25 Fla. L. Weekly Supp. 393a
Online Reference: FLWSUPP 2504VASQInsurance — Personal injury protection — Discovery — Trade secrets — Billing and collections reports — Where medical provider’s billing and collections reports contain payment amounts from insurers with which provider maintains contracts and financial information on provider’s business as a whole, reports are protected by trade secret privilege — Where insurer has shown reasonable necessity for reports that contain information relevant to issue of reasonableness of provider’s charge, provider is required to produce matrix reflecting amounts paid to it for CPT code at issue without identifying any particular insurer by name — Insurer may apply for reconsideration of production of actual reports after matrix is produced
PLANTATION OPEN MRI, LLC (a/a/o Omar Vasquez), Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 12-007771 (52). May 23, 2017. Giuseppina Miranda, Judge. Counsel: Todd A. Landau, Todd Landau, PA, Hallandale Beach, for Plaintiff. Carlos A. Prieto, Dutton Law Group, Fort Lauderdale, for Defendant.
ORDER ON PLAINTIFF’S MOTIONFOR IN CAMERA INSPECTION
THIS CAUSE having come before the Court for several hearings on Plaintiff’s Motion for In Camera Inspection and ultimately concluding on May 18, 2017, and the Court having reviewed the documents at issue, the relevant legal authority, and the on Court being fully advised in the premises, finds as follows:
On July 29, 2015, the Defendant, STATE FARM FIRE AND CASUALTY COMPANY (hereinafter “Defendant”), propounded upon the Plaintiff, PLANTATION OPEN MRI, LLC a/a/o Omar Vasquez (hereinafter “Plaintiff”), Supplemental Request to Produce to Plaintiff Regarding Billing and Collections Report(s) for the CPT code at issue for the time period six (6) month before and six (6) months after the date of loss. On January 13, 2016, this Court executed an Agreed Order on Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery and to Compel Plaintiff to Respond to Defendant’s Discovery Request. The parties agreed that the Plaintiff was to produce responses to paragraphs 2, 3, 4, 5, 6, and 7 of Defendant’s Supplemental Request to Produce Regarding Billing and Collections Report(s) of July 29, 2015, pending a ruling from this Court on Plaintiff’s Motion for In Camera Inspection1. Subsequently, the Plaintiff filed its Motion for In Camera Inspection on October 24, 2016.
The Plaintiff’s billing software, Medisoft v. 19 Network Professional, is able to generate several reports. The reports requested by the Defendant are entitled as follows: (a) Average Payment Comparison, (b) Insurance Pay Analysis, (c) Insurance Visit List, (d) Procedure by Carrier, (e) Charges by Insurance Type Chart, and (f) New Patients by Carrier.
At the first hearing before this Court on December 15, 2016, the Plaintiff produced documents which were reviewed and examined by the Court in camera. Upon review, some of the reports had numerous entries that needed explanation before the Court could make a determination as to whether to information could be disclosed. Because the parties could not provide the Court with the necessary explanations, the Court directed the Plaintiff to select a person with knowledge of the billing software that would be able to explain the reports. Once the person was identified, the Court explained it would conduct an evidentiary hearing to determine the scope of the software applications and determine if the reports generated by the software were discoverable.
On March 1, 2017, after the Plaintiff selected the person with knowledge of the billing software, the Court held an evidentiary hearing at the Accudata facility in Sunrise, FL where Cindy Cook, the president of the company, and Kimberly Furlong, trainer for Accudata, were present and provided information subject to the software and reports generated. The Court asked questions and the parties’ attorneys where given an opportunity to ask questions of the witnesses about all aspects of the software’s capabilities and the specific data contained within the reports generated.
Subsequently, on May 18, 2017, the conclusion of the hearing on Plaintiff’s Motion for In Camera Inspection took place before this Court.
“Parties may obtain discovery regarding any matter, not privileged, that is relevant. . .,” or “appears reasonably calculated to lead to discovery of admissible evidence.” Fla. R. Civ. Pro. 1.280. The documents under review were examined by the Court, first for relevancy and then for privilege.
The Court finds that the information being sought by Defendant is relevant based on the plain meaning of Section 627.736(5)(a) Florida Statutes, which provides:
In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply. (emphasis added).
The reports provided by Plaintiff contain, in part, evidence of “payments accepted by the provider” for the CPT code at issue (72141). The portions of the reports that pertain to CPT code 72141 are reasonably calculated to lead to the discovery of admissible evidence and are subject to disclosure if not protected by privilege. However, the Court notes that the reports also include CPT codes not involved in this lawsuit and other information not relevant to the reasonableness of charge for CPT code 72141. Additionally, after the detailed evidentiary hearing conducted on March 1st, the Court finds that much of the information contained in the reports may be misleading as it pertains to the issue of the reasonableness of the charge or would be trade secret.
Section 90.506 Florida Statues provides:
A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by that person if the allowance of the privilege will not conceal fraud or otherwise work injustice. When the court directs disclosure, it shall take the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require. The privilege may be claimed by the person or the person’s agent or employee.
Section 688.002(4) defines a Trade Secret as:
Information, including a formula, pattern, compilation, program, device, method, technique, or process that:
(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
The Court finds that several of the reports contain payment amounts from insurers Plaintiff maintains contracts with, as well as financial information of Plaintiff’s business as a whole. The Plaintiff derives economic value by not allowing competitors and the public to obtain this information and takes reasonable efforts to prevent their disclosure. Therefore, this Court finds the reports are protected by the Trade Secret Privilege.
Once a court finds requested information to be Trade Secret, “the court must require the part seeking production to show reasonable necessity for the requested materials.” Am. Exp. Travel Related Services, Inc. v. Cruz, 761 So. 2d 1206, 1208-09 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1542a].
The Defendant seeks the requested materials to prepare its defense on the issue of whether Plaintiff’s charges are reasonable. Based on the plain meaning of the statute, Defendant has shown a reasonable necessity for the requested materials because some of the materials go to the heart of the issue that will be tried.
The Court is now tasked with balancing the need of the Plaintiff to maintain the information’s secrecy and the Defendant’s need to obtain the information to prepare for trial. Because the statute requires that the fact finder consider reimbursements of the provider when determining a “reasonable charge” Plaintiff cannot use “trade secret” as a shield and a sword. Plaintiff placed its financial records at issue when it accepted the PIP insurance patient and filed suit. See Aspex Eyewear, Inc. v. Ross, 778 So. 2d 481 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D548b] (Generally, the financial records of a party are not discoverable; however, they became discoverable when the document themselves or the evidence therein is somehow at issue in the case.) Plaintiff cannot now refuse to provide the very information the statute requires be considered.
During the hearings, the Plaintiff consistently offered to provide the information being sought in the form of a matrix, which this Court has previously found to be a “substantial equivalent” to providing Defendant the reports now being sought. The Court finds that providing the information in this “matrix” form will protect the Plaintiff from unnecessarily producing information not relevant to this case and maintain the trade secrets while still giving the Defendant all the necessary information it needs to prepare its defense. This method also alleviates the Court’s concern that some of the reports do not accurately depict the information they purport to include as described in their title as the Court discovered during the March 1st hearing.
As such, the Court finds the reports2 are not subject to disclosure, at this time, and shall be kept under seal. This finding is without prejudice and the Defendant may make application to this Court for reconsideration of production of the actual reports once the matrix has been produced.3
IT IS THEREFORE, ORDERED AND ADJUDGED:
That the Plaintiff shall produce a matrix and/or report reflecting the amounts paid to Plaintiff by private health insurers, Medicare, cash paying patients and PIP insurers for the CPT code at issue (72141) within sixty (60) days from the date of this Order. Said matrix shall include information as to the frequency of which said payments are received (i.e., the percentage of its bills paid by each category of payor). The matrix is not to identify any particular private or PIP insurer by name so as to protect any trade secret or proprietary information. The date of service was May 23, 2011. The matrix shall include data of reimbursements for six month prior and six month after the date of service.
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1The Agreed Order was entered by the Court on January 13, 2016. Plaintiff had not filed its Motion at the time and was given an opportunity to supplement the record and set the matter for hearing.
2Two of the reports have been previously disclosed by agreement of the Plaintiff.
3Any concerns about accuracy of the matrix can be easily addressed by a subsequent in camera inspection and comparison of the reports with the matrix. The Court is continuing to maintain the documents pending final resolution of this matter.
