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 Assigned Justice: Hon. Eleanor M. Ricci Part 49
DEFENDANT NORTHGATE FIBER AMERICAS INC.'S FIRST SET OF INTERROGATORIES TO PLAINTIFF MERIDIAN INFRASTRUCTURE PARTNERS LLC
CALDERWOOD & HARKNESS LLP 425 Park Avenue, 33rd Floor New York, New York 10022 Attorneys for Defendant Northgate Fiber Americas Inc. C&H Matter No. 1022-00005
Dated: October 8, 2024
PRELIMINARY STATEMENT
Defendant Northgate Fiber Americas Inc. ("NFA" or "Defendant"), by and through its attorneys, Calderwood & Harkness LLP, pursuant to Sections 3130 and 3131 of the New York Civil Practice Law and Rules ("CPLR"), hereby propounds this First Set of Interrogatories upon Plaintiff Meridian Infrastructure Partners LLC ("Meridian" or "Plaintiff").
These Interrogatories are to be answered separately and fully, in writing, under oath, within twenty (20) days of service hereof, in accordance with CPLR § 3133. Each answer shall restate the interrogatory to which it responds.
These Interrogatories are served in connection with Meridian's Verified Complaint filed on July 15, 2024 (the "Complaint"), which asserts claims against NFA for alleged wrongful termination of the Master Construction Agreement, recovery of allegedly unpaid invoices, release of retainage, and breach of the implied covenant of good faith and fair dealing, and in connection with NFA's Answer with Affirmative Defenses and Counterclaims filed on September 3, 2024 (the "Answer"). The information sought herein is directly relevant to the claims and defenses raised in the pleadings and is necessary for the fair and efficient resolution of this action.
DEFINITIONS
As used herein, the following terms shall have the meanings set forth below. These definitions are intended to supplement, and not to limit, the definitions and meanings ascribed to these terms by applicable law, including the CPLR.
1. "MCA" shall mean the Master Construction Agreement dated March 15, 2020, executed between Northgate Fiber Americas Inc. (as Owner) and Meridian Infrastructure Partners LLC (as Contractor), including all exhibits, appendices, schedules, amendments, addenda, modifications, and change orders thereto, whether written or oral.
2. "Project" shall mean the fiber-optic cable design, engineering, permitting, and construction program encompassing approximately 18,500 route miles across seven states — New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia — as described in the MCA and the exhibits and specifications incorporated therein.
3. "You," "Your," "Plaintiff," or "Meridian" shall mean Meridian Infrastructure Partners LLC, including its current and former officers, directors, members, managers, employees, agents, representatives, attorneys (except to the extent protected by privilege), subcontractors, and any other person acting or purporting to act on its behalf.
4. "Defendant," "NFA," or "Northgate" shall mean Northgate Fiber Americas Inc. and, where the context so requires, its parent company Northgate Telecommunications PLC, and their respective officers, directors, employees, agents, and representatives.
5. "Ridgepoint" shall mean Ridgepoint Capital Group LP, including its general partner, its managing partner Graham Latimer, and all of its officers, employees, agents, and representatives.
6. "Document(s)" shall have the meaning ascribed by CPLR § 3120 and shall be broadly construed to include all writings, recordings, electronically stored information ("ESI"), communications, correspondence, memoranda, notes, reports, presentations, spreadsheets, databases, photographs, drawings, maps, plans, specifications, and tangible things of any kind, regardless of form or format, including drafts and non-identical copies bearing annotations, markings, or modifications.
7. "Communication(s)" shall mean any oral, written, or electronic exchange of information between two or more persons, including but not limited to emails, letters, facsimiles, text messages, instant messages (including messages transmitted via platforms such as Meridian Solutions, Northgate Data Systems, or Meridian Services Inc.), voicemails, telephone conversations, memoranda, reports, presentations, meeting minutes, and any notes or records thereof.
8. "Person" shall mean any natural person, corporation, limited liability company, partnership, joint venture, association, trust, governmental entity, or any other legal or business entity.
9. "Identify" (with respect to a person) shall mean to state the person's full legal name, title or position, the name and address of the person's employer or business affiliation, telephone number, and a description of the person's relationship to the subject matter of the interrogatory.
10. "Identify" (with respect to a document) shall mean to state the document's title or heading (if any), date of creation, author(s), sender(s), recipient(s) (including persons copied), a brief description of its contents and subject matter, its format (e.g., paper, electronic, email), and its present custodian and location.
11. "Relate to" or "Relating to" shall mean concerning, referring to, reflecting, evidencing, describing, discussing, constituting, embodying, mentioning, connected with, or being in any way relevant to the subject matter referenced.
12. "Milestone(s)" shall mean the fourteen (14) defined milestones set forth in MCA Section 8.2 and MCA Exhibit B (Schedule of Milestones and Milestone Values), as may have been amended or modified by Change Order.
13. "NCR" or "Non-Conformance Report" shall mean any non-conformance report, notice of defect, punch-list item, or similar documentation of deficient or non-conforming work issued under MCA Section 12.4 or Northgate Technical Specification NS-FIBER-2020, or otherwise prepared or generated by any party during the course of the Project.
14. "Change Order" shall mean any written change order executed or proposed pursuant to MCA Section 16.1, including any constructive change order or field directive alleged to have had the effect of a Change Order.
15. "Cure Notice" shall mean Cure Notice No. 1 dated January 18, 2024, and/or Cure Notice No. 2 dated February 19, 2024, each issued by NFA to Meridian pursuant to MCA Section 14.1.
16. "Termination Notice" shall mean the Notice of Termination for Cause dated April 1, 2024, issued by NFA to Meridian pursuant to MCA Section 14.1.
17. "Corrective Action Plan" shall mean the corrective action plan submitted by Meridian to NFA on or about March 5, 2024, together with any supplements, addenda, or revisions thereto.
18. "Performance Bond" shall mean Performance Bond No. ISG-2020-NE-04417 issued by Ironclad Surety Group Inc. in the penal sum of One Hundred Twenty Million Dollars ($120,000,000), together with any riders or endorsements thereto.
19. "Phase 1" shall mean Milestones 1 through 4, encompassing the New York Metro and Northern New Jersey segments of the Project, comprising approximately 3,200 route miles, with a combined milestone value of approximately Two Hundred Eight Million Dollars ($208,000,000).
20. "Phase 2" shall mean Milestones 5 through 8, encompassing the Connecticut, Western Massachusetts, and Southern Pennsylvania segments of the Project, comprising approximately 5,600 route miles, with a combined milestone value of approximately Three Hundred Sixty-Three Million Dollars ($363,000,000).
21. "Phase 3" shall mean Milestones 9 through 14, encompassing the Maryland, Virginia, and Eastern Pennsylvania segments of the Project, comprising approximately 9,700 route miles, with a combined milestone value of approximately Six Hundred Twenty-Nine Million Dollars ($629,000,000).
INSTRUCTIONS
1. Each interrogatory shall be answered separately and fully in writing under oath, as required by CPLR § 3133. Each answer shall restate the text of the interrogatory immediately preceding the response.
2. If any interrogatory cannot be answered in full after exercising due diligence, Meridian shall answer to the fullest extent possible, specify the portion of the interrogatory that cannot be answered, and state in detail the reasons for the inability to answer more fully, including any efforts undertaken to obtain the information.
3. If any interrogatory is objected to in whole or in part, Meridian shall state the specific grounds for the objection with particularity, and shall nevertheless provide the answer to the extent not objected to. A general or boilerplate objection that does not specify the grounds with particularity shall be deemed insufficient.
4. If any information called for by these Interrogatories is claimed to be protected by any privilege (including but not limited to the attorney-client privilege, the work-product doctrine, or any joint defense or common interest privilege), Meridian shall identify the privilege asserted, the factual basis for the privilege claim, and the nature of the information withheld, in a manner consistent with the requirements of CPLR § 3122 and any applicable privilege log obligations, so that the validity of the claim may be assessed.
5. These Interrogatories are continuing in nature. Meridian is obligated to supplement, correct, or amend its responses as additional or corrective information becomes known, pursuant to CPLR § 3101(h) and the ongoing duty of disclosure.
6. Where an interrogatory requests identification of all facts, documents, and witnesses relating to a particular subject, the response should be as comprehensive as reasonably possible and should not be limited by way of example or illustration. The phrase "including but not limited to," as used herein, shall not be construed to limit the scope of the interrogatory to the specific examples enumerated.
7. Unless otherwise specified in a particular interrogatory, the time period covered by these Interrogatories extends from January 1, 2019 through the date of Meridian's response.
8. The use of the singular form of any word shall include the plural, and vice versa. The use of any gender shall include all genders. The connective "and" shall be construed as both conjunctive and disjunctive, as necessary to make the interrogatory inclusive rather than exclusive. The connective "or" shall be construed in the same manner.
INTERROGATORIES
INTERROGATORY NO. 1 — Factual Basis for Count I (Wrongful Termination)
State all facts upon which Meridian bases its claim in Count I of the Verified Complaint that NFA's termination of the MCA on April 1, 2024 was wrongful, including but not limited to:
(a) Each specific act or omission by NFA that Meridian contends constituted a breach of the MCA, described with sufficient particularity to identify the nature, scope, and circumstances of the alleged act or omission;
(b) The specific provision or provisions of the MCA (by section and subsection number) that Meridian contends NFA violated by each such act or omission;
(c) The date or dates of each such alleged act or omission;
(d) The identity of each person with knowledge of the facts supporting Meridian's claim that the termination was wrongful, including but not limited to NFA personnel, Meridian personnel, subcontractor personnel, and any other witnesses; and
(e) The identity of each document that supports, evidences, or relates to the facts described in response to subparts (a) through (d) above.
INTERROGATORY NO. 2 — Factual Basis for Count II (Unpaid Invoices)
For each of the unpaid invoices totaling Sixteen Million Five Hundred Thousand Dollars ($16,500,000) referenced in Count II of the Verified Complaint, provide the following information:
(a) Identify each invoice by invoice number, date of submission, dollar amount, and the specific work, deliverable, or service covered by the invoice;
(b) State the Phase, Milestone, and geographic region (by state and, where applicable, by municipality or county) to which each invoice relates;
(c) Identify the specific unit-rate or fixed-price line items from the MCA Schedule of Values (MCA Exhibit C) claimed in each invoice, including the quantity, unit price, and extended amount for each line item;
(d) State whether each invoice was submitted as a monthly progress payment application under MCA Section 18.1, and if so, the monthly billing period to which it corresponds;
(e) Identify each person who prepared, reviewed, approved, or submitted each invoice, including the person's name, title, and role in the invoicing process;
(f) State whether each invoice was accompanied by a certification from Meridian, as required by the MCA, attesting that the work reflected in the invoice was performed in conformance with MCA Section 12.4 and Northgate Technical Specification NS-FIBER-2020, and if so, identify the person who executed such certification; and
(g) Identify all documents supporting the amounts claimed in each invoice, including but not limited to daily logs, timesheets, material receipts, delivery tickets, photographs of completed work, OTDR test results, and any other records used to substantiate the invoiced amounts.
INTERROGATORY NO. 3 — Factual Basis for Count III (Retainage)
State all facts upon which Meridian bases its claim in Count III of the Verified Complaint that NFA wrongfully withholds retainage in the amount of Fifty-Six Million Nine Hundred Sixty-Six Thousand Six Hundred Sixty-Seven Dollars ($56,966,667), including but not limited to:
(a) The specific contractual provision or provisions (by section and subsection number) under which Meridian claims entitlement to release of retainage, including any provisions relating to conditions precedent for retainage release;
(b) Whether Meridian contends that it satisfied all conditions precedent for retainage release under the MCA, and if so, the specific facts establishing satisfaction of each such condition;
(c) The date on which Meridian first demanded release of retainage from NFA, the form of such demand (written or oral), and the identity of each person involved in making or receiving the demand;
(d) Whether Meridian acknowledges any outstanding defective work, unresolved Non-Conformance Reports, incomplete Milestones, or other unsatisfied conditions that would justify NFA's continued withholding of retainage, and if Meridian does not so acknowledge, the specific basis for its denial; and
(e) The identity of each person with knowledge of the facts supporting Meridian's retainage claim, and the identity of each document that supports, evidences, or relates to such facts.
INTERROGATORY NO. 4 — Factual Basis for Count IV (Breach of Implied Covenant — Consequential Damages)
State all facts upon which Meridian bases its claim in Count IV of the Verified Complaint for breach of the implied covenant of good faith and fair dealing, including but not limited to:
(a) Each specific act or omission by NFA that Meridian contends constituted a breach of the implied covenant of good faith and fair dealing, described with sufficient particularity to identify the nature, scope, and circumstances of each alleged act or omission;
(b) How Meridian contends that each such act or omission was distinct from or independent of the express contractual obligations set forth in the MCA, and how the implied covenant claim does not merely duplicate the breach of contract claim asserted in Count I;
(c) The factual basis for Meridian's allegation, as set forth in Paragraph 78 of the Verified Complaint, that NFA's termination of the MCA was "pretextual" and not based upon a genuine good-faith determination that Meridian was in material default;
(d) All facts supporting Meridian's contention, as set forth in Paragraphs 79 through 84 of the Verified Complaint, that NFA's true motivation for terminating the MCA was to bring fiber construction in-house through NFA's recently formed construction subsidiary, or alternatively, to re-procure construction services at lower cost due to allegedly favorable market shifts in construction pricing;
(e) A detailed description of the calculation methodology for the Thirty-Four Million One Hundred Thirty-Three Thousand Three Hundred Thirty-Three Dollars ($34,133,333) in consequential damages claimed in Count IV, including a breakdown of each component of the claimed consequential damages, specifically including alleged loss of bonding capacity and alleged reputational harm, with the dollar amount attributed to each component; and
(f) The identity of each person with knowledge of the facts supporting Meridian's implied covenant claim, and the identity of each document that supports, evidences, or relates to such facts.
INTERROGATORY NO. 5 — Damages Calculation (Count I — Wrongful Termination)
Describe in detail the methodology used to calculate the Ninety-Two Million Four Hundred Thousand Dollars ($92,400,000) in damages claimed under Count I of the Verified Complaint, including but not limited to:
(a) The basis for the Fifty Million Four Hundred Twenty-Four Thousand Dollars ($50,424,000) termination fee component of the damages claim, including a detailed description of the calculation of "remaining unperformed contract value" used therein and how MCA Section 14.3's formula of eight percent (8%) of the unperformed contract value was applied, specifying the total contract value, amounts paid, amounts completed, and amounts remaining;
(b) The basis for the Forty-One Million Nine Hundred Seventy-Six Thousand Dollars ($41,976,000) lost-profits component of the damages claim, including all assumptions regarding anticipated revenues, projected costs (direct and indirect), anticipated profit margins (both gross and net), the time period over which lost profits are projected, and the discount rate (if any) applied to reduce future lost profits to present value;
(c) The identity of each person who prepared, reviewed, or contributed to the damages calculation, including any in-house financial personnel, outside accountants, or damages experts;
(d) The identity of each document, financial model, projection, budget, bid estimate, cost report, schedule analysis, or other data relied upon in preparing the damages calculation; and
(e) Whether Meridian's damages model accounts for the liquidated damages assessed by NFA against Meridian totaling Forty-Nine Million Dollars ($49,000,000), and if so, a description of how the liquidated damages were treated in the calculation, including whether they were offset against the claimed damages, excluded, or otherwise addressed.
INTERROGATORY NO. 6 — Lost-Profits Methodology
Provide a detailed description of Meridian's lost-profits calculation for the unperformed portion of the MCA, specifically including the remaining work necessary to complete Milestone 8 and the entirety of Phase 3, comprising approximately Six Hundred Thirty Million Three Hundred Thousand Dollars ($630,300,000) in remaining contract value, including but not limited to:
(a) Meridian's projected profit margin on the unperformed work, specifying whether the projected margin is based on historical margins actually achieved on the MCA, bid-stage projections prepared at the time of contract execution, industry benchmarks, or some other methodology, and if based on multiple methodologies, the weight or priority given to each;
(b) The historical profit margins (both gross and net) that Meridian actually earned on Phase 1 and Phase 2 work under the MCA, stated separately for each Phase, and separately for each Milestone within each Phase to the extent available;
(c) Any adjustments made to the projected margin for risks of non-performance, potential cost overruns, schedule delays, labor escalation, material price fluctuation, subcontractor risk, or other contingencies that Meridian would have faced had the MCA continued through completion;
(d) Whether the lost-profits calculation incorporates, credits, or otherwise accounts for any mitigation of damages through substitute or replacement work obtained by Meridian since the date of termination, and if so, the nature, scope, and value of such substitute work, and if not, the basis for excluding mitigation from the calculation; and
(e) The identity of all experts, consultants, advisors, or other persons (internal or external) who contributed to, reviewed, or will provide testimony or opinions regarding the lost-profits analysis, including the name, firm, qualifications, and role of each such person.
INTERROGATORY NO. 7 — Mitigation of Damages
Describe all efforts Meridian has undertaken to mitigate its damages since the April 1, 2024 termination of the MCA, including but not limited to:
(a) The identity of each contract, project, engagement, bid, proposal, or business opportunity that Meridian has obtained, entered into, or pursued since April 1, 2024, whether or not ultimately awarded or executed;
(b) For each such contract, project, or engagement obtained, state the identity of the client or counterparty, the scope and nature of the work, the total contract value, the anticipated or actual profit margin, the start date, the expected completion date, and the current status;
(c) Meridian's total revenue earned from all sources from April 1, 2024 through the date of the response, broken down by project or client;
(d) The identity of crew members, equipment, and subcontractors previously assigned to the Northgate Project that have been redeployed to other work since termination, including the project or engagement to which each was redeployed and the date of redeployment; and
(e) The identity of all documents reflecting or relating to Meridian's mitigation efforts, including but not limited to proposals, bid submissions, award letters, contracts, correspondence with prospective clients, internal assessments of available work, and financial records.
INTERROGATORY NO. 8 — Loss of Bonding Capacity (Count IV Damages)
Provide the factual basis for Meridian's claim that it suffered a loss of bonding capacity as a component of the Thirty-Four Million One Hundred Thirty-Three Thousand Three Hundred Thirty-Three Dollars ($34,133,333) in consequential damages claimed in Count IV of the Verified Complaint, including but not limited to:
(a) Meridian's aggregate bonding capacity prior to the termination of the MCA (specifying the aggregate single-project limit and the aggregate program limit), its bonding capacity as of the date of termination, and its current bonding capacity as of the date of the response;
(b) The identity of each surety or surety company (other than Ironclad Surety Group Inc. with respect to Performance Bond No. ISG-2020-NE-04417) from which Meridian obtains or has obtained performance bonds or payment bonds, including the name, address, and Meridian's relationship with each such surety;
(c) The identity and content of any communications from sureties, bonding agents, or underwriters indicating a reduction, limitation, suspension, or cancellation of bonding capacity as a result of the termination of the MCA, including the date, author, recipient, and substance of each such communication;
(d) The identity of each specific project, bid opportunity, or engagement that Meridian was unable to pursue, bid on, or obtain as a direct result of the alleged reduction in bonding capacity, including the client, scope, estimated contract value, and date; and
(e) The methodology used to quantify the dollar amount of the alleged bonding-capacity losses, including all assumptions, data, and calculations underlying the quantification.
INTERROGATORY NO. 9 — Reputational Harm (Count IV Damages)
Provide the factual basis for Meridian's claim that it suffered reputational harm as a component of the consequential damages claimed in Count IV of the Verified Complaint, including but not limited to:
(a) Each specific instance of reputational harm that Meridian contends it has suffered as a result of NFA's termination of the MCA, described with sufficient particularity to identify the nature, scope, and circumstances of each alleged instance;
(b) The identity of each client, potential client, business partner, industry association, or other business relationship that was adversely affected by the alleged reputational harm, including the nature of the adverse effect and the date or time period in which it occurred;
(c) The methodology used to quantify the dollar amount of the alleged reputational harm, including all assumptions, data, models, and calculations underlying the quantification; and
(d) The identity of each person with knowledge of the facts supporting Meridian's reputational harm claim, and the identity of each document that supports, evidences, or relates to such facts.
INTERROGATORY NO. 10 — Alleged Owner-Caused Delays
Identify and describe each instance in which Meridian contends that NFA caused or contributed to delay in the Project, including but not limited to:
(a) A detailed description of the specific act or omission by NFA (or by any person acting on NFA's behalf) that allegedly caused or contributed to the delay;
(b) The date or dates of each such act or omission;
(c) The specific Milestone or Milestones and Phase or Phases affected by each alleged delay, including the geographic area or segment of the Project impacted;
(d) The number of calendar days of delay to the critical path that Meridian attributes to each such act or omission, and the methodology used to determine such number;
(e) The specific contractual provision or provisions of the MCA that Meridian contends NFA violated by each such act or omission;
(f) The identity of each person with knowledge of each alleged NFA-caused delay, and the identity of each document that supports, evidences, or relates to each such delay, including but not limited to schedule analyses, time-impact analyses, daily logs, correspondence, and meeting minutes.
INTERROGATORY NO. 11 — Alleged Scope Changes (Constructive Change Orders)
For each of the fourteen (14) alleged Owner-directed scope changes that Meridian contends were not formalized as Change Orders under MCA Section 16.1, provide the following information:
(a) A detailed description of the nature and scope of each alleged change, including the specific work, design modification, route alteration, specification change, or other modification that was allegedly directed or required by NFA;
(b) The date on which each alleged change was first directed, communicated, or implemented by NFA, and the form of such direction or communication (e.g., written field directive, email, verbal instruction at a progress meeting);
(c) The identity of the NFA representative who allegedly directed, authorized, or communicated each change, including the person's name, title, and role on the Project;
(d) The additional cost that Meridian attributes to each alleged change (in dollars), and the additional schedule impact (in calendar days of delay to the critical path), with supporting calculations or estimates;
(e) Whether Meridian submitted a written Change Order request for each alleged change pursuant to the procedures set forth in MCA Section 16.1, including the required notice within the time period specified therein, and if no written Change Order request was submitted, a detailed explanation of the reasons why;
(f) The identity of all documents supporting each alleged scope change, including but not limited to emails, meeting minutes, field directives, RFIs (requests for information), design revision notices, marked-up drawings, photographs, and any other contemporaneous records; and
(g) The identity of all persons with knowledge of each alleged scope change, including Meridian personnel, NFA personnel, subcontractor personnel, design consultants, and any other witnesses.
INTERROGATORY NO. 12 — Permitting Responsibilities
State all facts supporting Meridian's contention that NFA was responsible for obtaining municipal permits under MCA Section 5.3, including but not limited to:
(a) The specific permits, authorizations, licenses, or approvals that Meridian contends were NFA's responsibility to obtain, identified by permit type and description;
(b) The municipality, county, or other governmental authority issuing or responsible for each such permit;
(c) The specific language of MCA Section 5.3 (quoted verbatim) upon which Meridian relies in support of its contention that NFA bore the permitting obligation, and Meridian's interpretation of such language;
(d) Each instance in which NFA allegedly failed to timely obtain a required permit, including the date by which the permit was needed, the date (if any) on which it was ultimately obtained, and the impact of each delay on the Project schedule;
(e) The number of calendar days of delay attributable to each alleged permitting failure, with supporting schedule analysis or other documentation;
(f) Whether Meridian itself applied for or obtained any municipal permits during the course of the Project, and if so, the identity of each such permit (by type, municipality, and date), and the circumstances under which Meridian undertook such permitting work, including whether it did so voluntarily, at NFA's direction, or under protest; and
(g) The identity of each person with knowledge of the facts relating to permitting responsibilities, and the identity of each document supporting Meridian's position on this issue.
INTERROGATORY NO. 13 — Force Majeure Defense
Describe each event that Meridian contends constitutes force majeure excusing or justifying any failure or delay in its performance under the MCA, including but not limited to:
(a) The specific force majeure clause in the MCA (by section number and quoted text) upon which Meridian relies;
(b) Each specific force majeure event that Meridian contends excused or justified its performance, described with particularity, including but not limited to claimed COVID-19 aftereffects on labor supply, supply chain disruptions affecting fiber-optic cable and related materials, and any other events Meridian intends to invoke;
(c) The date or dates on which each claimed force majeure event commenced and the date or dates on which each event ended, or an indication that the event is ongoing as of the date of the response;
(d) The specific Milestone or Milestones, Phase or Phases, and geographic area or areas of the Project affected by each claimed force majeure event;
(e) The number of calendar days of delay that Meridian attributes to each claimed force majeure event, and the methodology used to determine such number;
(f) Whether Meridian provided written notice of each claimed force majeure event to NFA as required by the applicable notice provision of the MCA, and if so, the identity of each such notice (by date, author, recipient, and content), and if no written notice was provided, a detailed explanation of the reasons why;
(g) A detailed description of the steps Meridian took to mitigate the effects of each claimed force majeure event, including but not limited to sourcing alternative labor, procuring substitute materials, adjusting schedules, and re-sequencing work; and
(h) The identity of each person with knowledge of the facts relating to each claimed force majeure event, and the identity of each document that supports, evidences, or relates to such claims.
INTERROGATORY NO. 14 — Cure Notice Responses
Describe in detail the actions Meridian took in response to Cure Notice No. 1 (dated January 18, 2024) and Cure Notice No. 2 (dated February 19, 2024), including but not limited to:
(a) Each corrective action that Meridian implemented or attempted to implement within the thirty (30) day cure period following receipt of Cure Notice No. 1, and separately, each corrective action implemented or attempted following receipt of Cure Notice No. 2, including the date on which each action was commenced and the date on which it was completed (or the reason it was not completed);
(b) The specific additional crews, equipment, materials, or other resources that Meridian mobilized or attempted to mobilize in response to each Cure Notice, including the number of additional crews, their composition, the geographic area to which they were deployed, the date of mobilization, and the source from which they were obtained;
(c) Whether Meridian contends that it achieved cure, or could have achieved cure, of the alleged defaults identified in the Cure Notices prior to the April 1, 2024 Termination Notice, and if so, the specific factual basis for such contention, including the status of cure efforts as of March 31, 2024;
(d) The factual basis for any contention that the cure period afforded by either Cure Notice was insufficient, that the Cure Notices were procedurally defective, or that the Cure Notices failed to identify the alleged defaults with adequate specificity, as required by MCA Section 14.1; and
(e) The identity of each person with knowledge of Meridian's cure efforts, and the identity of each document relating to or reflecting such efforts, including but not limited to internal correspondence, mobilization plans, resource allocation schedules, progress reports, and communications with NFA.
INTERROGATORY NO. 15 — Corrective Action Plan
Describe the Corrective Action Plan submitted by Meridian on or about March 5, 2024, including but not limited to:
(a) The specific measures proposed by Meridian to accelerate the Project schedule, including any proposed re-sequencing of work, acceleration of specific Milestones, or changes to the critical path;
(b) The number and identity of additional crews that Meridian proposed to mobilize under the Corrective Action Plan, including the composition of each crew, the geographic area of deployment, and the proposed date of mobilization;
(c) The basis for the proposed nine (9) month extension to the contract duration, including a detailed explanation of the schedule analysis or time-impact analysis supporting the extension request;
(d) The basis for the Eighty-Seven Million Dollar ($87,000,000) request for additional compensation included in the Corrective Action Plan, broken down by category, including but not limited to delay damages, scope change costs, material escalation, labor escalation, extended general conditions, and any other categories;
(e) Whether the Corrective Action Plan specifically addressed each of the forty-three (43) critical Non-Conformance Reports identified in Cure Notice No. 1, and if so, the specific corrective measures proposed for each NCR, including proposed schedules for remediation; and
(f) The identity of each person who prepared, reviewed, approved, or contributed to the Corrective Action Plan, including any outside consultants, scheduling experts, or cost estimators engaged by Meridian.
INTERROGATORY NO. 16 — Non-Conformance Reports
For each of the two hundred eighty-seven (287) Non-Conformance Reports issued during the course of the Project, including the forty-three (43) classified as "critical" and the two hundred forty-four (244) classified as "non-critical," provide the following information:
(a) State whether Meridian disputes the issuance, classification (critical vs. non-critical), or substantive findings of each NCR, and if so, identify each disputed NCR by number, date, and classification, and state the specific basis for Meridian's dispute;
(b) For each disputed NCR, describe in detail what Meridian contends was the actual condition of the work at the time of inspection, including any test results, photographs, or other evidence supporting Meridian's position;
(c) Describe all corrective or remedial actions that Meridian undertook in response to each NCR, including the nature of the corrective work, the date commenced, the date completed, and whether the corrective work was inspected and accepted by NFA;
(d) State whether Meridian contends that any of the NCRs were the result of NFA's design specifications, engineering directives, changed conditions, or other causes attributable to NFA rather than to Meridian's workmanship, materials, or methods, and if so, identify each such NCR and the specific basis for attributing the non-conformance to NFA; and
(e) The identity of each person with knowledge of Meridian's position on each disputed NCR, and the identity of each document supporting Meridian's position, including but not limited to inspection reports, test data, photographs, daily logs, and correspondence.
INTERROGATORY NO. 17 — Quality Standards Compliance
Describe all quality assurance ("QA") and quality control ("QC") procedures that Meridian employed on the Project to ensure compliance with MCA Section 12.4, Northgate Technical Specification NS-FIBER-2020, ANSI/TIA-568 standards, and BICSI guidelines, including but not limited to:
(a) The identity and qualifications of Meridian's quality control personnel assigned to the Project, including their names, titles, certifications, relevant experience, and the dates during which they served on the Project;
(b) The frequency and scope of Meridian's internal quality inspections, including the types of inspections performed (e.g., visual inspection, OTDR testing, cable pull tension monitoring, splice loss testing), the intervals at which inspections were conducted, and the criteria applied;
(c) Any third-party quality audits, inspections, or testing programs conducted during the Project, including the identity of the third-party firm, the dates and scope of each audit or inspection, and the findings or results;
(d) Any instances in which Meridian's internal QA/QC processes identified defects, non-conformances, or deficiencies prior to NFA's issuance of NCRs, including a description of each such instance and the corrective action taken; and
(e) The identity of all quality control reports, inspection records, testing records, calibration records, and other QA/QC documentation generated by Meridian during the course of the Project, including their custodian and current location.
INTERROGATORY NO. 18 — Pretext Theory
State all facts supporting Meridian's contention, as alleged in the Verified Complaint and as set forth in Meridian's April 8, 2024 response to the Termination Notice, that NFA's termination of the MCA for cause was "pretextual" and did not reflect a genuine, good-faith determination that Meridian was in material default, including but not limited to:
(a) Each specific fact indicating that NFA's true motivation for terminating the MCA was to bring fiber construction in-house through a newly formed or existing NFA construction subsidiary, including the identity of the subsidiary, the date of its formation, its capabilities, and any internal NFA discussions or decisions regarding insourcing;
(b) Each specific fact indicating that NFA's true motivation was to re-procure construction services at lower cost from a third-party contractor due to allegedly favorable market shifts in construction pricing that occurred during the term of the MCA;
(c) The identity and content of any communications by or among NFA personnel, NFA's parent company Northgate Telecommunications PLC, NFA's board of directors, or any other persons reflecting, discussing, or evidencing such motivations, including but not limited to board minutes, management presentations, strategic plans, internal memoranda, and emails;
(d) The identity of each person with knowledge of NFA's alleged true motivations for terminating the MCA, including the factual basis for each such person's knowledge; and
(e) The identity of each document that supports, evidences, or relates to the pretext theory, including the custodian and location of each such document.
INTERROGATORY NO. 19 — Ridgepoint Capital Group Involvement
Describe the role of Ridgepoint Capital Group LP in connection with the Project and this litigation, including but not limited to:
(a) The nature and extent of Ridgepoint's involvement in management decisions relating to the Project, including but not limited to decisions regarding Project staffing, resource allocation, scheduling, quality control, and responses to NFA's Cure Notices and Termination Notice;
(b) Whether Ridgepoint approved, directed, influenced, or had any role in the preparation of Meridian's Corrective Action Plan or in Meridian's responses to NFA's Cure Notices, and if so, a detailed description of Ridgepoint's involvement;
(c) The amount of litigation funding that Ridgepoint has provided, committed to provide, or agreed to provide for the prosecution of this action, including the form of such funding (e.g., equity contribution, loan, fee arrangement);
(d) Whether Meridian and Ridgepoint (or any of their respective counsel) have entered into a joint defense agreement, common interest agreement, or any other arrangement for the sharing of information or coordination of legal strategy in connection with this action, and if so, identify the agreement by date, parties, and general scope;
(e) Whether Ridgepoint has any approval, consent, or veto rights over the settlement, resolution, or disposition of Meridian's claims or any counterclaims in this action, and if so, describe the nature and scope of such rights; and
(f) The identity of each person at Ridgepoint with whom Meridian or its counsel communicated regarding the Project or this litigation, including the person's name, title, and the subject matter and dates of such communications.
INTERROGATORY NO. 20 — Financial Condition and Backlog
State the following regarding Meridian's financial condition:
(a) Meridian's total revenue, net income (or net loss), and EBITDA (earnings before interest, taxes, depreciation, and amortization) for each of fiscal years 2021, 2022, 2023, and 2024 (year to date through the date of the response);
(b) Meridian's total project backlog (measured as the aggregate dollar value of contracted but unperformed work) as of April 1, 2024 (the termination date), inclusive of the Northgate contract, with a breakdown of the backlog by project;
(c) Meridian's total project backlog as of the date of the response, stated as the aggregate dollar value of contracted but unperformed work, with a breakdown of the backlog by project;
(d) The amount outstanding under Meridian's One Hundred Fifty Million Dollar ($150,000,000) revolving credit facility with Dralvecen Commercial Finance LLC as of the termination date (April 1, 2024) and as of the date of the response, including the applicable interest rate and maturity date;
(e) Whether Dralvecen Commercial Finance LLC has asserted any default, event of default, acceleration right, or lien interest in connection with or as a result of the termination of the MCA, and if so, a detailed description of the nature, date, and current status of any such assertion, including any correspondence or notices exchanged; and
(f) The identity of all financial statements (audited and unaudited), tax returns, bank statements, and other financial records that support or relate to the information requested in subparts (a) through (e) above.