Contract analysis

I. INTRODUCTION AND BACKGROUND This Proposed discovery Plan and Scheduling Order (the "Plan") is submitted pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and Local Civil Rule 16 of the United States District Court for the Eastern District of Virginia. The Plan is prepared by counsel for Defendants Northgate Telecommunications PLC and Northgate Networks America Inc. in anticipation of the lifting of th

II. PROPOSED SCHEDULE OVERVIEW The following master timeline sets forth the principal milestones for this action. All deadlines are expressed in calendar days from Day 0, which is defined as the date on which the Court enters an order lifting the stay imposed by the March 14, 2023 Order (Dkt. 47). The parties recognize that these dates are proposed and subject to modification by the Court. To the extent any deadline

III. RENEWED MOTION TO DISMISS A. Defendants' Intent to Renew Defendants intend to refile their Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) within forty-five (45) days of the lifting of the stay. The Court's March 14, 2023 Order expressly denied the original Motion to Dismiss without prejudice, with leave to renew following the lifting of the stay. Defendants' renewed motion will be updated to ac

IV. INITIAL DISCLOSURES UNDER FRCP 26(a)(1) Initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) shall be exchanged within thirty (30) days of the lifting of the stay, as set forth in Section II above. The following sets forth the anticipated scope and content of each party's initial disclosures, to the extent presently known. A. Defendants' Anticipated Initial Disclosures

1. Individuals Likely to Have discoverable Information (FRCP 26(a)(1)(A)(i)). Defendants anticipate identifying the following individuals, among others, as persons likely to have discoverable information that Defendants may use to support their claims or defenses: (a) Diane Okoro, U.S. President, Northgate Networks America Inc., 8200 Dulles Corner Boulevard, Suite 1100, Tysons Corner, VA 22182. Ms. Okoro is expected

2. Documents and Tangible Things (FRCP 26(a)(1)(A)(ii)). Defendants anticipate providing copies or descriptions by category and location of the following categories of documents that Defendants may use to support their defenses: (a) The Wholesale Access Policy, as adopted in January 2020, including all versions, amendments, and internal policy guidance memoranda relating thereto. (b) Capacity utilization data for eac

3. Computation of Damages (FRCP 26(a)(1)(A)(iii)). Defendants deny liability in its entirety and contend that Ridgepoint is not entitled to any damages. To the extent a computation of damages is applicable, Defendants reference the preliminary rebuttal analysis prepared by Dr. Priya Narasimhan, Managing Director, Ellsworth Economic Consulting LLC, which estimates that Ridgepoint's alleged lost profits, if any, would

4. Insurance Agreements (FRCP 26(a)(1)(A)(iv)). Defendants will disclose the following insurance agreements that may be applicable to satisfy all or part of a possible judgment in this action: (a) Directors & Officers / Entity Liability Policy, issued by Clarendon Mutual Insurance Ltd., with a per-occurrence limit of $50,000,000 and a self-insured retention of $10,000,000. (b) Excess liability insurance tower: • Firs

V. DOCUMENT DISCOVERY A. Scope and Proportionality All document discovery in this action shall be governed by the scope and proportionality standards set forth in Federal Rule of Civil Procedure 26(b)(1). The parties recognize that this case involves complex antitrust claims requiring extensive document review and production, and the parties are committed to conducting discovery in a manner that is proportional to th

1. E-discovery Vendor. Defendants have engaged Candela discovery Solutions Inc. ("Candela"), located at 200 Park Avenue South, 14th Floor, New York, NY 10003, as their e-discovery vendor and managed review provider for this litigation. Kenji Takahashi serves as Candela's project manager for this matter.

2. Document Collection. Since the implementation of the litigation hold on September 21, 2022, Candela has collected approximately 1.2 million documents from twenty-three (23) custodians across Northgate Networks America Inc. and Northgate Telecommunications PLC. Custodians include senior management, regulatory affairs, legal, network engineering, sales, and operations personnel with responsibilities relevant to the

3. Preliminary Review. Candela has conducted a preliminary review of the collected documents and has identified approximately 87,000 documents as potentially responsive to Plaintiff's anticipated discovery requests. This estimate is based on initial keyword searches and custodian-based filtering and is subject to refinement based on the negotiation of search terms and other ESI protocol parameters with Plaintiff's co

4. Review Platform. All collected documents are hosted on the Concordia Review™ platform, which provides for document review, coding, production, and privilege logging functionality. To the extent Plaintiff's counsel utilizes a different review platform, the parties will confer regarding the format and mechanics of document productions and cross-platform compatibility.

5. Proposed ESI Protocol. The parties propose to negotiate and submit a detailed ESI protocol governing the following subjects: (a) Format of Production. Whether documents shall be produced in native format, as TIFF images with associated load files (including extracted text and metadata), or in a combination of formats depending on document type (e.g., native for spreadsheets and databases, TIFF for correspondence a

6. Timing. The parties shall meet and confer regarding the ESI protocol within twenty-one (21) days of the Rule 26(f) conference. The parties will submit the agreed-upon ESI protocol to the Court for entry as an order, or will identify any disputes for resolution by the Court. C. Document Production Schedule The parties propose the following schedule for document production: (a) Service of Requests for Production. Re

VI. INTERROGATORIES Each party may serve up to twenty-five (25) interrogatories (including all discrete subparts) pursuant to Federal Rule of Civil Procedure 33. Interrogatories shall be served within thirty (30) days of the Rule 26(f) conference, and responses shall be due thirty (30) days after service, in accordance with Rule 33(b)(2). A. Defendants' Anticipated Interrogatory Topics Defendants anticipate serving i

1. Identification of all Ridgepoint personnel involved in the preparation, submission, and follow-up of the interconnection and colocation requests at the fourteen Disputed Facilities between March 2021 and August 2022, including each individual's title, role, and the specific requests in which each individual participated.

2. The factual and analytical basis for Ridgepoint's proposed relevant market definition, including the product market (last-mile enterprise fiber-optic transport services at 1 Gbps and above) and the geographic market (the Philadelphia–Baltimore–Washington, D.C. corridor), including all facts, data, and analyses considered by Ridgepoint in formulating its market definition.

3. The factual and analytical basis for Ridgepoint's computation of $127 million in alleged lost profits over the 2022–2027 projection period, including the demand projections, pricing assumptions, cost assumptions, discount rate, and identification of each specific customer or potential customer whose business Ridgepoint alleges it lost or would have obtained but for Northgate's alleged conduct.

4. Identification and description of all alternative infrastructure providers, carriers, and other entities from which Ridgepoint has obtained, attempted to obtain, or considered obtaining interconnection, colocation, or last-mile fiber transport services at or near the fourteen Disputed Facilities, including the terms of any such arrangements and the reasons for any failure to obtain such services.

5. A full description of the relationship between Ridgepoint Communications Inc. and Caravel Capital Partners LP, including any agreements, understandings, or arrangements pursuant to which Caravel has funded, agreed to fund, or may fund this litigation or the FCC Proceeding.

6. A complete accounting of Ridgepoint's fiber-optic network infrastructure, including the total route-miles of fiber owned or leased by Ridgepoint (alleged to be approximately 6,200 route-miles), the geographic distribution of such route-miles, and the location and capacity of Ridgepoint's own facilities in the Philadelphia–Baltimore–Washington, D.C. corridor.

7. Details of Ridgepoint's FY 2021 annual spend with Northgate (alleged to be approximately $1.8 million), including a breakdown by facility, service type, and contractual basis. B. Plaintiff's Anticipated Interrogatory Topics Based on the issues raised in Plaintiff's complaint and the FCC Proceeding, Defendants anticipate that Plaintiff will serve interrogatories on the following topics, among others, and will prepa

1. The factual and analytical basis for the Wholesale Access Policy, including the complete drafting history, the identities of all individuals involved in the development and approval of the WAP, all internal deliberations regarding the WAP, and all documents considered in connection with the WAP's adoption in January 2020.

2. Capacity utilization data and the methodology used to calculate capacity utilization at each of the fourteen Disputed Facilities, including the definition of "capacity," the frequency and manner of measurement, and the specific utilization figures for each facility for each quarter from January 2018 through the present.

3. Identification of all wholesale partners and applicants who have met the $5 million minimum annual revenue commitment established by the Wholesale Access Policy, including the identities of such partners, the terms of their wholesale agreements, and the facilities at which they maintain interconnection or colocation.

4. A complete description of Northgate's prior dealings with competitive local exchange carriers — including but not limited to Ridgepoint — at each of the fourteen Disputed Facilities, including the identities of all CLECs that have been granted or denied interconnection or colocation access at each facility.

5. Northgate's financial data relevant to U.S. revenue (reported at approximately $2.41 billion for FY 2022) and market share in the purported relevant market, including a breakdown of revenue by service type, customer type, and geographic area within the Philadelphia–Baltimore–Washington, D.C. corridor.

VII. REQUESTS FOR ADMISSION Each party may serve up to thirty (30) Requests for Admission pursuant to Federal Rule of Civil Procedure 36. Requests for Admission shall be served within sixty (60) days of the Rule 26(f) conference, and responses shall be due thirty (30) days after service, in accordance with Rule 36(a)(3). Anticipated topics for Requests for Admission include, without limitation: (a) Authenticity of ke

VIII. DEPOSITIONS A. Fact Depositions Each party may take up to twelve (12) fact depositions, each limited to seven (7) hours of on-the-record testimony in accordance with Federal Rule of Civil Procedure 30(d)(1). This limit includes depositions taken pursuant to Rule 30(b)(1) (individual depositions) and Rule 30(b)(6) (corporate designee depositions). All fact depositions shall be completed within the 270-day fact d

1. Defendants' Anticipated Fact Deposition Witnesses Defendants anticipate noticing and taking the depositions of the following individuals and entities during fact discovery: (a) Gregory Trent — Chief Executive Officer and Founder, Ridgepoint Communications Inc., 3500 Market Street, Suite 700, Philadelphia, PA 19104. Anticipated Topics: The founding, growth, and operation of Ridgepoint Communications Inc.; Ridgepoin

2. Plaintiff's Anticipated Fact Deposition Witnesses Based on the issues in this case and the identities of the key Northgate personnel identified in Defendants' anticipated initial disclosures, Defendants anticipate that Plaintiff will seek to depose the following individuals and entities. Defendants will prepare each witness for deposition in accordance with applicable law and professional obligations: (a) Diane Ok

1. Location. Unless otherwise agreed by the parties, depositions of party witnesses shall be conducted in Washington, D.C. Depositions of non-party witnesses shall be conducted at the location of the deponent or such other location as may be agreed upon by the parties and the deponent.

2. London-Based Witnesses. Depositions of witnesses located in London, United Kingdom (including Sir Malcolm Prentice and, to the extent applicable, Patrick Salazar) shall be subject to a meet-and-confer process between the parties regarding location and format. Defendants will propose that any such depositions be conducted by remote videoconference to reduce cost and logistical burden, consistent with Federal Rule o

3. Videotaping. Either party may arrange for the videotaping of any deposition upon reasonable notice to the opposing party and the deponent. Videotaped depositions shall be conducted in accordance with Federal Rule of Civil Procedure 30(b)(3)(A).

4. Court Reporting. Real-time court reporting shall be provided at all depositions. Costs of court reporting and transcription shall be borne by the noticing party, with copies available to the opposing party at the standard transcript rate.

IX. EXPERT DISCOVERY A. Expert Reports Expert discovery shall proceed in accordance with the following schedule and the requirements of Federal Rule of Civil Procedure 26(a)(2).

1. Plaintiff's Opening Expert Reports — Due Day 0 + 300 Days Plaintiff is anticipated to submit the opening expert report of the following retained expert: Dr. Leonard Kuo, Professor of Economics, Cavendish University. Dr. Kuo is expected to offer opinions on (i) the definition of the relevant product market (last-mile enterprise fiber-optic transport services at 1 Gbps and above) and geographic market (the Philadelp

2. Defendants' Responsive Expert Reports — Due Day 0 + 345 Days Defendants intend to submit the responsive expert reports of the following retained experts: (a) Dr. Priya Narasimhan, Managing Director, Ellsworth Economic Consulting LLC, 1455 Pennsylvania Avenue NW, Suite 850, Washington, D.C. 20004. Dr. Narasimhan will offer opinions on economics, including (i) the definition of the relevant market, which Defendants

3. Plaintiff's Rebuttal Expert Reports — Due Day 0 + 375 Days Plaintiff may submit rebuttal expert reports responding to Defendants' expert reports, limited to topics addressed in Defendants' responsive reports, in accordance with Federal Rule of Civil Procedure 26(a)(2)(D)(ii). B. Expert Depositions Expert depositions shall be completed during the period from Day 0 + 375 through Day 0 + 405. Each expert deposition s

1. Dr. Leonard Kuo — Plaintiff's economic expert. To be deposed by Defendants' counsel regarding his market definition analysis, market share calculations (including the basis for the 68% market share figure), damages methodology (including the $127 million lost profits computation), demand projections, pricing assumptions, data sources, and the reliability and methodology of his opinions.

2. Dr. Priya Narasimhan — Defendants' economic expert. To be deposed by Plaintiff's counsel regarding her broader market definition, corrected market share calculations (approximately 31%), damages rebuttal analysis ($18–$24 million pre-trebling), and critique of Dr. Kuo's methodology and assumptions.

3. Dr. Anton Berger — Defendants' regulatory expert. To be deposed by Plaintiff's counsel regarding his opinions on the regulatory framework, the commercial reasonableness of the WAP, the capacity utilization analysis, and the relationship between the FCC regulatory proceedings and the antitrust claims. C. Daubert Motions Any motion to exclude expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U

X. DISPOSITIVE MOTIONS A. Filing Schedule Dispositive motions, including motions for summary judgment under Federal Rule of Civil Procedure 56, shall be filed by Day 0 + 435 days. Opposition briefs shall be due thirty-five (35) days after the filing of the dispositive motion (Day 0 + 470 days). Reply briefs shall be due twenty (20) days after the filing of the opposition (Day 0 + 490 days). Oral argument on dispositi

XI. PRETRIAL AND TRIAL A. Pretrial Conference A joint pretrial conference shall be held on or about Day 0 + 540 days, or at such earlier or later date as the Court may direct. In advance of the pretrial conference, the parties shall submit the following materials in accordance with the Court's individual practices and Local Civil Rules: (a) A joint proposed pretrial order setting forth the undisputed facts, disputed

XII. COORDINATION WITH FCC PROCEEDING The parties acknowledge the pendency of the parallel FCC Proceeding in Docket WC-23-0042 before Administrative Law Judge Robert Fenwick. The procedural status of the FCC Proceeding, as of the date of this draft, is as follows: • The evidentiary hearing was held January 22–24, 2024, at FCC headquarters in Washington, D.C. • Post-hearing briefs were filed by both parties on March 1