Dixon's current motion follows a string of issues and failures by Austinville with document production; which are set forth in three prior court orders. See Dkt. Nos. 110, 123, 136. Specifically, in September 2017, Dixon filed a motion to compel after it discovered responsive documents that Austinville failed to produce through a Freedom of Information Act request to the Virginia Department of Mines, Minerals, and Energy. I granted Dixon's motion to compel and allowed it to re-open the deposition of Austinville's corporate designee, Kevin Mann. I also permitted Dixon's expert to supplement his report, and required that Austinville certify under oath “that it has conducted a complete search, including the electronically stored documents of the corporation and any personal e-mail accounts and has produced all documents responsive to any propounded discovery request.” Dkt. No. 110. Dixon also requested sanctions, including a finding that Austinville engaged in inequitable conduct during discovery. I denied Dixon's motion for sanctions by separate order, holding that a specific finding of fact that Austinville engaged in inequitable conduct during discovery was not appropriate. Dkt. No. 123. In particular, I found that Austinville represented that its failure to produce certain documents in discovery was inadvertent; and further, that the relief allowed appropriately addressed any harm caused by the failure to disclose documents. Id. In response to my order, Austinville produced approximately 11,000 additional documents. Dkt. No. 140-6. On September 22, 2017, Mr. Mann filed an affidavit certifying that he conducted a complete search of Austinville's electronic and stored paper records responsive to Dixon's requests for production of documents and produced all responsive documents in the possession or control of Austinville. Dkt. No. 118-1.

Mr. Mann's reopened corporate deposition took place on October 10, 2017. During the deposition, Mr. Mann testified that he did not make a specific effort to review the documents of Austinville's corporate predecessor,[1]referred to as Austinville Limestone Company 1 (“ALC-1”), which Austinville purchased in 1996. Dkt. No. 140 at 6–7. Mr. Mann stated that he did not search for documents that might have been in the possession of ALC-1, and took no steps to find out what documents might be in the possession of ALC-1. Dkt. No. 140-1 at 9–10. Austinville designated Mann to address all of the topics listed in Dixon's Rule 30(b)(6) notice of deposition, including Topic No. 14—sales and accounting records of sales of limestone tailings extracted from the Austin Meadows and Bunker Hill tailings piles since 1993. Dkt. No. 131-1 at 6. The deposition included multiple questions relating to sales of Bunker Hill tailings over the past 20 years, which Mann answered based only upon records from 1996 forward. Following the deposition, Mr. Mann searched for and found an archived electronic record containing documents reflecting Bunker Hill tailings sales from 1983 through 1993. Mr. Mann determined that his testimony during the corporate deposition had been “inaccurate insofar as it indicated that [Austinville] did not have Bunker Hill tailings sales records for the period prior to 1996.” Dkt. No. 131-2. Mr. Mann was further concerned that in his deposition he had “included the corrupted Bunker Hill tailings sales for years 1996 to 2000 in his calculation of the twenty year annual average of Bunker Hill and Austin Meadows tailings sales.” Dkt. No. 131.

*2 After this discovery, Austinville filed a motion seeking to reopen the second corporate deposition of Mr. Mann, so he could correct the testimony he “later deemed to be inaccurate.” Dkt. No. 130. I denied Austinville's motion, finding that the deposition testimony could be corrected through the errata sheet more quickly and cost-effectively than re-opening the deposition weeks before trial. Dkt. No. 136.

Dixon now asks the court to prohibit Austinville from introducing the recently discovered documents dated before 1996, which were only sought and discovered by Austinville after Mr. Mann's second corporate deposition. This remedy is permitted under Rule 37:

Fed. R. Civ. P. 37(b)(2)(A)(ii). Further, Rule 37(c)(1) provides, “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

In response, Austinville asserts that the recently discovered documents are records of Austinville, not of ALC-1, and that ALC-1 records have never been in Austinville's possession or control. Dkt. No. 148 at 8. Austinville further argues that Dixon did not request documents relating to Bunker Hill tailings in discovery, and therefore, its failure to produce these records did not violate the Court's order or render Mr. Mann's certification under oath false or misleading. Dkt. No. 148 at 1–2. Specifically, Austinville refers to Dixon's Request for Production No. 18, which requests “[a]ll documents related to or reflecting the tonnage of tailings on the Austin Meadows site prepared by ALC or prepared by others for ALC.” Dkt. No. 131-4 at 6. However, Austinville does not address the fact that Bunker Hill tailings records were designated as a topic for Austinville's court-ordered second corporate deposition (See Dkt. No. 140-8), and “the organization isexpected to create a witness or witnesses with responsive knowledge” to designated deposition topics. Wilson v. Lakner, 228 F.R.D. 524, 528 (D. Md. 2005) (emphasis in original). “There can be no question that [Rule 30(b)(6) ] imposes a duty to prepare the designee that goes beyond matters personally known to the designee or to matters in which that designee was personally involved.” Id. (internal quotations omitted). The rule requires “a good faith effort on the party of the designate to find out the relevant facts—to collect information, review documents, and interview employees with personal knowledge just as a corporate party is expected to do in answering interrogatories.” Id. at 528–29.

Austinville's explanation for Mr. Mann's discovery of relevant documents after the deposition is that “in searching for any possible alternative, uncorrupted records of tailing sales for the years 1996 to 2000, [Mr. Mann] had discovered a one-page, archived electronic record created in 2008 that reflected Bunker Hill tailings sales for the period from 1983 through the first eleven months of 2008 and that also included accurate records for the years 1996 to 2000.” Dkt. No. 148 at 6. Austinville has no explanation for why Mr. Mann did not search for such alternative, uncorrupted records of tailings sales before the deposition. The documents discovered were directly relevant to a topic of the second corporate deposition, and in fact, rendered Mr. Mann's testimony during that deposition inaccurate.

*3 Austinville's argument that these records were not responsive to Dixon's requests for production does not absolve it of wrongdoing. Austinville did not review these records, determine that they were not responsive to discovery and make a conscious decision not to produce them. Rather, Austinville did not search for these records until after its second corporate deposition. This is simply another example of Austinville's failure to make a full and complete search for relevant documents and records in this case.

In Southern States Rack and Fixture, Inc. v. Sherwin Williams, 318 F.3d 592 (4th Cir. 2003), the Fourth Circuit identified a five-factor test to guide trial courts in determining appropriate sanctions to impose under Rule 37: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the discovery; and (5) the explanation of the non-disclosing party for its failure to provide the discovery. Id. at 597. Each of these factors militates in favor of imposing Rule 37(b)(2) sanctions against Austinville.

First, Dixon was undoubtedly surprised by Austinville's discovery of additional relevant documents after two depositions of Austinville's corporate designee and Austinville's certification that all responsive documents had been produced. Second, there is no effective way to cure the surprise, as the documents have been disclosed less than three weeks before trial. Thus, allowing Austinville to introduce or otherwise use the documents could substantially disrupt the trial. Finally, the documents are relevant to the claims and issues in this case, and Austinville's explanation for its failure to search for and locate these documents earlier is insufficient. If Austinville had made a full attempt to review all relevant documents relating to this case, its corporate representative would have had information regarding Bunker Hill tailings prior to 1996, which was requested as a topic in the Rule 30(b)(6) notice, and would have prevented Mr. Mann from giving inaccurate testimony in his second corporate deposition. Further, based upon the deposition testimony of Mr. Mann, Austinville did not contact the records custodian for ALC-1 and did not make any effort to locate or review the files of ALC-1 prior to either corporate deposition. Mr. Mann testified that he did not look for ALC-1 records because he did not deem them to be important. Yet, Mr. Mann certified that he completed a full search and production of documents responsive to discovery. This is simply inconsistent with Mr. Mann's fundamental obligation as a Rule 30(b)(6) witness to conduct a full search and produce documents responsive to the deposition topics. It also is inconsistent with Austinsville's responsibilities in discovery to produce the documents requested or adequately identify documents it withholds. Austinville has failed in this basic duty despite multiple opportunities comply with its discovery obligations. The failure of Austinville to look for all responsive documents as required in discovery and as ordered by the Court warrants sanctions at this time.

Accordingly, Dixon's Motion in Limine to Preclude Austinville's Use of Certain Corporate Records (Dkt. No. 140) is GRANTED, and Austinville is precluded from introducing the recently discovered documents dated prior to 1996 at trial.