Eze et al v. Lunsford et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PAULETTE EZE and PAMELA EZE SYLVESTRE,
as personal representatives of the Estate of
Presley Eze; ISAAC and LORETTA EZE,
parents of Presley Eze; PETE “OBI” EZE,
brother of Presley Eze; ELENA EZE, spouse
of Presley Eze; and VINCENT J. WARD,
as Guardian Ad Litem, of I.E., a minor child of
decedent Presley Eze,
Plaintiffs, 	No. 2:23-cv-00976-KWR-KRS
v.
CITY OF LAS CRUCES; and
BRAD JUSTIN LUNSFORD, in his individual
capacity,
Defendants.
MEMORANDUM OPINION AND ORDER COMPELLING FORENSIC
EXAMINATION OF DECEDENT’S CELL PHONE
Currently before the Court is Plaintiffs’ Motion to Compel Defendant City of Las Cruces
To Provide Complete Responses To Plaintiffs’ Second Set of Requests For Production (“Motion”),
filed on April 18, 2025. (Doc. 82). The Court resolved certain issues raised by the Motion in an
order entered on August 19, 2025. See (Doc. 128). There is one remaining unresolved issue:
whether the City of Las Cruces (“the City”) should be compelled to produce the iPhone belonging
to Presley Eze, Plaintiffs’ decedent, for examination by Plaintiffs’ forensic expert. The iPhone in
question was retrieved by the Las Cruces Police Department (“LCPD”) at the scene of the incident
that occurred on August 2, 2022, when Mr. Eze was shot and killed by LCPD Officer Brad
Lunsford. It has been in the LCPD’s possession ever since. As set forth below, the Court will order
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 1 of 20

2
the City to produce Mr. Eze’s iPhone to Plaintiffs’ expert, Scott Greene, of Evidence Solutions,
Inc., for purposes of conducting a forensic examination of the phone.1
Background
Defendant Lunsford was convicted in state court of voluntary manslaughter in the death of
Presley Eze on February 18, 2025. (Doc. 158 at 2). Plaintiffs sought to examine Mr. Eze’s iPhone
shortly thereafter, on February 21, 2025. See (Doc. 82 at 8; Doc. 82-1 at 11 (Plaintiffs’ Second Set
of Requests for Production of Documents)). The City did not serve a response to that discovery
request until April 16, 2025. The City’s written response objected to the production of Mr. Eze’s
mobile phone “because of the potential impact on an ongoing criminal case,” asserting that
Mr. Eze’s mobile phone is evidence in the ongoing criminal case against Defendant Lunsford.
(Doc. 82-1 at 11). The City further asserted that, although “the jury rendered a guilty verdict[,] …
Lunsford filed a motion for 	new trial,” and, “[u]ntil the state court denies [that motion], the
possibility of a new trial remains on the table.” (Id.). Moreover, the City continued,
Lunsford’s criminal defense [attorney], Matt Chandler, asked the
[LCPD] to hold onto Mr. Eze’s mobile phone and process the
phone’s contents. To date, the LCPD has not yet processed the
content of Mr. Eze’s mobile phone. With the request having been
made by Lunsford’s criminal defense attorney, the possibility exists
that Mr. Eze’s mobile phone may have exculpatory evidence.
(Id.).
1 Plaintiffs’ Motion seeks to compel production of two cell phones held by the LCPD: “Phone with Black case, item
#21,”and “Y-6, Black cell phone and metal clip, item #15.” (Doc. 82-1 at 11 (Request for Production (“RFP”) #7)).
Without explanation, the City’s response to RFP #7 referred only to “Mr. Eze’s mobile phone.” The Court sought
clarification at a hearing held on the Motion on August 15, 2025, at which time defense counsel explained that there
were two cell phones taken into evidence at the scene of the shooting. The first was a Verizon Android cell phone
found in the back seat of the automobile in which Mr. Eze was riding. According to the City’s counsel, the Android
was “not believed” to belong to Mr. Eze because “it was believed Mr. Eze owned an iPhone.” (Doc. 125 at 2-3). The
second cell phone was an Apple iPhone 13 Pro Max, which was found on the hood of an LCPD-marked vehicle. (Id.).
All parties appear to agree that the iPhone 13 belonged to Mr. Eze. Because Plaintiffs have only pursued their request
for production of Mr. Eze’s cell phone, the Court will not address RFP #7’s request to produce the Android cell phone
recovered at the scene of the shooting and currently in the LCPD’s possession.
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 2 of 20

3
Two days after receiving the City’s written response, on April 18, 2025, Plaintiffs filed the
present Motion seeking to have Mr. Eze’s cell phone “examined by an expert to download and
extract images and information contained on [it], and returned to evidence.” (Doc. 82 at 3).
According to Plaintiffs, the cell phone “may have been recording the subject incident, and/or
contain information about the decedent.” (Id.)
Shortly thereafter, on April 30, 2025, LCPD Officer Max Weir supervised a forensic
examination of Mr. Eze’s iPhone. (Doc. 174 at 4, 5). Although the City’s response to RFP #7 had
stated that the LCPD had “not yet processed the content of Mr. Eze’s mobile phone,” as it turns
out, Officer Weir’s April 30, 2025 examination was the second time that the LCPD had attempted
to extract data from the phone. The first attempt had been made more than two years earlier. Officer
Weir had retrieved the cell phone from the LCPD evidence room on August 16, 2022 at the request
of the LCPD detective investigating Mr. Eze’s August 2, 2022 shooting death. Using an extraction
tool known as GrayKey, he had attempted to extract data from the iPhone on August 25, 2022. (Id.
at 5). Officer Weir’s first extraction attempt on August 25, 2022 was unsuccessful, as was the
second extraction attempt, also using GrayKey, made on April 30, 2025, following Defendant
Lunsford’s criminal attorney’s request that the LCPD “process” the phone’s contents.
The City filed its written response to Plaintiffs’ Motion on June 1, 2025, at which time the
City asserted that it “stands by its objection” to producing Mr. Eze’s mobile phone because it is
evidence in an ongoing criminal case. (Doc. 104 at 2). Even though the LCPD had by then made
a second attempt to extract data from the iPhone, the City’s response to Plaintiffs’ Motion cited
case law in which courts have stayed discovery in civil proceedings when such discovery “could
adversely affect ongoing criminal investigations.” (Doc. 104 at 3 (citing Campbell v. Eastland,
307 F.2d 478 (5th Cir. 1962); SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980);
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 3 of 20

4
U.S. v. All Funds on Deposit in Suntrust Account No. XXXXXXXXX8359, in Name of Gold and
Silver Reserve, Inc., 456 F. Supp. 2d 64, 65 (D.D.C. 2006); and In re Ivan F. Boesky Securities
Litig., 128 F.R.D. 47, 51 (S.D.N.Y 1989)). The City did not specifically argue that the criminal
investigation of Defendant Lunsford was ongoing, nor did it explain how the discovery in question
“could adversely affect” Defendant Lunsford’s ongoing criminal trial proceedings. Nevertheless,
the City stated that, in a “show [of] good faith,” it had produced “the raw data extracted from
Presley Eze’s cell phone” to Plaintiffs on May 13, 2025, and that it was “actively working with
Plaintiffs’ counsel so that they can view the data.” (Id. at 3-4).
Plaintiffs’ reply brief, filed on June 16, 2025, stated that the City had only provided a
download of some of the data on Mr. Eze’s cell phone, and that a video may have been created by
either Mr. Eze or the person with him in the car, which was “not on the download of the iPhone
data produced.” (Doc. 107 at 3). Further, Plaintiffs argued, the data produced by the City was
“incomplete and largely incomprehensible,” and the City’s download report contained time stamps
indicating that “data was being generated on the phone after [Mr. Eze’s] death.” (Id.). Plaintiffs
argued that the time stamps suggested the possibility that data on the phone was being spoiled,
“creating an even greater need” for an independent forensic examination by Plaintiffs’ expert. (Id.).
On August 13, 2025, Plaintiffs presented further support for their Motion with the
supplemental filing of the Affidavit of Scott Greene, a principal of the forensic evidence
examination company Evidence Solutions, Inc. (Doc. 123-1, ¶¶ 2, 7). Mr. Greene stated in his
Affidavit that he has over forty years of experience as a technology, computer, and digital forensics
professional, and that he is an expert in “the acquisition, preservation, analysis, and presentation
of digital evidence, with a specialty in cell phone and mobile device forensics.” (Id. ¶¶ 3, 6).
According to Mr. Greene, the data produced to Plaintiffs by the City indicates that, between August
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 4 of 20

5
3, 2022 (the day after Mr. Eze’s shooting) and April 30, 2025, there were 4,892 new items
generated on the phone. (Id. ¶ 28). Mr. Greene further opined there was also a “reference” to a
video file created on August 2, 2022 at 16:47:30 (shortly before shots were fired by Defendant
Lunsford, killing Mr. Eze), but “[t]his video has no data contained in the file.” (Id. ¶ 29).
Mr. Greene stated that he believed the phone data provided by the City was incomplete, and that
he would be able to “confirm and expose more evidence from the device” by inspecting the cell
phone at his facility in Tucson Arizona. (Id. ¶¶ 31). Mr. Greene represented that no destructive
testing would be performed.” (Id. ¶ 35).
Following Plaintiffs’ filing of the Greene Affidavit, on August 1, 2025, the City filed an
Affidavit by Officer Weir. See (Doc. 124-1 ¶ 1). In his Affidavit, Officer Weir represented that he
is a “digital forensics examiner … specializing in cyber investigations and mobile device
forensics,” a role in which he “routinely preserve[s], acquire[s], and analyze[s] iOS and Android
devices using industry-standard tools (e.g., GrayKey, Cellebrite, UFED/Premium, Magnet
AXIOM).” (Id. ¶¶ 2, 3). Officer Weir stated that he has been unable to gain complete access to the
iPhone in question because it was locked with a passcode when the LCPD acquired it. In Officer
Weir’s opinion, it is not possible to get around the passcode protection on Mr. Eze’s iPhone
because it uses a version of Apple’s iOS operating system that is not supported by either GrayKey
or Cellibrite, another extraction device commonly used in the industry. See (id. ¶ 6f; Doc. 174 at
4).
The Court held a hearing on the Motion on August 15, 2025, at which it expressed concern
over Plaintiffs’ request to examine the iPhone, given that the phone was being held by the LCPD
as evidence in Lunsford’s criminal case, which, notwithstanding that a jury verdict was rendered
in February, was at that time still pending. Nevertheless, the Court continued its ruling on the cell
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 5 of 20

6
phone issue to allow the parties to file supplemental materials. Both parties filed supplemental
affidavits of their respective experts. (Docs. 137-1, 145-1). On October 6, 2025, the state court in
the criminal proceedings granted Lunsford a new trial. On October 10, 2025, the State filed a notice
of appeal from that ruling. (Doc. 158 at 2). On October 31, 2025, the City and Defendant Lunsford
filed a motion in this matter seeking a stay of trial pending resolution of the related criminal
charges against Defendant Lunsford. (Doc. 158). The stay motion is pending before the presiding
trial judge, and neither party has contended that it does or should affect the undersigned’s ruling
on the present Motion.
Given the on-going criminal state court proceedings, the importance to this case of video
evidence at the time of the shooting if such evidence does exist and could be made available, and
the opposing opinions of the parties’ experts on the question of whether the video could be
retrieved from Mr. Eze’s iPhone, the Court agreed to conduct an evidentiary hearing at which the
parties’ competing forensic experts would testify. That hearing was held via Zoom on November
20, 2025. Plaintiffs’ forensic expert, Mr. Greene, and the City’s forensic expert, Office Weir,
testified. At the end of that hearing, the Court gave the parties a preview of its ruling, stating that
it intended to issue a written order that would set forth the Court’s reasoning in greater detail. (Doc.
174). This memorandum opinion and order is that written ruling.
Discussion
Pursuant to Rule 26(b)(1) of the Federal Rule of Civil Procedure, a party “may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues at stake in the action,
the amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden or
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 6 of 20

7
expense of the proposed discovery outweighs its likely benefit. FED. R. C IV. P. 26(b)(1).
“Information 	within 	this 	scope of 	discovery 	need 	not 	be 	admissible in 	evidence to 	be
discoverable.” Id. “When determining whether to grant a motion to compel the forensic imaging
of a cell phone or other electronic device, courts have considered whether the examination will
reveal information that is relevant to the claims and defenses in the pending matter and whether
such an examination is proportional to the needs of the case given the cell phone owner’s
compelling privacy interest in the contents of his or her cell phone.” Hardy v. UPS Ground Freight,
Inc., No. 3:17-CV-30162-MGM, 2019 WL 3290346, at *2 (D. Mass. July 22, 2019).2
There is little doubt that a video taken at the scene of the shooting, if one exists, would be
relevant—and indeed, exceedingly important—evidence in this case. The issue therefore is
whether the proportionality requirement of Rule 26(b)(1) is satisfied. In most civil cases, the
proportionality analysis turns on the weighing of the relevance of the forensic examination against
the owner of the cell phone’s privacy interest in the contents of the phone. But here, the parties
seeking the forensic examination are the ones with the privacy interest. That is, all parties agree
that the iPhone in question belonged to Mr. Eze. As Mr. Eze is now deceased, the Estate has
stepped into his shoes as the owner of the iPhone. In other words, Plaintiffs, as the personal
representatives of the Estate, are seeking to examine a cell phone that belongs to them. Still, despite
there being no countervailing privacy interest at stake, this case presents a different countervailing
2 See, e.g., Dufrene v. Am. Tugs, Inc., No. CV 18-554, 2018 WL 6448838, at *3 (E.D. La. Dec. 10, 2018) (denying
motion to compel production of cell phones for forensic inspection due to the individual parties’ privacy interests
where the plaintiff’s request for “all cell phone information and data” would “reveal a plethora of irrelevant and
potentially highly personal information”); Ramos v. Hopele of Ft. Lauderdale, LLC, No. 17-62100-CIV-
MORENO/SELTZER, 2018 WL 1383188, at *3 (S.D. Fla. Mar. 19, 2018) (finding that the defendant’s request for a
forensic examination of the plaintiff’s cell phone was not tailored to obtain information that was relevant to any claim
or defense in the case, and that the proposed forensic examination was not proportional to the needs of the case or to
the plaintiff’s privacy concerns); John Crane Grp. Corp. v. Energy Devices of Tex., Inc., No. 6:14-CV-178, 2015 WL
11089486, at *3 (E.D. Tex. Feb. 2, 2015) (denying the plaintiff’s motion to compel forensic imaging of computer hard
drives because of the inherent privacy concerns).
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 7 of 20

8
interest that the Court must weigh against the relevancy of Plaintiffs’ request to examine Mr. Eze’s
iPhone. That countervailing interest stems from the concurrent criminal proceedings against
Defendant Lunsford. “The Constitution … does not ordinarily require a stay of civil proceedings
pending the outcome of criminal proceedings.” Dresser Indus., Inc., 628 F.2d at 1375 (citing
cases). “Nevertheless, a court may decide in its discretion to stay civil proceedings, postpone civil
discovery, or impose protective orders and conditions ‘when the interests of justice seem ( ) to
require such action, sometimes at the request of the prosecution, * * * sometimes at the request of
the defense(.)’” Id. (quoting United States v. Kordel, 397 U.S. 1, 12 n.27 (1970)). “The court must
make such determinations in the light of the particular circumstances of the case.” Id.
The City argues that a forensic examination of Mr. Eze’s cell phone by Plaintiffs would
interfere with ongoing criminal proceedings because the phone is being held by the LCPD as
evidence in the criminal case against Defendant Lunsford, and, although Lunsford was convicted
this past February, the state court has granted him a new trial. Until the state’s appeal from the new
trial ruling concludes, the City argues, it is unknown whether a second trial will proceed.
“Typically, 	a district 	court 	will 	stay 	civil 	proceedings 	in 	deference 	to 	parallel 	criminal
proceedings” 	for 	three 	reasons: 	“to 	protect 	the 	criminal 	defendant’s 	right 	against 	self-
incrimination, to prevent the criminal defendant or the Government from taking advantage of
broader discovery rights available under civil discovery rules, or to avoid revealing the criminal
defense strategy to the prosecution.” Sala v. United States, No. 05-cv-00636 LTB-PAC, 2007 WL
1576146, at *5 (D. Colo. May 30, 2007) (citing Dresser Indus., Inc., 628 F.2d at 1376); see also
Hillhouse v. IPFS Corp., No. CV 24-1855, 2025 WL 1884847, at *4 (E.D. La. July 8, 2025) (civil
discovery may be postponed until termination of a criminal action where there is “a real and
appreciable risk of self-incrimination,” or “to prevent extending criminal discovery beyond the
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 8 of 20

9
limits of Federal Rule of Criminal Procedure 16(b), exposing the defense’s theory to the
prosecution in advance of trial, or otherwise prejudicing the criminal case” (internal quotation
marks and citations omitted)). This case does not implicate any of these traditional concerns. That
is, Lunsford’s Fifth Amendment privileges are not implicated by Plaintiffs’ request to examine
Mr. Eze’s cell phone. Plaintiffs are not parties to the criminal proceeding, so there is no concern
about a party to those proceedings using a civil proceeding to get around restrictive criminal
discovery. And Lunsford’s criminal defense strategy would not be revealed to the prosecution by
allowing the discovery in question.3
Nevertheless, a delay in permitting Plaintiffs to have the cell phone forensically examined
in deference to Lunsford’s parallel criminal proceedings might still be warranted if important
interests would be served by the delay. To reach this conclusion, the Court must find that the
interests served by the delay outweigh Plaintiffs’ interest in proceeding with discovery in this civil
proceeding. See Sala, 2007 WL 1576146, at *4 (“Especially in cases of extraordinary public
moment, the individual may be required to submit to delay not immoderate in extent and not
oppressive in its consequences if the public welfare or convenience will thereby be promoted.”
(quoting Landis v. N. Am. Co., 299 U.S. 248, 256 (1936)). Some relevant factors include: (1) the
status of the case; (2) the interest of Plaintiffs in proceeding expeditiously with this civil litigation;
(3) the potential prejudice to Plaintiffs of a delay; (4) the efficient use of judicial resources; (5) the
3 On the other hand, all of the case cited by the City do involve facts implicating one or more of these three traditional
concerns. See Campbell, 307 F.2d at 487 (where civil litigant was attempting to make use of the liberal discovery
procedures applicable to a civil suit “as a dodge to avoid the restrictions on criminal discovery and thereby obtain
documents he would not otherwise be entitled to for use in his criminal suit”); All Funds on Deposit in Suntrust Acct.
No. XXXXXXXXX8359, in Name of Gold & Silver Rsrv., Inc., 456 F. Supp. 2d at 65 (finding that “civil discovery
would subject the government’s criminal investigation to early and broader civil discovery than would otherwise be
possible in the context of the criminal proceeding” (internal quotation marks omitted)); In re Ivan F. Boesky Sec.
Litig., 128 F.R.D. at 49–50 (finding that the complete disclosure demanded in civil proceeding of materials that would
not be obtainable under the criminal procedure rules should be temporarily deferred because of possible prejudice to
the criminal proceedings and to the public interest concerns in law enforcement).
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 9 of 20

10
interests of persons not parties to the civil litigation; and (6) the interest of the public in the pending
civil and criminal litigation. See Sec. & Exchange Comm’n v. Rivelli, No. Civ. A. 05CV1039RPM,
2005 WL 2789317 at *1 (D. Colo. Oct. 26, 2005) (citing cases). “The movant bears the burden of
showing that the requested postponement is necessary.” Id. As discussed below, “this case reduces
essentially to balancing the [City’s] claim of prejudice in the absence of a stay against [Plaintiffs’]
interest in proceeding expeditiously with the civil litigation and the potential prejudice to
[Plaintiffs] of a delay.” Sala, 2007 WL 1576146, at *5 (internal quotation marks omitted). After
weighing the parties’ respective interests, the Court finds that the City has not met its burden of
justifying the requested delay.
To begin with, it is unclear how the criminal proceedings against Lunsford, even if they
are ongoing, would be adversely affected if the Court were to allow Plaintiffs to conduct a forensic
examination of Mr. Eze’s cell phone. The Court agrees that the LCPD had an intervening right to
retain possession of Mr. Eze’s iPhone for some period of time to conduct its criminal investigation
against Defendant Lunsford. But the LCPD has had three years to conduct that investigation and
in that time has forensically examined the cell phone twice. Further, Officer Weir testified that the
City has gained all of the evidence from the phone that the City is capable of obtaining with
presently existing technology. Additionally, no evidence has been presented that a technological
advancement is imminent that would permit the City to gain additional evidence from the cell
phone. “[A]bsent sufficient justification, the government has no right to hold onto property that is
not contraband indefinitely” Lindell v. United States, 82 F.4th 614, 621 (8th Cir. 2023) (citing
United States v. Premises Known as 608 Taylor Ave., Apart. 302, Pittsburgh, Pa., 584 F.2d 1297,
1302 (3d Cir. 1978) (“[T]he government may not by exercising its power to seize, effect a De facto
forfeiture by retaining the property seized indefinitely.”)); see also United States v. Dennis, 622
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 10 of 20

11
F. Supp. 3d 1, 3–4 (S.D.N.Y. 2022) (granting defendant’s motion to order government to return
his cell phone to him, and rejecting the government’s argument that it needed to retain the cell
phone in order to “continue its review of the phone’s contents, which might provide evidence of
the crimes of which [the defendant] is accused,” stating that, “[t]he fact that the Government has
somehow not completed its extraction and/or review of the earlier communications despite having
had more than nine months to do so would be a flimsy excuse for not allowing [the defendant’s]
repossession of his property, and it invites inordinate delay”).
After Officer Weir’s initial examination of the iPhone on August 25, 2022, up until and
through the first criminal trial, no additional attempts to extract data from the phone were made,
whether on the LCPD’s own initiative or at the request of either the State or defense counsel in the
criminal case. As far as the Court is aware, Lunsford never made a request in the criminal
proceedings to inspect the cell phone himself, and neither the prosecution nor the defense sought
to introduce the cell phone into evidence during the first criminal trial.4 The Court also is not aware
of any motion in the criminal proceedings filed by Lunsford’s new criminal defense attorney
following the first criminal trial asking to inspect the cell phone. No party has indicated that the
State, as the prosecuting entity in the criminal proceedings, has any interest in conducting further
forensic examinations of the cell phone following the first criminal trial, or that the State is opposed
to the iPhone being released from the custody of the LCPD for a brief period to allow Plaintiffs to
conduct their own independent forensic testing of the phone for purposes of these proceedings. In
short, as far as the Court can tell, no party to the criminal proceeding is currently seeking to have
the cell phone examined.
4 See United States v. Dahda, No. 12-20083-02-DDC, 2020 WL 4192297, at *2 (D. Kan. July 21, 2020) (where
government did not object to returning certain items marked as exhibits but not admitted at trial to the defendant
following the conclusion of trial, notwithstanding a pending appeal).
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 11 of 20

12
Accordingly, the City’s argument that the cell phone should remain in the sole possession
of the LCPD until the criminal proceedings conclude in their entirety because the phone might be
needed as evidence in a second trial is not well taken. The only interest the LCPD has in retaining
sole possession of the cell phone, according to Officer Weir, is to ensure that the phone is not
physically damaged and that the data it contains is not compromised or destroyed in the event that
a means of extracting the data (which according to Officer Wier does not presently exist) is later
developed. The data that hypothetically could be extracted at some uncertain point in the future
would then be available as potential evidence for a second trial (if one actually occurs).
Initially, the argument advanced by the City seeks to protect not the government’s interest
in the evidence (even though it is a governmental entity that is holding onto the cell phone), but
Lunsford’s interest (as well as the City’s own interest, which is aligned with Lunsford’s in these
proceedings). Specifically, the City argues that Mr. Eze’s iPhone might contain “exculpatory”
evidence, and the City (not the State, on whose behalf the LCPD is holding the cell phone as
potential evidence) fears that Plaintiffs’ expert could possibly damage or render that evidence
inaccessible to Lunsford were he to need access to it in a second criminal trial. But Lunsford’s and
the City’s asserted interest in the iPhone as possible “exculpatory evidence” in the criminal
proceedings does not implicate the public interest in law enforcement, which serves as the
justification for a stay of civil proceedings, as discussed in the case law cited by the City. See, e.g.,
Campbell, 307 F.2d at 487 (“There is a clearcut distinction between private interests in civil
litigation and the public interest in a criminal prosecution …. [that ] requires a government policy
determination … [that] gives priority to the public interest in law enforcement.”). And while
Lunsford is entitled to certain constitutional protections as a criminal defendant, the City has not
cited any constitutional right of Lunsford’s that potentially could be violated by allowing Plaintiffs
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 12 of 20

13
access to Mr. Eze’s cell phone to conduct a forensic examination.5 Nor has the City cited any case
law to support an argument that a criminal defendant has a right to access evidence held by a law
enforcement agency to the exclusion of litigants in a parallel civil proceeding.6
Beyond the above, the City’s argument is built entirely on speculation. See, e.g., Sala, 2007
WL 1576146, at *7 (concluding that the argument for staying discovery “reduces essentially to
Government speculation”). For instance, it is speculation to rely on there being a second trial, and
speculation to rely on the possibility that a means for extracting the video might become available
at some point in the future. It is further speculation to say that the video on the cell phone could be
of such value to Lunsford that it might affect the jury’s verdict in a second trial. See id. (finding
that the “incremental value” of additional evidence that might be obtained following a stay was
“both speculative and minimal,” and thus that “[t]he prejudice to the Government in proceeding”
with the discovery in the civil proceeding was “slight”). More importantly, the City’s asserted fear
of damage or spoilation of the cell phone is speculative. If a party in the criminal proceedings were
to seek to use Mr. Eze’s cell phone later in those proceedings, there is no reason to believe that
Plaintiffs’ prior forensic examination of the phone would interfere with that later use so long as
proper steps are taken to maintain a chain of custody over the cell phone in these proceedings. See,
e.g., Vox Mktg. Grp., LLC v. Prodigy Promos L.C., 521 F. Supp. 3d 1135, 1147 n.33, 1148 (D. Utah
2021) (stating that, to the extent the defendants “suggest that there was a possibility that alteration
5 Cf. United States v. Lanham, No. 3:24-cr-67-CHB-01, 03, 2025 WL 2918046, at *8, 9 (W.D. Ky. Oct. 14, 2025)
(rejecting criminal defendant’s argument that the “lack of specificity and oversight in tool selection and examiner
conduct undermine[d] the constitutionality of the evidence obtained” from government’s examination of defendant’s
cell phone, where “the data was extracted using Cellebrite UFED software, which is specifically designed for this type
of extraction and forensic examination of cell phones” (internal quotation marks omitted)).
6 Cf. Sala, 2007 WL 1576146, at *8 (“At most, the Government suggests that its civil case will be prejudiced by its
inability to access information from the criminal case. However, the Government does not have a ‘special right’ to the
prosecutor’s files; any such access to the [ ] criminal files is a ‘windfall, not an entitlement.’”(quoting Belford Strategic
Inv. Fund, LLC v. U.S., 2005 WL 3278597 at *3 (N.D. Cal. Nov. 7, 2005)).
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 13 of 20

14
occurred because of an allegedly imperfect chain of custody for the Devices, that argument …
goes to weight rather than admissibility” (citing inter alia United States v. Yeley-Davis, 632 F.3d
673, 683 (10th Cir. 2011)).7
Against the City’s speculative reasons for why the criminal proceedings might be
prejudiced if the discovery is allowed here, the Court must weigh the prejudice to Plaintiffs in
delaying a forensic examination of Mr. Eze’s iPhone. “In general, the constitution protects
individuals from unlawful, excessive, and unreasonable interference by government agents,” and
“[t]he reasonableness of holding onto seized property is not dependent on the government’s belief
it has ‘an ongoing evidentiary need’ … as that might ‘in many cases impose an impermissible
burden on a citizen whose property is potential evidence’ and be ‘tantamount to a forfeiture without
the procedures required by statute and by due process.’” Lindell, 82 F.4th at 621 (quoting Premises
Known as 608 Taylor Ave.). As the Tenth Circuit has held, “[w]hile the government has a
legitimate interest in maintaining control of property relevant to the prosecution and sentencing of
a defendant until his criminal proceedings are final, it must establish the property seized is actually
relevant to that process. The government cannot simply rely on the possibility of resentencing to
7 See also United States v. Moore, 71 F.4th 678, 682, 687-88 (8th Cir. 2023) (finding no abuse of discretion in the trial
court admitting text message evidence despite defect in chain of custody resulting from series of events in which the
cell phone containing the text messages reset itself automatically as a result of the father of the cell phone owner trying
to gain access to the phone by guessing the passcode too many times, resulting in call history and many applications
being deleted from the phone, but the text messages were restored from the cloud through the backup process); United
States v. Moore, 425 F.3d 1061, 1071 (7th Cir. 2005) (rejecting the defendant’s chain-of-custody argument, and
providing that “[a] perfect chain of custody is not a prerequisite to admission, as gaps in the chain normally go to the
weight of the evidence rather than its admissibility” (alteration in original) (quotations and citations omitted));
Lanham, 2025 WL 2918046, at *10, 11 (rejecting criminal defendants’ argument that cell phone data should be
suppressed due to multi-agency handling of the cell phones in the time period between the government’s seizure of
them and when the forensic searches were conducted, stating that defendants presented only “hypothetical risks” that
might emerge” and offered no “evidence to substantiate their speculative chain of custody or improper dissemination
concerns”); United States v. Perocier, 269 F.R.D. 103, 107 (D.P.R. 2009) (“when faced with a chain-of-custody
challenge regarding computer data …, the proponent of the testimony need not prove that there was no chance of
tampering with or altering the data to establish reliability”); Floorgraphics, Inc. v. News Am. Mktg. In-Store Servs.,
Inc., 546 F. Supp. 2d 155, 169 (D.N.J. 2008) (rejecting challenge to an expert’s testimony “based on the possibility
that the underlying data could be altered” where there was “not a shred of evidence to indicate the files were in any
way manipulated”).
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 14 of 20

15
justify retaining all property seized, especially that of an apparently innocuous and irrelevant
nature.” United States v. Nelson, 190 F. App’x 712, 715 (10th Cir. 2006).8 The LCPD’s “continued
retention of the phone and all its data raises constitutional issues distinct from the lawfulness of”
the LCPD having acquired and retained possession of the phone in the first instance. Lindell, 82
F.4th at 621.9
To be sure, the Court is not ordering the LCPD to return Mr. Eze’s cell phone to the Estate,
nor have Plaintiffs requested that the Court do so.10 The cell phone will be turned over to
8 See also Mr. Lucky Messenger Serv., Inc. v. United States, 587 F.2d 15, 17 (7th Cir. 1978) (concluding that when no
charges have been filed for 17 months after the property was seized and the government is unable to present evidence
justifying such a delay, “constitutional violations emerge which would seem on equitable principles to mandate that
the property be returned”); Dahda, 2020 WL 4192297, at *2 (where the government argued it was entitled to retain
certain seized items that had been marked as government exhibits at trial, including wallets, cell phones, documents,
security cameras, and various other personal items, until the defendant’s direct appeal and any post-conviction motion
to vacate were concluded, court finds that the government’s continued retention of the items in question was
unreasonable because, although the items were potentially relevant if defendant were to be retried, a retrial was highly
unlikely); In re Grand Jury Subpoena Duces Tecum Issued to Roe & Roe, Inc., 49 F. Supp. 2d 451, 452–54 (D. Md.
1999) (“Because the Government’s evidentiary needs are satisfied, it must articulate some other continuing interest in
the property (that outweigh’s R & R’s interest in its return) in order to lawfully retain the products for evidentiary use.
The Court concludes that none of the Government’s assertions of a continuing interest in the property entitle it to
retain the products on the authority of a seizure or subpoena for evidence when it has satisfied its evidentiary needs
and R & R faces severe harm if the Dulles products are kept from it.”).
9 In comparison, in United States v. Pinto-Thomaz, 352 F. Supp. 3d 287, 311–13 (S.D.N.Y. 2018), the government
seized the defendant’s iPhone, which was locked and the defendant refused to provide the passcode. The government
had been unable to break the encryption, but argued against returning the cell phone to the defendant, “stating that it
was government policy not to return ‘[c]omputer data that is encrypted or unreadable … unless law enforcement
personnel have determined that the data is not (i) an instrumentality of the offense, (ii) a fruit of the criminal activity,
(iii) contraband, (iv) otherwise unlawfully possessed, or (v) evidence of the Subject Offenses.” Id. at 312. The court
found that the government’s retention of the iPhone was not illegal and the defendant was not entitled to the iPhone’s
return, noting that “[t]he Government has only possessed the iPhone in question for a matter of months at this point,
hardly a constitutionally significant period of time given the encryption difficulties.” Id. at 313. In this case, the LCPD
has retained the iPhone for years, not months. Moreover, the iPhone is not an instrumentality of the offense, a fruit of
any criminal activity, contraband, or otherwise unlawfully possessed, and the State has not claimed that it constitutes
“evidence of the subject offense.”
10 Rule 41 of the Federal Rules of Criminal Procedure provides that “[a] person aggrieved by an unlawful search and
seizure of property or by the deprivation of property may move for the property's return.” FED. R. CRIM . P. 41(g). To
prevail on a Rule 41(g) motion, the moving party “must demonstrate that (1) he is entitled to lawful possession of the
seized property; (2) the property is not contraband; and (3) either the seizure was illegal or the government's need for
the property as evidence has ended.” Pinto-Thomaz, 352 F. Supp. 3d at 312 (internal quotation marks and citation
omitted). Rule 41 does not apply here, however, because the cell phone is being held by state, not federal, authorities.
See, e.g., U.S. v. Burton, 167 F.3d 410 (8th Cir. 1999) (district court improperly denied motion for return of property
seized by city police officers without receiving evidence to determine who had custody or possession of the subject
property, where court denied motion based on finding that federal government could not be held responsible for
returning movant property if it lacked custody of the property). And it is unclear in any event whether these civil
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 15 of 20

16
Mr. Greene, who will conduct his forensic examination of the cell phone, and then return it to the
custody of the City. Nevertheless, in determining whether Plaintiffs’ interest in a forensic
examination of the cell phone outweighs the City’s asserted interest in a delay of that discovery
request, the Court is concerned with the fact that the iPhone belonged to Mr. Eze, who is the victim
of the crime that Defendant Lunsford is accused of having committed. Yet it appears that what is
standing between the return of Mr. Eze’s property to his Estate is not the State asserting an
investigatory or evidentiary interest in the cell phone but the City and Defendant Lunsford
asserting that interest. It makes sense for the Court to consider the Estate’s ownership interest in
Mr. Eze’s cell phone in determining whether Lunsford’s asserted interest in protecting the phone
from potentially being damaged should trump Plaintiffs’ interest in having their expert conduct a
forensic examination of the phone for purposes of discovery in this case. Defendant Lunsford’s
interests do not trump the interests of the Estate in having the cell phone examined
Beyond the Estates’ ownership interest in Mr. Eze’s cell phone, and extremely important
to the Court’s analysis here, is the fact that the delay the City seeks is open-ended and likely
substantial. See Sala, 2007 WL 1576146, at *6. The shooting in which Mr. Eze was killed occurred
more than three years ago, in August 2022. This civil proceeding was filed on November 3, 2023.
Plaintiffs were initially prevented from seeking the discovery in question by the ongoing criminal
proceedings. Plaintiffs finally sought the discovery when Lunsford’s criminal trial concluded in
February 2025. They would have been entitled to that discovery at that time but for Lunsford’s
filing of a motion for a new trial. With the state court now having granted that motion, there is no
proceedings would be the proper forum for a motion for return of seized property. See, e.g., Black Hills Institute of
Geological Res. v. U.S. Dept. of Justice, 967 F.2d 1237 (8th Cir. 1992) (motion under Federal Rule Criminal Procedure
41(e) is typical instrument to seek return of seized property after indictment has been issued); In re Certain
Pharmaceuticals and Proceedings of Northland Providers, Inc., 78 F. Supp. 2d 954 (D. Minn. 1999) (federal courts
have recognized independent cause of action for return of property based on their general equitable jurisdiction).
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 16 of 20

17
way to know how long the appeal of the state trial court’s order will take. And if the new trial order
is upheld, it is unknown how long it will take before a second criminal trial is held. If Defendant
Lunsford were to be convicted a second time, he could even argue for further delays based on the
time it would take for sentencing and then to complete additional appeals from his second
conviction.
The fact that a criminal trial has already taken place weighs heavily against delaying the
progress of this action, and, under these circumstances, Lunsford’s asserted interest in preserving
potentially exculpatory evidence on the cell phone for use if the state trial court’s order granting
Lunsford a new trial were to be upheld on appeal does not justify any further postponement of the
requested discovery. Plaintiffs have a strong interest in having this action proceed expeditiously,
and the Court's interest in the efficient use of its resources also favors proceeding with this
discovery on Plaintiffs’ claims against all Defendants. The Court’s impression is that Officer Weir
has done everything in his power to gain access to the data on the phone. And the Court
understands that one of the City’s primary arguments against the discovery request is that the
forensic examination which Plaintiffs seek to undertake will not be successful in extracting
evidence from the cell phone. An aspect of the proportionality determination is whether the party
requesting a forensic examination has shown that the data sought likely can be recovered. See, e.g.,
Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 652 (D. Minn. 2002). But Plaintiffs’
expert testified that there is a reasonable possibility that he could bypass the iPhone’s passcode
protection and access the video notwithstanding Officer Weir’s failed attempts to accomplish the
same result. The cell phone belongs to the Eze estate. Plaintiffs are entitled to at least attempt to
obtain the video evidence from the cell phone that they think is present on the cell phone.11 Of
11 See, e.g., Antioch Co., 210 F.R.D. at 652 (allowing access to defendants’ computer hard drive to “attempt to resurrect
data that ha[d] been deleted” where the defendant’s expert attested to the possibility that data could be recovered and
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 17 of 20

18
course, in trying, Plaintiffs should not destroy any data. But Mr. Greene’s testimony is that his
methods for attempting to extract data from the iPhone will not involve putting in additional
passcodes that might trigger the phone’s disabling or wiping mechanisms. To be safe, the Court
will order that no manual attempts to open the screen on the phone using a passcode be made
without prior court authorization.12
Conclusion
The Defendants have not shown that their interest in delaying the forensic examination of
the cell phone by Plaintiffs outweighs Plaintiffs’ interest in proceeding to attempt to obtain that
evidence.
ACCORDINGLY, the Court ORDERS that:
1. 	The City shall produce Mr. Eze’s iPhone to Mr. Greene for forensic examination at
Mr. Greene’s place of business. A chain of custody over the cell phone shall be maintained using
the procedures included in Plaintiffs’ RFP #7 and Mr. Greene’s Affidavits. (Doc. 82-1 at 11; Doc.
123-1 at 4; Doc. 137-1 at 5). That is, the cell phone should be shipped by its current custodian,
Officer Weir, who shall maintain sole, documented custody over the phone until it is handed off
to Federal Express for shipping. Officer Weir shall ship the cell phone using protective packaging
with tracking to:
Scott Greene
Evidence Solutions, Inc.
333 N. Wilmot Rd. Ste. 340
that further delay risked loss of relevant data); Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d 1050, 1054 (S.D. Cal.
1999) (allowing access to defendant’s computer based on a showing that “the probability that at least some of the e-
mail may be recovered is just as likely, if not more so, than the likelihood that none of the e-mail will be recovered”).
12 As agreed to by Officer Weir during the evidentiary hearing, Officer Weir is directed to determine any information
he can about how many attempts were made to unlock Mr. Eze’s iPhone manually using a passcode while the iPhone
has been in the possession of the LCPD, whether by him or anyone else, and what the passcodes were that were tried
without success. Reasonable efforts should be made to obtain this information within thirty days of entry of this
opinion and order, with the information obtained promptly conveyed to Plaintiffs’ counsel and Mr. Greene.
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 18 of 20

19
Tucson, AZ 85711-2607
Simultaneous with shipping, Officer Weir shall send the Case Code (“KK103”), the Tracking
Number, and the expected date of delivery to hsilva@evidencesolutions.com. Mr. Greene shall
maintain and document the chain of custody over the cell phone upon its arrival to his place of
business until Mr. Greene delivers the cell phone to Federal Express for return shipping. While
Mr. Greene has possession of the cell phone, he must use appropriate procedures to protect it. No
manual attempts to open the screen on the phone using a passcode shall be made without prior
court authorization. Mr. Greene should contact Officer Weir to arrange for the cell phone’s return
in a secure manner with chain of custody protected. Mr. Greene will be allowed to maintain
custody over Mr. Eze’s cell phone for a reasonable time. If Mr. Greene determines that his forensic
examination of the cell phone will require more than four weeks, he shall contact Officer Weir so
Officer Weir is aware of what those needs are. Mr. Greene and Officer Weir should then coordinate
with each other over the timing for returning the cell phone to Officer Weir upon completion of
the forensic examination by Mr Greene. Plaintiffs shall provide the City with logs prepared by
Mr. Greene demonstrating what was done during the forensic evaluation and what information or
evidence was obtained as a result of Mr. Greene’s forensic examination within thirty days of
returning the cell phone to Officer Weir.
2. 	The Court further orders that the cell phone not be shipped to Mr. Greene until
thirty days after the entry of this order. Within two business days after entry of this order,
Defendants’ counsel shall to give notice of this order to Defendant Lunsford’s criminal defense
attorney, Matt Chandler, by first class mail, postage prepaid, at 13033 Quaker Avenue, Lubbock,
Texas 79423, and by email to matt@mattchandlerlaw.com. Defense counsel is further ordered to
file a certificate of delivery of the aforementioned notice in the court file of this proceeding. In the
event that within thirty days after the entry of this order, Defendant Lunsford’s criminal defense
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 19 of 20

20
attorney obtains an order from a court of competent jurisdiction to promptly undertake and conduct
a forensic examination of Mr. Eze’s iPhone and a notice of that order is filed in the court file of
this proceeding within that thirty-day period, then the deadline for the City to deliver possession
of the cell phone to Mr. Greene will be extended for a reasonable time while the forensic evaluation
by Defendant Lunsford’s expert is conducted. Upon completion of the forensic evaluation by
Defendant Lunsford’s expert the City shall then promptly deliver possession of the cell phone to
Mr. Greene. In the event that Defendant Lunsford does not obtain the aforementioned order and
file a notice of that order in the court file of this proceeding within thirty days after this order is
entered, then the City shall promptly cause the cell phone to be shipped to Mr. Greene as discussed
in paragraph 1 above. Defense Counsel is further directed to keep Plaintiffs’ Counsel apprised
concerning any developments regarding the cell phone, or the timing of delivery of the cell phone
to Mr. Greene.
IT IS SO ORDERED this 5th day of December, 2025.
__________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
Case 2:23-cv-00976-KWR-KRS Document 193 Filed 12/05/25 Page 20 of 20