PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT This memorandum is protected by the attorney-client privilege and the work product doctrine. It was prepared in anticipation of litigation and reflects the mental impressions, conclusions, opinions, and legal theories of attorneys at Calderwood & Harkness LLP. It is not to be disclosed to any third party without the prior written consent of Calderwood & Harkness LLP.
CALDERWOOD & HARKNESS LLP 425 Park Avenue, 33rd Floor New York, NY 10022
MEMORANDUM
TO: Linda Osei, Responsible Partner
FROM: Yuki Nakamura, Associate
DATE: October 20, 2024
RE: Third-Party Subpoenas to Meridian Subcontractors and Municipal Permitting Authorities — Meridian Infrastructure Partners LLC v. Northgate Fiber Americas Inc., Index No. 654321/2024 (Sup. Ct. N.Y. Cnty., Comm. Div.)
MATTER NO.: 1022-00005
I. Executive Summary
This memorandum summarizes ten (10) third-party subpoenas duces tecum issued by our client, Northgate Fiber Americas Inc. ("NFA" or "Northgate"), in the above-captioned action. Seven (7) of the subpoenas are directed to subcontractors retained by Meridian Infrastructure Partners LLC ("Meridian") in connection with the multi-phase fiber build-out program, and three (3) are directed to municipal permitting authorities within the seven-state project footprint encompassing New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia.
The subpoenas are designed to obtain contemporaneous project records bearing on four categories of issues central to the parties' claims and defenses:
(a) the cause and extent of Meridian's schedule delays across Milestones 3 through 8, which form the basis for NFA's liquidated damages claims;
(b) the quality defects documented in 287 non-conformance reports ("NCRs") — 43 of which are categorized as critical and 244 as non-critical — underlying NFA's Counterclaim III for remediation costs;
(c) the allocation of responsibility for municipal permitting delays under Section 5.3 of the Master Construction Agreement dated March 15, 2020 (the "MCA"), which is the subject of competing interpretations by the parties; and
(d) Meridian's affirmative claims that 14 alleged Owner-directed scope changes were never formalized as Change Orders under MCA § 16.1, and Meridian's contention that it is entitled to equitable adjustment for those alleged changes.
The subpoenas were served between October 14 and October 18, 2024, with return dates staggered in late November 2024 — specifically, November 18, 2024 for the subcontractor subpoenas and November 25, 2024 for the municipal permitting authority subpoenas. The staggered schedule accounts for the additional processing time typically required by governmental entities and is consistent with the procedural requirements of CPLR § 2307.
All subpoenas have been coordinated with the Stipulated E-discovery Protocol and ESI Agreement filed October 1, 2024, as well as the agreed-upon Confidentiality Stipulation and Protective Order governing the treatment of materials designated as "Confidential" and "Highly Confidential — Attorneys' Eyes Only" ("AEO"). Productions received from third parties will be ingested into the same review platform maintained by the parties' jointly selected e-discovery vendor, Vantage Litigation Support LLC, located at 300 Vesey Street, Suite 600, New York, NY 10282.
Consistent with NFA's obligations under CPLR § 3101(a)(4) and the Preliminary Conference Order entered by Justice Ricci on October 1, 2024, courtesy copies of all ten subpoenas were provided to Meridian's counsel, Hargrove, Deluca & Stein LLP ("HDS"), specifically to Thomas Deluca, Esq. and Miriam Vasquez, Esq., simultaneously with service on the third-party recipients. This memorandum addresses the legal framework, the specific scope and relevance of each subpoena, anticipated objections, coordination with expert work, and recommended next steps.
II. Legal Framework for Third-Party discovery
A. CPLR § 3101(a)(4) — Disclosure by Non-Parties
New York's Civil Practice Law and Rules provide broad discovery rights, and CPLR § 3101(a)(4) specifically authorizes full disclosure from non-parties upon notice and court approval where appropriate. Under this provision, a party may obtain disclosure from a person who is not a party to the action, provided that the information sought is "material and necessary" to the prosecution or defense of the action. The Court of Appeals has interpreted "material and necessary" liberally, requiring only that the information sought be reasonably calculated to lead to the discovery of relevant evidence. See Allen v. Collll-Collier Publ'g Co., 21 N.Y.2d 403, 406 (1968); Kapon v. Koch, 23 N.Y.3d 32, 38 (2014).
Under CPLR § 3101(a)(4), the party seeking non-party discovery must demonstrate "adequate special circumstances" only where the subpoena is directed at obtaining testimony rather than documentary evidence. For subpoenas duces tecum seeking documents, the standard is the same general "material and necessary" test applicable to party discovery, though the court will balance the utility of the discovery against any undue burden on the non-party. See Dioguardi v. St. John's Riverside Hosp., 144 A.D.2d 333, 334 (2d Dep't 1988).
The subpoenas at issue were issued as subpoenas duces tecum under CPLR § 2307, which governs subpoenas for the production of documents in the custody of non-parties, and are also governed by CPLR § 3120, which sets forth the requirements for inspection of documents. With respect to subpoenas directed at governmental entities, CPLR § 2307 requires that the subpoena be accompanied by a court order authorizing the production, unless the governmental agency voluntarily complies. As discussed below, we obtained the necessary court orders from Justice Ricci on October 15, 2024.
Notice to all parties is required under CPLR § 3101(a)(4). We complied with this requirement by serving courtesy copies on HDS simultaneously with service on each third-party recipient.
B. Preliminary Conference Order (October 1, 2024)
Justice Ricci's Preliminary Conference Order, entered on October 1, 2024, established the framework for discovery in this action, including specific provisions governing third-party discovery. The Order provides that:
(i) Third-party discovery is to run concurrently with party discovery, with all fact discovery to be completed by April 15, 2025.
(ii) Third-party subpoenas may be issued after the parties have served their initial document requests upon each other. NFA served its First Request for Production of Documents on Meridian on October 3, 2024, and Meridian served its corresponding requests on NFA on October 8, 2024, thereby satisfying this prerequisite.
(iii) Return dates for third-party subpoenas must be set no earlier than 30 days from the date of service to afford the non-party adequate time for compliance.
(iv) Courtesy copies of all third-party subpoenas are to be provided to all parties simultaneously with service on the non-party.
All ten subpoenas comply with the timing and procedural requirements of the Preliminary Conference Order.
C. Confidentiality Stipulation
The Confidentiality Stipulation and Protective Order, entered by the Court on October 1, 2024 (the "Confidentiality Stipulation"), applies by its terms to all documents produced in the action, including documents produced by third parties. Under Section 4(c) of the Confidentiality Stipulation, any party may designate documents produced by a third party as "Confidential" or "Highly Confidential — Attorneys' Eyes Only" within 14 business days of the producing party's receipt of the third-party production. The third-party recipient itself may also request confidential treatment by notifying the parties in writing at the time of production.
All third-party productions will be hosted by Vantage Litigation Support LLC on the same Relativity-based review platform used for party productions, ensuring consistent treatment of confidentiality designations, Bates-numbering conventions, and metadata preservation protocols as set forth in the Stipulated E-discovery Protocol and ESI Agreement.
III. Subpoenas to Meridian's Subcontractors (7 Subpoenas)
A. Overview and Identification of Subcontractors
During the performance of the $1.2 billion fiber build-out program under the MCA, Meridian engaged numerous subcontractors for specialty work across the seven-state footprint. The subcontracted work encompassed a wide range of disciplines essential to the fiber construction program, including horizontal directional drilling and boring, aerial strand installation and pole-line construction, fiber splicing and testing, underground conduit and duct bank installation, outside plant engineering and design, traffic control and site restoration, utility locating, and inside plant fiber termination and equipment installation.
Through analysis of NFA's own project records, Meridian's partial document production to date, and deposition testimony obtained in the early stages of discovery, we have identified seven subcontractors who performed material work on the project and who are reasonably expected to possess contemporaneous documents relevant to the core disputes regarding delay causation, quality defects, and the scope-change controversy. Each of these subcontractors had direct involvement in work that is the subject of specific NCRs, schedule delay claims, or the disputed scope changes, making their records highly probative.
The seven subcontractors, the nature of their work, the phases and milestones on which they were active, and the specific scope of each subpoena are detailed in the subsections that follow.
B. Subcontractor 1 — Appalachian Boring & Utility Services Inc.
Entity: Appalachian Boring & Utility Services Inc.
Principal Office: 450 Fayette Street, Suite 300, Uniontown, PA 15401
Work Performed: Appalachian Boring was Meridian's primary subcontractor for horizontal directional drilling ("HDD") and trenching operations for underground conduit installation. The company was active on Phases 2 and 3 of the fiber build-out, performing work in Connecticut, western Massachusetts, southern Pennsylvania, and Maryland.
Relevant Milestones: Milestones 5 through 9.
Scope of Subpoena: The subpoena issued to Appalachian Boring requests production of the following categories of documents:
1. All subcontract agreements, amendments, change orders, and task orders between Appalachian Boring and Meridian relating to the NFA fiber build-out project.
2. Daily field reports, boring logs, and production records for all work performed on the NFA project from October 2021 through April 2024, including but not limited to daily crew counts, equipment utilization records, linear footage bored or trenched per day, and shift start and end times.
3. All correspondence, including emails, letters, text messages, and project management platform communications, between Appalachian Boring and Meridian regarding schedule delays, crew availability, equipment failures, and remobilization orders.
4. Records of work stoppages, weather delays, and force majeure notices submitted to or received from Meridian, including any formal notices of delay or claims for time extensions.
5. Quality assurance/quality control ("QA/QC") records, including conduit depth verification logs, compaction test results, and any inspection records generated by Appalachian Boring's own quality personnel or by Meridian's quality oversight team.
6. Payment applications, invoices, lien waivers, and records reflecting payment or non-payment by Meridian, including any correspondence regarding disputed charges or requests for accelerated payment.
Expected Relevance: Appalachian Boring's contemporaneous field records are expected to be highly probative on several key issues:
Schedule Delay Causation. NFA's position is that delays in Milestones 5 through 8 were driven primarily by Meridian's failure to coordinate and adequately staff its subcontractor workforce, rather than by Owner-caused permitting delays as Meridian contends. Appalachian Boring's daily field reports and production records will provide a day-by-day account of work progress, crew levels, and equipment deployment that can be directly compared against Meridian's contractual schedule obligations and the critical path analysis being developed by Dr. Elinor Chazen.
Quality Defects — Conduit Depth. A significant number of the 43 critical NCRs cite improper conduit depth — specifically, conduit installed at depths shallower than those required by Northgate Technical Specification NS-FIBER-2020, Section 4.3.2, and BICSI Outside Plant Design Reference Manual ("OSPDRM") guidelines. Appalachian Boring's conduit depth verification logs will provide independent, contemporaneous evidence of whether conduit was installed at the specified depths and, if not, whether Meridian's field supervision directed or acquiesced to substandard installation depths.
Financial Distress. Payment records may reveal that Meridian experienced financial distress during the project and was unable to pay subcontractors in a timely fashion, contributing to the crew shortages and mobilization difficulties acknowledged by Meridian's Vice President of Operations, Marcus Henley, during his deposition on December 3–4, 2024. Evidence of Meridian's failure to pay subcontractors would be relevant both to delay causation and to Meridian's claimed damages for lost profits.
C. Subcontractor 2 — Clearpath Fiber Construction LLC
Entity: Clearpath Fiber Construction LLC
Principal Office: 88 Industrial Parkway, Edison, NJ 08837
Work Performed: Clearpath was Meridian's primary subcontractor for aerial fiber strand installation and pole-line construction. The company served as the principal aerial contractor for Phase 1 (NY Metro and Northern New Jersey) and Phase 2 (Connecticut and western Massachusetts), making it one of the most significant subcontractors on the project by scope and dollar value.
Relevant Milestones: Milestones 1 through 7.
Scope of Subpoena: The subpoena issued to Clearpath requests the following categories of documents:
1. All subcontract agreements, amendments, change orders, and task orders between Clearpath and Meridian relating to the NFA fiber build-out project.
2. Aerial construction daily logs, strand footage installed per day, crew staffing records, and equipment deployment records for all work performed on the NFA project.
3. All correspondence with Meridian relating to schedule pressure, overtime directives, and any alleged scope changes, including but not limited to emails, letters, and project management platform communications.
4. Records of any joint-use pole attachment permits obtained by or on behalf of Clearpath or Meridian, and any documentation of delays in obtaining such permits, including correspondence with utility pole owners.
5. Inspection reports, punch-list items, and records of rework directed by either Meridian's quality oversight personnel or NFA's QA representatives, including the identity of the directing party and the scope of rework performed.
6. Any communications reflecting Clearpath's awareness of, involvement in, or receipt of directions relating to the 14 alleged unformalized scope changes claimed by Meridian in its Verified Complaint and supporting discovery responses.
Expected Relevance: Clearpath's records are expected to be significant across multiple issues:
Schedule Performance. Because Clearpath was active throughout Phases 1 and 2, spanning Milestones 1 through 7, its production records will provide a comprehensive view of whether Meridian adequately managed the aerial construction schedule or allowed delays to compound across successive milestones. Clearpath's daily logs will show actual daily progress against planned progress and will identify periods of low productivity, work stoppages, or crew shortages.
Scope Change Dispute. Clearpath's records regarding scope-change directives are expected to be critical to evaluating Meridian's affirmative defense and counterclaim that 14 Owner-directed scope changes occurred during the project but were never formalized as Change Orders under MCA § 16.1. If Clearpath — as the aerial contractor performing work in the field — has no records of receiving modified work directives corresponding to the 14 alleged scope changes, that fact would significantly undermine Meridian's position. Conversely, if Clearpath's records do reflect changed directives, the records will show whether those directives originated from NFA or from Meridian's own field management.
Quality Defects — Aerial Construction. Clearpath's rework records are directly relevant to the subset of NCRs involving aerial construction defects, including improper strand tensioning, inadequate lashing, and violations of make-ready specifications on utility poles.
D. Subcontractor 3 — Summit Splicing & Testing Corp.
Entity: Summit Splicing & Testing Corp.
Principal Office: 12 Commerce Way, Stamford, CT 06902
Work Performed: Summit was Meridian's sole subcontractor for fiber splicing, OTDR (Optical Time-Domain Reflectometer) testing, and acceptance testing across all three phases of the fiber build-out program.
Relevant Milestones: Milestones 1 through 8, with limited additional work on early Phase 3 segments.
Scope of Subpoena: The subpoena issued to Summit requests the following categories of documents:
1. The subcontract agreement between Summit and Meridian, including all amendments and task orders.
2. All splice records, OTDR test results, and acceptance test reports for each NFA project segment, including segment identification, test dates, measured splice loss values, and pass/fail determinations.
3. Records of splice loss measurements exceeding specifications established in Northgate Technical Specification NS-FIBER-2020, Section 7.2, and ANSI/TIA-568 standards, including any correspondence regarding retesting or remediation.
4. All correspondence between Summit and Meridian personnel or NFA personnel regarding failed tests, retesting requirements, remediation directives, and re-splicing.
5. Records of any delays caused by the unavailability of fiber cable, splice closures, or other materials — including purchase orders, delivery receipts, and back-order notifications — which are relevant to Meridian's supply-chain force majeure defense.
Expected Relevance: Summit's records bear directly on the quality-defect and damages aspects of this case:
Quality Defects — Splice Loss. OTDR test results maintained by Summit will provide independent verification of the quality defects underlying multiple critical NCRs. Splice loss exceeding specification is one of the three primary categories of critical NCR in this case, along with improper conduit depth and unauthorized route deviations. Summit's records will show measured splice loss values on a segment-by-segment basis, enabling direct comparison against the NS-FIBER-2020 splice loss budget (0.10 dB maximum per mechanical splice; 0.05 dB maximum per fusion splice). Where splice loss exceeded these thresholds, Summit's records should also show whether the defective splices were re-done and, if so, the results of retesting.
Force Majeure Defense. Meridian has asserted a force majeure defense based on alleged post-COVID supply-chain disruptions affecting fiber cable availability. Summit's records regarding material availability — or the lack thereof — will help rebut or contextualize this defense. If Summit's records show that fiber cable and splice closure materials were available throughout the project period, or that delays in material availability were of short duration and did not affect the critical path, this evidence will undermine Meridian's force majeure position.
Remediation Cost Quantification. Summit's records will support Northgate's Counterclaim III, in which NFA seeks $18.3 million in remediation costs. By quantifying the volume of defective splicing work requiring correction, Summit's records will help establish the scope and cost of remediation attributable to Meridian's quality failures.
E. Subcontractor 4 — Granite Line Contractors Inc.
Entity: Granite Line Contractors Inc.
Principal Office: 300 Elm Street, Manchester, NH 03101
Work Performed: Granite Line performed underground conduit and duct bank installation, working primarily on Phase 2 of the project in Connecticut and western Massachusetts.
Relevant Milestones: Milestones 5 through 7.
Scope of Subpoena: The subpoena issued to Granite Line requests the following:
1. The subcontract agreement between Granite Line and Meridian, including all amendments and change orders.
2. As-built drawings, conduit installation records, and route maps for all segments of the NFA project on which Granite Line performed work.
3. Records of any unauthorized route deviations from NFA-approved engineering plans, including field notes, redlined drawings, and correspondence with Meridian regarding the reasons for such deviations.
4. Crew mobilization and demobilization records, staffing level reports, and labor hour logs.
5. All correspondence with Meridian regarding work directives, schedule modifications, and payment disputes.
Expected Relevance: Granite Line's records are expected to be significant in two principal areas:
Route Deviations. Unauthorized route deviations from NFA-approved engineering plans constitute the third major category of critical NCR. NFA's position is that these deviations resulted from Meridian's deficient field management and supervision, not from Owner-directed changes. Granite Line's route deviation documentation — including the reasons recorded at the time for departing from the approved route — is expected to confirm that Meridian's field supervisors authorized deviations without obtaining NFA's prior approval as required under the MCA, and that the deviations were driven by Meridian's own construction convenience rather than any direction from NFA.
Crew Staffing. Granite Line's crew staffing records are directly relevant to the pattern of under-resourcing identified by NFA's construction management team. During his deposition on November 19, 2024, Sean Calloway, NFA's Senior Construction Manager, testified that Meridian routinely deployed fewer crews than called for in the approved construction schedule and that this under-resourcing was a principal cause of delay. Granite Line's records will provide independent verification of actual crew levels on the segments where Granite Line was active.
F. Subcontractor 5 — Tidewater Engineering & Design LLC
Entity: Tidewater Engineering & Design LLC
Principal Office: 700 East Main Street, Suite 400, Norfolk, VA 23510
Work Performed: Tidewater provided outside plant engineering and design services for Phase 3 of the fiber build-out, encompassing Maryland, Virginia, and eastern Pennsylvania. Tidewater was responsible for preparing detailed construction drawings, route engineering packages, and permit application packages for the Phase 3 footprint.
Relevant Milestones: Milestones 9 through 14 (design and engineering milestones predating construction mobilization).
Scope of Subpoena: The subpoena issued to Tidewater requests the following:
1. The subcontract or consulting agreement between Tidewater and Meridian, including all amendments, task orders, and statements of work.
2. All engineering design packages, route plans, constructability analyses, and permit application packages prepared by Tidewater for Phase 3 of the NFA project.
3. Records of design revisions, including any revisions directed by NFA that Meridian has characterized as scope changes, and any correspondence reflecting the origin of and reasons for such revisions.
4. All correspondence between Tidewater and municipal permitting authorities submitted on behalf of Meridian in connection with Phase 3 permit applications.
5. The timeline of design deliverable submissions, including scheduled delivery dates, actual delivery dates, and any delays, as well as correspondence regarding the causes of any such delays.
Expected Relevance: Tidewater's records are expected to be highly relevant to two of the central disputes:
Engineering Delay and Its Impact on Permitting. NFA's position is that Meridian's failure to timely complete Phase 3 engineering — a prerequisite to both permit applications and construction mobilization — was a principal cause of the minimal progress achieved on Phase 3 before NFA terminated the MCA on April 1, 2024. Tidewater's delivery timelines will establish whether Meridian's engineering subcontractor was itself delayed, and if so, whether the delays resulted from Meridian's failure to provide necessary inputs, inadequate staffing of the engineering effort, or other causes attributable to Meridian rather than NFA.
Permitting Responsibility Under MCA § 5.3. The allocation of permitting responsibility between Meridian (as Contractor) and NFA (as Owner) under MCA § 5.3 is one of the most significant factual and legal disputes in the case. Tidewater's correspondence with municipal permitting authorities will shed light on the practical allocation of permitting work in Phase 3 — specifically, which entity prepared and submitted permit applications, which entity communicated with permitting authorities, and whether NFA was expected to play any role beyond providing governmental liaison support.
Scope Change Analysis. Tidewater's records of design revisions will be tested against Meridian's claim that 14 NFA-directed scope changes occurred during the project. If design revisions originated from Meridian's own constructability assessments or were necessitated by engineering errors, they would not qualify as Owner-directed scope changes under MCA § 16.1.
G. Subcontractor 6 — Keystone Utilities Management Inc.
Entity: Keystone Utilities Management Inc.
Principal Office: 2200 Market Street, Suite 600, Philadelphia, PA 19103
Work Performed: Keystone provided traffic control services, site restoration, and utility locating services across Phases 1, 2, and 3 of the fiber build-out program.
Relevant Milestones: Various (Keystone played a supporting role across all milestones throughout the project).
Scope of Subpoena: The subpoena issued to Keystone requests:
1. The subcontract agreement between Keystone and Meridian, including all amendments and task orders.
2. All traffic control permits obtained by or on behalf of Keystone or Meridian, and any records of permit denials, delayed approvals, or conditions imposed by municipalities.
3. Utility locate request records (811/One Call system), including request dates, locate completion dates, and any records of utility strikes (i.e., damage to existing underground utilities during construction).
4. Site restoration records, including before-and-after photographs, and any correspondence with municipalities regarding restoration complaints, re-restoration requirements, or fines.
5. Invoices and payment history, including any records of delayed payment or non-payment by Meridian.
Expected Relevance: Keystone's records serve several functions:
Traffic Control Permitting. Keystone's traffic control permit records will establish which entity was responsible for obtaining these permits and whether delays in the traffic control permitting process were attributable to Meridian's late or deficient permit applications or, as Meridian contends, to municipal processing delays or NFA's failure to act. These records will supplement the municipal permitting authority subpoenas discussed in Section IV below.
Utility Strikes. Records of utility strikes during construction could support Northgate's quality-defect narrative by demonstrating that Meridian's field operations were not conducted with adequate care and that third-party utilities were damaged during the construction process, further evidencing a pattern of deficient construction management.
Site Restoration Issues. Certain NCRs relate to inadequate site restoration — a contractual obligation of Meridian under the MCA. Keystone's records will establish the scope and quality of restoration work performed and any deficiencies identified by municipalities.
H. Subcontractor 7 — Atlas Telecom Installations LLC
Entity: Atlas Telecom Installations LLC
Principal Office: 55 Water Street, Suite 1100, New York, NY 10041
Work Performed: Atlas performed inside plant work, including fiber termination, equipment installation, and testing at hub sites and central offices for Phases 1 and 2 of the fiber build-out program.
Relevant Milestones: Milestones 2, 4, 6, and 7.
Scope of Subpoena: The subpoena issued to Atlas requests:
1. The subcontract agreement between Atlas and Meridian, including all amendments and task orders.
2. Work schedules and completion records for hub site and central office installations, including planned versus actual completion dates for each facility.
3. Records of delays in receiving fiber cable or equipment from Meridian, and any correspondence regarding supply chain disruptions affecting the availability of materials necessary for inside plant work.
4. Test and turn-up records for installed equipment, including acceptance testing protocols, test results, and records of any failures requiring remediation.
5. Any communications between Atlas and Meridian regarding schedule impacts from upstream outside plant construction delays, including notifications that inside plant work could not commence or be completed because outside plant construction was not yet finished on the corresponding segments.
Expected Relevance: Atlas's records will serve the following purposes:
Downstream Delay Effects. Atlas's records will demonstrate the downstream effects of Meridian's outside plant construction delays on inside plant completion at hub sites and central offices. Because inside plant work at a given facility could not be fully completed until the outside plant fiber was installed, spliced, and tested on the corresponding segments, delays in outside plant construction directly cascaded into delays in inside plant commissioning. Atlas's records documenting these cascading delays will reinforce the critical path analysis being developed by Dr. Elinor Chazen of Lakeview Consulting Group LLC, retained by NFA on October 15, 2024.
Force Majeure Assessment. Atlas's correspondence regarding supply chain disruptions — or the absence of such correspondence — will help evaluate Meridian's force majeure defense based on alleged COVID-19 aftereffects on fiber cable availability and labor supply. If Atlas was able to obtain materials and labor throughout the relevant period, this would undercut Meridian's force majeure claims.
IV. Subpoenas to Municipal Permitting Authorities (3 Subpoenas)
A. Overview
The allocation of responsibility for obtaining municipal permits is one of the central factual and legal disputes in this action. Meridian contends in its Verified Complaint and in its discovery responses that NFA's failure to timely obtain municipal permits was a principal cause of schedule delays across all three phases of the project. Meridian asserts that permitting was the Owner's responsibility under MCA § 5.3 and that NFA's failure to fulfill that obligation constitutes both a breach of the MCA and an Owner-caused delay excusing Meridian's schedule performance.
Northgate's position, as detailed in the memorandum titled "Analysis of Permitting Responsibilities Under MCA § 5.3," prepared by Jeffrey Park on September 28, 2024, is that the MCA allocates primary permitting responsibility to the Contractor (Meridian), with the Owner's (NFA's) obligation limited to two discrete functions: (i) providing governmental liaison support, including introductions to relevant municipal officials and attendance at pre-application meetings when requested; and (ii) executing permit applications where the Owner's signature as the property owner or right-of-way holder was legally required by the applicable municipality or regulatory body. Northgate contends that Meridian bore responsibility for preparing, submitting, and prosecuting permit applications in all other respects.
To resolve this factual dispute, three subpoenas have been issued to municipal permitting authorities in jurisdictions where the most significant permitting delays occurred. The objective is to obtain the complete permitting files and correspondence chains — including application submission dates, the identity of the applicant and submitting party, processing timelines, deficiency notices, and records of any stop-work orders — which will establish the factual record necessary to determine whether permitting delays were caused by Meridian's failure to timely prepare and submit applications, by NFA's failure to act, or by municipal processing delays beyond either party's control.
B. Permitting Authority 1 — City of Stamford, Connecticut — Department of Public Works
Entity: City of Stamford, Department of Public Works, Engineering Bureau
Address: 888 Washington Boulevard, Stamford, CT 06901
Scope of Subpoena: The subpoena directed to the City of Stamford requests the following:
1. All permit applications, approvals, denials, conditions of approval, and related correspondence pertaining to fiber-optic construction permits issued to or applied for by Meridian Infrastructure Partners LLC, Northgate Fiber Americas Inc., or any subcontractor acting on behalf of either entity in connection with the NFA fiber build-out project, covering the period from January 2021 through April 2024.
2. Records of application submittal dates, completeness review determinations, processing timelines (from initial submission to final action), inspection reports, and any stop-work orders issued in connection with the NFA project.
3. All correspondence between the City of Stamford and Meridian, NFA, or their subcontractors regarding permit deficiencies, incomplete applications requiring resubmittal, conditions of approval, bonding requirements, and any other permit-related matters.
Expected Relevance: Stamford was a significant concentration area for Phase 2 of the fiber build-out, encompassing the Connecticut portion of the project covered by Milestones 5 through 7. Meridian's Verified Complaint specifically alleges Owner-caused permitting delays in Stamford as a contributing factor to the Milestone 6 delay. The City's own records will establish definitively which entity submitted each permit application, the dates of submission, whether applications were complete upon initial submission or required resubmittal due to deficiencies, and the processing timeline from application to approval.
If the records show that Meridian (or its subcontractors, such as Tidewater or Keystone) were the entities that prepared and submitted permit applications — and that delays resulted from late submission or deficient applications — this evidence will be critical to rebutting Meridian's defense and supporting NFA's interpretation of MCA § 5.3. Conversely, if the records show that NFA submitted applications and did so late, Meridian's position would be bolstered, and we would need to evaluate the strength of NFA's response.
C. Permitting Authority 2 — Town of Hempstead, New York — Department of Engineering
Entity: Town of Hempstead, Department of Engineering
Address: 350 Front Street, Hempstead, NY 11550
Scope of Subpoena: The subpoena directed to the Town of Hempstead requests:
1. All permit applications, approvals, denials, conditions of approval, and related correspondence for right-of-way and street-opening permits in connection with the NFA fiber construction project, covering the period from April 2020 through December 2021 (the Phase 1 construction period).
2. Inspection reports, violation notices, and any records of enforcement actions relating to the NFA project within the Town of Hempstead.
3. Records identifying the applicant entity and signatory on each permit application submitted in connection with the NFA project.
Expected Relevance: Hempstead falls within the Phase 1 footprint (NY Metro and Northern New Jersey), where Milestone 3 was completed 47 days late. The contractual target date for Milestone 3 was August 28, 2021; actual completion was not achieved until October 14, 2021. This delay triggered $8.225 million in liquidated damages under MCA § 8.2(a), a sum that forms part of NFA's affirmative damages claim.
Meridian has asserted that the Phase 1 delays were partially attributable to permitting issues in several municipalities, including Hempstead. Specifically, in its February 2, 2024 response to Cure Notice No. 1, Meridian cited "significant permitting delays in the Town of Hempstead" as an excusable cause of delay. The Town's records will establish whether this assertion is factually supported — whether Meridian timely submitted permit applications in Hempstead, whether the applications were complete, and whether any delays in permit issuance were caused by NFA's failure to act or were instead attributable to Meridian's late or deficient applications, or to ordinary municipal processing timelines.
D. Permitting Authority 3 — Baltimore County, Maryland — Department of Permits, Approvals and Inspections
Entity: Baltimore County, Department of Permits, Approvals and Inspections
Address: 111 West Chesapeake Avenue, Suite 200, Towson, MD 21204
Scope of Subpoena: The subpoena directed to Baltimore County requests:
1. All permit applications, approvals, denials, and correspondence relating to fiber-optic and telecommunications infrastructure construction permits filed in Baltimore County in connection with the NFA project, covering the period from January 2023 through April 2024 (the Phase 3 construction period).
2. Records of pre-application meetings, application completeness reviews, and any requests for expedited processing submitted by or on behalf of Meridian, NFA, or their subcontractors.
3. Any correspondence between Baltimore County and Tidewater Engineering & Design LLC (Meridian's Phase 3 engineering subcontractor) regarding permit submissions, application deficiencies, or required supplemental materials.
Expected Relevance: Baltimore County was an early mobilization area for Phase 3 of the fiber build-out (the Maryland portion). NFA's records indicate that Meridian made only minimal construction progress in Phase 3 before NFA terminated the MCA on April 1, 2024 — approximately 340 of 9,700 planned route miles (3.5%) were constructed. Meridian attributes this lack of progress in significant part to permitting delays, while NFA contends that the lack of progress was caused by Meridian's own engineering delays — specifically, the late delivery of Tidewater design packages that were a prerequisite to permit application submission.
Baltimore County's records will establish the timeline of permit applications in this jurisdiction — when applications were submitted, by whom, whether they were complete, and how long the County took to process them. These records will be cross-referenced with Tidewater's production (Subcontractor 5, discussed above in Section III.F) to establish the precise sequencing of engineering completion, permit application submission, and permit issuance. If the records show that permit applications were submitted late because the engineering design packages were not completed on time, NFA's position — that Meridian's engineering delays were the root cause — will be strongly supported.
V. Service and Compliance Details
A. Method of Service
All ten subpoenas were served by hand delivery via a licensed process server, ACS Process Service Inc., between October 14 and October 18, 2024, in compliance with the requirements of CPLR § 2303. Affidavits of service have been prepared by the process server and are maintained in the case file.
Simultaneously with service on each third-party recipient, copies of each subpoena were provided to Hargrove, Deluca & Stein LLP, specifically to Thomas Deluca, Esq. and Miriam Vasquez, Esq., via email (to tdeluca@hdslaw.com and mvasquez@hdslaw.com) and by first-class mail to HDS's principal office at 600 Third Avenue, 22nd Floor, New York, NY 10016, consistent with the requirements of the Preliminary Conference Order.
B. Return Dates
The return dates for the ten subpoenas have been staggered as follows:
Subcontractor Subpoenas (7 subpoenas): Return date of November 18, 2024, which is 35 days from the earliest date of service (October 14, 2024), exceeding the 30-day minimum set by the Preliminary Conference Order.
Municipal Permitting Authority Subpoenas (3 subpoenas): Return date of November 25, 2024, allowing an additional seven days beyond the subcontractor return date to accommodate the additional processing time typically required by governmental entities. With respect to the municipal subpoenas, CPLR § 2307 requires that a subpoena to a governmental agency be accompanied by a motion or court order authorizing the production. We filed motions for judicial subpoenas on October 14, 2024, and obtained the necessary orders from Justice Ricci on October 15, 2024, in Part 49 of the Commercial Division. Certified copies of the court orders were served on the three municipal entities along with the subpoenas.
C. Objections and Anticipated Issues
We anticipate several potential objections and practical issues in connection with these subpoenas:
Subcontractor Objections — Burden and Confidentiality. One or more subcontractors may object to the subpoenas on the grounds of undue burden or on the basis that their subcontract agreements contain proprietary pricing information that constitutes confidential business information. We are prepared to negotiate the production of subcontract agreements with financial terms redacted if the subcontractor's pricing is not directly relevant to the issues in the case. However, where payment records are specifically sought — as with Appalachian Boring — we will resist any overbroad confidentiality objections on the ground that Meridian's payment practices are directly relevant to delay causation and the financial distress defense.
Motion to Quash by HDS. Meridian's counsel, HDS, may move to quash one or more of the subpoenas on relevance or burden grounds. We anticipate that HDS may particularly challenge the subpoenas seeking Meridian's payment records to subcontractors, arguing that such records are not relevant to any claim or defense. We should be prepared to demonstrate the relevance of subcontractor payment records to Meridian's financial distress and its impact on workforce availability and crew continuity, which are central issues in the delay analysis. A motion to quash is most likely to be filed within 20 days of the date on which HDS received the courtesy copies (i.e., by approximately November 7, 2024).
Municipal Compliance Costs. Municipal entities may require payment of search and copying fees before they will process the subpoena and produce responsive records. Based on our experience with similar governmental subpoenas, we estimate compliance costs of approximately $2,500 to $5,000 per municipal entity, for a total estimated cost of $7,500 to $15,000 across the three municipal subpoenas. These costs should be budgeted as third-party discovery expenses and charged to the matter.
VI. Coordination with Expert Work
The records sought by the ten third-party subpoenas are integral to the analyses being performed by NFA's two retained experts:
Dr. Elinor Chazen — Critical Path / Delay Analysis (Lakeview Consulting Group LLC, retained October 15, 2024). Dr. Chazen is developing a critical path methodology ("CPM") delay analysis to identify the causes of delay to each milestone and to allocate those delays between Owner-caused events, Contractor-caused events, and concurrent delays. Subcontractor daily logs, production records, crew staffing data, and the permitting timelines obtained from the municipal authorities will be essential inputs for Dr. Chazen's analysis. These records will allow her to populate the as-built schedule with contemporaneous data showing actual work progress, work stoppages, and the sequencing of permitting activities relative to construction activities.
We recommend that all subcontractor field records be prioritized for processing by Vantage Litigation Support LLC immediately upon receipt and that processed records be made available to Dr. Chazen's team on a rolling basis to facilitate her analysis without waiting for all productions to be complete.
Prof. Gordon Whitfield — Damages Analysis (Pinnacle Economics LLC, retained November 1, 2024). Prof. Whitfield is preparing a damages analysis addressing both NFA's affirmative damages claims and rebuttal of Meridian's lost-profits claim. Subcontractor payment records and invoicing data are relevant to the quantification of remediation costs underlying Counterclaim III ($18.3 million). These records may also inform Prof. Whitfield's analysis of Meridian's actual project costs versus its claimed lost profits, which is relevant to evaluating the reasonableness and credibility of Meridian's damages model.
The current case schedule provides that expert reports are due on March 31, 2025, with rebuttal reports due on May 15, 2025. The subpoena return dates of November 18 and November 25, 2024, provide approximately four months of lead time before the expert report deadline, which should be adequate for processing, review, and integration of the third-party productions into the expert analyses, provided there are no significant compliance delays.
VII. Document Processing and Review Plan
Upon receipt, all third-party productions will be handled in accordance with the following processing and review plan:
Processing. All productions will be forwarded immediately to Vantage Litigation Support LLC for processing in accordance with the specifications established in the Stipulated E-discovery Protocol and ESI Agreement. Vantage will apply standard processing protocols, including text extraction, OCR for image-only files, metadata extraction, and de-duplication against the existing party productions to identify documents that may already be in the review universe. De-duplication will be performed at the document level using MD5 hash values, with near-duplicate identification performed at the custodian level to preserve custodian-specific metadata.
Review. The review team, consisting of Jeffrey Park (senior associate) and Yuki Nakamura (associate), will conduct first-level review of the third-party productions. Depending on the volume of productions received, contract reviewer assistance may be engaged through Vantage's staffing resources. All reviewers will apply the same coding categories established in the Document Review Protocol and Coding Manual, dated October 5, 2024, to ensure consistency with the coding applied to party productions.
Confidentiality Designations. Confidentiality designations will be applied to third-party produced documents in accordance with Section 4(c) of the Confidentiality Stipulation filed October 1, 2024. NFA will have 14 business days from receipt of each third-party production to apply any confidentiality designations.