Taitt-Phillip v. Lockheed Martin Corp. et al
ORDER DENYING MOTION TO COMPEL by Chief Magistrate Judge Gregory B. Wormuth denying 142 Defendant Lockheed Martin Corporation's Motion to Compel Discovery from Plaintiff. (emm)
Case 2:21-cv-00150-DHU-GBW Document 170 Filed 01/17/23 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civ. No. 21-150 DHU/GBW
LOCKHEED MARTIN CORP. and
ADVANCED IT CONCEPTS, INC.,
ORDER DENYING MOTION TO COMPEL
THIS MATTER comes before the Court on Defendant Lockheed Martin
Corporation’s Motion to Compel Discovery from Plaintiff (doc. 142). Having considered
the Motion and the attendant briefing (docs. 143, 144), the Court will DENY the Motion.
Plaintiff brings claims for premises liability and negligence based on an incident
in which she was allegedly electrocuted while operating a piece of military training
equipment. See generally doc. 26. Plaintiff alleges that she suffered “severe injuries”
from the incident, including, inter alia, left arm paralysis, physical pain, mental anguish,
physical impairment, and physical disfigurement. See id. at ¶¶ 11, 20.
Defendant Lockheed Martin Corporation (“Lockheed”) filed the instant Motion
to Compel Discovery from Plaintiff on September 23, 2022, requesting the Court to enter
an order “compelling Plaintiff to produce photographs and video depicting Plaintiff’s
Case 2:21-cv-00150-DHU-GBW Document 170 Filed 01/17/23 Page 2 of 7
physical condition” and “permitting [Defendant] Lockheed to inspect all cell phones or
other devices that contain or may contain responsive photos and video depicting
Plaintiff’s condition.” See doc. 142 at 8. Plaintiff responded on October 7, 2022. See doc.
143. The Motion was fully briefed on October 18, 2022, see doc. 145, with the filing of
Defendant Lockheed’s reply, see doc. 144.
The Federal Rules of Civil Procedure allow parties to “obtain discovery
regarding any nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). They also afford the trial
court “wide discretion in balancing the needs and rights” of the parties. Gomez v.
Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995) (quoting Scales v. J.C. Bradford &
Co., 925 F.2d 901, 906 (6th Cir. 1991)).
When a party fails to respond to another party’s discovery requests, the
requesting party may move the Court to compel a response. Fed. R. Civ. P. 37(a)(3)(B).
Grounds to compel include failing to produce items requested under Rule 34, see Fed. R.
Civ. P. 37(a)(3)(B)(iv), which allows a party to “serve on any other party a request
within the scope of Rule 26(b) . . . to produce and permit the requesting party or its
representative to inspect, copy, test, or sample . . . items in the responding party’s
possession, custody, or control,” Fed. R. Civ. P. 34 (a)(1). Under Rule 37, “an evasive or
incomplete disclosure, answer, or response must be treated as a failure to disclose,
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answer, or respond.” Fed. R. Civ. P. 37(a)(4). The party moving to compel discovery
has the burden of proving that the opposing party’s responses are incomplete. See
Daiflon, Inc. v. Allied Chem. Corp., 534 F.2d 221, 227 (10th Cir. 1976).
In relevant part, Defendant Lockheed’s Request for Production (RFP) 4 asks
Plaintiff to “produce any and all photographs, videotapes, diagrams, drawings, and
other tangible items that are related to or that otherwise refer to any of the events and
occurrences referred to in your Complaint[,] [i]ncluding anything depicting the
injury(ies) and/or conditions alleged in your Complaint.” See doc. 142-1 at 3. In its
Motion to Compel, Defendant Lockheed requests the Court to order Plaintiff to “fully
and completely respond” to RFP 4 by producing all photos and videos in her control
“that would demonstrate [her] physical condition,” see doc. 142 at 3, 5, and to permit it
to “inspect all cell phones or other devices that contain or may contain responsive
photos and video depicting Plaintiff’s condition,” id. at 8. Although Plaintiff argues that
she is not withholding any responsive materials, see doc. 143 at 1-2, Defendant Lockheed
argues that such a claim is not believable given Plaintiff’s “history of withholding
information and refusing to be forthcoming with material responsive to [RFP] 4,”1 see
Plaintiff initially objected to RFP 4 and did not produce any photos or videos of herself in response. See
doc. 142-1 at 3-4 (objecting to RFP 4 on the basis that it is “vague and ambiguous” and producing photos
identified as “Photos of Plug” and “Safety Warning on Met”). Following repeated requests for
supplementation from Defendant Lockheed, Plaintiff supplemented her response to RFP 4 by producing
30 photos on June 29, 2022; 208 photos on August 18, 2022; and 23 videos on August 19, 2022; prior to
taking the position that there were no additional videos with which to supplement on September 7, 2022.
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doc. 142 at 4, and its non-receipt of any “pictures or video one would reasonably expect
from a mother who is recording family vacations, the birth of a child, and other
impactful events,” doc. 144 at 1; doc. 142 at 4-5.
For purposes of the instant Motion, the Court need not indulge Defendant
Lockheed’s invitation to speculate whether Plaintiff is withholding additional videos of
herself spending time with her family. The Court will deny the Motion because the
relief it seeks—production of all photos and videos of Plaintiff’s physical condition
following the incident giving rise to her claims—is broader than the scope of production
requested by RFP 4.
As stated previously, the scope of production requested by RFP 4 encompasses
photos and videos “depicting the injury(ies) and/or conditions alleged in [the]
Complaint.” Doc. 142-1 at 3. By comparison, the scope of production Defendant
Lockheed now seeks to compel would encompass all photos and videos showing
“Plaintiff’s physical condition.” See doc. 142 at 8. To the extent Defendant believes that
photos and videos exist in which Plaintiff demonstrates an absence of the physical
injuries and impairments alleged in her complaint, the Court finds that any such media
is not responsive to RFP 4, which specifically calls for videos depicting the injuries and
conditions forming the basis for Plaintiff’s claims. To be sure, evidence pertaining to
See doc. 142-5. On October 7, 2022, the day she filed her response to the instant Motion, Plaintiff again
supplemented her response to RFP 4 with additional videos. See doc. 143-4 at 1; doc. 144 at 1.
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Plaintiff’s physical condition in the three years since the incident is relevant. See Fed. R.
Civ. P. 26(b). However, where Defendant Lockheed did not craft its discovery requests
to request such evidence, the Court will not cure that oversight by blessing an
overbroad reading of RFP 4.
Having rejected Defendant Lockheed’s argument that Plaintiff’s responses to
RFP 4 are incomplete because they do not contain videos depicting Plaintiff’s general
physical condition that Defendant Lockheed expects to exist, the Court finds no other
basis for concluding that Plaintiff has not produced all photos and videos in her control
that are responsive to RFP 4. Defendant Lockheed argues that Plaintiff’s incremental
production of responsive material during the course of its repeated requests for
supplementation evidences a likelihood that she is withholding responsive materials
now. See doc. 142 at 4. But, Defendant Lockheed offers no legal authority supporting
such an inference in these circumstances,2 particularly when Plaintiff’s counsel has
In its reply, Defendant Lockheed cites Macgregor v. MiMedx Group Inc., Civ. No. 19-1189-MV-GJF, 2021
WL 826575 (D.N.M. Mar. 4, 2021), in support of its assertion that Plaintiff’s past dilatory production is
grounds for permitting an inspection of any devices that might contain responsive photos or videos. See
doc. 144 at 6-7. The Court finds that the Macgregor court’s decision to permit a “forensic examination” of
the plaintiff’s cellphone was founded on circumstances not present here. In Macgregor, the court recited
multiple circumstances that prevented it from “rul[ing] out that Plaintiff’s personal cellphone still
contains responsive emails or text messages that remain undisclosed,” such as the plaintiff’s ability to
produce text messages to and from other employees of the defendant besides the one whose messages
were at issue, the plaintiff’s ability to disclose messages pre- and post-dating the ones at issue, and the
court finding that the plaintiff’s explanation for the text messages’ absence was “inconsistent with the
Court’s experience and intuition.” See Macgregor, 2021 WL 826575, at *4. Moreover, the Macgregor court
fashioned a tailored protocol involving keyword searching aimed at protecting the plaintiff’s privacy
during the cellphone examination, see id., whereas Defendant Lockheed’s request here—that it be able to
“inspect all cell phones or other devices that contain or may contain responsive photos and video,”—is
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confirmed that all responsive videos have been produced and that if any responsive
videos are made prior to trial, Plaintiff will provide them. See doc. 143-2 at 1; doc. 143-3
at 1. Because there is no evidence before the Court of any responsive material currently
being withheld, the Court currently has no grounds for entering an order compelling
Plaintiff to produce additional photos and video, let alone permitting Defendant
Lockheed to inspect cell phones or other devices potentially containing photos or videos
Finally, the Motion also includes a request for sanctions against Plaintiff based
on her “actions described in [Defendant Advanced IT Concepts, Inc.’s (“AITC”)] Motion
to Dismiss [(Doc. 115)] . . . [in] addition [to] Plaintiff’s refusal to fully respond to
Lockheed’s Request for Production No. 4.” See doc. 142 at 6-8. The Court denies this
request based on the presiding District Judge’s denial of Defendant Advanced IT
Concepts, Inc.’s Motion to Dismiss All Claims for Multiple Violations and Abuses; for
an Order to Show Cause; and for Attorney’s Fees and Costs (doc. 115), see doc. 157 at 13,
and the Court’s finding that Plaintiff has not failed to fully respond to Defendant
Lockheed’s RFP 4 at this time.
For the foregoing reasons, Defendant Lockheed’s Motion to Compel Discovery
much broader, see doc. 142 at 8. The Court will not approve a broader version of the relief granted in
Macgregor for a less egregious set of facts.
Case 2:21-cv-00150-DHU-GBW Document 170 Filed 01/17/23 Page 7 of 7
from Plaintiff (doc. 142) is DENIED.
Notwithstanding the denial of Defendant Lockheed’s motion, the Court finds
that the nature of the issues raised by the Motion and Plaintiff’s delayed and repeated
supplementation of her response to RFP 4 are circumstances that make an award of fees
unjust. See Fed. R. Civ. P. 37(a)(5)(B).
IT IS SO ORDERED.
GREGORY B. WORMUTH
CHIEF UNITED STATES MAGISTRATE JUDGE
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