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Filing # 140196595 E-Filed 12/12/2021 05:59:48 PM
IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
OPERATION AUTO GLASS, LLC
a/a/o MIKE POE,
CASE NUMBER: 21-CC-098042
Plaintiff,
vs.
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY,
Defendant.
______________________________________/
RESPONSE TO DEFENDANT'S OBJECTION TO
PLAINTIFF’S NOTICE OF INTENT TO SERVE A SUBPOENA
(re: Mitchell International, Inc.)
COMES NOW, Plaintiff, by and through its undersigned counsel, responds to
Defendant’s Objection to Plaintiff’s Notice of Intent to Serve a Subpoena and states:
FACTS
1. Plaintiff filed a Notice of Non-Party Production that consisted of one subpoena
duces tecum without deposition. The subpoena was directed to a non party to the underlying
lawsuit.
2. Attached to the subpoena was an Exhibit “A” that listed the materials Plaintiff
requested Mitchell International Inc. produce. Exhibit “A” consisted of 24 specifically tailored
requests. Defendant objected, on behalf of Mitchell International, Inc., to all requests found in
the aforementioned Exhibit “A.” Additionally, Defendant objected to the requests as being
irrelevant, overbroad, unduly burdensome, and trade secret. These objections Allstate raised on
behalf of Mitchell International, Inc. Allstate’s counsel has not entered an appearance on behalf
of Mitchell International, Inc. Each of the bases of Defendant’s objections will be discussed in
detail below.
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3. Mitchell International, Inc., performs data analytic services on behalf of insurers.
They have no claim files. They are not adjusters or licensed to handle the claims on behalf of
Defendant. Mitchell International, Inc. is not an agent of Allstate. Its factual involvement in the
claims is not a magical black box where its actions and interactions with the Defendant magically
disappear. The facts of this case should be presented to the jury.
4. This is an action seeking payment of overdue comprehensive benefits from
Defendant for goods and services provided by Plaintiff to Defendant’s Insured, to replace a
damaged windshield of a covered motor vehicle.
5. Defendant’s Insured assigned his/her rights and benefits under the subject policy of
insurance to Plaintiff in exchange for Plaintiff replacing the damaged windshield at no cost to the
Insured.
6. Plaintiff replaced the covered vehicle’s damaged windshield, which thereby
remediated any safety concerns the damaged windshield posed to the insured and public at large.
7. By replacing the damaged windshield, a driver of the covered motor vehicle was
no longer subject to a potential criminal offense.
8. Notice was provided to Defendant’s agent, Safelite Solutions, LLC, of the covered
loss. Defendant has improperly delegated its adjusting obligations to Safelite Solutions, LLC.
9. After completing the replacement of the covered auto’s damaged windshield,
Plaintiff, at Allstate’s request, submitted an invoice to Defendant’s agent, Safelite Solutions, LLC,
for payment for the services, labor, and materials it provided to remediate the damaged
windshield.
10. Safelite Solutions, LLC acknowledged coverage under the insured’s policy of
insurance, authorized the replacement, but failed to tender proper payment.
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11. Allstate’s policy of insurance provides the following limitations on windshield
coverage. It provides in pertinent part:
Limits of Liability
***
Unless otherwise agreed to by us and your shop of choice, our limit of liability
for losses involving only glass breakage or damage will be:
For Windshield Replacements:
Windshield 50% of the pricing for like kind
Glass: and quality windshield glass as set
forth in the National Auto Glass
Specifications on the date the
approved windshield installation
occurs
***
12. The policy’s reference to “National Auto Glass Specifications” is vague and
ambiguous. It suggests that payment is to be made based on “50% of the pricing for like kind and
quality windshield glass as set forth in the [Mitchell International, Inc. trademark name].”
13. National Auto Glass Specifications is a trademark owned by Mitchell International,
Inc. In 1991, Mitchell International, Inc. purchased National Auto Glass Specifications, Inc. The
two companies were merged, and Mitchell International, Inc. was the surviving entity. Prior to
1991, National Auto Glass Specifications, Inc. had created price catalogs based upon truckload
sales of windshield glass.
14. Mitchell International, Inc. provides customized price reports, data analytics, and
price list catalogs to many of the nation’s insurers, as well as select glass shops based on fee for
service access. This information is not available to the general public. Upon information and
belief, Allstate has entered into a confidential agreement with Mitchell International, Inc. The
12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3
terms of the agreement are unknown, but apparently include. Allstate, or its agent, Safelite
Solutions, LLC, submitting information to Mitchell International, Inc. that does not reflect the true
market price of arm's length glass sales.
15. Mitchell International, Inc. is in the business of providing data analytics and
statistical reports for the insurance industry. Mitchell International, Inc. does not provide reports
or publish the rate payable at the 50th percentile without a fee.
16. Upon information and belief, Mitchell International, Inc. claims its data regarding
the subject motor vehicle is confidential and proprietary. It was provided by the insurers (retail
purchase price) under confidentiality agreement.
17. Upon information and belief, Mitchell International, Inc. currently uses the data
obtained from over three hundred automobile insurers to create a data set. Mitchell International,
Inc. also utilizes geozips to determine pricing within a geographical area.
18. The resulting data set is then scrubbed. High and low values are excluded from the
database. The data is then sent through a proprietary algorithm to create a mathematical
price. Drew Vass, Is NAGS Broken, AGRR Volume 19 Issue 2, 30-33 (March/April 2017).
19. This data set referenced in Allstate’s policy does not indicate the geographical
region of data to be considered. The specific Mitchell International, Inc. data to be utilized is not
identified in Allstate’s policy exclusion.
20. Mitchell International, Inc. obtains data from all major automobile insurers and is
able to provide information regarding the range of glass prices, the mean, median, and mode of
glass prices, the percentile ranking of each price point, and other relevant data that would assist
the trier of fact in determining reasonable compensation.
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21. Mitchell International, Inc., upon information and belief, can determine the exact
price reflected by the 50th percentile; however, this calculation would not take into consideration
the adulteration of the data listed below.
22. Mitchell’s benchmark price has never been intended for use as actual transaction
prices. Instead, it has been about giving the auto glass and insurance industries an index of what
auto glass is acquired for at a retail level. It is not a precise retail price but instead a range of
prices as disclosed. Drew Vass, Is NAGS Broken, AGRR Volume 19 Issue 2, 30-33 (March/April
2017).
23. Allstate drafted the policy of insurance and limitations contained therein. It could
have used whatever terminology it wished. The Insured had no opportunity to review the policy
language (and endorsements’ language) to purchasing the policy and no disclosures were made of
Allstate’s intent to rely upon subscription based fee prices to limit liability. These fee prices were
created by Mitchell International, Inc., a privately held insurance servicer. No discount was
provided to the Insured based upon Allstate’s limitation.
24. In relation to windshield claims, Allstate suggests that it should be allowed to
rewrite the aforementioned limitations provision of the policy to lessen its exposure from the “cost
to repair or replace” to a price that would be limited to 50% of Mitchell International, Inc.’s
confidential price analysis.
25. The policy provision refers to Mitchell International’s trademark, “National Auto
Glass Specifications.” It does not refer to any specific list, report or publication.
26. The policy provision is vague and ambiguous and not capable of being interpreted
even with access to Mitchell International, Inc.’s proprietary information.
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27. It would be equitably unfair to allow the use of Mitchell International, Inc.’s data
by Defendant without providing Plaintiff with the ability to view and understand the data that has
been modified by Mitchell International, Inc. Further, Plaintiff needs access to this data for expert
review.
28. Many in the insurance industry, as a matter of custom and practice, have asked
independent glass installers to reduce the amount of their invoice/bill.
29. Allstate has contracted with Safelite Solutions, LLC to adjust and pay its insured’s
auto glass claims. Allstate’s agent, Safelite Solutions, LLC, has asked individual glass shops to
enter into a participation agreement and join the Safelite network. Safelite Solutions, LLC has
conditioned getting referrals on agreeing to charge only the amount reimbursed by insurers like
Allstate. Safelite Solutions, LLC also utilizes Safelite Auto Glass, its sister company, to bill
insurers at reduced rates. The reduced invoice/bill have been submitted to Mitchell International,
Inc. without reference to their adulteration. Because the price is based upon the amounts charged
in a geo zip, reductions of certain entries result in a lower reimbursement rate for the insurer on
future claims. If the fixed prices were excluded from Mitchell International, Inc.’s database, the
resulting price at the 50th percentile would likely be dramatically altered.
30. Upon information and belief, insurers, including Defendant, have either
affirmatively or impliedly represented to Mitchell International, Inc. that these invoices were arm’s
length transactions. An insurer’s practice of asking installers to reduce the price of their invoice
has corrupted Mitchell International, Inc.’s database, and it is believed that Mitchell International’s
algorithms and scrubbing procedures are insufficient to detect this alteration of its data.
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31. “The rules of civil procedure shall be liberally construed so as to allow the claimant
discovery of evidence which appears reasonably calculated to lead to admissible evidence on the
issue of punitive damages.” See Florida Statute §768.72.
LEGAL ANALYSIS
I. Introduction
“[F]ull and fair discovery is essential to the truth-finding function of our justice system,
and parties and non-parties alike must comply not only with the “technical provisions of the
discovery rules,” but also with “the purpose and spirit of those rules in both the criminal and civil
context.”” Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1118 (Fla. 2014),
citing, Scipio v. State, 928 So. 2d 1138, 1144 (Fla. 2006). It is “[o]nly when all relevant facts
are before the judge and jury can the “search for truth and justice” be accomplished.” Allstate
Ins. Co. v. Boecher, 733 So. 2d 993, 995 (Fla. 1999), citing, Dodson v. Persell, 390 So.2d 704,
707 (Fla.1980).
Trial courts are given extensive discretion in dealing with discovery issues, and a trial
court’s order on discovery will not be disturbed by an appellate court absent a clear abuse of
discretion. Nucci v. Target Corp., 162 So. 3d 146, 152 (Fla. 4th DCA 2015), citing, Alvarez v.
Cooper Tire & Rubber Co., 75 So.3d 789, 793 (Fla. 4th DCA 2011).
Discovery in civil cases must be relevant to the subject matter of the case and must be
admissible or reasonably calculated to lead to admissible evidence. Brooks v. Owens, 97 So. 2d
693, 699 (Fla. 1957); see also Amente v. Newman, 653 So. 2d 1030 (Fla. 1995) (concept of
relevancy is broader in discovery context than in a trial context, and party may be permitted to
discover relevant evidence that would be inadmissible at trial if it may lead to discovery of
relevant evidence); Fla. R. Civ. P. 1.280(b)(1) (discovery must be relevant to the subject matter
12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 7
of the pending action).
If the evidence is material and is reasonably expected or intended to be disclosed to the
court or jury at trial, it must be identified, disclosed, and copies provided to the adverse party in
accordance with the trial court's order and opposing party’s discovery requests. Upon request, an
insurer, such as Defendant, must provide all non-privileged documents upon which it intends to
use to support its claims decision. Mitchell International Inc’s data is one of those non-
privileged documents upon which Defendant is basing its defense.
When a party asserts privilege objections in opposition to discovery requests, the trial
court must make specific findings to support its denial of those objections. Such findings are
necessary for meaningful appellate review. The Fifth DCA specifically addressed this issue in
Magical Cruise Co. v. Turk, 114 So. 3d 233 (Fla. 5th DCA 2013). In Turk, the majority relied
on Dismas Charities, Inc. v. Dabbs, 795 So. 2d 1038 (Fla. 4th DCA 2001), granted certiorari
relief, and quashed an order requiring the petitioner to turn over work product because the trial
court made no findings to justify the production. 114 So.3d at 233; see also Harborside
Healthcare, LLC v. Jacobson, 222 So. 3d 612, 616 (Fla. 2d DCA 2017). Insurers, such as
Defendant, are often afforded protection of privileged information contained within the claims
file (i.e. documents privileged under the work product doctrine and attorney client
privilege). These records are not at issue in this subpoena.
II. The Documents Sought By Plaintiff Are Relevant To The Underlying Claim
As previously noted, Defendant has objected to all requests found in Exhibit “A” of the
subpoena to non-party, Mitchell International, Inc., as being “irrelevant.”
“A “part[y] may obtain discovery regarding any matter, not privileged, that is relevant to
the subject matter of the pending action, whether it relates to the claim or defense of the party
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seeking discovery or the claim or defense of any other party.” Nucci v. Target Corp., 162 So. 3d
146, 152 (Fla. 4th DCA 2015), citing, Fla. R. Civ. P. 1.280(b)(1). “It is not ground for objection
that the information sought will be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.”” Id. As the Florida
Supreme Court held “[t]he concept of relevancy has a much wider application in the discovery
context than in the context of admissible evidence at trial.” Bd. of Trustees of Internal
Improvement Tr. Fund v. Am. Educ. Enterprises, LLC, 99 So. 3d 450, 458 (Fla. 2012), citing,
Amente v. Newman, 653 So. 2d 1030, 1032 (Fla. 1995).
As detailed above, production of the materials listed in the subpoena’s Exhibit “A” are
directly relevant to the underlying breach of contract lawsuit and final decision regarding the
properly payable amount this claim. The requested items listed in Exhibit “A” to the subpoena
are reasonably calculated to lead to the discovery of admissible evidence regarding the amount
past due by Allstate.
III. The Documents Sought By Plaintiff Are Not Overbroad And Unduly Burdensome
As previously noted, Defendant has objected to all requests found in Exhibit “A” of the
subpoena to non-party, Mitchell International, Inc., as being “overbroad and unduly
burdensome.” It is important to note that Defendant is objecting to a third party request as
being unduly burdensome on the third-party and has not filed an affidavit of
burdensomeness.
“Overly broad” and “burdensome” are “words of art have little meaning without
substantive support.” First City Developments of Fla., Inc. v. Hallmark of Hollywood Condo.
Ass'n, Inc., 545 So. 2d 502, 503 (Fla. 4th DCA 1989), disapproved on other grounds by, Bd. of
Trustees of Internal Improvement Tr. Fund v. Am. Educ. Enterprises, LLC, 99 So. 3d 450
12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 9
(Fla. 2012). The objecting party must quantify for the court the way in which the sought
discovery is overly broad or burdensome. Id. Such an objection “must be supported by record
evidence, such as an affidavit detailing the basis for claiming that the onus of supplying the
information or documents is inordinate.” In re Commitment of Sutton, 884 So. 2d 198, 203
(Fla. 2d DCA 2004), citing, Topp Telecom, Inc. v. Atkins, 763 So.2d 1197 (Fla. 4th DCA
2000). The objecting party “must be able to show 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, 545 So. 2d at 503.
As previously stated, the ability of Defendant to object to the items contained within
Exhibit “A” of the subpoena is highly questionable as these requests are not directed to
Defendant. Since they are not directed to Defendant, how would Defendant have the required
knowledge to say they are unduly burdensome.
Even if Defendant could properly object to these items being overly broad and unduly
burdensome, Defendant has failed to necessary level of record evidence to support such an
objection as required under Florida law.
IV. The Documents Sought By Plaintiff Are Not Confidential Trade Secret
As previously noted, Defendant has objected to all requests found in Exhibit “A” of the
subpoena to non-party, Mitchell International, Inc., as being confidential/trade secret. Plaintiff
is agreeable to entering into a Confidentiality Agreement with Mitchell International, Inc. and
allowing Defendant to see the information in order to alleviate any concerns of Defendant.
“The burden is on the party resisting discovery to show “good cause” for protecting or
limiting discovery by demonstrating that the information sought is a trade secret or confidential
business information and that disclosure may be harmful.” Am. Exp. Travel Related Services,
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Inc. v. Cruz, 761 So. 2d 1206, 1209 (Fla. 4th DCA 2000). “Trade secret” is defined by Florida
Statute § 688.002(4) as:
[I]nformation, 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.
Fla. Stat. § 688.002(4).
If a party asserts trade secret privilege in response to the disclosure of documents, it is up
the court to determine whether the materials sought constitute trade secret. Salick Health Care,
Inc. v. Spunberg, 722 So. 2d 944, 946 (Fla. 4th DCA 1998); Rare Coin-It, Inc. v. I.J.E., Inc.,
625 So. 2d 1277, 1278 (Fla. 3d DCA 1993). “This determination will usually require that the
trial court conduct an in camera hearing and inspection of the materials in question to determine
whether they contain trade secrets.” Salick Health Care, 722 So. 2d at 946. If the materials do
constitute trade secret, then the party requesting production of the materials must demonstrate
reasonable necessity for the materials disclosure. Id. Once a reasonable necessity for their
disclosure is demonstrated, the court should take such protective measures as necessary to
protect the trade secret interests, including the entering of a confidentiality agreement or
protective order. Laser Spine Inst., LLC v. Makanast, 69 So. 3d 1045, 1046 (Fla. 2d DCA
2011); Columbia Hosp. (Palm Beaches) Ltd. Partn. v. Hasson, 33 So. 3d 148, 151 (Fla. 4th
DCA 2010).
As previously noted, Plaintiff is agreeable to entering into a Confidentiality Agreement
with Mitchell International, Inc. and allowing Defendant to see the information in order to
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alleviate any concerns of Defendant. Even if the objected to items were in fact protected by
trade secret, a reasonable necessity exists for their production to Plaintiff. Answering the
valuation question goes to the heart of the underlying lawsuit and to Plaintiff’s ability to present
its case.
V. The Documents Sought By Plaintiff Are Not Work Product
Defendant has objected to the subpoena’s Exhibit “A” based upon the work product
doctrine.
Defendant’s argument that claim file materials are not discoverable in Florida based
solely upon the work product privilege is also without merit. The work product doctrine, which
is incorporated into both the Federal and Florida Rules of Civil Procedure, is intended to shield
from discovery documents and communications that are created in anticipation of litigation. In
basing its objection on the work product doctrine, Defendant is asserting the position that all
materials generated by third party, Mitchell International, Inc. in relation to the vehicle
windshield at issue in this claim are privileged. Defendant does not have standing to assert
Mitchell International, Inc.’s work product privilege. Such an argument encompasses all of
Mitchell International, Inc. reports, calculations, and data alterations, regardless of the fact that
these documents were not generated in anticipation of litigation but rather during the routine
course of business. Accordingly, the work product doctrine is not applicable to the subject
subpoena.
Even if the materials were protected by the work product doctrine, under Florida Rule of
Civil Procedure 1.280(b)(4), “a party may obtain work product upon a showing of (1) relevance
and particularized need and (2) the inability to obtain the substantial equivalent without undue
hardship.” Marshalls of M.A., Inc. v. Witter, 186 So. 3d 570, 573 (Fla. 3d DCA 2016). As
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detailed above, Plaintiff has a reasonable necessity for the materials sought to determine the
amount payable under Allstate’s policy.
VI. The Documents Sought By Plaintiff Are Not Protected By The Mythical “Claim File
Privilege”
The mythical “claims file privilege” does not exist. In Homeowners Choice Property and
Casualty Insurance Company v. Raul Avila and Doxanne Avila, 248 So. 3d 180 (2018), the
court noted that counsel for both parties referred to a “claims file privilege” and advised that
“there is no such privilege by that designation in the cited cases or Florida’s Rules of Procedure
or Evidence Code.” Moreover, Mitchell International, Inc. has no claim file specifically
identifiable to this suit. The objection appears nonsensical.
WHEREFORE, Plaintiff respectfully requests this Court to enter an Order denying
Defendant’s Objection to Plaintiff’s Notice of Intent to Serve a Subpoena and award any other
relief this Court deems just and proper.
I HEREBY CERTIFY that a true and correct copy of the foregoing was uploaded to the
Florida E-Portal with all interested parties selected for delivery on December 12, 2021.
/s/ Donald J. Masten, Esquire
____________________________________
DONALD J. MASTEN, ESQUIRE
Florida Bar No: 0679161
Primary: Don.Masten@myflalawyer.com
Secondary: Jennifer.Janssen@myflalawyer.com
Donald James Masten, LLC
P.O. Box 4449
Orlando, FL 32802
12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 13
Preview
Filing # 140196595 E-Filed 12/12/2021 05:59:48 PM IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA OPERATION AUTO GLASS, LLC a/a/o MIKE POE, CASE NUMBER: 21-CC-098042 Plaintiff, vs. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. ______________________________________/ RESPONSE TO DEFENDANT'S OBJECTION TO PLAINTIFF’S NOTICE OF INTENT TO SERVE A SUBPOENA (re: Mitchell International, Inc.) COMES NOW, Plaintiff, by and through its undersigned counsel, responds to Defendant’s Objection to Plaintiff’s Notice of Intent to Serve a Subpoena and states: FACTS 1. Plaintiff filed a Notice of Non-Party Production that consisted of one subpoena duces tecum without deposition. The subpoena was directed to a non party to the underlying lawsuit. 2. Attached to the subpoena was an Exhibit “A” that listed the materials Plaintiff requested Mitchell International Inc. produce. Exhibit “A” consisted of 24 specifically tailored requests. Defendant objected, on behalf of Mitchell International, Inc., to all requests found in the aforementioned Exhibit “A.” Additionally, Defendant objected to the requests as being irrelevant, overbroad, unduly burdensome, and trade secret. These objections Allstate raised on behalf of Mitchell International, Inc. Allstate’s counsel has not entered an appearance on behalf of Mitchell International, Inc. Each of the bases of Defendant’s objections will be discussed in detail below. 12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1 3. Mitchell International, Inc., performs data analytic services on behalf of insurers. They have no claim files. They are not adjusters or licensed to handle the claims on behalf of Defendant. Mitchell International, Inc. is not an agent of Allstate. Its factual involvement in the claims is not a magical black box where its actions and interactions with the Defendant magically disappear. The facts of this case should be presented to the jury. 4. This is an action seeking payment of overdue comprehensive benefits from Defendant for goods and services provided by Plaintiff to Defendant’s Insured, to replace a damaged windshield of a covered motor vehicle. 5. Defendant’s Insured assigned his/her rights and benefits under the subject policy of insurance to Plaintiff in exchange for Plaintiff replacing the damaged windshield at no cost to the Insured. 6. Plaintiff replaced the covered vehicle’s damaged windshield, which thereby remediated any safety concerns the damaged windshield posed to the insured and public at large. 7. By replacing the damaged windshield, a driver of the covered motor vehicle was no longer subject to a potential criminal offense. 8. Notice was provided to Defendant’s agent, Safelite Solutions, LLC, of the covered loss. Defendant has improperly delegated its adjusting obligations to Safelite Solutions, LLC. 9. After completing the replacement of the covered auto’s damaged windshield, Plaintiff, at Allstate’s request, submitted an invoice to Defendant’s agent, Safelite Solutions, LLC, for payment for the services, labor, and materials it provided to remediate the damaged windshield. 10. Safelite Solutions, LLC acknowledged coverage under the insured’s policy of insurance, authorized the replacement, but failed to tender proper payment. 12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 11. Allstate’s policy of insurance provides the following limitations on windshield coverage. It provides in pertinent part: Limits of Liability *** Unless otherwise agreed to by us and your shop of choice, our limit of liability for losses involving only glass breakage or damage will be: For Windshield Replacements: Windshield 50% of the pricing for like kind Glass: and quality windshield glass as set forth in the National Auto Glass Specifications on the date the approved windshield installation occurs *** 12. The policy’s reference to “National Auto Glass Specifications” is vague and ambiguous. It suggests that payment is to be made based on “50% of the pricing for like kind and quality windshield glass as set forth in the [Mitchell International, Inc. trademark name].” 13. National Auto Glass Specifications is a trademark owned by Mitchell International, Inc. In 1991, Mitchell International, Inc. purchased National Auto Glass Specifications, Inc. The two companies were merged, and Mitchell International, Inc. was the surviving entity. Prior to 1991, National Auto Glass Specifications, Inc. had created price catalogs based upon truckload sales of windshield glass. 14. Mitchell International, Inc. provides customized price reports, data analytics, and price list catalogs to many of the nation’s insurers, as well as select glass shops based on fee for service access. This information is not available to the general public. Upon information and belief, Allstate has entered into a confidential agreement with Mitchell International, Inc. The 12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3 terms of the agreement are unknown, but apparently include. Allstate, or its agent, Safelite Solutions, LLC, submitting information to Mitchell International, Inc. that does not reflect the true market price of arm's length glass sales. 15. Mitchell International, Inc. is in the business of providing data analytics and statistical reports for the insurance industry. Mitchell International, Inc. does not provide reports or publish the rate payable at the 50th percentile without a fee. 16. Upon information and belief, Mitchell International, Inc. claims its data regarding the subject motor vehicle is confidential and proprietary. It was provided by the insurers (retail purchase price) under confidentiality agreement. 17. Upon information and belief, Mitchell International, Inc. currently uses the data obtained from over three hundred automobile insurers to create a data set. Mitchell International, Inc. also utilizes geozips to determine pricing within a geographical area. 18. The resulting data set is then scrubbed. High and low values are excluded from the database. The data is then sent through a proprietary algorithm to create a mathematical price. Drew Vass, Is NAGS Broken, AGRR Volume 19 Issue 2, 30-33 (March/April 2017). 19. This data set referenced in Allstate’s policy does not indicate the geographical region of data to be considered. The specific Mitchell International, Inc. data to be utilized is not identified in Allstate’s policy exclusion. 20. Mitchell International, Inc. obtains data from all major automobile insurers and is able to provide information regarding the range of glass prices, the mean, median, and mode of glass prices, the percentile ranking of each price point, and other relevant data that would assist the trier of fact in determining reasonable compensation. 12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4 21. Mitchell International, Inc., upon information and belief, can determine the exact price reflected by the 50th percentile; however, this calculation would not take into consideration the adulteration of the data listed below. 22. Mitchell’s benchmark price has never been intended for use as actual transaction prices. Instead, it has been about giving the auto glass and insurance industries an index of what auto glass is acquired for at a retail level. It is not a precise retail price but instead a range of prices as disclosed. Drew Vass, Is NAGS Broken, AGRR Volume 19 Issue 2, 30-33 (March/April 2017). 23. Allstate drafted the policy of insurance and limitations contained therein. It could have used whatever terminology it wished. The Insured had no opportunity to review the policy language (and endorsements’ language) to purchasing the policy and no disclosures were made of Allstate’s intent to rely upon subscription based fee prices to limit liability. These fee prices were created by Mitchell International, Inc., a privately held insurance servicer. No discount was provided to the Insured based upon Allstate’s limitation. 24. In relation to windshield claims, Allstate suggests that it should be allowed to rewrite the aforementioned limitations provision of the policy to lessen its exposure from the “cost to repair or replace” to a price that would be limited to 50% of Mitchell International, Inc.’s confidential price analysis. 25. The policy provision refers to Mitchell International’s trademark, “National Auto Glass Specifications.” It does not refer to any specific list, report or publication. 26. The policy provision is vague and ambiguous and not capable of being interpreted even with access to Mitchell International, Inc.’s proprietary information. 12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5 27. It would be equitably unfair to allow the use of Mitchell International, Inc.’s data by Defendant without providing Plaintiff with the ability to view and understand the data that has been modified by Mitchell International, Inc. Further, Plaintiff needs access to this data for expert review. 28. Many in the insurance industry, as a matter of custom and practice, have asked independent glass installers to reduce the amount of their invoice/bill. 29. Allstate has contracted with Safelite Solutions, LLC to adjust and pay its insured’s auto glass claims. Allstate’s agent, Safelite Solutions, LLC, has asked individual glass shops to enter into a participation agreement and join the Safelite network. Safelite Solutions, LLC has conditioned getting referrals on agreeing to charge only the amount reimbursed by insurers like Allstate. Safelite Solutions, LLC also utilizes Safelite Auto Glass, its sister company, to bill insurers at reduced rates. The reduced invoice/bill have been submitted to Mitchell International, Inc. without reference to their adulteration. Because the price is based upon the amounts charged in a geo zip, reductions of certain entries result in a lower reimbursement rate for the insurer on future claims. If the fixed prices were excluded from Mitchell International, Inc.’s database, the resulting price at the 50th percentile would likely be dramatically altered. 30. Upon information and belief, insurers, including Defendant, have either affirmatively or impliedly represented to Mitchell International, Inc. that these invoices were arm’s length transactions. An insurer’s practice of asking installers to reduce the price of their invoice has corrupted Mitchell International, Inc.’s database, and it is believed that Mitchell International’s algorithms and scrubbing procedures are insufficient to detect this alteration of its data. 12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6 31. “The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages.” See Florida Statute §768.72. LEGAL ANALYSIS I. Introduction “[F]ull and fair discovery is essential to the truth-finding function of our justice system, and parties and non-parties alike must comply not only with the “technical provisions of the discovery rules,” but also with “the purpose and spirit of those rules in both the criminal and civil context.”” Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1118 (Fla. 2014), citing, Scipio v. State, 928 So. 2d 1138, 1144 (Fla. 2006). It is “[o]nly when all relevant facts are before the judge and jury can the “search for truth and justice” be accomplished.” Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 995 (Fla. 1999), citing, Dodson v. Persell, 390 So.2d 704, 707 (Fla.1980). Trial courts are given extensive discretion in dealing with discovery issues, and a trial court’s order on discovery will not be disturbed by an appellate court absent a clear abuse of discretion. Nucci v. Target Corp., 162 So. 3d 146, 152 (Fla. 4th DCA 2015), citing, Alvarez v. Cooper Tire & Rubber Co., 75 So.3d 789, 793 (Fla. 4th DCA 2011). Discovery in civil cases must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence. Brooks v. Owens, 97 So. 2d 693, 699 (Fla. 1957); see also Amente v. Newman, 653 So. 2d 1030 (Fla. 1995) (concept of relevancy is broader in discovery context than in a trial context, and party may be permitted to discover relevant evidence that would be inadmissible at trial if it may lead to discovery of relevant evidence); Fla. R. Civ. P. 1.280(b)(1) (discovery must be relevant to the subject matter 12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 7 of the pending action). If the evidence is material and is reasonably expected or intended to be disclosed to the court or jury at trial, it must be identified, disclosed, and copies provided to the adverse party in accordance with the trial court's order and opposing party’s discovery requests. Upon request, an insurer, such as Defendant, must provide all non-privileged documents upon which it intends to use to support its claims decision. Mitchell International Inc’s data is one of those non- privileged documents upon which Defendant is basing its defense. When a party asserts privilege objections in opposition to discovery requests, the trial court must make specific findings to support its denial of those objections. Such findings are necessary for meaningful appellate review. The Fifth DCA specifically addressed this issue in Magical Cruise Co. v. Turk, 114 So. 3d 233 (Fla. 5th DCA 2013). In Turk, the majority relied on Dismas Charities, Inc. v. Dabbs, 795 So. 2d 1038 (Fla. 4th DCA 2001), granted certiorari relief, and quashed an order requiring the petitioner to turn over work product because the trial court made no findings to justify the production. 114 So.3d at 233; see also Harborside Healthcare, LLC v. Jacobson, 222 So. 3d 612, 616 (Fla. 2d DCA 2017). Insurers, such as Defendant, are often afforded protection of privileged information contained within the claims file (i.e. documents privileged under the work product doctrine and attorney client privilege). These records are not at issue in this subpoena. II. The Documents Sought By Plaintiff Are Relevant To The Underlying Claim As previously noted, Defendant has objected to all requests found in Exhibit “A” of the subpoena to non-party, Mitchell International, Inc., as being “irrelevant.” “A “part[y] may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party 12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 8 seeking discovery or the claim or defense of any other party.” Nucci v. Target Corp., 162 So. 3d 146, 152 (Fla. 4th DCA 2015), citing, Fla. R. Civ. P. 1.280(b)(1). “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”” Id. As the Florida Supreme Court held “[t]he concept of relevancy has a much wider application in the discovery context than in the context of admissible evidence at trial.” Bd. of Trustees of Internal Improvement Tr. Fund v. Am. Educ. Enterprises, LLC, 99 So. 3d 450, 458 (Fla. 2012), citing, Amente v. Newman, 653 So. 2d 1030, 1032 (Fla. 1995). As detailed above, production of the materials listed in the subpoena’s Exhibit “A” are directly relevant to the underlying breach of contract lawsuit and final decision regarding the properly payable amount this claim. The requested items listed in Exhibit “A” to the subpoena are reasonably calculated to lead to the discovery of admissible evidence regarding the amount past due by Allstate. III. The Documents Sought By Plaintiff Are Not Overbroad And Unduly Burdensome As previously noted, Defendant has objected to all requests found in Exhibit “A” of the subpoena to non-party, Mitchell International, Inc., as being “overbroad and unduly burdensome.” It is important to note that Defendant is objecting to a third party request as being unduly burdensome on the third-party and has not filed an affidavit of burdensomeness. “Overly broad” and “burdensome” are “words of art have little meaning without substantive support.” First City Developments of Fla., Inc. v. Hallmark of Hollywood Condo. Ass'n, Inc., 545 So. 2d 502, 503 (Fla. 4th DCA 1989), disapproved on other grounds by, Bd. of Trustees of Internal Improvement Tr. Fund v. Am. Educ. Enterprises, LLC, 99 So. 3d 450 12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 9 (Fla. 2012). The objecting party must quantify for the court the way in which the sought discovery is overly broad or burdensome. Id. Such an objection “must be supported by record evidence, such as an affidavit detailing the basis for claiming that the onus of supplying the information or documents is inordinate.” In re Commitment of Sutton, 884 So. 2d 198, 203 (Fla. 2d DCA 2004), citing, Topp Telecom, Inc. v. Atkins, 763 So.2d 1197 (Fla. 4th DCA 2000). The objecting party “must be able to show 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, 545 So. 2d at 503. As previously stated, the ability of Defendant to object to the items contained within Exhibit “A” of the subpoena is highly questionable as these requests are not directed to Defendant. Since they are not directed to Defendant, how would Defendant have the required knowledge to say they are unduly burdensome. Even if Defendant could properly object to these items being overly broad and unduly burdensome, Defendant has failed to necessary level of record evidence to support such an objection as required under Florida law. IV. The Documents Sought By Plaintiff Are Not Confidential Trade Secret As previously noted, Defendant has objected to all requests found in Exhibit “A” of the subpoena to non-party, Mitchell International, Inc., as being confidential/trade secret. Plaintiff is agreeable to entering into a Confidentiality Agreement with Mitchell International, Inc. and allowing Defendant to see the information in order to alleviate any concerns of Defendant. “The burden is on the party resisting discovery to show “good cause” for protecting or limiting discovery by demonstrating that the information sought is a trade secret or confidential business information and that disclosure may be harmful.” Am. Exp. Travel Related Services, 12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 10 Inc. v. Cruz, 761 So. 2d 1206, 1209 (Fla. 4th DCA 2000). “Trade secret” is defined by Florida Statute § 688.002(4) as: [I]nformation, 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. Fla. Stat. § 688.002(4). If a party asserts trade secret privilege in response to the disclosure of documents, it is up the court to determine whether the materials sought constitute trade secret. Salick Health Care, Inc. v. Spunberg, 722 So. 2d 944, 946 (Fla. 4th DCA 1998); Rare Coin-It, Inc. v. I.J.E., Inc., 625 So. 2d 1277, 1278 (Fla. 3d DCA 1993). “This determination will usually require that the trial court conduct an in camera hearing and inspection of the materials in question to determine whether they contain trade secrets.” Salick Health Care, 722 So. 2d at 946. If the materials do constitute trade secret, then the party requesting production of the materials must demonstrate reasonable necessity for the materials disclosure. Id. Once a reasonable necessity for their disclosure is demonstrated, the court should take such protective measures as necessary to protect the trade secret interests, including the entering of a confidentiality agreement or protective order. Laser Spine Inst., LLC v. Makanast, 69 So. 3d 1045, 1046 (Fla. 2d DCA 2011); Columbia Hosp. (Palm Beaches) Ltd. Partn. v. Hasson, 33 So. 3d 148, 151 (Fla. 4th DCA 2010). As previously noted, Plaintiff is agreeable to entering into a Confidentiality Agreement with Mitchell International, Inc. and allowing Defendant to see the information in order to 12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 11 alleviate any concerns of Defendant. Even if the objected to items were in fact protected by trade secret, a reasonable necessity exists for their production to Plaintiff. Answering the valuation question goes to the heart of the underlying lawsuit and to Plaintiff’s ability to present its case. V. The Documents Sought By Plaintiff Are Not Work Product Defendant has objected to the subpoena’s Exhibit “A” based upon the work product doctrine. Defendant’s argument that claim file materials are not discoverable in Florida based solely upon the work product privilege is also without merit. The work product doctrine, which is incorporated into both the Federal and Florida Rules of Civil Procedure, is intended to shield from discovery documents and communications that are created in anticipation of litigation. In basing its objection on the work product doctrine, Defendant is asserting the position that all materials generated by third party, Mitchell International, Inc. in relation to the vehicle windshield at issue in this claim are privileged. Defendant does not have standing to assert Mitchell International, Inc.’s work product privilege. Such an argument encompasses all of Mitchell International, Inc. reports, calculations, and data alterations, regardless of the fact that these documents were not generated in anticipation of litigation but rather during the routine course of business. Accordingly, the work product doctrine is not applicable to the subject subpoena. Even if the materials were protected by the work product doctrine, under Florida Rule of Civil Procedure 1.280(b)(4), “a party may obtain work product upon a showing of (1) relevance and particularized need and (2) the inability to obtain the substantial equivalent without undue hardship.” Marshalls of M.A., Inc. v. Witter, 186 So. 3d 570, 573 (Fla. 3d DCA 2016). As 12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 12 detailed above, Plaintiff has a reasonable necessity for the materials sought to determine the amount payable under Allstate’s policy. VI. The Documents Sought By Plaintiff Are Not Protected By The Mythical “Claim File Privilege” The mythical “claims file privilege” does not exist. In Homeowners Choice Property and Casualty Insurance Company v. Raul Avila and Doxanne Avila, 248 So. 3d 180 (2018), the court noted that counsel for both parties referred to a “claims file privilege” and advised that “there is no such privilege by that designation in the cited cases or Florida’s Rules of Procedure or Evidence Code.” Moreover, Mitchell International, Inc. has no claim file specifically identifiable to this suit. The objection appears nonsensical. WHEREFORE, Plaintiff respectfully requests this Court to enter an Order denying Defendant’s Objection to Plaintiff’s Notice of Intent to Serve a Subpoena and award any other relief this Court deems just and proper. I HEREBY CERTIFY that a true and correct copy of the foregoing was uploaded to the Florida E-Portal with all interested parties selected for delivery on December 12, 2021. /s/ Donald J. Masten, Esquire ____________________________________ DONALD J. MASTEN, ESQUIRE Florida Bar No: 0679161 Primary: Don.Masten@myflalawyer.com Secondary: Jennifer.Janssen@myflalawyer.com Donald James Masten, LLC P.O. Box 4449 Orlando, FL 32802 12/12/2021 5:59 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 13