N.Y. Court Gives Progressive 30 Days to Produce Claims Files in Anti-Steering Suit
April 29, 2009

The New York State Supreme Court has issued a final deadline of May 28 for Progressive Insurance to furnish the 802 claims files requested in a suit filed by a New York auto body shop. North State Custom, owned and founded by Greg Coccaro, who recently prevailed in a separate suit Progressive filed again him (CLICK HERE for story), claims that Progressive steered away customers from the shop, and though the specific steering charge was removed from the case, several causes of action remain that involve steering allegations: tortuous interference; engaging in deceptive business practices; and spreading injurious falsehoods about his business.

The Court issued the final deadline of May 28 during a hearing on April 23, during which Progressive produced the physical damage files related to the claims in electronic format-but had still failed to provide the complete files in paper format, according to court documents. (CLICK HERE for related story.) The files also must be produced at Progressive's expense.

"Now Progressive has produced electronic data in its system that pertains to the physical damage stuff," said Michael R. Nelson of Nelson Levine De Luca & Horst LLC, counsel for Progressive. "They got this disk on April 8."

"We can produce the paper claim files. You never ordered us to produce the paper files. You ordered us to produce the data," he said during the court hearing.

Nelson said it would take a month to gather the requested paperwork at an expense of approximately $35,000.

In response, Coccaro's counsel, Richard Stone of Medina Torrey Mamo & Camacho, noted that Progressive had already been ordered by the court to produce this information.

"The sum of what Mr. Nelson says would likely be relevant if they were responding to a discovery demand, but, as your Honor is well aware, but they are responding to a Court order, and, as your Honor has made clear, the directive was to produce claims files."

He added, "The next question is, what are we still waiting for?"

Stone also argued that the digital format the information was provided in was complicated and difficult to understand.

"What they did is essentially took a big pot of digital stuff and have put the pot in front of is and said, 'Here's some information, here's a little map, now you go and figure it out,'" he said.

Nelson argued that Progressive had done everything it could to provide the files.

"Your Honor, if you think I would come here with your Honor obviously considering striking answers and give you a lot of noise or a song and dance, that wouldn't be very wise on my part," he said. "We have done everything we possibly can in this short period of time."

Judge, Gerald E. Loehr, who has been overseeing the case, replied, "There's nothing in this file that indicates a short period of time … I have seen few files where discovery has been carried out like this. It is clear to me that there has been an intent and an effort to frustrate orderly discovery in this case."

At the end of the hearing, he offered the 30-day deadline, to which Nelson replied, "I can assure you we will make our best efforts to comply."

"I can assure you, if you don't comply, you won't have to make any more efforts," Loehr responded. He added that the case "has gone on too long."

The next hearing is scheduled for May 28, when the claims files are due.

CLICK HERE for full text of hearing transcript.

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