Coyne et al v. Los Alamos National Security, LLC et al
MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen granting in part and denying in part 127 Defendant LANS' Second Motion to Compel. (mlt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SUZANNE D. COYNE, and
ROBERT J. COYNE, SR.,
CIV 15-0054 SCY/KBM
LOS ALAMOS NATIONAL
SECURITY, LLC, NICHOLAS
DEGIDIO, and GAIL MCGUIRE,
MEMORANDUM OPINION AND ORDER GRANTING IN PART
DEFENDANT LANS’ SECOND MOTION TO COMPEL
THIS MATTER comes before the Court on Defendant LANS’s Second Motion to
Compel Discovery (Doc. 127), filed November 9, 2016. The Court considered the
submissions of the parties as well as all pertinent authority, and heard oral argument on
Friday, December 16, 2016. At the hearing, the Court orally ruled that the parties shall
equally share the cost of the forensic inspection at issue in Defendant’s Motion. This
Memorandum Opinion and Order details the Court’s rationale for this ruling.
During discovery, Defendant LANS served Mrs. Coyne with a request for
production seeking all text messages “that relate in any way to any of the allegations
contained in” the Complaint. Doc. 127-2. Mrs. Coyne did not object to this request, and
she cooperated with Defendant LANS’ attempts to retrieve her text messages from
Verizon and Apple. Because these attempts were unsuccessful, Defendant LANS
served Mrs. Coyne with a “Request for Forensic Inspection of [her] iPhone” under
Federal Rule of Civil Procedure 34. See Doc. 127-1. Pursuant to the Request, Mrs.
Coyne must provide her iPhone to third-party vendor Epiq Systems, which will then
attempt to recover Mrs. Coyne’s communications with her treating expert psychiatrist,
Dr. Deepa Nadiga, and with her husband, Plaintiff Robert Coyne. Id.
Mrs. Coyne does not object to the scope of the Request, so long as the time
period is limited to December 1, 2011 to the present. Doc. 127-10. However, the
Request concludes that “Plaintiffs shall bear the cost of the forensic inspection.”
Doc. 127-1 at 2. It is this provision that lies at the heart of the parties’ dispute, as it will
cost approximately $2,850 for the inspection of Mrs. Coyne’s iPhone. Doc. 127-9.
Defendant contends that as the responding party, Plaintiffs should “bear the cost
of inspection, particularly where the need for the inspection is due to that party’s own
failure to preserve data.” Doc. 127 at 8. Plaintiffs do not dispute this general rule, but
argue that in this instance, Defendant should bear the cost “because of the burden and
expense of such inspection, [Plaintiffs’] lack of resources to pay for the inspection, the
importance of the issues at stake in the litigation, and the relative benefits to the parties
of conducting the inspection.” Doc. 128 at 1.
“Under [the discovery] rules, the presumption is that the responding party must
bear the expense of complying with discovery requests, but he may invoke the district
court’s discretion under Rule 26(c) to grant orders protecting him from ‘undue burden or
expense’ in doing so, including orders conditioning discovery on the requesting party's
payment of the costs of discovery.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
358 (1978). Both parties cite Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 322
(S.D.N.Y. 2003), in support of their positions. 1
The Zubulake court came up with the following seven-factor test to be applied in
the context of cost-shifting:
1. The extent to which the request is specifically tailored to discover
2. The availability of such information from other sources;
3. The total cost of production, compared to the amount in controversy;
4. The total cost of production, compared to the resources available to
5. The relative ability of each party to control costs and its incentive to do
6. The importance of the issues at stake in the litigation; and
7. The relative benefits to the parties of obtaining the information.
Id. According to Zubulake, these factors are not to be treated equally: “When evaluating
cost-shifting, the central question must be, does the request impose an ‘undue burden
or expense’ on the responding party? Put another way, ‘how important is the soughtafter evidence in comparison to the cost of production?’” Id. at 322-23 (quoted authority
omitted). Thus, the first two factors carry greater weight and the final factor carries the
least. Id. at 323.
Zubulake has been cited as persuasive authority by courts in this district. See SowellAlbertson v. Thomas & Betts Corp., CIV 04-0760 RB/LFG, Doc. 83 (D.N.M. May 5, 2005);
Radian Asset Assurance Inc. v. College of the Christian Brothers et al., CIV 09-0885 JB/DJS,
Doc. 183 (D.N.M. October 22, 2010); Spilca v. Maryland Casualty Company, CIV 13-0360
GBW/LFG, Doc. 72 (D.N.M. November 26, 2013).
Analysis – Application of the Zubulake Factors
The parties agree that the request for the forensic inspection is specifically
tailored to discover relevant information and that while there is testimony regarding the
contents of the messages, the information requested is not available from other
sources. The $2,850 estimated cost of the inspection to produce the text messages is
but a small fraction when compared to the amount in controversy. 2
At this point, neither party appears able to control the cost for recovery of the text
messages, as the estimate for doing so is provided by a third-party. Indeed, Defendant
already tried unsuccessfully to retrieve the messages through less expensive means.
According to Plaintiffs, they simply cannot afford the cost for the forensic inspection. In
connection with the imposition of sanctions for previous discovery violations, Plaintiffs
submitted a financial statement in camera for the Court’s review which corroborates that
assertion. However, Counsel for Defendants noted some facts that call into question
Plaintiffs’ purported inability to contribute anything towards recovery of the text
Finally, Mrs. Coyne’s psychiatrist testified at deposition that the requested text
messages referenced stress in the Plaintiffs’ marriage and a potential divorce. Thus, the
recovery of those obviously relevant messages could have a significant impact on the
pending emotional distress and loss of consortium damages claims. Clearly that is why
Defendant LANS continues to seek their production.
Defendant represented in its motion that Plaintiffs claimed economic damages in excess of
$800,000.00 in the initial disclosures.
Such evidence includes the May 2016 posting of a $10,000 cash-only bond in association
with a DWI charge filed against Mr. Coyne and the purchase shortly thereafter of a HarleyDavidson motorcycle with significant monthly loan payments.
On balance, the factors favor Defendant’s position that Plaintiffs should pay at
least some portion of the cost to recover the text messages which can no longer be
obtained from another source. Mrs. Coyne was on notice of their importance but failed
to preserve them by simply changing the setting on her phone to prevent automatic
deletions over time. Had she done so, they could have been easily and inexpensively
produced. 4 Plaintiffs should therefore pay some portion of the necessary costs to
recover them now.
Having considered the Zubulake factors, the Court concludes that if Defendant
LANS decides to proceed with a forensic inspection of Mrs. Coyne’s iPhone, Plaintiffs
shall reimburse Defendant for half of the cost so incurred.
IT IS SO ORDERED.
UNITED STATES CHIEF MAGISTRATE JUDGE
There is no indication that Mrs. Coyne deliberately erased the messages because they will
likely benefit Defendants’ case.
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