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                         Before the
              Federal Communications Commission
                   Washington, D.C. 20554


In the Matter of                  )
                                 )
Core Communications, Inc.,        )
                                 )
      Complainant,                )
                                 )
                v.                )   File No. EB-01-MD-007
                                 )
Verizon Maryland Inc.,            )
                                 )
       Defendant.                 )
                                 )



                            ORDER 


Adopted:  February 2, 2004              Released:   February 
3, 2004

By the Chief, Enforcement Bureau:

I.   INTRODUCTION

     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. 

II.        BACKGROUND

     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 
Documents.15

     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 
produced:

         ``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 
proceeding.28 

III.      DISCUSSION

     A.        The Commission May Exclude Documents That 
     Should Have Been Produced During the Liability Phase of 
     this Case.
 
     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 
liability phase.

     B.        Allowing the Documents into the Record Now 
     will Prejudice Core, Waste                   Commission 
     Resources, and Undermine the Integrity of this 
     Proceeding.

     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 
produced.    

     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 
finely.36  

     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



                                                       David 
H. Solomon
                                                      Chief, 
     Enforcement Bureau

_________________________

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 
themselves. 

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. 
pending.

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 
Ruling'').

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'').

12 Id.

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, 
 41-44.

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 
documents). 

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).