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
DEFENDANT NORTHGATE FIBER AMERICAS INC.'S RESPONSES AND OBJECTIONS TO PLAINTIFF'S FIRST SET OF DOCUMENT REQUESTS (Request Nos. 1 Through 62)
Date Served: October 22, 2024
I. PRELIMINARY STATEMENT
Defendant Northgate Fiber Americas Inc. ("NFA" or "Defendant"), by and through its attorneys, Calderwood & Harkness LLP, 425 Park Avenue, 33rd Floor, New York, New York 10022, hereby responds and objects to Plaintiff Meridian Infrastructure Partners LLC's ("Meridian" or "Plaintiff") First Set of Document Requests (Request Nos. 1 through 62), which were served on or about October 8, 2024, pursuant to CPLR 3120.
These responses and objections are made without waiver of any objections, privileges, rights, or defenses, whether or not expressly stated herein, and without waiver of any objection as to the competency, relevance, materiality, or admissibility of any document or information produced or identified in connection herewith in any proceeding, including trial. By responding to any particular request, Defendant does not concede the relevance or materiality of any subject matter addressed in such request, nor does Defendant concede that any responsive document, if produced, constitutes evidence of any fact relevant to any claim or defense in this action.
Defendant's investigation and document review are ongoing. To date, approximately 1.4 million documents, totaling approximately 3.2 terabytes of electronically stored information ("ESI"), have been collected from ten (10) custodians and are in the process of review and production. Given the volume and complexity of the document universe, Defendant reserves the right to supplement, amend, or correct these responses as additional information and documents are identified during the continuing review process.
These responses are made subject to and without waiver of all objections, including but not limited to objections based on the attorney-client privilege, the work product doctrine (including opinion and fact work product), the joint defense and common interest privilege, and any other applicable privilege, immunity, or protection from disclosure recognized under the laws of the State of New York or any other applicable jurisdiction.
Productions of responsive, non-privileged documents are being made, and will continue to be made, through the parties' agreed-upon e-discovery vendor, Vantage Litigation Support LLC, located at 300 Vesey Street, Suite 600, New York, New York 10282, in accordance with the Stipulated E-discovery Protocol and ESI Agreement filed with the Court on October 1, 2024 (the "ESI Protocol"). Documents are being produced in the manner and format specified in the ESI Protocol, including production of ESI in near-native format with extracted metadata, load files, and Bates numbering bearing the prefix "NFA-."
Unless otherwise specified, references herein to the "MCA" shall refer to the Master Construction Agreement dated March 15, 2020, between NFA (as "Owner") and Meridian (as "Contractor"), together with all exhibits, schedules, and appendices thereto.
II. GENERAL OBJECTIONS
Defendant asserts the following General Objections, each of which is incorporated by reference into every specific response set forth below as though fully stated therein. The assertion of any specific objection to a particular request does not waive any General Objection, nor does any failure to assert a specific objection waive any objection, privilege, or right that Defendant may have.
General Objection No. 1 — Scope and Proportionality. Defendant objects to each and every request to the extent it is overbroad, unduly burdensome, not proportional to the needs of this case, or seeks information or documents that are not relevant to any claim or defense asserted in this action, in accordance with CPLR 3101(a) and the Uniform Rules for the Commercial Division, 22 NYCRR § 202.70, Rule 11-b. Defendant further objects to the extent any request imposes upon Defendant a burden or expense that is disproportionate to the likely benefit of the discovery sought, considering the needs of the case, the amount in controversy, the parties' relative access to the relevant information, and the importance of the issues at stake.
General Objection No. 2 — Privilege and Work Product. Defendant objects to each and every request to the extent it calls for the production of documents or communications protected from disclosure by the attorney-client privilege, the work product doctrine (as codified in CPLR 3101(c) and (d)), the joint defense or common interest privilege, or any other applicable privilege, immunity, or protection from disclosure recognized under the laws of the State of New York or any other applicable jurisdiction. A privilege log identifying documents withheld on privilege grounds will be served, and is being served concurrently herewith, as required by CPLR 3122 and the applicable rules of the Commercial Division. Defendant notes that, as of the date of these responses, it has identified two hundred fourteen (214) documents that are being withheld in whole or in part on the basis of the attorney-client privilege and/or the work product doctrine, and those documents are detailed on the privilege log served concurrently with these responses. Defendant reserves the right to supplement the privilege log as additional privileged documents are identified during continuing review.
General Objection No. 3 — Confidential and Proprietary Information. Defendant objects to each and every request to the extent it seeks confidential, proprietary, commercially sensitive, or competitively harmful business information. Any production of such documents will be made subject to, and in accordance with, the Stipulation and Proposed Order Regarding Confidentiality of discovery Materials entered by the Court on October 1, 2024 (the "Confidentiality Stipulation" or "Protective Order"), and Defendant reserves the right to designate documents as "Confidential" or "Highly Confidential — Attorneys' Eyes Only" in accordance with that Stipulation.
General Objection No. 4 — Documents in Plaintiff's Possession. Defendant objects to each and every request to the extent it seeks documents or information that is equally available to Plaintiff or that is already in Plaintiff's possession, custody, or control. To the extent Plaintiff was a party to the MCA and the transactions at issue in this litigation, Plaintiff has access to its own files, records, and correspondence, and Defendant should not be required to bear the burden of duplicating Plaintiff's own document collections.
General Objection No. 5 — Third-Party Documents. Defendant objects to each and every request to the extent it seeks documents that are not within Defendant's possession, custody, or control, as Defendant cannot produce documents it does not possess, maintain, or have the legal right to obtain.
General Objection No. 6 — Temporal Scope. To the extent any request is not limited to a reasonable time period, or purports to extend without temporal limitation, Defendant will construe such request as limited to the period from January 1, 2019 (i.e., the pre-MCA negotiation period) through the date of Defendant's termination of the MCA, April 1, 2024, unless the request on its face reasonably extends beyond that period. Examples of requests that may reasonably extend beyond April 1, 2024, include requests relating to the Crestline Construction Group Inc. replacement contract, post-termination correspondence, insurance coverage matters, and litigation-related matters. Defendant reserves the right to object to any specific temporal scope that is unreasonable or disproportionate.
General Objection No. 7 — "All" and "Each" Constructions. Defendant objects to each and every request that uses the terms "all," "each," "every," "any and all," or similar language to the extent such language renders the request overbroad, unduly burdensome, or disproportionate to the needs of the case. While Defendant will make reasonable, good-faith efforts to produce responsive, non-privileged documents, Defendant does not represent that every conceivably responsive document in its custody will be located and produced, nor does Defendant concede that such an undertaking would be proportional to the needs of this case.
General Objection No. 8 — Continuing Obligation. Defendant acknowledges its continuing obligation to supplement these responses as provided by CPLR 3101(h) and the applicable rules of the Commercial Division, and Defendant will comply with such obligation on a reasonable and timely basis.
General Objection No. 9 — Reservation of Rights. These General Objections are incorporated by reference into each specific response set forth in Section IV below. The assertion of specific objections to individual requests does not constitute a waiver of any General Objection, nor does it waive any other objection, privilege, or right that Defendant may have, whether or not expressly stated. Defendant reserves the right to assert additional objections as warranted.
III. DEFINITIONS AND INSTRUCTIONS
Defendant adopts, for the purposes of these responses, the definitions set forth in Plaintiff's First Set of Document Requests, except as specifically noted or objected to below.
Defendant notes and acknowledges the following defined terms as used in Plaintiff's Requests and in these responses:
• "Document" shall have the meaning set forth in Plaintiff's Requests, which Defendant understands to encompass all forms of recorded information, including ESI, as described in CPLR 3120(1)(i).
• "Communication" shall have the meaning set forth in Plaintiff's Requests, which Defendant understands to encompass every manner of transferring or exchanging information, including oral, written, and electronic communications.
• "Relate to," "Relating to," and "Concerning" shall have the meaning set forth in Plaintiff's Requests, which Defendant interprets to mean referring to, describing, evidencing, constituting, reflecting, mentioning, pertaining to, bearing upon, or having any connection with the subject matter identified.
• "You," "Your," and "Defendant" shall be interpreted to refer to Northgate Fiber Americas Inc., a Delaware corporation (Delaware File No. 7182934; EIN 84-3291057), with its principal office at 600 Lexington Avenue, 28th Floor, New York, New York 10022, and, where context requires and where documents are within Defendant's possession, custody, or control, its parent entity, Northgate Telecommunications PLC (Co. No. 08234517, registered in England and Wales, listed on the London Stock Exchange under the ticker symbol "NTP" and on the Nasdaq as an American Depositary Receipt under the symbol "NTPLF"), with its registered office at 14 Cavendish Square, London W1G 0BX, United Kingdom.
• "Meridian" shall be interpreted to refer to Meridian Infrastructure Partners LLC, a New York limited liability company, the Plaintiff in this action.
Defendant further notes the following regarding the scope and sources of its document collection:
Documents have been collected from the following ten (10) custodians, each of whom possesses documents relevant to the fiber build-out program and the matters at issue in this action:
1. Renata Voss — Vice President, US Network Infrastructure, NFA
2. Sean Calloway — Director, Construction Management, NFA
3. Helena Bright — Chief Financial Officer, Northgate Telecommunications PLC
4. Dominic Hale — General Counsel, Northgate Telecommunications PLC
5. Martin Griggs — Senior Project Manager, NFA
6. Priscilla Okonkwo — Director, Procurement and Contracts, NFA
7. Derek Blanchard — Vice President, Engineering, NFA
8. Yolanda Chu — Manager, Quality Assurance, NFA
9. Anton Ramirez — Director, Finance and Accounting, NFA
10. Claire Whitmore — Executive Assistant to the CEO, Northgate Telecommunications PLC
Defendant has collected documents from these custodians' email accounts, personal and shared network drives, local hard drives, and relevant enterprise systems, including project management databases and financial reporting platforms, in accordance with the ESI Protocol.
IV. SPECIFIC RESPONSES AND OBJECTIONS TO DOCUMENT REQUESTS NOS. 1–62
The following are Defendant's specific responses and objections to each of Plaintiff's Document Request Nos. 1 through 62. Each response incorporates by reference all General Objections set forth in Section II above, whether or not specifically restated.
A. Requests Relating to the Master Construction Agreement (Nos. 1–5)
Request No. 1
Request: All documents constituting, relating to, or reflecting the negotiation, drafting, and execution of the Master Construction Agreement dated March 15, 2020, between NFA and Meridian, including all drafts, redlines, term sheets, and side letters.
Response: Defendant incorporates by reference its General Objections. Defendant specifically objects to this request to the extent it seeks documents or communications protected by the attorney-client privilege relating to legal advice provided to NFA or Northgate Telecommunications PLC regarding the negotiation of the MCA, including communications with in-house counsel Dominic Hale and outside counsel regarding contractual terms, risk allocation, and the structuring of the MCA. Such privileged documents are identified on the privilege log served concurrently herewith.
Subject to and without waiving the foregoing objections, Defendant will produce responsive, non-privileged documents. Defendant notes that the MCA was executed on March 15, 2020, with Northgate Fiber Americas Inc. as "Owner" and Meridian Infrastructure Partners LLC as "Contractor." The MCA covers a fiber-optic construction program spanning approximately 18,500 route miles across a seven-state footprint encompassing New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia. The total contract price under the MCA was $1.2 billion, structured as $780 million in fixed-price milestone payments (representing approximately 65% of the contract price) and $420 million in unit-rate pricing (representing approximately 35% of the contract price). Production will include the fully executed MCA, all Exhibits (including Exhibit A — Scope of Work; Exhibit B — Milestone Values and Schedule; Exhibit C — Unit-Rate Schedule; Exhibit D — General Conditions; and Exhibit E — Technical Specifications), and non-privileged negotiation documents, including term sheets, draft redlines, and side letters, to the extent such documents are in Defendant's possession, custody, or control and are not protected by privilege.
Request No. 2
Request: All documents constituting or relating to any amendments, modifications, supplements, or Change Orders to the MCA.
Response: Defendant incorporates by reference its General Objections. Subject to those objections, Defendant will produce responsive documents. Defendant notes that Change Orders under the MCA were governed by MCA § 16.1, which expressly required that all Change Orders be in writing and executed by both parties (Owner and Contractor) in order to be effective. It is Defendant's position, as set forth in its Answer and Counterclaims, that no Change Orders were properly executed by both parties during the term of the MCA. Defendant denies Meridian's allegation, contained in its Complaint and its February 2, 2024 correspondence, that fourteen (14) items constitute "Owner-directed scope changes" warranting additional compensation or schedule relief. Defendant will produce all documents in its possession relating to proposed, requested, or alleged Change Orders, together with any documents reflecting the parties' communications regarding such matters, subject to privilege.
Request No. 3
Request: All documents relating to NFA's Technical Specification NS-FIBER-2020, including any revisions, interpretations, or clarifications issued during the term of the MCA.
Response: No objection. Defendant will produce responsive documents, including Technical Specification NS-FIBER-2020 as incorporated into MCA Exhibit E, together with any revisions, interpretive guidance, clarifications, request-for-information responses, and field directives relating thereto that are in Defendant's possession, custody, or control.
Request No. 4
Request: All documents relating to the Notice to Proceed issued on or about April 1, 2020.
Response: No objection. Defendant will produce responsive documents, including the Notice to Proceed issued to Meridian on or about April 1, 2020, which established the contract commencement date and triggered the milestone schedule set forth in MCA Exhibit B.
Request No. 5
Request: All documents constituting or relating to MCA Exhibit B, including milestone allocations, route-mile calculations, and pricing schedules.
Response: No objection. Defendant will produce responsive documents, including the executed version of MCA Exhibit B, which sets forth the fourteen (14) defined milestones and associated milestone values. As set forth in Exhibit B, the milestone allocations are structured across three phases: Phase 1 (New York Metro and Northern New Jersey, Milestones 1 through 4, aggregate milestone value of $208 million); Phase 2 (Connecticut, Western Massachusetts, and Southern Pennsylvania, Milestones 5 through 8, aggregate milestone value of $363 million); and Phase 3 (Maryland, Virginia, and Eastern Pennsylvania, Milestones 9 through 14, aggregate milestone value of $629 million). Defendant will also produce route-mile calculations and pricing schedules to the extent they are part of or relate to Exhibit B.
B. Requests Relating to Project Performance, Milestones, and Delays (Nos. 6–15)
Request No. 6
Request: All documents relating to the schedule, progress, or status of the fiber build-out program, including but not limited to project schedules, Gantt charts, CPM analyses, progress reports, and status meeting minutes, for Phase 1 (New York Metro & Northern New Jersey, Milestones 1–4).
Response: Defendant incorporates by reference its General Objections, including specifically its objection regarding overbreadth. To the extent this request is construed to encompass every internal communication or informal notation regarding Phase 1 progress, it is overbroad and unduly burdensome. Subject to and without waiving the foregoing objections, Defendant will produce responsive documents reflecting the schedule, progress, and status of the Phase 1 work, including formal project schedules, Gantt charts, critical path method analyses, monthly progress reports, and status meeting minutes in Defendant's possession, custody, or control. Defendant notes that Phase 1 encompassed approximately 3,200 route miles with an aggregate milestone value of $208 million. Defendant further notes that Milestone 3 was completed forty-seven (47) days late, with an actual completion date of October 14, 2021, as compared to the contractual target date of August 28, 2021.
Request No. 7
Request: All documents relating to the schedule, progress, or status of the fiber build-out program, including but not limited to project schedules, Gantt charts, CPM analyses, progress reports, and status meeting minutes, for Phase 2 (Connecticut, Western Massachusetts, Southern Pennsylvania, Milestones 5–8).
Response: Defendant incorporates by reference its General Objections. Subject to those objections, Defendant will produce responsive documents relating to the schedule, progress, and status of the Phase 2 work. Phase 2 encompassed approximately 5,600 route miles with an aggregate milestone value of $363 million. Defendant notes that Meridian experienced delays across all four Phase 2 milestones, as follows: Milestone 5 was completed twenty-two (22) days late; Milestone 6 was completed sixty-eight (68) days late; Milestone 7 was completed ninety-one (91) days late; and Milestone 8 was never completed prior to the termination of the MCA on April 1, 2024, with one hundred thirty-four (134) days of schedule delay accrued as of the termination date. These delays form part of the basis for Defendant's counterclaim for liquidated damages (Counterclaim I).
Request No. 8
Request: All documents relating to the schedule, progress, or status of the fiber build-out program, including but not limited to project schedules, Gantt charts, CPM analyses, progress reports, and status meeting minutes, for Phase 3 (Maryland, Virginia, Eastern Pennsylvania, Milestones 9–14).
Response: Defendant incorporates by reference its General Objections. Subject to those objections, Defendant will produce responsive documents relating to the schedule, progress, and status of the Phase 3 work. Phase 3 encompassed approximately 9,700 route miles with an aggregate milestone value of $629 million. Defendant notes that as of the date of termination on April 1, 2024, only approximately 340 of the planned 9,700 route miles (approximately 3.5%) had been constructed, reflecting a fundamental failure by Meridian to mobilize adequately for the Phase 3 work. The extreme deficiency in Phase 3 progress was among the grounds cited in NFA's Cure Notices and Notice of Termination for Cause.
Request No. 9
Request: All documents relating to any delays, schedule slippages, or failures to meet milestone completion dates under the MCA, including analyses of the causes of such delays.
Response: Defendant incorporates by reference its General Objections. Defendant specifically objects to this request to the extent it encompasses privileged delay analyses prepared by or at the direction of counsel in anticipation of litigation, including analyses prepared by, in consultation with, or at the request of Defendant's retained delay analysis expert, Dr. Elinor Chazen of Lakeview Consulting Group LLC, who was retained by counsel on or about October 15, 2024 to provide expert analysis regarding schedule delays and their causes. Such materials constitute attorney work product and are protected from disclosure under CPLR 3101(d). Subject to and without waiving the foregoing objections, Defendant will produce responsive, non-privileged documents reflecting delays, schedule slippages, and failures to meet milestone completion dates, including contemporaneous project records, schedule updates, delay notices, and correspondence.
Request No. 10
Request: All documents relating to Meridian's workforce, crew deployment, staffing levels, and labor resources on the fiber build-out program.
Response: Defendant incorporates by reference its General Objections. Defendant specifically objects to this request to the extent it seeks documents that are not in Defendant's possession, custody, or control, as Meridian's internal workforce records, employment records, and crew deployment schedules are within Meridian's own possession. Subject to and without waiving the foregoing objections, Defendant will produce responsive documents in its possession, custody, or control that reflect Meridian's workforce and crew deployment as observed, reported, or communicated to NFA during the course of the fiber build-out program, including staffing reports provided by Meridian to NFA, meeting minutes reflecting workforce discussions, and NFA internal memoranda and correspondence regarding Meridian's labor resources.
Request No. 11
Request: All documents relating to any claims of force majeure or excusable delay under the MCA, including any notices, requests for time extensions, or responses thereto.
Response: No objection. Defendant will produce responsive documents, including all notices, requests for time extensions, and NFA's responses thereto. Defendant notes that Meridian's principal force majeure claim is set forth in its letter dated February 2, 2024, in which Meridian asserted force majeure based on alleged ongoing impacts of the COVID-19 pandemic on labor supply and purported supply chain disruptions affecting the availability of fiber-optic cable. It is Defendant's position, as set forth in its Answer and Counterclaims, that Meridian's force majeure claim is untimely, unsupported, and does not excuse Meridian's chronic underperformance.
Request No. 12
Request: All documents relating to the 14 alleged Owner-directed scope changes referenced in Meridian's February 2, 2024 correspondence, including any internal NFA analyses, communications, or approvals.
Response: Defendant incorporates by reference its General Objections, including its objections regarding privilege. Subject to those objections, Defendant will produce responsive, non-privileged documents. Defendant denies that any of the fourteen (14) items identified in Meridian's February 2, 2024 correspondence constituted Owner-directed scope changes requiring the issuance of Change Orders under MCA § 16.1 or entitling Meridian to additional compensation or schedule relief. Defendant objects to the characterization of these items as "Owner-directed scope changes," as such characterization is inaccurate and presumes a conclusion contested in this litigation. The items identified by Meridian consist of routine field adjustments, standard clarifications of the Technical Specification, and Meridian's own design errors, none of which constituted changes to the scope of work as defined in the MCA.
Request No. 13
Request: All documents relating to municipal or governmental permits for the fiber build-out program, including permit applications, approvals, denials, and correspondence with permitting authorities, and all documents relating to the allocation of permitting responsibilities between NFA and Meridian under MCA § 5.3.
Response: Defendant incorporates by reference its General Objections. Subject to those objections, Defendant will produce responsive documents in its possession, custody, or control relating to permits for the fiber build-out program, including permit applications, approvals, denials, and correspondence with permitting authorities. Defendant notes that the allocation of permitting responsibilities is set forth in MCA § 5.3, and responsive documents reflecting that allocation will be produced. Defendant further notes that third-party subpoenas have been issued to three (3) municipal permitting authorities for additional documents relevant to permitting delays and responsibilities, and Defendant will supplement its production as warranted upon receipt of responsive subpoena returns.
Request No. 14
Request: All documents relating to any critical path analyses or schedule impact analyses of the fiber build-out program.
Response: Defendant incorporates by reference its General Objections. Defendant specifically objects to this request to the extent it seeks expert work product, litigation-related analyses, or materials prepared by or at the direction of counsel or defense expert Dr. Elinor Chazen of Lakeview Consulting Group LLC. Such materials are protected as attorney work product under CPLR 3101(c) and (d), and as expert materials under CPLR 3101(d)(1). Subject to and without waiving the foregoing objections, Defendant will produce non-privileged, pre-litigation critical path analyses and schedule impact analyses prepared in the ordinary course of business during the term of the MCA.
Request No. 15
Request: All documents relating to interim completion certificates issued or withheld for any milestone under MCA § 8.2.
Response: No objection. Defendant will produce responsive documents, including all interim completion certificates issued by NFA for milestones completed by Meridian, as well as documents relating to any certificates that were withheld, including the reasons for such withholding, consistent with the certification procedures set forth in MCA § 8.2.
C. Requests Relating to Quality, Non-Conformances, and Workmanship (Nos. 16–22)
Request No. 16
Request: All Non-Conformance Reports ("NCRs") issued in connection with the fiber build-out program, including supporting documentation, photographs, test results, and correspondence.
Response: No objection. Defendant will produce all two hundred eighty-seven (287) NCRs issued in connection with the fiber build-out program, together with associated supporting documentation, photographs, test results, and correspondence. Of the 287 NCRs, forty-three (43) have been classified as "critical" (indicating defects that affect structural integrity, system functionality, or regulatory compliance) and two hundred forty-four (244) have been classified as "non-critical" (indicating defects requiring remediation but not presenting immediate functional or safety concerns). The NCRs and supporting documentation are being Bates-stamped and produced through Vantage Litigation Support LLC.
Request No. 17
Request: All documents relating to quality assurance and quality control inspections, audits, and reviews of Meridian's work under the MCA, including monthly QA reports.
Response: No objection. Defendant will produce responsive documents, including monthly quality assurance reports prepared by NFA's internal QA team, led by Yolanda Chu, Manager, Quality Assurance, which documented defects, non-conformances, and workmanship concerns throughout Phase 2 and Phase 3 of the fiber build-out program. Defendant will also produce records of field inspections, audit findings, and quality review correspondence in its possession, custody, or control.
Request No. 18
Request: All documents relating to any defects, deficiencies, or failures to conform to Northgate's Technical Specification NS-FIBER-2020 or applicable industry standards (ANSI/TIA-568, BICSI guidelines).
Response: No objection. Defendant will produce responsive documents. Defendant notes that the defect types documented in the 287 NCRs include, among others, splice loss exceeding specification thresholds (including 18 NCRs documenting splice losses in excess of the 0.3 dB per splice maximum), improper conduit burial depth (below the minimum 36-inch depth required by Technical Specification NS-FIBER-2020 § 4.2.3), and unauthorized route deviations from the approved engineered route plans. Additional documented defect types include inadequate bend radius compliance, improper cable-pulling tension, incomplete or missing splice enclosure weatherproofing, and failure to install required tracer wire.
Request No. 19
Request: All documents relating to the remediation, repair, or correction of any defective or non-conforming work, including cost estimates and completion status.
Response: Defendant incorporates by reference its General Objections. Subject to those objections, Defendant will produce responsive documents relating to the remediation, repair, or correction of defective or non-conforming work, including cost estimates and completion status documentation. Defendant notes that its engineering assessment estimates total remediation costs of approximately $18.3 million, calculated as follows: the forty-three (43) critical NCRs carry an estimated average remediation cost of approximately $275,000 per NCR, yielding an aggregate estimated remediation cost of approximately $11,825,000; and the two hundred forty-four (244) non-critical NCRs carry an estimated average remediation cost of approximately $26,500 per NCR, yielding an aggregate estimated remediation cost of approximately $6,466,000. These remediation cost estimates form the basis of Defendant's Counterclaim III (remediation costs).
Request No. 20
Request: All documents relating to the 12 additional critical NCRs issued in February 2024, as referenced in NFA's March 12, 2024 letter rejecting Meridian's Corrective Action Plan.
Response: No objection. Defendant will produce responsive documents, including the twelve (12) additional critical NCRs issued in February 2024, the supporting documentation, photographs, and test results for each, and NFA's March 12, 2024 letter to Meridian rejecting the Corrective Action Plan submitted by Meridian on March 5, 2024. These twelve additional critical NCRs documented workmanship failures that occurred after the issuance of Cure Notice No. 1 and were cited as further evidence of Meridian's failure to cure its material breach.
Request No. 21
Request: All documents relating to any inspections, testing, or evaluations of Meridian's work performed by third parties or consultants retained by NFA.
Response: Defendant incorporates by reference its General Objections. Defendant specifically objects to this request to the extent it seeks evaluations, analyses, or reports prepared by third-party consultants at the direction of counsel in anticipation of litigation, which are protected by the attorney-client privilege and/or the work product doctrine. Subject to and without waiving the foregoing objections, Defendant will produce responsive, non-privileged documents reflecting inspections, testing, and evaluations of Meridian's work performed by third parties or consultants retained by NFA in the ordinary course of the project (i.e., not at the direction of counsel for litigation purposes).
Request No. 22
Request: All documents relating to NFA's engineering assessment of the 287 NCRs referenced in NFA's counterclaims.
Response: Defendant incorporates by reference its General Objections. Defendant specifically objects to this request to the extent it seeks expert work product, privileged analyses, or materials prepared at the direction of counsel in connection with the quantification of Defendant's Counterclaim III (remediation costs). Such materials constitute attorney work product and are protected from disclosure. Subject to and without waiving the foregoing objections, Defendant will produce the underlying engineering data, field inspection records, and non-privileged assessment documents supporting the engineering assessment. Privileged analyses specifically prepared in connection with the formulation and quantification of Counterclaim III, including analyses reflecting the advice of counsel or prepared at counsel's direction, are withheld and identified on the privilege log.
D. Requests Relating to Cure Notices and Termination (Nos. 23–32)
Request No. 23
Request: All documents constituting, relating to, or reflecting Cure Notice No. 1 dated January 18, 2024, including all drafts, internal analyses, and communications leading to its issuance.
Response: Defendant incorporates by reference its General Objections. Defendant specifically objects to this request to the extent it seeks documents and communications protected by the attorney-client privilege, including attorney-client communications regarding the preparation, strategy, and legal basis for Cure Notice No. 1. The decision to issue Cure Notice No. 1 was made with the advice of in-house counsel (Dominic Hale, General Counsel, NTP) and outside counsel (Calderwood & Harkness LLP), and internal communications and draft documents reflecting that legal advice are privileged and protected from disclosure.
Subject to and without waiving the foregoing objections, Defendant will produce Cure Notice No. 1 itself, dated January 18, 2024, which was sent by Renata Voss, Vice President, US Network Infrastructure, NFA, to Meridian, identifying Meridian's material breaches of the MCA, including chronic schedule delays, failure to maintain adequate workforce levels, and persistent quality deficiencies as documented in the NCRs. Defendant will also produce non-privileged supporting documentation, including the factual exhibits attached to or referenced in the Cure Notice. Certain internal communications, draft versions of the Cure Notice, and memoranda reflecting legal advice from in-house and outside counsel regarding the legal basis and strategy for issuing the Cure Notice are privileged and are withheld. Such documents are identified on the privilege log served concurrently herewith.
Request No. 24
Request: All documents constituting, relating to, or reflecting Cure Notice No. 2 dated February 19, 2024, including all drafts, internal analyses, and communications leading to its issuance.
Response: Defendant incorporates by reference its General Objections and asserts the same objections as set forth in its response to Request No. 23 above, which are incorporated herein by reference. Defendant specifically objects to this request to the extent it seeks documents and communications protected by the attorney-client privilege and work product doctrine relating to the preparation and issuance of Cure Notice No. 2.
Subject to and without waiving the foregoing objections, Defendant will produce Cure Notice No. 2 itself, dated February 19, 2024, and non-privileged supporting documentation. Cure Notice No. 2 stated that Meridian had failed to cure the breaches identified in Cure Notice No. 1 within the applicable cure period and that Meridian was in continuing material breach of the MCA. Privileged documents, including attorney-client communications, draft versions reflecting legal advice, and internal legal analyses relating to the decision to issue Cure Notice No. 2, are withheld and identified on the privilege log.
Request No. 25
Request: All documents relating to NFA's evaluation of Meridian's Corrective Action Plan submitted March 5, 2024.
Response: Defendant incorporates by reference its General Objections, including specifically its objections regarding privilege. Subject to those objections, Defendant will produce non-privileged documents relating to NFA's evaluation of Meridian's Corrective Action Plan. Defendant notes that Meridian submitted its Corrective Action Plan on March 5, 2024, which proposed an accelerated construction schedule, deployment of additional crews, a nine-month extension to the Phase 2 and Phase 3 milestone schedule, and $87 million in additional compensation for alleged Owner-directed scope changes and force majeure impacts. NFA rejected the Corrective Action Plan by letter dated March 12, 2024, citing, among other things, Meridian's continued quality failures, the inadequacy of Meridian's proposed remediation measures, and the issuance of twelve (12) additional critical NCRs in February 2024. Privileged internal analyses of the Corrective Action Plan prepared with or reflecting the advice of counsel are withheld and identified on the privilege log.
Request No. 26
Request: All documents constituting, relating to, or reflecting the Notice of Termination for Cause dated April 1, 2024, including all drafts, internal analyses, memoranda, and communications leading to the decision to terminate.
Response: Defendant incorporates by reference its General Objections. Defendant specifically objects to this request to the extent it seeks privileged communications and work product relating to the legal analysis, strategy, and decision-making process underlying the termination of the MCA for cause. The decision to terminate the MCA was made with the advice and at the direction of in-house counsel and outside counsel, and communications reflecting that legal advice, including internal memoranda, draft notices, and strategic analyses, are protected by the attorney-client privilege and/or the work product doctrine.
Subject to and without waiving the foregoing objections, Defendant will produce the Notice of Termination for Cause itself, dated April 1, 2024, and non-privileged factual documents supporting the grounds for termination, including the underlying NCRs, delay records, milestone certification records, and factual correspondence. Defendant notes that a significant number of the 214 documents identified on the privilege log served concurrently herewith relate to internal legal advice and analysis regarding the termination decision. Those documents — including legal memoranda, draft termination notices reflecting attorney input, and communications between NFA personnel and counsel (both in-house and outside) analyzing the legal and factual basis for termination — are protected by the attorney-client privilege and/or the work product doctrine and are withheld from production.
Request No. 27
Request: All documents reflecting the decision-making process within NFA and/or Northgate Telecommunications PLC regarding whether to terminate the MCA for cause versus for convenience.
Response: Defendant objects. This request is overbroad in scope and specifically seeks documents and communications that are protected by the attorney-client privilege and the work product doctrine. The decision regarding whether to terminate the MCA for cause under MCA § 14.1 versus for convenience under MCA § 14.3 was made with the advice of counsel, and communications reflecting that legal advice — including the analysis of the legal standards, evidentiary support, and risk assessment for each termination path — are privileged and protected from disclosure.
Defendant specifically objects to the extent this request seeks privileged board-level presentations, internal strategic analyses, and legal memoranda comparing the relative merits, financial consequences, and litigation risk associated with termination for cause versus termination for convenience. Such documents were prepared with, at the direction of, and reflecting the advice of in-house counsel Dominic Hale and outside counsel Calderwood & Harkness LLP, and are protected by the attorney-client privilege and/or the work product doctrine. These documents are listed on the privilege log.
To the extent non-privileged business documents exist that reflect the factual basis for the termination decision — as distinct from legal analysis and advice regarding the choice between termination for cause and termination for convenience — Defendant will produce such documents.
Request No. 28
Request: All documents relating to any internal analysis or evaluation by NFA or Northgate of the financial consequences of terminating the MCA for cause versus for convenience, including any comparison of potential liability exposure.
Response: Defendant objects. This request directly targets privileged communications and analyses prepared at the direction of and/or reflecting the advice of counsel in anticipation of litigation and in connection with the termination decision. Financial analyses comparing the potential liability exposure under termination for cause versus termination for convenience — including analyses of the termination-for-convenience fee that would have been payable under MCA § 14.3 (calculated at 8% of unperformed contract value), the potential liability for wrongful termination, and the likelihood of successfully defending a termination for cause — were prepared by or at the direction of counsel as part of the legal strategy for the termination decision. Documents responsive to this request are among the 214 documents identified on the privilege log served concurrently herewith and are withheld as protected by the attorney-client privilege and/or the work product doctrine.
Request No. 29
Request: All documents relating to Meridian's April 8, 2024 letter contesting the validity of the termination.
Response: Defendant incorporates by reference its General Objections, including its objections regarding privilege. Subject to those objections, Defendant will produce Meridian's April 8, 2024 letter itself, which contests the validity of the termination for cause and demands reinstatement of the MCA, and Defendant will produce non-privileged responsive documents. Internal analyses of Meridian's contestation letter, including memoranda and communications prepared at the direction of counsel assessing the merits of Meridian's arguments and formulating NFA's response strategy, are privileged and are withheld from production. Such documents are identified on the privilege log.
Request No. 30
Request: All documents relating to any analysis of whether Meridian's alleged breaches constituted "material breach" as defined in or contemplated by MCA § 14.1.
Response: Defendant objects. This request, on its face, seeks legal analyses and legal conclusions regarding the application of the "material breach" standard under MCA § 14.1 to the facts of this case. Such analyses are protected by the attorney-client privilege and the work product doctrine, as they reflect the mental impressions, conclusions, opinions, and legal theories of Defendant's counsel. To the extent non-privileged factual documents evidence the material breach — including, without limitation, the 287 NCRs, delay records documenting missed milestone completion dates, monthly progress reports, milestone certification records, workforce and staffing reports, and correspondence regarding Meridian's performance deficiencies — such documents are being produced in response to other requests and are not withheld. Defendant's objection is directed solely at the privileged legal analyses, not at the underlying factual record.
Request No. 31
Request: All documents relating to any consideration by NFA or Northgate of alternatives to termination, including renegotiation, partial termination, or engagement of supplemental contractors.
Response: Defendant incorporates by reference its General Objections, including its objections regarding privilege. Subject to those objections, Defendant will produce non-privileged business documents reflecting pre-termination discussions about project alternatives, including any proposals or discussions regarding renegotiation of the MCA, partial termination of specific phases, or the engagement of supplemental contractors to augment Meridian's workforce. Privileged communications reflecting legal advice from in-house or outside counsel regarding termination strategy, risk assessment, and the legal implications of various alternative courses of action are withheld and identified on the privilege log.
Request No. 32
Request: All documents constituting, relating to, or reflecting any communications between NFA and Ironclad Surety Group Inc. regarding the performance bond (Bond No. ISG-2020-NE-04417), including NFA's rights under the bond and Meridian's April 15, 2024 demand.
Response: Defendant incorporates by reference its General Objections. Defendant specifically objects to this request to the extent it seeks communications between NFA and Ironclad Surety Group Inc. that were made with the involvement of, or at the direction of, counsel, and that reflect legal advice regarding NFA's rights and remedies under the performance bond. To the extent such communications were made in the course of seeking or providing legal advice, they are protected by the attorney-client privilege.
Subject to and without waiving the foregoing objections, Defendant will produce non-privileged correspondence with Ironclad Surety Group Inc., including the performance bond itself (Bond No. ISG-2020-NE-04417, in the penal sum of $120 million), and non-privileged communications regarding Meridian's April 15, 2024 demand under the bond. Privileged communications, if any, are identified on the privilege log.
E. Requests Relating to Payments, Invoices, and Financial Matters (Nos. 33–41)
Request No. 33
Request: All documents relating to monthly progress payments made to Meridian under MCA § 18.1, including applications for payment, certifications, approvals, and payment records.
Response: No objection. Defendant will produce responsive documents reflecting the monthly progress payment process under MCA § 18.1, including Meridian's applications for payment, NFA's certifications and approvals (or disapprovals), and payment records. Defendant notes that total payments made to Meridian across all phases aggregate to $512,700,000, broken down as follows: Phase 1 payments totaling $199,775,000; Phase 2 payments totaling $281,225,000; and Phase 3 payments totaling $31,700,000. Payment records include wire transfer confirmations, check registers, and accounts payable ledger entries maintained by NFA's finance department.
Request No. 34
Request: All documents relating to the assessment, calculation, or deduction of liquidated damages under MCA § 9.1, including the November 5, 2021 LD assessment letter and all subsequent LD assessments.
Response: No objection. Defendant will produce responsive documents reflecting the assessment, calculation, and deduction of liquidated damages under MCA § 9.1. Defendant notes that liquidated damages totaling $49,000,000 have been assessed as follows:
The initial liquidated damages assessment was issued by letter dated November 5, 2021, relating to Phase 1, Milestone 3. The Milestone 8 assessment of $9,100,000 was capped at 10% of the Milestone 8 milestone value of $91,000,000, in accordance with the per-milestone cap provision in MCA § 9.1. The aggregate liquidated damages cap under MCA § 9.1 is 5% of the total Contract Price (i.e., $60,000,000), and total assessments to date of $49,000,000 remain below that aggregate cap.
Request No. 35
Request: All documents relating to retainage withheld under the MCA, including calculations, ledgers, and any determinations regarding release or forfeiture of retainage.
Response: No objection. Defendant will produce responsive documents reflecting retainage withheld under the MCA, including calculations, accounts payable ledger entries, and any correspondence or determinations regarding the release or forfeiture of retainage. Defendant notes that retainage currently held by NFA totals $56,966,667, representing 10% of gross certified work valued at $569,666,670.
Request No. 36
Request: All documents relating to the $16.5 million in disputed Phase 3 payment applications, including the bases for NFA's refusal to approve such amounts.
Response: Defendant incorporates by reference its General Objections. Subject to those objections, Defendant will produce responsive documents relating to the $16.5 million in disputed Phase 3 payment applications. Defendant notes that Meridian submitted Phase 3 payment applications totaling $48.2 million during the Phase 3 construction period; NFA reviewed those applications and approved and paid $31.7 million. The remaining $16.5 million was disputed and withheld by NFA on the grounds that the payment applications included charges for defective work that did not conform to the Technical Specification and inflated unit counts that did not correspond to the work actually installed in the field. Documentation supporting the bases for NFA's refusal to approve the disputed amounts, including field verification reports and QA audit findings, will be produced.
Request No. 37
Request: All documents relating to NFA's or Northgate's capital expenditure budgets for the US fiber segment, including budgets for FY2020 through FY2025.
Response: Defendant objects. This request is overbroad to the extent it seeks corporate capital expenditure budgets that are unrelated to the MCA or Meridian's claims and defenses in this action. NFA's and Northgate Telecommunications PLC's overall capital expenditure budgets for the US fiber segment encompass numerous projects, programs, and initiatives beyond the fiber build-out program covered by the MCA, and production of such broad-ranging corporate budget documents would be disproportionate to the needs of this case and would require the disclosure of highly confidential and competitively sensitive business information.
Subject to and without waiving the foregoing objections, Defendant will produce documents reflecting NFA's capital expenditure allocations specifically related to the fiber build-out program covered by the MCA. Defendant notes that general corporate capital budget information, including NFA's FY2024 capital expenditure budget of approximately $340 million for the US fiber segment, is a matter of public disclosure through Northgate Telecommunications PLC's filings with the London Stock Exchange and the U.S. Securities and Exchange Commission, and is not independently relevant to the claims or defenses in this breach-of-contract action.
Request No. 38
Request: All documents relating to NFA's or Northgate's financial analyses of the cost-effectiveness or economic viability of the fiber build-out program.
Response: Defendant objects. This request is overbroad, seeks proprietary and confidential business information that is not relevant to the claims and defenses asserted in this action, and to the extent it seeks internal strategic or financial analyses prepared with or reflecting the advice of counsel regarding the termination decision and its financial implications, such documents are privileged and protected from disclosure by the attorney-client privilege and/or the work product doctrine. The economic viability of NFA's overall fiber build-out strategy is not a contested issue in this breach-of-contract action, which centers on whether Meridian committed material breach of the MCA and whether NFA's termination for cause was justified.
Subject to and without waiving the foregoing objections, Defendant will produce non-privileged documents that directly relate to the MCA's financial performance, including project-level cost tracking, budget-to-actual comparisons, and earned value analyses for the MCA project, to the extent such documents exist and are responsive.
Request No. 39
Request: All documents relating to any analysis by NFA or Northgate of the market conditions for fiber-optic construction services, including pricing trends, contractor availability, and procurement alternatives, from January 2023 to the present.
Response: Defendant objects. This request is overbroad and seeks proprietary business information that is not relevant to the claims and defenses asserted in this action. Defendant understands that Meridian seeks such documents in support of its pretext theory — namely, Meridian's allegation that NFA terminated the MCA for cause as a pretext to re-procure the remaining work at a lower price following favorable market shifts in the fiber-optic construction industry. Defendant categorically denies that the termination was pretextual. The termination was based on Meridian's material breach of the MCA, as documented by the 287 NCRs, chronic schedule delays across multiple milestones, and Meridian's failure to cure following two Cure Notices, and was not based on market conditions or pricing considerations.
Subject to and without waiving the foregoing objections, Defendant will produce non-privileged documents to the extent they directly relate to the MCA or to the decision to engage Crestline Construction Group Inc. as the replacement contractor. General market analyses, industry studies, and internal strategic assessments of the fiber-optic construction market that do not directly pertain to the MCA or the replacement contractor decision are not relevant and will not be produced.
Request No. 40
Request: All documents relating to any plans, proposals, or analyses by NFA or Northgate to bring fiber-optic construction in-house or to self-perform any portion of the work covered by the MCA.
Response: Defendant objects. This request seeks documents that are irrelevant to the claims and defenses in this breach-of-contract action and is designed to support Meridian's speculative and unfounded pretext theory. Whether NFA or Northgate considered, at any point, the possibility of self-performing fiber-optic construction is not relevant to whether Meridian committed material breach of the MCA or whether NFA's termination for cause was justified under MCA § 14.1.
Further, to the extent responsive documents exist, they are protected by the attorney-client privilege and/or the work product doctrine, as any such analyses were prepared with or at the direction of counsel in connection with the termination decision and in anticipation of this litigation. Documents responsive to this request are among the 214 documents identified on the privilege log served concurrently herewith and are withheld from production.
Request No. 41
Request: All documents relating to NFA's or Northgate's communications with or presentations to the board of directors of Northgate Telecommunications PLC (including Dame Catherine Elsworth, Board Chair) regarding the MCA, Meridian's performance, the decision to terminate, or the fiber build-out program.
Response: Defendant objects. This request is overbroad in scope and seeks documents that are protected by the attorney-client privilege and the work product doctrine. Board presentations and communications to and from the board of directors of Northgate Telecommunications PLC regarding the MCA, Meridian's performance, the decision to terminate, and the fiber build-out program were prepared with, at the direction of, and reflecting the advice of in-house counsel (Dominic Hale, General Counsel, NTP) and outside counsel (Calderwood & Harkness LLP). Such documents reflect legal advice regarding NFA's contractual rights and remedies, litigation risk, and strategic considerations, and are privileged. These documents are identified on the privilege log served concurrently herewith.
To the extent non-privileged factual board updates exist — for example, project status summaries or milestone completion reports that do not reflect legal advice, mental impressions, or strategic analysis of counsel — Defendant will produce such documents, subject to confidentiality designations under the Protective Order.
F. Requests Relating to the Replacement Contractor (Nos. 42–46)
Request No. 42
Request: All documents constituting, relating to, or reflecting the procurement, negotiation, and execution of the replacement contract with Crestline Construction Group Inc. dated June 10, 2024.
Response: Defendant incorporates by reference its General Objections. Defendant specifically objects to this request to the extent the procurement strategy for the replacement contract was developed with the involvement of, and at the direction of, counsel, and to the extent communications reflecting that legal involvement are protected by the attorney-client privilege.
Subject to and without waiving the foregoing objections, Defendant will produce the executed replacement contract with Crestline Construction Group Inc., dated June 10, 2024, together with non-privileged procurement documents, including the request for proposals, Crestline's proposal, and non-privileged negotiation correspondence. The Crestline replacement contract has a total contract price of $712 million for the remaining scope of the fiber build-out program, with a contract term of thirty (30) months.
Request No. 43
Request: All documents relating to the scope of work, pricing, and schedule under the Crestline replacement contract.
Response: Defendant incorporates by reference its General Objections. Subject to those objections and subject to confidentiality designations under the Protective Order, Defendant will produce responsive documents relating to the scope of work, pricing, and schedule under the Crestline replacement contract. The Crestline contract covers the completion of the remaining Phase 2 work (specifically, the completion of Milestone 8) and all Phase 3 work (Milestones 9 through 14). Certain commercially sensitive pricing details and proprietary scheduling information in the Crestline contract will be designated as "Highly Confidential — Attorneys' Eyes Only" under the Confidentiality Stipulation.
Request No. 44