United States District Court, D. Oregon, Eugene Division
UNITED HERITAGE PROPERTY & CASUALTY COMPANY, Petitioner.
OPINION AND ORDER
AIKEN UNITED STATES DISTRICT JUDGE
case arises out of a claim for insurance coverage after a
house fire completely destroyed the home of George Moore and
Kimberly Patton. The insurer, petitioner United Heritage
Property & Casualty Company, filed an ex parte
verified petition for an order granting it the right to
inspect Mr. Moore's and Ms. Patton's cell records. I
held a hearing on May 30, 2018. Although Mr. Moore and Ms.
Patton received notice of the hearing, they did not appear.
For the reasons set forth below, the petition is denied and
this case is dismissed.
Heritage filed its petition under Federal Rule of Civil
Procedure 27, Federal Rule of Civil Procedure 34, and
Martin v. Reynolds Metals Corp., 297 F.2d 49 (9th
Cir. 1961). Rule 27, titled "Depositions to Perpetuate
Testimony, " provides that "[a] person who wants to
perpetuate testimony about any matter cognizable in a United
States court may file a verified petition . . . ask[ing] for
an order authorizing the petitioner to depose the named
persons in order to peipetuate their testimony." Fed, R,
Civ. P. 27(a)(1), Such a petition is appropriate only when
"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." Fed. R. Civ, P.
27(a)(1)(A). Rule 34 governs the production of documents,
electronically stored information, and tangible things for
Martin, the Ninth Circuit held that Rules 27 and 34,
together, authorize pre-suit orders to perpetuate evidence
"likely to be lost or concealed[.]"
Martin, 297 F.2d at 56. That case concerned an
aluminum reduction plant near Troutdale, Oregon. Cattle
ranchers with property near the plant claimed that
"fluorides emanating from the Reynolds' plant ha[d]
been discharged on their lands and into the water thereon,
and their cattle ha[d] been injured by eating vegetation and
drinking water contaminated by the fluorides."
Id. at 52. The ranchers claimed that the pollution
caused the death of 174 cattle over a two-year span, Reynolds
expected the ranchers to sue, but had no grounds on which to
file its own lawsuit. It therefore filed a petition for an
order permitting it to have an expert inspect the cattle
(both living and dead) and to take samples of blood, urine,
feed, air, water, soil, and vegetation. The court granted the
petitioner, holding that Reynolds had satisfied the
requirements of Rules 27 and 34 and shown that perpetuation
of the physical evidence was warranted.
case, petitioner suspects that the house fire was an arson
and that Mr, Moore and/or Ms. Patton had something to do with
setting the fire. The Roseburg Fire Department called the
fire suspicious. United Heritage states that it examined Mr.
Moore and Ms. Patton under oath and that they made
inconsistent statements about, among other things, (1) phone
calls they made and received soon after the fire was
discovered and (2) their location in the days and hours
leading up to the fire. According to United Heritage, Mr.
Moore and Ms. Patton also made statements about their phone
calls the day of the fire that conflict with Roseburg Police
Department records. United Heritage wants to obtain cell
phone records from U.S. Cellular and Straight Talk Wireless
in order to complete its investigation into Mr. Moore's
and Ms. Patton's insurance claim. The fire took place on
October 22, 2017; United Heritage seeks cell records for a
three-month period, from October 1 to December 31, 2017.
Rule of Civil Procedure 27(a)(1)(C) requires a person who
wants to perpetuate testimony to state the reasons that
perpetuation is necessary. The Third Circuit has held that,
absent the risk evidence will change or degrade, Rule 27 is
not satisfied because there is no need to
"perpetuate" anything, Ash v. Cort, 512
F.2d 909, 911 (3d Cir. 1975); see also State of Nev. v.
O'Leaiy, 63 F.3d 932, 936 (9th Cir. 1995) (citing
Ash with approval). The Ninth Circuit's approval
of the petition in Martin is consistent with that
reasoning; an order to permit inspection was appropriate in
Martin because the physical evidence could be lost
(the ranchers were disposing of dead cattle without
permitting Reynolds to perform autopsies) or deteriorate
(presumably, evidence of fluoride in cattle blood, cattle
urine, soil, or vegetation would degrade over time). Here, by
contrast, petitioner has introduced no evidence that the
phone records are at risk of being altered, lost, or
destroyed. At the hearing, counsel for petitioner conceded
that he had no information about the data retention policies
of U.S. Cellular and Straight Talk Wireless. I find that
petitioner has failed to carry its burden to set forth
sufficient justification to perpetuate Mr. Moore's and
Ms. Patton's cell records.
Rule of Civil Procedure 27(a)(1)(C) also requires the person
seeking to perpetuate evidence to describe the facts sought
to be established through the perpetuated testimony. The U.S.
District Court for the District of New Mexico recently denied
a Rule 27/Rule 34 petition that, like the one at issue here,
sought production of phone records in connection with an
insurance claim investigation following a house fire.
Pacific Indem. Co., 2013 WL 12329887, *5 (D.N.M.
July 15, 2013). The petitioner-insurance company sought
records that would "reflect the communications made by
[the insured] during the period before and after the fire
which is the subject of [his] insurance claim."
Id. The court found that description insufficient
for two reasons:
First, the request asks for all cell phone records
regarding phone calls made and received during a certain
period of time. Second, and more importantly, the request
fails to describe or identify the substance of the evidence
it seeks to preserve from the cell phone records. Put
bluntly, the Petitioner wants to go on a fishing expedition
to see if [the insured] 's cell phone records reveal
phone calls to a putative arsonist who could be responsible
for the house fire suffered by [the insured], Thus,
Petitioner seeks to discover or uncover evidence, not
the reasoning of Pacific Indemnity persuasive and
apply it here. Like in Pacific Indemnity, petitioner
seeks all phone records from a particular period of
time. Also like in Pacific Indemnity, petitioner
does not describe in any detail the substance of the evidence
it seeks to access; rather, petitioner surmises that the
phone records may shed light on alleged inconsistencies in
Mr. Moore's and Ms. Patton's sworn statements, I find
that petitioner's request is overbroad and that petition
has failed to carry its burden to describe with sufficient
specificity the evidence it seeks to perpetuate.
is not "a substitute for general discovery."
O'Leary, 63 F, 3d at 936 (citing Ash,
512 F.2d at 912). Granting the petition here would permit
petitioner to leverage the considerable power of civil
discovery to assist in the investigation of an insurance
claim, That is not the purpose of Rule 27.
Verified Petition for Order to Inspect Cell Phone Records
Pursuant to FRCP 27 (doc.1) is ...