Motion to Quash in MSP RECOVERY CLAIMS, SERIES LLC ET AL VS METROPOLITAN PROPERTY AND CASUALTY INSURANCE CO ET AL| Trellis.Law

On December 21, 2018 a Motion,Ex Parte was filed involving a dispute between Mao-Mso Recovery Ii Llc, Mspa Claims 1, Llc, Msp Recovery Claims, Series Llc, Series Pmpi, and Metropolitan Casualty Insurance Company, Metropolitan Direct Property And Casualty Insuranc, Metropolitan General Insurance Company, Metropolitan Property And Casualty Insurance Co, for Equitable Relief in the District Court of Miami-Dade County.

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Filing # 135484184 E-Filed 09/28/2021 03:14:21 PM

IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA

Case No. 2018-042472-CA-11
MSP RECOVERY CLAIMS, SERIES LLC,
et al.,

Plaintiffs,

vs.

METROPOLITAN PROPERTY AND
CASUALTY INSURANCE CO. et al.,

Defendants.
_____________________/

NON-PARTY INSURANCE SERVICES OFFICE, INC.’S MOTION TO QUASH
SUBPOENA DUCES TECUM OR FOR PROTECTIVE ORDER
Non-Party Insurance Services Office, Inc. (“ISO”)1 does not create or possess any unique

information related to Defendants, or any insurance company. Instead, ISO maintains a database,

on behalf of its insurance company clients, related to insurance claim information. ISO is a

repository of its clients’ information, and thus ISO has no information related to Defendants’

insurance claims other than information that may have been provided to it by Defendants.

Plaintiffs’ subpoena duces tecum issued to ISO on or about September 3, 2020, and

attached hereto as Exhibit A (the “Subpoena”), should be quashed because: 1) Any information

currently in ISO’s ClaimSearch database would be available from Defendants; 2) ISO should not

be compelled to produce Defendants’ information, particularly when Defendants have not agreed

to release such information nor had any opportunity to raise objections to the release of the

1
ISO reserves all rights under Florida law, including the right to challenge the Court’s jurisdiction over ISO. See 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). As explained herein, the Subpoena does not create
jurisdiction over ISO in this Court and ISO is not submitting to the jurisdiction of this Court through this filing.
information; 3) The Subpoena is deficient because it seeks documents located outside of Florida

from a non-Florida corporation based on purported service on a Florida registered agent; 4) Any

attempt to have ISO extract data from ISO’s database, as the Subpoena seeks, is overly broad and

unduly burdensome to ISO.

Furthermore, the Court should not allow Plaintiffs to proceed with third-party discovery

from ISO in this pure bill of discovery case until deciding threshold issues related to discovery.

Many of these issues are raised in Defendants’ pending Motion to Dismiss Plaintiffs’ Amended

Complaint, filed November 8, 2019 (the “Motion to Dismiss”) and Defendants’ pending

Objections to and Motion for Protective Order and to Quash Subpoena on Insurance Services

Office, Inc. (“Defendants’ Motion to Quash”). For example, the Motion to Dismiss and

Defendants’ Motion to Quash argue that Plaintiffs have not sufficiently demonstrated standing to

pursue any claims, and that Plaintiffs’ use of a pure bill of discovery as a fishing expedition to

secure documents or information that could be secured through other means is generally

improper, particularly as “Plaintiffs know the Defendant to sue and the cause of action to bring.”

Defendants’ Motion to Quash, at 4; see generally Motion to Dismiss.

Additional threshold issues are presented by Defendants’ arguments that the Subpoena

seeks Defendants’ privileged, confidential, and trade secret information, and private, sensitive,

and confidential medical and health care information of nonparties (Defendants’ insured).

Defendants’ Motion to Quash, at 6-11. ISO incorporates these broader arguments, which relate to

the propriety of seeking discovery in this case in general, or the propriety of seeking the

information sought through the Subpoena in general, herein.

In addition, third-party discovery cannot be permitted in a pure bill of discovery action,

the purpose of which is to obtain information from the Defendants, as Plaintiffs readily admit.

2
Publix Supermarkets, Inc. v. Frazier, 696 So. 2d 1369, 1370-71 (Fla. 4th DCA 1997); see e.g.

Amended Complaint, ¶ 46. In fact, Plaintiffs specifically allege that “Defendants have sole

possession of the documents requested.” Id., ¶ 49. Given that, any discovery to which Plaintiffs

are entitled in this action must come from Defendants, not from ISO. If the Court finds merit in

those broader arguments, the Court should quash the Subpoena or grant ISO a protective order

even before considering the additional arguments herein, which concern the deficiencies of the

Subpoena and the burdens imposed upon ISO by the Subpoena.

For all these reasons, the Subpoena should be quashed and a protective order issued

providing that ISO need not comply with the Subpoena.

I. Factual Background

A. ISO’s Relationship to this Case and to Florida

ISO is a leading source of information for property and casualty insurance risk and

maintains a database, known as ISO ClaimSearch, that includes property, casualty, and

automobile insurance claim information, and other information for evaluating and processing

insurance claims, such as damage, theft, and salvage information. Declaration of Carlos Martins,

attached hereto as Exhibit B (“Martins Decl.”), ¶¶ 6-7. ISO ClaimSearch is the only

comprehensive system for improving claims processing and fighting fraud in the

property/casualty insurance industry in the nation. Id., ¶ 9. ISO’s insurance company clients

submit millions of reports annually on insurance claims that are stored in ISO ClaimSearch, and

ISO’s clients can use ISO ClaimSearch to detect and prevent fraudulent insurance claims and

efficiently process meritorious claims. Id., ¶ 10. ISO allows its clients to access and search the

real-time, up-to-date information within ISO ClaimSearch to evaluate claims and detect fraud.

Id., ¶ 11. Entities with the ability to search the ISO ClaimSearch database are known as

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Participating Organizations. Id. Because of the purpose of ISO ClaimSearch and the need for up-

to-date information within it, the database is constantly overwriting the information within it and

is not intended to be a source of aggregated, historical claims data. Id., ¶ 12-13. Any effort to

obtain historical claims data from ISO ClaimSearch would require writing and running extraction

programs and manual intervention by ISO. Id., ¶¶ 13, 19.

ISO has a limited relationship to this case and to Florida. The Subpoena is related solely

to information within ISO ClaimSearch, information provided to ISO by its clients, which ISO

simply stores. Id., ¶ 8. ISO does not create any of this information. Id. ISO is a subsidiary of

Verisk Analytics, Inc. (“Verisk”) and both ISO and Verisk are headquartered in New Jersey. Id.,

¶¶ 2-3. ISO has no offices in Florida, and ISO does not physically store data in Florida. Id., ¶ 3.

ISO has limited connections to Florida. While ISO is licensed to do business in Florida and has a

Florida registered agent, this is no different than its status in states around the country. Id., ¶ 4.

B. Background- Subpoenas Issued to ISO and ISO’s Response

Plaintiffs issued the Subpoena on or about September 3, 2020, as part of the issuance of

subpoenas to ISO in at least 25 cases in this Court by Plaintiffs or affiliates of Plaintiffs, seeking

the same type of information as sought by the Subpoena regarding various insurance company

clients of ISO (collectively the “ISO Subpoenas”). 2 ISO has only produced documents in

response to one of the ISO Subpoenas, specifically in MSPA Claims I, LLC v. IDS Property

Casualty Insurance Co., No. 2015-027940 (Fla. 11th Cir. Ct.) (the “IDS Case”). Martins Decl.,

2
Plaintiffs issued subpoenas to ISO in case numbers: 2015-27940-CA, 2018-042060-CA-25, 2018-042077-CA-30,
2018-042094-CA-13, 2018-042110-CA-21, 2018-042153-CA-01, 2018-042198-CA-31, 2018-042391-CA-05, 2018-
042402-CA-13, 2018-042205-CA-32, 2018-042213-CA-05, 2018-042382-CA-22, 2018-042451-CA-32, 2018-
042460-CA-25, 2018-042461-CA-05, 2018-042463-CA-06, 2018-042472-CA-11, 2018-042561-CA-13, 2019-
000379-CA-04, 2019-000421-CA-09, 2019-000423-CA-13, 2019-001054-CA-08, 2019-002496-CA-06, 2019-
002516-CA-01, 2019-000369-CA-01. Each is identical with only the defendant(s), the deposition date, and the time
period for which documents are sought changing, with the exception of the IDS Case (as defined herein).

4
¶¶ 32-33.

ISO’s production of documents in the IDS Case was due to several unique factors in the

IDS Case, including: 1) that the defendant had been ordered to produce the information sought

from ISO and had made a production of documents; 2) a determination by the Court in the IDS

Case that the defendant’s production of documents was incomplete; 3) the defendant’s agreement

that ISO could produce the information which it had been provided by the defendant in the IDS

Case; 4) the plaintiffs’ agreement to an agreed order concerning the terms of ISO’s production of

documents, including that ISO be compensated $7,500 for its costs incurred in making the

production. IDS Case, Order Granting Motion to Compel, ¶ 2 (attached hereto as Exhibit C); IDS

Case, Agreed Order Between ISO, a Non-Party, and Plaintiffs, As it Pertains to Plaintiffs’ [sic]

Production of Documents, Pursuant to a Non-Party Subpoena (attached hereto as Exhibit D).

For all of the other ISO Subpoenas, following ISO’s objections ISO’s deadline to produce

documents and a deponent was extended indefinitely by agreement or court order. 3 See e.g.

Notice of Postponement of Deadline to Comply with Subpoena and of Deposition, 9/21/20.

Among all of the ISO Subpoenas, this case is the first in which Plaintiffs have sought to

terminate the agreed, indefinite extension of ISO’s deadline to comply with a subpoena.

C. The Subpoena

The Subpoena was received by ISO’s Florida registered agent in Tallahassee on or about

September 8, 2020. Exhibit A. The Subpoena set a deposition, and a corresponding production of

documents, for October 2, 2020. Id. The Subpoena sought the production of “data that resides in

ISO Claim Search records for all claims where the insuring company or adjuster company

appears as [Defendants] between 12/21/12 to the present…” Id. For each such claim, the

3
Case No. 2018-042153.

5
Subpoena sought to require ISO to name the insuring company, the claim number, the date/time

of loss, the policy number, the policy type, the company received date, the location of loss, the

involved party (including name, address, DOB, gender, state and last 4 digits of SSN), the

alleged injury, the coverage type, and the loss type. Id. The Subpoena, covers almost nine years’

worth of claims, is not limited to Florida claims, claims submitted by the Defendants, or any

specific claim type. Id. The failure to limit the scope of the Subpoena to Florida claims is

particularly problematic, given that the data stored in ISO ClaimSearch includes non-Florida

claims and personal information of non-Florida residents, which is subject to various federal and

state regulation, as well as various confidentiality agreements. Martins Decl., ¶ 17.

From 2009-2019 approximately 517 million new records were submitted to ISO

ClaimSearch and, as of 2019, information regarding approximately 1.4 billion claims resided in

the ISO ClaimSearch database. Martins Decl., ¶ 16. To the extent the Subpoena is intended to

have ISO isolate claims with specified characteristics (i.e. in Florida, med-pay claims, etc.), ISO

has no way to do that through the traditional search functions of ISO ClaimSearch, as traditional

searches are limited to inputs, such as a claim number or an individual’s name. Id., ¶¶ 20-21. ISO

has not been provided such information for the Subpoena. See Exhibit A. Likewise, ISO’s ability

to search ISO ClaimSearch is not unique. Participating Organizations, including ISO’s insurance

company clients that report data to ISO, have the same ability to search the ISO ClaimSearch

database as does ISO. Id., ¶ 22.

Because ISO cannot use traditional search functions to gather the information requested

from it, ISO would be required to manually write and then run extraction programs to isolate the

information related to any specified characteristic for each of the ISO Subpoenas. Id., ¶ 20.4

4
The process described herein would need to be repeated for each of the ISO Subpoenas which Plaintiffs and
Plaintiffs’ affiliates intend to pursue.

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These are not the normal function of any ISO employee, would not be undertaken but for the

Subpoena, and would require employees to delay performing their usual duties in order to

perform these extractions. Id., ¶¶ 25-26. After the appropriate programs were developed,

extractions would need to be run in sequence against the hundreds of millions of claims

submitted to ISO in the approximately nine year period at issue for the Subpoena. Id., ¶¶ 16, 20,

25.

ISO would be forced to do so because the Subpoena, like all of the ISO Subpoenas, is not

limited to claims submitted by Defendants, but instead seeks data for all claims in which

Defendants are listed as “the insuring company or adjuster company[.]” Exhibit A. Additional

manual effort would be required to manually clean the extracted data and to provide the data

fields sought in the format requested. Martins Decl., ¶¶ 23, 27.

Additionally, the Subpoena is not limited to current information from the ISO

ClaimSearch database, but also seeks historical claims submission information, which would add

an additional complication, and the need for additional manual intervention by ISO employees.

See e.g. Exhibit A (seeking all data that “resides in” ISO ClaimSearch for Defendants). The ISO

ClaimSearch database is not intended to provide historical claims submission data, and it is a

complicated process to extract historical claims submission data. Id., ¶¶ 13, 18, 19. ISO would be

required to run additional data extraction to isolate historical claims submission data. Id.

D. ISO’s Objections to the Subpoena and the Need for this Motion

ISO served its objections on Plaintiffs, initially in another case in which Plaintiffs issued

one of the ISO Subpoenas on September 4, 2020. See ISO First Objection Letter, attached hereto

as Exhibit E. ISO then notified Plaintiffs via email on September 18, 2020 that the same

objections applied to all of the ISO Subpoenas, including the Subpoena. On September 21, 2020,

7
ISO, with Plaintiffs’ agreement, filed the Notice of Postponement of Deadline to Comply with

Subpoena and of Deposition, memorializing the postponement of the October 2, 2020 date set for

the production of documents and for deposition as set by the Subpoena. Plaintiffs filed a notice

on September 13, 2021 purporting to set a September 27, 2021 deadline for “compliance as to

document production only.” Notice of Setting Date for Compliance with Previously Served

Subpoena Duces Tecum. On September 23, 2021, ISO reiterated its objections to the Subpoena.

See ISO’s Second Objection Letter, attached hereto as Exhibit F.

While ISO’s timely objections to the Subpoena protect ISO from having to produce

documents in response to the Subpoena, because the Subpoena also sought a deposition of an

ISO representative, which Plaintiffs have not withdrawn, ISO has filed this motion. Fla. R. Civ.

P. 1.410(e)(1) (if objection is made to subpoena within 10 days “the party serving the subpoena

shall not be entitled to inspect and copy the materials except pursuant to an order of the court

from which the subpoena was issued.”). If Plaintiffs no longer intend to seek a deposition,

Plaintiffs should instead withdraw the Subpoena and proceed under Rule 1.351, “the exclusive

procedure for obtaining documents or things by subpoena from nonparties without deposing the

custodian or other person in possession of the documents…” Fla. R. Civ. P. 1.351(a).

II. Law and Argument

A. Applicable Legal Standards

Upon a showing of good cause, a person from whom discovery is sought may seek a

protective order to protect the person from “annoyance, embarrassment, oppression or undue

burden or expense.” Fla. R. Civ. P. 1.280(c). The burden to show the undue cost or burden rests

on the person seeking to quash the subpoena. See e.g. Medina v. Yoder Auto Sales, Inc., 743

So.2d 621, 623 (Fla. 2d DCA 1999). However, courts have noted that the good cause for an

8
undue burden can be met by showing “the volume of documents, or the number of man-hours

required in their production, or some other quantitative factor that would make it so.” First City

Developments of Florida, Inc. v. Hallmark of Hollywood Condominium Ass’n, Inc., 545 So.2d

502, 503 (Fla. 4th DCA 1989) (disapproved of on other grounds). Similarly, a subpoena may be

quashed or modified “if it is unreasonable and oppressive…” or because of “undue costs or

burden” required to produce electronically stored information. Fla. R. Civ. P. 1.410(c). The party

seeking to quash the subpoena must show the undue costs or burden. Id. Subpoenas are also

quashed when the court in which the subpoena is issued lacks subpoena power over the target of

the subpoena. See e.g. Ulloa v. CMI, Inc., 133 So.3d 914, 917, 925-926 (Fla. 2013).

B. The Subpoena Should be Quashed Because it Seeks Defendants’
Information and Defendants are a Less Burdensome Source of that
Information

The Florida Rules of Civil Procedure provide that courts “must limit the frequency or

extent of discovery otherwise allowed by these rules if it determines that (i) the discovery sought

is unreasonably cumulative or duplicative, or can be obtained from another source or in another

manner that is more convenient, less burdensome or less expensive…” Fla. R. Civ. P.

1.280(d)(2). Florida's Rules of Civil Procedure are modeled after the Federal Rules of Civil

Procedure. Gleneagle Ship Mgmt. Co. v. Leondakos, 602 So. 2d 1282, 1283 (Fla. 1992). As a

result, “[w]hen construing Florida Rules of Civil Procedure, Florida courts may look to federal

case law construing similar or identical Federal Rules of Civil Procedure…” Saewitz v. Saewitz,

79 So. 3d 831, 834, fn. 3 (Fla. 3d DCA 2012). Federal Rule of Civil Procedure 26(b)(2)(C)(i)

contains an identical limitation on discovery as provided for in Fla. R. Civ. P. 1.280(d)(2) and

cited above. Federal courts interpreting Federal Rule of Civil Procedure 26(b)(2)(C)(i) have

consistently found that a party is a more convenient source of discovery than a non-party, and, as

9
a result, have restricted efforts to subpoena a non-party for documents available from a party.

United States v. Crumb, No. 15-655, 2016 WL 6997122, at *3 (S.D. Ala. Oct. 4, 2016); Maxwell

v. Health Center of Lake City, Inc., No. 3:05-cv-1056, 2006 WL 1627020, at *4 (M.D. Fla. June

6, 2006); Genus Lifesciences Inc. v. Lannett Company, Inc., No. 18-cv-07603, 2019 WL

7313047, at *4 (N.D. Cal. Dec. 30, 2019).

It is inherently cumulative, duplicative, less convenient and more burdensome for

Plaintiffs to seek Defendants’ information from ISO, a non-party rather than from Defendants.

Yet that is precisely what the Subpoena seeks. See generally Exhibit A; Martins Decl., ¶ 8.

Plaintiffs seek this information from ISO despite themselves alleging that Defendants have sole

possession of the documents requested.” Amended Complaint, ¶ 49. Furthermore, based on the

nature of ISO ClaimSearch, which stores information provided to ISO by its clients, and which

its clients can search to the same extent as ISO, any information related to Defendants within

ISO ClaimSearch should be equally accessible to Defendants. Martins Decl., ¶¶ 8, 22. Plaintiffs

must seek Defendants’ information from Defendants first, and, if Defendants resist providing

such information, Plaintiffs must take that up with Defendants or the Court, not ISO.

C. ISO Cannot Be Ordered to Produce Defendants’ Information Because
of Defendants’ Objections to the Production

Florida courts, in evaluating whether to limit discovery, including through a protective

order, balance the competing interests in permitting or prohibiting discovery, including privacy

interests. Medina v. Haddad, 156 So.3d 1113, 1115 (Fla. 3d DCA 2015). Courts also specifically

look to whether the owners of the documents at issue have refused to produce the documents,

whether that refusal has been challenged by the party seeking discovery, and whether there are

other, less intrusive means of securing potentially confidential information. Id. When a party has

asserted a confidentiality objection to production from a third person/non-party, as Defendants

10
have here, courts recognize that the objecting party should be given the ability to review the

information before production, object and/or redact any confidential information therein.

Defendants’ Motion to Quash, at 6-8; Josifov v. Kamal-Hashmat, 217 So.3d 1085, 1087 (Fla. 3d

DCA 2017) (in suit against hotel, hotel permitted to object to and redact information held by

non-party guest survey service related to non-party hotel guests).

All of the factors considered in Medina support quashing the Subpoena. In this case,

because Plaintiffs seek Defendants’ information from ISO, any such information currently in

ISO ClaimSearch would be equally available to Defendants. Martins Decl., ¶¶ 8, 22. Thus, the

Subpoena is inherently duplicative and Plaintiffs have no interest in getting this information from

ISO as opposed to from Defendants. There is no indication that Plaintiffs have made any effort to

seek Defendants’ information from Defendants, and, clearly, Defendants do not consent to the

disclosure of this information. At a minimum, Plaintiffs have made no effort to challenge any

refusal by Defendants to provide the information. In fact, as reflected in the Motion to Dismiss

and Defendants’ Motion to Quash, there are disputes between Plaintiffs and Defendants about

whether the information sought by the Subpoena is discoverable at all. See generally Motion to

Dismiss; Defendants’ Motion to Quash. The information sought by the Subpoena should only be

ordered to be produced after that dispute is resolved, and only if it is resolved in Plaintiffs’ favor.

Thus, the Subpoena should be quashed simply because of this ongoing dispute.

Furthermore, Defendants’ information sought through the Subpoena are subject to

Defendants’ confidentiality claims, as stated in Defendants’ Motion to Quash, and Defendants

must have the opportunity to have that objection fully heard before any production could be

ordered. Particularly because it is Defendants, not ISO, who has a relationship with the

11
individuals whose private information (including address, date of birth, and social security

number) is being sought. See Exhibit A; Defendants’ Motion to Quash, at 8-11.

D. The Subpoena Should be Quashed Because the Court’s Subpoena
Power Does Not Extend Outside of Florida

Service of a subpoena on a Florida registered agent is not sufficient to compel the

production of documents located outside of Florida. A Florida subpoena has no effect, unless the

subpoena is properly served under the laws of the state in which it is served. Kinsale Insurance

Company v. Murphy, 285 So.3d 411, 412 (Fla. 1st DCA 2019). Thus, a Florida subpoena only

has effect if served in Florida.

If the targets of the subpoena duces tecum, both the records custodian and the records, are

located outside of Florida, the subpoena must be served in conjunction with the law of the forum

state, even if the target of the subpoena has a registered agent in the State of Florida. Ulloa v.

CMI, Inc., 133 So.3d 914, 918-19 (2013). In Ulloa, the Supreme Court of Florida held that, in a

criminal case, a subpoena served on an out-of-state corporation’s Florida registered agent for

documents and information that was not in the possession of the registered agent or located in

Florida was improper. This was because “[t]he long-arm statute does not extend the subpoena

power of a Florida court to command the in-state attendance of a non-resident, non-party person

or entity, or compel that person or entity to produce documents.” Ulloa, at 920 (internal citation

omitted). Ulloa also noted that statutes regarding designation of an agent for service of process,

“do[] not address or extend the court's subpoena power in a criminal proceeding to require an

out-of-state, nonparty corporation to produce documents that are also located out-of-state.” Id.

Finally, Ulloa noted that the statutes on which its holding was based, and thus the holding itself,

“appl[ies] with equal force to subpoenas directed to witnesses required to testify, as well as

witnesses required to only produce documents.” Id. at 925-26.

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Florida courts have extended this same principle to civil cases. As a result, service of a

Florida subpoena for documents on the Florida registered agent of a Georgia corporation was

improper for failing to comply with Georgia law when neither the records custodian subject to

the subpoena nor the records subject to the subpoena were located in Florida. Quest Diagnostics,

Inc. v. Swaters, 94 So.3d 635, 639-40 (Fla. 4th DCA 2012). The court’s analysis was based on

the Uniform Interstate Depositions and Discovery Act, adopted by many states, including by

Florida as Fla. Stat. § 92.251 (2019)5, which governs the issuance of subpoenas in a witness’s

home state for any action pending outside the witness’s home state. Under this process, the party

seeking the attendance of a foreign witness at a deposition must “apply to the court having

personal jurisdiction over the witness for the process necessary to secure the attendance of the

witness…” and the court “where the deposition actually takes place […] enjoys all necessary

powers of enforcement…” Greenlight Financial Services, Inc. v. Union America Mortg., Inc.,

971 So.2d 983, 985 (Fla. 3d DCA 2008). In other words, any dispute about a subpoena to an out-

of-state witness is heard by the courts of the witness’s home state, not a Florida court.

Plaintiffs have not followed the proper process. Rather, Plaintiffs did exactly what Ulloa

and Quest prohibit, in serving the Subpoena (a Florida subpoena) on ISO’s Florida registered

agent when the Subpoena is actually directed to out-of-state records from an out-of-state records

custodian for of an out-of-state corporation. Exhibit A; Martins Decl., ¶¶ 3, 5, 33. Both the

records and the records custodian at issue are located outside Florida because ISO has no offices

in Florida and does not physically store any data in Florida. Martins Decl., ¶ 3. As clearly

described in Quest and in Greenlight, Plaintiffs are required to serve ISO in its home state or

5
The current version applies only to cases commenced on or after July 1, 2019, but the prior version was the basis
for the holding in Quest Diagnostics.

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where records or a records custodian are located, with any dispute over that subpoena to be heard

in ISO’s home state.

The Subpoena must also be quashed because it seeks the production of documents, and a

deposition, in Coral Gables (Miami-Dade County). Exhibit A. As a result, the Subpoena does

not, as it must, set the deposition in a county in which the target “resides or is employed or

transacts business in person…” Fla. R. Civ. P. 1.410(e)(2); see also Philadelphia Indem. Ins. Co.

v. Carlton, 154 So.3d 509, 511 (4th DCA 2015). ISO, with no office locations or physical

locations for data storage anywhere in Florida does not reside in, or transact business in person

in, Miami-Dade County. Martins Decl., ¶ 3; Exhibit A. While the Subpoena indicates the

deposition “can take place on the Zoom Virtual Platform,” the Subpoena is clear that the

testimony will be transcribed by a court reporter in Miami-Dade County. Exhibit A. Thus, ISO is

improperly being asked to appear for a deposition in Miami-Dade County, where it does not

reside or transact business in person.

E. The Subpoena, Individually and as Part of the ISO Subpoenas, Places
an Undue Burden on ISO

The Court should also quash or modify the Subpoena as unduly burdensome to ISO. As

detailed below, complying with the Subpoena would require significant time and expense by

ISO, and would require ISO employees to forego their ordinary job functions to focus on

extracting data to respond to the Subpoena.

There is a variety of authority under which the Court can either narrow the scope of the

Subpoena or order that ISO be compensated for its costs in responding to the Subpoena. The

Court is empowered to grant a protective order to protect ISO from “undue burden or

expense…” by ordering, among other alternatives, “that the discovery not be had; […] “that the

discovery may be had only on specified terms and conditions, […] that the discovery may be had

14
only by a method of discovery other than that selected by the party seeking discovery[,] […] that

certain matters not be inquired into, or that the scope of the discovery be limited to certain

matters.” Fla. R. Civ. P. 1.280(c). Fla. R. Civ. P. 1.280(d)(1) provides, with respect to ESI, “[t]he

court may specify conditions of the discovery, including ordering that some or all of the

expenses incurred by the person from whom discovery is sought be paid by the party seeking the

discovery.” Fla. R. Civ. P. 1.280(d)(1).

Cases have found an undue burden based, in part, on the number of records at issue, and

the need for manual review of those records, solely to produce them in litigation, or based on the

fact that responding to the subpoena would interrupt the non-party’s normal business practices.

See generally North Miami General Hospital v. Royal Palm Beach Colony, Inc., 397 So.2d 1033

(Fla. 3d DCA 1981) (overruled on other grounds) (party not required to retrieve and manually

review over 37,000 records solely to respond to interrogatory); Travelers Indem. Co. v. Salido,

354 So.2d 963 (3d DCA 1978) (undue burden when response to subpoena would have

interrupted normal business practices).

While courts have discretion in fashioning these remedies, this discretion is not

unlimited, and it is error to make no provision for a non-party’s demonstrated and significant

costs of compliance with a subpoena. When a non-party presented testimony, via affidavit, that

responding to the subpoena would cost the non-party $50,000 in employee time, the trial court

erred in making “no provision” for the payment of these costs, and remanded the case for the

trial court to “determine and provide for” the reasonable costs of production. First Call Ventures,

LLC v. Nationwide Relocation Services, Inc., 127 So.3d 691, 693 (Fla. 4th DCA 2013). Courts

have ordered a more limited production by a party, pending additional review of the documents,

and ordered costs to be borne by the party seeking the information, when compliance with the

15
subpoena would have taken at least two weeks of full-time work for three employees. Biomet,

Inc. v. Fleury, 912 So.2d 706, 708-09 (Fla. 2d DCA 2005).

Searches in the ISO ClaimSearch database are generally run for current data, using

known individual names or claim numbers. Martins Decl., ¶ 21. Plaintiffs have not provided ISO

with claim numbers to search for, but have instead asked ISO to produce data with respect to all

claims in which Defendants were “the insuring company or adjuster company…” Exhibit A. This

cannot be done using the traditional search functions in the ISO ClaimSearch database, and

instead would require extraction and manual manipulation of the data to be produced. Martins

Decl., ¶¶ 21, 23.

To perform this data extraction, ISO must have programmers write, and then run,

programs to extract the data to meet the given specifications. Id., ¶ 25. ISO’s programmers

would not write or run these programs, and these extractions would not be performed, but for the

Subpoena. Id., ¶¶ 25-26. As a result, the Subpoena will interrupt ISO’s normal business practices

and is unduly burdensome. Travelers Indem. Co. v. Salido, 354 So.2d 963 (3d DCA 1978).

Likewise, to drill down on a set of data tailored to the claims in this case, such as Florida

claims6, would create an even greater burden on ISO. After the appropriate programs were

developed, the extractions would first need to be run, in sequence (for example, limiting the data

set to Florida claims, then further limiting the data set to specific claim types, such as no-fault,

MedPay, or PIP claims), against the hundreds of millions of claims submitted to ISO nationwide

in the approximately nine year period at issue in the Subpoena. Martins Decl., ¶¶ 16, 20. The

extractions must be run against this entire nationwide universe of claims because the Subpoena is

6
The Subpoena is not limited to Florida claims, but it is inherently over broad and unduly burdensome to seek
information regarding non-Florida claims, not to mention issues related to federal law and other states’ laws related
to the disclosure of such information that could not be resolved by an order of this Court.

16
not limited to claims submitted by the Defendants, but instead seeks data for all claims in which

the Defendants are listed as “the insuring company or adjuster company[.]” See e.g. Exhibit A.

As a result, the Subpoena is a request for data which matches claims submitted by the

Defendants (i.e. same incident) but was not submitted by the Defendants, and so extractions

would have to be run against all nationwide claims, even those not submitted by the Defendants.

Martins Decl., ¶ 20.

Another significant issue is that the Subpoena seeks “data that resides in ISO Claim

Search [sic] records…” as opposed to the data currently in the ISO ClaimSearch database.

Exhibit A. As a result, the Subpoena seeks historical claims data. The ISO ClaimSearch database

is not intended an aggregator for historical claims data, and would require significant manual

intervention to be used in this manner. Martins Decl., ¶¶ 13, 19. Instead, it is a constantly

updating collection of up-to-date data about insurance claims and thus the data is overwritten by

updated data. Id., ¶¶ 12, 18. In the ordinary course of its business, ISO does not search the ISO

ClaimSearch database for historical claims data in the manner contemplated by the Subpoena,

and cannot use the traditional search functions in the ISO ClaimSearch database to locate such

information. Id., ¶¶ 12-13, 18-21.

Ultimately, to perform these extractions, and to compile an extracted dataset that

Plaintiffs seek of historical claims information, including claims related to but not submitted by

Defendants for Florida claims during the specified period, ISO estimates that its cost of

compliance with the Subpoena, and each of the ISO Subpoenas, could be up to $20,000. 7 Martins

Decl., ¶ 31. The cost could be even higher if the extracted data needs to be manually manipulated

or modified to a different format. Id. These costs represent the cost to ISO, without profit, and

7
Since ISO has not actually performed the necessary programming, this estimate is only its best guess and actual
costs could be much higher.

17
are lower than what ISO has charged clients for similar extraction projects. Id., ¶¶ 29, 30. ISO’s

cost estimate, and its description of how those costs would be incurred, is both a sufficient

“quantitative” factor to demonstrate an undue burden and in line with the testimony of a $50,000

cost of compliance that required a provision for payment of costs of compliance. First Call

Ventures, LLC v. Nationwide Relocation Services, Inc., 127 So.3d 691 (Fla. 4th DCA 2013).

In light of the undue burden compliance with the Subpoena, individually and as part of

the ISO Subpoenas, would place on ISO, if the Court rejects the other arguments herein, the

Court should, at a minimum, order that Plaintiffs compensate ISO for the cost of ISO’s

compliance with the subpoena. Fla. R. Civ. P. 1.410(c); Fla. R. Civ. P. 1.280(d)(1).

III. Conclusion

For the reasons stated herein, this Motion should be granted and the Subpoena should be

quashed or a protective order granted such that ISO need not produce documents or a deponent

in response to the Subpoena.

Respectfully Submitted,

/s/ Robert C. Folland
Robert C. Folland (FL#1007951)
BARNES & THORNBURG LLP
4540 PGA Boulevard, Suite 208
Palm Beach Gardens, FL 33418
561-473-7560 (Telephone)
561-473-7561 (Facsimile)
Rob.Folland@btlaw.com

Attorney for Non-Party Insurance Services
Office Inc.

18
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed

electronically and was electronically served on September 28, 2021 to all counsel or parties of

record and was served via email on the following:

John H. Ruiz, Esq.
MSP Recovery Law Firm
2701 S. LeJeune Road, Floor 10
Coral Gables, Florida 33134
Phone: 305-614-2239
Email: serve@msprecovery.com
jruiz@msprecovery.com
Attorney for Plaintiffs

Eduardo Bertran, Esq.
J. Alfredo Armas, Esq.
Francesco Zincone, Esq.
Armas Bertran Pieri
4960 SW 72nd Avenue, Suite 206
Miami, Florida 33155
Phone: 305-461-5100
Email: Alfred@armaslaw.com
ebertran@armaslaw.com
fzincone@armaslaw.com
Attorneys for Plaintiffs

Angel A. Cortinas, Esq.
Jonathan H Kaskel, Esq.
Gunster
600 Brickell Avenue, Suite 3500
Phone: 305-376-6000
Email: acortinas@gunster.com
jkaskel@gunster.com
Attorneys for Defendant
/s/ Robert C. Folland
Robert C. Folland

19
Exhibit A
EXHIBIT B

IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AN

Case Info

Case No.

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Document Filed Date

September 28, 2021

Case Filing Date

December 21, 2018

County

Parties

Cortinas, Angel A Attorney for the Defendant
John H Ruiz Attorney for the Plaintiff
MAO-MSO RECOVERY II LLC Plaintiff
METROPOLITAN CASUALTY INSURANCE COMPANY Defendant
METROPOLITAN DIRECT PROPERTY AND CASUALTY INSURANC Defendant
METROPOLITAN GENERAL INSURANCE COMPANY Defendant
METROPOLITAN PROPERTY AND CASUALTY INSURANCE CO Defendant
MSPA CLAIMS 1, LLC Plaintiff
MSP RECOVERY CLAIMS, SERIES LLC Plaintiff
Party Name Party Description
SERIES PMPI Plaintiff
Jonathan Kaskel Attorneys for Defendants
Francesco Zincone Attorneys for Plaintiffs
Andre Vazquez Attorneys for Defendants
Eduardo Bertran Attorneys for Plaintiffs
J Armas Attorney
Robert Folland Attorney
Thomas Hunker Attorneys for Plaintiffs
Peter Weinstein Attorneys for Plaintiffs

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Motion,Ex Parte: MSP RECOVERY CLAIMS, SERIES LLC ET AL VS METROPOLITAN PROPERTY AND CASUALTY INSURANCE CO ET AL

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