United States District Court, D. Massachusetts
ORDER ON PENDING MOTIONS
L. CABELL, U.S.M.J.
present matters arise from two related putative class actions
pending in the Central District of California, MSP
Recovery Claims, Series LLC (“MSP”) v.
Farmers Ins. Exchange (“Farmers”), Nos.
2:17-cv-02522-CAS-PLA (“No-Fault Case”)
and 2:17-cv-02559-CAS-PLA (“Settlement
Case”) (C.D. Cal. filed Mar. 31, 2017). Those
actions contend that Farmers and other primary insurers
failed to pay out on certain claims, which consequently
forced certain Medicare Advantage Organizations (MAO) to
satisfy the claims as secondary insurers. Some MAOs, rather
than sue Farmers directly, assigned their claims to MSP,
which brings the actions as assignee.
that backdrop, Farmers has served a documents subpoena
pursuant to Fed.R.Civ.P. 45 on one of the assignors,
Worcester-based Fallon Community Health Plan, Inc.
(“Fallon”). That subpoena in turn has generated
the three motions pending before this court: (1) Fallon's
motion for a protective order or to quash the subpoena (D.
1); (2) Farmers' opposition in the form of a motion to
compel Fallon to comply (D. 9); and (3) MSP's motion to
intervene (D. 26). The court subsequently held a hearing on
the motions. For the reasons chiefly articulated in court and
as summarized briefly below, Fallon's motion to quash is
granted, Farmers' motion to compel is
denied, and MSP's motion to intervene is
denied as moot.
subpoena seeks four general categories of documents from
1. Documents related to Fallon's recovery agreements with
MSP (Requests 1-13);
2. Documents related to Fallon's Medicare agreements,
both on behalf of all its Medicare beneficiary enrollees and
on behalf of one particular enrollee, H.R., named in the
complaint (Requests 15-19);
3. Documents related an August 27, 2017 accident involving
H.R. (Requests 20-29 and 33); and
4. Documents related to H.R. and her coverage through Fallon
generally (Requests 30-33).
45 subpoena may be used to obtain information from
non-parties consistent with the scope of discovery allowed
under Fed.R.Civ.P. 26(b)(1). In re New England
Compounding Pharm., Inc. Prods. Liab. Litig., MDL No.
13-2419-FDS, 2013 WL 6058483, at *4 (D. Mass. Nov. 13, 2013).
Thus, parties may use a subpoena to “obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case . . . .” Fed.R.Civ.P. 26(b)(1). However, a
court “must” limit discovery if it finds that
“the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less
expensive.” Fed. R. Civ P. 26(b)(2)(C)(i).
asserts that it attempted to obtain the requested information
from MSP but did not receive all relevant documents regarding
H.R. Farmers explained at the hearing that discovery
regarding H.R. is vital because it bears on standing; her
claim is one of the representative claims MSP has asserted to
establish its standing to pursue reimbursement. Farmers
states that this issue is genuinely in play because nothing
in its own files or in any previous production of discovery
indicates that H.R. had primary insurance from Farmers for
the time in question.
initial matter, the federal court in California where the
principal action is pending has already denied Farmers'
motion to dismiss claims based on a lack of standing,
including those assigned from Fallon. See No-Fault
Case, Dkt. No. 147 (Aug. 13, 2018). In any event, Fallon
maintains that it has nothing to give Farmers and cannot be
compelled to give what it does not have.
respect to documents responsive to categories one and three,
Fallon states that it previously produced any items in its
possession to MSP as an obligation of its assignment of
claims, something it unambiguously told Farmers on several
prior occasions, and did not retain any records. Rather, and
as Fallon explained, much of what it maintains is in the form
of statistics and data reflecting actions taken on claims
rather than traditional claims documents. In this regard, it
did seem to the court that at least some of Farmers'
concern appeared to arise from its surprise that Fallon would
not have at least some traditional claims-related documents
in its possession, e.g., the claim submitted by H.R.
or correspondence relating to the claim. That concern is not
facially unreasonable; indeed, this court itself, unversed in
the daily workings of Fallon's operations, wondered aloud
whether Fallon wouldn't be expected to at least ...