Intel, AMD Ordered To Work On Fix For Lost E-Mail In Antitrust Suit

U.S. District Court Judge Joseph Farnan Jr. in Delaware gave Intel 30 days to determine whether any relevant e-mail was lost since the suit was filed in June 2005, and the importance of the missing messages as evidence, said Intel spokesman Chuck Mulloy, who attended the 20-minute hearing.

AMD would then have two weeks to respond to Intel's findings, and Intel would have 10 days to respond to AMD, Mulloy said. The back-and-forth would take place with a court-appointed mediator who would later report back to Farnan. The judge would then make a ruling, which, depending on the findings, could include sanctions against Intel.

Intel in court filings on Monday acknowledged that for three and a half 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.

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According to Mulloy, Farnan indicated that Intel's failings didn't appear to be intentional, but were the result of human errors. AMD, however, views the matter as more serious, claiming Intel is responsible for the "destruction of potentially massive amounts of evidence, reaching to the highest executive levels of the company."

"Given the obvious implications to the administration of justice, it is exactly right that Intel must now prepare a full accounting, fashion an effective remedy, and be accountable for the loss of evidence," Thomas M. McCoy, chief administrative officer and executive VP of legal affairs for AMD, said in an e-mailed statement.

Intel insists that despite AMD's protests, there's no indication that any of the lost e-mails were pertinent to the case or contained any damaging evidence against Intel. "We're in the process of assessing it, and there's no way we or AMD can know what may or may not be missing," Mulloy said.

Whether Intel can convince the judge that it took the proper steps to save evidence is pivotal to avoid dire legal consequences such as 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've been detrimental to Intel's defense. Such a move could play a role in swaying the jury toward AMD.

Mulloy expects Farnan to take up the matter again in May. In the meantime, Intel plans to deliver the equivalent of 30 million pages of potential evidence to AMD, which adds to the 17 million pages that have already been handed over.

AMD sued Intel in Delaware, accusing its rival in the semiconductor market of using improper tactics to maintain its monopoly with PC manufacturers.

Editor's note: This story was expanded at 4:30 p.m. to add AMD's comments.