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Coyne v. Los Alamos National Security, LLC

United States District Court, D. New Mexico

December 16, 2016

SUZANNE D. COYNE, and ROBERT J. COYNE, SR., Plaintiffs,
v.
LOS ALAMOS NATIONAL SECURITY, LLC, NICHOLAS DEGIDIO, and GAIL MCGUIRE, Defendants.

          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.

         I. Background

         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.

         II. Legal Standard

         “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 relevant information;
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 each party;
5. The relative ability of each party to control costs and its ...

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