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
SUMMARY

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. The plaintiff in an employment discrimination case carries this heavy burden of proof even though the defendant/employer has greater access to the relevant... (see full summary)

 
FREE EXCERPT
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.”).
(continued)
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 Litigants 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
(continued)

To continue reading

FREE SIGN UP