On March 6, 2007, the Wall Street Journal reported that Intel Corp. (“Intel”) failed to maintain certain e-mails relevant to Advanced Micro Devices, Inc.’s (“AMD”) antitrust suit against Intel because an automatic purge procedure deleted e-mails on Intel’s computer system every 35 days. While Intel directed certain employees to segregate relevant e-mails so that they would not be purged, not all employees followed such direction.
Intel’s failure to preserve the e-mails could negatively affect the AMD litigation because of the December 1, 2006, amendment to the electronic discovery rules contained in the Federal Rules of Civil Procedure. Under the amendment, Intel’s failure to properly maintain and produce electronic information may result in fines which may range into the tens of millions of dollars and/or a direction to a jury to assume the missing electronic information contains evidence that would be negative to Intel’s case.
In order to ensure compliance with the new electronic discovery rules and thus avoid the harsh consequences of failing to comply with them, businesses must do the following:
• Preserve electronically stored information in the same manner as paper documents.
• Implement an electronic information retention policy (the “Policy”) that sets forth the appropriate storage procedures for electronic information relevant to an emerging legal issue or problem.
• Once litigation is reasonably anticipated or notice of potential litigation is received, a “litigation hold” should be implemented which should ensure that all electronic information, including electronic information contained in offline storage materials and external electronic information sources such as PDAs and laptop computers, is properly stored and not deleted or destroyed pursuant to a regularly scheduled purge or destruction of electronic records procedure.
• Once a Policy is in place, be sure that all persons subject to the Policy are aware of the same and understand their responsibilities under the Policy. Thereafter, there should be follow-up that confirms that all persons are complying with the Policy, including the litigation hold requirements to maintain all electronic information relevant to possible litigation.
• Once a request for electronic information is received, be sure that all responsive electronic information is located, properly stored, and produced. By implementing a Policy and training personnel regarding it, a party can help ensure that electronic information is properly maintained in the event litigation occurs at some point in the future. If you have a question about the maintenance of electronic information, please telephone a member of the firm.