Opinion
No. 01-MC-212-KHV.
July 10, 2001
MEMORANDUM AND ORDER
On June 13, 2001, William Groth ("Petitioner"), by and through counsel, filed a verified Petition (doc. 1) pursuant to Fed.R.Civ.P. 27(a) requesting leave to proceed with depositions prior to filing a lawsuit. For the reasons set forth below, the Court finds the Petition should be granted.
Background
Petitioner is an insured who recently had his monthly disability benefits terminated. Petitioner has been advised that he will receive a written decision regarding permanent termination. Since learning of the decision, Petitioner has attempted to obtain a copy of his claim file from MetLife. Although Petitioner allegedly has provided authorization to produce the file, MetLife has stated it will only produce the file in response to a subpoena with Petitioner's written authorization. Accordingly, Petitioner seeks to depose the MetLife's records custodian in order to compel MetLife to produce the file.
Pursuant to Fed.R.Civ.P. 27, Petitioner states he "expects to be a party to an action cognizable in a court of the United States but is presently unable to bring it or cause it to be brought in that ERISA requires a person to exhaust administrative procedures within the insurance company before filing suit." Petition at p. 2, ¶ 15 (doc. 1). Petitioner further states "the subject matter of this action is expected to be a claim that the denial and termination of benefits by Respondent is arbitrary and capricious." Id. at ¶ 16. Petitioner maintains that if he is allowed to take a records deposition and obtain the file in this matter, he will be able to present evidence to support his disability claim and thus allow him an opportunity to supplement the claim file before a written denial is made. Id. at ¶ 17.
Discussion
Rule 27(a)(1) of the Federal Rules of Civil Procedure provides that "[a] person who desires to perpetuate testimony regarding any matter that may be cognizable in any court of the United States may file a verified petition." Fed.R.Civ.P. 27(a)(1). Subsection (a)(3) of Rule 27 provides that an order allowing examination may be entered only "[i]f the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice. Fed.R.Civ.P. 27(a)(3).
Upon consideration of the facts presented, the Court is satisfied that a records deposition at this time may prevent a delay of justice as contemplated by Rule 27. Accordingly, Petitioner's request for an order allowing him to take Rule 27(a) depositions is hereby granted.
IT IS SO ORDERED.