[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

Wilson Aerospace sued Boeing Company alleging misappropriation of trade secrets. Plaintiff failed to follow the terms of the ESI Protocol, losing any protection it may have afforded. Additionally, Plaintiff produced folders marked “Lawsuit” and “Lawsuit Research,” and also failed “to exclude documents warning of attorney-client privilege on the first page, dozens of files with names indicating that they were draft litigation materials, and documents authored by counsel….”

The parties agreed that Wilson would produce ESI from a hard drive “that contained tens of thousands of documents” by October 1, 2025. Shortly after that date passed, on November 4^th, Boeing asked for an update due to an impending deposition. Wilson said that it was “concerned” that “a batch of documents” was “probably privileged,” but that most of the documents would be produced. Later that day, it delivered 31,393 documents, consisting of 135,803 pages. About 2% were privileged. Wilson Aerospace LLC v. The Boeing Co., 2026 WL 497083, at n. 7 (W.D. Wash. Feb. 23, 2026).

Six days later, on November 10, 2025, the recipient, Boeing, informed Wilson “that it had discovered documents that contained indica of privilege, identifying 181 specific documents in an attached appendix.” 

During negotiations that followed, Wilson reported that there were also “likely additional privileged documents” in the production and that “further claw back designations may follow.” However, the court wrote: “For about two weeks, Plaintiff did not identify any specific documents to claw back, including any specific document in the initial 181 documents first identified by Defendant.”

After an unsuccessful November 24^th “meet and confer,” Boeing filed a “Motion to Find that Plaintiff Wilson Aerospace LLC Has Waived Any Claim of Privilege or Work Product Protection as to Produced Documents.”

When Wilson responded to the motion, it filed a privilege log that identified 141 of the 181 documents originally identified, plus another 435 over which it asserted privilege. In short, it sought to claw back 576 documents.

However, the court granted Boeing’s waiver motion. The Wilson court wrote that generally production is a waiver of privilege. Id. at *2. However, Fed.R.Evid. 502(b) provides an exception if “(1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).” Id. The burden of proof is on the party asserting privilege. Id.

In short, in order for Subsection (b) of the non-waiver rule to apply, in addition to inadvertence, the producing party must show pre-production and post-production reasonableness. The Wilson court found insufficient proof of pre-production reasonableness and that resulted in waiver.

In analyzing pre-production reasonableness, the Wilson court wrote that it should “look at the overall context of production….” Id. That analysis could include both the number of documents to be reviewed and the time constraints for production. Id. However, the party alleging privilege “must offer specific facts and details to show that the procedures were reasonable.” Id. (citation omitted).

Wilson failed to carry its burden. It stated only that:

[A] second layer of filters designed to capture privileged material was applied. These included search terms targeting attorney names, attorney email addresses, law-firm domains, and other indicators associated with privileged information…. Any documents hitting the privilege-identification terms or the date-based exclusion were removed from the production population.

Wilson Aerospace LLC v. The Boeing Co., 2026 WL 497083 (W.D. Wash. Feb. 23, 2026).

The Wilson court wrote:

But this is a statement in briefing without citation to the record, and it is unclear if this filtering occurred, as privileged documents authored by attorneys and containing attorneys’ names were ultimately disclosed to Defendant…. But even charitably considering this statement, the only specificity in Plaintiff’s offer of proof is a search targeting “attorney names, attorney email addresses, law-firm domains.” …. While this might capture some privileged materials, it is not reasonable to assume it alone would prevent inadvertent disclosure. For example, including basic terms such as “attorney client” or “privilege” would have captured at least 82 documents disclosed to Defendant. [emphasis added].

Id.

That paragraph was followed by a footnote stating:

At the meet and confer, Plaintiff refused to provide the specific search terms, claiming to worry that “disclosure of those search terms would itself reveal attorney work product.” …. The Court knows of no authority to support such a position. And although Plaintiff has apparently abandoned this argument, it still has not explained why it has not provided the search terms used in this “second layer.” The terms related to the “first layer” were provided but are irrelevant to the disclosure of privileged materials. [emphasis added].

Id.

The Wilson decision continues: “Aside from a limiting date range, no other processes are described with specificity and instead Plaintiff only states without explanation how many documents were excluded from production.” Further, the court stated that the only attorney declaration submitted “does not speak to any steps taken to prevent disclosure of privileged materials.”

The Wilson court added:

The Court is sympathetic regarding the difficulties associated with a high-volume ESI disclosure, but it took Defendant only five days (three business days) to discover 181 documents that contained indicia of privilege—most of which were in folders entitled “Lawsuit” and “Lawsuit Research.”…. Plaintiff’s failure to exclude documents warning of attorney-client privilege on the first page, dozens of files with names indicating that they were draft litigation materials, and documents authored by counsel, is not a responsible practice. [emphasis added].

Id.

In fact, the privilege log showed file names such as “Complaint Draft” and “Damage Estimate Summary.” The court wrote: “Plaintiff provides no explanation for such a failure.”

The failure to carry its burden of proof, alone, doomed Wilson’s privilege claim, and: “The Court need not address whether the disclosure was inadvertent or whether Plaintiff took reasonable steps to rectify the error because Plaintiff fails the second element of Rule 502(b). The Court thus finds that Plaintiff has waived any claim to attorney-client privilege or work product protection as it relates to the hard drive materials disclosed on November 4, 2025.”

In note 4, the Wilson court quoted the parties “stipulated protective order”:

Inspection or production of [Privileged] Material (including physical objects) shall not constitute a waiver of the attorney-client privilege or work product immunity or any other applicable privilege or immunity from discovery if, as soon as reasonably possible after the Producing Party becomes aware of any inadvertent or unintentional disclosure, the Producing Party designates any such Material as within the attorney-client privilege or work product immunity or any other applicable privilege or immunity and requests the destruction of such inadvertently produced Material in writing to the Receiving Party. Within seven (7) days of providing notice, the Producing Party shall provide privilege log entry/entries to the Receiving Party covering such inadvertently produced information.

Wilson Aerospace LLC v. The Boeing Co., 2026 WL 497083, at n. 4 (W.D. Wash. Feb. 23, 2026).

The Wilson court wrote: “Because Plaintiff did not follow the terms of that stipulated order, it does not protect against waiver, and Rule 502(b) controls. Neither party argues that the protective order applies.”

For more information on Fed.R.Evid. 502, please see:

• Expanding Privilege Protection to Fill the Gaps Left by Fed.R.Evid. 502 (Aug. 30, 2021);
•  M. Berman, “The Continuing Utility of the Hopson-Immunized Clawback, in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Chap. 19;
• Historical ESI Highlights – Part IV – Hopson & Fed.R.Evid. 502 (May 27, 2022);
• Citing the Correct Subsection of Fed.R.Evid. 502 is Important (Dec. 19, 2024);
• Court Finds Subject Matter Waiver in Expert Communications Under Fed.R.Evid. 502(a) (Aug. 9, 2025);
• Bad Faith Assertion of Privilege – 91% Error Rate (Jul. 14, 2025).

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.