In an unpublished statement to the U.S. District Court of Delaware, AMD alleges Intel allowed the destruction of evidence in pending antitrust litigation.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.”
Intel’s current email system automatically purges emails sent or received by its employees every 35 days. Senior executive data is purged every 45 to 60 days. Additionally, Intel’s backup system recycles every other cycle — immediately overwriting any backup data during tape rotation.
AMD alleges that more than a third of 1,027 case-specific Intel employees did not receive instructions to retain their data after the 2005 case initiation. Of the individuals who retained data, AMD alleges the majority did not retain “sent” emails. These employees, dubbed “custodians,” are persons of interest in the legal proceedings.
According to Intel, 217 of these 1,027 custodians have been “identified,” and must retain all data as per instruction of the court. AMD has the right to identify another 254 employees for court scrutiny of data — to date AMD has already identified 74 of those 254.
Intel admits the data lapse, claiming “Intel does not have weekly back-up tapes for every custodian on the custodian list. Some were inadvertently not migrated to the server in 2005, and some, who were later identified, were not migrated on such identification. In addition, some weekly back-up tapes appear to have been recycled.”
Intel’s letter to Judge Joseph Farnan also explains that layoffs and corporate restructuring in 2006 caused some oversight in the data retention.
“In the course of routine work on the case we learned that a small percentage of post-filing e-mail was not being retained in the way we believed it was. This led to a broader study and the implementation of new procedures,” Intel spokesman Chuck Malloy said to Global Tech News. “We are still actively checking the availability of back-up tapes and secondary sources to find every bit of e-mail in question. We haven’t yet finished that effort.”
The AMD report counters, “AMD always believed — and for good reason, still believes — that the most probative evidence of Intel exclusion would reside in the electronic files and documents Intel created after the lawsuit started, evidence that Intel would be obligated to preserve.”
AMD has asked the court to have Intel supply a list documenting a custodian-by-custodian tally of the retention inventory and any salvageable backup tapes.
Expect the official trial for the proceedings to start in 2009. Statements made by AMD and Intel in court may be published later this week.