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Groups say gag order on Intel/AMD case is 'unjust'

CCAI and news groups called for openness

A tech trade group and a handful of news organisations have asked a US court to lift its order to seal documents in the pending antitrust lawsuit brought against Intel by AMD, saying the gag order has "unnecessarily and unjustly" withheld information from the public.

The Computer and Communications Industry Association (CCIA), along with five news organizations including The New York Times and The Washington Post, filed a motion last week in US District Court for the District of Delaware, asking the court to unseal several records related to the case. The groups also asked for a new judge to rule on their request.

AMD filed the antitrust lawsuit against Intel in June 2005, and in mid-2006, the two companies negotiated a court-approved agreement that closed some transcripts of hearings and teleconferences, as well as some court filings, to the public. AMD alleges in the lawsuit that Intel has used its dominant market share in the x86 microprocessor market to intimidate and discourage computer makers and retailers from buying AMD chips.

In the case, AMD has issued subpoenas for documents from dozens of companies, including computer makers HP and Dell and retailer Best Buy. Some of the companies subpoenaed refused to share the documents, saying disclosure would expose trade secrets. In response, AMD and Intel negotiated a protective order that was approved by Judge Joseph Farnan Jr.

But the protective order was overly broad, CCIA and the news organizations argued in Thursday's filing. "Protective orders, which govern the exchange of information outside of a public docket are obtained pursuant to a 'good cause' standards," wrote David Finger, a lawyer for CCIA. "When such information is filed with a court, however, it becomes part of a public document subject to the right of public access, absent showing a compelling justification and a clearly defined and serious injury."

Some information that's been protected describe events that "took place so long ago that there is no likely reason their disclosure would cause competitive disadvantage", Finger wrote. In some cases, redacted information appears to be employee lists, he wrote.

"Litigants may not seal information merely because public disclosure will be embarrassing or will otherwise reflect poorly on them," Finger added.

An AMD spokesman said the company is aware of the filing. "AMD does not oppose the motion," said Michael Silverman, the spokesman.

AMD has told reporters they'd have to file a motion with the court to get information beyond the redacted documents the company has supplied them, Silverman said.

Intel, however, would have concerns about lifting the protective order, said spokesman Chuck Mulloy. The groups wanting the protective order to be lifted have "no right of access" to those documents, Intel lawyer Richard Horwitz wrote to Finger earlier this month. The documents in question were related to a discovery dispute, and those materials are not public records, Horwitz wrote.

Intel is open to discussions about what documents are closed, but the company is not ready to agree to open all documents in the case, Mulloy added. Several companies have been subpoenaed, and several participated in negotiations to decide which documents should be closed, he said.

"It's not a simple issue," he said. "There are scores of OEMs [original equipment manufacturers] that have skin in the game."

The US Federal Trade Commission is investigating Intel's business tactics, and South Korea and Japan have ruled that Intel has violated antitrust law. The European Union is also investigating Intel, and a ruling there is expected soon.

"We trust the court can find a way to protect the companies' trade secrets, without blocking all information on the allegations in this case," Ed Black, CCIA's president and CEO, said in a statement. "We'd also hope that in reviewing our motion the court decides that providing trade secret protection to evidence related to illegal business practices and behavior would be adverse to the public interest."

CCIA has long advocated against anticompetitive behavior in the tech industry.


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