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Safeco Insurance Company of America v. Long

United States District Court, D. Montana, Missoula Division

February 2, 2018

SAFECO INSURANCE COMPANY OF AMERICA, Plaintiff,
v.
DANIEL LONG and AT&T INC., Respondents.

          ORDER

          Jeremiah C. Lynch United States Magistrate Judge

         Safeco 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.

         I. Background

         The following facts are gleaned from Safeco's petition:

         Safeco 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.

         Safeco 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.

         The following facts can be implicitly gleaned from the cryptic statements of Safeco:

         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.

         II. Discussion

         A. Controlling Law

         Federal 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 petitioner's interest;
(C) the facts that the petitioner wants to establish by the proposed testimony and the ...

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