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

The court in Wilson Aerospace LLC v. The Boeing Company, Inc., 2026 WL 2069870 (W.D. Wash. Jul. 17, 2026), held that an ESI Protocol is permissible tool; however, it does not override the discovery rules. Here, defendant did not search a relevant custodian’s documents because he was not listed as an ESI custodian. The court took a dim view of that approach.

In accord with Wilson Aerospace, it has long been recognized that a party’s duty to produce does not end with running search terms provided by an opponent. Is There a Duty to “’Fess Up?” – Part II (Nov. 12, 2022). “[A]n ESI protocol and search terms work in tandem with the parties’ obligations under the Federal Rules and do not replace a party’s independent obligation to produce electronic (or paper) documents that are reasonably accessible, relevant, and responsive within the meaning of Rule 34.” Raine Grp. LLC v. Reign Capital, LLC, 2022 WL 538336, at *2 (S.D.N.Y. Feb. 22, 2022). The protocol is an aid to each party fulfilling its independent obligation; it is not a replacement for that duty. Id. Each party must sign and certify that it conducted a reasonable search. Id. at *2.

The Wilson Aerospace court’s starting point was to reiterate that Fed.R.Civ.P. 34 requires that a party must initiate a reasonable inquiry and produce responsive documents that are in its possession, custody or control. It stated that this is an “affirmative duty.” Id. at *2.

Importantly, it added: “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.” Id. (emphasis added).

As a belt and suspenders argument, the court noted that the parties’ ESI Protocol confirmed that principle. It quoted that agreement:

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.

Id. (emphasis added).

The Wilson Aerospace court then summarized the parties’ agreement: “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 court wrote that: “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.” Id. at *2 (emphasis added).

Applying those principles to the facts of Wilson Aerospace: “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.” Id. at *3 (emphasis added).

I suggest that there is a complicating factor and much turns on the parties’ agreements. Fed.R.Civ.P. 29(b) permits the parties to stipulate that depositions and “other procedures governing or limiting discovery be modified….” [emphasis added].

The Advisory Committee Notes to the 1970 Amendment state that, in 1970, there was “no provision for stipulations varying the procedures by which methods of discovery other than depositions are governed.” The Amendment “recognizes” the common practice of party agreements. 

The 1993 Amendment revised the Rule “to give greater opportunity for litigants to agree upon modifications to the procedures governing discovery or to limitations upon discovery. Counsel are encouraged to agree on less expensive and time-consuming methods to obtain information, as through voluntary exchange of documents, use of interviews in lieu of depositions, etc.” Further, the Advisory Committee Notes state that: “Under the revised rule, the litigants ordinarily are not required to obtain the court’s approval of these stipulations.”

I suggest that an ESI Protocol is in substance, if not in form, such a stipulation. To the same effect, one court recently wrote that: “The purpose of an ESI Protocol is to encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits.” The Purpose of an ESI Protocol (Mar. 5, 2026).

One countervailing ambiguity arises because the Federal Rules of Civil Procedure do not recognize an “ESI Protocol.” In fact, no Rule mentions an ESI Protocol. An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” (Nov. 24, 2025); “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024). 

I fully agree with Wilson Aerospace to the extent that it emphasizes a rules-based duty. And, the court’s application to an obviously relevant custodian seems reasonable. It does not appear that there was a meeting of the minds to exclude this custodian. 

I wonder, however, whether the protocol’s language “subject to any agreements reached during the parties’ conferral,” might be inconsistent. And, if it is their intent to do so, parties should be permitted to stipulate that certain witnesses be included or excluded. Mutual intent is what seems to have been missing here.

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