Lessons Learned from Intel's Lost E-mails

The anti-trust case leveled against Intel by rival AMD in June 2005 has taken some interesting turns relating to e-mail retention. Intel has admitted to AMD and to the courts that it may have inadvertantly deleted e-mail messages that it was required to present during discovery. The judge has recently given Intel until April 17 to respond to AMD specifically on whether the corporation will be able to produce the e-mails (presumably from back-up tapes).

Here's what happened so far:

• Intel had a corporate policy of deleting user e-mails every 35 days (senior execs every 45-60 days), and therefore the company relied solely on employees to back-up their own messages
• Intel was to inform 1000 of its 100,000 employees not to delete their e-mail messages because they might relate to the case
• Early last month Intel informed the judge that some messages pertaining to the case might have gone missing, blaming human error. Many users were not properly instructed about what to preserve (e.g., many saved their received mail but allowed their sent mail to be deleted)
• AMD in response has claimed that Intel's efforts were "half-hearted", stating that Intel "apparently allowed evidence to be destroyed".
• On April 6, the judge gave Intel until April 17th to report on whether or not it will be able to find and present these e-mails. At that point, the judge will rule on Intels actions and if applicable, impose his penalties.

Meanwhile, Intel doesn't even know for sure whether any of the messages deleted actually pertain to the case. They could end up spending $ millions, pouring through back-up tapes, digging through a haystack for a needle they don't even know for certain, exists.

What can business managers, lawyers and IT managers learn from this situation?:

1. E-mail archiving should be automatic. Leaving a decision as important as the preservation of evidence to an office memorandum or executive directive cannot in itself guarantee adherence to today's more stringent rules for civil disclosure.
2. All employees should be informed and well aware of the company's record-retention policy (e.g., Intel says that many of its users didn't save messages because they believed the company was doing it automatically). Even though the company had a policy of automatically deleting emails every 35 days, its employees (at least some of them) weren't aware of it.
3. This case, particularly when seen in context of the new FRCP rules on disclosure of electronic evidence in civil discovery, effectively and once and for all, puts an end to the "smoking gun defence", the all-too-common legal advise given to corporate leaders to deleting e-mail messages regularly in order to destroy potential incriminating evidence.
4. There is nothing about the situation Intel finds itself in that is specific to a large company. Small-to-midsize organizations are equally as likely as Intel to be subjected to the same legal scrutiny of its e-mail records. If you're only a 100-person company and not 100,000 like Intel, maybe instead of presenting 30 million documents and e-mails in discovery, you will only need to disclose 300,000.
5. E-mail messages and their attachments are corporate assets, not personal ones. Therefore, stewardship of these corporate assets is the responsibility of the corporation and not individual employees.
6. Don't ignore the importance of Sent messages. Received messages are only the half of it. Messages an employee sends on behalf of its employer can be every bit as much a business record as the ones he/she receives.

But, I'm not a lawyer. I'm happy to hear other opinions.