AMD Curious About Reported $10M Intel 'Discovery Management Program'

By Scott M. Fulton, III, BetaNews

April 11, 2007, 5:33 PM

Yesterday, attorneys for AMD suggested a timetable under which Intel could turn over information to the court in their ongoing antitrust trial, explaining who was delegated to preserve which documents, and perhaps shedding light on how several were - even if temporarily - lost.

In a suggested ruling for Judge Joseph A. Farnan, AMD suggested that Intel have until April 27 - just over two weeks from now - to provide the court with 46 specifically listed items falling under 31 categories. Included in this list is a request for an explanation of a citation in a Bloomberg News report last month, where Intel general counsel D. Bruce Sewell told a gathering of attorneys at the Argyle Executive Forum in New York that one Intel IT manager may have been solely responsible for the misplacement of e-mails from 151 Intel employees, including its most senior executives.

Sewell was reportedly describing the problem by way of an illustration for his colleagues: specifically, that a company can spend $10 million on a "discovery management program," only to have all those efforts go up in smoke on account of one IT manager failing to notice an Excel spreadsheet listing employees, had a "Sheet2" tab on the bottom. Apparently this was the first AMD had heard of such a program.

Bloomberg quoted Sewell as having told the gathering the following: "We've got a $10 million discovery-management program, and yet that human interface can often be overlooked...Talk to your IT department."

All parties in the lawsuit require this documentation not only to determine how material that may have been relevant to the case was lost, but also to ascertain whether some of it may yet be recoverable. Intel and AMD had agreed in advance on a procedure under which IT managers designated by both sides could select certain Intel employees to provide e-mails deemed most likely to be relevant to the case. Even in the information age, it would be a likely impossibility to force Intel to instead back up every e-mail sent by anyone in the company's authority over a multi-year span of time.

If Intel can explain how and where the chain of authority broke down, the Special Master handling discovery matters, Judge Vincent Poppiti, may be able to independently evaluate the relevant value of the data that was lost, which is now important in ascertaining the legal value of the data that wasn't lost.

After the information is turned over, AMD requests that Intel's legal counsel be formally deposed on the matter of document preservation issues. If Sewell's comments were meant to be a specific example rather than a general illustration, it would suggest that somewhere, a more complex audit trail may exist than was previously believed. It could also suggest that Intel paid too much for its spreadsheet.