Contract analysis

1. I am an associate at the law firm of Calderwood & Harkness LLP, located at 425 Park Avenue, 33rd Floor, New York, New York 10022. I am a member of the defense team representing Defendant Northgate Fiber Americas Inc. ("NFA" or "Defendant") in the above-captioned action. I submit this declaration in support of both (I) Defendant's Opposition to Plaintiff Meridian Infrastructure Partners LLC's ("Meridian" or "Plaint

2. I have personal knowledge of the facts stated herein, except as otherwise indicated. Where statements are based upon my review of documents, correspondence, court filings, or the files maintained by Calderwood & Harkness LLP in connection with this matter, I have identified the source of that information. This matter is identified internally as C&H Matter No. 1022-00005.

I. BACKGROUND AND QUALIFICATIONS

3. I serve as the Lead Associate on this matter. I was admitted to the practice of law in the State of New York in 2019, and I have practiced exclusively in the area of complex commercial litigation since that time. My practice has included significant experience in construction and infrastructure disputes, contractual claims, and discovery matters in the Commercial Division of the Supreme Court of the State of New Y

4. In this matter, I work under the supervision of Linda Osei, Responsible Partner, and Priya Anand, Billing Partner, both of Calderwood & Harkness LLP. Ms. Osei serves as lead counsel for Defendant NFA and has been the primary partner responsible for all strategic decisions in this litigation. Ms. Anand provides additional oversight with respect to the financial and economic aspects of the dispute, including the cou

5. I have been actively involved in all aspects of the defense of this action since our firm's engagement on August 19, 2024. My responsibilities have included, among other things, coordinating with Defendant's personnel regarding factual investigation, managing the document collection and preservation process, supervising the document review team, participating in the preparation of Defendant's privilege log, overse

6. I have personally supervised and participated in every stage of the document collection, review, privilege determination, and production process in this action. I am familiar with the approximately 1.4 million documents (comprising approximately 3.2 terabytes of electronically stored information, or "ESI") collected from ten NFA and Northgate Telecommunications PLC ("Northgate PLC") custodians. I am also familiar

II. PROCEDURAL HISTORY RELEVANT TO THE PRIVILEGE DISPUTES

7. In order to provide the Court with the necessary context for the privilege disputes at issue, I set forth below the procedural history of this action insofar as it is relevant to the instant motions. The following recitation is based on my personal knowledge, my review of the court docket maintained through the New York State Courts Electronic Filing System ("NYSCEF"), and the files maintained by Calderwood & Hark

8. July 15, 2024: Plaintiff Meridian Infrastructure Partners LLC commenced this action by filing a Verified Complaint in the Supreme Court of the State of New York, County of New York, Commercial Division. The Verified Complaint asserts four causes of action — (1) breach of contract, (2) anticipatory breach of contract, (3) breach of the implied covenant of good faith and fair dealing, and (4) unjust enrichment — ari

9. August 5, 2024: Service of process was effected on Defendant NFA through the New York Secretary of State in accordance with the Business Corporation Law.

10. August 19, 2024: Calderwood & Harkness LLP was engaged by Defendant NFA to serve as litigation counsel. Our firm opened the matter on that date under C&H Matter No. 1022-00005 and promptly began our factual investigation and review of the issues raised in the Verified Complaint.

11. September 3, 2024: Defendant filed its Answer with Affirmative Defenses and Counterclaims. The Answer asserts twenty-two affirmative defenses and three counterclaims: (1) breach of contract for Meridian's failure to meet contractual milestones and quality standards, (2) indemnification under MCA § 18 for third-party delay claims, and (3) breach of warranty under MCA § 10. Defendant's counterclaims seek damages to

12. October 1, 2024: A Preliminary Conference was held before the Honorable Eleanor M. Ricci, J.S.C., in Part 49 of the Commercial Division. At that conference, the Court set a discovery schedule governing document production, depositions, and expert disclosures. On the same date, the parties filed a Stipulated E-discovery Protocol and ESI Agreement (a true and correct copy of which is attached hereto as Exhibit E),

13. October 8, 2024: Defendant served its First Set of Document Requests on Plaintiff, consisting of fifty-six requests for production, as well as its First Set of Interrogatories, consisting of twenty-five interrogatories. These requests were tailored to the claims and defenses in the action and sought, among other things, documents relating to Meridian's performance under the MCA, communications with subcontractors

14. October 22, 2024: Defendant served its Responses and Objections to Plaintiff's First Set of Document Requests. Those responses included, as appropriate, objections on the grounds of attorney-client privilege and work product protection. Defendant also began its rolling production of non-privileged, responsive documents on or about the same date.

15. October 31, 2024: Defendant completed its rolling production of non-privileged, responsive documents and served its privilege log on Plaintiff. The privilege log identified 214 documents withheld in whole or in part on the grounds of attorney-client privilege and/or attorney work product protection. A true and correct copy of the privilege log is attached hereto as Exhibit A.

16. November 15, 2024: In accordance with this Court's rules and the Commercial Division Rules requiring a good-faith effort to resolve discovery disputes before seeking judicial intervention, Ms. Osei sent a detailed meet-and-confer letter to Thomas Deluca, the lead partner at Hargrove, Deluca & Stein LLP representing Plaintiff, addressing the privilege positions asserted by both parties and proposing an informal re

17. Prior to the November 15 letter, on November 1, 2024, Ms. Osei had sent a separate letter to Mr. Deluca detailing deficiencies in Meridian's document production, including incomplete production of subcontractor communications and the improper withholding of Ridgepoint-related documents. A true and correct copy of that letter is attached hereto as Exhibit F.

18. November 22, 2024: Plaintiff filed its Motion to Compel Production of the 214 documents identified on Defendant's privilege log, notwithstanding the ongoing meet-and-confer process and the reasoned positions set forth in Defendant's correspondence.

19. December 6, 2024: Defendant files this Opposition to Plaintiff's Motion to Compel and Cross-Motion for Protective Order, together with the instant declaration and supporting papers.

III. DEFENDANT'S DOCUMENT COLLECTION AND REVIEW PROCESS

20. In this section, I describe the document collection and review process undertaken by Defendant, with particular focus on the procedures employed to identify and withhold privileged documents. I provide this description to demonstrate to the Court that Defendant's privilege determinations were made carefully, systematically, and in full compliance with applicable law and the Stipulated E-discovery Protocol. A. Lit

21. On August 21, 2024, two days after Calderwood & Harkness LLP's engagement, our firm drafted a Litigation Hold Notice (the "Hold Notice") in consultation with NFA's General Counsel, Dominic Hale. The Hold Notice was distributed on the same date to all relevant personnel at both Northgate Telecommunications PLC, the UK-based parent company, and Northgate Fiber Americas Inc., the US subsidiary that is the named Defe

22. The Hold Notice directed all recipients to preserve all documents and electronically stored information related to: (a) the Master Construction Agreement dated March 15, 2020, including all amendments, change orders, schedules, and ancillary agreements thereunder; (b) the fiber build-out program across the seven states in which Meridian performed work under the MCA, namely New York, New Jersey, Connecticut, Massa

23. The Hold Notice was issued to a distribution list of approximately forty-five employees and officers across both entities, encompassing personnel in the legal, construction management, engineering, procurement, quality assurance, finance, and executive functions. The Hold Notice has been supplemented on two occasions — on September 20, 2024, and on October 15, 2024 — to add additional custodians and to address ne

24. Following the issuance of the Hold Notice and in connection with the preparation of Defendant's discovery responses, Calderwood & Harkness LLP, in consultation with Mr. Hale and other NFA personnel, identified ten custodians whose files would be collected and reviewed for production in this action. The custodians were selected based on their roles and involvement in the events at issue, including the negotiation

25. Additionally, although not listed as a "custodian" for purposes of ESI collection, documents of Sir Malcolm Ashford, Chairman, and Dame Catherine Elsworth, CEO, of Northgate Telecommunications PLC were collected to the extent they appeared in the files of the above-listed custodians or were otherwise identified as responsive to Plaintiff's document requests. These documents included board-level communications and

26. Vantage Litigation Support LLC ("Vantage"), with offices at 300 Vesey Street, Suite 600, New York, New York 10282, was engaged as Defendant's e-discovery vendor pursuant to an engagement letter dated September 10, 2024. Vantage was responsible for the collection, processing, de-duplication, hosting, and production of all ESI collected from Defendant's custodians. Vantage also provided the review platform used by

27. Following collection, the approximately 1.4 million documents (approximately 3.2 terabytes) were processed by Vantage using industry-standard tools and loaded into the Vantage review platform. The review was conducted in accordance with a two-phase protocol. In the first phase, documents were filtered and prioritized using the agreed-upon search terms and date ranges established under the Stipulated E-discovery P

28. The privilege review process was designed to ensure that all potentially privileged documents were identified, carefully evaluated, and, where appropriate, withheld from production with a corresponding entry on Defendant's privilege log. The process operated as follows:

29. During the first-level review, each document was reviewed by a contract attorney or junior associate on the document review team. Any document that was flagged as potentially privileged — whether on the basis of attorney-client privilege, work product protection, or both — was coded as "potentially privileged" and escalated to a senior reviewer for a second-level review.

30. The second-level review was conducted by senior associates under my direct supervision and that of my colleague Yuki Nakamura, a senior associate at Calderwood & Harkness LLP who has also been actively involved in the defense of this matter. During the second-level review, each potentially privileged document was evaluated against the applicable legal standards for attorney-client privilege and work product prote

31. Final privilege determinations were made by me and/or by Ms. Osei. In cases involving complex or borderline privilege issues — such as mixed-purpose documents containing both business and legal content, or communications involving in-house counsel acting in a dual business-legal capacity — I consulted with Ms. Osei before making a final determination, and in certain instances, we jointly reviewed the documents in

32. For each document withheld on privilege grounds, a detailed entry was prepared for the privilege log in accordance with the requirements of CPLR § 3101(b), the Commercial Division Rules, and the Stipulated E-discovery Protocol. Each entry includes sufficient detail to enable the opposing party to assess the claim of privilege without revealing the substance of the privileged communication or work product itself.

IV. THE 214 DOCUMENTS ON DEFENDANT'S PRIVILEGE LOG A. Overview and Composition of the Privilege Log

33. As noted above, Defendant's privilege log, served on Plaintiff on October 31, 2024, identifies 214 documents withheld in whole or in part on the grounds of attorney-client privilege and/or attorney work product protection. A true and correct copy of the full Privilege Log is attached hereto as Exhibit A.

34. The 214 documents encompass a range of document types and communications, all of which share the common characteristic of reflecting confidential communications between attorney and client for the purpose of obtaining or providing legal advice, or constituting materials prepared by or at the direction of counsel in anticipation of or during litigation. The documents break down approximately as follows: (a) Commun

35. For purposes of this declaration and to assist the Court in understanding the nature and scope of the withheld documents, I have organized the 214 documents into four categories, as described below. These categories correspond to the functional groupings reflected in the privilege log and are intended to provide the Court with a clear overview of the types of privileged communications at issue.

36. Category 1 — Pre-Termination Legal Advice (approximately 78 documents): This category encompasses emails, memoranda, and presentations in which Dominic Hale and members of his legal team provided legal advice to Northgate/NFA management regarding the dispute with Meridian and the termination decision. Specifically, these documents address: (i) whether Meridian's conduct — including failure to meet schedule milest

37. Category 2 — Board-Level Privileged Communications (approximately 31 documents): This category encompasses presentations, memoranda, and email chains that were prepared for or transmitted to Dame Catherine Elsworth, Sir Malcolm Ashford, and the Northgate PLC Board of Directors, reflecting legal advice on litigation exposure, strategic options, and the decision to terminate the MCA. These documents include slide p

38. Category 3 — Insurance and Bond-Related Legal Advice (approximately 22 documents): This category encompasses communications with and about Ironclad Surety Group Inc. (the surety on the performance bond), Albion Specialty Insurance Ltd. (the D&O insurer), Keystone National Insurance Company (the CGL insurer), and Pemberton Fox LLP (Northgate's coverage counsel). These documents reflect legal advice regarding cover

39. Category 4 — Litigation Strategy and Work Product (approximately 83 documents): This category encompasses post-engagement communications between Calderwood & Harkness LLP attorneys and Northgate/NFA personnel, internal Calderwood & Harkness LLP memoranda, draft pleadings, case assessments, settlement analyses, and communications relating to expert retention and consultation — all of which were prepared in anticip

40. To demonstrate the level of detail and specificity provided in Defendant's privilege log, a representative sample of ten entries from the log is attached hereto as Exhibit B. These ten entries were selected to illustrate the range and specificity of the log entries across all four categories of withheld documents. Each entry on the privilege log includes the following fields: (a) Log Entry Number; (b) Bates Range

41. The following are illustrative summaries of certain entries from Exhibit B, provided here to give the Court a sense of the nature and detail of the log entries without disclosing the substance of privileged communications: (a) Entry No. 17 (Category 1): An email dated February 12, 2024, from Dominic Hale (General Counsel, Northgate PLC) to Renata Voss (VP, US Network Infrastructure, NFA) and Sean Calloway (Direct

42. The representative sample entries attached as Exhibit B demonstrate that the privilege log complies in all respects with the requirements of CPLR § 3101(b), the Commercial Division Rules, and the Stipulated E-discovery Protocol. Each entry provides the date, author, recipients, document type, a description of the general subject matter, the privilege(s) asserted, and a brief description of the basis for the privi

43. Each of the 214 documents on Defendant's privilege log is properly withheld because it reflects a confidential communication between a client (Northgate PLC and/or NFA, through their officers and employees) and an attorney (Dominic Hale, members of his in-house legal team, or attorneys at Calderwood & Harkness LLP) made for the purpose of obtaining or providing legal advice, or constitutes attorney work product p

44. Meridian's principal argument in support of its motion to compel is that the withheld documents relate to a "business decision" — namely, the decision to terminate the MCA and allegedly bring fiber construction work in-house — and therefore cannot be protected by the attorney-client privilege. This argument fundamentally mischaracterizes both the nature of the withheld documents and the scope of the attorney-clie

45. Meridian also mischaracterizes the substance of the decision at issue. The documents on the privilege log do not reflect a plan to "bring fiber construction in-house." To the contrary, the undisputed facts show that Northgate engaged a replacement contractor, Crestline Construction Group Inc. ("Crestline"), at arm's length on June 10, 2024, pursuant to a competitively bid contract with a total contract price of a

46. Meridian's invocation of the crime-fraud exception to the privilege is equally without merit. The crime-fraud exception requires a prima facie showing that the attorney-client communications were made in furtherance of a crime or fraud. Meridian has offered no evidence — beyond conclusory allegations in its motion papers — to support its claim that Northgate used legal advice to effectuate a "pretextual terminati

47. Finally, Meridian's contention that Defendant's privilege log is insufficiently detailed is belied by the log itself. As demonstrated by the representative sample entries attached as Exhibit B, and as is evident from a review of the full privilege log (Exhibit A), each entry provides the date, author, recipients, document type, subject matter description, privilege asserted, and basis for the privilege claim. The

48. No waiver of privilege has occurred with respect to any of the 214 documents. The documents were maintained in confidence within the attorney-client relationship and were not disclosed to any third parties outside the scope of the privilege. The documents were timely identified and logged in accordance with the discovery schedule and the Stipulated E-discovery Protocol.

V. MERIDIAN'S MOTION TO COMPEL LACKS MERIT

49. Plaintiff's motion to compel production of the 214 documents on Defendant's privilege log is based on three principal arguments: (1) that the documents relate to a business decision (allegedly bringing fiber construction in-house) rather than legal advice; (2) that the crime-fraud exception applies because Northgate allegedly used legal advice to effectuate a pretextual termination of the MCA designed to replace

50. With respect to the first argument, as I have explained above, the 214 documents on Defendant's privilege log reflect legal advice provided by Dominic Hale, his legal team, and Calderwood & Harkness LLP in connection with the MCA, the termination process, and the resulting litigation. The documents do not reflect a business plan to "bring fiber construction in-house." To the contrary, Northgate's engagement of Cr

51. With respect to the crime-fraud exception, Meridian has failed to make the prima facie showing required under New York law. Meridian's motion papers rely entirely on conclusory allegations and inferences drawn from the fact that Northgate terminated the MCA. But a termination of a contract — even one that is subsequently challenged in litigation — does not constitute fraud, and the mere existence of a dispute ove

52. With respect to the adequacy of the privilege log, I have reviewed each of the 214 entries on the log and can confirm that each entry provides the information required under CPLR § 3101(b) and the Stipulated E-discovery Protocol, including the date, author, recipients, document type, subject matter description, privilege asserted, and basis for the privilege claim. The representative sample entries attached as Ex

VI. DEFENDANT'S CROSS-MOTION — MERIDIAN'S WITHHOLDING OF MERIDIAN-RIDGEPOINT COMMUNICATIONS A. Meridian's Privilege Log and the 187 Withheld Documents

53. In its document production in this action, Plaintiff Meridian Infrastructure Partners LLC withheld 187 documents on the basis of what it has characterized as the "common interest privilege" between Meridian and its majority equity holder, Ridgepoint Capital Group LP ("Ridgepoint"). These 187 documents were identified on Meridian's privilege log, which was served in connection with Meridian's document production.

54. Ridgepoint Capital Group LP is a Delaware limited partnership with its principal office at 2100 Ross Avenue, Suite 3300, Dallas, Texas 75201. Ridgepoint is a private equity fund managed by its managing partner, Graham Latimer. Ridgepoint holds approximately 55% of the equity of Meridian Infrastructure Partners LLC, having acquired its majority stake in 2018 for approximately $285 million.