Dear Tom:
I write on behalf of our client, Northgate Fiber Americas Inc. ("Northgate"), in the above-captioned matter pending before Hon. Eleanor M. Ricci (Part 49), C&H Matter No. 1022-00005, regarding the privilege objections raised in your letter of November 8, 2024, concerning the 214 documents withheld from Northgate's document production and identified on Northgate's privilege log served on October 31, 2024.
Consistent with the parties' obligations under Commercial Division Rule 14 and the discovery schedule established at the October 1, 2024 preliminary conference, I am writing to propose an in-person or videoconference meet and confer to discuss the parties' respective privilege disputes in good faith before either side initiates any motion practice. I would suggest we schedule this meeting during the week of November 18–22, 2024, and I am generally available Tuesday through Thursday of that week. I would ask that you let me know your availability at your earliest convenience so we can confirm a time.
Before that meeting, I want to set forth Northgate's position on the issues your letter raises, as well as Northgate's own concerns regarding certain entries on Meridian's privilege log, so that the meet and confer can be as productive as possible.
**I. Northgate's Privilege Position on the 214 Withheld Documents**
As an initial matter, the scope of Northgate's privilege withholdings should be viewed in context. Northgate has produced approximately 1.4 million documents totaling approximately 3.2 terabytes of data from 10 custodians. This production reflects Northgate's full cooperation with its discovery obligations. The 214 documents withheld on the privilege log represent a narrow subset of the total collection and are, in each instance, properly withheld under the attorney-client privilege and/or the attorney work product doctrine.
The withheld documents fall into three general categories:
*Category A: Legal Advice Regarding Termination Strategy.* This category comprises communications between Northgate personnel — including Dominic Hale, General Counsel, and Renata Voss, Vice President of US Network Infrastructure — and internal and external legal counsel, in which those individuals sought and received legal advice regarding the decision to terminate the Master Construction Agreement ("MCA") for cause under Section 14.1, the sufficiency of the cure notice process, and the legal risks associated with termination. These documents are core attorney-client privilege. They reflect confidential communications made for the express purpose of obtaining legal advice in connection with the termination decision — which, as you are well aware, is the central issue in this litigation.
*Category B: Board-Level Communications Regarding Legal Exposure.* This category comprises communications and presentations prepared for or circulated to members of Northgate's board of directors, including Dame Catherine Elsworth, Board Chair, regarding the legal implications of the Meridian dispute, potential litigation exposure, and legal strategy. These are privileged communications conveying legal advice to the company's governing body and fall squarely within the attorney-client privilege.
*Category C: Internal Analysis of In-House Fiber Strategy — Privileged Portions.* This category comprises certain internal documents analyzing Northgate's options for completing the fiber build-out — including the possibility of bringing construction management partially in-house or re-procuring through a replacement contractor — that were prepared at the direction of counsel and are inextricably intertwined with legal advice regarding Northgate's contractual rights, the consequences of termination under MCA §§ 14.1 and 14.5, and litigation risk.
I understand from your November 8 letter that Meridian's counsel has expressed particular interest in Category C, asserting that these documents are relevant to Meridian's theory that Northgate terminated the MCA not because of Meridian's material breach but as a pretext to re-procure construction services at a lower cost. I will address this directly: relevance does not override privilege. These documents reflect legal analysis that is inextricably intertwined with business considerations and were created at counsel's direction for the purpose of providing legal advice. Northgate will not produce them.
Importantly, the underlying business facts regarding Northgate's replacement contractor decision are fully available to Meridian from non-privileged documents already produced in this litigation, including the replacement contract with Crestline Construction Group Inc. executed on June 10, 2024, and the related commercial correspondence surrounding that engagement. Meridian's ability to pursue its "pretext" theory is in no way impaired by the withholding of privileged legal analysis.
**II. Response to Meridian's Anticipated Objections**
I anticipate that at the meet and confer, Meridian will advance at least two arguments that your November 8 letter foreshadowed.
First, Meridian is likely to contend that the Category C documents analyzing whether to bring fiber construction in-house or re-procure are "business documents" not subject to privilege. We disagree. These documents were created at the specific request of legal counsel in anticipation of litigation and to inform legal strategy regarding the termination. Under New York law, where a communication has both legal and business aspects, the privilege applies so long as the primary purpose of the communication was to obtain or provide legal advice. *See, e.g., Alice Ames*, 78 N.Y.2d 371 (1991). The documents at issue satisfy that standard. The fact that they touch upon business strategy does not strip them of privilege where, as here, the business decisions were being evaluated through the lens of legal risk and contractual rights, at the direction of counsel.
Second, Meridian has suggested that Northgate's privilege log lacks sufficient detail. We respectfully disagree. The log identifies each document by custodian, date, author, all recipients, document type, and a description of the subject matter sufficient to enable evaluation of the privilege claim, consistent with the requirements of CPLR 3122. That said, in the interest of facilitating a productive meet and confer and avoiding unnecessary motion practice, we are prepared to provide supplemental log entries with additional descriptive detail for any specific documents that Meridian's counsel wishes to discuss. I would ask that, in advance of the meet and confer, you identify the particular log entries for which you seek additional information so that we can come prepared.
**III. Northgate's Reciprocal Concerns — Meridian's Common Interest Privilege Assertions**
I also want to raise a matter that we believe should be addressed at the same meet and confer: Northgate has serious concerns regarding Meridian's privilege log, which identifies 187 documents withheld under an asserted "common interest privilege" covering communications between Meridian and its private equity sponsor, Ridgepoint Capital Group LP ("Ridgepoint").
As you know, the common interest doctrine under New York law requires that the communications at issue be made in furtherance of a common *legal* interest, not merely a common commercial or financial interest. *See Larkspur Holdings*, 27 N.Y.3d 616 (2016). Here, Ridgepoint's interest in this litigation appears to be primarily financial — as Meridian's majority equity holder, holding approximately 55% of Meridian's equity, and as the apparent funder of this litigation, with an estimated $12 million litigation war chest funded by Ridgepoint based on Meridian's own discovery responses. A shared financial stake in the outcome of litigation is not the same as a shared legal interest sufficient to invoke the common interest doctrine.
Moreover, Northgate is not aware of any joint defense agreement or similar arrangement between Meridian and Ridgepoint that would support the application of the common interest privilege. The burden of establishing the common interest privilege rests with the party asserting it, and Meridian has not, to date, provided sufficient information to sustain that burden.
Accordingly, I propose that the meet and confer address both the 214 Northgate documents and the 187 Meridian documents, so that the parties can attempt a global resolution of all outstanding privilege disputes.
**IV. Practical Proposals for Resolution**
In the interest of efficiency, I suggest the following framework for our meet and confer:
1. In advance of the meeting, each side would exchange exemplar documents or more detailed privilege log descriptions for a representative sample of disputed entries, to facilitate focused discussion.
2. At the meeting, we would discuss whether any withheld documents on either side can be produced in redacted form — for example, redacting privileged legal advice while producing underlying factual content — as a means of narrowing the dispute.
3. To the extent the parties are unable to resolve all disputes through the meet and confer, we would discuss whether to jointly propose an in camera review by Justice Ricci as an alternative to full briefing on a motion to compel, which may be a more efficient path to resolution for all concerned.
I want to emphasize that Northgate approaches this process in good faith and with a genuine willingness to work toward a reasonable resolution of these disputes. At the same time, I want to be equally clear that Northgate is confident in the propriety of its privilege assertions and will defend them vigorously if motion practice becomes necessary.
**V. Next Steps**
Please respond at your earliest convenience with your availability for the proposed meet and confer during the week of November 18–22, 2024, and please let me know whether you have a preference for meeting in person or by videoconference.
Northgate reserves all rights and objections regarding these and any other discovery matters in this litigation.
Thank you for your attention to this matter. I look forward to hearing from you.
Very truly yours,
Linda Osei Partner Calderwood & Harkness LLP 425 Park Avenue, 33rd Floor New York, NY 10022 Tel: (212) 509-7400 Email: losei@calderwoodharkness.com
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