SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — COMMERCIAL DIVISION

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — COMMERCIAL DIVISION
MERIDIAN INFRASTRUCTURE PARTNERS LLC,
Plaintiff,
— against —
NORTHGATE FIBER AMERICAS INC.,
Defendant.
Index No. 654321/2024 Part 49 Hon. Eleanor M. Ricci
STIPULATION AND ORDER GOVERNING THE DISCOVERY OF ELECTRONICALLY STORED INFORMATION
Filed: October 1, 2024
Right-click to update Table of Contents
PREAMBLE AND RECITALS
WHEREAS, Plaintiff Meridian Infrastructure Partners LLC ("Plaintiff" or "Meridian") and Defendant Northgate Fiber Americas Inc. ("Defendant" or "NFA") (collectively, the "Parties"), by and through their respective counsel of record, hereby stipulate and agree to this Protocol governing the identification, preservation, collection, processing, review, production, and use of Electronically Stored Information ("ESI") in the above-captioned action;
WHEREAS, this action arises from the termination of a Master Construction Agreement dated March 15, 2020 (the "MCA") between NFA and Meridian for the design, engineering, permitting, and construction of approximately 18,500 route miles of fiber-optic cable across a seven-state footprint in the northeastern United States, encompassing the States of New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia (the "Project");
WHEREAS, Meridian's Verified Complaint, filed July 15, 2024, asserts claims for breach of contract, wrongful termination, and damages totaling Two Hundred Million Dollars ($200,000,000); and Defendant's Answer with Affirmative Defenses and Counterclaims, filed September 3, 2024, asserts counterclaims for defective work, schedule delays, and related damages totaling One Hundred Forty-Nine Million Dollars ($149,000,000);
WHEREAS, at the Preliminary Conference held October 1, 2024, before the Honorable Eleanor M. Ricci, Justice of the Supreme Court, New York County, Commercial Division, Part 49, the Court directed the Parties to confer and submit a proposed ESI protocol addressing the identification, preservation, collection, processing, review, production, and use of ESI in this action;
WHEREAS, the Parties have conferred extensively regarding the scope and methodology of ESI discovery, including telephonic meet-and-confer sessions conducted on September 12, 2024, September 19, 2024, and September 27, 2024, and have reached agreement on the terms set forth herein;
WHEREAS, the Parties have agreed to engage Vantage Litigation Support LLC, located at 300 Vesey Street, Suite 600, New York, NY 10282, as the neutral e-discovery vendor for hosting, processing, and production services in this action (the "Neutral Vendor");
WHEREAS, the Parties entered into a Stipulation and Proposed Order Regarding Confidentiality of discovery Materials, which was separately filed on October 1, 2024, and which governs the designation and handling of confidential materials produced in this action; and
WHEREAS, this Stipulation is intended to facilitate the just, speedy, and cost-effective exchange of ESI consistent with CPLR Article 31, the Commercial Division Rules (including 22 NYCRR § 202.70, Rules 8 and 11-e), and the principles of proportionality and cooperation that guide modern e-discovery practice;
NOW, THEREFORE, the Parties hereby stipulate and agree as follows, and respectfully submit this Stipulation to the Court for entry as an Order ("So Ordered"):
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Protocol, the following terms shall have the meanings set forth below. Terms defined elsewhere in this Protocol shall have the meanings ascribed to them in the sections in which they are defined.
(a) "ESI" shall mean electronically stored information as contemplated by CPLR 3101(i), and shall include, without limitation, emails, electronic documents, databases, metadata, text messages, instant messages (including messages sent via platforms such as Northgate Data Systems, Meridian Solutions, and Meridian Services Inc.), voicemails stored in electronic form, calendar entries, and any other data stored in electronic form on any medium, including but not limited to hard drives, servers, network shares, cloud storage platforms, mobile devices, and removable media.
(b) "Document" shall be defined broadly and shall encompass both ESI and hard-copy materials, consistent with CPLR 3101 and the Commercial Division Rules. The term "Document" includes, but is not limited to, writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by the Producing Party into a reasonably usable form.
(c) "Custodian" shall mean any individual from whom ESI or Documents are collected for purposes of this litigation, as identified in Article II, Section 2.3 of this Protocol, or as subsequently agreed upon by the Parties or ordered by the Court.
(d) "Producing Party" shall mean the Party producing ESI or Documents in response to discovery requests served in this action or pursuant to the obligations set forth in this Protocol.
(e) "Receiving Party" shall mean the Party receiving produced ESI or Documents from the Producing Party.
(f) "Neutral Vendor" shall mean Vantage Litigation Support LLC, located at 300 Vesey Street, Suite 600, New York, NY 10282, designated as the neutral e-discovery vendor for this action pursuant to Article VII of this Protocol.
(g) "Native Format" shall mean the original format in which a file was created, maintained, and used by the Custodian in the ordinary course of business. For example, a Microsoft Word document in its .docx format is in Native Format, and a Microsoft Excel spreadsheet in its .xlsx format is in Native Format.
(h) "TIFF" shall mean Tagged Image File Format, a standard image format for the production of ESI in litigation. Unless otherwise specified, TIFF images shall be single-page, Group IV, 300 dots per inch (DPI), black and white.
(i) "Load File" shall mean a file used to import images and associated metadata, extracted text, and other coding information into a document review platform. Load files shall be produced in Concordance/Relativity-compatible format, including .dat (delimited data file) and .opt (Opticon image cross-reference file) formats, or equivalent formats as agreed between the Parties and the Neutral Vendor.
(j) "Metadata" shall mean data about data, including but not limited to system metadata (e.g., file creation date, file modification date, file size, file path), application metadata (e.g., author, comments, tracked changes, revision history), and embedded metadata (e.g., formulas in spreadsheets, hidden columns and rows, speaker notes in presentations).
(k) "De-Duplication" or "De-Duping" shall mean the process of comparing electronic records based on their Hash Values to eliminate duplicate copies of identical documents, thereby reducing the volume of documents subject to review and production.
(l) "Hash Value" shall mean a unique numerical identifier generated by a mathematical algorithm applied to the binary content of a file. For purposes of this Protocol, Hash Values shall be calculated using either the MD5 (Message-Digest Algorithm 5) or SHA-1 (Secure Hash Algorithm 1) algorithm. Two files with identical Hash Values are, for all practical purposes, identical in content.
(m) "Privilege Log" shall mean the log of Documents withheld from production on the basis of attorney-client privilege, work product protection, or any other applicable privilege or immunity from disclosure. Privilege Logs shall comply with the requirements set forth in Article VIII of this Protocol.
(n) "Confidential" and "Highly Confidential — Attorneys' Eyes Only" shall have the meanings ascribed to those designations in the separately filed Stipulation and Proposed Order Regarding Confidentiality of discovery Materials (filed October 1, 2024, Index No. 654321/2024) (the "Confidentiality Stipulation"). All productions made pursuant to this Protocol shall be subject to the terms and conditions of the Confidentiality Stipulation.
(o) "Clawback" shall mean the procedure for the return, sequestration, or destruction of inadvertently produced privileged or work product-protected materials, as set forth in Article IX of this Protocol.
(p) "Processing" shall mean the conversion of collected ESI from its Native Format into a format suitable for review and production, including but not limited to the extraction of text and Metadata, the expansion of container files, the application of date-range filters, the removal of system files (de-NISTing), optical character recognition of image-only files, and De-Duplication.
(q) "Review Platform" shall mean the technology-assisted review platform hosted by the Neutral Vendor for the Parties' joint use in reviewing, searching, and producing ESI in this action.
(r) "Search Terms" shall mean the agreed-upon keywords, phrases, Boolean strings, proximity operators, or date-range filters used to identify potentially responsive ESI from the universe of collected and processed data, as further described in Article V of this Protocol.
(s) "MCA" shall mean the Master Construction Agreement dated March 15, 2020, between NFA and Meridian, together with all amendments, change orders, work orders, and attachments thereto.
(t) "Project" shall mean the design, engineering, permitting, and construction of approximately 18,500 route miles of fiber-optic cable across the seven-state footprint as described in the MCA.
ARTICLE II — SCOPE OF ESI DISCOVERY
Section 2.1 — General Scope
ESI discovery in this action shall be proportional to the needs of the case, taking into account the factors set forth in CPLR 3101 and the Commercial Division Rules, including: (i) the amounts in controversy (Plaintiff's claims of $200,000,000 and Defendant's counterclaims of $149,000,000); (ii) the importance of the issues at stake in the action, including claims of breach of the MCA, wrongful termination, defective work, and related damages; (iii) the Parties' relative access to relevant information; (iv) the Parties' resources; (v) the importance of the discovery in resolving the issues; and (vi) whether the burden or expense of the proposed discovery outweighs its likely benefit. The Parties acknowledge that, given the magnitude of the claims and counterclaims at issue, a substantial volume of ESI discovery is warranted and proportional.
The Parties agree that discovery shall encompass ESI relevant to the claims and defenses asserted in this action, including but not limited to the following categories:
(a) Breach of contract claims arising from the termination of the MCA;
(b) Termination for cause under MCA § 14.1, including whether grounds for termination existed and whether proper notice and cure procedures were followed;
(c) Liquidated damages under MCA § 9.1, including the calculation and enforceability of liquidated damages provisions;
(d) Quality standards under MCA § 12.4, including compliance with specifications, inspection reports, non-conformance reports, and punch-list items;
(e) Change orders under MCA § 16.1, including the approval process, pricing disputes, and the impact of change orders on the project schedule;
(f) Termination for convenience under MCA § 14.3, including the availability and effect of the termination-for-convenience provision as an alternative basis for termination;
(g) The consequential damages waiver under MCA § 20.1, including its scope, enforceability, and applicability to the damages claimed by each Party;
(h) Force majeure events and their impact on project timelines, including but not limited to the COVID-19 pandemic, supply chain disruptions, and extreme weather events;
(i) Permitting responsibilities under MCA § 5.3, including the allocation of responsibility for obtaining governmental permits and approvals and the impact of permitting delays on the project schedule;
(j) Damages quantification, including lost profits, cost of completion, delay damages, retainage, and any offsets or credits; and
(k) Any other matters relevant to the claims, defenses, counterclaims, and affirmative defenses asserted by either Party.
Section 2.2 — Temporal Scope
The relevant date range for ESI discovery in this action shall be January 1, 2019 through April 30, 2024, encompassing the period of pre-MCA negotiations, the execution and performance of the MCA, the events leading to termination, and post-termination correspondence and dispute resolution efforts.
For financial and damages-related Documents, including but not limited to invoices, payment applications, progress payments, retainage calculations, and financial projections related to the Project, the relevant date range shall be January 1, 2019 through the date of production, in recognition of the fact that certain financial information relevant to damages quantification may post-date the termination of the MCA.
The Parties may agree in writing to narrow or expand the date range for specific Custodians or topics where circumstances warrant, without the need for further court approval, provided that any such agreement is memorialized in a written stipulation filed with the Court.
Section 2.3 — Custodians
Section 2.3(a) — Defendant's Custodians
The Parties agree that Defendant shall collect ESI from the following ten (10) Custodians:
1.  Renata Voss, Vice President of US Network Infrastructure, NFA;
2.  Sean Calloway, Director of Construction Management, NFA;
3.  Helena Bright, Chief Financial Officer, Northgate Telecommunications PLC (parent company of NFA);
4.  Dominic Hale, General Counsel, Northgate Telecommunications PLC;
5.  Sir Malcolm Ashford, Chief Executive Officer, Northgate Telecommunications PLC;
6.  Trevor Haynes, Senior Project Engineer, NFA;
7.  Gail Renfrow, Contract Administrator, NFA;
8.  Philip Dunmore, Quality Assurance Manager, NFA;
9.  Anika Patel, Senior Financial Analyst, NFA;
10.  Robert Fazio, Director of Permitting and Regulatory Affairs, NFA.
Defendant reserves the right to designate additional Custodians as the needs of the case may require, subject to the meet-and-confer obligations set forth in Section 2.3(c) below. The inclusion of Custodians employed by Northgate Telecommunications PLC (the parent company of NFA) reflects the Parties' agreement that certain relevant decisions regarding the Project were made at the parent-company level and that ESI from these individuals is proportional to the needs of the case.
Section 2.3(b) — Plaintiff's Custodians
The Parties agree that Plaintiff shall collect ESI from the following eight (8) Custodians:
1.  Victor Sandoval, Managing Member and Chief Executive Officer, Meridian Infrastructure Partners LLC;
2.  Bridget Yeung, Chief Operating Officer, Meridian Infrastructure Partners LLC;
3.  Marcus Henley, Vice President of Field Operations (Northeast Division), Meridian Infrastructure Partners LLC;
4.  Randall Obrecht, Chief Financial Officer, Meridian Infrastructure Partners LLC;
5.  Diane Kowalski, Senior Project Manager (Connecticut/Massachusetts Segment), Meridian Infrastructure Partners LLC;
6.  Aaron Jeffries, Field Supervisor (New York/New Jersey Segment), Meridian Infrastructure Partners LLC;
7.  Carla Stanton, Project Manager (Pennsylvania/Maryland/Virginia Segment), Meridian Infrastructure Partners LLC;
8.  Neil Bergstrom, Chief Estimator, Meridian Infrastructure Partners LLC.
Plaintiff reserves the right to designate additional Custodians as the needs of the case may require, subject to the meet-and-confer obligations set forth in Section 2.3(c) below.
Section 2.3(c) — Disputes Regarding Custodians
If either Party seeks to add or remove a Custodian from the agreed list, the Parties shall meet and confer in good faith to resolve the issue. If the Parties cannot agree on the addition or removal of a Custodian, either Party may raise the dispute with the Court at the next scheduled conference or by letter motion in accordance with Article XI, Section 11.2 of this Protocol. The Party seeking the addition of a Custodian shall bear the burden of demonstrating that the proposed Custodian is likely to possess unique, non-cumulative ESI relevant to the claims or defenses in this action.
Section 2.4 — Data Sources
The Parties agree that the following data sources shall be included in the scope of ESI collection for each designated Custodian, to the extent such sources exist and contain potentially relevant ESI:
(a) Email systems, including Strathmore Data Systems, Hollowell Systems (including .pst and .ost files), and any cloud-hosted email platforms (including Ashgrove Software / Drayton Solutions and Crestline Software);
(b) Network file shares, shared drives, and departmental drives accessible to the Custodian;
(c) Local hard drives and laptop computers assigned to the Custodian;
(d) Project management platforms and document management systems used in connection with the Project, including but not limited to Aldermere Systems sites, Glenrock Health IT, Kestrel Software, and any other platforms used for project document management and collaboration;
(e) Mobile devices (smartphones and tablets) assigned to or used by the Custodian in connection with the Project, including text messages (SMS and Westmark Software) and messaging applications (including Northgate Data Systems, Meridian Solutions, and Meridian Services Inc.);
(f) Cloud storage platforms, including Severin Services Inc., Westvale Services Inc., Hollowell Health IT, and Larkspur Technologies, to the extent used by the Custodian in connection with the Project;
(g) Project-specific databases and scheduling software used in connection with the fiber build-out program, including Tarrant Data Systems, Sundial Health IT, and any scheduling, tracking, or reporting tools used to monitor construction progress, milestones, and completion dates; and
(h) Any other data sources identified through the meet-and-confer process as likely to contain unique, relevant ESI.
The following data sources are excluded from the scope of ESI collection, absent written agreement of the Parties or a court order:
(i) Backup tapes, disaster recovery systems, and archived media, unless a specific Custodian's primary data source is unavailable or has been lost, in which case the Party responsible for the Custodian shall make reasonable efforts to restore and collect from backup sources;
(ii) Voicemail systems, unless a specific voicemail has been identified as relevant through other discovery;
(iii) Legacy systems that were decommissioned or taken out of active use prior to January 1, 2019, and for which restoration would impose a disproportionate burden;
(iv) Embedded GPS, telemetry, and sensor data from construction equipment, vehicles, and field instruments, unless a specific data set is identified as directly relevant to a material issue in dispute and the requesting Party demonstrates that the information is not reasonably available from other sources; and
(v) Personal devices of Custodians, unless the Custodian used the personal device for business communications related to the Project, in which case the scope of collection from the personal device shall be limited to Project-related communications.
ARTICLE III — PRESERVATION OBLIGATIONS
Section 3.1 — Litigation Hold
Each Party represents that it has issued and implemented a written litigation hold notice to all identified Custodians and relevant information technology personnel, directing the preservation of all ESI and Documents potentially relevant to this action. Each Party further represents that its litigation hold notice instructs Custodians and IT personnel to refrain from deleting, destroying, altering, overwriting, or otherwise modifying any potentially relevant ESI, and to take affirmative steps to preserve such ESI in its current form and location.
Defendant NFA represents that its litigation hold was issued on August 21, 2024, upon receipt of the Verified Complaint and service of process. Defendant further represents that, prior to issuance of its formal litigation hold, NFA had taken preliminary steps to preserve Project-related documents in anticipation of potential litigation, beginning in approximately May 2024.
Plaintiff Meridian represents that its litigation hold was issued no later than July 1, 2024, prior to the filing of the Verified Complaint on July 15, 2024. Plaintiff further represents that Meridian had preserved Project-related files in the ordinary course of its document retention practices, and that no relevant documents were destroyed between the time the dispute arose and the issuance of the formal litigation hold.
Section 3.2 — Continuing Obligation
The Parties shall maintain their respective litigation holds and preservation obligations throughout the pendency of this action, including during any post-trial proceedings and appeals. Each Party shall take reasonable steps to prevent the destruction, alteration, or loss of ESI, including but not limited to the following measures:
(a) Suspending auto-delete or auto-archive policies for Custodian mailboxes, including email retention policies that would otherwise purge messages after a specified period;
(b) Suspending auto-delete policies for relevant shared drives, network file shares, and cloud storage platforms;
(c) Preserving mobile device data for identified Custodians, including taking reasonable steps to prevent device wipes, upgrades, or replacements that could result in data loss;
(d) Periodically reminding Custodians of their preservation obligations, including issuing updated litigation hold notices as necessary when new Custodians are identified or when the scope of the litigation changes; and
(e) Coordinating with IT personnel to ensure that system migrations, upgrades, or decommissioning activities do not result in the loss of potentially relevant ESI.
Section 3.3 — Notification of Loss
If either Party becomes aware of the loss, destruction, or degradation of potentially relevant ESI occurring after the institution of the Party's litigation hold, the affected Party shall promptly notify opposing counsel in writing. Such notification shall include, at a minimum:
(a) A description of the nature and extent of the loss, including the type of data affected (e.g., email, files, text messages);
(b) The identity of the Custodian(s) affected by the loss;
(c) The approximate date range of the affected data;
(d) The circumstances surrounding the loss, including whether the loss was caused by inadvertence, system failure, or intentional conduct;
(e) The steps taken by the Party to remediate the loss, including any efforts to recover the data from backup sources, and the results of such efforts; and
(f) An assessment of the impact of the loss on the Party's ability to fulfill its discovery obligations.
Nothing in this Section 3.3 shall be construed as a waiver of any Party's right to seek sanctions, adverse inference instructions, or other relief arising from the spoliation or loss of ESI.
ARTICLE IV — COLLECTION AND PROCESSING
Section 4.1 — Collection Methodology
Each Party shall collect ESI from its designated Custodians using forensically sound methods that preserve the integrity of the data, including all associated Metadata. Collections shall be performed in a manner that does not alter the content, Metadata, or Hash Values of the original files.
Collections may be performed by any of the following:
(a) Each Party's internal information technology personnel, provided that such personnel follow documented collection protocols and use industry-standard collection tools;
(b) Outside forensic consultants retained by a Party for the purpose of ESI collection; or
(c) The Neutral Vendor, Vantage Litigation Support LLC.
Regardless of who performs the collection, all collections shall be documented in a collection log that includes, at a minimum, the following information for each collection event:
(i) The identity of the Custodian from whom data was collected;
(ii) The data source(s) from which data was collected (e.g., email account, network share, laptop hard drive, mobile device);
(iii) The date and time of the collection;
(iv) The method of collection (e.g., forensic image, targeted collection, export from email system);
(v) The identity of the individual or entity performing the collection;
(vi) The total volume of data collected (in gigabytes or terabytes, and approximate number of files); and
(vii) Any exceptions, errors, or issues encountered during the collection process.
Collection logs shall be maintained by each Party and made available to opposing counsel upon reasonable request for purposes of verifying the completeness and integrity of collections.
Section 4.2 — Processing
Processing of collected ESI shall be performed by the Neutral Vendor or by each Party's own e-discovery vendor, using industry-standard processing tools such as Brightmoor Health IT, Severin Software, Harborline Services Inc., or equivalent platforms. The Parties agree that processing shall be conducted in accordance with the following parameters:
(a) De-NIST: System files and application files shall be removed from the data set using the NIST National Software Reference Library (NSRL) hash list. De-NISTing shall remove files such as operating system files, software installation files, and other non-user-created content that is not relevant to the litigation.
(b) Date-Range Filtering: ESI shall be filtered to include only Documents falling within the temporal scope set forth in Section 2.2 of this Protocol (January 1, 2019 through April 30, 2024, or through the date of production for financial and damages-related Documents). Date-range filtering shall be applied using the most appropriate date field for each file type (e.g., Date Sent for emails, Date Last Modified for documents).
(c) De-Duplication: De-Duplication shall be performed in accordance with Section 4.3 of this Protocol.
(d) Text and Metadata Extraction: Full text and all available Metadata shall be extracted from each processed file. Extracted text shall be preserved as separate .txt files for use in full-text searching and indexing.
(e) Container File Expansion: Container files, including but not limited to ZIP archives, RAR archives, PST files, OST files, NSF files, and MSG files, shall be expanded to extract and process their contents as individual files or email messages.
(f) Optical Character Recognition (OCR): Image-only files (e.g., scanned PDFs, TIFF images without embedded text) shall be subjected to optical character recognition to generate searchable text. OCR text shall be produced as a supplemental text file where extracted text is not available.
(g) Language: Processing and review shall be limited to English-language Documents, unless a specific non-English-language Document is identified as potentially responsive, in which case the Parties shall meet and confer regarding translation and production of such Document. For the avoidance of doubt, Documents that contain incidental non-English text (e.g., bilingual signatures, foreign-language disclaimers) shall not be excluded from processing.
Section 4.3 — De-Duplication
Each Party shall De-Duplicate ESI at the Custodian level using MD5 or SHA-1 Hash Values. Custodian-level De-Duplication means that if a single Custodian possesses multiple copies of the same file (as determined by identical Hash Values), only one copy of the file shall be retained for review and production.
Cross-custodian De-Duplication (i.e., the elimination of duplicate files across multiple Custodians) is not required but is permitted at the Producing Party's discretion. If a Producing Party elects to perform cross-custodian De-Duplication, it shall identify in the load file all Custodians from whom the De-Duplicated Document was collected, so that the Receiving Party can determine the full scope of the document's distribution.
Email De-Duplication shall be performed based on a combination of the following fields: sender address, recipient address(es) (To, CC, and BCC), date and time sent, subject line, and body content hash. Attachments shall be considered as part of the email family for De-Duplication purposes, meaning that two emails shall be treated as duplicates only if both the email message and its attachments are identical.
Section 4.4 — Email Threading
Each Party may utilize email threading technology to group related email messages (e.g., emails within the same conversation thread) for the purpose of improving review efficiency. However, production shall include all unique emails within a thread. A Party may not produce only the most inclusive email in a conversation thread if earlier emails in the thread contain unique content not captured in the most inclusive message, such as unique body text, unique attachments, or unique recipients. The obligation to produce all unique emails ensures that the Receiving Party has access to the full record of communications, including any substantive changes or additions that occurred at intermediate points in a conversation.
ARTICLE V — SEARCH METHODOLOGY
Section 5.1 — Keyword Search Terms
The Parties shall negotiate and exchange proposed keyword Search Terms within fourteen (14) days of the entry of this Order (i.e., by October 15, 2024). Each Party shall submit its proposed Search Terms to opposing counsel in writing, together with a brief explanation of the relevance of each proposed term to the claims and defenses in this action.
Search Terms shall be applied to the full text and Metadata of processed ESI, including email body text, email subject lines, file names, and document body text. Search Terms may include individual keywords, multi-word phrases, Boolean connectors (AND, OR, NOT), proximity operators (e.g., w/5, w/10), wildcard characters, and date-range filters.
Each Party may propose up to seventy-five (75) initial Search Terms, including any Boolean connectors or proximity operators associated with each term. For purposes of this limitation, a single Boolean search string (e.g., "termination" AND "cure notice" w/10 "default") shall count as one Search Term. Additional Search Terms beyond the initial seventy-five may be proposed by either Party, but shall require the agreement of the opposing Party or, in the absence of agreement, court approval.
The Parties shall meet and confer in good faith to reach agreement on a final set of Search Terms. The Parties recognize that Search Terms should be designed to be sufficiently broad to capture relevant Documents while avoiding an undue volume of false-positive (non-responsive) results. If the Parties are unable to agree on specific Search Terms, either Party may submit the disputed terms to the Court for resolution, together with a brief explanation of the relevance of the proposed terms and any objections.
The agreed-upon Search Terms shall be memorialized in Exhibit A to this Protocol, which shall be filed with the Court upon finalization.
Section 5.2 — Technology-Assisted Review (TAR)
Either Party may, at its own expense, elect to use Technology-Assisted Review (also known as predictive coding, machine learning-assisted review, or continuous active learning) to supplement or replace linear (manual) review of ESI. The Parties acknowledge that TAR is a widely accepted and judicially recognized methodology for the review of large volumes of ESI, and that the use of TAR may promote efficiency and reduce costs.
A Party electing to use TAR shall comply with the following requirements:
(a) Notification: The Party shall notify opposing counsel of its intent to use TAR within fourteen (14) days of commencing its TAR workflow, and shall identify the specific TAR methodology to be employed (e.g., Continuous Active Learning ("CAL"), Simple Active Learning ("SAL"), or Simple Passive Learning ("SPL")).
(b) Tool Identification: The Party shall identify the TAR tool or platform used, including the vendor name and software version (e.g., Kestrel Health IT, Quillon Services Inc., Thackeray Solutions).
(c) Transparency: The Party shall provide reasonable transparency into the TAR training process upon request by opposing counsel, including the following information:
(i) The number of training rounds or iterations completed (for SAL workflows) or the cumulative number of documents reviewed and coded (for CAL workflows);
(ii) Richness estimates (i.e., the estimated percentage of responsive documents in the overall data set);
(iii) Recall and precision metrics, as further described in subsection (d) below; and
(iv) A general description of the seed set or training set composition, without disclosing privileged information or attorney work product.
(d) Validation: The Party shall validate the TAR model using a statistically significant random sample drawn from the documents classified as non-responsive by the TAR model. The validation sample shall be of sufficient size to achieve a ninety-five percent (95%) confidence level with a margin of error of plus or minus two percent (± 2%). The Party shall disclose the validation results to opposing counsel, including the estimated recall rate (i.e., the percentage of responsive documents identified by the TAR model). The target recall rate shall be no less than seventy-five percent (75%), recognizing that no review methodology, whether manual or technology-assisted, achieves perfect recall.
(e) No Waiver of Obligations: The use of TAR does not relieve a Party of its obligation to produce all responsive, non-privileged Documents. If the TAR model fails to identify a responsive Document, the Producing Party remains obligated to produce such Document once it becomes aware of its existence. The use of TAR is not a defense to a motion to compel if a Producing Party has failed to produce responsive Documents.
Section 5.3 — Quality Control Sampling
Each Producing Party shall conduct quality control ("QC") sampling of Documents coded as non-responsive during the review process, whether the review was conducted manually or through TAR. The QC sample shall be a statistically random sample of sufficient size to achieve a ninety-five percent (95%) confidence level with a margin of error of plus or minus two percent (± 2%).
The purpose of QC sampling is to assess the accuracy and reliability of the review process and to identify any systemic coding errors. If QC sampling reveals a significant error rate (e.g., an error rate exceeding five percent), the Producing Party shall take corrective action, which may include re-review of the affected population or additional training of reviewers.
Results of QC sampling shall be documented and made available to opposing counsel upon reasonable request. The Parties agree that QC sampling results are a tool for ensuring the quality of productions and shall not, standing alone, serve as the basis for challenges to the sufficiency of a production absent a showing of material prejudice to the Receiving Party.
ARTICLE VI — FORMAT OF PRODUCTION
Section 6.1 — General Format
Documents shall be produced in the following formats, unless otherwise agreed by the Parties or ordered by the Court:
(a) Emails: Emails shall be produced as single-page TIFF images at 300 dots per inch (DPI), black and white, Group IV compression. Each email shall be accompanied by an extracted text file (.txt) containing the full text of the email body and header information. Emails shall be produced with a Concordance/Relativity-compatible load file, including a .dat file (containing Metadata and coding fields) and an .opt file (containing image cross-references).
(b) Email Attachments: Email attachments shall be produced as part of the email family, maintaining the parent-child relationship between the email and its attachments. Attachments shall be produced in TIFF format with extracted text, except as otherwise provided in Section 6.2 of this Protocol for file types requiring Native Format production.
(c) Non-Email Documents: Non-email Documents, including but not limited to Microsoft Word documents, Northgate Services Inc. presentations, PDF files, and other standard document formats, shall be produced as single-page TIFF images at 300 DPI, black and white, with extracted text files. Where a non-email Document contains color content that is material to its meaning or interpretation (e.g., color-coded maps, highlighted annotations, or color photographs), the Producing Party shall produce the Document in color TIFF format (300 DPI, 24-bit color) or shall produce a color PDF version in addition to the TIFF images.
(d) Spreadsheets and Databases: Spreadsheets and databases shall be produced in Native Format, as further described in Section 6.2 of this Protocol.
Section 6.2 — Native-Format Productions
The following document types shall be produced in Native Format, in addition to any TIFF image production, because conversion to TIFF would render the Document unintelligible, would materially alter its content, or would deprive the Receiving Party of the ability to interact with the data in a meaningful way:
(a) Microsoft Excel files (.xlsx, .xls, .csv), including all worksheets, tabs, formulas, pivot tables, hidden rows and columns, and embedded charts;
(b) Ridgeway Data Systems databases (.mdb, .accdb), including all tables, queries, forms, and reports;
(c) Sundial Health IT files (.mpp), including all task schedules, Gantt charts, resource assignments, and baseline data;
(d) Tarrant Data Systems files (.xer), including all project schedules, activity data, resource assignments, and baseline information;
(e) CAD and GIS files (.dwg, .dxf, .shp, .kmz, .kml), including all layers, annotations, and geographic data;
(f) Audio and video files, in their original format (e.g., .mp3, .mp4, .wav, .avi, .mov), accompanied by a transcript if one exists;
(g) Any other file type for which TIFF conversion would render the Document unintelligible or would materially alter its content, as determined by the Producing Party in good faith or as agreed by the Parties.
Native files produced pursuant to this Section 6.2 shall be accompanied by a placeholder TIFF image bearing the assigned Bates number and the legend: "DOCUMENT PRODUCED IN NATIVE FORMAT." The placeholder TIFF shall serve as the image record for the Document in the load file, and the Native file shall be linked to the placeholder TIFF by Bates number.
Section 6.3 — Metadata Fields
The following Metadata fields shall be produced for all Documents in the load file accompanying each production. The Parties agree that these fields represent the standard set of Metadata necessary for the efficient review, searching, and organization of produced ESI:
The FILE_PATH field shall be redacted to remove internal network path structure above the Custodian level (e.g., server names, network share paths), upon request by the Producing Party, provided that the Custodian name and folder structure below the Custodian level are preserved.
The Parties may agree in writing to add or remove Metadata fields from the foregoing list as circumstances warrant, without the need for further court approval.
Section 6.4 — Bates Numbering
Each page of every produced Document shall bear a unique Bates stamp, applied in a consistent and sequential manner. The Parties agree to the following Bates numbering conventions:
(a) Defendant shall use the prefix "NFA-" followed by sequential nine-digit Bates numbers, beginning with NFA-000000001 (e.g., NFA-000000001, NFA-000000002, etc.).
(b) Plaintiff shall use the prefix "MIP-" followed by sequential nine-digit Bates numbers, beginning with MIP-000000001 (e.g., MIP-000000001, MIP-000000002, etc.).
Bates numbers shall be applied to the lower right corner of each TIFF image. For Documents produced in Native Format, the Bates number shall appear on the placeholder TIFF image, and the Native file shall be identified by the same Bates number in the load file. Bates numbers shall be endorsed in a font size and color that is legible and does not obscure the content of the Document (suggested: 10-point Arial, black text on white background or white text on black background, as appropriate).
Bates numbering shall be continuous across all production volumes (i.e., each subsequent production shall continue the numbering sequence from where the prior production ended).
Section 6.5 — Redactions
Where a Producing Party redacts a portion of a Document, the redaction shall be clearly marked with an opaque black box overlaying the redacted content. Each redaction box shall include a notation identifying the basis for the redaction, using one of the following designations:
•  "PRIVILEGED" — for information withheld on the basis of attorney-client privilege or work product protection;
•  "IRRELEVANT PERSONAL INFORMATION" — for personal information (e.g., Social Security numbers, personal health information, personal financial account numbers) that is not relevant to the claims or defenses in this action;
•  "THIRD-PARTY CONFIDENTIAL" — for confidential information belonging to third parties that is not relevant to the claims or defenses in this action and that the Producing Party is contractually or legally obligated to protect; or
•  Such other designation as may be appropriate to identify the basis for the redaction.
Where a Document is partially redacted, the Producing Party shall produce the Document in redacted TIFF format (i.e., the TIFF image shall reflect the redactions) and shall note the redaction on its Privilege Log (if the redaction is based on privilege) or in a separate redaction log (if the redaction is based on irrelevance, personal information, or third-party confidentiality). The redaction log shall identify the Document by Bates number, the location of the redaction within the Document, and the basis for the redaction.
Section 6.6 — Production Media
Productions shall be delivered via one of the following methods:
(a) Secure Electronic Transfer: Productions may be uploaded directly to the Neutral Vendor's hosted platform via a secure, encrypted transfer protocol (e.g., SFTP, HTTPS upload, or the Neutral Vendor's proprietary secure upload mechanism).
(b) Encrypted External Hard Drive: Productions may be delivered on encrypted external hard drives (using AES 256-bit encryption or equivalent), shipped via traceable overnight courier (e.g., Severin Partners LLC, Halcyon Partners LLC) to the Neutral Vendor or to opposing counsel, as directed.
Each production shall be accompanied by a production cover letter identifying the following information:
(i) The production volume number (e.g., "NFA Production Volume 001");
(ii) The date of the production;
(iii) The date range of Documents included in the production;
(iv) The Bates number range of the production (e.g., NFA-000000001 through NFA-000150000);
(v) The total number of Documents in the production;
(vi) The total number of pages in the production;
(vii) The Custodian(s) whose Documents are included in the production; and
(viii) A list of the files included on the production media (e.g., load files, image files, text files, native files).
ARTICLE VII — NEUTRAL VENDOR
Section 7.1 — Designation
The Parties agree that Vantage Litigation Support LLC ("Vantage"), located at 300 Vesey Street, Suite 600, New York, NY 10282, shall serve as the neutral e-discovery vendor for this action. Vantage was jointly selected by the Parties following a competitive evaluation process and has been engaged pursuant to an engagement letter dated September 10, 2024. Further details regarding Vantage's engagement, capabilities, and contact information are set forth in Exhibit B to this Protocol.
Section 7.2 — Role and Responsibilities
Vantage shall perform the following functions in connection with this action:
(a) Shared Platform Hosting: Vantage shall host a shared document review and production platform accessible to counsel for both Parties. The shared platform shall enable counsel to search, view, and analyze all produced Documents in a single, centralized repository.
(b) Production Processing: Vantage shall process incoming productions from both Parties for loading into the shared platform, including the ingestion of load files, image files, text files, and native files, and shall verify the integrity and completeness of each production upon ingestion.
(c) Centralized Repository: Vantage shall maintain a centralized repository of all Documents produced by both Parties and by third parties in this action, organized by producing party, production volume, and Bates number range.
(d) Technical Support: Vantage shall provide technical support for search, review, and production functions, including assistance with search term configuration, analytics, TAR workflows, and production formatting.
(e) Data Security and Access Controls: Vantage shall ensure data security consistent with industry best practices, including encryption of data at rest and in transit, role-based access controls, multi-factor authentication for user accounts, and regular security audits. Vantage shall implement separate security partitions for each Party's work product and privilege designations, ensuring that one Party's work product is not accessible to the other Party.
(f) Audit Logging: Vantage shall maintain a comprehensive audit log of all user access and activity on the platform, including logins, searches, document views, coding changes, exports, and productions. Audit logs shall be retained for the duration of the engagement and shall be made available to the Parties or the Court upon request.
Vantage shall not have access to any Party's work product, privilege designations, attorney-client communications, or internal review coding, unless specifically authorized in writing by the Party whose information would be disclosed. Vantage's access to the shared platform shall be limited to administrative and technical support functions.
Section 7.3 — Cost Allocation
The costs associated with e-discovery in this action shall be allocated as follows:
(a) Collection, Processing, and Review Costs: Each Party shall bear its own costs for the collection, processing, and review of its own ESI. These costs include, without limitation, the costs of engaging internal IT personnel, outside forensic consultants, contract review attorneys, and any e-discovery vendor retained by a Party for its own review purposes.
(b) Shared Platform Hosting Costs: The costs for Vantage's shared hosting platform, including the monthly hosting fee, storage costs, and user license fees, shall be split equally (50/50) between the Parties. Vantage shall issue separate invoices to each Party for its share of the shared platform costs.
(c) Production Processing Costs: The costs for Vantage's processing of incoming productions (i.e., the ingestion and loading of produced Documents onto the shared platform) shall be borne by the Producing Party whose Documents are being processed.
(d) Disputes: Any dispute regarding the allocation of costs under this Section 7.3 shall be submitted to the Court for resolution by letter motion in accordance with Article XI, Section 11.2 of this Protocol.
Section 7.4 — Confidentiality and Data Security
Vantage shall execute a confidentiality and data security agreement with both Parties, consistent with the terms and conditions of the Confidentiality Stipulation filed in this action. The confidentiality and data security agreement shall require Vantage to:
(a) Maintain the confidentiality of all ESI and Documents in its possession, custody, or control, and refrain from disclosing any such information to any person or entity other than authorized representatives of the Parties and the Court;
(b) Maintain all ESI and Documents on servers located in the continental United States, and refrain from transferring, storing, or processing any data on servers located outside the United States without the prior written consent of both Parties;
(c) Implement and maintain data security measures consistent with industry best practices and applicable law, including SOC 2 Type II certification, AES 256-bit encryption of data at rest, TLS 1.2 or higher encryption of data in transit, regular penetration testing, and disaster recovery and business continuity protocols;
(d) Promptly notify both Parties of any data breach or security incident affecting ESI or Documents in Vantage's possession; and
(e) Upon conclusion of the litigation (including the exhaustion of all appeals or the expiration of the time for appeal), return or destroy all ESI and Documents in its possession in accordance with the Parties' written instructions and any applicable orders of the Court. Vantage shall provide written certification of destruction upon request.
ARTICLE VIII — PRIVILEGE REVIEW AND LOGGING
Section 8.1 — Privilege Review
Each Party shall conduct a thorough privilege review of its responsive Documents prior to production. The privilege review shall be performed by attorneys qualified to assess claims of attorney-client privilege, work product protection, and any other applicable privilege or immunity from disclosure under New York law. Documents determined to be privileged or protected shall be withheld from production and logged in accordance with Section 8.2 or Section 8.3 of this Protocol, as applicable.
The Parties acknowledge that the obligation to conduct a privilege review does not require perfection, and that the inadvertent production of privileged Documents is addressed by the Clawback procedures set forth in Article IX of this Protocol.
Section 8.2 — Privilege Log Requirements
Each Party shall produce a Privilege Log identifying each Document withheld from production on the basis of attorney-client privilege, work product protection (ordinary or opinion), joint defense or common interest privilege, or any other applicable privilege or immunity from disclosure. The Privilege Log shall include the following fields for each entry:
(a) Log Entry Number: A unique sequential number assigned to each entry on the Privilege Log;
(b) Bates Begin (if assigned) or Document ID: The Bates number or unique document identifier assigned to the withheld Document;
(c) Date of Document: The date the Document was created, sent, or received, as applicable;
(d) Author(s): The name(s) and title(s) of the author(s) or sender(s) of the Document;
(e) Recipient(s): The name(s) and title(s) of the recipient(s), including CC and BCC recipients, of the Document;
(f) General Description: A general description of the Document and its subject matter, sufficient to permit the Receiving Party to assess the validity of the privilege claim, without revealing the substance of the privileged communication or the attorney's mental impressions, conclusions, or legal theories;
(g) Privilege(s) Asserted: The specific privilege(s) asserted as the basis for withholding the Document, using one or more of the following designations: attorney-client privilege; work product — ordinary; work product — opinion; joint defense / common interest privilege; or other (with specification);
(h) Custodian: The name of the Custodian from whom the Document was collected.
Privilege Logs shall be produced in both PDF format and Microsoft Excel format (.xlsx), to facilitate review and analysis by the Receiving Party.
Privilege Logs shall be served concurrently with the document production to which they relate, or within fourteen (14) days thereafter. The Parties acknowledge that the Privilege Log is a living document that will be supplemented as additional productions are made.
As of the date of this Stipulation, Defendant's initial Privilege Log encompasses approximately 214 documents, and Plaintiff's initial Privilege Log encompasses approximately 187 documents. These numbers reflect the currently identified privileged documents and are subject to supplementation as the Parties continue their review and production efforts.
Section 8.3 — Categorical Privilege Logging
For categories of Documents that are clearly and uniformly privileged, the Parties agree that categorical logging may be used in lieu of document-by-document logging, thereby reducing the burden and expense of privilege logging while ensuring adequate transparency. Categorical logging shall be limited to the following types of Documents:
(a) Communications between a Party and its outside litigation counsel (or in-house counsel acting in a legal capacity) regarding this action, including but not limited to case strategy discussions, litigation planning, and legal advice;
(b) Draft pleadings, motions, briefs, and other litigation papers prepared in connection with this action;
(c) Attorney mental impressions, legal research, case assessments, and internal memoranda prepared in anticipation of or in connection with this litigation; and
(d) Such other categories as the Parties may agree upon in writing.
Each categorical Privilege Log entry shall include the following information:
(i) A description of the category of Documents;
(ii) The Custodian(s) from whom the Documents were collected;
(iii) The approximate date range of the Documents within the category;
(iv) The approximate number of Documents within the category; and
(v) The privilege(s) asserted.
Categorical logging shall not be used for Documents that do not fit squarely within the categories described above or for Documents as to which the privilege claim is reasonably subject to dispute. If the Receiving Party challenges the use of categorical logging for a particular category of Documents, the Parties shall meet and confer to resolve the dispute, and if unable to agree, either Party may seek guidance from the Court.
ARTICLE IX — CLAWBACK PROCEDURES
Section 9.1 — Inadvertent Production
The Parties stipulate and agree that the production of any Document or ESI in this action shall not constitute a waiver of any applicable attorney-client privilege, work product protection, or other privilege or immunity from disclosure, regardless of the level of care exercised by the Producing Party in connection with its privilege review. This non-waiver provision applies to the inadvertent production of privileged or protected Documents, and shall be effective notwithstanding any argument that the Producing Party failed to take reasonable precautions to prevent the disclosure.
This provision is entered into pursuant to, and is intended to be enforceable as a court order under, the principles set forth in CPLR 3101(d)(2) and, to the extent applicable in state court proceedings by analogy, Federal Rule of Evidence 502(d). The Parties intend that this provision shall have the maximum protective effect available under applicable law, and that the entry of this Stipulation as a court order shall bind the Parties, their counsel, and any third parties who may obtain access to Documents produced in this action.
The protections of this Section 9.1 shall apply regardless of whether the inadvertent production results from human error, technology failure, or any other cause, and shall extend to all Documents produced in this action, whether produced by the Parties or by third parties subject to subpoena.
Section 9.2 — Clawback Notice
If a Producing Party discovers that it has inadvertently produced a privileged or work product-protected Document, it shall promptly notify the Receiving Party in writing. The written notification (the "Clawback Notice") shall:
(a) Identify the Document(s) to be clawed back by Bates number;
(b) State the basis for the privilege or protection asserted (e.g., attorney-client privilege, work product — ordinary, work product — opinion); and
(c) Provide a brief description of the Document sufficient to support the privilege claim, consistent with the requirements for Privilege Log entries set forth in Section 8.2 of this Protocol.
The Producing Party shall issue the Clawback Notice as promptly as practicable following its discovery of the inadvertent production. Unreasonable delay in issuing a Clawback Notice may be considered by the Court in evaluating the privilege claim, but shall not, standing alone, constitute a waiver of the privilege.
Section 9.3 — Receiving Party Obligations
Upon receipt of a Clawback Notice, the Receiving Party shall comply with the following obligations:
(a) Sequestration: Within five (5) business days of receipt of the Clawback Notice, the Receiving Party shall sequester all copies of the identified Document(s) in its possession, custody, or control, including any copies in the possession of the Receiving Party's experts, consultants, litigation support vendors, or other agents. Sequestration shall include removing the Document(s) from any active review workspace, marking the Document(s) as sequestered or restricted in the Review Platform, and ensuring that no further access to the Document(s) is permitted pending resolution of the privilege dispute.
(b) Non-Use: The Receiving Party shall not use, disclose, refer to, quote from, or rely upon the clawed-back Document(s) for any purpose in this action or any other proceeding, pending resolution of the privilege dispute.
(c) Return, Sequestration, or Destruction: At the Producing Party's election, the Receiving Party shall either (i) return all copies of the Document(s) to the Producing Party, (ii) continue to sequester the Document(s) pending resolution of any privilege dispute, or (iii) destroy all copies of the Document(s) and provide written certification of destruction.
(d) Third-Party Disclosure: If the Receiving Party has already disclosed the clawed-back Document(s) to any third party (including experts, consultants, or co-parties in related proceedings) prior to receipt of the Clawback Notice, the Receiving Party shall promptly notify the Producing Party of such disclosure, identify the third party to whom the Document(s) were disclosed, and take reasonable steps to retrieve or sequester all copies of the Document(s) in the possession of the third party.
Section 9.4 — Disputes Regarding Clawback
If the Receiving Party contests the privilege claim asserted in a Clawback Notice, the Parties shall meet and confer in good faith within ten (10) business days of the Receiving Party's notification of its challenge to the privilege claim, in an effort to resolve the dispute without court intervention.
If the dispute cannot be resolved through the meet-and-confer process, either Party may submit the disputed Document(s) to the Court for in camera review. The submission shall be made by letter motion in accordance with Article XI, Section 11.2 of this Protocol, accompanied by the disputed Document(s) in a sealed envelope for the Court's review. The Document(s) shall remain sequestered pending the Court's ruling on the privilege claim.
The burden of establishing the applicability of the claimed privilege shall remain at all times with the Producing Party asserting the privilege. The Producing Party must demonstrate that the Document satisfies all elements of the claimed privilege under applicable New York law.
ARTICLE X — THIRD-PARTY ESI
Section 10.1 — Third-Party Subpoenas
The Parties acknowledge that subpoenas have been or will be issued to third parties for the production of Documents and ESI relevant to this action. As of the date of this Stipulation, the Parties have identified the following categories of third-party subpoena recipients:
(a) Subcontractors of Meridian: Seven (7) subcontractors that performed work on the Project under subcontracts with Meridian, including but not limited to Crestline Underground Services Inc., Ironclad Directional Drilling LLC, Ridgepoint Cable Solutions LLC, and Dralvecen Utility Contractors Inc.;
(b) Municipal Permitting Authorities: Three (3) municipal and state permitting authorities in the seven-state Project footprint that issued or were involved in the issuance of permits, rights-of-way, or other governmental approvals for