1022-00005 · Hargrove, Deluca & Stein LLP · Correspondence/Opposing Counsel

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CALDERWOOD & HARKNESS LLP Attorneys at Law

425 Park Avenue, 33rd Floor New York, New York 10022

Telephone: (212) 554-7800 Facsimile: (212) 554-7801 www.calderwoodharkness.com

November 1, 2024

Via Email and First-Class Mail

Thomas Deluca, Esq. Hargrove, Deluca & Stein LLP 51 West 52nd Street, 40th Floor New York, New York 10019

Re: Meridian Infrastructure Partners LLC v. Northgate Fiber Americas Inc., Supreme Court of the State of New York, New York County, Commercial Division, Index No. 654321/2024 — Deficiencies in Plaintiff's Document Production

Dear Mr. Deluca:

I. Introduction and Purpose

We write on behalf of our client, defendant Northgate Fiber Americas Inc. ("Northgate" or "NFA"), in the above-captioned matter (C&H Matter No. 1022-00005). The purpose of this letter is to identify specific and material deficiencies in the document production served to date by plaintiff Meridian Infrastructure Partners LLC ("Meridian") in response to Defendant's First Set of Document Requests, which were served on October 8, 2024 and comprise fifty-six (56) individual document requests.

As you are aware, the discovery schedule in this matter was established at the Preliminary Conference held on October 1, 2024 before the Honorable Eleanor M. Ricci, Part 49, Commercial Division. At that conference, the parties also filed the Stipulated E-discovery Protocol and ESI Agreement (the "ESI Protocol"), which governs the format, search methodology, and completeness obligations applicable to all document productions in this litigation. The ESI Protocol provides, among other things, that productions shall be made in near-native format with accompanying load files and metadata, that the parties shall employ reasonable and proportionate search methodologies, and that Vantage Litigation Support LLC ("Vantage") shall serve as the agreed-upon neutral e-discovery vendor for purposes of data hosting, processing, and resolution of any technical disputes regarding production format.

Since receiving Meridian's initial production, Northgate and its counsel have undertaken a thorough review of the materials produced. Meridian's production to date consists of approximately 890,000 documents, totaling approximately 1.8 terabytes of data, drawn from the files of eight (8) identified custodians, including Victor Sandoval (Meridian's CEO), Bridget Yeung (Meridian's COO), Marcus Henley (Meridian's VP of Field Operations, Northeast Division), and six additional custodians. While Northgate acknowledges the volume of the production, our review has revealed significant gaps and deficiencies across multiple categories of documents that are directly relevant to the claims and defenses in this action. These deficiencies are detailed below.

We write in the spirit of cooperation and with a genuine desire to resolve these issues through the meet-and-confer process contemplated by Commercial Division Rule 14 and the Court's Preliminary Conference Order, without the need for judicial intervention. Nevertheless, Northgate reserves all rights to seek appropriate relief from the Court — including a motion to compel, sanctions, and adverse inference instructions — in the event that these deficiencies are not promptly and fully remedied.

We note that Northgate's own document production, which was made contemporaneously with Meridian's, consists of approximately 1.4 million documents totaling approximately 3.2 terabytes of data, produced from ten (10) custodians — including Renata Voss (NFA Senior VP of Network Deployment), Sean Calloway (NFA Director of Construction Management), Helena Bright (NFA General Counsel's Office), and seven additional custodians. Northgate's production was made in good faith and is substantially complete, reflecting Northgate's commitment to full and fair participation in the discovery process. We expect that Meridian will demonstrate a reciprocal commitment.

The specific categories of deficiency are set forth below.

II. Category 1: Missing Project Files for Phases 2 and 3

A. Phase 2 Construction Documentation (Connecticut, Western Massachusetts, Southern Pennsylvania — Milestones 5–8)

Defendant's Document Request Nos. 3, 7, 12, and 15 sought, individually and collectively, all project files, daily construction logs, inspection reports, progress photographs, as-built drawings, and field engineering records relating to the Phase 2 construction work on the NFA fiber build-out program. Phase 2 encompasses construction activity across Connecticut, western Massachusetts, and southern Pennsylvania, covering approximately 5,600 route miles with an aggregate milestone value of $363 million as set forth in Exhibit B to the Master Construction Agreement ("MCA"). These requests specifically targeted documentation associated with Milestones 5 through 8, which constitute the core of Phase 2 performance.

Northgate's review of Meridian's production reveals that the daily construction logs produced cover only approximately 40% of the Phase 2 construction period, which ran from approximately October 2021 through the date of termination on April 1, 2024. The gaps in the daily log production are not random; rather, they are concentrated in the periods during which the most significant schedule delays accrued. Specifically:

• Milestone 6: Meridian's own progress reports acknowledge that Milestone 6 was completed sixty-eight (68) days behind the contractual schedule. Daily construction logs for much of this period are absent from the production.

• Milestone 7: Milestone 7 was completed ninety-one (91) days late. Again, the daily logs for the periods of greatest schedule slippage are largely missing.

• Milestone 8: At the time of termination, Milestone 8 had accrued one hundred thirty-four (134) days of delay, with the delay capped at 10% of the $91 million milestone value under MCA § 12.3(b). The daily logs for the Milestone 8 period are particularly sparse, with entire weeks and, in some instances, months of daily logs unaccounted for.

These gaps are significant and troubling. The daily construction logs are foundational documents in any construction dispute; they record crew counts, equipment utilization, weather conditions, subcontractor activity, work completed, and observations by field personnel. Their absence from Meridian's production during the very periods when delays were mounting is a material deficiency that impedes Northgate's ability to prepare its defenses.

In addition, no as-built drawings have been produced for any Phase 2 segments located in Connecticut or western Massachusetts. As-built drawings are customarily maintained as part of the project record and are required under MCA § 9.4(c). Their complete absence from the production for two of the three Phase 2 states is inexplicable.

Further, field inspection reports prepared by Meridian's own quality assurance personnel are largely absent from the production. This deficiency is particularly troubling in light of the project's well-documented quality issues. During the course of the NFA fiber build-out program, Northgate issued a total of two hundred eighty-seven (287) non-conformance reports ("NCRs"), of which forty-three (43) were classified as "critical" and two hundred forty-four (244) were classified as "non-critical." The overwhelming majority of these NCRs arose in connection with Phase 2 construction activities. Meridian's internal inspection records — including its own quality audits, corrective action tracking, and responses to NCRs — are essential to understanding Meridian's contemporaneous awareness of, and response to, these quality deficiencies. The absence of these records from the production raises serious questions about the completeness of Meridian's document collection efforts.

Accordingly, Northgate demands that Meridian conduct a supplemental and thorough search of all repositories — including, without limitation, the files of Marcus Henley, VP of Field Operations for the Northeast Division, who was responsible for overseeing Phase 2 field operations — and produce all responsive Phase 2 project files, including daily construction logs, inspection reports, progress photographs, as-built drawings, and field engineering records for the entirety of the Phase 2 construction period.

B. Phase 3 Construction Documentation (Maryland, Virginia, Eastern Pennsylvania — Milestones 9–14)

Defendant's Document Request Nos. 4, 8, 13, and 16 sought equivalent categories of documentation for Phase 3 of the NFA fiber build-out program. Phase 3 encompasses construction work across Maryland, Virginia, and eastern Pennsylvania, covering approximately 9,700 planned route miles with an aggregate milestone value of $629 million under MCA Exhibit B. Milestones 9 through 14 correspond to Phase 3 deliverables.

As is undisputed, Phase 3 construction was in its early stages at the time of termination. Only approximately 340 route miles — representing approximately 3.5% of the planned Phase 3 scope — had been constructed before Northgate terminated the MCA on April 1, 2024. During the Phase 3 period, Meridian submitted payment applications totaling $48.2 million, of which Northgate approved and paid $31.7 million. The remaining $16.5 million in disputed Phase 3 invoices forms the basis of Meridian's Count II in this action.

Despite the direct relevance of Phase 3 documentation to both Meridian's affirmative claims and Northgate's defenses, Meridian's production includes almost no Phase 3 project files whatsoever. Specifically, the production contains:

• No daily construction logs for Phase 3 activities;

• No crew deployment records or staffing plans for Phase 3 work;

• No equipment utilization reports for Phase 3;

• No mobilization plans for any of the three Phase 3 states — Maryland, Virginia, or eastern Pennsylvania; and

• No subcontractor scheduling or coordination documents specific to Phase 3.

These documents are directly and indisputably relevant to multiple issues in this litigation. They bear on Northgate's position that Meridian made inadequate progress in Phase 3, which was a central basis for the issuance of Cure Notice No. 1 (sent by Renata Voss on January 18, 2024), which specifically cited inadequate Phase 3 mobilization and the failure to deploy sufficient crews and resources to meet the Phase 3 milestone schedule. They are equally relevant to Northgate's defense against Meridian's Count II, as the disputed $16.5 million in Phase 3 invoices cannot be properly evaluated without the underlying project records documenting the work for which Meridian claims payment. And they are relevant to Northgate's affirmative defense that it terminated the MCA for cause based on Meridian's material breach of its Phase 3 obligations.

Northgate demands that Meridian conduct a complete search for all Phase 3 project files and produce all responsive documents without further delay.

III. Category 2: Incomplete Subcontractor Communications and Agreements

Defendant's Document Request Nos. 20, 21, 22, and 23 collectively sought all subcontractor agreements, purchase orders, correspondence, change orders, and payment records relating to Meridian's engagement of subcontractors on the NFA fiber build-out program. Meridian self-performed a portion of the construction work but engaged numerous subcontractors across all three phases, and the subcontractor relationships are directly relevant to issues of schedule performance, quality control, resource allocation, and cost.

As part of its own discovery efforts, Northgate served third-party subpoenas pursuant to CPLR 3120 on seven (7) of Meridian's known subcontractors. Northgate has received productions from several of these subcontractors, and those productions contain communications with Meridian personnel that do not appear anywhere in Meridian's own production. This discrepancy strongly suggests that Meridian's document collection and search efforts have failed to capture a material volume of subcontractor-related communications.

The specific deficiencies identified to date include the following:

1. Missing Subcontract Agreements. No subcontract agreements have been produced for at least three (3) of the subcontractors known to have performed work on Phases 2 and 3 of the NFA project. These are formal written contracts that should be readily identifiable and locatable in Meridian's files, and their absence from the production is difficult to explain.

2. Missing Field-Level Correspondence. Correspondence between Meridian field supervisors — including, in particular, Marcus Henley — and subcontractor project managers regarding crew shortages, schedule acceleration measures, and quality remediation efforts appears to be almost entirely absent from Meridian's production. Northgate is aware, from its own contemporaneous records and from the productions received from third-party subcontractors, that such correspondence exists and was exchanged on a regular basis throughout the project. The failure to produce these communications deprives Northgate of critical evidence regarding the operational realities of the project and the reasons for schedule delays and quality failures.

3. Missing Payment Records. No subcontractor payment records have been produced. Records of payments made to subcontractors — including payment applications, invoices, lien waivers, and evidence of payment — are relevant to Meridian's financial condition during the project, its ability to retain and adequately staff subcontractor resources, and the question of whether Meridian was allocating sufficient financial resources to the NFA project as compared to its other contractual commitments. These documents bear directly on Northgate's defenses.

Northgate requests that Meridian identify all subcontractors engaged to perform work on the NFA fiber build-out program across all phases and produce all responsive documents relating to those subcontractor relationships. To the extent that responsive subcontractor communications reside in the files of custodians not yet included in Meridian's search, Northgate requests that Meridian expand its custodian list to include those individuals.

IV. Category 3: Ridgepoint Capital Group LP Communications

A. Scope of Request

Defendant's Document Request Nos. 30, 31, and 32 sought all communications between Meridian and its majority equity owner, Ridgepoint Capital Group LP ("Ridgepoint"), concerning the NFA contract, the fiber build-out program, Meridian's performance under the MCA, the termination, and the decision to initiate this litigation. Ridgepoint's principal office is located at 2100 Ross Avenue, Suite 3300, Dallas, Texas 75201, and its Managing Partner is Graham Latimer.

The relevance of Ridgepoint communications to this litigation is substantial and multifaceted. Ridgepoint acquired a 55% equity stake in Meridian in 2018 for approximately $285 million. It is publicly known — and has been confirmed through Meridian's own discovery responses — that Ridgepoint's investment thesis was premised in significant part on the Northgate contract, which was Meridian's largest single construction program and a key driver of Meridian's revenue and growth profile. Ridgepoint has board representation and has been actively involved in Meridian's strategic and operational decision-making. Furthermore, Ridgepoint has funded Meridian's litigation costs in connection with this action, which are estimated at approximately $12 million based on Meridian's discovery responses to date.

Communications between Meridian and Ridgepoint are directly relevant to multiple issues in this case, including:

(a) Meridian's financial capacity to perform the MCA, including whether capital constraints imposed or influenced by Ridgepoint affected Meridian's ability to staff and resource the project adequately;

(b) Ridgepoint's influence on Meridian's operational decisions, including decisions regarding staffing levels, crew deployment, equipment procurement, and resource allocation between the NFA project and Meridian's other construction programs;

(c) The decision to pursue approximately $200 million in claims against NFA, including the question of whether that decision was driven by Ridgepoint's financial interests in maximizing the return on its equity investment;

(d) Meridian's damages theories, including the alleged lost-profits claim (Count I) and, in particular, Count IV, in which Meridian seeks $34,133,333 in damages for alleged loss of bonding capacity and reputational harm — claims that necessarily implicate Ridgepoint's assessment of Meridian's financial condition and market position; and

(e) Ridgepoint's contemporaneous assessment of Meridian's performance under the MCA, which may include internal analyses, board presentations, and investor reports that bear on the objective reasonableness of Meridian's conduct.

B. Meridian's Withholding on Privilege Grounds

Meridian has withheld one hundred eighty-seven (187) documents from production under a claimed "common interest privilege" between Meridian and Ridgepoint. Northgate's position is that the common interest privilege — to the extent it is even applicable in New York state court — does not protect communications between a company and its private equity sponsor regarding litigation funding and operational matters where the purportedly shared interest is financial and strategic in nature, rather than legal. To invoke the common interest doctrine, the parties must share a common legal interest, and their communications must be made in furtherance of a joint legal strategy. A shared financial interest in the outcome of litigation does not satisfy this standard. Moreover, no joint defense agreement between Meridian and Ridgepoint has been produced or identified in any of Meridian's discovery responses, privilege log entries, or correspondence.

Northgate reserves its rights to formally challenge the privilege designations through appropriate motion practice. This letter, however, separately addresses the failure to produce non-privileged Ridgepoint communications, which is itself a significant deficiency independent of the privilege dispute.

With respect to the privilege log, Meridian's log, to the extent one has been provided, does not appear to cover all withheld or non-produced Ridgepoint-related documents. The log entries that have been provided are, in many instances, insufficiently detailed to permit a meaningful assessment of the privilege claim, lacking adequate descriptions of the subject matter, the participants, and the basis for the asserted privilege.

Separate and apart from the 187 documents reflected on the privilege log, Meridian appears to have produced virtually no Ridgepoint communications at all. This includes routine, non-privileged business communications regarding project status, board reports, quarterly business reviews, investor updates, management presentations, and operational summaries that would have been exchanged in the ordinary course between a portfolio company and its majority equity owner. There is no plausible basis for asserting privilege over such business communications, and their absence from the production represents a significant gap.

Accordingly, Northgate demands that Meridian conduct a comprehensive search for all Ridgepoint-related communications, including communications to and from Graham Latimer and all other Ridgepoint personnel, across all custodians and data sources, and produce all non-privileged responsive documents. To the extent Meridian continues to assert common interest privilege or any other privilege over specific documents, Northgate demands a complete, detailed, and CPLR 3122-compliant privilege log entry for each withheld document, including the date, author, all recipients, subject matter description, and the specific privilege or protection asserted.

V. Category 4: Meridian's Internal Financial Records Related to the NFA Contract

Defendant's Document Request Nos. 35, 36, 37, and 38 sought Meridian's internal financial records relating to the NFA fiber build-out program, including project-level profit-and-loss statements, cost reports, budget-to-actual analyses, cash flow projections, revenue recognition schedules, job cost accounting records, and all other financial analyses performed by Meridian in connection with the NFA contract.

The relevance of these financial records cannot be overstated. Meridian's FY2023 revenue was $620 million, with EBITDA of $58.9 million, representing a 9.5% margin. The NFA contract — with a total value of approximately $1.2 billion — was Meridian's largest single program and a substantial driver of its financial performance. Meridian's internal financial records for this project are essential to the evaluation of multiple claims and defenses in this action:

(a) Meridian's Lost-Profits Claim (Count I). Meridian's Count I seeks, among other relief, $41.976 million in alleged lost profits. Evaluation of this claim requires access to Meridian's project-level financial data, including its actual costs incurred, projected costs to complete, and margin analyses. Without this data, Northgate cannot meaningfully assess the validity or quantum of Meridian's lost-profits theory.

(b) Resource Allocation. Northgate's defense includes the contention that Meridian failed to allocate adequate resources — including labor, equipment, and management attention — to the NFA project, diverting resources instead to other projects in its portfolio. Meridian's internal financial records, including budget-to-actual analyses and cost allocation reports, will shed light on whether Meridian was, in fact, underinvesting in the NFA project relative to its contractual obligations and its own internal budgets.

(c) Financial Capacity to Perform. Northgate has raised as a defense that Meridian lacked the financial capacity to complete the MCA. Project-level financial records, together with corporate-level cash flow data, are directly relevant to this defense.

(d) Failure to Mitigate. Northgate's affirmative defense of failure to mitigate requires examination of Meridian's post-termination financial performance and its efforts (or lack thereof) to replace the NFA contract revenue. Meridian's backlog at the time of termination was approximately $1.4 billion, inclusive of the Northgate contract; post-termination, Meridian's reported backlog was approximately $770 million. This financial context — reflecting a significant loss of contracted revenue but a still-substantial remaining backlog — is directly relevant to mitigation.

Meridian's production to date contains only summary-level financial reports — the type of high-level overviews that might appear in a board presentation — and no project-specific cost data of the kind that Meridian's finance and accounting teams unquestionably maintained in the ordinary course of business. The absence of detailed financial records for a $1.2 billion construction program is not credible.

We also note the relevance of Meridian's relationship with Dralvecen Commercial Finance LLC ("Dralvecen"), which provides Meridian with a $150 million revolving credit facility. Dralvecen has asserted lien interests in Meridian's receivables from the NFA contract, and communications between Meridian and Dralvecen regarding the NFA contract, the termination, and the impact on Meridian's borrowing capacity are responsive to Northgate's document requests and should be produced.

Northgate demands the production of Meridian's complete internal financial records for the NFA project, including all project-level P&L statements, cost reports, budget-to-actual analyses, cash flow projections, revenue recognition schedules, and job cost data, as well as all financial analyses and reports provided to Ridgepoint and all communications with Dralvecen regarding the NFA contract.

VI. Category 5: Documents Related to Meridian's Corrective Action Plan and Cure Period

Defendant's Document Request Nos. 40, 41, and 42 sought all documents relating to Meridian's internal response to the two Cure Notices issued by Northgate and to the Corrective Action Plan that Meridian ultimately submitted. Specifically, these requests sought drafts, internal deliberations, resource analyses, schedule analyses, cost estimates, and communications with subcontractors and internal personnel regarding the Corrective Action Plan, as well as all documents reflecting Meridian's assessment of its ability to cure the defaults identified in the Cure Notices.

The relevant timeline is as follows:

• January 18, 2024: Northgate, through Renata Voss (Senior VP of Network Deployment), issued Cure Notice No. 1, citing multiple material breaches of the MCA, including persistent schedule delays in Phase 2, inadequate Phase 3 mobilization, and unresolved quality deficiencies. The Cure Notice provided Meridian with a thirty (30) day cure period under MCA § 22.2.

• February 2, 2024: Victor Sandoval, Meridian's CEO, responded to Cure Notice No. 1 by letter, disputing Northgate's characterization of certain defaults and asserting, for the first time, that NFA had directed fourteen (14) scope changes that were never formalized as Change Orders under MCA § 16.1, contributing to the schedule delays.

• February 19, 2024: Northgate issued Cure Notice No. 2, citing additional defaults and reiterating the unremedied defaults from Cure Notice No. 1. Cure Notice No. 2 specifically referenced twelve (12) additional critical NCRs issued in February 2024 alone.

• March 5, 2024: Meridian submitted its Corrective Action Plan, which proposed an accelerated construction schedule, the deployment of additional crews, a nine (9) month extension of the MCA schedule, and $87 million in additional compensation for alleged Owner-caused delays and scope changes.

• March 12, 2024: Northgate rejected the Corrective Action Plan as inadequate, citing, among other things, the twelve additional critical NCRs issued in February 2024, the Plan's failure to address the root causes of the quality deficiencies, and the unreasonableness of Meridian's demand for a nine-month extension and $87 million in additional compensation.

• April 1, 2024: Northgate terminated the MCA for cause.

Meridian has produced the final version of the Corrective Action Plan and Victor Sandoval's February 2, 2024 response letter, but virtually no documents reflecting the internal process by which these documents were developed. Specifically, the production is devoid of:

• Drafts of the Corrective Action Plan and the Sandoval response letter;

• Internal communications among Meridian executives — including Victor Sandoval, Bridget Yeung (COO), and Marcus Henley (VP of Field Operations) — regarding the substance and strategy of Meridian's response to the Cure Notices;

• Resource analyses, schedule models, or feasibility assessments underlying the Corrective Action Plan's proposal for accelerated performance;

• The cost analyses or other documentation supporting the $87 million additional compensation request;

• Documentation of the fourteen (14) alleged Owner-directed scope changes referenced in the Sandoval letter, including any contemporaneous analyses of their schedule and cost impact; and

• Communications with subcontractors regarding the proposed acceleration plan and subcontractor capacity to support it.

These documents go to the heart of Meridian's defense that the termination was pretextual and that Meridian was genuinely prepared to cure the identified defaults. They are equally relevant to Northgate's position that the Corrective Action Plan was inadequate and that Meridian's failure to cure provided a contractual basis for termination. The absence of any internal deliberation documents surrounding the most consequential events in this dispute constitutes a material gap in Meridian's production.

Northgate demands complete production of all documents responsive to Document Request Nos. 40, 41, and 42.

VII. Category 6: Communications Regarding Alleged Owner-Directed Scope Changes

Defendant's Document Request Nos. 45 and 46 sought all documents relating to Meridian's assertion — first raised in Victor Sandoval's February 2, 2024 response letter to Cure Notice No. 1 and subsequently incorporated into the Corrective Action Plan and the Amended Complaint — that Northgate directed fourteen (14) scope changes during the course of the project that were never formalized as Change Orders under MCA § 16.1.

This assertion is central to Meridian's case. Meridian contends that these alleged scope changes contributed to the schedule delays that Northgate cited as grounds for termination and that Meridian is entitled to additional compensation for the work performed in connection with those changes. MCA § 16.1, however, expressly provides that changes to the scope of work or the construction schedule must be memorialized in written Change Orders signed by authorized representatives of both parties. Under MCA § 16.1(c), Meridian was obligated to submit a written Change Order Request within ten (10) business days of receiving any direction that it contended constituted a change in scope.

Meridian's production contains:

• No written Change Order Requests submitted by Meridian to NFA at any time during the project;

• No field directives, memoranda, emails, or other communications from NFA personnel that Meridian characterizes as constituting scope changes;

• No contemporaneous documentation of any of the fourteen (14) alleged scope changes; and

• No analyses — whether schedule impact analyses, cost impact analyses, or otherwise — performed by Meridian in connection with any alleged scope change.

The complete absence of documentary support for a claim that is central to Meridian's case and that Meridian affirmatively raised in response to the Cure Notice is a significant deficiency. If such documents exist, they must be produced. If they do not exist, Meridian should so state.

Northgate requests that Meridian identify each of the fourteen (14) alleged scope changes by date, description, geographic location, impacted milestone(s), and alleged schedule and cost impact, and produce all supporting documentation for each.

VIII. Category 7: Meridian's Communications with Ironclad Surety Group Inc.

Defendant's Document Request No. 50 sought all communications between Meridian and Ironclad Surety Group Inc. ("Ironclad") relating to Performance Bond No. ISG-2020-NE-04417, a $120 million performance bond issued by Ironclad in connection with the MCA. This request encompasses Meridian's April 15, 2024 demand on the bond, any subsequent correspondence between Meridian and Ironclad regarding the bond claim, and all communications relating to Ironclad's investigation or assessment of the claim.

To date, no responsive documents have been produced. The claims contact at Ironclad is Patricia Dwyer, VP of Claims, located at 300 North Meridian Street, Suite 1800, Indianapolis, Indiana 46204. Meridian's communications with Ironclad are readily identifiable and should be searchable across any reasonable custodian set.

These documents are relevant to the bond claim itself and to Meridian's Count IV, in which Meridian seeks $34,133,333 in damages for alleged loss of bonding capacity and reputational harm. Meridian's communications with its surety — including any representations made to Ironclad regarding the circumstances of the termination, Meridian's performance, and the merits of the bond claim — are directly relevant to these issues and may contain admissions or characterizations inconsistent with Meridian's litigation positions.

Northgate demands the immediate production of all documents responsive to Document Request No. 50.

IX. Search Methodology Concerns

Under the Stipulated E-discovery Protocol, the parties agreed to disclose their respective custodians, date ranges, and search terms used in connection with document collection and production. This disclosure obligation is essential to ensuring the transparency and reliability of the parties' respective production efforts and to enabling meaningful assessment of whether productions are complete and responsive.

Meridian has identified eight (8) custodians from whom documents have been collected and searched. However, Meridian has not disclosed the search terms applied to those custodians' data, nor has Meridian confirmed whether all relevant data sources have been searched. In particular, Northgate has significant concerns regarding whether Meridian's search encompassed:

• Text messages and SMS communications, which are commonly used by field personnel and executives alike and which frequently contain substantive project communications;

• Instant messaging platforms (including, without limitation, Northgate Data Systems, Meridian Solutions, or any other enterprise messaging system used by Meridian);

• Project management software, including whatever systems Meridian used for daily construction log management, NCR tracking, schedule management, and document control; and

• Mobile devices issued to or used by custodians in connection with the NFA project.

Northgate requests that Meridian provide a written certification of its search methodology, including:

(a) Identification of all eight (8) custodians by name and role/title within Meridian;

(b) All search terms and Boolean queries applied to each custodian's data;

(c) All data sources searched for each custodian, including email systems, shared network drives, cloud storage, project management platforms, mobile devices, and messaging applications;

(d) The date range applied to the search; and

(e) Any exclusions, limitations, or de-duplication protocols applied during the collection, processing, or review stages.

In addition, Northgate requests that Meridian confirm whether Randall Obrecht, Meridian's Chief Financial Officer, is among the eight identified custodians. Given the direct relevance of Meridian's financial records to multiple claims and defenses in this action — as detailed in Category 4 above — it would be unreasonable for Mr. Obrecht's files not to have been searched. If Mr. Obrecht is not currently among the identified custodians, Northgate demands that his files be searched and all responsive documents produced.

X. Meet and Confer Request

Pursuant to Commercial Division Rule 14 and the Court's October 1, 2024 Preliminary Conference Order, which requires the parties to make good-faith efforts to resolve discovery disputes before seeking judicial intervention, Northgate proposes a meet and confer to discuss and, if possible, resolve each of the deficiencies identified in this letter.

We propose that the meet and confer take place during the week of November 11, 2024, at a mutually convenient time, at the offices of Calderwood & Harkness LLP, 425 Park Avenue, 33rd Floor, New York, New York, or, if more convenient, by videoconference. We are flexible regarding scheduling and are prepared to accommodate your availability.

In advance of the meet and confer, Northgate requests that Meridian provide a written response to each category of deficiency identified in this letter no later than November 8, 2024. A written response will allow us to focus the meet-and-confer discussion on areas of genuine disagreement and will facilitate the efficient resolution of these issues.

It is Northgate's sincere hope that these matters can be resolved cooperatively, without the need for motion practice. Northgate is committed to a productive and professional discovery process. However, Northgate expressly reserves all rights to seek appropriate relief from the Court in the event that the deficiencies identified herein are not timely and adequately addressed, including, without limitation, the right to file a motion to compel production pursuant to CPLR 3124, to seek sanctions pursuant to CPLR 3126 and 22 NYCRR § 130-1.1, and to request adverse inference instructions at trial with respect to documents that have been withheld, destroyed, or not produced.

XI. Reservation of Rights

This letter does not constitute an exhaustive identification of all deficiencies in Meridian's document production. Northgate's review of the production is ongoing, and additional deficiencies may be identified as the review continues. Northgate reserves the right to raise additional issues in subsequent correspondence or in connection with any motion practice.

Northgate further reserves all rights, claims, and remedies available to it under the New York Civil Practice Law and Rules, the Commercial Division Rules (22 NYCRR § 202.70), the Court's Preliminary Conference Order and any subsequent discovery orders, and the Stipulated E-discovery Protocol, including, without limitation, the right to seek court intervention, sanctions, cost-shifting, and any other appropriate relief.

Nothing in this letter shall be construed as a waiver of any privilege, protection, objection, or defense asserted or available to Northgate in this action or in any other proceeding.

XII. Closing

We appreciate your prompt attention to these matters and the seriousness with which we trust your client will address the deficiencies outlined above. Discovery in this action is subject to a court-ordered schedule, and timely resolution of these issues is essential to ensuring that both parties can prepare their cases for the upcoming depositions and, ultimately, for trial.

Please do not hesitate to contact me directly at the number below, or Jeffrey Park at (212) 554-7823, to schedule the meet and confer at a mutually convenient time. We look forward to working with you to resolve these issues promptly.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Linda Osei Partner

425 Park Avenue, 33rd Floor New York, New York 10022 Direct: (212) 554-7819

Email: losei@calderwoodharkness.com

cc: Jeffrey Park, Esq., Calderwood & Harkness LLP cc: Miriam Vasquez, Esq., Hargrove, Deluca & Stein LLP cc: Dominic Hale, Esq., General Counsel, Northgate Telecommunications PLC (via separate cover, privileged)

CALDERWOOD & HARKNESS LLP Attorneys at Law
425 Park Avenue, 33rd Floor New York, New York 10022
Telephone: (212) 554-7800 Facsimile: (212) 554-7801 www.calderwoodharkness.com
November 1, 2024
Via Email and First-Class Mail
Thomas Deluca, Esq. Hargrove, Deluca & Stein LLP 51 West 52nd Street, 40th Floor New York, New York 10019
Re: Meridian Infrastructure Partners LLC v. Northgate Fiber Americas Inc., Supreme Court of the State of New York, New York County, Commercial Division, Index No. 654321/2024 — Deficiencies in Plaintiff's Document Production
Dear Mr. Deluca:
I. Introduction and Purpose
We write on behalf of our client, defendant Northgate Fiber Americas Inc. ("Northgate" or "NFA"), in the above-captioned matter (C&H Matter No. 1022-00005). The purpose of this letter is to identify specific and material deficiencies in the document production served to date by plaintiff Meridian Infrastructure Partners LLC ("Meridian") in response to Defendant's First Set of Document Requests, which were served on October 8, 2024 and comprise fifty-six (56) individual document requests.
As you are aware, the discovery schedule in this matter was established at the Preliminary Conference held on October 1, 2024 before the Honorable Eleanor M. Ricci, Part 49, Commercial Division. At that conference, the parties also filed the Stipulated E-discovery Protocol and ESI Agreement (the "ESI Protocol"), which governs the format, search methodology, and completeness obligations applicable to all document productions in this litigation. The ESI Protocol provides, among other things, that productions shall be made in near-native format with accompanying load files and metadata, that the parties shall employ reasonable and proportionate search methodologies, and that Vantage Litigation Support LLC ("Vantage") shall serve as the agreed-upon neutral e-discovery vendor for purposes of data hosting, processing, and resolution of any technical disputes regarding production format.
Since receiving Meridian's initial production, Northgate and its counsel have undertaken a thorough review of the materials produced. Meridian's production to date consists of approximately 890,000 documents, totaling approximately 1.8 terabytes of data, drawn from the files of eight (8) identified custodians, including Victor Sandoval (Meridian's CEO), Bridget Yeung (Meridian's COO), Marcus Henley (Meridian's VP of Field Operations, Northeast Division), and six additional custodians. While Northgate acknowledges the volume of the production, our review has revealed significant gaps and deficiencies across multiple categories of documents that are directly relevant to the claims and defenses in this action. These deficiencies are detailed below.
We write in the spirit of cooperation and with a genuine desire to resolve these issues through the meet-and-confer process contemplated by Commercial Division Rule 14 and the Court's Preliminary Conference Order, without the need for judicial intervention. Nevertheless, Northgate reserves all rights to seek appropriate relief from the Court — including a motion to compel, sanctions, and adverse inference instructions — in the event that these deficiencies are not promptly and fully remedied.
We note that Northgate's own document production, which was made contemporaneously with Meridian's, consists of approximately 1.4 million documents totaling approximately 3.2 terabytes of data, produced from ten (10) custodians — including Renata Voss (NFA Senior VP of Network Deployment), Sean Calloway (NFA Director of Construction Management), Helena Bright (NFA General Counsel's Office), and seven additional custodians. Northgate's production was made in good faith and is substantially complete, reflecting Northgate's commitment to full and fair participation in the discovery process. We expect that Meridian will demonstrate a reciprocal commitment.
The specific categories of deficiency are set forth below.
II. Category 1: Missing Project Files for Phases 2 and 3
A. Phase 2 Construction Documentation (Connecticut, Western Massachusetts, Southern Pennsylvania — Milestones 5–8)
Defendant's Document Request Nos. 3, 7, 12, and 15 sought, individually and collectively, all project files, daily construction logs, inspection reports, progress photographs, as-built drawings, and field engineering records relating to the Phase 2 construction work on the NFA fiber build-out program. Phase 2 encompasses construction activity across Connecticut, western Massachusetts, and southern Pennsylvania, covering approximately 5,600 route miles with an aggregate milestone value of $363 million as set forth in Exhibit B to the Master Construction Agreement ("MCA"). These requests specifically targeted documentation associated with Milestones 5 through 8, which constitute the core of Phase 2 performance.
Northgate's review of Meridian's production reveals that the daily construction logs produced cover only approximately 40% of the Phase 2 construction period, which ran from approximately October 2021 through the date of termination on April 1, 2024. The gaps in the daily log production are not random; rather, they are concentrated in the periods during which the most significant schedule delays accrued. Specifically:
• Milestone 6: Meridian's own progress reports acknowledge that Milestone 6 was completed sixty-eight (68) days behind the contractual schedule. Daily construction logs for much of this period are absent from the production.
• Milestone 7: Milestone 7 was completed ninety-one (91) days late. Again, the daily logs for the periods of greatest schedule slippage are largely missing.
• Milestone 8: At the time of termination, Milestone 8 had accrued one hundred thirty-four (134) days of delay, with the delay capped at 10% of the $91 million milestone value under MCA § 12.3(b). The daily logs for the Milestone 8 period are particularly sparse, with entire weeks and, in some instances, months of daily logs unaccounted for.
These gaps are significant and troubling. The daily construction logs are foundational documents in any construction dispute; they record crew counts, equipment utilization, weather conditions, subcontractor activity, work completed, and observations by field personnel. Their absence from Meridian's production during the very periods when delays were mounting is a material deficiency that impedes Northgate's ability to prepare its defenses.
In addition, no as-built drawings have been produced for any Phase 2 segments located in Connecticut or western Massachusetts. As-built drawings are customarily maintained as part of the project record and are required under MCA § 9.4(c). Their complete absence from the production for two of the three Phase 2 states is inexplicable.
Further, field inspection reports prepared by Meridian's own quality assurance personnel are largely absent from the production. This deficiency is particularly troubling in light of the project's well-documented quality issues. During the course of the NFA fiber build-out program, Northgate issued a total of two hundred eighty-seven (287) non-conformance reports ("NCRs"), of which forty-three (43) were classified as "critical" and two hundred forty-four (244) were classified as "non-critical." The overwhelming majority of these NCRs arose in connection with Phase 2 construction activities. Meridian's internal inspection records — including its own quality audits, corrective action tracking, and responses to NCRs — are essential to understanding Meridian's contemporaneous awareness of, and response to, these quality deficiencies. The absence of these records from the production raises serious questions about the completeness of Meridian's document collection efforts.
Accordingly, Northgate demands that Meridian conduct a supplemental and thorough search of all repositories — including, without limitation, the files of Marcus Henley, VP of Field Operations for the Northeast Division, who was responsible for overseeing Phase 2 field operations — and produce all responsive Phase 2 project files, including daily construction logs, inspection reports, progress photographs, as-built drawings, and field engineering records for the entirety of the Phase 2 construction period.
B. Phase 3 Construction Documentation (Maryland, Virginia, Eastern Pennsylvania — Milestones 9–14)
Defendant's Document Request Nos. 4, 8, 13, and 16 sought equivalent categories of documentation for Phase 3 of the NFA fiber build-out program. Phase 3 encompasses construction work across Maryland, Virginia, and eastern Pennsylvania, covering approximately 9,700 planned route miles with an aggregate milestone value of $629 million under MCA Exhibit B. Milestones 9 through 14 correspond to Phase 3 deliverables.
As is undisputed, Phase 3 construction was in its early stages at the time of termination. Only approximately 340 route miles — representing approximately 3.5% of the planned Phase 3 scope — had been constructed before Northgate terminated the MCA on April 1, 2024. During the Phase 3 period, Meridian submitted payment applications totaling $48.2 million, of which Northgate approved and paid $31.7 million. The remaining $16.5 million in disputed Phase 3 invoices forms the basis of Meridian's Count II in this action.
Despite the direct relevance of Phase 3 documentation to both Meridian's affirmative claims and Northgate's defenses, Meridian's production includes almost no Phase 3 project files whatsoever. Specifically, the production contains:
• No daily construction logs for Phase 3 activities;
• No crew deployment records or staffing plans for Phase 3 work;
• No equipment utilization reports for Phase 3;
• No mobilization plans for any of the three Phase 3 states — Maryland, Virginia, or eastern Pennsylvania; and
• No subcontractor scheduling or coordination documents specific to Phase 3.
These documents are directly and indisputably relevant to multiple issues in this litigation. They bear on Northgate's position that Meridian made inadequate progress in Phase 3, which was a central basis for the issuance of Cure Notice No. 1 (sent by Renata Voss on January 18, 2024), which specifically cited inadequate Phase 3 mobilization and the failure to deploy sufficient crews and resources to meet the Phase 3 milestone schedule. They are equally relevant to Northgate's defense against Meridian's Count II, as the disputed $16.5 million in Phase 3 invoices cannot be properly evaluated without the underlying project records documenting the work for which Meridian claims payment. And they are relevant to Northgate's affirmative defense that it terminated the MCA for cause based on Meridian's material breach of its Phase 3 obligations.
Northgate demands that Meridian conduct a complete search for all Phase 3 project files and produce all responsive documents without further delay.
III. Category 2: Incomplete Subcontractor Communications and Agreements
Defendant's Document Request Nos. 20, 21, 22, and 23 collectively sought all subcontractor agreements, purchase orders, correspondence, change orders, and payment records relating to Meridian's engagement of subcontractors on the NFA fiber build-out program. Meridian self-performed a portion of the construction work but engaged numerous subcontractors across all three phases, and the subcontractor relationships are directly relevant to issues of schedule performance, quality control, resource allocation, and cost.
As part of its own discovery efforts, Northgate served third-party subpoenas pursuant to CPLR 3120 on seven (7) of Meridian's known subcontractors. Northgate has received productions from several of these subcontractors, and those productions contain communications with Meridian personnel that do not appear anywhere in Meridian's own production. This discrepancy strongly suggests that Meridian's document collection and search efforts have failed to capture a material volume of subcontractor-related communications.
The specific deficiencies identified to date include the following:
1. Missing Subcontract Agreements. No subcontract agreements have been produced for at least three (3) of the subcontractors known to have performed work on Phases 2 and 3 of the NFA project. These are formal written contracts that should be readily identifiable and locatable in Meridian's files, and their absence from the production is difficult to explain.
2. Missing Field-Level Correspondence. Correspondence between Meridian field supervisors — including, in particular, Marcus Henley — and subcontractor project managers regarding crew shortages, schedule acceleration measures, and quality remediation efforts appears to be almost entirely absent from Meridian's production. Northgate is aware, from its own contemporaneous records and from the productions received from third-party subcontractors, that such correspondence exists and was exchanged on a regular basis throughout the project. The failure to produce these communications deprives Northgate of critical evidence regarding the operational realities of the project and the reasons for schedule delays and quality failures.
3. Missing Payment Records. No subcontractor payment records have been produced. Records of payments made to subcontractors — including payment applications, invoices, lien waivers, and evidence of payment — are relevant to Meridian's financial condition during the project, its ability to retain and adequately staff subcontractor resources, and the question of whether Meridian was allocating sufficient financial resources to the NFA project as compared to its other contractual commitments. These documents bear directly on Northgate's defenses.
Northgate requests that Meridian identify all subcontractors engaged to perform work on the NFA fiber build-out program across all phases and produce all responsive documents relating to those subcontractor relationships. To the extent that responsive subcontractor communications reside in the files of custodians not yet included in Meridian's search, Northgate requests that Meridian expand its custodian list to include those individuals.
IV. Category 3: Ridgepoint Capital Group LP Communications
A. Scope of Request
Defendant's Document Request Nos. 30, 31, and 32 sought all communications between Meridian and its majority equity owner, Ridgepoint Capital Group LP ("Ridgepoint"), concerning the NFA contract, the fiber build-out program, Meridian's performance under the MCA, the termination, and the decision to initiate this litigation. Ridgepoint's principal office is located at 2100 Ross Avenue, Suite 3300, Dallas, Texas 75201, and its Managing Partner is Graham Latimer.
The relevance of Ridgepoint communications to this litigation is substantial and multifaceted. Ridgepoint acquired a 55% equity stake in Meridian in 2018 for approximately $285 million. It is publicly known — and has been confirmed through Meridian's own discovery responses — that Ridgepoint's investment thesis was premised in significant part on the Northgate contract, which was Meridian's largest single construction program and a key driver of Meridian's revenue and growth profile. Ridgepoint has board representation and has been actively involved in Meridian's strategic and operational decision-making. Furthermore, Ridgepoint has funded Meridian's litigation costs in connection with this action, which are estimated at approximately $12 million based on Meridian's discovery responses to date.
Communications between Meridian and Ridgepoint are directly relevant to multiple issues in this case, including:
(a) Meridian's financial capacity to perform the MCA, including whether capital constraints imposed or influenced by Ridgepoint affected Meridian's ability to staff and resource the project adequately;
(b) Ridgepoint's influence on Meridian's operational decisions, including decisions regarding staffing levels, crew deployment, equipment procurement, and resource allocation between the NFA project and Meridian's other construction programs;
(c) The decision to pursue approximately $200 million in claims against NFA, including the question of whether that decision was driven by Ridgepoint's financial interests in maximizing the return on its equity investment;
(d) Meridian's damages theories, including the alleged lost-profits claim (Count I) and, in particular, Count IV, in which Meridian seeks $34,133,333 in damages for alleged loss of bonding capacity and reputational harm — claims that necessarily implicate Ridgepoint's assessment of Meridian's financial condition and market position; and
(e) Ridgepoint's contemporaneous assessment of Meridian's performance under the MCA, which may include internal analyses, board presentations, and investor reports that bear on the objective reasonableness of Meridian's conduct.
B. Meridian's Withholding on Privilege Grounds
Meridian has withheld one hundred eighty-seven (187) documents from production under a claimed "common interest privilege" between Meridian and Ridgepoint. Northgate's position is that the common interest privilege — to the extent it is even applicable in New York state court — does not protect communications between a company and its private equity sponsor regarding litigation funding and operational matters where the purportedly shared interest is financial and strategic in nature, rather than legal. To invoke the common interest doctrine, the parties must share a common legal interest, and their communications must be made in furtherance of a joint legal strategy. A shared financial interest in the outcome of litigation does not satisfy this standard. Moreover, no joint defense agreement between Meridian and Ridgepoint has been produced or identified in any of Meridian's discovery responses, privilege log entries, or correspondence.
Northgate reserves its rights to formally challenge the privilege designations through appropriate motion practice. This letter, however, separately addresses the failure to produce non-privileged Ridgepoint communications, which is itself a significant deficiency independent of the privilege dispute.
With respect to the privilege log, Meridian's log, to the extent one has been provided, does not appear to cover all withheld or non-produced Ridgepoint-related documents. The log entries that have been provided are, in many instances, insufficiently detailed to permit a meaningful assessment of the privilege claim, lacking adequate descriptions of the subject matter, the participants, and the basis for the asserted privilege.
Separate and apart from the 187 documents reflected on the privilege log, Meridian appears to have produced virtually no Ridgepoint communications at all. This includes routine, non-privileged business communications regarding project status, board reports, quarterly business reviews, investor updates, management presentations, and operational summaries that would have been exchanged in the ordinary course between a portfolio company and its majority equity owner. There is no plausible basis for asserting privilege over such business communications, and their absence from the production represents a significant gap.
Accordingly, Northgate demands that Meridian conduct a comprehensive search for all Ridgepoint-related communications, including communications to and from Graham Latimer and all other Ridgepoint personnel, across all custodians and data sources, and produce all non-privileged responsive documents. To the extent Meridian continues to assert common interest privilege or any other privilege over specific documents, Northgate demands a complete, detailed, and CPLR 3122-compliant privilege log entry for each withheld document, including the date, author, all recipients, subject matter description, and the specific privilege or protection asserted.
V. Category 4: Meridian's Internal Financial Records Related to the NFA Contract
Defendant's Document Request Nos. 35, 36, 37, and 38 sought Meridian's internal financial records relating to the NFA fiber build-out program, including project-level profit-and-loss statements, cost reports, budget-to-actual analyses, cash flow projections, revenue recognition schedules, job cost accounting records, and all other financial analyses performed by Meridian in connection with the NFA contract.
The relevance of these financial records cannot be overstated. Meridian's FY2023 revenue was $620 million, with EBITDA of $58.9 million, representing a 9.5% margin. The NFA contract — with a total value of approximately $1.2 billion — was Meridian's largest single program and a substantial driver of its financial performance. Meridian's internal financial records for this project are essential to the evaluation of multiple claims and defenses in this action:
(a) Meridian's Lost-Profits Claim (Count I). Meridian's Count I seeks, among other relief, $41.976 million in alleged lost profits. Evaluation of this claim requires access to Meridian's project-level financial data, including its actual costs incurred, projected costs to complete, and margin analyses. Without this data, Northgate cannot meaningfully assess the validity or quantum of Meridian's lost-profits theory.
(b) Resource Allocation. Northgate's defense includes the contention that Meridian failed to allocate adequate resources — including labor, equipment, and management attention — to the NFA project, diverting resources instead to other projects in its portfolio. Meridian's internal financial records, including budget-to-actual analyses and cost allocation reports, will shed light on whether Meridian was, in fact, underinvesting in the NFA project relative to its contractual obligations and its own internal budgets.
(c) Financial Capacity to Perform. Northgate has raised as a defense that Meridian lacked the financial capacity to complete the MCA. Project-level financial records, together with corporate-level cash flow data, are directly relevant to this defense.
(d) Failure to Mitigate. Northgate's affirmative defense of failure to mitigate requires examination of Meridian's post-termination financial performance and its efforts (or lack thereof) to replace the NFA contract revenue. Meridian's backlog at the time of termination was approximately $1.4 billion, inclusive of the Northgate contract; post-termination, Meridian's reported backlog was approximately $770 million. This financial context — reflecting a significant loss of contracted revenue but a still-substantial remaining backlog — is directly relevant to mitigation.
Meridian's production to date contains only summary-level financial reports — the type of high-level overviews that might appear in a board presentation — and no project-specific cost data of the kind that Meridian's finance and accounting teams unquestionably maintained in the ordinary course of business. The absence of detailed financial records for a $1.2 billion construction program is not credible.
We also note the relevance of Meridian's relationship with Dralvecen Commercial Finance LLC ("Dralvecen"), which provides Meridian with a $150 million revolving credit facility. Dralvecen has asserted lien interests in Meridian's receivables from the NFA contract, and communications between Meridian and Dralvecen regarding the NFA contract, the termination, and the impact on Meridian's borrowing capacity are responsive to Northgate's document requests and should be produced.
Northgate demands the production of Meridian's complete internal financial records for the NFA project, including all project-level P&L statements, cost reports, budget-to-actual analyses, cash flow projections, revenue recognition schedules, and job cost data, as well as all financial analyses and reports provided to Ridgepoint and all communications with Dralvecen regarding the NFA contract.
VI. Category 5: Documents Related to Meridian's Corrective Action Plan and Cure Period
Defendant's Document Request Nos. 40, 41, and 42 sought all documents relating to Meridian's internal response to the two Cure Notices issued by Northgate and to the Corrective Action Plan that Meridian ultimately submitted. Specifically, these requests sought drafts, internal deliberations, resource analyses, schedule analyses, cost estimates, and communications with subcontractors and internal personnel regarding the Corrective Action Plan, as well as all documents reflecting Meridian's assessment of its ability to cure the defaults identified in the Cure Notices.
The relevant timeline is as follows:
• January 18, 2024: Northgate, through Renata Voss (Senior VP of Network Deployment), issued Cure Notice No. 1, citing multiple material breaches of the MCA, including persistent schedule delays in Phase 2, inadequate Phase 3 mobilization, and unresolved quality deficiencies. The Cure Notice provided Meridian with a thirty (30) day cure period under MCA § 22.2.
• February 2, 2024: Victor Sandoval, Meridian's CEO, responded to Cure Notice No. 1 by letter, disputing Northgate's characterization of certain defaults and asserting, for the first time, that NFA had directed fourteen (14) scope changes that were never formalized as Change Orders under MCA § 16.1, contributing to the schedule delays.
• February 19, 2024: Northgate issued Cure Notice No. 2, citing additional defaults and reiterating the unremedied defaults from Cure Notice No. 1. Cure Notice No. 2 specifically referenced twelve (12) additional critical NCRs issued in February 2024 alone.
• March 5, 2024: Meridian submitted its Corrective Action Plan, which proposed an accelerated construction schedule, the deployment of additional crews, a nine (9) month extension of the MCA schedule, and $87 million in additional compensation for alleged Owner-caused delays and scope changes.
• March 12, 2024: Northgate rejected the Corrective Action Plan as inadequate, citing, among other things, the twelve additional critical NCRs issued in February 2024, the Plan's failure to address the root causes of the quality deficiencies, and the unreasonableness of Meridian's demand for a nine-month extension and $87 million in additional compensation.
• April 1, 2024: Northgate terminated the MCA for cause.
Meridian has produced the final version of the Corrective Action Plan and Victor Sandoval's February 2, 2024 response letter, but virtually no documents reflecting the internal process by which these documents were developed. Specifically, the production is devoid of:
• Drafts of the Corrective Action Plan and the Sandoval response letter;
• Internal communications among Meridian executives — including Victor Sandoval, Bridget Yeung (COO), and Marcus Henley (VP of Field Operations) — regarding the substance and strategy of Meridian's response to the Cure Notices;
• Resource analyses, schedule models, or feasibility assessments underlying the Corrective Action Plan's proposal for accelerated performance;
• The cost analyses or other documentation supporting the $87 million additional compensation request;
• Documentation of the fourteen (14) alleged Owner-directed scope changes referenced in the Sandoval letter, including any contemporaneous analyses of their schedule and cost impact; and
• Communications with subcontractors regarding the proposed acceleration plan and subcontractor capacity to support it.
These documents go to the heart of Meridian's defense that the termination was pretextual and that Meridian was genuinely prepared to cure the identified defaults. They are equally relevant to Northgate's position that the Corrective Action Plan was inadequate and that Meridian's failure to cure provided a contractual basis for termination. The absence of any internal deliberation documents surrounding the most consequential events in this dispute constitutes a material gap in Meridian's production.
Northgate demands complete production of all documents responsive to Document Request Nos. 40, 41, and 42.
VII. Category 6: Communications Regarding Alleged Owner-Directed Scope Changes
Defendant's Document Request Nos. 45 and 46 sought all documents relating to Meridian's assertion — first raised in Victor Sandoval's February 2, 2024 response letter to Cure Notice No. 1 and subsequently incorporated into the Corrective Action Plan and the Amended Complaint — that Northgate directed fourteen (14) scope changes during the course of the project that were never formalized as Change Orders under MCA § 16.1.
This assertion is central to Meridian's case. Meridian contends that these alleged scope changes contributed to the schedule delays that Northgate cited as grounds for termination and that Meridian is entitled to additional compensation for the work performed in connection with those changes. MCA § 16.1, however, expressly provides that changes to the scope of work or the construction schedule must be memorialized in written Change Orders signed by authorized representatives of both parties. Under MCA § 16.1(c), Meridian was obligated to submit a written Change Order Request within ten (10) business days of receiving any direction that it contended constituted a change in scope.
Meridian's production contains:
• No written Change Order Requests submitted by Meridian to NFA at any time during the project;
• No field directives, memoranda, emails, or other communications from NFA personnel that Meridian characterizes as constituting scope changes;
• No contemporaneous documentation of any of the fourteen (14) alleged scope changes; and
• No analyses — whether schedule impact analyses, cost impact analyses, or otherwise — performed by Meridian in connection with any alleged scope change.
The complete absence of documentary support for a claim that is central to Meridian's case and that Meridian affirmatively raised in response to the Cure Notice is a significant deficiency. If such documents exist, they must be produced. If they do not exist, Meridian should so state.
Northgate requests that Meridian identify each of the fourteen (14) alleged scope changes by date, description, geographic location, impacted milestone(s), and alleged schedule and cost impact, and produce all supporting documentation for each.
VIII. Category 7: Meridian's Communications with Ironclad Surety Group Inc.
Defendant's Document Request No. 50 sought all communications between Meridian and Ironclad Surety Group Inc. ("Ironclad") relating to Performance Bond No. ISG-2020-NE-04417, a $120 million performance bond issued by Ironclad in connection with the MCA. This request encompasses Meridian's April 15, 2024 demand on the bond, any subsequent correspondence between Meridian and Ironclad regarding the bond claim, and all communications relating to Ironclad's investigation or assessment of the claim.
To date, no responsive documents have been produced. The claims contact at Ironclad is Patricia Dwyer, VP of Claims, located at 300 North Meridian Street, Suite 1800, Indianapolis, Indiana 46204. Meridian's communications with Ironclad are readily identifiable and should be searchable across any reasonable custodian set.
These documents are relevant to the bond claim itself and to Meridian's Count IV, in which Meridian seeks $34,133,333 in damages for alleged loss of bonding capacity and reputational harm. Meridian's communications with its surety — including any representations made to Ironclad regarding the circumstances of the termination, Meridian's performance, and the merits of the bond claim — are directly relevant to these issues and may contain admissions or characterizations inconsistent with Meridian's litigation positions.
Northgate demands the immediate production of all documents responsive to Document Request No. 50.
IX. Search Methodology Concerns
Under the Stipulated E-discovery Protocol, the parties agreed to disclose their respective custodians, date ranges, and search terms used in connection with document collection and production. This disclosure obligation is essential to ensuring the transparency and reliability of the parties' respective production efforts and to enabling meaningful assessment of whether productions are complete and responsive.
Meridian has identified eight (8) custodians from whom documents have been collected and searched. However, Meridian has not disclosed the search terms applied to those custodians' data, nor has Meridian confirmed whether all relevant data sources have been searched. In particular, Northgate has significant concerns regarding whether Meridian's search encompassed:
• Text messages and SMS communications, which are commonly used by field personnel and executives alike and which frequently contain substantive project communications;
• Instant messaging platforms (including, without limitation, Northgate Data Systems, Meridian Solutions, or any other enterprise messaging system used by Meridian);
• Project management software, including whatever systems Meridian used for daily construction log management, NCR tracking, schedule management, and document control; and
• Mobile devices issued to or used by custodians in connection with the NFA project.
Northgate requests that Meridian provide a written certification of its search methodology, including:
(a) Identification of all eight (8) custodians by name and role/title within Meridian;
(b) All search terms and Boolean queries applied to each custodian's data;
(c) All data sources searched for each custodian, including email systems, shared network drives, cloud storage, project management platforms, mobile devices, and messaging applications;
(d) The date range applied to the search; and
(e) Any exclusions, limitations, or de-duplication protocols applied during the collection, processing, or review stages.
In addition, Northgate requests that Meridian confirm whether Randall Obrecht, Meridian's Chief Financial Officer, is among the eight identified custodians. Given the direct relevance of Meridian's financial records to multiple claims and defenses in this action — as detailed in Category 4 above — it would be unreasonable for Mr. Obrecht's files not to have been searched. If Mr. Obrecht is not currently among the identified custodians, Northgate demands that his files be searched and all responsive documents produced.
X. Meet and Confer Request
Pursuant to Commercial Division Rule 14 and the Court's October 1, 2024 Preliminary Conference Order, which requires the parties to make good-faith efforts to resolve discovery disputes before seeking judicial intervention, Northgate proposes a meet and confer to discuss and, if possible, resolve each of the deficiencies identified in this letter.
We propose that the meet and confer take place during the week of November 11, 2024, at a mutually convenient time, at the offices of Calderwood & Harkness LLP, 425 Park Avenue, 33rd Floor, New York, New York, or, if more convenient, by videoconference. We are flexible regarding scheduling and are prepared to accommodate your availability.
In advance of the meet and confer, Northgate requests that Meridian provide a written response to each category of deficiency identified in this letter no later than November 8, 2024. A written response will allow us to focus the meet-and-confer discussion on areas of genuine disagreement and will facilitate the efficient resolution of these issues.
It is Northgate's sincere hope that these matters can be resolved cooperatively, without the need for motion practice. Northgate is committed to a productive and professional discovery process. However, Northgate expressly reserves all rights to seek appropriate relief from the Court in the event that the deficiencies identified herein are not timely and adequately addressed, including, without limitation, the right to file a motion to compel production pursuant to CPLR 3124, to seek sanctions pursuant to CPLR 3126 and 22 NYCRR § 130-1.1, and to request adverse inference instructions at trial with respect to documents that have been withheld, destroyed, or not produced.
XI. Reservation of Rights
This letter does not constitute an exhaustive identification of all deficiencies in Meridian's document production. Northgate's review of the production is ongoing, and additional deficiencies may be identified as the review continues. Northgate reserves the right to raise additional issues in subsequent correspondence or in connection with any motion practice.
Northgate further reserves all rights, claims, and remedies available to it under the New York Civil Practice Law and Rules, the Commercial Division Rules (22 NYCRR § 202.70), the Court's Preliminary Conference Order and any subsequent discovery orders, and the Stipulated E-discovery Protocol, including, without limitation, the right to seek court intervention, sanctions, cost-shifting, and any other appropriate relief.
Nothing in this letter shall be construed as a waiver of any privilege, protection, objection, or defense asserted or available to Northgate in this action or in any other proceeding.
XII. Closing
We appreciate your prompt attention to these matters and the seriousness with which we trust your client will address the deficiencies outlined above. Discovery in this action is subject to a court-ordered schedule, and timely resolution of these issues is essential to ensuring that both parties can prepare their cases for the upcoming depositions and, ultimately, for trial.
Please do not hesitate to contact me directly at the number below, or Jeffrey Park at (212) 554-7823, to schedule the meet and confer at a mutually convenient time. We look forward to working with you to resolve these issues promptly.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Linda Osei Partner
425 Park Avenue, 33rd Floor New York, New York 10022 Direct: (212) 554-7819
Email: losei@calderwoodharkness.com
cc: Jeffrey Park, Esq., Calderwood & Harkness LLP cc: Miriam Vasquez, Esq., Hargrove, Deluca & Stein LLP cc: Dominic Hale, Esq., General Counsel, Northgate Telecommunications PLC (via separate cover, privileged)

CALDERWOOD & HARKNESS LLP Attorneys at Law

CALDERWOOD & HARKNESS LLP

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