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Intel ordered to dish documents on deleted antitrust lawsuit e-mails

Internal interviews must be disclosed to AMD

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AMD vs Intel Intel has been ordered to hand over secret employee interviews from an internal investigation looking into documents and e-mails that went missing during its antitrust trial with AMD.

The chip giant tried to shield itself from full disclosure of the interviews by claiming they were protected by attorney-client privileges. Intel asked the court to instead accept a summary and self-vindicating conclusion of the investigation as proof the e-mails weren't deleted maliciously.

But Special Master Vincent Poppiti, who is appointed to hear evidence from both companies, has concluded that a pat on the back without evidence isn't good enough.

The latest ruckus in the AMD vs. Intel antitrust lawsuit actually began way back in Fall 2005, when Intel first discovered its rival was suing over alleged anti-competitive practices.

As Intel tells the story, it immediately rolled out a firm, clear document retention policy — three-pronged, like a fancy dessert fork: (1) It began taking e-mail and document snapshots on the server and collecting documents from certain employees. (2) Sent a memo to sales and marketing squads, asking them to retain relevant documents. (3) Asked certain employees to store key documents and e-mails on external backup tapes on a weekly basis.

But the plan hit a brick wall pretty damn fast and hard. Some of those certain employees didn't follow instructions, and a lot of e-mail and documents never went to backup. That's especially bothersome because Intel also decided not to turn off the "auto delete" function of its e-mail system, which removes all mail in an employees mailbox after 35 days. Intel also admitted some "issues" with the "overall coverage of the back-up tapes," and that some of the weekly back-up tapes were actually being recycled after one year.

In February 2007, Intel told AMD and the court that it had discovered serious lapses in the retention plan. What Intel didn't say at the time was it had hired attorneys at the law firm Weil Gotshal & Manges to begin a process of interviewing some 1,023 employees in order to determine their e-mail preservation habits (or lack thereof as it were).

The next month, Intel told the court it would give AMD a list of the offending employees and description of their preservation failures, and provide a better total scope of the issue. The resulting spreadsheet report — which was based on the Weil interviews — claimed that Intel's preservation efforts were simply "misunderstandings or errors by individual employees" and its "investigation has revealed no instance of deliberate deletion to deny AMD access to any information responsive to the allegations in the Complaint."

AMD wasn't very impressed by that conclusion. It shortly filed a motion to get the documents Intel was using as proof of its innocence. Intel replied that it would be happy to produce "relevant documents" from the investigation, but that full document disclosure would be a potential violation of attorney-client privilege and work product doctrine. The interviews, Intel argued, are essentially the same as a lawyer's personal notes.

But AMD argued that Intel only provided the court with "self-serving summaries" of the Weil interviews for the purpose of convincing the court its preservation failures were only a result of human error. It couldn't argue against Intel's claims without seeing the original documents themselves.

Today, the Special Master has ruled that because Intel used the interviews as proof, it in effect waived the attorney-client privilege on the documents.

From the Special Master's filing:

"AMD and the Class Plaintiffs cannot in fairness be expected to blindly rely on Intel's assertions in performing their critically important role of fully informing the Court on the issue."

The only information that will be redacted from the documents given to AMD will be "core work-product," or material that reflects the mental processes of the attorney to analyze and prepare for the case.

Intel has five businesses days to produce the information, unless objections are taken at that time.

A copy of the order is available here. (PDF warning.) ®

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