Shark week, er, eDiscovery Case Week, concludes today! In Wilson Aerospace LLC v. Boeing Co., No. C23-847 (W.D. Wash. July 17, 2026), Washington Magistrate Judge Michelle L. Peterson, stating: “A party therefore cannot justify failing to collect obviously relevant documents on the ground that the relevant employee was not designated as an ‘ESI custodian’ or that such documents might fall outside an agreed search-term workflow”, granted plaintiff’s request to add custodians in part, allowing “targeted expansion” to add three additional custodians.

Case Background and Judge’s Ruling

This ruling addressed several disputes between the parties, one of which related to whether Plaintiff should be permitted an additional ten ESI custodians, for a total of thirty.

In addressing the request, Judge Peterson stated: “In matters involving electronically stored information, parties may employ custodian-based collections, agreed search terms, and other tools referenced in their ESI protocol to implement their Rule 34 obligations. But these tools do not narrow or override the Federal Rules. The parties’ own ESI Protocol confirms this point.”

The order specifically stated: “Nothing in this Order shall preclude the producing party from producing additional relevant and responsive materials beyond those identified pursuant to the procedure described herein. Where appropriate, relevant and responsive non-privileged documents and ESI that are easily identifiable and segregable shall be collected and produced without the use of the procedure described herein. The discovery requests (in accordance with and subject to any limits or objections supported by the Federal Rules of Civil Procedure, the Local Rules, and any relevant orders of the Court) shall govern the scope of documents and ESI to be produced, subject to any agreements reached during the parties’ conferral, and otherwise search terms do not supplant discovery requests. The parties shall produce any relevant and responsive, non-privileged documents, to the extent they exist and can be located after a reasonably diligent search of relevant custodians and shared platforms, upon which the parties shall meet and confer.”

Continuing, she said: “Thus, the Protocol itself makes clear that: (1) discovery requests—constrained by the Federal Rules, local rules, and court orders—govern the scope of documents and ESI to be produced; (2) search terms and similar procedures do not supplant that scope; and (3) parties remain obligated to conduct a reasonably diligent search of relevant custodians and shared platforms and to produce relevant, responsive, non-privileged documents they can locate. The Protocol is a mechanism to implement the Rules, not a device to contract around them…A party therefore cannot justify failing to collect obviously relevant documents on the ground that the relevant employee was not designated as an ‘ESI custodian’ or that such documents might fall outside an agreed search-term workflow.”

Judge Peterson added: “Here, Defendant admitted that it did not search Patrick Murphy’s documents because he was not a disclosed custodian. Given Murphy’s apparent relevance, that position is inconsistent both with Defendant’s obligations under Rule 34 and with the plain language of the ESI Protocol quoted above. Defendant’s discovery duties are defined first and foremost by the Federal Rules and the scope of the discovery requests; the ESI Protocol cannot be invoked to avoid collecting and reviewing responsive documents from plainly relevant employees within Defendant’s control.”

Continuing, she ruled: “Applying these principles, this Court concludes that a 50% increase to thirty custodians is not justified, but that targeted expansion is warranted given the importance of financial and NASA-related issues and Defendant’s control over that information. Defendant shall designate Gregory Ffolkes, Ivan Bush, and Patrick Murphy as ESI custodians. The parties shall meet and confer to (1) designate one individual as a financial-information custodian and (2) confirm whether Mark Nappi is the appropriate custodian concerning Defendant’s relationship with NASA. The parties shall file a joint status report within seven (7) days of this Order confirming the designation of these five additional custodians.”

So, what do you think? Are you surprised that the defendant tried to avoid producing what the Court termed “obviously relevant documents”? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today. Hat tip to Michael Berman for the previous coverage of this case here.

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