Production Obligations in the Civil Rules vs. ESI Protocol Limits – The Need to Proceed with Vigilance and Caution

A recent discovery order in Wilson Aerospace LLC v. The Boeing Company Inc., No. 2:23-cv-847-JHC-MLP, 2026 WL 2069870 (W.D. Wash. July 17, 2026), addressed whether an agreed ESI protocol relieves a producing party of its obligation to collect responsive documents from employees not designated in the protocol as production custodians. 

The plaintiff sought to add 10 additional custodians to the list of Boeing’s production custodians, a 50 percent increase over the 20 custodians already designated in the protocol.  Magistrate Judge Michelle Peterson rejected the full requested increase, but nevertheless ordered the addition of three custodians, citing both the protocol’s non-restrictive language and the Magistrate Judge’s own order in a prior case.  See Albert v. Lab’y Corp. of Am., 536 F. Supp. 3d (W.D. Wash. 2020).  Specifically, the court held that the protocol could not narrow Boeing’s free-standing obligations under the Federal Rules of Civil Procedure to search for and produce relevant information, including collecting and reviewing documents from custodians not on the agreed-upon production custodian list in the protocol.

This decision illustrates the need to carefully consider all language in ESI Protocols (and similar documents or agreements) that address limits on the scope of collection, review, and production obligations as well as any cross-references to the Rules regarding production obligations to avoid unintended outcomes.  The decision also unfortunately provides “sound bites” that we expect requesting parties in other cases (and potentially other courts) will seize upon to push for expanded collection, review, and production obligations notwithstanding any contrary language in discovery agreements and/or court orders.  Skilled advocacy will be required to push back against overreading of the decision, as well as enforcing appropriate objections and agreed-upon limits regarding the scope of discovery in any given matter so that requesting parties cannot continually revisit and expand the scope of discovery throughout the lifespan of the case based upon a misapplication of the Rules.

Court View:  ESI Protocols Are Means to Implement the Federal Rules, Not Supplant Them

Boeing argued that it was not required to search custodial sources of custodians not listed in an agreed-upon and court-ordered ESI protocol.  The court began by stating that Rule 34 requires the production of responsive documents in a party’s possession, custody, or control, and that it further requires a party to seek information reasonably available from its employees or others subject to its control.

Custodian-based collections and agreed search terms, the court explained, are tools that implement those obligations, “[b]ut these tools do not narrow or override the Federal Rules.”  The court stated that the parties’ own ESI protocol confirmed the point:

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.¹

Immediate Outcome:  Measured Increase in Custodians Warranted

According to the court, Boeing disclosed that it had not searched the documents of one apparently relevant employee because he was not a disclosed custodian, a position the court found inconsistent with both Rule 34 and the protocol’s plain language.  The court expressly states that a producing party’s duties “are defined first and foremost by the Federal Rules and the scope of the discovery requests,” and the protocol “cannot be invoked to avoid collecting and reviewing responsive documents from plainly relevant employees within Defendant’s control.”

The remedy was measured and tailored to the circumstances of the case as the court viewed it.  A 50 percent increase from 20 to 30 custodians was not justified, the court concluded, but a targeted expansion was warranted given the importance of the financial and NASA-related issues and Boeing’s control over that information.  It designated three additional custodians, directed the parties to confer on two more, and required a joint status report within seven days.

Redgrave LLP’s Perspective

The baseline proposition that Rule 26 governs the scope of discovery is not in dispute.  That said, ESI Protocols (and similar documents) are negotiated agreements between the parties—and often memorialized and filed as court orders—that typically set forth the parties’ agreements regarding various aspects of discovery, including the scope of collection, review, and production obligations.  In turn, all parties (producing parties and receiving parties alike) often rely on the parameters set forth in such documents to guide collection, production, and review efforts.  Of course, if there is known relevant information (such as documents or ESI) that should be produced in response to a valid discovery request notwithstanding the provisions of an agreement (such as custodian limits in a protocol) or a valid objection, that circumstance could trigger a separate production obligation unless the parties explicitly agreed otherwise (or the court ordered otherwise).  Going one step further, however, parties (on each side) regularly understand that there is not a general obligation to review and search for documents outside any agreed-upon scope limitations, especially if a court has memorialized that agreement in an order, unless the parties have agreed otherwise or the court has ordered otherwise.  Such understandings, and actions consistent with those understandings, are essential for orderly, timely, and proportional discovery.  Otherwise, there is little “benefit to the bargain” of any scope limits via objections, agreements, and/or protocols, and producing parties would likely revert to boilerplate objections and “black box” productions with no real discussions in the discovery meet and confer processes as to the scope of collection, review, and production actions.

With this context in mind, a literal reading of the Wilson Aerospace decision and any broad application of the precepts as announced are problematic.  First, the court uses the parties’ own ESI Protocol language to justify disregarding the agreed-upon custodian limits, yet the specific protocol language itself appears directed at the fact that a party could not escape producing known relevant documents or ESI just because a search string (or other search methodology) did not separately identify the document or ESI that is relevant.  It was not, as the court read it, a broader caveat that any limits, including production custodian identification, were not actually limits on the producing party’s obligations.  Second, the court’s broad-sweeping statements that a party’s production obligations regarding “relevant” information are not constrained in any way by agreements or protocols ignores the parallel reality that Rules themselves provide built-in limitations on production obligations (e.g., proportionality considerations) as well as a specific mechanism whereby the producing party can object to the scope of requests and thereafter specify what that party will (and will not) produce (e.g., Fed. R. Civ. P. 34(b)).  The application of these Rule-based provisions and mechanisms is not “contracting around” the Rules, and similarly ESI protocols and other documents that effectively memorialize the operation of these Rules-based limits and mechanisms should not be lightly disregarded, especially where the operative document reflects that, notwithstanding any provisions in the Rules, the actual scope of collection in the matter was “subject to any agreements reached during the parties’ conferral” as it was in Wilson Aerospace itself. 

In the end, it appears that the Wilson Aerospace court modified the custodian limits set forth in the initial ESI Protocol based on its view of “the importance of financial and NASA-related issues and Defendant’s control over that information,” and its conclusion that Murphy was of “apparent relevance,” which is a very case-specific outcome.  In effect, the court found that plaintiff had shown good cause to modify the Protocol.

We recommend that clients carefully review all ESI Protocol language to ensure that it is not ambiguous with respect to agreed-upon limits on collection, review, and production obligations.  Likewise, we recommend that any provisions that address independent obligations to investigate, identify, and produce relevant information outside the scope discussed in the protocol or agreement should be carefully scrutinized to ensure that they do not risk undermining meaningful limits on discovery that have been agreed upon.  Finally, we urge clients to be vigilant as to any use of the Wilson Aerospace and Albert decisions or similar arguments in other cases so that they are able to bring effective advocacy to the front to distinguish and minimize the potential effect of the Wilson Aerospace analysis and prevent an unexpected expansion of the scope of discovery midstream (or beyond) in other matters.

Redgrave LLP continues to monitor the use of GenAI in discovery.  Our attorneys regularly advise clients on defensible, well-documented AI-assisted review workflows and on ESI protocols that address AI-assisted review.

For additional information on this topic, please reach out to your Redgrave LLP contact, or you can connect with Robert Keeling, Jonathan Redgrave, Erica Zolner, and Gareth Evans.

Redgrave LLP provides this information for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship.