Approximately ten years ago in Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL 649934 (S.D.N.Y. Nov. 3, 1995), the court declared "[t]he law is clear that data in computerized form is discoverable even if paper 'hard copies' of the information have been produced "[T]oday it is black letter law that computerized data is discoverable if relevant." In the years that have followed, a host of court decisions have expanded the Anti-Monopoly declaration, reaffirming that electronic data is indeed discoverable. Linnen v. A.H. Robins Co., 1999 WL 462015 (Mass. Super. June 16, 1999); McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001); Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003), just to name a few.

Although most of today's litigators understand that conducting paper-exclusive discovery leads to the recovery of a mere fraction of the information available, they may have difficulty determining how to uncover the needed electronic data. In any given case involving an electronic discovery request, multiple computers might be involved, each of which might contain hundreds of gigabytes of data or more. Complicating matters, many different types of computers might also be involved, and each can contain a different operating system (e.g., Windows, Macintosh, Linux, etc.) or serve unique functions (e.g., e-mail, database, file/print/antivirus server, etc.). Each of these systems might require different handling methods to effectively retrieve, copy, and search the data they possess.

Lawyers must also determine how easily the data can be restored and how much the entire process will cost. By understanding the types of data that exist, as well as the process for making that data accessible, lawyers will be in the best position to make arguments for or against the data production scope, data preservation orders, and electronic discovery cost shifting.