PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
MEMORANDUM
TO: Linda Osei, Responsible Partner
FROM: Yuki Nakamura, Associate
DATE: November 20, 2024
RE: Deposition Summary and Analysis — Renata Voss (November 12–13, 2024)
MATTER: Meridian Infrastructure Partners LLC v. Northgate Fiber Americas Inc., Index No. 654321/2024 (Supreme Court of the State of New York, New York County, Commercial Division, Part 49, Hon. Eleanor M. Ricci)
C&H MATTER NO.: 1022-00005
PURPOSE: This memorandum summarizes and analyzes the testimony of Renata Voss during her two-day deposition on November 12–13, 2024, conducted at the offices of Calderwood & Harkness LLP, 425 Park Avenue, 33rd Floor, New York, NY 10022. The deposition was taken by Thomas Deluca, lead partner of Hargrove, Deluca & Stein LLP, counsel for Meridian Infrastructure Partners LLC ("Meridian"). The witness was defended by Jeffrey Park of Calderwood & Harkness LLP, counsel for Northgate Fiber Americas Inc. ("NFA"). This summary is intended to assist with trial preparation, coordination with expert witnesses, and preparation of upcoming fact-witness depositions. It is protected by the attorney-client privilege and the work product doctrine and should not be disclosed outside the litigation team without prior authorization.
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I. EXECUTIVE SUMMARY
Renata Voss, Vice President of US Network Infrastructure at Northgate Fiber Americas Inc. ("NFA"), was deposed over two days, November 12 and 13, 2024, for a total of approximately thirteen hours of on-the-record testimony. Ms. Voss was the senior NFA executive responsible for overseeing the entirety of the fiber build-out program under the Master Construction Agreement ("MCA") dated March 15, 2020, between NFA and Meridian Infrastructure Partners LLC ("Meridian"). She was the NFA signatory to the MCA, held ultimate decision-making authority on milestone certifications, non-conformance reports ("NCRs"), cure notices, and the termination decision, and served as NFA's primary point of executive contact with Meridian's senior leadership throughout the life of the contract.
Overall Assessment. Ms. Voss was a strong, well-prepared witness. She was poised, deliberate in her answers, and consistent across the two days of testimony. Her demeanor was professional, and she avoided volunteering information beyond what was asked. Her testimony was largely favorable to the defense, particularly on the following critical topics: (a) Meridian's persistent and escalating schedule delays across all three phases of the fiber build-out program; (b) the substandard quality of Meridian's workmanship, as evidenced by the issuance of 287 NCRs during Phase 2, including 43 classified as "critical"; (c) the procedural propriety of NFA's cure notice process and the ultimate issuance of the Notice of Termination for Cause; and (d) the basis for termination for cause under MCA § 14.1, including the well-documented pattern of material breach.
Key Admissions. Notwithstanding the overall favorable character of Ms. Voss's testimony, there were several admissions that Meridian's counsel may attempt to exploit in subsequent proceedings:
1. Permitting. Ms. Voss acknowledged that NFA experienced some internal delays in processing municipal permit applications during Phase 2, particularly in Connecticut during Q3 2022, attributable to staffing transitions in NFA's regulatory affairs department. Although she maintained that permitting was Meridian's contractual responsibility under MCA § 5.3 and characterized NFA's involvement as providing "above and beyond" assistance, this admission creates an opening for Meridian's Owner-caused delay narrative.
2. Scope Changes. Ms. Voss acknowledged that approximately five to six of the fourteen alleged scope changes identified by Meridian involved some level of oral direction from NFA field personnel before formal Change Order documentation was initiated. She further conceded that three to four of those items "may have involved some incremental scope" that arguably warranted formal Change Orders under MCA § 16.1. These admissions will be used by Meridian to support its constructive change order defense.
3. Market Pricing. Ms. Voss acknowledged awareness of favorable construction market pricing shifts in late 2023 and early 2024, arising from increased contractor capacity and reduced material costs. While she firmly denied that pricing considerations drove the termination decision, this admission feeds into Meridian's "pretext theory" that NFA sought to terminate the MCA to re-procure remaining work at lower cost.
Areas Requiring Follow-Up. The following items require prompt attention:
• Corroboration of Ms. Voss's testimony regarding permitting responsibility with the documentary record, including targeted ESI searches for permit-related communications in Q3 2022.
• Preparation of Sean Calloway and Helena Bright to address permitting, scope changes, and market pricing topics in a manner consistent with Ms. Voss's testimony.
• Coordination with Dr. Elinor Chazen of Lakeview Consulting Group LLC on her delay causation analysis, specifically to address whether any NFA-related permitting delays fell on the critical path.
• Update of Jeffrey Park's change order analysis memorandum in light of Ms. Voss's concessions regarding oral field direction.
II. WITNESS BACKGROUND AND ROLE
A. Professional Background
Renata Voss has served as Vice President of US Network Infrastructure at Northgate Fiber Americas Inc. since January 2018. In this capacity, she is responsible for all aspects of NFA's domestic fiber-optic infrastructure deployment, including capital project planning, contractor selection and oversight, construction management, and quality assurance. Prior to assuming her current role, Ms. Voss held a series of progressively senior engineering and operations positions at NFA and other telecommunications companies over a career spanning more than twenty years. Her prior roles included Director of Network Engineering at NFA (2014–2017), Senior Project Manager at Atlantic Telecom Infrastructure LLC (2009–2014), and various field engineering and construction management positions earlier in her career.
Within NFA's organizational structure, Ms. Voss reports to Sir Malcolm Ashford, Chief Executive Officer of Northgate Telecommunications PLC ("NTP"), the UK-based parent entity, and to Dominic Hale, General Counsel of NTP, on matters relating to the fiber build-out program. Her direct reports included Sean Calloway, Director of Construction Management at NFA, who served as the day-to-day contract administrator on the MCA and maintained primary operational contact with Meridian's project-level personnel.
B. Role in the MCA and Fiber Build-Out Program
Ms. Voss played a central role in every material aspect of the MCA and the fiber build-out program:
• Contractor Selection. Ms. Voss was the senior NFA executive who approved the selection of Meridian as the contractor for NFA's $1.2 billion fiber build-out program following a competitive procurement process.
• Contract Execution. Ms. Voss signed the MCA on behalf of NFA on March 15, 2020. She testified that she reviewed the agreement in its entirety before signing and was familiar with its principal terms, including the scope of work, pricing structure, milestone schedule, quality standards, cure and termination provisions, and change order procedures.
• Contract Administration Authority. Ms. Voss held ultimate authority within NFA over the issuance of the Notice to Proceed (April 1, 2020), milestone completion certifications, non-conformance reports, cure notices, and the Notice of Termination for Cause (April 1, 2024). While certain of these functions were delegated to Mr. Calloway on a day-to-day basis, Ms. Voss retained final approval authority and was regularly briefed on project status.
• Cure Notices. Ms. Voss authored or co-authored Cure Notice No. 1 (January 18, 2024) and Cure Notice No. 2 (February 19, 2024), working in collaboration with Mr. Calloway and Mr. Hale. She personally reviewed and approved both notices before issuance.
• Termination Decision. Ms. Voss approved the Notice of Termination for Cause issued April 1, 2024. She testified that the decision was made in consultation with Mr. Hale and outside counsel and reflected NFA's determination that Meridian had failed to cure its material breaches of the MCA.
III. DAY 1 TESTIMONY (NOVEMBER 12, 2024) — TOPIC-BY-TOPIC SUMMARY
A. Formation and Execution of the MCA
Ms. Voss provided detailed testimony regarding the competitive procurement process that led to Meridian's selection as the contractor for NFA's fiber build-out program. She testified that NFA solicited bids from four qualified contractors, evaluated proposals based on a weighted scoring methodology that considered price, relevant experience, technical capacity, and available workforce, and ultimately selected Meridian based on its overall score. Ms. Voss recalled that Meridian's bid was not the lowest but was considered the strongest overall based on the combination of competitive pricing, extensive prior experience with large-scale fiber deployments, and representations regarding crew availability and equipment capacity.
Ms. Voss confirmed the following key terms of the MCA:
• Contract Price. $1.2 billion, structured as 65% fixed-price milestones ($780 million) and 35% unit-rate pricing ($420 million). The fixed-price milestone component applied to the major construction phases and was tied to defined geographic and functional completion criteria. The unit-rate component covered quantities of specific work items (e.g., linear footage of conduit installed, number of splice closures, handholes, and related items) that varied based on actual field conditions.
• Scope of Work. Approximately 18,500 route miles of underground and aerial fiber-optic cable across seven states: New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia. The scope encompassed conduit installation, fiber cable placement, splicing, testing, as-built documentation, and related civil works.
• Milestone Schedule. Fourteen defined milestones under MCA § 8.2, organized across three phases, with a five-year term from the Notice to Proceed (April 1, 2020, through March 31, 2025).
• Liquidated Damages. $175,000 per day per milestone for unexcused delay under MCA § 9.1, subject to a cap of 10% of milestone value per individual milestone and an aggregate cap of 5% of total contract price ($60 million).
• Performance Bond. Ms. Voss confirmed that NFA required, as a condition of the MCA, a performance bond in the amount of $120 million, which was provided by Ironclad Surety Group Inc. (Bond No. ISG-2020-NE-04417). Ms. Voss confirmed that Ironclad was Meridian's surety and that NFA held rights under the bond in the event of contractor default. Ms. Voss testified that NFA provided Ironclad with notice of the termination on or about April 3, 2024.
B. Phase 1 Performance (New York Metro & Northern New Jersey)
Phase 1 encompassed approximately 3,200 route miles across the New York metropolitan area and northern New Jersey, corresponding to Milestones 1 through 4, with a combined milestone value of $208 million. Ms. Voss testified that Phase 1 was largely completed but with emerging schedule issues that foreshadowed the more serious performance failures that would follow in subsequent phases.
Milestone 1 and Milestone 2. Ms. Voss confirmed that Milestones 1 and 2 were completed on time. She noted that NFA had granted Meridian schedule relief for these milestones to account for COVID-19 impacts during 2020, including workforce restrictions, supply chain disruptions, and municipal permitting office closures during the early months of the pandemic. She testified that the schedule relief was granted informally through mutual agreement and was reflected in updated project schedules exchanged between the parties.
Milestone 3. Ms. Voss testified that Milestone 3 was completed 47 days late. The contractual target completion date was August 28, 2021, and actual completion was certified on October 14, 2021. Ms. Voss provided detailed testimony on the causes of the Milestone 3 delay, attributing it to three principal factors: (1) Meridian's inadequate crew staffing in northern New Jersey, where Meridian failed to deploy the number of construction crews it had committed to in its baseline schedule; (2) repeated equipment failures, including breakdowns of directional drilling rigs that Meridian had not adequately maintained; and (3) poor subcontractor coordination, including scheduling conflicts between Meridian's civil works subcontractors and its fiber placement crews, resulting in idle time and rework.
Ms. Voss confirmed that NFA assessed liquidated damages of $8,225,000 (47 days × $175,000 per day) for the Milestone 3 delay pursuant to MCA § 9.1. The assessment was communicated to Meridian by letter dated November 5, 2021 (Exhibit 9), and the amount was deducted from Meridian's subsequent payment applications. Ms. Voss testified that Meridian did not formally contest the liquidated damages assessment at the time, although Victor Sandoval, Meridian's CEO, expressed disagreement in a telephone call with Ms. Voss.
Milestone 4. Ms. Voss testified that Milestone 4 was completed approximately on time, with a minor delay of only a few days that was not sufficient to trigger liquidated damages under the MCA's threshold provisions.
Phase 1 Financial Summary. Total approved payments to Meridian for Phase 1 work were $199,775,000, calculated as the $208 million milestone value less $8,225,000 in assessed liquidated damages for the Milestone 3 delay.
Favorable Testimony. Ms. Voss stated, in response to a question about whether Phase 1 performance gave NFA any indication of future problems, that the Milestone 3 delays "should have been a warning sign" and that NFA raised concerns directly with Victor Sandoval at the time. She recalled a meeting in late October 2021 at NFA's offices in which she and Mr. Calloway presented schedule recovery concerns to Mr. Sandoval and Bridget Yeung (Meridian's COO), and in which Mr. Sandoval committed to increasing crew levels for Phase 2. This testimony establishes that NFA provided early notice of performance concerns and that Meridian's senior leadership was aware of the issues.
C. Phase 2 Performance (Connecticut, Western Massachusetts, Southern Pennsylvania)
Phase 2 encompassed approximately 5,600 route miles across Connecticut, western Massachusetts, and southern Pennsylvania, corresponding to Milestones 5 through 8, with a combined milestone value of $363 million. Ms. Voss provided extensive testimony on Phase 2 as the period when Meridian's performance "deteriorated significantly" across both schedule and quality dimensions.
Milestone 5. Completed 22 days late. Liquidated damages of $3,850,000 were assessed (22 × $175,000). Ms. Voss testified that the causes of delay were similar to those experienced in Milestone 3: insufficient crew deployment and poor scheduling coordination among subcontractors.
Milestone 6. Completed 68 days late. Liquidated damages of $11,900,000 were assessed (68 × $175,000). Ms. Voss characterized the Milestone 6 delay as a "substantial escalation" and testified that it reflected Meridian's systemic inability to manage multiple geographic work fronts simultaneously. She noted that Meridian's monthly progress reports during this period consistently showed actual production rates far below the planned rates in the approved baseline schedule.
Milestone 7. Completed 91 days late. Liquidated damages of $15,925,000 were assessed (91 × $175,000). Ms. Voss described Milestone 7 as the point at which NFA concluded that Meridian's schedule recovery was "not credible" and began to consider whether termination would be necessary. She testified that by this point, the pattern of delays was accelerating rather than improving, notwithstanding Meridian's repeated assurances that it would bring additional resources to bear.
Milestone 8. Never completed before the termination. Ms. Voss testified that as of the April 1, 2024, termination date, Milestone 8 had accrued 134 days of delay with no realistic prospect of near-term completion. Liquidated damages were assessed at the 10% cap on the Milestone 8 value, yielding $9,100,000 (10% × $91 million milestone value).
Phase 2 Liquidated Damages Summary. Total Phase 2 liquidated damages assessed: $40,775,000 ($3,850,000 + $11,900,000 + $15,925,000 + $9,100,000).
Phase 2 Financial Summary. Phase 2 approved payments totaled $322 million in progress payments less $40,775,000 in assessed liquidated damages, yielding net payments of $281,225,000.
D. Quality Defects and Non-Conformance Reports
Ms. Voss provided extensive and detailed testimony regarding the quality deficiencies in Meridian's Phase 2 work, which she characterized as pervasive and reflective of a systemic breakdown in Meridian's quality management systems. This testimony is particularly relevant to NFA's Counterclaim III (remediation costs) and to the overall justification for termination under MCA § 14.1.
NCR Statistics. Ms. Voss confirmed that NFA's quality assurance team issued a total of 287 NCRs during Phase 2, of which 43 were classified as "critical." She explained that NCRs were categorized based on severity: "critical" NCRs involved defects that could compromise the structural integrity or performance of the fiber network, while "non-critical" NCRs involved lesser defects that were nonetheless departures from the contract specifications. Ms. Voss testified that the number of NCRs was "extraordinarily high" by industry standards and far exceeded what NFA had experienced on comparable projects with other contractors.
Categories of Critical NCRs. Ms. Voss described the three principal categories of critical NCRs in detail:
1. Splice Loss Exceeding Specifications. Numerous fiber splices failed to meet the maximum attenuation limits specified in Northgate Technical Specification NS-FIBER-2020. Ms. Voss explained that excessive splice loss degrades signal quality and, if uncorrected, can render sections of the network non-functional or require costly re-splicing.
2. Improper Conduit Depth. Conduit was installed at depths that failed to comply with the minimum depth requirements specified in ANSI/TIA-568 and BICSI installation guidelines, as incorporated by reference into the MCA. Ms. Voss testified that insufficient conduit depth creates a risk of physical damage to the fiber from surface activities (e.g., excavation, vehicular traffic) and is a common finding in projects where contractors prioritize speed over compliance.
3. Unauthorized Route Deviations. In multiple instances, Meridian's crews deviated from the approved route design without obtaining prior authorization from NFA, as required by the MCA. Ms. Voss explained that unauthorized route deviations can create conflicts with existing utilities, encroach on private property, and generate as-built documentation that does not reflect the actual physical plant, creating long-term maintenance and operational challenges.
Communication to Meridian. Ms. Voss testified that the critical NCRs were documented by NFA's internal QA team in monthly QA reports (Exhibit 40) and were communicated in real time to Meridian's responsible personnel, including Marcus Henley (VP, Field Operations, Northeast Division) and Bridget Yeung (COO). She recalled multiple meetings and conference calls in which NCRs were discussed with Meridian's management, including a formal quality review meeting in October 2023 at which Mr. Calloway presented a summary of outstanding NCRs and demanded a remediation timeline.
Cure Notice No. 1 and Subsequent NCRs. Ms. Voss confirmed that the 43 critical NCRs issued through January 2024 were specifically cited in Cure Notice No. 1 (January 18, 2024) as evidence of material breach under MCA § 12.4. She further testified that an additional 12 critical NCRs were issued in February 2024, after Cure Notice No. 1, reflecting ongoing quality failures by Meridian even during the cure period. These additional NCRs were cited in NFA's March 12, 2024, rejection of Meridian's Corrective Action Plan as evidence that Meridian had not only failed to cure but was continuing to produce non-conforming work.
Remediation Cost Estimate. Ms. Voss testified that NFA's engineering team estimated the cost to remediate the 287 NCRs at approximately $18.3 million. She broke the estimate down as follows: the 43 critical NCRs carried an average remediation cost of approximately $275,000 each (totaling approximately $11.825 million), reflecting the need for re-splicing, re-routing, and/or re-excavation and re-installation of conduit at proper depth. The 244 non-critical NCRs carried an average remediation cost of approximately $26,500 each (totaling approximately $6.466 million). Ms. Voss confirmed that these estimates were consistent with NFA's engineering assessment prepared in support of Counterclaim III.
Favorable Testimony. Ms. Voss was emphatic in her characterization of the quality failures as systemic rather than isolated. She stated: "These were not the kinds of defects you see from a contractor having a bad week. This was a pattern that reflected Meridian's fundamental failure to maintain adequate supervision, deploy skilled labor, and enforce basic quality controls on its subcontractors." This testimony is particularly valuable for establishing the materiality of Meridian's breach and rebutting any argument that the NCRs reflected minor, easily correctable deficiencies.
E. MCA Quality Standards (Section 12.4)
Ms. Voss provided testimony regarding the quality standards incorporated into the MCA and the QA/QC processes NFA employed to monitor compliance.
Ms. Voss confirmed that all work under the MCA was required to conform to Northgate Technical Specification NS-FIBER-2020, a comprehensive internal specification document that established performance requirements for fiber-optic cable installation, splicing, testing, and documentation. She further confirmed that the MCA required compliance with applicable industry standards, including ANSI/TIA-568 (Telecommunications Cabling Standard) and BICSI (Building Industry Consulting Service International) installation guidelines, which together established minimum requirements for conduit installation depth, bend radius, splice enclosure protection, and related parameters.
Ms. Voss described NFA's QA/QC inspection process as consisting of three principal components: (1) field inspections conducted by NFA's QA team at construction sites on a random and targeted basis; (2) splice testing using OTDR (optical time-domain reflectometer) equipment to verify that splice loss measurements fell within specification limits; and (3) as-built documentation review to confirm that the installed plant matched the approved design and that all deviations were properly documented and authorized. She testified that NCRs were issued whenever work was found to fail to meet these standards and that, under MCA § 12.4, Meridian was required to remediate all NCR-identified defects at its own cost within the timeframes specified in the NCR.
IV. DAY 2 TESTIMONY (NOVEMBER 13, 2024) — TOPIC-BY-TOPIC SUMMARY
A. Phase 3 Performance (Maryland, Virginia, Eastern Pennsylvania)
Phase 3 encompassed approximately 9,700 route miles across Maryland, Virginia, and eastern Pennsylvania, corresponding to Milestones 9 through 14, with a combined milestone value of $629 million. Phase 3 represented the largest and most geographically dispersed portion of the fiber build-out program and was scheduled to be the final phase of construction under the MCA's five-year term.
Ms. Voss testified that Meridian mobilized construction crews in Maryland beginning in July 2023 but made "minimal progress" in the months that followed. She characterized Meridian's Phase 3 mobilization as woefully inadequate in light of the scope and timeline for the remaining work. As of the April 1, 2024, termination date, only approximately 340 of 9,700 route miles had been constructed, representing approximately 3.5% of the Phase 3 scope. Ms. Voss testified that this level of progress was "entirely inconsistent" with the approved baseline schedule and Meridian's contractual obligations.
Phase 3 Payment Disputes. Ms. Voss provided important testimony regarding Phase 3 payment applications, which is directly relevant to Meridian's Count II (Unpaid Invoices). She confirmed that Meridian submitted Phase 3 payment applications totaling $48.2 million. NFA approved and paid $31.7 million of that amount but disputed $16.5 million on the grounds that the underlying work was defective or that Meridian had submitted inflated unit counts that could not be verified by NFA's field inspectors.
Ms. Voss described specific instances of the alleged inflated unit counts. She testified that Meridian claimed footage of conduit installed in certain segments that NFA's field inspectors could not verify upon physical inspection of the work areas. In several instances, Meridian's reported quantities of installed conduit exceeded what NFA's GPS-tracked construction records and splice logs indicated should have been installed based on the sequencing and timing of work activities. Ms. Voss explained that discrepancies between Meridian's reported conduit pulls and NFA's GPS-tracked splice records suggested that Meridian was either double-counting work, reporting work that had not yet been completed, or claiming quantities in areas where no NFA-verified construction activity had occurred.
Favorable Testimony. Ms. Voss's detailed and specific testimony on the $16.5 million in disputed Phase 3 invoices directly supports NFA's defense against Meridian's Count II. Her testimony that the disputed amounts related to unverifiable and potentially inflated unit counts, rather than mere administrative disagreements over billing, strengthens NFA's position that the invoices were properly rejected and that no amount is owed.
B. Cure Notices and Termination Process
Ms. Voss walked through the full cure notice and termination timeline in detail, providing a comprehensive chronological account that established NFA's compliance with the procedural requirements of MCA § 14.1. This testimony is critical to NFA's defense that the termination was properly effected as a termination for cause rather than a wrongful termination.
January 18, 2024 — Cure Notice No. 1. Ms. Voss testified that she authored Cure Notice No. 1 (Exhibit 18) with input from Sean Calloway and Dominic Hale. The notice cited three categories of material breach: (1) Milestone 8's ongoing failure to reach completion, with over 90 days of accrued delay at the time of issuance; (2) Phase 3's grossly inadequate mobilization and progress, representing a prospective breach of Phase 3 milestone deadlines; and (3) the 43 critical NCRs demonstrating pervasive quality deficiencies. The notice demanded that Meridian cure its material breaches within 30 calendar days, as required by MCA § 14.1, and warned that failure to cure would result in termination.
February 2, 2024 — Meridian's Response. Ms. Voss testified that NFA received Meridian's response to Cure Notice No. 1, signed by Victor Sandoval, on February 2, 2024 (Exhibit 21). She testified that she found the response "wholly inadequate" for three reasons: first, it blamed NFA for permitting delays rather than accepting responsibility for Meridian's own schedule failures; second, it cited unformalized scope changes as a justification for delay and additional costs; and third, it invoked force majeure (principally COVID-19 aftereffects on labor supply and materials) without providing specific documentation or a concrete remediation plan. Ms. Voss characterized the response as "an exercise in blame-shifting, not a cure."
February 19, 2024 — Cure Notice No. 2. Ms. Voss testified that, having concluded that Meridian's February 2 response did not constitute a cure, she issued Cure Notice No. 2 (Exhibit 24) on February 19, 2024. This notice stated that Meridian had failed to cure its material breaches within the 30-day cure period and was in continuing material breach of the MCA. The notice demanded that Meridian submit a detailed remediation plan within 15 calendar days addressing schedule recovery, quality improvement, and crew augmentation.
March 5, 2024 — Meridian's Corrective Action Plan. Ms. Voss testified that Meridian submitted a Corrective Action Plan (Exhibit 27) on March 5, 2024. The plan proposed an accelerated construction schedule, deployment of additional crews, a 9-month extension of the contract term (from March 31, 2025, to December 31, 2025), and $87 million in additional compensation for what Meridian characterized as "Owner-caused delays" arising from permitting failures and unfunded scope changes.
March 12, 2024 — Rejection of Corrective Action Plan. Ms. Voss testified that she rejected the Corrective Action Plan by letter dated March 12, 2024 (Exhibit 29). She explained that the plan was unacceptable for multiple reasons: it demanded both additional time and additional money while simultaneously failing to address the fundamental quality failures documented in the NCRs; it continued to shift blame to NFA rather than presenting a credible self-assessment of Meridian's own deficiencies; and it failed to account for the 12 additional critical NCRs issued in February 2024, which demonstrated that Meridian's quality problems were ongoing even during the period when Meridian was purportedly preparing its remediation plan.
April 1, 2024 — Notice of Termination for Cause. Ms. Voss testified that she approved the issuance of the Notice of Termination for Cause (Exhibit 31) on April 1, 2024, effective immediately, after consultation with Dominic Hale and outside counsel. She testified that the notice invoked MCA § 14.1 and identified Meridian's failure to cure the material breaches described in Cure Notices No. 1 and No. 2 as the basis for termination.
Favorable Testimony. Ms. Voss was clear, consistent, and detailed on the procedural steps NFA took to comply with MCA § 14.1's 30-day cure requirement. She testified that NFA provided Meridian with more than 30 days and multiple opportunities to cure before terminating — indeed, the period between Cure Notice No. 1 (January 18) and the Notice of Termination (April 1) spanned approximately 73 days. Her testimony underscores that NFA acted deliberately, provided Meridian with every reasonable opportunity to demonstrate a path to cure, and terminated only after concluding that cure was not forthcoming. This testimony will be important in defending against Meridian's claim that the termination was procedurally deficient or pretextual.
C. Meridian's Permitting Defense (MCA § 5.3)
Mr. Deluca devoted considerable time on Day 2 to examining Ms. Voss on Meridian's claim that NFA bore responsibility for obtaining municipal construction permits under MCA § 5.3 and that NFA's failure to timely obtain permits caused or contributed to Meridian's schedule delays. This line of questioning represents one of Meridian's principal affirmative defenses to the termination-for-cause and liquidated damages claims.
Ms. Voss's testimony on permitting was mixed and requires careful attention in preparing upcoming witnesses and coordinating with Dr. Chazen's delay analysis:
• Contractual Allocation. Ms. Voss stated clearly and without equivocation that under MCA § 5.3, the Contractor (Meridian) was responsible for obtaining all construction permits required for the work, including municipal permits for street cuts, right-of-way access, and utility crossings. She testified that NFA's obligation under MCA § 5.3 was limited to providing "reasonable assistance" in interfacing with municipal authorities, such as facilitating introductions between Meridian's permitting staff and local officials and leveraging NFA's existing relationships with municipal entities.
• Practical Conduct. However, Ms. Voss acknowledged that, in practice, NFA's government relations team sometimes took the lead on certain municipal permit applications in Phase 2, particularly in Connecticut, because Meridian lacked established relationships with local permitting offices in those jurisdictions. She explained that NFA stepped in to provide this assistance because it was in NFA's interest to keep the project moving and because NFA's government relations team had pre-existing relationships with Connecticut municipal officials that could expedite the process.
• Characterization. Ms. Voss characterized NFA's involvement in the permitting process as providing "above and beyond" assistance that went beyond NFA's contractual obligations. She was firm in her position that NFA's voluntary assistance did not constitute an assumption of Meridian's contractual responsibility for permitting and that Meridian remained the party contractually responsible for ensuring that all necessary permits were obtained on a timely basis.
• Key Admission. When pressed by Mr. Deluca, Ms. Voss acknowledged that there were "some instances" where NFA's internal processing of permit applications experienced delays, particularly in Q3 2022. She attributed these delays to staffing transitions in NFA's regulatory affairs department during that period but maintained that the delays were limited in duration and scope.
• Materiality Assessment. Ms. Voss stated that any NFA-related permitting delays were "minor in the overall picture" of the project and did not excuse or materially contribute to Meridian's pervasive schedule and quality failures. She noted that Meridian's delays extended far beyond the specific geographic areas and time periods affected by any permitting issues and that the overwhelming cause of delay was Meridian's own operational deficiencies.
Assessment. This is an area where Meridian will attempt to build an Owner-caused delay narrative. Ms. Voss's acknowledgment that NFA sometimes took the lead on permitting and experienced some internal delays creates a factual predicate that Meridian will exploit, even if Ms. Voss's legal position — that permitting remained Meridian's contractual responsibility — is correct. This topic must be addressed in Dr. Chazen's critical path analysis to determine whether any NFA-related permitting delays actually fell on the critical path and, if so, to quantify their impact relative to the overall contractor-caused delays. The documentary record regarding the permitting timeline is critical and should be developed through targeted ESI searches and, potentially, third-party subpoenas to relevant municipal permitting authorities. Mr. Calloway's deposition testimony should be reviewed and, to the extent he has not yet been deposed on this topic, his preparation should ensure consistency with Ms. Voss's account.
D. Scope Changes and Change Order Compliance (MCA § 16.1)
Mr. Deluca questioned Ms. Voss extensively on Meridian's claim that NFA directed fourteen scope changes during the course of the project that were never formalized as Change Orders under MCA § 16.1. Meridian contends that these unfunded scope changes entitle it to additional compensation and schedule relief and that NFA's failure to issue formal Change Orders constitutes a constructive change supporting Meridian's breach claims.
MCA § 16.1 establishes a written Change Order requirement: all changes to the scope of work must be documented in a written Change Order signed by authorized representatives of both parties before the changed work is performed, except in cases of emergency. The provision further requires the Contractor to submit a formal Change Order request identifying the proposed scope change, the estimated cost and schedule impact, and the contractual basis for the change.
Ms. Voss's testimony on this topic was careful and nuanced:
• General Practice. Ms. Voss acknowledged that NFA's field engineers communicated adjustments to routing and design during the course of construction, which she described as "normal practice" in a fiber build-out project of this scale and complexity. She explained that minor adjustments to routing — for example, shifting a conduit alignment by a few feet to avoid an unanticipated underground obstruction — were routine and did not constitute scope changes requiring formal Change Orders.
• The 14 Claimed Items. Ms. Voss testified that she was aware of the 14 specific scope items Meridian had identified in its complaint and that she had reviewed documentation relating to each. She estimated that five to six of the fourteen items involved "preliminary oral direction" from NFA field personnel before formal Change Order documentation was initiated. She explained that in those instances, NFA field engineers may have verbally discussed routing adjustments or design modifications with Meridian's field crews in the interest of keeping construction moving, with the expectation that the appropriate documentation would follow through normal contract administration channels.
• Contractual Obligation. Ms. Voss was firm that MCA § 16.1 required written Change Orders and that Meridian bore the obligation to submit formal Change Order requests when it believed that a direction from NFA constituted a change in scope. She testified that Meridian failed to submit formal Change Order requests for most of the fourteen alleged changes, despite having ample opportunity and a clear contractual obligation to do so.
• Characterization of Claimed Changes. Ms. Voss testified that several of the fourteen claimed scope changes were not scope changes at all but rather "normal project adjustments within the existing design tolerances" that fell within the scope of work as defined in the MCA and its technical specifications.
• Key Admission. Ms. Voss conceded that approximately three to four of the fourteen items "may have involved some incremental scope" that arguably warranted formal Change Orders. She did not quantify the cost or schedule impact of these items but acknowledged that they involved work beyond what was contemplated in the original design.
Assessment. Meridian will use Ms. Voss's admissions regarding oral direction and incremental scope to support its constructive change order defense and its claim for additional compensation. The admission that five to six items involved some oral direction, and that three to four involved incremental scope, provides Meridian with a factual basis to argue that NFA effectively directed additional work without following its own contractual procedures. Jeffrey Park's analysis memorandum on change orders under MCA § 16.1 should be updated to address these admissions. Additionally, the documentary record must be reviewed to identify any contemporaneous emails from NFA field staff directing changes to Meridian and to determine whether Meridian submitted any formal Change Order requests for the disputed items. The legal analysis should focus on the enforceability of the written Change Order requirement and whether New York law permits a constructive change order theory to override an express written requirement in a negotiated commercial contract.
E. Meridian's Force Majeure Defense
Mr. Deluca raised Meridian's claim that the lingering effects of the COVID-19 pandemic on labor supply and supply chain disruptions for fiber-optic cable and related materials constituted force majeure events excusing Meridian's schedule delays. This defense is asserted with respect to delays in Phases 2 and 3.
Ms. Voss's testimony on this topic was strong and favorable to NFA:
• COVID-19 Impacts — Temporal Scope. Ms. Voss acknowledged that the COVID-19 pandemic caused significant industry-wide disruptions in 2020 and 2021, including labor shortages, supply chain bottlenecks, and restrictions on construction activity. However, she testified that by mid-2022, the labor market and supply chain had "largely stabilized" and that the conditions Meridian sought to invoke as force majeure had abated well before the Phase 2 and Phase 3 delays at issue.
• Schedule Relief Already Granted. Ms. Voss noted that NFA had already granted schedule relief for Milestones 1 and 2 in Phase 1 specifically to account for the COVID-19 impacts experienced during 2020. She characterized this as evidence that NFA had acted reasonably in accommodating genuine pandemic-related disruptions but that Meridian could not continue to invoke COVID-19 as an excuse for delays occurring two to three years after the acute impacts had passed.
• Industry Context. Ms. Voss testified that Meridian's Phase 2 delays (2022–2023) and Phase 3 delays (2023–2024) could not reasonably be attributed to force majeure because the conditions had abated and other contractors in the fiber-optic construction industry were meeting their schedules during the same period. She referenced NFA's own experience with other contractors on unrelated projects as a basis for this comparison, though she did not identify those contractors by name.
• Lack of Formal Notice. Ms. Voss provided particularly damaging testimony regarding Meridian's failure to provide formal force majeure notices as required by the MCA's force majeure clause. She testified that the MCA required the party claiming force majeure to provide written notice within a specified period after the occurrence of the force majeure event, including a description of the event, its anticipated duration, and the steps being taken to mitigate its impact. Ms. Voss stated that Meridian never provided any such formal notice for the Phase 2 or Phase 3 milestones and only raised force majeure for the first time in its February 2, 2024, response to Cure Notice No. 1 — well after the delays had occurred and in the context of defending against NFA's termination process rather than as a contemporaneous notification of an excusable event.
Favorable Testimony. Ms. Voss's testimony on force majeure is strong on multiple fronts: the temporal argument (conditions had abated by mid-2022), the procedural argument (no formal notice was provided), and the industry-context argument (other contractors were performing). The lack of formal notice is a particularly effective point because it shifts the analysis from disputed factual questions about labor and material availability to a straightforward contractual compliance issue.
F. NFA's Decision-Making Process and Pretext Theory
Mr. Deluca devoted a significant portion of the Day 2 examination to probing Ms. Voss on Meridian's "pretext theory" — the contention that NFA's purported termination for cause was actually motivated by NFA's desire to bring fiber construction in-house or to re-procure the remaining work at lower cost following favorable shifts in construction market pricing in late 2023 and early 2024. This theory underlies Meridian's Count I (wrongful termination/lost profits) and, if credited, would convert the termination from one for cause into one for convenience, potentially entitling Meridian to substantial damages.
Ms. Voss's testimony on this topic was generally strong but included one notable admission:
• Denial of Pretext. Ms. Voss denied categorically that the termination was pretextual. She reiterated, consistently and emphatically, that the termination was driven by Meridian's material breach of the MCA as documented in the cure notices and termination notice. She testified: "We terminated Meridian because they couldn't do the job. It's as simple as that."
• Market Pricing Awareness. However, Ms. Voss acknowledged that she was aware that construction market pricing had become more favorable in late 2023 and early 2024. She attributed this to increased contractor capacity in the market as the post-pandemic construction boom subsided and to reduced costs for fiber-optic cable and related materials. She did not dispute that NFA stood to benefit from these market conditions in procuring a replacement contractor.
• Parallel Exploration of Options. Ms. Voss testified that NFA explored several options in parallel during the period leading up to the termination decision, including: (1) working with Meridian to achieve a cure of its deficiencies; (2) replacing Meridian with another qualified contractor; and (3) partially bringing certain portions of the remaining work in-house. She characterized this as prudent contingency planning rather than evidence of a premeditated intent to terminate.
• Key Testimony. Ms. Voss stated that the decision to terminate was made "because Meridian couldn't do the job" and that pricing considerations were "incidental, not the driver." She testified that the timing of the termination was dictated by the expiration of the cure period and the rejection of the Corrective Action Plan, not by any external market conditions.
• Privilege Instructions. Ms. Voss refused to testify about internal discussions with Dominic Hale regarding the termination decision, invoking attorney-client privilege at counsel's instruction. Jeffrey Park instructed the witness not to answer on three separate occasions during this line of questioning, each time citing the attorney-client privilege as the basis for the instruction. Mr. Deluca placed objections on the record, characterized the privilege instructions as improper, and reserved his rights to seek a ruling from the court compelling answers.
Assessment. Ms. Voss handled the pretext examination well. Her testimony was consistent, she did not equivocate on the central point that the termination was performance-driven, and she appropriately deferred to privilege instructions on questions that called for disclosure of legal advice. However, Mr. Deluca will continue to pursue the pretext theory through other channels, including the 214 privileged documents that are the subject of Meridian's pending Motion to Compel. If the court orders disclosure of some or all of those documents, the pretext defense could gain momentum depending on their content. Helena Bright's deposition on February 18, 2025, may also touch on financial motivations for the termination, as Ms. Bright served as NFA's Senior Vice President of Finance and would have been involved in any financial modeling of replacement contractor costs versus continued performance by Meridian. Ms. Bright should be prepared extensively on this topic, with particular attention to privilege issues surrounding any internal financial models, board presentations, or executive communications that addressed the economics of termination versus continuation.
G. Crestline Replacement Contract
Ms. Voss provided testimony regarding NFA's engagement of Crestline Construction Group Inc. ("Crestline") as the replacement contractor for the fiber build-out program following the termination of the MCA with Meridian.
Ms. Voss testified that NFA executed a construction contract with Crestline on June 10, 2024 (Exhibit 35). The Crestline contract covered the completion of remaining Phase 2 work (principally the completion of Milestone 8) and all Phase 3 work (Milestones 9 through 14). The contract price was $712 million for the remaining scope. The contract term was 30 months from the date of Crestline's Notice to Proceed, with an estimated completion date of approximately December 2026.
Ms. Voss described the procurement process that led to Crestline's selection. NFA solicited bids from three qualified contractors with experience in large-scale fiber-optic infrastructure construction. Crestline, led by CEO Frank DiBello, was selected based on its extensive experience with projects of comparable scope, its demonstrated crew capacity, and its price competitiveness. Ms. Voss testified that the procurement was conducted on a compressed timeline given the urgency of resuming construction but that NFA nonetheless followed a rigorous evaluation process.
Excess Completion Costs. The difference between the Crestline contract price ($712 million) and the remaining value of the unperformed MCA work ($630.3 million) yields excess completion costs of $81.7 million. This differential supports NFA's Counterclaim II (excess completion costs) against Meridian and, potentially, the claim against Ironclad Surety Group Inc. under the performance bond.
Scope Comparison. Mr. Deluca questioned whether the $712 million Crestline contract price reflected scope enhancements or additions beyond the original MCA scope, which would undermine NFA's excess cost claim by inflating the comparison price. Ms. Voss denied this, testifying that the Crestline contract scope was "substantially identical" to the remaining unperformed work under the MCA. She acknowledged that minor specifications were updated to reflect current NFA standards but stated that these updates did not materially expand the scope or increase the price.
H. Financial and Payment Topics
Ms. Voss provided summary testimony on the financial dimensions of the dispute, confirming the following figures:
Total Payments to Meridian. $512,700,000, calculated as follows:
Retainage Held. $56,966,667, representing 10% of gross certified work of $569,666,670. Ms. Voss explained that retainage was withheld from each payment application in accordance with MCA § 10.3 and that NFA's position was that it was entitled to continue holding retainage pending resolution of the dispute, completion of remediation work on defective Phase 2 construction, and offset of retainage against liquidated damages and counterclaim damages.
Total Liquidated Damages Assessed. $49,000,000 ($8,225,000 Phase 1 + $40,775,000 Phase 2), which Ms. Voss confirmed is below the aggregate contractual cap of $60,000,000 under MCA § 9.1.
V. PRIVILEGE INSTRUCTIONS AND OBJECTIONS
Jeffrey Park instructed the witness not to answer on three occasions during the two-day deposition. All three instructions related to communications between Ms. Voss and Dominic Hale (General Counsel, NTP) and/or outside counsel regarding: (1) the legal strategy and analysis underlying the termination decision; (2) NFA's assessment of the legal risks associated with termination for cause versus termination for convenience; and (3) internal discussions regarding NFA's consideration of an in-house fiber construction strategy and its relationship to the termination decision. In each instance, Mr. Park cited the attorney-client privilege as the basis for the instruction, and Ms. Voss declined to answer.
Mr. Deluca placed objections on the record in response to each privilege instruction. He characterized the instructions as improper on the ground that the questions sought factual information about NFA's business decision-making rather than legal advice. Mr. Deluca reserved Meridian's rights to move to compel answers to those questions.
These privilege issues overlap with the 214 documents on NFA's privilege log that are the subject of Meridian's pending Motion to Compel (filed November 22, 2024). Meridian contends that many of these documents are not properly privileged because they reflect business decision-making rather than legal advice and/or because the crime-fraud exception applies. Oral argument on the motion is scheduled for January 27, 2025, before Justice Ricci.
No other significant objections or disputes arose during the deposition. Mr. Deluca lodged standard form and foundation objections on occasion, but these did not result in any sustained disputes or interruptions to the examination.
VI. KEY FAVORABLE TESTIMONY
The following aspects of Ms. Voss's testimony are particularly favorable to NFA's defense and counterclaims:
1. Material breach clearly established. Ms. Voss's testimony on the escalating pattern of delays across Milestones 3, 5, 6, 7, and 8 — from 47 days to 22 days to 68 days to 91 days to 134+ days — paints a compelling picture of Meridian's chronic and worsening underperformance. The trajectory of increasing delays demonstrates that Meridian's performance was deteriorating over time, not improving, notwithstanding NFA's repeated expressions of concern and Meridian's assurances that it would deploy additional resources.
2. Quality failures were systemic. The 287 NCRs (including 43 classified as critical) were well-documented by NFA's QA team, communicated to Meridian's management in real time through monthly reports and formal meetings, and remained substantially unremediated by Meridian at the time of termination. Ms. Voss's characterization of the quality problems as "systemic" rather than "isolated" is powerful testimony that will resonate with a factfinder.
3. Cure process was thorough and procedurally compliant. NFA followed MCA § 14.1's requirements meticulously: it issued two cure notices separated by approximately 30 days, provided Meridian with 73 total days between the first cure notice and termination, received and evaluated Meridian's response and Corrective Action Plan, rejected the plan on well-documented grounds (including the 12 additional critical NCRs issued during the cure period), and only then terminated. This timeline demonstrates good faith and procedural regularity.
4. Phase 3 near-total failure. The stark statistic that only 340 of 9,700 route miles were completed (3.5%) speaks for itself. Ms. Voss's testimony that Meridian's Phase 3 mobilization was "entirely inconsistent" with its contractual obligations is difficult to rebut.
5. Force majeure untimely and unsubstantiated. Meridian did not formally invoke force majeure until its February 2, 2024, response to Cure Notice No. 1, long after the claimed conditions (COVID-19 labor and supply chain impacts) had abated by mid-2022. The failure to provide contemporaneous formal notice as required by the MCA is a procedural bar that is independent of the merits of the force majeure claim.
6. Pretext theory rebutted. Ms. Voss credibly and consistently testified that the termination was driven by Meridian's performance failures, not market pricing. Her characterization of pricing as "incidental, not the driver" was clear and unequivocal.
7. Disputed invoices ($16.5M). Ms. Voss provided specific, fact-based testimony about inflated unit counts and unverifiable conduit footage in Phase 3 payment applications, directly supporting NFA's defense against Meridian's Count II and potentially giving rise to affirmative claims regarding overbilling.
VII. KEY ADMISSIONS / TESTIMONY REQUIRING ATTENTION
The following admissions and areas of testimony require proactive follow-up to mitigate potential adverse implications:
1. Permitting Responsibility (MCA § 5.3). Ms. Voss's acknowledgment that NFA's government relations team sometimes took the lead on permit applications in Phase 2 (particularly in Connecticut) and that NFA experienced some internal permitting processing delays in Q3 2022 creates a factual predicate for Meridian's Owner-caused delay defense. While Ms. Voss's legal characterization — that NFA was providing "above and beyond" assistance and that permitting remained Meridian's contractual responsibility — is supportable, the factual nuances may be exploited to muddy the delay causation analysis.
Follow-up needed:
• Review the documentary record (including Exhibit 46, the internal NFA email chains regarding permitting in Q3 2022) to identify specific permits where NFA took the lead and the duration of any NFA-attributable delays.
• Coordinate with Sean Calloway to ensure his testimony on permitting responsibility is consistent with Ms. Voss's account and does not create additional admissions.
• Ensure Dr. Chazen's critical path analysis addresses permitting delays specifically, determines whether any NFA-related delays fell on the critical path, and quantifies their impact. We anticipate that NFA-related permitting delays, if any, were minor relative to the overall contractor-caused delays of 47 to 134 days per milestone.
• Consider third-party subpoenas to relevant Connecticut municipal permitting offices to establish the timeline of permit applications and issuances.
2. Oral Scope Direction (MCA § 16.1). Ms. Voss conceded that five to six of the fourteen alleged scope changes involved some oral direction from NFA field staff and that three to four of those items may have involved incremental scope warranting Change Orders. These admissions provide Meridian with a factual basis for its constructive change order defense.
Follow-up needed:
• Identify and review field-level emails and communications from NFA field engineers to Meridian regarding each of the fourteen alleged scope changes, with particular focus on the five to six items Ms. Voss identified as involving oral direction.
• Determine whether Meridian submitted any formal Change Order requests for any of the fourteen items and, if so, how NFA responded.
• Update Jeffrey Park's change order analysis memorandum to address Ms. Voss's concessions and to develop the legal argument that MCA § 16.1's written Change Order requirement is an express contractual prerequisite, that Meridian bore the obligation to formalize any claimed changes, and that failure to do so constitutes a waiver or bar to recovery under applicable New York law.
• Prepare a rebuttal to Meridian's constructive change order theory, including an analysis of whether New York courts enforce written Change Order requirements in negotiated commercial contracts and the circumstances under which such requirements may be deemed waived.
3. Market Pricing Awareness. Ms. Voss's acknowledgment that construction market pricing became more favorable in late 2023 and early 2024 feeds Meridian's pretext theory. While Ms. Voss credibly testified that pricing was "incidental, not the driver," the admission that NFA was aware of favorable pricing shifts and was simultaneously exploring options to replace Meridian provides circumstantial support for the argument that the termination was economically motivated.
Follow-up needed:
• Prepare Helena Bright to address whether financial considerations played any role in the termination decision and to testify consistently with Ms. Voss's characterization that pricing was incidental.
• Ensure Ms. Bright's testimony does not create additional admissions regarding internal financial models or board-level discussions that could be characterized as evidencing a termination motivated by cost savings.
• Coordinate privilege instructions for Ms. Bright's deposition carefully, particularly with respect to any internal financial analyses comparing the cost of continuing with Meridian versus replacing Meridian, and any board presentations addressing the economics of termination.
VIII. CROSS-REFERENCES TO OTHER DEPOSITIONS
A. Sean Calloway (Deposed November 19, 2024)
Mr. Calloway served as NFA's Director of Construction Management and the day-to-day contract administrator on the MCA. His deposition was taken on November 19, 2024, one week after Ms. Voss's deposition. His testimony should be compared with Ms. Voss's on the following topics: NCR documentation procedures and the criteria for classifying NCRs as "critical" versus "non-critical"; milestone progress tracking methodologies and the basis for delay calculations; the drafting and issuance of Cure Notices No. 1 and No. 2; and his day-to-day interactions with Marcus Henley regarding schedule and quality issues.
A consistency check is particularly important on the topics of permitting responsibility (MCA § 5.3) and oral scope directions (MCA § 16.1), where Ms. Voss's admissions could be amplified or mitigated depending on Mr. Calloway's account. If Mr. Calloway's testimony is inconsistent with Ms. Voss's on these points, Meridian will exploit the discrepancy.
B. Marcus Henley (Deposed December 3–4, 2024)
Mr. Henley served as Meridian's Vice President of Field Operations, N