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