CALDERWOOD & HARKNESS LLP Attorneys at Law
425 Park Avenue, 33rd Floor New York, New York 10022
Telephone: (212) 554-7000 Facsimile: (212) 554-7001 www.calderwoodharkness.com
September 10, 2024
Mr. David Cerrone Managing Director Vantage Litigation Support LLC 300 Vesey Street, Suite 600 New York, New York 10282
Re: Engagement of Vantage Litigation Support LLC for E-discovery Services
Matter: Meridian Infrastructure Partners LLC v. Northgate Fiber Americas Inc. Court: Supreme Court of the State of New York, New York County, Commercial Division Index No.: 654321/2024 C&H Matter No.: 1022-00005
Dear Mr. Cerrone:
This letter (this "Engagement Letter" or "Agreement") sets forth the terms and conditions under which Calderwood & Harkness LLP ("C&H" or the "Firm") engages Vantage Litigation Support LLC ("Vantage" or "Vendor") to provide electronic discovery hosting, processing, document review platform, and production services in connection with the above-referenced matter. We appreciate Vantage's responsiveness during our preliminary discussions and look forward to a productive working relationship on this significant engagement.
1. PURPOSE AND ENGAGEMENT
Calderwood & Harkness LLP, on behalf of its client Northgate Fiber Americas Inc. ("NFA"), a Delaware corporation (Delaware Division of Corporations File No. 7182934), hereby engages Vantage Litigation Support LLC to provide electronic discovery hosting, processing, document review platform, and production services in connection with the above-referenced action, Meridian Infrastructure Partners LLC v. Northgate Fiber Americas Inc., Index No. 654321/2024, pending before the Supreme Court of the State of New York, New York County, Commercial Division (the "Matter"). This engagement shall be effective as of September 10, 2024 (the "Effective Date").
NFA is a wholly owned subsidiary of Northgate Telecommunications PLC ("Northgate" or "NTP"), a public limited company incorporated in England and Wales (Companies House Registration No. 08234517), whose ordinary shares are listed on the London Stock Exchange (ticker: NTP) and whose American Depositary Receipts ("ADRs") are traded on the Nasdaq Stock Market (ticker: NTPLF). NFA's principal office is located at 600 Lexington Avenue, 28th Floor, New York, New York 10022. NFA is the named defendant and the contracting entity with respect to this engagement; however, all strategic direction, billing oversight, and ultimate client approval rest with the broader Northgate organization as described below.
The primary client contact for this engagement is Dominic Hale, General Counsel of Northgate Telecommunications PLC, who maintains supervisory authority over NFA's litigation matters. The C&H attorneys responsible for this matter are as follows:
• Responsible Partner: Linda Osei
• Billing Partner: Priya Anand
• Lead Associate: Jeffrey Park
• Working Associate: Yuki Nakamura
All strategic direction to Vantage regarding the scope, timing, and prioritization of services shall be provided by C&H on behalf of NFA. Vantage shall not take direction from, or communicate regarding substantive aspects of the Matter with, any party other than the designated C&H contacts listed herein without the prior written consent of C&H.
2. BACKGROUND OF THE MATTER
This Section provides a summary of the litigation to enable Vantage to understand the context in which its services will be rendered. The information set forth below is confidential and is provided solely for purposes of facilitating Vantage's performance under this Agreement.
Meridian Infrastructure Partners LLC ("Meridian"), a Delaware limited liability company (Delaware Division of Corporations File No. 6439821), has commenced a breach-of-contract action against NFA in the Supreme Court of the State of New York, New York County, Commercial Division, seeking approximately $200 million in damages. The action arises from NFA's termination, effective April 1, 2024, of a five-year, $1.2 billion Master Construction Agreement dated March 15, 2020 (the "MCA"). Pursuant to the MCA, Meridian was retained to design and construct approximately 18,500 route miles of fiber-optic cable across a seven-state northeastern United States footprint encompassing New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia (the "Project").
NFA contends that the termination was justified due to Meridian's material breach of the MCA, including persistent and worsening schedule delays, substandard workmanship evidenced by 287 non-conformance reports (43 of which were classified as critical under the MCA's quality assurance framework, Northgate Technical Specification NS-FIBER-2020), and Meridian's repeated failure to meet milestone deliverables set forth in the MCA's master project schedule. NFA has filed counterclaims against Meridian totaling $149 million, comprising liquidated damages of $49 million, excess completion costs of $81.7 million, and remediation costs of $18.3 million.
Plaintiff Meridian is represented by Hargrove, Deluca & Stein LLP, 51 West 52nd Street, 40th Floor, New York, New York 10019, with Thomas Deluca serving as lead partner on the matter. The case has been assigned to the Honorable Eleanor M. Ricci in Part 49 of the Supreme Court, New York County, located at 60 Centre Street, New York, New York 10007.
A Preliminary Conference has been scheduled for October 1, 2024, at which the Court is expected to set the discovery schedule, including deadlines for document production, depositions, expert disclosures, and pre-trial motions. C&H and Hargrove, Deluca & Stein LLP are currently negotiating a stipulated E-discovery Protocol (the "ESI Protocol") and a Stipulated Confidentiality Order, both of which are anticipated to be submitted to the Court at or around the time of the Preliminary Conference. Vantage's services will be provided in accordance with the terms of the ESI Protocol and Confidentiality Order once entered.
3. SCOPE OF SERVICES
Vantage shall provide the following services in connection with the Matter, as directed by C&H. The scope of services described below is intended to be comprehensive but may be expanded or modified by mutual written agreement as the litigation progresses.
3.1 Data Collection Support
Vantage shall provide assistance with the forensic collection of electronically stored information ("ESI") from NFA and Northgate custodians and data sources, as directed by C&H. All collections shall be performed using defensible, forensically sound methodologies and in accordance with industry best practices. Vantage shall document all collection activities, including chain-of-custody records, to ensure the defensibility of collected materials.
The anticipated custodian count at the outset of this engagement is ten (10) Northgate/NFA custodians, including but not limited to the following individuals:
(a) Renata Voss — Vice President, US Network Infrastructure, NFA
(b) Sean Calloway — Director, Construction Management, NFA
(c) Helena Bright — Chief Financial Officer, NTP
(d) Dominic Hale — General Counsel, NTP
Additional custodians are expected to be identified as the discovery process proceeds and are listed in further detail in Exhibit A to this Engagement Letter.
Data sources for collection are anticipated to include, without limitation:
(i) Strathmore Data Systems and/or Ashbury Software email servers;
(ii) network file shares and shared drives maintained by NFA and NTP;
(iii) Aldermere Systems and other Halcyon Services Inc. platforms;
(iv) mobile devices (smartphones, tablets) issued to identified custodians;
(v) cloud-based repositories, including data stored within the NorthConnect SaaS platform utilized by NFA for network planning and deployment tracking; and
(vi) construction management systems, including Glenrock Health IT and Harborline Software instances used in connection with the Project.
Vantage should anticipate significant data volumes. Based on preliminary assessments conducted by NFA's information technology department, the estimated total data volume from Northgate/NFA custodians and data sources is approximately 3.2 terabytes (TB), encompassing an estimated 1.4 million documents. These figures are preliminary and subject to revision as collections proceed.
3.2 Data Processing
Vantage shall perform ingestion, de-duplication (at both the global and custodian level), de-NISTing (removal of system files using the National Institute of Standards and Technology's National Software Reference Library), extraction of metadata, text extraction, and optical character recognition ("OCR") for image-based files. Processing shall be performed in accordance with the stipulated ESI Protocol to be agreed between C&H and Hargrove, Deluca & Stein LLP and filed with the Court, which is anticipated to be finalized at or following the October 1, 2024 Preliminary Conference. Until such time as the ESI Protocol is entered, Vantage shall process data in accordance with industry-standard e-discovery processing protocols and C&H's instructions.
Vantage shall support the processing of the following file types, at a minimum:
(a) Standard email formats, including PST, MSG, and EML;
(b) Microsoft Office suite documents (Word, Excel, Northgate Services Inc., OneNote, and Visio);
(c) Adobe Portable Document Format (PDF) files, including both text-based and image-based PDFs;
(d) Computer-aided design (CAD) and engineering files, which are particularly relevant to the fiber construction drawings and specifications produced under the Project, including files associated with Northgate Technical Specification NS-FIBER-2020;
(e) Project management files, including Tarrant Data Systems (.xer and .xml), Sundial Health IT (.mpp), and related scheduling exports;
(f) Image formats, including JPEG, PNG, TIFF, and BMP (relevant to inspection photographs and site documentation); and
(g) Compressed archives (ZIP, RAR, 7Z) and their contents.
Vantage shall provide processing exception reports identifying any files that cannot be processed due to corruption, password protection, or unsupported format, and shall work with C&H to resolve such exceptions in a timely manner.
3.3 Hosting and Review Platform
Vantage shall provide a secure, cloud-based document review platform (the "Review Platform") for use by C&H review teams in connection with the Matter. The Review Platform shall meet the following requirements:
Advanced Analytics. The Review Platform must support advanced analytics capabilities, including:
(a) Predictive coding and/or technology-assisted review ("TAR"), including continuous active learning ("CAL") and simple active learning ("SAL") workflows;
(b) Concept clustering for organizing documents by subject matter;
(c) Email threading to group related email conversations and suppress duplicative content;
(d) Near-duplicate identification for textual documents; and
(e) Communication analysis and visualization tools for mapping custodian relationships and communication patterns.
User Capacity. The Review Platform shall support a minimum of twenty (20) concurrent user seats for C&H attorneys, contract reviewers, and authorized client personnel.
Role-Based Access Controls. Vantage shall configure the Review Platform with role-based access controls, providing separate and distinct permission levels for the following user categories, at a minimum:
(i) Partners (full administrative and review access);
(ii) Associates (review, coding, and reporting access);
(iii) Contract reviewers (review and coding access only, with restricted export capabilities);
(iv) Experts (access limited to designated expert review workspaces, as described in Section 3.7); and
(v) Client users (read-only access to designated document sets, as directed by C&H).
Coding Integration. The Review Platform shall integrate with C&H's document review coding protocol, which shall include, at a minimum, coding categories for responsiveness (responsive/not responsive/further review), privilege (attorney-client privilege, work product, joint defense, not privileged), confidentiality designations per the stipulated Confidentiality Order (Confidential, Highly Confidential — Attorneys' Eyes Only, or not designated), and issue-specific coding tags to be developed by C&H and communicated to Vantage.
System Performance. The Review Platform shall maintain an uptime of no less than 99.5% measured on a monthly basis, excluding scheduled maintenance windows. Vantage shall provide reasonable advance notice of any scheduled maintenance that may affect platform availability.
3.4 Privilege Review Support
Vantage shall configure and maintain a dedicated privilege review workspace within the Review Platform with quality control functionality to support C&H's privilege review process. This workspace shall include the following capabilities:
(a) Automated privilege log generation tools, enabling extraction of privilege log entries for documents coded as privileged, with supporting fields for custodian, document date, author, recipient(s), CC recipient(s), BCC recipient(s), document type, and privilege description;
(b) Quality control workflows enabling senior attorneys to verify and approve privilege designations prior to log finalization;
(c) Reporting tools to track privilege review progress and identify potential inconsistencies in privilege coding; and
(d) Export functionality for privilege log data in formats compatible with standard court filing requirements and opposing counsel production.
As of the date of this engagement, Northgate anticipates that approximately 214 documents will be logged on attorney-client privilege and/or work product grounds based on preliminary assessments. This figure is expected to increase as additional custodian data is collected and reviewed. Vantage shall be prepared to support a privilege log of substantially greater volume as the review proceeds.
Vantage shall also support clawback procedures consistent with the agreed-upon ESI Protocol and applicable court rules, including Federal Rule of Evidence 502(d) protections if incorporated into the parties' stipulation or court order, and the analogous provisions under New York law.
3.5 Production Services
Vantage shall prepare and execute document productions as directed by C&H, including the following services:
(a) Conversion of responsive, non-privileged documents to TIFF format with accompanying load files (including Concordance/Relativity-compatible DAT files, OPT files, and extracted or OCR text files), or production in native format for spreadsheets, presentation files, and certain other file types as specified in the ESI Protocol;
(b) Application of Bates numbering in accordance with C&H's designated prefix scheme (anticipated prefix: NFA-);
(c) Application of confidentiality designation endorsements ("CONFIDENTIAL" and "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY") in accordance with the stipulated Confidentiality Order;
(d) Rolling productions on a schedule directed by C&H, coordinated with discovery deadlines set by the Court; and
(e) Quality assurance checks prior to each production to verify completeness, accuracy of Bates numbering, proper endorsement application, and load file integrity.
In addition to outgoing productions, Vantage shall be responsible for the intake and processing of opposing-party productions received from Meridian. Based on preliminary estimates provided by Hargrove, Deluca & Stein LLP, Meridian's productions are anticipated to comprise approximately 890,000 documents totaling approximately 1.8 TB. Vantage shall also process and host documents received in response to third-party subpoenas issued to seven (7) Meridian subcontractors and three (3) municipal permitting authorities. Vantage shall perform cross-referencing and de-duplication between all party and third-party productions to eliminate redundancies and facilitate efficient review.
3.6 Third-Party Subpoena Document Support
C&H anticipates serving third-party subpoenas for documents on approximately seven (7) subcontractors engaged by Meridian in connection with the Project and three (3) municipal permitting authorities in jurisdictions where fiber construction was underway at the time of termination. Vantage shall process and host all documents received in response to these third-party subpoenas, integrating them into the unified Review Platform. Vantage shall apply appropriate source identifiers and metadata tagging to distinguish third-party documents from party productions and shall ensure that third-party documents are readily searchable and reviewable alongside the primary document universe.
3.7 Expert Witness Support
Vantage shall create and maintain segregated expert review workspaces within the Review Platform for defense experts retained by C&H on behalf of NFA. As of the Effective Date, two defense experts have been identified:
(a) Dr. Elinor Chazen, Lakeview Consulting Group LLC — construction and delay expert, with anticipated retention date of October 15, 2024; and
(b) Professor Gordon Whitfield, Pinnacle Economics LLC — damages expert, with anticipated retention date of November 1, 2024.
Expert workspaces shall be configured with controlled document sharing capabilities, enabling C&H to selectively populate each expert's workspace with designated document sets while maintaining privilege and work product protections. Documents shared to expert workspaces shall be tracked and logged to preserve a clear record of materials provided to each expert, which is critical for disclosure obligations and for responding to any challenges to expert testimony. Vantage shall also provide export functionality to support each expert's preparation of expert reports, including the ability to export documents, metadata, and search results in usable formats.
3.8 Trial Support (Future Phase)
Subject to a supplemental statement of work to be negotiated and executed by the parties at a later date, Vantage shall provide trial preparation and trial support services, which are anticipated to include exhibit management, hot-seat and real-time trial presentation support, and courtroom technology setup and operation. The trial window is currently estimated at six (6) weeks, with trial anticipated to commence in November 2025 before the Supreme Court of the State of New York, New York County, at 60 Centre Street, New York, New York 10007. The detailed scope, staffing, equipment requirements, and pricing for trial support services shall be defined in the supplemental statement of work, which shall be executed no later than sixty (60) days prior to the anticipated trial date.
4. PRICING AND FEE STRUCTURE
The following pricing terms shall apply to services rendered by Vantage under this Agreement. All fees are stated in United States dollars. Unless otherwise indicated, fees are exclusive of applicable sales or use taxes, which shall be invoiced separately if applicable.
4.1 Processing Fees
Vantage shall charge a per-gigabyte processing fee for ingestion, de-duplication, de-NISTing, metadata extraction, text extraction, and OCR services. The applicable processing rate is set forth in Exhibit C (Rate Card) attached hereto. Based on the estimated initial processing volume of approximately 3.2 TB for Northgate/NFA data and approximately 1.8 TB for Meridian and third-party data intake, the aggregate estimated processing fees are set forth in the preliminary cost estimate contained in Exhibit B. Actual processing fees will be calculated based on actual data volumes processed.
4.2 Hosting Fees
Vantage shall charge a monthly per-gigabyte hosting fee for all data hosted on the Review Platform. The applicable hosting rate is set forth in Exhibit C (Rate Card) attached hereto. Hosting fees shall commence upon the initial data load to the Review Platform and shall continue on a monthly basis through the final disposition of the Matter (including any appeals) or until C&H provides written instruction to Vantage to remove data from the platform, whichever occurs first. Hosting fees shall be calculated based on the total volume of data hosted at the end of each calendar month.
4.3 Review Platform Licensing
Vantage shall charge a monthly licensing fee for the Review Platform, inclusive of up to twenty (20) concurrent user seats. The TAR and advanced analytics module is included in the base platform licensing fee at no additional charge. The applicable platform licensing rate is set forth in Exhibit C (Rate Card) attached hereto. Should C&H require additional concurrent user seats beyond the initial twenty (20), additional seats may be added at the per-seat rate specified in Exhibit C.
4.4 Production Fees
Vantage shall charge a per-document production fee for TIFF conversion, Bates stamping, confidentiality endorsement application, and load file creation. Production of documents in native format shall be provided at no additional per-document charge beyond the standard production fee. The applicable production rates are set forth in Exhibit C (Rate Card) attached hereto. Production fees shall be calculated based on the actual number of documents produced in each production set.
4.5 Project Management
Vantage shall assign a dedicated senior project manager to the Matter as the primary day-to-day point of contact for C&H. Project management fees are included in the monthly platform licensing fee set forth in Section 4.3 and Exhibit C, and no separate hourly or monthly project management charge shall apply to routine project management activities. Should C&H request project management services beyond the scope of routine activities (e.g., custom reporting, attendance at court-ordered conferences, or after-hours availability), such services shall be billed at the hourly rate specified in Exhibit C. The named project manager contact at Vantage for this engagement is Natalie Chen, Senior Project Manager.
4.6 Expert and Trial Support
Expert workspace setup shall be charged as a one-time fee per workspace, as specified in Exhibit C (Rate Card). This fee covers the configuration, access control setup, and initial document population of each expert workspace. Ongoing hosting of expert workspace data is included in the general hosting fees set forth in Section 4.2.
Trial support services, as described in Section 3.8, shall be scoped and priced separately in a supplemental statement of work to be negotiated and executed by the parties in advance of trial preparation.
4.7 Invoicing and Payment
Vantage shall submit invoices to Calderwood & Harkness LLP on a monthly basis, in arrears, for all services rendered and costs incurred during the preceding calendar month. Each invoice shall include a detailed breakdown of charges by service category, data volume, and applicable rates, and shall reference C&H Matter No. 1022-00005.
Payment shall be due within thirty (30) days of C&H's receipt of each invoice ("Net 30"). Invoices shall be submitted electronically to C&H's accounts payable department at the address specified in Section 12.4 of this Agreement. Late payments shall accrue interest at the rate of one percent (1%) per month, or the maximum rate permitted by applicable law, whichever is less.
C&H notes for Vantage's information that this engagement falls within NFA's overall litigation budget for the Matter, which has been estimated at $8.5 million to $11.2 million through trial, with expert costs of $2.4 million to $3.1 million budgeted separately. Vantage's fees and costs are encompassed within the overall litigation budget. Additionally, Ironclad Surety Group Inc., NFA's surety carrier, has agreed, under reservation of rights, to contribute up to $2 million toward NFA's defense costs, a portion of which may be allocated to offset e-discovery expenses incurred under this Agreement. The foregoing budget information is provided for context only and does not create any cap on Vantage's fees or any third-party payment obligation running to Vantage; C&H remains solely responsible for payment of all invoices submitted by Vantage hereunder.
5. DATA SECURITY AND CONFIDENTIALITY
5.1 Confidentiality Obligations
Vantage acknowledges and agrees that all data, documents, and information provided to Vantage or to which Vantage obtains access in connection with this engagement (collectively, "Client Data") may be subject to the attorney-client privilege, the work product doctrine, and/or the Stipulated Confidentiality Order anticipated to be entered in the Matter. Vantage shall treat all Client Data as strictly confidential and shall not disclose, disseminate, or provide access to Client Data to any third party except as expressly directed by C&H in writing.
Upon entry of the Stipulated Confidentiality Order by the Court (anticipated on or about October 1, 2024), Vantage shall comply with all provisions thereof applicable to vendors and service providers, including but not limited to the handling, marking, storage, and access restrictions applicable to materials designated as "Confidential" and "Highly Confidential — Attorneys' Eyes Only." To the extent required by the Confidentiality Order, Vantage and each of its employees, contractors, and agents with access to Client Data shall execute the acknowledgment form appended to the Confidentiality Order.
5.2 Information Security Standards
Vantage shall maintain information security standards and protocols consistent with or exceeding the following requirements:
(a) SOC 2 Type II Certification. Vantage shall maintain a current System and Organization Controls (SOC) 2 Type II certification (or equivalent third-party attestation) covering the security, availability, and confidentiality trust service criteria. Vantage shall provide a copy of its most recent SOC 2 Type II report to C&H upon request.
(b) Encryption. All Client Data shall be encrypted both at rest and in transit using Advanced Encryption Standard (AES) with a minimum key length of 256 bits (AES-256) or equivalent encryption standard.
(c) Multi-Factor Authentication. Access to the Review Platform and all systems containing Client Data shall require multi-factor authentication (MFA) for all users, including Vantage personnel, C&H users, and any other authorized users.
(d) Penetration Testing. Vantage shall conduct regular penetration testing of its systems and infrastructure, no less frequently than annually, and shall promptly remediate any material vulnerabilities identified.
(e) Data Center Location. All data centers in which Client Data is stored or processed shall be located within the United States. Vantage shall not transfer Client Data to any data center or facility located outside the United States without C&H's prior written consent.
(f) Annual Security Audit. Vantage shall make available to C&H, upon request, the results of its most recent annual third-party security audit or assessment, subject to reasonable confidentiality protections.
5.3 Data Breach Notification
In the event of any suspected or confirmed security breach, unauthorized access, or unauthorized disclosure involving Client Data (a "Data Breach"), Vantage shall notify C&H in writing within twenty-four (24) hours of Vantage's discovery of the Data Breach. Such notification shall include, to the extent known at the time, a description of the nature and scope of the breach, the categories and approximate volume of data affected, the measures taken or proposed to be taken to address the breach, and a contact person at Vantage for ongoing communications regarding the incident.
Vantage shall cooperate fully with C&H and with NFA in any investigation, remediation, and notification efforts arising from a Data Breach, including providing access to logs, forensic analysis, and such other information as C&H may reasonably request. Vantage shall bear the costs of investigation and remediation to the extent the Data Breach is attributable to Vantage's acts or omissions.
5.4 Access Controls
All Vantage personnel who will have access to Client Data in connection with this engagement must sign individual confidentiality acknowledgment forms, copies of which shall be provided to C&H upon request. Access to Client Data shall be limited to Vantage personnel with a demonstrable need-to-know basis, and Vantage shall promptly revoke access for any personnel who no longer require access to Client Data (including upon termination of employment or reassignment from the engagement).
Vantage shall maintain detailed access logs reflecting all user access to the Review Platform and underlying data stores, including login timestamps, user identities, and actions performed. Such access logs shall be retained for the duration of the engagement and for a period of no less than one (1) year following termination of the engagement, and shall be made available to C&H upon reasonable request.
6. DATA RETENTION, RETURN, AND DESTRUCTION
Upon the completion of this engagement, or at any time upon C&H's written instruction, Vantage shall, at C&H's election, either: (a) return all Client Data to C&H in a format and on media reasonably specified by C&H, or (b) securely destroy all Client Data in Vantage's possession, custody, or control using methods consistent with NIST Special Publication 800-88 (Guidelines for Media Sanitization) or equivalent industry-standard data destruction protocols.
Within fifteen (15) business days following the completion of data return or destruction, Vantage shall provide C&H with a written certification, signed by an authorized officer of Vantage, confirming that all Client Data has been returned or destroyed in accordance with this Section, and specifying the methods used for destruction.
Notwithstanding the foregoing, Vantage may retain one (1) archival copy of Client Data solely to the extent required to comply with applicable regulatory or legal requirements, provided that: (i) such archival copy is maintained subject to the continuing confidentiality obligations set forth in Section 5 of this Agreement; (ii) access to such archival copy is restricted to Vantage personnel with a specific need to access such data for compliance purposes; and (iii) Vantage notifies C&H in writing of its intent to retain such archival copy and the regulatory basis therefor.
Following C&H's written instruction to return or destroy Client Data, Vantage shall complete such return or destruction within sixty (60) days of receipt of such instruction (the "Data Disposition Period"). Any Client Data remaining in Vantage's possession after the expiration of the Data Disposition Period (other than a permitted archival copy as described above) shall be deemed to be held in violation of this Agreement.
7. STAFFING AND PROJECT MANAGEMENT
Vantage shall assign a dedicated senior project manager as the primary operational point of contact for all day-to-day matters arising under this engagement. The designated Vantage contacts for this engagement are as follows:
Engagement Oversight: David Cerrone, Managing Director
Email: dcerrone@vantagelitsupport.com
Direct: (212) 487-3400
Day-to-Day Project Management: Natalie Chen, Senior Project Manager
Email: nchen@vantagelitsupport.com
Direct: (212) 487-3425
The primary C&H contacts for this engagement are:
Day-to-Day Coordination: Jeffrey Park, Lead Associate
Email: jpark@calderwoodharkness.com
Direct: (212) 554-7189
Yuki Nakamura, Working Associate
Email: ynakamura@calderwoodharkness.com
Direct: (212) 554-7214
Escalation. Any issues that cannot be resolved at the project manager/associate level shall be escalated to Linda Osei (Responsible Partner) and Priya Anand (Billing Partner) on the C&H side, and to David Cerrone (Managing Director) on the Vantage side. Vantage shall not substitute key personnel assigned to this engagement, including the project manager, without providing C&H with at least ten (10) business days' prior written notice and the opportunity to approve any proposed replacement.
8. REPRESENTATIONS AND WARRANTIES
Vantage represents and warrants to C&H as follows:
(a) No Conflicts of Interest. Vantage represents and warrants that it has conducted a thorough conflicts check and has determined that it has no conflicts of interest with respect to any parties in the Matter, including but not limited to Meridian Infrastructure Partners LLC, Ridgepoint Capital Group LP, Hargrove, Deluca & Stein LLP, Ironclad Surety Group Inc., Dralvecen Commercial Finance LLC, Crestline Construction Group Inc., and any other entity or individual identified in the pleadings, discovery requests, or subpoenas issued in connection with the Matter. Vantage shall promptly notify C&H if any conflict of interest arises or is discovered during the course of the engagement.
(b) Technical Capacity. Vantage represents and warrants that it possesses the technical capacity, infrastructure, and personnel necessary to handle the anticipated data volumes associated with this engagement, including combined data volumes in excess of five (5) terabytes and combined document counts in excess of two (2) million documents. Vantage further represents that its systems and infrastructure are scalable to accommodate increases in data volume or user demand that may arise during the course of the engagement.
(c) Staffing. Vantage represents and warrants that it will assign qualified, experienced personnel to this engagement who possess the technical skills and professional competence necessary to perform the services described herein.
(d) Compliance with Law. Vantage represents and warrants that it is in compliance with all applicable federal, state, and local laws and regulations regarding data handling, data privacy, information security, and electronic discovery, including but not limited to any applicable provisions of the New York State Technology Law, the Stored Communications Act (18 U.S.C. §§ 2701–2712), and any applicable data protection regulations.
(e) Authorization. Vantage represents and warrants that it is a limited liability company duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization, and that the execution and performance of this Agreement have been duly authorized by all necessary action.
9. LIMITATION OF LIABILITY AND INDEMNIFICATION
9.1 Limitation of Liability
Except in cases of gross negligence, willful misconduct, or breach of Vantage's confidentiality or data security obligations under Section 5, Vantage's aggregate liability to C&H and NFA under this Agreement shall not exceed three times (3x) the total fees actually paid by C&H to Vantage under this Agreement during the twelve (12) month period immediately preceding the event giving rise to the claim.
9.2 Exclusion of Consequential Damages
In no event shall either party be liable to the other for any indirect, consequential, incidental, special, or punitive damages arising out of or related to this Agreement, including but not limited to lost profits, loss of data (except to the extent caused by Vantage's failure to comply with its obligations hereunder), or business interruption, regardless of the form of action or theory of liability, even if such party has been advised of the possibility of such damages. This limitation shall not apply to damages arising from a party's breach of confidentiality obligations, willful misconduct, or gross negligence.
9.3 Mutual Indemnification
Each party (the "Indemnifying Party") shall indemnify, defend, and hold harmless the other party and its officers, directors, members, partners, employees, and agents (collectively, the "Indemnified Parties") from and against any and all third-party claims, demands, actions, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' fees) arising out of or resulting from the Indemnifying Party's: (a) material breach of any representation, warranty, or obligation set forth in this Agreement; (b) negligence or willful misconduct in the performance of its obligations hereunder; or (c) violation of applicable law.
9.4 Insurance. Vantage shall maintain, at its own expense, throughout the term of this engagement, professional liability and errors and omissions insurance with minimum coverage of $5 million per occurrence and $10 million in the aggregate, issued by an insurer with an A.M. Best rating of "A-" or better. Vantage shall also maintain commercial general liability insurance with minimum coverage of $2 million per occurrence. Upon C&H's request, Vantage shall provide certificates of insurance evidencing such coverage.
10. TERM AND TERMINATION
10.1 Term. This engagement shall commence on September 10, 2024, and shall continue until the earliest of: (a) the final disposition of the Matter, including the resolution of any appeals; (b) the mutual written agreement of C&H and Vantage to terminate the engagement; or (c) thirty (30) days following written notice of termination delivered by either party to the other.
10.2 Effect of Termination
Upon termination of this engagement for any reason, the data return and destruction obligations set forth in Section 6 shall apply. Vantage shall be entitled to payment for all services rendered and costs properly incurred through the effective date of termination, subject to C&H's right to dispute any charges in good faith.
10.3 Survival. The provisions of Sections 5 (Data Security and Confidentiality), 6 (Data Retention, Return, and Destruction), 8 (Representations and Warranties), 9 (Limitation of Liability and Indemnification), and 11 (Governing Law and Dispute Resolution) shall survive the expiration or termination of this Agreement.
11. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.
Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof, shall, at C&H's sole election, be resolved by either: (a) binding arbitration administered by JAMS in New York County, New York, in accordance with its Comprehensive Arbitration Rules and Procedures then in effect, with one arbitrator selected by mutual agreement of the parties (or, in the absence of agreement, appointed by JAMS); or (b) litigation in the state or federal courts located in New York County, New York, to whose exclusive jurisdiction the parties hereby consent. Vantage irrevocably waives any objection to venue in New York County and any claim of forum non conveniens with respect to any proceedings brought in accordance with this Section.
The prevailing party in any arbitration or litigation arising under this Agreement shall be entitled to recover its reasonable attorneys' fees and costs from the non-prevailing party.
12. MISCELLANEOUS
12.1 Entire Agreement
This Engagement Letter, together with its exhibits, constitutes the entire agreement between C&H and Vantage with respect to the services described herein and supersedes all prior oral or written proposals, negotiations, representations, understandings, and agreements between the parties relating to the subject matter hereof. No representations, warranties, or agreements not expressly set forth in this Agreement shall be binding on either party.
12.2 Amendments. This Agreement may be amended, modified, or supplemented only by a written instrument executed by authorized representatives of both C&H and Vantage. No oral modification or waiver of any provision of this Agreement shall be effective.
12.3 Assignment. Vantage shall not assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of C&H. Any purported assignment in violation of this Section shall be null and void. C&H may assign this Agreement without Vantage's consent in connection with a change of representation on the Matter, provided that C&H notifies Vantage of such assignment in writing.
12.4 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given when: (a) delivered personally; (b) sent by registered or certified mail, return receipt requested, postage prepaid; (c) sent by nationally recognized overnight courier service; or (d) sent by email with confirmed receipt. Notices shall be addressed as follows:
If to C&H:
Calderwood & Harkness LLP 425 Park Avenue, 33rd Floor New York, New York 10022
Attention: Linda Osei, Partner
Email: losei@calderwoodharkness.com
If to Vantage:
Vantage Litigation Support LLC 300 Vesey Street, Suite 600 New York, New York 10282
Attention: David Cerrone, Managing Director
Email: dcerrone@vantagelitsupport.com
Either party may change its address for notice purposes by providing written notice to the other party in accordance with this Section.
12.5 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by electronic signature (including PDF or Brightwater Software) shall be deemed valid and effective for all purposes.
We are pleased to engage Vantage for this important matter and are confident that your team will provide the high-quality support that this complex litigation demands. If the foregoing terms are acceptable, please sign and return the enclosed copy of this letter to confirm Vantage's agreement. Please do not hesitate to contact Jeffrey Park at (212) 554-7189 or jpark@calderwoodharkness.com with any questions.
Very truly yours,
CALDERWOOD & HARKNESS LLP
CALDERWOOD & HARKNESS LLP
By: ________
Name: Linda Osei
Title: Partner