bullsh!t, like love letters, plans for the pub and whatnot (ok, the loveletters may be interesting reading...)
Because "processor designs and such" do not contain intentions, motivations and business decisions based upon anti-competitive practices. Amidst all that noise is possibly an e-mail gem sent to a distribution group describing some, shall we say, shady business decisions. This e-mail could have spurred multiple replies and conversations that would also be of interest to the court. Obliterating the whole moutainside eliminates any chance of finding those diamonds.

Re:Data Retention part is True

[cmacb]

That's exactly what it is. My last months with a large government contractor they had numerous meetings with employees to inform them that they were *not* too retain e-mail, even in private caches. They made it clear that the issue was *not* storage space, admin overhead or anything such as that. They were very open in saying that they wanted the e-mail trail gone in case of a lawsuit. Individuals found hording their own copy of e-mail could be terminated with no prior warning. This was before "Sarbox", so I'm not sure if things have changed since (I certainly hope so!)

Re:Data Retention part is True

[malfunct]

Its actually proper and recommended e-mail retention policy. Anything that is not necessary for business or possibly pending litigation should be deleted after 60 or 90 days. Business necessary e-mail should only be retained until no longer necessary. Anything pending litigation should be turned over to the appropriate legal department for retention. At least this is the policy where I work and it is aided by a managed folder system in exchange. Unfortunately I have no idea how it is set up, I just know I have mail buckets and all mail goes into the short term bucket and its up to me to move the mail to one of the long term buckets so it won't get deleted.

don't be fooled

[sharp-bang]

The claim of poor retention is increasingly a stock claim made by plaintiff's lawyers. The Federal Rules of Civil Procedure increasingly place a discovery burden on all organizations. Anything and everything electronically stored is subject to electronic discovery, and if you don't have a retention policy that deals with what is subject to discovery when litigation is "reasonably foreseeable", you can be sure the opposing attorneys will point that out, even if it is BS.

Pentium bug

[Rastignac]

The documents were not destroyed on purpose. They were destroyed by error due to the division bug of a Pentium 1 processor.
Sorry, AMD.

YRO??

[adam613]

What, exactly, does this have to do with my rights online?

Poor AMD

[wolff000]

I am definitely an AMD CPU fan boy but the corp itself I have no loyalty too especially with stuff like this going on. I doubt few major corporations have a valid working archive of all emails sent and received. I worked for a decent size corp for years ,around 1500 employees with email, and server side we retained 7 days at the most. It would cost a ton and if the allegations are true in Intel's case wouldn't help to have those emails anyway. As stated earlier this is just typical lawyer tactics. It still leaves AMD in a not so great light.

Re:Poor AMD

[mr_matticus]

Why does what AMD's attorneys file in court reflect on the company at all? I doubt these are all AMD staff litigators, and even if they are, they're just doing their jobs. It's not like AMD executives are running legal strategy meetings and writing the complaints.

If you have reason to believe that your opponents have (or may have, or potentially will have) lost (whether due to policy, tampering, or accident) data that may potentially be useful, you make a note of it as early as possible. There are specific windows for making claims in cases, especially when there are potential damages involved. As another poster stated, this is becoming a largely standard claim, much like a demurrer is generally the first response to a complaint, even if the demurrer has virtually no chance of success.

Sheesh

[GregPK]

I have all my emails dating back to like 1998 on my computer and backed up to 3 different hard drives out of which 1 gets replaced every 2 years. I have it organised by person even. I've yet to have a drive fail on my email computer but I don't want it happening anytime soon. I do delete all spam on a semi monthly basis. Sure my file is large but its handy when looking for old programs or emails that need finding for information thats been lost in the corporate structure. It scares my boss a little in that I have every single email we've ever exchanged for the last 6-7 years. But then again I don't work for a fourtune 500 company.

Intel acknowledges losing docs

[strike6]

This isn't an allegation. Intel has acknowledged losing documents. URL:http://www.mercurynews.com/mld/mercurynews/bus iness/16843055.htm

Re:3007

[thedletterman]

Seriously, I've got nowhere near the capital that Intel has, but I have every official email ever sent through my mail servers. Our email policy is "Leave a copy of messages on the server" and "Remove from server when deleted from deleted items". Then they are told to keep official emails at least 30 days, and delete personal emails. Every week, a script archives the mail folders and every month those archives are backed up. I've had to go through emails three years old before to show details of discussions on projects. I think the Federal guidelines of keeping emails is definately smart for business. I hardly think it's worthwhile for ISPs to have to archive tons of spam. Fix the spam problem, and then maybe we'll talk.

Go Down Over This

[Nom du Keyboard]

When the RIAA claimed in court that one of the people it sued had wiped his hard drive and reinstalled the operating system, the court found in the RIAA's favor despite the sheer lack of any evidence on the hard drive. They claimed that the lack of evidence proved his guilt.

When a government contractor returned the notebook computer he'd been given to perform his job with only the files on it that had been there when it had been given to him (government claiming that he was setting up his own competing business during the time he worked for the government, and they expected to find evidence on the notebook once they got it back, but he used, IIRC, a legal secure delete program) they maintainted that the LACK OF data was proof of his guilt.

Does this just happen to the little guy, or should the court now find fully in AMD's favor here? And in the process, send a strong message to all of big business?

After all, this is the same government being pushed to make ISPs retain even more of your personal Internet activities. Shouldn't the punishments be spread around more equally?

Not all email

[erbmjw]

It's not all email from all Intel employees that must be retained

1027 case-specific individuals at Intel were identified and from 2005 case initiation date Intel is supposed to have all of their email retained; of these 1027 case-specific persons AMD is allowed to stipulate 471 for court scrutiny of data.

These employees, dubbed "custodians," are persons of interest in the legal proceedings.

Re:Poor AMD - RTA

[erbmjw]

The court instructed Intel to retain all email for 1027 case-specific individuals from the data of case initiation ie 2005.

This has nothing to do with leaving AMD in a not so great light; but it does have everything to do with Intel not properly following court orders - Intel even admitted they screwed up!

Re:Plausible Deliability

[Ungrounded Lightning]

When you merely fail to meet your obligation to stop destruction, you're not liable. Just ask New Orleans about Bush/Brown/Chertoff/FEMA.

Actually, ask them about Governor Kathleen Blanco and Mayor Ray Nagin.

Making the disaster plan, and executing the plan for the first three days WITHOUT external help, was the responsibility of the locality. FEMA assistance wasn't supposed to be counted on until the fourth day - and even then it's just materiel and money to HELP the state and locality run THEIR plan, not a federal takeover of their responsibilities.

Guess what day they showed up?

Under the Posse Comitatus act the fed can't even send in people without permission from the governor (or a declaration of war against a rebellion). (That's why they gave a bunch of supplies to groups like the Salvation Army to take in - groups which the local officials then blocked from going to the area.)