Contract analysis

I. Introduction and Procedural Context This letter is submitted by Calderwood & Harkness LLP on behalf of Respondent Whitmore Aerospace LLC ("WAL" or "Respondent") in ICC Case No. 27914/MHM. The purpose of this submission is to set forth Respondent's objections to certain document production requests served by Claimant Kestrel Dynamics GmbH ("Kestrel" or "Claimant"), through its counsel Haber Reinhardt Schlosser Part

II. General Principles Governing Document Production Before turning to Respondent's specific objections, Respondent respectfully sets out the general principles that, in Respondent's submission, should guide the Tribunal's resolution of any disputes regarding document production. Respondent acknowledges the Tribunal's authority to order document production under Article 25(5) of the ICC Rules of Arbitration (2021 edi

III. Objection to Claimant's Request No. 3: WAL's Negotiations and Correspondence with Valkyr Precision Components Inc. A. Description of the Request Claimant's Request No. 3 seeks the production of: "[A]ll documents, correspondence, communications, drafts, term sheets, proposals, and agreements between Whitmore Aerospace LLC and Valkyr Precision Components Inc. relating to the supply of titanium alloy turbine housin

1. Overbreadth and Lack of Specificity. Respondent objects to Request No. 3 on the ground that it is facially overbroad and lacks the specificity required under the IBA Rules and the Tribunal's procedural orders. The request seeks "all documents" without any meaningful temporal limitation, substantive limitation, or relevance to the specific issues in dispute. This is precisely the type of wide-ranging, exploratory r

2. Irrelevance to the Issues in Dispute. Respondent further objects to Request No. 3 on the ground that the documents sought are not relevant to, and not material to the outcome of, the issues in dispute. As defined in the Terms of Reference signed by the Parties on January 30, 2023, and as further elaborated in Procedural Order No. 1, the central issues in this arbitration are: (a) Whether the fourteen rejected lots

3. Proportionality and Burden. Even if the Tribunal were to find some marginal relevance in certain categories of documents encompassed by Request No. 3 — which Respondent does not concede — the burden of producing the full scope of requested documents would be grossly disproportionate. Production of the entirety of WAL's commercial correspondence, technical exchange, and pricing negotiations with Valkyr would requir

IV. Objection to Claimant's Request No. 5: Internal WAL Communications Regarding Supplier Diversification Strategy A. Description of the Request Claimant's Request No. 5 seeks the production of: "[A]ll internal communications, memoranda, reports, board materials, presentations, and strategy documents of Whitmore Aerospace LLC relating to supplier diversification, sole-source risk, or any plan or strategy to reduce re

1. Attorney-Client Privilege. WAL's supplier diversification considerations necessarily involved consultation with its in-house legal counsel, Dana Prescott, Vice President and General Counsel. Ms. Prescott is a member of the New York State Bar and serves as the senior legal officer of WAL. In that capacity, Ms. Prescott was involved in strategic supply-chain decisions from a legal-risk perspective, including the ass

2. Work Product Doctrine. In addition to the attorney-client privilege, the work product doctrine provides an independent basis for withholding documents responsive to Request No. 5. Following the emergence of quality issues with Kestrel's Products in early 2022 — beginning with the rejection of Lot KDG-2022-0307 on March 7, 2022 — WAL's in-house and external legal teams prepared analyses, assessments, memoranda, and

3. Irrelevance and Overbreadth. Even setting aside the dispositive privilege and work product objections, Request No. 5 should be denied on the independent grounds of irrelevance and overbreadth. WAL's internal strategic considerations regarding supply-chain management, including any assessments of sole-source risk or supplier diversification opportunities, are ordinary business decisions of the type that any sophist

V. Objection to Claimant's Request No. 7: WAL's Communications with Veltrano National Bank, N.A. Regarding Covenant Compliance A. Description of the Request Claimant's Request No. 7 seeks the production of: "[A]ll communications between Whitmore Aerospace LLC and Veltrano National Bank, N.A. concerning the impact of the Kestrel Dynamics GmbH arbitration or the termination of the Master Supply Agreement on WAL's finan

1. Irrelevance. Respondent objects to Request No. 7 on the ground that the documents sought are wholly irrelevant to the issues before the Tribunal. WAL's banking relationship, its financial covenant compliance, and its borrowing capacity under its credit facility with Veltrano National Bank, N.A. are matters entirely external to the contractual relationship between WAL and Kestrel and have no bearing on any issue th

2. Confidentiality. Respondent further objects to Request No. 7 on the ground that the documents sought contain commercially sensitive and confidential financial information regarding WAL's credit facility, financial covenants, borrowing capacity, and overall financial condition. WAL's communications with Veltrano National Bank, N.A. are subject to confidentiality obligations under the credit agreement and contain pr

VI. Objection to Claimant's Request No. 9: WAL's Internal Quality Control Procedures Beyond WAL-QCP-100 A. Description of the Request Claimant's Request No. 9 seeks the production of: "[A]ll quality control procedures, guidelines, protocols, and internal memoranda applied by Whitmore Aerospace LLC to incoming inspection of titanium alloy turbine housings, including any procedures or standards applied in addition to o

1. Partial Compliance / No Additional Standards Exist. Respondent has already produced, in connection with the filing of its Answer and Counterclaim on December 12, 2022, and in its initial voluntary production on February 28, 2023, the complete set of quality control procedures and engineering specifications applicable to the Products under the MSA. Specifically, Respondent has produced: (a) WAL-QCP-100 — WAL's Mast

2. Overbreadth. To the extent Claimant's Request No. 9 seeks WAL's internal quality procedures applicable to products other than the titanium alloy turbine housings supplied by Kestrel under the MSA, the request is overbroad and seeks documents that are plainly irrelevant to this dispute. WAL manufactures and procures a wide range of aerospace components for use in its products, each subject to its own set of quality

VII. Summary of Respondent's Positions For the Tribunal's convenience, Respondent's positions on the four contested requests are summarized in the following table: Respondent reiterates that it does not object to Claimant's remaining requests (Request Nos. 1, 2, 4, 6, and 8) and will produce responsive, non-privileged documents in accordance with the schedule established by the Tribunal.

VIII. Reservation of Rights Respondent expressly reserves all rights and defenses in this arbitration, including but not limited to: (a) The right to raise additional privilege objections if Claimant's document production requests are modified, supplemented, or expanded at any stage of the proceedings; (b) The right to supplement the objections set forth herein if additional grounds for objection come to Respondent's