Law Firm Sanctioned For Email Spoliation

Posted by Gregg Mayer on Friday, April 18th, 2008   

In a recent court opinion from a sexual harassment lawsuit in Illinois, a judge recently entered sanctions against a law firm for failing to preserve email from one its partners.

The case, Wells v. Berger, Newmark & Fenchel, involved explicit email that one of the law firm’s partners allegedly sent to Wells, a paralegal at the firm. The email would have been relevant to Wells’ claims.

The firm was notified about Wells’ allegations in December 2005. However, the firm took no steps to preserve the partner’s computer – or any email sent from it – until the spring of 2007. Consequently, an unknown number of email messages were lost.

[The law firm partner] testified that he deleted all emails with sexual images on them. When [the partner’s] hard drive was finally searched, it yielded very little, and [the] computer consultant attested he could not determine how many files were permanently lost.

The law firm tried to argue it did not have a duty to preserve the email. The court flatly refuted this argument, noting the initial investigation of Wells’ allegations by the Illinois Department of Human Rights specifically made specific mention of the offensive email messages in 2005.

Consequently, the court said it will read a statement to the jury that the law firm failed to preserve the email. Moreover, the law firm will be prohibited at trial from arguing that the absence of explicit email supports its argument that there was no harassment.

Courts consider it a serious problem when parties fail to preserve ESI after a litigation hold is in place. As a result, sanctions are often forthcoming. CIOs should always discuss with legal counsel any issues that may arise about a duty to preserve in order to avoid sanctions in subsequent litigation.

Purposeful Email Deletion Results In Sanctions and Scolding

Posted by Gregg Mayer on Friday, April 11th, 2008   

When email is subpoenaed under the Federal Rules of Civil Procedure, the last thing an individual should do is delete the email and hope the whole mess goes away.

Nevertheless, that’s apparently what a former Texas district attorney did when he was subpoenaed for email from his office. As a result, the court on March 28 held the former DA in contempt, fining him and calling all of his excuses “implausible.”

The case, In re Rosenthal, stems from a civil rights lawsuit in Texas. As part of the case, the plaintiffs sought email communications from Harris County District Attorney Charles Rosenthal to the Harris County Sheriff, among other officials.

At first, the county officials said they “fully complied” with the email request, noting of the 12,785 email messages retrieved during a search, only 61 were relevant to the case.

After more wrangling over what should be disclosed, the plaintiffs argued that not only did the county delay in producing email, but that Rosenthal purposely deleted 2,500 email messages that could no longer be recovered. Astonishingly, Rosenthal acknowledged he did delete the email after he was on notice to preserve the messages:

The respondents admit that Rosenthal deleted e-mails that were the subject of the October 31 subpoena. However, they argue that he did not delete or attempt to delete all e-mails responsive to that subpoena. Rosenthal also asserts that he did not act in concert with the other respondents or seek help from anyone in deleting his e-mails. He contends that at the time that he deleted his e-mails, he believed them to be available for an indefinite period of time on back-up tapes maintained by Harris County Information Systems personnel. Further, Rosenthal contends that he committed error by deleting the e-mails only because he assumed that his counsel…had also printed a hard copy of each email.

The court almost seemed baffled by the blatant disregard of court rules.

At the outset, it is important to note that Rosenthal was familiar with the rules governing the discovery process…Indeed, during the relevant period, he was the District Attorney of Harris County, Texas with more than 40 years of legal experience.

Rosenthal offered a host of hollow excuses: (1) thought there were existing hard copies, (2) thought they were permanently stored in the network’s back-up tapes, (3) wanted to reduce the “large volume of email visible” on his desktop, (4) wanted to be more efficient at work, and (5) wanted to free up memory space.

The court responded:

There is no evidence that Rosenthal’s computer memory space was threatened by additional e-mails or that, in fact, it was short of space. Hence, these reasons – all implausible inconsistencies – defy the law of common sense…This conduct reveals a man confident in his status, entrenched in his brand of law. He would not or could not acknowledge an authority beyond himself. And, like the County Attorneys who appeared earlier in this case, Rosenthal reposes in the idolatry of their own perverted wisdom.

Ultimately, the court held Rosenthal in contempt and monetarily sanctioned him. The court also sanctioned Rosenthal’s attorney representing him in the lawsuit, describing the attorney’s conduct “unprincipled and dilatory, at best, constituting a deliberate indifference” to the court’s orders.

Time and again on CIOLaw.org, we’ve highlighted the dumb ways individuals try to outsmart the court system by deleting – or similarly throwing away – ESI. It never works.

CIOs should ensure they have an archiving system that reliably and effectively stores email and other ESI. Moreover, the system has to preclude rogue activity by end-users who may think it is better to delete email messages that they should preserve. It always backfires, even against former district attorneys.

Read another short post about this case and the court order itself at the terrific “ride the lightning” blog.

DaimlerChrysler Faces Claims Of Spoliation Of ESI

Posted by Gregg Mayer on Tuesday, April 1st, 2008   

A federal judge ruled in March that a plaintiff may bring spoliation claims against DaimlerChrysler Motors Company since the giant automobile manufacturer failed to implement a legal hold.

The case, Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Company, involves a breach of contract case. Essentially, Schmidt claims DaimlerChrysler breached a settlement agreement to let Schmidt open a Chrysler franchise.

Schmidt filed a lawsuit in 2004. At that time, DaimlerChrysler would have been under a duty to preserve all relevant electronically stored information (“ESI”).

During discovery of the litigation, Schmidt learned DaimlerChrysler had not preserved ESI. Schmidt filed a motion with the court to add a claim of spoliation against DaimlerChrysler. This is called a Motion To Amend. Schmidt alleged:

DaimlerChrysler (1) failed to implement a litigation hold to prevent the destruction of evidence after the complaint was filed…and (2) intentionally destroyed evidence, including replacing employee hard drives.

The court agreed with Schmidt, explaining that if DaimlerChrysler altered or replaced hard drives, then that would impact Schmidt’s ability to prove its case. Consequently, Schmidt is permitted to amend the initial complaint to add a claim for spoliation of evidence.

There has been, and probably will continue to be, discovery as to the destruction of evidence for the purposes of the adverse inference instruction. Any evidence developed in that regard might become known to the jury as a predicate for an adverse inference instruction.

Legal holds are crucial to avoid spoliation claims. CIOs must consult with legal counsel if ever any issues arise that might require preservation of ESI.

Lightning Lie Results In Sanctions For Spoliation Of ESI

Posted by Gregg Mayer on Monday, March 31st, 2008   

As noted here and here on CIOLaw.org, it is never a good idea to try to destroy ESI after a legal hold is triggered creating a duty to preserve the information. Here’s is another example of why:

In Great American Ins. Co. of New York v. Lowry Development, the insurance company Great American wanted to see the personal computer files of Danny Groves, who operated Groves & Associates, which was a party in the litigation. Groves used his personal computer for business correspondence, including sending email, to the insurance company.

At first, Groves said lightning had damaged his computer and it was not repairable. As a result, he said, he just abandoned it with the technician.

Later, apparently forgetting his first response, Groves said he had the computer, but that the motherboard was damaged by lightning and a computer technician told him that all of the files were lost.

The insurance company did the obvious: it called the computer technician. The technician swore in an affidavit that he was able to fix the computer and none of the files were lost.

In response, Groves said what he really did was throw the computer away after it malfunctioned a second time following the repair from the lightning strike. Needless to say, the court had a hard time believing him:

Groves offers no explanation for his untruthful testimony or for his inaccurate and incomplete response to Great American’s request for inspection…I am of the opinion that Great American has established, by clear and convincing evidence, that the destruction of this computer has deprived the parties and the Court of the benefit of any records that may have been contained in the computer hard drive.

Consequently, the court said it would read an adverse inference instruction at trial and lower the burden of proof for Great American on one of its claims.

Court Considering Sanctions Against USDA For ESI Spoliation

Posted by Gregg Mayer on Friday, March 28th, 2008   

In a decision this month, a district court has indicated it may sanction the U.S. Department of Agriculture for failing to preserve electronically stored information (“ESI”).

In Consumer Federation of America v. U.S. Dep’t of Agriculture, the CFA requested in 2004 copies of official calendars – including related ESI – maintained by certain USDA officials. The USDA at first refused, but then was ordered to produce the information in 2006 by the Court of Appeals for the District of Columbia.

However, the USDA never implemented a legal hold until after the 2006 order. Consequently, ESI related to the request was never archived and it was overwritten before it could be produced to the CFA.

The court observed:

In this case, it is clear that defendant’s initial searches were inadequate. Indeed, counsel for the defendant acknowledged during oral argument that the documents in this case were ‘not handled in the way they should have been…[However] the defendant has [subsequently] conducted – albeit belatedly – a search reasonably calculated to under all relevant documents…

Nevertheless, it appears some ESI is irretrievably lost. As a result, the court is considering sanctions against the USDA:

In view of defendant’s acknowledgement during oral argument that its search was not handled as well as it might have been, and in order to ensure that defendant carries out future FOIA searches responsibly from the outset, the Court directs defendant to file a supplemental declaration detailing: (1) the specific steps the agency will take when responding to a FOIA request, particularly one including electronic documents; and (2) the steps, if any, the agency has taken to correct the problems that led to the loss of responsive documents in this case.

The USDA has until April 30 to file its supplemental pleading with the court.

AMD v. Intel Part Three: Costly Remediation In Restoring Lost Email And Other ESI

Posted by Gregg Mayer on Friday, March 28th, 2008   

Read Part One in this three-part series about the ongoing AMD v. Intel litigation. 

Read Part Two here.   

In this third part, we look at the ways Intel proposed to restore the missing ESI, including the multimillion dollar remediation plan.

By the time Intel filed it Remediation Plan to recover lost email, it estimated it had already spent approximately $3.3 million in outside vendor costs in its efforts to restore back-up tapes. Intel estimated it would spend “millions more” to complete all of the remediation.

According to Intel’s Remediation Plan:

Intel is cataloging, indexing and, to the extent appropriate, restoring thousands of backup tapes. Intel is willing to undertake this massive effort because it regrets the lapse in its retention practices, wants to set them right, and wishes to get the case back on the path to being resolved on the merits.

Intel is relying on “complaint freeze tapes” and “weekly backup tapes” in its efforts to restore as much of the data as possible. Intel concedes, however, that not all of the information lost due to the problems with the litigation hold will be retrieved.

In its efforts to avoid sanctions, Intel proposed the following remediation:

It re-issued its litigation hold notice, and will send out reminders every six months

Intel is also calling by telephone all 1,023 custodians to verbally remind them of the litigation hold

The legal department will have the say-so over whether any laptops in the future can be scrubbed

Intel will harvest and re-harvest all ESI from custodians working for Intel

Intel utilized an email archive company to capture all of the email from the custodians as a way to retain all relevant email

AMD has argued that Intel has not been forthright about the amount of data lost; however, AMD supported Intel’s decision to move ahead with its remediation plan.

No final cost is determined, but it will likely be in the tens of millions. Intel describes it as a “perhaps unprecedented” amount of resources to implement the Remediation Plan. AMD argues no matter how much Intel spends, that’s not an indicator of how much was lost because some data will be irretrievably gone.

AMD has said:  

Any honest assessment of this fiasco requires Intel to acknowledge that it cannot remediate the irremediable.

The court approved Intel’s plan on October 22, 2007.

Potential sanctions from the court – including a spoliation finding – still loom, despite Intel’s efforts to restore the data. In the court’s order approving the Remediation Plan, the court states:

(A)lthough [plaintiffs] acknowledge that Intel’s Proposed Remediation Plan contains all elements that should reasonably be required of Intel under the circumstances to remediate its documents preservation lapses, Plaintiffs do not acknowledge or concede that Intel’s Proposed Remediation Plan, even if fully executed, will effectively or substantially remediate Intel’s lapses, and for which lapses Plaintiffs specifically reserve the right to seek sanction.

In short, after discovery ends, AMD may – likely will – move for sanctions against Intel, including asking for an adverse inference instruction to be given to the jury. As has been forewarned by the Zubulake case, an adverse jury instruction could result in a multimillion dollar verdict. That remains to be seen for AMD v. Intel.

Sanctions For Failing To Disclose ‘Unstripped’ ESI, But Not For Deleting ‘Smoking Gun’ Email

Posted by Gregg Mayer on Thursday, March 27th, 2008   

In an ongoing intellectual property lawsuit between ClearOne Communications and WideBand Solutions, the judge was recently faced with two e-Discovery issues: (1) should he sanction WideBand for failing to disclose a “smoking gun” email, and (2) should he sanction WideBand for only disclosing a stripped version of a source code when ClearOne had requested another version of source code with comments.

In the end, the court sanctioned WideBand for misrepresenting it did not have a source code with comments. The court ordered an adverse inference instruction.

The court did not sanction WideBand for failing to disclose the “smoking gun” email. The court reasoned that since the email was automatically deleted from the company’s “sent” folders as part of its routine retention policy, then sanctions were not warranted. However, the court did describe this type of retention policy as a “significant irregularity” and “questionable.”

Here’s a more detailed rundown of the e-Discovery issues:

First, ClearOne sought a sanction against WideBand for failing to disclose an email sent by WideBand’s founder that was relevant to the litigation. The email surfaced when the company that received it disclosed the email in litigation. WideBand said the email had been automatically deleted from its system as part of its policy not to retain any items in the “sent” folder.

The court found WideBand’s deletion policy unusual:

For any business this is a significant irregularity; almost unimaginable for a technology company; and even more unlikely for a person of [the founder’s] importance in such a company.

However, since WideBand followed its routine policy in good faith, then the court opted not to sanction the company since it was not under a duty to preserve that email right after it was sent.

Second, ClearOne accused WideBand of stripping comments from source code that WideBand had provided to another party. The source code was at the heart of the infringement litigation.

ClearOne wanted “any and all versions, derivatives, and forms of the computer code.” WideBand only disclosed a stripped version of the code.

Of course, as it was discovered at the end of May, there was another copy of the source code and it does contain comments. Very shortly after this discovery, the source code with comments was provided to ClearOne.

During a deposition, a WideBand representative failed to disclose there existed a source code with comments, even though he was asked about it. As a result, the court ordered an adverse inference instruction against WideBand.

This is a serious remedy for a serious situation. It is not dispositive or case-terminating remedy, but it is significant. Such a jury instruction will have a considerable impact on the jury.

Read an analysis of the case and the court’s opinion here.

AMD v. Intel Part Two: The Mistakes Made And The Data Lost

Posted by Gregg Mayer on Friday, March 21st, 2008   

In Part I, we explored the obstacles Intel faced in implementing a massive legal hold.  In this part, we discuss the mistakes made and the data lost as a result of failing to implement a 100-percent effect legal hold across the company.

In this Part II, we explore the mistakes Intel made in trying to implement its legal hold.  Intel blames various mistakes made by individuals - such as failing to notify specific employees about the hold.  

Humans – not the policy – were the problem when Intel discovered it lost thousands of email messages, according to Intel.

These human errors were “misunderstandings or errors by individual employees, with ongoing day to day business responsibilities, working diligently to carry out the complex and unprecedented scope of preservation obligations in this case,” according to the company. It was not an intentional effort to delete email to prevent AMD from seeing them, according to Intel.

Of course, human errors or not, failing to preserve email when a litigation hold is in place will be costly. The party will either wind up paying to restore backup tapes – as Intel is having to do – or worse, the judge will order an adverse inference instruction, possibly even ordering a default judgment. An adverse instruction or other court-ordered sanction is still possible here.

So how much and what email was lost in Intel’s case?

Here’s a breakdown of what Intel acknowledges:

The first problem: Several custodians identified by Intel failed to properly save email messages as they were supposed to do. Some of those individuals failed to archive “sent” items from their email. Others failed to archive email for the period of time required. Still others failed to archive all of the proper email messages. Adding to the troubles, some of the custodians had computer crashes or other technical problems that caused a loss of data.
Consequently, these individual losses resulted in lost email.

The second problem: Some of the “custodians” were not told about the litigation hold by the company’s in-house counsel. This occurred for “newly selected” custodians as the list of custodians evolved. As a result, about 378 employees did not get word of the notice until February and March of 2007.

The third problem: Departed employees. According to Intel, 73 employees left and Intel only captured the hard drives for 60 of them. Thirteen were missed.

Backup sources exist for some of these lost email messages, but it will cost Intel millions to retrieve. Moreover, it appears at least some of the data may be lost forever.

AMD summarizes Intel’s losses as:

(C)ombined with the reckless decision to leave its auto-delete system running after this litigation began, one of Intel’s most fundamental ‘lapses’ was its failure to notify hundreds of its Custodians of their obligation to preserve evidence. All told, 378 of Intel’s Custodians, or 37% of the individuals on its Custodian List, received no evidence preservation instructions until late February or early March 2007 – twenty-one months after AMD and the Class commenced suit – or, in the case of employees who left Intel in the interim, not at all.

Intel has started taking steps to retrieve the data that it can. Without question, it will be expensive.

NEXT FRIDAY: Part Three - Intel’s proposed remedial measures and its cost

Hiding ‘Smoking Gun’ ESI Worsens Impact

Posted by Gregg Mayer on Thursday, March 20th, 2008   

As noted in a previous post , attempting to throw away damaging evidence – including trying to hide email during litigation – is never a good idea. 

For whatever reason, it always seems that evidence finds its way into the courtroom.  When it does, the consequences are worse than if the evidence had just been disclosed in the first place.

A classic example is Qantum Communications Corp. v. Star Broadcasting, Inc, a 2007 case that involved a seller of radio station who tried to hide email messages.

In this case, Quantum, a potential buyer of a radio station, had an agreement with the seller, Star Broadcasting.  This agreement provided that there would be no additional negotiations for the purchase of the station while the agreement was in effect.  This is called a “No Shop” provision.  On April 14, 2005, the seller sent a termination notice to Quantum and then sold the station to another buyer.  Expectantly, Qantum sued. 

In the course of the litigation, Qantum wanted to inspect email from Star Broadcasting.  Particularly, Qantum was looking for communications with other buyers while the “No Shop” provision was in effect. 

Star produced hundreds of documents, but no email before March 2, 2005, which Qantum thought suspicious.  Moreover, Star had produced a relevant email but failed to produce an attachment with it.  

Consequently, Qantum went to a third party to find the missing email messages.  Not only did Qantum get the email, but it found the missing attachment too.  This evidence directly contradicted Star representatives’ testimony and helped prove Qantum’s case.  It revealed apparent negotiations with another buyer.  As the court explained:

[T]his Court concludes that Defendants engaged in an unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate a matter by unfairly hampering the presentation of the opposing party’s claim…

Consequently, the court sanctioned Star by entering a default judgment.  In litigation, a default judgment is the ultimate sanction because it means a court decides – not a jury – who loses. 

Granted, Star may have lost the case anyway.   The email it tried to hide was damaging to its defense.  But attempting to deceive the court guaranteed Star would lose.  Moreover, it meant Star had to pay the attorney fees for Qantum as well.  In short, the decision to hide the email proved more costly than just being honest about at the outset. 

The court’s opinion has been posted online.

AMD v. Intel Part One: A Look At The ‘Largest Electronic Production In History’

Posted by Gregg Mayer on Friday, March 14th, 2008   

Introduction 

AMD v. Intel is one of the best known e-Discovery cases currently underway. Here is a quick summary of the case so far: AMD sued Intel in 2005 for antitrust violations, Intel destroyed or lost email that it was supposed to save under a litigation hold, Intel is going through a remediation plan to restore the email (although it could still face sanctions from the court), and now the New York Attorney General is exploring antitrust violations against Intel.

It’s a nasty case.

From an e-Discovery perspective, AMD v. Intel illustrates how costly it can be for big companies to implement massive legal holds across hundreds – if not thousands – of employees. Millions of email messages pass through large companies every day. Sorting through the email during litigation, preserving email that should be preserved, is a monumental task. The breadth of the ESI is simply staggering.

One of the lawyers involved in the AMD v. Intel litigation in Delaware said the case could involve “the largest electronic production in history or maybe this will be the case that proves you can’t do it,” according to the Remediation Plan filed by Intel in 2007.

In a three-part series of posts, CIOLaw.org, using court filings in this case, will look at the efforts made by Intel to preserve its millions of email messages, what mistakes were made, and how Intel has proposed to remediate the problem.

The court approved Intel’s Remediation Plan on October 22, 2007. However, AMD may still move for sanctions – including a spoliation finding – after the remediation is complete. AMD has already said Intel has not been forthright about the amount of data lost.

It is unlikely Intel can restore every lost message. A spoliation finding – such as an adverse inference instruction to the jury – could be terrible for Intel. Recall Zubulake v. UBS Warburg, a landmark e-Discovery case in which a spoliation finding propelled the jury to award $29 million in damages against UBS. The case forewarns that millions – if not billions – could be lost for spoliation.

Trial in AMD v. Intel is set for April 2009.

Part One: Intel’s Implementation Of Its Litigation Hold

AMD filed its lawsuit June 27, 2005. Intel says it began implementation of its legal hold on June 28.

A litigation hold is a duty placed upon a company to preserve all relevant information, including the all of the email passing in and out of the company.

In 2005, Intel had 100,000 employees working at 124 Intel facilities. They were spread over 57 countries. For IT, Intel maintained 79 IT sites in 27 different countries. Intel employed 9,500 IT professionals.

Intel estimated the company generated as many as 4.6 million email messages per day.

Once a litigation hold was in place, Intel was tasked with retaining all of the email and other ESI related to the litigation.

AMD argues all Intel had to do was turn off its auto-delete policy and the emails would have been retained. On the other hand, Intel argues that it did have a workable retention policy, and the policy was not the problem. Fully implemented, the policy would have worked, according to Intel. The problem was “human error,” according to Intel.

Here’s a list of what the company did to preserve email after the complaint was filed June 27, 2005:

The day after the complaint was filed, Intel began to preserve a company-wide snapshot of email and other electronic documents stored on Intel’s servers as of the week the complaint was filed (“Complaint Freeze Tapes”).

Two days after the complaint was filed, Intel sent a hold notice bulletin to 4,000 Sales and Marketing Group employees with instructions to retain documents related to competition with AMD and competition concerning the sale of CPUs generally.

Four days after the complaint was filed, Intel distributed a more detailed litigation hold notice to 629 employees, and has now provided such notices to approximately 1,500 employees.

Within days of the filing of the complaint, Intel began collecting the electronic and hard copy documents from certain employees – and has now collected materials from hundreds of its employees.

In the Fall of 2005, Intel began a process of preserving, on a weekly basis, the backup tapes containing emails of employees identified as having potential relevance to the lawsuit (“Weekly Backup Tapes”). These tapes were not the primary preservation method, but as a mechanism to fall back on in the event documents could not be obtained directly from the individual employees who originally generated or received the emails.

More recently, as an additional layer of backup, Intel purchased and implemented a new email archive system designed to capture and preserve automatically all incoming and outgoing email messages of currently employed custodians who have been identified on Intel’s Custodian List.

As noted in Intel’s court filing, the company sent a “detailed litigation hold notice” on July 1, 2005 to 629 employees. These employees were determined to have specific information that could be relevant to the litigation.

By August 2005, approximately 848 individuals had received retention notices. Over the next two years, Intel continued to send more retention notices and the list grew to approximately 1,500 employees. Paralegals were dispatched to offices in foreign countries to help retain email.

As a result, Intel claimed its efforts preserved “hundreds of millions of pages of e-mails and other electronic materials.”

On the flip side, Intel’s “lapse” in its retention policy, as the company calls it, resulted in Intel’s acknowledgment in March 2007 that email messages were lost. AMD called it a “stunning public admission.” AMD argues:

By any measure, Intel has allowed an immense loss of relevant evidence to occur during the course of this litigation…These were not the common accidental and inconsequential losses of electronic evidence that often occur in litigation…Rather, they are losses of a nature and scope as to call into question Intel’s entire document preservation scheme.”

No dispute exists that Intel’s efforts failed to preserve all of the email. According to Intel, here are some of the hurdles they faced from the outset:

Intel not only had to save relevant historical information relating to AMD’s allegations (which it did with the Complaint Freeze Tapes and the prompt hard drive harvesting), but it had to retain an enormous volume of electronic material generated by hundreds of Intel employees on a forward-going basis;

The number of custodians required to retain documents on a going forward basis was enormous, the relevant document requests numbered in the hundreds, and it was clear from the outset that most of the those custodians would never have to produce documents for the case;

Intel had to keep documents for custodians spread across six different continents;

Shortly after this litigation began, Intel, in an effort to cut costs as a result of the fierce competition in the semiconductor market, carried out a significant reduction in work force; many of its layoffs hit sales, marketing and information technology, and that made the job of document retention more complex;

This was a case of unprecedented proportions, for which Intel had to develop practical solutions as it went along; and

This effort had to be made in the context of rapidly evolving legal and technical standards and solutions

Intel was unable to implement a 100-percent effective litigation hold. Significant email was destroyed or lost.

Although nothing is certain, spoliation sanctions are still possible at a future point in the litigation.

NEXT FRIDAY: Part Two - What Mistakes Were Made And How Much Was Lost

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