UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 20-cv-61007-SINGHAL/VALLE

PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF 

DOCUMENTS FROM DEFENDANTS

SOUTH BROWARD HOSPITAL DISTRICT,

D/B/A MEMORIAL HEALTHCARE SYSTEM,

on its own behalf and on behalf of other similarly 

situated healthcare facilities,

Plaintiff,

v.

ELAP SERVICES, LLC, a Pennsylvania limited 

liability company, and GROUP & PENSION 

ADMINISTRATORS, INC., a Texas corporation,

Defendants.

__________________________________/

Case 0:20-cv-61007-AHS Document 52 Entered on FLSD Docket 04/23/2021 Page 1 of 12
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INTRODUCTION

This class action concerns an unfair and deceptive scheme designed to steal tens of millions 

of dollars off the backs of hospitals and healthcare facility providers. Defendants ELAP Services, 

LLC (“ELAP”) and Group & Pension Administrators, Inc. (“GPA”) (collectively, “Defendants”) 

work together to systematically underpay healthcare providers in Florida and around the country 

through ELAP’s arbitrary, uniform, and unilateral use of a healthcare claim reimbursement model 

known as “Reference Based Pricing” — which pays providers a fraction of the reasonable value 

of their services. 

Plaintiff South Broward Hospital District, d/b/a Memorial Healthcare System 

(“Memorial”), is one such Florida healthcare provider. Memorial’s Amended Class Action 

Complaint alleges that ELAP employs a comprehensive scheme to deceive and frustrate facilities 

like Memorial from the moment an ELAP plan member enters the facility until the facility attempts 

to collect payment for providing medical services. For example:

• ELAP fails to disclose its identity and its use of Reference Based Pricing on 

its insurance cards. Am. Compl ¶¶ 81–107 (D.E. 24). 

• ELAP deceives and misleads providers through the claim adjudication 

process. Id. ¶¶ 117–22.

• ELAP reveals itself as the decision maker during the appeal process, but 

refuses to meaningfully discuss resolution of the claims. Id. ¶¶ 123–28.

• ELAP defends patients to obstruct and deter providers’ collection efforts.

Id. ¶¶ 129–33.

On December 3, 2020, this Court denied Defendants’ Motion to Dismiss and to Strike 

Memorial’s Class Allegations. S. Broward Hosp. Dist. v. ELAP Servs., LLC, 2020 WL 7074645 

(S.D. Fla. Dec. 3, 2020) (D.E. 37). The Court held that Memorial’s “extensive and detailed

argument” as to how Defendants’ scheme is unfair and deceptive was “compelling” and raised

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“‘question[s] of fact for the jury to determine.’” Id. at *6 (D.E. 37 at 14). The Court further 

concluded that Defendants’ attempt to dismiss Memorial’s class allegations was “premature” 

because “‘the shape and form of a class action evolves only through the process of discovery[.]’” 

Id. at *11 (D.E. 37 at 23).

The Parties have now begun discovery, with an initial discovery cutoff date set for 

December 17, 2021. (D.E. 41 at 1.) Yet notwithstanding this Court’s guidance that the “shape and 

form” of this case will evolve through the discovery process, in their responses to Memorial’s First 

Requests for Production (“RFP”) Defendants assert that they will only produce documents related 

to Memorial healthcare Claims and will limit, or altogether exclude, the production of documents 

related to healthcare Claims from non-Memorial facility providers.1In other words, Defendants 

refuse to acknowledge that Memorial is entitled to class discovery. 

This threshold objection by Defendants must be resolved before the Parties can 

meaningfully engage in discovery in this matter, because accepting Defendants’ position would 

make it impossible for Memorial to certify a class. Memorial’s allegations are not limited to 

Defendants’ deceit of Memorial. Rather, healthcare providers nationwide in the putative class have 

been harmed by Defendants’ deceptive trade practices. Defendants’ artificial limitation of 

discovery to Memorial Claims only is little more than a back-handed attempt to unilaterally 

bifurcate class discovery from merits discovery, circumventing the well-established guidance from 

“‘[c]ourts in this and other circuits [that] have recognized that where discovery relating to class 

issues overlaps substantially [with] merits discovery, bifurcation will result in duplication of 

efforts and needless line-drawing disputes.’” MAO-MSO Recovery II, LLC v. USAA Cas. Ins. Co., 

1 Memorial defines the term “Claim” or “Claims” as “any facility claim that [ELAP or GPA] 

repriced, processed or reprocessed, and/or administered using Reference Based Pricing.” Ex. A

at 4.

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2017 WL 6411099, at *6 (S.D. Fla. Dec. 14, 2017); see Cabrera v. Gov’t Emps. Ins. Co., 2014 

WL 2999206, at *8 (S.D. Fla. July 3, 2014) (“[B]ecause the line between ‘class issues’ and ‘merits 

issues’ is practically difficult, if not impossible, to determine[,]” bifurcation of class discovery 

from merits discovery does not “conserve resources of the parties or the Court.”); see also 

Babineau v. Fed. Exp. Corp., 576 F.3d 1183, 1190 (11th Cir. 2009) (prohibition on merits 

determinations at Rule 23 stage “‘should not be talismanically invoked to artificially limit a trial 

court’s examination of the factors necessary to a reasoned determination’” under Rule 23 (brackets 

omitted)).

To determine the “shape and form” the class will take, Memorial is “‘entitled to the 

opportunity to explore and obtain information relevant to the Rule 23 requirements . . . in order to 

meet [its] burden on these issues.’” Shapiro v. Dynamic Recovery Sols., LLC, 2018 WL 8130559, 

at *3 (S.D. Fla. July 26, 2018) (overruling objections to order of Valle, J.). Defendants’ objections 

must be overruled, and Memorial’s Motion to Compel should be granted.

PROCEDURAL HISTORY

Memorial served its First RFPs on Defendants on January 11, 2021.2In order to understand 

the nationwide scope and functioning of Memorial’s nationwide scheme, and to identify the actors 

participating in the scheme, Memorial’s First RFPs sought data regarding the Claims at issue in 

this case, agreements and communications between Defendants and third parties, and documents 

and communications related to Defendants’ use of Reference Based Pricing. And in order to 

2 Although Memorial served separate RFPs on ELAP and GPA, the RFPs and Defendants’ 

Responses are substantially identical. Unless otherwise noted, when Memorial references a 

particular Request or Response by number, Memorial is referring to both the RFPs served on ELAP 

and the RFPs served on GPA, or to both Responses served by Defendants. Memorial’s RFPs to 

ELAP and GPA are attached as Exhibit A and Exhibit B, respectively. And ELAP’s and GPA’s 

Responses are attached as Exhibit C and Exhibit D, respectively.

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understand a key element of Defendants’ deception — namely, Defendants’ deceptively designed 

self-funded plan insurance cards — Memorial requested that Defendants produce representative 

copies of the cards and evidence as to how the cards have changed over time.

On March 19, 2021, Defendants served their Responses to Memorial’s RFPs. On April 2, 

2021, in an effort to resolve Defendants’ objections, Memorial sent a deficiency letter to 

Defendants outlining Memorial’s issues and concerns with Defendants’ Responses to Memorial’s 

RFPs. See “Memorial’s First Letter,” attached as Exhibit E. On April 7, 2021, the Parties 

conducted a telephonic meet-and-confer as a follow-up to Memorial’s First Letter. The results of 

that meet-and-confer are memorialized in written correspondence sent by Memorial to Defendants 

on April 14, 2021. See “Memorial’s Second Letter,” attached as Exhibit F. Defendants responded 

to Memorial’s Second Letter on April 21, 2021. See “Defendants’ April 21 Letter,” attached at 

Exhibit G. As reflected in Memorial’s Second Letter and Defendants’ April 21 Letter, Memorial 

and Defendants are at an impasse regarding certain threshold objections, requiring this Motion to 

Compel. 

ARGUMENT

The Federal Rules of Civil Procedure “‘strongly favor full discovery whenever possible.’” 

Powers v. Target Corp., 2020 WL 409534, at *1 (S.D. Fla. Jan. 24, 2020) (Valle, J.). “[W]hen a 

party objects to discovery, the onus is on the objecting party to demonstrate with specificity how 

the objected-to request is unreasonable or otherwise unduly burdensome.” Bouzaglou v. Synchrony 

Fin., 2019 WL 3852295, at *2 (S.D. Fla. Aug. 15, 2019) (Valle, J.). 

I. Defendants’ Attempt to Limit Discovery to Non-Memorial Healthcare Claim

Documents Is Improper and Unwarranted

Defendants assert in their Responses to Memorial’s RFPs that they will only produce 

documents related to Memorial Claims and exclude the production of documents related to nonCase 0:20-cv-61007-AHS Document 52 Entered on FLSD Docket 04/23/2021 Page 5 of 12
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Memorial Claims. See, e.g., RFP Nos. 5, 7, 8, 9, 10, 11, 12, 18, 19, 20, 21, 24, 28, 30, 31, 34; 

ELAP RFP Nos. 35, 36, 37, 38; GPA RFP Nos. 36, 37, 38, 39. Defendants make these objections 

across the board to thwart production of documents critical for Memorial to understand the scope 

of Defendants’ scheme and the manner in which the scheme functions.

3

Defendants’ artificial limitation on discovery is improper and unwarranted. Memorial’s 

allegations are not limited to Defendants’ deceit of Memorial. Rather, Memorial alleges a 

deceptive scheme of nationwide reach that is ideally suited for class treatment. The Amended 

Complaint asserts that ELAP systematically underpays healthcare providers in Florida and around 

the country through its arbitrary, uniform, and unilateral use of Reference Based Pricing. See Am. 

Compl. ¶¶ 5, 156–57 (D.E. 24). When class members in FDUTPA cases like this one are victims 

of the same deceptive conduct, as alleged here, classes are regularly certified because, among other 

things, FDUTPA deals with objective deception — not subjective reliance — so individualized 

factual issues do not defeat class certification. See Carriuolo v. Gen. Motors Co., 823 F.3d 977, 

985 (11th Cir. 2016) (“Because a plaintiff asserting a FDUTPA claim ‘need not show actual 

reliance on the representation or omission at issue,’ the mental state of each class member is 

irrelevant.” (citation omitted)). Because Memorial seeks to demonstrate Defendants’ deception on 

a national class-wide basis, the scope of Defendants’ deceptive conduct goes to the heart of this 

case. See ELAP Servs., 2020 WL 7074645, at *5 (D.E. 37 at 12) (A FDUTPA plaintiff “‘must 

show that the alleged practice was likely to deceive a consumer acting reasonably in the same 

3 Given Defendants’ blanket objection, Memorial does not set out each relevant RFP 

verbatim in this Motion to Compel. See S.D. Fla. L.R. 26.1(g)(2) (motions to compel must state 

“verbatim the specific item to be compelled” except when the motion is “grounded . . . upon 

assertion of general or blanket objections to discovery”).

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circumstances, rather than actual reliance on the representation or omission at issue.’” (quoting 

Carriuolo, 823 F.3d at 983–84)). 

At bottom, Defendants are endeavoring to bifurcate class discovery from merits discovery

without a formal motion or court order. But as the Court recognized when it denied Defendants’ 

attempt to “premature[ly]” dismiss Memorial’s class allegations, “‘the shape and form of a class 

action evolves only through the process of discovery.’” Id. at *11 (D.E. 37 at 23). Further, 

permitting Defendants to limit discovery as they propose would create perverse incentives. “[I]f 

district courts as neutral arbiters of the law find the distinction between merits and class issues to 

be murky at best, and impossible to discern at worst,” it is difficult to “imagine how parties with 

an incentive to hold back damaging evidence[] can properly draw the line between these categories 

of evidence during ‘phased’ discovery.” Lakeland Reg’l Med. Ctr., Inc. v. Astellas US, LLC, 2011 

WL 486123, at *2 (M.D. Fla. Feb. 7, 2011).

Defendants cannot ignore the Court and unilaterally impose their own limitations on class 

discovery. This Court should therefore compel Defendants to produce documents responsive to 

Memorial’s requests without limiting Defendants’ production to Memorial Claims only.

II. A Sampling of Non-Memorial Claim Documents is Insufficient 

In response to several of Memorial’s RFPs, Defendants seek to limit their production to 

Memorial Claim documents or to produce only a “reasonable” sample of non-Memorial Claim

documents responsive to Memorial’s requests. This is insufficient. As an initial matter, Defendants 

take the position that they will not even assist Memorial in developing a sample. At the same time 

that they demand that it is Memorial’s burden to propose a sample, Defendants refuse to provide 

Memorial with the Claims data necessary to even propose a sample of non-Memorial Claim

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documents in the first instance. The Court should not permit Defendants to engage in such 

stonewalling.

A. Claims Data

Memorial requested that Defendants produce certain Claims data relating to the Claims at 

issue in this case. RFP No. 5 asked for “[d]ocuments sufficient to identify all data points on the 

UB-04, the EDI 835, and the EDI 837 for each of the Claims.” Defendants refuse to provide 

Memorial with data sufficient to identify all non-Memorial Claims, which is a necessary threshold

to determining a reasonable sample of non-Memorial Claim documents. Without an understanding 

of the universe of non-Memorial Claims, Memorial cannot begin to determine — much less 

productively negotiate with Defendants regarding — a sample of non-Memorial Claims for which 

Defendants can produce the underlying Claim documents. As reflected in Defendants’ April 21 

Letter (Ex. G at 2–3), Defendants take this position while also demanding that it is Memorial’s 

obligation to propose a sample of non-Memorial Claim documents. Defendants’ objection, then, 

is designed to prevent a sample from being determined at all. Defendants should not be rewarded 

for their obstructionism. The Court should therefore overrule Defendants’ objections.

B. Agreements Between Defendants and Third Parties

Memorial requested that Defendants produce certain agreements relevant to its deceptive

practices. The agreements are needed to determine who the various actors are that play a role in 

Defendants’ nationwide scheme. RFP No. 7 requested “[a]ny and all agreements between [ELAP 

and GPA] and the following: (a) [ELAP and GPA], (b) MultiPlan, (c) PHCS, (d) SpringTide 

Health, (e) Clients, and (f) any law firm retained to defend any of the Clients or Members.”

Defendants object to this request as irrelevant because it includes non-Memorial Claims. Ex. C. at 

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9. Defendants nonetheless state that they are willing to produce a sample of non-Memorial

agreements. Id. at 10. And in RFP No. 8, Memorial requested “[d]ocuments sufficient to identify 

each healthcare provider who has an agreement with [ELAP or GPA].” Defendants state that they 

“will not produce agreements with healthcare providers other than [Memorial].” Ex. C at 11. This 

blanket refusal to produce agreements with non-Memorial providers is unsupportable. Defendants’ 

objections with respect to their agreements with third parties are unavailing and should be 

overruled.

C. Communications Between Defendants and Third Parties

Memorial requested that Defendants produce “[a]ll documents and communications 

between [ELAP and GPA] and anyone, including, but not limited to, the Clients, the Members, 

[ELAP and GPA], SpringTide, MultiPlan, and/or PHCS related to” certain areas — specifically, 

“the Claims” (RFP No. 9); “the MultiPlan or PHCS network” (RFP No. 10); and “the Clients” 

(RFP No. 11). With respect to RFP Nos. 9 and 11, Defendants indicated that they will only produce 

a sample of non-Memorial Claims. Ex. C at 11–12. And at the Parties’ meet-and-confer, 

Defendants indicated that they would not produce more than a sample of documents responsive to 

RFP Nos. 9, 10, and 11. Ex. F at 3–4. For the reasons set forth above, Defendants’ blanket 

objections to the production of information as to non-Memorial Claims are unacceptable, as these

communications are relevant to determining who the various actors are that play a role in 

Defendants’ nationwide scheme. Defendants’ objections should be overruled.

D. Self-Funded Plan Identification Cards

Memorial seeks production of representative copies of self-funded plan identification cards 

and documents sufficient to identify changes to these cards over time. Memorial requested 

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“[r]epresentative copies of the Clients’ self-funded plan identification cards” (1) that refer to 

ELAP, GPA, and “Reference-Based Pricing” (RFP No. 18); and (2) that have a MultiPlan and/or 

PHCS logo (RFP No. 19). Memorial also sought “[d]ocuments sufficient to identify” (a) “all 

versions of the Clients’ self-funded plan identification cards, including, but not limited to, when 

each version was released or updated” (RFP No. 20); and (b) “all websites listed on the Clients’ 

self-funded plan identification cards, including, but not limited to, when each website was added 

to the self-funded plan identification card” (RFP No. 21).

Defendants object to each of these requests on the ground that they are “overly broad and 

seek[] information that is not relevant to any party’s claims or defenses because ‘Clients’ is defined 

to include Clients [with non-Memorial Claims].” Ex. C at 18–19. But as this Court recognized 

when it denied Defendants’ Motion to Dismiss, Defendants’ scheme is driven in large part by their 

use of deceptive self-funded plan identification cards. See ELAP Servs., 2020 WL 7074645, at *3, 

*5–6 (D.E. 37 at 5–6, 12–14); see also Am. Compl. ¶¶ 9, 81–107 (D.E. 24). 

At the Parties’ meet-and-confer, Defendants stated that they would begin production of 

cards for Clients with Memorial Claims. Ex. F at 5. However, Defendants did not withdraw their 

objection with respect to the production of self-funded plan identification cards of Clients with 

non-Memorial Claims. Then, Defendants’ position became less clear in Defendants’ April 21 

Letter, where Defendants stated that there is no practical way to provide the universe of 

identification cards used by ELAP plans requested by Memorial. Ex. G at 4. Defendants’ objection 

should be overruled for the reasons set forth above, and Defendants should be compelled to 

produce responsive documents to Memorial’s requests for self-funded plan identification cards.

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E. Miscellaneous Requests Related to Reference Based Pricing

Finally, Memorial requested various categories of documents relating to Defendants’ use 

of Reference Based Pricing. See RFP Nos. 28, 30, 31, 34; ELAP RFP Nos. 35, 36, 37, 38; GPA 

RFP Nos. 36, 37, 38, 39. Defendants again seek to excise production of responsive documents 

related to non-Memorial Claims, instead offering to negotiate only a sample of non-Memorial 

Claims. The Court should overrule Defendants’ objections for the reasons set forth above.

III. Defendants Should Be Compelled to Produce Protected Health Information

Related to Non-Memorial Claims

In response to a number of Memorial’s requests, Defendants state that, for documents 

related to non-Memorial Claims, Protected Health Information (“PHI”) will either not be produced 

or, if produced, will be de-identified. See, e.g., RFP Nos. 5, 8. However, this Court already rejected 

Defendants’ position when it declined to adopt Defendants’ proposed HIPAA-Qualified Protective 

Order and held that PHI of both Memorial and non-Memorial participants in ELAP- and GPAadministered plans “is relevant and discoverable pursuant to [the Court’s HIPAA-Qualified 

Protective Order], without de-identification of PHI.” (D.E. 51.) Accordingly, whenever 

Defendants produce documents related to non-Memorial Claims, all PHI should be produced 

without de-identification.

CONCLUSION

For the foregoing reasons, the Court should grant this Motion to Compel, overrule 

Defendants’ objections, and direct Defendants to produce the documents described above.

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Request for Hearing

Plaintiff believes a hearing is warranted on this Motion due to the importance of the issues 

presented to healthcare providers nationwide, and because this case presents a complex 

multilayered healthcare scheme. A hearing will assist the Court in resolving the issues raised in 

this Motion. Plaintiff estimates that the Parties will require approximately thirty minutes of

argument. 

S.D. Fla. L.R. 7.1(a)(3) Certification of Good Faith Conference

Pursuant to S.D. Fla. L.R. 7.1(a)(3), counsel for Plaintiff certifies that they conferred with 

counsel for Defendants by telephone on April 7, 2021, in a good faith effort to resolve the issues 

raised in this Motion. The Parties were unable to reach a resolution.

Dated: April 23, 2021

/s/Benjamin J. Widlanski

Gail McQuilkin, Esq.

gam@kttlaw.com

Fla. Bar No. 969338

Benjamin J. Widlanski, Esq.

bwidlanski@kttlaw.com 

Florida Bar No. 1010644

Tal J. Lifshitz, Esq. 

tjl@kttlaw.com

Fla. Bar No. 99519

Eric S. Kay, Esq.

ekay@kttlaw.com

Fla. Bar No. 1011803

Frank A. Florio, Esq.

fflorio@kttlaw.com

Fla. Bar No. 1010461

KOZYAK TROPIN &

THROCKMORTON LLP

2525 Ponce de Leon Blvd., 9th Floor

Coral Gables, FL 33134

(305) 372-1800 

Respectfully submitted,

/s/ Douglas A. Wolfe

Douglas A. Wolfe, Esq.

doug@wolfepincavage.com

Fla. Bar No. 28671

Danya J. Pincavage, Esq.

danya@wolfepincavage.com

Fla. Bar No. 14616

Omar Ali-Shamaa, Esq.

omar@wolfepincavage.com

Fla. Bar No. 121461

WOLFE | PINCAVAGE

2937 SW 27th Ave., Suite 302

Miami, FL 33133

(786) 409-0800

Counsel for Plaintiff

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