US legal discovery is an horrendous nightmare

AMD is litigating against Intel, in case you hadn't noticed, in an anti-trust action. As part of the preparation for the court hearing, scheduled some time in 2009, Intel has had to turn over documents to AMD. The amount of documentation involved is just staggering. According to a report Intel has so far delivered 17 million pages of documents to AMD. Tens of millions of pages of documentation will eventually have to be delivered to AMD. The cost to Intel of preparing these tens of millions of pages will run into millions of dollars. Hundreds of its employees will be involved.

An insight into that has been given by admissions by Intel that it may have inadvertently deleted e-mails pertaining to the case which it now cannot deliver to AMD. There were 1,027 employees identified by Intel as holding potentially relevant information. They should all have been contacted so that all this information was preserved for the discovery team. During its discovery process Intel realised that 400 employees who had this potentially relevant information were not told to preserve it.

Standard Intel e-mail operating procedures ran unchanged in their cases.

According to a Daily Tech report: "Intel's current email system automatically purges emails sent or received by its employees every 35 days. Senior executive data is purged every 45 to 60 days. Additionally, Intel's backup system recycles every other cycle -- immediately overwriting any backup data during tape rotation."

Some of them may be recoverable from backup tapes or other employees. Naturally, finding them in un-indexed backup tapes will make huge numbers of man-hours as possible tapes are mounted and their contents exhaustively restored and checked.

Intel may receive a fine for this lapse if the court views it as unreasonable behaviour. AMD will press the court to impose changes on Intel's existing information preservation procedures. Kicking its opponent when it's down with legally-authorised boots? Oh, yes please.

Tens of millions of documents; one thousand-plus employees - think of the management time and overall expense involved in this. The US courts are like the terminator; they absolutely will not stop, ever, and demand priority to their requests over every other activity. Think millions of dollars.

Additional storage spend is already happening; Intel is installing a new e-mail archiving system to end the current dependence on backup tapes and individual employee actions.

What this means for business and any organisation with US operations or activities that could come under the auspices of the US legal system, is that they should get a comprehensive e-mail archiving system in place. They should also have a comprehensive and up-to-date index of all their unstructured information, its contents, its type, and its location. Only with this in place can you respond well to a US legal discovery request and provide a list of what documents and e-mails your organisation holds that are relevant to the request and can be produced.

Once a discovery activity us under way then you must have an effective means of preventing deletion of such documents.

If it is later shown that you held relevant documents and didn't inform the discovery team, or held them and deleted them then expect a highly-motivated legal opponent and a court outraged at a flouting of its demands. Expect additional paper to flow from you to your legal opponent - dollar bills and lots of them.

People make mistakes so you have to have an automated business-wide e-mail archiving system, and an automated business-wide indexing, classifying, locating and deletion prevention system in place. It is as simple as that. You may as well prepare the project to put these things in place now.

This discovery nightmare is driving us to consolidate and connect all our storage to make activities forced on us by preparedness for legal discovery more manageable.

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