Search for Board of Director Documents from 1985 Ordered in Environmental Lawsuit

The State of Maryland and intervening plaintiffs sued W.L. Gore & Associates, Inc. They alleged contamination of natural resources with toxic substances—specifically, “PFAS.”

“Pending before the Court is a discovery dispute concerning Gore’s production of Board of Directors information.”  State v. W.L. Gore & Associates, Inc,. 2026 WL 2730156 (D. Md. Sep. 16, 2026)(Aslan, J.).

Pursuant to an initial Court order directing Gore to search Board of Directors minutes “that are available in electronic form,” “Gore searched Board of Directors minutes from 2020 onwards and produced 15 sets of minutes and 41 additional Board documents.”

That production led to another dispute, with the Court writing that “the State and Gore again raised the issue of the sufficiency of Gore’s production, each contending that the limited production demonstrated why additional discovery specific to the Board of Directors is or is not required.”  Plaintiffs sought discovery from 1985.

The parties disputed the governing standard: “As a threshold matter, the State and Gore dispute the standard and burden governing analysis of the sufficiency of Gore’s production.”

“The State argues that as the party resisting discovery, Gore bears the burden of demonstrating that the requested discovery falls outside the scope of Rule 26, and that Gore has not articulated any burden associated with locating these records, assessing their volume, or reviewing their contents.” Id. at *2 (cleaned up).

“On the other hand, Gore contends that the State has the burden of showing how even more discovery into sensitive Board documents would not be duplicative or cumulative of the discovery already produced in this case….”  Id.

The Court rejected Gore’s position:  “Gore relies on an out-of-circuit decision for the proposition that parties seeking searches of additional custodians beyond those initially disclosed must demonstrate that the additional requested custodians would provide unique relevant information by providing evidence that there are unique responsive documents being missed in the current search scheme that would justify the inclusion of additional custodians.” Id. (cleaned up; emphasis in original).

The Court held that the out-of-circuit authority was distinguishable. It related to motions to compel production of ESI from additional custodians.  The Gore Court wrote: “In contrast, the question here is whether Gore must search Board of Directors materials specifically, as opposed to relying on other searches of negotiated terms and custodians.”  Id. at *2.

As to relevance, the Court noted that the PFAS-related documents requested were “certainly relevant….”  It explained that relevance “is not, on its own, a high bar.” Id.

As to proportionality, “the issues at stake in this action and the amount in controversy are significant.”  The Court wrote: “The question of the burden or expense of conducting an independent search of Board of Directors information is unclear. Gore does not address this issue in its filings, but represented at a prior discovery hearing that it was not relying on undue burden to resist production of Board of Directors information.”

The Court also wrote:

Throughout the history of this dispute, Gore has argued that the sensitivity of the Board minutes, the decades-long timeframe, and the asserted cumulative nature of the discovery render a separate Board of Directors information search inappropriate…. These arguments are unpersuasive. First, the existing confidentiality order … will protect the sensitivity of the Board of Directors materials. Second, the timeframe in question is less than the “50 years” … originally contemplated because, by way of compromise, the State has asked Gore to search hard-copy Board of Director minutes back to 1985 to “target the most highly relevant information” … When evaluating the proportionality of this 35-year timeframe, the undersigned notes that the State alleges that Gore released “PFAS into Maryland for more than 50 years.” … Discovery in this action will therefore necessarily encompass a broad timeframe. [emphasis added].

The Court rejected Gore’s argument concerning cumulative, duplicative discovery:

To the extent that Gore relies on Federal Rule of Civil Procedure 26(b), the undersigned concludes that the Board of Directors information is not “cumulative or duplicative” and that the State has not “had ample opportunity to obtain the information by discovery.” Fed. R. Civ. P. 26(b)(2)(C)(i)-(ii). By Gore’s own admission, the targeted pilot search [from 2020] of electronic Board of Directors minutes resulted in the production of 15 sets of minutes and 41 additional responsive documents…. Following review of the parties’ filings, the undersigned cannot conclude that such information is needlessly cumulative of other discovery.

Id. at *3. The Court ordered that “Gore will search its Board of Directors minutes and other related information for the time period of 1985 through 2019 and produce any documents responsive to the State’s Request for Production No. 23” and that the parties meet and  confer regarding the time for production and any related issues.