United States District Court, D. Montana, Missoula Division
Jeremiah C. Lynch United States Magistrate Judge
Insurance Company of America ("Safeco") petitions
the Court under Federal Rule of Civil Procedure 27(a) for an
order authorizing it to depose the "custodian of
records" for respondent AT&T, Inc. for the purpose
of perpetuating that individual's testimony. Through the
deposition, Safeco seeks to obtain the historical cell site
data of two cellular telephones for the time period July 1,
2017 through August 1, 2017. For the reasons discussed below,
the Court concludes that Safeco's attempted use of
Fed.R.Civ.P. 27 is not proper under the circumstances
presented. Therefore, the petition is denied.
following facts are gleaned from Safeco's petition:
issued a homeowners insurance policy to Respondent Daniel
Long for a residence in Kalispell, Montana. The Safeco policy
was in effect on July 9, 2017, when a fire occurred at the
referenced residence. Mr. Long has made a claim for coverage
under the Safeco policy.
states it is "actively investigating" Mr.
Long's claim and that the cell tower information
requested is "necessary to the investigation of the
insurance claim and ultimate coverage determination."
(Doc. 1, at 3-4). Safeco avers that it expects it will be
subject to suit by Mr. Long for claims of breach of contract
and violation of the unfair trade practices provisions of the
Montana Insurance Code, Mont. Code Ann. § 33-18-201
("UTPA") "in the event the investigation is
delayed or coverage is denied." (Doc. 1, at 4). Safeco
also states that without the complete cell site data it
seeks, it cannot presently bring suit or cause suit to be
brought with respect to Mr. Long's claims. Safeco
provides the declaration of its attorney that cell phone
providers, such as AT&T, retain "cellular antenna
array information and tower location records.. .for a finite
period of time, usually six months to a year" -without
any declaration from a representative of AT&T
specifically. (Doc. 1-1, at 2). According to the affiant,
Safeco may be deprived of the cell tower records if it waits
to avail itself of the discovery process if and when
litigation is filed.
following facts can be implicitly gleaned from the cryptic
statements of Safeco:
believes that Mr. Long and/or his son committed arson but its
investigation apparently has not unearthed facts sufficient
to sustain that allegation. Safeco has availed itself of its
right under the terms of the insurance policy to take Mr.
Long's sworn statement. But it would like the opportunity
to engage in a fishing expedition to see if Mr. Long lied
about his whereabouts on or about the time of the fire.
Safeco could file an action for declaratory relief to have
the coverage dispute resolved, but it would like to engage in
presuit discovery under Fed.R.Civ.P. 27 in order to make sure
it does not run afoul of the fiduciary obligations it owes
Mr. Long. Safeco also understands that if the cell tower
information ultimately revealed that Mr. Long was truthful in
his statement under oath, then its delay in promptly
resolving Mr. Long's claim would serve as the predicate
for a bad faith suit under the UTPA. But Safeco would like to
have the imprimatur of the Court granting its presuit
discovery request to argue its delay in resolving Mr.
Long's claim was justified.
Rule of Civil Procedure 27 allows a person or entity to
obtain discovery before litigation has commenced where the
court is "satisfied that the perpetuation of testimony
may prevent a failure or delay of justice." Fed.R.Civ.P.
27(a)(3). The Rule requires the petition to establish, inter
alia, the following essential elements:
(A) that the petitioner expects to be a party to an action
cognizable in a United States court but cannot presently
bring it or cause it to be brought;
(B) the subject matter of the expected action and the
(C) the facts that the petitioner wants to establish by the
proposed testimony and the ...