Intel disclosed last month that e-mails that should have been saved might have been deleted, prompting U.S. District Judge Joseph Farnan Jr. to order the chipmaker to determine the importance of missing messages as evidence.
In the report filed with the court Monday evening and sent to InformationWeek, Intel acknowledged the loss of some e-mails that should have been saved after the suit was filed. However, Intel found no evidence that the loss was deliberate and said it was the result of "human error in attempting a challenging task -- in retrospect a task of such magnitude that it probably never could have been accomplished without some lapses."
"Fortunately, because of the ambitious program Intel put into place at the outset, Intel has the ability to remediate potential losses in an individual's e-mails from a multitude of alternative sources, and has a sound basis to believe that ultimately nothing of any genuine significance will prove to have been lost," Intel said in the 42-page report.
An AMD spokesman said in an e-mail that the company's legal counsel was in the process of studying the report and a "very dense and lengthy package of supporting materials" that had been filed with the court under seal as exhibits.
"We will be prepared to say more once we've had an opportunity to assess the materials and talk to witnesses inside Intel under oath regarding their document retention processes and related issues," the spokesman said.
Determining whether Intel was negligent in protecting potential evidence once notified of the lawsuit is important because of the punishment it could face. If Farnan decides Intel failed to take proper steps, he could fine the company million of dollars. Worse, the judge could decide during the trial to instruct jurors 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.
In the report, Intel said human errors are unavoidable in producing what amounts to tens of millions of pages of documents. "This production will encompass many hundreds of Intel employees company-wide -- a massive level of document production almost certainly unmatched in any other case in the history of U.S. litigation."
As to reasons why Intel believed nothing of significance was lost, the company said the missing e-mails were sent by employees after the suit was filed, while all potential evidence before the filing was retained. In addition, Intel had duplicate layers of preservation, so materials not found in one level may be located in another. Also, AMD would eventually receive documents that allow it to determine the terms of every transaction between Intel and its customers, which should address the key issues in the case.
Intel in March acknowledged that for 3-1/2 months after AMD filed its suit on June 27, 2005, a small number of employees whose e-mails were considered potential evidence failed to move all messages to their hard drives, which means they would have been purged automatically from Intel's system. In addition, "a few" employees believed erroneously that Intel's IT group was automatically saving their e-mails.
The disclosure brought an angry response from AMD. While not accusing Intel of intentionally destroying evidence, the company questioned the effectiveness of the procedures Intel put in place to protect potential evidence created after the suit was filed. All available e-mails and documents created before the filing were copied to backup discs.
AMD's suit, filed in Delaware, accuses its rival of using improper tactics to maintain its monopoly with PC manufacturers.