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CALDERWOOD & HARKNESS LLP PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

MEMORANDUM

TO: Linda Osei, Responsible Partner Jeffrey Park, Lead Associate

FROM: Yuki Nakamura, Working Associate

DATE: January 20, 2025

RE: Preliminary Analysis of Anticipated Expert Opinions of James Ochoa, PE (Keystone Project Advisory LLC) — Owner-Caused Delay Theories

MATTER: Northgate Telecommunications PLC — Defense of Meridian Infrastructure Partners LLC Construction Dispute

MATTER NUMBER: 1022-00005

COURT REFERENCE: Meridian Infrastructure Partners LLC v. Northgate Fiber Americas Inc., Supreme Court of the State of New York, New York County, Commercial Division, Index No. 654321/2024, Part 49 (Hon. Eleanor M. Ricci)

PRIVILEGE DESIGNATION: This memorandum is protected by the attorney-client privilege and the attorney work product doctrine. It is prepared in anticipation of litigation and reflects the mental impressions, conclusions, opinions, and legal theories of counsel. It contains core work product consisting of the mental processes of attorneys engaged in analyzing and preparing defenses in the above-captioned matter. Do not distribute outside the legal team without prior authorization from Linda Osei, Responsible Partner.

I. PURPOSE AND SCOPE OF THIS MEMORANDUM

The purpose of this memorandum is to anticipate the likely opinions, analytical methodology, and factual predicates of James Ochoa, PE, of Keystone Project Advisory LLC (1500 Market Street, Suite 1200, Philadelphia, PA 19102), who has been retained by Meridian Infrastructure Partners LLC ("Meridian" or "Contractor") as its construction and delay expert in this action. Specifically, this memorandum analyzes the Owner-caused delay theories that Ochoa is expected to advance and identifies counter-arguments for consideration by our defense construction and delay expert, Dr. Elinor Chazen of Lakeview Consulting Group LLC ("Dr. Chazen").

Under the current scheduling order entered by Justice Ricci on October 15, 2024, affirmative expert reports are due on March 31, 2025, and rebuttal expert reports are due on May 15, 2025. This memorandum is intended to give Dr. Chazen substantial lead time in preparing her affirmative report and to flag specific areas where her analysis should preemptively address the Owner-caused delay theories that Ochoa is expected to present. By anticipating and addressing Ochoa's likely opinions in Dr. Chazen's affirmative report — rather than deferring to the rebuttal phase — we can more effectively frame the delay causation narrative for Justice Ricci and the Commercial Division.

It must be emphasized at the outset that Ochoa's expert opinions have not yet been formally disclosed. This analysis is therefore necessarily anticipatory and is based upon the following sources:

(a) Meridian's Verified Complaint, filed July 15, 2024, and its Reply to Counterclaims, filed September 18, 2024, which articulate Meridian's affirmative theories of Owner-caused delay;

(b) Meridian's discovery responses and interrogatory answers served to date, which identify the factual bases for Meridian's delay claims;

(c) Testimony from completed depositions of Victor Sandoval, Meridian's Chief Executive Officer (December 10–11, 2024), Marcus Henley, Meridian's Senior Vice President of Field Operations (December 3–4, 2024), Renata Voss, Northgate Fiber Americas Inc.'s ("NFA" or "Owner") Vice President of Network Development (November 12–13, 2024), and Sean Calloway, NFA's Senior Project Director (November 19, 2024);

(d) Meridian's Corrective Action Plan, submitted March 5, 2024, in response to NFA's Cure Notice No. 2;

(e) Meridian's February 2, 2024 response to Cure Notice No. 1, which sets forth the three primary delay excuses that Ochoa is likely to advance; and

(f) Publicly available information regarding Ochoa's prior expert engagements, publications, and professional background, obtained through standard expert witness databases and industry publications.

As additional discovery responses, deposition testimony (particularly the deposition of Bridget Yeung, Meridian's Vice President of Project Controls, scheduled for February 4, 2025), and Meridian's preliminary expert disclosures become available, this memorandum will be supplemented and refined. The recommendations herein should be treated as preliminary and subject to revision.

II. BACKGROUND ON JAMES OCHOA, PE

A. Professional Profile

James Ochoa, PE, is a licensed Professional Engineer with a specialty in fiber-optic and telecommunications infrastructure construction. He is the founder and principal of Keystone Project Advisory LLC, a construction consulting firm based in Philadelphia, Pennsylvania, that provides project management, scheduling, delay analysis, and expert witness services to clients in the telecommunications, energy, and transportation infrastructure sectors.

Based on publicly available information, Ochoa holds a Bachelor of Science in Civil Engineering from Drexel University and a Master of Science in Construction Management from Pennsylvania State University. He has been a licensed Professional Engineer in Pennsylvania, New York, New Jersey, and Connecticut for over twenty years. Prior to founding Keystone Project Advisory, Ochoa served as a senior project manager at a major engineering procurement and construction firm, where he oversaw multiple large-scale fiber-optic network buildout programs in the northeastern United States.

Ochoa has published articles in trade journals on topics including critical path scheduling for linear infrastructure projects, fiber-optic cable installation methodologies, and risk allocation in telecommunications construction contracts. These publications indicate that Ochoa is conversant with the scheduling and delay analysis techniques standard in the construction industry, including as-planned versus as-built analysis, time-impact analysis, windows analysis, and collapsed as-built methodology.

We are currently conducting a comprehensive search of expert witness databases (including the Daubert Tracker database, ExpertPages, and IDEX) to identify any prior testimony by Ochoa in construction disputes, and particularly in fiber-optic or telecommunications construction matters. Any prior testimony will be reviewed for consistency with the opinions we anticipate he will offer in this case, and for potential impeachment material. This research is targeted for completion by February 7, 2025.

Given his background and the nature of this dispute, Ochoa is likely to present his opinions through the analytical lens common in construction disputes involving allegations of Owner-caused delay, constructive changes, and schedule acceleration. His opinions will almost certainly align with the three affirmative defenses articulated in Meridian's February 2, 2024 response to Cure Notice No. 1 — namely, that Meridian's schedule delays were caused by (1) NFA's failure to timely obtain municipal permits, (2) NFA's direction of unformalized scope changes, and (3) force majeure events arising from the lingering effects of the COVID-19 pandemic on the construction labor market and supply chain. Additionally, as discussed in Section IV.D below, Ochoa may venture opinions regarding NFA's alleged interference with Meridian's performance and the pretextual nature of the termination.

B. Ochoa's Anticipated Role

Ochoa has been retained by Hargrove, Deluca & Stein LLP, Meridian's counsel of record. The lead partner on the engagement is Thomas Deluca, and the senior associate is Miriam Vasquez. Based on Meridian's preliminary expert disclosures served on November 1, 2024, Ochoa has been designated as Meridian's expert on construction delay causation and schedule analysis.

In this capacity, Ochoa is expected to opine on the causation of the schedule delays experienced during the Master Construction Agreement's performance period, with a focus on attributing those delays to NFA as Owner rather than to Meridian as Contractor. His opinions will serve as the necessary factual predicate for the delay and disruption damages sought by Meridian — damages that will be quantified by Meridian's financial expert, Dr. Natalie Forster of Westbrook Valuation Services Inc.

Specifically, Ochoa's delay causation opinions will likely underpin two of Meridian's four claims. His opinions will be central to Count I — Meridian's wrongful termination claim seeking $92.4 million (consisting of a $50,424,000 termination-for-convenience fee calculated at 8% of remaining unperformed contract value, plus $41,976,000 in lost profits). If Ochoa can successfully attribute a material portion of the schedule delays to Owner causes, Meridian will argue that its performance failures were excused, that the termination for cause was therefore wrongful, and that Meridian is entitled to damages as though the termination had been for convenience or had not occurred at all. Additionally, Ochoa's opinions regarding NFA's alleged interference may serve as the factual predicate for Count IV — Meridian's breach of the implied covenant of good faith and fair dealing claim, seeking $34,133,333.

Conversely, Ochoa will attempt to rebut the defense delay analysis from Dr. Chazen, which concludes (as set forth in Dr. Chazen's December 20, 2024 preliminary findings memo) that Meridian's delays were predominantly Contractor-caused and that NFA's termination for cause was substantively justified by Meridian's material breach of the Master Construction Agreement.

III. SUMMARY OF THE MASTER CONSTRUCTION AGREEMENT'S RELEVANT PROVISIONS

A. MCA Overview

The Master Construction Agreement ("MCA") was executed on March 15, 2020, between Northgate Fiber Americas Inc., a wholly owned subsidiary of Northgate Telecommunications PLC (as "Owner"), and Meridian Infrastructure Partners LLC (as "Contractor"). The MCA governs the design, engineering, permitting, and construction of approximately 18,500 route miles of underground and aerial fiber-optic cable across seven states: New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia.

The total contract price is $1.2 billion, structured as a hybrid of fixed-price milestone payments and unit-rate compensation. Approximately 65% of the contract price ($780 million) is allocated to fixed-price milestones tied to the completion of defined scope segments, while approximately 35% ($420 million) is based on unit rates for specified construction activities. The contract term is five years from the Notice to Proceed, which was issued on April 1, 2020, establishing an original completion date of March 31, 2025.

The MCA defines 14 milestones pursuant to Section 8.2 (Milestone Schedule), organized across three phases:

• Phase 1 (Milestones 1–4): Core metropolitan backbone and initial regional distribution, covering approximately 3,800 route miles in New York, New Jersey, and portions of Connecticut and Pennsylvania. Phase 1 was substantially completed, although with delays on Milestone 3.

• Phase 2 (Milestones 5–8): Regional expansion into Connecticut, Massachusetts, and the balance of Pennsylvania, covering approximately 5,000 route miles. Phase 2 experienced escalating delays on each successive milestone and was never completed.

• Phase 3 (Milestones 9–14): Full network buildout extending into Maryland and Virginia and completing the remaining route miles, covering approximately 9,700 route miles. Phase 3 had barely commenced at the time of termination, with only 340 of 9,700 route miles completed (approximately 3.5% progress).

As of the April 1, 2024 termination date, Meridian had completed approximately 9,140 of 18,500 route miles, representing 49.4% of the total contracted scope — roughly halfway through the contract term but far behind the milestone schedule.

B. Key Contractual Provisions Ochoa Will Likely Interpret

The following MCA provisions are central to the delay causation dispute and will almost certainly be the subject of Ochoa's expert opinions. Each provision is briefly summarized here; the full contractual language is available in the MCA, which has been produced in discovery and is marked as Exhibit NFA-0001.

Section 5.3 (Permitting Responsibilities). This provision allocates responsibility for obtaining the permits necessary for the fiber-optic construction. As discussed at length in Jeffrey Park's October 2024 analysis memorandum, Section 5.3 distinguishes between (i) backbone interstate corridor rights-of-way and federal regulatory approvals, which are the Owner's responsibility, and (ii) municipal right-of-way permits, easements, and utility crossing approvals, which are the Contractor's responsibility. The interpretation of this provision is central to Ochoa's anticipated Theory 1 (Owner permit delay), and we believe Ochoa's reading of the provision will be inconsistent with its plain language.

Section 8.2 (Milestone Schedule). This provision defines the 14 milestone completion dates and the requirements for interim completion certificates. Each milestone has a defined scope, geographic area, and scheduled completion date. The milestone schedule is the baseline against which Meridian's actual performance is measured, and any delay analysis — whether by Ochoa or Dr. Chazen — will necessarily be anchored to the milestone dates established in this section.

Section 9.1 (Liquidated Damages for Delay). The MCA provides for liquidated damages in the amount of $175,000 per day per milestone for unexcused delay beyond the milestone completion date. Liquidated damages are capped at 10% of the milestone payment amount for any individual milestone and at 5% of the total contract price in the aggregate, establishing an aggregate cap of $60 million. This provision is the basis for NFA's Counterclaim I (liquidated damages of $49 million).

Section 12.4 (Quality Standards). This provision requires all work to conform to Northgate Technical Specification NS-FIBER-2020 and to applicable industry standards, including ANSI/TIA-568 and BICSI guidelines. Compliance with Section 12.4 is relevant to the 287 Non-Conformance Reports ("NCRs") issued during contract performance, 43 of which were classified as critical. Quality failures and the resulting rework are significant contributors to Contractor-caused delay.

Section 14.1 (Termination for Cause by Owner). This provision permits the Owner to terminate the MCA upon the Contractor's material breach, subject to a 30-day written cure period. The termination process followed by NFA — consisting of Cure Notice No. 1 (January 18, 2024), Cure Notice No. 2 (February 19, 2024), rejection of the Corrective Action Plan (March 12, 2024), and Notice of Termination (April 1, 2024) — was designed to comply with the procedural requirements of this section.

Section 14.3 (Termination for Convenience). This provision permits the Owner to terminate the MCA at any time for its convenience upon 60 days' written notice. Upon a termination for convenience, the Contractor is entitled to payment for all completed and accepted work plus 8% of the remaining unperformed contract value as a termination fee. This provision is relevant because Meridian's Count I seeks damages based on the theory that the termination for cause was wrongful and should be treated as a termination for convenience, entitling Meridian to the 8% termination fee ($50,424,000) plus lost profits.

Section 16.1 (Change Orders). This provision requires that any change to the scope of work, schedule, or contract price be documented in a written Change Order signed by both parties. The written Change Order requirement is central to Ochoa's anticipated Theory 2 (constructive change orders), and Meridian's failure to follow this procedure is a significant vulnerability in its constructive change defense.

IV. ANTICIPATED OCHOA OPINIONS — OWNER-CAUSED DELAY THEORIES

Based on the sources identified in Section I above — and particularly Meridian's February 2, 2024 response to Cure Notice No. 1, which articulated three primary delay excuses — we anticipate that Ochoa will advance four principal Owner-caused delay theories. The first three correspond directly to the defenses set forth in Meridian's Cure Notice response; the fourth, concerning NFA's alleged interference and the pretextual nature of the termination, is inferred from Meridian's Complaint allegations (particularly Count IV) and from the tenor of Meridian's discovery responses.

Each anticipated theory is discussed below, together with the expected methodology and counter-arguments for Dr. Chazen's consideration.

A. Theory 1: NFA's Failure to Timely Obtain Municipal Permits (MCA § 5.3)

1. Anticipated Opinion

We anticipate that Ochoa will opine that NFA bore primary responsibility for obtaining municipal right-of-way permits, easements, and utility crossing approvals under MCA Section 5.3, and that NFA's failure to secure these permits in a timely manner constituted the critical-path cause of Meridian's schedule delays across Phases 2 and 3.

This opinion tracks directly from Meridian's February 2, 2024 response to Cure Notice No. 1, in which Meridian expressly asserted that NFA's failure to timely obtain permits was one of three primary reasons for Meridian's schedule delays. The Cure Notice response identified permit delays in Connecticut, western Massachusetts, and portions of Pennsylvania as the principal obstacle to Meridian's progress on Milestones 5 through 8.

Ochoa's permit delay theory will likely be supported by reference to Marcus Henley's deposition testimony from December 3–4, 2024. During his deposition, Henley testified at length that Meridian's construction crews were repeatedly "stacked" — meaning that crews were mobilized and available to begin work on specific segments but were unable to proceed because the necessary municipal permits had not yet been issued. Henley attributed these delays to NFA's alleged failure to coordinate with municipal authorities and to obtain the required approvals on a schedule consistent with Meridian's construction plans. Henley's testimony focused primarily on Connecticut and western Massachusetts during Phase 2, where he characterized the permitting situation as a "bottleneck" that cascaded through the remainder of the schedule.

Ochoa will likely present this testimony as corroborating his schedule analysis and as evidence that the permit delays were Owner-caused, thereby excusing Meridian's failure to meet the Phase 2 and Phase 3 milestone dates.

2. Expected Methodology

Ochoa's methodological approach to the permit delay theory will likely involve the following analytical steps:

First, Ochoa will construct an as-planned versus as-built schedule comparison for the affected milestones (primarily Milestones 5, 6, 7, and 8). This comparison will overlay the dates on which municipal permits were actually issued against the dates on which the construction schedule assumed permits would be available, demonstrating that the gap between planned and actual permit issuance dates preceded and caused corresponding gaps in construction start dates for the affected segments.

Second, Ochoa may employ a "but-for" or "collapsed as-built" critical path analysis in which he removes the alleged Owner-caused permit delays from the as-built schedule and argues that, but for those delays, Meridian would have completed the affected milestones on or near schedule. Under this approach, Ochoa would attribute all or substantially all of the delay days on Milestones 5, 6, 7, and 8 to Owner permit delays — a conclusion we believe is analytically unsupportable for the reasons discussed below.

Third, Ochoa will likely rely on subpoenaed records from municipal permitting authorities in Connecticut, Massachusetts, and Pennsylvania to document the actual permit issuance dates and to demonstrate that the permitting timeline was longer than anticipated. Our records indicate that subpoenas were issued to at least three municipal permitting authorities. To the extent these records show lengthy permitting timelines, Ochoa will argue that the delays were attributable to NFA's failure to manage the permitting process rather than to Meridian's failure to submit timely and complete applications.

3. Counter-Arguments for Dr. Chazen's Consideration

We recommend that Dr. Chazen address the following counter-arguments in her affirmative report to preemptively undermine Ochoa's permit delay theory:

Contractual allocation under MCA § 5.3. The foundational premise of Ochoa's permit delay theory — that NFA bore primary responsibility for obtaining municipal permits — is contradicted by the plain language of the MCA. Jeffrey Park's October 2024 analysis of permitting responsibilities under Section 5.3 concluded that the MCA allocates responsibility for municipal right-of-way permits, easements, and utility crossing approvals to the Contractor (Meridian), while NFA is responsible only for backbone interstate corridor rights-of-way and federal regulatory approvals (such as FCC and DOT approvals for interstate crossings). To the extent Ochoa premises his entire delay analysis on the assertion that these permits were the Owner's obligation, his analysis rests on a contractually unsupported foundation. Dr. Chazen should clearly state this contractual allocation in her report and note that her delay analysis is based on the MCA's actual assignment of permitting responsibilities.

Deposition testimony undermining Ochoa's premise. The deposition testimony from NFA's own personnel directly contradicts Ochoa's anticipated interpretation of Section 5.3. Renata Voss testified during her November 12–13, 2024 deposition that NFA provided Meridian with permit application templates, municipal contact lists, and coordination support, but that Meridian was contractually responsible for completing and submitting all municipal permit applications. Voss characterized NFA's role in the municipal permitting process as facilitative rather than primary — consistent with the contractual allocation described above. Similarly, Sean Calloway testified during his November 19, 2024 deposition that he repeatedly reminded Marcus Henley, both in meetings and by email, that permit applications were Meridian's obligation under Section 5.3. Calloway specifically recalled a September 2022 meeting in which he told Henley that Meridian needed to "take ownership of the permitting process" rather than waiting for NFA to drive submissions. These contemporaneous reminders undermine Ochoa's expected narrative that NFA assumed or accepted responsibility for municipal permits.

Meridian's own admissions regarding late permit submissions. Perhaps most damaging to Ochoa's permit delay theory is the testimony of Meridian's own CEO. Victor Sandoval acknowledged during his December 10–11, 2024 deposition that Meridian's internal project management system (a Tarrant Data Systems schedule database) showed that the majority of municipal permit applications were submitted late — and that the delays in submission were attributable to Meridian's permitting subcontractors, not to NFA. Sandoval specifically conceded that Meridian's permitting subcontractor in Connecticut, which he identified as Regional Permit Services LLC, had fallen behind on application submissions due to staffing issues within that subcontractor's organization. This admission directly undercuts Ochoa's anticipated theory by demonstrating that permit delays were caused by the Contractor's own supply chain failures rather than by the Owner's inaction.

Concurrent delay. Even assuming arguendo that some portion of the permitting process involved Owner coordination or delays attributable to NFA's actions, Dr. Chazen should demonstrate that Meridian's own crew shortages, equipment mobilization failures, and subcontractor management deficiencies were independent concurrent causes of delay that would have produced the same or greater schedule slippage regardless of permit timing. As discussed in Section V.B below, the doctrine of concurrent delay is recognized under New York law, and where both parties contribute to delay, neither may recover delay damages from the other. Dr. Chazen's analysis should present a rigorous apportionment showing that Contractor-caused delays alone were sufficient to produce the observed milestone slippage.

Lack of timely notice. Meridian did not formally notify NFA of alleged permit-related delays until its February 2, 2024 response to Cure Notice No. 1 — nearly four years into contract performance and well after the delays allegedly began in Phase 2 (which commenced in approximately October 2021). If Ochoa relies on permit delays dating back to 2021 or 2022, the absence of contemporaneous written claims or delay notices during that period fundamentally undermines the causal chain. A contractor that experiences Owner-caused delays on the critical path but fails to provide notice for years is either not genuinely impacted by those delays or is failing to mitigate — in either case, the delay cannot reasonably be attributed to the Owner. Dr. Chazen should note the absence of contemporaneous notice in her report and explain its significance to the delay analysis.

B. Theory 2: Unformalized Owner-Directed Scope Changes (Constructive Change Orders)

1. Anticipated Opinion

We anticipate that Ochoa will opine that NFA directed fourteen (14) scope changes during the course of contract performance that were never formalized as written Change Orders under MCA Section 16.1, and that these constructive change orders expanded Meridian's scope of work, disrupted the critical path, and caused schedule delays that contributed to Meridian's failure to meet milestone deadlines.

This opinion is directly foreshadowed by Meridian's February 2, 2024 response to Cure Notice No. 1, which identified "14 Owner-directed scope changes not formalized as Change Orders" as a basis for excusing Meridian's delay. Meridian's Verified Complaint (filed July 15, 2024) repeats this assertion, alleging in Paragraphs 47 through 62 that NFA directed changes to the work that expanded Meridian's obligations without corresponding adjustments to the schedule or contract price.

Based on Meridian's discovery responses and the deposition testimony obtained to date, Ochoa may categorize these alleged scope changes into three general types:

(i) Route deviations — alleged NFA directions to modify the planned fiber-optic cable route in specific segments due to changed utility locations, property owner objections, or NFA's evolving network design preferences;

(ii) Technology specification upgrades — alleged NFA directions to modify the fiber count, conduit specifications, or installation methodology beyond what was specified in the original NS-FIBER-2020 technical specifications; and

(iii) Network access point additions — alleged NFA directions to add network access points, splice locations, or interconnection facilities not included in the original scope of work.

Ochoa will likely characterize each of these categories as representing material changes to Meridian's contractual obligations that required additional labor, equipment, materials, and time — and that NFA's failure to formalize these changes as written Change Orders deprived Meridian of the schedule relief and cost adjustments to which it was entitled.

2. Expected Methodology

Ochoa's methodological approach to the constructive change order theory will likely include the following elements:

First, Ochoa will attempt to isolate the schedule impact of each alleged scope change using a time-impact analysis or windows analysis method. For each of the fourteen alleged changes, he will identify the date on which the change was allegedly directed, the activities affected, and the additional duration required to complete the changed work. He will then insert these additional durations into the schedule to demonstrate their impact on the critical path and on milestone completion dates.

Second, Ochoa may attempt to quantify the additional labor hours, equipment days, and material costs associated with each alleged change, which would then feed into Dr. Forster's damages quantification model. This quantification will likely be based on Meridian's daily reports, crew deployment records, and material procurement data.

Third, Ochoa will likely rely on email correspondence and field directives from NFA personnel — particularly from Sean Calloway in his role as Senior Project Director — as evidence that NFA orally or informally directed scope changes without following the written Change Order procedure. Ochoa may argue that these field directives constitute constructive change orders under New York construction law, obligating NFA to pay for the additional work and to grant schedule relief regardless of the absence of formal written Change Orders.

3. Counter-Arguments for Dr. Chazen's Consideration

We recommend that Dr. Chazen address the following counter-arguments to preemptively undermine Ochoa's constructive change order theory:

MCA § 16.1 — Written Change Order requirement. The MCA contains an unambiguous written Change Order requirement. Section 16.1 provides that no change to the scope of work, schedule, or contract price shall be binding upon either party unless it is set forth in a written Change Order signed by authorized representatives of both the Owner and the Contractor. Meridian's failure to follow this procedure — by submitting written Change Order requests at the time the alleged scope changes were directed — is legally significant. Under New York law, a contractor's failure to comply with a written change order provision may bar recovery for the claimed changes, particularly where the contractor continued to perform without objection. See Jeffrey Park's October 2024 analysis of the constructive change order defense, which surveys relevant New York precedent. Dr. Chazen should note in her report that none of the fourteen alleged scope changes were documented through the contractual Change Order process.

Distinguish field clarifications from scope changes. Dr. Chazen should carefully analyze each of the fourteen alleged "scope changes" identified by Meridian and determine whether they constitute true changes to the contracted scope of work or merely routine field clarifications, coordination directives, or Owner responses to Meridian's own design errors and specification non-conformances. This distinction is critical. Construction projects of this scale routinely involve field-level communications between owner and contractor personnel regarding installation details, coordination with other utilities, and resolution of design ambiguities — none of which constitute scope changes. Sean Calloway testified during his November 19, 2024 deposition that most of the alleged "scope changes" cited by Meridian were actually corrections necessitated by Meridian's failure to follow the NS-FIBER-2020 specifications. Calloway specifically identified several instances in which Meridian had installed fiber cable or conduit in a manner inconsistent with the technical specifications and NFA's field inspectors directed Meridian to correct the non-conforming work. Such corrective directives are not scope changes — they are quality enforcement actions taken pursuant to MCA Section 12.4.

Lack of contemporaneous documentation by Meridian. If Meridian truly believed that NFA's field directives constituted scope changes requiring additional time and compensation, Meridian was required under MCA Section 16.1 to submit a written Change Order request documenting the alleged change, its scope impact, its schedule impact, and its cost impact. Discovery has not produced any such Change Order requests from Meridian during the contract performance period. The absence of contemporaneous documentation strongly suggests that Meridian did not, at the time, consider these field directives to be scope changes — and that the current characterization of fourteen "constructive change orders" is a revisionist litigation strategy developed after the termination.

Schedule impact unlikely to be on critical path. Even accepting arguendo that some field modifications occurred that went beyond the original scope, Dr. Chazen should analyze whether these modifications affected activities on the critical path of the as-built schedule. Many of the alleged changes identified in Meridian's discovery responses appear to involve secondary or non-critical activities — such as minor route adjustments in non-critical segments, additions of access points at locations that were not on the critical path, or specification clarifications that did not add measurable duration to critical activities. If the alleged changes did not affect the critical path, they cannot be a cause of milestone delays, and Ochoa's attribution of delay days to these changes would be analytically unsupportable.

Deposition evidence — Henley's equivocal testimony. Marcus Henley's deposition testimony on the constructive change order issue was notably equivocal. While Meridian's Cure Notice response and Complaint refer to fourteen scope changes, Henley could identify only five or six specific instances in which NFA field personnel allegedly directed work beyond the original plans. Even for those five or six instances, Henley acknowledged that he could not specifically identify the schedule impact of any individual alleged change. He was unable to quantify the additional duration, labor, or cost associated with any of them. This testimony significantly undermines the factual foundation for Ochoa's anticipated constructive change order analysis. Dr. Chazen should note this discrepancy in her report and challenge Ochoa's reliance on a number (fourteen) that lacks support even in Meridian's own witnesses' testimony.

C. Theory 3: Force Majeure — COVID-19 Aftereffects on Labor and Supply Chain

1. Anticipated Opinion

We anticipate that Ochoa will opine that the lingering effects of the COVID-19 pandemic on construction labor availability and the fiber-optic cable supply chain constituted force majeure events that excused Meridian's delay. Specifically, Ochoa will likely argue that the pandemic caused severe disruptions to the supply of skilled construction labor in the northeastern United States and extended the delivery lead times for critical materials — particularly fiber-optic cable and conduit — from major manufacturers, and that these disruptions prevented Meridian from performing on schedule regardless of its own management practices.

This opinion tracks the third defense articulated in Meridian's February 2, 2024 response to Cure Notice No. 1, which cited force majeure as a basis for excusing Meridian's schedule delays. Meridian's Verified Complaint (Paragraphs 63–71) similarly alleges that COVID-19 aftereffects constituted force majeure events under the MCA.

Ochoa may present this theory with supporting data on national construction labor shortages during 2021–2023, including Bureau of Labor Statistics data on construction employment levels, wage inflation, and job vacancy rates in the northeastern United States. He may also present fiber cable delivery records showing extended lead times from major manufacturers during the same period, coupled with analysis suggesting that these market-wide conditions made it impossible or commercially impracticable for Meridian to staff its crews and procure materials on the schedule contemplated by the MCA.

2. Expected Methodology

Ochoa's methodological approach to the force majeure theory will likely include the following elements:

First, Ochoa will present industry-wide labor statistics and wage data showing tight construction labor markets in the northeastern United States during 2021–2023. This data will likely be drawn from Bureau of Labor Statistics reports, Associated General Contractors of America workforce surveys, and similar industry publications. Ochoa will argue that these market conditions made it difficult or impossible for any contractor — not just Meridian — to recruit and retain the skilled labor force necessary for a project of this scale.

Second, Ochoa will present supplier delivery records showing extended lead times for fiber-optic cable, conduit, and other critical materials. He may obtain or reference delivery records from Meridian's primary material suppliers and compare actual delivery dates to originally committed dates, attributing the delivery delays to supply chain disruptions caused by the pandemic.

Third, Ochoa will present a comparison of Meridian's staffing plans versus actual crew deployment, arguing that the shortfall between planned and actual crew levels was caused by market conditions rather than by Meridian's management failures. He may present Meridian's monthly workforce reports alongside industry-wide labor availability data to support this narrative.

3. Counter-Arguments for Dr. Chazen's Consideration

We recommend that Dr. Chazen address the following counter-arguments to undermine Ochoa's force majeure theory:

MCA force majeure clause requires timely notice and mitigation. The MCA's force majeure clause (which I am analyzing in a separate memorandum currently in preparation) imposes specific procedural prerequisites for invoking force majeure, including timely written notice to the Owner identifying the force majeure event and its anticipated impact on the schedule, and a demonstrable showing of mitigation efforts. Meridian did not provide written force majeure notices as required by the MCA at the time the alleged force majeure events occurred. Instead, Meridian first raised the force majeure defense in its February 2, 2024 response to Cure Notice No. 1 — years after the alleged force majeure conditions purportedly began. The failure to comply with the contractual notice requirements may be independently fatal to the force majeure defense as a matter of law, and Dr. Chazen should note this procedural deficiency in her report.

Temporal mismatch. There is a significant temporal mismatch between the period of most acute COVID-19 supply chain disruption and the period of Meridian's worst schedule delays. The most severe pandemic-related disruptions to the construction industry — including lockdowns, supply chain shutdowns, and the initial labor market dislocation — occurred in 2020 and early 2021. Critically, Meridian actually completed Phase 1 substantially and achieved early Phase 2 milestones during this period, suggesting that the pandemic did not prevent Meridian from performing during the worst of the disruption. The most serious delays — on Milestones 6, 7, and 8 and in Phase 3 — occurred in 2022, 2023, and early 2024, by which time supply chain conditions had largely normalized, construction material lead times had returned to near-normal levels, and the labor market, while still tight, had stabilized. Ochoa will need to explain why Meridian performed relatively well during the worst of the pandemic but experienced escalating failures as conditions improved. Dr. Chazen should highlight this paradox.

Competitor performance. Dr. Chazen should analyze whether similarly situated fiber-optic construction contractors experienced comparable delays during the same period and in the same geographic markets. In particular, Crestline Construction Group Inc. — which executed the replacement contract with NFA on June 10, 2024, and has already mobilized and commenced work — agreed to a 30-month timeline for completing the remaining Phase 2 scope and the full Phase 3 scope. Crestline's willingness to commit to a 30-month timeline for comparable work in the same states and market conditions strongly suggests that the labor and supply chain markets are capable of supporting performance and that Meridian's delays were attributable to Contractor-specific failures rather than industry-wide force majeure conditions. If data on Crestline's early mobilization progress is available, Dr. Chazen should reference it as a benchmark.

Meridian's own internal communications. discovery has produced Meridian internal emails that significantly undermine the force majeure narrative. Emails from Marcus Henley and Bridget Yeung, Meridian's Vice President of Project Controls, acknowledge crew management failures and high crew turnover that were attributable to Meridian's own compensation practices and scheduling practices rather than to market-wide labor shortages. Specifically, several Henley emails from mid-2022 refer to experienced crew members leaving Meridian for competitors offering higher wages and better schedules — which is a Contractor management failure, not a force majeure event. Additionally, emails involving Meridian's CFO, Randall Obrecht, reveal that delayed equipment procurement was traceable to Obrecht's cash management decisions — specifically, decisions to defer capital equipment purchases to manage Meridian's cash flow — rather than to supplier unavailability. These internal admissions are powerful evidence that Meridian's resource constraints were self-inflicted.

Henley deposition admissions on crew reallocation. Perhaps most damaging to the force majeure theory is Marcus Henley's admission during his December 3–4, 2024 deposition that crew shortages on the Northgate project in Phase 2 were partly caused by Meridian's decision to reassign experienced crews to other, non-Northgate projects in order to meet competing contractual deadlines. Henley acknowledged that at least three experienced splicing crews and two cable-laying crews were pulled from the Northgate project in the second half of 2022 and reassigned to a Meridian project in Virginia for a different client. This is a Contractor resource allocation decision — a conscious business judgment to prioritize other work over Northgate — and it cannot be characterized as force majeure under any accepted definition. Dr. Chazen should specifically address this testimony in her analysis and demonstrate its impact on the schedule.

D. Theory 4: NFA's Interference and Pretext for Termination

1. Anticipated Opinion

Although this theory extends beyond the traditional scope of construction delay analysis, we anticipate that Ochoa may offer opinions, either directly or as part of his delay narrative, suggesting that NFA actively interfered with Meridian's performance and that the April 1, 2024 termination for cause was pretextual — motivated not by genuine concerns about Meridian's performance failures but by NFA's strategic desire to bring fiber construction in-house, to re-procure the remaining work at lower post-pandemic construction prices, or to restructure the project for other business reasons.

This theory tracks Meridian's April 8, 2024 written response contesting the termination and is the factual predicate for Meridian's Count IV — breach of the implied covenant of good faith and fair dealing, in which Meridian seeks $34,133,333 in damages. Meridian's Complaint alleges (Paragraphs 85–97) that NFA engaged in a pattern of "over-inspection, unnecessary scrutiny, and burdensome compliance demands" designed to manufacture grounds for termination.

Ochoa may point to NFA's execution of the Crestline replacement contract at $712 million as evidence bearing on NFA's motivations. At first blush, the Crestline contract price — which is approximately $81.7 million more than the remaining MCA scope value of approximately $630.3 million — appears to undercut the theory that NFA terminated to re-procure at lower prices. However, Ochoa may approach this data point in one of two ways: he may argue that the higher Crestline price actually demonstrates that NFA was not motivated by cost savings and therefore must have had some other improper motivation for the termination; or, alternatively, he may argue that the Crestline contract was structured to include scope additions, accelerated performance incentives, or other cost elements that inflate the apparent price and that a true apples-to-apples comparison would show that NFA obtained a better deal.

2. Counter-Arguments for Dr. Chazen's Consideration

We recommend that Dr. Chazen consider the following counter-arguments, recognizing that the pretext theory may be partially outside the scope of her construction delay expertise:

Outside scope of construction delay expert. To the extent Ochoa opines on NFA's corporate motivations, business strategies, or subjective intent in terminating the MCA, these opinions exceed the typical and accepted scope of a construction delay expert's competence. Construction experts are qualified to opine on schedule analysis, delay causation, critical path methodology, and the impact of specific events on the construction schedule. They are not typically qualified to opine on corporate governance, business strategy, or the subjective motivations of a party's decision-makers. If Ochoa ventures into this territory, his opinions may be subject to challenge under New York's Frye standard as impermissible lay opinion testimony, legal conclusions, or opinions outside his area of demonstrated expertise. A separate memorandum addressing potential Frye challenges to both Ochoa and Dr. Forster is planned for mid-March 2025.

Record of material breach is overwhelming. Regardless of NFA's subjective motivations — which are legally irrelevant to the termination-for-cause analysis if the contractual grounds for termination were objectively satisfied — the factual record of Meridian's material breach is overwhelming. The record includes:

• 287 Non-Conformance Reports issued during contract performance, of which 43 were classified as critical NCRs involving defects such as splice loss exceeding specifications, improper conduit depth (below code requirements), and unauthorized route deviations that departed from approved plans;

• Escalating milestone delays: 47 days of delay on Milestone 3, 22 days on Milestone 5, 68 days on Milestone 6, 91 days on Milestone 7, and 134 or more days accrued on Milestone 8 at the time of termination — a pattern of accelerating schedule deterioration that demonstrates systemic performance failure rather than isolated incidents;

• Only 49.4% of route miles completed at the time of termination (9,140 of 18,500 route miles), despite the project being at roughly the midpoint of the five-year contract term;

• Only 3.5% progress on Phase 3 (340 of 9,700 route miles completed), indicating that Meridian had barely commenced the final and largest phase of the work when it was terminated.

This factual record supports the conclusion that the termination for cause was substantively justified based on Meridian's material breach, and Dr. Chazen's analysis should present these facts clearly and compellingly to preempt the pretext narrative.

Cure notice compliance. NFA followed the procedural requirements of MCA Section 14.1 meticulously. The timeline of the cure process was as follows:

• January 18, 2024: Cure Notice No. 1 issued, identifying specific material breaches including milestone delays, quality non-conformances, and staffing deficiencies;

• February 2, 2024: Meridian's response to Cure Notice No. 1, asserting the three delay excuses (permit delays, constructive change orders, and force majeure) but not presenting a cure plan;

• February 19, 2024: Cure Notice No. 2 issued, noting that Meridian's response did not constitute an adequate cure and that performance had continued to deteriorate, with 12 additional critical NCRs issued in February 2024 alone;

• March 5, 2024: Meridian submitted its Corrective Action Plan;

• March 12, 2024: NFA rejected the Corrective Action Plan as insufficient, noting that the plan was not adequately detailed, did not address systemic quality issues, and was not supported by committed resource mobilization;

• April 1, 2024: Notice of Termination issued — well beyond the 30-day cure period provided in Section 14.1.

This careful, procedurally compliant cure process is inconsistent with a theory of pretextual termination. If NFA had been seeking a pretext, it would not have invested two and a half months in cure notices, corrective action plan review, and dialogue with Meridian before terminating.

Privileged documents dispute is irrelevant to construction expert opinion. Meridian has filed a motion to compel production of 214 documents that NFA has withheld on the basis of attorney-client privilege and work product protection, including internal financial models, board presentations, and strategic planning documents that Meridian contends bear on NFA's motivations for the termination. Even if some of these documents are ultimately produced following Justice Ricci's ruling on the privilege motion (argument scheduled for February 28, 2025), the factual basis for material breach remains independent of NFA's internal strategic discussions. A construction expert's delay analysis should be grounded in schedule data, critical path methodology, and construction performance metrics — not in privileged corporate strategy documents. Dr. Chazen should not engage with the pretext theory in her delay analysis, except to the extent necessary to demonstrate that Meridian's delays were Contractor-caused.

V. CROSS-CUTTING METHODOLOGICAL VULNERABILITIES IN OCHOA'S EXPECTED ANALYSIS

In addition to the theory-specific counter-arguments discussed in Section IV, several cross-cutting methodological vulnerabilities are likely to afflict Ochoa's analysis regardless of the specific delay theory he advances. Dr. Chazen should be prepared to address each of these vulnerabilities in her affirmative report and, if necessary, in her rebuttal report.

A. Critical Path Methodology Concerns

Ochoa will necessarily employ one of several accepted critical path method ("CPM") scheduling methodologies to support his delay causation opinions. The principal methodologies recognized in the construction scheduling community include:

• As-planned versus as-built analysis, which compares the original baseline schedule to the actual construction sequence to identify deviations and their causes;

• Time-impact analysis (TIA), which prospectively inserts delay events into the schedule at the time they occurred and recalculates the critical path after each event;

• Collapsed as-built analysis, which works backward from the as-built schedule, removing alleged excusable delays to demonstrate what the project completion date would have been "but for" those delays; and

• Windows analysis, which divides the project into discrete time windows and analyzes delay causation within each window independently.

Each of these methodologies has recognized strengths and limitations, and each can be challenged on specific grounds depending on the data inputs, assumptions, and application. Dr. Chazen should be prepared to identify and challenge the methodology Ochoa selects.

Of particular concern is the collapsed as-built approach, which Ochoa may favor because it is the most effective methodology for a claimant seeking to isolate and remove Owner-caused delays from the schedule. However, the collapsed as-built methodology has a well-recognized vulnerability: it requires the analyst to demonstrate that the delays being removed were truly on the critical path and were not concurrent with Contractor-caused delays. If Owner-caused delays and Contractor-caused delays were concurrent — meaning they occurred simultaneously and each independently would have caused delay to the critical path — then removing only the Owner-caused delays produces an artificially accelerated schedule that does not reflect what would actually have occurred.

Dr. Chazen's December 20, 2024 preliminary findings memo concluded that Meridian's delays were predominantly Contractor-caused. Her affirmative report should build on this preliminary analysis and specifically address each Owner-delay assertion that Ochoa is expected to advance, demonstrating that the alleged Owner delays were either (a) not on the critical path, (b) concurrent with Contractor-caused delays, or (c) factually unsupported.

B. Apportionment of Concurrent Delay

New York law recognizes the doctrine of concurrent delay. Where both the owner and the contractor contribute to construction delays, and where the respective contributions are concurrent rather than sequential, neither party may recover delay damages from the other. This principle is well established in New York construction law and has been applied by the Commercial Division in several recent decisions.

We anticipate that Ochoa may attempt to attribute 100% of the observed delay to Owner causes, ignoring or dismissing the substantial evidence of concurrent Contractor-caused delays. This "all-or-nothing" attribution approach is analytically unsound and is likely to be challenged by Dr. Chazen.

Dr. Chazen should present a fair apportionment analysis that demonstrates the relative contributions of Owner-caused and Contractor-caused delays to the observed milestone slippage. Even under a most-favorable-to-Meridian scenario — giving Meridian the benefit of every arguable Owner delay — the vast majority of the delay is attributable to Contractor causes. The key categories of Contractor-caused delay that Dr. Chazen should quantify and present include:

• Crew shortages, as acknowledged by Marcus Henley in his December 3–4, 2024 deposition, including both market-related shortages and Meridian's self-inflicted shortages caused by crew reallocation to other projects;

• Subcontractor management failures, including late permit application submissions by Regional Permit Services LLC, inadequate quality control by Meridian's splicing subcontractors, and scheduling conflicts among multiple subcontractors in overlapping work areas;

• Failure to timely submit permit applications, as documented in Meridian's own project management system and confirmed by Victor Sandoval's deposition testimony;

• Equipment mobilization delays, including deferred equipment purchases attributable to CFO Randall Obrecht's cash management decisions; and

• Quality rework necessitated by 287 NCRs, including 43 critical NCRs that required re-installation, re-splicing, or re-routing of completed work segments — each of which consumed critical-path duration and displaced other scheduled activities.

C. Reliance on Meridian's Unverified Data

Any delay analysis is only as reliable as its underlying data. Ochoa will necessarily rely heavily on data provided by Meridian in constructing his schedule analysis, including Meridian's Tarrant Data Systems schedule updates, daily field reports, crew deployment records, material procurement records, and equipment utilization logs. This data is generated and maintained by Meridian, and its accuracy and completeness are subject to question.

Dr. Chazen should independently verify Meridian's schedule data against contemporaneous records obtained from independent third-party sources, including:

• Records produced by third-party subcontractors in response to subpoenas issued pursuant to Yuki Nakamura's October 20, 2024 memorandum (subpoenas were issued to seven subcontractors);

• Records produced by municipal permitting authorities (subpoenas were issued to three permitting authorities in Connecticut, Massachusetts, and Pennsylvania); and

• NFA's own contemporaneous records, including field inspection reports, daily observation logs, and correspondence files.

Any discrepancies between Meridian's self-reported data and the third-party records should be prominently highlighted in Dr. Chazen's report as evidence that undermines the reliability of Ochoa's analysis. If, for example, Meridian's daily reports show full crew deployment on a given date while the subcontractor's records show that crews were not present, this discrepancy calls into question the integrity of Meridian's entire data set and, by extension, any analysis built upon it.

D. Potential Frye Challenge Considerations

As noted in Section IV.D above, if Ochoa's opinions extend beyond construction delay analysis to encompass opinions on NFA's corporate motivations, the financial pretext for termination, or legal conclusions regarding whether NFA's actions constituted a breach of the MCA or the implied covenant of good faith and fair dealing, those opinions may be excludable under New York's Frye standard.

Under Frye, expert testimony is admissible only if it is based on principles and methods that are generally accepted in the relevant scientific or professional community. An opinion on corporate strategy or termination motive does not fall within the generally accepted scope of a construction delay expert's competence, and such an opinion would likely be challenged as impermissible lay opinion or legal conclusion masquerading as expert testimony.

A separate memorandum will be prepared closer to the expert report deadline (target: mid-March 2025) evaluating the potential for Frye motions directed at specific opinions of both Ochoa and Dr. Natalie Forster. That assessment will inform our summary judgment strategy, as discussed in Jeffrey Park's January 18, 2025 summary judgment strategy memo.

VI. RECOMMENDATIONS FOR DR. CHAZEN'S AFFIRMATIVE REPORT

Based on the analysis set forth in this memorandum, we make the following recommendations regarding the scope and content of Dr. Chazen's affirmative expert report, due March 31, 2025.

A. Preemptive Addressing of Owner-Caused Delay Theories

Dr. Chazen's affirmative report should proactively address each of the four anticipated Ochoa theories — permit delays, constructive change orders, force majeure, and pretext/interference — rather than waiting for the rebuttal report to engage with these issues. By addressing these theories in the affirmative report, Dr. Chazen can frame the delay causation narrative for Justice Ricci before Ochoa's report is served, establishing the analytical framework through which Justice Ricci will evaluate Ochoa's subsequent opinions.

Dr. Chazen's preliminary critical path analysis, as presented in her December 20, 2024 findings memo, should be expanded to include a detailed as-planned versus as-built comparison for each of the 14 milestones, with delay causation clearly attributed to specific Contractor failures. For each milestone, the report should identify (a) the planned completion date, (b) the actual completion date or status at termination, (c) the number of days of delay, and (d) the specific Contractor-caused events or conditions that drove the delay, supported by contemporaneous documentation and deposition testimony.

B. NCR Analysis Integration

Dr. Chazen should integrate her analysis of the 43 critical Non-Conformance Reports into the delay analysis, demonstrating that quality failures caused rework delays on the critical path. The critical NCRs involve defects such as splice loss exceeding the NS-FIBER-2020 specifications, improper conduit depth below code requirements, and unauthorized route deviations that departed from approved construction plans. Each of these defects required remediation work that consumed critical-path duration and displaced other scheduled activities.

The full NCR analysis should cross-reference the NCR summary and analysis spreadsheet, which catalogs all 287 NCRs by date, phase, milestone, defect type, severity classification (critical or non-critical), cure status, and estimated remediation cost. This spreadsheet establishes a pattern of persistent non-conformance throughout the contract performance period, demonstrating that quality failures were a systemic issue — not isolated incidents — and that the resulting rework was a significant and independent cause of schedule delay.

C. Comparison with Crestline's Mobilization

Dr. Chazen should, to the extent data is available, reference Crestline Construction Group Inc.'s mobilization and progress since June 10, 2024, as a benchmark for what a competent contractor can achieve in compar

CALDERWOOD & HARKNESS LLP PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
MEMORANDUM
TO: Linda Osei, Responsible Partner Jeffrey Park, Lead Associate
FROM: Yuki Nakamura, Working Associate
DATE: January 20, 2025
RE: Preliminary Analysis of Anticipated Expert Opinions of James Ochoa, PE (Keystone Project Advisory LLC) — Owner-Caused Delay Theories
MATTER: Northgate Telecommunications PLC — Defense of Meridian Infrastructure Partners LLC Construction Dispute
MATTER NUMBER: 1022-00005
COURT REFERENCE: Meridian Infrastructure Partners LLC v. Northgate Fiber Americas Inc., Supreme Court of the State of New York, New York County, Commercial Division, Index No. 654321/2024, Part 49 (Hon. Eleanor M. Ricci)
PRIVILEGE DESIGNATION: This memorandum is protected by the attorney-client privilege and the attorney work product doctrine. It is prepared in anticipation of litigation and reflects the mental impressions, conclusions, opinions, and legal theories of counsel. It contains core work product consisting of the mental processes of attorneys engaged in analyzing and preparing defenses in the above-captioned matter. Do not distribute outside the legal team without prior authorization from Linda Osei, Responsible Partner.
I. PURPOSE AND SCOPE OF THIS MEMORANDUM
The purpose of this memorandum is to anticipate the likely opinions, analytical methodology, and factual predicates of James Ochoa, PE, of Keystone Project Advisory LLC (1500 Market Street, Suite 1200, Philadelphia, PA 19102), who has been retained by Meridian Infrastructure Partners LLC ("Meridian" or "Contractor") as its construction and delay expert in this action. Specifically, this memorandum analyzes the Owner-caused delay theories that Ochoa is expected to advance and identifies counter-arguments for consideration by our defense construction and delay expert, Dr. Elinor Chazen of Lakeview Consulting Group LLC ("Dr. Chazen").
Under the current scheduling order entered by Justice Ricci on October 15, 2024, affirmative expert reports are due on March 31, 2025, and rebuttal expert reports are due on May 15, 2025. This memorandum is intended to give Dr. Chazen substantial lead time in preparing her affirmative report and to flag specific areas where her analysis should preemptively address the Owner-caused delay theories that Ochoa is expected to present. By anticipating and addressing Ochoa's likely opinions in Dr. Chazen's affirmative report — rather than deferring to the rebuttal phase — we can more effectively frame the delay causation narrative for Justice Ricci and the Commercial Division.
It must be emphasized at the outset that Ochoa's expert opinions have not yet been formally disclosed. This analysis is therefore necessarily anticipatory and is based upon the following sources:
(a) Meridian's Verified Complaint, filed July 15, 2024, and its Reply to Counterclaims, filed September 18, 2024, which articulate Meridian's affirmative theories of Owner-caused delay;
(b) Meridian's discovery responses and interrogatory answers served to date, which identify the factual bases for Meridian's delay claims;
(c) Testimony from completed depositions of Victor Sandoval, Meridian's Chief Executive Officer (December 10–11, 2024), Marcus Henley, Meridian's Senior Vice President of Field Operations (December 3–4, 2024), Renata Voss, Northgate Fiber Americas Inc.'s ("NFA" or "Owner") Vice President of Network Development (November 12–13, 2024), and Sean Calloway, NFA's Senior Project Director (November 19, 2024);
(d) Meridian's Corrective Action Plan, submitted March 5, 2024, in response to NFA's Cure Notice No. 2;
(e) Meridian's February 2, 2024 response to Cure Notice No. 1, which sets forth the three primary delay excuses that Ochoa is likely to advance; and
(f) Publicly available information regarding Ochoa's prior expert engagements, publications, and professional background, obtained through standard expert witness databases and industry publications.
As additional discovery responses, deposition testimony (particularly the deposition of Bridget Yeung, Meridian's Vice President of Project Controls, scheduled for February 4, 2025), and Meridian's preliminary expert disclosures become available, this memorandum will be supplemented and refined. The recommendations herein should be treated as preliminary and subject to revision.
II. BACKGROUND ON JAMES OCHOA, PE
A. Professional Profile
James Ochoa, PE, is a licensed Professional Engineer with a specialty in fiber-optic and telecommunications infrastructure construction. He is the founder and principal of Keystone Project Advisory LLC, a construction consulting firm based in Philadelphia, Pennsylvania, that provides project management, scheduling, delay analysis, and expert witness services to clients in the telecommunications, energy, and transportation infrastructure sectors.
Based on publicly available information, Ochoa holds a Bachelor of Science in Civil Engineering from Drexel University and a Master of Science in Construction Management from Pennsylvania State University. He has been a licensed Professional Engineer in Pennsylvania, New York, New Jersey, and Connecticut for over twenty years. Prior to founding Keystone Project Advisory, Ochoa served as a senior project manager at a major engineering procurement and construction firm, where he oversaw multiple large-scale fiber-optic network buildout programs in the northeastern United States.
Ochoa has published articles in trade journals on topics including critical path scheduling for linear infrastructure projects, fiber-optic cable installation methodologies, and risk allocation in telecommunications construction contracts. These publications indicate that Ochoa is conversant with the scheduling and delay analysis techniques standard in the construction industry, including as-planned versus as-built analysis, time-impact analysis, windows analysis, and collapsed as-built methodology.
We are currently conducting a comprehensive search of expert witness databases (including the Daubert Tracker database, ExpertPages, and IDEX) to identify any prior testimony by Ochoa in construction disputes, and particularly in fiber-optic or telecommunications construction matters. Any prior testimony will be reviewed for consistency with the opinions we anticipate he will offer in this case, and for potential impeachment material. This research is targeted for completion by February 7, 2025.
Given his background and the nature of this dispute, Ochoa is likely to present his opinions through the analytical lens common in construction disputes involving allegations of Owner-caused delay, constructive changes, and schedule acceleration. His opinions will almost certainly align with the three affirmative defenses articulated in Meridian's February 2, 2024 response to Cure Notice No. 1 — namely, that Meridian's schedule delays were caused by (1) NFA's failure to timely obtain municipal permits, (2) NFA's direction of unformalized scope changes, and (3) force majeure events arising from the lingering effects of the COVID-19 pandemic on the construction labor market and supply chain. Additionally, as discussed in Section IV.D below, Ochoa may venture opinions regarding NFA's alleged interference with Meridian's performance and the pretextual nature of the termination.
B. Ochoa's Anticipated Role
Ochoa has been retained by Hargrove, Deluca & Stein LLP, Meridian's counsel of record. The lead partner on the engagement is Thomas Deluca, and the senior associate is Miriam Vasquez. Based on Meridian's preliminary expert disclosures served on November 1, 2024, Ochoa has been designated as Meridian's expert on construction delay causation and schedule analysis.
In this capacity, Ochoa is expected to opine on the causation of the schedule delays experienced during the Master Construction Agreement's performance period, with a focus on attributing those delays to NFA as Owner rather than to Meridian as Contractor. His opinions will serve as the necessary factual predicate for the delay and disruption damages sought by Meridian — damages that will be quantified by Meridian's financial expert, Dr. Natalie Forster of Westbrook Valuation Services Inc.
Specifically, Ochoa's delay causation opinions will likely underpin two of Meridian's four claims. His opinions will be central to Count I — Meridian's wrongful termination claim seeking $92.4 million (consisting of a $50,424,000 termination-for-convenience fee calculated at 8% of remaining unperformed contract value, plus $41,976,000 in lost profits). If Ochoa can successfully attribute a material portion of the schedule delays to Owner causes, Meridian will argue that its performance failures were excused, that the termination for cause was therefore wrongful, and that Meridian is entitled to damages as though the termination had been for convenience or had not occurred at all. Additionally, Ochoa's opinions regarding NFA's alleged interference may serve as the factual predicate for Count IV — Meridian's breach of the implied covenant of good faith and fair dealing claim, seeking $34,133,333.
Conversely, Ochoa will attempt to rebut the defense delay analysis from Dr. Chazen, which concludes (as set forth in Dr. Chazen's December 20, 2024 preliminary findings memo) that Meridian's delays were predominantly Contractor-caused and that NFA's termination for cause was substantively justified by Meridian's material breach of the Master Construction Agreement.
III. SUMMARY OF THE MASTER CONSTRUCTION AGREEMENT'S RELEVANT PROVISIONS
A. MCA Overview
The Master Construction Agreement ("MCA") was executed on March 15, 2020, between Northgate Fiber Americas Inc., a wholly owned subsidiary of Northgate Telecommunications PLC (as "Owner"), and Meridian Infrastructure Partners LLC (as "Contractor"). The MCA governs the design, engineering, permitting, and construction of approximately 18,500 route miles of underground and aerial fiber-optic cable across seven states: New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia.
The total contract price is $1.2 billion, structured as a hybrid of fixed-price milestone payments and unit-rate compensation. Approximately 65% of the contract price ($780 million) is allocated to fixed-price milestones tied to the completion of defined scope segments, while approximately 35% ($420 million) is based on unit rates for specified construction activities. The contract term is five years from the Notice to Proceed, which was issued on April 1, 2020, establishing an original completion date of March 31, 2025.
The MCA defines 14 milestones pursuant to Section 8.2 (Milestone Schedule), organized across three phases:
• Phase 1 (Milestones 1–4): Core metropolitan backbone and initial regional distribution, covering approximately 3,800 route miles in New York, New Jersey, and portions of Connecticut and Pennsylvania. Phase 1 was substantially completed, although with delays on Milestone 3.
• Phase 2 (Milestones 5–8): Regional expansion into Connecticut, Massachusetts, and the balance of Pennsylvania, covering approximately 5,000 route miles. Phase 2 experienced escalating delays on each successive milestone and was never completed.
• Phase 3 (Milestones 9–14): Full network buildout extending into Maryland and Virginia and completing the remaining route miles, covering approximately 9,700 route miles. Phase 3 had barely commenced at the time of termination, with only 340 of 9,700 route miles completed (approximately 3.5% progress).
As of the April 1, 2024 termination date, Meridian had completed approximately 9,140 of 18,500 route miles, representing 49.4% of the total contracted scope — roughly halfway through the contract term but far behind the milestone schedule.
B. Key Contractual Provisions Ochoa Will Likely Interpret
The following MCA provisions are central to the delay causation dispute and will almost certainly be the subject of Ochoa's expert opinions. Each provision is briefly summarized here; the full contractual language is available in the MCA, which has been produced in discovery and is marked as Exhibit NFA-0001.
Section 5.3 (Permitting Responsibilities). This provision allocates responsibility for obtaining the permits necessary for the fiber-optic construction. As discussed at length in Jeffrey Park's October 2024 analysis memorandum, Section 5.3 distinguishes between (i) backbone interstate corridor rights-of-way and federal regulatory approvals, which are the Owner's responsibility, and (ii) municipal right-of-way permits, easements, and utility crossing approvals, which are the Contractor's responsibility. The interpretation of this provision is central to Ochoa's anticipated Theory 1 (Owner permit delay), and we believe Ochoa's reading of the provision will be inconsistent with its plain language.
Section 8.2 (Milestone Schedule). This provision defines the 14 milestone completion dates and the requirements for interim completion certificates. Each milestone has a defined scope, geographic area, and scheduled completion date. The milestone schedule is the baseline against which Meridian's actual performance is measured, and any delay analysis — whether by Ochoa or Dr. Chazen — will necessarily be anchored to the milestone dates established in this section.
Section 9.1 (Liquidated Damages for Delay). The MCA provides for liquidated damages in the amount of $175,000 per day per milestone for unexcused delay beyond the milestone completion date. Liquidated damages are capped at 10% of the milestone payment amount for any individual milestone and at 5% of the total contract price in the aggregate, establishing an aggregate cap of $60 million. This provision is the basis for NFA's Counterclaim I (liquidated damages of $49 million).
Section 12.4 (Quality Standards). This provision requires all work to conform to Northgate Technical Specification NS-FIBER-2020 and to applicable industry standards, including ANSI/TIA-568 and BICSI guidelines. Compliance with Section 12.4 is relevant to the 287 Non-Conformance Reports ("NCRs") issued during contract performance, 43 of which were classified as critical. Quality failures and the resulting rework are significant contributors to Contractor-caused delay.
Section 14.1 (Termination for Cause by Owner). This provision permits the Owner to terminate the MCA upon the Contractor's material breach, subject to a 30-day written cure period. The termination process followed by NFA — consisting of Cure Notice No. 1 (January 18, 2024), Cure Notice No. 2 (February 19, 2024), rejection of the Corrective Action Plan (March 12, 2024), and Notice of Termination (April 1, 2024) — was designed to comply with the procedural requirements of this section.
Section 14.3 (Termination for Convenience). This provision permits the Owner to terminate the MCA at any time for its convenience upon 60 days' written notice. Upon a termination for convenience, the Contractor is entitled to payment for all completed and accepted work plus 8% of the remaining unperformed contract value as a termination fee. This provision is relevant because Meridian's Count I seeks damages based on the theory that the termination for cause was wrongful and should be treated as a termination for convenience, entitling Meridian to the 8% termination fee ($50,424,000) plus lost profits.
Section 16.1 (Change Orders). This provision requires that any change to the scope of work, schedule, or contract price be documented in a written Change Order signed by both parties. The written Change Order requirement is central to Ochoa's anticipated Theory 2 (constructive change orders), and Meridian's failure to follow this procedure is a significant vulnerability in its constructive change defense.
IV. ANTICIPATED OCHOA OPINIONS — OWNER-CAUSED DELAY THEORIES
Based on the sources identified in Section I above — and particularly Meridian's February 2, 2024 response to Cure Notice No. 1, which articulated three primary delay excuses — we anticipate that Ochoa will advance four principal Owner-caused delay theories. The first three correspond directly to the defenses set forth in Meridian's Cure Notice response; the fourth, concerning NFA's alleged interference and the pretextual nature of the termination, is inferred from Meridian's Complaint allegations (particularly Count IV) and from the tenor of Meridian's discovery responses.
Each anticipated theory is discussed below, together with the expected methodology and counter-arguments for Dr. Chazen's consideration.
A. Theory 1: NFA's Failure to Timely Obtain Municipal Permits (MCA § 5.3)
1. Anticipated Opinion
We anticipate that Ochoa will opine that NFA bore primary responsibility for obtaining municipal right-of-way permits, easements, and utility crossing approvals under MCA Section 5.3, and that NFA's failure to secure these permits in a timely manner constituted the critical-path cause of Meridian's schedule delays across Phases 2 and 3.
This opinion tracks directly from Meridian's February 2, 2024 response to Cure Notice No. 1, in which Meridian expressly asserted that NFA's failure to timely obtain permits was one of three primary reasons for Meridian's schedule delays. The Cure Notice response identified permit delays in Connecticut, western Massachusetts, and portions of Pennsylvania as the principal obstacle to Meridian's progress on Milestones 5 through 8.
Ochoa's permit delay theory will likely be supported by reference to Marcus Henley's deposition testimony from December 3–4, 2024. During his deposition, Henley testified at length that Meridian's construction crews were repeatedly "stacked" — meaning that crews were mobilized and available to begin work on specific segments but were unable to proceed because the necessary municipal permits had not yet been issued. Henley attributed these delays to NFA's alleged failure to coordinate with municipal authorities and to obtain the required approvals on a schedule consistent with Meridian's construction plans. Henley's testimony focused primarily on Connecticut and western Massachusetts during Phase 2, where he characterized the permitting situation as a "bottleneck" that cascaded through the remainder of the schedule.
Ochoa will likely present this testimony as corroborating his schedule analysis and as evidence that the permit delays were Owner-caused, thereby excusing Meridian's failure to meet the Phase 2 and Phase 3 milestone dates.
2. Expected Methodology
Ochoa's methodological approach to the permit delay theory will likely involve the following analytical steps:
First, Ochoa will construct an as-planned versus as-built schedule comparison for the affected milestones (primarily Milestones 5, 6, 7, and 8). This comparison will overlay the dates on which municipal permits were actually issued against the dates on which the construction schedule assumed permits would be available, demonstrating that the gap between planned and actual permit issuance dates preceded and caused corresponding gaps in construction start dates for the affected segments.
Second, Ochoa may employ a "but-for" or "collapsed as-built" critical path analysis in which he removes the alleged Owner-caused permit delays from the as-built schedule and argues that, but for those delays, Meridian would have completed the affected milestones on or near schedule. Under this approach, Ochoa would attribute all or substantially all of the delay days on Milestones 5, 6, 7, and 8 to Owner permit delays — a conclusion we believe is analytically unsupportable for the reasons discussed below.
Third, Ochoa will likely rely on subpoenaed records from municipal permitting authorities in Connecticut, Massachusetts, and Pennsylvania to document the actual permit issuance dates and to demonstrate that the permitting timeline was longer than anticipated. Our records indicate that subpoenas were issued to at least three municipal permitting authorities. To the extent these records show lengthy permitting timelines, Ochoa will argue that the delays were attributable to NFA's failure to manage the permitting process rather than to Meridian's failure to submit timely and complete applications.
3. Counter-Arguments for Dr. Chazen's Consideration
We recommend that Dr. Chazen address the following counter-arguments in her affirmative report to preemptively undermine Ochoa's permit delay theory:
Contractual allocation under MCA § 5.3. The foundational premise of Ochoa's permit delay theory — that NFA bore primary responsibility for obtaining municipal permits — is contradicted by the plain language of the MCA. Jeffrey Park's October 2024 analysis of permitting responsibilities under Section 5.3 concluded that the MCA allocates responsibility for municipal right-of-way permits, easements, and utility crossing approvals to the Contractor (Meridian), while NFA is responsible only for backbone interstate corridor rights-of-way and federal regulatory approvals (such as FCC and DOT approvals for interstate crossings). To the extent Ochoa premises his entire delay analysis on the assertion that these permits were the Owner's obligation, his analysis rests on a contractually unsupported foundation. Dr. Chazen should clearly state this contractual allocation in her report and note that her delay analysis is based on the MCA's actual assignment of permitting responsibilities.
Deposition testimony undermining Ochoa's premise. The deposition testimony from NFA's own personnel directly contradicts Ochoa's anticipated interpretation of Section 5.3. Renata Voss testified during her November 12–13, 2024 deposition that NFA provided Meridian with permit application templates, municipal contact lists, and coordination support, but that Meridian was contractually responsible for completing and submitting all municipal permit applications. Voss characterized NFA's role in the municipal permitting process as facilitative rather than primary — consistent with the contractual allocation described above. Similarly, Sean Calloway testified during his November 19, 2024 deposition that he repeatedly reminded Marcus Henley, both in meetings and by email, that permit applications were Meridian's obligation under Section 5.3. Calloway specifically recalled a September 2022 meeting in which he told Henley that Meridian needed to "take ownership of the permitting process" rather than waiting for NFA to drive submissions. These contemporaneous reminders undermine Ochoa's expected narrative that NFA assumed or accepted responsibility for municipal permits.
Meridian's own admissions regarding late permit submissions. Perhaps most damaging to Ochoa's permit delay theory is the testimony of Meridian's own CEO. Victor Sandoval acknowledged during his December 10–11, 2024 deposition that Meridian's internal project management system (a Tarrant Data Systems schedule database) showed that the majority of municipal permit applications were submitted late — and that the delays in submission were attributable to Meridian's permitting subcontractors, not to NFA. Sandoval specifically conceded that Meridian's permitting subcontractor in Connecticut, which he identified as Regional Permit Services LLC, had fallen behind on application submissions due to staffing issues within that subcontractor's organization. This admission directly undercuts Ochoa's anticipated theory by demonstrating that permit delays were caused by the Contractor's own supply chain failures rather than by the Owner's inaction.
Concurrent delay. Even assuming arguendo that some portion of the permitting process involved Owner coordination or delays attributable to NFA's actions, Dr. Chazen should demonstrate that Meridian's own crew shortages, equipment mobilization failures, and subcontractor management deficiencies were independent concurrent causes of delay that would have produced the same or greater schedule slippage regardless of permit timing. As discussed in Section V.B below, the doctrine of concurrent delay is recognized under New York law, and where both parties contribute to delay, neither may recover delay damages from the other. Dr. Chazen's analysis should present a rigorous apportionment showing that Contractor-caused delays alone were sufficient to produce the observed milestone slippage.
Lack of timely notice. Meridian did not formally notify NFA of alleged permit-related delays until its February 2, 2024 response to Cure Notice No. 1 — nearly four years into contract performance and well after the delays allegedly began in Phase 2 (which commenced in approximately October 2021). If Ochoa relies on permit delays dating back to 2021 or 2022, the absence of contemporaneous written claims or delay notices during that period fundamentally undermines the causal chain. A contractor that experiences Owner-caused delays on the critical path but fails to provide notice for years is either not genuinely impacted by those delays or is failing to mitigate — in either case, the delay cannot reasonably be attributed to the Owner. Dr. Chazen should note the absence of contemporaneous notice in her report and explain its significance to the delay analysis.
B. Theory 2: Unformalized Owner-Directed Scope Changes (Constructive Change Orders)
1. Anticipated Opinion
We anticipate that Ochoa will opine that NFA directed fourteen (14) scope changes during the course of contract performance that were never formalized as written Change Orders under MCA Section 16.1, and that these constructive change orders expanded Meridian's scope of work, disrupted the critical path, and caused schedule delays that contributed to Meridian's failure to meet milestone deadlines.
This opinion is directly foreshadowed by Meridian's February 2, 2024 response to Cure Notice No. 1, which identified "14 Owner-directed scope changes not formalized as Change Orders" as a basis for excusing Meridian's delay. Meridian's Verified Complaint (filed July 15, 2024) repeats this assertion, alleging in Paragraphs 47 through 62 that NFA directed changes to the work that expanded Meridian's obligations without corresponding adjustments to the schedule or contract price.
Based on Meridian's discovery responses and the deposition testimony obtained to date, Ochoa may categorize these alleged scope changes into three general types:
(i) Route deviations — alleged NFA directions to modify the planned fiber-optic cable route in specific segments due to changed utility locations, property owner objections, or NFA's evolving network design preferences;
(ii) Technology specification upgrades — alleged NFA directions to modify the fiber count, conduit specifications, or installation methodology beyond what was specified in the original NS-FIBER-2020 technical specifications; and
(iii) Network access point additions — alleged NFA directions to add network access points, splice locations, or interconnection facilities not included in the original scope of work.
Ochoa will likely characterize each of these categories as representing material changes to Meridian's contractual obligations that required additional labor, equipment, materials, and time — and that NFA's failure to formalize these changes as written Change Orders deprived Meridian of the schedule relief and cost adjustments to which it was entitled.
2. Expected Methodology
Ochoa's methodological approach to the constructive change order theory will likely include the following elements:
First, Ochoa will attempt to isolate the schedule impact of each alleged scope change using a time-impact analysis or windows analysis method. For each of the fourteen alleged changes, he will identify the date on which the change was allegedly directed, the activities affected, and the additional duration required to complete the changed work. He will then insert these additional durations into the schedule to demonstrate their impact on the critical path and on milestone completion dates.
Second, Ochoa may attempt to quantify the additional labor hours, equipment days, and material costs associated with each alleged change, which would then feed into Dr. Forster's damages quantification model. This quantification will likely be based on Meridian's daily reports, crew deployment records, and material procurement data.
Third, Ochoa will likely rely on email correspondence and field directives from NFA personnel — particularly from Sean Calloway in his role as Senior Project Director — as evidence that NFA orally or informally directed scope changes without following the written Change Order procedure. Ochoa may argue that these field directives constitute constructive change orders under New York construction law, obligating NFA to pay for the additional work and to grant schedule relief regardless of the absence of formal written Change Orders.
3. Counter-Arguments for Dr. Chazen's Consideration
We recommend that Dr. Chazen address the following counter-arguments to preemptively undermine Ochoa's constructive change order theory:
MCA § 16.1 — Written Change Order requirement. The MCA contains an unambiguous written Change Order requirement. Section 16.1 provides that no change to the scope of work, schedule, or contract price shall be binding upon either party unless it is set forth in a written Change Order signed by authorized representatives of both the Owner and the Contractor. Meridian's failure to follow this procedure — by submitting written Change Order requests at the time the alleged scope changes were directed — is legally significant. Under New York law, a contractor's failure to comply with a written change order provision may bar recovery for the claimed changes, particularly where the contractor continued to perform without objection. See Jeffrey Park's October 2024 analysis of the constructive change order defense, which surveys relevant New York precedent. Dr. Chazen should note in her report that none of the fourteen alleged scope changes were documented through the contractual Change Order process.
Distinguish field clarifications from scope changes. Dr. Chazen should carefully analyze each of the fourteen alleged "scope changes" identified by Meridian and determine whether they constitute true changes to the contracted scope of work or merely routine field clarifications, coordination directives, or Owner responses to Meridian's own design errors and specification non-conformances. This distinction is critical. Construction projects of this scale routinely involve field-level communications between owner and contractor personnel regarding installation details, coordination with other utilities, and resolution of design ambiguities — none of which constitute scope changes. Sean Calloway testified during his November 19, 2024 deposition that most of the alleged "scope changes" cited by Meridian were actually corrections necessitated by Meridian's failure to follow the NS-FIBER-2020 specifications. Calloway specifically identified several instances in which Meridian had installed fiber cable or conduit in a manner inconsistent with the technical specifications and NFA's field inspectors directed Meridian to correct the non-conforming work. Such corrective directives are not scope changes — they are quality enforcement actions taken pursuant to MCA Section 12.4.
Lack of contemporaneous documentation by Meridian. If Meridian truly believed that NFA's field directives constituted scope changes requiring additional time and compensation, Meridian was required under MCA Section 16.1 to submit a written Change Order request documenting the alleged change, its scope impact, its schedule impact, and its cost impact. Discovery has not produced any such Change Order requests from Meridian during the contract performance period. The absence of contemporaneous documentation strongly suggests that Meridian did not, at the time, consider these field directives to be scope changes — and that the current characterization of fourteen "constructive change orders" is a revisionist litigation strategy developed after the termination.
Schedule impact unlikely to be on critical path. Even accepting arguendo that some field modifications occurred that went beyond the original scope, Dr. Chazen should analyze whether these modifications affected activities on the critical path of the as-built schedule. Many of the alleged changes identified in Meridian's discovery responses appear to involve secondary or non-critical activities — such as minor route adjustments in non-critical segments, additions of access points at locations that were not on the critical path, or specification clarifications that did not add measurable duration to critical activities. If the alleged changes did not affect the critical path, they cannot be a cause of milestone delays, and Ochoa's attribution of delay days to these changes would be analytically unsupportable.
Deposition evidence — Henley's equivocal testimony. Marcus Henley's deposition testimony on the constructive change order issue was notably equivocal. While Meridian's Cure Notice response and Complaint refer to fourteen scope changes, Henley could identify only five or six specific instances in which NFA field personnel allegedly directed work beyond the original plans. Even for those five or six instances, Henley acknowledged that he could not specifically identify the schedule impact of any individual alleged change. He was unable to quantify the additional duration, labor, or cost associated with any of them. This testimony significantly undermines the factual foundation for Ochoa's anticipated constructive change order analysis. Dr. Chazen should note this discrepancy in her report and challenge Ochoa's reliance on a number (fourteen) that lacks support even in Meridian's own witnesses' testimony.
C. Theory 3: Force Majeure — COVID-19 Aftereffects on Labor and Supply Chain
1. Anticipated Opinion
We anticipate that Ochoa will opine that the lingering effects of the COVID-19 pandemic on construction labor availability and the fiber-optic cable supply chain constituted force majeure events that excused Meridian's delay. Specifically, Ochoa will likely argue that the pandemic caused severe disruptions to the supply of skilled construction labor in the northeastern United States and extended the delivery lead times for critical materials — particularly fiber-optic cable and conduit — from major manufacturers, and that these disruptions prevented Meridian from performing on schedule regardless of its own management practices.
This opinion tracks the third defense articulated in Meridian's February 2, 2024 response to Cure Notice No. 1, which cited force majeure as a basis for excusing Meridian's schedule delays. Meridian's Verified Complaint (Paragraphs 63–71) similarly alleges that COVID-19 aftereffects constituted force majeure events under the MCA.
Ochoa may present this theory with supporting data on national construction labor shortages during 2021–2023, including Bureau of Labor Statistics data on construction employment levels, wage inflation, and job vacancy rates in the northeastern United States. He may also present fiber cable delivery records showing extended lead times from major manufacturers during the same period, coupled with analysis suggesting that these market-wide conditions made it impossible or commercially impracticable for Meridian to staff its crews and procure materials on the schedule contemplated by the MCA.
2. Expected Methodology
Ochoa's methodological approach to the force majeure theory will likely include the following elements:
First, Ochoa will present industry-wide labor statistics and wage data showing tight construction labor markets in the northeastern United States during 2021–2023. This data will likely be drawn from Bureau of Labor Statistics reports, Associated General Contractors of America workforce surveys, and similar industry publications. Ochoa will argue that these market conditions made it difficult or impossible for any contractor — not just Meridian — to recruit and retain the skilled labor force necessary for a project of this scale.
Second, Ochoa will present supplier delivery records showing extended lead times for fiber-optic cable, conduit, and other critical materials. He may obtain or reference delivery records from Meridian's primary material suppliers and compare actual delivery dates to originally committed dates, attributing the delivery delays to supply chain disruptions caused by the pandemic.
Third, Ochoa will present a comparison of Meridian's staffing plans versus actual crew deployment, arguing that the shortfall between planned and actual crew levels was caused by market conditions rather than by Meridian's management failures. He may present Meridian's monthly workforce reports alongside industry-wide labor availability data to support this narrative.
3. Counter-Arguments for Dr. Chazen's Consideration
We recommend that Dr. Chazen address the following counter-arguments to undermine Ochoa's force majeure theory:
MCA force majeure clause requires timely notice and mitigation. The MCA's force majeure clause (which I am analyzing in a separate memorandum currently in preparation) imposes specific procedural prerequisites for invoking force majeure, including timely written notice to the Owner identifying the force majeure event and its anticipated impact on the schedule, and a demonstrable showing of mitigation efforts. Meridian did not provide written force majeure notices as required by the MCA at the time the alleged force majeure events occurred. Instead, Meridian first raised the force majeure defense in its February 2, 2024 response to Cure Notice No. 1 — years after the alleged force majeure conditions purportedly began. The failure to comply with the contractual notice requirements may be independently fatal to the force majeure defense as a matter of law, and Dr. Chazen should note this procedural deficiency in her report.
Temporal mismatch. There is a significant temporal mismatch between the period of most acute COVID-19 supply chain disruption and the period of Meridian's worst schedule delays. The most severe pandemic-related disruptions to the construction industry — including lockdowns, supply chain shutdowns, and the initial labor market dislocation — occurred in 2020 and early 2021. Critically, Meridian actually completed Phase 1 substantially and achieved early Phase 2 milestones during this period, suggesting that the pandemic did not prevent Meridian from performing during the worst of the disruption. The most serious delays — on Milestones 6, 7, and 8 and in Phase 3 — occurred in 2022, 2023, and early 2024, by which time supply chain conditions had largely normalized, construction material lead times had returned to near-normal levels, and the labor market, while still tight, had stabilized. Ochoa will need to explain why Meridian performed relatively well during the worst of the pandemic but experienced escalating failures as conditions improved. Dr. Chazen should highlight this paradox.
Competitor performance. Dr. Chazen should analyze whether similarly situated fiber-optic construction contractors experienced comparable delays during the same period and in the same geographic markets. In particular, Crestline Construction Group Inc. — which executed the replacement contract with NFA on June 10, 2024, and has already mobilized and commenced work — agreed to a 30-month timeline for completing the remaining Phase 2 scope and the full Phase 3 scope. Crestline's willingness to commit to a 30-month timeline for comparable work in the same states and market conditions strongly suggests that the labor and supply chain markets are capable of supporting performance and that Meridian's delays were attributable to Contractor-specific failures rather than industry-wide force majeure conditions. If data on Crestline's early mobilization progress is available, Dr. Chazen should reference it as a benchmark.
Meridian's own internal communications. discovery has produced Meridian internal emails that significantly undermine the force majeure narrative. Emails from Marcus Henley and Bridget Yeung, Meridian's Vice President of Project Controls, acknowledge crew management failures and high crew turnover that were attributable to Meridian's own compensation practices and scheduling practices rather than to market-wide labor shortages. Specifically, several Henley emails from mid-2022 refer to experienced crew members leaving Meridian for competitors offering higher wages and better schedules — which is a Contractor management failure, not a force majeure event. Additionally, emails involving Meridian's CFO, Randall Obrecht, reveal that delayed equipment procurement was traceable to Obrecht's cash management decisions — specifically, decisions to defer capital equipment purchases to manage Meridian's cash flow — rather than to supplier unavailability. These internal admissions are powerful evidence that Meridian's resource constraints were self-inflicted.
Henley deposition admissions on crew reallocation. Perhaps most damaging to the force majeure theory is Marcus Henley's admission during his December 3–4, 2024 deposition that crew shortages on the Northgate project in Phase 2 were partly caused by Meridian's decision to reassign experienced crews to other, non-Northgate projects in order to meet competing contractual deadlines. Henley acknowledged that at least three experienced splicing crews and two cable-laying crews were pulled from the Northgate project in the second half of 2022 and reassigned to a Meridian project in Virginia for a different client. This is a Contractor resource allocation decision — a conscious business judgment to prioritize other work over Northgate — and it cannot be characterized as force majeure under any accepted definition. Dr. Chazen should specifically address this testimony in her analysis and demonstrate its impact on the schedule.
D. Theory 4: NFA's Interference and Pretext for Termination
1. Anticipated Opinion
Although this theory extends beyond the traditional scope of construction delay analysis, we anticipate that Ochoa may offer opinions, either directly or as part of his delay narrative, suggesting that NFA actively interfered with Meridian's performance and that the April 1, 2024 termination for cause was pretextual — motivated not by genuine concerns about Meridian's performance failures but by NFA's strategic desire to bring fiber construction in-house, to re-procure the remaining work at lower post-pandemic construction prices, or to restructure the project for other business reasons.
This theory tracks Meridian's April 8, 2024 written response contesting the termination and is the factual predicate for Meridian's Count IV — breach of the implied covenant of good faith and fair dealing, in which Meridian seeks $34,133,333 in damages. Meridian's Complaint alleges (Paragraphs 85–97) that NFA engaged in a pattern of "over-inspection, unnecessary scrutiny, and burdensome compliance demands" designed to manufacture grounds for termination.
Ochoa may point to NFA's execution of the Crestline replacement contract at $712 million as evidence bearing on NFA's motivations. At first blush, the Crestline contract price — which is approximately $81.7 million more than the remaining MCA scope value of approximately $630.3 million — appears to undercut the theory that NFA terminated to re-procure at lower prices. However, Ochoa may approach this data point in one of two ways: he may argue that the higher Crestline price actually demonstrates that NFA was not motivated by cost savings and therefore must have had some other improper motivation for the termination; or, alternatively, he may argue that the Crestline contract was structured to include scope additions, accelerated performance incentives, or other cost elements that inflate the apparent price and that a true apples-to-apples comparison would show that NFA obtained a better deal.
2. Counter-Arguments for Dr. Chazen's Consideration
We recommend that Dr. Chazen consider the following counter-arguments, recognizing that the pretext theory may be partially outside the scope of her construction delay expertise:
Outside scope of construction delay expert. To the extent Ochoa opines on NFA's corporate motivations, business strategies, or subjective intent in terminating the MCA, these opinions exceed the typical and accepted scope of a construction delay expert's competence. Construction experts are qualified to opine on schedule analysis, delay causation, critical path methodology, and the impact of specific events on the construction schedule. They are not typically qualified to opine on corporate governance, business strategy, or the subjective motivations of a party's decision-makers. If Ochoa ventures into this territory, his opinions may be subject to challenge under New York's Frye standard as impermissible lay opinion testimony, legal conclusions, or opinions outside his area of demonstrated expertise. A separate memorandum addressing potential Frye challenges to both Ochoa and Dr. Forster is planned for mid-March 2025.
Record of material breach is overwhelming. Regardless of NFA's subjective motivations — which are legally irrelevant to the termination-for-cause analysis if the contractual grounds for termination were objectively satisfied — the factual record of Meridian's material breach is overwhelming. The record includes:
• 287 Non-Conformance Reports issued during contract performance, of which 43 were classified as critical NCRs involving defects such as splice loss exceeding specifications, improper conduit depth (below code requirements), and unauthorized route deviations that departed from approved plans;
• Escalating milestone delays: 47 days of delay on Milestone 3, 22 days on Milestone 5, 68 days on Milestone 6, 91 days on Milestone 7, and 134 or more days accrued on Milestone 8 at the time of termination — a pattern of accelerating schedule deterioration that demonstrates systemic performance failure rather than isolated incidents;
• Only 49.4% of route miles completed at the time of termination (9,140 of 18,500 route miles), despite the project being at roughly the midpoint of the five-year contract term;
• Only 3.5% progress on Phase 3 (340 of 9,700 route miles completed), indicating that Meridian had barely commenced the final and largest phase of the work when it was terminated.
This factual record supports the conclusion that the termination for cause was substantively justified based on Meridian's material breach, and Dr. Chazen's analysis should present these facts clearly and compellingly to preempt the pretext narrative.
Cure notice compliance. NFA followed the procedural requirements of MCA Section 14.1 meticulously. The timeline of the cure process was as follows:
• January 18, 2024: Cure Notice No. 1 issued, identifying specific material breaches including milestone delays, quality non-conformances, and staffing deficiencies;
• February 2, 2024: Meridian's response to Cure Notice No. 1, asserting the three delay excuses (permit delays, constructive change orders, and force majeure) but not presenting a cure plan;
• February 19, 2024: Cure Notice No. 2 issued, noting that Meridian's response did not constitute an adequate cure and that performance had continued to deteriorate, with 12 additional critical NCRs issued in February 2024 alone;
• March 5, 2024: Meridian submitted its Corrective Action Plan;
• March 12, 2024: NFA rejected the Corrective Action Plan as insufficient, noting that the plan was not adequately detailed, did not address systemic quality issues, and was not supported by committed resource mobilization;
• April 1, 2024: Notice of Termination issued — well beyond the 30-day cure period provided in Section 14.1.
This careful, procedurally compliant cure process is inconsistent with a theory of pretextual termination. If NFA had been seeking a pretext, it would not have invested two and a half months in cure notices, corrective action plan review, and dialogue with Meridian before terminating.
Privileged documents dispute is irrelevant to construction expert opinion. Meridian has filed a motion to compel production of 214 documents that NFA has withheld on the basis of attorney-client privilege and work product protection, including internal financial models, board presentations, and strategic planning documents that Meridian contends bear on NFA's motivations for the termination. Even if some of these documents are ultimately produced following Justice Ricci's ruling on the privilege motion (argument scheduled for February 28, 2025), the factual basis for material breach remains independent of NFA's internal strategic discussions. A construction expert's delay analysis should be grounded in schedule data, critical path methodology, and construction performance metrics — not in privileged corporate strategy documents. Dr. Chazen should not engage with the pretext theory in her delay analysis, except to the extent necessary to demonstrate that Meridian's delays were Contractor-caused.
V. CROSS-CUTTING METHODOLOGICAL VULNERABILITIES IN OCHOA'S EXPECTED ANALYSIS
In addition to the theory-specific counter-arguments discussed in Section IV, several cross-cutting methodological vulnerabilities are likely to afflict Ochoa's analysis regardless of the specific delay theory he advances. Dr. Chazen should be prepared to address each of these vulnerabilities in her affirmative report and, if necessary, in her rebuttal report.
A. Critical Path Methodology Concerns
Ochoa will necessarily employ one of several accepted critical path method ("CPM") scheduling methodologies to support his delay causation opinions. The principal methodologies recognized in the construction scheduling community include:
• As-planned versus as-built analysis, which compares the original baseline schedule to the actual construction sequence to identify deviations and their causes;
• Time-impact analysis (TIA), which prospectively inserts delay events into the schedule at the time they occurred and recalculates the critical path after each event;
• Collapsed as-built analysis, which works backward from the as-built schedule, removing alleged excusable delays to demonstrate what the project completion date would have been "but for" those delays; and
• Windows analysis, which divides the project into discrete time windows and analyzes delay causation within each window independently.
Each of these methodologies has recognized strengths and limitations, and each can be challenged on specific grounds depending on the data inputs, assumptions, and application. Dr. Chazen should be prepared to identify and challenge the methodology Ochoa selects.
Of particular concern is the collapsed as-built approach, which Ochoa may favor because it is the most effective methodology for a claimant seeking to isolate and remove Owner-caused delays from the schedule. However, the collapsed as-built methodology has a well-recognized vulnerability: it requires the analyst to demonstrate that the delays being removed were truly on the critical path and were not concurrent with Contractor-caused delays. If Owner-caused delays and Contractor-caused delays were concurrent — meaning they occurred simultaneously and each independently would have caused delay to the critical path — then removing only the Owner-caused delays produces an artificially accelerated schedule that does not reflect what would actually have occurred.
Dr. Chazen's December 20, 2024 preliminary findings memo concluded that Meridian's delays were predominantly Contractor-caused. Her affirmative report should build on this preliminary analysis and specifically address each Owner-delay assertion that Ochoa is expected to advance, demonstrating that the alleged Owner delays were either (a) not on the critical path, (b) concurrent with Contractor-caused delays, or (c) factually unsupported.
B. Apportionment of Concurrent Delay
New York law recognizes the doctrine of concurrent delay. Where both the owner and the contractor contribute to construction delays, and where the respective contributions are concurrent rather than sequential, neither party may recover delay damages from the other. This principle is well established in New York construction law and has been applied by the Commercial Division in several recent decisions.
We anticipate that Ochoa may attempt to attribute 100% of the observed delay to Owner causes, ignoring or dismissing the substantial evidence of concurrent Contractor-caused delays. This "all-or-nothing" attribution approach is analytically unsound and is likely to be challenged by Dr. Chazen.
Dr. Chazen should present a fair apportionment analysis that demonstrates the relative contributions of Owner-caused and Contractor-caused delays to the observed milestone slippage. Even under a most-favorable-to-Meridian scenario — giving Meridian the benefit of every arguable Owner delay — the vast majority of the delay is attributable to Contractor causes. The key categories of Contractor-caused delay that Dr. Chazen should quantify and present include:
• Crew shortages, as acknowledged by Marcus Henley in his December 3–4, 2024 deposition, including both market-related shortages and Meridian's self-inflicted shortages caused by crew reallocation to other projects;
• Subcontractor management failures, including late permit application submissions by Regional Permit Services LLC, inadequate quality control by Meridian's splicing subcontractors, and scheduling conflicts among multiple subcontractors in overlapping work areas;
• Failure to timely submit permit applications, as documented in Meridian's own project management system and confirmed by Victor Sandoval's deposition testimony;
• Equipment mobilization delays, including deferred equipment purchases attributable to CFO Randall Obrecht's cash management decisions; and
• Quality rework necessitated by 287 NCRs, including 43 critical NCRs that required re-installation, re-splicing, or re-routing of completed work segments — each of which consumed critical-path duration and displaced other scheduled activities.
C. Reliance on Meridian's Unverified Data
Any delay analysis is only as reliable as its underlying data. Ochoa will necessarily rely heavily on data provided by Meridian in constructing his schedule analysis, including Meridian's Tarrant Data Systems schedule updates, daily field reports, crew deployment records, material procurement records, and equipment utilization logs. This data is generated and maintained by Meridian, and its accuracy and completeness are subject to question.
Dr. Chazen should independently verify Meridian's schedule data against contemporaneous records obtained from independent third-party sources, including:
• Records produced by third-party subcontractors in response to subpoenas issued pursuant to Yuki Nakamura's October 20, 2024 memorandum (subpoenas were issued to seven subcontractors);
• Records produced by municipal permitting authorities (subpoenas were issued to three permitting authorities in Connecticut, Massachusetts, and Pennsylvania); and
• NFA's own contemporaneous records, including field inspection reports, daily observation logs, and correspondence files.
Any discrepancies between Meridian's self-reported data and the third-party records should be prominently highlighted in Dr. Chazen's report as evidence that undermines the reliability of Ochoa's analysis. If, for example, Meridian's daily reports show full crew deployment on a given date while the subcontractor's records show that crews were not present, this discrepancy calls into question the integrity of Meridian's entire data set and, by extension, any analysis built upon it.
D. Potential Frye Challenge Considerations
As noted in Section IV.D above, if Ochoa's opinions extend beyond construction delay analysis to encompass opinions on NFA's corporate motivations, the financial pretext for termination, or legal conclusions regarding whether NFA's actions constituted a breach of the MCA or the implied covenant of good faith and fair dealing, those opinions may be excludable under New York's Frye standard.
Under Frye, expert testimony is admissible only if it is based on principles and methods that are generally accepted in the relevant scientific or professional community. An opinion on corporate strategy or termination motive does not fall within the generally accepted scope of a construction delay expert's competence, and such an opinion would likely be challenged as impermissible lay opinion or legal conclusion masquerading as expert testimony.
A separate memorandum will be prepared closer to the expert report deadline (target: mid-March 2025) evaluating the potential for Frye motions directed at specific opinions of both Ochoa and Dr. Natalie Forster. That assessment will inform our summary judgment strategy, as discussed in Jeffrey Park's January 18, 2025 summary judgment strategy memo.
VI. RECOMMENDATIONS FOR DR. CHAZEN'S AFFIRMATIVE REPORT
Based on the analysis set forth in this memorandum, we make the following recommendations regarding the scope and content of Dr. Chazen's affirmative expert report, due March 31, 2025.
A. Preemptive Addressing of Owner-Caused Delay Theories
Dr. Chazen's affirmative report should proactively address each of the four anticipated Ochoa theories — permit delays, constructive change orders, force majeure, and pretext/interference — rather than waiting for the rebuttal report to engage with these issues. By addressing these theories in the affirmative report, Dr. Chazen can frame the delay causation narrative for Justice Ricci before Ochoa's report is served, establishing the analytical framework through which Justice Ricci will evaluate Ochoa's subsequent opinions.
Dr. Chazen's preliminary critical path analysis, as presented in her December 20, 2024 findings memo, should be expanded to include a detailed as-planned versus as-built comparison for each of the 14 milestones, with delay causation clearly attributed to specific Contractor failures. For each milestone, the report should identify (a) the planned completion date, (b) the actual completion date or status at termination, (c) the number of days of delay, and (d) the specific Contractor-caused events or conditions that drove the delay, supported by contemporaneous documentation and deposition testimony.
B. NCR Analysis Integration
Dr. Chazen should integrate her analysis of the 43 critical Non-Conformance Reports into the delay analysis, demonstrating that quality failures caused rework delays on the critical path. The critical NCRs involve defects such as splice loss exceeding the NS-FIBER-2020 specifications, improper conduit depth below code requirements, and unauthorized route deviations that departed from approved construction plans. Each of these defects required remediation work that consumed critical-path duration and displaced other scheduled activities.
The full NCR analysis should cross-reference the NCR summary and analysis spreadsheet, which catalogs all 287 NCRs by date, phase, milestone, defect type, severity classification (critical or non-critical), cure status, and estimated remediation cost. This spreadsheet establishes a pattern of persistent non-conformance throughout the contract performance period, demonstrating that quality failures were a systemic issue — not isolated incidents — and that the resulting rework was a significant and independent cause of schedule delay.
C. Comparison with Crestline's Mobilization
Dr. Chazen should, to the extent data is available, reference Crestline Construction Group Inc.'s mobilization and progress since June 10, 2024, as a benchmark for what a competent contractor can achieve in compar

CALDERWOOD & HARKNESS LLP PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

MEMORANDUM

MATTER NUMBER: 1022-00005

I. PURPOSE AND SCOPE OF THIS MEMORANDUM

II. BACKGROUND ON JAMES OCHOA, PE

III. SUMMARY OF THE MASTER CONSTRUCTION AGREEMENT'S RELEVANT PROVISIONS

V. CROSS-CUTTING METHODOLOGICAL VULNERABILITIES IN OCHOA'S EXPECTED ANALYSIS

VI. RECOMMENDATIONS FOR DR. CHAZEN'S AFFIRMATIVE REPORT

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