United States District Court, D. New Mexico
SUZANNE D. COYNE, and ROBERT J. COYNE, SR., Plaintiffs,
LOS ALAMOS NATIONAL SECURITY, LLC, NICHOLAS DEGIDIO, and GAIL MCGUIRE, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART
DEFENDANT LANS' SECOND MOTION TO COMPEL
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.
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.
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.
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.
[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
Zubulake court came up with the following
seven-factor test to be applied in the context of
1. The extent to which the request is specifically tailored
to discover relevant information;
2. The availability of such information from other sources;
3. The total cost of production, compared to the amount in
4. The total cost of production, compared to the resources
available to each party;
5. The relative ability of each party to control costs and