Whether Intel suffers severe legal consequences for failing to save all potential evidence in Advanced Micro Devices' antitrust lawsuit against the chipmaker will depend in large part on whether Intel can convince a judge it followed best practices.
Intel disclosed Monday that it failed save potentially relevant e-mail. It's scheduled to join AMD Wednesday at a status hearing to discuss the issue before U.S. District Court Judge Joseph Farnan Jr. in Delaware. The hearing stems from a 2005 lawsuit in which AMD accused its rival of improper tactics to maintain its monopoly in the PC market.
At least one expert said Tuesday that the procedures Intel put into place to avoid the destruction of internal e-mails appeared to be lacking. Of particular concern was Intel's decision early in the process to make employees responsible for moving relevant e-mail to the hard drives of their computers to avoid having them purged automatically by the e-mail system. "They're going to have a very hard time defending their process," Robert Brownstone, law and technology director at the law firm Fenwick & West in San Francisco, said.
Whether Intel can convince the judge that it took the proper steps to save evidence is pivotal to avoid dire legal consequences that could result in millions of dollars in fines. Worse, the judge could decide during the trial to instruct the jury that they should assume that the e-mails lost would have been detrimental to Intel's defense. Such a move could play a role in swaying the jury toward AMD.
Intel acknowledges that for three and a half months after AMD filed its suit in Delaware in June 27, 2005, a small number of hundreds of employees whose e-mail was deemed as potential evidence failed to move all messages to their hard drive, which means the e-mail would eventually have been purged automatically. In addition, a "few" employees believed erroneously that Intel's IT group was automatically saving their e-mails. Nevertheless, the lost e-mails amounted to "an extremely small percentage of the many millions of pages of documents," Intel spokesman Tom Beerman said.
AMD in its letter to Farnan painted a far darker picture, saying "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."
"Everything that could have gone wrong did go wrong," AMD lawyers said in response to Intel's disclosure.
After reading the filings, Brownstone said Intel's decision to leave it to employees to save relevant e-mail until it could launch an automated system in mid-October 2005 would be difficult to justify legally. "It would never be a best practice to have people dragging anything to their hard drives," he said. "I'm not seeing how that was the way to go."
Beerman said Intel acknowledges "that there had been lapses in our document retention program."
"(Nevertheless), this issue should not have any bearing or impact on the case," Beerman said.
That decision, however, will rest with Judge Farnan.