State of Maryland v. W.L. Gore & Associates, Inc., No. 1:24-cv-03656-RDB (D. Md. Sept. 16, 2026), full opinion (PDF)
A District of Maryland magistrate judge has ordered a separate search of board minutes from a producing party that had already run the negotiated search terms across the agreed custodians. The State of Maryland sued W.L. Gore & Associates over alleged PFAS contamination. The State asked for the PFAS-related materials Gore had prepared for, discussed with, or otherwise maintained for its Board of Directors. It asked that those materials be searched as a source of their own. Gore answered that its searches of custodial and non-custodial files already covered the request. The court disagreed. Gore had cited decisions on adding custodians that require proof of unique information from the new custodians. Those decisions did not apply, in the court's view, because the State was asking for a specific source to be searched rather than for more custodians.
What happened
The dispute over Board materials had been running for some time. Earlier in the case the court had directed Gore to search the Board minutes available in electronic form. Gore searched minutes from 2020 onward. That pilot search produced fifteen sets of minutes plus forty-one additional Board documents. The State had first sought minutes going back fifty years. As a compromise it asked Gore to search hard-copy minutes back to 1985. Gore argued that the limited yield showed why a broader search was unnecessary. The State argued that the same yield showed why a separate search was required.
The court's analysis
The parties disagreed about who bore the burden. Gore argued that the State had to show that further Board discovery would be neither duplicative nor cumulative. In Gore's view the State first had to prove that the Board materials would provide unique relevant information, the showing an out-of-circuit decision requires of a party seeking additional custodians. The court described that line of authority as adjacent to the dispute rather than governing it. Those decisions address requests to compel production from additional custodians of ESI, the court explained. The question here was whether Gore had to search a specific source instead of relying on searches of negotiated terms and custodians.
On proportionality, the issues at stake and the amount in controversy were significant, in the court's view. The State had argued that Board-level discussions from the early 2000s would show when PFAS issues reached the executive level. Gore did not contest that point. It argued only that further searching would produce cumulative information. The cost of a separate search was unclear, the court noted, because Gore had not addressed it in its filings. At an earlier hearing Gore's counsel had told the court that looking at the documents would not be burdensome.
Gore's remaining objections were the sensitivity of the minutes, the decades-long timeframe, and the cumulative nature of the discovery. The court rejected all three as unpersuasive. An existing confidentiality order would protect the Board materials, the court noted. Under the State's compromise the timeframe had come down to thirty-five years. The complaint alleged more than fifty years of PFAS releases. Discovery in the case would necessarily span a broad period, the court reasoned. Gore's own pilot search answered its cumulativeness objection, in the court's view. By Gore's own account that search had produced responsive documents. After reviewing the parties' filings, the court concluded that the information was not cumulative or duplicative of other discovery. It ordered Gore to search its Board minutes and related information from 1985 through 2019.
Why it matters
A negotiated search protocol settles the custodians and the terms it names, nothing more. When a request targets a source the protocol never addressed, such as the materials a board receives, it is a new request rather than a request to add custodians. The requesting party may therefore ask for a targeted search of that source without first proving that the agreed custodians missed unique documents. Ask for the repository by name, as a source rather than as another custodian.
A pilot search that finds responsive documents is evidence for the requesting party. Gore offered the results of its court-directed search of electronic minutes as proof that more searching would be cumulative. The court cited those same results in concluding that the information was not cumulative. A producing party that runs a limited search should expect every document it finds to count against a cumulativeness objection.
Once counsel concedes that a search would not be burdensome, the proportionality fight narrows to whether the discovery is cumulative. A sensitivity objection fails where a protective order already covers the material. A party that relies on the cost of a search must state that cost with specifics in its filings.
The full opinion is available as a PDF.
