Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., 2021 WL 2018880 (W.D. Ky. Apr. 20, 2021), is often – and properly – cited for its discussion of the use of Microsoft Outlook for ESI searches.
However, another interesting issue addressed in that opinion is mutual abrogation of the duty to cooperate. It is well established that litigants have a duty to cooperate. M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Chaps. 14-15.
In Maker’s Mark, the court determined that both parties failed to cooperate. For instance, Spalding offered to run certain search terms through an additional email store. “Maker’s Mark refused this offer,” asserting that the process was flawed. 2021 WL 2018880 at *4.
Half a loaf would have been better than none, because the court ruled that the process was not flawed “and where [Maker’s Mark] make[s] no demand for these documents, none will be granted.”
Maker’s Mark criticized Spalding’s asserted unilateral choice of keywords for searching. It pointed to Spalding’s lack of cooperation.
The court held that Maker’s Mark had no remedy:
Cooperation here is immaterial where neither side cooperated…. [N]either party cooperated in accordance with the agreed [Rule] 26(f) planning report,… thus neither side should be punished merely because they made unilateral choices.
Id. at *5 & n. 9.