**ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL**
Calderwood & Harkness LLP Matter No. 1022-00005
Dear Dominic,
I am writing to update you on the status of the two pending privilege motions in the Meridian matter and to outline our preparation for oral argument before Justice Eleanor M. Ricci, scheduled for January 27, 2025, in Part 49 at 60 Centre Street.
**I. Summary of the Two Pending Motions**
**A. Meridian's Motion to Compel (Filed November 22, 2024)**
As you know, Meridian — through its counsel Thomas Deluca at Hargrove, Deluca & Stein LLP — filed a motion to compel production of 214 documents that Northgate withheld on attorney-client privilege and/or work product grounds, as reflected in the privilege log we served with Northgate's document production on October 31, 2024.
The disputed documents relate primarily to Northgate's internal legal advice regarding the termination strategy and analysis of whether to bring the fiber construction program in-house. Meridian argues that these documents are relevant to its "pretext theory" — that is, their contention that the termination for cause was pretextual and that Northgate's true motivation was to re-procure the fiber build at lower cost or bring it in-house following favorable market shifts in construction pricing.
We filed our opposition brief on December 2, 2024, arguing that the documents are properly withheld as attorney-client privileged communications reflecting legal advice regarding the termination and related strategic decisions. Jeffrey Park filed a supporting declaration on December 6, 2024, attaching excerpts from the privilege log and exemplar privilege descriptions. Briefing on this motion is complete and fully submitted.
**B. Northgate's Cross-Motion for Protective Order (Filed December 6, 2024)**
Concurrently, we filed a cross-motion seeking to compel Meridian to produce 187 documents it has withheld under a claimed "common interest privilege" between Meridian and its private equity sponsor, Ridgepoint Capital Group LP. Our memorandum of law argues that the common interest privilege does not apply here because Ridgepoint's interest in the litigation is financial — as the litigation funder, having funded an estimated $12 million litigation war chest — rather than legal, and because there is no joint defense agreement between Meridian and Ridgepoint.
These documents are potentially significant. They may contain communications between Meridian and Ridgepoint (specifically Graham Latimer at Ridgepoint) regarding Meridian's financial condition, the litigation funding arrangement, and strategic decisions about the conduct of this case. Meridian has filed its opposition, and briefing on this cross-motion is also complete.
**II. Oral Argument — January 27, 2025**
Both motions are set for oral argument before Justice Ricci on January 27. I will argue on behalf of Northgate; Thomas Deluca is expected to argue for Meridian.
Our key arguments at oral argument will be as follows:
*On Meridian's Motion to Compel:* The 214 documents reflect privileged legal advice sought and rendered in connection with Northgate's evaluation of its termination rights under MCA § 14.1. The fact that certain documents may touch on business strategy does not vitiate the privilege where the predominant purpose of the communications was obtaining legal counsel. Meridian's pretext theory does not create a crime-fraud or at-issue waiver exception. Northgate has not placed its attorneys' advice "at issue" in this litigation — the defense rests on the objective facts establishing Meridian's material breach, not on whether counsel advised Northgate to terminate.
*On Northgate's Cross-Motion:* Meridian cannot shield communications with a financial sponsor behind the common interest privilege absent a showing that the communications were made for the purpose of obtaining or providing legal advice in furtherance of a common legal — not merely commercial — interest. The absence of a formal joint defense agreement further undermines the claim. In the alternative, we have requested in camera review by Justice Ricci to evaluate the privilege claims document by document, which would allow the court to make individualized determinations.
**III. Preparation Steps and Meet-and-Confer History**
For the record, before these motions were filed, I sent a meet-and-confer letter to Thomas Deluca on November 15, 2024, proposing a substantive discussion of the privilege disputes with a view toward narrowing or resolving them without court intervention. Meridian nevertheless proceeded to file its motion on November 22, 2024, without meaningful engagement on the issues we raised.
On our end, Jeffrey Park and Yuki Nakamura are preparing the oral argument outline, and a draft will be circulated internally this week. I will conduct a moot session with the team prior to January 27 to pressure-test our arguments and prepare for the court's likely questions.
**IV. Potential Outcomes and Risk Assessment**
I want to be candid with you about the range of possible outcomes:
*Best case:* Justice Ricci denies Meridian's motion to compel entirely and grants our cross-motion, ordering production of the 187 Meridian-Ridgepoint documents. This would be a significant win on both fronts.
*Likely scenario:* Justice Ricci may order in camera review of some or all of the disputed documents on both sides. This is a common approach in complex commercial cases and could result in partial production by both parties following the court's document-by-document review. We are prepared for this outcome and believe our privilege designations will hold up well under judicial scrutiny.
*Risk:* If the court orders production of even a subset of the 214 Northgate documents, Meridian could gain insight into internal deliberations about the in-house fiber strategy, which it would attempt to use to bolster its pretext narrative. I want to emphasize, however, that even if some documents are produced, our core defense — that Meridian committed material breach through persistent schedule delays, 287 non-conformance reports (including 43 classified as critical), and failure to cure within the contractually specified period — remains strong and is well-supported by the documentary record and deposition testimony obtained to date.
Conversely, if we succeed on our cross-motion, access to the Meridian-Ridgepoint communications could reveal the extent to which litigation strategy is being driven by Ridgepoint's financial interests rather than the merits of Meridian's claims. This could be relevant to credibility assessments and useful at trial.
**V. Connection to Broader Case Posture**
The privilege motion outcome may inform expert report preparation. As you know, expert reports are due March 31, 2025, with rebuttal reports due May 15, 2025. If additional documents are produced by either side as a result of the court's ruling, our experts — Dr. Elinor Chazen at Lakeview Consulting Group and Professor Gordon Whitfield at Pinnacle Economics — may need to consider them in their analyses, and we will coordinate accordingly.
Additionally, I want to flag the upcoming deposition schedule:
- **Bridget Yeung** (Meridian COO): February 4, 2025 - **Helena Bright** (NTP CFO): February 18, 2025, by commission in London - **Dominic Hale** (noticed by Meridian): February 25, 2025 — as you are aware, we sent an objection letter to Thomas Deluca on January 10, 2025, on privilege grounds. We expect this objection to be addressed at or around the time of the January 27 oral argument, or by separate motion if Meridian persists in seeking this deposition. We will keep you closely apprised of developments on this front.
**VI. Action Items**
No immediate action is required on your part, but I would appreciate the opportunity for a brief call later this week to walk through the oral argument strategy in more detail and discuss any concerns you may have. Please let me know what times work for your schedule.
I also wanted to ask whether you or Sir Malcolm Ashford wish to attend the oral argument on January 27. It is open court, and you are welcome to be present, but client attendance is not necessary and will not affect the proceedings.
Finally, a reminder that coverage counsel Rachel Solomons at Pemberton Fox LLP has been kept apprised of all litigation developments, and that Ironclad Surety Group's defense cost contribution — up to $2 million under the current reservation of rights — remains in effect.
**VII. Closing**
We are confident in our position on both motions. The privilege designations are well-founded, and Meridian's challenge to the common interest privilege with Ridgepoint raises issues on which we believe the law strongly favors our position. I look forward to discussing this with you and to presenting these arguments to Justice Ricci on January 27.
Please do not hesitate to reach out at any time. I am happy to arrange a call at your convenience.
Best regards,
**Linda Osei** Partner Calderwood & Harkness LLP 425 Park Avenue, 33rd Floor New York, NY 10022 Direct: (212) 555-4180 losei@calderwoodharkness.com
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