IN THE OFFICE OF ADMINISTRATIVE HEARINGS. Appellants, Respondent,

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1 1 1 David G. Derickson, State Bar No. 000 John P. Kaites, State Bar No. 01 Michael S. Love, State Bar No. 0 RIDENOUR, HIENTON & LEWIS, P.L.L.C. Chase Tower 1 North Central Avenue, Suite 00 Phoenix, Arizona 00- (0) -00; Fax (0) -0 Firm designatedcontact@rhlfirm.com Attorney dderickson@rhlfirm.com mlove@rhlfirm.com Attorneys for Interested Party/Protestant/Appellants MAGELLAN HEALTH SERVICES OF ARIZONA, INC. AND MAGELLAN COMPLETE CARE OF ARIZONA, INC., v. IN THE OFFICE OF ADMINISTRATIVE HEARINGS Appellants, ARIZONA DEPARTMENT OF HEALTH SERVICES, and Respondent, MERCY MARICOPA INTEGRATED CARE, and ARIZONA HEALTH CARE COST CONTAINMENT SYSTEM, Intervenors. Docket No. 1F-00-ADM No. Solicitation: ADHS MAGELLAN S MOTION TO QUASH AND OBJECTION TO MMIC s SECOND SUBPOENA DUCES TECUM (Assigned to Hon. Diane Mihalsky) Magellan Health Services of Arizona, Inc. ( MHSAZ ) and Magellan Complete Care of Arizona, Inc. ( MCCA ) (collectively, Magellan ), by and through undersigned counsel and pursuant to A.A.C. R--(D), object to the subpoena duces tecum issued by the Administrative Law Judge on August, 1 at the request of Intervenor Mercy Maricopa Integrated Care ( MMIC ) and served on Magellan (the Subpoena ) and v.;ssw;-0001

2 1 1 move for an order quashing the Subpoena. A copy of the Subpoena is available as Document No. of the Electronic Case File. Pursuant to A.R.S. 1-.0(F)(), A.A.C. R--(D) and (E), and the terms of Case Management Order No. ( CMO ) Magellan objects to the Subpoena on the grounds that each request is unduly burdensome, oppressive, irrelevant and seeks the production documents that are more readily obtained through an alternative source and/or have already been produced. CMO prohibited requests for documents that have already been produced. As required by Case Management Order No., Magellan has already filed its preliminary set of Exhibits for the hearing in this matter. The Subpoena requests documents that support the claims and allegations made by Magellan in its bid protest (e.g., Items to Produce Nos.,, ). Magellan has already produced the documents it intends to use as Exhibits in support of its claims, thus, the Subpoena should be quashed as in violation of CMO s requirement. In CMO, the Administrative Law Judge specifically required that documents requested must be relevant to the issues raised in this proceeding. A number of the Items to Produce (e.g., Nos., and ) seek information regarding purported actions of Magellan regarding possible partnering with MIHS. Whether Magellan may have had any discussions regarding such a partnership is irreverent, as Magellan in fact did not enter into any such relationship. Magellan s recognition that an RBHA s relationship with MIHS, a provider of behavioral health services, would be illegal cannot be defense to the prohibition of such relationship by the selected bidder. Therefore, documents regarding Magellan s actions are irrelevant and beyond the scope of the issues raised in Magellan s protest and should be quashed. Finally, MMIC asserts in its Statement of Relevance filed with its request for the Subpoena (Document No. 1 of the Electronic Case File) that several of the Items to Produce (e.g. Nos. 1,,,, and ) are relevant to the timeliness of Magellan s - -

3 1 1 protest. Pursuant to A.A.C. R--A01(C) protests based on improprieties in the Solicitation that are apparent before the offer due date are to be filed before the offer due date; pursuant to A.A.C. R--A01(D), all other protests are due within days after the procurement file is made available. None of the matters raised in Magellan s bid protest were based on improprieties in the Solicitation itself, and thus, Magellan s protest was not due until days after the procurement file was made available. However, even if Respondent and/or Intervenors asserted as a defense that a matter raised in the protest was a impropriety in the Solicitation itself, the date Magellan may have been aware of any fact would still be irrelevant to the determination of whether an impropriety was in the Solicitation or was in the AHDS s actions from and after the date offers were due. Thus, documents that might establish when Magellan may have known of a particular fact are irrelevant to any determination of timeliness of Magellan s protest. More specifically, Magellan objects to each request on the following grounds. SPECIFIC OBJECTIONS 1. Items to Produce Nos. 1- seek the production of documents and other materials which include materials subject to attorney-client and/or work product privileges. The Instructions For Responding to the Subpoena provide for Magellan to withhold documents on the basis of privilege and call for production of a list of documents withheld. However, the preparation of such privilege log is unduly burdensome, due, in part, to the breadth of the materials requested in the Subpoena and the abbreviated time frames under which this matter is proceeding. Magellan objects to any production of privileged materials and to the production of a log or list of materials withheld pursuant to these privileges. Further, the process which Magellan must undertake to assess which potentially responsive documents may be protected by a privilege will be burdensome. Counsel for Magellan must review each document actually determined to be relevant/responsive, to assess whether or not the document is - -

4 1 1 protected by one or more statutory or common law.. Items to Produce Nos. 1- contained in Attachment A to the Subpoena fail to identify with reasonable particularity the documents requested, and Magellan is unable to comply therewith. A subpoena duces tecum must describe the documents or other materials it seeks with reasonable particularity. Helge v. Druke, 1 Ariz.,, P.d, (App. ). A subpoena duces tecum is not the proper vehicle by which a party may discover what documents may exist. Id. at -0; P.d -0. The Subpoena, as to the requests identified in these paragraphs, fails to describe the documents it seeks with sufficient particularity. For example, Item Nos. 1,,,, and request all documents mentioning or referring to or regarding certain claims or events. Item No. requests all documents that support or tend to support a matter. Item Nos.,, and seek documents showing certain matters. The terms mentioning or referring to, regarding, support or tend to support and showing are so overly broad that they do not identify anything with reasonable particularity and could include documents that offer no probative value.. Item to Produce No. 1 is vague and overly broad, and requests items that may be obtained by an alternative method. This Item requests the production of all documents mentioning or referring to MIHS having any involvement with any other entity responding to the RFP. The terms mentioning or referring and any involvement are so broad as to include materials that would only be tangentially related to those claims or events, but would not be relevant to the claims made in Magellan s appeal or defenses to such claims. Furthermore, the Item is not limited in time so as to request documents created within a relevant time frame. Finally, MMIC may obtain the requested materials by an alternative method, namely a request to its Sponsor/Member MIHS regarding its involvement with other entities in responding to the RFP. - -

5 1 1. Item to Produce No. is vague and overly broad, and seeks materials that are not relevant to Magellan s claims or defenses thereto. This Item requests all documents mentioning or referring to Magellan or related entities having any involvement with any other entity responding to the RFP. The terms mentioning or referring and any involvement are so broad as to include materials that would only be tangentially related to those claims or events, but would not be relevant to the claims made in Magellan s appeal or defenses to such claims. Furthermore, whether Magellan considered having any involvement with any other another entity when it prepared its bid proposal is not relevant to the issues raised in this protest and appeal. Magellan s claims criticize the application of this state s procurement statutes and regulations to the award of the RBHA contract to MMIC. Magellan s actions outside the scope of those claims are irrelevant to both Magellan s claim and any defenses to such claim.. Item to Produce No. is vague and overly broad, and seeks materials that are not relevant to Magellan s claims or defenses thereto. This Item requests all documents mentioning or referring to whether MIHS involvement with Mercy Care or MMIC in responding to the RFP might implicate or violate A.R.S. -. The terms mentioning or referring, involvement and might implicate or violate are so broad as to include materials that would only be tangentially related to those claims or events, but would not be relevant to the claims made in Magellan s appeal or defenses to such claims. Furthermore, the Item is overbroad in so far as it is not limited in scope to time.. Item to Produce No. is vague, overly broad and burdensome, and seeks materials that are not relevant to Magellan s claims or defenses thereto. This Item requests all documents that support or tend to support Magellan s claim that MIHS involvement with MMIC might create an inherent conflict of interest. The terms support or tend to support, involvement and might create are so broad as to include - -

6 1 1 materials that would only be tangentially related to those claims or events, but would not be relevant to the claims made in Magellan s appeal or defenses to such claims. Furthermore, requiring Magellan and its counsel to make a determination of what support[s] or tend[s] to support Magellan s claim is an improper intrusion in to the mind of Magellan s counsel, and is subject to the attorney work-product privilege. Finally, the desired evidence may be obtained by an alternative method. By establishing a deadline for the submission of an exhibit list, the Administrative Law Judge has already implemented an alternative method by which MMIC will obtain the materials which Magellan intends to offer in support of its appeal.. Magellan objects to Item to Produce No. on the grounds it requests documents that are more appropriately obtained through an alternative method. This Item requests all documents evidencing when Magellan first became aware of RFP Amendments and. ADHS would be in possession of the information regarding when Amendments and were adopted and posted to the procurement website, and when Magellan may have accessed the posted information. Moreover, to the extent this Request seeks the production of duplicative information it is unduly burdensome.. Item to Produce No. is unduly burdensome and requests materials that are more appropriately obtained through another method. This Item requests all documents including calendars, notes, s, text messages and voice mails evidencing that Richard Clarke and any other Magellan employee or agent attended the November, 1 RFP bidder s conference. It is unduly burdensome to ask Magellan to produce multiple documents (e.g. calendars, notes, s, text messages and voice mails) to establish the same thing (that Magellan agents attended the bidder s conference). Furthermore, the information regarding who attended the bidder s conference is more appropriately requested of ADHS, which maintained a sign-in log of attendees at the - -

7 1 1 conference (which log has been made available to MMIC at as part of ADHS s procurement file).. Item to Produce No. is vague, overly broad, unduly burdensome, not relevant, and requests information that may be obtained by an alternative method. This Item requests all documents including notes, s, text messages and voice mails regarding the substance of what was said by two named ADHS employees at the November, 1 RFP bidder s conference. The phrase regarding the substance of what was said is vague and subject to multiple interpretations. The request is overly broad, burdensome and irrelevant, in that it seeks information about all of the named ADHS s employees statements, many of which likely have nothing to do with the issues raised by Magellan s appeal. Furthermore, it is burdensome to request Magellan to produce multiple documents which indicate the same thing. Additionally, notes, s, text messages or voice mails of others (not the named ADHS employees) would constitute only those persons interpretation of what the ADHS employees said, and would therefore be irrelevant to the issues presented in Magellan s protest and appeal. Finally, evidence regarding what certain ADHS employees said at the bidder s conference can be obtained from ADHS.. Item to Produce No. is vague and seeks the production of documents that neither relevant to any claim or defense asserted in this action nor reasonably calculated to the lead to discovery of admissible evidence. This item requests documents showing that MMIC failed to make a timely filing with CMS. This request is, therefore, more appropriately addressed to CMS.. Item to Produce No. is vague and overly broad and seeks the production of documents that neither relevant to any claim or defense asserted in this action nor reasonably calculated to the lead to discovery of admissible evidence. This Item requests all documents regarding the substance of a meeting of October, between - -

8 1 1 representatives of MIHS and Magellan. The terms regarding the substance is vague and so broad as to include materials that would only be tangentially related to those claims or events, but would not be relevant to the claims made in Magellan s appeal or defenses to such claims. Further, the communications between MIHS and Magellan at a meeting over year in advance of the due date for bids is irrelevant to the claims and defenses asserted in the appeal. 1. Item to Produce No. contained in Attachment A to the Subpoena is vague and seeks the production of documents that are neither relevant to any claim or defense asserted in this action nor reasonably calculated to the lead to discovery of admissible evidence. This Item requests all documents regarding the substance of any notification on November, 1 to Magellan that MIHS was going to become one of MMIC s sponsors. The terms regarding the substance is vague and so broad as to include materials that would only be tangentially related to those claims or events, but would not be relevant to the claims made in Magellan s appeal or defenses to such claims. Further, the details of any, or even the existence of, any notification by MIHS to Magellan that it was going to be one of MMIC s sponsors is irrelevant to the claims and defenses asserted in the appeal. RELIEF REQUESTED Rule A.A.C. R--(E) specifically provides for the quashing of a subpoena if it is unreasonable or oppressive or the desired evidence may be obtained by an alternative method. In CMO, the Administrative Law Judge previously ruled that she would not rewrite or narrow the scope of any production request. Thus, quashing the Subpoena is appropriate. As demonstrated above, the Subpoena is unreasonable and oppressive in that it is vague, overbroad, unduly burdensome and seeks information not relevant to the claims raised by Magellan in this matter or defenses thereto. Furthermore, the Subpoena seeks - -

9 1 1 documents which MMIC could more easily obtain by alternative means and methods or which has already been made available to MMIC. Therefore, pursuant to A.A.C. R-- (E), Magellan requests that the Administrative Law Judge quash the Subpoena. RESPECTFULLY SUBMITTED this th day of August, 1. RIDENOUR, HIENTON & LEWIS, P.L.L.C. By /s/ Michael S. Love David G. Derickson John P. Kaites Michael S. Love 1 North Central Avenue, Suite 00 Phoenix, Arizona 00- Attorneys for Appellants Copy ed this th day of August, 1 to all parties and interested persons, By: /s/ Michael S. Love - -