PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT PREPARED IN ANTICIPATION OF LITIGATION
This memorandum is protected by the attorney-client privilege and the work product doctrine. It has been prepared in anticipation of litigation and reflects the mental impressions, conclusions, opinions, and legal theories of attorneys at Calderwood & Harkness LLP. This document should not be disclosed to any third party without the express written consent of Calderwood & Harkness LLP and the client. Any inadvertent disclosure does not constitute a waiver of any applicable privilege or protection.
CALDERWOOD & HARKNESS LLP 425 Park Avenue, 33rd Floor New York, NY 10022
MEMORANDUM
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I. Executive Summary and Purpose of This Outline
This memorandum sets forth the preparation outline for the deposition of Helena Bright, Chief Financial Officer of Northgate Telecommunications PLC ("NTP" or "Northgate"), the UK-listed parent company (LSE: NTP; Nasdaq ADR: NTPLF) of Northgate Fiber Americas Inc. ("NFA"), the named defendant and contracting party under the Master Construction Agreement dated March 15, 2020 (the "MCA") with Meridian Infrastructure Partners LLC ("Meridian"). Ms. Bright's deposition has been scheduled for February 18, 2025, and will be taken by commission in London, England, because Ms. Bright is based at Northgate's corporate headquarters at 14 Cavendish Square, London W1G 0BX, United Kingdom, and resides outside the subpoena power of the Supreme Court of the State of New York, New York County.
Ms. Bright's anticipated testimony is expected to cover a broad range of financial and strategic topics, including but not limited to the following: Northgate's financial decision-making processes at the parent company level; the NFA US fiber segment's capital expenditure budget and capital allocation approvals for the relevant fiscal years; the financial impact of the termination of the MCA; the Crestline Construction Group Inc. ("Crestline") replacement contract executed on June 10, 2024; board-level deliberations regarding the US fiber build-out program; and any financial analyses that may have been prepared in connection with, or that may bear upon, the decision to terminate the MCA for cause on April 1, 2024.
The primary defense objectives for this deposition are as follows:
(a) Demonstrate that the termination was driven by Meridian's material breach. Ms. Bright's testimony should consistently reinforce the narrative that the termination decision was an operational and construction management decision, rooted in Meridian's persistent schedule delays, pervasive quality failures (as documented by 287 non-conformance reports, including 43 critical NCRs), and Meridian's failure to cure within the contractually mandated cure period. The termination was not driven by pretextual financial motivations.
(b) Prevent inadvertent waiver of attorney-client privilege or work product protection. Given the sensitivity of the ongoing privilege dispute — 214 documents on Northgate's privilege log are currently the subject of Meridian's Motion to Compel, which was argued before Justice Ricci on January 27, 2025 and remains pending — it is imperative that Ms. Bright not inadvertently disclose the substance of communications with Dominic Hale (General Counsel of NTP), Calderwood & Harkness LLP, or Pemberton Fox LLP, or the contents of documents prepared at counsel's direction in anticipation of litigation. Any such disclosure could result in a finding of waiver that would be catastrophic to the defense.
(c) Prevent Meridian's counsel from eliciting testimony supporting the "pretext theory." Meridian's core litigation theory — which we refer to internally as the "pretext theory" — is that Northgate terminated the MCA not because of Meridian's material breaches, but rather because Northgate identified an opportunity to reduce construction costs by re-procuring the fiber build-out at lower market rates, or by bringing construction capabilities partially or entirely in-house. This theory makes Ms. Bright a key target for Meridian's examining counsel, Thomas Deluca and Miriam Vasquez of Hargrove, Deluca & Stein LLP ("HDS"). HDS will seek to elicit testimony suggesting that financial considerations — rather than Meridian's well-documented performance failures — drove the termination decision. Ms. Bright must be thoroughly prepared to resist this line of questioning while remaining credible and composed.
This outline is organized to provide a comprehensive roadmap for the preparation and defense of Ms. Bright's deposition. It addresses her professional background and relationship to the dispute, anticipated topic areas and the opposing counsel's likely examination strategy, key documents for witness review, the privilege instruction protocol, key defensive themes and talking points, cross-references to prior deposition testimony, logistical considerations for the London commission, the proposed preparation session schedule, potential objections and protective measures, and post-deposition action items.
II. Witness Background and Role
A. Professional Background
The witness's full name is Helena Bright. She holds the title of Chief Financial Officer of Northgate Telecommunications PLC, the ultimate parent company of the Northgate group of companies. Ms. Bright reports directly to Sir Malcolm Ashford, Chief Executive Officer of NTP, and has a dotted-line reporting relationship to the Board of Directors of NTP, which is chaired by Dame Catherine Elsworth. Ms. Bright regularly presents financial results, budgets, forecasts, and capital allocation proposals to the Board and its relevant committees, including the Audit Committee and the Finance Committee.
Ms. Bright's responsibilities encompass group-level financial management across the Northgate enterprise, including but not limited to: treasury and cash management; investor relations and capital markets communications; financial planning and analysis ("FP&A"); management and statutory financial reporting; tax strategy; internal audit oversight; and oversight of the financial reporting of NTP's subsidiaries, including NFA. In this latter capacity, Ms. Bright has supervisory authority over NFA's finance function, though day-to-day financial management of NFA is handled by NFA's own finance team in the United States. Ms. Bright reviews and approves NFA's quarterly and annual financial results before they are consolidated into NTP's group accounts.
During the preparation sessions, we should confirm the precise dates of Ms. Bright's appointment as CFO of NTP and any prior roles she held at Northgate or at other organizations. This biographical information will likely be the subject of introductory questioning by HDS at the beginning of the deposition, and Ms. Bright should be prepared to answer these background questions concisely and without unnecessary elaboration.
B. Relationship to the Dispute
It is important to establish at the outset that Ms. Bright did not negotiate or execute the MCA. The MCA was entered into on March 15, 2020, between NFA, as "Owner," and Meridian, as "Contractor." Ms. Bright was not a signatory to the MCA, nor was she directly involved in the procurement process that led to the selection of Meridian as the contractor for the US fiber build-out program. Her relationship to the dispute is indirect, arising from her role as CFO of the parent company with financial oversight responsibilities over NFA's capital expenditure programs and financial performance.
Specifically, Ms. Bright's involvement in the matters at issue in this litigation relates to the following areas:
(i) Capital expenditure budget approval. Ms. Bright was involved in the review and approval of NFA's capital expenditure budget for the US fiber segment, which was set at $340 million for FY2024. This budget encompasses the planned spending under the MCA as well as other capital investments related to the US fiber network. Ms. Bright's role was to review the proposed capex budget in the context of the NTP group's overall capital allocation framework and to present the budget to the NTP Board for final approval.
(ii) Financial performance review. Ms. Bright reviewed the financial performance of the NFA US fiber segment on a regular basis. For reference, NFA's FY2023 revenue was approximately $1.1 billion, with EBITDA of approximately $286 million, representing an EBITDA margin of approximately 26%. These figures were reported within NTP's consolidated financial statements and were subject to Ms. Bright's oversight in her capacity as group CFO.
(iii) Participation in discussions regarding the fiber build-out and termination. Ms. Bright participated in board and management committee discussions regarding the status of the US fiber build-out program, including discussions about the escalating performance failures by Meridian and the eventual decision to terminate the MCA for cause. However, as discussed in greater detail below, her role in these discussions was focused on the financial implications of the termination rather than the underlying operational and construction management decision.
(iv) Financial reporting implications of the termination and replacement contract. Following the termination of the MCA on April 1, 2024, Ms. Bright was responsible for overseeing the financial reporting treatment of the termination, the assessment of excess completion costs, and the accounting for the Crestline replacement contract. The Crestline contract was executed on June 10, 2024, for a contract price of $712 million over a 30-month term. Ms. Bright reviewed the financial terms of the Crestline contract in connection with its impact on NFA's and NTP's financial statements.
Critically, Ms. Bright was not a signatory to any of the Cure Notices or the Notice of Termination for Cause. The Cure Notices and the Notice of Termination were sent by Renata Voss, Vice President of US Network Infrastructure at NFA, who was the NFA executive with direct operational responsibility for the fiber build-out program and the MCA. This distinction is important because it underscores that the termination was an operational decision driven by the NFA construction management team, not a financial decision driven by the CFO or the parent company's finance function.
For context, the key fact witnesses who have already been deposed regarding the operational aspects of the dispute are:
• Renata Voss (VP, US Network Infrastructure, NFA) — Deposed November 12–13, 2024
• Sean Calloway (Director of Construction Management, NFA) — Deposed November 19, 2024
Their testimony provides the operational foundation for the defense and should be cross-referenced to ensure consistency with Ms. Bright's testimony on overlapping topics.
C. Prior Statements and Document Review
Ms. Bright has not previously been deposed in this matter. This will be her first deposition, and she has no prior sworn testimony in connection with the Meridian v. Northgate Fiber Americas litigation. She has not provided a declaration or affidavit in connection with any motion proceedings to date.
Ms. Bright is one of the ten custodians from whom documents were collected by Northgate during the e-discovery process. Her custodial files are among the approximately 1.4 million documents (3.2 terabytes) that Northgate produced to Meridian in rolling productions between September 2024 and January 2025. Her custodial collection includes emails, memoranda, presentations, spreadsheets, and other business records reflecting her communications regarding NFA's financial performance, the fiber build-out program, the termination, and related matters.
Of particular sensitivity, certain documents from Ms. Bright's custodial files are among the 214 documents withheld by Northgate on attorney-client privilege and/or work product grounds. These 214 documents are currently the subject of Meridian's Motion to Compel, which was filed on November 22, 2024. Northgate's opposition was filed on December 2, 2024. Oral argument on the motion was held on January 27, 2025, before Justice Angela Ricci of the Commercial Division. As of the date of this outline, Justice Ricci has not yet issued a ruling. The outcome of this motion could significantly affect the scope of permissible questioning at Ms. Bright's deposition, and defending counsel should be prepared to adjust the privilege instruction protocol depending on whether a ruling issues before February 18, 2025.
Preparation sessions should be scheduled as follows: at least two substantive preparation sessions prior to February 18, 2025 — one focused on reviewing key documents and walking through anticipated topic areas, and one focused on a mock cross-examination exercise — with a brief day-before final review session. The proposed schedule for these sessions is set forth in Section IX below.
III. Anticipated Topic Areas and Examination Strategy by Opposing Counsel
A. Overview of HDS's Likely Approach
Based on the pattern of questioning in prior depositions and the issues raised in Meridian's pleadings and discovery requests, we anticipate that Thomas Deluca and Miriam Vasquez of Hargrove, Deluca & Stein LLP will pursue the following overarching strategy in their examination of Ms. Bright.
HDS's primary objective will be to advance Meridian's "pretext theory" — the central contention in Meridian's complaint and the core narrative that HDS has developed throughout discovery. This theory posits that Northgate's termination of the MCA for cause on April 1, 2024, was not genuinely motivated by Meridian's performance failures, but was instead a pretextual exercise of the termination-for-cause provision designed to enable Northgate to achieve one or more financial objectives. Specifically, HDS will attempt to elicit testimony from Ms. Bright supporting the following propositions:
(i) Northgate identified an opportunity to reduce the cost of the US fiber build-out by re-procuring the construction work from a different contractor at lower market rates. HDS's theory is that fiber construction market rates had declined since the MCA was executed in March 2020, and that Northgate's management saw an opportunity to exploit this market shift by terminating Meridian and engaging a replacement contractor on more favorable terms.
(ii) Northgate's board or management team reviewed and circulated presentations or financial analyses that evaluated the economic benefits of bringing the construction work in-house, either partially or entirely, as an alternative to continuing with Meridian or engaging another external contractor.
(iii) Financial pressure on Northgate — whether from the NFA capital expenditure budget, consolidated EBITDA targets communicated to investors, or other internal financial constraints — drove the timing of the termination. HDS will suggest that the termination was timed to align with financial reporting objectives rather than with the culmination of the contractual cure process.
(iv) Northgate negotiated or had substantive discussions with Crestline Construction Group Inc. regarding a replacement contract before or contemporaneously with the termination of the MCA on April 1, 2024. If HDS can establish that Crestline discussions predated the termination, it would tend to support the inference that the termination was premeditated and pretextual.
In pursuit of these objectives, HDS will almost certainly attempt to probe the substance of board presentations, internal financial models, and management committee discussions. Defending counsel must be particularly vigilant in this area, as many of the documents bearing on these topics are among the 214 documents on Northgate's privilege log that are the subject of the pending Motion to Compel. Privilege objections and instructions will be critical throughout the deposition, and defending counsel should err on the side of caution in instructing the witness not to answer questions that call for disclosure of privileged communications or work product.
Deluca is a skilled examiner. He typically begins with a conversational, non-confrontational tone designed to build rapport and encourage the witness to relax. He will use open-ended questions to establish baseline facts before gradually narrowing the questioning to trap the witness into admissions. He is particularly adept at using a witness's prior documents — especially emails and presentations — to confront the witness with apparent inconsistencies. Vasquez, if she examines, tends to be more aggressive and may focus on the financial and damages-related topics. Both are experienced in construction litigation and will be familiar with the technical aspects of the MCA and the financial reporting frameworks.
B. Topic Area 1: Northgate's Consolidated Financial Position
HDS will likely begin the substantive examination by establishing the overall financial strength and resources of the Northgate group. The relevant figures, which are drawn from publicly available financial reporting, are as follows:
• NTP FY2023 consolidated revenue: £3.8 billion (approximately $4.8 billion at the average FY2023 exchange rate of approximately $1.263 per pound sterling)
• NTP FY2023 consolidated EBITDA: £912 million (approximately $1.152 billion; representing an EBITDA margin of approximately 24%)
The strategic purpose of this line of questioning is to establish Northgate's financial capacity. HDS will attempt to use these figures to argue that Northgate had ample financial resources to absorb the impact of Meridian's schedule delays and quality failures without resorting to termination. The implicit argument is that if Northgate could afford to absorb the losses, then the decision to terminate must have been motivated by something other than Meridian's performance — i.e., the desire to re-procure at lower prices or bring construction in-house.
Defense response: The fact that Northgate had the financial capacity to absorb further losses from Meridian's breaches does not excuse those breaches and does not transform a justified termination for cause into a pretextual one. The MCA gives NFA the contractual right to terminate for cause when the contractor commits a material breach and fails to cure within the specified period. That right is not conditioned on the Owner's inability to absorb losses. Ms. Bright should be prepared to make this point clearly if the opportunity arises, but should not argue with examining counsel.
Preparation note: Ms. Bright should be comfortable discussing high-level public financial figures — revenue, EBITDA, and margin data that appear in NTP's published annual report and investor presentations. However, she should not volunteer non-public financial projections, internal budget details, or segment-level financial information beyond what has been specifically produced in discovery. If asked about internal forecasts or projections that have not been produced, she should state that she is not in a position to disclose non-public financial information, and defending counsel should object and invoke the Confidentiality Stipulation as appropriate.
C. Topic Area 2: NFA's US Fiber Segment Financials
Following the establishment of Northgate's consolidated financial position, HDS will likely narrow the focus to NFA and the US fiber segment specifically. The key financial data points are:
• NFA FY2023 revenue: $1.1 billion
• NFA FY2023 EBITDA: $286 million (EBITDA margin of approximately 26%)
• NFA FY2024 capital expenditure budget: $340 million (as approved by the NTP Board)
HDS will likely pursue several lines of inquiry within this topic area. First, they will seek to establish the relationship between NFA's capital expenditure budget and the spending contemplated under the MCA. The MCA had a total contract price of approximately $1.2 billion across three phases, and the annual capital deployment under the MCA was a significant component of NFA's overall capex budget. HDS will attempt to argue that Meridian's delays created "capex savings" — i.e., that because Meridian was falling behind schedule and deploying fewer resources, NFA's actual capital expenditures were running below budget, which benefited NFA's financial results and, by extension, Northgate's consolidated financials. This is a potentially dangerous line of questioning because it could be used to suggest that the delays were not actually harmful to Northgate from a financial perspective.
Preparation note: Ms. Bright should testify truthfully that Meridian's schedule delays disrupted NFA's capital deployment plans rather than creating "savings." The delays deferred the completion of fiber routes that were expected to generate subscriber revenue upon activation. Each delayed milestone meant deferred revenue from customer activations that depended on the completed fiber routes. In other words, the capex "savings" from reduced spending were more than offset by the deferred revenue and the extended timeline for the overall fiber build-out program. Ms. Bright should frame the delays as harmful to NFA's business, which is both accurate and consistent with the defense narrative.
Second, HDS may probe the FY2024 capex budget in an effort to understand whether the termination decision was related to any desire to reallocate capital away from the fiber build-out or to reduce NFA's capital intensity. Ms. Bright should be prepared to testify that the $340 million FY2024 capex budget reflected Northgate's continued commitment to the US fiber program and that the budget was set on the assumption that the construction would proceed — whether under the MCA with Meridian or, if necessary, with a replacement contractor following a justified termination.
D. Topic Area 3: Financial Aspects of the Termination Decision
This topic area goes to the heart of the pretext theory and will require the most careful preparation.
The MCA was terminated on April 1, 2024, via a Notice of Termination for Cause issued under MCA § 14.1. The termination followed an extensive cure notice process that included two separate Cure Notices and a 30-day cure period during which Meridian submitted a Corrective Action Plan that was ultimately rejected by NFA as inadequate.
HDS will probe what financial analyses, if any, Ms. Bright reviewed or prepared in connection with the termination decision. The examining counsel's objective is to elicit testimony suggesting that financial considerations — such as cost reduction opportunities, market pricing trends, or in-house construction alternatives — played a motivating role in the decision to terminate. If HDS can establish that Ms. Bright or the NTP Board reviewed financial models comparing the cost of continuing with Meridian versus terminating and re-procuring, this would tend to support the pretext theory.
Key distinction for the witness: The termination was fundamentally a construction management and operational decision driven by Meridian's persistent and worsening schedule delays and quality failures. The milestone delays alone tell a compelling story of deteriorating performance:
• Phase 1, Milestone 3: 47 days late
• Phase 2, Milestone 5: 22 days late
• Phase 2, Milestone 6: 68 days late
• Phase 2, Milestone 7: 91 days late
• Phase 2, Milestone 8: 134+ days late at the time of termination (and still not completed)
In addition to the schedule delays, Northgate issued 287 non-conformance reports ("NCRs") over the life of the project, of which 43 were classified as critical NCRs — meaning they reflected deficiencies that posed a risk to the structural integrity, functionality, or regulatory compliance of the fiber network. The critical NCRs encompassed splice loss values exceeding specification, improper conduit depth (failing to meet minimum burial requirements), and unauthorized route deviations from the approved design. In February 2024 alone — during the cure period — 12 additional critical NCRs were issued, demonstrating that Meridian's performance was continuing to deteriorate even after receiving notice of its breaches.
Ms. Bright's role in the termination process was limited to assessing the financial implications of the termination — including costs, legal exposure, accounting treatment, and the impact on NFA's and NTP's financial statements — after the operational decision was made by the NFA management team. The operational decision was driven by Renata Voss (VP, US Network Infrastructure) and Sean Calloway (Director of Construction Management), with legal advice from Dominic Hale (General Counsel of NTP) and Calderwood & Harkness LLP. Ms. Bright was consulted on the financial consequences but did not direct, initiate, or unilaterally approve the termination.
Privilege instruction point: If HDS asks Ms. Bright about communications with Dominic Hale or Calderwood & Harkness LLP regarding the termination, defending counsel should instruct the witness not to answer on attorney-client privilege grounds. If asked what advice was given by counsel, the same instruction applies. Ms. Bright may acknowledge that she communicated with counsel in connection with the termination, but she must not disclose the substance of those communications.
E. Topic Area 4: Crestline Construction Group Inc. Replacement Contract
The Crestline replacement contract is a critical element of the case and will be a major focus of HDS's examination. The key facts are as follows:
• Execution date: June 10, 2024 — approximately ten weeks after the April 1, 2024 termination of the MCA
• Contractor: Crestline Construction Group Inc., a Virginia corporation (CEO: Frank DiBello; principal office: 8200 Greensboro Drive, Suite 900, McLean, VA 22102)
• Contract price: $712 million for the remaining scope of work (completion of Phase 2 Milestone 8 and all Phase 3 work)
• Contract term: 30 months from notice to proceed (estimated completion December 2026)
• Excess completion costs: $712 million (Crestline contract price) minus $630.3 million (remaining unperformed value under the MCA) = $81.7 million, which forms the basis of Counterclaim II (excess completion costs)
HDS will attempt to establish that Northgate was in contact with Crestline, or was actively soliciting proposals from replacement contractors, before the termination of the MCA on April 1, 2024. If HDS can prove that substantive negotiations with Crestline preceded the termination, it would lend credence to the pretext theory — the argument being that Northgate had already identified its preferred replacement and was simply looking for a pretext to terminate Meridian.
Preparation note: Ms. Bright should be prepared to testify about the timeline of her involvement in the financial review of Crestline's proposals. Her testimony should be limited to what she personally knows about the sequence of events. If the solicitation of replacement contractors began only after the termination or during the late stages of the cure period (i.e., after Meridian had demonstrably failed to cure its breaches), this supports Northgate's position that it exercised its contractual right to engage replacement contractors pursuant to MCA § 14.5, which specifically provides that, upon termination for cause, the Owner may engage substitute contractors to complete the work and charge the excess costs to the terminated contractor.
Ms. Bright should avoid speculation about when other NFA personnel first contacted Crestline or other potential replacement contractors. The timeline of initial contact with Crestline is within the personal knowledge of Renata Voss and Sean Calloway, and their deposition testimony should be cross-referenced to ensure consistency. Voss was deposed on November 12–13, 2024, and her testimony regarding the Crestline engagement timeline should be reviewed during the preparation sessions. If Ms. Bright does not have personal knowledge of when the first contact with Crestline occurred, she should say so directly rather than guessing.
The ten-week gap between termination (April 1) and execution of the Crestline contract (June 10) is a fact that cuts in Northgate's favor, as it suggests that the replacement contract was negotiated and executed in the ordinary course following the termination, rather than having been pre-arranged. Ms. Bright should be comfortable testifying about the financial review process she undertook in connection with the Crestline contract, including her review of Crestline's pricing, the comparison to the remaining MCA value, and the calculation of excess completion costs.
F. Topic Area 5: MCA Payments, Retainage, and Disputed Invoices
HDS will likely question Ms. Bright about the financial aspects of Northgate's performance under the MCA, including payments made to Meridian, the retainage withheld, and the disputed Phase 3 invoices. The key financial data points are:
• Total payments made to Meridian under MCA: $512,700,000
• Phase 1: $199,775,000
• Phase 2: $281,225,000
• Phase 3: $31,700,000
• Retainage held: $56,966,667 (representing 10% of the $569,666,670 in gross certified work)
• Disputed Phase 3 invoices: $16.5 million
• Meridian submitted Phase 3 invoices totaling $48.2 million
• Northgate approved $31.7 million
• Northgate disputed $16.5 million on the grounds that the underlying work was defective and that Meridian had inflated unit counts in its payment applications
• Liquidated damages assessed: $49 million total
• Phase 1: $8.225 million (assessed in connection with the 47-day delay to Milestone 3)
• Phase 2: $40.775 million (assessed in connection with the cumulative delays to Milestones 5 through 8)
• Total LD assessments of $49 million remain below the aggregate LD cap of $60 million (calculated as 5% of the total MCA contract price of $1.2 billion)
HDS may ask Ms. Bright about her role in approving LD deductions, the decision to withhold retainage, or the determination to dispute the Phase 3 invoices. The purpose of this questioning will be twofold: first, to suggest that Northgate was unreasonably withholding payments from Meridian as part of a broader scheme to financially squeeze the contractor; and second, to elicit testimony about the financial decision-making process that might reveal financial motivations for the termination.
Preparation note: The LD assessments and payment application approvals were handled by NFA's construction management team, principally Sean Calloway, with review and approval by Renata Voss. Ms. Bright's involvement was at the financial reporting and consolidation level — she reviewed the financial impact of the LD assessments and the disputed invoices as part of her oversight of NFA's financial results, but she did not make the operational-level decisions about which invoices to approve, which to dispute, or when to assess liquidated damages. She should defer to the operational team's knowledge on specific invoice-level disputes and should not speculate about construction quality issues or unit count discrepancies that are outside her personal expertise.
Ms. Bright should be prepared to testify, if asked, that the retainage was held pursuant to the standard contractual provisions of MCA § 18.1, which provides for 10% retainage on all certified work, and that the retainage practices were consistent with Northgate's contractual rights throughout the project.
G. Topic Area 6: Board Presentations and Internal Financial Models
This is the most sensitive topic area and the one most closely tied to the pending privilege dispute. Defending counsel must exercise the utmost vigilance throughout this portion of the examination.
As noted above, 214 documents on Northgate's privilege log include internal analyses and board presentations regarding the US fiber build-out strategy, the evaluation of in-house versus outsourced construction options, and deliberations related to the termination decision. These documents were withheld from production on the grounds of attorney-client privilege and/or work product protection. Meridian's Motion to Compel (filed November 22, 2024) sought production of these documents, arguing that they reflect business — rather than legal — advice and therefore fall outside the scope of the attorney-client privilege. Northgate's opposition (filed December 2, 2024) argued that the documents were prepared at the direction of counsel for the purpose of providing legal advice regarding the termination and anticipated litigation, and that they reflect counsel's mental impressions and legal strategies. Oral argument was held on January 27, 2025, before Justice Ricci. A ruling remains pending as of the date of this outline.
Regardless of whether the court has ruled on the Motion to Compel by the date of the deposition, HDS will almost certainly attempt to question Ms. Bright about the substance of board presentations and internal financial models. This is a predictable and important front in the privilege battle, and Ms. Bright must be prepared to navigate it carefully.
Privilege instruction points for this topic area:
• If asked to describe the content of any presentation that was prepared at the direction of counsel or that reflects or incorporates legal advice, defending counsel should instruct the witness not to answer on attorney-client privilege grounds.
• If asked whether she "reviewed" or "received" a specific document that is identified on the privilege log, Ms. Bright may acknowledge its existence (since it has already been identified on the log and the log itself has been served on opposing counsel), but she should not describe its contents, the conclusions it reached, or the recommendations it contained.
• If asked about the "business purpose" of a particular analysis — as opposed to its legal purpose — defending counsel must be extremely cautious. HDS may attempt to frame privileged communications as "business advice" or "financial analysis" in order to circumvent the privilege. For example, HDS might ask: "Setting aside any legal advice you received, what was the business rationale for this analysis?" This framing is designed to suggest that the document served a dual business/legal purpose and that the business component is not privileged. Defending counsel should object to such questions and, where appropriate, instruct the witness not to answer.
• If the court has issued a ruling on the Motion to Compel before the deposition date, defending counsel must adjust the privilege instructions accordingly. If the court orders production of some or all of the 214 documents, the scope of permissible questioning will expand correspondingly. Conversely, if the court upholds the privilege, that ruling provides additional authority for the privilege instructions. In either scenario, defending counsel should have the court's ruling immediately available for reference during the deposition.
H. Topic Area 7: In-House Construction Strategy / Market Pricing
Meridian's pretext theory includes the specific allegation that Northgate intended to bring fiber construction capabilities in-house, or at minimum to benefit from a decline in construction market rates since the execution of the MCA in March 2020. HDS may attempt to question Ms. Bright about the following sub-topics:
(i) Whether Ms. Bright reviewed, received, commissioned, or participated in the preparation of any financial analysis comparing the cost of in-house construction versus outsourced construction for the US fiber build-out.
(ii) Whether Northgate obtained or reviewed any market studies, industry reports, or competitive intelligence analyses addressing trends in fiber construction pricing — particularly any indication that per-unit or per-mile construction costs had declined in the period between March 2020 (when the MCA was executed) and April 2024 (when the MCA was terminated).
(iii) NFA's long-term capital strategy for the US fiber segment, including whether Northgate contemplated expanding its own construction workforce or capabilities as part of a broader vertical integration strategy.
Preparation note: Ms. Bright should testify clearly and consistently that the decision to terminate the MCA was based on Meridian's performance failures — the schedule delays, the quality deficiencies, and the failure to cure — and not on market pricing conditions, in-house construction opportunities, or any other financial optimization strategy. She should not speculate about whether Northgate "could have" built fiber more cheaply than Meridian's contract price, and she should not offer opinions about fiber construction market trends unless she has specific, personal knowledge of such trends that is not privileged.
Most importantly, Ms. Bright should be prepared to make the following key point: The Crestline replacement contract has a price of $712 million, which is $81.7 million more than the $630.3 million in remaining unperformed value under the MCA. This means that the replacement construction is more expensive, not less expensive, than what Northgate would have paid Meridian had Meridian completed the work under the MCA. This fact directly contradicts the pretext theory. If Northgate had terminated the MCA in order to save money by re-procuring at lower market rates, one would expect the replacement contract to be cheaper, not $81.7 million more expensive. The $81.7 million in excess completion costs is the basis of Counterclaim II and represents genuine financial harm to Northgate resulting from Meridian's breaches.
This is one of the defense's strongest points, and Ms. Bright should be thoroughly prepared to deliver it clearly and confidently if given the opportunity. However, she should be careful not to volunteer this point unsolicited — it should come in response to a question about cost comparisons or financial motivations.
I. Topic Area 8: Impact of Termination on Northgate's Financial Reporting
HDS may question Ms. Bright about the financial reporting consequences of the MCA termination and the pending litigation. Northgate reports under International Financial Reporting Standards (IFRS) as a UK-listed public limited company. NTP's external auditor is Ashby & Thornton LLP (1 Angel Court, London EC2R 7HJ).
HDS may probe whether Northgate has taken any provisions, reserves, or write-downs in its financial statements related to: (i) the MCA termination itself; (ii) Meridian's $200 million claim against NFA; (iii) the Crestline replacement contract; or (iv) the overall litigation exposure. Under IAS 37 (Provisions, Contingent Liabilities and Contingent Assets), Northgate is required to disclose contingent liabilities in its financial statements where an outflow of economic resources is possible but not probable, and to record a provision where such outflow is probable and can be reliably estimated. HDS may seek to use any such disclosures or provisions as evidence that Northgate itself recognizes the potential merit of Meridian's claims.
Preparation note: Ms. Bright should be prepared to discuss publicly disclosed information relating to contingent liabilities and provisions, to the extent that such information appears in NTP's published annual report and accounts. However, she should not disclose non-public reserve amounts or internal litigation reserve calculations. Internal litigation reserves reflect counsel's assessment of the probability and magnitude of adverse outcomes, and their disclosure is protected by both the attorney-client privilege and the work product doctrine.
Critical instruction point: If HDS asks Ms. Bright about the specific amount of any litigation reserve established in connection with Meridian's claims, defending counsel should instruct the witness not to answer. Disclosure of reserve amounts would reveal the litigation team's assessment of litigation risk and would constitute a waiver of work product protection over the underlying analysis. This position is well supported by New York law and federal common law, and defending counsel should be prepared to articulate the legal basis on the record if challenged.
Ms. Bright may testify generally that Northgate has complied with its financial reporting obligations under IFRS and that its disclosures have been reviewed by its external auditor, but she should not elaborate beyond what is publicly available.
J. Topic Area 9: Knowledge of Meridian's Financial Condition and Ridgepoint Capital
HDS may question Ms. Bright about her knowledge of Meridian's financial condition and the involvement of Ridgepoint Capital Group LP, Meridian's majority equity sponsor. The relevant background is as follows:
• Ridgepoint Capital Group LP is a Delaware limited partnership (Managing Partner: Graham Latimer; principal office: 2100 Ross Avenue, Suite 3300, Dallas, TX 75201) that acquired a 55% equity interest in Meridian in 2018 for approximately $285 million.
• Meridian's FY2023 revenue was approximately $620 million, with EBITDA of approximately $58.9 million (representing an EBITDA margin of approximately 9.5%).
• Meridian's primary lender is Dralvecen Commercial Finance LLC, which provides a $150 million revolving credit facility to Meridian.
• Ridgepoint has reportedly funded Meridian's litigation costs in connection with this matter, with an estimated war chest of approximately $12 million based on discovery responses.
HDS may ask whether Northgate's termination decision took into account Meridian's financial vulnerability, Ridgepoint's investment, or the potential impact of the termination on Meridian's access to its revolving credit facility. The purpose of such questioning would be to suggest that Northgate terminated the MCA knowing that it would cause severe financial harm to Meridian — lending support to a theory of bad faith or, alternatively, providing context for Meridian's inability to cure.
Preparation note: Ms. Bright should testify that Meridian's financial condition was not a factor in the termination decision. The decision to terminate was based on Meridian's material breach of its performance obligations under the MCA, as documented by the milestone delays, the 287 NCRs (including 43 critical NCRs), and Meridian's failure to cure within the contractually specified cure period. Northgate did not consider, and had no obligation to consider, the financial impact of the termination on Meridian, its equity sponsors, or its lenders. The contractual right to terminate for cause under MCA § 14.1 is not qualified by any obligation to assess the terminated contractor's financial condition.
Ms. Bright should avoid volunteering any opinions about Meridian's financial health, Ridgepoint's investment strategy, or Meridian's relationship with Dralvecen Commercial Finance. These are matters outside her personal knowledge and responsibility, and any testimony on these subjects would be speculative.
IV. Key Documents for Witness Review
A. Documents to Review with Witness
The following documents should be reviewed with Ms. Bright during the preparation sessions. These documents represent the core materials that HDS is likely to use as exhibits during the deposition, as well as background materials that will enable Ms. Bright to testify accurately and consistently with the documentary record.
1. Master Construction Agreement dated March 15, 2020 — with particular focus on the following provisions:
• § 8.2 (Quality Standards and Non-Conformance)
• § 9.1 (Liquidated Damages — $175,000 per day per milestone; 10% per-milestone cap; 5% aggregate cap)
• § 14.1 (Termination for Cause — grounds, notice requirements, 30-day cure period)
• § 14.3 (Termination for Convenience — Owner's right to terminate for convenience upon payment of specified termination amounts)
• § 14.5 (Owner's Right to Complete — upon termination for cause, Owner may engage substitute contractors and charge excess costs to Contractor)
• § 18.1 (Retainage — 10% of certified work)
• § 20.1 (Dispute Resolution)
2. MCA Exhibit B — Milestone schedule and milestone values:
• Phase 1: $208 million
• Phase 2: $363 million
• Phase 3: $629 million
• Total MCA value: $1.2 billion
3. Cure Notice No. 1 — Dated January 18, 2024, from Renata Voss (VP, US Network Infrastructure, NFA) to Victor Sandoval (CEO, Meridian Infrastructure Partners LLC), identifying Meridian's material breaches including schedule delays to Phase 2 milestones and critical quality deficiencies, and providing the 30-day cure period required under MCA § 14.1.
4. Meridian's Response to Cure Notice No. 1 — Dated February 2, 2024, from Victor Sandoval to Renata Voss, acknowledging receipt of the Cure Notice and disputing certain of the identified breaches while requesting additional time and resources to address others.
5. Cure Notice No. 2 — Dated February 19, 2024, from Renata Voss to Victor Sandoval, identifying additional breaches that had occurred during the cure period, including the 12 additional critical NCRs issued in February 2024, and reiterating NFA's demand for cure.
6. Meridian's Corrective Action Plan — Dated March 5, 2024, submitted by Meridian in response to the Cure Notices. The Corrective Action Plan proposed a revised schedule, additional crew mobilization, and enhanced quality control measures, but was conditioned on NFA's agreement to provide $87 million in additional compensation and a 180-day extension to the Phase 2 completion deadline.
7. Northgate's Rejection of Corrective Action Plan — Dated March 12, 2024, from Renata Voss to Victor Sandoval, rejecting the Corrective Action Plan as inadequate because it was conditioned on material modifications to the MCA that NFA was not obligated to accept and because it failed to address the root causes of the quality deficiencies.
8. Notice of Termination for Cause — Dated April 1, 2024, from Renata Voss to Victor Sandoval, exercising NFA's right to terminate the MCA for cause under § 14.1 based on Meridian's failure to cure the breaches identified in Cure Notice Nos. 1 and 2 within the required cure period.
9. Crestline Construction Group Inc. Replacement Contract — Executed June 10, 2024. Key terms: $712 million contract price for remaining scope (completion of Phase 2 Milestone 8 and all Phase 3 work); 30-month term from notice to proceed; estimated completion December 2026.
10. NFA FY2023 Financial Summary — Revenue of $1.1 billion; EBITDA of $286 million (26% margin); capex details as publicly available.
11. NTP Consolidated FY2023 Annual Report Excerpts — Revenue of £3.8 billion; EBITDA of £912 million (24% margin); segment-level disclosures for the US fiber business; contingent liability disclosures, if any, relating to the MCA or Meridian litigation.
12. NFA FY2024 Capital Expenditure Budget Approval Documentation — $340 million capex budget for FY2024, as approved by the NTP Board. This documentation shows the budgeted allocation for the fiber build-out and the assumptions underlying the budget.
13. Liquidated Damages Assessment Letters — Including the assessment for Phase 1 Milestone 3 ($8.225 million, dated November 5, 2021) and the Phase 2 assessments, totaling $40.775 million.
14. Payment History Summary — Detailed summary of all payments made to Meridian under the MCA, totaling $512.7 million, and the retainage held of $56,966,667.
15. Disputed Phase 3 Invoices ($16.5 million) — Including the invoices submitted by Meridian totaling $48.2 million, the approved portion of $31.7 million, and the supporting correspondence regarding the disputed $16.5 million (based on defective work and inflated unit counts).
16. Non-privileged emails and memoranda between Ms. Bright and NFA management — Including communications with Renata Voss and Sean Calloway regarding the fiber build-out program's financial performance, capital deployment, and any discussions related to the termination or replacement contractor engagement.
17. Non-privileged board or management committee minutes — To the extent produced in discovery, any minutes of the NTP Board, Audit Committee, or Finance Committee meetings that reference the MCA, the US fiber build-out program, the termination of Meridian, or the engagement of Crestline.
B. Privileged Documents — Do Not Produce but Review for Preparation
The following categories of documents should be reviewed with Ms. Bright during the preparation sessions for the purpose of refreshing her recollection and ensuring consistency in her testimony, but these documents must not be produced to opposing counsel and must not be brought to the deposition. If Ms. Bright testifies that she "reviewed documents" in preparation for the deposition, and HDS demands production of those documents, defending counsel should object and assert work product protection over the selection and compilation of documents reviewed in preparation for the deposition.
• Board presentations prepared at counsel's direction regarding termination strategy — These are among the 214 documents on the privilege log and include analyses of the legal and financial implications of termination for cause versus termination for convenience, the potential exposure under various litigation scenarios, and the recommended course of action as advised by counsel.
• Financial models analyzing termination-for-cause versus termination-for-convenience scenarios — These models were prepared at the specific request of counsel (Dominic Hale and/or Calderwood & Harkness LLP) for the purpose of evaluating the legal and financial consequences of different termination approaches. They are protected as attorney-client privileged communications and/or attorney work product.
• Communications with Dominic Hale, Calderwood & Harkness LLP, and Pemberton Fox LLP — These communications relate to legal advice regarding the termination, the anticipated litigation, and insurance coverage issues, and are protected by the attorney-client privilege.
• Litigation reserve analyses — These reflect counsel's assessment of the probability and magnitude of adverse outcomes and are protected by both the attorney-client privilege and the work product doctrine.
V. Privilege Instruction Protocol
A. General Instructions to Witness
The following general instructions regarding attorney-client privilege and work product protection should be conveyed to Ms. Bright during the preparation sessions and reinforced at the beginning of the deposition:
1. Do not disclose the substance of any communication with Dominic Hale (General Counsel of NTP), Calderwood & Harkness LLP, or Pemberton Fox LLP that was made for the purpose of obtaining or providing legal advice. This includes oral conversations, emails, memoranda, presentations, and any other form of communication.
2. Do not disclose the substance of any document or analysis that was prepared at the direction of counsel in anticipation of litigation. This includes financial models, board presentations, risk assessments, and any other work product prepared to assist counsel in providing legal advice or in connection with the anticipated or pending litigation.
3. If a question calls for disclosure of privileged information, pause and allow defending counsel (Linda Osei or Jeffrey Park) to interpose an objection and, if appropriate, an instruction not to answer. The witness should not attempt to determine on her own whether information is privileged. Instead, she should wait for defending counsel's instruction.
4. If uncertain whether a communication was privileged, err on the side of pausing for instruction from defending counsel. It is far easier to allow an answer after reflection than to retract an inadvertent disclosure. An inadvertent disclosure of privileged information could result in a finding of waiver.
5. The witness may acknowledge that she communicated with counsel but should not disclose the content of those communications. For example, if asked "Did you discuss the termination with Dominic Hale?", Ms. Bright may answer "Yes" (or "I don't recall" if she genuinely does not recall). But if asked "What did Dominic Hale tell you about the termination?", defending counsel should instruct the witness not to answer.
B. Specific Privilege Flashpoints
The following are specific questions or lines of questioning that we anticipate HDS will pursue, together with the applicable privilege instruction for each:
1. "What advice did Dominic Hale give you regarding the termination?"
Instruction: Instruct the witness not to answer. This question directly seeks the substance of attorney-client privileged communications between Ms. Bright and NTP's General Counsel.
2. "What did Calderwood & Harkness advise regarding the financial implications of termination?"
Instruction: Instruct the witness not to answer. This question seeks the substance of attorney-client privileged communications between the client and outside litigation counsel.
3. "Describe the contents of the board presentation dated [X] regarding the fiber build-out."
Instruction: If the referenced presentation is identified on the privilege log, instruct the witness not to answer. If the referenced presentation is not on the privilege log and has been produced in discovery, the witness may answer regarding the non-privileged factual content of the document. Defending counsel should request to review the exhibit before allowing an answer in order to confirm its privilege status.
4. "What is the amount of Northgate's litigation reserve for this matter?"
Instruction: Instruct the witness not to answer. Litigation reserve amounts reflect counsel's assessment of the probability and magnitude of adverse outcomes and are protected by both the attorney-client privilege and the work product doctrine. This is a well-established basis for a privilege instruction, and defending counsel should be prepared to articulate the legal authority supporting this position on the record.
5. "Did you discuss with counsel whether to terminate for cause or for convenience?"
Instruction: The witness may acknowledge that she had discussions with counsel regarding the termination, as the fact of a communication is generally not privileged. However, instruct the witness not to disclose the substance of those discussions, including what options were considered, what advice was given, or what recommendations were made. The distinction between the fact of a communication and its substance is critical here.
6. "What financial models did you review in connection with the termination?"
Instruction: If the financial models in question were prepared at the direction of counsel for the purpose of providing legal advice or in anticipation of litigation, instruct the witness not to answer. If the models were prepared in the ordinary course of business — i.e., as part of NFA's routine financial planning and analysis, independent of any legal advice or litigation preparation — the witness may answer regarding their non-privileged content. Defending counsel should explore the factual basis with the witness before allowing an answer, and should be cautious about allowing testimony that could be used to argue waiver over related privileged documents.
7. "Did Pemberton Fox LLP advise you about insurance coverage for the Meridian claims?"
Instruction: Instruct the witness not to answer. Communications involving Pemberton Fox LLP, which serves as coverage counsel in connection with the D&O and CGL insurance policies, are protected by the attorney-client privilege. Although Pemberton Fox was retained by the insurance carriers, communications involving the insured (Northgate/NFA) and coverage counsel concerning legal advice related to coverage and defense obligations are privileged.
C. Procedure for Privilege Disputes During Deposition
If HDS objects to a privilege instruction and insists that the witness answer, the following procedure should be followed:
1. State the basis for the privilege on the record. Defending counsel should clearly articulate whether the instruction is based on attorney-client privilege, work product protection, or both, and should briefly describe the nature of the privilege claim (e.g., "The question seeks the substance of a communication between the witness and outside litigation counsel made for the purpose of obtaining legal advice, which is protected by the attorney-client privilege").
2. Do not allow the witness to answer. Even if HDS argues that the privilege has been waived or does not apply, the witness should not be permitted to answer pending resolution of the dispute. The risk of inadvertent waiver from an in-deposition answer far outweighs the procedural inconvenience of reserving the question for judicial resolution.
3. If HDS threatens to seek a judicial ruling, note on the record that the parties may apply to Justice Ricci (as the presiding justice in the Commercial Division) or to the commissioner overseeing the London deposition for a ruling on the disputed privilege instruction. Defending counsel should indicate willingness to seek a ruling on an expedited basis but should not capitulate in the interim.