Wilson Aerospace LLC v. The Boeing Company, Inc., No. 2:23-cv-00847 (W.D. Wash. July 17, 2026), full opinion (PDF)
Agreed ESI protocols have become a fixture of complex litigation, and with them a tempting shortcut. Parties treat the negotiated custodian list and agreed search terms as the outer boundary of what they have to collect. A recent order from the Western District of Washington closes that door. When Boeing declined to search the files of a plainly relevant employee because he had not been designated an ESI custodian, the magistrate judge held that the protocol could not be used that way. The custodian list and the search terms implement Rule 34. They do not shrink it.
The ruling is a useful reminder for any litigator negotiating or living under an ESI protocol. The document signed to make discovery efficient does not rewrite a party’s obligations under the Federal Rules, and it will not excuse a failure to collect obviously relevant material.
What Happened
Wilson Aerospace moved to compel a range of discovery from Boeing, including ten additional ESI custodians, for a total of thirty. In defending the existing scope, Boeing admitted that it had not searched the documents of one employee, Patrick Murphy, because he was not among the disclosed custodians. The parties were operating under an ESI protocol they had negotiated. The disputes reached into financial information and Boeing’s relationship with NASA.
The Custodian List Is Not the Boundary of Rule 34
The court started with the rule, not the protocol. Rule 34 obligates a party to produce responsive documents within its possession, custody, or control, and to make a reasonable inquiry to find them. An ESI protocol operates inside that duty. As the court explained:
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 protocol confirmed the point. Its terms provided that the discovery requests, subject to the Federal Rules, govern the scope of what must be produced, that search terms do not supplant those requests, and that the parties must still run a reasonably diligent search of relevant custodians and shared platforms. Read together, the court held, the protocol is “a mechanism to implement the Rules, not a device to contract around them.” A party cannot decline to collect obviously relevant documents on the theory that the employee holding them was never named a custodian.
Applied to Murphy, that resolved the question. Given his apparent relevance, Boeing’s refusal to search his files was inconsistent with both Rule 34 and the plain language of the protocol. The court did not, however, give Wilson everything it asked for. It refused the across-the-board jump to thirty custodians as unjustified and ordered a targeted expansion of five instead. Boeing must designate Gregory Ffolkes, Ivan Bush, and Patrick Murphy, and the parties must confer to name a financial-information custodian and to confirm whether Mark Nappi is the right custodian for the NASA relationship. A joint status report is due within seven days.
The same order resolved several other disputes, over the scope of initial disclosures, a request for additional depositions, whether exceeding one hundred requests for production justified a refusal to respond, and a proposed trial continuance.
Why It Matters
The practical lesson is about where the custodian list sits in the analysis. It is the starting point for collection, not the ceiling on the duty. When a producing party learns that someone outside the agreed custodians holds plainly responsive material, the protocol supplies no excuse for leaving it uncollected. The obligation to make a reasonable inquiry and produce relevant documents comes first, and the protocol rides on top of it.
For the requesting party, the order shows that a specific, well-supported request can succeed without renegotiating the entire protocol. Wilson did not win a blanket increase in custodians. It won the one custodian it could tie to concrete relevance, along with targeted additions the court found justified. Naming the person and the reason carried more weight than arguing for a larger number.
The broader point travels past this case. An ESI protocol is a tool for implementing the discovery rules at a workable scale. It is not a private rewrite of what those rules require, and a court will read it against the Rule 34 duty it was meant to serve.
The full opinion is available as a PDF.
