Progressive Casualty Insurance Co. v. Delaney

Progressive Casualty Insurance Company (Progressive) (plaintiff) sued Jackie Delaney, the Federal Deposit Insurance Corporation (FDIC), and others (defendants) in federal court. The subject of electronic discovery (e-discovery) was a particular point of contention for Progressive and the FDIC. Only after a series of court-mediated negotiations were the parties able to agree on a search protocol, which the court incorporated into its e-discovery order. The parties agreed that Progressive would use key words to cull a so-called hit list of potentially relevant documents from a universe of over one million pieces of electronically stored information (ESI) in Progressive’s possession. The protocol stipulated that the hit list would be manually reviewed for relevance and discoverability and gave Progressive the option of either conducting the review itself or having the FDIC perform the review, subject to a clawback provision. Progressive chose to handle the review itself, but when the keyword search returned a 565,000-document hit list, Progressive quickly found itself swamped by the magnitude of manual review. Progressive notified the FDIC that it planned to switch from manual review to the predictive-coding form of technology-assisted review (TAR). However, Progressive demurred when the FDIC asked how Progressive would carry out its plan. When Progressive missed two self-imposed target dates for handing over discoverable ESI, the FDIC moved to compel compliance with a modified version of the original search protocol.