**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | File No. EB-01-MD-007        |
|                                  | * |                              |
| Core Communications, Inc.,       | ) |                              |
|                                  | * |                              |
| Complainant,                     | * |                              |
|                                  |   |                              |
| v\.                              | * |                              |
|                                  | * |                              |
| 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 Act[^3] 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]{.underline} 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]{.underline} 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 (11^th^ 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 (5^th^ 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 (1^st^ 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 (1^st^ 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 (1^st^ 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, s*ee* 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 (1^st^
    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 (1^st^ 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 (4^th^ Cir. 2003); *Finley v. Marathon Oil
    Co.*, 75 F.3d 1225, 1230-31 (7^th^ Cir. 1996); *Yeti by Molly Ltd.
    v. Deckers Outdoor Corp.*, 259 F.3d 1101, 1106 (9^th^ Cir. 2001);
    *BankAtlantic v. Blythe Eastman Paine Webber, Inc.* 12 F.3d 1045,
    1049 (11^th^ 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).