23 Fla. L. Weekly Supp. 1040b
Online Reference: FLWSUPP 2310NORIInsurance — Personal injury protection — Discovery — Requests for identification of every person who accessed claim file and every fact known to insurer about claim are overbroad — Medical provider may depose claims representative to determine if there were other individuals with decision making authority, and insurer must disclose information relied upon in making decision about claim — Insurer is not required to respond to interrogatories or requests to produce seeking information and documents claimed to be privileged until it is determined whether privilege exists and, if so, provider makes required showing of necessity and inability to obtain information through other means — Insurer is not required to provide claim information that provider already possesses — Insurer is not required to produce all information transmitted to medical providers
KAGAN, JUGAN & ASSOCIATES, P.A. a/a/o VIDA NORIEGA, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 20th Judicial Circuit in and for Lee County, Small Claims Division. Case No. 15-SC-1175. March 14, 2016. Maria E. Gonzalez, Judge. Counsel: Jack C. Morgan and Clayton W. Crevasse, Roetzel & Andress, Fort Myers; and Michael C. McQuagge, McQuagge and King Law Firm, Fort Myers, for Plaintiff. Stephanie S. Hoffman and Elizabeth C. Insko, Conroy Simberg, Fort Myers, for Defendant.
ORDER ON DEFENDANT’S MOTIONFOR PROTECTIVE ORDER
THIS CAUSE comes before the Court on Defendant’s “Objections To Plaintiff’s Interrogatories And Motion For Protective Order,” filed May 20, 2015, and Plaintiff’s motion to compel discovery, filed October 2, 2015. Having reviewed the motion, the case file, and the applicable law, and having heard argument by the parties on December 10, 2015, the Court finds as follows:
1. Defendant objected Plaintiff’s interrogatories 4, 5, 11-14, 16, 18, 19, 21-25 on the basis that they are overly broad, vague, irrelevant or otherwise not reasonably calculated to lead to the discovery of admissible evidence, and seek the disclosure of information which is confidential, or contains trade secrets or work product. Defendant objected to Plaintiff’s requests to produce 3-10, 12, 13, 15, and 16, for the same reasons.
2. At the hearing, Plaintiff argued that Defendant’s objections were not specific as any privilege asserted, but instead was a laundry list of all possible objections and privileges. Following the hearing, the Court ordered Defendant to amend its objections. In the amended response to interrogatories, Defendant responded “none” to Interrogatories #11 and #18 and Request to produce #6, thus waiving the previous generic objections to those items.
3. “A trial court possesses broad discretion in overseeing discovery, and protecting the parties that come before it.” Towers v. City of Longwood, 960 So. 2d 845, 848 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D1658c], quoting Bush v. Schiavo, 866 So. 2d 136, 138 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D396a] (citing Rojas v. Ryder Truck Rental, Inc., 625 So. 2d 106, 107 (Fla. 3d DCA 1993). Fla. R. Civ. P. 1.280(c) states that the trial court “may make any order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense that justice requires . . .” upon a showing of good cause. The burden of proof to demonstrate good cause is upon the party seeking relief. Towers, 960 So.2d at 848, citing Bush, 866 So. 2d at 138; Office of Att’y Gen. v. Millennium Commc’ns & Fulfillment, Inc., 800 So. 2d 255, 258 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D2429b].
4. A protective order should be granted where “it has been affirmatively established that such discovery is neither relevant nor will lead to discovery of relevant information.” State Farm Mut. Auto. Ins. Co. v. Parrish, 800 So. 2d 706, 707 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D2831a], quoting Allstate Insurance Co. v. Langston, 655 So. 2d 91, 95 (Fla.1995) [20 Fla. L. Weekly S217a]. A trial court should permit discovery only of matters “relevant to the subject matter of the pending action,” and should not authorize a fishing expedition which “might give rise to a potential cause of action.” Parrish, 800 So. 2d at 707. See also McDonald’s Restaurants of Florida, Inc. v. Doe, 87 So.3d 791, 794 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D592a]. “ ‘[C]ompelled disclosure through discovery [must] be limited to that which is necessary for a court to determine contested issues. . . .’ ” Diaz-Verson v. Walbridge Aldinger Co., 54 So.3d 1007, 1009-1011 (Fla. 2d DCA 2010) [36 Fla. L. Weekly D26b], citing Friedman v. Heart Institute of Port St. Lucie, Inc., 863 So. 2d 189, 194 (Fla. 2003) [28 Fla. L. Weekly S715a] (quoting Woodward v. Berkery, 714 So. 2d 1027, 1036 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D8b]). Sufficient allegations as to the issues involved in the litigation must be framed in all the pleadings in order to establish the relevance of the information sought in discovery. Diaz-Verson, 54 So.3d at 1011 (internal citations omitted).
5. Interrogatory #4 requests the contact information for all people who participated in any way in the investigation, adjusting, or handling of the claim for benefits, as well as the dates and nature of such participation. Defendant argued the name of the claim representative was provided, and believed that seeking names of any person involved in the day to day handling of the file was overly broad and harassing, and not relevant to the elements Plaintiff had to prove. The Court finds that requiring Defendant to produce the names of every person who accessed this particular claim file, who did not have any decision making authority, would be unduly burdensome and irrelevant. Plaintiff may depose the claims representative to determine if there were other individuals who had decision making authority.
6. Interrogatory #5 requests a detailed description of each fact known about the nature of Plaintiff’s request for PIP and medical benefits, what information Defendant had indicating that treatment is not necessary, reasonable for related, when that information was obtained, when Defendant informed Plaintiff it about this information, and when the information was provided in writing to Plaintiff. Defendant argued that this information was overly broad, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence, since it was outside the scope of the elements Plaintiff had to prove at trial. Defendant is directed to provide Plaintiff an answer as to what information was relied upon in making the decision about this claim and when that information was obtained. To the extent Plaintiff is requesting to know when information was provided to Plaintiff, Defendant is not required to provide Plaintiff with information Plaintiff already has.
7. Interrogatory #12 requests information on any surveillance of the assignor or Plaintiff, or investigation into their backgrounds or claim history, and details of any surveillance or investigation. Defendant cited to its privilege log, which indicates the objection to that item was that it was not reasonably calculated to lead to the discovery of admissible evidence. Defendant indicated that the “ISO Claim Search Match Report” only returns information about other claims filed by the same individual. Since Defendant claimed privilege, Plaintiff is required to produce evidence that no privilege exists. Leithauser v. Harrison, 168 So. 2d 95, 97 (Fla. 2d DCA 1964). If a privilege does exist, Plaintiff must demonstrate that the material requested is necessary for the preparation of the case, and that Plaintiff is unable to obtain the substantial equivalent elsewhere without undue hardship. SCI Funeral Services of Florida, Inc. v. Walthour, 165 So. 3d 861, 863-64 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1459a]. Defendant will not be required to produce results from this match software unless and until Plaintiff is able to make either showing.
8. Interrogatory #13 requests the contact information for every individual hired in the past three years who has reviewed Plaintiff’s medical bills to determine the amount to be paid for each treatment pursuant to the policy. Defendant argued this request was overly broad, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Further, Defendant asserted a trade secret privilege. Pursuant to Fla. Stat. §90.506, a party may resist disclosure of a trade secret if it will not conceal fraud or create injustice. When a trade secret is asserted, the trial court must determine if the requested production constitutes a trade secret, and if the requesting party can demonstrate a necessity for the requested information. Ameritrust Ins. Corp. v. O’Donnell Landscapes, Inc., 899 So. 2d 1205, 1207 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D991c]. This determination usually requires an in camera inspection, which neither party has yet requested. Defendant is not required to produce this information until the Court is given a chance to determine whether it consists of a trade secret, and whether Plaintiff has demonstrated a necessity for the information.
9. Interrogatory #14 requests detailed information about each claim the assignor or Plaintiff submitted which Defendant is denying coverage, specifying the dates of service, name of provider, amount of charge for which Defendant is denying coverage, date the claim was denied, date notice was first received, portion of the claim denied, and date Plaintiff was informed of the denial of coverage. Defendant argued this request was overly broad, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. The Court finds that this is information the Plaintiff should already possess, from Plaintiff’s own records, or through communications previously received from Defendant. Defendant will not be required to provide information Plaintiff already possesses.
10. Interrogatory #16 requests the contact information and positions of every person employed by Defendant or anyone acting on Defendant’s behalf who had any involvement in reviewing Plaintiff’s medical bills submitted for payment, making policy decisions regarding rates at which such bills are to be paid, and dates and nature of involvement. Defendant argued this request was irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving its objections, Defendant responded with the name of the assigned Claim Representative, Deborah Hammill. The Court finds that requiring Defendant to produce the names of every person who had any involvement with this particular claim file, who did not have any decision making authority, would be unduly burdensome and irrelevant. Plaintiff may depose the claims representative to determine if there were other individuals who had decision making authority.
11. Interrogatory #19 requests when Defendant realized it had insufficient information to pay Plaintiff’s claim in full, what efforts were made to acquire information, when Defendant informed assignor or Plaintiff, and when Defendant ceased attempting to obtain information. Defendant argued that its claim handling decisions were privileged pursuant to State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So.3d 809, 810 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2590a], State Farm Florida Ins. Co. v. Desai, 106 So.3d 5, 38 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D85b], and State Farm Fla. Ins. Co. v. Gallmon, 835 So. 2d 389, 390 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D330a]. The Court finds that an insurer’s claim file is privileged, and that how an insurer makes claim handling decisions could be a protected trade secret. Plaintiff has not shown a reasonable necessity for these materials, or that it cannot obtain the substantial equivalent of this information through other means, such as deposition of the claims representative. Zirkelbach Const., Inc. v. Rajan, 93 So.3d 1124, 1127-28 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1793a]; Ameritrust Ins. Corp. v. O’Donnell Landscapes, Inc., 899 So. 2d 1205, 1207 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D991c]. Defendant provided additional explanation that it adjusted the claims based on information provided by Plaintiff, and had requested additional information from Plaintiff, but received no response. Plaintiff would already have communications from Defendant with these requests. Defendant will not be required to provide information Plaintiff already possesses.
12. Interrogatory #21 requests information regarding the software program used to determine the amount of payment to be made on a claim, the third party providing that software, and the corporate representative of that third party with the most knowledge of that program. Defendant argued this request was overly broad, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Further, Defendant argued that this request sought privileged trade secrets. See paragraph 7, response to Interrogatory #12.
13. Interrogatory #22 requests information regarding every person who has provided services for determining the amount of payment to be made on the claim, and the corporate representative with the most knowledge of considerations, factors and/or criteria used. Defendant argued this request was vague, overly broad, confusing, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Further, Defendant argued that its claim handling decisions were privileged pursuant to State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So.3d 809, 810 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2590a], State Farm Florida Ins. Co. v. Desai, 106 So.3d 5, 38 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D85b], and State Farm Fla. Ins. Co. v. Gallmon, 835 So. 2d 389, 390 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D330a]. See responses to Interrogatory #4 and 13.
14. Interrogatory #23 requests all considerations, factors or criteria used to determine the amount of payment on the claim, and the corporate representative with the most knowledge of considerations, factors and/or criteria used. Defendant argued this request was vague, overly broad, confusing, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Further, Defendant argued that its claim handling decisions were privileged pursuant to State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So.3d 809, 810 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2590a], State Farm Florida Ins. Co. v. Desai, 106 So.3d 5, 38 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D85b], and State Farm Fla. Ins. Co. v. Gallmon, 835 So. 2d 389, 390 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D330a]. See response to Interrogatory #13. As indicated above, the person with the most knowledge would be the claims representative. As Plaintiff already has that information, it is free to depose that person.
15. Interrogatory #24 requests information on any privilege asserted in objections to the interrogatories, contact information for any person having information about the assertion of that privilege, and any policy provisions relied on in claiming the privilege. This request is moot, since Defendant provided objections in the amended response.
16. Interrogatory #25 requests the same information regarding privileges asserted for the requests to produce. This request is moot, as Defendant provided objections in the amended response.
17. Request to produce #3 requested the entire PIP file. Defendant objected that all information about a case was stored in a proprietary system, that it had produced non-privileged documents from this system, and that any remaining documents were subject to the attorney-client, work product, and claim file privileges. Since Defendant claimed privilege, Plaintiff is required to produce evidence that no privilege exists. Leithauser v. Harrison, 168 So. 2d 95, 97 (Fla. 2d DCA 1964). If a privilege does exist, Plaintiff must demonstrate that the material requested is necessary for the preparation of the case, and that Plaintiff is unable to obtain the substantial equivalent elsewhere without undue hardship. SCI Funeral Services of Florida, Inc. v. Walthour, 165 So. 3d 861, 863-64 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1459a]. An insurer’s claim file is privileged work product. Zirkelbach Const., Inc. v. Rajan, 93 So. 3d 1124, 1127-28 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1793a]. The proprietary system could constitute a trade secret. Ameritrust Ins. Corp. v. O’Donnell Landscapes, Inc., 899 So. 2d 1205, 1207 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D991c]. Defendant will not be required to produce any information that it has not already provided absent the required showing by Plaintiff of necessity and inability to obtain the information through other means.
18. Request to produce #4 requested all information transmitted by Defendant to any medical provider concerning this case. Defendant objected that the request was overly broad, vague, beyond the scope of litigation, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. The Court finds that this information would be irrelevant and beyond the scope of litigation, without prejudice for Plaintiff to show relevance.
19. Request to produce #5 requested copies of any contracts with any entity to review, analyze or adjust medical bills. Defendant objected that the request was overly broad, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Further, Defendant objected that the request sought privileged trade secret information. See paragraph 17.
20. Request to produce #7 requested all statements of any witnesses. Defendant objected that this request sought privileged work product. Plaintiff has not demonstrated how the statements of “any” witnesses would be relevant to this proceeding. To the extent Defendant has asserted a privilege, Plaintiff has not made the necessary showing. See paragraph 17.
21. Request to produce #8 requested any photographs taken by Defendant of the accident scene or damaged vehicles. Defendant objected that this request sought privileged work product. To the extent Defendant has asserted a privilege, Plaintiff has not made the necessary showing. See paragraph 17. The Court presumes that the vehicle and accident scene would have been documented by law enforcement or the assignor, and that these images would be available to Plaintiff.
22. Request to produce #9 requested any estimates of repair or statements regarding the extent of damages to the vehicles. Defendant objected that such information was privileged work product, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. To the extent Defendant has asserted a privilege, Plaintiff has not made the necessary showing. See paragraph 17. The Court presumes that the assignor would have requested repair estimates or statements, and that these would be available to Plaintiff.
23. Request to produce #10 requested copies of any records regarding examination of the vehicles. Defendant objected that such information was privileged work product, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. To the extent Defendant has asserted a privilege, Plaintiff has not made the necessary showing. See paragraph 17.
24. Request to produce #12 requested the latest claim manual on processing PIP claims. Defendant objected that the request sought privileged trade secrets, and was vague, and overly broad. To the extent Defendant has asserted a privilege, Plaintiff has not made the necessary showing. See paragraph 17.
25. Request to produce #13 requested a copy of Defendant’s standards for proper investigation of claims. Defendant objected that the request sought privileged trade secrets, and was vague, and overly broad. To the extent Defendant has asserted a privilege, Plaintiff has not made the necessary showing. See paragraph 17.
26. Request to produce #15 requested any reports provided by a medical provider stating that Plaintiff’s bills exceeded the amount ordinarily and customarily charged. Defendant objected that the request sought privileged work product, was irrelevant, and was not reasonably calculated to lead to the discovery of admissible evidence. To the extent Defendant has asserted a privilege, Plaintiff has not made the necessary showing. See paragraph 17.
27. Request to produce #16 requested any reports or documents from the software program used to determine the amount to be paid on the claim. Defendant objected that the request was vague, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Further, Defendant objected that the request sought privileged trade secrets. To the extent Defendant has asserted a privilege, Plaintiff has not made the necessary showing. See paragraph 17.
Accordingly, it is
ORDERED AND ADJUDGED that the motions for protective order are granted, in part, and denied, in part, as stated herein.
