United States District Court, D. New Mexico
SUZANNE D. COYNE, Plaintiffs,
LOS ALAMOS NATIONAL SECURITY, LLC, NICHOLAS DEGIDIO, and GAIL MCGUIRE, Defendants.
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
C. YARBROUGH, UNITED STATES MAGISTRATE JUDGE
ultimate goal of our civil justice system is to determine
what is true and then apply law to that truth to obtain a
just resolution of the conflict at issue. Recognizing that
factual disputes exist, the system presumes that the honest
exchange of information, combined with the adversarial
process, will allow truth to reveal itself to the factfinder.
Thus, the system's foundation is built on the idea that
parties to a dispute will honestly exchange information.
the importance of this honest exchange, the system demands
harsh sanctions against those who seek to defeat its
truth-seeking function by engaging in willful, bad faith
conduct designed to deprive the opposing party of relevant
information related to the claims at issue. The Court,
unfortunately, is presented with an instance in which a party
has engaged in such willful and bad faith conduct. In her
Proposed Findings and Recommended Disposition (PFRD), Chief
Magistrate Judge Karen B. Molzen recommends that the Court
dismiss with prejudice Plaintiff's lawsuit as a sanction
for this conduct. Doc. 146. The Court has considered the
written submissions of the parties, the record in this case,
the applicable law, and the PFRD. The Court has further
conducted a de novo review of those portions of the PFRD to
which objections have been made. The Court rejects
Plaintiff's Objections to Proposed Findings and
Recommended Disposition (Doc. 147) and, pursuant to 28 U.S.C.
§ 636(b)(1), adopts the PFRD, incorporating it in full.
Thus, for the reasons stated below and in the PFRD, the Court
grants Defendants' Motion for Dismissal with Prejudice as
Sanction for Plaintiff's Willful Destruction of Evidence.
Suzanne Coyne alleges that she began working for Defendant
Los Alamos National Security, LLC (“LANS”) in
2003. Doc. 1, Ex. A ¶ 9. Plaintiff claims that in
December 2011, one of her co-workers, Jackie Little, entered
her office “advanced on Ms. Coyne backing her against
her desk and started screaming at her . . . raised her arms
and began jabbing her fingers close to Ms. Coyne's face
while continuing to scream at her.” Id. ¶
12. Ms. Coyne asserts that she immediately reported this
incident to the Human Resources Department and to her
supervisor, Defendant Gail McGuire. Id. ¶¶
13-15. According to Plaintiff, however, Defendant McGuire
took no action to address Ms. Coyne's concerns about Ms.
Little. Id. ¶ 20. In January 2012, Ms. Coyne
sought medical treatment for her workplace-induced anxiety
and eventually took time off work under the Family Medical
Leave Act (“FMLA”). Id. ¶¶
28-29. When she returned to work in February 2012, Plaintiff
states Defendant McGuire and Defendant Nicholas Degidio
informed her that she was being removed from her prior
position and transferred to a new office. Id.
¶¶ 34-35. Later, in March 2013, Ms. Coyne was
fired. Id. ¶ 58.
December 11, 2014, Ms. Coyne and her husband brought suit
against Defendants for their alleged mistreatment of Ms.
Coyne as an employee. Plaintiffs' complaint contains ten
counts (some of which are not asserted against all
Defendants): breach of contract, breach of the implied
covenant of good faith and fair dealing, an FMLA claim, a
state law retaliation claim, an all-purpose negligence claim,
a tortious interference with contract claim, a state law
wrongful termination claim, an intentional infliction of
emotional distress claim, an assault claim, and a claim for
loss of consortium. See generally id.
April 20, 2015, the Court dismissed Count VII of the
Complaint with prejudice and, with regard to the individual
Defendants only, Count IV of the Complaint. Doc. 24. On
February 20, 2016, Defendants filed a motion to amend their
answer to assert the affirmative defense of after-acquired
evidence. Doc. 60 at 3. This affirmative defense is
predicated on evidence that Plaintiff repeatedly used her
Laboratory work space and computer, while at work for
Defendant LANS, to do work for her husband's private
counseling business, which included disclosing private,
protected health information about her husband's
counseling patients. Doc. 60 at 2-3. The Court granted
Defendants' motion on June 24, 2016 and Defendants filed
their amended answer on June 27, 2016. Docs. 89, 91.
regard to discovery disputes, on February 29, 2016, the Court
granted in part Plaintiffs' Motion to Compel and ordered
Defendant LANS to provide certain information in response to
various interrogatories. Doc. 64 at 12. Having denied other
aspects of the Motion, however, the Court required the
parties to pay their own respective attorney's fees.
Aside from this instance, the remaining discovery disputes in
this case involved Plaintiffs' repeated failures to
comply with their discovery obligations. These failures
ultimately resulted in the award of attorney's fees and
other sanctions imposed against Plaintiffs.
March 10, 2016, the Court granted in part a motion to compel
filed by Defendant LANS. Plaintiff's husband, who was a
party at the time, had refused to provide discoverable
documents or answer certain questions during his deposition.
Doc. 70. In addition to granting the Motion with regard to
Mr. Coyne, the Court ordered a second deposition at his
expense so that he could answer relevant questions he had
previously refused to answer. Doc. 70 at 3-7. With regard to
Plaintiff, the Court ordered that she produce certain
“LANS system email communications and complete
privilege log accounting for all other communications between
herself and her counsel while she was employed by LANS . .
..” Doc. 70 at 6-7. Finally, the Court determined that
“Plaintiffs [had] refused to comply with Defendant
LANS' discovery requests even after extensive good-faith
efforts were made to secure them and none of Plaintiffs'
objections were substantially justified.” Doc. 70 at
15. As a result, the Court ordered Plaintiffs to pay
Defendant's reasonable attorney's fees and costs
incurred in bringing the Motion. Doc. 70 at 16.
29, 2016, the Court issued an Order on Defendants' Motion
to Strike Expert Witness and for Sanctions (Doc. 79). Doc.
94. In the Motion, Defendants represented that Plaintiff (but
not her attorney) had informed her mental health counselor,
who she had declared as an expert witness, that she would not
actually have to testify. Doc. 94 at 2-3. Defendants, unaware
of Plaintiff's communication, paid to depose the expert
only to discover that the expert was unable to provide any
opinion as to Plaintiff's current emotional or
psychological state. Nor could the expert use her treatment
notes to provide an opinion as to Plaintiff's emotional
and psychological state at the time of treatment. Doc. 94 at
3. As a result, Defendants asked the Court to bar the witness
from giving expert testimony and to award attorney's fees
and costs incurred as a result of Plaintiffs'
“inaccurate and misleading” disclosure of the
counselor as an expert witness. Doc. 94 at 3. The Court
sympathized with Defendants' legitimate frustration but
ultimately denied Defendants' Motion largely because the
counselor's treatment notes contained information that
could potentially be admitted despite the witness's lack
of memory. Doc. 94 at 5.
than two weeks later, on July 7, 2016, Defendants filed their
Motion for Sanctions for Failure to Obey Discovery Order
based on Plaintiffs' failure to pay the previously
ordered sanctions or to provide documents as the Court
ordered on March 10, 2016. Doc. 97. Defendants also
complained about the difficulty they were having obtaining
appointment calendars and billing records related to Mr.
Coyne's business. Doc. 97 at 3-10. They noted that
Plaintiffs failed to produce this information in response to
their discovery request, required them to file a motion to
compel, failed to then produce the information by March 24,
2016 as the Court ordered, and still had not produced it
before Mr. Coyne's second deposition. Doc. 97 at 3-8.
Further, Defendants noted that Plaintiff Suzanne Coyne
testified during her deposition that she handles her
husband's billing records. Doc. 97 at 3-8. The records
she brought to her June 14, 2016 deposition, however, did not
cover all relevant years. Doc. 97 at 3-8. In their Reply
filed on August 2, 2016, Defendants argued that
Plaintiffs' failure to produce appointment books for 2014
and 2015 on the basis that they “cannot find”
them constituted spoliation. Doc. 103 at 2. Defendants also
asserted that “Plaintiffs' recent production of
additional pages from Mr. Coyne's 2013 appointment book
have only compounded the problem and raise serious questions
about the authenticity of these documents, as many of the
pages from the most recent set of 2013 entries are markedly
different from the entries for the exact same dates
in 2013 that Plaintiffs previously produced.” Doc. 108
at 2 (emphasis in original). During an August 12, 2016
hearing on the matter, the Court expressed concern about the
discrepancies in the appointment calendars produced, agreed
that Defendants deserved an explanation that would now
require a third deposition of Plaintiffs, and found it
“very troubling” that Plaintiffs claimed that
could not find otherwise discoverable appointment books. Doc.
112 at 3.
further noted that Plaintiff failed to supplement her initial
disclosures by providing text message communications with her
psychiatrist. Doc. 97 at 10. Defendants noted that Plaintiff
failed to produce or identify this information in discovery
and, when her cellular telephone was examined during her June
14, 2016 deposition, it appeared that those messages had been
deleted. Doc. 97 at 10. Defendants further noted that,
inconsistent with her deposition testimony that she and her
husband were experiencing financial stress and struggling to
make ends meet, Plaintiffs were able to come up with a $10,
000 cash only bond to get Mr. Coyne out of jail (although Mr.
Coyne swore that his son paid the bond with money the son
borrowed) and purchase a new Harley Davidson motorcycle. Doc.
97 at 9, 14, 97-8 at 3. On August 12, 2016, the Court granted
most of Defendants' requested relief, including ordering
Plaintiff and her husband to pay the costs and fees
associated with their second deposition as well as the cost
and fees associated with a third deposition for each of them.
Doc. 111 at 2.
that they had been unable to obtain sufficient evidence to
quantify Mr. Coyne's loss of consortium damages,
Plaintiffs filed a motion to amend their Complaint to dismiss
Mr. Coyne's loss of consortium claims (Count X). Doc. 116
at 4-5. Although Defendants did not oppose the dismissal of
Count X, they argued that the dismissal should come with
consequences. They argued that Mr. Coyne knew his claim was
meritless when he filed it, that Defendants spent
“thousands of dollars chasing down the evidence”,
and that Plaintiffs should have to pay the fees and costs
Defendants expended in defending against Mr. Coyne's
claim. Doc. 120 at 1. The Court dismissed Count X of the
Complaint and granted Plaintiffs' motion to file an
amended complaint. Doc. 134 (filed 1/5/17). In so doing, the
Court summarized Mr. Coyne's repeated failures to comply
with his discovery obligations and agreed with Judge
Molzen's decision to impose sanctions in response to
those repeated violations. Doc. 134 at 3-5. Because Judge
Molzen had already issued sanctions for these discovery
violations, however, the Court declined to issue additional
sanctions for these same violations. Doc. 134 at 6. Further,
while acknowledging that Defendants had a legitimate basis
for frustration, the Court also declined to take the
“extreme” action of imposing sanctions under 28
U.S.C. § 1927, which allows a court to sanction a party
who unreasonably and vexatiously multiplies the proceedings
in a case. Doc. 134 at 4-6.
November 9, 2016, Defendants filed their Second Motion to
Compel Discovery in an effort to have the Court compel
Plaintiff to submit her phone for forensic testing. Doc. 127.
Defendants noted that Plaintiff had acknowledged exchanging
text messages with her husband and psychiatrist but that she
allowed those messages to be deleted from her phone. Doc. 127
at 3-4. Plaintiff claimed that she did not realize she had a
duty to preserve those text messages and that her phone was
set to delete text messages every thirty days. Doc. 127 at
The text messages at issue were subject to disclosure
pursuant to Defendants' discovery request that Plaintiff
provide all text messages that “relate in any way to
any of the allegations contained in the complaint.”
Doc. 127 at 2 (internal citations and quotations omitted).
During a December 16, 2016 hearing on the Motion, Defendants
noted that they were looking for text message communications
Plaintiff had with her husband and with her psychiatrist from
December 2011 forward. Doc. 132 at 2. Defendants agreed that
Plaintiff had cooperated with other attempts to retrieve her
text messages. Doc. 132 at 2. Plaintiffs, who had not (and
still have not) paid the previous Court-imposed sanctions,
argued that they did not have the financial resources to pay
for the forensic examination. Doc 132 at 3. They conceded,
however, that neither had they sold the recently purchased
Harley Davidson motorcycle. Doc. 132 at 3.
Court's Order on Defendants' second motion to compel,
the Court noted that the recovery of text messages
“could have a significant impact on the pending
emotional distress and loss of consortium damages
claims” and opined, “[c]learly that is why
Defendant LANS continues to seek their production.”
Doc. 133 at 4. In acknowledging one clear reason Defendants
sought the text messages, however, the Court in no way
limited the use or discovery of text messages to that
purpose. Further, with regard to who would be required to pay
for the forensic examination, the Court noted, “[t]here
is no indication that Mrs. Coyne deliberately erased the
messages because they will likely benefit Defendants'
case[.]” Doc. 133 at 5, n.4. Nonetheless, the Court
required Plaintiff to split the cost of the forensic
examination because she “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.” Doc. 133 at 5. Importantly, at the time the
Court Dated this Order it had no indication that Plaintiff
deliberately erased the messages. As set forth below,
however, Plaintiff's most recent actions now provide such