This case has involved myriad discovery disputes, with accusations of misconduct being levied by both sides – some founded; most not. Given the protracted litigation regarding issues relating to the instant motion, a summary of the procedural background is warranted.

This case began on September 30, 2013, with the filing of the original complaint. (ECF No. 1). Motion practice, as well as amendments to the pleadings, delayed the filing of the parties' Joint Case Management Report until August 4, 2014. (ECF No. 77). The parties agreed to make their respective initial disclosures under Rule 26(a)(1) by September 10, 2014. (ECF No. 77, PageID. 1241). The Court's Case Management Order adopted that deadline. (ECF No. 81, PageID. 1265).

Stryker served interrogatories and document requests in September 2014. Ridgeway served his responses and answers to the interrogatories and document requests on October 16 and 21, 2014, respectively. (ECF No. 174-1, PageID. 3602; ECF No. 174-2, PageID. 3615). Included in Stryker's document requests was one seeking “[a]ny and all Documents and/or other materials that You intend to use or offer into evidence at any hearing, deposition or trial in this matter or any related matter, including any documents you may use to support your claims, counterclaims or defenses.” (Req. Prod. No. 24, ECF No. 174-2, PageID. 3613).

On February 25, 2015, Stryker filed a motion to compel responses to its interrogatories and document requests. (ECF No. 174). One of the issues raised in that motion was the question of whether Ridgeway had produced all responsive emails and text messages. (See ECF No. 174, PageID.3581-82). Ridgeway responded by advising the Court that he had produced all responsive emails and other electronically-stored information, noting that he “is unable to produce what he does not have.” (ECF No. 184, PageID. 3840).

On March 17, 2015, the Court conducted a nearly two-hour hearing on Stryker's motion to compel. (Minutes, ECF No. 193). During that hearing, there was a great deal of discussion as to whether Ridgeway had produced all electronically-stored information, and counsel for Stryker introduced evidence of the existence of responsive emails that Ridgeway had not produced. (Hrg. Trans., ECF No. 199, PageID.3978-81). In response to the evidence of unproduced emails, Ridgeway's counsel promised to “dig into it further.” (Id., PageID.4002).

*2 The Court issued an order on March 18, 2015, granting Stryker's motion to compel, which order included a requirement that Ridgeway certify under oath that his answers and responses were accurate and complete. (ECF No. 195, PageID. 3952). The Court held in abeyance that part of the motion concerning the format Ridgeway was to use in producing emails and text messages, pending an evidentiary hearing with Ridgeway's computer consultant. (ECF No. 195, PageID. 3953).

On April 7, 2015, in a rare instance of cooperation, the parties filed a stipulation to resolve the format issue. (ECF No. 210-1). Ridgeway agreed to have his computer consultant deliver to Stryker's forensics analyst “all of the raw data contained within [his] iPhone” for the purpose of searching for text messages and records of phone calls relating to certain individuals. (ECF No. 210-1, PageID.4219-20). The Court adopted the stipulation, and cancelled the evidentiary hearing. (ECF No. 212).

After a hearing on April 10, 2015, the Court determined that Stryker was entitled to recover its reasonable expenses associated with its motion to compel. (ECF No. 213, 214). The Court later awarded Stryker $14,635.00 in attorneys' fees. (Opinion, ECF No. 294; Order, ECF No. 295).

On May 1, 2015, Stryker filed a “rule to show cause” motion asking the Court to sanction Ridgeway for violating the Court's March 18, 2015, compulsion order. (ECF No. 232). This motion challenged again Ridgeway's contention that he had produced all responsive emails and other electronically-stored information. (Id., PageID.4608-09). As an example of emails purportedly withheld or destroyed by Ridgeway, Stryker pointed to a September 26, 2013, email Ridgeway sent to individuals at Our Lady of the Lake Hospital, which included a pricing proposal for “[his] new Biomet products” and a cross reference to Stryker pricing (hereinafter “9/26/13 OLOL email”). (ECF No. 264, PageID.5311 (sealed)).[2] Stryker sought, among other things, an order requiring Ridgeway to turn over “all computers, phones, and email accounts in Ridgeway and Stone Surgical's possession for forensic examination by Stryker's forensic expert.” (Id., PageID.4608).

In response to the show-cause motion, Ridgeway repeated his assertion that he had preserved and produced all electronically-stored information. (ECF No. 251, PageID. 5065). He blamed his email service provider, GoDaddy, for deleting emails pursuant to its retention policy. (Id.). In a supplemental brief, Ridgeway specifically denied possession of the 9/26/13 OLOL email, citing again GoDaddy's purported policy of deleting emails. (ECF No. 277, PageID. 5931). He reiterated his claim that he had produced all emails he had. (Id.).

During the course of multiple briefings and hearings relating to Stryker's show-cause motion, the Court learned that Ridgeway had “a second mobile phone with the phone number 713-299-6466.” (ECF No. 299, PageID. 6532).[3]Ridgeway had not disclosed the existence of the “bat phone,” and he acknowledged its existence only after being questioned about the phone number during his June 26, 2015, deposition. (Id., PageID.6531-32; ECF No. 447-2, PageID.12008-9). In his deposition, Ridgeway testified that he had not used the “bat phone” since Hurricane Katrina (2005). (ECF No. 447-2, PageID. 12008). Ridgeway repeatedly responded “I don't recall” to questions about whether he used the “bat phone” to communicate with Phil Lewis, Lindsey Lawson, Sheldon Green, and B.C. Parker. (Id., PageID.12008). But when asked if he used the “bat phone” to communicate with Lauren Border, he replied: “No. Definitely not.” (Id., PageID.12009).[4] When asked what he did to preserve text messages and emails on the “bat phone,” Ridgeway responded: “I haven't used that cell phone.” (Id.).[5]

*3 After conducting hearings on June 1, 2015, July 14, 2015, and July 24, 2015 (Minutes, ECF No. 271, 309, and 316), the Court granted Stryker's show-cause motion in part, ordering Ridgeway to “produce for forensic examination all computers and other electronic equipment capable of transmitting or retaining Electronically Stored Information (ESI) that are in his possession, custody, or control.” (ECF No. 317, PageID. 6650). The Court also ordered the parties to file “proposed protocols to be followed for the forensic examination to ensure that privileged and non-responsive information is not disclosed to Stryker Corporation.” (Id.). The protocols were approved by the Court on July 31, 2015, which included relevant terms to be used in a keyword search. (Order, ECF No. 321).

On December 16, 2015, Stryker filed a motion for “terminating sanctions” against Ridgeway and Stone Surgical (ECF No. 445), citing “their repeated violations of this Court's orders, Ridgeway's violations of his discovery obligations, and Ridgeway and Stone's lack of candor with the Court.” (ECF No. 447, PageID. 11983). Stryker sought a number of sanctions, including: (a) granting default judgment on Stryker's claims against Ridgeway; (b) dismissing Ridgeway's counterclaims and Stone Surgical's claims against Stryker; (c) awarding Stryker its attorneys' fees and costs incurred in bringing its show-cause motion, the forensic review, and the terminating-sanctions motion; or, in the alternative, (d) barring Ridgeway and Stone Surgical from entering any evidence, argument, or statements at trial of purported damages, along with a negative inference instruction. (ECF No. 445, PageID. 11977).

Stryker reported that the forensic examination of Ridgeway's electronic devices, which included his email accounts, revealed 188,185 documents that were responsive to the keyword search.[6] These documents included: (1) the 9/26/13 OLOL email (which Ridgeway previously, repeatedly denied having in his possession); (2) customer proposals Ridgeway made on Biomet's behalf; (3) a distribution agreement between Ridgeway and Biomet; (4) emails Ridgeway sent himself after Stryker had terminated his employment through which he forwarded Stryker pricing information and customer lists; (5) phone records from Ridgeway's “bat phone” indicating that he used it until December 2, 2013, and that such use included contacts with Stryker employee Sheldon Green; and (6) text messages between Ridgeway and various physicians between November 20, 2012, and November 24, 2013. (ECF No. 447, PageID.11986-87; see also Exhibits 4-16, ECF No. 447-6, 448-1, 449-1, 450-1 through 450-5, 451-1, 452-1, 453-1, 454-1, 455-1, 456-1, and 457-1 through 457-5).

Stryker submitted a declaration from its analyst who conducted the forensic examination of Ridgeway's electronic devices, including his internet-based email accounts. (Kelley Decl., ECF No. 447-17, PageID.12042-43). The analyst testified that he recovered 188,185 documents using keyword search terms under the Court-approved protocols. (Id., PageID.12044). He testified that the documents he recovered from Ridgeway's “bat phone,” which Ridgeway testified he had not used since 2005, contained call logs indicating the phone had been used during the period July 29, 2013, through December 2, 2013. (Id., PageID.12044-45). The recipients of these calls included Sheldon Green, Bria Papia, Leigh Sunshine, and Lindsey Lawson. (Id., PageID.12045). The analyst noted that he found 91 text messages between Ridgeway and Sheldon Green on the “bat phone.” (Id.).

The analyst testified that all of the emails he recovered from Ridgeway's electronic devices were from “active files,” meaning Ridgeway could have retrieved them himself. (Id.). These emails included the 9/26/13 OLOL email, along with a number of other emails that were sent between September 22, 2013, and October 1, 2013, at least five of which had Stryker information or documents attached.[7] (Id., PageID.12046-47). The analyst specifically “verified” that none of these emails had been deleted from Ridgeway's active email account. (Id.).

*4 Ridgeway responded to Stryker's motion for terminating sanctions, arguing that its complaints were inaccurate in that Ridgeway had produced at least some of the documents in question; that, to the extent there were discovery violations, they were inconsequential; and that Stryker suffered no prejudice as a result of any discovery violation. (ECF No. 481, PageID.13032-37). Ridgeway specifically argued, for example, that, because Stryker had obtained the 9/26/13 OLOL email through a third-party subpoena, it suffered no prejudice as a result of his failure to produce it. (Id., PageID.13032). He also asserted that his production of other emails to the hospital demonstrated a lack of willfulness on his part. (Id., PageID.13032). Ridgeway denied having ever “openly or willfully refused an Order.” (Id., PageID.13037).

The Court granted Stryker's motion for sanctions in part and denied it in part, ordering Ridgeway to pay Stryker's reasonable attorneys' fees and expenses associated with the show-cause motion and hearing, the forensic examination of Ridgeway's electronic devices, and the sanctions motion. (Order, ECF No. 641, PageID. 15449). In imposing these sanctions under Rule 37(b)(2)(C), the Court found that Ridgeway had violated both his discovery obligations and the Court's March 18, 2015, compulsion order. (Id.). The Court also found that Ridgeway “engaged in bad faith conduct that resulted in prejudice to Stryker.” (Id.). The Court set out the factual findings supporting these conclusions in its oral opinion issued from the bench. (See Transcript, ECF No. 649, PageID.15580-92).

The legal standards for assessing this motion are fairly straightforward.

The initial disclosure provisions of Rule 26(a) require a party to disclose documents that the party “may use to support its claims or defenses, unless the use would be solely for impeachment.” FED. R. CIV. P. 26(a)(1)(A). The initial disclosures must be made regardless of whether the opposing party requests them. See id. Rule 26(e) imposes a burden on each party to supplement or correct an initial disclosure or discovery response if the party learns that the previous disclosure or response was materially incomplete or inaccurate. FED. R. CIV. P. 26(e)(1).

A party who violates his discovery obligations under Rules 26(a) and (e) is subject to the sanctions of Rule 37(c). That rule provides, in pertinent part: “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence ... at a trial, unless the failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). The burden is on the non-producing party to prove harmlessness or substantial justification. See R.C. Olmstead, Inc. v. CU Interface LLC, 606 F.3d 262, 271-72 (6th Cir. 2010); Roberts, 325 F.3d at 782; see also Salgado v. General Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998) (Noting that “the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.”).

Ridgeway argues at the outset that Stryker's motion is untimely. He points to the Amended Case Management Order, which established the date for the submission of the proposed Final Pretrial Order as the deadline for filing motions in limine. (ECF No. 674, PageID. 16343). Ridgeway reasons that, because January 27, 2016, was the deadline for filing the proposed Final Pretrial Order – and, in fact, the date the parties filed it – Stryker is precluded from filing the instant motion. (Id.).

Ridgeway's argument elevates form over substance. While it is true that the case management order is intended to provide an orderly structure for the litigation of this case – from discovery to trial – it is not intended to create an arbitrary bar to raising objections to proposed trial evidence. The trial evidence to which Stryker is now objecting was not made known until the proposed Final Pretrial Order was prepared. (See Proposed Pretrial Order, ECF 602-2 (Ridgeway/Stone Surgical's proposed trial exhibit list)).

*5 Ridgeway's argument ignores the fact that Stryker previously, and timely, filed a motion in limine to exclude all of Ridgeway and Stone Surgical's trial exhibits that were not disclosed in discovery. (See ECF No. 556). Ridgeway opposed the motion, noting that Stryker had not identified the specific items of evidence it sought to exclude. (See ECF No. 613). The Court agreed, and denied the motion as over broad: “Without knowing which specific items of evidence Stryker argues will hinder its ability to prepare for trial, the Court is not able to determine whether the evidence should be excluded pursuant to Federal Rule of Civil Procedure 37(c)(1)....” (Order, ECF No. 643, PageID. 15454). Now that Stryker is able to identify the specific trial exhibits it believes should be subject to exclusion – that which it could not have known prior to the filing of the pretrial order – Ridgeway argues it is too late.

Having violated his discovery obligations, as well as a compulsion order of this Court, Ridgeway now relies on a hyper-technical application of the provisions of the case management order. In doing so, he comes with unclean hands, and his argument is unfounded.

Stryker lists 25 of Ridgeway's proposed trial exhibits that were not identified in Ridgeway's Rule 26(a) disclosures and were produced during discovery. (ECF No. 664-1). With respect to Ridgeway's discovery obligation, Stryker points to its September 5, 2014, document request in which it sought: “Any and all Documents and/or other materials that You intend to use or offer into evidence at any hearing, deposition or trial in this matter or any related matter, including any documents you may use to support your claims, counterclaims or defenses.” (ECF No. 556-3, PageID. 14350).

Ridgeway does not challenge Stryker's assertion that he failed to identify the documents in his Rule 26(a) disclosures and that he failed to produce them in his response to the September 5, 2014 document request. Instead, Ridgeway attempts to avoid the Rule 37(c) sanctions by asserting that the documents “were all disclosed to Stryker when it received [his] electronic devices ... following a discovery order from this Court.” (ECF No. 674, PageID. 16342). This argument is baseless.

Ridgeway did produce his electronic devices for forensic analysis, but only because the Court ordered it as a sanction for his continued failure to comply with his discovery obligations and for his failure to comply with the Court's compulsion order. (See Order, ECF No. 317, PageID.6650). Ridgeway vigorously opposed Stryker's efforts to conduct that forensic analysis in written submissions (see ECF No. 251, 269, 277) and in two hearings. (See Minutes of June 1, 2015 Hearing, ECF No. 271; Minutes of July 14, 2015 Hearing, ECF No. 309). By the time the forensic analysis was done, the discovery deadline had passed.[8]

Moreover, Ridgeway ignores the fact that he failed to identify the documents in question as potential trial exhibits. These documents were not identified in his Rule 26(a) disclosures, nor were they listed as responsive to Stryker's September 5, 2014, document request.

Ridgeway offers nothing to suggest that his non-disclosure of the 25 documents he now seeks to use at trial was substantially justified. To the contrary, this Court has already found that Ridgeway engaged in bad faith with respect to his discovery obligations. This conclusion was based on a number of facts, not all of which can or need be repeated here. Ridgeway failed to disclose the existence of his “bat phone.” He only acknowledged the phone when he was confronted with the fact that Stryker had already obtained the phone number. Even then, he claimed that he had not used the “bat phone” since Hurricane Katrina in 2005. The forensic examination of the “bat phone” revealed that he had used the phone as late as December 2013.

*6 Giving Ridgeway the benefit of the doubt that he had forgotten about his use of the “bat phone” in 2013, he certainly was reminded of it in his deposition. Ridgeway was specifically asked if he had sent a text message to Phil Lewis on September 30th, 2013, which stated: “Just got a call from rep that word on street is I'm not getting spine!” (ECF No. 447-2, PageID. 12008). Ridgeway answered that he did not recall. (Id.). He was immediately thereafter asked about the “bat phone” number, to which he responded that he had not used it “since Katrina.” (Id.). Ridgeway was then asked a series of questions regarding whether he used the “bat phone” to communicate with a number of individuals involved in this lawsuit (Phil Lewis, Lindsey Lawson, Sheldon Green, B.C. Parker, and Lauren Border).[9](Id., PageID.12008-09). Ridgeway was also asked if he had used the “bat phone” to conduct business for Stone Surgical and Renaissance RX, to which he responded that he did not recall. (Id., PageID.12009).

This line of questioning certainly should have put Ridgeway on notice that there was a reasonable probability that his “bat phone” contained discoverable information. He apparently ignored that notice, and he failed to search any of the active files on the phone. That job was left to Stryker's forensic analyst after the Court ordered Ridgeway to turn over his electronic devices, including the “bat phone.”

Ridgeway repeatedly denied possession of the 9/26/13 OLOL email, and he blamed GoDaddy for having deleted that and other emails. Even after the motion to compel, in which this email was discussed at some length, he claimed not to have possession of it, and he certified that he had produced all the responsive documents. The later forensic search of his email accounts revealed this email, along with others, in his “active” files, meaning he could have found it if he had looked. Another example is Ridgeway's September 30, 2013, email in connection with which he sent Biomet pricing proposals to West Jefferson hospital. (ECF No. 451-1 (sealed)). While Ridgeway produced the email itself in discovery, he failed to produce the 139 pages of attachments, which included pricing proposals and product request forms. (See ECF No. 451-1 and 452-1 (a copy of the email with attachments (sealed)); Hrg. Trans., ECF No. 649, PageID.15565, 15567, 15576-77, 15586).

As the Court previously noted, giving Ridgeway the benefit of the doubt, he was “grossly negligent in his approach to his discovery obligations.” (Hrg. Trans., ECF No. 649, PageID.15588-89). Under these circumstances, it cannot be said that he was substantially justified in failing to search for, and to produce, the challenged trial exhibits before the Court ordered the forensic examination.

With respect to the issue of harmlessness, Ridgeway attempts to shift the burden to Stryker by arguing that Stryker “has not demonstrated how it could possibly be prejudiced by its own emails and texts.” (See Ridgeway Resp. at 4-6, ECF No. 674, PageID.16345-47). This argument is a non-starter. Ridgeway has the burden of demonstrating that his failure to disclose these documents resulted in no harm to Stryker, see R.C. Olmstead, Inc., 606 F.3d at 271-72; Roberts, 325 F.3d at 782; it is not Stryker's burden to prove that it has been prejudiced by the non-disclosure.

Moreover, the mere fact that the documents were contained somewhere in Stryker's computer files does not prove that Stryker has not been harmed. Stryker is not expected to conduct an exhaustive search of its electronically-stored information and then speculate as to which documents Ridgeway may choose to use to support his claims or defenses.

*7 While Ridgeway correctly notes that Stryker has failed to identify any relevant document request directed to his company, Stone Surgical,[10] this fact, in and of itself, does not protect Stone Surgical from Rule 37(c)(1) sanctions. Those sanctions are available against a party that has failed to comply with either its initial disclosure obligations under Rule 26(a) or its duty to supplement those disclosures. See FED. R. CIV. P. 37(a)(1). Rule 26(a) requires a party to provide, “without awaiting a discovery request, ... a copy – or a description by category and location – of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” FED. R. CIV. P. 26(a)(1)(A)(ii). Rule 26(e) obligates the party to supplement its initial disclosures “in a timely manner” if the party learns that its initial disclosures were incomplete in some material respect. FED. R. CIV. P. 26(e)(1).

To the extent Stone Surgical seeks to introduce any of the challenged trial exhibits in support of a claim or defense, which was not produced under its obligations under Rules 26(a) and (e), it is properly subject to Rule 37(c)'s preclusive sanction. Like Ridgeway, Stone Surgical is not precluded from using these exhibits “solely” for impeachment. See Section F, infra.

Ridgeway suggests that Stryker is estopped from obtaining the relief it now seeks by virtue of the fact that the Court denied the similar request Stryker made in its December 15, 2015, motion for “terminating sanctions.” (Ridgeway Resp. at 6-7, ECF No. 674, PageID.16347-48). Ridgeway misperceives the legal standards for the respective motions.

Stryker's motion for “terminating sanctions” was brought under the auspices of Rule 37(b), which provides sanctions for violating a court's discovery order. (See ECF No. 447, PageID.11988). The instant motion, however, is brought under Rule 37(c), which provides sanctions for violations of Ridgeway's disclosure obligations under Rules 26(a) and (e). (See Stryker Brief at 3, ECF No. 664, PageID.16202).

Unlike Rule 37(b), which allows the Court broad discretion regarding the imposition of sanctions, Rule 37(c) provides an explicit mandate: “If a party fails to provide information ... as required by Rule 26(a) or (e), the party is not allowed to use that information ... to supply evidence ... at a trial, unless the failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1) (emphasis supplied); see also Roberts v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003) (“Federal Rule of Civil Procedure 37(c)(1) requires absolute compliance with Rule 26(a), that is, it ‘mandates that a trial court punish a party for discovery violations in connection with Rule 26 unless the violation was harmless or is substantially justified.’ ”) (quoting Vance v. United States, No. 98–5488, 1999 WL 455435, at *3 (6th Cir. June 25, 1999)).

Having failed to satisfy his burden of demonstrating either substantial justification or harmlessness, Ridgeway must be precluded from using the non-disclosed trial exhibits to support his claims or defenses.

Ridgeway contends that, notwithstanding his discovery violations, he may use the non-disclosed documents for purposes of impeachment. (Ridgeway Resp. at 4-6, ECF No. 674, PageID.16345-47). He is correct in that regard. See FED. R. CIV. P. 26(a)(1)(A) (exempting from the disclosure requirement those documents that will be used “solely for impeachment”).

Ridgeway's interpretation of “impeachment” is flawed, however. He suggests, for example, that he can use the non-disclosed documents to prove “that Stryker did indeed negotiate changes to non-compete agreements,” and to prove that “products at Our Lady of the Lake Hospital were ‘consignment sets' in direct contradiction of claims by Stryker that the Hospital owned these products.” (Ridgeway Resp. at 5, PageID. 16346). Ridgeway has cited no legal authority for this highly-expansive view of impeachment evidence; nor could he.

*8 It is well-established that impeachment evidence is that offered to discredit a particular witness by bringing forth reasons why the jury should not put faith in the witness's testimony. See Toliver v. JBS Plainwell, Inc., No. 1:11-cv-302, 2014 WL 359494, *3 (W.D. Mich. Feb. 3, 2014) (citing Friedman v. Rehal, 618 F.3d 142, 153 (2d Cir. 2010) (citing Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993))). “Evidence treatises identify a number of general types of impeachment evidence, including impeachment for bias, impeachment based on mental incapacity or an inability to observe, remember or narrate, impeachment by contradiction, impeachment based on prior inconsistent statements, and impeachment based on character for truthfulness.” Toliver, 2014 WL 359494 at *3 (citing 4 WEINSTEIN'S FEDERAL EVIDENCE §§ 607.04–607.08 (2d ed. 2004)). “The unifying feature of impeachment evidence is its focus on the credibility of the witness herself. By contrast, substantive evidence is that which is offered to establish the truth of a matter to be determined by the trier of fact.” Id. (citing Chiasson, 988 F.2d at 517).

Ridgeway's intended “impeachment” use of the documents can more accurately be described as “rebuttal” evidence. “Impeachment is an attack on the credibility of a witness, whereas rebuttal testimony is offered to explain, repel, counteract, or disprove evidence of the adverse party.” Sterkel v. Fruehauf Corp., 975 F.2d 528, 532 (8th Cir. 1992).

Ridgeway can use the non-disclosed documents for impeachment only. See FED. R. CIV. P. 26(a)(1)(A). Courts construing the scope of Rule 26(a)(1)(A)'s impeachment exception have labeled it “narrow.” See, e.g., F.T.C. v. Nat'l Urological Grp., 645 F. Supp.2d 1167, 1180 (N.D. Ga. 2008). “[E]vidence that serves both impeachment and substantive purposes falls outside [this] exceptions.” Hicks v. United States, 85 Fed. Cl. 634, 635 (2009). If a document has some impeachment value, but also has independent relevance to the merits of the case, it is not being used “solely” for impeachment. See Klonski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998) (Impeachment evidence that is in part substantive did not fall under the “solely for impeachment” exceptions of Rule 26(a).); Wilson v. AM Gen. Corp., 167 F.3d 1114, 1122 (7th Cir. 1999) (Undisclosed witnesses possessing substantive knowledge of a party's defenses were not “solely for impeachment” and should have been disclosed under Rule 26.).

For the foregoing reasons, Stryker's motion to exclude trial exhibits that were not disclosed in discovery (ECF No. 661) is GRANTED in part and DENIED in part. Accordingly,

IT IS ORDERED that Stryker's motion is GRANTED in that Ridgeway and Stone Surgical are precluded from using the documents identified in Exhibit 1 to Stryker's motion (ECF No. 664-1), which is attached hereto, to support their claims or defenses at trial.

IT IS FURTHER ORDERED that Stryker's motion is DENIED to the extent Ridgeway and Stone Surgical use the documents “solely” for impeachment, as that term has been explained in this Memorandum Opinion and Order.

IT IS SO ORDERED.

Date: February 16, 2016.

Docket entries in this Order refer to those in Case No. 13-cv-1066.

Stryker obtained a copy of this email through a third-party subpoena to Our Lady of the Lake Hospital. (See ECF No. 447, PageID.11985).

Ridgeway referred to this cell phone as the “bat phone.” (See Hrg. Trans., ECF 649, PageID.15504; Kelley Decl., ECF No. 447-17, PageID.12044). For simplicity and clarity this memorandum opinion will hereinafter refer it as the “bat phone.”

Phil Lewis, Lindsey Lawson, Sheldon Green, B.C. Parker, and Lauren Border have each been designated as trial witnesses in this case. See Note 9, infra.

As a result of the late discovery of Ridgeway's “bat phone,” the Court extended the discovery deadline to allow Stryker to subpoena the Verizon Wireless records relating to that phone number. (ECF No. 332, PageID.6977-78).

It is unknown how many of these documents were responsive to discovery requests.

Stryker terminated Ridgeway's employment on September 10, 2013. (Complaint, ECF No. 1, PageID.4).

Discovery closed July 1, 2015. (Amended Case Management Order, ECF No. 206, PageID. 4200). The Court's order requiring Ridgeway to produce his computer and other electronic equipment for forensic examination issued on July 24, 2015. (ECF No. 317). The forensic examination was further delayed by the need to enter an order regarding the protocols for conducting the examination. (See ECF No. 321 (order issued July 31, 2015)).

Each of these individuals have been deposed in this case, and parts of the testimony of each have been designated for potential use at trial. (See ECF No. 602-9, PageID.15101, 15121, 15123, 15125; ECF No. 602-10, PageID.15153, 15158, 15181; ECF No. 602-11, PageID.15190).

Ridgeway has acknowledged that Stone Surgical is “solely owned” by him and does not file separate tax returns. (ECF No. 447-1, PageID. 12000).