1022-00005 · Hargrove, Deluca & Stein LLP · Depositions

hale-deposition-objection-letter.docx DOCUMENT Litigation

25 / 78 ← → ✕

Contract analysis Extract to table

CALDERWOOD & HARKNESS LLP Attorneys at Law 425 Park Avenue, 33rd Floor New York, NY 10022

Telephone: (212) 536-7200 Facsimile: (212) 536-7201 www.calderwoodharkness.com

Linda Osei Partner Direct Dial: (212) 536-7244

Email: losei@calderwoodharkness.com

January 10, 2025

VIA EMAIL AND FIRST-CLASS MAIL

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

Re: Meridian Infrastructure Partners LLC v. Northgate Fiber Americas Inc., Supreme Court of the State of New York, New York County, Commercial Division, Index No. 654321/2024 — Objection to Deposition Notice of Dominic Hale

Dear Mr. Deluca:

We write on behalf of our clients, Northgate Telecommunications PLC and Northgate Fiber Americas Inc. (collectively, "Northgate" or "Defendant"), in connection with the above-captioned action. We are in receipt of Meridian Infrastructure Partners LLC's ("Meridian" or "Plaintiff") Notice of Deposition of Dominic Hale, served on or about January 3, 2025, scheduling Mr. Hale's deposition for February 25, 2025. The purpose of this letter is to formally object to the deposition notice in its entirety and to request its immediate withdrawal.

As set forth more fully below, Meridian's deposition notice is objectionable on multiple independent grounds, including the attorney-client privilege, the work product doctrine, the well-established Shelton doctrine protecting against depositions of opposing counsel, and the undue burden and disproportionality that the noticed deposition would impose. We address each ground in turn.

I. Identification of the Deposition Notice

Meridian's Notice of Deposition of Dominic Hale, served on or about January 3, 2025, purports to schedule Mr. Hale for deposition on February 25, 2025. Mr. Hale serves as General Counsel of Northgate Telecommunications PLC, with his principal office located at 14 Cavendish Square, London W1G 0BX, United Kingdom. Mr. Hale has served in the role of General Counsel throughout the entire period relevant to this dispute, including the period during which the Master Construction Agreement ("MCA") between Northgate Fiber Americas Inc. and Meridian was performed, administered, and ultimately terminated.

The deposition notice identifies a sweeping range of topics on which Meridian seeks Mr. Hale's testimony. These topics include, among other things: (a) the decision to issue Cure Notice No. 1, dated January 18, 2024; (b) the decision to issue Cure Notice No. 2, dated February 19, 2024; (c) Northgate's evaluation and ultimate rejection of Meridian's Corrective Action Plan, communicated by letter dated March 12, 2024; (d) the issuance of the Notice of Termination for Cause, dated April 1, 2024, pursuant to MCA § 14.1; and (e) broadly defined "communications with outside counsel and internal legal analysis related to the termination." The breadth of these topics alone signals the impermissibility of the noticed deposition, as we explain below.

II. Summary of Objections

Northgate objects to the noticed deposition on multiple independent grounds, each of which independently warrants quashing the notice or compels its voluntary withdrawal:

1. Attorney-Client Privilege. Mr. Hale's involvement in the events at issue was exclusively in his capacity as General Counsel rendering confidential legal advice. The testimony Meridian seeks is protected by the attorney-client privilege under CPLR 4503(a), which Northgate has not waived.

2. Work Product Doctrine. Mr. Hale's mental impressions, legal analyses, and case evaluations regarding Meridian's performance and the termination decision constitute protected attorney work product under CPLR 3101(d)(2), and Meridian cannot establish the requisite substantial need.

3. The *Shelton v. American Motors Corp.* Doctrine. Established case law imposes a heightened standard before a party may depose opposing counsel—including in-house counsel acting in a legal capacity—and Meridian cannot satisfy any of the three required prongs.

4. Undue Burden and Lack of Proportionality. Requiring a London-based senior executive and General Counsel to submit to a deposition that will yield only privileged testimony is disproportionate to any legitimate discovery need, particularly given the extensive discovery already conducted in this action.

Each ground is addressed more fully below.

III. Attorney-Client Privilege

A. Mr. Hale's Role as Legal Advisor

Dominic Hale serves as the General Counsel of Northgate Telecommunications PLC and has held that position continuously throughout the period relevant to this dispute. As General Counsel, Mr. Hale is the senior-most in-house legal officer of the Northgate corporate family, with responsibility for overseeing all legal affairs of Northgate Telecommunications PLC and its subsidiaries, including Northgate Fiber Americas Inc.

In his capacity as General Counsel, Mr. Hale provided confidential legal advice to Northgate's officers and board of directors—including Sir Malcolm Ashford, Chief Executive Officer; Helena Bright, Chief Financial Officer; and Dame Catherine Elsworth, Chair of the Board of Directors—regarding the MCA, Meridian's performance failures, the contractual cure notice process under MCA § 14.1, and the legal basis for and consequences of Northgate's termination decision. Mr. Hale's involvement in each of the events identified in Meridian's deposition notice was exclusively in his capacity as a legal advisor rendering legal advice to his client. He was not a business decision-maker on the fiber build-out program, did not supervise construction or field operations, did not negotiate the day-to-day commercial terms of the MCA, and did not serve in any operational or managerial role with respect to the project.

The day-to-day management and administration of the MCA was handled by Renata Voss, Vice President of US Network Infrastructure at Northgate Fiber Americas Inc., and Sean Calloway, Director of Construction Management at Northgate Fiber Americas Inc. Both Ms. Voss and Mr. Calloway have already been deposed in this action. Ms. Voss was deposed over two days on November 12–13, 2024, and testified at length regarding Meridian's schedule delays, non-conformance reports, the cure notice process, the evaluation of Meridian's Corrective Action Plan, and the termination decision. Mr. Calloway was deposed on November 19, 2024, and testified regarding his role as the day-to-day contract administrator, including his documentation of non-conformance reports ("NCRs") and milestone delays. These are the individuals with direct, non-privileged factual knowledge of Meridian's performance and the termination. Mr. Hale is not such a witness.

B. Privileged Nature of the Sought Testimony

The topics identified in Meridian's deposition notice—the decision to terminate, the drafting and issuance of cure notices, the evaluation and rejection of Meridian's Corrective Action Plan, and the legal basis for termination under MCA § 14.1—all necessarily and unavoidably implicate privileged attorney-client communications. These are the very subjects on which Mr. Hale was consulted as counsel and on which he rendered legal advice. Deposing Mr. Hale on these topics is not a search for facts; it is a search for the substance of legal advice.

Mr. Hale's knowledge of the events at issue derives from confidential legal consultations with Northgate management and with outside counsel. Calderwood & Harkness LLP was engaged as litigation counsel on August 19, 2024, following the commencement of this action. Prior to that engagement, Northgate consulted with its UK solicitors and with Mr. Hale internally regarding the legal implications of Meridian's performance failures and Northgate's contractual remedies. Throughout this period, Mr. Hale's role was that of a legal advisor, not a business participant.

Deposing Mr. Hale would inevitably require him to disclose the substance of the privileged legal advice he provided to Northgate's officers and board, including: (a) whether Meridian's conduct constituted a "material breach" as defined under MCA § 14.1; (b) whether the contractual cure procedures set forth in MCA §§ 14.1(a) through 14.1(d) had been properly followed and satisfied; (c) whether the termination was legally defensible under the governing law of the MCA (New York law); and (d) the legal risks and exposures associated with the termination decision. There is no meaningful way to depose Mr. Hale on the noticed topics without eliciting privileged communications—the topics are, by their very nature, legal topics on which he served as counsel.

Under New York law, the attorney-client privilege protects confidential communications made between an attorney and client for the purpose of obtaining or providing legal advice. CPLR 4503(a). The privilege applies with full force to communications between in-house counsel and their corporate clients. See Rossi v. Kestrel Insurance & Westvale Assurance of Greater N.Y., 73 N.Y.2d 588, 592–93 (1989). The privilege belongs to the client, and Northgate has not waived it.

It bears emphasis that Northgate has already asserted privilege over 214 documents on its privilege log, served on October 31, 2024, as required by the Court's September 2024 scheduling order. A substantial number of those 214 documents involve communications to or from Mr. Hale, or reflect legal advice rendered by Mr. Hale. Deposing Mr. Hale on the very subjects covered by those privilege assertions would constitute an impermissible end-run around Northgate's privilege protections. If Meridian seeks to challenge those privilege assertions, the proper mechanism is a motion to compel—and indeed, Meridian has already filed such a motion. Meridian's Motion to Compel production of the 214 privileged documents was filed on November 22, 2024. Northgate filed its opposition on December 2, 2024, and filed its Cross-Motion for Protective Order regarding 187 privileged Meridian-Ridgepoint Capital Group LP documents on December 6, 2024. Oral argument on both motions is scheduled for January 27, 2025 before the Honorable Eleanor M. Ricci. The privilege disputes are thus already before the Court through the proper procedural vehicle. Meridian should not be permitted to circumvent the Court's pending ruling by deposing the very attorney whose communications are at issue.

C. No Waiver and No Crime-Fraud Exception

Northgate has not placed Mr. Hale's legal advice "at issue" in this litigation, and there is accordingly no basis for any finding of implied waiver. Northgate's defense to Meridian's breach of contract and related claims rests squarely on the factual record of Meridian's performance failures, including: schedule delays on Milestones 3, 5, 6, 7, and 8 (all of which were late, in some cases by months); the issuance and documentation of 287 non-conformance reports, 43 of which were classified as "critical" under the MCA's quality assurance framework; and Meridian's failure to cure the identified deficiencies within the time periods specified in Cure Notice No. 1 and Cure Notice No. 2. Northgate's defense is grounded in the contemporaneous documentary record and the testimony of fact witnesses with direct knowledge of Meridian's performance—not on the content of any legal advice rendered by Mr. Hale.

Meridian has not alleged, and could not credibly allege, any basis for application of the crime-fraud exception to the attorney-client privilege. There is no suggestion that Mr. Hale's legal advice was sought or rendered in furtherance of any crime or fraud.

We are aware that Meridian's complaint advances a "pretext" theory—namely, that Northgate's stated grounds for termination were pretextual and that Northgate terminated Meridian in order to bring fiber construction in-house or to re-procure the work at a lower cost from an alternative contractor. Even assuming arguendo that this theory has any evidentiary support (which Northgate vigorously disputes), it does not transform privileged legal advice into discoverable fact. The factual bases for Northgate's termination decision are available through non-privileged fact witnesses who were directly involved in the performance of the MCA and the documentation of Meridian's failures, as well as through the voluminous contemporaneous documents already produced in discovery. Meridian's subjective belief that Mr. Hale might have discussed the business motivations for the termination does not override the privilege that attaches to his legal advice on the same subject.

IV. Work Product Doctrine

Independently of the attorney-client privilege, Mr. Hale's mental impressions, legal analysis, and case evaluation regarding Meridian's performance and the termination decision constitute attorney work product protected from disclosure under CPLR 3101(d)(2). The work product doctrine provides broad protection for materials prepared by an attorney in anticipation of litigation, and affords heightened, near-absolute protection to opinion work product—i.e., the mental impressions, conclusions, opinions, and legal theories of an attorney.

In particular, Mr. Hale's assessment of litigation risk associated with the termination decision, his analysis of the enforceability of MCA § 14.1's termination-for-cause provision under New York law, and his role in advising on potential counterclaims—which total $149 million and encompass claims for liquidated damages, excess completion costs, and remediation of defective work—are quintessential opinion work product. These assessments were necessarily performed by Mr. Hale in anticipation of potential litigation with Meridian, and deposing him on the topics identified in the notice would require disclosure of his mental impressions and legal conclusions.

Meridian cannot overcome the work product protection because it cannot demonstrate "substantial need" for Mr. Hale's work product or an "inability to obtain the substantial equivalent by other means without undue hardship." CPLR 3101(d)(2). As detailed above, the factual information underlying the termination decision is available through non-privileged fact witnesses—including Ms. Voss, Mr. Calloway, and Meridian's own officers—and through the voluminous contemporaneous documentary record. Four fact depositions have already been completed, and three additional depositions are scheduled. The extensive fact discovery already conducted in this case provides Meridian with ample access to the facts it needs; there is no justification for piercing the work product protection to obtain Mr. Hale's legal analysis of those same facts.

V. The *Shelton* Doctrine and Protection of In-House Counsel

A. Legal Standard

Under Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986), and its New York progeny, a party seeking to depose opposing counsel—including in-house counsel acting in a legal capacity—must satisfy a heightened three-part test. The deposing party must demonstrate that:

(i) no other means exist to obtain the information sought;

(ii) the information sought is relevant and non-privileged; and

(iii) the information is crucial to the preparation of the deposing party's case.

New York courts have consistently applied this heightened standard to protect the integrity of the attorney-client relationship and to guard against the use of counsel depositions as a litigation tactic designed to harass, burden, or disqualify opposing counsel. See, e.g., Tarrant Corporation, 2003 WL 1888221 (S.D.N.Y. Apr. 16, 2003); Ridgeway Life Insurance, 284 A.D.2d 132 (1st Dep't 2001). The policy animating the Shelton doctrine is straightforward: permitting a party to routinely depose opposing counsel would chill candid attorney-client communications, create risks of disqualification, and open the door to gamesmanship and discovery abuse.

Critically, the Shelton framework applies with equal force to in-house counsel acting in a legal capacity. An in-house general counsel who provides legal advice to corporate management is entitled to the same protections as outside retained counsel. See In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 72 (2d Cir. 2003) (recognizing that the protections afforded to attorney-client communications apply regardless of whether the attorney is in-house or outside counsel). Mr. Hale's role throughout the relevant period was that of legal advisor; the Shelton protections apply.

B. Application to Mr. Hale

Meridian cannot satisfy any of the three Shelton prongs.

First, alternative means of obtaining the information are readily available. The factual information regarding Meridian's performance failures, the cure notice process, and the termination decision is available from multiple non-privileged sources, including:

• Renata Voss (deposed November 12–13, 2024): Ms. Voss is Vice President of US Network Infrastructure at Northgate Fiber Americas Inc. She authored Cure Notice No. 1, dated January 18, 2024, and oversaw the fiber build-out program on a day-to-day basis. She testified over two days regarding milestone performance, the cure process, the evaluation of Meridian's Corrective Action Plan, and the termination decision.

• Sean Calloway (deposed November 19, 2024): Mr. Calloway is Director of Construction Management at Northgate Fiber Americas Inc. He served as the day-to-day contract administrator and documented NCRs, milestone delays, and quality assurance issues throughout the project.

• Victor Sandoval (deposed December 10–11, 2024): Mr. Sandoval is Chief Executive Officer of Meridian Infrastructure Partners LLC. He received and responded to both cure notices and the Notice of Termination. He has direct knowledge of Meridian's performance, the Corrective Action Plan process, and Meridian's own assessment of its compliance.

• Marcus Henley (deposed December 3–4, 2024): Mr. Henley is Vice President of Field Operations at Meridian Infrastructure Partners LLC. He supervised construction crews on the project and has firsthand knowledge of the performance issues that gave rise to the NCRs and milestone delays.

• Bridget Yeung (scheduled for deposition February 4, 2025): Ms. Yeung is Chief Operating Officer of Meridian Infrastructure Partners LLC. Her deposition will address Meridian's operational management of the project.

• Helena Bright (scheduled for deposition by commission in London, February 18, 2025): Ms. Bright is Chief Financial Officer of Northgate Telecommunications PLC. Her deposition will address the financial and budget decisions relating to the fiber build-out program and the business considerations surrounding the termination.

• Contemporaneous documentary record: The cure notices, Meridian's written responses, Meridian's Corrective Action Plan, Northgate's rejection letter, and the Notice of Termination have all been produced in discovery. These documents constitute the primary factual record of the events at issue.

• 287 non-conformance reports, monthly quality assurance reports, milestone tracking documents, and payment records—all of which have been produced and are available for Meridian's use.

In short, the factual record is voluminous, and the fact witnesses with direct, non-privileged knowledge of the relevant events have either already been deposed or are scheduled for deposition in the ordinary course. Mr. Hale's deposition is not necessary to obtain any non-privileged factual information.

Second, the information Meridian seeks from Mr. Hale is inherently privileged. As discussed at length in Section III above, the topics identified in the deposition notice go directly to the substance of Mr. Hale's legal advice regarding the MCA, the cure notice process, and the termination decision. There is no meaningful way to examine Mr. Hale on these topics without invading the attorney-client privilege and the work product doctrine. The second Shelton prong requires that the information sought be "relevant and non-privileged." Meridian cannot satisfy this requirement.

Third, Meridian has not and cannot demonstrate that Mr. Hale possesses any unique, non-privileged factual knowledge unavailable from the numerous fact witnesses and documents already in the record. The Shelton doctrine requires a showing that the information is "crucial" to the deposing party's case preparation. Given the extensive discovery already conducted—approximately 1.4 million documents produced by Northgate, approximately 890,000 documents produced by Meridian, four completed fact depositions, and three more scheduled—Meridian has had ample opportunity to develop the factual record. If Meridian possesses any evidence that Mr. Hale was a percipient witness to relevant events in a non-legal capacity, it has not identified such evidence, nor has it articulated why Mr. Hale's testimony would be "crucial" as opposed to merely duplicative or cumulative of the testimony already obtained.

VI. Undue Burden and Proportionality

Even apart from the privilege, work product, and Shelton objections, the noticed deposition of Mr. Hale would impose undue burden on Northgate and is disproportionate to the needs of the case.

Mr. Hale is based in London, United Kingdom, at Northgate Telecommunications PLC's headquarters at 14 Cavendish Square, London W1G 0BX. He is a senior executive and the chief legal officer of a publicly traded telecommunications company. Requiring him to travel internationally for a deposition that will yield only privileged testimony—or, alternatively, arranging a commission in London solely for a deposition that is objectionable on multiple grounds—imposes a significant and unjustified burden.

We note that Helena Bright's deposition is already being taken by commission in London on February 18, 2025. That deposition addresses the financial and strategic matters Meridian has identified as relevant to its claims and its pretext theory. There is no justification for scheduling an additional commission in London for the deposition of in-house counsel who served exclusively in a legal advisory capacity.

The discovery in this case has already been extensive by any measure. Northgate has produced approximately 1.4 million documents (3.2 TB of data) from ten custodians. Meridian has produced approximately 890,000 documents (1.8 TB of data) from eight custodians. Four fact depositions have been completed. Three additional depositions are scheduled for the coming weeks. The parties have exchanged interrogatory responses and requests for admission. Expert discovery has not yet commenced but is anticipated to begin in the spring of 2025.

Under CPLR 3101(a) and the Commercial Division Rules (22 NYCRR § 202.70, Rule 11-a), discovery must be proportional to the needs of the case, taking into account the importance of the issues at stake, the amount in controversy, the parties' relative access to information, and the burden of the proposed discovery in light of its likely benefit. While this is a significant commercial dispute—involving approximately $200 million in claims by Meridian and approximately $149 million in counterclaims by Northgate—the broad availability of fact testimony from non-privileged witnesses and the massive documentary record already produced render Mr. Hale's deposition unnecessary and unduly burdensome. The marginal discovery value of deposing in-house counsel on privileged subjects is negligible, while the burden and disruption are substantial.

VII. The Pending Privilege Motions

Northgate respectfully directs Meridian's attention to an additional consideration that weighs heavily against proceeding with Mr. Hale's deposition at this time: the parties' privilege disputes are currently sub judice.

As noted above, Meridian filed its Motion to Compel production of 214 privileged documents on November 22, 2024. Northgate filed its opposition to that motion on December 2, 2024. Northgate also filed its Cross-Motion for Protective Order regarding 187 privileged Meridian-Ridgepoint Capital Group LP documents on December 6, 2024. Meridian filed its reply in support of the Motion to Compel and its opposition to the Cross-Motion on December 20, 2024. Oral argument on both motions is scheduled for January 27, 2025 before the Honorable Eleanor M. Ricci in Part 49 of the Supreme Court, Commercial Division, at 60 Centre Street.

The privilege motions and this deposition dispute are fundamentally interrelated. Many of the 214 documents on Northgate's privilege log involve communications to or from Mr. Hale, and the topics covered by those privileged documents overlap substantially with the deposition topics identified in Meridian's notice. Proceeding with Mr. Hale's deposition before the Court resolves the privilege motions would be premature and could be inconsistent with whatever ruling the Court issues. If, for example, Justice Ricci sustains Northgate's privilege assertions over the disputed documents—as Northgate respectfully submits she should—the result would confirm that the very topics on which Meridian seeks to depose Mr. Hale are privileged and non-discoverable. Conducting the deposition first and litigating the privilege second is procedurally backward and risks unnecessary cost, burden, and conflict.

Northgate reserves all rights to seek a protective order under CPLR 3103 should Meridian refuse to withdraw the deposition notice voluntarily.

VIII. Request for Withdrawal

For all of the foregoing reasons, Northgate respectfully requests that Meridian immediately withdraw the Notice of Deposition of Dominic Hale scheduled for February 25, 2025. There is no proper basis for deposing in-house counsel whose involvement in the relevant events was exclusively in a legal advisory capacity, and the noticed deposition is objectionable on multiple independent grounds—any one of which would independently warrant its withdrawal or quashing.

If Meridian declines to withdraw the deposition notice within ten (10) business days of this letter—i.e., by no later than January 24, 2025—Northgate intends to move for a protective order pursuant to CPLR 3103, and will seek an award of costs and attorneys' fees associated with the motion. Northgate is prepared to raise this issue with Justice Ricci at the January 27, 2025 oral argument on the pending privilege motions if the matter has not been resolved by that date. Given the interrelationship between the privilege motions and this deposition dispute, Northgate also suggests that the parties may wish to raise this issue directly with Justice Ricci at the January 27 hearing for purposes of efficiency and judicial economy.

IX. Reservation of Rights

Northgate reserves all rights, claims, and defenses in connection with the above-captioned action, including but not limited to the right to seek sanctions for discovery abuse under CPLR 3126 and 22 NYCRR § 130-1.1. Nothing in this letter shall be construed as a waiver of any privilege, work product protection, or objection, whether or not specifically identified herein.

We trust that upon reflection, your client will agree that withdrawal of the deposition notice is the appropriate course of action. The factual information Meridian needs is available from numerous non-privileged sources, and pursuing Mr. Hale's deposition serves no legitimate discovery purpose. We are available to discuss this matter at your convenience and hope to resolve it without the need for motion practice.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Linda Osei Partner

Telephone: (212) 536-7244

Email: losei@calderwoodharkness.com

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

cc: Dominic Hale, General Counsel, Northgate Telecommunications PLC

Jeffrey Park, Calderwood & Harkness LLP Priya Anand, Calderwood & Harkness LLP Miriam Vasquez, Hargrove, Deluca & Stein LLP

CALDERWOOD & HARKNESS LLP Attorneys at Law 425 Park Avenue, 33rd Floor New York, NY 10022
Telephone: (212) 536-7200 Facsimile: (212) 536-7201 www.calderwoodharkness.com
Linda Osei Partner Direct Dial: (212) 536-7244
Email: losei@calderwoodharkness.com
January 10, 2025
VIA EMAIL AND FIRST-CLASS MAIL
Thomas Deluca, Esq. Partner Hargrove, Deluca & Stein LLP 51 West 52nd Street, 40th Floor New York, NY 10019
Re: Meridian Infrastructure Partners LLC v. Northgate Fiber Americas Inc., Supreme Court of the State of New York, New York County, Commercial Division, Index No. 654321/2024 — Objection to Deposition Notice of Dominic Hale
Dear Mr. Deluca:
We write on behalf of our clients, Northgate Telecommunications PLC and Northgate Fiber Americas Inc. (collectively, "Northgate" or "Defendant"), in connection with the above-captioned action. We are in receipt of Meridian Infrastructure Partners LLC's ("Meridian" or "Plaintiff") Notice of Deposition of Dominic Hale, served on or about January 3, 2025, scheduling Mr. Hale's deposition for February 25, 2025. The purpose of this letter is to formally object to the deposition notice in its entirety and to request its immediate withdrawal.
As set forth more fully below, Meridian's deposition notice is objectionable on multiple independent grounds, including the attorney-client privilege, the work product doctrine, the well-established Shelton doctrine protecting against depositions of opposing counsel, and the undue burden and disproportionality that the noticed deposition would impose. We address each ground in turn.
I. Identification of the Deposition Notice
Meridian's Notice of Deposition of Dominic Hale, served on or about January 3, 2025, purports to schedule Mr. Hale for deposition on February 25, 2025. Mr. Hale serves as General Counsel of Northgate Telecommunications PLC, with his principal office located at 14 Cavendish Square, London W1G 0BX, United Kingdom. Mr. Hale has served in the role of General Counsel throughout the entire period relevant to this dispute, including the period during which the Master Construction Agreement ("MCA") between Northgate Fiber Americas Inc. and Meridian was performed, administered, and ultimately terminated.
The deposition notice identifies a sweeping range of topics on which Meridian seeks Mr. Hale's testimony. These topics include, among other things: (a) the decision to issue Cure Notice No. 1, dated January 18, 2024; (b) the decision to issue Cure Notice No. 2, dated February 19, 2024; (c) Northgate's evaluation and ultimate rejection of Meridian's Corrective Action Plan, communicated by letter dated March 12, 2024; (d) the issuance of the Notice of Termination for Cause, dated April 1, 2024, pursuant to MCA § 14.1; and (e) broadly defined "communications with outside counsel and internal legal analysis related to the termination." The breadth of these topics alone signals the impermissibility of the noticed deposition, as we explain below.
II. Summary of Objections
Northgate objects to the noticed deposition on multiple independent grounds, each of which independently warrants quashing the notice or compels its voluntary withdrawal:
1. Attorney-Client Privilege. Mr. Hale's involvement in the events at issue was exclusively in his capacity as General Counsel rendering confidential legal advice. The testimony Meridian seeks is protected by the attorney-client privilege under CPLR 4503(a), which Northgate has not waived.
2. Work Product Doctrine. Mr. Hale's mental impressions, legal analyses, and case evaluations regarding Meridian's performance and the termination decision constitute protected attorney work product under CPLR 3101(d)(2), and Meridian cannot establish the requisite substantial need.
3. The *Shelton v. American Motors Corp.* Doctrine. Established case law imposes a heightened standard before a party may depose opposing counsel—including in-house counsel acting in a legal capacity—and Meridian cannot satisfy any of the three required prongs.
4. Undue Burden and Lack of Proportionality. Requiring a London-based senior executive and General Counsel to submit to a deposition that will yield only privileged testimony is disproportionate to any legitimate discovery need, particularly given the extensive discovery already conducted in this action.
Each ground is addressed more fully below.
III. Attorney-Client Privilege
A. Mr. Hale's Role as Legal Advisor
Dominic Hale serves as the General Counsel of Northgate Telecommunications PLC and has held that position continuously throughout the period relevant to this dispute. As General Counsel, Mr. Hale is the senior-most in-house legal officer of the Northgate corporate family, with responsibility for overseeing all legal affairs of Northgate Telecommunications PLC and its subsidiaries, including Northgate Fiber Americas Inc.
In his capacity as General Counsel, Mr. Hale provided confidential legal advice to Northgate's officers and board of directors—including Sir Malcolm Ashford, Chief Executive Officer; Helena Bright, Chief Financial Officer; and Dame Catherine Elsworth, Chair of the Board of Directors—regarding the MCA, Meridian's performance failures, the contractual cure notice process under MCA § 14.1, and the legal basis for and consequences of Northgate's termination decision. Mr. Hale's involvement in each of the events identified in Meridian's deposition notice was exclusively in his capacity as a legal advisor rendering legal advice to his client. He was not a business decision-maker on the fiber build-out program, did not supervise construction or field operations, did not negotiate the day-to-day commercial terms of the MCA, and did not serve in any operational or managerial role with respect to the project.
The day-to-day management and administration of the MCA was handled by Renata Voss, Vice President of US Network Infrastructure at Northgate Fiber Americas Inc., and Sean Calloway, Director of Construction Management at Northgate Fiber Americas Inc. Both Ms. Voss and Mr. Calloway have already been deposed in this action. Ms. Voss was deposed over two days on November 12–13, 2024, and testified at length regarding Meridian's schedule delays, non-conformance reports, the cure notice process, the evaluation of Meridian's Corrective Action Plan, and the termination decision. Mr. Calloway was deposed on November 19, 2024, and testified regarding his role as the day-to-day contract administrator, including his documentation of non-conformance reports ("NCRs") and milestone delays. These are the individuals with direct, non-privileged factual knowledge of Meridian's performance and the termination. Mr. Hale is not such a witness.
B. Privileged Nature of the Sought Testimony
The topics identified in Meridian's deposition notice—the decision to terminate, the drafting and issuance of cure notices, the evaluation and rejection of Meridian's Corrective Action Plan, and the legal basis for termination under MCA § 14.1—all necessarily and unavoidably implicate privileged attorney-client communications. These are the very subjects on which Mr. Hale was consulted as counsel and on which he rendered legal advice. Deposing Mr. Hale on these topics is not a search for facts; it is a search for the substance of legal advice.
Mr. Hale's knowledge of the events at issue derives from confidential legal consultations with Northgate management and with outside counsel. Calderwood & Harkness LLP was engaged as litigation counsel on August 19, 2024, following the commencement of this action. Prior to that engagement, Northgate consulted with its UK solicitors and with Mr. Hale internally regarding the legal implications of Meridian's performance failures and Northgate's contractual remedies. Throughout this period, Mr. Hale's role was that of a legal advisor, not a business participant.
Deposing Mr. Hale would inevitably require him to disclose the substance of the privileged legal advice he provided to Northgate's officers and board, including: (a) whether Meridian's conduct constituted a "material breach" as defined under MCA § 14.1; (b) whether the contractual cure procedures set forth in MCA §§ 14.1(a) through 14.1(d) had been properly followed and satisfied; (c) whether the termination was legally defensible under the governing law of the MCA (New York law); and (d) the legal risks and exposures associated with the termination decision. There is no meaningful way to depose Mr. Hale on the noticed topics without eliciting privileged communications—the topics are, by their very nature, legal topics on which he served as counsel.
Under New York law, the attorney-client privilege protects confidential communications made between an attorney and client for the purpose of obtaining or providing legal advice. CPLR 4503(a). The privilege applies with full force to communications between in-house counsel and their corporate clients. See Rossi v. Kestrel Insurance & Westvale Assurance of Greater N.Y., 73 N.Y.2d 588, 592–93 (1989). The privilege belongs to the client, and Northgate has not waived it.
It bears emphasis that Northgate has already asserted privilege over 214 documents on its privilege log, served on October 31, 2024, as required by the Court's September 2024 scheduling order. A substantial number of those 214 documents involve communications to or from Mr. Hale, or reflect legal advice rendered by Mr. Hale. Deposing Mr. Hale on the very subjects covered by those privilege assertions would constitute an impermissible end-run around Northgate's privilege protections. If Meridian seeks to challenge those privilege assertions, the proper mechanism is a motion to compel—and indeed, Meridian has already filed such a motion. Meridian's Motion to Compel production of the 214 privileged documents was filed on November 22, 2024. Northgate filed its opposition on December 2, 2024, and filed its Cross-Motion for Protective Order regarding 187 privileged Meridian-Ridgepoint Capital Group LP documents on December 6, 2024. Oral argument on both motions is scheduled for January 27, 2025 before the Honorable Eleanor M. Ricci. The privilege disputes are thus already before the Court through the proper procedural vehicle. Meridian should not be permitted to circumvent the Court's pending ruling by deposing the very attorney whose communications are at issue.
C. No Waiver and No Crime-Fraud Exception
Northgate has not placed Mr. Hale's legal advice "at issue" in this litigation, and there is accordingly no basis for any finding of implied waiver. Northgate's defense to Meridian's breach of contract and related claims rests squarely on the factual record of Meridian's performance failures, including: schedule delays on Milestones 3, 5, 6, 7, and 8 (all of which were late, in some cases by months); the issuance and documentation of 287 non-conformance reports, 43 of which were classified as "critical" under the MCA's quality assurance framework; and Meridian's failure to cure the identified deficiencies within the time periods specified in Cure Notice No. 1 and Cure Notice No. 2. Northgate's defense is grounded in the contemporaneous documentary record and the testimony of fact witnesses with direct knowledge of Meridian's performance—not on the content of any legal advice rendered by Mr. Hale.
Meridian has not alleged, and could not credibly allege, any basis for application of the crime-fraud exception to the attorney-client privilege. There is no suggestion that Mr. Hale's legal advice was sought or rendered in furtherance of any crime or fraud.
We are aware that Meridian's complaint advances a "pretext" theory—namely, that Northgate's stated grounds for termination were pretextual and that Northgate terminated Meridian in order to bring fiber construction in-house or to re-procure the work at a lower cost from an alternative contractor. Even assuming arguendo that this theory has any evidentiary support (which Northgate vigorously disputes), it does not transform privileged legal advice into discoverable fact. The factual bases for Northgate's termination decision are available through non-privileged fact witnesses who were directly involved in the performance of the MCA and the documentation of Meridian's failures, as well as through the voluminous contemporaneous documents already produced in discovery. Meridian's subjective belief that Mr. Hale might have discussed the business motivations for the termination does not override the privilege that attaches to his legal advice on the same subject.
IV. Work Product Doctrine
Independently of the attorney-client privilege, Mr. Hale's mental impressions, legal analysis, and case evaluation regarding Meridian's performance and the termination decision constitute attorney work product protected from disclosure under CPLR 3101(d)(2). The work product doctrine provides broad protection for materials prepared by an attorney in anticipation of litigation, and affords heightened, near-absolute protection to opinion work product—i.e., the mental impressions, conclusions, opinions, and legal theories of an attorney.
In particular, Mr. Hale's assessment of litigation risk associated with the termination decision, his analysis of the enforceability of MCA § 14.1's termination-for-cause provision under New York law, and his role in advising on potential counterclaims—which total $149 million and encompass claims for liquidated damages, excess completion costs, and remediation of defective work—are quintessential opinion work product. These assessments were necessarily performed by Mr. Hale in anticipation of potential litigation with Meridian, and deposing him on the topics identified in the notice would require disclosure of his mental impressions and legal conclusions.
Meridian cannot overcome the work product protection because it cannot demonstrate "substantial need" for Mr. Hale's work product or an "inability to obtain the substantial equivalent by other means without undue hardship." CPLR 3101(d)(2). As detailed above, the factual information underlying the termination decision is available through non-privileged fact witnesses—including Ms. Voss, Mr. Calloway, and Meridian's own officers—and through the voluminous contemporaneous documentary record. Four fact depositions have already been completed, and three additional depositions are scheduled. The extensive fact discovery already conducted in this case provides Meridian with ample access to the facts it needs; there is no justification for piercing the work product protection to obtain Mr. Hale's legal analysis of those same facts.
V. The *Shelton* Doctrine and Protection of In-House Counsel
A. Legal Standard
Under Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986), and its New York progeny, a party seeking to depose opposing counsel—including in-house counsel acting in a legal capacity—must satisfy a heightened three-part test. The deposing party must demonstrate that:
(i) no other means exist to obtain the information sought;
(ii) the information sought is relevant and non-privileged; and
(iii) the information is crucial to the preparation of the deposing party's case.
New York courts have consistently applied this heightened standard to protect the integrity of the attorney-client relationship and to guard against the use of counsel depositions as a litigation tactic designed to harass, burden, or disqualify opposing counsel. See, e.g., Tarrant Corporation, 2003 WL 1888221 (S.D.N.Y. Apr. 16, 2003); Ridgeway Life Insurance, 284 A.D.2d 132 (1st Dep't 2001). The policy animating the Shelton doctrine is straightforward: permitting a party to routinely depose opposing counsel would chill candid attorney-client communications, create risks of disqualification, and open the door to gamesmanship and discovery abuse.
Critically, the Shelton framework applies with equal force to in-house counsel acting in a legal capacity. An in-house general counsel who provides legal advice to corporate management is entitled to the same protections as outside retained counsel. See In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 72 (2d Cir. 2003) (recognizing that the protections afforded to attorney-client communications apply regardless of whether the attorney is in-house or outside counsel). Mr. Hale's role throughout the relevant period was that of legal advisor; the Shelton protections apply.
B. Application to Mr. Hale
Meridian cannot satisfy any of the three Shelton prongs.
First, alternative means of obtaining the information are readily available. The factual information regarding Meridian's performance failures, the cure notice process, and the termination decision is available from multiple non-privileged sources, including:
• Renata Voss (deposed November 12–13, 2024): Ms. Voss is Vice President of US Network Infrastructure at Northgate Fiber Americas Inc. She authored Cure Notice No. 1, dated January 18, 2024, and oversaw the fiber build-out program on a day-to-day basis. She testified over two days regarding milestone performance, the cure process, the evaluation of Meridian's Corrective Action Plan, and the termination decision.
• Sean Calloway (deposed November 19, 2024): Mr. Calloway is Director of Construction Management at Northgate Fiber Americas Inc. He served as the day-to-day contract administrator and documented NCRs, milestone delays, and quality assurance issues throughout the project.
• Victor Sandoval (deposed December 10–11, 2024): Mr. Sandoval is Chief Executive Officer of Meridian Infrastructure Partners LLC. He received and responded to both cure notices and the Notice of Termination. He has direct knowledge of Meridian's performance, the Corrective Action Plan process, and Meridian's own assessment of its compliance.
• Marcus Henley (deposed December 3–4, 2024): Mr. Henley is Vice President of Field Operations at Meridian Infrastructure Partners LLC. He supervised construction crews on the project and has firsthand knowledge of the performance issues that gave rise to the NCRs and milestone delays.
• Bridget Yeung (scheduled for deposition February 4, 2025): Ms. Yeung is Chief Operating Officer of Meridian Infrastructure Partners LLC. Her deposition will address Meridian's operational management of the project.
• Helena Bright (scheduled for deposition by commission in London, February 18, 2025): Ms. Bright is Chief Financial Officer of Northgate Telecommunications PLC. Her deposition will address the financial and budget decisions relating to the fiber build-out program and the business considerations surrounding the termination.
• Contemporaneous documentary record: The cure notices, Meridian's written responses, Meridian's Corrective Action Plan, Northgate's rejection letter, and the Notice of Termination have all been produced in discovery. These documents constitute the primary factual record of the events at issue.
• 287 non-conformance reports, monthly quality assurance reports, milestone tracking documents, and payment records—all of which have been produced and are available for Meridian's use.
In short, the factual record is voluminous, and the fact witnesses with direct, non-privileged knowledge of the relevant events have either already been deposed or are scheduled for deposition in the ordinary course. Mr. Hale's deposition is not necessary to obtain any non-privileged factual information.
Second, the information Meridian seeks from Mr. Hale is inherently privileged. As discussed at length in Section III above, the topics identified in the deposition notice go directly to the substance of Mr. Hale's legal advice regarding the MCA, the cure notice process, and the termination decision. There is no meaningful way to examine Mr. Hale on these topics without invading the attorney-client privilege and the work product doctrine. The second Shelton prong requires that the information sought be "relevant and non-privileged." Meridian cannot satisfy this requirement.
Third, Meridian has not and cannot demonstrate that Mr. Hale possesses any unique, non-privileged factual knowledge unavailable from the numerous fact witnesses and documents already in the record. The Shelton doctrine requires a showing that the information is "crucial" to the deposing party's case preparation. Given the extensive discovery already conducted—approximately 1.4 million documents produced by Northgate, approximately 890,000 documents produced by Meridian, four completed fact depositions, and three more scheduled—Meridian has had ample opportunity to develop the factual record. If Meridian possesses any evidence that Mr. Hale was a percipient witness to relevant events in a non-legal capacity, it has not identified such evidence, nor has it articulated why Mr. Hale's testimony would be "crucial" as opposed to merely duplicative or cumulative of the testimony already obtained.
VI. Undue Burden and Proportionality
Even apart from the privilege, work product, and Shelton objections, the noticed deposition of Mr. Hale would impose undue burden on Northgate and is disproportionate to the needs of the case.
Mr. Hale is based in London, United Kingdom, at Northgate Telecommunications PLC's headquarters at 14 Cavendish Square, London W1G 0BX. He is a senior executive and the chief legal officer of a publicly traded telecommunications company. Requiring him to travel internationally for a deposition that will yield only privileged testimony—or, alternatively, arranging a commission in London solely for a deposition that is objectionable on multiple grounds—imposes a significant and unjustified burden.
We note that Helena Bright's deposition is already being taken by commission in London on February 18, 2025. That deposition addresses the financial and strategic matters Meridian has identified as relevant to its claims and its pretext theory. There is no justification for scheduling an additional commission in London for the deposition of in-house counsel who served exclusively in a legal advisory capacity.
The discovery in this case has already been extensive by any measure. Northgate has produced approximately 1.4 million documents (3.2 TB of data) from ten custodians. Meridian has produced approximately 890,000 documents (1.8 TB of data) from eight custodians. Four fact depositions have been completed. Three additional depositions are scheduled for the coming weeks. The parties have exchanged interrogatory responses and requests for admission. Expert discovery has not yet commenced but is anticipated to begin in the spring of 2025.
Under CPLR 3101(a) and the Commercial Division Rules (22 NYCRR § 202.70, Rule 11-a), discovery must be proportional to the needs of the case, taking into account the importance of the issues at stake, the amount in controversy, the parties' relative access to information, and the burden of the proposed discovery in light of its likely benefit. While this is a significant commercial dispute—involving approximately $200 million in claims by Meridian and approximately $149 million in counterclaims by Northgate—the broad availability of fact testimony from non-privileged witnesses and the massive documentary record already produced render Mr. Hale's deposition unnecessary and unduly burdensome. The marginal discovery value of deposing in-house counsel on privileged subjects is negligible, while the burden and disruption are substantial.
VII. The Pending Privilege Motions
Northgate respectfully directs Meridian's attention to an additional consideration that weighs heavily against proceeding with Mr. Hale's deposition at this time: the parties' privilege disputes are currently sub judice.
As noted above, Meridian filed its Motion to Compel production of 214 privileged documents on November 22, 2024. Northgate filed its opposition to that motion on December 2, 2024. Northgate also filed its Cross-Motion for Protective Order regarding 187 privileged Meridian-Ridgepoint Capital Group LP documents on December 6, 2024. Meridian filed its reply in support of the Motion to Compel and its opposition to the Cross-Motion on December 20, 2024. Oral argument on both motions is scheduled for January 27, 2025 before the Honorable Eleanor M. Ricci in Part 49 of the Supreme Court, Commercial Division, at 60 Centre Street.
The privilege motions and this deposition dispute are fundamentally interrelated. Many of the 214 documents on Northgate's privilege log involve communications to or from Mr. Hale, and the topics covered by those privileged documents overlap substantially with the deposition topics identified in Meridian's notice. Proceeding with Mr. Hale's deposition before the Court resolves the privilege motions would be premature and could be inconsistent with whatever ruling the Court issues. If, for example, Justice Ricci sustains Northgate's privilege assertions over the disputed documents—as Northgate respectfully submits she should—the result would confirm that the very topics on which Meridian seeks to depose Mr. Hale are privileged and non-discoverable. Conducting the deposition first and litigating the privilege second is procedurally backward and risks unnecessary cost, burden, and conflict.
Northgate reserves all rights to seek a protective order under CPLR 3103 should Meridian refuse to withdraw the deposition notice voluntarily.
VIII. Request for Withdrawal
For all of the foregoing reasons, Northgate respectfully requests that Meridian immediately withdraw the Notice of Deposition of Dominic Hale scheduled for February 25, 2025. There is no proper basis for deposing in-house counsel whose involvement in the relevant events was exclusively in a legal advisory capacity, and the noticed deposition is objectionable on multiple independent grounds—any one of which would independently warrant its withdrawal or quashing.
If Meridian declines to withdraw the deposition notice within ten (10) business days of this letter—i.e., by no later than January 24, 2025—Northgate intends to move for a protective order pursuant to CPLR 3103, and will seek an award of costs and attorneys' fees associated with the motion. Northgate is prepared to raise this issue with Justice Ricci at the January 27, 2025 oral argument on the pending privilege motions if the matter has not been resolved by that date. Given the interrelationship between the privilege motions and this deposition dispute, Northgate also suggests that the parties may wish to raise this issue directly with Justice Ricci at the January 27 hearing for purposes of efficiency and judicial economy.
IX. Reservation of Rights
Northgate reserves all rights, claims, and defenses in connection with the above-captioned action, including but not limited to the right to seek sanctions for discovery abuse under CPLR 3126 and 22 NYCRR § 130-1.1. Nothing in this letter shall be construed as a waiver of any privilege, work product protection, or objection, whether or not specifically identified herein.
We trust that upon reflection, your client will agree that withdrawal of the deposition notice is the appropriate course of action. The factual information Meridian needs is available from numerous non-privileged sources, and pursuing Mr. Hale's deposition serves no legitimate discovery purpose. We are available to discuss this matter at your convenience and hope to resolve it without the need for motion practice.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Linda Osei Partner
Telephone: (212) 536-7244
Email: losei@calderwoodharkness.com
425 Park Avenue, 33rd Floor New York, NY 10022
cc: Dominic Hale, General Counsel, Northgate Telecommunications PLC
Jeffrey Park, Calderwood & Harkness LLP Priya Anand, Calderwood & Harkness LLP Miriam Vasquez, Hargrove, Deluca & Stein LLP

CALDERWOOD & HARKNESS LLP Attorneys at Law 425 Park Avenue, 33rd Floor New York, NY 10022

VIA EMAIL AND FIRST-CLASS MAIL

CALDERWOOD & HARKNESS LLP

Record

Parties

Dates

Amounts