United States District Court, D. New Mexico
SUZANNE D. COYNE, Plaintiff,
LOS ALAMOS NATIONAL SECURITY, LLC, NICHOLAS DEGIDIO, and GAIL McGUIRE, Defendants.
PROPOSED FINDINGS AND RECOMMENDED
MATTER is before the Court on Defendants' Motion for
Dismissal with Prejudice as Sanction for Plaintiff's
Willful Destruction of Evidence (Doc. 136), filed
January 20, 2017. On January 24, 2017, Defendants' Motion
was referred to me to issue a report and recommendation
pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (b)(3) by
presiding Magistrate Judge Steven C. Yarbrough. Doc. 140.
Having reviewed the briefs submitted by the parties, as well
as all pertinent authority, the Court recommends that
Defendants' Motion be granted.
worked for Defendant Los Alamos National Security, LLC,
(“LANS”), from July, 2003, until April 26, 2013,
when she was terminated pursuant to a Reduction in Force
policy. Doc. 1-2 at ¶¶ 9, 58. Plaintiff alleges
that this reason for her termination was illusory, and that
she was actually terminated because she reported an assault
by her coworker, Jackie Little, and took leave under the
Family Medical Leave Act following this alleged assault.
See Id. ¶¶ 10-57. Plaintiff brought this
lawsuit on December 11, 2014, asserting the following claims:
Breach of Contract (LANS), Breach of Implied Covenant of Good
Faith and Fair Dealing (LANS), Willful Interference and
Retaliation (LANS, Degidio), Retaliation (LANS, Degidio,
McGuire), Negligence (LANS, Degidio, McGuire), Tortious
Interference Retaliation (Degidio, McGuire, Little), Wrongful
Termination (LANS, Degidio, McGuire), Intentional Infliction
of Emotional Distress (All Defendants), and Assault (Little).
Id. ¶¶ 60-100.
has not been smooth, and this Court has granted Motions to
Compel against both Plaintiff and Defendants. See Docs.
64 (Memorandum Opinion and Order (“MOO”)
granting in part Plaintiff's Motion to Compel),
70 (MOO granting in part Defendants' Motion to
Compel). However, it is only Plaintiff and her husband's
conduct that has warranted an award of attorney's fees.
See Doc. 70 at 16.
Court granted Defendants' First Motion to Compel on March
10, 2016, finding that Plaintiff's husband, Robert Coyne,
then a Plaintiff in this lawsuit, wrongfully withheld
documents and refused to answer questions during his
deposition and that Plaintiffs failed to produce an adequate
privilege log. See Id. at 3-14. In addition to
ordering Robert Coyne to produce responsive documents and
submit to a second deposition at his expense, the Court
awarded Defendants their reasonable costs and attorney fees
for bringing the motion pursuant to Federal Rule of Civil
Procedure 37(a)(5)(C). See Id. at 14-15. Defendants
filed a Cost Bill on March 31, 2016, indicating that the
amount expended in bringing the Motion totaled $3, 750.00.
See Doc. 73. Plaintiff did not object to this
sanctions ordered by this Court went unpaid, however, and on
July 7, 2016, Defendants filed a second motion for sanctions
based on Plaintiffs' failure to obey this Court's
March 10, 2016, Order. See Doc. 97. In addition to
seeking the unpaid sanctions, Defendants argued that
Plaintiffs had committed further discovery violations in that
they failed to produce responsive documents in their
possession and failed to supplement their initial disclosures
and discovery responses in a timely manner. Id. at
Court convened a hearing on Defendants' second motion for
sanctions on August 12, 2016. See Doc. 112
(Clerk's Minutes). At that hearing, the Court struggled
with how to proceed in this case, given that Plaintiffs
declared an inability to pay the sanctions imposed, yet were
apparently able to post a $10, 000.00 cash only bond in
connection to criminal proceedings against Robert Coyne and
to purchase a new Harley-Davidson motorcycle. See
Doc. 97 at 9, Doc. 112 at 2. Moreover, the Court cautioned
Plaintiffs that they faced potential adverse inferences from
their failure to produce the responsive documents.
Doc. 112 at 3.
the Court granted Defendants' second motion for sanctions
in part and ordered Plaintiffs to produce any remaining
responsive documents, to provide sworn affidavits describing
their document search efforts, to supplement their initial
disclosures, to submit to a third deposition, and to pay
Defendants: “(1) The costs of the second deposition of
Suzanne Coyne on June 14, 2016, including any videographer
costs; (2) the fees incurred in connection with the second
deposition of Robert Coyne on May 24, 2016; (3) the costs and
fees, including videographer charges, for a third deposition
of each of the Plaintiffs, as described; and (4) the payments
required by the Court's March 10, 2016, Order.”
Doc. 111 at 2. Due in part to Plaintiffs'
claimed inability to pay for additional sanctions, the Court
held in abeyance Defendants' requests for the fees and
costs associated with bringing their second motion.
filed a Second Cost Bill on August 22, 2016, establishing
that the running total to be paid to them was now $7, 089.28,
and that Plaintiffs owed the videographer $629.72. See
Doc. 114. Again, Plaintiffs did not object to these
figures. In addition to these amounts, Defendants represent
that Plaintiffs owe an additional $3, 200.00 for the costs
and fees associated with their third depositions. See
Doc. 136-9. This brings the total amount owed by
Plaintiffs to $11, 002.32.
parties proceeded with discovery, and on September 30, 2016,
Defendants served Plaintiffs' counsel with a request for
a forensic inspection of Suzanne Coyne's iPhone. See
Docs. 117 127-1, 136-6. This request stemmed from an
earlier request for production wherein Defendants sought all
text messages that “relate in any way to any of the
allegations contained in” the Complaint. See Doc.
127-2, 136-1 at 2. Specifically, Defendants sought text
messages between Plaintiff and her husband, Robert Coyne, and
between Plaintiff and her treating psychiatrist, Dr. Deepa
Nadiga. Doc. 136-6. Plaintiff, who had failed to
preserve the messages, did not object to the request and even
cooperated with Defendants' attempts to retrieve them
from her cellular carrier, Verizon, and from Apple before
agreeing to the inspection. See Docs. 136-7, 136-8.
Plaintiff, however, did object to paying for the cost of the
forensic inspection. See Doc. 136-8. Therefore,
Defendants filed a Second Motion to Compel Discovery in which
they requested the Court order Plaintiff to pay for it.
See generally Doc. 127.
hearing on Defendants' Second Motion to Compel Discovery
was held on December 16, 2016. See Doc. 132
(Clerk's Minutes). Through their Counsel, Plaintiffs
represented that they lacked the resources to pay for the
inspection's anticipated cost of $2, 850.00. Id.
at 2. While the Court questioned this assertion in light of
the cash-only bond and motorcycle purchase, it ultimately
found that the parties should share equally the cost of the
forensic inspection. See Doc. 133. In reaching this
decision, the Court found some of the sought text messages
“obviously relevant” to Plaintiff's claim for
emotional distress and Robert Coyne's then-pending claim
for loss of consortium. Id. at 4. Moreover,
Plaintiff was “on notice of their importance. . .
.” Id. at 5. Relying on Plaintiff's
assertion that she “failed to preserve them by simply
changing the setting on her phone to prevent automatic
deletions over time, ” id. at 5,
Court ordered Plaintiffs to reimburse Defendants for half the
cost of the forensic inspection of the iPhone. In doing so,
the Court specifically noted that there was “no
indication that Mrs. Coyne deliberately erased the messages.
. . .” Id. at 5, n.4.
January 4, 2017, at approximately 3:52 PM Plaintiff's
counsel called Defendants' to report that he had
possession of Mrs. Coyne's iPhone and was ready to ship
it to the forensic examiner, Epiq eDiscovery Solutions
(“Epiq”) to see if the deleted text messages
could be recovered. Counsel did just that the following day,
see Doc. 136-10, and Epiq received Plaintiff's
iPhone on January 9, 2017. Doc. 144-1 at ¶ 2.
Upon receipt, an Epiq employee placed the iPhone into a
faraday box and then placed it into airplane mode to
ensure that no transmissions would be sent or received by the
phone. Doc. 136-11 at ¶ 6. A forensic copy was
then created of the device. Id. Jon Kessler, Senior
Director of Forensic Consulting for Epiq, then attempted to
analyze the iPhone and extract the relevant text messages.
Alas, none was found. Id. ¶ 7.
fact, “[u]pon initial inspection, the device contained
very little content.” Id. Mr. Kessler soon
determined that Mrs. Coyne's iPhone had been
“erased and reset” on or about January 4, 2017,
at 9:44 AM MST, the day before Plaintiff's counsel
shipped it to Epiq. Id.; Doc. 144-1 at
¶ 4. Indeed, the “erase and reset” occurred
just six hours before Plaintiff's counsel
obtained possession of the iPhone for shipment to perform the
affidavit testimony, Mr. Kessler explains that erasing and
resetting an iPhone cannot happen accidentally or
inadvertently. Doc. 144-1 at ¶ 6. Rather,
for a user of an Apple iPhone to erase and reset the phone
they must take one of two actions. First, the user can erase
and reset the device from the device itself. In order to do
this, the user must follow a number of discreet steps, during
which the user is specifically informed that if the user
follows the prompts “This will delete all media and
data, and reset all settings.” And then “Are you
sure you want to continue? All media, data, and settings will
be erased. This cannot be undone.” The user would also
be required to enter a user passcode and/or Apple ID and
password if enabled during this process. Second, an Apple
iPhone can be remotely erased using the user's iCloud
account and/or the Find my iPhone app. When this action is
taken, the user is prompted “All your content and
settings will be erased. An erased iPhone cannot be located
or tracked.” The user is then required to enter their
Apple ID again to confirm, enter a message to display on the
device and a call back number should the phone be found.
Doc. 136-11 at ¶ 8. According to Mr. Kessler,
“data that existed on the device prior to the erase and
reset is not able to be recovered from the device.”
Doc. 136-11 at ¶ 9. Furthermore, “[t]here
is no way to determine what data, including text messages,
may have been deleted but would still have been recoverable
prior to the erase and reset.” Doc. 144-1 at
discovering that the iPhone had been erased and reset,
Defendants' counsel wrote to Plaintiff's counsel on
January 11, 2017. Defendants demanded not only an explanation
but production of “any other copies, back-ups or
sources of information that contain any of the data that
existed on Ms. Coyne's iPhone prior to the deletion,
including but not limited to data contained in iTunes, iCloud
or on other phones, devices or home computers.”
Doc. 136-14. In a January 19, 2017, phone conference
between counsel, Plaintiff's attorney stated that Mr. and
Mrs. Coyne claimed to have no knowledge of what had happened.
Doc. 136-12 at ¶ 4. Plaintiff's counsel
further indicated that Mrs. Coyne had contacted Verizon and
Apple and was informed that although her contacts had been
backed up, her text messages were not. Id.
against this backdrop that Defendants now move the Court to
dismiss Plaintiff's case in its entirety with prejudice
“as a sanction for Plaintiff's intentional and
permanent erasure of all the data on her iPhone the day
before it was produced” for the forensic evaluation.
Doc. 136 at 1. Plaintiff responds simply that she
“did not engage in any destruction of evidence, willful
or otherwise” and provides no explanation for the loss
of the data. Doc. 141 at 1.
Coyne vehemently denies that she, or someone at her
direction, erased and reset her iPhone, and offers her sworn
affidavit and that of her husband in support of that
position. See Docs. 141, 141-1, 141-2. However,
Defendants have submitted evidence that calls into question
the veracity of these affidavits. Specifically,
• within 2 minutes after it was erased and reset, Mrs.
Coyne's iPhone “connected to a wireless network
with the SSID (name) ...