## Facts

- Progressive filed a federal declaratory-judgment action concerning coverage under a liability policy issued to Sun West Bank in connection with claims pursued by the FDIC as receiver.
- Progressive and the FDIC negotiated an ESI search-and-production process that was entered as a court-ordered ESI protocol.
- Progressive identified roughly 1–1.8 million potentially relevant documents; agreed keyword searches produced about 565,000 “hit” documents.
- The protocol contemplated manual review of the hits for responsiveness and privilege by Progressive, or review by the FDIC subject to clawback; Progressive elected to conduct its own review.
- After beginning review, Progressive concluded manual review was too costly and time-consuming and decided to use predictive coding (technology-assisted review) instead.
- Progressive did not obtain the FDIC’s agreement or the court’s approval to change the protocol and initially refused to provide the FDIC details about the predictive-coding process or validation.
- Progressive missed its represented production timeline and produced no ESI for months.
- The FDIC moved to compel compliance with the ESI protocol; Progressive disclosed the scope of its unilateral predictive-coding approach in opposing the motion.

## Issues

1. Whether a party may unilaterally depart from a court-ordered ESI protocol and substitute predictive coding without the opposing party’s consent or prior court approval.
2. Whether the court should compel production under the existing protocol despite the producing party’s later-raised cost and burden concerns.

## Decision

- The court granted the FDIC’s motion to compel.
- The court ordered Progressive to comply with the court-ordered ESI protocol (with schedule adjustments), rather than proceed under its unilateral predictive-coding approach.
- The court held Progressive could not alter a negotiated, court-approved discovery process without consent or a timely motion to modify and court approval.

## Legal Principles

- A court-ordered ESI protocol is binding; parties must comply unless and until the order is modified by the court.
- A producing party may not replace agreed search/review methods with predictive coding unilaterally; changes require cooperation and transparency and, if disputed, court authorization.
- Cost and proportionality objections to an agreed discovery plan must be raised promptly through a supported motion to modify (including under Rule 26(b)(2) and/or Rule 26(c)), not through noncompliance or undisclosed process changes.
- Predictive coding is not disallowed as a concept, but its use must fit within the governing discovery order or be adopted through an approved modification.

## Conclusion

The court compelled Progressive to follow the existing ESI protocol because Progressive’s unilateral, undisclosed shift to predictive coding and resulting nonproduction violated the binding discovery order and required correction through court-enforced compliance rather than post hoc renegotiation.


Progressive Cas. Ins. Co. v. Delaney, 2014 WL 3563467 (D. Nev. 2014)