PART ONE

PART ONE
SUBPOENA DUCES TECUM AND AD TESTIFICANDUM
TO NON-PARTY WITNESS FRANK DIBELLO
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK COMMERCIAL DIVISION
SUBPOENA DUCES TECUM AND AD TESTIFICANDUM TO NON-PARTY WITNESS FRANK DIBELLO
Issued Pursuant to CPLR § 3101(a)(4) and § 2303
TO:
Frank DiBello Chief Executive Officer Crestline Construction Group Inc. 8200 Greensboro Drive, Suite 900 McLean, Virginia 22102
ISSUED BY:
Calderwood & Harkness LLP Attorneys for Defendant Northgate Fiber Americas Inc. 425 Park Avenue, 33rd Floor New York, New York 10022 C&H Matter No. 1022-00005
COMMAND TO APPEAR FOR DEPOSITION TESTIMONY
YOU ARE HEREBY COMMANDED, pursuant to Article 31 of the New York Civil Practice Law and Rules ("CPLR"), including without limitation CPLR § 3101(a)(4), CPLR § 2303, and CPLR § 3107, to appear in person to give testimony upon oral examination (deposition) in the above-captioned action at the following date, time, and location:
Date: March 4, 2025
Time: 9:30 a.m.
Location: Offices of Calderwood & Harkness LLP, 425 Park Avenue, 33rd Floor, New York, New York 10022, or such other location as may be mutually agreed upon by the parties and the witness.
Estimated Duration: One full day (seven hours of testimony on the record), consistent with the applicable rules of the Commercial Division of the Supreme Court of the State of New York.
You are further advised that the required witness fee and mileage reimbursement have been tendered in connection with service of this Subpoena, in accordance with CPLR § 2303(a). The deposition will be recorded by stenographic means and may also be recorded by videographic means, in accordance with CPLR § 3113(b). You are required to remain in attendance until the examination is completed or you are otherwise excused.
COMMAND TO PRODUCE DOCUMENTS
YOU ARE FURTHER COMMANDED, pursuant to CPLR § 2303 and CPLR § 3120, to produce the documents and electronically stored information described in Schedule A attached hereto and incorporated herein by reference, subject to the Definitions and Instructions set forth in Schedule B attached hereto. Such production shall be made as follows:
Production Deadline: No later than February 18, 2025, which is fourteen (14) calendar days prior to the scheduled deposition date.
Production Format: Documents shall be produced in native electronic format where available. Where native electronic files are not available, documents shall be produced as single-page TIFF images accompanied by load files (including concordance/Sterling Reach Software .DAT and .OPT files) and extracted or OCR text, consistent with the Stipulated E-discovery Protocol filed by the parties in this action on October 1, 2024 (Dkt. No. 38).
Delivery: Production shall be delivered via secure upload to the Vantage Litigation Support LLC document hosting platform, located at 300 Vesey Street, Suite 600, New York, New York 10282 (upload credentials to be provided upon request), or by hand delivery to the offices of Calderwood & Harkness LLP at the address set forth above.
Your obligation to produce the documents described in Schedule A is a continuing obligation, and you are required to supplement your production promptly if additional responsive documents are identified at any time prior to the conclusion of this litigation.
SCHEDULE A
DOCUMENT REQUESTS
Request No. 1 — Replacement Contract and Related Agreements
All documents constituting, comprising, or relating to the complete executed contract between Crestline Construction Group Inc. ("Crestline") and Northgate Fiber Americas Inc. ("NFA") dated on or about June 10, 2024 (the "Replacement Contract"), including without limitation all exhibits, schedules, appendices, amendments, modifications, addenda, supplements, side letters, and letter agreements associated therewith. It is understood that the Replacement Contract has a stated contract price of approximately Seven Hundred Twelve Million Dollars ($712,000,000).
This Request further encompasses any master services agreement, task orders, work authorizations, supplemental work authorizations, change orders, or other contractual instruments entered into between Crestline and NFA in connection with, or arising out of, the subject matter of the Replacement Contract from the date of its execution through the date of compliance with this Subpoena.
Request No. 2 — Proposal, Bid, and Negotiation Documents
All documents constituting, comprising, or relating to the solicitation, procurement, proposal, bid, and negotiation process that led to the award and execution of the Replacement Contract, including without limitation:
(a) All requests for proposals ("RFPs"), invitations to bid, requests for qualifications ("RFQs"), and any other solicitation documents issued by NFA or its agents, representatives, consultants, or affiliates to Crestline in connection with the remaining scope of the Master Construction Agreement (the "MCA") originally awarded to Meridian Infrastructure Partners LLC ("Meridian");
(b) All proposals, bids, estimates, cost submissions, pricing submissions, technical submissions, and management submissions prepared by or on behalf of Crestline and submitted to NFA in connection with the procurement of the Replacement Contract, including all preliminary, draft, revised, and final versions thereof;
(c) All correspondence, emails, text messages, instant messages, meeting agendas, meeting minutes, meeting notes, memoranda, presentations, and other communications between Crestline (including its officers, directors, employees, agents, and representatives) and NFA (including its officers, directors, employees, agents, and representatives) during the period from approximately April 1, 2024 through and including June 10, 2024, relating to the negotiation, drafting, and finalization of the Replacement Contract.
Request No. 3 — Scope of Work Documents
All documents constituting, comprising, or relating to the scope of work to be performed by Crestline under the Replacement Contract, including without limitation:
(a) All scope of work descriptions, technical specifications, design drawings, engineering plans, route maps, route-mile breakdowns, segment descriptions, and milestone schedules incorporated into, referenced by, attached to, or otherwise associated with the Replacement Contract;
(b) All documents identifying, describing, or defining the scope of remaining work from the MCA to be assumed by Crestline, including without limitation the remaining work within Phase 2 (specifically, completion of Milestone 8) and the entirety of Phase 3 work (Milestones 9 through 14) across the seven-state project footprint encompassing New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia;
(c) Any documents, analyses, reports, memoranda, spreadsheets, or presentations comparing, contrasting, or reconciling the original scope of work under the MCA with the scope of work assumed by Crestline under the Replacement Contract, including any identification of scope additions, scope deletions, or scope modifications.
Request No. 4 — Pricing and Cost Breakdowns
All documents constituting, comprising, or relating to the pricing, cost estimation, and cost structure of the Replacement Contract, including without limitation:
(a) Detailed cost breakdowns, unit rate schedules, fixed-price milestone pricing, labor rates (by trade and classification), material costs (including fiber-optic cable, conduit, splice closures, handholes, and related materials), equipment costs, subcontractor pricing, overhead rates, general and administrative cost allocations, profit markups, contingency allowances, and bond and insurance cost components contained in, supporting, or otherwise relating to the Replacement Contract's total contract price of $712,000,000;
(b) Any cost comparison analyses, benchmarking studies, or other documents comparing the pricing of the Replacement Contract to the pricing structure and dollar amounts of the original MCA (total original contract price of approximately $1.2 billion; remaining unperformed value at the time of termination of approximately $630.3 million);
(c) Internal Crestline cost estimation models, estimating workbooks, pricing worksheets, assumption memoranda, risk assessments, and any other analytical tools or documents used to develop, refine, or validate Crestline's pricing proposal for the Replacement Contract.
Request No. 5 — Mobilization and Project Execution Documents
All documents constituting, comprising, or relating to the mobilization, project planning, and ongoing execution of work under the Replacement Contract, including without limitation:
(a) The project schedule and Critical Path Method ("CPM") schedule for the Replacement Contract, including the baseline schedule and all updates thereto, reflecting a thirty (30)-month contract term from the date of issuance of the Notice to Proceed, with an estimated completion date of approximately December 2026;
(b) All mobilization plans, staffing plans, resource allocation plans, equipment deployment plans, procurement plans, and subcontracting plans prepared in connection with the remaining scope of the fiber build-out program;
(c) All monthly progress reports, weekly status updates, milestone tracking reports, schedule updates, earned value analyses, cost reports, and any other periodic reports generated by or on behalf of Crestline in connection with the Replacement Contract from the date of contract execution (June 10, 2024) through the date of compliance with this Subpoena.
Request No. 6 — Communications Regarding Meridian's Work
All documents, communications, reports, assessments, analyses, and other materials relating to Meridian Infrastructure Partners LLC's prior work on the NFA fiber build-out program, including without limitation:
(a) Any evaluations, assessments, reports, or memoranda regarding the quality, completeness, conformity, or adequacy of work previously performed by Meridian under the MCA, including any identification of deficiencies, non-conformances, defects, or required remediation;
(b) All documents relating to Crestline's review, assessment, or analysis of the two hundred eighty-seven (287) non-conformance reports ("NCRs") issued during Meridian's performance under the MCA, including specifically the forty-three (43) NCRs classified as "critical" and the two hundred forty-four (244) NCRs classified as "non-critical";
(c) All survey reports, inspection reports, field assessment reports, photographic documentation, test results (including splice loss testing, conduit depth measurements, and route alignment verification), and other documentation generated by Crestline or its agents, subcontractors, or consultants in connection with any inspection, survey, or assessment of work previously performed by Meridian.
Request No. 7 — Remediation and Rework
All documents constituting, comprising, or relating to remediation, correction, rework, or replacement of defective or non-conforming work originally performed by Meridian under the MCA, including without limitation:
(a) All cost estimates, budgets, actual cost records, invoices, and payment records relating to remediation work, including scope descriptions, task breakdowns, labor and material costs, and completion status for each remediation item or category;
(b) All change orders, field directives, construction change directives, supplemental work authorizations, or other contractual modifications issued under the Replacement Contract that are attributable, in whole or in part, to the correction, remediation, or replacement of work originally performed by Meridian;
(c) All correspondence, emails, and other communications between Crestline and NFA regarding the scope, cost, schedule, and status of remediation efforts related to Meridian's defective work.
Request No. 8 — Crestline's Qualifications and Experience
All documents constituting, comprising, or relating to Crestline's qualifications, experience, and capabilities as presented to NFA in connection with the procurement of the Replacement Contract, including without limitation:
(a) Company overviews, capability statements, corporate brochures, and project experience summaries provided to NFA during the solicitation and proposal process;
(b) Resumes, curriculum vitae, and qualifications summaries for key Crestline personnel assigned to the NFA fiber build-out program, including project managers, construction managers, quality assurance/quality control managers, and other senior project staff;
(c) Documentation of prior fiber-optic construction projects completed by Crestline of comparable scope and scale, including project descriptions, contract values, route mileage, geographic coverage, schedule performance, and client references.
Request No. 9 — Communications with Third Parties
All documents constituting, comprising, or relating to communications between Crestline and certain identified third parties concerning the NFA fiber build-out program, including without limitation:
(a) Any and all communications between Crestline (including its officers, directors, employees, agents, and representatives) and Meridian Infrastructure Partners LLC or any of Meridian's subcontractors regarding the NFA fiber build-out program, Meridian's work under the MCA, or the transition of work from Meridian to Crestline;
(b) Any and all communications between Crestline and Ironclad Surety Group Inc. regarding Performance Bond No. ISG-2020-NE-04417, Meridian's prior work, or any claim or potential claim under the bond;
(c) Any and all communications between Crestline and municipal, county, state, or other governmental permitting authorities in the seven-state project footprint (New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia) regarding permits, licenses, rights-of-way, or other governmental approvals initially associated with the MCA or required for Crestline's performance under the Replacement Contract.
Request No. 10 — Insurance and Bonding
All documents constituting, comprising, or relating to insurance coverage and performance security provided by Crestline in connection with the Replacement Contract, including without limitation:
(a) All certificates of insurance, insurance policies, insurance endorsements, and binders reflecting commercial general liability, professional liability, workers' compensation, and any other insurance coverages obtained by Crestline as required by or in connection with the Replacement Contract;
(b) All performance bond documentation, payment bond documentation, letters of credit, or other forms of performance security furnished by Crestline to NFA under the Replacement Contract;
(c) Any documents reflecting the premium cost, bonding capacity analysis, or financial underwriting associated with Crestline's procurement of performance security for the remaining scope of the fiber build-out program.
SCHEDULE B
DEFINITIONS AND INSTRUCTIONS
Definitions.  For purposes of this Subpoena and the Document Requests set forth in Schedule A, the following definitions shall apply:
1.  "Document" or "documents" means the broadest definition permitted under CPLR § 3120 and includes, without limitation, all writings, recordings, photographs, electronically stored information ("ESI"), and tangible things, regardless of form or medium, including but not limited to paper documents, electronic files (including emails, text messages, instant messages, voicemails, spreadsheets, word processing files, presentation files, database records, and any other form of ESI), handwritten notes, memoranda, letters, facsimiles, reports, analyses, charts, graphs, maps, drawings, plans, specifications, schedules, calendars, diaries, logs, minutes, agendas, tape recordings, video recordings, photographs, and metadata associated with any of the foregoing.
2.  "Communication" or "communications" means any transmission or exchange of information, ideas, or data between two or more persons, whether oral, written, or electronic, including without limitation conversations, discussions, meetings, telephone calls, videoconferences, emails, text messages, instant messages, letters, memoranda, and any other form of correspondence or interchange.
3.  "Relating to" or "related to" means referring to, concerning, pertaining to, describing, evidencing, constituting, reflecting, mentioning, supporting, contradicting, or having any logical connection with the subject matter specified.
4.  "You" or "your" means Frank DiBello and Crestline Construction Group Inc., including their respective officers, directors, employees, agents, representatives, consultants, subcontractors, attorneys (to the extent communications are not privileged), and any other person or entity acting on their behalf.
5.  "NFA" means Northgate Fiber Americas Inc. and its officers, directors, employees, agents, representatives, consultants, and affiliates.
6.  "Meridian" means Meridian Infrastructure Partners LLC and its officers, directors, employees, agents, representatives, consultants, and subcontractors.
7.  "MCA" means the Master Construction Agreement dated March 15, 2020, between Meridian and NFA, including all exhibits, schedules, amendments, and modifications thereto.
8.  "Replacement Contract" means the construction contract dated on or about June 10, 2024, between Crestline and NFA, including all exhibits, schedules, amendments, and modifications thereto.
Instructions.  
1.  Date Range: Unless otherwise specified in a particular Document Request, the relevant time period for all Requests is from January 1, 2024 through the date of compliance with this Subpoena.
2.  Preservation Obligation: You are instructed to preserve all documents, communications, and electronically stored information responsive or potentially responsive to the Document Requests set forth in Schedule A, and to take all reasonable steps to prevent the destruction, alteration, deletion, or loss of any such materials, pending the conclusion of this litigation. This instruction supersedes any document retention or destruction policies that might otherwise apply to such materials.
3.  Privilege Log: If you withhold any document responsive to the Document Requests on the ground of attorney-client privilege, work product protection, or any other applicable privilege or immunity, you must provide a privilege log identifying each such document with sufficient detail to permit the requesting party and the Court to assess the applicability of the claimed privilege, consistent with the Court's discovery Order dated October 1, 2024 (Dkt. No. 38). The privilege log shall include, at a minimum, the date of the document, the author, all recipients, the general subject matter, and the specific privilege or protection asserted.
4.  Document Numbering: All produced documents shall bear unique Bates numbers in a sequential format to be agreed upon between the producing and requesting parties, or in the format CRESTLINE-000001 and continuing sequentially.
5.  Identification of Custodians: Documents produced in response to this Subpoena shall be identified by custodian or source to the extent practicable.
RIGHTS AND OBLIGATIONS OF THE WITNESS
Pursuant to CPLR § 2304, you have the right to move to quash or modify this Subpoena on the grounds that it is unreasonable, oppressive, or seeks privileged or otherwise protected materials. Any motion to quash or modify must be made promptly and in compliance with the applicable provisions of the CPLR.
The reasonable expenses of compliance with this Subpoena, including the cost of reproducing documents and the reasonable cost of any third-party vendor services required for document production, shall be borne by the issuing party, Northgate Fiber Americas Inc., in accordance with CPLR § 3122(d). To arrange for reimbursement of such expenses, or for any questions regarding this Subpoena, please contact:
Jeffrey Park, Esq. Calderwood & Harkness LLP 425 Park Avenue, 33rd Floor New York, New York 10022 Telephone: (212) 555-4800
Email: j.park@calderwoodharkness.com
FAILURE TO COMPLY
Failure to comply with this Subpoena may subject you to penalties under CPLR § 2308, including contempt of court.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Linda Osei, Partner Attorneys for Defendant Northgate Fiber Americas Inc. 425 Park Avenue, 33rd Floor New York, New York 10022 Telephone: (212) 555-4800 Facsimile: (212) 555-4801
Email: l.osei@calderwoodharkness.com
Dated: _____, 2025 New York, New York
CERTIFICATE OF SERVICE
I, Jeffrey Park, an attorney admitted to practice before the courts of the State of New York and an associate at Calderwood & Harkness LLP, hereby certify that on the date set forth below, a true and correct copy of the foregoing Subpoena Duces Tecum and Ad Testificandum to Non-Party Witness Frank DiBello, together with the attached Schedule A and Schedule B, was served upon the following:
1.  Frank DiBello, Chief Executive Officer, Crestline Construction Group Inc., 8200 Greensboro Drive, Suite 900, McLean, Virginia 22102 — by personal service and/or by overnight express delivery, together with the witness fee and mileage reimbursement required under CPLR § 2303(a).
2.  Thomas Deluca, Esq., Hargrove, Deluca & Stein LLP, Attorneys for Plaintiff Meridian Infrastructure Partners LLC, 51 West 52nd Street, 40th Floor, New York, New York 10019 — by electronic service and by first-class mail, postage prepaid, in accordance with CPLR § 3101(a)(4) notice requirements.
________________________________________
Jeffrey Park Calderwood & Harkness LLP 425 Park Avenue, 33rd Floor New York, New York 10022
Dated: _____, 2025
PART TWO
DEPOSITION OUTLINE
CROSS-EXAMINATION OF FRANK DIBELLO
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT This memorandum is protected from disclosure by the attorney work product doctrine and is not subject to discovery. This memorandum reflects the mental impressions, conclusions, opinions, and legal theories of counsel for Northgate Fiber Americas Inc. and has been prepared in anticipation of litigation. Distribution is restricted to attorneys and authorized personnel of Calderwood & Harkness LLP engaged in the representation of Northgate Fiber Americas Inc. in the above-captioned action.
EXAMINATION OBJECTIVES.  The primary objectives of the examination of Frank DiBello are threefold:
1.  Support Counterclaim II (Excess Completion Costs — $81.7 Million): Elicit testimony establishing that the $712 million Replacement Contract price is reasonable and competitive under prevailing 2024 market conditions, that the scope of the Replacement Contract is substantially the same as the remaining unperformed scope under the MCA, and that the $81.7 million cost differential ($712M minus $630.3M remaining MCA value) is attributable to factors caused by or resulting from Meridian's breach — including accelerated mobilization, construction cost inflation since 2020, labor market tightness, material cost escalation, the need to remediate defective work, and the risk premium inherent in assuming a partially completed project from a terminated contractor.
2.  Support Counterclaim III (Remediation Costs — $18.3 Million): Elicit testimony corroborating the scope and cost of remediation of Meridian's defective work, validating the reasonableness of the per-NCR remediation cost estimates, and confirming that remediation was necessary before Crestline could proceed with new construction on affected segments.
3.  Establish Reasonableness of Termination Decision and Rebut Pretext Theory: Elicit testimony demonstrating that Northgate's decision to terminate Meridian and re-procure was a commercially reasonable response to Meridian's material breaches, and directly rebut Meridian's theory that the termination was pretextual — specifically by establishing that the Replacement Contract is more expensive (not less expensive) than the remaining MCA value, thereby negating any inference that Northgate terminated to save money.
Note: DiBello is a friendly but non-party witness. The examination should be factual and documentary in character, not advocacy-oriented. DiBello should be allowed to testify in a straightforward manner based on his personal knowledge and the documentary record. However, because plaintiff's counsel (Thomas Deluca and Miriam Vasquez of Hargrove, Deluca & Stein LLP) will have the opportunity to cross-examine DiBello, this outline includes preparation for anticipated adverse questioning.
I. BACKGROUND AND QUALIFICATIONS OF THE WITNESS
A. Personal and Professional Background
The opening section of the examination should establish DiBello's credentials and position. This is foundational and should be conducted efficiently but thoroughly, as it will be important for the record — particularly if DiBello's deposition testimony is later designated for use at trial, where the jury or the court will need to understand why this witness's opinions on construction quality, pricing, and scope have probative value.
Questioning Areas:
1.  State your full name for the record.
2.  What is your current title and position?
3.  What is Crestline Construction Group Inc.? Please describe the company's business, including its principal areas of expertise and its core services.
4.  Where is Crestline's principal office located? Does the company maintain offices in any other locations?
5.  Is Crestline incorporated in Virginia? When was the company founded?
6.  Please describe your educational background, including any relevant degrees, certifications, or professional licenses.
7.  How many years have you worked in the telecommunications and fiber-optic infrastructure construction industry?
8.  Please describe your career history, including any prior roles at other companies in the industry before joining Crestline.
9.  When did you become CEO of Crestline, and what was your role before assuming that position?
10.  Approximately how many employees does Crestline currently have?
11.  What is Crestline's approximate annual revenue?
12.  In what geographic regions does Crestline primarily operate?
B. Crestline's Relevant Experience
This section establishes Crestline's credibility as a replacement contractor — that Crestline is a sophisticated, experienced firm with the qualifications necessary to assess the quality of Meridian's work and to complete the remaining scope. This is particularly important for establishing the foundation for DiBello's opinions regarding the condition of Meridian's work and the reasonableness of Crestline's pricing.
Questioning Areas:
1.  Has Crestline previously performed fiber-optic construction projects of comparable scale to the Northgate fiber build-out program? If so, please describe those projects, including the approximate route miles, contract value, geographic scope, and the identity of the owner or client (to the extent not confidential).
2.  Has Crestline performed fiber-optic construction work in the northeastern United States? Specifically, has Crestline performed work in any of the seven states covered by the Northgate fiber build-out program — New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia?
3.  Is Crestline familiar with the ANSI/TIA-568 standards for fiber-optic cabling? Does Crestline's workforce regularly perform work to those standards?
4.  Is Crestline familiar with the Building Industry Consulting Service International ("BICSI") guidelines for telecommunications infrastructure construction?
5.  Prior to submitting Crestline's proposal to NFA, did you or anyone at Crestline review the Northgate Technical Specification NS-FIBER-2020? When did you first review that document?
6.  Based on your review of NS-FIBER-2020, were the technical requirements in that specification consistent with industry standards that Crestline regularly works to, or did they impose requirements that were unusual, unreasonable, or difficult to achieve?
7.  Has Crestline ever assumed responsibility for completing a construction project that was previously being performed by another contractor? If so, please describe the circumstances of any such project.
II. PROCUREMENT AND AWARD OF THE REPLACEMENT CONTRACT
A. Initial Contact and Solicitation
This section establishes the timeline and nature of the procurement process that led to the Replacement Contract, and is important for several reasons: (1) it demonstrates the commercial reasonableness of NFA's procurement approach; (2) it establishes whether the procurement was competitive; and (3) it sets up the due diligence testimony in the following section.
Questioning Areas:
1.  When did Crestline first learn that NFA was seeking a contractor to complete the remaining scope of the fiber build-out program? Please identify the approximate date or time frame.
2.  How did Crestline learn of this opportunity? Was Crestline contacted directly by NFA, or did Crestline learn of the opportunity through another channel?
3.  Who at NFA first contacted Crestline? Was it Renata Voss, Sean Calloway, or another NFA representative?
4.  Did NFA issue a formal competitive solicitation — such as a request for proposals or an invitation to bid — or was the Replacement Contract sole-sourced to Crestline?
5.  To your knowledge, were other contractors invited to bid on or considered for the remaining scope? If so, how many other contractors were involved, and can you identify any of them?
6.  Please describe the timeline of the procurement process, from initial contact through the execution of the Replacement Contract on June 10, 2024. What were the major milestones or phases of the process?
7.  Approximately how long did the negotiation process take from the point of initial contact to execution?
8.  Who were the principal NFA contacts during the procurement and negotiation process? Were you personally involved in the negotiations, or were other Crestline personnel the primary points of contact?
B. Due Diligence on Existing Work
This is a critical section of the examination. DiBello's testimony regarding the due diligence Crestline conducted before contracting with NFA is essential for two purposes: (1) it establishes the factual foundation for Crestline's assessment of Meridian's work quality (supporting Counterclaim III), and (2) it demonstrates that Crestline's pricing accounted for known risks and defects, which is relevant to the reasonableness analysis under Counterclaim II.
Questioning Areas:
1.  Before submitting its proposal to NFA, did Crestline conduct due diligence on the work that Meridian had previously performed under the MCA?
2.  Please describe the scope and nature of that due diligence process. What steps did Crestline take to assess the condition and quality of Meridian's completed and partially completed work?
3.  Was Crestline provided access to the non-conformance reports that had been issued during Meridian's performance? Specifically, was Crestline provided the two hundred eighty-seven (287) NCRs, including the forty-three (43) classified as critical and the two hundred forty-four (244) classified as non-critical?
4.  Did Crestline review Meridian's project records, including progress reports, inspection reports, test results, and quality assurance/quality control documentation?
5.  Did Crestline conduct site visits, physical inspections, or field surveys to assess the condition of work in place? If so, how many site visits were conducted, what geographic areas were covered, and who from Crestline participated?
6.  Were any independent testing or verification activities performed by Crestline or its consultants during the due diligence process — for example, splice loss testing, conduit depth verification, or route alignment surveys?
7.  Please describe Crestline's findings from its due diligence regarding the quality and condition of Meridian's work. In general terms, what did Crestline observe?
8.  Did Crestline identify specific defects or deficiencies in Meridian's work? If so, can you describe the categories of defects that were identified?
9.  Were the defects that Crestline identified consistent with the types of non-conformances documented in the NCRs — including splice loss values exceeding specification, improper conduit installation depth, and unauthorized route deviations?
10.  Were the defects concentrated in particular geographic areas, or were they distributed across the project footprint?
11.  Based on Crestline's due diligence, did Crestline conclude that remediation of Meridian's defective work was necessary before Crestline could proceed with the remaining scope of new construction?
12.  At the time of contracting, what was Crestline's estimate of the scope of remediation that would be required? How does that estimate compare to Northgate's $18.3 million remediation cost estimate?
C. Crestline's Assessment of Meridian's Work Quality
This section follows directly from the due diligence discussion and presses for more specific testimony about the nature and extent of the defects in Meridian's work. The goal is to elicit testimony from a credible, independent industry professional (DiBello) that corroborates NFA's position regarding the severity of Meridian's quality failures.
Questioning Areas:
1.  Based on your due diligence and your professional experience in the fiber-optic construction industry, how would you characterize the overall quality of Meridian's work on this project?
2.  Did Crestline identify work that did not conform to the requirements of Northgate Technical Specification NS-FIBER-2020?
3.  Did Crestline identify work that did not conform to the applicable ANSI/TIA-568 standards or BICSI guidelines?
4.  Were there instances where splice loss values exceeded the maximum thresholds specified in NS-FIBER-2020? If so, approximately how many such instances were identified during Crestline's assessment?
5.  Were there instances where conduit had been installed at improper depths — either too shallow or otherwise non-compliant with the applicable specifications? Can you describe the nature and extent of those deficiencies?
6.  Were there instances where the fiber-optic cable had been installed along routes that deviated from the approved design without authorization? Can you describe those deviations?
7.  In your professional opinion, was remediation of these defects necessary before Crestline could proceed with new construction on the affected segments? Why or why not?
8.  If Crestline had not remediated the defects in Meridian's work, what would be the consequence for the overall integrity and performance of the completed fiber network?
9.  At the time of contracting, what was Crestline's estimate of the remediation scope? Specifically, how many of the 287 NCRs did Crestline determine required active remediation, and what was the estimated cost of that remediation?
10.  How does Crestline's estimate compare to Northgate's engineering assessment, which estimated total remediation costs of approximately $18.3 million — based on 43 critical NCRs at an average cost of $275,000 each and 244 non-critical NCRs at an average cost of $26,500 each?
III. TERMS OF THE REPLACEMENT CONTRACT
A. Scope of Work
This section establishes that the scope of work under the Replacement Contract is substantially the same as the remaining unperformed scope under the MCA. This is essential for the excess completion cost analysis — if Meridian argues that the $81.7 million differential reflects new or additional scope, the testimony in this section is the primary rebuttal.
Questioning Areas:
1.  Please describe the complete scope of work that Crestline assumed under the Replacement Contract.
2.  Does the scope include the remaining Phase 2 work — specifically, the completion of Milestone 8?
3.  Does the scope include the entirety of Phase 3 — Milestones 9 through 14?
4.  How many total route miles are within Crestline's scope under the Replacement Contract?
5.  Is it approximately 9,360 route miles — calculated as the total 18,500 route miles in the program minus the approximately 9,140 route miles that had been completed by Meridian?
6.  Which states are covered by Crestline's scope? Is it accurate that the scope covers the continuation of Phase 2 work in Connecticut, Massachusetts, and Pennsylvania, and the Phase 3 work in Maryland, Virginia, and eastern Pennsylvania?
7.  Is the scope of work under the Replacement Contract substantially the same as the remaining unperformed scope under the MCA at the time of Meridian's termination?
8.  Are there any material scope additions in the Replacement Contract — that is, work items that were not part of the original MCA scope?
9.  Are there any material scope deletions — work items that were in the original MCA scope but are not included in the Replacement Contract?
10.  Does the Replacement Contract include remediation of Meridian's defective work within the scope, or is remediation treated as a separate work category or cost line within the contract?
11.  If remediation is a separate cost line, what is the estimated value of the remediation portion of the contract?
B. Contract Price — $712 Million
This is the most important section for Counterclaim II. The goal is to establish the $712 million contract price, its components, and the factors that explain the $81.7 million excess over the remaining MCA value — and to elicit DiBello's testimony that this price is reasonable and competitive.
Questioning Areas:
1.  What is the total contract price of the Replacement Contract?
2.  The total contract price is $712,000,000 — is that correct?
3.  How is the $712 million structured? Is it a combination of fixed-price milestones and unit-rate pricing, similar to the structure of the original MCA?
4.  Under the original MCA, the pricing was approximately 65% fixed-price and 35% unit-rate, applied to a total contract price of approximately $1.2 billion. Is the Replacement Contract structured similarly, or is the mix different?
5.  Can you describe, in general terms, how Crestline arrived at the $712 million contract price? What were the principal cost drivers?
6.  Does the $712 million include a premium attributable to the accelerated schedule — that is, the need to complete the remaining scope in 30 months rather than on a pace consistent with the remainder of the original MCA term?
7.  Does the $712 million include costs attributable to the remediation of Meridian's defective work?
8.  Does the $712 million reflect the increased cost of construction labor and materials in 2024 compared to the 2020 market conditions that prevailed when the original MCA was priced?
9.  Does the $712 million include a risk premium associated with assuming a partially completed project from a terminated contractor? If so, can you describe the nature of that risk and how it was quantified?
10.  Does the $712 million include costs for subcontractor re-procurement — that is, the cost of identifying, qualifying, and contracting with subcontractors to replace those that had been working under Meridian?
11.  Are you aware that the remaining unperformed value under the MCA at the time of Meridian's termination was approximately $630.3 million?
12.  The difference between the Replacement Contract price ($712 million) and the remaining MCA value ($630.3 million) is approximately $81.7 million. Is that calculation consistent with your understanding?
13.  In your professional opinion, is the $712 million contract price reasonable and competitive for the scope of work, schedule, and market conditions at the time the Replacement Contract was negotiated?
14.  Did Crestline receive any indication from NFA, or from any other source, that NFA received other bids or quotes for this work? If so, does Crestline's pricing compare favorably to those other bids?
15.  Did Crestline offer any discount or pricing concession to NFA reflecting the relationship between the parties, or was the $712 million an arms-length, market-based price?
16.  Is any portion of the $712 million attributable to scope additions beyond the remaining MCA scope — that is, new work that was not in the original MCA?
C. Contract Term and Schedule
Questioning Areas:
1.  What is the contract term of the Replacement Contract?
2.  Is it correct that the contract term is 30 months from the date of the Notice to Proceed?
3.  When was the Notice to Proceed issued?
4.  Based on the 30-month term, what is the estimated completion date? Is it approximately December 2026?
5.  How many milestones are in the Replacement Contract's milestone schedule? What are the key interim deadlines?
6.  Is the 30-month term compressed relative to the time that would have remained under the original MCA schedule? In other words, if Meridian had been on schedule at the time of termination, how much time would have remained to complete the same scope?
7.  To what extent has the compressed schedule impacted Crestline's pricing? Does the acceleration premium represent a meaningful component of the $712 million contract price?
8.  Has Crestline developed a Critical Path Method schedule for the Replacement Contract? If so, has that schedule been provided to NFA and is it being actively maintained and updated?
D. Key Commercial Terms
Questioning Areas:
1.  What are the payment terms under the Replacement Contract? Are payments made on a progress basis — i.e., monthly progress payments based on the percentage of work completed?
2.  Is retainage withheld? If so, what is the retainage percentage?
3.  Does the Replacement Contract include liquidated damages provisions for late completion? If so, what is the daily or periodic liquidated damages amount?
4.  Has Crestline posted a performance bond or other form of performance security under the Replacement Contract? If so, who is the surety, and what is the bond amount?
5.  What are the change order provisions under the Replacement Contract? How are changes to the scope, schedule, or price processed?
6.  Does the Replacement Contract include termination provisions? Under what circumstances can NFA terminate the Replacement Contract?
7.  Does the Replacement Contract include any indemnification obligations running from Crestline to NFA, or from NFA to Crestline?
8.  Are there any provisions in the Replacement Contract that give Crestline a financial interest in the outcome of this litigation — for example, contingent pricing, success fees, or indemnification obligations triggered by the resolution of Meridian's claims?
IV. EXCESS COMPLETION COSTS — SUPPORT FOR COUNTERCLAIM II ($81.7 MILLION)
A. Reasonableness of Cost Differential
This is the core section for Counterclaim II. The $81.7 million excess completion cost claim requires proof that the differential between the Replacement Contract price and the remaining MCA value was reasonable and attributable to Meridian's breach. DiBello's testimony is critical because he can speak from personal knowledge about the specific factors that drove Crestline's pricing and, by extension, the excess cost.
Questioning Areas:
1.  You have testified that the Replacement Contract price is $712 million and that the remaining unperformed value under the MCA was approximately $630.3 million. The difference — $81.7 million — represents the excess completion cost that NFA has claimed against Meridian. Are you generally familiar with that claim?
2.  In your professional opinion, what are the principal factors that contribute to the $81.7 million cost differential between the Replacement Contract and the remaining MCA value?
3.  Let me ask you about each factor individually:
(a) Accelerated mobilization and compressed schedule: Did the need to mobilize rapidly and complete the remaining scope in 30 months contribute to a higher contract price? If so, can you quantify the approximate impact?
(b) Construction cost inflation: Have construction costs — including labor, materials, equipment, and subcontractor pricing — increased between 2020 (when the MCA was priced) and 2024 (when the Replacement Contract was priced)? In your experience, what has been the approximate rate of inflation in fiber-optic construction costs during that period?
(c) Labor market conditions: Has the labor market for qualified fiber-optic construction crews in the northeastern United States been tight during 2024? Has it been difficult or more expensive to recruit and retain qualified personnel?
(d) Material cost increases: Have the costs of fiber-optic cable, conduit, splice closures, handholes, and other construction materials increased between 2020 and 2024?
(e) Remediation of Meridian's defective work: Does the need to remediate Meridian's defective work contribute to the cost differential? Is the cost of remediation included in the $712 million?
(f) Risk premium: Has Crestline included a risk premium in its pricing to account for the inherent risks of assuming a partially completed project from a terminated contractor? If so, what types of risks does that premium address?
(g) Subcontractor re-procurement: Has the need to identify, qualify, negotiate with, and contract with new subcontractors contributed to higher costs? Was Crestline able to retain any of Meridian's former subcontractors, or did Crestline need to establish entirely new subcontractor relationships?
4.  Did Crestline offer NFA any discount or concession that reduced the contract price below what Crestline would otherwise have charged? Or is the $712 million the full, market-based price?
5.  Is any portion of the $712 million attributable to scope additions — that is, new work items that were not part of the original MCA? Please confirm for the record that the scope under the Replacement Contract is substantially the same as the remaining unperformed scope under the MCA.
B. Market Conditions and Benchmarking
Questioning Areas:
1.  What are the prevailing market rates for fiber-optic construction in the northeastern United States in 2024? How do those rates compare to the rates that prevailed in 2020 when the MCA was executed?
2.  Does Crestline have access to data or information regarding competitor pricing for fiber-optic construction projects of comparable scope and scale? If so, how does Crestline's $712 million contract price compare?
3.  What are the current industry conditions for fiber-optic construction? Is demand for fiber construction services high, low, or moderate relative to historical norms?
4.  What is the current availability of skilled fiber-optic construction labor in the northeastern US? Would you characterize the labor market as tight?
5.  What are the current supply chain conditions for fiber-optic cable, conduit, and related construction materials? Are there supply constraints or lead-time issues that affect pricing?
6.  Based on your industry knowledge and experience, do you believe that the $712 million contract price is within the range of what a qualified, reputable contractor would charge for this scope of work under current market conditions?
C. Cost Incurred to Date
Questioning Areas:
1.  Since the Replacement Contract was executed on June 10, 2024, approximately nine months have elapsed as of this deposition. How much progress has Crestline made under the contract during that period?
2.  How many route miles has Crestline completed to date?
3.  Is Crestline's work progressing on schedule relative to the CPM schedule and milestone deadlines?
4.  Are actual costs tracking to the $712 million budget, or are costs trending higher or lower than originally estimated?
5.  Have any change orders been issued under the Replacement Contract since execution? If so, how many, and what is their cumulative impact on the total contract price?
6.  What is the current total adjusted contract price after any change orders?
V. REMEDIATION OF MERIDIAN'S DEFECTIVE WORK — SUPPORT FOR COUNTERCLAIM III ($18.3 MILLION)
A. Scope of Remediation Required
Questioning Areas:
1.  Has Crestline undertaken remediation of defective work originally performed by Meridian?
2.  Based on Crestline's assessment, how many of the 287 NCRs required active remediation before Crestline could proceed with new construction?
3.  Of the 43 critical NCRs, how many required remediation? Can you describe the types of remediation required for the critical NCRs?
4.  Of the 244 non-critical NCRs, how many required remediation? Can you describe the types of remediation required for the non-critical NCRs?
5.  What were the principal categories of defects that required remediation? Were they primarily related to:
(a) Splice loss values exceeding the maximum thresholds specified in NS-FIBER-2020;
(b) Conduit installed at improper depths, below the minimum burial depth requirements;
(c) Unauthorized route deviations — fiber installed along routes that did not conform to the approved design;
(d) Other categories of defects? If so, please describe.
6.  Were the defects concentrated in particular geographic areas, or were they distributed broadly across the Phase 1 and Phase 2 footprint?
7.  Were there concentrations of defective work in the New York Metro / Northern New Jersey area (Phase 1), or in Connecticut, Western Massachusetts, and Southern Pennsylvania (Phase 2)?
B. Remediation Costs
Questioning Areas:
1.  What are the actual remediation costs that Crestline has incurred to date?
2.  Are remediation costs being tracked separately from new construction costs under the Replacement Contract? If so, what accounting or cost-coding methodology is being used to distinguish remediation costs from new construction costs?
3.  Based on actual costs incurred and Crestline's current estimates for the remaining remediation work, what is Crestline's total estimated remediation cost?
4.  How does that total compare to Northgate's engineering assessment, which estimated total remediation costs of approximately $18.3 million — broken down as follows:
(a) 43 critical NCRs at an average remediation cost of $275,000 per NCR = approximately $11.825 million;
(b) 244 non-critical NCRs at an average remediation cost of $26,500 per NCR = approximately $6.466 million.
5.  In your professional opinion, are those per-NCR average remediation cost estimates — $275,000 for critical NCRs and $26,500 for non-critical NCRs — reasonable? Do they accurately reflect the actual cost of remediation that Crestline has experienced?
6.  Has Crestline discovered any additional defects in Meridian's work beyond the 287 NCRs that were originally documented by Northgate? If so, how many additional defects have been identified, and what is the estimated cost of remediating those additional defects?
7.  Are the costs of remediating these additional defects included in the $18.3 million estimate, or do they represent additional remediation costs above and beyond the original estimate?
C. Impact of Defective Work on Project Schedule
Questioning Areas:
1.  Have the remediation activities impacted Crestline's schedule for new construction? In other words, has the need to remediate Meridian's defective work caused any delays to Crestline's progress on the remaining scope?
2.  Have any milestones under the Replacement Contract been delayed as a result of remediation activities?
3.  Has Crestline been required to sequence its work differently than originally planned because of the need to remediate Meridian's defective work before proceeding with new construction on certain segments?
4.  If remediation has caused schedule impacts, does Crestline expect to recover the lost time, or is there a risk that the project completion date (December 2026) may need to be extended?
VI. MERIDIAN'S DELAY AND PERFORMANCE — CORROBORATING DEFENSE NARRATIVE
A. Industry Perspective on Meridian's Performance
This section seeks DiBello's perspective as an experienced industry participant on whether Meridian's performance was consistent with what would be expected of a qualified contractor. Because DiBello is a non-party witness, his observations carry significant weight — they are not the self-serving assessments of a party to the litigation, but the independent views of an experienced professional who has evaluated the work firsthand.
Questioning Areas:
1.  Before receiving the solicitation from NFA, did you or anyone at Crestline have any prior knowledge of or experience with Meridian Infrastructure Partners LLC?
2.  Does Meridian have a reputation in the industry with respect to construction quality or schedule adherence? If so, what is that reputation?
3.  During Crestline's assessment of the project, did Crestline encounter evidence of Meridian's schedule delays? For example, did Crestline observe milestones that were supposed to have been completed but were not, or segments that were only partially constructed?
4.  At the time of termination, Meridian had completed approximately 9,140 of 18,500 total route miles — or approximately 49.4% of the total scope — after nearly four years of performance under a five-year contract. Based on your industry experience, is that level of progress consistent with adequate performance by a qualified contractor?
5.  In your experience, what would you expect the completion percentage to be at the four-year mark of a five-year fiber construction project of this scale?
6.  Based on your assessment of the project at the time Crestline was brought in, did it appear that Meridian would have been able to complete the remaining scope within the original MCA timeframe?
B. Permitting and Force Majeure — Rebuttal Points
This section is designed to elicit testimony that undermines Meridian's anticipated defenses — specifically, its claims that schedule delays were attributable to municipal permitting difficulties and COVID-19 aftereffect supply chain and labor disruptions. If Crestline has been able to obtain permits and secure labor and materials in the same geographic footprint under the same market conditions, that testimony directly rebuts Meridian's excuses.
Questioning Areas:
1.  Has Crestline been required to obtain municipal permits, rights-of-way, and other governmental approvals in the same seven-state footprint as the original MCA?
2.  Has municipal permitting been a significant impediment to Crestline's progress on the Replacement Contract?
3.  Has Crestline experienced significant delays in obtaining permits from any particular municipalities or jurisdictions? If so, were those delays of a magnitude that would cause substantial schedule impact?
4.  Has Crestline experienced any of the COVID-19 aftereffect labor shortages or supply chain disruptions that Meridian cited as force majeure events during its performance under the MCA?
5.  Has Crestline been able to recruit and retain adequate labor for the project despite the market conditions in 2024?
6.  Has Crestline been able to procure fiber-optic cable, conduit, and other construction materials in adequate quantities and within acceptable lead times?
7.  In your experience, are the permitting and supply chain conditions in 2024 comparable to, better than, or worse than the conditions that prevailed during Meridian's period of performance (2020–2024)?
VII. NORTHGATE'S DECISION TO TERMINATE AND RE-PROCURE — REBUTTAL OF PRETEXT THEORY
A. Crestline's Understanding of Termination Rationale
Meridian's central theory in this litigation is that NFA's termination of the MCA was pretextual — that NFA terminated not because of Meridian's material breaches, but for some other undisclosed reason. DiBello's testimony is useful here because Crestline had direct communications with NFA during the procurement process, and those communications may shed light on NFA's stated reasons for the termination.
Questioning Areas:
1.  During the procurement process, did NFA communicate to Crestline the reasons why Meridian's contract had been terminated?
2.  What did NFA tell Crestline about the circumstances of Meridian's termination?
3.  Did you understand the termination to have been based on Meridian's schedule delays and quality failures — in other words, a termination for material breach?
4.  Did any NFA representative suggest to you that the termination was motivated by a desire to bring construction work in-house, to re-procure at a lower cost, or for any reason other than Meridian's performance failures?
5.  Based on your communications with NFA during the procurement process and your own assessment of the project, did the termination appear to you to have been a reasonable response to the condition of the project at the time?
B. Pricing Context — Rebuttal of "Lower Cost" Theory
This section goes directly to the heart of Meridian's pretext argument. If Meridian argues that NFA terminated to save money, DiBello can testify to the obvious rebuttal: the Replacement Contract costs $81.7 million more than the remaining MCA value. No rational owner would terminate a performing contractor and re-procure at significantly higher cost.
Questioning Areas:
1.  The Replacement Contract price is $712 million. The remaining unperformed value under the MCA was approximately $630.3 million. The Replacement Contract is therefore approximately $81.7 million more expensive than the remaining MCA value. Is that correct?
2.  In your experience in the construction industry, does a project owner typically terminate a performing contractor and replace that contractor with a more expensive one? Under what circumstances would an owner incur excess completion costs of that magnitude?
3.  Based on your involvement in this project, do you believe that any reasonable owner would terminate a contractor who was performing adequately and then pay $81.7 million more for the same scope of work?
4.  In your professional judgment, does the fact that NFA is paying significantly more under the Replacement Contract than it would have paid under the MCA suggest that NFA's termination was motivated by Meridian's performance failures rather than by a desire to reduce costs?
VIII. ANTICIPATED CROSS-EXAMINATION BY PLAINTIFF'S COUNSEL
A. Anticipated Lines of Questioning by Thomas Deluca / Miriam Vasquez
Based on a review of the pleadings, Meridian's discovery positions, and the known litigation strategy of Hargrove, Deluca & Stein LLP, the following lines of cross-examination are anticipated. DiBello should be prepared to address each of these topics. The preparation points in Section B below identify the key messages for each area.
Anticipated Questions:
1.  Arms-length negotiation / inflated pricing: Plaintiff's counsel will likely explore whether the Replacement Contract was negotiated at arms-length or whether NFA gave Crestline favorable terms (such as overly generous pricing) in order to inflate the excess completion cost counterclaim. DiBello should expect questions probing whether NFA pressured Crestline to increase its price, whether NFA offered concessions that would incentivize a higher bid, or whether there were any side agreements between NFA and Crestline.
2.  Scope identity: Plaintiff's counsel will argue that the scope under the Replacement Contract is not identical to the remaining MCA scope — that it includes additions, enhancements, or changes that account for some or all of the $81.7 million differential. DiBello should expect detailed questioning about specific scope items in the Replacement Contract that arguably differ from the MCA scope.
3.  Benefit from Meridian's completed work: Plaintiff's counsel will argue that Crestline benefited from Meridian's completed work — including existing infrastructure, access to rights-of-way, permits already obtained, and the general advantage of working on a project where nearly half the route miles were already in place. DiBello should expect questions about the value of these benefits and whether they should have reduced the Replacement Contract price.
4.  Northgate's own delays: Plaintiff's counsel ma