Wilson Aerospace LLC v. The Boeing Company Inc

Opinion

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6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 WILSON AEROSPACE, LLC, 9 Plaintiff, CASE NO. 2:23-CV-00847-JHC 10 vs. PROTOCOL REGARDING DISCOVERY OF 11 THE BOEING COMPANY, INC., ELECTRONICALLY STORED INFORMATION 12 Defendant. 13 Plaintiff Wilson Aerospace, LLC and Defendant The Boeing Company (together, the 14 “parties”) hereby submit the following protocol regarding the discovery of electronically stored 15 information (“ESI”) in this matter in compliance with the Court’s June 12, 2025 Order requiring 16 the parties to file a revised protocol adopting Plaintiff’s proposals. Dkt. # 156. 17 The following provisions shall govern the discovery of ESI in this matter: 18 A. General Principles 19 1. An attorney’s zealous representation of a client is not compromised by conducting 20 discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate 21 in facilitating and reasonably limiting discovery requests and responses raises litigation costs and 22 contributes to the risk of sanctions. 23 24 1 2. As provided in LCR 26(f), the proportionality standard set forth in Fed. R. Civ. P. 2 26(b)(1) must be applied in each case when formulating a discovery plan. To further the 3 application of the proportionality standard in discovery, requests for production of ESI and related 4 responses should be reasonably targeted, clear, and as specific as possible. This agreement is 5 intended to assist the parties in identifying relevant, responsive information that has been stored

6 electronically and is proportional to the needs of the case. The agreement does not supplant the 7 parties’ obligations to comply with Fed. R. Civ. P. 34. 8 3. Nothing in this Order shall preclude the producing party from producing additional 9 relevant and responsive materials beyond those identified pursuant to the procedure described 10 herein. Where appropriate, relevant and responsive non-privileged documents and ESI that are 11 easily identifiable and segregable shall be collected and produced without the use of the procedure 12 described herein. The discovery requests (in accordance with and subject to any limits or 13 objections supported by the Federal Rules of Civil Procedure, the Local Rules, and any relevant 14 orders of the Court) shall govern the scope of documents and ESI to be produced, subject to any

15 agreements reached during the parties’ conferral, and otherwise search terms do not supplant 16 discovery requests. The parties shall produce any relevant and responsive, non-privileged 17 documents, to the extent they exist and can be located after a reasonably diligent search of relevant 18 custodians and shared platforms, upon which the parties shall meet and confer. 19 4. The parties agree that the producing party is under no obligation to identify the 20 request for production to which a particular document is responsive, nor is the producing party 21 obligated to identify (by Bates Numbers or otherwise) which documents are being produced in 22 response to a particular request for production. Nonetheless, document and ESI productions must 23 be “rationally organized” so that the requesting party “may readily identify documents, including 24 1 || ESI, that are responsive to their production requests.” Wilson v. Washington, 2017 WL 518615, 2 || *2 (W.D. Wash. Feb. 8, 2017) (quoting Citv of Colton v. Am. Promo. Events, Inc., 277 F.R.D. 3 || 578, 585 (C.D. Cal. 2011)). 4 5. The parties agree that neither party shall be obligated to produce ESI created on or 5 || after June 6, 2023. In the event that a requesting party believes it is entitled to specific ESI that 6 || post-dates June 6, 2023, the requesting party shall identify the specific ESI in a written discovery 7 || request, and the parties shall meet and confer in good faith regarding the request. 8 6. The parties agree that neither party shall be obligated to collect ESI maintained on 9 || mobile phones or tablets, absent a showing of good cause. 10 || B. ESI Disclosures 11 Contemporaneously with documents produced in response to requests for production, or 12 || at a later time if agreed to by the parties, each party shall disclose: 13 1. Custodians. The custodians most likely to have discoverable ESI in their 14 || possession, custody, or control. The custodians shall be identified by name and title. The disclosed 15 || custodians within this section shall not exceed twenty, though nothing herein shall obligate a party 16 || to identify a specific number of custodians beyond those most likely to have discoverable ESI in 17 | their possession, custody, or control. 18 2. Non-custodial Data Sources. A list of non-custodial sources of aggregate data or 19 || data held in common (e.g., shared drives, project-specific servers), if any, likely to contain 20 || discoverable ESI. 21 3. Third-Party Data Sources. A list of third-party data sources, if any, that a party 22 || believes (based on a reasonably diligent inquiry from its document custodians) is likely to contain 23 || discoverable ESI (e.g., third-party email providers, mobile device providers, cloud storage) and, 24 25 || PROTOCOL REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND ORDER DAGE_2

1 for each such source, the extent to which a party is (or is not) able to preserve information stored 2 in the third-party data source. 3 4. Inaccessible Data. A list of data sources, if any, that a party believes (based on a 4 reasonably diligent inquiry from its document custodians) is likely to contain discoverable ESI 5 (by type, date, custodian, electronic system or other criteria sufficient to specifically identify the

6 data source) that a party asserts is not reasonably accessible under Fed. R. Civ. P. 26(b)(2)(B). 7 This includes responsive data sources (based on a reasonably diligent inquiry from its document 8 custodians) that once existed, but was deleted, lost, destroyed, or is no longer retrievable. The 9 party shall notify the requesting party and explain where and when the ESI was last retrievable in 10 its original form and the reason for the deletion or destruction of the ESI. 11 5. U.S. Export Controls and foreign data privacy laws. Nothing in this Order is 12 intended to prevent either party from complying with the requirements of United States laws and 13 regulations relating to export controls or arms trafficking; nor with any foreign power’s data 14 privacy laws, e.g., the European Union’s General Data Protection Regulation (GDPR) (EU)

15 2016/679. The parties agree to meet and confer before including custodians or data sources 16 subject to such laws in any ESI or other discovery request. 17 6. Additional Custodians and Sources. No later than three months prior to the close 18 of fact discovery, a receiving party may identify additional custodians or non-custodial data 19 sources that may have relevant information related to the claims or defenses to be collected, 20 searched, and/or produced. If a producing party declines to include in the collection process any 21 custodian or data source identified by another party, the matter shall be disclosed promptly to the 22 requesting party and may be submitted to the Court for determination within two weeks of such 23 disclosure. 24 ESI Discovery Procedures 2 1. On-site inspection of electronic media. Such an inspection shall not be required 3 || absent a demonstration by the requesting party of specific need and good cause or by agreement 4 | of the parties. 5 2. Search methodology. The parties shall timely confer to attempt to reach agreement 6 || on appropriate search terms and queries, file type and date restrictions, data sources (including 7 || custodians), and other appropriate computer- or technology-aided methodologies,! before any such 8 || effort is undertaken. The parties shall continue to confer in good faith should a party wish to revise 9 || the search methodology. 10 a. Prior to running searches: 11 1. Within 14 days of submitting responses and objections to any 12 || request for production, the producing party shall disclose the data sources (including custodians), 13 || search terms and queries, any file type and date restrictions, and any other methodology that it 14 || proposes to use to locate ESI likely to contain responsive and discoverable information (the 15 || producing party’s “Initial Search Terms or Queries’). The producing party must provide unique 16 | hit counts for each search query. The producing party shall make a good faith effort to propose 17 | Initial Search Terms or Queries and data sources proportional to each of the requesting party’s 18 || requests for production. 19 20 21 ! If the producing party wishes to use to use technology assisted review (“TAR”) (including, but not limited to, predictive coding and other forms of machine learning) to filter 22 || responsive and non-responsive documents, the parties will meet and confer about the use of such technologies before they are applied to attempt to reach reasonable agreement in advance of their 23 || use. Either party may in good faith request reasonable, nonprivileged, non-work-product information about the software and methodology used for the review sufficient to evaluate the 24 || reasonableness of the review. 25 || PROTOCOL REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND ORDER DAGE_S

1 ii. Within 14 days after disclosure, the parties may meet and confer, 2 in good faith, regarding search terms and custodians. If the requesting party objects to the 3 sufficiency of the producing party’s proposed custodians or search terms, the requesting party 4 may propose reasonable good faith modifications to the producing party’s Initial Search Terms 5 or Queries or custodians. The requesting party shall make a good faith effort to limit Initial Search

6 Terms or Queries and data sources such that they are proportional to each of the requesting party’s 7 requests for production. Any disputes over additional custodians or search terms that cannot be 8 resolved between the parties during meet and confer may be presented to the Court. 9 iii. The following provisions apply to search terms or queries of the 10 requesting party. Focused terms and queries should be employed; broad terms or queries, such 11 as product and company names, generally should be avoided. A conjunctive combination of 12 multiple words or phrases (e.g., “computer” and “system”) narrows the search and shall count as 13 a single search term. A disjunctive combination of multiple words or phrases (e.g., “computer” 14 or “system”) broadens the search, and thus each word or phrase shall count as a separate search

15 term unless they are variants of the same word. 16 iv. The following provisions apply to disputed search terms. If the 17 producing party contends that additional search terms proposed by the requesting party would 18 recall an excessive number of documents (“Disputed Search Terms”), the producing party will 19 provide a Disputed Search Term hit list or hit report after global de-duplication. The list or report 20 should include the number of documents that hit on each term, the number of unique documents 21 that hit on each Disputed Search Term (documents that hit on a particular term and no other term 22 on the list), and the total number of documents that would be returned by using the proposed 23 search term list (including families). A search term that returns more than 1,500 unique 24 1 documents, excluding families, may be identified by the producing party and the parties shall 2 meet and confer regarding whether the term is overbroad. With respect to any search term for 3 which the producing party believes there exists a modification that will reduce the number of 4 irrelevant documents returned by the search term, the producing party will meet and confer with 5 the requesting party to discuss, in good faith, any such modification. For any search term that

6 the producing party believes is burdensome, overly broad, or objectionable, and for which there 7 does not appear to be any modification that would resolve such issues, the producing party will 8 meet and confer with the requesting party to discuss, in good faith, its objections to such search 9 term. As part of that process, the producing party will, upon request, provide the requesting party 10 with quantitative data demonstrating the issues. 11 3. Direct Collection. The parties shall timely confer to attempt to reach agreement on 12 the appropriateness of any direct collection of data. Nothing herein shall require a party to produce 13 data in a format other than the format the party keeps data in the ordinary course of business. The 14 parties shall continue to cooperate in revising the appropriateness of the direct collection.

15 4. Format. ESI will be produced in accordance with and in a format referenced in the 16 attached Appendix A. 17 5. De-duplication. The parties may de-duplicate their ESI production across custodial 18 and non-custodial data sources after disclosure to the requesting party, and the duplicate custodian 19 information removed during the de-duplication process must be tracked in a duplicate/other 20 custodian field in the database load file as referenced in Appendix A. If the producing party 21 chooses not to de-duplicate their ESI production, it must notify the requesting party. 22 6. Email Threading. The parties may use analytics technology to perform email thread 23 analysis to identify email threads and need only produce the unique most inclusive copy and related 24 1 family members and may exclude lesser inclusive copies. “Email thread analysis” means that 2 where multiple email messages are part of a single chain or thread, a party is only required to 3 produce the most inclusive message (“Last In Time Email”) and need not separately produce 4 earlier, less inclusive email message or thread members that are fully contained within the Last In 5 Time Email. An earlier email is fully contained in the Last In Time Email only if the Last In Time

6 Email includes all previous emails, including attachments and identical senders and recipients, on 7 the thread. Only email messages for which the parent document and all attachments are contained 8 in the Last In Time Email will be considered less inclusive email messages. For avoidance of 9 doubt, if a thread member contains any additional data that is not contained in the Last In Time 10 Email (including without limitation attachments or BCC recipients), it is not a less inclusive email 11 and must be separately produced. Where a Last In Time Email is produced, the producing party 12 will include metadata corresponding to the following metadata fields for each of the earlier thread 13 members fully contained within the Last In Time Email: Sender, Recipient, CC, and BCC. Upon 14 reasonable request, the producing party will produce a less inclusive copy.

15 7. Metadata fields. The parties agree that only the metadata fields referenced in the 16 attached Appendix A need be produced, and only to the extent it is reasonably accessible and non- 17 privileged. The list of metadata type is intended to be flexible and may be changed by agreement 18 of the parties, particularly in light of advances and changes in technology, vendor, and business 19 practices. 20 8. Responsiveness. The fact that a document may have been retrieved by application 21 of agreed upon search terms shall not prevent any party from withholding from production such 22 document for lack of responsiveness, privilege, or other permissible objection. Notwithstanding 23 the foregoing, to the extent any party identifies responsive ESI or documents not hit upon by the 24 1 filters noted above, all such non-privileged ESI and documents must be produced, subject to the 2 parties’ objections to discovery requests. 3 9. Junk Files. During the ESI extraction process, junk files, which are non- responsive 4 embedded objects such as logos and social media icons, may be extracted from emails into separate 5 files. The parties agree that, to the extent a party can identify the junk files through, for example,

6 search terms within the junk file or the document extension, those junk files do not need to be 7 reviewed or produced by the producing party. 8 10. Confidentiality of Produced ESI. Any responsive non-privileged ESI that is 9 produced shall be produced pursuant to the terms of the Protective Order to be entered by the 10 Court. Any objections to production shall otherwise be made pursuant to the Federal Rules of 11 Civil Procedure. 12 D. Preservation of ESI 13 The parties acknowledge that they have a legal obligation, as expressed in Fed. R. Civ. P. 14 37(e), to take reasonable and proportional steps to preserve discoverable information in the party’s

15 possession, custody, or control. With respect to preservation of ESI, the parties agree as follows: 16 1. Absent a showing of good cause by the requesting party, the parties shall not be 17 required to modify the procedures used by them in the ordinary course of business to back-up 18 and archive data; provided, however, the requesting party’s Fed. R. Civ. P. 26(b)(2)(B) right to 19 move to compel the production of potentially responsive not readily accessible data is 20 preserved, and the parties shall preserve all discoverable ESI in their possession, custody, or 21 control. 22 2. Except as otherwise agreed by the parties, the parties will supplement their 23 disclosures in accordance with Fed. R. Civ. P. 26(e) with discoverable ESI responsive to a 24 1 particular discovery request or mandatory disclosure where that data is created after a disclosure 2 or response is made. 3 3. Absent a showing of good cause by the requesting party, the following categories 4 of ESI need not be preserved: 5 a. Deleted, slack, fragmented, or other data only accessible by forensics.

6 b. Random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system. 7 c. On-line access data such as temporary internet files, history, cache, 8 cookies, and the like. d. Data in metadata fields that are frequently updated automatically, such as 9 last-opened dates (see also Section (E)(5)). 10 e. Back-up data that are duplicative of data that are more accessible elsewhere. 11 f. Server, system or network logs. 12 g. Data remaining from systems no longer in use that is unintelligible on the 13 systems in use. 14 4. The parties shall not be obligated under this agreement to produce deleted ESI lost 15 due to the routine, good-faith operation of an ESI system, before the date upon which the duty to 16 preserve ESI arose. 17 E. Privilege 18 1. A producing party shall create a privilege log of all documents fully withheld from 19 production on the basis of a privilege or protection, unless otherwise agreed or excepted by this 20 Agreement and Order. Privilege logs shall include a unique identification number for each 21 document, the basis for the claim (attorney-client privileged or work-product protection, or other 22 basis for privilege), an indication whether the document has been redacted or withheld, and a brief 23 description of the basis for the claim(s) of privilege. For ESI, the privilege log may be generated 24 1 using available metadata, including author/recipient or to/from/cc/bcc names; the subject matter 2 or title; and date created. Should the available metadata provide insufficient information for the 3 purpose of evaluating the privilege claim asserted, the producing party shall include such 4 additional information as required by the Federal Rules of Civil Procedure. Privilege logs will be 5 produced in Microsoft Excel format to all other parties no later than 30 days after delivering a

6 production and no later than 60 days before the close of fact discovery to allow the parties to 7 evaluate privilege logs and conduct any necessary meet and confers or motion practice within the 8 time allowed for discovery by the Court’s scheduling order. This provision is without prejudice 9 to a party’s right to request any extension of discovery deadlines or the rescheduling or re-noticing 10 of depositions, should production of logs after substantial completion delay discovery in this 11 matter. 12 2. Redactions need not be logged so long as the basis for the redaction is clear on the 13 redacted document. A party may not redact information on the basis it believes it to be irrelevant 14 or confidential. Unless otherwise agreed to by the parties, redactions should only be made for

15 legal privilege or legally protected private information, such as Social Security Numbers, 16 information protected from disclosure under HIPAA, and other information prohibited from 17 disclosure by law. The parties agree to meet and confer in good faith regarding any disputed 18 redactions prior to raising the issue with the Court. 19 3. A party that withholds any document entirely on the basis of privilege shall 20 produce a Bates numbered placeholder page/slip sheet that contains the following language: 21 “Document Withheld on the Basis of Privilege.” A party may withhold wholly privileged 22 members of a family group so long as the party inserts a slip sheet in place of the withheld 23 document indicating that it has been “Withheld for Privilege” and logs such attachments in a 24 1 privilege log in accordance with the requirements of this protocol. Slip sheets need not be 2 produced for wholly-privileged document families withheld in their entirety. Each email in an 3 email chain, as well as each attachment to an email, is a separate communication or document to 4 which a privilege may or may not apply. Any log documenting withheld, or redacted material 5 must include a separate entry for every communication and document. The parties shall not

6 aggregate authors and recipients for emails in a string, nor shall the parties claim privilege or 7 protection over aggregated emails or their attachments. 8 4. With respect to privileged or work-product information generated after September 9 30, 2021, parties are not required to include any such information in privilege logs. 10 5. Activities undertaken in compliance with the duty to preserve information are 11 protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B). 12 6. Pursuant to Fed. R. Evid. 502(d), the production of any documents, electronically 13 stored information (ESI) or information in this proceeding shall not, for the purposes of this 14 proceeding or any other federal or state proceeding, constitute a waiver by the producing party of

15 any privilege applicable to those documents, including the attorney-client privilege, attorney 16 work-product protection, or any other privilege or protection recognized by law. Information 17 produced in discovery that is protected as privileged or work product shall be returned to the 18 producing party as described in the parties’ forthcoming Stipulated Protective Order, and its 19 production shall not constitute a waiver of such protection. This Order shall be interpreted to 20 provide the maximum protection allowed by Fed. R. Evid. 502(d). The provisions of Fed. R. 21 Evid. 502(b) do not apply. Nothing contained herein is intended to or shall serve to limit a party’s 22 right to conduct a review of documents, ESI or information (including metadata) for relevance, 23 responsiveness and/or segregation of privileged and/or protected information before production. 24 1 || DATED: June 26, 2025 2 /s/ Mel C. Orchard, HI /s/ David A. Perez Mel C. Orchard, II (pro hac vice) David A. Perez, Bar No. 43959 3 Emily S. Madden (pro hac vice) Alexander J. Bau, Bar No. 58745 THE SPENCE LAW FIRM PERKINS CorE LLP 4 15 S. Jackson St. / P.O. Box 548 1201 Third Avenue, Suite 4900 Jackson, Wyoming 83001 Seattle, Washington 98101-3099 5 orchard@spencelawyers.com Telephone: +1.206.359.8000 madden@spencelawyers.com Facsimile: +1.206.359.9000 6 DPerez@perkinscoie.com Kenneth R. Friedman (Bar # 17148) ABau@perkinscoie.com 7 FRIEDMAN RUBIN PLLP 1126 Highland Avenue Benjamin L. Hatch (pro hac vice) 8 Bremerton, Washington 98337-1828 McGuirEWoops LLP kfriedman@friedmanrubin.com 888 16th Street N.W., Suite 500 9 Black Lives Matter Plaza Peter J. Flowers (pro hac vice) Washington, D.C. 20006 10 Christopher J. Warmbold (pro hac vice) Tel: (757) 640-3700 pjf@meyers-flowers.com Fax: (757) 640-3701 1 cyw@meyers-flowers.com bhatch@mcguirewoods.com 2 Lance Astrella (pro hac vice) Brian C. Riopelle (pro hac vice) ASTRELLA LAw, P.C. George B. Davis (pro hac vice) 13 1600 Broadway, Suite 1070 Kathryn M. Barber (pro hac vice) Denver, Colorado 80202 McGuIrREWoops LLP 14 lance@astrellalaw.com 800 East Canal Street Richmond, VA 23219-3916 15 Rex Sharp (Pro hac vice) Telephone: 804-775-1000 SHARP LAw LLP Facsimile: 804-225-5377 16 4820 W. 75th Street briopelle@meguirewoods.com Prairie Village, Kansas 66208 gdavis@meguirewoods.com 17 rsharp@midwest-law.com kbarber@mceguirewoods.com 18 Attorneys for Plaintiff Attorneys for Defendant 19 ORDER 20 71 Based on the foregoing, IT IS SO ORDERED this 26th day of June, 2025. 22 aka 4 Chan Hof. John H. Chun 24 25 || PROTOCOL REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND ORDER DAGE_12