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Intel's Top Execs Failed To Comply With E-Mail Retention Policy In AMD Antitrust Suit

Intel has acknowledged the loss of potential e-mail evidence due to human error, but says there's no evidence that any relevant material was lost.
Intel chief executive Paul Otellini and chairman Craig Barrett are among the top executives who failed to comply with an e-mail retention policy the chipmaker put into place after the filing of an antitrust suit by rival Advance Micro Devices, hearing transcripts provided by AMD show.

AMD on Sunday e-mailed to reporters transcripts of last week's hearing before a court-appointed special master in charge of the process of gathering evidence from both sides. Intel on Monday accused AMD of trying "to sway the public and the press before all the facts are in."

Intel has acknowledged the loss of potential e-mail evidence due to human error. While the chipmaker has said there's no evidence that any relevant material was lost, AMD has painted a darker picture, accusing its adversary of the "destruction of potentially massive amounts of evidence."

The stakes are high because if U.S. District Court Judge Joseph Farnan Jr. decides that Intel failed to take proper steps to save evidence, he could fine the companies million of dollars. 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.

Farnan last week gave Intel 30 days to figure out whether any relevant e-mails were lost and to assess their importance as evidence. On Wednesday, both sides met with Special Master Vincent J. Poppiti to discuss the matter.

During the hearing, Intel lawyers acknowledged that Otellini, Barrett, and Sean Maloney, head of worldwide sales and marketing, did not comply with e-mail-retention policies the company put into place after AMD filed its suit in June 2005 in Delaware. The suit accused Intel of using improper tactics to maintain its monopoly in the PC market.

There was no indication that the noncompliance by the senior executives was intentional. In the case of Otellini, he believed that Intel's IT department was automatically backing up his e-mail, so he didn't have to retain them, according to Intel. The company did not launch an automated system for saving e-mail from people whose correspondences could be relevant in the case until mid-October.

Intel spokesman Chuck Mulloy declined to comment on the specific issues drawn from the transcript, saying the discussion in the meeting was related to the process of determining the potential evidence lost, and not the actual information. Intel is scheduled to provide a full report to Poppiti by April 10.

"As you can tell by reading this transcript the lapses are a very small portion of the tens of millions of pages of documents and there is no evidence whatsoever that any relevant e-mails or documents have been lost," Mulloy said in an e-mail. "The fact that they've sent the transcript to a number of reporters attempting to generate additional coverage is simply another attempt by AMD to sway the public and the press before all the facts are in."