United States District Court, D. New Mexico
December 16, 2016
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
its incentive to do so;
6. The importance of the issues at stake in the litigation;
7. The relative benefits to the parties of obtaining the
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 sought-after 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.
Analysis - Application of the Zubulake
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.
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
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.
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. Plaintiffs should therefore pay some
portion of the necessary costs to recover them now.
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.
IS SO ORDERED.
 Zubulake has been cited as
persuasive authority by courts in this district. See
Sowell-Albertson 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).
 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 Harley-Davidson motorcycle with significant
monthly loan payments.
 There is no indication that Mrs. Coyne
deliberately erased the messages because they will likely
benefit Defendants' case.