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Filing # 113351308 E-Filed 09/14/2020 08:41:38 PM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
MSP RECOVERY CLAIMS, SERIES LLC,
a Delaware series limited liability company,
MSPA CLAIMS I, LLC, a Florida limited
liability company, and SERIES PMPI,
a designated series of MAO-MSO CASE NO. 19-001054 CA 08
RECOVERY II, LLC, a Delaware series
limited liability company,
Plaintiffs,
vs.
HARTFORD ACCIDENT AND INDEMNITY
COMPANY, HARTFORD CASUALTY
INSURANCE COMPANY, HARTFORD FIRE
INSURANCE COMPANY, HARTFORD
INSURANCE COMPANY OF THE
MIDWEST, HARTFORD INSURANCE
COMPANY OF THE SOUTHEAST,
HARTFORD UNDERWRITERS INSURANCE
COMPANY, and PROPERTY & CASUALTY
INSURANCE COMPANY OF HARTFORD,
Defendants.
______________________________/
DEFENDANTS’ MOTION FOR PROTECTIVE ORDER
Pursuant to Rule 1.280(c) of the Florida Rules of Civil Procedure, Defendants
HARTFORD ACCIDENT AND INDEMNITY COMPANY, HARTFORD CASUALTY
INSURANCE COMPANY, HARTFORD FIRE INSURANCE COMPANY, HARTFORD
INSURANCE COMPANY OF THE MIDWEST, HARTFORD INSURANCE COMPANY OF
THE SOUTHEAST, HARTFORD UNDERWRITERS INSURANCE COMPANY AND
PROPERTY & CASUALTY INSURANCE COMPANY OF HARTFORD (collectively,
Case No. 19-001054
“Defendants”), appearing specially 1 and for the limited purpose of this Motion, hereby file this
Motion for a Protective Order requesting that the Court quash the subpoena duces tecum and
Notice of Deposition to Non-Party Insurance Service Office Inc. (“ISO”) filed by Plaintiffs on
September 2, 2020, and in support thereof state as follows:
BACKGROUND
Plaintiff MSP Recovery (“MSP”) is a serial litigant in both state and federal courts,
known for filing hundreds of actions against defendants in the insurance and healthcare sphere.
In this case, like many others, MSP claims to have assignments from various entities that permit
it to seek reimbursement from defendant insurers for the cost of medical care provided to
Medicaid enrollees. However, MSP has not identified any actual assignments that would convey
these rights to it. It has instead filed numerous “pure bills of discovery,” seeking to have
Defendants and others identify potential claims for it. Through this action, MSP seeks extensive,
sensitive, personal and medical information about the Hartford Defendant’s insureds—
individuals who are not parties to this action and are thus unable to assert and protect their own
privacy interests.
MSP originally filed this action against the Hartford Defendants on January 7, 2019,
asserting a single claim for a pure bill of discovery. The Hartford Defendants then filed a Motion
to Dismiss on numerous grounds. MSP then did nothing for more than a year, prompting the
Court to enter a sua sponte Notice of Lack of Prosecution and Order to Appear for Hearing on
June 15, 2020. Just before the Court’s August 25 hearing on its lack of prosecution, MSP finally
1
Defendants reserve all rights under Florida law, including the right to challenge
personal jurisdiction and service of process. See, e.g., Oy v. Carnival Cruise Lines, Inc., 632
So.2d 724, 725-26 (Fla. 3d DCA 1994) (motion for protective order does not constitute waiver of
defense of lack of personal jurisdiction).
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filed an Amended Complaint – which still fails to establish that MSP has any valid assignment of
third-party recovery rights. In its Amended Complaint, MSP again seeks a pure bill of
discovery, along with a claim for a declaratory judgment interpreting Fla. Stat. § 627.736. Both
of these claims present a purely legal question: The pure bill of discovery seeks a determination
as to whether MSP is entitled to the Defendants’ claims information. The declaratory relief
action merely seeks interpretation of a statute.
Facing likely dismissal of this action, MSP is now attempting an end-run around its own
pure bill of discovery claims by serving an improper subpoena duces tecum on nonparty
Insurance Service Office Inc. (“ISO”), a contractor to the Hartford Defendants that maintains
Hartford claims data pursuant to multiple agreements, including a Non-Disclosure Agreement
under which this information must remain confidential. See Notice of Deposition Subpoena
Duces Tecum to Non-Party, attached as Exhibit A. Stunningly, MSP’s subpoena reaches far
beyond the scope of its purported claims and seeks all claims data of ISO related to these
Defendants nationwide. MSP has served no less than 23 such subpoenas on ISO in Miami-Dade
lawsuits for pure bills of discovery that MSP has filed against dozens of insurers. See Sept. 4
correspondence to MSP, attached as Exhibit B. Cumulatively, MSP seeks through these
subpoenas data received by ISO on nearly every insurance claim submitted in the United
States in the past seven-plus years.
This subpoena to ISO is improper in every conceivable way: First, and most obviously, a
plaintiff pursuing a pure bill of discovery is simply not entitled to third-party discovery from a
nonparty under Florida law. Indeed, the very purpose of a pure bill of discovery is to seek a
judicial determination of whether the plaintiff is entitled to discovery from the defendant, not
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from third parties. In essence, MSP’s subpoena amounts to improper self-help for the very relief
that MSP is seeking its claims.
The limitlessness of the subpoena exposes MSP’s real motive here: To obtain documents
it has been denied by the court in a separate action (concerning Medicare claims, not Medicaid
claims) that MSP has brought against these same Defendants in U.S. District Court in
Connecticut. In that case, MSP essentially sought the same information – all of the Defendants’
Medicare claims nationwide – but the Court has entered an order staying discovery. See MSP
Recovery, Claims Series LLC v. Hartford Fin. Servs. Grp., No. 3:20-cv-00305-JCH, D.E. 24,
attached as Exhibit C. MSP cannot use this lawsuit – which is ostensibly limited to alleged
Medicaid claims in Florida – to collect nationwide discovery and avoid the reach of a separate
court order.
Beyond these obvious (and fatal) defects, there are numerous other reasons that this
subpoena should be quashed. Significantly, after trying to avoid the issue for more than a year,
MSP still cannot establish that it has standing to assert its pure bill of discovery against these
Defendants – let alone seek discovery from ISO, a stranger to this dispute – nor has MSP
established that it has personal jurisdiction over these Defendants. MSP cannot pursue any
discovery before addressing these threshold jurisdictional issues.
MSP’s subpoena to ISO is particularly oppressive and objectionable because it seeks the
protected private health information of the Defendants’ insureds – information which MSP has
no legal right to obtain. Beyond that, the subpoena is boundless in scope, seeking information
regarding all of Defendants’ claims nationwide for the past seven years. MSP’s audacious
attempt to avoid adjudication on its baseless pure bill of discovery and subpoena discovery to
which it is not entitled should be rejected out of hand. This subpoena should be quashed, and a
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protective order should be entered preventing any discovery before the Court rules on
Defendant’s Motion to Dismiss the Amended Complaint.
STANDARD OF REVIEW
Under Fla. R. Civ. P. 1.280(c), a party or the person from whom discovery is sought may
seek a protective order upon a showing of good cause to protect a party or person from
“annoyance, embarrassment, oppression or under burden or expense.” It is well-established that
a party has standing to object to a subpoena directed to a non-party witness, particularly when
the requested documents or information belong to the party, as is the case here. See, e.g., Sunrise
Shopping Ctr., Inc. v. Allied Stores Corp., 270 So.2d 32, 34 (Fla. 4th DCA 1972) (opposing party
has “standing to seek an order quashing the subpoena duces tecum on the grounds that itwas
unreasonable and oppressive as to the witness”). “In deciding whether a protective order is
appropriate in a particular case, the court must balance the competing interests that would be
served by granting discovery or by denying it.” Rasmussen v. S. Fla. Blood Serv., Inc., 500 So.2d
533, 535 (Fla. 1987). This includes consideration of the privacy interests of nonparties. Id. at
537. Defendants are clearly entitled to a protective order, for the reasons discussed below.
ARGUMENT
A. The Hartford Defendants Have Standing to Object to MSP’s Subpoena to ISO for
Data That Belongs to These Defendants.
As noted above, Florida law is clear that a party opponent has standing to seek a
protective order opposing an opposing party’s subpoena to a third party. See, e.g., Sunrise
Shopping Ctr., 270 So.2d at 34 (opposing party has “standing to seek an order quashing the
subpoena duces tecum on the grounds that it was unreasonable and oppressive as to the
witness”); accord Dade Cnty. Med. Ass’n v. Hlis, 372 So.2d 117, 121 n.5 (Fla. 3d DCA 1979).
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Indeed, Rule 1.280(c) expressly states that a party or the nonparty witness may seek a protective
order “to protect a party or person from annoyance, embarrassment, oppression or undue burden
or expense that justice requires.” Fla. R. Civ. P. 1.280(c) (emphasis added).
At a minimum, Rule 1.280(c) allows a party “to seek protection from a discovery request
made to a non-party in an action where the items sought belong to the party.” Ross Dress for
Less Virginia, Inc. v. Castro, 134 So.3d 511, 517 n.5 (Fla. 3d DCA 2014). Here, the data that
MSP seeks from ISO remains the property of the Hartford Defendants, as confirmed by The
Hartford’s contracts with ISO. 2 Under any analysis, the Hartford Defendants have standing to
seek a protective order as to the data sought in MSP’s subpoena to ISO.
B. MSP Cannot Use a Pure Bill of Discovery to Seek Discovery from a Third Party.
The purpose of a pure bill of discovery is to seek a court determination that a plaintiff is
entitled to discovery from the defendant. See Publix Supermarkets, Inc. v. Frazier, 696 So.2d
1369, 1370-71 (Fla. 4th DCA 1997) (“A pure bill of discovery lies to obtain the disclosure of
facts within the defendant's knowledge, or deeds or writings or other things in his custody”)
(emphasis added). Thus, under Florida law, a pure bill of discovery may not be used to seek
discovery from a witness or other third party with no interest in the suit. Poling v. Petroleum
Carrier Corp., 194 So.2d 925, 927 (Fla. 1st DCA 1967) (citing First Nat’l Bank of Miami v.
Dade-Broward Co., 171 So. 510, 511 (Fla. 1936)) (“the general rule in equity is that a person
who has no interest in the subject matter of the suit, or is merely a witness, cannot be made a
party defendant to a bill either for relief or for purposes of discovery”) (emphasis added); see
also Schwab v. Television 12 of Jacksonville, Inc., 1993 WL 169181, at *3 (Fla. Cir. Ct. 1993)
2
Defendants have not attached their contracts with ISO because the contracts themselves
are confidential. However, Defendants will provide these contracts to the Court for in camera
review upon request.
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(“a Pure Bill of Discovery may not be used to obtain information, prior to the bringing of an
action at law, from third-party witnesses”). MSP cannot seek by way of a third-party subpoena
information to which it would not be entitled if it brought a pure bill of discovery directly against
ISO.
Moreover, MSP admits in its Amended Complaint that it is not legally entitled to any
information or documents from these Defendants absent an order of this Court granting a pure
bill of discovery in its favor. Am. Compl,, ¶ 69 (“Plaintiffs lack an adequate legal remedy to
obtain the requested information; thus, a pure bill of discovery is the appropriate
remedy”). 3 Indeed, under Florida law, the absence of an adequate legal remedy is among the
elements that must be established to support a pure bill of discovery. See, e.g., Vorbeck v.
Betancourt, 107 So.3d 1142, 1145 (Fla. 3d DCA 2012). Obviously, if MSP has no legal right to
any discovery from the Defendants absent a court order granting such relief, then of course MSP
has no legal right to demand the same information from a third party.
In a similar context, Florida courts have held that a party asserting an accounting claim
must first establish its entitlement to an accounting before it is entitled to discovery of financial
records related to the accounting claim. See Colonies Condo. Ass’n, Inc. v. Clairview Holdings,
Inc., 419 So.2d 725, 726 (Fla. 5th DCA 1982). The same rationale applies here: MSP must first
establish its entitlement to a pure bill of discovery before it may seek discovery from the
Hartford Defendants – or anybody else.
3
Having admitted in its Amended Complaint that it has no legal right to seek this (or
any) discovery, MSP should be estopped from asserting otherwise in serving its subpoena on
ISO. See, e.g., Head v. Lane, 495 So.2d 821, 824 (Fla. 4th DCA 1986) (“a person should not be
permitted to unfairly assert, assume or maintain inconsistent positions”).
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If MSP were entitled to the discovery it seeks from ISO, then its claim for a pure bill of
discovery would be superfluous. If a party could simply file a claim for a pure bill of discovery
and use the pending claim to bootstrap discovery requests for the same material sought in its
claim, any plaintiff could use such a tactic to seek any documents from any entity without ever
having to assert a viable cause of action. This absurd reasoning is contrary not only to the narrow
purposes of a bill of discovery but also to the rules limiting discovery “to those matters relevant
to the litigation as framed by the parties' pleadings.” Rousso v. Hannon, 146 So.3d 66, 69 (Fla.
3d DCA 2014) (emphasis included). It is for this reason that a party may not “piggyback”
discovery requests to obtain discovery relating to nonexistent claims that have not been filed.
See, e.g., Rappaport v. Mercantile Bank, 17 So.3d 902, 907 (Fla. 2d DCA 2009); Lawhon v.
Mason, 611 So.2d 1367, 1368 (Fla. 2d DCA 1993). MSP’s subpoena takes “piggybacking” to
the extreme by using a pure bill of discovery as a vehicle for discovery requests it is otherwise
unable to pursue, to support claims that it has not filed.
In sum, MSP’s attempt to seek third-party discovery before its claim for a bill of
discovery is adjudicated is circular, nonsensical, contrary to Florida law and inconsistent with its
own pleadings. For this reason alone, the Court should enter a protective order and quash the
subpoena to ISO.
C. MSP’s Subpoena Is Wholly Unrelated to Its Claim for Declaratory Relief.
MSP cannot rely on its claim for declaratory relief to legitimize its subpoena to ISO.
In Count I of the Amended Complaint, MSP seeks only a judicial interpretation of Fla.
Stat. § 627.736(4). See Am. Compl. ¶¶ 54-60. Specifically, MSP seeks a declaration that
§ 627.736(4) requires Defendants and other insurers to (a) “ascertain whether their insureds are
entitled to Medicaid benefits”; (b) coordinate benefits among insurers as “primary payers”; and
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(c) alert Medicaid payers of their alleged primary payer obligations “to enable the proper
coordination of benefits.” Id. at ¶ 59.
Thus, MSP’s claim for declaratory relief presents a pure question of statutory
interpretation that does not require any fact discovery to resolve. Certainly, there is nothing
contained in the claims data maintained by ISO that would have any bearing on whether Fla.
Stat. § 627.736(4) requires the Hartford Defendants to affirmatively determine whether their
insureds have Medicaid benefits. The information sought in the subpoena to ISO is simply
irrelevant to the issues raised in MSP’s claim for declaratory relief. This claim cannot form the
basis of MSP’s improper subpoena. See Kobi Karp Architecture & Interior Design, Inc. v.
Charms 63 Nobe, LLC, 166 So.3d 916, 920 (Fla. 3d DCA 2015) (quashing subpoena where
appeals court was “at a loss as to how, or in what context, the requested information ‘appears
reasonably calculated to lead to the discovery of admissible evidence’”).
D. MSP Does NOT Have Standing to Assert Its Claims or Compel the Deposition of
Non-Party ISO.
Even if MSP could seek third party discovery based on its pure bill of discovery, or it
could conceivably seek discovery before adjudication of its pending pure bill of discovery, MSP
cannot do so in this case because it has not (and cannot) established that it has standing to assert
the claims in the Amended Complaint.
“Standing presents ‘a threshold inquiry’ that must be made at the commencement of the
case.” McCarty v. Myers, 125 So.3d 333, 336 (Fla. 1st DCA 2013) (internal citation omitted).
“Standing is a legal concept that requires a would-be litigant to demonstrate that he or she
reasonably expects to be affected by the outcome of the proceeding, either directly or indirectly.”
Beggi v. Ocean Bank, 91 So.3d 193, 195 (Fla. 3d DCA 2012) (citing Hayes v. Guardianship of
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Thompson, 952 So.2d 498, 505 (Fla. 2006)). Florida courts have long recognized that, in certain
circumstances, a plaintiff must first establish standing before it may proceed with discovery.
See, e.g., Revello Med. Mgmt., Inc. v. Med-Data Infotech USA, Inc., 50 So.3d 678, 679 (Fla. 2d
DCA 2010) (“before proceeding with discovery in this kind of suit, the plaintiff must identify
with reasonable particularity the nature of the trade secret involved. ..The plaintiff must, as a
threshold matter, establish that the trade secret exists”); Mays v. Twigg, 543 So.2d 241, 243 (Fla.
2d DCA 1989) (precluding discovery relating to paternity before court determines petitioner’s
standing); Miami-Dade County v. E. Partners, LLC, 2020 WL 559175, at *1 (Fla. 3d DCA Feb.
5, 2020) (“a trial court departs from the essential requirements of law when it compels
merits discovery prior to its determining whether a plaintiff has standing to serve as class
representative”); see also Colonies Condo. Ass’n, 419 So.2d at 726 (plaintiff must first establish
entitlement to accounting claim before it can seek financial discovery).
Here, MSP alleges that it has standing to assert these claims based on purported
assignments received from various healthcare providers that, it claims, permit it to seek
reimbursement from defendant insurers for the cost of medical care provided to Medicaid
enrollees. See Am. Compl. ¶¶ 11-14 & Appendix. However, some 20 months after MSP filed
this action, it still has not identified any actual assignments that would convey these rights to it or
establish its entitlement to a pure bill of discovery or any other relief.
MSP bases its claims on Florida’s Medicaid Third-Party Liability Act (“the Act”). Am.
Compl. ¶¶ 10, 44. The Act provides that the Florida agency overseeing the Medicaid program—
the Florida Agency for Health Care Administration (the “AHCA” or “Agency”)—is the “payor
of last resort.” Id. ¶ 44. For example, if a Medicaid enrollee is injured in a car accident, and is
covered under an auto insurance policy for medical expenses, the Agency can seek payment
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from the insurer to cover the cost of the enrollee’s medical care. E.g., id. ¶ 25. The Act provides
that AHCA may—or may not—delegate the responsibility to recover payments from liable third
parties to managed care organizations (“MCOs”), which typically provide services to Florida’s
Medicaid beneficiaries. See Fla. Stat. Ann. § 409.910(14) (“The agency is authorized to enter
into agreements to enforce or collect medical support and other third-party benefits.”). 4
MSP itself recognizes that an MCO can seek recovery from liable third parties only if its
contract with the Agency allows it to do so. Am. Compl. ¶ 33 (“The contract language between
the state Medicaid agency and the Medicaid MCOs. . . dictate the terms and conditions under
which the MCOs assume third-party liability responsibility”). MSP does not, however, allege
that the relevant contracts between the Agency and any MCOs at issue here (which appears to be
only Assignor PMPI) delegate the Agency’s right to pursue recovery from liable third parties to
those MCOs. MSP also does not allege that the Agency’s contracts with any MCOs permitted
the MCOs to further delegate or assign the responsibility to pursue third party liability claims to
any FDR entity that is listed as an Assignor. And MSP does not allege that any MCO (or AHCA
directly) in fact assigned to any of its FDR Assignors any third-party collection rights. Thus, the
Amended Complaint fails to establish that MSP has standing to assert any claims against these
Defendants – and therefore MSP cannot seek discovery from any party or nonparty in this
action. 5
4
See also Federal Register, Vol. 81, No. 88, at 27771 (noting that “states have wide
latitude in deciding what, if any, required Medicaid coordination of benefits/[third party liability]
functions they will delegate to the managed care plans”).
5
MSP’s claim for declaratory relief does not change this analysis. Indeed, in the absence
of any valid assignments originating with the State of Florida, MSP cannot establish the
existence of a present controversy or a bona fide, actual, present, practical need for a declaration,
as it must to establish the Court’s jurisdiction to entertain its claim for declaratory relief. Santa
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E. MSP Has Not Established Personal Jurisdiction Over Defendants and Thus Cannot
Sustain This Lawsuit.
Personal jurisdiction is also a threshold issue that must be adjudicated before MSP may
seek third-party discovery. In its Amended Complaint, like its original complaint, MSP has
failed to allege sufficient facts to establish personal jurisdiction over the Defendants.
Accordingly, Defendants intend to move for dismissal of the Amended Complaint under Fla. R.
Civ. P. 1.140(b)(2) (among other grounds). 6 When a defendant moves for dismissal for lack of
personal jurisdiction, the trial court must follow the two-prong test articulated in Venetian Salami
Co. v. Parthenais, 544 So.2d 499 (Fla. 1989). Under this test, a court must first determine
whether the complaint “alleges sufficient jurisdictional facts to bring the action within the ambit
of Florida’s long-arm jurisdiction statute.” Kingland Estates, Ltd. v. Davis, 170 So.3d 825, 829
(Fla. 3d DCA 2015). Here, MSP attempts to establish personal jurisdiction over the seven
Hartford Defendants primarily by parroting the language of Fla. Stat. § 48.193(1)(a)(1). Am.
Compl. ¶ 8. However MSP has failed to allege sufficient facts to demonstrate that it has any
cause of action arising from any business activities of any of these Defendants within the state,
or otherwise establish “connexity” between MSP’s claims and any of these Defendants purported
activities in Florida, as MSP must to establish personal jurisdiction. 7 See Schwartzberg v.
Knobloch, 98 So.3d 173, 177 (Fla. 2d DCA 2012).
Rosa Cnty. v. Admin. Comm’n, Div. of Admin. Hearings, 661 So.2d 1190, 1192-93 (Fla. 1995)
(“absent a bona fide need for a declaration based on present, ascertainable facts, the circuit court
lacks jurisdiction to render declaratory relief”).
6
Defendants’ response to the Amended Complaint is due on September 25, 2020. See
Aug. 20, 2020, Agreed Order Granting Motion for Extension of Time.
7
MSP cannot establish specific jurisdiction under Fla. Stat. § 48.193(1)(a)(4) because its
claims for declaratory relief and a pure bill of discovery do not arise from an insurance contract,
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Even if MSP could clear this initial hurdle, it would still be entitled to only a limited
evidentiary hearing where the parties present conflicting affidavits that cannot be reconciled.
Castillo v. Concepto Uno of Miami, Inc., 193 So.3d 57, 59 (Fla. 3d DCA 2016). In such
circumstances, a plaintiff may only seek limited discovery on the jurisdictional issue – not merits
discovery. See Gleneagle Ship Mgmt. Co. v. Leondakos, 602 So.2d 1282, 1284 (Fla. 1992)
(“the discovery which is envisioned by our holding here should not be broad, onerous or
expansive, nor should it address the merits of the case”).
Thus, even if MSP could establish a legal right to third-party discovery, or a legal right to
discovery before adjudication of its claim for a pure bill of discovery, and if MSP could also
show that it had standing to assert these claims, it still would not be entitled to anything more
than jurisdictional discovery until the Court determined whether it had personal jurisdiction over
Defendants. As the subpoena to ISO plainly is not relevant to any jurisdictional issues,
Defendants’ Motion for a Protective Order should be granted and the subpoena should be
quashed.
F. The Underlying Pure Bill of Discovery Is an Improper Fishing Expedition.
Beyond the fatal defects described above, MSP’s Amended Complaint is subject to
dismissal because it seeks to improperly use a pure bill of discovery to pursue a needless fishing
expedition – and the subpoena to ISO for all of Defendants’ claims data nationwide for the past
seven years is further evidence of the impropriety of this lawsuit.
“[A]lthough the pure bill of discovery remains part of our legal system, its use and
usefulness diminished greatly when Florida relaxed its pleading requirements to authorize liberal
and in an event MSP has failed to allege ultimate facts identifying any specific contract between
the Defendants and any allegedly injured party for which itallegedly received an assignment.
See Brown v. Carnival Corp., 202 F.Supp.3d 1332, 1343-44 (S.D. Fla. 2016).
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discovery. The pure bill remains available to identify potential defendants and theories of
liability, but may not be used as a fishing expedition to see if causes of action exist. Neither is it
simply to obtain a preview of discovery obtainable once a suit is filed. Such a use places an
undue burden on the court system.” Kirlin v. Green, 955 So.2d 28, 29-30 (Fla. 3d DCA 2007)
(citations omitted); see also Publix Supermarkets, 696 So.2d at 1371 (bill of discovery cannot be
used for fishing expedition); Mendez v. Cochran, 700 So.2d 46, 47 (Fla. 4th DCA 1997) (bill of
discovery cannot be used to preview discovery for lawsuit). Accordingly, pure bills of discovery
are rarely necessary. Trak Microwave Corp. v. Culley, 728 So.2d 1177, 1178 (Fla. 2d DCA
1998). A bill of discovery is only justified in “narrow and limited circumstances.” Venezia
Lakes Homeowners Ass'n, Inc. v. Precious Homes at Twin Lakes Prop. Owners Ass'n, Inc., 34
So.3d 755, 756 (Fla. 3d DCA 2010).
MSP’s Amended Complaint does not fit the “narrow and limited” circumstances under
which a pure bill of discovery can be obtained. The Amended Complaint states, in relevant part
that “Plaintiffs’ Assignors have learned via Florida crash reports records that a number of their
Enrollees were involved in an accident at the time they were insured by policies issued by
Defendants. However, Plaintiffs’ Assignors paid for the accident-related medical expenses.”
Am. Compl. ¶ 50. The Amended Complaint further alleges, “upon information and belief,” that
MSP has already “identifie[d] instances in which Plaintiffs’ assignors paid for accident-related
medical services on behalf of the Enrollees,” and asserts that “[t]hese payments should have been
paid by Defendants.” 8 Id. at ¶ 51. Thus, MSP already knows it wants to sue the Hartford
8
MSP attaches to its Amended Complaint a spreadsheet of unknown provenance that
purports to identify six specific claims of insureds that “should have been paid by Defendants.”
Am. Compl., Appendix Ex. A. However, MSP fails to identify these alleged insureds by name,
or provide other necessary information to identify these claims, and fails to identify which of the
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Defendants. It also knows why it wants to sue it—because MSP believes its Assignors
purportedly paid for medical care to Medicaid enrollees that should have been paid for by
Hartford. This pure bill of discovery thus amounts to an improper fishing expedition, which is
prohibited by Kirlin and similar cases. This action and the dozens of others just like it place an
undue strain on the legal system and on insurers like the Hartford Defendants.
Moreover, a bill of discovery may not be used to “determine whether sufficient evidence
exists to render [the] causes of action viable and/or nonfrivolous.” Kirlin, 955 So.2d at 30
(refusing to grant bill of discovery); Venezia Lakes, 34 So.3d at 759 (same); Kaplan v. Allen, 837
So. 2d 1174, 1176 (Fla. 4th DCA 2003) (“[A]ppellant may not obtain a pure bill of discovery as
an investigative tool to seek information that might uncover a potential claim”). This is exactly
what MSP is attempting to do here.
Because MSP may not use this bill of discovery to go on a “fishing expedition” for
information from the Hartford Defendants, it surely cannot subpoena ISO to achieve the same
illegitimate ends. See McCarty v. Schultz' Estate, 372 So.2d 210, 212 (Fla. 3d DCA 1979)
(“subpoena duces tecum may not be used for a mere ‘fishing expedition’ or general inquisitorial
examination”); Walter v. Page, 638 So.2d 1030, 1031 (Fla. 2d DCA 1994) (a “subpoena duces
tecum is not the equivalent of a search warrant, and should not be used as a fishing expedition to
require a witness to produce broad categories of documents which the party can search to find
what may be wanted”). Accordingly, the Court should enter a protective order and quash the
subpoena to prevent MSP’s improper fishing expedition.
G. MSP’s Subpoena Improperly Seeks the Protected Health and Financial Information
of Non-Parties.
seven defendants was allegedly responsible for the respective claims. These blind allegations are
insufficient to establish personal jurisdiction over any of the Hartford Defendants.
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MSP’s subpoena duces tecum also should be quashed because it seeks the private
medical information of non-parties, Defendants’ insureds. Specifically, MSP is seeking
identifiable information from Defendants’ insureds, such as: 1) Name, 2) Address, 3) Date of
Birth, 4) SSN, 5) alleged injury, 6) coverage type. See Ex. A, Schedule “A.” This kind of
information constitutes the personal and private medical information (“PHI”) or financial
information of Defendants’ Enrollees, who are not parties to this action and are not clients of
MSP’s counsel. Indeed, the private health information of Medicaid enrollees is expressly
protected from disclosure by state and federal law. See 42 U.S.C. § 1396a; Fla. Stat. §
119.0712(1). MSP cannot show that any applicable exceptions apply, or that it is otherwise
legally entitled to the private health information that it seeks with its subpoena.
As the Florida Supreme Court has held, one of the primary purposes of a protective order
is to “provid[e] protective measures to minimize the impact of discovery on competing privacy
interests,” including the privacy interests of nonparties. Rasmussen, 500 So.2d at 535 (quashing
subpoena seeking private information and identities of nonparty blood donors). Accordingly,
Florida courts have consistently refused to allow discovery of customers and insureds’ personal
information because of the infringement of such discovery on these individuals’ privacy rights.
See, e.g., Quest Diagnostics, Inc. v. Rapio, 54 So.3d 545, 546-47 (Fla. 3d DCA 2011) (quashing
discovery order for “invading the privacy of non-party patients”); Cedars Healthcare Grp., Ltd.
v. Freeman, 829 So.2d 390, 391 (Fla. 3d DCA 2002) (quashing discovery order where plaintiff
failed to demonstrate a compelling need for the discovery that outweighed the privacy interests
of non-party patients); Nat'l Sec. Fire & Cas. Co. v. Dunn, 705 So.2d 605, 608 (Fla. 5th DCA
1997) (trial court’s discovery order deemed improper because “proper consideration was not
16
Case No. 19-001054
given to the privacy rights of National's other thirty-eight insureds.”); Delta Health Grp., Inc. v.
Williams, 780 So.2d 337, 338-39 (Fla. 5th DCA 2000) (noting that discovery request seeking
information about other residents of nursing home implicated privacy rights of these other
individuals) (citing Colonial Medical Specialties of South Florida, Inc. v. United Diagnostic
Laboratories, Inc., 674 So.2d 923, 923-24 (Fla. 4th DCA 1996) (plaintiff laboratory in breach of
contract action did not meet its burden to show the need for the addresses and phone numbers of
approximately 300 patients of defendant medical office, as the need for this discovery would not
override the privacy rights of the nonparty patients) and Community Psychiatric Centers of
Florida, Inc. v. Bevelacqua, 673 So.2d 948, 951 (Fla. 4th DCA 1996) (although identities of
patients who witnessed an accident at the defendant psychiatric facility might be relevant to rebut
defendant's contention that plaintiff contributed to the accident by his own negligence, the
plaintiff's need for the information would not outweigh the right of privacy of the nonparty
patients)).
Significantly, at least one court in this Circuit has dismissed a similar pure bill of
discovery brought by MSP precisely because MSP was seeking private health information to
which it is not entitled. See MSP Recovery Claims, Series, LLC, et al., v. Bristol West Ins. Co.,
Case No. 2019-322-CA-01 (Fla. 11th Jud. Cir.) (Arzola, J.) (dismissing MSP’s claims seeking
auto-insurer company’
Preview
Filing # 113351308 E-Filed 09/14/2020 08:41:38 PM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION MSP RECOVERY CLAIMS, SERIES LLC, a Delaware series limited liability company, MSPA CLAIMS I, LLC, a Florida limited liability company, and SERIES PMPI, a designated series of MAO-MSO CASE NO. 19-001054 CA 08 RECOVERY II, LLC, a Delaware series limited liability company, Plaintiffs, vs. HARTFORD ACCIDENT AND INDEMNITY COMPANY, HARTFORD CASUALTY INSURANCE COMPANY, HARTFORD FIRE INSURANCE COMPANY, HARTFORD INSURANCE COMPANY OF THE MIDWEST, HARTFORD INSURANCE COMPANY OF THE SOUTHEAST, HARTFORD UNDERWRITERS INSURANCE COMPANY, and PROPERTY & CASUALTY INSURANCE COMPANY OF HARTFORD, Defendants. ______________________________/ DEFENDANTS’ MOTION FOR PROTECTIVE ORDER Pursuant to Rule 1.280(c) of the Florida Rules of Civil Procedure, Defendants HARTFORD ACCIDENT AND INDEMNITY COMPANY, HARTFORD CASUALTY INSURANCE COMPANY, HARTFORD FIRE INSURANCE COMPANY, HARTFORD INSURANCE COMPANY OF THE MIDWEST, HARTFORD INSURANCE COMPANY OF THE SOUTHEAST, HARTFORD UNDERWRITERS INSURANCE COMPANY AND PROPERTY & CASUALTY INSURANCE COMPANY OF HARTFORD (collectively, Case No. 19-001054 “Defendants”), appearing specially 1 and for the limited purpose of this Motion, hereby file this Motion for a Protective Order requesting that the Court quash the subpoena duces tecum and Notice of Deposition to Non-Party Insurance Service Office Inc. (“ISO”) filed by Plaintiffs on September 2, 2020, and in support thereof state as follows: BACKGROUND Plaintiff MSP Recovery (“MSP”) is a serial litigant in both state and federal courts, known for filing hundreds of actions against defendants in the insurance and healthcare sphere. In this case, like many others, MSP claims to have assignments from various entities that permit it to seek reimbursement from defendant insurers for the cost of medical care provided to Medicaid enrollees. However, MSP has not identified any actual assignments that would convey these rights to it. It has instead filed numerous “pure bills of discovery,” seeking to have Defendants and others identify potential claims for it. Through this action, MSP seeks extensive, sensitive, personal and medical information about the Hartford Defendant’s insureds— individuals who are not parties to this action and are thus unable to assert and protect their own privacy interests. MSP originally filed this action against the Hartford Defendants on January 7, 2019, asserting a single claim for a pure bill of discovery. The Hartford Defendants then filed a Motion to Dismiss on numerous grounds. MSP then did nothing for more than a year, prompting the Court to enter a sua sponte Notice of Lack of Prosecution and Order to Appear for Hearing on June 15, 2020. Just before the Court’s August 25 hearing on its lack of prosecution, MSP finally 1 Defendants reserve all rights under Florida law, including the right to challenge personal jurisdiction and service of process. See, e.g., Oy v. Carnival Cruise Lines, Inc., 632 So.2d 724, 725-26 (Fla. 3d DCA 1994) (motion for protective order does not constitute waiver of defense of lack of personal jurisdiction). 2 Case No. 19-001054 filed an Amended Complaint – which still fails to establish that MSP has any valid assignment of third-party recovery rights. In its Amended Complaint, MSP again seeks a pure bill of discovery, along with a claim for a declaratory judgment interpreting Fla. Stat. § 627.736. Both of these claims present a purely legal question: The pure bill of discovery seeks a determination as to whether MSP is entitled to the Defendants’ claims information. The declaratory relief action merely seeks interpretation of a statute. Facing likely dismissal of this action, MSP is now attempting an end-run around its own pure bill of discovery claims by serving an improper subpoena duces tecum on nonparty Insurance Service Office Inc. (“ISO”), a contractor to the Hartford Defendants that maintains Hartford claims data pursuant to multiple agreements, including a Non-Disclosure Agreement under which this information must remain confidential. See Notice of Deposition Subpoena Duces Tecum to Non-Party, attached as Exhibit A. Stunningly, MSP’s subpoena reaches far beyond the scope of its purported claims and seeks all claims data of ISO related to these Defendants nationwide. MSP has served no less than 23 such subpoenas on ISO in Miami-Dade lawsuits for pure bills of discovery that MSP has filed against dozens of insurers. See Sept. 4 correspondence to MSP, attached as Exhibit B. Cumulatively, MSP seeks through these subpoenas data received by ISO on nearly every insurance claim submitted in the United States in the past seven-plus years. This subpoena to ISO is improper in every conceivable way: First, and most obviously, a plaintiff pursuing a pure bill of discovery is simply not entitled to third-party discovery from a nonparty under Florida law. Indeed, the very purpose of a pure bill of discovery is to seek a judicial determination of whether the plaintiff is entitled to discovery from the defendant, not 3 Case No. 19-001054 from third parties. In essence, MSP’s subpoena amounts to improper self-help for the very relief that MSP is seeking its claims. The limitlessness of the subpoena exposes MSP’s real motive here: To obtain documents it has been denied by the court in a separate action (concerning Medicare claims, not Medicaid claims) that MSP has brought against these same Defendants in U.S. District Court in Connecticut. In that case, MSP essentially sought the same information – all of the Defendants’ Medicare claims nationwide – but the Court has entered an order staying discovery. See MSP Recovery, Claims Series LLC v. Hartford Fin. Servs. Grp., No. 3:20-cv-00305-JCH, D.E. 24, attached as Exhibit C. MSP cannot use this lawsuit – which is ostensibly limited to alleged Medicaid claims in Florida – to collect nationwide discovery and avoid the reach of a separate court order. Beyond these obvious (and fatal) defects, there are numerous other reasons that this subpoena should be quashed. Significantly, after trying to avoid the issue for more than a year, MSP still cannot establish that it has standing to assert its pure bill of discovery against these Defendants – let alone seek discovery from ISO, a stranger to this dispute – nor has MSP established that it has personal jurisdiction over these Defendants. MSP cannot pursue any discovery before addressing these threshold jurisdictional issues. MSP’s subpoena to ISO is particularly oppressive and objectionable because it seeks the protected private health information of the Defendants’ insureds – information which MSP has no legal right to obtain. Beyond that, the subpoena is boundless in scope, seeking information regarding all of Defendants’ claims nationwide for the past seven years. MSP’s audacious attempt to avoid adjudication on its baseless pure bill of discovery and subpoena discovery to which it is not entitled should be rejected out of hand. This subpoena should be quashed, and a 4 Case No. 19-001054 protective order should be entered preventing any discovery before the Court rules on Defendant’s Motion to Dismiss the Amended Complaint. STANDARD OF REVIEW Under Fla. R. Civ. P. 1.280(c), a party or the person from whom discovery is sought may seek a protective order upon a showing of good cause to protect a party or person from “annoyance, embarrassment, oppression or under burden or expense.” It is well-established that a party has standing to object to a subpoena directed to a non-party witness, particularly when the requested documents or information belong to the party, as is the case here. See, e.g., Sunrise Shopping Ctr., Inc. v. Allied Stores Corp., 270 So.2d 32, 34 (Fla. 4th DCA 1972) (opposing party has “standing to seek an order quashing the subpoena duces tecum on the grounds that itwas unreasonable and oppressive as to the witness”). “In deciding whether a protective order is appropriate in a particular case, the court must balance the competing interests that would be served by granting discovery or by denying it.” Rasmussen v. S. Fla. Blood Serv., Inc., 500 So.2d 533, 535 (Fla. 1987). This includes consideration of the privacy interests of nonparties. Id. at 537. Defendants are clearly entitled to a protective order, for the reasons discussed below. ARGUMENT A. The Hartford Defendants Have Standing to Object to MSP’s Subpoena to ISO for Data That Belongs to These Defendants. As noted above, Florida law is clear that a party opponent has standing to seek a protective order opposing an opposing party’s subpoena to a third party. See, e.g., Sunrise Shopping Ctr., 270 So.2d at 34 (opposing party has “standing to seek an order quashing the subpoena duces tecum on the grounds that it was unreasonable and oppressive as to the witness”); accord Dade Cnty. Med. Ass’n v. Hlis, 372 So.2d 117, 121 n.5 (Fla. 3d DCA 1979). 5 Case No. 19-001054 Indeed, Rule 1.280(c) expressly states that a party or the nonparty witness may seek a protective order “to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense that justice requires.” Fla. R. Civ. P. 1.280(c) (emphasis added). At a minimum, Rule 1.280(c) allows a party “to seek protection from a discovery request made to a non-party in an action where the items sought belong to the party.” Ross Dress for Less Virginia, Inc. v. Castro, 134 So.3d 511, 517 n.5 (Fla. 3d DCA 2014). Here, the data that MSP seeks from ISO remains the property of the Hartford Defendants, as confirmed by The Hartford’s contracts with ISO. 2 Under any analysis, the Hartford Defendants have standing to seek a protective order as to the data sought in MSP’s subpoena to ISO. B. MSP Cannot Use a Pure Bill of Discovery to Seek Discovery from a Third Party. The purpose of a pure bill of discovery is to seek a court determination that a plaintiff is entitled to discovery from the defendant. See Publix Supermarkets, Inc. v. Frazier, 696 So.2d 1369, 1370-71 (Fla. 4th DCA 1997) (“A pure bill of discovery lies to obtain the disclosure of facts within the defendant's knowledge, or deeds or writings or other things in his custody”) (emphasis added). Thus, under Florida law, a pure bill of discovery may not be used to seek discovery from a witness or other third party with no interest in the suit. Poling v. Petroleum Carrier Corp., 194 So.2d 925, 927 (Fla. 1st DCA 1967) (citing First Nat’l Bank of Miami v. Dade-Broward Co., 171 So. 510, 511 (Fla. 1936)) (“the general rule in equity is that a person who has no interest in the subject matter of the suit, or is merely a witness, cannot be made a party defendant to a bill either for relief or for purposes of discovery”) (emphasis added); see also Schwab v. Television 12 of Jacksonville, Inc., 1993 WL 169181, at *3 (Fla. Cir. Ct. 1993) 2 Defendants have not attached their contracts with ISO because the contracts themselves are confidential. However, Defendants will provide these contracts to the Court for in camera review upon request. 6 Case No. 19-001054 (“a Pure Bill of Discovery may not be used to obtain information, prior to the bringing of an action at law, from third-party witnesses”). MSP cannot seek by way of a third-party subpoena information to which it would not be entitled if it brought a pure bill of discovery directly against ISO. Moreover, MSP admits in its Amended Complaint that it is not legally entitled to any information or documents from these Defendants absent an order of this Court granting a pure bill of discovery in its favor. Am. Compl,, ¶ 69 (“Plaintiffs lack an adequate legal remedy to obtain the requested information; thus, a pure bill of discovery is the appropriate remedy”). 3 Indeed, under Florida law, the absence of an adequate legal remedy is among the elements that must be established to support a pure bill of discovery. See, e.g., Vorbeck v. Betancourt, 107 So.3d 1142, 1145 (Fla. 3d DCA 2012). Obviously, if MSP has no legal right to any discovery from the Defendants absent a court order granting such relief, then of course MSP has no legal right to demand the same information from a third party. In a similar context, Florida courts have held that a party asserting an accounting claim must first establish its entitlement to an accounting before it is entitled to discovery of financial records related to the accounting claim. See Colonies Condo. Ass’n, Inc. v. Clairview Holdings, Inc., 419 So.2d 725, 726 (Fla. 5th DCA 1982). The same rationale applies here: MSP must first establish its entitlement to a pure bill of discovery before it may seek discovery from the Hartford Defendants – or anybody else. 3 Having admitted in its Amended Complaint that it has no legal right to seek this (or any) discovery, MSP should be estopped from asserting otherwise in serving its subpoena on ISO. See, e.g., Head v. Lane, 495 So.2d 821, 824 (Fla. 4th DCA 1986) (“a person should not be permitted to unfairly assert, assume or maintain inconsistent positions”). 7 Case No. 19-001054 If MSP were entitled to the discovery it seeks from ISO, then its claim for a pure bill of discovery would be superfluous. If a party could simply file a claim for a pure bill of discovery and use the pending claim to bootstrap discovery requests for the same material sought in its claim, any plaintiff could use such a tactic to seek any documents from any entity without ever having to assert a viable cause of action. This absurd reasoning is contrary not only to the narrow purposes of a bill of discovery but also to the rules limiting discovery “to those matters relevant to the litigation as framed by the parties' pleadings.” Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014) (emphasis included). It is for this reason that a party may not “piggyback” discovery requests to obtain discovery relating to nonexistent claims that have not been filed. See, e.g., Rappaport v. Mercantile Bank, 17 So.3d 902, 907 (Fla. 2d DCA 2009); Lawhon v. Mason, 611 So.2d 1367, 1368 (Fla. 2d DCA 1993). MSP’s subpoena takes “piggybacking” to the extreme by using a pure bill of discovery as a vehicle for discovery requests it is otherwise unable to pursue, to support claims that it has not filed. In sum, MSP’s attempt to seek third-party discovery before its claim for a bill of discovery is adjudicated is circular, nonsensical, contrary to Florida law and inconsistent with its own pleadings. For this reason alone, the Court should enter a protective order and quash the subpoena to ISO. C. MSP’s Subpoena Is Wholly Unrelated to Its Claim for Declaratory Relief. MSP cannot rely on its claim for declaratory relief to legitimize its subpoena to ISO. In Count I of the Amended Complaint, MSP seeks only a judicial interpretation of Fla. Stat. § 627.736(4). See Am. Compl. ¶¶ 54-60. Specifically, MSP seeks a declaration that § 627.736(4) requires Defendants and other insurers to (a) “ascertain whether their insureds are entitled to Medicaid benefits”; (b) coordinate benefits among insurers as “primary payers”; and 8 Case No. 19-001054 (c) alert Medicaid payers of their alleged primary payer obligations “to enable the proper coordination of benefits.” Id. at ¶ 59. Thus, MSP’s claim for declaratory relief presents a pure question of statutory interpretation that does not require any fact discovery to resolve. Certainly, there is nothing contained in the claims data maintained by ISO that would have any bearing on whether Fla. Stat. § 627.736(4) requires the Hartford Defendants to affirmatively determine whether their insureds have Medicaid benefits. The information sought in the subpoena to ISO is simply irrelevant to the issues raised in MSP’s claim for declaratory relief. This claim cannot form the basis of MSP’s improper subpoena. See Kobi Karp Architecture & Interior Design, Inc. v. Charms 63 Nobe, LLC, 166 So.3d 916, 920 (Fla. 3d DCA 2015) (quashing subpoena where appeals court was “at a loss as to how, or in what context, the requested information ‘appears reasonably calculated to lead to the discovery of admissible evidence’”). D. MSP Does NOT Have Standing to Assert Its Claims or Compel the Deposition of Non-Party ISO. Even if MSP could seek third party discovery based on its pure bill of discovery, or it could conceivably seek discovery before adjudication of its pending pure bill of discovery, MSP cannot do so in this case because it has not (and cannot) established that it has standing to assert the claims in the Amended Complaint. “Standing presents ‘a threshold inquiry’ that must be made at the commencement of the case.” McCarty v. Myers, 125 So.3d 333, 336 (Fla. 1st DCA 2013) (internal citation omitted). “Standing is a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceeding, either directly or indirectly.” Beggi v. Ocean Bank, 91 So.3d 193, 195 (Fla. 3d DCA 2012) (citing Hayes v. Guardianship of 9 Case No. 19-001054 Thompson, 952 So.2d 498, 505 (Fla. 2006)). Florida courts have long recognized that, in certain circumstances, a plaintiff must first establish standing before it may proceed with discovery. See, e.g., Revello Med. Mgmt., Inc. v. Med-Data Infotech USA, Inc., 50 So.3d 678, 679 (Fla. 2d DCA 2010) (“before proceeding with discovery in this kind of suit, the plaintiff must identify with reasonable particularity the nature of the trade secret involved. ..The plaintiff must, as a threshold matter, establish that the trade secret exists”); Mays v. Twigg, 543 So.2d 241, 243 (Fla. 2d DCA 1989) (precluding discovery relating to paternity before court determines petitioner’s standing); Miami-Dade County v. E. Partners, LLC, 2020 WL 559175, at *1 (Fla. 3d DCA Feb. 5, 2020) (“a trial court departs from the essential requirements of law when it compels merits discovery prior to its determining whether a plaintiff has standing to serve as class representative”); see also Colonies Condo. Ass’n, 419 So.2d at 726 (plaintiff must first establish entitlement to accounting claim before it can seek financial discovery). Here, MSP alleges that it has standing to assert these claims based on purported assignments received from various healthcare providers that, it claims, permit it to seek reimbursement from defendant insurers for the cost of medical care provided to Medicaid enrollees. See Am. Compl. ¶¶ 11-14 & Appendix. However, some 20 months after MSP filed this action, it still has not identified any actual assignments that would convey these rights to it or establish its entitlement to a pure bill of discovery or any other relief. MSP bases its claims on Florida’s Medicaid Third-Party Liability Act (“the Act”). Am. Compl. ¶¶ 10, 44. The Act provides that the Florida agency overseeing the Medicaid program— the Florida Agency for Health Care Administration (the “AHCA” or “Agency”)—is the “payor of last resort.” Id. ¶ 44. For example, if a Medicaid enrollee is injured in a car accident, and is covered under an auto insurance policy for medical expenses, the Agency can seek payment 10 Case No. 19-001054 from the insurer to cover the cost of the enrollee’s medical care. E.g., id. ¶ 25. The Act provides that AHCA may—or may not—delegate the responsibility to recover payments from liable third parties to managed care organizations (“MCOs”), which typically provide services to Florida’s Medicaid beneficiaries. See Fla. Stat. Ann. § 409.910(14) (“The agency is authorized to enter into agreements to enforce or collect medical support and other third-party benefits.”). 4 MSP itself recognizes that an MCO can seek recovery from liable third parties only if its contract with the Agency allows it to do so. Am. Compl. ¶ 33 (“The contract language between the state Medicaid agency and the Medicaid MCOs. . . dictate the terms and conditions under which the MCOs assume third-party liability responsibility”). MSP does not, however, allege that the relevant contracts between the Agency and any MCOs at issue here (which appears to be only Assignor PMPI) delegate the Agency’s right to pursue recovery from liable third parties to those MCOs. MSP also does not allege that the Agency’s contracts with any MCOs permitted the MCOs to further delegate or assign the responsibility to pursue third party liability claims to any FDR entity that is listed as an Assignor. And MSP does not allege that any MCO (or AHCA directly) in fact assigned to any of its FDR Assignors any third-party collection rights. Thus, the Amended Complaint fails to establish that MSP has standing to assert any claims against these Defendants – and therefore MSP cannot seek discovery from any party or nonparty in this action. 5 4 See also Federal Register, Vol. 81, No. 88, at 27771 (noting that “states have wide latitude in deciding what, if any, required Medicaid coordination of benefits/[third party liability] functions they will delegate to the managed care plans”). 5 MSP’s claim for declaratory relief does not change this analysis. Indeed, in the absence of any valid assignments originating with the State of Florida, MSP cannot establish the existence of a present controversy or a bona fide, actual, present, practical need for a declaration, as it must to establish the Court’s jurisdiction to entertain its claim for declaratory relief. Santa 11 Case No. 19-001054 E. MSP Has Not Established Personal Jurisdiction Over Defendants and Thus Cannot Sustain This Lawsuit. Personal jurisdiction is also a threshold issue that must be adjudicated before MSP may seek third-party discovery. In its Amended Complaint, like its original complaint, MSP has failed to allege sufficient facts to establish personal jurisdiction over the Defendants. Accordingly, Defendants intend to move for dismissal of the Amended Complaint under Fla. R. Civ. P. 1.140(b)(2) (among other grounds). 6 When a defendant moves for dismissal for lack of personal jurisdiction, the trial court must follow the two-prong test articulated in Venetian Salami Co. v. Parthenais, 544 So.2d 499 (Fla. 1989). Under this test, a court must first determine whether the complaint “alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm jurisdiction statute.” Kingland Estates, Ltd. v. Davis, 170 So.3d 825, 829 (Fla. 3d DCA 2015). Here, MSP attempts to establish personal jurisdiction over the seven Hartford Defendants primarily by parroting the language of Fla. Stat. § 48.193(1)(a)(1). Am. Compl. ¶ 8. However MSP has failed to allege sufficient facts to demonstrate that it has any cause of action arising from any business activities of any of these Defendants within the state, or otherwise establish “connexity” between MSP’s claims and any of these Defendants purported activities in Florida, as MSP must to establish personal jurisdiction. 7 See Schwartzberg v. Knobloch, 98 So.3d 173, 177 (Fla. 2d DCA 2012). Rosa Cnty. v. Admin. Comm’n, Div. of Admin. Hearings, 661 So.2d 1190, 1192-93 (Fla. 1995) (“absent a bona fide need for a declaration based on present, ascertainable facts, the circuit court lacks jurisdiction to render declaratory relief”). 6 Defendants’ response to the Amended Complaint is due on September 25, 2020. See Aug. 20, 2020, Agreed Order Granting Motion for Extension of Time. 7 MSP cannot establish specific jurisdiction under Fla. Stat. § 48.193(1)(a)(4) because its claims for declaratory relief and a pure bill of discovery do not arise from an insurance contract, 12 Case No. 19-001054 Even if MSP could clear this initial hurdle, it would still be entitled to only a limited evidentiary hearing where the parties present conflicting affidavits that cannot be reconciled. Castillo v. Concepto Uno of Miami, Inc., 193 So.3d 57, 59 (Fla. 3d DCA 2016). In such circumstances, a plaintiff may only seek limited discovery on the jurisdictional issue – not merits discovery. See Gleneagle Ship Mgmt. Co. v. Leondakos, 602 So.2d 1282, 1284 (Fla. 1992) (“the discovery which is envisioned by our holding here should not be broad, onerous or expansive, nor should it address the merits of the case”). Thus, even if MSP could establish a legal right to third-party discovery, or a legal right to discovery before adjudication of its claim for a pure bill of discovery, and if MSP could also show that it had standing to assert these claims, it still would not be entitled to anything more than jurisdictional discovery until the Court determined whether it had personal jurisdiction over Defendants. As the subpoena to ISO plainly is not relevant to any jurisdictional issues, Defendants’ Motion for a Protective Order should be granted and the subpoena should be quashed. F. The Underlying Pure Bill of Discovery Is an Improper Fishing Expedition. Beyond the fatal defects described above, MSP’s Amended Complaint is subject to dismissal because it seeks to improperly use a pure bill of discovery to pursue a needless fishing expedition – and the subpoena to ISO for all of Defendants’ claims data nationwide for the past seven years is further evidence of the impropriety of this lawsuit. “[A]lthough the pure bill of discovery remains part of our legal system, its use and usefulness diminished greatly when Florida relaxed its pleading requirements to authorize liberal and in an event MSP has failed to allege ultimate facts identifying any specific contract between the Defendants and any allegedly injured party for which itallegedly received an assignment. See Brown v. Carnival Corp., 202 F.Supp.3d 1332, 1343-44 (S.D. Fla. 2016). 13 Case No. 19-001054 discovery. The pure bill remains available to identify potential defendants and theories of liability, but may not be used as a fishing expedition to see if causes of action exist. Neither is it simply to obtain a preview of discovery obtainable once a suit is filed. Such a use places an undue burden on the court system.” Kirlin v. Green, 955 So.2d 28, 29-30 (Fla. 3d DCA 2007) (citations omitted); see also Publix Supermarkets, 696 So.2d at 1371 (bill of discovery cannot be used for fishing expedition); Mendez v. Cochran, 700 So.2d 46, 47 (Fla. 4th DCA 1997) (bill of discovery cannot be used to preview discovery for lawsuit). Accordingly, pure bills of discovery are rarely necessary. Trak Microwave Corp. v. Culley, 728 So.2d 1177, 1178 (Fla. 2d DCA 1998). A bill of discovery is only justified in “narrow and limited circumstances.” Venezia Lakes Homeowners Ass'n, Inc. v. Precious Homes at Twin Lakes Prop. Owners Ass'n, Inc., 34 So.3d 755, 756 (Fla. 3d DCA 2010). MSP’s Amended Complaint does not fit the “narrow and limited” circumstances under which a pure bill of discovery can be obtained. The Amended Complaint states, in relevant part that “Plaintiffs’ Assignors have learned via Florida crash reports records that a number of their Enrollees were involved in an accident at the time they were insured by policies issued by Defendants. However, Plaintiffs’ Assignors paid for the accident-related medical expenses.” Am. Compl. ¶ 50. The Amended Complaint further alleges, “upon information and belief,” that MSP has already “identifie[d] instances in which Plaintiffs’ assignors paid for accident-related medical services on behalf of the Enrollees,” and asserts that “[t]hese payments should have been paid by Defendants.” 8 Id. at ¶ 51. Thus, MSP already knows it wants to sue the Hartford 8 MSP attaches to its Amended Complaint a spreadsheet of unknown provenance that purports to identify six specific claims of insureds that “should have been paid by Defendants.” Am. Compl., Appendix Ex. A. However, MSP fails to identify these alleged insureds by name, or provide other necessary information to identify these claims, and fails to identify which of the 14 Case No. 19-001054 Defendants. It also knows why it wants to sue it—because MSP believes its Assignors purportedly paid for medical care to Medicaid enrollees that should have been paid for by Hartford. This pure bill of discovery thus amounts to an improper fishing expedition, which is prohibited by Kirlin and similar cases. This action and the dozens of others just like it place an undue strain on the legal system and on insurers like the Hartford Defendants. Moreover, a bill of discovery may not be used to “determine whether sufficient evidence exists to render [the] causes of action viable and/or nonfrivolous.” Kirlin, 955 So.2d at 30 (refusing to grant bill of discovery); Venezia Lakes, 34 So.3d at 759 (same); Kaplan v. Allen, 837 So. 2d 1174, 1176 (Fla. 4th DCA 2003) (“[A]ppellant may not obtain a pure bill of discovery as an investigative tool to seek information that might uncover a potential claim”). This is exactly what MSP is attempting to do here. Because MSP may not use this bill of discovery to go on a “fishing expedition” for information from the Hartford Defendants, it surely cannot subpoena ISO to achieve the same illegitimate ends. See McCarty v. Schultz' Estate, 372 So.2d 210, 212 (Fla. 3d DCA 1979) (“subpoena duces tecum may not be used for a mere ‘fishing expedition’ or general inquisitorial examination”); Walter v. Page, 638 So.2d 1030, 1031 (Fla. 2d DCA 1994) (a “subpoena duces tecum is not the equivalent of a search warrant, and should not be used as a fishing expedition to require a witness to produce broad categories of documents which the party can search to find what may be wanted”). Accordingly, the Court should enter a protective order and quash the subpoena to prevent MSP’s improper fishing expedition. G. MSP’s Subpoena Improperly Seeks the Protected Health and Financial Information of Non-Parties. seven defendants was allegedly responsible for the respective claims. These blind allegations are insufficient to establish personal jurisdiction over any of the Hartford Defendants. 15 Case No. 19-001054 MSP’s subpoena duces tecum also should be quashed because it seeks the private medical information of non-parties, Defendants’ insureds. Specifically, MSP is seeking identifiable information from Defendants’ insureds, such as: 1) Name, 2) Address, 3) Date of Birth, 4) SSN, 5) alleged injury, 6) coverage type. See Ex. A, Schedule “A.” This kind of information constitutes the personal and private medical information (“PHI”) or financial information of Defendants’ Enrollees, who are not parties to this action and are not clients of MSP’s counsel. Indeed, the private health information of Medicaid enrollees is expressly protected from disclosure by state and federal law. See 42 U.S.C. § 1396a; Fla. Stat. § 119.0712(1). MSP cannot show that any applicable exceptions apply, or that it is otherwise legally entitled to the private health information that it seeks with its subpoena. As the Florida Supreme Court has held, one of the primary purposes of a protective order is to “provid[e] protective measures to minimize the impact of discovery on competing privacy interests,” including the privacy interests of nonparties. Rasmussen, 500 So.2d at 535 (quashing subpoena seeking private information and identities of nonparty blood donors). Accordingly, Florida courts have consistently refused to allow discovery of customers and insureds’ personal information because of the infringement of such discovery on these individuals’ privacy rights. See, e.g., Quest Diagnostics, Inc. v. Rapio, 54 So.3d 545, 546-47 (Fla. 3d DCA 2011) (quashing discovery order for “invading the privacy of non-party patients”); Cedars Healthcare Grp., Ltd. v. Freeman, 829 So.2d 390, 391 (Fla. 3d DCA 2002) (quashing discovery order where plaintiff failed to demonstrate a compelling need for the discovery that outweighed the privacy interests of non-party patients); Nat'l Sec. Fire & Cas. Co. v. Dunn, 705 So.2d 605, 608 (Fla. 5th DCA 1997) (trial court’s discovery order deemed improper because “proper consideration was not 16 Case No. 19-001054 given to the privacy rights of National's other thirty-eight insureds.”); Delta Health Grp., Inc. v. Williams, 780 So.2d 337, 338-39 (Fla. 5th DCA 2000) (noting that discovery request seeking information about other residents of nursing home implicated privacy rights of these other individuals) (citing Colonial Medical Specialties of South Florida, Inc. v. United Diagnostic Laboratories, Inc., 674 So.2d 923, 923-24 (Fla. 4th DCA 1996) (plaintiff laboratory in breach of contract action did not meet its burden to show the need for the addresses and phone numbers of approximately 300 patients of defendant medical office, as the need for this discovery would not override the privacy rights of the nonparty patients) and Community Psychiatric Centers of Florida, Inc. v. Bevelacqua, 673 So.2d 948, 951 (Fla. 4th DCA 1996) (although identities of patients who witnessed an accident at the defendant psychiatric facility might be relevant to rebut defendant's contention that plaintiff contributed to the accident by his own negligence, the plaintiff's need for the information would not outweigh the right of privacy of the nonparty patients)). Significantly, at least one court in this Circuit has dismissed a similar pure bill of discovery brought by MSP precisely because MSP was seeking private health information to which it is not entitled. See MSP Recovery Claims, Series, LLC, et al., v. Bristol West Ins. Co., Case No. 2019-322-CA-01 (Fla. 11th Jud. Cir.) (Arzola, J.) (dismissing MSP’s claims seeking auto-insurer company’