PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT — PREPARED IN ANTICIPATION OF LITIGATION
CALDERWOOD & HARKNESS LLP
INTERNAL MEMORANDUM
TO: Elaine Forsythe, Responsible Partner, Antitrust & Competition Aaron Liu, Lead Associate, Antitrust & Competition
FROM: Monica Reyes, Working Associate, Antitrust & Competition
DATE: October 2022 (initial); updated August 2023
RE: E-discovery Protocol and Vendor Management — Ridgepoint Communications Inc. v. Northgate Networks America Inc. et al., Case No. 1:22-cv-01487-CMW (E.D. Va.); FCC Docket No. WC-23-0042
CLIENT: Northgate Networks America Inc. / Northgate Telecommunications PLC
ENGAGEMENT REFERENCE NO.: C&H-2022-ATR-00419
This memorandum is a privileged and confidential attorney work product prepared in anticipation of litigation. It is intended solely for the use of the attorneys and personnel identified above and authorized members of the Calderwood & Harkness LLP engagement team. This memorandum should not be disclosed to any third party without the prior written consent of the undersigned or the Responsible Partner. Inadvertent disclosure of this memorandum does not constitute a waiver of any applicable privilege or protection.
Right-click to update Table of Contents
I. PURPOSE AND SCOPE
This memorandum memorializes the e-discovery protocol governing the collection, processing, hosting, review, and production of documents and electronically stored information ("ESI") in connection with the defense of the claims asserted against Northgate Networks America Inc. ("Northgate America") and Northgate Telecommunications PLC ("Northgate PLC," and together with Northgate America, "Northgate" or the "Northgate Group") in Ridgepoint Communications Inc. v. Northgate Networks America Inc. et al., Case No. 1:22-cv-01487-CMW (E.D. Va.) (the "District Court Action"), and in the parallel administrative proceeding before the Federal Communications Commission, Docket No. WC-23-0042 (the "FCC Proceeding").
In the District Court Action, Ridgepoint Communications Inc. ("Ridgepoint") has asserted a claim under Section 2 of the Sherman Antitrust Act, 15 U.S.C. § 2, alleging that Northgate has engaged in monopolization and attempted monopolization of local interconnection and colocation services in the Philadelphia–Baltimore–Washington, D.C. corridor through the adoption and enforcement of its Wholesale Access Policy ("WAP"), which Ridgepoint contends was designed to exclude Ridgepoint from access to 14 critical network facilities in the corridor. In the FCC Proceeding, related issues regarding interconnection obligations under Sections 251 and 252 of the Communications Act of 1934, as amended, are under consideration.
It should be noted that discovery has not yet commenced in the District Court Action. On March 14, 2023, Judge Claudia M. Wentworth of the United States District Court for the Eastern District of Virginia granted a stay of proceedings pending resolution of threshold issues in the FCC Proceeding. The stay remains in effect as of this update. Notwithstanding the stay, preservation and pre-processing activities have been underway since September 2022 to ensure that Northgate is fully prepared to comply with its discovery obligations promptly upon the lifting of the stay. Additionally, the firm has conducted targeted document identification and review in support of the FCC Proceeding, including preparation for the FCC evidentiary hearing currently scheduled for January 22–24, 2024, before Administrative Law Judge Robert Fenwick.
The FCC evidentiary hearing required targeted document identification from the Northgate document universe, though it bears emphasis that the formal discovery procedures applicable in the FCC Proceeding differ materially from those governing federal civil discovery under the Federal Rules of Civil Procedure. The identification, preparation, and submission of documents for the FCC Proceeding have been conducted in accordance with the FCC's procedural rules and the specific directives of ALJ Fenwick.
The scope of this memorandum covers all ESI from both Northgate Networks America Inc., a Delaware corporation with its principal office at 8200 Dulles Corner Boulevard, Suite 1100, Tysons Corner, Virginia 22182, and Northgate Telecommunications PLC, a public limited company incorporated under the laws of England and Wales with its registered office at 14 Broadwall Lane, London SE1 9PQ, United Kingdom. The protocol addresses the full lifecycle of ESI management, including vendor selection and engagement, platform capabilities, custodian identification and litigation hold administration, data collection, processing, review, production, cost management, data security, and coordination with ancillary matters including insurance coverage.
This memorandum was originally prepared in October 2022 and has been updated as of August 2023 to reflect developments in the matter, including the imposition of the stay, the engagement of expert consultants, the progress of FCC Proceeding preparations, and the current status of processing and costs.
II. E-DISCOVERY VENDOR ENGAGEMENT
A. Vendor Selection and Retention
Following commencement of the District Court Action, the firm undertook a competitive evaluation of e-discovery vendors qualified to support the anticipated scope and complexity of this matter. After consideration of several candidates, we retained Candela discovery Solutions Inc. ("Candela") as the primary e-discovery vendor for all collection, processing, hosting, review platform, and production services.
Candela discovery Solutions Inc. is a Delaware corporation with its principal office at 200 Park Avenue South, 14th Floor, New York, New York 10003. Candela was selected based on the following criteria:
(a) Telecom sector experience. Candela has previously supported large-scale e-discovery efforts in telecommunications litigation and regulatory proceedings, including matters involving interconnection disputes, FCC adjudicatory proceedings, and antitrust claims in the telecommunications industry. This sector-specific experience was deemed critical given the technical nature of the documents and data systems at issue in this matter.
(b) Scalable processing capacity. Candela demonstrated the ability to ingest, process, and host document collections on the order of one million or more documents, with the capacity to scale up rapidly if supplemental collections are required upon reactivation of the District Court Action.
(c) Competitive pricing. Candela's per-document processing fees, per-gigabyte hosting fees, and project management rates were competitive with the other candidates evaluated and are set forth in detail in the engagement letter and fee schedule (Appendix C).
(d) Security certifications. Candela maintains SOC 2 Type II certification and ISO 27001 compliance, both of which are essential given the sensitivity of the data at issue, including proprietary technical information regarding Northgate's network infrastructure and confidential business strategy documents.
Candela was retained pursuant to an engagement letter executed in September 2022. The engagement was coordinated through Calderwood & Harkness LLP's Washington, D.C. office at 1200 K Street NW, Suite 900, Washington, D.C. 20005. Catherine Ng, U.S. Deputy General Counsel of Northgate Networks America Inc., authorized the vendor engagement on behalf of the client and has served as the client-side approval authority for all vendor-related expenditures.
The assigned Project Manager at Candela is Kenji Takahashi, who has served as the primary day-to-day contact for the engagement since its inception. Mr. Takahashi has extensive experience managing large-scale telecommunications discovery matters and has been responsive and effective in managing the workflow to date.
B. Platform — Concordia Review™
Candela's proprietary hosted review platform, Concordia Review™, has been designated as the review and production platform for this matter. Concordia Review™ is a full-featured litigation review platform with the following capabilities:
• Full-text search. The platform supports Boolean, proximity, and wildcard searching across the full text of all ingested documents, including extracted text from native files and OCR-generated text from image-based documents.
• Predictive coding / Technology-Assisted Review (TAR). Concordia Review™ includes a machine-learning-based TAR module that supports continuous active learning workflows. This module will be deployed during the first-pass relevance review upon reactivation of the District Court Action, as described further in Section VI below.
• Email threading. The platform groups email messages into conversation threads, allowing reviewers to assess entire chains of correspondence in context rather than reviewing individual messages in isolation.
• Near-duplicate detection. Concordia Review™ identifies and groups near-duplicate documents based on configurable textual similarity thresholds, reducing redundant review effort.
• Concept clustering. The platform organizes documents into thematic clusters based on content analysis, which can assist in prioritizing review batches and identifying key document categories.
• Production module. Concordia Review™ includes a built-in production module capable of generating single-page TIFF images, load files, and metadata exports in conformity with standard production specifications, as described further in Section VII below.
Concordia Review™ is cloud-hosted in Candela's SOC 2 certified data centers, all of which are located within the United States. No data associated with this matter is stored, processed, or accessible from data centers located outside the United States, consistent with the data security requirements described in Section IX below.
Access to the Concordia Review™ platform for this matter is restricted to the following authorized users:
• Calderwood & Harkness LLP engagement team: Elaine Forsythe (Responsible Partner), Howard Bellamy (Billing Partner), Aaron Liu (Lead Associate), and Monica Reyes (Working Associate).
• Authorized Northgate in-house counsel: Catherine Ng (U.S. Deputy General Counsel, Northgate Networks America Inc.).
Howard Bellamy, Billing Partner at Calderwood & Harkness LLP's New York office (450 Lexington Avenue, 35th Floor, New York, New York 10017), serves as the billing partner for this engagement and has administrative access to the platform for cost oversight and invoice reconciliation purposes. No additional users have been granted access without prior approval by the Responsible Partner.
C. Points of Contact
The following individuals serve as the designated points of contact for the e-discovery workflow:
All substantive communications regarding the e-discovery protocol, including any changes to the custodian list, scope of collection, or processing parameters, are to be documented in writing and routed through Monica Reyes for tracking and file maintenance purposes. Strategic decisions regarding the scope or direction of e-discovery activities are to be escalated to Aaron Liu and, where appropriate, to Elaine Forsythe.
III. LITIGATION HOLD AND CUSTODIAN IDENTIFICATION
A. Litigation Hold
A litigation hold was implemented on September 21, 2022, two days after Ridgepoint filed its complaint initiating the District Court Action on September 19, 2022. The hold was implemented promptly upon receipt of the complaint and the engagement of Calderwood & Harkness LLP to defend the action.
The litigation hold notice was distributed to all identified custodians and directed the preservation of all documents and ESI related to the following subject matter categories:
(a) Ridgepoint's interconnection and colocation requests at any of the 14 facilities at issue in the Philadelphia–Baltimore–Washington, D.C. corridor, including all internal analyses, evaluations, and communications regarding such requests;
(b) The Wholesale Access Policy ("WAP"), adopted by Northgate in January 2020, including all documents relating to the development, drafting, adoption, approval, implementation, and enforcement of the WAP, as well as any analyses of the WAP's impact on existing or prospective wholesale customers;
(c) The 14 disputed facilities in the Philadelphia–Baltimore–Washington, D.C. corridor, including all documents relating to capacity, utilization, capital expenditure plans, expansion or contraction, and access or denial of access by third-party telecommunications providers;
(d) All communications with Ridgepoint Communications Inc. and its officers, employees, agents, and counsel, regardless of subject matter, for the period January 1, 2019 through the date of the litigation hold and continuing thereafter.
The litigation hold applies across both Northgate Networks America Inc. and Northgate Telecommunications PLC, reflecting the fact that certain custodians and relevant decision-making processes involve group-level personnel based in the United Kingdom. Coordination with Northgate PLC's legal department in London was undertaken to ensure that the hold was effectively communicated and implemented at the group level.
The litigation hold remains in effect and has not been modified or lifted. Periodic reminders have been issued to all custodians, consistent with best practices and the obligations set forth in the firm's Litigation Hold Compliance Audit protocol. The most recent compliance audit was conducted in August 2023; the results are set forth in a separate Litigation Hold Compliance Audit Memorandum maintained in the matter file.
B. Custodian List
A total of 23 individuals have been identified as custodians across Northgate Networks America Inc. and the broader Northgate Group. These individuals were identified through interviews with Catherine Ng and other members of Northgate's legal and operations teams, review of organizational charts, and analysis of the allegations in Ridgepoint's complaint and the issues raised in the FCC Proceeding.
Key custodians include, on a non-exhaustive basis:
• Diane Okoro, U.S. President, Northgate Networks America Inc. — Senior executive with overall responsibility for U.S. operations, including strategic decisions regarding wholesale access and the adoption of the WAP.
• Patrick Salazar, Chief Regulatory Officer, Northgate Telecommunications PLC — Group-level executive responsible for regulatory compliance and strategy across all Northgate markets, including oversight of interconnection obligations under Sections 251 and 252 of the Communications Act.
• Catherine Ng, U.S. Deputy General Counsel, Northgate Networks America Inc. — In-house counsel with primary responsibility for U.S. litigation and regulatory matters, including the Ridgepoint dispute, and the firm's primary client contact.
• James Whitford, Group General Counsel, Northgate Telecommunications PLC — Group-level general counsel based in London with oversight of all legal matters across the Northgate Group, including involvement in key strategic decisions regarding the WAP and the Ridgepoint relationship.
• Various additional operations, engineering, regulatory affairs, and sales personnel who are responsible for the day-to-day management and operation of the 14 facilities at issue, including individuals involved in processing and responding to wholesale access requests, managing capacity and utilization data, and implementing the terms of the WAP and the prior Master Interconnection Agreement with Ridgepoint.
The complete custodian list, including names, titles, departments, and data sources collected from each custodian, is maintained as Appendix A to this memorandum.
Custodian departures and role changes within the Northgate organization have been tracked through periodic litigation hold compliance audits. The most recent audit, conducted in August 2023, confirmed that all identified custodians have been notified and that appropriate steps have been taken to preserve ESI in cases where custodians have departed the organization or transitioned to new roles. Specific details regarding any custodian departures or role changes, and the preservation measures taken in response, are set forth in the separate Litigation Hold Compliance Audit Memorandum referenced above.
C. The 14 Facilities at Issue
All 14 facilities that are the subject of Ridgepoint's claims are located in the Philadelphia–Baltimore–Washington, D.C. corridor. ESI relating to operations, capacity, utilization, access requests, engineering specifications, and maintenance records at each facility is within the scope of the litigation hold and the collection protocol. The 14 facilities are as follows:
A complete listing of the 14 facilities with full addresses and additional identifying information is maintained as Appendix E to this memorandum.
IV. DOCUMENT COLLECTION PROTOCOL
A. Data Sources
The following data sources have been identified as within the scope of collection for the 23 identified custodians and for enterprise-level repositories:
(1) Enterprise email systems. All 23 custodians' email accounts on Northgate's Strathmore Data Systems / Ashbury Software environment, including sent items, received items, deleted items (to the extent recoverable), drafts, calendar entries, and email attachments.
(2) Network shared drives and document management systems. Relevant shared drives and document management repositories maintained on Northgate Networks America's internal network, including departmental shared drives for operations, engineering, regulatory affairs, legal, and sales, as well as any matter-specific or project-specific folders relating to the WAP, the Ridgepoint relationship, or the 14 facilities.
(3) NorthgateOS™ platform internal logs and records. NorthgateOS™ is Northgate's proprietary SaaS-based network management platform. To the extent that internal logs and records within NorthgateOS™ are relevant to interconnection and capacity issues at the 14 facilities—including access request logs, capacity utilization dashboards, and system configuration records—such data is within the scope of collection. The extraction of data from NorthgateOS™ requires coordination with Northgate's IT department given the proprietary nature of the platform.
(4) Physical and hard-copy files. Hard-copy documents maintained at Northgate Networks America's Tysons Corner headquarters and facility-level records at each of the 14 disputed locations, including paper files relating to interconnection agreements, maintenance logs, engineering specifications, and correspondence.
(5) Mobile devices and messaging applications. To the extent that responsive data has been identified on custodians' mobile devices (including smartphones and tablets) and messaging applications (including text messages and any enterprise messaging platforms), such data is within the scope of collection. Mobile device collections have been prioritized for key custodians based on an initial assessment of the likelihood that responsive communications reside on such devices.
(6) Regulatory filing archives. Archives of filings made with the FCC, including Sections 251 and 252 compliance files, tariff filings, interconnection agreement filings, and correspondence with the FCC and state public utility commissions relating to the 14 facilities and wholesale access obligations.
(7) Archived records relating to the Master Interconnection Agreement. Records pertaining to the Master Interconnection Agreement ("MIA") between Northgate and Ridgepoint, effective June 15, 2015 through June 14, 2020, including the agreement itself, amendments, correspondence, billing records, and performance data. Also within scope are records relating to the month-to-month holdover arrangement that went into effect after the expiration of the MIA on June 14, 2020, under which Ridgepoint continued to utilize certain facilities at a holdover rate of $14,400 per month per facility (representing 120% of the prior contractual rate of $12,000 per month per facility).
(8) Records relating to the Wholesale Access Policy. All documents relating to the adoption and implementation of the Wholesale Access Policy, adopted in January 2020, including drafts, board presentations, analyses, communications regarding the $5 million per year minimum revenue commitment threshold established by the WAP, and all records of the application of the WAP to Ridgepoint and other wholesale customers.
B. Collection Methodology
All collections of ESI have been and will continue to be conducted in a forensically sound manner using industry-standard collection tools and methodologies. The following principles govern the collection process:
(1) No custodian self-collection. Custodian self-collection is prohibited. All collections have been performed or directly supervised by Candela discovery Solutions personnel in coordination with Northgate's IT department. This approach ensures the defensibility and integrity of the collection process and maintains a complete and reliable chain of custody.
(2) Chain of custody documentation. Candela maintains detailed chain of custody documentation for each collection, including the identity of the custodian, the data source(s) collected, the date and time of collection, the identity of the collecting technician, the collection methodology employed, and verification hashes (MD5 and SHA-1) for all collected data.
(3) Date range for initial collection. The date range for the initial collection was set at January 1, 2019 through September 30, 2022. This range was selected to encompass the period prior to the adoption of the WAP in January 2020, the full period of the WAP's implementation and enforcement, the period of Ridgepoint's interconnection requests giving rise to the claims at issue (March 2021 through August 2022), and the period through and shortly after the filing of Ridgepoint's complaint on September 19, 2022.
(4) Supplemental collections. Supplemental collections are to be conducted as needed upon reactivation of discovery in the District Court Action or as directed in connection with the FCC Proceeding. Upon reactivation, it is anticipated that supplemental collections will be necessary to capture documents generated during the dormancy period (from approximately the date of the stay through the date of reactivation).
C. Cross-Border Considerations
Certain custodians, including James Whitford (Group General Counsel, Northgate Telecommunications PLC) and Sir Malcolm Prentice, KBE (Chief Executive Officer, Northgate Telecommunications PLC), are based in the United Kingdom. The collection of ESI from UK-based custodians raises cross-border data transfer considerations under the UK General Data Protection Regulation ("UK GDPR") and the Data Protection Act 2018.
These considerations have been addressed as follows:
(a) Cross-border data transfer mechanisms have been documented and implemented in accordance with applicable UK data protection law. Transfers of personal data from the United Kingdom to the United States have been conducted pursuant to appropriate safeguards, including standard contractual clauses where required.
(b) Coordination with Northgate Group's legal team in London has been ongoing throughout the collection process. Pemberton Kaye LLP, which serves as Northgate PLC's external auditor, has been consulted on data protection compliance matters. Separate counsel may be engaged for data protection compliance advice if the scope or complexity of cross-border data transfers requires specialized guidance.
(c) The firm has been mindful of the potential for blocking statute and data protection issues to arise if the scope of discovery expands upon reactivation of the District Court Action, and will coordinate with the Northgate Group legal team and appropriate UK counsel to address any such issues as they arise.
V. PROCESSING SPECIFICATIONS
A. Processing Parameters
All collected data has been ingested and processed by Candela discovery Solutions in accordance with the following processing parameters:
(1) De-duplication. De-duplication has been performed at the global level (across all custodians) using MD5 hash values. Global de-duplication ensures that identical copies of the same document are reviewed only once, regardless of the number of custodians from whose data sources the document was collected. Custodian information is preserved as metadata even where duplicates are suppressed, so that the full set of custodians associated with a given document can be identified if needed.
(2) Email threading. Email threading has been enabled to group related email messages into conversation threads. This functionality allows reviewers to assess entire chains of correspondence in context, improving review efficiency and accuracy. The threading algorithm groups messages based on header metadata, including message-ID, in-reply-to, and references fields.
(3) File type extraction. All standard document types have been extracted and processed, including emails (MSG, EML, PST), Microsoft Word documents (DOC, DOCX), Microsoft Excel spreadsheets (XLS, XLSX), Microsoft Northgate Services Inc. presentations (PPT, PPTX), PDF files, and image files (TIFF, JPEG, PNG). Proprietary Northgate engineering files, including files generated by or associated with the NorthgateOS™ platform, have been flagged for manual handling by the Candela project team in coordination with Northgate IT, as these files may require specialized viewers or conversion tools.
(4) Near-duplicate identification. Near-duplicate identification has been enabled with a textual similarity threshold of 85%. Documents meeting or exceeding this threshold are grouped together, allowing reviewers to assess clusters of substantially similar documents efficiently and apply consistent coding decisions.
(5) Foreign language detection. Given Northgate's UK headquarters and international operations, foreign language detection has been enabled across the processed data set. Any non-English documents identified during processing or review will be flagged for potential translation or specialized review.
(6) Optical Character Recognition (OCR). OCR has been applied to all image-only PDFs and scanned documents to generate searchable text, ensuring that such documents are captured by keyword searches and are fully searchable within the Concordia Review™ platform.
B. Processing Statistics (As of August 2023 Update)
The following processing statistics reflect the current status of the data set as of the August 2023 update to this memorandum:
The approximately 87,000 documents identified as potentially responsive were culled from the larger collection using keyword search terms (set forth in Appendix B) and date-range filtering consistent with the collection date range of January 1, 2019 through September 30, 2022. This set of potentially responsive documents has been loaded into Concordia Review™ and is available for review.
It should be noted that full first-pass review of the potentially responsive document set has not commenced due to the stay in Case No. 1:22-cv-01487-CMW. To date, only targeted review has been conducted within this document set—specifically, review undertaken to identify and prepare documents for use in connection with the FCC Proceeding, as described further in Section VI.D below.
VI. REVIEW WORKFLOW
A. First-Pass (Relevance) Review
The first-pass relevance review of the approximately 87,000 potentially responsive documents is to be conducted using the Concordia Review™ platform upon reactivation of discovery in the District Court Action. The following parameters will govern the first-pass review:
Review team. The review team will consist of Calderwood & Harkness attorneys, including Aaron Liu (Lead Associate) and Monica Reyes (Working Associate), supplemented by contract reviewers as needed. The engagement of contract reviewers is subject to the monthly fee cap of $275,000 and the blended rate cap of $925 per hour, as established in the engagement letter with Catherine Ng. Any projected overages above the monthly fee cap will require Catherine Ng's prior written approval before contract reviewers are onboarded.
Technology-Assisted Review (TAR). Technology-assisted review, also referred to as predictive coding, will be deployed to enhance the efficiency and consistency of the first-pass review. The TAR workflow will proceed as follows:
(a) A seed set of approximately 2,000 documents will be manually reviewed and coded by senior reviewers (Liu and Reyes) to train the TAR algorithm within Concordia Review™.
(b) The TAR model will then be applied to the remaining document population to generate relevance scores for each document.
(c) Documents scoring above the relevance threshold will be prioritized for manual review, while documents scoring below the threshold will be subject to a validation sample to confirm the reliability of the model.
(d) The TAR process will follow a continuous active learning methodology, with the model iteratively refined as additional documents are reviewed and coded.
Coding categories. Documents will be coded using the following categories during first-pass review:
• Responsive — Document is relevant to the claims or defenses at issue in the District Court Action or the FCC Proceeding.
• Non-Responsive — Document is not relevant to the claims or defenses at issue.
• Potentially Privileged — Document may be protected by attorney-client privilege, work product doctrine, or another applicable privilege, and requires second-pass privilege review.
• Hot Document — Document is of particular significance to the merits of the case and should be flagged for immediate attention by the case team.
• Confidential / Highly Confidential — Document contains confidential or highly confidential business information that may warrant designation under a protective order.
Quality control. A quality control protocol will be applied to each review batch. Aaron Liu or Monica Reyes will conduct a 10% random sample check on each batch of reviewed documents to verify the accuracy and consistency of coding decisions. Any systematic errors or inconsistencies identified through quality control sampling will be addressed through reviewer re-training and, if necessary, re-review of affected batches.
B. Privilege Review
A second-pass privilege review will be conducted on all documents coded as "Potentially Privileged" during the first-pass relevance review. The privilege review will be conducted by Calderwood & Harkness attorneys with appropriate training and experience in privilege analysis.
The following categories of privilege are anticipated to be relevant in this matter:
(1) Attorney-client privilege. Communications between Northgate personnel and outside counsel at Calderwood & Harkness LLP; communications between Northgate personnel and coverage counsel at Whitmore & Crane LLP (380 Madison Avenue, 22nd Floor, New York, New York 10017); communications between Northgate personnel and in-house counsel, including Catherine Ng (U.S. Deputy General Counsel, Northgate Networks America Inc.) and James Whitford (Group General Counsel, Northgate Telecommunications PLC); and, to the extent applicable, communications with Theodore Braun of Ridgepoint Communications Inc. that may be subject to a joint or common interest arrangement predating the commencement of litigation.
(2) Work product doctrine. Documents prepared in anticipation of litigation, including internal memoranda, case assessments, litigation strategy documents, and factual investigations undertaken by or at the direction of counsel.
(3) Common interest privilege. To the extent applicable, communications shared with regulatory counsel at Torrence Policy Group LLC and with the economic expert at Ellsworth Economic Consulting LLC under a common interest or joint defense arrangement. The applicability of common interest protection to these communications will be assessed on a document-by-document basis, and any close questions will be escalated as set forth below.
Privilege log. A privilege log will be maintained within the Concordia Review™ platform. The platform's auto-generated privilege log fields include the following metadata for each withheld or redacted document: document date, author, recipient(s), general subject matter description, and the specific privilege(s) asserted. The privilege log will be supplemented with manual descriptions as needed to comply with the requirements of Federal Rule of Civil Procedure 26(b)(5)(A) and any applicable local rules or orders.
Escalation. Final privilege determinations will be reviewed by Aaron Liu. Close calls—including documents that implicate multiple privilege categories, documents involving communications with third parties where the applicability of privilege is uncertain, and documents where waiver issues may be present—will be escalated to Elaine Forsythe for final determination.
C. Expert-Related Materials
Documents shared with Northgate's retained experts are subject to special tracking and handling procedures:
(1) Economic expert. Documents shared with Dr. Priya Narasimhan, Managing Director, Ellsworth Economic Consulting LLC, 1455 Pennsylvania Avenue NW, Suite 850, Washington, D.C. 20004, will be tracked in a separate "Expert Materials — Ellsworth" folder within Concordia Review™. Dr. Narasimhan has been retained to provide economic analysis regarding market definition, competitive effects, and damages in connection with Ridgepoint's Section 2 Sherman Act claim.
(2) Regulatory expert. Documents shared with Dr. Anton Berger, Senior Advisor, Torrence Policy Group LLC, 7925 Jones Branch Drive, Suite 510, McLean, Virginia 22102, will be tracked in a separate "Expert Materials — Torrence" folder within Concordia Review™. Dr. Berger has been retained to provide regulatory analysis regarding Northgate's interconnection obligations under Sections 251 and 252 of the Communications Act and the FCC's implementing regulations.
The case team should remain mindful of the potential discoverability of materials provided to retained experts under Federal Rule of Civil Procedure 26(b)(4), which requires disclosure of all facts or data considered by an expert in forming opinions, as well as exhibits, summaries of facts or data, and assumptions provided to the expert by counsel. Corresponding evidentiary rules in the FCC Proceeding may impose similar or different disclosure obligations. Careful tracking of all materials shared with experts is essential to ensure compliance with these obligations and to facilitate the preparation of expert reports and disclosures.
D. FCC Proceeding Document Identification
A targeted document review was conducted in advance of the FCC evidentiary hearing scheduled for January 22–24, 2024, before Administrative Law Judge Robert Fenwick. This review was focused on the subset of documents within the Concordia Review™ platform that are directly relevant to the issues to be addressed in the FCC Proceeding.
The FCC-targeted review focused on the following categories of documents:
(a) Documents relating to the adoption and implementation of the Wholesale Access Policy, including the development of the $5 million per year minimum revenue commitment threshold, internal analyses of the WAP's projected impact on wholesale customers, and communications regarding the WAP's application to specific customers, including Ridgepoint.
(b) Capacity utilization data at the 14 facilities. Northgate's position in the FCC Proceeding is that utilization rates at the disputed facilities are at or above 85%, which constrains Northgate's ability to accommodate additional wholesale access requests. Documents supporting or relating to this position, including utilization reports, capacity planning analyses, and engineering assessments, were identified and reviewed.
(c) Interconnection requests from Ridgepoint submitted during the period March 2021 through August 2022, including the requests themselves, Northgate's responses, and internal deliberations regarding each request.
(d) The prior Master Interconnection Agreement (June 15, 2015 through June 14, 2020) and the terms of the holdover arrangement at three northern Virginia facilities (44755 Prentice Drive, Ashburn; 21571 Beaumeade Circle, Ashburn; and 1807 Michael Faraday Court, Reston).
(e) Related regulatory filings, FCC correspondence, and compliance records.
Documents identified through this targeted review process were produced or submitted in the FCC Proceeding consistent with the FCC's procedural rules and the specific requirements established by ALJ Fenwick. The costs associated with this targeted review and production are included in the Candela fee breakdown set forth in Section VIII below.
VII. PRODUCTION SPECIFICATIONS
A. Production Format
Documents produced in connection with the District Court Action (upon reactivation of discovery) or in the FCC Proceeding will be produced in the following format:
(1) Image format. Single-page TIFF format, with extracted text (for native electronic documents) or OCR-generated text (for image-only documents and scanned documents), accompanied by a searchable PDF overlay for ease of review by recipients.
(2) Metadata fields. The following metadata fields will be produced for each document:
• Custodian
• Date Created
• Date Modified
• Date Sent
• Author
• From
• To
• CC
• BCC
• Subject
• File Name
• File Path
• Bates Range
(3) Bates numbering. All produced documents will be stamped with Bates numbers using the following convention: NTP-00000001 through NTP-[sequential]. The prefix "NTP" designates Northgate Telecommunications / Northgate Productions. Bates numbers will be applied consecutively across all productions.
(4) Native production. Spreadsheets (Excel files) and other documents where formatting, formulas, or embedded data are material to the content of the document will be produced in native format, in addition to or in lieu of TIFF images, as appropriate and as agreed upon with opposing counsel or directed by the Court.
B. Confidentiality Designations
It is anticipated that a Stipulated Protective Order will be negotiated with Ridgepoint's counsel upon reactivation of the District Court Action. Ridgepoint is represented by Hargrove, Winslow & Burke LLP, with Victoria Hargrove serving as Lead Partner and Daniel Stoyanov serving as Senior Associate.
The proposed protective order contemplates the following confidentiality tiers:
• Confidential — Information that the producing party in good faith believes constitutes confidential business information, the disclosure of which could cause competitive harm.
• Highly Confidential — Attorneys' Eyes Only — Information of a particularly sensitive nature, including trade secrets, proprietary pricing information, strategic business plans, and other information the disclosure of which is limited to outside counsel and designated experts.
• Highly Confidential — Source Code — To the extent applicable to proprietary source code associated with the NorthgateOS™ platform, a separate source code tier may be required, with access limited to a source code review room and subject to additional restrictions.
A draft protective order has been prepared and is held in reserve pending the lifting of the stay. The draft will be circulated to Hargrove, Winslow & Burke for negotiation once the District Court Action is reactivated.
C. Anticipated Production Volume
Based on the approximately 87,000 documents identified as potentially responsive through search term and date-range filtering, the estimated final production set—after completion of first-pass relevance review and privilege review—is 40,000 to 60,000 documents. This estimate is preliminary and is subject to revision based on the outcomes of the relevance review, the application of TAR, the results of privilege review, and any refinement of the document universe resulting from meet-and-confer negotiations with opposing counsel regarding the scope of discovery.
VIII. COST MANAGEMENT AND BUDGET
A. Candela discovery Solutions Fees
Candela discovery Solutions' fee structure for this engagement comprises per-document processing fees, per-gigabyte hosting fees, and monthly platform licensing fees for Concordia Review™, as well as hourly rates for project management and consulting services. The detailed fee schedule is maintained as Appendix C to this memorandum.
As of the August 2023 update, total fees billed by Candela to date are $294,000, broken down approximately as follows:
All Candela invoices are reviewed by Monica Reyes for accuracy and completeness, approved by Howard Bellamy (Billing Partner), and submitted to Catherine Ng at Northgate Networks America Inc. for payment. Candela fees are treated as disbursements under the engagement letter (Reference No. C&H-2022-ATR-00419) and are separate from the $275,000 monthly fee cap on Calderwood & Harkness attorney fees. Pre-approval from Catherine Ng is required for any single Candela invoice exceeding $50,000.
B. Projected Future Costs
Upon lifting of the stay and commencement of full document review in the District Court Action, projected additional Candela costs are estimated at $150,000 to $250,000, depending on the following variables:
• The volume of documents subject to first-pass and privilege review;
• The volume of documents ultimately produced;
• The duration of the discovery period;
• Whether supplemental collections from custodians are required to capture documents generated during the dormancy period; and
• Any additional processing, hosting, or production services required in connection with the FCC Proceeding or other related matters.
Contract reviewer costs, if incurred, would fall within Calderwood & Harkness's billing and would be subject to the blended rate cap of $925 per hour and the monthly fee cap of $275,000. Overages above the monthly fee cap require Catherine Ng's prior written approval.
For context, the total matter spend to date across all vendors and service providers is summarized below:
C. Cost Containment Measures
The following cost containment measures have been implemented and will continue to be employed throughout the e-discovery process:
(1) TAR / Predictive coding. The deployment of technology-assisted review is expected to significantly reduce the volume of documents requiring manual first-pass review, thereby reducing both the time and cost of the relevance review phase.
(2) Global de-duplication. De-duplication across all custodians eliminates redundant copies of documents from the review population, reducing the total number of documents that must be reviewed and coded.
(3) Email threading. Email threading allows reviewers to assess entire conversation chains as a unit rather than reviewing each individual message in isolation, improving review efficiency and reducing per-document review time.
(4) Monthly cost reporting. Candela provides monthly cost reports to the Calderwood & Harkness billing partner (Howard Bellamy), detailing all fees incurred during the reporting period, broken down by category. These reports are shared with Catherine Ng on a monthly basis.
(5) Pre-approval for large invoices. Pre-approval from Catherine Ng is required for any single Candela invoice exceeding $50,000, providing the client with direct oversight and control over vendor expenditures.
IX. DATA SECURITY AND CONFIDENTIALITY
The security and confidentiality of all data associated with this matter are of paramount importance, given the sensitivity of the information at issue, including proprietary technical information regarding Northgate's network infrastructure, confidential business strategy documents, and privileged attorney-client communications. The following data security measures are in place:
(1) Certifications. Candela maintains SOC 2 Type II certification and ISO 27001 compliance. Copies of these certifications are maintained as Appendix F to this memorandum.
(2) Encryption. All data is encrypted in transit using TLS 1.2 or higher and encrypted at rest using AES-256 encryption.
(3) Access controls. Access to the Concordia Review™ platform is restricted to authorized users identified in Section II.B above. All users are required to authenticate using multi-factor authentication (MFA). User access logs are maintained by Candela and are available for audit upon request.
(4) Personnel security. All Candela personnel with access to matter data have executed confidentiality and non-disclosure agreements. Candela conducts background checks on all personnel who handle client data.
(5) Data residency. All data associated with this matter is stored exclusively in Candela's U.S.-based data centers. No offshore processing, review, or storage of matter data is permitted.
(6) Incident response. Candela is obligated under the engagement letter to notify Calderwood & Harkness LLP within 24 hours of any data breach, unauthorized access event, or other security incident affecting matter data. Upon receipt of any such notification, Calderwood & Harkness will immediately notify the Responsible Partner and Catherine Ng, and will coordinate with Candela to implement appropriate remediation measures.