Intel, AMD Battle over Evidence Retention

Intel and AMD once again are feuding over the document retention policies that have been at issue since AMD filed its antitrust lawsuit against Intel four years ago. Both Intel and AMD claim the other is continuing to delete key documents that are hindering their abilities to develop their respective cases and are asking the federal court to sanction their opponents.

Chip makers Intel and Advanced Micro Devices are trading demands for sanctions relating to AMD's lawsuit against its larger rival.

Both AMD and Intel filed motions Oct. 14 in U.S. District Court in Delaware seeking sanctions against each other for failing to adequately retain evidence related to the antitrust suit, filed by AMD in 2005.

Both claim their cases have been harmed by the failure of the other to adequately protect documentary evidence.

Document preservation has been a recurring issue in the case for both companies. Intel officials in 2007 told the court and AMD that there were "lapses and errors in its document retention program," they said in the motion filed Oct. 14, and that after further investigation, they had taken steps to remedy the problems.

As a result, they said, "Intel implemented what is likely the most extensive and expensive document remediation effort ever undertaken" that has cost millions of dollars and resulted in 200 million documents being given to AMD.

In its motion, Intel attacks AMD for what officials say is a faulty document retention policy. Intel officials had questioned AMD's efforts in the past, and accused AMD of stonewalling Intel and the court in efforts to spell out the policy.

Intel officials say that AMD knew as early as January 2005 that it was going to file the lawsuit against Intel and was obligated to institute a document retention program at that point. AMD didn't do that and continued to routinely delete data for seven months after that, they said.

In their motion, AMD officials railed against what they said was an "aggressive auto-delete system" that has resulted in hundreds of thousands of key documents being irretrievably lost.

They also dispute whether the new remediation policies that Intel has touted actually have worked, claiming that evidence continues to be lost.

"These failures caused the permanent destruction of an untold amount of evidence, notwithstanding Intel's much heralded, highly vaunted, but ultimately unsuccessful, attempt at remediation," AMD officials said in their motion.

They accused Intel of not being truthful to the court on the extent of the document deletion policy and what policies it would put in place to stop it.

"Intel could have easily avoided this evidence preservation fiasco had it and its counsel exercised a modicum of diligence in designing and implementing an effective document preservation program, and then taken any meaningful steps to ensure compliance with it, as the law required," AMD said.

"We are confident that the court will affirm our position on Intel's failure to preserve evidence, and see Intel's defensive motion as a meritless distraction tactic," AMD spokesman Michael Silverman said in a statement.

In its lawsuit, AMD officials argue that Intel has used its market dominance-Intel owns more than 80 percent of the worldwide processor market-to unfairly hinder competition.

In May, regulators with the European Commission-the antitrust arm of the European Union-agreed, fining Intel $1.45 billion for what they said were noncompetitive practices.

Intel is appealing the fine, saying EC regulators ignored evidence in the case that favored Intel.

Intel also is being investigated by New York officials.

The Obama administration has promised to be more aggressive in prosecuting antitrust violations, and regulators have said they will pay particular attention to certain industries, including the technology and telecommunications sectors.

The Department of Justice reportedly is making inquiries about possible antitrust practices by IBM in its mainframe business.