Intel’s Memogate: Dudes, where are those messages?

Get a better filing system. That, in a nutshell, is the message Advanced Micro Devices plans to present to rival Intel in a Delaware courtroom Wednesday morning.

AMD's lawyers will ask Intel to explain what happened to e-mail messages the company acknowledged it lost on Monday. And it will demand that its rival create a plan to ensure that no other documents disappear during the course of an antitrust suit that dates back to June 2005.

But Memogate, as embarrassing as it may be for Intel, is just a sideshow. The real problems for the chip giant may come as the trial goes forward. AMD lawyers are aching to prove that Intel unfairly blocked it from selling chips to its biggest customers. Intel, AMD charges, threatened to withhold vital price breaks on its processors to deny Intel rival business from big computer makers such as IBM and Hewlett-Packard.

Maybe Intel broke antitrust laws, maybe it didn't. The standards are notoriously difficult to define and seem to shift over time. "[Intel] may think they may have stopped short of the line, but that line may have moved without them noticing," said Mark Ostrau, co-chair of the antitrust practice at Silicon Valley law firm Fenwick and West.

In the meantime, AMD's search to prove Intel broke the law could be damaging enough. Lawyers now use sophisticated electronic search tools to scour such documents for everything from keywords pertaining to the case to sexual innuendo. The more documents, the higher the odds they'll stumble upon an unguarded, embarrassing comment.

And even without any smoking guns, the case has already prompted Intel to make some embarrassing admissions about how it handles e-mail. In a letter to the judge overseeing the case, Intel admitted Monday to a number of document retention "lapses."

For example, some of the Intel employees asked by the company to retain their e-mail failed to move messages from their 'sent box' to their hard drive, where they would have been preserved, Intel's lawyers wrote in the letter. Other employees thought Intel's information technology group would automatically save their e-mail. Still others were not notified that they were obliged to preserve their messages.

"Everything that could have gone wrong did go wrong," AMD wrote in a court filing responding to Intel's disclosure.

Intel has good reason to track the documents down. If the documents aren't found, Intel could be slapped with heavy fines. And the fact that files are missing could become evidence against a company in court, lawyers say.

http://www.forbes.com/home/technology/2007/03/06/amd-intel-lawsuit-tech-cx_bc_0306intel.html