PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGE / ATTORNEY WORK PRODUCT

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGE / ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP 425 Park Avenue, 33rd Floor New York, NY 10022
MEMORANDUM
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I. Introduction and Purpose
The purpose of this memorandum is to set forth a comprehensive plan for document collection, preservation, and production in defense of Northgate Fiber Americas Inc. ("NFA") in the above-captioned action. This memorandum addresses the identification of custodians recommended for document collection, the relevant data sources from which electronically stored information ("ESI") and hard-copy documents should be gathered, recommended search parameters and date ranges, the proposed collection methodology, and the coordination of all discovery-related activities with our e-discovery vendor, Vantage Litigation Support LLC ("Vantage").
This matter arises out of the termination of a large-scale fiber-optic infrastructure construction program spanning seven states in the northeastern United States. Plaintiff Meridian Infrastructure Partners LLC ("Meridian") filed its Verified Complaint on July 15, 2024, asserting claims totaling approximately $200 million arising from NFA's termination for cause of the Master Construction Agreement dated March 15, 2020 (the "MCA"). NFA filed its Answer with Affirmative Defenses and Counterclaims on September 3, 2024, asserting counterclaims totaling approximately $149 million based on Meridian's persistent schedule delays, pervasive quality failures, and failure to cure documented deficiencies. The Preliminary Conference before Justice Eleanor M. Ricci is scheduled for October 1, 2024, at which time the Court is expected to set the discovery schedule, address the parties' proposed ESI protocol, and enter a case management order.
Given the magnitude of the claims and counterclaims, the complexity of the underlying construction project, the volume of anticipated discoverable material, and the accelerated pace of discovery typical of the Commercial Division, it is imperative that we establish a well-structured, defensible discovery plan at the outset. This memorandum provides that plan.
This memorandum should be read in conjunction with the following related documents:
•  The litigation hold notice circulated to NFA and Northgate Telecommunications PLC ("NTP") personnel on August 21, 2024;
•  The stipulated ESI protocol, which is currently in draft form and under negotiation with Meridian's counsel, Harmon Davis & Stein LLP ("HDS"), and which we anticipate finalizing in advance of or at the October 1, 2024 Preliminary Conference;
•  The engagement letter with Vantage Litigation Support LLC dated September 10, 2024, which sets forth the scope of Vantage's services and the applicable fee structure; and
•  The overall litigation budget and strategy memorandum being separately prepared by Priya Anand.
II. Background Summary of Claims and Counterclaims
A clear understanding of the parties' respective claims and counterclaims is essential to inform the scope and prioritization of the discovery effort. The following summary identifies the specific causes of action, the damages sought, and the key factual and legal issues that will drive the discovery plan.
A. Meridian's Claims
Meridian's Verified Complaint asserts four causes of action against NFA, seeking aggregate damages of $200,000,000:
Count I — Breach of Contract (Wrongful Termination): $92,400,000. Meridian alleges that NFA's termination of the MCA for cause under Section 14.1 was wrongful and without justification, and that NFA is therefore liable for the damages Meridian would have been entitled to receive had the termination been a termination for convenience under MCA § 14.3. Meridian calculates these damages at $92,400,000, comprising (a) a hypothetical termination-for-convenience fee of $50,424,000 (calculated as the fee that would have been payable under the convenience termination formula set forth in MCA § 14.3) and (b) $41,976,000 in lost profits that Meridian claims it would have earned on the remaining scope of work under the MCA.
Count II — Breach of Contract (Unpaid Invoices): $16,500,000. Meridian alleges that NFA wrongfully rejected and refused to pay certain Phase 3 payment applications totaling $16,500,000. Meridian contends that these payment applications were properly submitted and that the work reflected therein was completed in accordance with the MCA. NFA's position is that these payment applications were disputed for documented quality deficiencies and non-conformance issues, and that payment was properly withheld pending resolution of outstanding NCRs.
Count III — Breach of Contract (Wrongful Withholding of Retainage): $56,966,667. Meridian seeks release of the full retainage balance of $56,966,667, computed as 10% of $569,666,670 in gross certified work performed under the MCA. Meridian contends that it is entitled to the full retainage balance upon termination, regardless of the basis for termination. NFA's position is that the retainage is properly withheld under MCA § 18.4 to satisfy NFA's claims for liquidated damages, excess completion costs, and remediation costs.
Count IV — Breach of Implied Covenant of Good Faith and Fair Dealing: $34,133,333. Meridian alleges that NFA's termination of the MCA was motivated by bad faith — specifically, Meridian asserts that NFA sought to terminate the relationship in order to bring the fiber construction program in-house or to re-procure the work at a lower price following favorable shifts in the construction market. Meridian claims $34,133,333 in damages for reputational harm and loss of bonding capacity resulting from the for-cause termination.
Total Claims: $200,000,000.
B. Northgate's Counterclaims
NFA's Answer with Affirmative Defenses and Counterclaims asserts three counterclaims totaling $149,000,000:
Counterclaim I — Liquidated Damages: $49,000,000. NFA seeks recovery of liquidated damages for Meridian's failure to achieve specified milestones within the time frames set forth in the MCA. The liquidated damages are calculated on a per-milestone basis in accordance with MCA § 9.1, as follows:
•  Phase 1, Milestone 3 (MS3): $8,225,000
•  Phase 2, Milestone 5 (MS5): $3,850,000
•  Phase 2, Milestone 6 (MS6): $11,900,000
•  Phase 2, Milestone 7 (MS7): $15,925,000
•  Phase 2, Milestone 8 (MS8, capped at per-milestone maximum): $9,100,000
The aggregate liquidated damages of $49,000,000 are within the aggregate cap of 5% of the total contract price of $1.2 billion (i.e., $60,000,000) established by MCA § 9.1. The per-milestone cap of 10% was reached on Milestone 8, resulting in the capped amount of $9,100,000 for that milestone.
Counterclaim II — Excess Completion Costs: $81,700,000. NFA seeks recovery of the excess costs it has incurred and will incur to complete the fiber build-out program following Meridian's default. NFA entered into a replacement contract with Crestline Construction Group Inc. ("Crestline") at a total price of approximately $712,000,000 for the remaining scope of work. The remaining value of the MCA at the time of termination was approximately $630,300,000. The difference of $81,700,000 represents the excess completion cost attributable to Meridian's default.
Counterclaim III — Remediation Costs: $18,300,000. NFA seeks recovery of the costs to remediate defective and non-conforming work performed by Meridian, as documented in 287 non-conformance reports ("NCRs") issued during the course of the project. Of the 287 NCRs, 43 were classified as critical (average remediation cost of approximately $275,000 per NCR) and 244 were classified as non-critical (average remediation cost of approximately $26,500 per NCR). Total remediation costs are estimated at $18,300,000.
Total Counterclaims: $149,000,000.
C. Key Factual and Legal Issues Driving discovery
The following issues will shape the scope and focus of the discovery effort:
1. Justification for Termination. The central issue in this case is whether NFA's termination of the MCA under Section 14.1 was justified by Meridian's material breach. NFA contends that termination was warranted based on Meridian's persistent schedule delays (delays of 47, 22, 68, 91, and 134+ calendar days across the relevant milestones), 287 NCRs including 43 classified as critical, and Meridian's failure to cure following issuance of Cure Notice No. 1 (January 18, 2024) and Cure Notice No. 2 (March 22, 2024). Discovery will focus on the contemporaneous documentation of Meridian's performance failures and the cure process.
2. Meridian's Delay Excuses. Meridian contends that its schedule delays were excused by three categories of events: (a) alleged Owner-caused permitting delays under MCA § 5.3, in which Meridian claims NFA failed to timely obtain municipal permits that were NFA's contractual responsibility; (b) 14 alleged Owner-directed scope changes that Meridian contends were never formalized as Change Orders under MCA § 16.1 but that materially expanded Meridian's scope of work; and (c) force majeure events, specifically COVID-19-related labor supply constraints and supply chain disruptions affecting fiber cable and conduit availability. Discovery will need to address each of these categories in detail, including the permitting responsibility allocation under the MCA, the existence and nature of any alleged scope changes, and the causal nexus between COVID-19 and specific schedule delays.
3. Meridian's "Pretext" Theory. Meridian's most aggressive theory is that NFA's termination for cause was pretextual — that NFA seized upon Meridian's performance issues as a pretext to terminate the relationship and either bring the fiber construction program in-house or re-procure the work at a lower cost following favorable market shifts. This theory targets Board-level and executive-level communications and financial analyses at NTP. Discovery related to this theory will be particularly sensitive and will require careful privilege review, as many of the relevant documents will reflect legal advice provided by Dominic Hale (General Counsel) and this firm in connection with the termination decision.
4. Consequential Damages Waiver. MCA § 20.1 contains a mutual waiver of consequential damages. NFA intends to argue that this waiver bars Meridian's claims for lost profits ($41,976,000) and reputational harm and loss of bonding capacity ($34,133,333). Meridian is expected to argue that the waiver is unenforceable or inapplicable. Discovery on this issue will focus on the negotiation history of MCA § 20.1 and the parties' understanding of its scope.
5. Liquidated Damages Enforceability. Meridian will likely challenge the enforceability of the liquidated damages provision in MCA § 9.1, arguing that the specified amounts constitute an unenforceable penalty. Discovery will focus on the basis for the parties' agreement on the per-milestone LD amounts, the relationship between those amounts and NFA's anticipated damages from delay, and the reasonableness of the per-milestone and aggregate caps.
6. Excess Completion Costs. NFA's excess completion cost counterclaim depends on demonstrating the reasonableness of the Crestline replacement contract pricing. Meridian is expected to challenge the Crestline contract as unreasonably priced and to argue that NFA failed to mitigate damages. Discovery will include the procurement process for the replacement contractor, the Crestline bid and contract documents, and comparable market pricing data.
7. Retainage and Disputed Phase 3 Invoices. The retainage dispute ($56,966,667) and the disputed Phase 3 invoices ($16,500,000) will require detailed financial discovery, including payment application records, retainage calculations, and the basis for NFA's rejection of the disputed invoices.
III. Litigation Hold — Status and Compliance
A. Hold Notice Issued
On August 21, 2024, Calderwood & Harkness issued a comprehensive litigation hold notice to all potentially relevant employees of NFA and its parent company, NTP. The hold notice was distributed via email with read-receipt confirmation, and hard copies were delivered to each recipient's office or workstation. The notice directed all recipients to preserve all documents and ESI related to the following subjects:
•  The Master Construction Agreement dated March 15, 2020, including all exhibits, amendments, change orders, and related agreements;
•  The fiber-optic build-out program across the seven-state footprint (New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia);
•  All communications with Meridian Infrastructure Partners LLC, its officers, employees, agents, and representatives;
•  All communications with Meridian's subcontractors and suppliers;
•  All communications with Crestline Construction Group Inc. regarding the replacement contract;
•  All communications with Ironclad Surety Group Inc. regarding the performance bond (Bond No. ISG-2020-NE-04417);
•  All documents related to non-conformance reports, quality assurance and quality control activities, and remediation of defective work;
•  All documents related to project scheduling, milestone tracking, and delay analysis;
•  All documents related to payment applications, progress payments, retainage, and liquidated damages;
•  All documents related to permitting activities across the seven-state footprint; and
•  All documents related to the decision to terminate the MCA and the selection of a replacement contractor.
The hold notice included specific instructions regarding the preservation of email (including deleted items and archived messages), electronic files stored on local drives, network drives, and cloud-based platforms, text messages (SMS and Westmark Software), instant messaging communications (Northgate Data Systems, Meridian Solutions, Meridian Services Inc.), voicemail messages, and hard-copy project files. Recipients were instructed to suspend any routine destruction or deletion of potentially relevant materials and to contact Calderwood & Harkness immediately with any questions regarding the scope of the hold.
B. Custodians Receiving Hold Notice
The initial litigation hold was distributed to eighteen (18) individuals across NFA and NTP. This is intentionally broader than the ten (10) custodians recommended for document collection, consistent with the best practice of casting a wider preservation net to ensure that no potentially relevant materials are lost, even from individuals whose documents may not ultimately need to be collected and reviewed.
Reminder notices will be sent to all hold recipients on a quarterly basis, or more frequently upon the occurrence of material case developments (such as the filing of amended pleadings, the identification of new issues through deposition testimony, or significant rulings by the Court). The full list of the eighteen hold recipients is set forth in Appendix C to this memorandum, with notations indicating which individuals are recommended for document collection and which are subject to preservation-only obligations at this time.
Compliance confirmation forms were sent to all hold recipients contemporaneously with the hold notice. As of September 10, 2024, all eighteen (18) of eighteen (18) compliance confirmation forms have been returned, each confirming that the recipient has read and understood the hold notice, has taken steps to preserve all potentially relevant materials in their possession or control, and has not destroyed, deleted, or discarded any such materials since becoming aware of the dispute.
C. IT and Systems Preservation
In coordination with the NFA IT department and the NTP IT department in London, the following systems-level preservation measures have been implemented:
Email Accounts. Auto-delete and retention policies have been suspended for the email accounts of all eighteen hold recipients. For NFA employees on the Ashgrove Software / Drayton Solutions platform, this has been accomplished through the implementation of litigation hold settings within the Exchange admin center, which prevents automatic purging of deleted items and ensures that all mailbox content is preserved, including items that would otherwise be subject to the organization's standard 90-day deleted items retention policy. For NTP employees in London on the same platform, equivalent holds have been placed by NTP IT.
Backup Tapes and Archived Data. NFA IT has identified and preserved backup tapes and archived data for all key custodians. These backups cover the relevant date range and provide a secondary preservation layer in the event of any issues with primary data sources.
NorthBuild Project Management System. NFA's proprietary project management system, NorthBuild, which was used to manage all aspects of the fiber build-out program, has been locked with respect to all records related to the MCA project. This includes milestone tracking data, NCR records, payment application processing records, schedule data, project correspondence, and all other project-related information stored in the system. The lock prevents any modification, deletion, or archiving of these records.
Aldermere Systems Sites and Shared Drives. The Aldermere Systems team sites and shared network drives used by the US Network Infrastructure team, the Construction Management team, the Legal team, the Finance team, and the QA/QC team have been flagged for preservation. Automated archiving and cleanup processes that would ordinarily apply to these sites have been suspended for all content related to the MCA and the fiber build-out program.
IV. Recommended Custodians for Document Collection
A. Overview
Based on our analysis of the claims and counterclaims, our review of the organizational structure of NFA and NTP, and our discussions with Dominic Hale (General Counsel, NTP) and Renata Voss (VP, US Network Infrastructure, NFA), we recommend collecting documents and ESI from ten (10) custodians. These individuals have been selected based on their involvement in one or more of the following: (a) the negotiation and execution of the MCA; (b) the day-to-day administration and oversight of the fiber build-out program; (c) the decision to terminate the MCA for cause; (d) the financial and business considerations underlying the termination decision and the selection of a replacement contractor; and (e) the legal analysis and advice related to the termination and this litigation.
The ten custodians are organized into three tiers based on our assessment of the relevance and volume of their respective document holdings:
•  Tier 1 (Primary): Four individuals expected to hold the highest volume of relevant material and whose documents are most critical to the defense. Collection from Tier 1 custodians should be initiated immediately.
•  Tier 2 (Secondary): Four individuals with relevant but narrower involvement in the key issues. Collection from Tier 2 custodians should proceed in the second phase.
•  Tier 3 (Limited but Necessary): Two individuals with focused, subject-matter-specific involvement. Collection from Tier 3 custodians should proceed in the third phase.
B. Tier 1 Custodians
1. Renata Voss — VP, US Network Infrastructure, NFA
Role and Relevance. Renata Voss is the Vice President of US Network Infrastructure at NFA and served as the senior NFA executive overseeing the entire fiber build-out program. In this capacity, she was the principal client representative interfacing with Meridian on all substantive project matters, including scope, schedule, quality, and financial issues. Voss authored Cure Notice No. 1, dated January 18, 2024, which formally notified Meridian of its material breach of the MCA and provided the contractual cure period. Voss was also a key decision-maker in the termination process and participated in the evaluation and selection of Crestline as the replacement contractor. Given her central role, Voss's documents will be among the most important in the case and will be heavily scrutinized by Meridian's counsel.
Data Sources:
•  NFA Ashgrove Software / outlook email account
•  NorthBuild project management system (user-level records and correspondence)
•  Aldermere Systems (Network Infrastructure team site)
•  Personal hard drive / laptop (NFA-issued)
•  Text messages (company-issued mobile phone — iPhone)
•  Northgate Data Systems and Meridian Solutions messages
Expected Volume: High. Based on preliminary estimates provided by NFA IT, Voss's NFA email account contains approximately 250,000 or more emails within the relevant date range (January 1, 2019 through present). Additional documents from NorthBuild, Aldermere Systems, and other sources will supplement this volume.
Collection Priority: Highest — collect first, in Phase A.
Deposition Status: Meridian has noticed Voss's deposition for November 12–13, 2024. It is essential that her documents be collected, processed, and at least partially reviewed before her preparation sessions.
2. Sean Calloway — Director, Construction Management, NFA
Role and Relevance. Sean Calloway served as the Director of Construction Management at NFA and functioned as the day-to-day contract administrator for the MCA. In this capacity, Calloway was responsible for milestone tracking, review and processing of payment applications, documentation and administration of the 287 NCRs, and field oversight of Meridian's construction activities. Calloway was the primary author or recipient of the NCRs and maintained detailed records of Meridian's schedule performance, quality issues, and cure compliance. His documents will be critical to establishing the factual basis for the termination.
Data Sources:
•  NFA Ashgrove Software / outlook email account
•  NorthBuild project management system (user-level records, NCR module, payment application module)
•  Aldermere Systems (Construction Management team site)
•  Project files — both electronic files stored on network drives and hard-copy project files maintained at 600 Lexington Avenue, 28th Floor, New York, NY 10022
•  Mobile phone text messages (company-issued device)
Expected Volume: High. Calloway's NFA email account is estimated to contain approximately 200,000 or more emails within the relevant date range. In addition, Calloway maintained an extensive project-specific file repository containing field reports, inspection records, NCR documentation, schedule updates, and correspondence with Meridian's field personnel.
Collection Priority: Highest — collect first, in Phase A.
Deposition Status: Meridian has noticed Calloway's deposition for November 19, 2024.
3. Dominic Hale — General Counsel, Northgate Telecommunications PLC
Role and Relevance. Dominic Hale is the General Counsel of NTP, the UK-based parent company of NFA. Hale serves as the primary client contact for this litigation and has been involved in all aspects of the legal assessment underlying the termination decision. Hale coordinated with Calderwood & Harkness and with NFA management regarding the cure notice process, the termination decision, and the subsequent litigation. Hale received and reviewed cure notices, termination correspondence, and related legal analyses. Hale also participated in Board-level discussions regarding the fiber build-out program and the termination.
Data Sources:
•  NTP London email system (Ashgrove Software / Drayton Solutions)
•  NFA email account (Hale maintains a dual account for US-related matters)
•  Aldermere Systems (Legal team site)
•  Mobile phone messages (company-issued device)
Special Considerations: A substantial portion of Hale's documents will be subject to attorney-client privilege and/or work product protection. This includes communications with Calderwood & Harkness, internal legal memoranda prepared by Hale or his legal team, and Board-level presentations prepared for the purpose of providing legal advice. Careful privilege review will be required for all Hale documents.
We anticipate that Meridian will aggressively challenge privilege designations applied to Hale's documents. Meridian has already foreshadowed this approach by serving a deposition notice for Hale on February 25, 2025, to which we have objected on grounds of attorney-client privilege. Meridian's position, as communicated informally by HDS, is that Hale frequently acted in a dual capacity — providing both business advice and legal advice — and that communications in which Hale acted in his business capacity are not privileged. This "dual-hat" issue will require heightened scrutiny during document review. The review team will need to evaluate each Hale communication to determine whether it reflects the provision of legal advice (privileged) or business advice (not privileged), or a combination of both (requiring careful analysis under applicable New York law).
Expected Volume: Moderate. Hale's combined email accounts are estimated to contain approximately 80,000 or more emails within the relevant date range.
Collection Priority: High — collect in Phase A, second round after Voss and Calloway.
4. Helena Bright — CFO, Northgate Telecommunications PLC
Role and Relevance. Helena Bright is the Chief Financial Officer of NTP and had financial oversight responsibility for the US fiber build-out program. Bright approved the NFA FY2024 capital expenditure budget of $340 million, which included the fiber build-out program. Bright was involved in the financial analysis underlying the termination decision, including the cost-benefit assessment of terminating Meridian and engaging a replacement contractor, and she participated in the evaluation and selection of Crestline. Bright's documents will be relevant to the financial dimensions of the case, including the excess completion cost counterclaim, the retainage dispute, and Meridian's "pretext" theory.
Data Sources:
•  NTP London email system (Ashgrove Software / Drayton Solutions)
•  NFA financial reporting systems (access via NTP Finance team)
•  Aldermere Systems (Finance team site)
•  Board presentation files and supporting financial models
Special Considerations: Bright's documents will include Board-level financial analyses, internal financial models, and capital expenditure projections that Meridian is actively seeking under its "pretext" theory. Many of these documents will be subject to privilege assertions, particularly where they were prepared at the direction of or for the purpose of providing information to legal counsel in connection with the termination decision. We have currently identified 214 documents on the privilege log that relate to Board-level financial analyses and strategic assessments prepared in connection with the termination — careful segregation of privileged and non-privileged financial documents will be required.
Expected Volume: Moderate. Bright's email account is estimated to contain approximately 60,000 or more emails within the relevant date range.
Collection Priority: High — collect in Phase A.
Deposition Status: Meridian has noticed Bright's deposition for February 18, 2025, to be taken by commission in London, England.
C. Tier 2 Custodians
5. Sir Malcolm Ashford — CEO, Northgate Telecommunications PLC
Role and Relevance. Sir Malcolm Ashford is the Chief Executive Officer of NTP and provided executive leadership oversight of the US fiber build-out program. While Ashford was not involved in the day-to-day management of the MCA or the construction project, he received periodic reports on the progress of the fiber build-out, participated in high-level strategic discussions regarding the fiber program's direction, and was involved in Board-level decision-making regarding the termination and replacement contractor selection.
Data Sources:
•  NTP executive email account (London-based Ashgrove Software system)
•  Executive assistant's email account (as delegate — Ashford's EA routinely managed correspondence on his behalf)
•  Board materials (presentations, minutes, and resolutions)
Special Considerations: Given Ashford's seniority, collection should be targeted rather than comprehensive. We recommend applying focused search terms limited to communications specifically referencing the MCA, Meridian, the fiber build-out, the termination decision, or the Crestline replacement contract. We expect a substantial proportion of Ashford's responsive documents to be subject to privilege, given the Board and executive strategy context in which they were created.
Expected Volume: Low to moderate. After targeted collection using custodian-specific search terms, we estimate approximately 20,000 or more emails and documents.
Collection Priority: Medium — collect in Phase B.
6. Dame Catherine Elsworth — Board Chair, Northgate Telecommunications PLC
Role and Relevance. Dame Catherine Elsworth serves as Chair of the Board of Directors of NTP. In this capacity, Elsworth received Board presentations regarding the US fiber program and the litigation, participated in Board discussions regarding the termination decision, and provided governance oversight of the executive team's handling of the dispute. Elsworth's documents are relevant primarily to Meridian's "pretext" theory, which alleges that the Board made a strategic decision to bring the fiber construction program in-house and used the for-cause termination as a vehicle to accomplish that objective.
Data Sources:
•  Board email account (NTP Board communications platform)
•  Board portal documents (presentations, meeting minutes, and supporting materials)
Special Considerations: Elsworth's documents are highly likely to be predominantly privileged, given the Board context in which they were created and the involvement of legal counsel in virtually all Board discussions related to the termination and the litigation. Collection should be limited to Board-related communications and presentations. We recommend coordinating with Dominic Hale to identify the specific Board materials that are potentially responsive and to assess privilege on a document-by-document basis.
Expected Volume: Low. We estimate approximately 5,000 or more items, consisting primarily of Board presentations, minutes, and related correspondence.
Collection Priority: Medium-Low — collect in Phase B.
7. NFA Procurement / Contracts Manager (Name to Be Confirmed)
Role and Relevance. This individual is the NFA employee responsible for administering the Change Order procedures under MCA § 16.1, processing Meridian's payment applications, and administering the unit-rate component of the contract (approximately $420 million, representing 35% of the total $1.2 billion contract price). This custodian's documents will be central to several key disputes: (a) whether NFA directed 14 scope changes that should have been formalized as Change Orders under MCA § 16.1 but were not, thereby expanding Meridian's scope of work without corresponding schedule and price adjustments; (b) the basis for NFA's rejection of the $16.5 million in disputed Phase 3 invoices; and (c) the administration of the unit-rate pricing and associated payment calculations.
Data Sources:
•  NFA Ashgrove Software / outlook email account
•  NorthBuild system (Change Order module, payment application processing records)
•  Procurement files and contract administration files
•  Payment application records and supporting documentation
Expected Volume: Moderate. We estimate approximately 100,000 or more documents, including emails, payment application files, and contract administration records.
Collection Priority: Medium-High — collect in Phase B.
Note: The identity of this custodian needs to be confirmed with Dominic Hale and Renata Voss. We understand that this function may have been performed by more than one individual during the relevant period, and we may need to adjust the custodian selection accordingly.
8. NFA QA/QC Manager (Name to Be Confirmed)
Role and Relevance. This individual is the NFA employee responsible for quality assurance and quality control of Meridian's construction work under the MCA. This custodian authored or supervised the preparation of many of the 287 NCRs that form the factual basis for NFA's position that Meridian's work was defective and non-conforming. The QA/QC Manager is familiar with the technical requirements of Northgate Technical Specification NS-FIBER-2020 and was responsible for assessing compliance with those requirements, including splice loss thresholds, conduit depth specifications, and route deviation tolerances.
Data Sources:
•  NFA Ashgrove Software / outlook email account
•  NorthBuild QA module (NCR database, inspection records, and compliance tracking)
•  Field inspection reports (electronic and hard copy)
•  NCR files, including photographs, test results, and remediation records (electronic and hard copy)
Expected Volume: Moderate. We estimate approximately 70,000 or more documents, including a substantial volume of field documentation such as inspection reports, test results, NCR forms, and remediation records.
Collection Priority: Medium-High — collect in Phase B.
Note: As with the Procurement/Contracts Manager, the identity of this custodian needs to be confirmed with the client. We will coordinate with Renata Voss to identify the appropriate individual.
D. Tier 3 Custodians
9. NFA Permitting Coordinator (Name to Be Confirmed)
Role and Relevance. This individual is the NFA employee responsible for managing NFA's permitting obligations (to the extent such obligations were assigned to the Owner under MCA § 5.3) in connection with the fiber build-out program. This custodian maintained permit application logs and correspondence with municipal permitting authorities across the seven-state footprint. The Permitting Coordinator's documents are central to the factual dispute over whether the responsibility for obtaining municipal permits rested with NFA (as Meridian contends) or with Meridian (as NFA contends), and whether any delays in the permitting process were attributable to NFA's actions or inactions.
Data Sources:
•  NFA Ashgrove Software / outlook email account
•  Permit tracking database (internal NFA system)
•  Correspondence with municipal permitting authorities across New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia
Special Considerations: This custodian's documents will be critical to rebutting Meridian's defense that NFA caused delay by failing to timely obtain permits. There is significant overlap between this custodian's documents and the third-party subpoenas we intend to serve on three municipal permitting authorities (discussed in Section X below). Coordination between the first-party and third-party discovery on permitting issues will be important.
Expected Volume: Moderate. We estimate approximately 40,000 or more documents, including permit applications, correspondence with municipal authorities, and internal tracking records.
Collection Priority: Medium — collect in Phase C.
10. NFA Finance / Accounting Representative (Name to Be Confirmed)
Role and Relevance. This individual is the NFA employee responsible for processing Meridian's progress payment applications under MCA § 18.1, calculating and administering the 10% retainage ($56,966,667 held at the time of termination), processing liquidated damages deductions from progress payments, and administering the financial aspects of Phase 1 through Phase 3 payments totaling approximately $512,700,000.
Data Sources:
•  NFA Ashgrove Software / outlook email account
•  NFA accounting system (Hollowell & Co. or equivalent — to be confirmed with NFA Finance)
•  Payment records, retainage ledger, and LD deduction records
Expected Volume: Moderate. We estimate approximately 30,000 or more documents, including email correspondence and financial records.
Collection Priority: Medium — collect in Phase C.
Note: The identity of this custodian needs to be confirmed with the client. We will coordinate with Helena Bright's team to identify the appropriate individual.
E. Custodian Summary Table
The following table summarizes the ten recommended custodians:
V. Data Sources and Collection Methodology
A. Email Systems
NFA utilizes Ashgrove Software / Drayton Solutions for all US-based employees. This includes custodians Voss, Calloway, and the US-based Tier 2 and Tier 3 custodians (the Procurement/Contracts Manager, QA/QC Manager, Permitting Coordinator, and Finance/Accounting Representative). NTP utilizes the same Ashgrove Software / Drayton Solutions platform for UK-based employees, including custodians Ashford, Bright, Hale, and Elsworth.
Collection Methodology. For all email custodians, collection will be performed using Vantage Litigation Support's proprietary collection tool, which connects directly to the Ashgrove Software environment and enables targeted collection based on custodian, date range, and search terms. This approach allows for precise, defensible collection without disrupting the custodians' working email environments. For NFA accounts, a journal archive is available, which captures all inbound and outbound email for the organization and provides an additional layer of completeness assurance. NTP London IT has confirmed its willingness to facilitate collection of UK-based accounts and will provide Vantage with the necessary administrative access, subject to compliance with applicable UK data protection requirements (GDPR considerations are being addressed separately in coordination with NTP's Data Protection Officer).
Text Messages and Mobile Messaging. For custodians with company-issued mobile devices (Voss, Calloway, Hale, Bright, and potentially others), we will coordinate with NFA and NTP IT departments for the extraction of SMS, Westmark Software, Meridian Services Inc., and Northgate Data Systems mobile messages. Vantage has the capability to perform forensic extraction of mobile device data. Where custodians used personal devices for business communications (a possibility that the litigation hold notice specifically addressed), we will coordinate directly with those individuals to arrange for targeted collection or, if necessary, forensic imaging of relevant message threads.
B. NorthBuild Project Management System
NorthBuild is a proprietary project management system used by NFA to manage the fiber build-out program and other large-scale infrastructure projects. The system contains a comprehensive record of the MCA project, including:
•  Milestone tracking data, including scheduled and actual completion dates for all project milestones;
•  NCR records, including the full set of 287 NCRs issued during the project, with associated photographs, test data, and remediation status;
•  Payment application processing records, including submitted payment applications, review notes, approval or rejection determinations, and associated correspondence;
•  Schedule data, including baseline schedules, schedule updates, and delay analyses;
•  Project correspondence logged through the system; and
•  Document management records, including transmittals, submittals, and RFIs.
We recommend a full export of all records related to the MCA project from the NorthBuild system. The specific project identifier will be confirmed with the client. Vantage has experience with structured data exports from project management systems and will work with NFA IT to extract the data in a format suitable for loading into the Relativity review platform. The NorthBuild export will be critical for establishing the milestone delay timeline, documenting the NCR history, reconstructing the payment application record, and supporting the schedule analyses that will be central to both the defense and the counterclaims.
C. Aldermere Systems and Shared Drives
NFA and NTP maintain Aldermere Systems team sites and shared network drives that are used by various departments to store and collaborate on project-related documents. The following team sites have been identified as potentially containing relevant materials:
•  US Network Infrastructure team site (Voss's team)
•  Construction Management team site (Calloway's team)
•  Legal team site (Hale's team)
•  Finance team site (Bright's team)
•  QA/QC team site
Collection from these sources will be targeted to folders and files related to the MCA, Meridian, the fiber build-out program, the termination, and the replacement contractor selection. Vantage will work with NFA IT to map the relevant Aldermere Systems sites and shared drive locations and to perform targeted collection using folder-level and keyword-based filters.
D. Hard Copy Project Files
NFA maintains physical project files at its offices at 600 Lexington Avenue, 28th Floor, New York, NY 10022. These files include:
•  Original signed contract documents, including the MCA, Exhibit B (scope of work and specifications), and all executed Change Orders;
•  Field inspection reports and daily construction logs;
•  Hard-copy NCRs and associated documentation (photographs, test reports, cure correspondence);
•  Engineering drawings and as-built surveys;
•  Hard-copy correspondence with Meridian, subcontractors, and municipal authorities; and
•  Meeting minutes and project conference notes.
We recommend engaging Vantage to conduct an on-site inventory of the hard-copy project files, followed by targeted scanning of the most relevant materials. The inventory will allow us to identify documents that exist only in hard copy (i.e., that do not have electronic counterparts) and to prioritize scanning accordingly. Given the volume of hard-copy materials, a comprehensive scan of all project files is likely neither necessary nor cost-effective; instead, we will focus on documents that are directly relevant to the key issues identified in Section II.C above.
E. Financial Systems
NFA's accounting system (Hollowell & Co. or equivalent — to be confirmed with NFA Finance) contains payment records, retainage calculations, liquidated damages deduction records, and other financial data related to the MCA. These records will be essential to the retainage dispute ($56,966,667), the disputed Phase 3 invoices ($16,500,000), and the liquidated damages counterclaim ($49,000,000).
NTP's financial reporting system contains Board-level financial analyses, capital expenditure records, and financial models related to the US fiber build-out program. These records will be relevant to the excess completion cost counterclaim ($81,700,000) and to the defense against Meridian's "pretext" theory.
Collection from financial systems will require coordination with the NFA and NTP Finance teams to identify the specific data sets, reports, and records that are responsive to the anticipated discovery requests. Vantage will assist with the extraction and processing of structured financial data.
F. Board Materials
NTP maintains a Board portal that houses presentations, meeting minutes, resolutions, and supporting materials from Board of Directors meetings. Board materials related to the US fiber strategy, the termination decision, and the replacement contractor selection are potentially responsive to Meridian's discovery requests, particularly those directed at the "pretext" theory.
These materials are highly sensitive and are expected to be subject to extensive privilege assertions. Many Board presentations were prepared by or at the direction of Dominic Hale for the purpose of providing legal advice to the Board regarding the termination decision and the litigation. Collection and review of Board materials will be coordinated closely with Hale to ensure proper identification and protection of privileged content.
VI. Search Terms
A. Core Search Terms (Apply to All Custodians)
The following search terms are recommended for application across all ten custodians. These terms are designed to capture the broadest categories of relevant documents while maintaining reasonable precision. The terms are organized by subject matter category.
Entity and Project Names:
"Meridian" OR "MIP" OR "Meridian Infrastructure" OR "Master Construction Agreement" OR "MCA" OR "fiber build" OR "fiber build-out" OR "fiber program" OR "NorthConnect fiber" OR "northeast fiber"
Key Individuals at Meridian:
"Sandoval" OR "Victor Sandoval" OR "Yeung" OR "Bridget Yeung" OR "Henley" OR "Marcus Henley" OR "Obrecht" OR "Randall Obrecht"
Contract-Specific Terms:
"milestone" AND ("delay" OR "late" OR "schedule" OR "completion") OR "non-conformance" OR "NCR" OR "cure notice" OR "termination" OR "liquidated damages" OR "retainage" OR "change order" OR "scope change"
Quality and Workmanship:
"splice loss" OR "conduit depth" OR "route deviation" OR "defect" OR "defective" OR "substandard" OR "rework" OR "NS-FIBER-2020" OR "quality" w/5 "failure"
Financial Terms:
"payment application" OR "progress payment" OR "invoice" AND "Meridian" OR "retainage" OR "holdback"
Permitting:
"permit" OR "permitting" OR "municipal" OR "right of way" OR "ROW"
Force Majeure:
"force majeure" OR "COVID" OR "supply chain" OR "labor shortage" OR "fiber cable" AND "delay"
Replacement Contractor:
"Crestline" OR "replacement contractor" OR "re-procurement" OR "DiBello"
Surety:
"Ironclad" OR "performance bond" OR "surety" OR "ISG-2020-NE-04417"
In-House Strategy (Pretext Issue):
"in-house" OR "insource" OR "self-perform" OR "bring in house" OR "internal construction"
Note regarding the "in-house strategy" terms: Results generated by these terms will require careful privilege review, as many responsive documents are expected to reflect legal advice regarding the termination decision and related strategic considerations. These terms are included because Meridian's "pretext" theory makes documents discussing any internal consideration of in-house construction highly relevant. However, we must ensure that privileged communications are identified and protected before any production.
B. Custodian-Specific Terms
In addition to the core search terms, the following custodian-specific terms are recommended:
For Dominic Hale (General Counsel):
Add: "legal advice" OR "privilege" OR "attorney"
These terms are to be used for segregation and privilege identification purposes, not as responsive search terms. Documents containing these terms will be routed to the privilege review workflow for heightened scrutiny.
For Helena Bright, Sir Malcolm Ashford, and Dame Catherine Elsworth (CFO, CEO, and Board Chair):
Add: "board" OR "board meeting" OR "capital expenditure" OR "capex" OR "budget" AND "fiber"
For QA/QC Manager:
Add: "ANSI" OR "TIA-568" OR "BICSI" OR "specification" OR "test results" OR "splice" OR "OTDR"
These terms target industry-standard quality and testing terminology relevant to the NCR documentation and the assessment of Meridian's compliance with Northgate Technical Specification NS-FIBER-2020.
For Permitting Coordinator:
Expand with specific municipal names across the seven-state footprint, including the names of counties, cities, and towns where permit applications were submitted or pending. The specific municipal names will be identified in coordination with the Permitting Coordinator and Renata Voss.
C. Search Term Negotiation
We anticipate that Meridian, through HDS, will propose additional or broader search terms during the Preliminary Conference or through the ESI protocol negotiations. We recommend the following approach:
•  Agree to reasonable, targeted terms that are likely to capture relevant documents without generating excessive false positives;
•  Resist overly broad terms (e.g., standalone terms such as "delay" or "cost" or "quality" without connectors or qualifiers) that would produce unmanageable volumes of irrelevant material;
•  Propose iterative search term refinement based on initial sample review — i.e., agree to run proposed terms on a sample set, evaluate precision and recall, and negotiate adjustments based on the results; and
•  Document all search term negotiations and agreements in writing for inclusion in the stipulated ESI protocol.
VII. Date Range
A. Recommended Collection Date Range
Start Date: January 1, 2019. This date is approximately fourteen months before the execution of the MCA on March 15, 2020, and is designed to capture the following categories of pre-contract materials:
•  The RFP and bid process through which Meridian was selected as the contractor for the fiber build-out program;
•  Pre-contract negotiations between NFA and Meridian, including the negotiation of key contract provisions (the termination clause, the liquidated damages provision, the consequential damages waiver, and the permitting responsibility allocation);
•  Due diligence conducted by NFA on Meridian's qualifications, financial condition, and track record;
•  Internal NFA and NTP communications regarding the formation of the contracting relationship; and
•  Post-closing integration activities following Ridgepoint Capital Group LP's 2018 acquisition of Meridian (the acquisition closed in 2018, but integration and post-closing activities extending into 2019 may be relevant to understanding Meridian's organizational structure and capabilities at the time of contracting).
End Date: September 15, 2024 (date of this memorandum). This is a rolling end date. Collection will capture all documents through the present date, and we will need to supplement the collection as the litigation progresses to capture documents generated after the initial collection date, including documents related to the Crestline replacement contract, ongoing remediation activities, and the litigation itself (to the extent not privileged).
B. Phased Collection Approach
To manage the volume of data and to prioritize the most critical custodians, we recommend a phased collection approach:
Phase A (Immediate — Target Completion: October 1, 2024): Collect from all four Tier 1 custodians (Voss, Calloway, Hale, and Bright) for the full date range of January 1, 2019 through September 15, 2024. Phase A collection should be initiated immediately upon approval of this memorandum. The target completion date of October 1, 2024 aligns with the Preliminary Conference before Justice Ricci, at which time we will be prepared to represent to the Court that collection from primary custodians is underway or complete.
Phase B (Within 2 Weeks of Phase A — Target Completion: October 15, 2024): Collect from all four Tier 2 custodians (Ashford, Elsworth, Procurement/Contracts Manager, and QA/QC Manager) for the full date range. Phase B collection will commence upon completion of Phase A or as soon as the identities of the placeholder custodians (#7 and #8) are confirmed with the client.
Phase C (Within 4 Weeks of Phase A — Target Completion: November 1, 2024): Collect from both Tier 3 custodians (Permitting Coordinator and Finance/Accounting Representative) for the full date range. Phase C collection will commence upon completion of Phase B or as soon as the identities of the placeholder custodians (#9 and #10) are confirmed with the client.
Parallel Collection Streams: The NorthBuild system export and the hard-copy scanning at 600 Lexington Avenue will proceed in parallel with Phase A and are targeted for completion by November 1, 2024.
VIII. E-discovery Vendor Coordination — Vantage Litigation Support LLC
A. Engagement
Vantage Litigation Support LLC ("Vantage") has been engaged as the e-discovery vendor for this matter pursuant to an engagement letter dated September 10, 2024. Vantage is located at 300 Vesey Street, Suite 600, New York, NY 10282. Vantage was selected based on its experience with large-scale construction litigation discovery, its capabilities with the Relativity platform, and its competitive pricing structure.
Vantage will provide the following services:
•  Data collection from email systems, file servers, Aldermere Systems, mobile devices, and structured data sources (NorthBuild, accounting systems);
•  Data processing, including de-duplication, de-NISTing, extraction of metadata and text, and conversion to reviewable formats;
•  Hosting of all collected and processed data on Vantage's Relativity instance;
•  Production formatting, including conversion to single-page TIFF images, extraction of text, generation of metadata load files, and provision of native files where required;
•  Technical support throughout the matter, including assistance with search term testing, analytics, and TAR (technology-assisted review) implementation if warranted by volume.
B. Processing and Hosting
All collected data will be transmitted to Vantage for processing and loading onto Vantage's Relativity instance. The following processing parameters will be applied:
De-Duplication. De-duplication will be performed at the global (cross-custodian) level, consistent with the anticipated stipulated ESI protocol. This means that where an identical document exists in the collections of multiple custodians, only one copy will be loaded for review, with all custodian sources noted in the metadata. Global de-duplication significantly reduces review volume and cost. If the stipulated ESI protocol ultimately requires custodian-level de-duplication instead, we will adjust accordingly.
Near-Duplicate Identification and Email Threading. Vantage's Relativity instance supports near-duplicate identification and email threading, both of which will be enabled for this matter. Near-duplicate identification clusters documents with substantially similar content, allowing reviewers to code groups of similar documents more efficiently. Email threading groups related emails into conversation threads, reducing the need to review the same email content multiple times across different messages in the same chain.
Estimated Volume. Based on the custodian estimates set forth in Section IV above, we anticipate a total collection volume of approximately 1.2 million to 1.6 million documents across all ten custodians. After processing (including de-duplication, de-NISTing, and removal of system files), we estimate approximately 1.4 million documents totaling approximately 3.2 TB will be loaded onto the Relativity platform for review.
C. Review Platform Setup
The Relativity workspace will be configured with a coding panel designed to support efficient and comprehensive document review. The coding panel will be specified in detail in a separate Document Review Protocol and Coding Manual, which will be prepared prior to the commencement of first-level review. The key elements of the coding panel will include:
Issue Coding. Issue codes will be aligned with the specific claims, defenses, and counterclaims in the case. Each document will be coded for the issue or issues to which it relates, enabling efficient retrieval and organization of documents by subject matter during deposition preparation, motion practice, and trial preparation.
Privilege Coding. The coding panel will include fields for first-pass privilege identification and second-pass privilege QC review. Reviewers will flag documents as potentially privileged during first-pass review, and privilege-flagged documents will be routed to a separate privilege review workflow for assessment by more senior team members.
Confidentiality Designation Coding. In accordance with the confidentiality stipulation and protective order (to be finalized with HDS), documents designated for production will be coded with the appropriate confidentiality level: "Confidential" or "Highly Confidential — Attorneys' Eyes Only."
Responsiveness Coding. Standard responsiveness coding (Responsive, Not Responsive, Potentially Responsive) will be applied during first-pass review.
D. Production Format
The production format will be finalized in the stipulated ESI protocol with HDS. Based on our preliminary discussions, we anticipate the following format:
•  Single-page TIFF images with extracted text (OCR where necessary);
•  Metadata load files in standard Concordance or Relativity format, including standard metadata fields (custodian, date sent/received, author, recipients, subject, file path, etc.);
•  Native files to be produced for spreadsheets (Excel), presentations (Northgate Services Inc.), and any other file types where TIFF imaging would materially impair the document's usability; and
•  Bates numbering in the format NFA-000000001 through NFA-999999999.
IX. Document Review Plan
A. Review Team
The document review will be structured in a multi-tiered review process designed to ensure accuracy, consistency, and efficiency:
First-Level Review. First-level review will be conducted by a team of contract review attorneys, to be staffed through Calderwood & Harkness's review management process. Based on the estimated volume of approximately 1.4 million documents and an assumed average review rate of 50–75 documents per reviewer per hour, we estimate that 8 to 12 reviewers will be needed, depending on the duration of the review period and the complexity of the documents. All first-level reviewers will receive comprehensive training on the facts of the case, the coding protocol, privilege identification criteria, and quality control procedures before beginning their review.
Second-Level Review. Second-level review will be performed by Yuki Nakamura, Working Associate. Nakamura will be responsible for quality control of first-level coding decisions, resolution of privilege calls escalated by first-level reviewers, and issue escalation for complex or strategically significant documents. Nakamura will conduct random sampling of first-level review decisions to monitor accuracy and consistency, with a target QC sample rate of at least 10% of reviewed documents.
Third-Level Review. Third-level review will be performed by Jeffrey Park, Lead Associate. Park will handle complex privilege determinations (including dual-hat issues involving Dominic Hale's communications), strategic issue review of key documents, and final decisions on privilege assertions for documents likely to be challenged by Meridian.
Final Review. Final review and sign-off authority rests with Linda Osei, Responsible Partner. Osei will review and approve all privilege log entries, identify key documents for case strategy purposes, and make final determinations on any privilege or responsiveness issues that cannot be resolved at lower levels.
B. Privilege Review Protocol
Given the involvement of in-house counsel (Dominic Hale) and outside counsel (Calderwood & Harkness) in the events at issue, privilege review will be a significant component of the document review process. The following protocols will be applied:
Scope of Privilege Review. All documents touching on legal advice regarding the termination decision, litigation strategy, Board-level legal presentations, or the in-house fiber strategy analysis involving counsel will be flagged for privilege review. This includes communications between NFA/NTP personnel and outside counsel, communications between NFA/NTP personnel and Dominic Hale in his capacity as General Counsel, and documents prepared at the direction of counsel for the purpose of providing legal advice.
Dual-Hat Issue — Dominic Hale. As noted in Section IV.B.3 above, Meridian is expected to challenge privilege assertions with respect to Hale's communications, arguing that Hale frequently acted in a dual capacity — providing both business advice and legal advice — and that communications in which Hale acted in his business capacity are not privileged. The review team will apply heightened scrutiny to all Hale communications. The determination of whether a particular communication reflects legal advice or business advice (or both) will be made on a document-by-document basis, applying the factors identified in applicable New York case law, including the nature of the communication, the capacity in which Hale was acting, and whether the communication was made for the purpose of obtaining or providing legal advice. Communications in which Hale provided primarily business advice will no