The Fallacy of Liberal Discovery: Litigating Employment Discrimination Cases in the E-Discovery Age

• Author: David A. Green
• Position: Professor of Law, North Carolina Central University School of Law; LL.M., Temple University School of Law; J.D., Georgetown University Law Center; B.A., Georgetown University. I am grateful to Professors Lydia Lavelle and Todd Clark, as well as Attorney Roderick Brown, for their valuable comments and feedback. I am also grateful to Jonathan ...
• Pages: 693-722

THE FALLACY OF LIBERAL DISCOVERY:

LITIGATING EMPLOYMENT DISCRIMINATION CASES

IN THE E-DISCOVERY AGE

DAVID A. GREEN*

I. INTRODUCTION

As part of the Civil Rights Act of 1964, the United States Congress

enacted legislation that protects the employment of those who fall into

protected categories of race, color, religion, sex, and national origin.1

Employees may sue their employers for violating Title VII of the Act if the

employers “fail or refuse to hire or to discharge any individual, or otherwise

to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s

race, color, religion, sex, or national origin.”2 In these cases, the employees

are the plaintiffs and have the burden of proving that their protected status

was a motivating factor in the adverse employment action.3 The Federal

Rules of Civil Procedure are the framework for discovery, the process by

which both parties obtain evidence before trial to prove their cases.4

The Supreme Court of the United States relies upon a fallacy of “liberal

discovery” when determining that the plaintiff/employee should carry the

burden of persuasion throughout the litigation process in employment

discrimination cases.5 The notion of liberal discovery is a fallacy because it

Copyright © 2016, David A. Green.

* Professor of Law, North Carolina Central University School o f Law; LL.M., Temple

University School of Law; J.D., Georgetown University Law Center; B.A., Georgetown

University. I am grateful to Professors Lydia Lavelle and Todd Clark, as well as Attorney

Roderick Brown, for their valuable comments and feedback. I am also grateful to Jonathan

Savage ’14 and Jeremy Locklear ’16 for their research assistance. This Article is also a tribute

to the late prominent civil rights Professor Robert Belton, who over fifteen years ago assisted

me as a young professor to develop my employment discrimination syllabus. I regularly

relied upon his expertise in employment discrimination issues and continue to cite to his

numerous writings.

1 See 42 U.S.C. § 2000e-2 (2012).

2 Id.

3 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

4 See FED. R. CIV. P. 26 (entitled, “Duty to Disclose; General Provisions Governing

Discovery”).

5 See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (“The ultimate

burden of persuading the trier of fact that the defendant intentionally discriminated against

the plaintiff remains at all times with the plaintiff.”).

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694 CAPITAL UNIVERSITY LAW REVIEW [44:693

does not accomplish its intended purpose of cooperative exchange of all

relevant information between the parties, but instead has given the party with

greater access to information the advantage in costly discovery disputes.6

Although the reliance upon the fallacy of liberal discovery has always

been problematic for plaintiffs, in the e-discovery age, the problem is

magnified because of the substantial cost and complexity of accessing

electronic records.7 The plaintiff in an employment discrimination case

carries this heavy burden of proof, even though the defendant/employer has

greater access to the relevant information.8 Because direct evidence of

employment discrimination is rare, plaintiffs in the overwhelming majority

of cases must rely solely on circumstantial evidence.9 In Texas Depar tment

of Community Affairs v. Burdine, the Supreme Court of the United States

stated that the plaintiff has the burden of persuasion throughout the litigation

process.10 After the plaintiff establishes a prima facie case for

discrimination, the defendant/employer has the minimal burden of

production to establish a “legitimate, nondiscriminatory reason”; however,

the employer is not required to persuade that this reason is the real reason.11

The late prominent civil rights Professor Robert Belton12 keenly noted,

6 Mitchell London, Resolving the Civil Litigant’s Discovery Dilemma, 26 Geo. J. Legal

Ethics 837, 854 (2013) (“Though the ethical and procedural rules aspire to ‘promote

communication and cooperation,’ the existence of the liberal discovery regime, combined

with litigants’ utility-maximizing incentives under the adversary system, provides litigants

with too strong an incentive to abuse their informational advantages.”).

7 See THE DUKE CONFERENCE AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE

22 (LegalPub.com, Inc. ed., 2015).

8 See David A. Green, Why the African American Community Should Be Concerned

About Supreme Court Nominee Samuel A. Alito: His Potential Impact on Title VII Cases, 33

S.U. L. REV. 425 , 430–31 (2006) (“[D]espite the plaintiffs’ difficulty in proving the

defendants’ motive and despite defendants’ superior knowledge regarding its emplo yment

decision,” the Court chose not to accommodate the plaintiffs by shifting the responsibility to

the defendants to come forth with an explanation for the adverse employment decision.

Therefore, “plaintiffs are left with a daunting task of proving their discrimination cases.”).

9 See Terri L. Dill, St. Mary’s Honor Center v. Hicks: Refining the Burdens of Proo f in

Employment Discrimination Litigation, 48 ARK. L. REV. 617, 617 (1995).

10 See Burdine, 450 U.S. at 253.

11 Id. at 258.

12 Robert Belton, Tra ilblazing Scholar of Employment Law, Dies, VANDERBILT UNIV.

(Feb. 10, 2012, 2:58 PM), http://news.vanderbilt.edu/2012/02/robert-belton-obituary.

A trailblazer in civil rights as an activist, attorney and scholar throughout

his career, Belton served from 1965 to 1970 as an assistant counsel for

the NAACP Legal Defense and Educational Fund Inc. At the Legal

Defense Fund, he headed a national civil rights litigation campaign to

enforce what was then a new federal law prohibiting discrimination in

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