PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
This memorandum is protected by the attorney-client privilege and the work product doctrine. It has been prepared by counsel in anticipation of litigation and for the purpose of providing legal advice. It should not be disclosed to any person outside the attorney-client relationship without the express prior authorization of Calderwood & Harkness LLP.
CALDERWOOD & HARKNESS LLP 425 Park Avenue, 33rd Floor New York, NY 10022
MEMORANDUM
TO: Linda Osei, Responsible Partner
FROM: Jeffrey Park, Lead Associate
DATE: November 8, 2024
RE: Deposition Preparation Outline — Renata Voss (November 12–13, 2024)
MATTER: Meridian Infrastructure Partners LLC v. Northgate Fiber Americas Inc., Index No. 654321/2024 (Sup. Ct., N.Y. Cnty., Commercial Division)
C&H MATTER NO.: 1022-00005
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I. Overview of Witness and Deposition Logistics
A. Witness Background
The deponent, Renata Voss, holds the title of Vice President, US Network Infrastructure at Northgate Fiber Americas Inc. ("NFA"). Her principal office is located at 600 Lexington Avenue, 28th Floor, New York, NY 10022. Ms. Voss is the most senior NFA executive with direct operational oversight of the fiber build-out program undertaken pursuant to the Master Construction Agreement dated March 15, 2020 (the "MCA") between NFA and Meridian Infrastructure Partners LLC ("Meridian").
Within the Northgate organizational structure, Ms. Voss reported directly to Sir Malcolm Ashford, Chief Executive Officer of Northgate Telecommunications PLC ("Northgate"), the UK-domiciled parent company of NFA. Ms. Voss also coordinated regularly with Helena Bright, Northgate's Chief Financial Officer, on capital expenditure approvals, budget forecasting, and financial reporting matters related to the US fiber program. On the operational side, Sean Calloway, Director of Construction Management at NFA, reported directly to Ms. Voss and was responsible for the day-to-day administration of the MCA, including field oversight, progress verification, quality assurance coordination, and payment application review.
Ms. Voss is the author or signatory on several of the most critical documents in this litigation. She signed Cure Notice No. 1 (dated January 18, 2024), Cure Notice No. 2 (dated February 19, 2024), and the Notice of Termination for Cause (dated April 1, 2024). She was also the NFA executive who received and responded to Meridian's correspondence during the cure and termination sequence, including Meridian's February 2, 2024 response from Victor Sandoval and Meridian's March 5, 2024 Corrective Action Plan.
Given her central role in the events at issue, Ms. Voss possesses first-hand knowledge of the operational decisions, communications, and performance evaluations that culminated in NFA's termination of the MCA. Her testimony will be pivotal to virtually every contested issue in this case.
B. Deposition Logistics
The deposition of Ms. Voss has been noticed for two days: November 12–13, 2024. It will be held at the offices of Calderwood & Harkness LLP, 425 Park Avenue, 33rd Floor, New York, NY 10022.
The examining counsel for Meridian will be Thomas Deluca, Lead Partner at Hargrove, Deluca & Stein LLP ("HDS"), and Miriam Vasquez, Senior Associate at HDS. Based on our experience with Mr. Deluca in prior matters, we expect a methodical, document-intensive examination style. Ms. Vasquez is likely to handle the more technical questioning regarding specifications and NCRs.
Jeffrey Park (C&H) will serve as defending counsel and will be present in the room throughout both days of testimony. Linda Osei will be available by telephone if issues arise requiring partner-level decision-making in real time, particularly with respect to privilege assertions.
Per the deposition notice served by HDS, opposing counsel has arranged for a court reporter and a videographer. The deposition will be recorded both stenographically and on video. Ms. Voss should be reminded that the videotape may be shown to the jury, and her demeanor will be observed by the camera at all times, including during breaks and sidebar conversations near the microphone.
We have scheduled two witness preparation sessions with Ms. Voss:
• November 8, 2024 (afternoon) — Initial session at C&H offices (review of key themes, document walk-through, privilege instructions)
• November 11, 2024 (full day) — Final preparation session at C&H offices (mock examination, document confrontation rehearsal, coaching on difficult questions)
C. Scope and Significance
Ms. Voss is the single most important fact witness for Northgate's defense in this litigation. Her testimony will serve multiple critical functions:
First, her testimony will establish the factual foundation for NFA's termination-for-cause defense. She will need to walk the examiner through the escalating pattern of Meridian's schedule delays across Phases 1, 2, and 3 of the fiber build-out program, the systemic quality failures documented in 287 Non-Conformance Reports (of which 43 were classified as "critical"), and the adequacy and procedural correctness of the cure notice and termination sequence under MCA § 14.1.
Second, her testimony must neutralize Meridian's central theory of the case — the so-called "pretext theory." Meridian contends that NFA's true motivation for terminating the MCA was not Meridian's material breach, but rather NFA's desire to bring fiber construction in-house or to re-procure the remaining scope of work from a different contractor at lower market prices. This theory is supported, in Meridian's view, by the subsequent execution of the Crestline replacement contract on June 10, 2024, and by what Meridian characterizes as internal NFA discussions about in-sourcing that predated the cure notices. Ms. Voss must present testimony that is truthful, consistent with the contemporaneous documentary record, and firmly grounded in the position that the termination was justified under MCA § 14.1 based on Meridian's persistent schedule delays, substandard workmanship, and failure to cure within the contractually mandated cure period.
Third, Ms. Voss's testimony will lay the groundwork for NFA's counterclaims, including the excess reprocurement cost claim (Counterclaim I), the liquidated damages claim (Counterclaim II), and the remediation cost claim for NCR-related defective work (Counterclaim III).
Meridian's counsel will undoubtedly attempt to elicit testimony favorable to the pretext theory, to establish that NFA bore responsibility for permitting delays, to characterize NFA field directives as uncompensated scope changes, and to suggest that the force majeure defense was improperly rejected. Ms. Voss must be thoroughly prepared for each of these lines of attack.
II. Anticipated Topic Areas and Examination Strategy
The following sections identify the principal topic areas we anticipate Meridian's counsel will cover during the two-day deposition, together with the key points Ms. Voss should establish in her testimony, cautions regarding areas of vulnerability, and the supporting documents she should review in preparation.
A. Topic 1: Voss's Role and Responsibilities
Expected questions. Meridian's counsel will begin with foundational questions about Ms. Voss's title, tenure, reporting lines, scope of authority over the fiber build-out program, and her specific responsibilities with respect to the MCA. Mr. Deluca will likely establish the chain of command at NFA, including Voss's relationship to Sir Malcolm Ashford, Helena Bright, Sean Calloway, and other NFA personnel. He will ask about the scope of Voss's authority to issue cure notices and termination notices, and whether she had the unilateral authority to terminate the MCA or whether that decision required approval from London. He will also explore the nature and frequency of Voss's interactions with Meridian's personnel, including Victor Sandoval (Meridian's CEO), Bridget Yeung (Meridian's COO and primary project executive), and Marcus Henley (Meridian's on-site Project Manager).
Key points to establish. Ms. Voss should testify clearly that she had direct operational authority over NFA's fiber build-out program in the United States, that her decisions regarding the MCA were informed by regular field reports and quality assurance data provided by Sean Calloway and NFA's engineering and QA staff, and that she acted in good faith at all times based on documented performance deficiencies. She should confirm that she was the NFA executive authorized to issue cure notices and termination notices under the MCA, and that she exercised that authority consistent with both the contractual provisions and her assessment of Meridian's performance.
Caution. Ms. Voss should be careful not to overstate the extent of her personal, first-hand knowledge on matters that were primarily handled at the field level by Sean Calloway or by NFA's engineering and quality assurance staff. Where she relied on reports, summaries, or briefings from subordinates, she should say so. She should defer to documents where possible rather than relying on memory for specific dates, figures, or technical details that she received through intermediaries rather than through direct observation.
B. Topic 2: Execution and Terms of the MCA
Expected questions. Meridian's counsel will question Ms. Voss about her involvement in the negotiation and execution of the MCA, which was signed on March 15, 2020. They will test her understanding of the key contractual provisions that are at the center of this dispute, including:
• The Notice to Proceed issued on April 1, 2020;
• The 14-milestone schedule set forth in MCA § 8.2 and detailed in MCA Exhibit B;
• The liquidated damages provisions under MCA § 9.1, which provide for per-diem liquidated damages of $175,000 per day per milestone for schedule delays, subject to a cap of 10% of the milestone value for any individual milestone and an aggregate cap of 5% of the total contract price, yielding a maximum LD exposure of $60,000,000;
• The termination-for-cause clause under MCA § 14.1, which permits termination upon written notice of material breach and the expiration of a 30-day cure period without adequate cure;
• The termination-for-convenience clause under MCA § 14.3, which entitles the contractor to payment for work completed plus 8% of the value of unperformed work as a termination fee; and
• The Change Order provisions under MCA § 16.1.
Key points. Ms. Voss should be able to confirm the general terms of the MCA and her understanding that Meridian's obligations under the agreement included the design, engineering, permitting, and construction of approximately 18,500 route miles of fiber optic infrastructure across seven states — New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia — at a total contract price of $1.2 billion. The pricing structure was a hybrid of fixed-price milestones (65% of the contract value) and unit-rate work (35% of the contract value). She should be familiar with the overall structure of the MCA and the parties' principal obligations, but she should not attempt to offer legal interpretations of specific contract provisions.
Caution. This is an area where Ms. Voss must exercise discipline. She can testify about her practical, businessperson's understanding of the contractual terms — what she understood the contract required Meridian to do, what she understood NFA's rights were in the event of default, and how she applied those understandings in practice. However, she should not offer legal conclusions about the meaning of ambiguous provisions, the interaction between different contract clauses, or the legal sufficiency of Meridian's performance. When pressed for legal interpretations, she should defer to the language of the document itself ("I'd refer you to the contract language") and note that legal counsel advised NFA on its contractual rights at appropriate junctures.
C. Topic 3: Phase 1 Performance (NY Metro & Northern NJ)
Expected questions. Mr. Deluca will walk Ms. Voss through the timeline of Phase 1, which covered the New York metropolitan area and Northern New Jersey and encompassed Milestones 1 through 4. He will focus particular attention on the 47-day delay on Milestone 3, which had a target completion date of August 28, 2021, but was not actually completed until October 14, 2021. He will ask about the LD assessment letter dated November 5, 2021, under which NFA deducted $8,225,000 from Meridian's subsequent payment applications. He is likely to probe whether Ms. Voss considered the Phase 1 delays to be a warning sign of future performance problems, and whether NFA took any steps during Phase 1 to address Meridian's schedule management deficiencies.
Key points. Ms. Voss should confirm the following facts regarding Phase 1 performance:
• Milestones 1, 2, and 4 were completed on time or ahead of schedule;
• Milestone 3 was completed 47 days late;
• Phase 1 encompassed approximately 3,200 route miles;
• The total Phase 1 milestone value was $208,000,000;
• LDs of $8,225,000 were assessed for the Milestone 3 delay (47 days × $175,000/day);
• Total Phase 1 payments to Meridian were $199,775,000 after the LD deduction;
• Ms. Voss's contemporaneous communications reflect that NFA raised concerns about Meridian's schedule management capabilities even during Phase 1.
Ms. Voss should characterize the Milestone 3 delay as an early indicator of the schedule management problems that would worsen dramatically in Phase 2. She should note that while NFA applied the contractual LD remedy and communicated its concerns, it did not at that time consider the Phase 1 performance to rise to the level of material breach warranting termination. This is important because it demonstrates that NFA gave Meridian the benefit of the doubt during Phase 1 and did not act precipitously.
Documents to prepare. The following documents should be reviewed with Ms. Voss in connection with this topic:
• LD assessment letter dated November 5, 2021;
• Milestone 3 completion certificate;
• Monthly project status reports for the Phase 1 period;
• Voss's emails to and from Calloway regarding Phase 1 delays and schedule concerns.
D. Topic 4: Phase 2 Performance (CT, Western MA, Southern PA) — Schedule Delays
Expected questions. Phase 2 will be the subject of detailed and granular questioning. Mr. Deluca will walk through each milestone delay in sequence, establishing the target completion dates, the actual completion dates (or, in the case of Milestone 8, the non-completion), and the LD calculations for each. He will attempt to establish that NFA's LD deductions were either incorrectly calculated or disproportionate, and that the delays were attributable in whole or in part to owner-side actions, permitting issues, scope changes, or force majeure events.
Key points. Phase 2 covered approximately 5,600 route miles across Connecticut, Western Massachusetts, and Southern Pennsylvania. The total Phase 2 milestone value was $363,000,000. The milestone-by-milestone delay and LD data are as follows:
Total Phase 2 payments to Meridian were $281,225,000 — calculated as $322,000,000 in approved payment applications minus $40,775,000 in LD deductions.
Ms. Voss should emphasize the escalating trend in Meridian's schedule delays. The delays grew from 22 days (MS5) to 68 days (MS6) to 91 days (MS7), and Milestone 8 was never completed, with 134 days of delay accrued at the time of termination. This escalating pattern demonstrates a systemic and worsening problem with Meridian's schedule management and construction execution capabilities, not a series of isolated incidents attributable to specific external causes. Each successive milestone was more delayed than the last, indicating that Meridian's performance was deteriorating rather than improving, and that its assurances of schedule recovery were not credible.
Ms. Voss should also be prepared to address the reasons for each delay as she understood them from Calloway's reports and from her own communications with Meridian's executives. She should attribute the delays to Meridian's inadequate crew levels, poor subcontractor management, equipment shortages, and failure to execute an effective construction sequencing plan — not to owner-side delays or external factors.
Documents to prepare. The following documents should be reviewed with Ms. Voss:
• Milestone Schedule (MCA Exhibit B), showing target and actual completion dates;
• Milestone completion certificates for MS5 through MS7;
• Correspondence regarding MS8 non-completion;
• Monthly schedule reports submitted by Meridian during Phase 2;
• LD assessment letters for each Phase 2 milestone;
• Any contemporaneous communications between Voss and Calloway or between Voss and Meridian personnel regarding the causes and consequences of the Phase 2 delays.
E. Topic 5: Phase 2 Quality Failures — Non-Conformance Reports
Expected questions. Meridian's counsel will inquire about the 287 Non-Conformance Reports ("NCRs") issued during Phase 2, with particular focus on the 43 NCRs classified as "critical." Mr. Deluca and Ms. Vasquez will likely explore the types of defects identified in the critical NCRs — including splice loss exceeding specification tolerances, improper conduit depth (inadequate burial below grade), and unauthorized route deviations from the approved engineering plans — and will question whether Meridian was given adequate opportunity to remediate the defects before they were cited in the cure notices. They will also address the monthly QA reports documenting defect rates, the role of NFA's QA team in identifying defects, and the additional 12 critical NCRs issued in February 2024 during the cure period.
Key points. Ms. Voss should testify about her awareness of the NCR pattern, confirming that:
• She received and reviewed monthly QA summary reports prepared by NFA's quality assurance team;
• She was informed by Sean Calloway of the specific defect types and their severity classifications;
• Meridian was notified of each NCR and was given the opportunity to remediate the deficient work in accordance with the MCA's quality assurance provisions;
• The defects reflected systemic quality control failures within Meridian's construction operations — not isolated workmanship errors attributable to individual workers or one-time circumstances;
• All fiber construction work was required to conform to Northgate Technical Specification NS-FIBER-2020 and applicable industry standards, including ANSI/TIA-568 and BICSI standards, as specified in MCA § 12.4;
• Meridian's quality failures imposed significant remediation costs on NFA and posed unacceptable risks to the long-term reliability and performance of the fiber network.
For purposes of NFA's Counterclaim III (remediation cost claim), the following cost data should be kept in mind, although Ms. Voss should generally defer to the documentary evidence and expert reports for precise figures:
• 43 critical NCRs at an average remediation cost of approximately $275,000 per NCR = approximately $11,825,000;
• 244 non-critical NCRs at an average remediation cost of approximately $26,500 per NCR = approximately $6,466,000;
• Total estimated remediation cost: approximately $18,300,000.
Documents to prepare. The following documents should be reviewed with Ms. Voss:
• NCR summary spreadsheet listing all 287 NCRs, with severity classifications, defect types, locations, dates, and remediation status;
• A selection of five to ten representative critical NCRs (covering splice loss failures, conduit depth violations, and route deviations);
• Monthly QA reports for Phase 2;
• Calloway's NCR tracking reports;
• MCA § 12.4 (quality assurance and workmanship requirements);
• Relevant excerpts from NS-FIBER-2020.
F. Topic 6: Phase 3 Mobilization Failures (MD, VA, Eastern PA)
Expected questions. Meridian's counsel will question Ms. Voss about Meridian's performance in Phase 3, which covered the remaining states — Maryland, Virginia, and Eastern Pennsylvania. They will explore the timeline of Meridian's mobilization in Maryland beginning in July 2023, the minimal progress achieved, and the disputes regarding payment applications. Mr. Deluca may attempt to characterize Phase 3 as a work-in-progress that was interrupted by NFA's premature termination, rather than a performance failure.
Key points. Ms. Voss should testify that Meridian's Phase 3 performance was effectively a failure to mobilize and perform in any meaningful way. The key facts are as follows:
• Phase 3 was designed to cover approximately 9,700 planned route miles;
• The total Phase 3 milestone value was $629,000,000;
• As of the termination date, Meridian had completed only approximately 340 route miles — approximately 3.5% of the Phase 3 scope;
• Meridian submitted $48.2 million in payment applications for Phase 3 work;
• NFA approved $31.7 million of that amount;
• NFA rejected $16.5 million on grounds of defective work, inflated unit counts, and unsupported charges;
• Field inspection reports confirmed that Meridian's Phase 3 crew deployment was far below the levels necessary to achieve the contractual schedule.
Ms. Voss should characterize Phase 3 as further confirmation of Meridian's systemic inability to perform the work. The combination of the Phase 2 delays, the quality failures, and the Phase 3 mobilization collapse provided overwhelming evidence of material breach by the time Cure Notice No. 1 was issued in January 2024.
Documents to prepare. The following documents should be reviewed with Ms. Voss:
• Phase 3 payment applications and NFA's responses approving $31.7 million and rejecting $16.5 million;
• Field inspection reports for Phase 3 work;
• Mobilization schedules and actual crew deployment records;
• Any correspondence between Voss and Meridian regarding Phase 3 progress.
G. Topic 7: Cure Notice and Termination Sequence
Expected questions. This will be one of the most extensively examined areas of the deposition. Mr. Deluca will walk through the detailed chronology of the cure notice and termination sequence, likely in a day-by-day, document-by-document fashion. He will probe each step of the process for procedural deficiencies, bad faith, or evidence that NFA did not give Meridian a genuine opportunity to cure. The chronological sequence is as follows:
1. January 18, 2024 — Cure Notice No. 1. Sent by Voss to Victor Sandoval (Meridian CEO). The notice cited three categories of material breach: (a) failure to achieve Milestone 8 completion, (b) inadequate Phase 3 mobilization falling far short of contractual requirements, and (c) 43 critical NCRs documenting systemic quality failures. The notice demanded cure within 30 days as required by MCA § 14.1.
2. February 2, 2024 — Meridian's Response. Submitted by Sandoval, disputing the characterization of material breach. Meridian asserted that the delays were caused by three factors: (a) NFA's failure to timely obtain municipal permits under MCA § 5.3, (b) 14 Owner-directed scope changes that were never formalized as Change Orders under MCA § 16.1, and (c) force majeure events, specifically the continuing aftereffects of COVID-19 on labor supply and supply chain disruptions affecting the availability and cost of fiber optic cable and related materials.
3. February 19, 2024 — Cure Notice No. 2. Sent by Voss, stating that Meridian had failed to cure the identified material breaches within the 30-day cure period, that material breach was continuing, and demanding that Meridian submit a detailed remediation plan within 15 days.
4. March 5, 2024 — Meridian's Corrective Action Plan. Submitted by Meridian, proposing an accelerated construction schedule, deployment of additional crews, a request for a nine-month schedule extension, and a demand for $87 million in additional compensation to cover the costs of acceleration and what Meridian characterized as uncompensated scope changes.
5. March 12, 2024 — NFA's Rejection. Northgate rejected Meridian's Corrective Action Plan as inadequate, noting that: (a) the proposed schedule did not demonstrate how Meridian would recover the accumulated delays; (b) the request for a nine-month extension and $87 million in additional compensation was unjustified in light of Meridian's own performance failures; and (c) 12 additional critical NCRs had been issued in February 2024, demonstrating that Meridian's quality failures were continuing even during the cure period.
6. April 1, 2024 — Notice of Termination for Cause. Issued by Voss under MCA § 14.1, effective immediately. The notice stated that Meridian had failed to cure its material breaches despite two written cure notices, an extended period for submission and evaluation of a Corrective Action Plan, and continuing material breaches during the cure period.
7. April 8, 2024 — Meridian's Contest. Meridian's counsel contested the validity of the termination, alleging that the termination was pretextual and that NFA had failed to afford Meridian a genuine opportunity to cure.
Key points. Ms. Voss must demonstrate that the termination process strictly followed the requirements of MCA § 14.1. The contractual procedure required written notice of material breach, a 30-day cure period, and then the right to terminate if the breach remained uncured. NFA went beyond the minimum contractual requirements by issuing a second cure notice, granting additional time for Meridian to submit a Corrective Action Plan, and evaluating that plan before proceeding to termination. The decision was based on documented performance failures, not pretext. At every stage, Ms. Voss's actions were informed by the factual record — field reports, NCR data, schedule analyses, and Meridian's own submissions — and were taken in consultation with NFA's General Counsel, Dominic Hale.
Caution. Meridian's counsel will press hard on the gap between Cure Notice No. 1 (January 18, 2024) and the termination (April 1, 2024) — a period of approximately 73 days. They will argue that despite this period, Meridian was not given a genuine opportunity to cure because NFA had already decided to terminate and was merely going through the contractual motions. Ms. Voss should counter this narrative by pointing to the multiple opportunities NFA provided — two cure notices, an extended deadline for the Corrective Action Plan, and a good-faith evaluation of the plan — and by emphasizing that Meridian's performance continued to deteriorate during the cure period, as evidenced by the 12 additional critical NCRs issued in February 2024. If the cure period was a sham, NFA would not have bothered to evaluate the Corrective Action Plan and provide a detailed written rejection. The fact that NFA followed each step methodically is evidence of good faith, not bad faith.
Documents to prepare. All documents in the cure-and-termination sequence should be reviewed with Ms. Voss:
• Cure Notice No. 1 (January 18, 2024);
• Meridian's February 2, 2024 response;
• Cure Notice No. 2 (February 19, 2024);
• Meridian's Corrective Action Plan (March 5, 2024);
• NFA's March 12, 2024 rejection letter;
• Notice of Termination for Cause (April 1, 2024);
• Meridian's April 8, 2024 contest letter;
• February 2024 NCR reports (documenting the 12 additional critical NCRs during the cure period).
H. Topic 8: Meridian's Permit Defense (MCA § 5.3)
Expected questions. Meridian's counsel will probe the allocation of permitting responsibilities under MCA § 5.3, seeking to establish that NFA bore primary responsibility for obtaining municipal permits and that NFA's failure to obtain those permits in a timely manner caused or contributed to Meridian's schedule delays. Mr. Deluca will likely ask about specific permits that were delayed, the municipalities involved, whether NFA had dedicated personnel responsible for permit applications, and whether Voss was aware of permitting delays that impacted Meridian's construction schedule.
Key points. Ms. Voss should testify consistently with NFA's position that MCA § 5.3 allocated primary permitting responsibility to the Contractor — i.e., Meridian — with the Owner (NFA) providing reasonable assistance in engaging with municipal authorities where necessary. This allocation of responsibility is consistent with industry practice for large-scale fiber construction programs, where the contractor is typically responsible for identifying required permits, preparing and submitting applications, tracking permit status, and coordinating with local authorities to obtain necessary approvals. NFA's role was limited to providing support and leverage — for example, by participating in meetings with municipal officials or providing corporate information required for franchise agreements — not to assume the permitting function itself.
Ms. Voss should be prepared to identify specific permitting tasks that Meridian failed to perform — such as failure to submit timely applications, failure to respond to municipal requests for additional information, and failure to maintain permit tracking systems — and to identify instances where NFA provided timely support when called upon by Meridian.
Caution. Ms. Voss should avoid making broad concessions that NFA was responsible for "all permitting" or that NFA "failed" to obtain permits. She should refer to the MCA language carefully and characterize NFA's role as one of assistance and support, not primary responsibility. If confronted with specific emails in which NFA personnel discussed permit delays or expressed frustration with municipal bureaucracies, she should frame those communications as reflecting NFA's engagement in providing the assistance contemplated by MCA § 5.3, not as evidence that NFA had assumed the permitting obligation.
Documents to prepare. The following documents should be reviewed with Ms. Voss:
• MCA § 5.3 (full text);
• Permit tracking logs maintained by NFA and/or Meridian;
• Correspondence between NFA and municipal authorities regarding permit applications;
• Any internal NFA emails discussing the allocation of permitting responsibilities;
• Any communications from Meridian requesting NFA assistance with permitting, together with NFA's responses.
I. Topic 9: Meridian's Scope Change Defense (MCA § 16.1)
Expected questions. Meridian contends that NFA directed 14 scope changes during the course of the project that were never formalized as Change Orders under MCA § 16.1. Meridian's counsel will attempt to establish that these alleged scope changes expanded Meridian's work, increased its costs, and contributed to schedule delays — and that NFA refused to acknowledge or compensate Meridian for the additional work. Mr. Deluca will likely ask whether Ms. Voss authorized any of the alleged scope changes, whether she was aware that Calloway or other NFA field personnel directed changes in the field, the nature and scope of each alleged change, and whether Meridian submitted formal Change Order requests that NFA refused to process.
Key points. Ms. Voss should testify that MCA § 16.1 required all changes to the scope of work, schedule, or contract price to be evidenced by written Change Orders signed by authorized representatives of both parties. This is a standard contractual requirement in construction agreements of this nature, and it exists precisely to prevent disputes over informal or alleged oral changes. Ms. Voss should further testify that:
• Any directions given by NFA representatives in the field were within the original scope of work or constituted minor clarifications and design coordination — activities that are a normal part of contract administration on a complex infrastructure project and do not constitute scope changes requiring Change Orders;
• Meridian never submitted formal Change Order requests for the alleged 14 changes as required by the contract;
• Had Meridian believed that NFA was directing out-of-scope work, the MCA provided a clear mechanism for Meridian to submit a Change Order request documenting the alleged change, its cost impact, and its schedule impact — Meridian's failure to use that mechanism is telling;
• Ms. Voss did not personally direct any changes that she understood to be outside the original scope of work.
Caution. This is a critical area for the deposition. Meridian's counsel will attempt to establish through Ms. Voss's testimony — or through documents shown to her — that she or Calloway orally directed scope changes that expanded Meridian's work without going through the Change Order process. Ms. Voss should carefully distinguish between scope clarifications and design coordination (which are normal elements of contract administration and fall within the original scope) and actual scope changes requiring Change Orders. If shown specific NFA field directives or instructions, she should review them carefully and characterize each one according to this distinction. She should not concede that any NFA directive constituted a "scope change" without careful consideration.
Documents to prepare. The following documents should be reviewed with Ms. Voss:
• MCA § 16.1 (full text of the Change Order provision);
• The list of 14 alleged scope changes from Meridian's February 2, 2024 response to Cure Notice No. 1;
• Any NFA field directives, requests for information, or instructions that Meridian may point to as evidence of scope changes;
• Emails from Voss and Calloway regarding the alleged changes;
• Any Change Order request forms submitted by Meridian (or documentation of the absence thereof);
• MCA provisions defining the original scope of work.
J. Topic 10: Meridian's Force Majeure Defense
Expected questions. Meridian has asserted that COVID-19 aftereffects on labor supply and fiber cable supply chain disruptions constituted force majeure events excusing its schedule delays. Mr. Deluca will ask whether NFA considered Meridian's force majeure claims, whether NFA granted any schedule extensions on force majeure grounds, and whether other contractors in the region experienced similar labor and supply challenges during the relevant period.
Key points. Ms. Voss should address the force majeure defense on several levels:
• Contractual timing: The MCA was executed on March 15, 2020, near the onset of the COVID-19 pandemic. Both parties entered into the agreement with awareness of the pandemic environment. The force majeure argument is weakened by the fact that the parties had the opportunity to negotiate COVID-specific protections and allocated risk accordingly at the time of contracting.
• Temporal disconnect: The most severe COVID-related disruptions occurred in 2020 and 2021. Yet Meridian's performance was largely on schedule during Phase 1 (2020–2021), with only the 47-day delay on Milestone 3. Meridian's delays accelerated in Phase 2 (2022–2023), at a time when industry-wide labor availability and supply chain conditions were improving. This temporal disconnect undermines the causal link between COVID-19 and Meridian's delays.
• Procedural failure: The MCA's force majeure clause required prompt written notice of force majeure events. Ms. Voss should testify that, to the best of her recollection, Meridian did not comply with the contractual notice requirements for force majeure claims in a timely manner. Meridian first raised force majeure as a defense in its February 2, 2024 response to Cure Notice No. 1 — well after the delays had occurred.
• Systemic vs. external causes: Ms. Voss should attribute Meridian's delays to internal management failures — inadequate crew levels, poor subcontractor oversight, equipment shortages, and ineffective construction sequencing — rather than external force majeure events.
Documents to prepare. The following documents should be reviewed with Ms. Voss:
• The MCA's force majeure clause (exact section to be identified and bookmarked);
• Any force majeure notices submitted by Meridian (if any exist);
• Industry data on labor availability and supply chain conditions in the 2022–2024 period (for context);
• Voss's communications assessing or responding to Meridian's force majeure claims.
K. Topic 11: The Pretext Theory — In-House Fiber Strategy
Expected questions. This is the area where Meridian's counsel will be most aggressive and where the greatest risks to NFA's defense exist. Mr. Deluca will attempt to establish that:
• Northgate and/or NFA were considering bringing the fiber build-out in-house prior to the issuance of Cure Notice No. 1;
• The Northgate board or NFA senior management discussed self-performing fiber construction as a strategic initiative;
• Favorable market shifts in construction pricing — with construction costs declining from their pandemic-era peaks — motivated the termination by making it cheaper to re-procure the remaining scope from a different contractor;
• NFA had identified Crestline Engineering Corp. ("Crestline") as a replacement contractor and had begun negotiations with Crestline before the termination;
• The timing of the Crestline replacement contract (executed June 10, 2024 — approximately two months after the April 1, 2024 termination) suggests that the replacement strategy was already well advanced at the time of termination.
Key points. Ms. Voss should testify truthfully and carefully on this topic. She should acknowledge, if it is the case, that NFA considered alternative strategies for the fiber build-out as part of prudent contingency planning — but she must firmly tie that consideration to Meridian's performance failures. The key framing points are:
• Any consideration of alternative contractors or in-sourcing was a prudent and responsible response to Meridian's persistent and escalating performance failures. When a contractor is failing to perform, a responsible project owner has an obligation to its stakeholders to evaluate contingency options. Failing to plan for alternatives would have been irresponsible.
• The termination decision was driven by Meridian's documented material breach — persistent and escalating schedule delays, failure to complete Milestone 8, minimal Phase 3 mobilization, and systemic quality failures documented in 287 NCRs. The contemporaneous documentation supports this conclusion.
• Crestline was engaged after the termination, not before. The Crestline replacement contract was not executed until June 10, 2024. While there may have been preliminary discussions or market assessments prior to the termination date, those discussions were part of responsible contingency planning, not evidence of a pre-determined decision to terminate.
• Any internal discussions about alternatives to Meridian were a natural consequence of Meridian's performance problems and do not demonstrate pretext.
Privilege landmine. This topic presents the most significant privilege risks of the entire deposition. Ms. Voss may have participated in meetings or email chains where the in-house fiber strategy was discussed alongside legal advice from Dominic Hale (NFA General Counsel) or outside counsel at Calderwood & Harkness. She must not disclose the substance of any communications that involved the provision or receipt of legal advice. If asked about conversations with Mr. Hale or with C&H attorneys, she should state: "I had communications with our legal counsel on that topic" — and she should not reveal the substance of those communications. Defending counsel will instruct the witness not to answer any question that calls for the disclosure of privileged communications.
The Northgate privilege log contains 214 documents withheld on grounds of attorney-client privilege and/or work product protection, many of which relate to the internal analysis of whether to bring fiber construction in-house, the evaluation of replacement contractors, and the legal implications of the termination decision. HDS has filed a Motion to Compel production of certain of these documents (motion filed November 22, 2024), which is currently pending before Justice Alvarez. Ms. Voss's deposition testimony should not provide a basis for the court to conclude that the privilege has been waived on any of these documents.
Caution. Meridian's counsel will try to show that business decisions about in-sourcing preceded the cure notices, thereby establishing that the termination was pretextual. Ms. Voss should not speculate about NFA's or Northgate's future business strategy, should not discuss the details of the Crestline contract unless specifically asked (and even then, should defer to documents), and should confine her testimony to the performance-based reasons for the termination. She should resist any invitation to characterize the termination as a "business decision" or a "strategic realignment" — the termination was an exercise of NFA's contractual rights in response to Meridian's material breach.
Documents to prepare. The following documents should be reviewed with Ms. Voss:
• Any non-privileged internal NFA documents discussing alternative contractors or in-sourcing;
• The Crestline replacement contract (executed June 10, 2024, for $712 million for the remaining scope of work, with a 30-month performance term);
• NFA's capital expenditure budget for FY2024 ($340 million);
• A timeline showing when Crestline negotiations began and the relationship of those negotiations to the termination date;
• Privilege log entries relating to in-house fiber strategy discussions (for defending counsel's reference during objections).
L. Topic 12: Financial and Payment Matters
Expected questions. Meridian's counsel will question Ms. Voss about the financial aspects of the MCA, including total amounts paid to Meridian, retainage held, the basis for withholding retainage, the Phase 3 disputed invoices, the LD deductions, and Voss's role in the payment approval process. The key financial figures are:
• Total amounts paid to Meridian: $512,700,000;
• Retainage held: $56,966,667;
• Phase 3 disputed invoices: $16,500,000;
• MCA payment terms: monthly progress payments under MCA § 18.1, with 10% retainage.
Key points. Ms. Voss should confirm the general payment process:
• Meridian submitted monthly progress payment applications documenting work completed during the preceding period;
• NFA's construction management team, led by Sean Calloway, reviewed and verified the payment applications against field inspection records and milestone documentation;