UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

SUMMER FURNITURE ON GRANT )

STREET, INC., d/b/a SUMMER )

FURNITURE, INC., )

Plaintiff, )

)

v. ) CAUSE NO.: 2:15-CV-362-TLS-JEM

)

SECURITY NATIONAL INSURANCE )

COMPANY and NORTHERN )

UNDERWRITING MANAGERS, INC., )

d/b/a NORTHERN ILLINOIS )

INSURANCE AGENCY, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on a Motion to Quash [DE 34], filed by Plaintiff Summer

Furniture on Grant Street, Inc., d/b/a Summer Furniture, Inc., on February 29, 2016. Defendant

Security National Insurance Company filed a response on March 14, 2016, and on March 17, 2016,

Plaintiff filed a reply. Plaintiff seeks to quash subpoenas duces tecum issued to three cell phone

companies by Security National. 

Plaintiff argues that it should have received notice of the subpoenas before they were issued. 

Federal Rule of Civil Procedure 45 provides, in part, that “[i]f the subpoena commands the

production of documents, electronically stored information, or tangible things or the inspection of

premises before trial, then before it is served on the person to whom it is directed, a notice and a

copy of the subpoena must be served on each party.” Fed. R. Civ. P. 45(a)(4).

In this case, Plaintiff argues that it did not receive a copy of the subpoenas from Security

National, and only became aware of them when it received a copy from its client. Security National

does not dispute that it failed to give notice to Plaintiff, but argues that Plaintiff has the opportunity
to have its objections to the subpoenas heard now, so that the lack of prior notice is moot and does

not cause any prejudice, especially since it issued cease and desist letters and has agreed not to

review any records it does receive. Plaintiff argues that Security National’s failure to provide notice

before issuing the subpoenas prevented Plaintiff from objecting before they were received by the

cell phone providers, and there is no guarantee that the providers will abide by the cease and desist

directives. In addition to the lack of notice, Plaintiff also argues that the subpoenas do not seek

information relevant to the case, since there are no claims or defenses pending to which the phone

records sought would be relevant. 

“The scope of material obtainable by a Rule 45 subpoena is as broad as permitted under the

discovery rules.” Graham v. Casey’s Gen. Stores, 206 F.R.D. 251, 253 (S.D. Ind. 2002). Pursuant

to Federal Rule of Civil Procedure 26, the scope of discovery is “any nonprivileged matter that is

relevant to any party’s claim or defense. . . . Relevant information need not be admissible at the trial

if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.

R. Civ. P. 26(b)(1). 

Security National argues that the cell phone records are relevant because it is the State Fire

Marshal’s opinion that the fire was of incendiary origin, and the records will show the whereabouts

of the insured and its key employees at the times surrounding the fire, thereby relating both to the

question of opportunity and of the credibility of those witnesses. Plaintiff argues that Security

National did not base its denial of the claim on a claim of arson, nor has it raised it as an affirmative

defense. Although Security National admits that it had not asserted an affirmative defense of arson,

it argues that it is reasonable for it to pursue those records as part of its evaluation regarding whether

it wants to bring an arson defense. In addition, it argues that Defendant Northern Underwriting

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Managers, Inc., d/b/a Northern Illinois Insurance Agency, has asserted as an affirmative defense that

is related to their investigation into arson. That affirmative defense alleges that “Plaintiff’s injuries,

damages, losses, and expenses were proximately caused either in full or in part by the negligence,

fault, or misconduct of Plaintiff.” 

Plaintiff argues that the Marshal’s report indicating that the fire was incendiary did not

conclude that the fire was caused by arson. It also argues that a party bringing an accusation of

arson as a defense should do so only after reasonable inquiry showing that such a defense is

warranted. It makes this argument pursuant to Federal Rule of Civil Procedure 11, which provides

that presentation of a pleading is a certification “that to the best of the person’s knowledge,

information, and belief, formed after an inquiry reasonable under the circumstances: . . . the factual

contentions have evidentiary support . . .”, Fed. R. Civ. P. 11(b)(3), and argues that Security

National is attempting to use the subpoenas to conduct discovery prior to bringing the defense. 

Security National argues that it is appropriate for it to make a reasonable inquiry to determine the

viability of an arson defense prior to bringing the defense. 

In this case, arson is not a defense brought by Security National, and the general defense of

its co-defendant is insufficient to make the phone records “reasonably calculated to lead to the

discovery of admissible evidence” based on the pleadings as they stand so far. Security National

did not move to amend its answer to add any affirmative defenses before the deadline to do so

expired, although it did file a motion requesting an extension of the deadline on that day. Security

National argues that even if it does not bring an arson defense, the records are also relevant to

whether or not the employees were telling the truth when they reported their whereabouts to the

State Fire Marshal, potentially giving Security National a basis for impeaching the credibility of the

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insured’s representatives and employees. Summer Furniture argues that this attempt is meaningless

absent an allegation of arson, since statements about the employees’s whereabouts are only relevant

if there is an allegation of arson. Security National has not provided any authority for the contention

that Rule 26 permits discovery into a matter that might be, but is not yet, a claim or defense, let alone

speculative grounds for impeachment of a potential witness, and the request seems more akin to a

fishing expedition than a legitimate attempt to attain admissible evidence. 

Security National does not dispute that it failed to comply with Rule 45’s requirement that

it inform each party of the subpoena before it was served. Furthermore, the phone records do not

appear to be relevant to any claim or defense in this case and the request at this time is overly broad. 

Accordingly, the Court hereby GRANTS the Motion to Quash [DE 34], QUASHES the

subpoenas issued by Security National Insurance Company to T-Mobile, AT&T Wireless, and

Cellco Partnership d/b/a Verizon Wireless dated February 28, 2016, and ORDERS that any

responses to the subpoenas that have been received by Defendant Security National as a result of

those subpoenas are barred from use in this litigation. 

SO ORDERED this 10th day of June, 2016.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN 

UNITED STATES DISTRICT COURT

cc: All counsel of record

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