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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Core Communications, Inc., )
v. ) File No. EB-01-MD-007
Verizon Maryland Inc., )
Adopted: February 2, 2004 Released: February
By the Chief, Enforcement Bureau:
1. In this Order, we deny the request of
defendant Verizon Maryland Inc. (``Verizon'') that we
include in the record of the damages phase of this
proceeding newly-discovered documents that Verizon should
have produced during the liability phase of this proceeding,
but did not.1 For the following reasons, we conclude that
Verizon's request lacks merit.
2. On March 21, 2001, Complainant Core
Communications, Inc. (``Core'') filed a formal complaint
against Verizon pursuant to section 208 of the
Communications Act of 1934, as amended (``Act'').2 In its
Complaint, Core alleged that Verizon had violated, inter
alia, section 251(c)(2) of the Act3 and Verizon's
interconnection agreement with Core by unreasonably delaying
interconnection with Core and by failing to inform Core in a
timely manner of the delay.4 Pursuant to Core's unopposed
request under section 1.722(d) of the Commission's rules,5
Commission staff bifurcated the complaint proceeding, and
addressed liability issues prior to consideration of damages
issues.6 Discovery in the liability phase of the proceeding
was conducted over a period of more than six months, with
both Core and Commission staff requesting that Verizon
produce documents regarding Core's interconnection with
Verizon.7 Verizon produced 23 documents.8
3. On April 23, 2003, the Commission released the
Liability Order, finding that Verizon had violated section
251(c)(2)(D) of the Act by failing to interconnect with Core
on just and reasonable terms. The Liability Order contains
lengthy and detailed findings of fact in support of its
holding, which are incorporated by reference herein. In
brief, the Liability Order found that Verizon had
unreasonably delayed in interconnecting with Core by
allowing two cross-connect machines in Verizon's network,
through which Core's traffic would have to travel, to
exhaust and remain at exhaust for at least four months.9
The Liability Order also found that Verizon had failed to
notify Core in a reasonably timely manner of the likelihood
and extent of the interconnection delay.10
4. On May 23, 2003, Verizon filed a Petition for
Reconsideration of the Liability Order.11 The Petition did
not ask the Commission to reconsider the Liability Order on
the grounds of newly discovered evidence or evidence not
otherwise in the record of the liability proceeding.12
5. On August 11, 2003, pursuant to section 1.722 of
the Commission's rules, Core filed a Supplemental Complaint
for Damages in this proceeding.13 Relying solely on the
Commission's findings in the Liability Order, Core requested
compensatory damages, plus punitive damages for Verizon's
alleged ``malicious ... wanton and reckless'' conduct in
interconnecting with Core.14 Core did not submit any new
evidence in support of its claim for punitive damages, and
did not seek any additional discovery from Verizon.
6. In a telephone conference on September 5, 2003,
counsel to Verizon informed Commission staff and Core's
counsel that, in preparing its answer to the Supplemental
Complaint, Verizon had discovered a number of documents
which, Verizon admitted, should have been produced during
the liability phase of the proceeding (``Documents''). On
September 9, 2003, Commission staff conducted another
telephone conference with the parties to discuss the status
of the Documents. Verizon requested that the Documents be
allowed into the record solely with respect to Core's claim
for punitive damages. In response, Core stated that
Commission staff should deny Verizon's request and exclude
the Documents from the record. Commission staff ordered
Verizon to produce the Documents to Core and to provide Core
and the Commission a declaration based on personal knowledge
explaining why Verizon did not discover and produce the
Documents during the liability phase of the proceeding, and
why Verizon has now discovered the Documents. Both parties
were invited to submit briefing as to whether Commission
staff should allow Verizon to enter the Documents into the
record. Finally, Commission staff granted Verizon's request
to append to its answer in the damages proceeding those
Documents on which Verizon intended to rely in defending
against Core's punitive damages claim, subject, however, to
the Commission's ruling as to the admissibility of the
7. On September 10, 2003, Verizon filed its answer to
the Supplemental Complaint.16 Verizon's Supplemental Answer
identified nearly 150 relevant Documents that had not been
produced earlier,17 and attached nearly 100 of those
Documents as exhibits.18 The great majority of the
Documents attached as exhibits to the Supplemental Answer
concern a key issue in the liability phase of the
proceeding: the exhaust of Verizon's cross-connect
machines.19 The rest of these Documents are correspondence
between Verizon personnel, or between Verizon personnel and
Core, regarding the interconnection delay with Core.20
8. On September 12, 2003, Verizon filed a brief in
support of its request that Commission staff allow Verizon
to enter the Documents into the record of the damages phase
of this proceeding;21 Verizon also filed a declaration
purporting to explain why it had not discovered and produced
the Documents in the liability phase of this proceeding.22
In its papers, Verizon admits that it could have and should
have produced the Documents in the liability phase of the
proceeding.23 Verizon then explains why such discovery and
production did not occur. First, Verizon states that it
failed to discover certain of the Documents because
Verizon's counsel erred in the scope of their document
search.24 Second, Verizon failed to discover certain other
Documents because its employees did not fully answer
Verizon's counsel's questions regarding the existence of
relevant evidence.25 In other instances, Verizon states
simply that it ``doesn't know'' why the Documents were not
· ``We have been unable to determine precisely why
the documents in Mrs. Robinson's files (which now
include Ms. Talbert's files) were not discovered
during the liability phase of the case.''26
· ``Verizon is unable to determine at this point
whether these additional documents were
inadvertently overlooked when Mr. Dreyer and Mr.
DiMarino reviewed their files or whether the
documents were in fact provided and were
overlooked by counsel or not considered relevant
at that time.''27
On September 22, 3003, Core filed a brief arguing that
Commission staff should reject Verizon's request to include
the Documents in the record of the damages phase of this
A. The Commission May Exclude Documents That
Should Have Been Produced During the Liability Phase of
9. We and the parties have identified several
analogous precedents that provide useful guidance regarding
the specific question presented here. First, we note that
pursuant to the law of the case doctrine and Rules 37(b)(2),
37(c)(1), 56(d), and 60(b) of the Federal Rules of Civil
Procedure,29 federal courts often exclude or refuse to
consider otherwise relevant evidence, where such evidence
could and should have been produced earlier in the
proceeding.30 These rules address a situation closely
analogous to the case at hand. Moreover, the Commission has
broad authority to take strong measures to redress problems
in the discovery process.31 And finally, the Commission's
rules provide that in an analogous situation, we will not
consider evidence produced only in the later stages of a
proceeding -- section 1.106 of the Commission's rules
provides that, unless the public interest requires
otherwise, the Commission will deny any petition for
reconsideration that relies on facts not previously
presented, if those facts could have been presented earlier
in the proceeding ``through the exercise of reasonable
diligence.''32 Though each of the foregoing authorities
applies to different circumstances, they all generally rest
on common purposes: to encourage the earliest possible
disclosure of evidence; to promote fairness to the parties;
to prevent inconsistencies as a matter proceeds; to foster
diligence in the discovery process; to maintain respect for
the tribunal and its requirements; and to conserve the
resources of the parties and the tribunal. With these
authorities and principles in mind, we now examine whether
to allow Verizon to enter into the record of the damages
phase of this proceeding the Documents that Verizon now
admits it could and should have produced during the
B. Allowing the Documents into the Record Now
will Prejudice Core, Waste Commission
Resources, and Undermine the Integrity of this
10. Applying the foregoing to the facts here, we deny
Verizon's request to allow the Documents into the record.
As previously stated, Verizon admits that it should have
produced these Documents during the liability phase of this
proceeding, either as required by Commission rule 1.724 or
in response to Core's discovery requests.33 Moreover, our
review of the Documents appended to the Supplemental
Complaint reveals that most, if not all, of these Documents
also should have been produced in response to Commission
staff orders.34 Further, Verizon's failure to produce the
Documents stemmed from its own negligence. As Verizon
concedes, the Documents were in Verizon's possession,
custody, and control throughout the liability phase of the
proceeding; and Verizon's own declaration reveals that,
through the exercise of reasonable diligence, it clearly
could have gathered and produced the Documents during the
liability phase of this proceeding.35 Verizon's error is
not a minor one. Discovery during the liability phase of
the proceeding consumed more than six months; yet Verizon
managed to overlook far more documents than it actually
11. Considerations of fairness also counsel against
admitting the Documents, because doing so would severely
prejudice Core. Core justifiably relied upon the facts as
found in the Liability Order in framing its Supplemental
Complaint. Yet Verizon's Supplemental Answer relies upon
almost 100 Documents not in the record of the Liability
Order. To the extent that these Documents contradict or
undermine the facts found in the Liability Order, Core's
Supplemental Complaint is affected, and Core is unfairly
surprised. Core would have to review the Documents, perhaps
take additional discovery, and perhaps even seek to amend
its Supplemental Complaint - all potentially costly and
time-consuming processes. As a result of Verizon's
negligent misconduct, Core should not have to suffer the
delay and expense of belatedly re-visiting the facts
surrounding its interconnection with Verizon.
12. Finally, we decline to allow the Documents into
the record in order to preserve Commission resources and to
protect the integrity of this proceeding. The Documents
pertain directly to the very issues examined and discussed
at length in the Liability Order - namely, the cross-connect
machine capacity exhaust and Verizon's communications with
Core regarding the interconnection delay. Accordingly,
allowing the Documents into the record would waste
Commission resources by requiring Commission staff to re-
visit the very issues resolved with the release of the
Liability Order. Moreover, allowing the Documents into the
record could result in factual findings in the damages phase
of this proceeding that conflict with the Liability Order's
factual findings. Although Verizon suggests that the
documents may be admitted solely for purposes of determining
whether Verizon acted willfully or maliciously and not for
purposes of altering the Liability Order's conclusions
concerning the reasonableness of Verizon's conduct, we do
not believe it is possible to parse the evidence so
13. Verizon argues that the Documents should be
allowed into the record because its failure to produce them
during the liability phase of the proceeding was
inadvertent. According to Verizon, ``[m]any [federal]
courts require a showing of `flagrant bad faith' or `callous
disregard' of the Federal Rules before imposing a sanction
as severe as excluding evidence.''37 We do not agree. The
cases cited by Verizon involve the imposition of sanctions
for discovery abuse.38 Yet penalizing Verizon is not the
determinative reason for our exclusion of the Documents.
Rather, as discussed, our decision rests primarily upon
considerations of fairness to the parties, preservation of
Commission resources, and the protection of the integrity of
this proceeding by avoiding inconsistent findings in the
same proceeding. In any event, we agree with those
authorities that do not require a finding of egregious
misconduct where, as here, the failure to produce is
negligent, material, and prejudicial to the opposing party
and to the process.39
14. In sum, excluding the Documents from the record
will serve the same purposes that the Commission and courts
seek to promote in analogous contexts: promoting fairness
to Core; preventing inconsistent findings of fact and
conclusions of law; conserving the resources of the
Commission and Core; and fostering diligence in the
discovery process and respect for the Commission's complaint
processes as a whole. Accordingly, we deny Verizon's
request to admit the Documents into the record.
IV. ORDERING CLAUSE
15. ACCORDINGLY, IT IS ORDERED, pursuant to
sections 4(i), 4(j), and 208 of the Communications Act of
1934, as amended, 47 U.S.C. §§ 154(i), 154(j), and 208,
sections 1.720-1.736 of the Commission's rules, 47 C.F.R. §§
1.720-1.736, and the authority delegated in section 0.111
and 0.311 of the Commission's rules, 47 C.F.R. §§ 0.111 and
0.311, that the Documents may not be entered into the record
of this proceeding, and that Verizon's Answer is stricken.
Commission staff will promptly issue a schedule for further
actions to be taken in this proceeding.
FEDERAL COMMUNICATIONS COMMISSION
1 For purposes of this Order, we use the term ``produce''
broadly to include identification of documents pursuant to
section 1.724(f) of the Commission's rules, 47 C.F.R. §
1.724(f), as well as physical conveyance of the documents
2 47 U.S.C. § 208. See Core Communications, Inc. v.
Verizon Maryland Inc., Memorandum Opinion and Order, 18 FCC
Rcd 7962 (2003) (``Liability Order''), petition for recon.
3 47 U.S.C. § 251(c)(2).
4 See Liability Order, 18 FCC Rcd at 7970, ¶ 20.
5 47 C.F.R. § 1.722(d).
6 See Liability Order, 18 FCC Rcd at 7984 n.64. See also
47 C.F.R. § 1.722(c).
7 Formal Complaint of Core Communications, Inc., File No.
EB-01-MD-007 (filed Mar. 21, 2001) (``Complaint''), Ex. J
(Interrogatory nos. 1-5); Reply of Core Communications,
Inc. File No. EB-01-MD-007 (filed Apr. 16, 2001), Ex. C
(Interrogatory nos. 6-7); Letter Ruling from Commission
staff to counsel to Core and Verizon, File No. EB-01-MD-007
(dated June 5, 2001) (ordering Verizon to respond to Core
interrogatory request nos. 1-7); Core's Motion to Compel,
File No. EB-01-MD-007 (filed July 5, 2001) (``Motion to
Compel''); Letter Ruling from Commission staff to counsel
to Core and Verizon, File No. EB-01-MD-007 (dated Aug. 3,
2001) (granting Core's Motion to Compel in part and
ordering Verizon to provide more complete responses to Core
interrogatory request no. 6); Complainant's Motion for
Additional Interrogatories, File No. EB-01-MD-007 (filed
Aug. 17, 2001) (requesting that the Commission require
Verizon to respond to Core interrogatory nos. 8-14); Letter
Ruling from Commission staff to counsel to Core and Verizon
(dated Oct. 10, 2001) (ordering Verizon to respond to Core
interrogatory nos. 8-14 as modified) (``October Letter
8 Answer of Defendant Verizon Maryland, File No. EB-01-MD-
007 (filed June 21, 2001), Exs. 1-13; Defendant's
Supplemental Answer to Interrogatory Number 6 and
Supplemental Response to Questions Posed by the Commission
during the July 26, 2001 Status Conference, File No. EB-01-
MD-007 (filed Aug. 10, 2001), Exs. 1-10.
9 Liability Order, 18 FCC Rcd at 7979-82, ¶¶ 41-52.
10 Liability Order, 18 FCC Rcd at 7976-79, ¶¶ 34-40.
11 Verizon's Petition for Reconsideration of the
Commission's Memorandum Opinion and Order, File No. EB-01-
MD-007 (filed May 23, 2003) (``Petition'').
13 First Amended Supplemental Complaint for Damages, File
No. EB-01-MD-007 (filed Aug. 11, 2003) (``Supplemental
Complaint''). See Supplemental Complaint for Damages, File
No. EB-01-MD-007 (filed July 21, 2003).
14 Supplemental Complaint at 13, ¶ 40. See id. at 14-15,
15 Letter Ruling from Commission staff to Counsel to Core
and Verizon, File No. EB-01-MD-007 (dated Sept. 9, 2003).
Commission staff also ruled that Core could elect, based on
its review of the Documents, to wait for the Commission to
rule as to the admissibility of the Documents before filing
its Reply to Verizon's Answer to the Supplemental Complaint
for Damages. Id. Core subsequently exercised this option.
Letter from Michael B. Hazzard, counsel to Core, to Marlene
Dortch, Secretary, FCC, File No. EB-01-MD-007 (filed Sept.
16, 2003). Accordingly, Commission staff temporarily
stayed all further proceedings, pending release of the
instant ruling. Letter Ruling from Commission staff to
counsel to Core and Verizon, File No. EB-01-MD-007 (dated
Sept. 23, 2003).
16 Verizon Maryland Inc.'s Answer to Core's Supplemental
Complaint for Damages, File No. EB-01-MD-007 (filed Sept.
8, 2003) (``Supplemental Answer'').
17 Supplemental Answer, Tab G (Information Designation).
18 Answer Exs. 1-98.
19 Supplemental Answer, Exs. 7, 8, 14, 15, 18, 19, 20, 23,
24-28, 32-35, 37-39, 42, 45, 48, 50-98.
20 Supplemental Answer, Exs. 1-6, 9-13, 16-17, 21, 22, 29-
31, 36, 40-41, 43-44, 46-47, 49.
21 Defendant's Response to FCC Letter Ruling, File No. EB-
01-MD-007 (filed Sept. 12, 2003) (``Verizon Brief'').
22 Declaration of Ellen S. White, File No. EB-01-MD-007
(filed Sept. 12, 2003) (``White Dec'n'').
23 Verizon Brief at 3, 7.
24 See, e.g., White Dec'n at 5, ¶ 7 (Verizon counsel
failed, during the liability phase of the proceeding, to
ask whether a Customer Network Engineering database had
been established for Core); id. at 6, ¶ 11 (Verizon's
counsel did not interview Ms. Talbert, ``the project
manager who managed Core's interconnection,'' or her
supervisor, Ms. Robinson, during the liability phase of the
proceeding); id. at 8-9, ¶ 16 (counsel to Verizon failed to
identify two Verizon employees who had responsive
25 See, e.g., White Dec'n at 6, ¶ 10 (Messrs. DiMarino and
Hunter ``did not think'' to identify a key database when
questioned by Verizon's counsel); id. at 11, ¶ 22 (Ms.
Sayer did not identify relevant documents to Verizon's
counsel because she thought counsel had already obtained
copies of the documents).
26 White Dec'n at 8, ¶ 15 (emphasis added).
27 White Dec'n at 11-12, ¶ 24 (emphasis added).
28 Core's Response to Verizon's Response to FCC Letter
Ruling, File No. EB-01-MD-007 (filed Sept. 22, 2003).
29 Federal Rule 37(b)(2) provides, in pertinent part: ``If
a party...fails to obey an order to provide...discovery,...
the court...may make such orders in regard to the failure
as are just, [including]...[a]n order...prohibiting [the
disobedient] party from introducing designated matters in
evidence.'' Fed. R. Civ. P. 37(b)(2). Federal Rule
37(c)(1) provides, in pertinent part: ``A party that
without substantial justification fails to disclose
information required by Rule 26(a)...shall not, unless such
failure is harmless, be permitted to use as evidence at a
trial, at a hearing, or on motion any witness or
information not so disclosed.'' Fed. R. Civ. P. 37(c)(1).
Rule 56(d) authorizes the federal courts, in ruling on a
motion for summary judgment, to ``make an order specifying
the facts that appear without substantial controversy....
Upon the trial of the action the facts so specified shall
be deemed established, and the trial shall be conducted
accordingly.'' Fed. R. Civ. P. 56(d). Rule 60(b)
authorizes the court to ``relieve a party...from a final
judgment, order, or proceeding for...newly discovered
evidence which by due diligence could not have been
discovered in time to move for a new trial...'' Fed. R.
Civ. P. 60(b). Where appropriate, the Commission routinely
takes guidance from the Federal Rules of Civil Procedure.
See, e.g., APCC Services, Inc. v. TS Interactive, Inc., 17
FCC Rcd 25523, 25526, ¶ 7 (Enf. Bur. 2002) (relying on the
Federal Rules of Civil Procedure for guidance); Premier
Network Services, Inc. v. Southwestern Bell Tel. Co., 18
FCC Rcd 11474, 11475 at ¶ 4 (Enf. Bur., MDRD 2003) (same).
30 See 18B Wright & Miller, Federal Practice and Procedure
Juris.2d (1990) § 4478 (defining the law of the case
doctrine as ``the refusal to reconsider a matter once
resolved in a continuing proceeding,'' and explaining that
``[e]vidence that could have been presented earlier
commonly is not considered [as a basis for departing from
law of the case], in keeping with the general rules that
discourage slovenly or ill-considered approaches to the
first trial''); Alliance for Cannabis Therapeutics v. DEA,
15 F.3d 1131, 1134 (D.C. Cir. 1994) (describing the law of
the case doctrine as ``the practice of courts generally to
refuse to reopen what has been decided'') (quoting
Messenger v. Anderson, 225 U.S. 436 444, 446 (1912));
Baumer v. Baumer, 685 F.2d 1318 (11th Cir. 1982) (upholding
trial court's refusal to consider evidence regarding the
value of an option where it was law of the case that the
option's value was unascertainable); Lyons v. Fisher, 888
F.2d 1071, 1073-74 (5th Cir. 1989) (upholding trial court's
refusal to consider evidence regarding consideration given
for the transfer of land rights where it was law of the
case that the transfer was a sham, and defendant had ``both
the reason and the opportunity'' to introduce the evidence
earlier); Jankins v. TDC Management Corp., 21 F.3d 436
(D.C. Cir. 1994) (trial court correctly excluded evidence,
pursuant to Federal Rule 37(b)(2), where the party seeking
to introduce the evidence had violated the court's
discovery orders); Fusco v. General Motors Corp., 11 F.3d
259 (1st Cir. 1993) (same); Hagans v. Henry Weber Aircraft
Distributors, Inc., 852 F.2d 60 (3d Cir. 1988) (same);
Wilson v. Bradlees of New England, Inc., 250 F.3d 10 (1st
Cir. 2001) (trial court correctly excluded evidence,
pursuant to Federal Rule 37(c)(1), that should have been
produced earlier pursuant to Federal Rule 26(a));
Stallworth v. E-Z Service Convenience Stores, 199 F.R.D.
366, 368 (M.D. Ala. 2001) (failure to produce evidence was
not ``harmless'' within the meaning of Federal Rule
37(c)(1) even though plaintiff had the opportunity to
respond to the new evidence on sur-reply; ``plaintiff was
prejudiced by having to spend additional time...at the
eleventh hour, analyzing and responding to the material'');
Alberty-Velez v. Corp. De Puerto Ricao Para La Diffusion
Publica, 242 F.3d 418 (1st Cir. 2001) (trial court erred in
allowing evidence at trial bearing upon a fact specified
pursuant to Federal Rule 56(d)); United Mine Workers of
America 1974 v. Pittston Co., 984 F.2d 469 (D.C. Cir.
1993), cert. denied, 509 U.S. 924 (1994) (upholding trial
court's refusal, on a Federal Rule 60(b) motion for
reconsideration of an order granting summary judgment on
liability to plaintiff, to consider evidence which could
have been produced prior to the summary judgment motion);
Stoller v. Marsh, 682 F.2d 971, 981 (D.C. Cir. 1982), cert.
denied, 460 U.S. 1037 (1983) (evidence submitted in support
of a Federal Rule 60(b) motion for reconsideration of the
grant of a motion for summary judgment will only be
considered if the evidence was unavailable before summary
judgment was granted).
31 See Implementation of the Telecommunications Act of
1996, Amendment of Rules Governing Procedures to be
Followed When Formal Complaints Are Filed Against Common
Carriers, Report and Order, 12 FCC Rcd 22497, 22610, ¶ 278
(1997), Order on Reconsideration, 16 FCC Rcd 5681 (2001).
32 47 C.F.R. § 1.106.
33 Verizon Brief at 1, 2.
34 For example, three-quarters of the exhibits appended to
Verizon's Supplemental Complaint are routine reports from
Verizon's equipment vendors regarding the status of
Verizon's orders for the cross-connect machines' equipment
upgrade, see Supplemental Answer Exs. 50-98, or are
internal Verizon documents discussing the status of the
equipment orders. See Supplemental Answer Exs. 7, 8, 14,
15, 18, 19, 20, 23, 24-27, 28, 32-35, 37-39, 42, 45, 48.
These Documents should have been produced, inter alia, in
response to the Commission staff's order that Verizon
produce all documents ``demonstrating that Verizon's
equipment vendors were unable to satisfy Verizon's request
for any type of equipment that delayed Verizon's provision
of interconnection to Core....,'' and all documents
``related to the change of completion date [for completion
of the cross-connect machines' equipment upgrade].''
October 10 Letter Ruling at 4-5.
35 See paragraph 8, supra.
36 Further, we are concerned that Verizon's request that we
allow evidence into the record that is potentially
inconsistent with the factual findings and conclusions of
the Liability Order is at odds with Verizon's admission
that it does not seek to reopen the Liability Order's
ruling and its underlying factual predicates.
37 Response at 7.
38 See Response at 7-8 and the cases cited therein.
39 See, e.g., Sheperd v. ABC, 62 F.3d 1469, 1478 (D.C. Cir.
1995) (stating that the sanction of excluding evidence is
remedial, not punitive); Jankins v. TDC Management Corp.,
21 F.3d 436 (D.C. Cir. 1994) (trial court correctly
excluded evidence pursuant to Federal Rule 37(b)(2) even
though the sanctioned party had not acted in bad faith);
Fusco v. General Motors Corp., 11 F.3d 259 (1st Cir. 1993);
Hagans v. Henry Weber Aircraft Distributors, Inc., 852 F.2d
60 (3d Cir. 1988) (same). See also Wilson v. Bradlees of
New England, Inc., 250 F.3d 10, 18-21 (1st Cir. 2001)
(upholding trial court's excluding evidence pursuant to
Federal Rule 37(c)(1) even though the sanctioned party had
not acted in bad faith); Southern States Rack and Fixture,
Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597-598 (4th
Cir. 2003); Finley v. Marathon Oil Co., 75 F.3d 1225, 1230-
31 (7th Cir. 1996); Yeti by Molly Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); BankAtlantic
v. Blythe Eastman Paine Webber, Inc. 12 F.3d 1045, 1049
(11th Cir.1994); Stallworth v. E-Z Service Convenience
Stores, 199 F.R.D. 366, 368-69 (M.D. Ala. 2001); Carney v.
Kmart Corp., 176 F.R.D. 227, 229 (S.D. W.Va. 1997) (same).