Wilson Aerospace LLC v. The Boeing Company Inc

Opinion

1 2 3

4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 WILSON AEROSPACE LLC, CASE NO. 2:23-cv-00847-JHC 8

Plaintiff, ORDER RE: DEFENDANT’S MOTION TO 9 FIND PLAINTIFF WAIVED ANY CLAIM v. OF PRIVILEGE OR WORK PRODUCT 10 PROTECTION AS TO PRODUCED THE BOEING COMPANY INC, DOCUMENTS 11

Defendant. 12 13

14 I 15 INTRODUCTION 16 This matter comes before the Court on Defendant The Boeing Company’s Motion to Find 17 that Plaintiff Wilson Aerospace LLC Has Waived Any Claim of Privilege or Work Product 18 Protection as to Produced Documents. Dkt. # 169. The Court has considered the materials filed 19 in support of and in opposition to the motion, pertinent portions of the record, and the applicable 20 law. Being fully advised, for the reasons below, the Court GRANTS Defendant’s Motion. 21 22 23 24 ORDER RE: DEFENDANT’S MOTION TO FIND 1 II BACKGROUND 2 Plaintiff, Wilson Aerospace LLC, brings this action against Defendant, the Boeing 3 Company, claiming that Defendant misappropriated Plaintiff’s intellectual property in violation 4 of the Defend Trade Secrets Act, 18 U.S.C. § 1831 et seq., and Washington state trade secret 5 law. Dkt. # 144 at 4-5, 31. During discovery, the parties agreed that by October 31, 2025, 6 Plaintiff’s counsel would produce electronically stored information (ESI) from Plaintiff’s hard 7 drive that contained tens of thousands of collected documents.1 Dkt. # 169-2 at 3, 8; Dkt. # 169- 8 1 at 6-7, 11; See generally Dkt. # 169-2. 9 On November 4, 2025, after Defendant requested an update and reminded Plaintiff of an 10 upcoming deposition that depended on the hard drive materials, Plaintiff responded that it was 11 concerned “a batch of documents” were “probably privileged,” but that most documents would 12 be produced.2 Dkt. # 169-2 at 2; Dkt. # 170-3 at 3. Later that day, the hard drive materials 13 consisting of 31,393 documents (135,803 pages) were produced. Id. at 7 & n.1; Dkt. # 169-6 at 14 7. Defendant gained access the next day. Dkt. # 170-4 at 2-3. 15 On November 10, 2025, Defendant informed Plaintiff that it had discovered documents 16 that contained indica of privilege, identifying 181 specific documents in an attached appendix. 17 Dkt. # 169-5. During much back and forth, Plaintiff agreed privileged documents were included 18 in the disclosure and informed Defendant that “there are likely additional privileged documents 19 with in [sic] the production” and that “further claw back designations may follow.” Dkt. # 169- 20 7; Dkt. # 169-6 at 7; see also Dkt. ## 169-8, 169-10. For about two weeks, Plaintiff did not 21 22

23 1 References below to “Plaintiff” and “Defendant” are to their respective counsel. 2 It is unclear from Plaintiff’s briefing whether this “batch of documents” was produced. See generally Dkt. # 170. 24 ORDER RE: DEFENDANT’S MOTION TO FIND 1 identify any specific documents to claw back, including any specific document in the initial 181 2 documents first identified by Defendant. Dkt. # 169-11 at 4-5; Dkt. # 170-5 at 4-5; Dkt. # 170-7 3 at 3-4; see also Dkt. ## 169-6; 169-7, 169-8; 169-10.

4 After an unsuccessful meet and confer on November 24, 2025, Defendant filed the 5 present motion. Dkt. # 169-11; Dkt. # 170-5 at 4-5. On December 10, 2025, the same day its 6 response was filed, Plaintiff provided Defendant with a privilege log. Dkt. # 170-8; Dkt. # 171-2 7 at 2-12; Dkt. # 170 at 10. 3 These logs identify 141 documents of the original 181 originally 8 identified by Defendant, and another 435 documents, for a total of 576 that Plaintiff claims 9 require clawback. Dkt. # 171-2 at 2-12; Dkt. # 170-8; Dkt. # 170 at 10. 10 III DISCUSSION 11 Generally, a party waives privilege with respect to a document if they produce it. United 12 States v. Sanmina Corp., 968 F.3d 1107, 1116-17 (9th Cir. 2020). Federal Rule of Evidence 13 502(b) provides an exception if “(1) the disclosure is inadvertent; (2) the holder of the privilege 14 or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took 15 reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil 16 Procedure 26(b)(5)(B).” “The party asserting privilege bears the burden of proving that privilege 17 is not waived.” Fed. Trade Comm’n v. Amazon.com, Inc., No. 2:23-CV-00932-JHC, 2024 WL 18 3620467, at *3 (W.D. Wash. Aug. 1, 2024).4 19 20 3 Plaintiff provided a log related to the initial 181 documents (Dkt. # 170-8) but cites “Exs. 9, 10, 21 11” to show the additional privileged documents not identified by Defendant. No such exhibits were attached to Plaintiff’s response. Presumably Exhibits 9, 10, and 11 would be the privilege logs produced 22 by Defendant on reply. See Dkt. # 171-2 at 2-12. 4 Per a stipulated protective order, the Court ruled: Inspection or production of [Privileged] Material (including physical objects) shall not 23 constitute a waiver of the attorney-client privilege or work product immunity or any other

24 ORDER RE: DEFENDANT’S MOTION TO FIND 1 Defendant argues Plaintiff fails all three elements of Rule 502(b). Dkt. # 169 at 11-15. 2 In response, Plaintiff says that the disclosure was inadvertent, it took reasonable steps to prevent 3 the disclosure, and it took reasonable steps to rectify the error. Dkt. # 170 at 11-18. The Court

4 considers whether Plaintiff took reasonable steps to prevent the error. 5 “[C]ourts look at the overall context of production when determining whether the 6 disclosing party took reasonable steps to prevent disclosure.” Fed. Trade Comm’n, 2024 WL 7 3620467, at *7; see also Fed. R. Evid. 502, Explanatory Notes (“Other considerations bearing on 8 the reasonableness of a producing party’s efforts include the number of documents to be 9 reviewed and the time constraints for production.”). But “[t]he party alleging the privilege ‘must 10 offer specific facts and details to show that the procedures were reasonable.’” Audubon Soc’y of 11 Portland v. Zinke, Case No. 1:17-cv-00069-CL, 2018 WL 1522691, at *4 (D. Or. Mar. 27, 2018) 12 (quoting Excel Golf Prods., Inc. v. MacNeill Eng’g Co., Inc., No. 11 C 1928, 2012 WL 1570772,

13 at *3 (N.D. Ill. May 3, 2012)). 14 15 applicable privilege or immunity from discovery if, as soon as reasonably possible after 16 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 17 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 18 entry/entries to the Receiving Party covering such inadvertently produced information. Dkt. # 153 at 9-10. Because Plaintiff did not follow the terms of that stipulated order, it does not protect 19 against waiver, and Rule 502(b) controls. Neither party argues that the protective order applies. See generally Dkt. ## 169, 170. Plaintiff does request that the Court apply the more generous “completely 20 reckless” standard used in the Southern District of New York when a protective order is in place. Dkt. # 170 at 18. The Court need not consider this argument. In the two cases Plaintiff cites, there is no issue 21 regarding whether, as here, the disclosing party failed to comply with the protective order. See BNP Paribas Mortg. Corp. v. Bank of Am., N.A., No. 09 CIV. 9783 RWS, 2013 WL 2322678, at *8-9 22 (S.D.N.Y. May 21, 2013) (considering whether to apply the protective order or Rule 502(b)); GMO Gamecenter USA, Inc. v. Whinstone US, Corp., No. 22-CV-5974 (JPC) (KHP), 2025 WL 2267751, at *2 23 (S.D.N.Y. Aug. 8, 2025) (applying the “completely reckless” standard without considering Rule 502(b)). Plaintiff fails to explain why these cases should be applied here. Nor does Plaintiff cite, and the Court is not aware, of any case in the Ninth Circuit that has adopted the “completely reckless” standard. 24 ORDER RE: DEFENDANT’S MOTION TO FIND 1 Plaintiff provides limited details to show that it took reasonable efforts to prevent 2 disclosure. It states: 3 [A] second layer of filters designed to capture privileged material was applied. These included search terms targeting attorney names, attorney email addresses, 4 law-firm domains, and other indicators associated with privileged information. . . . Any documents hitting the privilege-identification terms or the date-based 5 exclusion were removed from the production population. Dkt. # 170 at 6, 14. But this is a statement in briefing without citation to the record, and it is 6 unclear if this filtering occurred, as privileged documents authored by attorneys and containing 7 attorneys’ names were ultimately disclosed to Defendant. See Dkt. # 169-8; Dkt. # 171-2 at 4- 8 12; Dkt. # 169-11 at 4. But even charitably considering this statement, the only specificity in 9 Plaintiff’s offer of proof is a search targeting “attorney names, attorney email addresses, law- 10 firm domains.” Dkt. # 170 at 6, 14. While this might capture some privileged materials, it is not 11 reasonable to assume it alone would prevent inadvertent disclosure. For example, including 12 basic terms such as “attorney client” or “privilege” would have captured at least 82 documents 13 disclosed to Defendant. 5 Dkt. # 169-11 at 4. 14 Aside from a limiting date range, no other processes are described with specificity and 15 instead Plaintiff only states without explanation how many documents were excluded from 16 production. Dkt. # 170 at 6, 14; Audubon Soc’y of Portland, 2018 WL 1522691, at *4-5 (“In 17 cases that have found the privilege-holder took reasonable steps, the privilege-holder supported 18 their contention with a specific description of their measures to protect against inadvertent 19 disclosure and often buttressed their description with supporting affidavits or declarations”). 20 21 5 At the meet and confer, Plaintiff refused to provide the specific search terms, claiming to worry 22 that “disclosure of those search terms would itself reveal attorney work product.” Dkt. # 170-5 at 4. The Court knows of no authority to support such a position. And although Plaintiff has apparently abandoned 23 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. See Dkt. 170-1 at 2. 24 ORDER RE: DEFENDANT’S MOTION TO FIND 1 Even this limited showing is undermined by the fact that no citation to the record is 2 provided and, if anything, the record contradicts Plaintiff. For example, Plaintiff alleges that a 3 manual review excluded 1,500 documents, including privileged materials, but the Orchard

4 Declaration states that those documents “were related to the proprietary drawings, documents, 5 diagrams and other trade secret materials.” Dkt. # 170 at 6, 14; Dkt. # 170-2 at 2. Although the 6 Orchard declaration is the only one from Plaintiff by an attorney involved in the collection, 7 review, and production of the hard drive materials, the declaration does not speak to any steps 8 taken to prevent disclosure of privileged materials.6 Id.; See Klein v. Meta Platforms, Inc., No. 9 20-CV-08570-JD (VKD), 2022 WL 767096, at *8 (N.D. Cal. Mar. 11, 2022) (taking issue with 10 the disclosing parties’ “representations in its briefing rather than a declaration of counsel or other 11 relevant witness regarding the efforts [they] undertook to prevent disclosure of privileged 12 material” but ultimately inferring the processes to be reasonable because only nine documents of 13 a disclosure of 12 million pages were disclosed). 14 The Court is sympathetic regarding the difficulties associated with a high-volume ESI 15 disclosure, but it took Defendant only five days (three business days) to discover 181 documents 16 that contained indicia of privilege—most of which were in folders entitled “Lawsuit” and 17 “Lawsuit Research.” Dkt. # 169-5; Dkt. # 169-11 at 4. Plaintiff’s failure to exclude documents 18 warning of attorney-client privilege on the first page, dozens of files with names indicating that 19 they were draft litigation materials, and documents authored by counsel, is not a responsible 20 practice. Id.; Dkt. 170-8; Dkt. # 171-2 at 4-12 (Privilege log showing file names such as 21 6 The Madden and Warmbold Declarations submitted by Plaintiff admit that these lawyers were 22 “not personally involved in the hard drive collection, the original review of any hard drive documents, or the production itself” and their roles arose only after receiving notice of the disclosure. Dkt. # 170-7 at 2; 23 Dkt. # 170-5; see Conceptus, Inc. v. Hologic, Inc., No. C 09-02280 WHA, 2010 WL 3911943, at *2 (N.D. Cal. Oct. 5, 2010) (“Merely asserting that prior counsel inadvertently disclosed the letter does not meet the burden of proof”). 24 ORDER RE: DEFENDANT’S MOTION TO FIND 1 “Complaint Draft” and “Damage Estimate Summary”); see A.F. v. Evans, No. 2:18-CV-01404- 2 SU, 2020 WL 5908997, at *2 (D. Or. Oct. 6, 2020) (“The documents in question are prominently 3 marked as privileged, which suggests an inexcusable failure of discovery review on the part of”

4 the disclosing party); Sidney I. v. Focused Retail Prop. I, LLC, 274 F.R.D. 212, 217 (N.D. Ill. 5 2011) (“[T]he number of privileged documents disclosed suggests waiver, especially since they 6 were obviously privileged. Although the privileged documents made up less than two percent of 7 the production’s pages, producing eight privileged letters, several on firm letterhead, is 8 significant in such a small total production.”).7 Plaintiff provides no explanation for such a 9 failure. See generally Dkt. ## 170, 169-6, 169-7, 169-8, 169-10. 10 Without such a showing, the Court cannot find that Plaintiff took reasonable steps to 11 prevent disclosure. Comrie v. Ipsco, Inc., No. 08 C 3060, 2009 WL 4403364, at *2 (N.D. Ill. 12 Nov. 30, 2009) (“Although Defendants claimed they inadvertently produced documents, they 13 failed, with the exception of stating the number of documents produced, to support that assertion 14 with facts. Without such information, the Court cannot find that the Defendants met their burden 15 to show either that the disclosure was inadvertent, or that Defendants took reasonable steps to 16 prevent disclosure.”). The Court need not address whether the disclosure was inadvertent or 17 whether Plaintiff took reasonable steps to rectify the error because Plaintiff fails the second 18 element of Rule 502(b). The Court thus finds that Plaintiff has waived any claim to attorney- 19 client privilege or work product protection as it relates to the hard drive materials disclosed on 20 November 4, 2025. 21

22 23 7 Plaintiff states that the disclosure makes up only 0.01% of the documents disclosed. Dkt.# 170 at 10. As Defendant points out, the disclosure is closer to 2 percent. Dkt. # 171 at 6 n.1. 24 ORDER RE: DEFENDANT’S MOTION TO FIND 1 IV CONCLUSION 2 3 For all these reasons, the Court GRANTS the motion.

4 Dated this 23rd day of February, 2026.

7 John H. Chun United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER RE: DEFENDANT’S MOTION TO FIND PLAINTIFF WAIVED ANY CLAIM OF PRIVILEGE OR WORK PRODUCT PROTECTION AS TO