Florida Utilties Commission v Evercom Fl Def Response to Subpoena Jail Phone Overcharge 12-4-06.pdf

Type: Phone Litigation, Administrative Agency • Topics: Telephones

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MOYLE,
FLANIGAN,
KATZ, RAYMOND, WHITE & %&ASKER, P.A.
ATTORNEYS ATLAW
The Perkins H u e
os
118 North Gadsden Street
Tallahassee, Florida 32301
Telephone: (850) 681-3828
Facsimile: (850) 681-8788
Wellington office
(561) 227-1560
Ws Palm Beach Office
et
(561) 659-7500

Vicki Gordon Kaufman

E-mail:
vkaufman@moylelaw.
com

December 4,2006
VIA HAND DELNERY
Blanca S. Bayo, Director
Commission Clerk and Administrative Services
Florida Public Service Commission
2540 Shumard Oak Boulevard
Tallahassee, FL 32399
Re:

CONFIDENTIAL MATERIALS ENCLOSED
Docket No. 060614-TC - Evercom Systems, Inc.'s Responses to Staffs Subpoena

Dear Ms. Bayo:
On October 25, 2006, the Florida Public Service Commission issued a Subpoena D u c M P
Tecum Without Deposition to Evercom requesting documents and information in connectiwM
with the Commission's investigation of TCG Public Communications, Inc. in the above docket.
On November 30, 2006, Evercom filed Objections to and a Motion to Quash in Part or Limit thsTR
Subpoena Duces Tecum without Deposition (Motion) and incorporates that Motion hereiECeg
Within the limits set out in the Motion, Evercom submits its response to the subpoena.

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Attached are Evercom' s CONFIDENTIAL responses, as limited above. The enclose&pc
responses constitute proprietary confidential business information of Evercom within the
meaning of Section 364.183( I), Florida Statutes, and rule 25-22.06(5), Florida AdministrativeRcA
Code. These responses contain sensitive business information relating to competitive interests,SCR
and the public disclosure of this information would impair the competitive business of Evercom,sGA
Thus, this information should be held exempt from the public disclosure requirements of section
119.07,Florida Statutes.
SEC
One copy is enclosed which highlights the information for which Evercom claims
confidentiality. Two redacted copies of the confidential information are also enclosed.

OTH

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FP S C C 0iHI S I OH CLERK
"i S

Ms. Bayo
December 4,2006
Page 2 of 2

Thank you for your assistance. Please contact me if you have any questions.

Sincerely,

Vicki Gordon Kaufman
cc:

Adam Teitzman
Lee Eng Tan
Floyd Self
Tracy Hatch
Curtis Hopfinger

BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION

In re: Compliance investigation of TCG Public
Communications, Inc. for apparent violation of
Section 364.183(1), F.S., Access to Company
Records, and determination of amount and
Appropriate method for refunding overcharges
For collect calls made from inmate pay telephones

Docket No. 060614-TC
Filed: December 4,2006
/

EVERCOM SYSTEMS, INC. D/B/A CORRECTIONAL BILLING SERVICES
RESPONSE TO
SUBPOENA DUCES TECUM WITHOUT DEPOSITION

Evercom Systems, Inc. d/b/a Correctional Billing Services (Evercom), hereby
provides its response to the Commission Staff subpoena served on Evercom on or about
November 3, 2006.’ On November 29, 2006, Evercom filed Objections to and Motion to
Quash in Part or Limit the Subpoena.

The Objections and Motion to Quash are

incorporated herein, and are attached hereto as Attachment A. Evercom’s response is
limited as set forth in its Objections and Motion to Quash.
Further, Evercom states that it is not a party to this docket. Neither Evercom’s
filing of its Objections and Motion to Quash nor its provision of any documents or
responses in regard to the subpoena should be construed as an intervention or appearance
either as a party or interested person in connection with this proceeding, or as Evercom’s
agreement or consent to respond further in connection with this matter.
Request No. 1:

Any and all requests and correspondence regarding telephone
equipment sensitivity settings for the correctional facilities served
by TCG in the state of Florida.

Response:

Responsive documents attached.

Staff first attempted to serve a subpoena on Evercom on September 22, 2006, but it was apparently sent to
the wrong place.
DQCUMfT4i

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Request No. 2:

Any records of modifications and changes to sensitivity levels for
the telephone equipment for the correctional facilities served by
TCG in the state of Florida.

Response:

Responsive documents attached.

Request No. 3:

Complete copies of any and all contracts between TCG and
Evercom d/b/a Correctional Billing Services goveming work
performed for TCG by Evercom d/b/a Correctional Billing
Services.

Response:

Responsive documents attached.

Request No. 4:

Please provide the information below for calls that terminated and
another call was completed to the same telephone number within
10 minutes for correctional facilities, identified by month and
location, served by TCG in the state of Florida.
LOCAL - Number of calls
(a)
Intrastate -Number of calls and minutes
(b)

Response:

Responsive documents attached. The information on the attached
spreadsheet represents aggregate "in-state" calls but is not broken
down between local and in-state long distance calls. In order to
respond to the subpoena by the agreed upon date, Evercom was
able to gather the data requested in the attached format. Evercom
will continue to work to separate this information into "Local" and
"Intrastate" calls and will provide the information in that way if it
can separate the data as requested.

Vicki Gordon Kaufrsldn
Moyle Flanigan KatYRaymond White &
JSrasker, PA
118 North Gadsden Street
Tallahassee, Florida 32301
Telephone: 850.681.3828
Fax: 850.681.8788
vltaufninn~nio
ylelaw. coni
Attomeys for Evercom Systems, Inc.
d/b/a Correctional Billing Services

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Response to
Subpoena Duces Tecum Without Deposition was furnished by (*) hand delivery and U S .
Mail this 4thday of December, 2006 to:
(*)Adam Teitzman
(*)Lee Eng Tan
Staff Counsel
Florida Public Service Commission
Division of Legal Services
2540 Shumard Oak Boulevard
Tallahassee, FL 32399-0850
ateitznia(ii>,psc.state.fl.us
ltan(i2psc.state.fl.w
Floyd R. Self
Messer Law Firm
Post Office Box 15579
Tallahassee, FL 323 17
fself(@lawfla.cow
Tracy Hatch
AT&T Communications of the Southern States, Inc.
101 North Monroe Street, Ste 700
Tallahassee, FL 32301
thatch@i),att.com

s/Vicki Gordon Kaufman
Vicki Gordon Kaufman

BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION

Docket No. 060614-TC
Filed: November 30, 2006
/

EVERCOM SYSTEMS, INC. D/B/A CORRECTIONAL BILLING SERVICES
OBJECTIONS TO AND MOTION TO QUASH IN PART OR LIMIT
SUBPOENA DUCES TECUM WITHOUT DEPOSITION

Evercom Systems, Inc. d/b/a Correctional Billing Services (Evercom), pursuant to
rule 1.410(c), Florida Rules of Civil Procedure, and rule 28-106.212, Florida
Administrative Code, hereby objects to and moves to quash in part or otherwise limit the
Commission Staff subpoena served on Evercom on or about November 3,2006.’

On October 25, 2006, Commission Staff issued a Subpoena Duces Tecum

Without Deposition to Evercom. Evercom received the subpoena on November 3, 2006.
It has been mutually agreed that Evercom’s response to the subpoena would be provided
on December 4,2006.
2.

As a preliminary matter, Evercom states that it is not a party to this docket.

The regulated company that is the subject of this investigation is TCG Public
Communications, Inc. (TCG). Neither Evercom’s filing of this Motion to Quash nor its
provision of any documents or responses in regard to the subpoena should be construed
as an intervention or appearance either as a party or interested person in connection with
this proceeding, or as Evercom’s agreement or consent to respond further in connection
with this matter.

’

Staff first attempted to serve a subpoena on Evercom on September 22, 2006, but it was apparently sent to
the wrong place.

ATTACHMENT A

A subpoena must be “’properly limited in scope, relevant in purpose, and

specific in directive,’ in order not to be unduly burdensome.” Check ‘N Go of Florida,

Inc. v. State, 790 So.2d 454, 460 (Fl. 5thDCA 2001), quoting, Dean v. State, 478 So.2d
38, 40 (Fl. 1985). Staffs subpoena, as currently framed, fails this test. It is Evercom’s
understanding that the genesis of this docket and the subpoena to Evercom is related to
pay telephone service provided to inmates at Miami-Dade Correctional facilities (MiamiDade) pursuant to a contract between TCG and Miami-Dade and customer complaints
associated with such service from the time period of approximately September 2003
through September 2005. Thus, Evercom objects to the subpoena because, as explained
in detail below, it is overly broad and burdensome and requests information that is not
relevant to the Commission’s proceeding. The Commission should modify the subpoena
as outlined in this motion2
4.

For each of the requests sent to Evercom, Staff has requested a response

for “the time period January 1999 and ending August 31, 2006.” The time frame of the
requests, covering over 7 ?4years, is overly broad and burdensome. Further, the requests
seek information for time periods not relevant to this proceeding and such requests are
not reasonably calculated to lead to the discovery of admissible evidence. The time
period for any requests should be for no longer than the last three (3) years.
In addition, Evercom is a large corporation with employees located in many
different locations in Florida and in other states. In the course of its business, Evercom
creates many documents. These documents are kept in numerous locations that are
frequently moved from site to site as employees change jobs or as the business is

Rule 1.410(c), Florida Rules of Civil Procedure, provides that a subpoena may be quashed or modified if
it is unreasonable and oppressive.

reorganized, Therefore, it is possible that not every document has been identified in
response to the requests. Evercom has made its best efforts to diligently search its
files for the requested information (as limited by Evercom’s Motion to Quash). To the
extent the subpoena purports to require more, Evercom objects as such request would
impose an undue burden and expense on Evercom. Further, Evercom objects to any
requests which seek “any and all documents” as overly broad and burdensome.

Request No. 1 seeks: “Any and all requests and correspondence regarding

telephone equipment sensitivity settings for the correctional facilities served by TCG in
the state of F l ~ r i d a . ” ~This request is overly broad and burdensome as it seeks
information for facilities other than those under the jurisdiction of the Miami-Dade
County Correctional Department, which is the subject of this docket. This request also
seeks information irrelevant to the Commission’s investigation and not reasonably
calculated to lead to the discovery of admissible evidence. The subpoena should be
limited to documents related only to facilities under the jurisdiction of the Miami-Dade
County Correctional Department and limited in time as discussed above.
Without waiving and subject to the foregoing limitations, Evercom will provide,
pursuant to the Commission’s confidentiality procedures, responsive documents, to the
extent any exist, for the Miami-Dade County facilities on the agreed upon due date.

Request No. 2 seeks: “Any records of modifications and changes to

sensitivity levels for the telephone equipment for the correctional facilities served by

TCG in the state of Florida.” This request is overly broad and burdensome as it seeks
information for facilities other than those under the jurisdiction of the Miami-Dade

’

Evercom will not reiterate its objection to the time frame of the information requested in each separate
request, but rather incorporates it by reference as to all the requests.

County Correctional Department, which is the subject of this docket. This request also
seeks information irrelevant to the investigation and not reasonably calculated to lead to
the discovery of admissible evidence, The subpoena should be limited to documents
related only to facilities under the jurisdiction of the Miami-Dade County Correctional
Department and limited in time as discussed above.
Without waiving and subject to the foregoing limitations, Evercom will provide ,
pursuant to the Commission’s confidentiality procedures, responsive documents, to the
extent any exist, for the Miami-Dade County facilities on the agreed upon due date.

Request No. 3 seeks: “Complete copies of any and all contracts between

TCG and Evercom d/b/a Correctional Billing Services governing work performed for
TCG by Evercom d/b/a Correctional Billing Services.” This request is overly broad and
burdensome as it seeks information for facilities other than those under the jurisdiction of
the Miami-Dade County Correctional Department, which is the subject of this docket. It
is further overly broad and burdensome as it seeks information unrelated to inmate pay
telephone services provided to the Miami-Dade County Correctional Department, which
is the subject of this docket. In addition, this request seeks information irrelevant to these
proceedings and not reasonably calculated to lead to the discovery of admissible evidence
because the contract addresses many matters outside of the jurisdiction of the
Commission and outside of the investigation in this docket.
Without waiving and subject to the foregoing limitations, Evercom will provide,
pursuant to the Commission’s confidentiality procedures, responsive documents, to the
extent any exist, for the Miami-Dade County facilities on the agreed upon due date.

Request No, 4 states: “Please provide the information below for calls that

terminated and another call was completed to the same telephone number within 10
minutes for correctional facilities, identified by month and location, served by TCG in the
state of Florida.
(a)

LOCAL - Number of calls

(b)

Intrastate - Number of calls and minutes”

This request is overly broad and burdensome as it seeks information for facilities other
than those under the jurisdiction of the Miami-Dade County Correctional Department,
which is the subject of this docket. It is further overbroad as it seeks information for
“terminated” calls. Most terminated calls are the result of one of the parties to the call
hanging up. To the extent the Commission is seeking to investigate calls where a call
was allegedly terminated due to a sensitivity setting of the custom calling detection
system, the request for all terminated calls is vastly overbroad. Further, this request
seeks information irrelevant to these proceedings and not reasonably calculated to lead to
the discovery of admissible evidence.
Without waiving and subject to the foregoing limitations, Evercom will provide,
pursuant to the Commission’s confidentiality procedures, responsive documents, to the
extent any exist, for the Miami-Dade County facilities on the agreed upon due date.
9.

Finally, on October 18, 2006, TCG filed a Motion to Quash, or in the

Alternative, to Limit, to Require a Copy, and to Issue a Temporary Protective Order for
the Staff Subpoena to Evercom. Apparently, TCG received a copy of the initial subpoena
to Evercom, dated September 22, 2006, which Evercom never received and which was
reissued. In its Motion, TCG seeks to have the Commission require Evercom to provide

TCG with its responses to the Staff subpoena and to have the Commission keep the
information confidential. TCG hrther asserts that data responsive to the subpoena “is in
whole or in part TCG’s data.” Evercom is researching the issue of to whom the data
requested belongs and suggests that such a determination is outside the Commission’s
jurisdiction and further unnecessary to a resolution of the issues surrounding the
subpoena. Evercom will endeavor to work cooperatively with TCG to protect the
confidential nature of any information provided pursuant to the subpoena and will
provide information produced in response to the subpoena to TCG under an appropriate
protective agreement or other process to protect the information’s confidentiality.

WHEREFORE, Evercom requests that the Commission enter an order quashing
and / or modifying the subpoena as set forth above.

s/ Vicki Gordon K a u h a n
Vicki Gordon K a u h a n
Moyle Flanigan Katz Raymond White &
Krasker, PA
118 North Gadsden Street
Tallahassee, Florida 32301
Telephone: 850.68 1.3828
Fax: 850.681.8788
vkaufinan(i8movlelaw.coin
Attorneys for Evercom Systems, Inc.
d/b/a Correctional Billing Services

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Motion to
Quash was furnished by electronic mail and U.S. Mail this 30th day of November, 2006
to:

Adam Teitzman
Lee Eng Tan
Staff Counsel
Florida Public Service Commission
Division of Legal Services
2540 Shumard Oak Boulevard
Tallahassee, FL 32399-0850
ateit zm a@,p sc .state.fl.u s
ltaii~,psc.state.fl.us
Floyd R. Self
Messer Law Firm
Post Office Box 15579
Tallahassee, FL 323 17
fself@lawfla.com
Tracy Hatch
AT&T Communications of the Southern States, Inc.
101 North Monroe Street, Ste 700
Tallahassee, FL 32301
thatch@att .coin

sNicki Gordon Kaufman
Vicki Gordon Kaufinan