Document Management and Litigation: Learning from Intel's Mistake

Rob Enderle

If you've been watching, and it is hard to miss this, there is a huge upswing in litigation between companies. Much of it is patent and copyright litigation in the technology segment with examples being the actions between HP and Acer, SCO and IBM (which appears to be winding down), and Qualcomm, Broadcom and Qualcomm and Nokia (this last is on a litigaton path). However, litigation overall appears to be up with Oracle going after SAP and AMD going after Intel for alleged anti-competitve or illegal practices.


Most of these actions have some type of discovery requirements but the SCO vs. IBM and AMD vs. Intel cases clearly went far beyond what either defendant normally saw and in both instances missing documents have created a cloud over their actions which could result in unfavorable judgments. In the SCO instance, that case was such a mess to begin with that it doesn't appear to create a huge problem, but for Intel this has been embarrassing at the least, and potentially could drive a stronger punitive judgment than if it'd had stronger retention policies in place.


As a side note, a good source for litigation-based document retention information can be found here.


Intel's Retention Policy


Now Intel is no slouch when it comes to litigation. Historically, in its segment, it has been good enough at it that even when it lost the battle, it still won the war. It appeared expert at just what was needed to play close to the edge but never cross it. While this was mostly during Andy Grove's tenure, its practices were thought to be first rate. So what happened?


If you read through its latest filing, what happened was it decentralized too much of the responsibility for document retention, actually putting much of that responsibility on individual users. We've known for some time that whether it is asking users to back up their systems or apply software or anti-virus updates, those users simply cannot be relied on to prioritize this task.


With e-mail in particular, this is problematic because older versions of Exchange have hard limits with regard to how much storage you can keep on the e-mail server and users are told to both archive their e-mail, often locally, and then back it up (which they almost never do).


Even at an IT level, it had remote offices managing their own records and evidently this resulted in the destruction of additional documents that were ordered retained. In short, a system that had actually worked previously failed miserably and that probably had a lot to do with the changing requirements resulting from the shift from discovery of physical documents to the discovery of electronic documents, particularly e-mail. Fixing the Problem


After the loss of the documents was identified and reported, Intel had to implement some level of remediation, which will be reviewed by a court master specializing in document retention, to ensure the remediation is adequate.


It went to EMC, which has positioned itself as the data management equivalent to Microsoft in software, Cisco in networking, and Intel in microprocessors. EMC is generally thought to be the leading expert in data management and has a solution honed in the financial industry, which has a federal ongoing retention legal requirement, which directly addresses this problem.


This showcases what has always been a best practice. When given a requirement like document retention, it is best to bring in experts in that space, and review the practices of other companies -- in this case, brokerage houses, who are known to do it very well.


The combination prevents you from learning on the job, a practice that can be incredibly expensive and, as showcased in the Intel instance, very damaging to your company and career.


IT Benchmarking


Once a system is put in place, particularly for something like litigation, it would be wise to benchmark it against what's out there. If you can showcase it to be one of the best solutions, even if you have a problem, you may be given credit for going the extra mile to ensure it was done right.


But benchmarking also helps you ensure in many areas you are learning from the best practices of others and don't have a bunch of folks remaking mistakes because they either don't know who to ask, or don't want to ask, for help. This last is sometimes embedded in many company cultures where they appear to think that asking for help makes them look stupid while the exact opposite is true.


One company I've run into over the years that specializes in this is Compass. While I've never actually worked with them, I've been told by the IT shops I've worked with that they do good work and that they will give you a very strong sense, assuming you are candid with them during the process, of how well you compare to other shops doing similar tasks.


This last is what Intel probably should have been doing regularly. While 10 years ago its document retention policies were likely market leading, the market changed, and it apparently wasn't able to keep up, probably because it simply wasn't focused on this practice enough to recognize the change. There are a lot of things to focus on, which probably makes the words "IT Focus" an oxymoron anyway.


Wrapping Up


It is easy, when given a task, to roll up your sleeves and just get to work rather than stopping, doing a review of the requirements and best practices, building a plan, and then executing the plan. It just seems faster to get started and none of us have unlimited time. But this is like the kid running and pushing his bike to school, who, when asked why, says "because I was late and didn't have time to get on my bicycle." It seems, in hindsight, very foolish.


The cost of doing things wrong, particularly when there is so much information available on how to do them right should simply not be acceptable to you or your company. Learn from Intel's mistake and learn to let others blaze trails for you. Remember the old saying, "The pioneers get the arrows, the settlers get the land"? In IT, you definitely want the land and not the arrows.

Add Comment      Leave a comment on this blog post
May 3, 2007 4:14 AM Kannan Kannan  says:
It is essential from BCP perspectives as well from regulatory perspectives to archive the E mail the business critical onesThe second interesting aspect being that the conventional approaches have to be changed to suit the realities & the need to change has been emphasised beautifully.This is a very important aspect from Mail as well as from documents perspective to ensure business interest & intelligence are secured safely. Reply
May 4, 2007 1:50 AM chris Minja chris Minja  says:
This is a very important aspect from Mail as well as from documents perspective to ensure business interest & intelligence are secured safely.Itis anice step for the booming marketof e-commerce Reply
May 4, 2007 10:15 AM Edward Kalbaugh Edward Kalbaugh  says:
Fortune 100o companies have an average of 500 litigation matters in process continually, and document retention is only one major component of proper litigation preparedness. The real challenge is being able to retrieve the required data. That requires having in place a program for discovery of electronically stored information (ESI) under the new Federal Rules that became effective December 2006. Litigation can cost Fortune 1000 companies in the hundreds of millions . An e-discovery preparedness program can reduce this cost significantly. An e-discovery preparedness program comprises strategies and methodologies for document retention, understanding data process flow, accomplishing data collection, filtering, correlation, and analysis to determine what data is required, establishing a central repository for access by both parties, and managing the complete e-discovery process. Reply

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