% fortune -ae paul murphy

legal risks and ediscovery

Last week was full of fun headlines - a favourite, from the register: AMD's lawyers go ballistic as Intel's e-mails disappear.

Here's a bit from Ashley Vance's text:

As Intel tells it, the company set a firm, clear document retention policy in place once it learned of AMD's legal intentions. Employees, however, didn't always follow the instructions. Some workers, for example, would move their inbox e-mails to a hard drive but then forget to move their sent box e-mails to that hard drive. Once Intel's automatic e-mail deletion system kicked in every couple of months or so, the sent box e-mails went to message heaven.

Beyond that, he quotes AMD's lawyers as saying: "Although Intel has agreed to restore all data captured in the thousands of backup tapes it made and preserved, no one can say with any degree of confidence that this will put Humpty-Dumpty back together again.

I can see it now - twenty million or so of these, retrieved one at a time by an army of marginally English speaking clerks hired by the cost plus hour for the job:

Warning: mssql_query() [function.mssql-query]: message: A time out occurred while waiting for memory resources to execute the query. Rerun the query. (severity 17) in /dat181/a01f19c/ContentLinks.ASP on line 272

Microsoft OLE DB Provider for SQL Server error '80040e21' Timeout expired /stor28/de23f7/Listings.ASP, line 132

And what would it have taken to avoid this? All of Intel's network communications, in either direction, cross one of a small number of network connection points and simply setting a process in place to squirrel away everything crossing those portals by copying it to write once disks might have cost them, in 2000, a couple of hundred thousand in hardware and setup costs followed by perhaps $1,000 a week for disks and physical storage since.

By now that would have racked up total costs of perhaps $600,000 and given them the most perfect of all defences against unreasonable discovery rules: perfect, instantly searchable, records - and saved them perhaps $100 million in defence costs just on this lawsuit.

Beyond that, however, there's a lesson in Intel's humiliation: any ediscovery compliance process which relies on human action not only can go wrong, but is virtually certain to do so - and will therefore therefore prove inadequate when push comes to shove.

Just ask IBM.

Paul Murphy wrote and published The Unix Guide to Defenestration. Murphy is a 25-year veteran of the I.T. consulting industry, specializing in Unix and Unix-related management issues.