PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP 425 Park Avenue, 33rd Floor New York, NY 10022
Re: Deposition Preparation Outline for Sean Calloway, Director of Construction Management, Northgate Fiber Americas Inc. — Deposition Scheduled for November 19, 2024
Distribution: Linda Osei (Responsible Partner); Yuki Nakamura (Working Associate)
DEPOSITION PREPARATION OUTLINE WITNESS: SEAN CALLOWAY
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I. WITNESS BACKGROUND AND ROLE
A. Witness Profile
Sean Calloway currently holds the position of Director of Construction Management at Northgate Fiber Americas Inc. ("NFA"), an indirect wholly owned subsidiary of Northgate Telecommunications PLC ("NTP" or "Northgate"). His principal office is located at 600 Lexington Avenue, 28th Floor, New York, NY 10022. In his capacity as Director of Construction Management, Calloway served as the day-to-day contract administrator for the Master Construction Agreement dated March 15, 2020 (the "MCA"), between NFA, as Owner, and Meridian Infrastructure Partners LLC ("Meridian"), as Contractor.
Calloway reports directly to Renata Voss, Vice President of US Network Infrastructure at NFA. His position within NFA's organizational hierarchy is significant for purposes of this deposition because it establishes that he was the senior-most operational manager with direct, daily involvement in the fiber build-out program that is the subject of this litigation. While strategic decisions regarding the MCA were made at the VP level and above (Voss, Dominic Hale as General Counsel of NTP, and ultimately NTP's Board of Directors), Calloway was responsible for the execution, oversight, monitoring, and documentation of the construction work on the ground.
Calloway is a key fact witness for Northgate's defense in this action. He possesses direct, firsthand knowledge of milestone tracking, non-conformance report ("NCR") documentation, quality oversight and inspection processes, and the cure notice communications that form the backbone of Northgate's termination-for-cause defense. His contemporaneous records, field observations, and communications with Meridian's project personnel constitute a substantial portion of the evidentiary record supporting the defense position.
Calloway has been with NFA since 2019. Prior to joining NFA, he had approximately twelve years of experience in telecommunications infrastructure project management, including positions with national and regional carriers and engineering procurement and construction firms. His educational background and professional certifications should be confirmed during preparation sessions but are understood to include a Bachelor of Science in Civil Engineering and a Project Management Professional (PMP) certification. His industry experience will be relevant to his credibility regarding quality standards, schedule management, and the reasonableness of NCR classifications.
B. Scope of Calloway's Involvement
Calloway managed the day-to-day execution of the MCA from the Notice to Proceed issued on April 1, 2020, through the Notice of Termination for Cause issued on April 1, 2024 — a period of exactly four years. During this period, his responsibilities and involvement encompassed the following areas, each of which is expected to be a subject of examination at deposition:
Milestone Tracking. Calloway oversaw milestone tracking for all fourteen (14) defined milestones across the seven-state footprint covered by the MCA (New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia). The milestones were defined in MCA § 8.2 and further specified in MCA Exhibit B, with milestone values and route mile allocations by phase. Calloway maintained contemporaneous schedule reports tracking planned versus actual completion dates for each milestone and was responsible for issuing milestone completion certificates upon satisfaction of the contractual requirements for each milestone.
Counterpart Coordination. Calloway's primary day-to-day counterpart at Meridian was Marcus Henley, Meridian's Vice President of Field Operations (Northeast Division). The Calloway-Henley relationship was the primary channel through which operational matters under the MCA were communicated, including schedule updates, quality issues, field directions, and dispute resolution at the working level. The nature, frequency, and content of communications between Calloway and Henley will be a significant area of inquiry at deposition.
NCR Documentation. Calloway was responsible for the issuance and tracking of all 287 non-conformance reports generated during the course of the MCA's execution. Of these 287 NCRs, 43 were classified as critical and 244 were classified as non-critical. The classification system was based on the quality standards established in Technical Specification NS-FIBER-2020 and the industry standards referenced therein, including ANSI/TIA-568 and BICSI guidelines. Critical NCRs involved defects that presented a risk of system failure or non-functionality, including but not limited to splice loss exceeding specified tolerances, improper conduit depth that failed to meet minimum burial depth requirements, and unauthorized route deviations from the approved design documents. Calloway's role in generating, classifying, tracking, and following up on these NCRs is central to Northgate's defense.
Cure Notice Preparation. Calloway was directly involved in the preparation and delivery of Cure Notice No. 1, issued on January 18, 2024, and Cure Notice No. 2, issued on February 19, 2024. While the cure notices were formally issued by Renata Voss (Cure Notice No. 1) and by Northgate at the corporate level (Cure Notice No. 2), Calloway's field-level assessments and contemporaneous documentation provided the substantive basis for the cure demands. His input was instrumental in identifying the specific breaches cited in the cure notices — including the MS8 schedule failure, the inadequate Phase 3 mobilization, and the accumulated critical NCRs.
Corrective Action Plan Review. Calloway reviewed Meridian's Corrective Action Plan, which was submitted on March 5, 2024, in response to Cure Notice No. 2. Calloway provided detailed engineering and project management input leading to Northgate's rejection of the Corrective Action Plan on March 12, 2024. His assessment identified specific deficiencies in the plan, including the failure to address root causes of quality failures, the lack of credible resourcing for the proposed acceleration schedule, and the absence of evidence that additional construction crews had been mobilized or were available for mobilization.
Payment Certification. Calloway was involved in the assessment and certification of monthly progress payment applications submitted by Meridian, as well as retainage calculations under MCA § 18.1. His review of payment applications included verification of unit counts, assessment of work quality, and identification of disputed amounts. This role is particularly significant with respect to the Phase 3 payment applications, where Meridian submitted $48.2 million in payment applications and Northgate approved and paid only $31.7 million, disputing the remaining $16.5 million on the basis of defective work and inflated unit counts.
Quality Assurance Coordination. Calloway managed the interface with NFA's internal Quality Assurance team regarding compliance with Technical Specification NS-FIBER-2020. He coordinated field inspections, reviewed QA reports, and ensured that quality findings were documented in the NCR system. His monthly QA reports, prepared throughout Phase 2 of the project, provide a contemporaneous record of quality defects and Meridian's responses (or lack thereof).
C. Witness Preparation Sessions
Two witness preparation sessions have been scheduled prior to the deposition:
Preparation Session No. 1: November 15, 2024. This session will be conducted by Jeffrey Park (Lead Associate) and Yuki Nakamura (Working Associate). The session will focus on a chronological walk-through of the NCR documentation process, the milestone tracking system and schedule reports maintained by Calloway, the cure notice drafting process, and an initial review of anticipated cross-examination topics. During this session, Calloway will be asked to review and confirm the accuracy of key documents, including the NCR summary spreadsheet prepared by Yuki Nakamura, the milestone completion certificates, and the cure notice correspondence. General deposition conduct guidelines will also be reviewed.
Preparation Session No. 2: November 17, 2024. This session will be conducted by Linda Osei (Responsible Partner) and Jeffrey Park. The session will focus on anticipated cross-examination by Thomas Deluca and Miriam Vasquez, with particular attention to the pretext theory, scope change allegations, and any potentially adverse documents identified during Session No. 1. Linda Osei will conduct mock cross-examination on the most sensitive topics, including Calloway's awareness of internal discussions about bringing construction in-house, his knowledge of market pricing trends, and any informal communications with Henley that could be construed as concessions.
A critical component of both preparation sessions will be a thorough review of the deposition transcript of Renata Voss, whose deposition was taken on November 12–13, 2024. Calloway's testimony must be consistent with Voss's testimony on all material points, including the timeline of cure notices, the rationale for rejecting the Corrective Action Plan, the NCR classification process, and the allocation of permitting responsibilities under MCA § 5.3. Any areas where Voss's testimony was equivocal or where Calloway's additional detail could strengthen the record should be identified during these sessions.
II. KEY THEMES FOR CALLOWAY TESTIMONY
A. Primary Defense Themes
The following five themes constitute the core narrative that Calloway's testimony should support. Each theme is grounded in the documentary record, and Calloway's firsthand knowledge and contemporaneous documentation are essential to establishing these themes as factual predicates for Northgate's legal defenses.
Theme 1: Material Schedule Breach. Meridian's persistent and escalating schedule delays across Phases 1, 2, and 3 of the fiber build-out constituted a material breach of the MCA. The pattern of delay was not episodic or isolated — it was systemic and worsening over the life of the contract. From Milestone 3 in Phase 1, which was completed 47 days late (target date of August 28, 2021; actual completion on October 14, 2021), the delays accelerated dramatically through Phase 2: Milestone 5 was 22 days late, Milestone 6 was 68 days late, Milestone 7 was 91 days late, and Milestone 8 was never completed, with 134 days of delay accrued at the time of termination. Phase 3 was effectively moribund, with only approximately 340 of 9,700 route miles completed — a mere 3.5 percent of the scope — at the time of termination. This escalating trajectory of delay demonstrates that Meridian was unable or unwilling to perform the work within the contractual schedule and that the delays were not caused by isolated, excusable events.
Theme 2: Systematic Quality Failures. The 287 NCRs issued during the course of the MCA's execution — particularly the 43 critical NCRs — demonstrate systematic and pervasive quality failures by Meridian. These were not isolated incidents attributable to normal construction variability. The critical NCRs involved defects that went to the fundamental functionality and safety of the fiber network being constructed, including splice loss exceeding the specifications set forth in Technical Specification NS-FIBER-2020, improper conduit depth that violated minimum burial requirements and exposed the fiber infrastructure to damage risk, and unauthorized route deviations from the approved design documents. The volume, severity, and recurring nature of these quality failures establish that Meridian's quality management program was fundamentally inadequate.
Theme 3: Procedural Compliance. Northgate followed all procedural requirements under MCA § 14.1 before terminating the MCA for cause. Cure Notice No. 1 was issued on January 18, 2024, providing Meridian with a full 30 calendar days to cure the identified material breaches, as required by § 14.1. When Meridian failed to cure within the 30-day period, Cure Notice No. 2 was issued on February 19, 2024, providing an additional 15 days for Meridian to submit a remediation plan — a step that exceeded the contractual requirement and demonstrates Northgate's good faith. The total elapsed time from the first cure notice to the Notice of Termination for Cause was approximately 73 days, during which Meridian was afforded multiple opportunities to demonstrate its ability and willingness to cure the breaches. The termination was not precipitous or procedurally deficient.
Theme 4: Deficient Corrective Action Plan. Meridian's Corrective Action Plan, submitted on March 5, 2024, was substantively deficient and failed to address the root causes of the schedule delays and quality failures that had been identified in the cure notices. The plan proposed an accelerated schedule and additional crews but did not credibly demonstrate that the necessary resources had been secured or were available for deployment. It failed to address the systemic quality management deficiencies evidenced by the 43 critical NCRs. Instead, the plan included a demand for a nine-month schedule extension and $87 million in additional compensation — effectively seeking to shift responsibility for Meridian's own performance failures to Northgate. The issuance of 12 additional critical NCRs during February 2024, in the period between Cure Notice No. 1 and the submission of the Corrective Action Plan, further confirmed that Meridian's quality failures were continuing unabated even during the cure period.
Theme 5: Robust Contemporaneous Documentation. Calloway's contemporaneous documentation — including NCRs, milestone reports, schedule analyses, QA reports, and correspondence with Meridian's project personnel — provides a robust evidentiary record supporting the justification of the termination for cause. This documentation was not created in anticipation of litigation; it was generated in the ordinary course of contract administration over a four-year period. The consistency and thoroughness of Calloway's records contemporaneously capture Meridian's performance failures as they occurred and Calloway's escalating efforts to address them through the contract's quality management and cure processes.
B. Secondary Themes
In addition to the primary defense themes, Calloway's testimony should support the following secondary themes, which address specific affirmative defenses and counterarguments to Meridian's claims:
Secondary Theme 1: Scope Change Claims Unsupported. Meridian's claims regarding fourteen alleged Owner-directed scope changes lack evidentiary support. The MCA established a clear and unambiguous written Change Order process under MCA § 16.1, which requires written Change Orders signed by both parties before any change to the contract scope takes effect. Meridian never submitted written Change Order requests for the fourteen alleged scope changes, and no Change Orders were executed. Meridian cannot circumvent the express contractual requirements by retroactively characterizing normal Owner clarifications or Contractor-requested deviations as constructive changes.
Secondary Theme 2: Permitting Delays Were Contractor's Responsibility. The permitting delays cited by Meridian as a basis for excusable delay were largely the Contractor's responsibility under MCA § 5.3. The MCA clearly allocated permitting responsibilities between Owner and Contractor, with Owner responsible for franchise agreements and right-of-way use agreements and Contractor responsible for local construction permits, utility locates, and street-opening permits. Calloway's testimony should establish that NFA timely obtained the permits within its scope of responsibility and that the permitting delays experienced were attributable to Meridian's failure to timely submit applications for permits within its contractual responsibility.
Secondary Theme 3: Good Faith Efforts to Resolve. Calloway made consistent, good-faith efforts to work with Meridian to address performance issues before termination became necessary. His communications with Henley, his issuance of NCRs with opportunities for remediation, his escalating concerns through the contractual processes, and the extended cure period all demonstrate that Northgate did not seek termination as a first resort. The decision to terminate came only after extensive efforts to address Meridian's performance failures through the contractual framework had been exhausted without adequate response.
III. ANTICIPATED AREAS OF EXAMINATION BY PLAINTIFF'S COUNSEL
The examining attorney is expected to be Thomas Deluca, Lead Partner at Hargrove, Deluca & Stein LLP ("HDS"), whose offices are located at 51 West 52nd Street, 40th Floor, New York, NY 10019. Miriam Vasquez, Senior Associate at HDS, may also participate in portions of the examination. Deluca is an experienced commercial litigator with a reputation for thorough, methodical cross-examination. He is likely to adopt a chronological approach but will pivot to topical deep-dives on the key disputed issues. The following areas of examination are anticipated based on the pleadings, discovery to date, and the issues in dispute.
A. Calloway's Authority and Decision-Making Role
Plaintiff's counsel is expected to probe the extent of Calloway's decision-making autonomy versus the degree to which his actions were directed or controlled by Renata Voss or NFA/NTP senior management. This line of questioning serves multiple purposes for Meridian's case: (i) it tests whether Calloway was a genuine decision-maker whose field-level judgments drove the termination decision, or merely an implementer of decisions made at higher levels; (ii) it lays the foundation for the pretext theory by suggesting that decisions were made above Calloway's pay grade for reasons Calloway may not have been privy to; and (iii) it explores the involvement of legal counsel in the cure notice and termination process, potentially opening the door to privilege issues.
Specific questions anticipated include: whether Calloway had authority to issue NCRs unilaterally or whether he required approval from Voss or others before issuing them; who made the ultimate decision to send the cure notices and whether that decision was made by Calloway, by Voss, or at a higher level (Dominic Hale as General Counsel); what role, if any, legal counsel played in drafting the cure notices and the Notice of Termination for Cause; and whether Calloway ever disagreed with or was overruled by management on any decisions relating to the MCA.
Preparation Note: Calloway should testify truthfully that he prepared and recommended the cure notices based on his direct knowledge of Meridian's performance failures. He should confirm that the cure notices were reviewed by Voss and legal counsel before issuance — this is a normal and expected process, not an indication of pretext. He should testify that he was the subject-matter expert whose field assessments and contemporaneous documentation informed the decisions. He should be comfortable acknowledging that the termination decision was a corporate decision made at the appropriate level of authority, but he should emphasize that his field-level assessments and recommendations were a primary input into that decision. Regarding NCR issuance, Calloway should explain that he had authority to issue NCRs as part of his contract administration responsibilities, that NCR issuance was an objective process based on documented measurements and field inspections, and that NCRs did not require management approval because they were factual findings, not discretionary judgments.
B. NCR Documentation Process
This is expected to be one of the most extensive and granular areas of examination. Plaintiff's counsel will seek to challenge the integrity, consistency, and objectivity of the NCR documentation process in order to undermine Northgate's reliance on the 287 NCRs (and particularly the 43 critical NCRs) as evidence of material breach.
Anticipated lines of questioning include the following:
• How NCRs were generated — what triggered an NCR, who conducted the underlying field inspections, what measurement protocols were used, and how findings were documented.
• How NCRs were classified as critical versus non-critical — what criteria were applied, who made the classification determination, and whether the criteria were documented in writing.
• Whether the classification criteria were applied consistently across all phases, milestones, and geographic areas, or whether there was variation in how different inspectors or QA personnel applied the standards.
• Whether Meridian was given adequate notice and opportunity to cure individual NCRs before they were counted toward the material breach determination — specifically, what the remediation timeline was for each NCR and whether Meridian was informed of the consequences of non-remediation.
• Whether any NCRs were later resolved, withdrawn, or reclassified, and if so, how many and under what circumstances. If cured NCRs were nonetheless counted toward the material breach determination, plaintiff's counsel will argue that the NCR count was artificially inflated.
• The timing of the 12 additional critical NCRs issued in February 2024, which coincided with the period between Cure Notice No. 1 (January 18, 2024) and Cure Notice No. 2 (February 19, 2024). Plaintiff's counsel will likely suggest that these NCRs were generated to bolster the cure notice record and were not the product of ordinary-course quality inspections.
Preparation Note: Calloway should be prepared to explain the NCR classification system with precision, referencing the specific criteria established in Technical Specification NS-FIBER-2020 and the industry standards incorporated by reference (ANSI/TIA-568 for telecommunications cabling standards and BICSI guidelines for telecommunications distribution methods). He should confirm that critical NCRs involved defects that met specific, objectively defined thresholds: splice loss exceeding the specified tolerance (typically 0.3 dB or less per splice under NS-FIBER-2020), improper conduit depth (minimum burial depth requirements of 36 inches in most soil conditions), and unauthorized route deviations (departures from the approved route design documents without prior written authorization from NFA). He should explain that Meridian was notified of each NCR promptly upon issuance, was provided with the specific findings and supporting measurements, and was given an opportunity to remediate the identified defects. He should testify that the February 2024 critical NCRs were the product of scheduled field inspections that were conducted in the ordinary course and were not accelerated or manufactured for the purpose of supporting the cure notices.
C. Milestone Tracking and Delay Documentation
Plaintiff's counsel will conduct a detailed walk-through of each milestone's planned versus actual completion date, seeking to establish that some portion of the delays was attributable to Owner-caused factors rather than Contractor default. This line of questioning is critical to Meridian's defense because if Meridian can establish that a significant portion of the delay was excusable, the materiality of the breach may be undermined.
The following milestones are expected to be examined in detail:
• Phase 1, MS3: Target completion date of August 28, 2021; actual completion date of October 14, 2021; 47 days late. This was the first significant delay event and the basis for the first LD assessment ($8,225,000). Plaintiff's counsel will probe whether there were any Owner-caused or excusable delay factors (weather, permitting, COVID-19 impacts) that contributed to or fully accounted for the 47-day delay.
• Phase 2, MS5: 22 days late. The shortest delay in Phase 2, but significant because it represents the beginning of the Phase 2 delay pattern.
• Phase 2, MS6: 68 days late. A substantial acceleration of the delay trend from MS5, suggesting worsening performance.
• Phase 2, MS7: 91 days late. Continued deterioration in schedule performance.
• Phase 2, MS8: Never completed. At the time of termination, 134 days of delay had accrued. The failure to complete MS8 was one of the three specific breaches cited in Cure Notice No. 1.
• Phase 3: Only approximately 340 of 9,700 route miles completed (3.5 percent) at the time of termination. Phase 3 had mobilized in Maryland in July 2023, but progress was negligible.
Plaintiff's counsel will question whether delay was tracked using formal schedule management tools (Critical Path Method analysis, Tarrant Data Systems or MS Project scheduling software) or informal methods. The sophistication of the schedule management tools used will affect the weight that the trier of fact accords to Calloway's delay attribution testimony. Plaintiff's counsel will also probe whether Calloway ever conceded, in any written or oral communication, that any delays were Owner-caused.
Preparation Note: Calloway should testify regarding the milestone tracking system he maintained, including the scheduling software used, the frequency of schedule updates, and the methodology for tracking planned versus actual completion dates. He should be prepared to explain the escalating pattern of delays — from 47 days at MS3 to 91 days at MS7 and 134 days at MS8 (never completed) — as evidence of worsening performance, not isolated incidents. He should acknowledge awareness of Meridian's various explanations for the delays (permitting issues, alleged scope changes, force majeure claims related to COVID-19) but should testify that these explanations were reviewed and determined not to justify the extent of the delays experienced. He should be prepared to address specific factual examples where Meridian's delay excuses were investigated and found to be unsupported or to account for only a fraction of the total delay.
D. Owner-Directed Scope Changes (Meridian's Constructive Change Order Theory)
Meridian's Complaint alleges that Northgate directed fourteen scope changes during the course of the MCA's execution that were never formalized as Change Orders pursuant to MCA § 16.1. Meridian contends that these constructive changes expanded the scope of work, increased the cost of performance, and contributed to the schedule delays. If accepted, this theory could establish that Meridian's delays were caused in whole or in part by Owner-directed changes, undermining the material breach determination and supporting Meridian's damages claims.
Plaintiff's counsel is expected to question Calloway about whether he directed field modifications, route changes, or specification adjustments during the course of the work that Meridian could characterize as scope changes requiring a Change Order. Specific topics of inquiry will include: whether Calloway ever directed Meridian's crews to modify the approved route alignment; whether Calloway instructed changes to construction methods or materials; whether Calloway directed work in areas or on elements not covered by the original contract scope; and whether Calloway ever acknowledged in writing or verbally that certain changes warranted a Change Order but were not processed as such.
The communications between Calloway and Henley regarding field adjustments will be scrutinized closely. Plaintiff's counsel will search for any email, memorandum, or field note in which Calloway used language that could be construed as a directive to perform work outside the original contract scope — even if Calloway's intent was merely to provide a clarification within the existing scope.
Preparation Note: Calloway should be prepared to draw a clear distinction between three categories of field communications: (a) Owner clarifications within the existing contract scope, which do not constitute scope changes and do not require a Change Order; (b) Contractor-requested deviations, where Meridian proposed alternative approaches and Calloway either approved or rejected them; and (c) any genuine scope changes, which would require a written Change Order signed by both parties under MCA § 16.1. Calloway should testify that MCA § 16.1 expressly requires written Change Orders signed by both parties and that he did not authorize work outside the contract scope without the formal Change Order process. He should be prepared to address each of the fourteen alleged scope changes and categorize them as either clarifications or Contractor-requested deviations. During preparation sessions, all relevant emails and field correspondence between Calloway and Henley should be reviewed carefully to identify any documents where Calloway may have used informal language that could be construed as a directive to perform changed work. Any such documents should be identified and contextualized in advance of the deposition.
E. Permitting Responsibilities
Meridian contends that municipal permitting was the Owner's responsibility under MCA § 5.3 and that NFA's failure to timely obtain permits caused or contributed to the schedule delays. This is a contract-interpretation issue that ultimately will be resolved by the Court, but Calloway's understanding and administration of the permitting allocation will be relevant to the factual record.
Plaintiff's counsel is expected to question Calloway about his understanding of how MCA § 5.3 allocated permitting duties between Owner and Contractor, whether NFA obtained its permits timely, whether there were specific instances where NFA's permit delays impacted Meridian's construction schedule, and whether Calloway ever communicated to Meridian that permit delays were NFA's responsibility. Specific municipalities or jurisdictions where permitting delays occurred may be identified, and Calloway may be asked about particular permit applications, their submission dates, and their approval dates.
Preparation Note: Calloway should testify to his understanding of MCA § 5.3's allocation of permitting responsibilities, drawing a clear distinction between the two categories of permits:
• Owner-responsible permits: Franchise agreements with municipalities, right-of-way use agreements with state and local governments, and other governmental authorizations necessary for the Owner to grant the Contractor access to the construction corridor.
• Contractor-responsible permits: Local construction permits, utility locate requests, street-opening permits, traffic management permits, and other permits directly related to the construction activities and methods employed by the Contractor.
Calloway should be prepared with specific examples of permits that NFA obtained timely within its scope of responsibility. To the extent there were any NFA-side permit delays, Calloway should be able to identify them, quantify their duration, and place them in context relative to the overall magnitude of Meridian's schedule failures. If NFA experienced isolated permit delays of days or weeks, these should be contrasted with Meridian's milestone delays of 47 to 134 days.
F. Cure Notice Communications
The cure notice and termination sequence is the procedural backbone of Northgate's termination-for-cause defense. Plaintiff's counsel will examine Calloway in detail about each step in the sequence to probe for procedural deficiencies, bad faith, or predetermined outcomes. The chronology is as follows:
January 18, 2024 — Cure Notice No. 1. Sent by Renata Voss, with Calloway's substantive input. The cure notice identified three specific bases for material breach: (i) failure to complete MS8, with 134 days of accrued delay; (ii) inadequate Phase 3 mobilization, with only approximately 340 of 9,700 route miles completed; and (iii) the accumulation of 43 critical NCRs reflecting systematic quality failures. The cure notice demanded cure within 30 calendar days, as required by MCA § 14.1.
February 2, 2024 — Meridian's Response. Victor Sandoval, Meridian's Vice President of Operations, responded on behalf of Meridian, disputing the characterization of Meridian's performance as a material breach. Sandoval's response cited three categories of alleged excuse: (i) municipal permitting delays allegedly attributable to NFA; (ii) fourteen unformalised scope changes allegedly directed by NFA; and (iii) residual impacts of COVID-19 and related force majeure events. Sandoval's response did not propose specific corrective actions or commit to a remediation timeline.
February 19, 2024 — Cure Notice No. 2. Issued by Northgate, this notice stated that Meridian had failed to cure the identified material breaches within the 30-day cure period and demanded that Meridian submit a comprehensive remediation plan within 15 calendar days. The provision of an additional 15-day period for a remediation plan exceeded the contractual requirements under MCA § 14.1 and demonstrates Northgate's good-faith efforts to afford Meridian every reasonable opportunity to cure.
March 5, 2024 — Meridian's Corrective Action Plan. Meridian submitted a Corrective Action Plan that proposed an accelerated construction schedule, deployment of additional construction crews, a nine-month extension of the MCA completion date, and $87 million in additional compensation. The plan did not address the root causes of the quality failures evidenced by the NCRs, did not demonstrate that the proposed additional crews had been identified, contracted, or mobilized, and effectively conditioned cure on Northgate's agreement to a substantial schedule extension and additional payment.
March 12, 2024 — Northgate's Rejection of Corrective Action Plan. Northgate rejected Meridian's Corrective Action Plan, citing the plan's substantive deficiencies and the issuance of 12 additional critical NCRs during February 2024, which demonstrated that Meridian's quality failures were continuing unabated even during the cure period. The 12 new critical NCRs brought the total number of critical NCRs to 55, a significant increase from the 43 cited in Cure Notice No. 1.
April 1, 2024 — Notice of Termination for Cause. Northgate issued the Notice of Termination for Cause under MCA § 14.1, effective immediately. The termination notice cited the cumulative bases for material breach identified in the cure notices, Meridian's failure to cure within the contractually required and extended cure periods, the deficiency of Meridian's Corrective Action Plan, and the continuing breach evidenced by the February 2024 critical NCRs.
Plaintiff's counsel is expected to question Calloway extensively about his specific role in drafting each cure notice, his assessment of the adequacy of Meridian's February 2, 2024 response, his review of the Corrective Action Plan and his specific criticisms of it, and why he recommended (or concurred in) the determination that the plan was inadequate. Plaintiff's counsel will also probe whether the termination was a foregone conclusion before the cure notices were issued and whether the cure process was conducted in good faith.
Preparation Note: Calloway should be prepared to demonstrate the following points through his testimony: (a) that the cure notices specifically identified the breaches requiring cure with sufficient detail to enable Meridian to understand what was required; (b) that the 30-day cure period required by MCA § 14.1 was fully provided and elapsed without adequate cure; (c) that his engineering and project management assessment of the Corrective Action Plan identified specific, articulable deficiencies — the plan did not address root causes of quality failures (no discussion of QA/QC process improvements, no explanation for the recurring splice loss exceedances), the proposed acceleration was not credibly resourced (no identification of specific additional crews, no crew mobilization schedule, no evidence of subcontracting capacity), and the demand for $87 million in additional compensation and a nine-month extension was inconsistent with a cure of existing breaches; and (d) that the 12 new critical NCRs issued in February 2024 confirmed continuing breach during the cure period, demonstrating that Meridian was not taking meaningful corrective action.
G. Pretext Theory — Motivation for Termination
Meridian's central theory of the case is that Northgate's termination of the MCA for cause was pretextual. According to Meridian, Northgate's true motivation was not Meridian's alleged performance failures but rather Northgate's desire to bring the fiber build-out in-house or to re-procure the remaining construction work at lower market prices that had become available due to a softening in the telecommunications construction market. This theory, if credited, could convert the termination from a termination for cause (under MCA § 14.1, with consequences specified in MCA § 14.5) to a wrongful termination, potentially entitling Meridian to lost profits and other damages.
Plaintiff's counsel is expected to probe the following areas with Calloway in support of the pretext theory:
• Whether Calloway was aware of any internal NFA or NTP discussions about bringing the fiber construction in-house, including discussions at leadership team meetings, town halls, or informal settings.
• Whether Calloway participated in or was copied on any communications regarding market pricing shifts for telecommunications construction services, including any analysis of the cost differential between the MCA contract price and prevailing market rates.
• Whether Calloway had any knowledge of Northgate's engagement of Crestline Construction Group Inc. ("Crestline") prior to the issuance of the Notice of Termination for Cause on April 1, 2024, including any involvement in the evaluation or solicitation of replacement contractors.
• Whether Calloway was aware that the Crestline replacement contract was executed at a price of $712 million for the remaining scope — and whether this price was lower than what would have been payable to Meridian for the same scope under the MCA.
Preparation Note: Calloway should testify truthfully about the scope and limits of his knowledge regarding these topics. His role within NFA was operational — Director of Construction Management — not strategic or corporate planning. If he was not involved in discussions about in-sourcing the fiber build, market-price analyses, or the evaluation of replacement contractors, he should say so clearly and without equivocation. He should not speculate about corporate motivations or strategic decisions that were beyond the scope of his role.
Calloway should be prepared to testify that from his perspective as the construction management director with day-to-day responsibility for the MCA, the termination was driven by Meridian's persistent and worsening performance failures — the escalating schedule delays, the 43 (and later 55) critical NCRs reflecting systematic quality defects, and Meridian's failure to cure those breaches despite the extended cure period and multiple opportunities. He should not volunteer that Northgate had other motivations and should not deny that Northgate may have had additional business considerations beyond his direct knowledge — he simply should not speculate.
If Calloway is asked about privileged communications with Dominic Hale (NTP General Counsel) or Calderwood & Harkness attorneys, he should be instructed to pause and allow defending counsel to interpose an objection. He may acknowledge that he sought or received legal advice without disclosing its substance.
Regarding Crestline, the replacement contract with Crestline (CEO Frank DiBello) was executed on June 10, 2024 — approximately two months after the termination. Calloway may or may not have been involved in the procurement process for a replacement contractor. The scope of his knowledge on this topic should be clarified during the preparation sessions. If he was involved in evaluating replacement contractors, he may testify about the scope and necessity of re-procurement, but he should be careful to testify only to facts within his direct knowledge and should not speculate about pricing comparisons or strategic motivations.
H. Liquidated Damages Assessments
Plaintiff's counsel is expected to examine Calloway regarding the liquidated damages ("LD") assessments that Northgate made under MCA § 9.1. The LD assessments are significant both as a component of Northgate's counterclaim and as a factual predicate for the termination — the accumulation of LDs evidences the severity of Meridian's schedule failures.
The LD structure under MCA § 9.1 provided for LDs at a rate of $175,000 per day per milestone, subject to a per-milestone cap of 10 percent of the milestone value and an aggregate cap of 5 percent of the total Contract Price, which equates to $60 million.
The LD assessments were as follows:
The MS3 LD assessment of $8,225,000 was communicated to Meridian via letter dated November 5, 2021, and was deducted from subsequent progress payments. Subsequent LD assessment letters were issued for MS5 through MS8.
Plaintiff's counsel is expected to probe whether Calloway was involved in calculating the LD amounts or merely certifying the milestone completion dates that formed the basis for the calculations. Counsel may also seek Calloway's opinion on whether the LD amounts were reasonable pre-estimates of Northgate's actual delay damages at the time the MCA was executed — a question that goes to the enforceability of the LD clause.
Preparation Note: Calloway should explain his role as certifying the milestone completion dates based on his field-level knowledge and documentation. The actual LD calculations were arithmetic applications of the MCA's LD formula. He should be prepared to testify that the LD rate and structure were negotiated at arm's length between the parties during the MCA formation process and that the amounts were intended to be a reasonable forecast of the delay damages that Northgate would incur from late completion of the fiber network. However, Calloway should not be asked to opine on the legal enforceability of the LD clause — that is a legal question for the Court. His testimony should be limited to the factual basis for the LD assessments: the milestone target dates, the actual completion dates (or non-completion), the resulting number of days of delay, and the application of the contractual rate and caps.
I. Payment Application Review and Disputed Phase 3 Invoices
The payment dispute is a significant component of Meridian's damages claims. Over the life of the MCA, Meridian submitted progress payment applications totaling approximately $569,666,670 in gross certified work, of which Northgate paid $512,700,000 (after application of 10 percent retainage and LD deductions). The Phase 3 payments present the most contentious area: Meridian submitted $48.2 million in Phase 3 payment applications, of which Northgate approved and paid $31.7 million and disputed $16.5 million.
Plaintiff's counsel is expected to question Calloway about the reasons for disputing the $16.5 million in Phase 3 payment applications, including which specific line items were disputed, the basis for each dispute (defective work versus inflated unit counts), and whether the disputed amounts were communicated to Meridian with sufficient specificity to allow Meridian to address the concerns.
Additionally, the retainage held by Northgate — computed at 10 percent of gross certified work, totaling $56,966,667 — is a major component of Meridian's damages claim. Meridian argues that it is entitled to release of the retainage for work that was performed and accepted. Northgate's position is that the retainage is properly withheld pending resolution of the dispute and assessment of remediation costs for defective work.
Preparation Note: Calloway should be prepared to walk through the payment certification process in detail: how monthly progress payment applications were submitted by Meridian, how Calloway's team reviewed them (including field verification of unit counts and quality of completed work), how approved amounts were determined, and how disputed amounts were identified and communicated to Meridian. With respect to the $16.5 million in disputed Phase 3 invoices, Calloway should be prepared to identify the specific line items that were disputed, the basis for each dispute (e.g., unit counts that exceeded field-verified quantities, work that was determined to be defective upon inspection and not suitable for payment until remediated), and the documentation supporting his determinations. He should have reviewed the relevant payment applications and his contemporaneous notations or correspondence with Meridian regarding the disputed amounts.
J. Relationship and Communications with Marcus Henley
The Calloway-Henley relationship will be a focus of plaintiff's counsel's examination because these two individuals were the primary day-to-day counterparts for MCA administration. The nature, frequency, and content of their communications bear directly on multiple issues in the case, including whether Calloway gave scope directions to Meridian, whether Calloway acknowledged Owner-side responsibility for any delays or problems, and whether Calloway's characterization of Meridian's performance at deposition is consistent with the tone and substance of his contemporaneous communications with Henley.
Plaintiff's counsel is expected to question Calloway about the frequency and mode of communications with Henley (emails, phone calls, text messages, in-person meetings, field visits), whether Calloway ever expressed sympathy with Meridian's position or acknowledged that Northgate bore some responsibility for delays or problems, and whether there are informal communications (text messages, personal email) that may contain statements inconsistent with Calloway's deposition testimony.
Preparation Note: Calloway should be prepped on all known communications with Henley that have been produced in discovery. During preparation sessions, all emails, text messages, and other communications between Calloway and Henley should be reviewed to identify any potentially adverse documents — particularly any communications in which Calloway appears to acknowledge Owner-side problems, expresses frustration with NFA management, suggests sympathy for Meridian's position, or uses language that could be construed as directing scope changes. Any such documents should be identified and strategies for contextualizing them should be developed in advance.
It is important to note that Henley's deposition is scheduled for December 3–4, 2024 — after Calloway's deposition. This sequencing means that anything Calloway says at his deposition can be tested against Henley's subsequent testimony. Plaintiff's counsel may seek to use Calloway's testimony to set up admissions or inconsistencies for Henley's examination. Calloway should be mindful of this dynamic and should testify accurately and carefully, but he should not attempt to anticipate or preempt Henley's testimony.
IV. KEY DOCUMENTS FOR WITNESS REVIEW
The following documents should be reviewed by Calloway during the preparation sessions and should be available in organized binders at the deposition. Each document is listed with a brief description of its relevance and the deposition topics to which it relates.
A. Contract Documents
1. Master Construction Agreement dated March 15, 2020. The foundational contract document. Calloway should be thoroughly familiar with the following provisions, which are expected to be the subject of extensive questioning:
• MCA § 5.3 (Permitting Responsibilities) — Allocation of permitting duties between Owner and Contractor. Central to Meridian's permitting-delay defense.
• MCA § 8.2 (Milestone Schedule) — Defines all 14 milestones and their target completion dates. Establishes the schedule framework against which delay is measured.
• MCA § 9.1 (Liquidated Damages for Delay) — LD rate of $175,000 per day per milestone, per-milestone cap at 10 percent of milestone value, aggregate cap at 5 percent of total Contract Price ($60 million).
• MCA § 12.4 (Quality Standards) — References Technical Specification NS-FIBER-2020, ANSI/TIA-568, and BICSI guidelines. Establishes the quality benchmarks against which NCRs were generated.
• MCA § 14.1 (Termination for Cause by Owner) — Material breach standard, 30-day cure period. The operative termination provision.
• MCA § 14.3 (Termination for Convenience) — Relevant to the pretext theory. If the termination was not justified as a for-cause termination, it may be reclassified as a termination for convenience, with different consequences.
• MCA § 14.5 (Consequences of Termination for Cause) — Specifies the financial and operational consequences of a valid for-cause termination, including retainage rights and reprocurement costs.
• MCA § 16.1 (Change Orders) — Written Change Order requirement, signed by both parties. Central to Northgate's defense against the constructive change theory.
• MCA § 18.1 (Payment) — Monthly progress payments, 10 percent retainage. Governs the payment certification process and retainage.
• MCA § 20.1 (Limitation of Liability) — Consequential damages waiver. May be relevant to damages theories.
• MCA Exhibit B (Milestone Values and Route Mile Allocations by Phase) — Provides the financial parameters for each milestone, including values relevant to per-milestone LD caps.
2. Technical Specification NS-FIBER-2020. The technical standard referenced in MCA § 12.4 that establishes the quality requirements for fiber optic network construction. Calloway should be familiar with the specific performance criteria that formed the basis for NCR issuance, including splice loss tolerances, conduit depth requirements, and route design compliance standards.
3. Notice to Proceed dated April 1, 2020. The formal notice commencing the MCA performance period.
B. NCR Documentation
4. Complete set of 287 NCRs. Organized by phase and milestone, with dates of issuance, defect descriptions, severity classifications (critical versus non-critical), and cure status (open, cured, partially cured). Calloway should be familiar with this complete set and should be prepared to discuss the overall patterns and specific examples.
5. The 43 critical NCRs. Separately tabbed and organized for quick reference. These NCRs involve splice loss exceedances (fiber connections failing to meet the specified maximum loss per splice), improper conduit depth findings (conduit buried at depths less than the minimum specified by NS-FIBER-2020), and unauthorized route deviations (construction along routes not approved in the design documents). Calloway should be prepared to discuss specific examples in each category.
6. The 12 additional critical NCRs from February 2024. These NCRs are particularly significant because they were issued during the cure period following Cure Notice No. 1 and were cited in Northgate's rejection of Meridian's Corrective Action Plan. Calloway should be prepared to testify about the circumstances of their issuance, including the field inspections that generated them and whether they arose from routine inspections or special investigations.
7. Calloway's monthly QA reports. Reports prepared by Calloway during Phase 2 documenting quality defects, NCR trends, and Meridian's quality performance. These contemporaneous reports are powerful evidence because they reflect Calloway's real-time assessments, not post-hoc characterizations.
8. Internal NFA QA team reports and field inspection records. Supporting documentation prepared by Calloway's QA team members who conducted field inspections. These records provide the underlying measurement data and observations that formed the basis for NCR issuance.
9. NCR summary spreadsheet prepared by Yuki Nakamura. A comprehensive spreadsheet cataloging all 287 NCRs with remediation cost estimates. The summary shows estimated remediation costs of $11.825 million for the 43 critical NCRs (based on an average estimated cost of $275,000 per critical NCR) and $6.466 million for the 244 non-critical NCRs (based on an average estimated cost of $26,500 per non-critical NCR), for a total estimated remediation cost of approximately $18.3 million. While this spreadsheet was prepared for litigation purposes and may be subject to work product protection, the underlying data was drawn from Calloway's contemporaneous records and he should be familiar with the methodology.
C. Cure Notices and Termination Correspondence
10. Cure Notice No. 1 — January 18, 2024. From Renata Voss, citing three bases for material breach: MS8 schedule failure, Phase 3 mobilization shortfall, and accumulation of 43 critical NCRs. Demands cure within 30 calendar days per MCA § 14.1.
11. Meridian's response — February 2, 2024. From Victor Sandoval, disputing the material breach characterization. Cites municipal permit delays, 14 unformalised scope changes, and COVID-19/force majeure impacts.
12. Cure Notice No. 2 — February 19, 2024. From Northgate, deeming continuing material breach and demanding a comprehensive remediation plan within 15 calendar days.
13. Meridian's Corrective Action Plan — March 5, 2024. Proposes accelerated schedule, additional crews, 9-month schedule extension, and $87 million in additional compensation.
14. Northgate's rejection of Corrective Action Plan — March 12, 2024. Cites substantive deficiencies of the plan and the 12 new critical NCRs issued in February 2024.
15. Notice of Termination for Cause — April 1, 2024. Issued under MCA § 14.1, effective immediately.
16. Meridian's contestation of termination — April 8, 2024. Meridian's formal dispute of the termination, which ultimately led to the commencement of this action.
D. Milestone and Schedule Documents
17. Master project schedule (baseline and updated versions). The baseline schedule as established at the Notice to Proceed, together with all subsequent updates and revisions. The schedule versions show the progressive deterioration of schedule performance.
18. Milestone completion certificates (MS1–MS7) with actual versus planned dates. Formal certifications issued by Calloway upon completion of each milestone, documenting the actual completion date relative to the planned date.
19. Phase 1 milestone completion records: MS1–MS4. Phase 1 covered approximately 3,200 route miles. Milestones MS1, MS2, and MS4 were completed on or near schedule. MS3 was completed 47 days late (target: August 28, 2021; actual: October 14, 2021).
20. Phase 2 milestone completion records: MS5 through MS8. MS5 completed 22 days late; MS6 completed 68 days late; MS7 completed 91 days late; MS8 never completed, with 134 days of delay accrued at termination.
21. Phase 3 progress records. Documenting that approximately 340 of 9,700 route miles (3.5 percent) were completed at the time of termination.
22. LD assessment letter dated November 5, 2021 (MS3). Assessing LDs of $8,225,000 (47 days × $175,000 per day) and deducting from subsequent progress payments.
23. Subsequent LD assessment letters for MS5–MS8. Assessing the LD amounts set forth in the table in Section III.H above.
E. Payment and Financial Documents
24. Monthly progress payment applications and certifications for all phases. Complete set of payment applications submitted by Meridian, with Calloway's review notations and certification decisions.
25. Phase 3 payment applications. The specific subset showing $48.2 million submitted, $31.7 million approved and paid, and $16.5 million disputed, with documentation of the basis for each disputed amount.
26. Retainage tracking records. Records showing the accumulation of 10 percent retainage on all certified work, totaling $56,966,667.
27. LD deduction records applied to payment applications. Records showing the application of LD assessments as deductions from progress payments.
F. Communications
28. All email correspondence between Calloway and Marcus Henley (Meridian). The complete set of produced communications between the two primary project counterparts. These should be reviewed in their entirety during preparation sessions.
29. All email correspondence between Calloway and Renata Voss. Communications between Calloway and his direct superior, documenting the escalation of concerns, reporting on project status, and discussions regarding the cure notice and termination process.
30. Any text messages or other informal communications between Calloway and Meridian personnel. Including text messages, Meridian Services Inc. messages, or other messaging platform communications. These are often the most problematic documents because they tend to be more informal and candid than email correspondence.
31. Internal NFA communications regarding scope changes, permitting, and field decisions. Communications among NFA personnel (not involving outside counsel) that address the disputed topics of scope changes, permitting responsibility, and field-level decision-making.
32. Calloway's communications with NFA legal team (Dominic Hale). These should be reviewed for privilege issues. Communications between Calloway and Hale (or other members of NTP's legal department) may be protected by attorney-client privilege, but the privilege must be properly asserted and the existence of the communications may be subject to inquiry.
G. Renata Voss Deposition Transcript
33. Voss deposition transcript (November 12–13, 2024). This transcript should be reviewed carefully for consistency points and for areas where Calloway's testimony may be tested against Voss's. Particular attention should be paid to Voss's testimony regarding: the cure notice decision-making process, her reliance on Calloway's field assessments, the NCR classification process, the allocation of permitting responsibilities, and her knowledge (or lack thereof) regarding in-sourcing discussions or market pricing analyses.
V. PRIVILEGE LANDMINES AND INSTRUCTION POINTS
A. Attorney-Client Privilege
Calloway, as a senior NFA employee directly involved in the cure notice and termination process, likely communicated with Dominic Hale (NTP General Counsel) and with Calderwood & Harkness attorneys regarding the cure notice strategy, the termination decision, and matters relating to this litigation. These communications are protected by the attorney-client privilege, and their substance must not be disclosed at deposition.
Calloway should be instructed as follows:
• If any question asks about the content, substance, or purpose of communications with legal counsel — whether Dominic Hale, other in-house attorneys, or Calderwood & Harkness attorneys — he should pause before answering to allow defending counsel to interpose an objection on privilege grounds.
• Calloway should not volunteer that he consulted with lawyers about particular decisions. If asked directly whether he sought legal advice in connection with the cure notices, termination decision, or any other matter, he may acknowledge that he sought legal advice but must not disclose the substance of the advice received. A simple acknowledgment such as "I consulted with our legal team" is appropriate; disclosing the content of that consultation is not.
• Defending counsel should be particularly alert to questions formulated as "who did you discuss this with" or "what input did you receive before making that decision" — these questions are often designed to e