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> Document 338 : INS 99-14 : Hearing Decision
STATE OF MAINE
NOW COMES Intervenor, MHA, Inc. (MHA), and requests the following relief in the alternative:
As bases for this request, MHA cites the following background and related factors: The Procedural Order establishes February 18, 2000 as the Deadline for Serving Responses to Discovery Requests. MHA reasonably understood this explicit statement to authorize and permit MHA to file whatever response it had to the Discovery Request within this 14-day timeframe. This was the clear meaning and intent of the language, and no reference was made to any alternative timeframe. At approximately 4:15 p.m. on February 15, 2000, counsel for MHA forwarded draft objections by e-mail to counsel for Applicants and sought an opportunity to consult on their substance. Shortly thereafter, Attorney Doyle received an email message from Attorney Robert Frank suggesting that these objections were not timely as they had not been filed on or before February 11. Attorney Frank’s email set forth his understanding that the MHA had received a hand delivery of the February 4 documentation. MHA counsel then proceeded to review in detail Chapter 350 of the BOI Rules, as well as the Superintendent’s November 4, 1999 Procedural Order as well as Chapter 350 of the BOI Rules. On the basis of this review, MHA urges that the most reasonable interpretation of these materials is that any and all responses to Information Requests, including objections to such requests, are not due until February 18,2000 . The first page of the Superintendent’s Order states that the Superintendent has determined to deviate from certain provisions of Rule, Chapter 350, and that the Procedural Order operates to override those provisions. The section of the Order referencing "discovery procedures" does not specifically establish any timeframe for objecting to discovery requests. Rather, the second paragraph merely states: Should any party oppose any part of an information request served, that party and the requesting party, shall confer in good faith and attempt to resolve the dispute, before filing an Objection with the Superintendent. The Superintendent shall rule promptly on any objection filed with him, with or without a hearing, within the discretion of the Superintendent.
Finally, as stated above, the Schedule of Proceeding stated: February 18, 2000 Deadline for Serving Responses to Discovery Requests Nowhere in the list of eight dates set forth was a separate date for filing objections to these Requests. Rather, the generic term "Responses" was fairly read to subsume all types of responses including both substantive answers to the requests and any objections to these. This view was apparently also shared by counsel for the Applicants as the first page of Applicant’s First Discovery Request to MHA, Inc. stated in pertinent part that Applicants: requests’[sic] that MHA, Inc. produce the requested documents and/or respond to the following requests within 14 days at the law offices of Pierce Atwood, One Monument Square, Portland, Maine 04101.
In aggregate, the Procedural Order and the Request itself reasonably caused MHA to conclude that it ought to confer with counsel for Applicants within the 14-day timeframe set forth in their own discovery request, and thereafter proceed to file MHA’s response, as well as any objections, within that 14-day timeframe. MHA anticipates that Anthem and BCBSME may contend that its filings are not timely either on the basis of an asserted lack of an compliance to the five business day timeframe set forth in Rule 10.B(3), or the 7-day timeframe laid out for opposition to Motions set forth at page 5 of the Superintendent’s November 4 Procedural Order. For the reasons cited above, MHA views such construction of the Rules not to be applicable in this circumstance. The 7 day timeframe for opposition to Motions cannot reasonably be viewed to also govern responses to discovery requests, especially where the Order’s four paragraph discussion of discovery procedures failed to make this connection. Rather, the Superintendent’s express waiver of the general provisions of Rule 350, together with his specific deadline of February 18 for discovery responses was reasonably relied upon by MHA in these circumstances to conclude that it has 14 days to respond to the Information Request. In the hypothetical event that a 5 business day timeframe were deemed applicable, MHA notes that the Procedural Order provides for an additional two days in the event that service of the underlying Motion (significantly not a discovery request), in circumstances where the service was by mail. The cover letter and Certificate of Service accompanying the First Discovery Request state that this pleading was served by email on Sandra Parker, Esq., co-counsel for MHA. Rule 6 M.R.Civ.P. provides further that for timeframes less than seven days, intervening weekends are not counted. Thus the two days for e-mail service moves a 5 business day calculation from February 11 to February 15. Full application of Rule 6 adds three days for mail service. In all events, the substance of the Objections was conveyed by email to counsel for Applicants on February 15. Thus, Applicants were provided with notice of the nature of the Objections within this strict construction of the applicable Rules. In all events, no prejudice has been done to the Applicants or the process in this circumstance. Further, the substantive core of MHA’s Objections asserts that the Superintendent’s Procedural Order overrides Applicant’s Information Requests to the extent these seek the functional equivalent of MHA’s Prefiled Testimony, which is not due for another six weeks. See the substantive content of the Objections. It is axiomatic that Applicants cannot succeed in requiring MHA to file 6 weeks early responses to Information Requests that are the functional equivalent of prefiled testimony. WHEREFORE, MHA respectfully requests a ruling that its Objections be deemed timely under a fair reading of the Superintendent’s Procedural Order and the Request itself, or in the alternative, that leave is granted to accept these filings under all pertinent circumstances.
CERTIFICATE OF SERVICE The undersigned hereby certifies that on February 16, 2000 a copy of MHA, INC.’s MOTION TO PERMIT FILING OF OBJECTIONS was served via hand delivery, regular mail or electronic mail on each of the persons listed below.
Jeffrey M. White, Esq. Catherine R. Connors, Esq. PIERCE ATWOOD One Monument Square Portland, Maine 04101 (207) 791-1100 (Anthem Insurance Companies, Inc )
Robert S. Frank, Esq. HARVEY & FRANK Two City Center, Fourth Floor Portland, Maine 04101 (207) 775-1300 (Blue Cross and Blue Shield of Maine)
Harvey & Frank Two City Center P.O. Box 126 Portland, Maine 04112 e-mail: frank@harveyfrank.com (Blue Cross/Blue Shield of Maine)
Judith Chamberlain, Esq. State of Maine Department of the Attorney General 6 State House Station Augusta, Maine 04333-0006 e-mail: judy.chamberlain@state.me.us (Bureau of Insurance)
William H. Laubenstein, Esq. State of Maine Department of the Attorney General 6 State House Station Augusta, Maine 04333-0006 e-mail: bill.laubenstein@state.me.us (Office of the Attorney General)
Gregory A. Brodek, Esq. Duane, Morris & Heckscher, LLP 15 Columbia Street, 4th Floor Bangor, Maine 04401-6355 e-mail: gabrodek@duanemorris.com (Maine Health Alliance)
Joseph P. Ditre, Esq. Consumer Health Law Program One Weston Court, Level One P.O. Box 2490 Augusta, Maine 04338-2490 e-mail: jditre@mainecahc.org (Consumers for Affordable Health Care Foundation/Coalition)
Michele M. Garvin, Esq. Ropes & Gray One International Place Boston, Massachusetts 02110-2624 e-mail: Mgarvin@Ropesgray.com (Central Maine Healthcare Corporation; Central Maine Partners Health Plan)
Robert I. Goldman Maine Council of Senior Citizens 27 Bowery Beach Road Cape Elizabeth, Maine 04107 e-mail: Rgoldma1@maine.rr.com (Maine Council of Senior Citizens)
Bonnie Post Executive Director of the Maine Ambulatory Care Coalition P.O. Box 390 Manchester, Maine 04351 e-mail: bdpmacc@mint.net (Sacopee Valley Health Center, Regional Medical Center at Lubec, Eastport Health Care, Inc., and the Maine Ambulatory Care Coalition)
John Dieffenbacher-Krall Executive Director Maine People’s Alliance 192 State Street Portland, Maine 04101 e-mail: MPA@gwi.net (Maine People’s Alliance)
Gordon H. Smith, Esq. Maine Medical Association 30 Association Drive P.O. Box 190 Manchester, Maine 04351 e-mail: gsmith@ctel.net (Thomas D. Hayward, M.D.,
Michel Lafond, Esq. Sulloway & Hollis P.O. Box 1256 Concord, New Hampshire 03302-1256 (co-counsel for Maine Medical Association)
Donald E. Quigley, Esq. General Counsel 465 Congress Street, Suite 600 Portland, Maine 04101-3537 e-mail: quigld@mail.mmc.org (Maine Medical Center)
Sandra L. Parker, Esq. Attorney for MHA, Inc. 150 Capitol Street Augusta, Maine 04330 e-mail: sparker@themha.org (MHA, Inc.)
Kellie P. Miller, M.S. Executive Director Maine Osteopathic Association 693 Western Avenue Manchester, Maine 04351 e-mail: meosteo@mint.net (Maine Osteopathic Association)
Edward Miller Executive Director American Lung Association of Maine 122 State Street Augusta, Maine 04330 e-mail: emiller@mainelung.org (American Lung Association of Maine)
DATED: February 16, 2000
PRETI, FLAHERTY, BELIVEAU, PACHIOS & HALEY, LLC One City Center P.O. Box 9546 Portland, Maine 04112-9546 (207) 791-3000
JPD\G:\MHA\2000\bcbsma\MtnPermitFilingofObjectionsMHA.doc (February 16, 2000 8:22 AM) Last Updated: August 22, 2012 |
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