PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT PREPARED IN ANTICIPATION OF LITIGATION
CALDERWOOD & HARKNESS LLP 200 Park Avenue, 38th Floor New York, New York 10166
MEMORANDUM
TO: Samuel Eklund, Responsible Partner
FROM: Patrick Gallagher, Lead Associate
DATE: July 7, 2023
RE: Witness Preparation — Janet Kirkwood Deposition by Caldwell Royce & Shapiro LLP
MATTER: Vantor Holdings Corp. v. Stonefield Logistics Group Inc., Case No. 22-cv-07841 (S.D.N.Y.) — C&H Matter No. 1012-00005
DEPOSITION DATE: July 14, 2023
EXAMINING COUNSEL: Expected to be Harrison Caldwell and/or Jason Whitford of Caldwell Royce & Shapiro LLP (1 Liberty Plaza, 22nd Floor, New York, NY 10006)
DEFENDING COUNSEL: Patrick Gallagher (with Samuel Eklund available by phone if needed)
LOCATION: Calderwood & Harkness LLP offices, 200 Park Avenue, 38th Floor, New York, NY 10166 (or as agreed with CRS — confirm logistics with Helen Tsao)
ESTIMATED DURATION: Up to 7 hours (per FRCP 30(d)(1))
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I. Purpose and Overview
This memorandum is prepared for the purpose of organizing and guiding the witness preparation of Janet Kirkwood, Vice President, Carrier Relations at Stonefield Logistics Group Inc. ("Stonefield" or "SLG"), in advance of her deposition to be taken by plaintiff's counsel, Caldwell Royce & Shapiro LLP ("CRS"), on July 14, 2023. This memorandum is protected by the attorney-client privilege and the work product doctrine and should not be disclosed to any person outside the litigation team.
Kirkwood is a key fact witness for Stonefield in this action. She oversaw the day-to-day relationship between Stonefield and Vantor Transport Services LLC ("VTS"), a subsidiary of Vantor Holdings Corp. ("Vantor"), and was directly involved in operational decisions regarding VTS's performance under the Transportation Services Agreement dated March 15, 2019 (Contract Ref. No. SLG-VTS-2019-0315, the "TSA"). In particular, Kirkwood was responsible for monitoring VTS's compliance with the Service Level Obligations set forth in the TSA, making volume allocation decisions across Stonefield's carrier network, and directing the use of alternative carriers — including Cascade Freight Systems Inc. ("Cascade") and Briarwood Trucking Co. ("Briarwood") — on certain lanes during the period of VTS's declining performance. She was also involved in internal discussions regarding the issuance of the January 18, 2022 Cure Notice and was the primary Stonefield point of contact for VTS's operational personnel throughout the contract relationship.
The deposition is being taken by Vantor's counsel as part of fact discovery under the Case Management Order entered by the Honorable Margaret T. Calloway, U.S.D.J., on February 17, 2023, which established a fact discovery deadline of September 29, 2023. We anticipate that CRS will use the Kirkwood deposition to develop evidence in support of Vantor's claims that Stonefield breached the TSA's exclusivity provisions, that the March 4, 2022 termination was pretextual and motivated by a desire to avoid the April 2022 rate adjustment, and that Stonefield engaged in a premeditated plan to exit the TSA irrespective of VTS's actual performance.
This memorandum identifies the key risk areas for Kirkwood's testimony, anticipates the principal lines of questioning that CRS is likely to pursue, recommends approaches to sensitive topics, and compiles a list of documents that Kirkwood should review in advance of her preparation session, which is currently scheduled for July 11, 2023 at our offices. The memorandum is organized as follows: Section II provides Kirkwood's background and role; Section III identifies the four principal risk areas; Section IV maps out anticipated questioning by CRS; Section V sets forth general deposition preparation guidelines; Section VI lists documents for pre-session review; Section VII provides specific question-and-answer preparation scenarios; Section VIII addresses privilege and confidentiality; Section IX covers logistics; Section X provides an assessment of Kirkwood as a witness; and Section XI outlines next steps.
II. Witness Background and Role
A. Professional Background
Janet Kirkwood holds the title of Vice President, Carrier Relations at Stonefield Logistics Group Inc., headquartered at 4200 Commerce Parkway, Suite 800, Fort Worth, Texas 76102. In this capacity, Kirkwood is responsible for managing Stonefield's relationships with its extensive network of approximately 12,000 approved carriers. Her responsibilities encompass carrier onboarding and qualification, ongoing performance monitoring and scorecard management, rate negotiations and procurement-side contracting, and capacity allocation across Stonefield's network to match freight demand with available carrier resources.
Kirkwood reports directly to Carlos Medina, Senior Vice President, Operations. Her position situates her at the intersection of Stonefield's commercial freight brokerage operations and its carrier-facing procurement function, giving her visibility into both shipper-customer requirements and carrier performance across Stonefield's service territory.
Kirkwood was the primary Stonefield executive responsible for the VTS/Vantor relationship on an operational level throughout the life of the TSA. She managed day-to-day communications with VTS regarding load tenders, equipment positioning, performance tracking, and issue resolution. Her counterpart at Vantor was Derek Pruitt, Vice President, Business Development at Vantor Transport Services LLC. Pruitt's deposition has been noticed and is scheduled for July 10, 2023, four days prior to Kirkwood's deposition. This sequencing is significant: CRS will have Pruitt's transcript in hand by the time they examine Kirkwood and may attempt to use Pruitt's testimony to impeach or test Kirkwood's account of key events and communications.
B. Kirkwood's Involvement in Key Events
Kirkwood's involvement in the events giving rise to this litigation is extensive and spans the entire operative period. Her principal areas of involvement include the following:
Management of the VTS Relationship. Kirkwood managed the day-to-day carrier relationship with VTS throughout the life of the TSA, from its execution on March 15, 2019 through the termination effective March 4, 2022. She was the primary Stonefield contact for VTS on operational matters, including load tendering, capacity planning, performance reporting, and escalation of service issues.
Performance Monitoring. Kirkwood monitored VTS's performance against the Service Level Obligations ("SLOs") specified in the TSA on an ongoing basis. She had access to Stonefield's internal Carrier Performance Portal and received regular performance reports from her team. She was among the first Stonefield executives to identify VTS's deteriorating performance in the second half of 2021 and raised these concerns internally.
Volume Allocation and Alternative Carrier Use. Kirkwood directed the allocation of freight volumes to VTS and, when necessary, to alternative carriers on various lanes within Stonefield's network. This included authorizing the use of Cascade Freight Systems Inc. and Briarwood Trucking Co. on Lanes 8–14 in response to VTS's declining tender acceptance rates and capacity shortfalls. The scope and timing of this volume diversion is a central issue in the case.
The September 22, 2021 Internal Email. Kirkwood is the author of the September 22, 2021 internal email to Carlos Medina, which is the single most significant risk document for this deposition. The email states, in relevant part: "VTS is a mess. We're already moving volume to Cascade and Briarwood on Lanes 8–14. If VTS doesn't get its act together by Q1 I think we pull the plug on the whole contract." This email, produced in Stonefield's first document production, will be the focus of sustained and aggressive examination by CRS.
Cure Notice Process. Kirkwood was involved in the internal discussions leading to the issuance of the Cure Notice dated January 18, 2022, which was drafted and sent by Raymond Hess, Director, Contract Compliance, to Sandra Milescu at VTS. While Hess was responsible for the formal notice, Kirkwood provided input on the operational performance failures that formed the basis for the notice and coordinated with Hess on the underlying metrics.
Vantor's Response. Kirkwood received Vantor's February 14, 2022 response to the Cure Notice, transmitted by Derek Pruitt directly to Kirkwood. In that response, Pruitt acknowledged "operational challenges" but disputed the characterization that VTS was solely at fault, arguing that Stonefield's failure to tender committed volumes contributed to VTS's performance difficulties.
Awareness of Rate Adjustment. Kirkwood was aware of the upcoming April 2022 rate adjustment under the TSA's Rate Adjustment Mechanism (Section 5.3), which would have increased per-mile rates by approximately 14.3%. Her level of awareness and the extent to which rate considerations factored into her assessment of the VTS relationship are areas of expected inquiry by CRS.
III. Key Risk Areas
This section identifies the four principal risk areas that Kirkwood's deposition presents and provides recommended approaches for each. These risk areas have been identified based on our analysis of Vantor's Amended Complaint, the document productions to date, the deposition notices and topics identified in CRS's correspondence, and our assessment of CRS's overall litigation strategy.
A. Risk Area 1: The September 22, 2021 Internal Email (Kirkwood to Medina)
Document Identification. The document at issue is a Stonefield internal email, Bates No. SLG-[to be confirmed prior to preparation session], dated September 22, 2021, from Janet Kirkwood to Carlos Medina. The email states:
"VTS is a mess. We're already moving volume to Cascade and Briarwood on Lanes 8–14. If VTS doesn't get its act together by Q1 I think we pull the plug on the whole contract."
This email was produced as part of Stonefield's first document production on April 14, 2023, which encompassed 42,387 documents comprising approximately 186,000 pages. CRS identified this email early and has referenced it in discovery correspondence and in Vantor's opposition to Stonefield's partial motion to dismiss the breach of exclusivity claim.
Why This Document Is Dangerous
This email presents the single greatest evidentiary challenge for Stonefield in this deposition and, arguably, in the case as a whole. CRS will use this document to advance several interlocking arguments:
First, CRS will argue that this email proves Stonefield had a premeditated plan to exit the TSA and was already taking steps to unwind the relationship months before the formal Cure Notice process began. The phrase "pull the plug on the whole contract" is vivid, colloquial, and on its face suggests a decision — or at least a strong inclination — to terminate. CRS will characterize this as evidence that the subsequent Cure Notice and termination process was merely a post hoc formalization of a decision that had already been made.
Second, CRS will argue that the email undermines Stonefield's central defense — that the March 4, 2022 termination was a good-faith response to uncured breaches following the contractual cure process. If Stonefield had already decided to "pull the plug" in September 2021, the argument goes, then the Cure Notice was a pretextual exercise designed to create a paper trail, not a genuine effort to give VTS the opportunity to cure its deficiencies.
Third, the reference to "moving volume to Cascade and Briarwood on Lanes 8–14" will be cited as direct evidence supporting Vantor's breach of exclusivity claim. CRS will argue that Stonefield was already diverting freight to competing carriers before the Cure Notice and that this diversion itself constituted a breach of the TSA's exclusivity provisions set forth in Schedule C.
Fourth, this email was produced in Stonefield's document production and is part of the evidentiary record. It cannot be explained away or minimized — it must be addressed directly and credibly.
Recommended Approach and Key Points for Kirkwood
The preparation session must devote substantial time to this document. The following points should guide Kirkwood's testimony:
Context of the Email. Kirkwood should explain the context in which the email was written. By September 2021, VTS was already showing significant signs of performance deterioration. Tender acceptance rates were declining, equipment availability was dropping, and Stonefield's shipper-customers were experiencing service disruptions on VTS-serviced lanes. The email was a frustrated, informal internal communication between colleagues — Kirkwood venting to her direct supervisor about a carrier that was failing to perform. It was not a corporate decision, a directive to take action, or a formal recommendation to terminate. It was an expression of legitimate operational concern, written in the informal register that characterizes internal email communications.
Volume Movement Was on Secondary Lanes. Kirkwood should emphasize that the volume movement referenced in the email — to Cascade Freight Systems Inc. and Briarwood Trucking Co. — was on Lanes 8–14, which are classified as "Secondary Lanes" under Schedule C, Section 2(b) of the TSA. The exclusivity provisions of Schedule C applied only to the 14 designated "Primary Lanes" (specific origin-destination pairs enumerated in the schedule). Stonefield was contractually permitted to use alternative carriers on Secondary Lanes, and its decision to do so on Lanes 8–14 was fully within the terms of the agreement. This analysis is consistent with and supported by our internal Memorandum re Exclusivity Analysis — Schedule C Lanes, dated September 30, 2022.
Operational Necessity Drove the Diversion. Kirkwood should explain that the diversion of freight to Cascade and Briarwood on the Secondary Lanes was an operational response to VTS's declining tender acceptance rate. VTS was rejecting freight tenders on these lanes — meaning VTS itself was declining to accept loads that Stonefield offered. When a carrier rejects a tender, the freight must still move; Stonefield had contractual obligations to its shipper-customers and could not leave loads unserviced. Using alternative carriers on lanes where VTS was failing to accept tenders was the responsible and necessary operational response.
"Pull the Plug" Was Not a Decision. Kirkwood should clarify that her use of the phrase "pull the plug on the whole contract" was a colloquial expression of frustration and a statement of what she believed might need to happen if VTS did not improve. It was not a decision to terminate, a recommendation to terminate, or a directive to anyone to initiate termination proceedings. No termination decision was made in September 2021. The formal Cure Notice was not issued until January 18, 2022 — nearly four months later — and only after Q4 2021 performance data confirmed that VTS's performance failures were sustained, worsening, and material.
Narrow Answers. Kirkwood should not volunteer that the email "contemplated termination" or "expressed an intent to terminate." She should answer questions about the email directly but narrowly, providing context only when asked follow-up questions or when the context is necessary to make her answer accurate and complete. She should not get ahead of the questioning or offer extended narratives unless the question calls for one.
No Speculation About Others. Kirkwood must not speculate about what Carlos Medina, Tobias Wren, Marcus Denton, or anyone else thought, decided, or did in response to this email. She should testify only to what she knows: what she meant when she wrote the email, the operational context in which she wrote it, and any direct responses she received from Medina. If asked what Medina did with the email, she should testify only to communications or actions she personally observed or was informed of.
B. Risk Area 2: Volume Diversion to Cascade and Briarwood — Exclusivity Issues
Vantor's Allegation. Vantor's Amended Complaint, filed December 2, 2022, alleges that Stonefield diverted freight to competing carriers Cascade Freight Systems Inc. (4700 Lakehurst Court, Columbus, OH 43016) and Briarwood Trucking Co. (1280 Jefferson Davis Highway, Suite 310, Arlington, VA 22202) in violation of the exclusivity provisions contained in Schedule C of the TSA. Vantor contends that the exclusivity clause required Stonefield to tender all freight on the designated lanes exclusively to VTS and that Stonefield's use of alternative carriers constituted a material breach of the TSA.
Stonefield's Position. Our position, developed in the September 30, 2022 Exclusivity Analysis memorandum and reflected in Stonefield's Answer and Counterclaim, is that Schedule C of the TSA distinguishes between "Primary Lanes" and "Secondary Lanes." The exclusivity provisions apply only to the 14 designated Primary Lanes — specific origin-destination pairs enumerated in the schedule. Lanes 8–14, where Cascade and Briarwood were utilized, are classified as "Secondary Lanes" under Schedule C, Section 2(b), and are not subject to the exclusivity restrictions. Stonefield was contractually permitted to use alternative carriers on these lanes.
Supporting Evidence. Third-party subpoena responses received from Cascade (analyzed August 1, 2023) and Briarwood (analyzed August 3, 2023) confirm that Stonefield's use of these carriers was limited to Lanes 8–14, all of which fall within the Secondary Lane classification. There is no evidence in either the Stonefield production or the third-party responses that Stonefield tendered freight to Cascade or Briarwood on any of the 14 designated Primary Lanes during the TSA term.
Recommended Approach for Kirkwood
Kirkwood should testify that she was familiar with the lane classifications set forth in Schedule C of the TSA and that she understood the distinction between Primary Lanes and Secondary Lanes. She should explain that Stonefield's use of alternative carriers was limited to Secondary Lanes and was driven by operational necessity — specifically, VTS's rejection of freight tenders and its inability to provide adequate equipment and capacity on those lanes. She should be clear and affirmative on this point: volume was not diverted from Primary Lanes.
If pressed on whether she personally reviewed Schedule C before authorizing the use of alternative carriers on Lanes 8–14, Kirkwood should confirm that she was aware of the lane distinctions and acted within the contractual framework. She need not testify that she pulled out the contract and read it word-for-word before every operational decision, but she should convey that she understood the lane classifications and that her team's actions were consistent with the contractual terms.
Kirkwood should also testify that the freight diverted to Cascade and Briarwood was freight that VTS had either rejected through the tender process or could not service due to equipment unavailability. Stonefield was obligated to its shipper-customers to ensure that loads moved on schedule, and when VTS could not or would not accept tenders on the Secondary Lanes, Stonefield had no choice but to engage alternative carriers. This was not a strategic decision to undercut VTS — it was an operational necessity driven by VTS's own failures.
Kirkwood should avoid any suggestion, implication, or concession that volume was diverted from Primary Lanes at any point during the TSA term. If she is uncertain about the lane classification for any particular shipment or time period, she should defer to the contract compliance team and to the lane-by-lane data maintained by Raymond Hess's department.
C. Risk Area 3: Rate Adjustment Motive
Vantor's Allegation. A significant component of Vantor's case is the allegation that Stonefield's termination of the TSA was motivated not by genuine concerns about VTS's performance but by a desire to avoid paying higher rates under the annual rate adjustment scheduled for April 1, 2022. Under the TSA's Rate Adjustment Mechanism (Section 5.3), rates were indexed to a blended formula comprising 70% diesel fuel index and 30% CPI-U. The projected April 2022 adjustment would have increased per-mile rates by approximately 14.3%, from a weighted average of $2.87 per mile to $3.28 per mile, adding approximately $6.2 million in annual transportation costs to Stonefield. CRS will argue that this cost increase — occurring just weeks after the termination — was the real reason Stonefield ended the relationship.
Key Document. The principal document supporting this line of attack is a Rate Adjustment Memorandum prepared by Ashford Meridian LLP (2200 Ross Avenue, Suite 3600, Dallas, TX 75201) in February 2022. This memo analyzed the projected April 1, 2022 rate adjustment under the TSA's Rate Adjustment Mechanism and quantified the financial impact to Stonefield. The memo was prepared for Stonefield's internal use and has been produced in discovery. Whether Kirkwood saw this memo, was briefed on its contents, or participated in discussions where its conclusions were referenced will be areas of inquiry.
Anticipated CRS Questions
We anticipate CRS will pursue the following lines on this topic:
• Was Kirkwood aware of the upcoming rate adjustment and its approximate financial impact?
• Did the cost increase factor into any discussions about the VTS relationship or the decision to terminate?
• Did anyone at Stonefield discuss terminating the TSA specifically to avoid the rate increase?
• Was the Ashford Meridian rate adjustment memo circulated to Kirkwood or discussed in her presence?
• Was there a temporal connection between the projected rate increase and the acceleration of the termination process?
Recommended Approach for Kirkwood
Kirkwood should testify truthfully that she was generally aware that rates would adjust upward under the TSA's annual rate adjustment mechanism. This was not secret or unusual — it was a routine, contractually mandated process that had been applied in prior contract years without incident. Rate adjustments under the TSA's formula were a known feature of the agreement from the outset, and prior adjustments had been implemented without triggering any discussion of termination.
Kirkwood should firmly and clearly state that the rate adjustment did not factor into her recommendation or assessment regarding VTS's performance. Her concerns about VTS were purely operational: VTS was failing to meet its SLOs across all five performance categories, its fleet availability had dropped precipitously, and cargo claims were rising. These were the issues that drove her communications with Medina and her support for the Cure Notice process. Rate considerations were not part of that calculus.
Kirkwood should deny that the termination decision was motivated by cost avoidance. The decision to terminate was driven by VTS's sustained, documented performance failures — failures that were confirmed by objective data, acknowledged in part by VTS's own personnel, and corroborated by the Q4 2021 performance metrics.
A powerful contextual point: if Stonefield had wanted to avoid the rate increase, it would have been in Stonefield's interest to terminate before January 18, 2022 — the date the Cure Notice was issued. Instead, Stonefield initiated the contractual cure process in good faith, gave VTS a full 30-day cure period, and terminated only after VTS failed to cure its documented deficiencies. The timeline is inconsistent with a cost-avoidance motive.
If asked about specific conversations with other Stonefield personnel about costs or the rate adjustment, Kirkwood should testify to what she personally knows — conversations she participated in, statements she heard — but should not speculate about others' motivations. She should redirect the focus to the objective performance data that, in her view, warranted the termination irrespective of any rate considerations.
D. Risk Area 4: Knowledge of VTS's Volume Shortfall Arguments
Vantor's Position. VTS contends that its performance deficiencies were caused, in whole or in part, by Stonefield's own failure to tender the Annual Committed Volume ("ACV") of $43.2 million specified in the TSA. Vantor points to two contract years in particular:
• Contract Year 2 (April 2020–March 2021): Stonefield tendered $31.8 million against an ACV of $43.2 million — an apparent shortfall of $11.4 million (approximately 26%).
• Contract Year 3 (April 2021–January 2022): Stonefield tendered $36.5 million during the 10-month period from April 2021 through the January 2022 Cure Notice — which, annualized, would project to approximately $43.8 million, but Vantor disputes the prorated methodology.
Vantor's theory is that by failing to provide the committed volumes, Stonefield starved VTS of the revenue and freight density it needed to maintain its fleet and operational capacity at the levels required by the SLOs. In essence, Vantor argues that Stonefield created the very performance problems it then relied upon as the basis for termination.
Stonefield's Position. Our position addresses both contract years:
Contract Year 2: The ACV for CY2 was subject to the force majeure carve-out in Section 12.1 of the TSA for the impact of the COVID-19 pandemic on freight volumes during the period April through September 2020. Stonefield properly and timely invoked force majeure under Section 12.1 for this six-month period. The adjusted ACV for CY2, prorated to exclude the force majeure period, is $43.2 million × (6/12) = $21.6 million. Stonefield's actual tenders of $31.8 million for CY2 exceeded the adjusted minimum by $10.2 million — meaning Stonefield not only met but substantially exceeded its volume commitment when the force majeure adjustment is properly applied.
Contract Year 3: Vantor's CY3 shortfall calculation is based on a 12-month ACV applied to a 10-month period (the TSA was terminated effective March 4, 2022, during what would have been CY3). When properly prorated, the $36.5 million tendered during the first 10 months of CY3 represents an annualized run rate that was on track relative to the ACV. The shortfall calculation is disputed, and the precise methodology for prorating is a matter of contract interpretation that will likely be the subject of expert analysis.
Recommended Approach for Kirkwood
Kirkwood should acknowledge that the freight market softened significantly during the COVID-19 pandemic and that freight volumes declined across the industry during 2020. This is common knowledge in the logistics industry and need not be disputed or minimized. She should testify that Stonefield invoked force majeure under Section 12.1 of the TSA for the April–September 2020 period and that this invocation was proper and timely under the contract's terms.
Kirkwood should not concede that Stonefield failed to meet its volume commitments. If pressed on this point, she should defer to the contractual mechanics — the force majeure adjustment, the prorated calculations — and to the personnel who managed the financial reconciliation of the ACV. Specifically, she should defer to Raymond Hess, Director, Contract Compliance, and Priya Ramachandran in the finance department, who were responsible for tracking volume figures and performing ACV reconciliation.
If examining counsel presses Kirkwood on specific dollar amounts — the $43.2 million ACV, the $31.8 million CY2 figure, the $36.5 million CY3 figure — she should state that she does not recall the exact figures and that the financial reconciliation of committed volumes was handled by the contract compliance and finance teams. She should not attempt to perform calculations or defend specific numbers from memory. It is entirely appropriate — and advisable — for her to say: "I would need to review the records to give you an accurate answer. Those financial details were tracked by our contract compliance team."
IV. Anticipated Lines of Questioning by CRS
Based on our analysis of CRS's litigation posture, the Amended Complaint, Vantor's discovery requests, prior correspondence with CRS, and the deposition topics that Harrison Caldwell and Jason Whitford have pursued in other matters, we anticipate the following principal lines of questioning.
A. Background and Role
CRS will begin with standard foundational questions about Kirkwood's background, tenure, educational history, and professional experience. They will establish her role at Stonefield, her reporting structure (reports to Carlos Medina, SVP Operations), and the scope of her responsibilities as VP, Carrier Relations. CRS will want to establish on the record that Kirkwood was the senior Stonefield executive with day-to-day operational responsibility for the VTS relationship.
CRS will ask Kirkwood to describe how she managed the VTS relationship — the frequency and nature of her communications with VTS personnel, the tools and systems she used to track performance, the process by which freight was tendered and accepted, and the escalation procedures when service issues arose. CRS will also explore her interactions with Derek Pruitt, VP, Business Development at VTS (whose deposition is scheduled for July 10, 2023), and with Sandra Milescu, Director of Fleet Operations at VTS (to be deposed on August 4, 2023). CRS will be interested in establishing the nature, frequency, and content of communications between Kirkwood and these two individuals, particularly regarding VTS's performance and any assurances or commitments made on either side.
B. The TSA and Its Performance Requirements
CRS will test Kirkwood's understanding of the TSA's terms, with particular focus on the Service Level Obligations. The SLOs specified in the TSA required VTS to meet the following minimum performance thresholds:
• On-time pickup rate: ≥ 95%
• On-time delivery rate: ≥ 93%
• Tender acceptance rate: ≥ 90%
• Equipment availability: ≥ 85% of committed fleet capacity
• Cargo claims ratio: ≤ 0.5% of total shipment value
CRS will likely ask Kirkwood to walk through VTS's actual Q4 2021 performance against each of these thresholds. The Q4 2021 data shows VTS failed all five SLO categories:
• On-time pickup: 78.2% (vs. 95% threshold — 16.8 percentage point shortfall)
• On-time delivery: 81.6% (vs. 93% threshold — 11.4 percentage point shortfall)
• Tender acceptance: 71.4% (vs. 90% threshold — 18.6 percentage point shortfall)
• Equipment availability: approximately 62% (approximately 248 tractors deployed vs. 400 committed — 23 percentage point shortfall)
• Cargo claims ratio: 1.07% (16 claims totaling $387,400 in November–December 2021 alone — more than double the 0.5% threshold)
CRS will probe whether VTS's performance problems were new or had been developing over time, and whether Kirkwood raised concerns with VTS directly — informally or formally — before the January 18, 2022 Cure Notice. CRS will want to know whether Stonefield provided VTS with adequate notice or opportunity to address concerns before the formal cure process was initiated. This line of questioning is designed to support the narrative that Stonefield did not act in good faith and that the Cure Notice was a formalistic exercise rather than a genuine effort to afford VTS the opportunity to cure.
C. Volume Diversion and Alternative Carriers
This will be the most aggressive and sustained area of questioning. CRS will focus extensively on the September 22, 2021 email and the circumstances surrounding Stonefield's use of Cascade and Briarwood. Anticipated questions include:
• When did Stonefield begin using Cascade Freight Systems Inc. and Briarwood Trucking Co.?
• On which lanes, specifically, were these carriers used?
• Who at Stonefield authorized the diversion of freight to these carriers?
• What was the total dollar value of freight diverted to Cascade and Briarwood?
• Did Kirkwood personally authorize the diversion, and if so, when and under what circumstances?
• Did Kirkwood inform VTS or Derek Pruitt that Stonefield was tendering freight to Cascade and Briarwood on lanes that were within the scope of the TSA?
• Did Kirkwood believe the diversion was permitted under the terms of the TSA?
• Did Kirkwood review Schedule C of the TSA before authorizing or directing the use of alternative carriers?
• Was the diversion of freight to Cascade and Briarwood discussed at any internal Stonefield meetings?
• Who else at Stonefield was aware of the diversion?
D. The Cure Notice and Termination Process
CRS will explore Kirkwood's involvement in the decision to issue the Cure Notice dated January 18, 2022. CRS will want to know what role Kirkwood played in identifying the breaches cited in the notice, whether she recommended that the notice be issued, and whether she reviewed the notice before it was sent by Raymond Hess. CRS will also explore:
• Kirkwood's communications with Raymond Hess during the cure period (January 18 through February 17, 2022).
• Her reaction to Vantor's February 14, 2022 response, in which Derek Pruitt acknowledged "operational challenges" but disputed causation.
• Whether Kirkwood believed, as of February 17, 2022, that VTS had cured the deficiencies identified in the Cure Notice.
• What, if any, post-cure-period performance data Kirkwood reviewed and whether VTS's performance showed any improvement during or after the cure period.
• Kirkwood's involvement in, or knowledge of, the March 4, 2022 termination decision — who made the decision, when it was made, and what factors were considered.
E. Rate Adjustment Awareness and Motive
CRS will ask Kirkwood when she first learned about the projected April 2022 rate adjustment and its approximate financial impact. They will probe whether the rate adjustment was discussed in meetings, emails, or other communications that related to the VTS relationship or the termination decision. CRS will ask directly whether cost considerations influenced the timing or substance of the termination. They will also seek to establish whether Kirkwood saw or was briefed on the Ashford Meridian LLP rate adjustment analysis memo prepared in February 2022.
F. Communications with Vantor Personnel
CRS will seek to map out the full scope of Kirkwood's communications with VTS/Vantor personnel, particularly Pruitt and Milescu, regarding VTS's performance issues. CRS will be interested in:
• Whether Kirkwood gave any assurances to VTS about future volumes or the continuation of the TSA relationship.
• Whether Kirkwood ever indicated to anyone at Vantor that Stonefield was considering terminating the TSA prior to the issuance of the Cure Notice.
• Whether Kirkwood received complaints or requests from VTS regarding volume levels, and if so, how she responded.
• Whether Kirkwood communicated with VTS about Stonefield's use of alternative carriers on any lanes.
G. Internal Stonefield Discussions
CRS will probe the internal decision-making process at Stonefield. They will want to know who at Stonefield was involved in discussions about VTS's performance and the potential termination of the TSA. CRS may also attempt to explore whether Ridgeline Capital Partners, LP — Stonefield's private equity sponsor — was involved in or aware of the termination decision. Specifically, CRS may ask about Alison Trang and Brendan Carey of Ridgeline Capital Partners and whether they participated in any discussions about the VTS relationship. CRS will also ask about internal meetings or strategy sessions focused on the VTS relationship, the participants in those meetings, and the substance of the discussions.
V. General Deposition Preparation Guidelines for Kirkwood
A. Fundamental Rules
The following rules should be reviewed with Kirkwood during the preparation session and reinforced throughout:
1. Listen to the full question before answering. Do not begin your answer before the question is complete. This ensures you understand what is being asked and gives defending counsel the opportunity to interpose an objection if appropriate.
2. Answer only the question asked. Do not volunteer additional information, context, or explanation beyond what the question calls for. If the question can be answered "yes" or "no," answer "yes" or "no." If additional context is needed to make the answer accurate, provide it — but do not offer unsolicited narrative.
3. If you do not understand a question, say so. Do not guess at what the examiner means. Ask for clarification: "I'm not sure I understand the question. Could you rephrase it?" You are under no obligation to answer a question you do not understand.
4. If you do not recall, say "I don't recall." This is a perfectly proper and common answer in depositions. Do not guess, speculate, or reconstruct from assumptions. If your recollection is partial, you may say: "I don't recall specifically, but I believe..." — but only if you have an actual, good-faith partial recollection.
5. Do not speculate about the thoughts, motivations, or knowledge of others. You can testify to what you said, did, saw, or heard. You cannot testify to what Carlos Medina was thinking, what Tobias Wren decided, or what Ridgeline Capital Partners knew. If asked about others' states of mind, say: "I can't speak to what [that person] was thinking."
6. Pause briefly before answering. A brief pause — even a count of two or three seconds — before each answer serves two purposes: it allows defending counsel to object if the question is improper, and it gives you time to formulate a careful, precise answer. Do not rush.
7. Do not argue with examining counsel. Harrison Caldwell is an experienced, skilled litigator. He may ask leading questions, confrontational questions, or questions designed to provoke an emotional response. Remain professional, measured, and composed at all times. Do not become defensive, combative, or sarcastic. Your demeanor matters — this deposition may be played at trial.
8. Refer to documents only when shown them. Do not reference documents from memory unless you are certain of the content. If asked about a document you have not been shown, say: "I would need to see the document to answer that question accurately." If a document is placed in front of you, take the time to read it carefully before answering questions about it.
9. It is acceptable to say you need to review a document. You are not expected to have the TSA memorized. If asked about a contractual provision, you may say: "I would need to review the agreement to answer accurately."
10. Do not characterize documents or use legal terms. Do not describe VTS's performance failures as a "material breach" or refer to the termination as being "for cause" — these are legal conclusions. Use plain, factual language: "VTS was not meeting the performance requirements," "VTS rejected tenders," "VTS's on-time delivery rate was below the threshold in the contract." If a document uses a particular term, you may quote the document, but do not adopt legal characterizations on your own.
B. Key Themes for Kirkwood's Testimony
Across all lines of questioning, Kirkwood's testimony should consistently reflect the following themes:
• VTS's performance failures were real, sustained, and severe. All five SLO categories were missed in Q4 2021, many by substantial margins. This was not a marginal or debatable performance shortfall — it was a comprehensive failure across every measured dimension.
• Stonefield followed the contractual cure process in good faith. The Cure Notice was issued on January 18, 2022, specifying each breach. VTS was given a full 30-day cure period. Termination followed only after VTS failed to cure the documented deficiencies within the contractual timeframe.
• Volume diversion to Cascade and Briarwood was limited to Secondary Lanes. The diversion was on Lanes 8–14 only, which are classified as Secondary Lanes under Schedule C and are not subject to the exclusivity restrictions. The diversion was an operational response to VTS's own tender rejections and capacity shortfalls.
• The September 22, 2021 email expressed operational frustration, not a corporate decision. No termination decision was made in September 2021. The email was an informal internal communication reflecting legitimate concerns about a carrier that was failing to perform.
• The rate adjustment was a routine contractual mechanism and did not drive the termination decision. Rate adjustments had occurred in prior contract years. The termination decision was driven by VTS's documented performance failures, not by cost considerations.
• Kirkwood's role was operational. She managed the carrier relationship and monitored performance. Final termination decisions were made by General Counsel Tobias Wren and senior leadership. Kirkwood provided operational input but did not make the termination decision.
C. Topics to Redirect or Defer
Kirkwood should be prepared to redirect or defer on the following topics, as appropriate:
• Precise financial figures (volume amounts, ACV calculations, rate adjustment dollar impacts): Defer to Raymond Hess, Director of Contract Compliance, and Priya Ramachandran in the finance department. Kirkwood should state that she does not recall precise figures and that financial reconciliation was handled by the contract compliance and finance teams.
• Legal interpretations of TSA provisions (force majeure, exclusivity, liquidated damages, cure requirements): Defer to counsel or state that she is not a lawyer and cannot offer legal interpretations of the contract. She can testify to her understanding of the contract terms in general, operational terms, but should not attempt to parse legal language or defend contractual arguments.
• Ridgeline Capital Partners' involvement in the termination decision: Defer to Marcus Denton, CEO, or Tobias Wren, General Counsel. Kirkwood should state that she does not know the extent of Ridgeline's involvement, if any, in the termination decision. She should not speculate about what Ridgeline knew or directed.
• Settlement discussions or litigation strategy: Assert attorney-client privilege. Defending counsel will instruct the witness not to answer any questions that seek to elicit information about settlement discussions, litigation strategy, or Stonefield's assessment of its litigation position.
• Communications with Calderwood & Harkness LLP or Ashford Meridian LLP regarding legal advice: Assert attorney-client privilege. Any questions about the substance of legal advice received by Stonefield from its counsel are privileged and should not be answered. Defending counsel will instruct the witness not to answer.
VI. Document Review List for Witness Preparation Session (July 11, 2023)
Kirkwood should review the following documents in advance of the preparation session scheduled for July 11, 2023. Copies of all listed documents will be assembled by Helen Tsao, Senior Paralegal, and provided to Kirkwood under attorney-client privilege protections. A physical binder and a digital copy on the secure Calderwood & Harkness platform will be delivered to Kirkwood no later than July 9, 2023.
A. TSA and Related Contract Documents
1. Transportation Services Agreement dated March 15, 2019 (Contract Ref. No. SLG-VTS-2019-0315) — full executed copy, including all schedules and exhibits.
2. Schedule B — Rate Structure by Lane, setting forth per-mile and accessorial rates for each designated lane.
3. Schedule C — Exclusivity provisions, including the designation of Primary Lanes and Secondary Lanes (Section 2(b)). Kirkwood should be thoroughly familiar with the distinction between Primary and Secondary Lanes and the scope of the exclusivity obligation.
4. Section 5.3 — Rate Adjustment Mechanism, including the indexing formula (70% diesel fuel index, 30% CPI-U) and the annual adjustment dates.
5. Section 7.4 — Substitute Equipment / Surge Capacity obligations, addressing VTS's obligation to maintain and deploy committed equipment levels.
6. Section 12.1 — Force Majeure, including the definition of force majeure events and the notice and adjustment procedures.
7. Section 13.1 — Termination for Cause, including the grounds for termination and the procedural requirements.
8. Section 13.2 — Cure Notice requirements, including the form and content of the notice, the cure period, and the consequences of failure to cure.
9. Section 14.2 — Liquidated Damages provisions.
10. Section 15.1 — Consequential Damages Waiver.
B. Cure Notice and Termination Documents
11. Cure Notice dated January 18, 2022 — from Raymond Hess (Director, Contract Compliance, Stonefield) to Sandra Milescu (Director, Fleet Operations, VTS). This notice specified the material breaches of the SLOs across all five performance categories and invoked the 30-day cure period under Section 13.2.
12. Vantor Response dated February 14, 2022 — from Derek Pruitt (VP, Business Development, VTS) to Janet Kirkwood. Pruitt acknowledged "operational challenges" but disputed the characterization that VTS bore sole responsibility for the performance failures, contending that Stonefield's failure to tender committed volumes contributed to the shortfalls.
13. Termination Letter dated March 4, 2022 — from Tobias Wren (General Counsel, Stonefield) to Vantor Holdings Corp. and Vantor Transport Services LLC, terminating the TSA effective immediately for failure to cure the material breaches identified in the January 18, 2022 Cure Notice.
C. Internal Stonefield Communications (Key Risk Documents)
14. September 22, 2021 email — Kirkwood to Medina. This is the critical risk document. The email states: "VTS is a mess. We're already moving volume to Cascade and Briarwood on Lanes 8–14. If VTS doesn't get its act together by Q1 I think we pull the plug on the whole contract." Kirkwood must be thoroughly prepared on this document — it will be the focal point of CRS's examination.
15. Any responsive emails or communications from Carlos Medina or others in the email chain responding to or referencing the September 22, 2021 email.
16. Kirkwood's communications with Derek Pruitt (Vantor) regarding VTS performance issues — all available documents in the production within the SLG Bates range. These communications will show the nature and frequency of Kirkwood's engagement with VTS on performance concerns.
17. Kirkwood's communications with Raymond Hess regarding VTS performance monitoring and the cure notice process, including emails discussing VTS's SLO metrics, the decision to issue the Cure Notice, and the evaluation of VTS's response.
18. Any internal Stonefield emails or memoranda discussing the use of Cascade Freight Systems Inc. or Briarwood Trucking Co. on specific lanes, including any approvals, notifications, or operational directives related to the diversion.
D. Performance Data
19. VTS Q4 2021 Performance Report — an internal VTS document obtained in discovery showing VTS's actual performance metrics for Q4 2021, confirming that VTS fell below SLO thresholds across all five measured categories (on-time pickup, on-time delivery, tender acceptance, equipment availability, and cargo claims ratio).
20. Stonefield internal performance tracking data for VTS covering Q3 2021 and Q4 2021, reflecting the trajectory of VTS's declining performance over the second half of 2021.
21. VTS Carrier Performance Portal data printouts used by Raymond Hess in preparing the metrics cited in the January 18, 2022 Cure Notice.
E. Rate Adjustment Documents
22. Ashford Meridian LLP rate adjustment analysis memorandum, dated February 2022, analyzing the projected April 2022 rate increase under the TSA's Rate Adjustment Mechanism. The memo projects an increase from a weighted average of $2.87 per mile to $3.28 per mile (a 14.3% increase), resulting in approximately $6.2 million in additional annual transportation costs to Stonefield.
23. Any emails or communications involving Kirkwood discussing the April 2022 rate adjustment, the Ashford Meridian analysis, or the financial impact of the rate increase.
F. Documents from Vantor's Production
24. Sandra Milescu internal email dated November 12, 2021 (Bates No. VHC-008417) — from Sandra Milescu to Nikolai Vantorovich. This email states: "We've pulled 85 tractors off the SLG dedicated lanes to cover [redacted] commitments. SLG won't notice until January." This is an extraordinarily significant document for Stonefield's defense, as it demonstrates that VTS intentionally reduced its dedicated fleet capacity for Stonefield by redeploying 85 tractors to service commitments with another customer, and did so without notifying Stonefield. Kirkwood should be aware of this document as critical context for VTS's performance failures, though she may not have seen it before it was produced in discovery.
25. Key fleet redeployment documents from Vantor's supplemental production, dated June 22, 2023 (4,218 documents), showing that VTS redirected 85 tractors from Stonefield-dedicated lanes to the Northwind Distribution Co. account beginning in October 2021. These documents corroborate the Milescu email and establish that VTS's equipment availability decline was self-inflicted.
G. Deposition Transcript