Contract analysis

I. Executive Summary This memorandum summarizes ten (10) third-party subpoenas duces tecum issued by our client, Northgate Fiber Americas Inc. ("NFA" or "Northgate"), in the above-captioned action. Seven (7) of the subpoenas are directed to subcontractors retained by Meridian Infrastructure Partners LLC ("Meridian") in connection with the multi-phase fiber build-out program, and three (3) are directed to municipal pe

II. Legal Framework for Third-Party discovery A. CPLR § 3101(a)(4) — Disclosure by Non-Parties New York's Civil Practice Law and Rules provide broad discovery rights, and CPLR § 3101(a)(4) specifically authorizes full disclosure from non-parties upon notice and court approval where appropriate. Under this provision, a party may obtain disclosure from a person who is not a party to the action, provided that the inform

III. Subpoenas to Meridian's Subcontractors (7 Subpoenas) A. Overview and Identification of Subcontractors During the performance of the $1.2 billion fiber build-out program under the MCA, Meridian engaged numerous subcontractors for specialty work across the seven-state footprint. The subcontracted work encompassed a wide range of disciplines essential to the fiber construction program, including horizontal directio

1. All subcontract agreements, amendments, change orders, and task orders between Appalachian Boring and Meridian relating to the NFA fiber build-out project.

2. Daily field reports, boring logs, and production records for all work performed on the NFA project from October 2021 through April 2024, including but not limited to daily crew counts, equipment utilization records, linear footage bored or trenched per day, and shift start and end times.

3. All correspondence, including emails, letters, text messages, and project management platform communications, between Appalachian Boring and Meridian regarding schedule delays, crew availability, equipment failures, and remobilization orders.

4. Records of work stoppages, weather delays, and force majeure notices submitted to or received from Meridian, including any formal notices of delay or claims for time extensions.

5. Quality assurance/quality control ("QA/QC") records, including conduit depth verification logs, compaction test results, and any inspection records generated by Appalachian Boring's own quality personnel or by Meridian's quality oversight team.

6. Payment applications, invoices, lien waivers, and records reflecting payment or non-payment by Meridian, including any correspondence regarding disputed charges or requests for accelerated payment. Expected Relevance: Appalachian Boring's contemporaneous field records are expected to be highly probative on several key issues: Schedule Delay Causation. NFA's position is that delays in Milestones 5 through 8 were dr

1. All subcontract agreements, amendments, change orders, and task orders between Clearpath and Meridian relating to the NFA fiber build-out project.

2. Aerial construction daily logs, strand footage installed per day, crew staffing records, and equipment deployment records for all work performed on the NFA project.

3. All correspondence with Meridian relating to schedule pressure, overtime directives, and any alleged scope changes, including but not limited to emails, letters, and project management platform communications.

4. Records of any joint-use pole attachment permits obtained by or on behalf of Clearpath or Meridian, and any documentation of delays in obtaining such permits, including correspondence with utility pole owners.

5. Inspection reports, punch-list items, and records of rework directed by either Meridian's quality oversight personnel or NFA's QA representatives, including the identity of the directing party and the scope of rework performed.

6. Any communications reflecting Clearpath's awareness of, involvement in, or receipt of directions relating to the 14 alleged unformalized scope changes claimed by Meridian in its Verified Complaint and supporting discovery responses. Expected Relevance: Clearpath's records are expected to be significant across multiple issues: Schedule Performance. Because Clearpath was active throughout Phases 1 and 2, spanning Mi

1. The subcontract agreement between Summit and Meridian, including all amendments and task orders.

2. All splice records, OTDR test results, and acceptance test reports for each NFA project segment, including segment identification, test dates, measured splice loss values, and pass/fail determinations.

3. Records of splice loss measurements exceeding specifications established in Northgate Technical Specification NS-FIBER-2020, Section 7.2, and ANSI/TIA-568 standards, including any correspondence regarding retesting or remediation.

4. All correspondence between Summit and Meridian personnel or NFA personnel regarding failed tests, retesting requirements, remediation directives, and re-splicing.

5. Records of any delays caused by the unavailability of fiber cable, splice closures, or other materials — including purchase orders, delivery receipts, and back-order notifications — which are relevant to Meridian's supply-chain force majeure defense. Expected Relevance: Summit's records bear directly on the quality-defect and damages aspects of this case: Quality Defects — Splice Loss. OTDR test results maintained

1. The subcontract agreement between Granite Line and Meridian, including all amendments and change orders.

2. As-built drawings, conduit installation records, and route maps for all segments of the NFA project on which Granite Line performed work.

3. Records of any unauthorized route deviations from NFA-approved engineering plans, including field notes, redlined drawings, and correspondence with Meridian regarding the reasons for such deviations.

4. Crew mobilization and demobilization records, staffing level reports, and labor hour logs.

5. All correspondence with Meridian regarding work directives, schedule modifications, and payment disputes. Expected Relevance: Granite Line's records are expected to be significant in two principal areas: Route Deviations. Unauthorized route deviations from NFA-approved engineering plans constitute the third major category of critical NCR. NFA's position is that these deviations resulted from Meridian's deficient f

1. The subcontract or consulting agreement between Tidewater and Meridian, including all amendments, task orders, and statements of work.

2. All engineering design packages, route plans, constructability analyses, and permit application packages prepared by Tidewater for Phase 3 of the NFA project.

3. Records of design revisions, including any revisions directed by NFA that Meridian has characterized as scope changes, and any correspondence reflecting the origin of and reasons for such revisions.

4. All correspondence between Tidewater and municipal permitting authorities submitted on behalf of Meridian in connection with Phase 3 permit applications.

5. The timeline of design deliverable submissions, including scheduled delivery dates, actual delivery dates, and any delays, as well as correspondence regarding the causes of any such delays. Expected Relevance: Tidewater's records are expected to be highly relevant to two of the central disputes: Engineering Delay and Its Impact on Permitting. NFA's position is that Meridian's failure to timely complete Phase 3 eng

1. The subcontract agreement between Keystone and Meridian, including all amendments and task orders.

2. All traffic control permits obtained by or on behalf of Keystone or Meridian, and any records of permit denials, delayed approvals, or conditions imposed by municipalities.

3. Utility locate request records (811/One Call system), including request dates, locate completion dates, and any records of utility strikes (i.e., damage to existing underground utilities during construction).

4. Site restoration records, including before-and-after photographs, and any correspondence with municipalities regarding restoration complaints, re-restoration requirements, or fines.

5. Invoices and payment history, including any records of delayed payment or non-payment by Meridian. Expected Relevance: Keystone's records serve several functions: Traffic Control Permitting. Keystone's traffic control permit records will establish which entity was responsible for obtaining these permits and whether delays in the traffic control permitting process were attributable to Meridian's late or deficient p

1. The subcontract agreement between Atlas and Meridian, including all amendments and task orders.

2. Work schedules and completion records for hub site and central office installations, including planned versus actual completion dates for each facility.

3. Records of delays in receiving fiber cable or equipment from Meridian, and any correspondence regarding supply chain disruptions affecting the availability of materials necessary for inside plant work.

4. Test and turn-up records for installed equipment, including acceptance testing protocols, test results, and records of any failures requiring remediation.

5. Any communications between Atlas and Meridian regarding schedule impacts from upstream outside plant construction delays, including notifications that inside plant work could not commence or be completed because outside plant construction was not yet finished on the corresponding segments. Expected Relevance: Atlas's records will serve the following purposes: Downstream Delay Effects. Atlas's records will demonstr

IV. Subpoenas to Municipal Permitting Authorities (3 Subpoenas) A. Overview The allocation of responsibility for obtaining municipal permits is one of the central factual and legal disputes in this action. Meridian contends in its Verified Complaint and in its discovery responses that NFA's failure to timely obtain municipal permits was a principal cause of schedule delays across all three phases of the project. Meri

1. All permit applications, approvals, denials, conditions of approval, and related correspondence pertaining to fiber-optic construction permits issued to or applied for by Meridian Infrastructure Partners LLC, Northgate Fiber Americas Inc., or any subcontractor acting on behalf of either entity in connection with the NFA fiber build-out project, covering the period from January 2021 through April 2024.

2. Records of application submittal dates, completeness review determinations, processing timelines (from initial submission to final action), inspection reports, and any stop-work orders issued in connection with the NFA project.

3. All correspondence between the City of Stamford and Meridian, NFA, or their subcontractors regarding permit deficiencies, incomplete applications requiring resubmittal, conditions of approval, bonding requirements, and any other permit-related matters. Expected Relevance: Stamford was a significant concentration area for Phase 2 of the fiber build-out, encompassing the Connecticut portion of the project covered by

1. All permit applications, approvals, denials, conditions of approval, and related correspondence for right-of-way and street-opening permits in connection with the NFA fiber construction project, covering the period from April 2020 through December 2021 (the Phase 1 construction period).

2. Inspection reports, violation notices, and any records of enforcement actions relating to the NFA project within the Town of Hempstead.

3. Records identifying the applicant entity and signatory on each permit application submitted in connection with the NFA project. Expected Relevance: Hempstead falls within the Phase 1 footprint (NY Metro and Northern New Jersey), where Milestone 3 was completed 47 days late. The contractual target date for Milestone 3 was August 28, 2021; actual completion was not achieved until October 14, 2021. This delay trigger

1. All permit applications, approvals, denials, and correspondence relating to fiber-optic and telecommunications infrastructure construction permits filed in Baltimore County in connection with the NFA project, covering the period from January 2023 through April 2024 (the Phase 3 construction period).

2. Records of pre-application meetings, application completeness reviews, and any requests for expedited processing submitted by or on behalf of Meridian, NFA, or their subcontractors.

3. Any correspondence between Baltimore County and Tidewater Engineering & Design LLC (Meridian's Phase 3 engineering subcontractor) regarding permit submissions, application deficiencies, or required supplemental materials. Expected Relevance: Baltimore County was an early mobilization area for Phase 3 of the fiber build-out (the Maryland portion). NFA's records indicate that Meridian made only minimal construction

V. Service and Compliance Details A. Method of Service All ten subpoenas were served by hand delivery via a licensed process server, ACS Process Service Inc., between October 14 and October 18, 2024, in compliance with the requirements of CPLR § 2303. Affidavits of service have been prepared by the process server and are maintained in the case file. Simultaneously with service on each third-party recipient, copies of

VI. Coordination with Expert Work The records sought by the ten third-party subpoenas are integral to the analyses being performed by NFA's two retained experts: Dr. Elinor Chazen — Critical Path / Delay Analysis (Lakeview Consulting Group LLC, retained October 15, 2024). Dr. Chazen is developing a critical path methodology ("CPM") delay analysis to identify the causes of delay to each milestone and to allocate those

VII. Document Processing and Review Plan Upon receipt, all third-party productions will be handled in accordance with the following processing and review plan: Processing. All productions will be forwarded immediately to Vantage Litigation Support LLC for processing in accordance with the specifications established in the Stipulated E-discovery Protocol and ESI Agreement. Vantage will apply standard processing protoc

VIII. Recommended Next Steps Based on the foregoing, the following next steps are recommended:

1. Monitor Compliance. Monitor compliance with the subpoena return dates of November 18, 2024 (subcontractors) and November 25, 2024 (municipal permitting authorities). Prepare follow-up letters, to be sent within five business days after each return date, to any recipients that fail to respond, produce incomplete responses, or request extensions of time. Any extension requests should be evaluated on a case-by-case b

2. Oppose Any Motion to Quash. If HDS files a motion to quash any of the subpoenas, prepare opposition briefs demonstrating the relevance and proportionality of the requested discovery. The opposition should emphasize the "material and necessary" standard under CPLR § 3101(a)(4), the direct connection between the requested records and the core disputed issues (delay causation, quality defects, permitting responsibili

3. Coordinate with Vantage. Contact Vantage Litigation Support LLC to arrange for expedited processing of third-party productions upon receipt. Confirm that Vantage has adequate server capacity and processing bandwidth to handle the anticipated volume of incoming productions, which we estimate at approximately 200,000 to 400,000 pages across all ten subpoenas based on the scope of the requests and the nature of the r

4. Expert Coordination. Schedule working sessions with Dr. Elinor Chazen and her team at Lakeview Consulting Group LLC to discuss the anticipated subcontractor and permitting authority records and to establish a protocol for the efficient integration of these records into her critical path analysis. An initial session should be scheduled for the week of November 4, 2024, with a follow-up session scheduled for the wee

5. Evaluate Additional Municipal Subpoenas. Consider whether additional third-party subpoenas to other municipal permitting authorities within the seven-state footprint may be warranted, depending on the results of the initial three municipal productions and the evolving needs of the case. Potential additional targets include the Fairfield County permitting offices (Connecticut), Westchester County Department of Publ

6. Evaluate Deposition Subpoenas. Evaluate whether deposition subpoenas for representatives of any of the seven subcontractors may be needed to supplement the documentary productions. Deposition testimony may be particularly valuable from representatives of the following subcontractors: (a) Appalachian Boring & Utility Services Inc. — to address conduit depth verification practices and the circumstances surrounding t