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

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 Ace American Insurance Company, Ace Fire Underwriters Insurance Company, Ace Insurance Company Of The Midwest, Ace Property And Casualty Insurance Company, for Equitable Relief in the District Court of Miami-Dade County.

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Filing # 115285432 E-Filed 10/20/2020 02:00:20 PM

IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
Case No. 2018-042391-CA-05
MSP RECOVERY CLAIMS, SERIES LLC,
et al.

Plaintiffs,

vs.

ACE PROPERTY AND CASUALTY INSURANCE
COMPANY, et al.

Defendants.
_____________________/

NON-PARTY INSURANCE SERVICES OFFICE, INC.’S RESPONSE IN SUPPORT OF
DEFENDANTS’ MOTION FOR PROTECTIVE ORDER
Non-Party Insurance Services Office, Inc. (“ISO”)1 does not create or possess any unique

information related to Defendants. 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

what ISO’s clients have provided to ISO. As a result, and in addition to the arguments raised by

Defendants in the Motion for Protective Order filed October 19, 2020 (the “Motion for

Protective Order”), Plaintiffs’ subpoena duces tecum issued to ISO on or about September 3,

2020 (the “Subpoena”) should be quashed because: 1) The only information ISO possesses

regarding the Subpoena is information provided to ISO by its clients, including Defendants, 2)

ISO should not be compelled to produce Defendants’ information, which Defendants could also

produce, particularly when Defendants object to the release of that information, 3) Neither the

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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 sought from ISO by the Subpoena nor any potential ISO deponent is located in

Florida, and thus the Subpoena is deficient, and 4) Any attempt to have ISO extract data related

to, or supplied by, Defendants from ISO’s database, as the Subpoena seeks, is overly broad and

unduly burdensome to ISO, a non-party repository of information.

The arguments raised in the Motion for Protective Order are threshold arguments which

must be decided before the Court considers the issues raised herein. For example, the Motion for

Protective Order argues that Plaintiffs have not sufficiently demonstrated standing to seek

discovery in this action and that Plaintiffs are not entitled to discovery from a third-party, such as

ISO, in this pure bill of discovery action. See generally Motion for Protective Order. ISO

incorporates these broader arguments herein. If the Court finds merit in those broader arguments,

the Court should quash the Subpoena and need not consider the arguments herein, which concern

the deficiencies of the Subpoena and the burdens imposed upon ISO by the Subpoena.

For these reasons, as well as those raised in the Motion for Protective Order, 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 Lynn Roberts,

attached hereto as Exhibit A (“Roberts Decl.”), ¶¶ 4-5. ISO ClaimSearch is the only

comprehensive system for improving claims processing and fighting fraud in the

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property/casualty insurance industry in the nation. Id., ¶¶ 7-8. 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 research loss histories, identify claims patterns, and

detect fraud. Id. 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., ¶ 9. Entities with the ability to

search the ISO ClaimSearch database are known as 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., ¶¶ 10, 11. Any effort to obtain historical claims data from ISO

ClaimSearch would require writing and running extraction programs and manual intervention by

ISO. Id., ¶¶ 17-20.

ISO has a limited relationship to this case and to Florida more generally. Defendants are

some of ISO’s many insurance company clients, but ISO has no other relationship with

Defendants. Id., ¶ 14. ISO is a subsidiary of Verisk Analytics, Inc. (“Verisk”) and both ISO and

Verisk are headquartered in New Jersey. Id., ¶¶ 2-3. ISO has limited connections to Florida. ISO

is licensed to do business in Florida and has a Florida registered agent. Id., ¶ 3. However, ISO

has no offices in Florida, and ISO does not physically store data in Florida. Id.

B. The ISO Subpoenas, ISO’s Objections and the Motion for Protective Order

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 seeking nearly identical information to the

information sought by the Subpoena regarding various insurance company clients of ISO

(collectively the “ISO Subpoenas”).2 Id., ¶ 14; see also Motion for Protective Order, Exhibit A.

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Specifically, 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-

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The Subpoena was served on ISO’s Florida registered agent in Tallahassee. Motion for

Protective Order, Exhibit A. The Subpoena set a deposition, and a corresponding production of

documents, for October 1, 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

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, like all of the ISO Subpoenas, covers almost eight years’ worth of claims,

is not limited to Florida claims, is not limited to claims submitted by the defendant(s) in each

case, and is not limited to any specific claim type. Id. The failure to limit the scope of the ISO

Subpoenas to Florida claims is particularly problematic, given that the data stored by ISO in ISO

ClaimSearch includes claims that occurred nationwide and includes the personal information of

both Florida and non-Florida residents, which is subject to various federal and state regulation, as

well as various confidentiality agreements. Id., ¶ 17.

The total universe of claims submitted to ISO and stored in ClaimSearch is

approximately 1.5 billion claims, approximately 841 million of which have been submitted since

2009. Roberts Decl., ¶ 15. Because each of the ISO Subpoenas seek approximately eight years’

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 of the subpoenas in identical with only the name
of the Defendant(s), the date of the deposition and the start date from which documents are sought changing, with
the exception of the subpoena in case number 15-27940, which, by its terms, was limited to incidents which
occurred in Florida and which sought documents from December 2009 to present. References herein to the “ISO
Subpoenas” shall be to the identical subpoenas issued to ISO in the 24 other cases listed above.

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worth of claims information (from January 2012-January 2013 to the present), the total number

of claims submitted nationwide in that period to ISO by all of its clients is hundreds of millions

of claims. See e.g. Motion for Protective Order, Exhibit A.

To the extent the ISO Subpoenas are 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 require certain inputs,

such as a claim number or an individual’s name. Id., ¶ 21. ISO has not been provided such

information in the ISO Subpoenas. See e.g. Motion for Protective Order, Exhibit A. ISO’s ability

to search ISO ClaimSearch is not unique. In fact, 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., ¶¶ 14, 22.

Because the ISO Subpoenas do not seek information from ISO ClaimSearch pursuant to

its intended use and function, to access the data sought by the ISO Subpoenas, 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., ¶¶ 21, 23, 25; see also Motion for

Protective Order, Exhibit A. These efforts to write and run extractions programs are not the

normal function of ISO’s data programmers, would not be undertaken but for the ISO

Subpoenas, and would require ISO’s data programmers to delay performing their usual duties in

order to perform these extractions. Id., ¶ 25. After the appropriate programs were developed, the

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

involving Defendants, 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 in the

approximately eight year period at issue for each of the ISO Subpoenas. Id., ¶ 20. While such

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extractions could be run against the more limited universe of claims submitted by each

Defendants, as opposed to any claim merely involving Defendants regardless of submitting

source, the ISO Subpoenas are not limited as such.

Based on the scope of the ISO Subpoenas, ISO would not be able to run the extractions

described above only against claims submitted by the defendant(s) in each case, but would

instead have to run these extractions against all claims submitted to ISO nationwide by any of its

clients during the period at issue, which is hundreds of millions of claims. ISO would be forced

to do so because the ISO Subpoenas are not limited to claims submitted by the defendant(s) in

each case, but instead seek data for all claims in which the defendant(s) in each case are listed as

“the insuring company or adjuster company[.]” Id., ¶¶ 15, 20; Motion for Protective Order,

Exhibit A. As a result, all data extractions for each of the ISO Subpoenas would have to run

against the full universe of nationwide claims for each of the ISO Subpoenas. Additional manual

effort would be required to manually clean the extracted data to provide the specific data fields

sought by the ISO Subpoenas or to provide the data in a format other than the Universal Format

Record layout which is the normal result of any data extraction. Id., ¶¶ 24, 27. Nevertheless,

given the broad scope of each of the ISO Subpoenas, individually and collectively, and the

period of time covered by the ISO Subpoenas, ISO estimates that the extraction process would be

more efficient than performing manual searches for a list of individuals or claims in response to

each of the ISO Subpoenas. Id., ¶ 28.

The ISO Subpoenas seek not only current information from the ISO ClaimSearch

database, but also historical claims submission information, which would add an additional

complication, and the need for additional manual intervention by ISO employees. See e.g.

Motion for Protective Order, Exhibit A (seeking all data that “resides in” ISO ClaimSearch for

6
the specified insurer(s)). The ISO ClaimSearch database is not intended to be used to provide

historical claims submission data, and it is a complicated process to extract historical claims

submission data. Roberts Decl., ¶¶ 10-11. In fact, in addition to all the issues described above,

the request for historical claims submission data in the ISO Subpoenas would also require ISO to

run data extraction, as traditional search functions cannot be used to isolate historical claims

submission data. Id., ¶¶ 18-19. Extraction of historical claims data also presents additional

challenges. Some of the claims at issue, based on the period covered by the ISO Subpoenas, are

known as “legacy claims,” and while ISO can match such claims to a certain individual or to

other claims, ISO has a more limited ability to manipulate legacy claims that would make it more

difficult, if not impossible, to extract and manipulate such data from ISO ClaimSearch in the

manner contemplated by the ISO Subpoenas. Id., ¶ 29.

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

a similar subpoena to the Subpoena on ISO, on September 4, 2020. See ISO’s Objections,

attached hereto as Exhibit B. ISO then notified Plaintiffs that the same objections applied to all

of the ISO Subpoenas, including the Subpoena. On September 21, 2020, ISO, with Plaintiffs’

agreement, filed a Notice of Postponement of Deadline to Comply with Subpoena and of

Deposition, memorializing the postponement of the October 1, 2020 date set for the production

of documents and for deposition as set by the Subpoena. Defendants filed the Motion for

Protective Order on October 19, 2020. Defendants filed a Motion to Dismiss on October 25,

2019, which remains pending.

II. Law and Argument

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To the extent the Court denies the arguments asserted in the Motion for Protective Order

and finds that Plaintiffs can seek discovery from ISO in this case, the Court should still issue a

protective order quashing the Subpoena for the reasons stated herein.

A. Applicable Legal Standards

A person from whom discovery is sought may seek a protective order, upon a showing of

good cause, 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 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)). Similarly, a subpoena may be quashed or modified “if it is unreasonable and

oppressive…” Fla. R. Civ. P. 1.410(c). The party seeking to quash the subpoena must show the

undue costs or burden. Id. A subpoena may also be 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’ Data and
Information, Which Defendants Object to Providing

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). As a result, in evaluating whether to limit discovery, including through a protective

8
order, courts balance the competing interests in permitting and 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.

(upholding order below refusing to force attorney to produce documents in her possession which

were the property of law firm and firm’s clients). When a party has asserted a confidentiality

objection to production from a third person/non-party, 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. 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).

In this case, Plaintiffs seek from ISO the same information which Plaintiffs seek from

Defendants in this pure bill of discovery action. See e.g. Motion for Protective Order, at 5

(Noting that this pure bill of discovery action seeks information from Defendants, and “the data

sought by Plaintiffs via the Subpoena is the property of the Defendants…”). Furthermore, this

must be true because of the very nature of ISO ClaimSearch. ISO ClaimSearch is a repository of

data, all of which is submitted by ISO’s clients and simply maintained by ISO in ClaimSearch.

Roberts Decl., ¶ 5. None of this data is created by ISO. Id. Therefore, any of the information

sought by the ISO Subpoenas, including the Subpoena, would have been submitted to ISO by its

insurance company clients, including Defendants. Furthermore, even if some data or information

which would be responsive to the ISO Subpoenas was not submitted by the specific defendant(s)

in that case, any defendant(s) that were a Participating Organization would have the same ability

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as ISO to search ISO ClaimSearch for data currently in ISO ClaimSearch. Id., ¶ 22. Given that,

and given Defendants’ objections to the production of the data sought by the Subpoena, as stated

in the Motion for Protective Order, the Subpoena should be quashed. See generally Motion for

Protective Order.

Pursuant to Medina, the fact that ISO’s insurance company clients possess the

information sought by the ISO Subpoenas (either directly for information submitted by that

client and, if a Participating Organization, through the ability to search ISO ClaimSearch) and

Defendants have objected to its production, including on the basis of confidentiality, that alone

should result in quashing the Subpoena. There is a dispute between Plaintiffs and Defendants

about whether the information sought by the Subpoena is discoverable. The information 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.

Even if Plaintiffs were to overcome the arguments in the Motion for Protective Order, the

Subpoena should still be quashed as duplicative of Defendants’ own information and because the

less intrusive means of production would be for Defendants, not ISO, to produce Defendants’

data which is at issue. Particularly because it is Defendants, not ISO, which have a relationship

with the individuals whose private information (including address, date of birth, and social

security number) is within the data, and would be best positioned to protect those interests.

Motion for Protective Order, Exhibit A.

However, unlike in Josifov, there is no need for ISO to produce data to its insurance

company clients and then for those insurance company clients to pass the information along to

Plaintiffs in response to the ISO Subpoenas, because as explained herein, ISO’s insurance

company clients possess, or have access to, the information sought from ISO through the ISO

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Subpoenas. Even if Plaintiffs were found to be entitled to the information sought through the ISO

Subpoenas, it makes no sense for that information to come from ISO instead of from the source

of the information—ISO’s insurance company clients.

C. The Subpoena Should be Quashed Because the Court’s Subpoena Power Does Not
Extend to ISO’s Data or Employees Located 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 by a records custodian located outside of

Florida. A Florida subpoena has no effect if served outside Florida, 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. However, this does mean that a Florida subpoena served in Florida can bring

people and records located outside of Florida within the Court’s subpoena power. Instead, those

persons and records can only be subpoenaed if properly served with a subpoena in the state in

which the persons or records are located which was issued by that state. It is the location of the

targets of the subpoena duces tecum, the records custodian and the records, that controls whether

a Florida subpoena or an out-of-state subpoena is required. This rule is true even for out-of-state

corporations that have Florida registered agents for service of process.

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. The

Supreme Court of Florida, in Ulloa v. CMI, Inc., 133 So.3d 914, 918-19 (2013) 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

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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.

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 § 92.251 Fla. Stat. (2019)3, which governs the issuance of subpoenas in the 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 did not even attempt to follow this process. Plaintiffs did exactly what Ulloa

and Quest prohibit, in serving a Florida subpoena on ISO’s Florida registered agent when the

Subpoena is actually directed to out-of-state records and an out-of-state records custodian.

3
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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Motion for Protective Order, Exhibit A; Roberts Decl., ¶ 3. 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. Id. As clearly described in Quest and in Greenlight,

Plaintiffs are required to serve a subpoena on ISO’s records custodian where the records

custodian is located, with the subpoena issued in that state, and any dispute over that subpoena to

be heard in that state. Plaintiffs’ failure to comply with this process is even more glaring because

ISO had previously informed Plaintiffs, through sworn affidavit testimony, of the lack of any

ISO records custodian or data located in Florida. Id. Nevertheless, Plaintiffs ignored this and

served the Subpoena on ISO’s registered agent in Tallahassee (Leon County). See Motion for

Protective Order, Exhibit A. As a result, the Subpoena must be quashed because a Florida

subpoena served in Florida cannot compel the production of out-of-state records or the presence

of an out-of-state records custodian deponent in Florida.

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

deposition, in Coral Gables (Miami-Dade County). Id. 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’s only link to Florida is its registered agent in

Leon County, on whom the Subpoena was served. Roberts Decl., ¶ 3; Motion for Protective

Order, 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. Motion for Protective Order, Exhibit A. Thus, ISO is improperly being

asked to appear for a deposition in Miami-Dade County.

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The Subpoena must be quashed because it ignores the specific procedures established for

the issuance of subpoenas to out-of-state records custodians for out-of-state records and

improperly seeks to extend the subpoena jurisdiction of this Court over out-of-state corporations.

D. The Subpoena, Individually and as Part of the ISO Subpoenas, Places an Undue
Burden on ISO and ISO Should Be Compensated for its Costs Incurred in
Responding to the Subpoena

To the extent that the Court does not grant the Motion for Protective Order and quash the

Subpoena based on the arguments in the Motion for Protective Order or the arguments above, the

Court should still quash or modify the Subpoena as unduly burdensome to ISO. At a minimum,

the Court should narrow the scope of the Subpoena and provide that ISO be compensated for its

costs in responding 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 may be had only on

specified terms and conditions, […] that the discovery may be had only by a method of

discovery other than that selected by the party seeking discovery[,] […] 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).

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

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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

subpoena would have taken at least 2 weeks of full-time work for 3 employees. Biomet, Inc. v.

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

ISO has met its burden to demonstrate that the Subpoena is unduly burdensome, both

individually and collectively as part of the ISO Subpoenas. The Subpoena is unduly burdensome

because of its disruption of ISO’s business operations, the need for manual review of a high

volume of documents, and the substantial cost of compliance. There are three significant issues

which make the Subpoena, and all of the ISO Subpoenas, unduly burdensome. First, because of

the broad scope of the Subpoena, and the lack of information provided to ISO, ISO cannot use

traditional search functions and would be required to perform data extraction to isolate the data

sought, at significant effort and cost. Second, because of the broad scope of the Subpoena, ISO

15
would have to run its data extraction against all nationwide claims submitted by any of its clients

during the specified period, which is hundreds of millions of claims. Third, the Subpoena seeks

historical claims data, not just the data currently in ISO ClaimSearch after years of overwriting,

adding additional complications.

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

known individual names or claim numbers, and even then, if run using individual names, manual

intervention would be needed to isolate any desired data components and then manually cleaned

to be limited to specified data fields. Id., ¶¶ 21, 23, 27. 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…” Motion for

Protective Order, 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. Id., ¶¶ 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).

However, because of the anticipated large volume of claims which are the subject of the ISO

Subpoenas, based on the hundreds of millions of claims submitted to ISO nationwide during the

specified period, this extraction process would actually be more efficient than running searches

in ISO ClaimSearch for each specified claim number or individual for each of the ISO

Subpoenas. Roberts Decl., ¶ 28.

16
Of course, for the reasons described in the Motion for Protective Order, and incorporated

herein, a nationwide dataset is overly broad and unduly burdensome given the claims asserted in

this case. Furthermore, the data at issue includes personal health information and other

confidential information and, with respect to dissemination of non-Florida data, including but not

limited to Social Security Numbers for non-Florida residents, ISO is subject to federal laws and

regulations and the laws and regulations of other states, and, as a result, cannot produce non-

Florida data in this case, or Social Security Numbers for any individual, even with a protective

order. Id., ¶ 17. As a result, any production ordered must be limited to Florida claims.

However, the additional extractions to drill down on a narrower set of data more tailored

to the claims in this case, such as Florida claims, 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 eight year period at issue in the ISO

Subpoenas. Id., ¶¶ 16, 20, 25. The extractions must be run against this entire nationwide universe

of claims because the ISO Subpoenas are not limited to claims submitted by the defendant(s) in

each case, but instead seek data for all claims in which the defendant(s) are listed as “the insuring

company or adjuster company[.]” See e.g. Motion for Protective Order, Exhibit A. As a result,

the ISO Subpoenas are requests for data which matches claims submitted by the defendant(s) in

each case (i.e. same incident) but was not submitted by the defendant(s) in each case, and so

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

defendant(s) in each case. Id., ¶ 20.

17
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 ClaimSearch database itself.

Motion for Protective Order, 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. Roberts Decl., ¶¶ 10-11.

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., ¶¶ 8-10. 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., ¶¶ 17-19. In this case, the Subpoena is

seeking historical claims submission data, before any overwriting, for almost eight years’ worth

of data. See Motion for Protective Order, Exhibit A (seeking data from December 2012 to the

present). Some of the claims at issue, based on the period covered by the ISO Subpoenas are

known as “legacy claims,” and while ISO can match such claims to a certain individual or to

other claims, ISO has a more limited ability to manipulate legacy claims that would make it more

difficult, if not impossible, to extract and manipulate such data from ISO ClaimSearch in the

manner contemplated by the ISO Subpoenas. Id., ¶ 29.

Ultimately, to perform these extractions, and to compile a dataset that Plaintiffs seek of

historical claims information, including claims related to but not submitted by each defendant(s)

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

of compliance would be very high, up to $20,000 per subpoena 4. Id., ¶ 33. If Plaintiffs seek

production of the data in another format, ISO will incur additional costs if the extracted data

4
Since ISO has not actually performed the necessary programming, this estimate is only its best guess and actual
costs could be much higher.

18
needs to be manually manipulated, if such production is even possible. Id. These costs represent

the cost to ISO, without profit, and are actually much lower than what ISO has charged clients

for similar extraction projects. Id., ¶¶ 31-32. 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 arguments of the Motion for

Protective Order and the arguments herein and orders ISO to produce documents in response to

the Subpoena, there are two ways the Court should act to fashion an appropriate remedy. First,

the Court should ease ISO’s burden by narrowing the scope of the Subpoena. Fla. R. Civ. P.

1.280(c); Fla. R. Civ. P. 1.280(d)(1). Second, the Court should 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).

The Court should order that ISO only be required to produce Florida claims, without

Social Security Numbers, only for claims data submitted to ISO by Defendants, and limiting the

type of data to be produced to the data that currently exists in the ClaimSearch database (after

overwriting) and in the format in which the data currently exists. The Court should also provide

that ISO’s costs of compliance, estimated to be at least $20,000 but possibly much higher, will

be covered by Plaintiffs.

III. Conclusion

For the reasons stated herein, and in the Motion for Protective Order, the Motion for

19
Protective Order should be grante

Case Info

Case No.

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Document Filed Date

October 20, 2020

Case Filing Date

December 21, 2018

County

Parties

Ace American Insurance Company Defendant
Ace Fire Underwriters Insurance Company Defendant
Ace Insurance Company of the Midwest Defendant
Ace Property and Casualty Insurance Company Defendant
Gerstin, Ari H. Attorney for the Defendant
Greenberg, Valerie Attorney for the Defendant
John H Ruiz Attorney for the Plaintiff
MAO-MSO Recovery II, LLC. Plaintiff
MSPA Claims 1, LLC Plaintiff
MSP Recovery Claims, Series, LLC Plaintiff
Party Name Party Description
Series, PMPI Plaintiff
Marcy Aldrich Attorneys for Plaintiffs
Frank Quesada Attorney
Reynaldo Martinez Attorney
Alexis Fernandez Attorney
Angel Cortinas Attorney
Jonathan Kaskel Attorney
Eduardo Bertran Attorneys for Defendants
Francesco Zincone Attorneys for Defendants
Andre Vazquez Attorney
Jesse Vazquez Attorney
Robert Folland Attorney
Gonzalo Dorta Attorney

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

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