PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP LITIGATION (GENERAL) PRACTICE GROUP
MEMORANDUM
ATTORNEY-CLIENT PRIVILEGED / ATTORNEY WORK PRODUCT — DO NOT DISTRIBUTE. This memorandum constitutes protected attorney work product prepared in anticipation of litigation and contains privileged attorney-client communications. Distribution outside the Calderwood & Harkness LLP litigation team assigned to the above-captioned matter is strictly prohibited without the express written authorization of the Responsible Partner.
I. Introduction and Purpose
This memorandum analyzes the responses of Vantor Holdings Corp. ("Vantor" or "Plaintiff") to the First Set of Interrogatories propounded by Defendant Stonefield Logistics Group Inc. ("Stonefield" or "SLG") in the above-captioned action. Stonefield's First Set of Interrogatories was served on March 6, 2023 by Patrick Gallagher on Caldwell Royce & Shapiro LLP ("CRS"), counsel of record for Vantor. Vantor served its responses on or about April 28, 2023, contemporaneously with its first document production comprising 28,914 documents totaling approximately 112,000 pages.
The First Set of Interrogatories contained twenty-five (25) interrogatories targeting five principal subject areas: (1) Vantor's damages calculations and the underlying methodology for each claimed category of harm; (2) Vantor's mitigation efforts (or lack thereof) following the termination of the Transportation Services Agreement dated March 15, 2019 ("TSA," Contract Ref. No. SLG-VTS-2019-0315); (3) Vantor Transport Services LLC's ("VTS") fleet deployment decisions during the critical period of Q3–Q4 2021, when service level performance deteriorated sharply; (4) VTS's actual performance against the contractual Service Level Obligations ("SLOs") set forth in the TSA; and (5) the factual basis for Vantor's allegation, set forth in the Amended Complaint filed December 2, 2022, that Stonefield's termination of the TSA on March 4, 2022 was "pretextual" and not a good-faith exercise of the Termination for Cause provision under Section 13.1 of the TSA.
The purpose of this memorandum is threefold:
1. Identify deficiencies, evasions, and key admissions in Vantor's interrogatory responses, with particular attention to responses that are materially non-responsive or that rely on improper boilerplate objections in lieu of substantive answers.
2. Flag interrogatory responses that may warrant a motion to compel supplementation under Fed. R. Civ. P. 37(a)(3)(B)(iii), identifying the specific deficiencies that should be raised in a meet-and-confer letter to CRS as a predicate for any such motion.
3. Assess how Vantor's responses bear on Stonefield's defense strategy, including the strength of our affirmative defenses of termination for Cause, first-to-breach, and failure to mitigate, as well as identifying opportunities to exploit admissions in Vantor's responses during depositions and at summary judgment.
This analysis should be read in conjunction with two companion memoranda: (a) the forthcoming Analysis of Vantor's First Document Production (memo dated May 12, 2023), which evaluates the approximately 28,914 documents produced by Vantor on April 28, 2023; and (b) the Analysis of Vantor's Responses to Stonefield's First Set of Requests for Admission (memo dated May 10, 2023), which identifies several significant admissions that reinforce the findings discussed herein.
II. Executive Summary of Key Findings
Overall Assessment
Vantor's responses to Stonefield's First Set of Interrogatories are materially deficient in several critical areas. While Vantor provides substantive — if self-serving — answers on certain topics (most notably the factual basis for the "pretextual termination" allegation in Interrogatory No. 5, and quarterly SLO performance data in Interrogatory Nos. 6–8), the responses are notably evasive on two categories of information that are central to Stonefield's defense: (1) VTS's fleet redeployment decisions during Q3–Q4 2021 (Interrogatory No. 9), and (2) Vantor's post-termination mitigation efforts (Interrogatory No. 14). Several additional responses contain boilerplate objections followed by non-responsive narratives that recite conclusions without providing the underlying factual detail required by Fed. R. Civ. P. 33.
Key Evasive Responses
Interrogatory Nos. 9, 14, 18, and 22 are the most problematic. In each instance, Vantor interposes objections of varying specificity and then provides either a conclusory narrative devoid of factual detail or a general reference to its document production without identification of specific documents. These responses fail to meet the standard articulated in Rule 33(b)(3), which requires that each interrogatory "be answered separately and fully in writing under oath." The deficiencies are summarized as follows:
• Interrogatory No. 9 (Fleet Redeployment): Vantor refuses to identify any specific redeployment decision, date, decision-maker, number of units, or destination account, offering instead a generic description of "ordinary course" fleet management.
• Interrogatory No. 14 (Mitigation Efforts): Vantor asserts a meritless privilege objection and then fails to identify a single potential replacement customer, a single date of any outreach effort, or a single dollar of replacement revenue.
• Interrogatory No. 18 (Exclusivity Violations): Vantor references "Lanes 8 through 14" without specifying whether these are Primary Lanes (subject to exclusivity) or Secondary Lanes (not subject to exclusivity), and our analysis confirms they are Secondary Lanes.
• Interrogatory No. 22 (Replacement Shipper Communications): Vantor effectively provides a non-answer, asserting that VTS "engaged in business development activities consistent with its ordinary course practices" without identifying any specific communication, counterparty, or date.
Key Admissions and Helpful Responses
Despite the deficiencies noted above, Vantor's responses contain several concessions that materially support Stonefield's position:
• Implicit acknowledgment of SLO failures in Q4 2021: Vantor does not dispute that VTS's performance fell below all five SLO thresholds during Q4 2021. The only dispute concerns the magnitude of the cargo claims ratio (0.87% vs. 1.07%), but even Vantor's own figure exceeds the 0.5% SLO threshold.
• Inability to identify specific replacement freight secured post-termination: Vantor's failure to identify any replacement freight, replacement revenue, or specific mitigation activity strongly supports our failure-to-mitigate defense.
• Absence of direct evidence of pretextual intent: While Vantor cites the September 22, 2021 Kirkwood email, the response conspicuously fails to identify any direct communication from senior SLG leadership directing a pretextual termination strategy.
• No insurance coverage: Vantor confirms it maintained no business interruption or contract-specific insurance covering the TSA — a fact that bears on the reasonableness of the liquidated damages provision and Vantor's risk allocation.
Recommendation
We should prepare and serve a meet-and-confer letter on CRS (attention: Jason Whitford, Senior Associate) demanding supplementation of Interrogatory Nos. 9, 14, 18, and 22. The meet-and-confer letter should be sent no later than May 30, 2023, specifying the deficiencies in each response, citing the applicable provisions of Fed. R. Civ. P. 33 and 37, and demanding supplementation within fourteen (14) days. This approach is consistent with Judge Calloway's Individual Practices, Rule 4.A (requiring that discovery disputes be raised in a meet-and-confer letter before any application to the Court), and with the Case Management Order entered February 17, 2023, which establishes an expedited discovery dispute resolution procedure requiring submission of a joint letter brief before any formal motion to compel. If Vantor does not adequately supplement following the meet-and-confer, we should prepare a letter brief for Judge Calloway seeking an order compelling full and complete responses.
III. Interrogatory-by-Interrogatory Analysis
A. Interrogatory Nos. 1–4: Identification of Parties and Corporate Structure
Subject Matter: Interrogatory Nos. 1 through 4 asked Vantor to identify: (1) all entities and persons involved in the performance of the Transportation Services Agreement dated March 15, 2019 (Contract Ref. No. SLG-VTS-2019-0315); (2) the corporate relationship between Vantor Holdings Corp. and Vantor Transport Services LLC ("VTS"), including the date and state of organization of each entity, ownership structure, and any changes in corporate form during the relevant period; (3) the individuals with decision-making authority over the Stonefield account, including each individual's title, responsibilities, and tenure; and (4) any third-party subcontractors or affiliates utilized by VTS in performing obligations under the TSA.
Summary of Responses: Vantor's responses to these interrogatories are generally adequate and largely consistent with our prior understanding of the parties' corporate and organizational structure. Specifically, Vantor confirms the following material facts:
• VTS is a wholly owned subsidiary of Vantor Holdings Corp., organized as a New York limited liability company, with its principal place of business at 450 West 33rd Street, 12th Floor, New York, New York 10001.
• Sandra Milescu, Chief Operating Officer of VTS, had day-to-day operational authority over the Stonefield account throughout the term of the TSA. Ms. Milescu's responsibilities included fleet allocation, driver assignment, and operational performance management for the SLG dedicated fleet.
• Derek Pruitt, Vice President of Business Development for Vantor Holdings Corp., served as the primary relationship manager for the Stonefield account and was responsible for commercial negotiations, contract administration, and dispute resolution.
• Nikolai Vantorovich, Chief Executive Officer and Founder of Vantor Holdings Corp., had ultimate executive authority over all Vantor entities and was involved in strategic decisions regarding the TSA, including the response to the Cure Notice.
• VTS utilized no third-party subcontractors in performing the core transportation obligations under the TSA, although it contracted with two equipment maintenance providers (Apex Fleet Services and TriState Maintenance Corp.) for tractor and trailer servicing at certain VTS terminals.
Assessment: These responses are substantially non-controversial and confirm the roles of Ms. Milescu, Mr. Pruitt, and Mr. Vantorovich as key fact witnesses. The identification of these individuals as central decision-makers is helpful for deposition planning and will support the argument that their respective depositions are necessary and proportional to the needs of this case. We do not recommend seeking supplementation of these responses.
Note on Standing Issue: While the corporate structure confirmation is straightforward, Vantor's responses raise a question that remains unresolved: the responses do not clearly delineate which entity — Vantor Holdings Corp. or VTS — suffered the alleged damages. The TSA was executed by VTS as the performing entity, yet the Amended Complaint was filed by Vantor Holdings Corp. as the sole named plaintiff. Vantor appears to assert claims on behalf of both entities without differentiation, stating that "Vantor Holdings Corp. and its wholly owned subsidiary, VTS, sustained damages as a direct and proximate result of Stonefield's wrongful termination." This is relevant to the standing analysis set forth in the Memorandum re Vantor's Standing — Parent vs. Subsidiary, dated December 8, 2022, which concluded that Vantor Holdings Corp. may lack standing to assert contract damages suffered by its subsidiary absent an assignment or third-party beneficiary theory. We should continue to monitor this issue and consider raising it in a pre-motion letter if Vantor does not clarify the standing question prior to summary judgment.
B. Interrogatory No. 5: Basis for "Pretextual Termination" Allegation
Subject Matter: Interrogatory No. 5 asked Vantor to state all facts supporting its allegation in Paragraph 47 of the Amended Complaint that Stonefield's termination of the TSA on March 4, 2022 was "pretextual" and not a good-faith exercise of the Termination for Cause provision under Section 13.1, and to identify all documents and communications supporting this contention.
Summary of Response: Vantor provides a detailed narrative alleging four principal categories of facts in support of its pretextual termination theory:
(i) Rate Adjustment Timing: Vantor alleges that Stonefield was aware of the upcoming April 2022 rate adjustment under Section 5.3 of the TSA, which 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. Vantor contends that the proximity of the termination date (March 4, 2022) to the effective date of the rate adjustment (April 1, 2022) is indicative of a cost-avoidance motive rather than a genuine concern about performance.
(ii) Pre-Cure Notice Freight Diversion: Vantor alleges that Stonefield had already begun diverting freight to competing carriers, specifically Cascade Freight Systems Inc. ("Cascade") and Briarwood Trucking Co. ("Briarwood"), before the Cure Notice was issued on January 18, 2022. Vantor contends that this diversion began as early as August 2021 and accelerated through Q4 2021, reducing the freight volumes available to VTS and contributing to VTS's inability to meet SLO targets.
(iii) The Kirkwood Email: Vantor cites the September 22, 2021 internal email from Janet Kirkwood, Vice President of Carrier Relations at SLG, to Carlos Medina, Senior Vice President of Operations at SLG, in which Ms. Kirkwood references moving volume and states that SLG should consider "pull[ing] the plug on the whole contract." Vantor characterizes this email as demonstrating premeditated intent to exit the TSA irrespective of VTS's actual performance.
(iv) Deliberate Volume Withholding: Vantor alleges that Stonefield failed to tender the Annual Committed Volume ("ACV") of $43.2 million in Contract Years 2 and 3 (CY2: April 2020–March 2021; CY3: April 2021–March 2022), and characterizes this failure as deliberate volume withholding designed to degrade VTS's financial position and operational capacity, thereby creating a pretext for termination under Section 13.1.
Assessment: This is one of Vantor's more substantive responses, and it provides a useful preview of the factual narrative Vantor intends to present at trial. However, the response has significant weaknesses that can be exploited.
First, the response conflates factual allegations with legal conclusions. Vantor characterizes Stonefield's termination as a "cost-avoidance scheme" and "premeditated exit strategy," but these are legal characterizations, not facts. The underlying facts — the existence of the rate adjustment, the use of Cascade and Briarwood on certain lanes, the Kirkwood email, and the volume tender amounts — are not themselves evidence of pretext; they are at most circumstantial evidence from which a pretext inference might be drawn, and each fact has an independent, legitimate explanation.
Second, and importantly, the response does not identify any direct evidence of a corporate decision to use the Cure Notice as a pretext. There is no alleged board resolution, no executive directive, no strategy memorandum, and no communication from senior SLG leadership — specifically, CEO David Denton, COO Margaret Wren, or CFO Priya Ramachandran — directing or approving a pretextual termination strategy. The strongest piece of evidence cited is the Kirkwood email, and Ms. Kirkwood is a mid-level executive whose authority does not extend to contract termination decisions.
Third, our prior analysis in the Memorandum re Pretext and Good Faith in Termination for Cause, dated October 7, 2022, concluded that even if Stonefield had mixed motives for exercising its termination right — including a desire to avoid the rate adjustment — the termination remains valid under New York law if objective Cause existed at the time of termination. See Restatement (Second) of Contracts § 250 cmt. b; Atel Capital Equipment Fund VIII, LLC v. Resolute Holdings, Inc., 2013 WL 2356102, at *5 (S.D.N.Y. 2013) (holding that the "existence of other motives does not render a termination for cause pretextual where the stated cause objectively existed"). Vantor's response here does not identify any fact that undermines this legal analysis.
Usefulness for Summary Judgment: The Kirkwood email (September 22, 2021) is the strongest piece of evidence in Vantor's arsenal on the pretext issue, and its treatment will be important. However, the email's evidentiary value depends heavily on context, and Ms. Kirkwood's deposition (scheduled for July 14, 2023) will be critical to establishing that context. We should prepare to elicit testimony that: (a) the email was a preliminary internal discussion, not a directive; (b) the decision to issue the Cure Notice was made months later and by different decision-makers; and (c) the Cure Notice was issued only after Q4 2021 performance data confirmed material breaches. The interrogatory response helpfully fails to identify any direct communication from Messrs. Denton or Medina or from Ms. Wren or Ms. Ramachandran directing a pretextual termination, and this omission should be highlighted in summary judgment briefing.
C. Interrogatory Nos. 6–8: TSA Performance and Service Level Obligations
Subject Matter: Interrogatory Nos. 6 through 8 asked Vantor to identify VTS's actual performance against each of the five Service Level Obligations ("SLOs") set forth in Schedule B of the TSA for each quarter from Q1 2020 through Q1 2022. The five SLOs are:
(a) On-Time Pickup Rate: 95% SLO threshold;
(b) On-Time Delivery Rate: 93% SLO threshold;
(c) Tender Acceptance Rate: 90% SLO threshold;
(d) Cargo Claims Ratio: ≤ 0.5% SLO threshold; and
(e) Equipment Availability: 85% of committed fleet capacity (i.e., a minimum of 340 tractors and 1,020 trailers available at all times, calculated against the committed fleet capacity of 400 tractors and 1,200 trailers).
The interrogatories further asked Vantor to identify the source of the performance data, the methodology used to calculate each metric, and any known discrepancies between VTS's internal records and the data recorded in Stonefield's transportation management system ("TMS").
Summary of Responses: Vantor provides quarterly performance metrics for each of the five SLOs for Q1 2020 through Q3 2021. For this seven-quarter period, the data generally shows compliance or near-compliance with SLO thresholds, with only isolated instances of marginal underperformance (e.g., on-time pickup at 94.1% in Q2 2020, slightly below the 95% threshold, which Vantor attributes to COVID-19-related disruptions).
For Q4 2021, which is the critical performance period underlying the Cure Notice, Vantor's response tracks closely — and in most cases identically — with the metrics set forth in Stonefield's Cure Notice dated January 18, 2022:
The sole metric on which Vantor disputes Stonefield's data is the cargo claims ratio. Vantor asserts that the ratio was 0.87% rather than the 1.07% cited in the Cure Notice. Vantor attributes the discrepancy to the exclusion of two specific claims — one involving a load of consumer electronics (Claim No. VTS-2021-4872, valued at approximately $47,000) and one involving a shipment of packaged food products (Claim No. VTS-2021-5103, valued at approximately $31,000) — which Vantor contends were attributable to shipper packaging deficiencies rather than carrier-caused damage.
Vantor's response also contains an extended narrative contextualizing the Q4 2021 performance failures. Vantor cites three factors: (a) the nationwide driver shortage, which Vantor characterizes as an industry-wide crisis affecting all carriers; (b) Stonefield's alleged volume shortfalls, which Vantor contends reduced the revenue base available to VTS and forced the company to make difficult fleet allocation choices; and (c) Stonefield's alleged instructions to VTS to divert certain loads to spot market carriers in Q3 and Q4 2021, which Vantor contends disrupted VTS's operational planning and reduced equipment utilization.
Assessment: The significance of Vantor's response to these interrogatories cannot be overstated. Vantor does not dispute that Q4 2021 performance fell below all five SLO thresholds. The only factual dispute concerns the magnitude of the cargo claims ratio — 0.87% versus 1.07% — and this dispute is immaterial because even Vantor's own figure of 0.87% exceeds the contractual threshold of 0.5% by a wide margin. This constitutes a significant concession that provides direct evidentiary support for our Cause defense under Section 13.1 of the TSA.
The contextual narrative — blaming the driver shortage, volume shortfalls, and alleged diversion instructions — consists of explanations for why performance failed, not disputes that it failed. These explanations may be relevant to Vantor's argument that Stonefield's conduct contributed to or caused the performance failures (a species of the prevention doctrine), but they do not alter the fact that the SLO failures existed at the time the Cure Notice was issued and persisted through the end of the cure period.
Moreover, the driver shortage explanation cuts against Vantor's own case. If VTS was experiencing a severe driver shortage, it was all the more unreasonable for VTS to have redeployed 85 tractors away from the SLG dedicated fleet in October 2021 (a fact we know from the Milescu email, VHC-008417, but which Vantor has conspicuously failed to disclose in its response to Interrogatory No. 9, discussed below).
Cross-Reference with RFA Responses: Vantor's responses to Stonefield's First Set of Requests for Admission, analyzed separately in the memorandum dated May 10, 2023, include an admission that the on-time pickup rate was 78.2% in Q4 2021 and an admission that the tender acceptance rate was 71.4% during the same period. Combined with the interrogatory responses, these admissions provide a strong evidentiary foundation for establishing that VTS was in material breach of the TSA at the time of the Cure Notice and that the breaches were not cured within the 30-day cure period.
D. Interrogatory No. 9: Fleet Redeployment Decisions
DEFICIENT — MOTION TO COMPEL RECOMMENDED
Subject Matter: Interrogatory No. 9 asked Vantor to describe all decisions made by VTS to reassign, redeploy, or remove tractors, trailers, or drivers from the SLG dedicated fleet during the period from July 1, 2021 through March 4, 2022, including for each such decision: (a) the date of the decision; (b) the number of tractors, trailers, and/or drivers affected; (c) the identity of the individual(s) who authorized or approved the decision; (d) the reasons for the decision; and (e) the accounts or operations to which the equipment or personnel were redeployed.
Summary of Response: Vantor interposes two objections: (1) "overbreadth," claiming the interrogatory encompasses "routine fleet management decisions" unrelated to the claims or defenses; and (2) "undue burden," asserting that the interrogatory "seeks granular operational detail" that would require a disproportionate effort to compile. Subject to and without waiving these objections, Vantor states:
"VTS periodically adjusted fleet allocations across its customer base in the ordinary course of business in response to market conditions, customer demand fluctuations, and driver availability. Any adjustments to fleet allocations during the referenced period were consistent with VTS's obligations under the TSA and were responsive to Stonefield's own failure to tender committed volumes."
That is the entirety of Vantor's substantive response. No specific redeployment decision is identified. No date is provided. No decision-maker is named. No number of units is disclosed. No destination account is mentioned.
Assessment: This response is grossly deficient and constitutes a textbook example of an evasive answer under Fed. R. Civ. P. 33(b)(3). The response provides no specific factual information whatsoever and instead offers a generic description of "ordinary course" fleet management practices cloaked in the language of justification ("consistent with VTS's obligations" and "responsive to Stonefield's own failure to tender committed volumes"). This is precisely the type of non-responsive narrative that courts in this District routinely compel parties to supplement. See, e.g., Lugosch v. Congel, 2007 WL 1959758, at *3 (N.D.N.Y. 2007) (ordering supplementation where interrogatory responses were "general and conclusory, lacking specific facts").
The deficiency is all the more glaring in light of what we already know from Vantor's own document production. The Milescu-to-Vantorovich email dated November 12, 2021 (Bates No. VHC-008417) states in relevant part:
"We've pulled 85 tractors off the SLG dedicated lanes to cover [redacted] commitments. SLG won't notice until January."
This email, which was produced by Vantor as part of its April 28, 2023 document production, directly contradicts the interrogatory response's characterization of fleet adjustments as "routine" and "responsive to Stonefield's own failure to tender committed volumes." The email reveals: (a) a deliberate decision to remove a substantial portion of the SLG dedicated fleet (85 tractors out of a committed fleet of 400, representing a 21.25% reduction); (b) an intention to conceal the redeployment from Stonefield; and (c) an allocation of the removed equipment to another customer (the identity of which has been redacted in the produced document).
Vantor's interrogatory response does not disclose any of this information. Specifically, Vantor fails to disclose:
(i) The October 2021 decision to pull 85 tractors off SLG dedicated lanes, which we know occurred from the Milescu email;
(ii) The identity of the specific accounts to which equipment was redeployed — our document review has identified Northwind Distribution Co. as a likely recipient based on cross-referencing fleet deployment records in Vantor's production, but Vantor's interrogatory response does not name any account;
(iii) The date(s) on which the redeployment decisions were made; and
(iv) Who authorized the decisions — though the Milescu email's reference to "we've pulled" and its recipient (Vantorovich) suggests the decision was made at the COO/CEO level.
Relevance: Fleet redeployment is central to both parties' cases and goes directly to four critical elements of Stonefield's defense:
(a) First Material Breach: Whether VTS committed the first material breach of the TSA by unilaterally reducing committed fleet capacity below the contractual minimum of 400 tractors, in violation of the equipment availability SLO, prior to and independent of any alleged volume shortfall by Stonefield. If VTS voluntarily removed 85 tractors in October 2021, it could not meet the 85% equipment availability threshold (requiring 340 tractors) regardless of Stonefield's conduct.
(b) First-to-Breach Defense: Our affirmative defense under the first-to-breach doctrine (analyzed in the Memorandum re First-to-Breach Doctrine, dated March 15, 2023) depends on establishing that VTS's unilateral fleet reduction preceded and caused the SLO failures cited in the Cure Notice. The fleet redeployment facts are the factual foundation of this defense.
(c) Causation: Whether VTS's Q4 2021 performance failures were caused by Stonefield's conduct (as Vantor alleges) or by VTS's own voluntary reallocation of resources to other customers. If VTS pulled 85 tractors to serve a competing customer, its performance failures were self-inflicted and cannot be attributed to Stonefield.
(d) Credibility: The November 12, 2021 Milescu email — with its suggestion that "SLG won't notice until January" — demonstrates an intent to conceal the redeployment from Stonefield. This is powerful impeachment evidence and goes to Vantor's overall credibility. The fact that Vantor's interrogatory response fails to disclose this redeployment, despite the email's existence in Vantor's own files, compounds the credibility problem.
Recommendation: This is the highest-priority deficiency for supplementation. The meet-and-confer letter should demand a complete, sworn answer identifying every fleet redeployment decision during the period from July 1, 2021 through March 4, 2022, including the specific dates of each decision, the identity of the decision-maker(s), the number of tractors and trailers affected, the accounts to which equipment and personnel were redeployed (including but not limited to Northwind Distribution Co.), and the stated rationale for each decision. The letter should cite the Milescu email (VHC-008417) as demonstrating that Vantor possesses the very information it claims is burdensome to compile.
If Vantor refuses to supplement after the meet-and-confer, we should seek a court order compelling a full response. The objections of "overbreadth" and "undue burden" are without merit — the interrogatory is narrowly tailored to a specific eight-month period and asks for precisely the type of factual detail that interrogatories are designed to elicit. We should also note that our Second Request for Production of Documents, served on CRS on May 5, 2023, includes twelve (12) targeted requests, of which RFP Nos. 1 through 5 specifically focus on VTS fleet redeployment records for Q3–Q4 2021, including fleet allocation reports, driver assignment logs, equipment transfer records, and internal communications regarding the reassignment of SLG-dedicated assets. These document requests are designed to obtain the documentary support for the interrogatory answers Vantor has failed to provide, and the combined interrogatory/document request strategy should provide comprehensive evidence of VTS's fleet redeployment decisions.
E. Interrogatory Nos. 10–13: Stonefield's Alleged Volume Shortfalls
Subject Matter: Interrogatory Nos. 10 through 13 asked Vantor to identify and quantify the alleged shortfalls in Stonefield's annual volume tenders for Contract Years 2 and 3 (CY2: April 2020–March 2021; CY3: April 2021–March 2022), including the specific freight volumes tendered by month (measured in both loaded miles and revenue dollars), the total dollar amounts for each contract year, and the basis for Vantor's contention that Stonefield's force majeure invocation under Section 12.1 (covering the period April–September 2020) was invalid or inapplicable to the ACV obligation.
Summary of Responses: Vantor provides detailed monthly freight tender data for both CY2 and CY3, broken down by loaded miles and revenue dollars. The data is presented in tabular format and appears to be derived from VTS's internal billing and dispatch records.
For Contract Year 2 (April 2020–March 2021), Vantor states that actual tenders totaled $31.8 million against the Annual Committed Volume ("ACV") of $43.2 million, reflecting an alleged shortfall of $11.4 million (approximately 26.4% below the ACV). Vantor contests Stonefield's force majeure invocation under Section 12.1 for the COVID-19 period (April–September 2020), arguing that the force majeure clause requires "direct physical impact" on the party's ability to perform and that a general decline in freight demand is an economic condition falling outside the scope of the clause. Vantor further argues that even if force majeure applied during April–September 2020, the volume shortfall persisted throughout the remainder of CY2 (October 2020–March 2021), during which period no force majeure event existed.
For Contract Year 3 (partial: April 2021–January 2022, representing 10 months prior to termination), Vantor states that actual tenders were $36.5 million, reflecting an alleged shortfall of $6.7 million against the full $43.2 million ACV.
Assessment: The factual data on monthly tender amounts is helpful and is generally consistent with our own records derived from Stonefield's TMS system. However, Vantor's legal and mathematical arguments regarding the volume shortfalls contain significant flaws.
With respect to the force majeure dispute, Vantor's argument is unpersuasive. Our prior analysis in the Memorandum re Force Majeure Defense, dated September 22, 2022, concluded that Stonefield's invocation of force majeure was timely and proper. The TSA's force majeure clause (Section 12.1) expressly encompasses "epidemics, pandemics, quarantines, or governmental orders restricting commerce" as qualifying events excusing performance, and Stonefield properly invoked the clause by written notice dated April 14, 2020 for the period April through September 2020. Vantor's "direct physical impact" gloss finds no support in the contract language, which contains no such limitation. Under New York law, force majeure clauses are to be interpreted in accordance with their terms, and where the clause specifically enumerates the triggering event (here, pandemics), the question of whether the event qualifies is resolved by reference to the contractual language, not by judicial addition of a "direct physical impact" requirement. See Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900, 902 (1987).
With respect to the CY2 shortfall calculation, when the six-month force majeure period is accounted for, the adjusted CY2 ACV is $21.6 million ($43.2 million × 6/12), and actual tenders of $31.8 million exceeded the adjusted minimum by $10.2 million. Thus, far from a shortfall, Stonefield substantially exceeded its volume commitment for the portion of CY2 during which the ACV obligation was in effect.
With respect to the CY3 shortfall calculation, Vantor's methodology is similarly flawed. Vantor compares 10 months of actual tenders ($36.5 million) against the full 12-month ACV ($43.2 million) without proration, thereby inflating the apparent shortfall. The prorated 10-month ACV would be approximately $36.0 million ($43.2 million × 10/12), meaning the actual shortfall, if any, is approximately $0.5 million — less than 1.4% of the prorated ACV — not the $6.7 million that Vantor claims.
Usefulness: Despite the analytical deficiencies, the monthly tender data provided in these responses is valuable and should be transmitted to Dr. Evelyn Rosser at Kensington Analytics Group LLC for use in her rebuttal damages analysis. The data will allow Dr. Rosser to perform an independent calculation of actual versus committed volumes, properly adjusted for the force majeure period, and to demonstrate that Stonefield's volume tenders were materially consistent with its contractual obligations. The force majeure dispute is ultimately a legal question — the interpretation of Section 12.1 — that we can address in summary judgment briefing with considerable confidence.
F. Interrogatory No. 14: Post-Termination Mitigation Efforts
DEFICIENT — MOTION TO COMPEL RECOMMENDED
Subject Matter: Interrogatory No. 14 asked Vantor to describe in detail all steps taken by Vantor and/or VTS to mitigate damages following Stonefield's termination of the TSA on March 4, 2022, including:
(a) The identity of all potential replacement shippers or freight customers contacted by VTS or on VTS's behalf;
(b) The dates of each contact, outreach effort, or solicitation;
(c) The nature and outcome of any negotiations with potential replacement customers;
(d) Any contracts entered into for replacement freight, including the identity of the counterparty, the effective date, the term, and the contracted revenue;
(e) The revenue actually generated from replacement freight during the period from March 4, 2022 through March 31, 2024 (the original TSA expiration date); and
(f) The reasons for any failure to secure replacement freight sufficient to replace the volume and revenue lost from the Stonefield termination.
Summary of Response: Vantor interposes two objections: (1) "attorney-client privilege" and (2) "work product protection," each to the extent the interrogatory "seeks to discover litigation strategy or counsel's advice regarding mitigation." Subject to and without waiving these objections, Vantor provides the following narrative:
"VTS undertook commercially reasonable efforts to replace the freight volume lost as a result of Stonefield's wrongful termination, including outreach to existing and potential customers, engagement of freight brokers, and participation in industry conferences and RFP processes. Despite these efforts, VTS was unable to secure replacement freight of comparable volume and profitability due to the specialized nature of the SLG contract, the abruptness of the termination, and the decline in the freight market during the latter half of 2022."
Assessment: This response is egregiously deficient. It constitutes precisely the type of conclusory, non-specific answer that fails to satisfy the requirements of Fed. R. Civ. P. 33. Vantor does not identify:
• A single specific potential customer contacted;
• A single date of any outreach effort, solicitation, or inquiry;
• A single freight broker engaged, by name or otherwise;
• A single industry conference attended;
• A single RFP process in which VTS participated;
• A single contract entered into for replacement freight;
• A single dollar of replacement revenue secured or generated; or
• Any specific reason — as opposed to the generic and conclusory assertion of "specialized nature" and "decline in the freight market" — for VTS's failure to secure replacement business.
The privilege objection is without merit and should be aggressively challenged. Facts concerning mitigation activities — what a party did, when it did it, and what the outcome was — are not protected by either the attorney-client privilege or the work product doctrine simply because counsel may have advised the party regarding its legal obligation to mitigate. The distinction between underlying facts about conduct and legal advice about that conduct is well-established. See Upjohn Co. v. United States, 449 U.S. 383, 395–96 (1981) ("[T]he privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney."). Vantor cannot shield the facts of its mitigation efforts (or non-efforts) behind a blanket assertion that counsel was involved in the process. The meet-and-confer letter should specifically address and reject this privilege assertion.
Relevance: Mitigation is a critical defense for Stonefield. Under New York law, a plaintiff claiming damages for breach of contract has a duty to take reasonable steps to minimize damages, and losses that could have been avoided through the exercise of reasonable diligence are not recoverable. See Wilmot v. State, 32 N.Y.2d 164, 168–69 (1973); LaSalle Bank N.A. v. Marlowe Commerce Bank Asset Capital Corp., 424 F.3d 195, 207 (2d Cir. 2005). While the burden of proving failure to mitigate falls on the defendant, the plaintiff bears a corresponding obligation to provide discovery regarding its mitigation efforts (or lack thereof), without which the defendant cannot meet its burden. See Callen v. Pennsylvania R.R. Co., 332 U.S. 625, 634 (1948).
The freight market context makes Vantor's purported inability to find replacement freight highly suspect. Our research memorandum on mitigation, dated January 30, 2023, documented that the freight market in Q1–Q2 2022 was exceptionally strong. Spot rates during this period were elevated approximately 35% above historical averages, driven by post-pandemic supply chain disruptions, port congestion, and elevated consumer spending. The Dunmore Systems and Brightmoor Software data both confirm that carrier demand substantially exceeded capacity during the period immediately following the March 4, 2022 termination. In this market, a carrier with 400 tractors, 1,200 trailers, and an established driver base should have been able to secure substantial replacement freight volume with relative ease. VTS's apparent inability — or unwillingness — to do so is itself evidence of failure to mitigate and could substantially reduce the recoverable damages.
Recommendation: Demand full supplementation with specific facts: names of companies contacted, dates of contact, names of VTS personnel involved in the outreach, the substance of each communication, the outcome of any negotiations, any contracts entered into (with counterparty identification, terms, and revenue), and total replacement revenue generated during the period March 4, 2022 through March 31, 2024. The privilege objection should be challenged directly in the meet-and-confer letter as inapplicable to the underlying facts of mitigation activities, as distinguished from counsel's legal advice regarding the duty to mitigate.
This is the second-highest priority for supplementation, after Interrogatory No. 9. Additionally, supplementation of this response is essential for preparing the deposition of Derek Pruitt (scheduled for July 10, 2023). As the VP of Business Development and the individual most likely responsible for securing replacement freight, Pruitt should be examined extensively on VTS's post-termination business development activities. Without a supplemented interrogatory response identifying the specific outreach efforts, we will be questioning Pruitt in the dark — a situation that is inefficient and that the discovery rules are designed to prevent.
G. Interrogatory Nos. 15–17: Damages Calculation Methodology
Subject Matter: Interrogatory Nos. 15 through 17 asked Vantor to describe, in detail, the methodology used to calculate each category of damages claimed in the Amended Complaint:
The interrogatories sought the specific inputs, assumptions, and data sources underlying each calculation, including the contractual provisions relied upon, the time periods covered, the revenue and cost figures used, and the identity of any expert or consultant who assisted in preparing the calculations.
Summary of Responses: Vantor provides a general description of the damages methodology for each category but defers to the forthcoming expert report of Dr. Philip Trask of Trask Greystone & Associates (served on May 15, 2023) for the detailed calculations.
For liquidated damages, Vantor recites the formula set forth in TSA Section 14.2: 75% of ACV multiplied by the number of remaining contract years. Vantor states that the $67.23 million figure comprises $64.8 million for the two full remaining contract years (CY4 and CY5: April 2022–March 2024) and $2.43 million for the 27-day partial year period from March 4, 2022 to March 31, 2022.
For lost profits, Vantor describes a methodology based on a 12% operating margin applied to the remaining committed volume for the balance of the TSA term. Vantor states that the $18.7 million figure represents the operating profit VTS would have earned on the committed freight volume during the remaining term, calculated using historical margin data from CY1 and CY2.
For stranded assets, Vantor references depreciation on tractors and trailers acquired specifically for the SLG contract and lease termination costs for equipment under operating leases. Vantor states that the $5.2 million figure includes $3.4 million in accelerated depreciation and $1.8 million in early lease termination penalties.
For workforce reduction costs, Vantor cites severance payments and unemployment insurance costs for approximately 180 drivers and support staff whose positions were eliminated as a result of the termination. Vantor states that the $2.87 million figure includes $2.1 million in severance (calculated at approximately 2 weeks per year of service for each affected employee) and $770,000 in employer-paid unemployment insurance contributions.
For mitigation costs, Vantor references costs incurred in seeking replacement freight, including "business development expenses, marketing costs, and travel expenses." No further detail is provided.
Assessment: The responses are adequate in that they identify the general methodology for each damages category, and the information provided is useful for understanding the broad framework of Vantor's damages theory. However, the responses are deficient insofar as they improperly defer to the Trask expert report for the detailed calculations and supporting data.
Under Fed. R. Civ. P. 33(d), a party may refer to business records in lieu of answering an interrogatory "if the burden of deriving or ascertaining the answer will be substantially the same for either party." This option is limited to business records, however, and does not authorize reference to an expert report prepared for litigation as a substitute for a complete interrogatory answer. An expert report is not a "business record" within the meaning of Rule 33(d), and Vantor's deferral effectively shifts the burden of damages analysis to Stonefield. That said, the practical significance of this deficiency is limited, given that we now have the Trask report in hand (served May 15, 2023) and can analyze the detailed methodology directly. We should consider demanding supplementation to the extent the interrogatory responses lack detail that is also absent from the Trask report, but this is a lower priority than the supplementation demands for Interrogatories 9 and 14.
Cross-Reference: Dr. Trask's expert report is being analyzed separately in a forthcoming memorandum (Analysis of Trask Greystone Expert Report). Preliminary review by Dr. Rosser's team at Kensington Analytics suggests that the Trask report contains the methodological weaknesses we anticipated: it assumes all liquidated damages are enforceable without conducting any legal analysis of the liquidated damages provision's enforceability; it uses inflated margin assumptions for the lost profits calculation (applying a 12% margin when VTS's actual operating margin in CY3 was closer to 7.5%); it fails to account for VTS's own breaches in reducing committed fleet capacity, which would reduce the volume of freight VTS could have transported even absent termination; and it contains no meaningful analysis of mitigation, simply accepting Vantor's conclusory assertion of "commercially reasonable efforts" at face value.
Note on Duplicative Damages: A significant issue not addressed in Vantor's interrogatory responses is the potential duplicative nature of the liquidated damages claim ($67.23 million) and the lost profits claim ($18.7 million). Both categories purport to compensate for the same underlying harm: the loss of contract value over the remaining term of the TSA. Under New York law, a plaintiff cannot recover both liquidated damages and actual damages for the same breach — the liquidated damages provision, if enforceable, operates as a substitute for actual damages, not a supplement. See JMD Holding Corp. v. Congress Financial Corp., 4 N.Y.3d 373, 380 (2005). Vantor's claim for both categories totals $85.93 million and raises a serious double-counting issue that we address in detail in the Memorandum re Duplicative Damages, dated February 15, 2023.
H. Interrogatory No. 18: Exclusivity Violations — Use of Cascade and Briarwood
DEFICIENT — SUPPLEMENTATION RECOMMENDED
Subject Matter: Interrogatory No. 18 asked Vantor to identify each specific lane or origin-destination pair on which Vantor contends that Stonefield utilized Cascade Freight Systems Inc. ("Cascade") and/or Briarwood Trucking Co. ("Briarwood") in violation of the exclusivity provisions set forth in Schedule C of the TSA. The interrogatory further asked Vantor to specify whether each identified lane was designated as a "Primary Lane" under Schedule C, Section 2(a), or a "Secondary Lane" under Schedule C, Section 2(b), and to identify all documents supporting the contention.
Summary of Response: Vantor states:
"Stonefield utilized Cascade Freight Systems Inc. and Briarwood Trucking Co. to transport freight on lanes that were subject to the exclusivity provisions of Schedule C. Stonefield's use of these carriers was in direct competition with VTS's dedicated service obligations and undermined VTS's ability to generate the revenue necessary to support its committed fleet capacity."
Vantor then references "Lanes 8 through 14" as being "among the affected lanes" but does not specify which of these lanes, if any, are designated as "Primary Lanes" under Schedule C, Section 2(a) — the only lanes subject to the exclusivity restriction — as opposed to "Secondary Lanes" under Section 2(b), on which Stonefield had the right to use alternative carriers without restriction.
Assessment: This response is misleading. By referencing "Lanes 8 through 14" without distinguishing between Primary and Secondary Lane designations, Vantor creates the impression that Stonefield's use of Cascade and Briarwood on those lanes violated the exclusivity provisions. However, our detailed analysis of Schedule C's lane designations (set forth in the Memorandum re Exclusivity Analysis — Schedule C Lanes, dated September 30, 2022) has confirmed that Lanes 8 through 14 are classified as "Secondary Lanes" under Schedule C, Section 2(b). The exclusivity restriction applies only to the 14 "Primary Lanes" specifically designated in Schedule C, Section 2(a), which are identified by origin-destination pair and which do not include Lanes 8 through 14.
The distinction is dispositive. Under Schedule C, Section 2(a), Stonefield was prohibited from utilizing alternative carriers on Primary Lanes during the TSA term, subject to certain exceptions (including VTS's failure to maintain the required equipment availability or to meet the applicable SLOs). Under Schedule C, Section 2(b), Stonefield retained the right to utilize alternative carriers on Secondary Lanes at its discretion, provided that such usage was counted toward the ACV obligation. Stonefield's use of Cascade and Briarwood was exclusively on Secondary Lanes — specifically, Lanes 8 through 14 — and accordingly did not violate the exclusivity provisions.
To confirm this analysis with third-party documentation, we have issued subpoenas to both Cascade (served at 4700 Lakehurst Court, Columbus, Ohio 43016) and Briarwood (served at 1280 Jefferson Davis Highway, Suite 310, Arlington, Virginia 22202), dated June 28, 2023, seeking records of all freight transported for Stonefield, including lane identifications, shipment dates, and revenue data. These subpoenas will provide independent verification of which lanes Cascade and Briarwood serviced.
Recommendation: The meet-and-confer letter should demand that Vantor supplement its response to identify the specific Primary Lanes (under Schedule C, Section 2(a)) on which Vantor contends the exclusivity provisions were violated by Stonefield's use of Cascade and/or Briarwood. If Vantor cannot identify any Primary Lane on which Cascade or Briarwood transported freight, the exclusivity claim can be defeated as a matter of contract interpretation on summary judgment. This is Priority 4 for supplementation, behind Interrogatories 9, 14, and 22.
I. Interrogatory Nos. 19–21: Cure Period Activities
Subject Matter: Interrogatory Nos. 19 through 21 asked Vantor to describe all actions taken by VTS during the 30-day cure period provided by Section 13.1(b) of the TSA — running from January 18, 2022 (the date of the Cure Notice) through February 17, 2022 — to cure the material breaches identified in Stonefield's Cure Notice. The interrogatories sought, for each remedial measure: (a) a description of the measure; (b) the date of implementation; (c) the identity of the individual(s) responsible; and (d) the results achieved, including any quantitative improvement in the applicable SLO metrics.
Summary of Responses: Vantor's responses reference the February 14, 2022 letter from Derek Pruitt to Janet Kirkwood (sent three days before the expiration of the cure period), in which Vantor acknowledged "operational challenges" during Q4 2021 but asserted they were attributable to three external factors: (1) the nationwide driver shortage, (2) SLG's own volume shortfalls, and (3) SLG's alleged instructions to VTS to divert certain loads to spot market carriers in Q3 and Q4 2021. The response states that during the cure period, VTS "took steps to improve operational performance, including hiring additional drivers, reactivating equipment, and reallocating resources to the SLG account."
However, no specific quantitative detail is provided. The response does not state how many drivers were hired during the cure period, how many tractors or trailers were "reactivated" (or from which accounts they were drawn), what the "reallocated resources" consisted of, or what VTS's actual SLO performance was as of the cure deadline (February 17, 2022) or during the remainder of Q1 2022.
Assessment: The lack of specificity in these responses is notable, but the deficiency is less egregious than in Interrogatories 9 and 14. The February 14, 2022 Pruitt letter is already in our possession (Bates No. SLG-001247) and will be used extensively in depositions and in summary judgment briefing. Our Memorandum re Sufficiency of Cure, dated November 1, 2022, concluded that the Pruitt letter did not constitute "substantial cure" within the meaning of Section 13.1(b) because it: (a) acknowledged the existence of operational challenges without demonstrating that they had been remediated; (b) attributed the challenges to external factors rather than identifying VTS's own corrective actions; and (c) was sent on February 14 — three days before the cure deadline — without any data showing actual performance improvement during the preceding 27 days of the cure period.
Post-cure-period performance data obtained from Stonefield's own TMS system confirms that VTS's SLO failures continued through March 2022. Specifically, the on-time pickup rate for the period February 1–March 4, 2022 was approximately 79.8% (marginally better than the Q4 2021 figure of 78.2%, but still far below the 95% SLO threshold), and the tender acceptance rate was approximately 73.2% (still well below 90%).
Critically, Vantor conspicuously does not assert in its interrogatory response that performance actually returned to SLO-compliant levels during or by the end of the cure period. This is a significant omission. If VTS had in fact cured the breaches — or even made substantial progress toward cure — one would expect Vantor to trumpet that fact in its interrogatory response. The absence of any such assertion is itself probative of the failure to cure.
We may wish to seek supplementation of these responses to obtain the specific quantitative data on cure-period activities and results, but this is a lower priority than Interrogatories 9, 14, 18, and 22. The essential facts — that the cure was inadequate — can be established through Stonefield's own TMS data and through the Pruitt and Milescu depositions.
J. Interrogatory No. 22: Communications with Replacement Shippers
DEFICIENT — SUPPLEMENTATION RECOMMENDED
Subject Matter: Interrogatory No. 22 asked Vantor to identify all communications between VTS and third-party shippers, freight brokers, or logistics providers during the period from March 4, 2022 through December 31, 2022 regarding the potential provision of transportation services to replace the Stonefield business. For each communication, the interrogatory sought the date, the identity of the VTS personnel involved, the identity of the third-party counterpart, the medium of communication (email, telephone, in-person meeting, etc.), and the substance and outcome of the communication.
Summary of Response: Vantor objects on relevance and proportionality grounds, asserting that the interrogatory is "overbroad in time and scope" and "seeks information regarding VTS's general business development activities that are not relevant to any claim or defense." Subject to and without waiving these objections, Vantor states:
"VTS engaged in business development activities consistent with its ordinary course practices."
Vantor then refers generally to its document production, stating that "responsive documents, to the extent they exist, have been or will be produced in VTS's ordinary course document production."
Assessment: This response is insufficient. It does not identify any specific communication, counterparty, date, or outcome. The general reference to the document production is not a proper invocation of Rule 33(d), which requires the responding party to "specif[y] the records that must be reviewed" and to identify them in "sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could." See Fed. R. Civ. P. 33(d)(1)–(2). Vantor's blanket reference to the entire document production — comprising 28,914 documents and approximately 112,000 pages — does not meet this standard.
The relevance and proportionality objections are without merit. Post-termination communications with potential replacement shippers are directly relevant to Vantor's duty to mitigate and to Stonefield's affirmative defense of failure to mitigate. The time period (March 4, 2022 through December 31, 2022) is not overbroad — it covers the first ten months following termination, during which time a reasonably diligent carrier would have been expected to make significant efforts to replace a $43.2 million annual account. This interrogatory is directly complementary to Interrogatory No. 14 (mitigation efforts) and the deficiencies in both responses compound each other.
Furthermore, our review of Vantor's document production to date (which is ongoing and will be analyzed in the forthcoming memorandum dated May 12, 2023) suggests that there are few if any documents reflecting post-termination business development communications in Vantor's production. If this observation holds upon completion of the document review, the absence of such communications in both the interrogatory response and the document production is itself probative of Vantor's failure to mitigate.
Recommendation: Include in the meet-and-confer letter. Request specific identification of all communications by date, counterparty, VTS participant, medium, and substance. If Vantor supplements and identifies no specific communications, or supplements with only a handful of communications reflecting minimal effort, this evidence (or absence of evidence) will be powerful support for the failure-to-mitigate defense at summary judgment and trial.
K. Interrogatory Nos. 23–25: Force Majeure, Insurance, and General Matters
Subject Matter: The final three interrogatories addressed discrete topics:
• Interrogatory No. 23 asked Vantor to state its position on the applicability and validity of Stonefield's force majeure invocation under Section 12.1 of the TSA for the COVID-19 period (April–September 2020), including the factual and legal bases for any contention that the invocation was invalid or inapplicable.
• Interrogatory No. 24 asked Vantor to identify any insurance coverage (including but not limited to business interruption insurance, contract-specific insurance, or errors and omissions coverage) that Vantor sought or obtained in connection with the TSA or the losses claimed in this action.
• Interrogatory No. 25 was a catch-all interrogatory asking Vantor to identify all persons known to have knowledge of the facts alleged in the Amended Complaint, including each person's name, title, employer, and a brief description of the subject matter of their knowledge.
Summary of Responses:
Interrogatory No. 23 (Force Majeure): Vantor restates its posit