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. I NTRODUCTION 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 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 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 Department 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 Belton 12 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 employment 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 Proof 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, Trailblazing 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) 2012] THE FALLACY OF LIBERAL DISCOVERY 695 [T]he Court [in Burdine] stated that “[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons.” This statement is perhaps the most disturbing point in the case because it suggests that the defendant need not prove the “real reason” for his action even if improper criteria were used. 13 The Court reasoned that in responding to the employer’s legitimate, nondiscriminatory explanation, the employee, because of the “liberal discovery rules,” 14 would not “find it particularly difficult to prove that a proffered explanation lacking a factual basis is a pretext.” 15 The Court’s rationale is incorrect and fails to recognize the cumbersome, expensive, and often ineffective discovery process. In the present-day electronic era, the technological quagmire of e-discovery and the associated complex legal issues further compound this reasoning. This Article begins with an examination of the development and the effect of the discovery rules on civil litigation in the American legal process. 16 Next, the Article reviews the Court’s rationale for placing the heavy burden of proof in employment discrimination cases on the plaintiff. 17 Then, the Article discusses the revolution of discovery and advent of e-discovery. 18 Furthermore, the Article looks at the effect of e-discovery on employment because of factors such as race and sex. Belton had a major role in Griggs v. Duke Power Co., the landmark Supreme Court civil rights case the Legal Defense Fund litigated. Other landmark Supreme Court civil rights cases in which he was involved included Albemarle Paper Co. v. Moody, which addressed damages in civil rights cases, and Harris v. Forklift Systems, which addressed sexual harassment. . . . An expert in employment discrimination law, Belton was the author of numerous law review articles and book chapters, and the lead author of a widely adopted casebook on employment discrimination law that was the first to incorporate critical race and feminist theory. He taught Law of Work, Employment Discrimination Law, Constitutional Tort Litigation, and Race and the Law. Id. 13 Robert Belton, Burden of Pleading and Proof in Discrimination Cases: Toward a Theory of Procedural Justice, 34 VAND. L. REV. 1205, 1242 (1981) (citing Burdine, 450 U.S. at 254). 14 Burdine, 450 U.S. at 258. 15 Id. at 254. 16 See infra Part II. 17 See infra Part III. 18 See infra Part IV. (continued) 696 CAPITAL UNIVERSITY LAW REVIEW [44:693 employment discrimination cases. 19 Finally, the article recommends that the Court revisit its determination of placing the heavy burden of proof on the plaintiff in employment discrimination cases in light of the e-discovery age. 20 The article concludes that the Court should require the defendant to prove that its legitimate, nondiscriminatory reason is its real reason for the employment decision. 21 II. D EVELOPMENT AND E FFECT OF THE D ISCOVERY R ULES Although discovery was historically not an integral part of the American litigation process, today it is the cornerstone; it determines who wins or loses a case. 22 The American litigation process has its roots in English law, but under English common law, pretrial discovery was not part of the litigation system. 23 The English courts relied on the parties’ pleadings to narrow the factual issues and to resolve legal disputes. 24 The United States—through the Judiciary Act of 1789—followed the English litigation process where pretrial discovery in federal courts had no role. 25 Although in a court of equity 26 there was a limited means to exchange pretrial information, there 19 See infra Part V. 20 See infra Part VI. 21 See infra Part VII. 22 See JACK H. FRIEDENTHAL, MARY KAY KANE & ARTHUR R. MILLER, CIVIL PROCEDURE 397 (4th ed. 2005); A. Benjamin Spencer, Essay, The Restrictive Ethos in Civil Procedure, 78 GEO. WASH. L. REV. 353, 353 (2010); Michael E. Wolfson, Addressing the Adversarial Dilemma of Civil Procedure, 36 CLEV. ST. L. REV. 17, 20–21 (1988); Developments in the Law — Discovery, 74 HARV. L. REV. 940, 946–49 (1961); Scott A. Moss, Litigation Discovery Cannot Be Optimal but Could Be Better...