1022-00005 · Hargrove, Deluca & Stein LLP · Motions

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — COMMERCIAL DIVISION PART 49

Index No. 654321/2024 Assigned Justice: Hon. Eleanor M. Ricci

DEFENDANT NORTHGATE FIBER AMERICAS INC.'S CROSS-MOTION FOR A PROTECTIVE ORDER COMPELLING PRODUCTION OF DOCUMENTS WITHHELD BY PLAINTIFF UNDER THE COMMON INTEREST PRIVILEGE, OR, IN THE ALTERNATIVE, FOR IN CAMERA REVIEW

C&H Matter No. 1022-00005

Filed: December 6, 2024

CALDERWOOD & HARKNESS LLP 425 Park Avenue, 33rd Floor New York, New York 10022 Telephone: (212) 558-4000 Facsimile: (212) 558-3588

Linda Osei, Responsible Partner Jeffrey Park, Lead Associate

Attorneys for Defendant Northgate Fiber Americas Inc.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — COMMERCIAL DIVISION PART 49

NOTICE OF CROSS-MOTION

PLEASE TAKE NOTICE that Defendant Northgate Fiber Americas Inc. ("NFA" or "Defendant"), by its attorneys Calderwood & Harkness LLP, hereby cross-moves this Court, pursuant to CPLR §§ 3103 and 3124, for an order:

(1) Compelling Plaintiff Meridian Infrastructure Partners LLC ("Meridian" or "Plaintiff") to produce the one hundred eighty-seven (187) documents listed on Meridian's privilege log that Meridian has withheld from production under an assertion of common interest privilege with non-party Ridgepoint Capital Group LP ("Ridgepoint");

(2) In the alternative, directing an in camera review of the 187 withheld documents to determine whether the common interest privilege properly applies to each document;

(3) Awarding NFA its reasonable attorneys' fees and costs incurred in connection with this cross-motion; and

(4) Granting such other and further relief as this Court deems just and proper.

PLEASE TAKE FURTHER NOTICE that this cross-motion is made upon the accompanying Memorandum of Law in Support of Defendant's Cross-Motion for Protective Order, the Declaration of Jeffrey Park, dated December 6, 2024, together with Exhibits A through J annexed thereto, and upon all prior proceedings in this action.

PLEASE TAKE FURTHER NOTICE that this cross-motion is made in response to Plaintiff's Motion to Compel, filed on November 22, 2024 (NYSCEF Doc. No. 48), and is returnable on January 27, 2025, the same date on which oral argument on Plaintiff's motion is scheduled before the Honorable Eleanor M. Ricci in Part 49 of this Court.

PLEASE TAKE FURTHER NOTICE that answering papers, if any, are required to be served and filed no later than fourteen (14) days prior to the return date, or as otherwise directed by the Court, in accordance with the Commercial Division Rules and CPLR § 2214(b).

Dated: December 6, 2024 New York, New York

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Linda Osei, Responsible Partner Jeffrey Park, Lead Associate 425 Park Avenue, 33rd Floor New York, New York 10022 Tel: (212) 558-4000

Fax: (212) 558-3588

losei@calderwoodharkness.com jpark@calderwoodharkness.com

Attorneys for Defendant Northgate Fiber Americas Inc.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — COMMERCIAL DIVISION PART 49

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT NORTHGATE FIBER AMERICAS INC.'S CROSS-MOTION FOR A PROTECTIVE ORDER COMPELLING PRODUCTION OF DOCUMENTS WITHHELD BY PLAINTIFF UNDER THE COMMON INTEREST PRIVILEGE, OR, IN THE ALTERNATIVE, FOR IN CAMERA REVIEW

I. PRELIMINARY STATEMENT

Defendant Northgate Fiber Americas Inc. ("NFA") respectfully cross-moves for an order compelling Plaintiff Meridian Infrastructure Partners LLC ("Meridian") to produce one hundred eighty-seven (187) documents that Meridian has improperly withheld from discovery on the basis of a purported "common interest privilege" allegedly shared between Meridian and its private equity sponsor, non-party Ridgepoint Capital Group LP ("Ridgepoint"). As set forth below, Meridian's blanket invocation of the common interest privilege to shield these documents from production is unsupported by the facts and contrary to well-settled New York law.

Meridian's privilege log reveals that these 187 documents consist primarily of communications between Meridian's management — including Chief Executive Officer Victor Sandoval, Chief Operating Officer Bridget Yeung, and Chief Financial Officer Randall Obrecht — and Ridgepoint's personnel, including Ridgepoint's Managing Partner Graham Latimer. The withheld documents also include communications between Meridian's litigation counsel at Hargrove, Deluca & Stein LLP ("HDS") and Ridgepoint or its legal advisors, as well as internal Meridian memoranda, board presentations, and financial models that were shared with Ridgepoint concerning the litigation, Meridian's financial condition, and the impact of the termination of the Master Construction Agreement ("MCA") on Meridian's operations and valuation.

Under New York law, the common interest privilege is a narrow exception to the general rule that disclosure of attorney-client communications to third parties operates as a waiver of the privilege. The doctrine requires that the parties asserting the privilege share an identical legal interest — not merely a financial, commercial, or strategic one. Ridgepoint is Meridian's 55% equity owner, having acquired its majority stake in 2018 for approximately $285 million. Ridgepoint has funded Meridian's litigation costs in this action, establishing an estimated $12 million litigation war chest, as disclosed in Meridian's own discovery responses. Ridgepoint's interest in this litigation is quintessentially financial: it seeks to protect and maximize the return on its equity investment in Meridian. That financial interest — however substantial — does not qualify as the type of "identical legal interest" required to invoke the common interest privilege under the governing authorities.

Compounding the problem, there is no evidence that Meridian and Ridgepoint entered into a formal joint defense agreement at any point. During the meet-and-confer process, Meridian's counsel conceded that no such written agreement exists. Instead, Meridian asserted that a common interest arrangement was established "implicitly" through the parties' course of conduct. This assertion is insufficient. The absence of a joint defense agreement, while not per se dispositive, undermines any claim that the parties deliberately coordinated for the purpose of furthering a shared legal defense. The relationship between Ridgepoint and Meridian is that of investor and portfolio company — not co-litigants or parties sharing a common legal defense.

The withheld documents are, moreover, highly relevant to NFA's defenses and counterclaims. They bear directly on Meridian's financial condition and its capacity to perform the MCA, Ridgepoint's role in key business decisions — including the decision to pursue this $200 million lawsuit — Meridian's failure to mitigate damages following the termination, and the reliability of Meridian's damages calculations. NFA should not be deprived of these plainly discoverable materials based on a privilege claim that finds no support in the law.

NFA respectfully requests that the Court compel production of all 187 documents or, at minimum, conduct an in camera review to assess each document's privilege status individually.

II. STATEMENT OF FACTS

A. Background of the Dispute

The underlying dispute arises from the termination of a large-scale fiber-optic construction contract. On March 15, 2020, NFA and Meridian executed the Master Construction Agreement (the "MCA"), a five-year contract valued at approximately $1.2 billion. (Park Decl. Ex. H.) Under the MCA, Meridian was engaged to design, engineer, permit, and construct approximately 18,500 route miles of fiber-optic cable across seven northeastern states: New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia. The MCA was the largest single contract in Meridian's history and represented the centerpiece of NFA's multi-billion-dollar fiber network expansion program.

Over the course of the contract's performance, Meridian persistently failed to meet milestone deadlines and delivered substandard work. NFA issued a total of 287 non-conformance reports during the contract period, 43 of which were classified as critical — reflecting deficiencies that, if left uncorrected, would compromise network integrity or public safety. The cumulative delays across multiple milestones totaled hundreds of days, significantly impairing NFA's network deployment schedule. Meridian also accrued $49 million in liquidated damages under the MCA's delay provisions.

Following extensive efforts to work with Meridian to cure these deficiencies, NFA issued a formal cure notice on January 18, 2024, identifying specific material breaches and affording Meridian the contractually required 30-day period in which to cure. When Meridian failed to cure, NFA issued a second cure notice on February 19, 2024, identifying continuing and additional breaches. Meridian again failed to cure within the contractual cure period. On April 1, 2024, NFA exercised its right to terminate the MCA for cause under Section 14.1 of the Agreement. (Park Decl. Ex. H at § 14.1.)

Meridian initiated this action on July 15, 2024, by filing a Verified Complaint asserting four causes of action and seeking $200 million in damages. (Park Decl. Ex. I.) NFA answered on September 3, 2024, denying Meridian's claims, asserting numerous affirmative defenses, and interposing counterclaims totaling $149 million for breach of contract, breach of warranty, and indemnification.

B. Ridgepoint Capital Group LP's Relationship to Meridian

Ridgepoint Capital Group LP is a Dallas-based infrastructure private equity fund with its principal office located at 2100 Ross Avenue, Suite 3300, Dallas, Texas 75201. (Park Decl. Ex. G.) Ridgepoint specializes in control investments in infrastructure services companies and manages approximately $4.5 billion in committed capital across three funds.

In 2018, Ridgepoint acquired a 55% majority equity stake in Meridian for approximately $285 million through its second flagship fund, Ridgepoint Infrastructure Partners Fund II LP. (Park Decl. Ex. G.) The remaining equity is held by Meridian's CEO Victor Sandoval (30%) and a senior management equity pool (15%). Ridgepoint's investment thesis was premised in significant part on the NFA contract as Meridian's anchor program. Press coverage at the time of the acquisition described the NFA contract as the "backbone" of Meridian's revenue outlook and a key driver of the platform's projected growth. The termination of the MCA in April 2024 was therefore directly adverse to Ridgepoint's equity investment and has materially impaired the value of its portfolio holding in Meridian.

It is undisputed that Ridgepoint is not a party to this litigation. Meridian alone is the plaintiff; Ridgepoint is not named in the Verified Complaint and asserts no independent claims against NFA. (Park Decl. Ex. I.) It is further undisputed that Ridgepoint is not a party to the MCA. (Park Decl. Ex. H.) Ridgepoint has no contractual privity with NFA and faces no direct legal liability in this action. Ridgepoint has not intervened in this proceeding and has not sought to do so.

What Ridgepoint has done is fund Meridian's litigation costs. Meridian's discovery responses disclose that Ridgepoint has established an estimated $12 million litigation war chest to finance the prosecution of Meridian's claims in this action. (Park Decl. Ex. B.) In addition, Meridian's privilege log reveals that Ridgepoint's managing partner, Graham Latimer, has been actively involved in strategic discussions about this lawsuit, including communications regarding the decision to file suit, litigation strategy, and the potential financial outcomes of the litigation. (Park Decl. Ex. A.)

The nature of Ridgepoint's involvement is thus that of a financial sponsor protecting its investment — not that of a co-litigant or joint defender with a shared legal interest.

C. The Disputed Documents

During document discovery in this action, Meridian produced approximately 890,000 documents totaling approximately 1.8 terabytes of data from eight custodians, including Victor Sandoval, Bridget Yeung, Marcus Henley, and six additional custodians. This production was substantially completed in late October 2024.

Contemporaneously with its document production, Meridian served a privilege log identifying 187 documents withheld from production under the common interest privilege. (Park Decl. Ex. A.) NFA promptly identified concerns about the adequacy of Meridian's production, including the withholding of the Ridgepoint-related documents. In a detailed letter dated November 1, 2024, from Linda Osei to Thomas Deluca, NFA identified missing project files, incomplete subcontractor communications, and specifically challenged Meridian's assertion of common interest privilege over the 187 Ridgepoint-related documents. (Park Decl. Ex. D.)

The 187 withheld documents span the period from approximately January 2024 — contemporaneous with NFA's issuance of the first cure notice — through the filing of the Verified Complaint in July 2024. Based on the descriptions set forth in Meridian's privilege log, the documents fall into four principal categories:

First, communications between Meridian executives (Sandoval, Yeung, and Obrecht) and Ridgepoint personnel (Latimer and other Ridgepoint professionals) regarding the termination of the MCA, the decision to file suit, litigation strategy, and litigation funding. These communications appear to be business-to-business communications between a portfolio company and its majority equity sponsor concerning a matter of significant financial consequence to both.

Second, communications between HDS attorneys (Thomas Deluca and Miriam Vasquez) and Ridgepoint personnel or Ridgepoint's own legal advisors. These communications purportedly involve the sharing of attorney-client privileged information with Ridgepoint, which Meridian claims was permissible under the common interest doctrine.

Third, internal Meridian memoranda and board presentations that were shared with Ridgepoint regarding Meridian's financial condition, mitigation of damages, backlog analysis, and the impact of the MCA termination on Meridian's operations. Meridian's post-termination backlog dropped from $1.4 billion to approximately $770 million — a decline of approximately $630 million — and the withheld documents appear to include analyses of this decline prepared for Ridgepoint's review.

Fourth, financial models and projections prepared for Ridgepoint regarding the litigation's potential outcomes and Meridian's valuation. These documents appear to have been created to assist Ridgepoint in assessing the financial impact of the litigation on its investment in Meridian.

Critically, Meridian's privilege log entries for these 187 documents are generic and formulaic. A representative entry states: "Communication re: legal strategy in connection with NFA dispute, shared in furtherance of common legal interest." (Park Decl. Ex. J.) These boilerplate descriptions do not identify the specific legal interest allegedly shared, the nature of the legal advice sought or rendered, or how each communication furthered a common legal (as opposed to financial or business) purpose. The descriptions are functionally identical across virtually all 187 entries, despite the fact that the documents span a six-month period and involve range authors, recipients, and subject matters.

D. Meet-and-Confer Efforts

NFA has made good-faith efforts to resolve the privilege dispute without Court intervention, consistent with the requirements of the Commercial Division Rules and Part 49's individual practices. On November 15, 2024, Linda Osei sent an email to Thomas Deluca proposing a meet and confer on both parties' privilege disputes, including NFA's specific challenge to Meridian's assertion of common interest privilege over the 187 Ridgepoint documents. (Park Decl. Ex. E.)

The parties met and conferred telephonically on November 20, 2024. (Park Decl. Ex. F.) During the call, NFA explained its position that the common interest privilege was inapplicable because Ridgepoint's interest in the litigation is financial, not legal. Meridian refused to produce the documents, maintaining that the common interest privilege applied because Meridian and Ridgepoint shared a "common legal interest in the defense of Ridgepoint's investment and the prosecution of Meridian's claims." Meridian represented that no formal joint defense agreement exists between Meridian and Ridgepoint but asserted that a common interest arrangement was established "implicitly" through the parties' course of conduct. Meridian further declined to provide a more detailed privilege log or any supporting documentation establishing the basis for the common interest claim. (Park Decl. Ex. F.)

Two days later, on November 22, 2024, Meridian filed its own Motion to Compel (NYSCEF Doc. No. 48), seeking production of 214 documents that NFA has withheld on the basis of the attorney-client privilege and the work product doctrine. NFA's opposition to Meridian's motion is separately briefed and was filed on December 2, 2024. NFA now cross-moves to address Meridian's own improper privilege withholdings, which the parties were unable to resolve through the meet-and-confer process.

III. ARGUMENT

A. Legal Standard for Common Interest Privilege Under New York Law

The common interest privilege — also known as the "community of interest" or "allied litigant" privilege — is an extension of the attorney-client privilege that permits parties sharing a common legal interest to exchange attorney-client communications without waiving the privilege. Larkspur Holdings, 27 N.Y.3d 616, 628 (2016). The doctrine recognizes that, in certain circumstances, parties with aligned legal interests may need to share privileged information to coordinate their legal positions, and that compelling disclosure of such shared communications would discourage the free exchange of information necessary for effective legal representation. Id.

However, the common interest privilege is narrow and must be strictly construed. See Hyatt v. State of Cal. Franchise Tax Bd., 105 A.D.3d 186, 205 (2d Dep't 2013). Courts have consistently cautioned against expansive application of the doctrine, which "threatens to transform the attorney-client privilege from a narrow exception to a broad rule of non-disclosure." In re Nassau County Grand Jury Subpoena Duces Tecum, 4 N.Y.3d 665, 678 (2005).

Under New York law, the common interest privilege requires that the party asserting the privilege establish each of the following elements:

(1) The communication was made between parties who share an identical (not merely similar) legal interest;

(2) The communication was made in furtherance of that common legal interest; and

(3) The communication was made in the course of and to further a pending or anticipated litigation or transaction.

See Ambac, 27 N.Y.3d at 628-29; Hyatt, 105 A.D.3d at 205; see also Stenovich v. Crane & Ames LLP, 195 Misc. 2d 99, 109 (Sup. Ct. N.Y. Cnty. 2003). The burden of establishing each element rests squarely on the party asserting the privilege — here, Meridian. Ambac, 27 N.Y.3d at 624.

Critically, New York courts have consistently held that a shared financial, commercial, or business interest is insufficient to invoke the common interest privilege. The interest must be legal in nature. A parent-subsidiary, investor-portfolio company, or lender-borrower relationship does not, standing alone, give rise to a common legal interest. See Hyatt, 105 A.D.3d at 206 (common interest "must be legal rather than commercial or financial in nature"); Egiazaryan v. Zalmayev, 290 F.R.D. 421, 434 (S.D.N.Y. 2013) (applying New York law and holding that a financial interest in the outcome of litigation does not establish a common legal interest); Schaeffler v. United States, 806 F.3d 34, 40 (2d Cir. 2015) (distinguishing financial and legal interests in the common interest context). The Court of Appeals has been particularly emphatic on this point, warning that "the common interest privilege should not be applied loosely to transform every commercial relationship into a shield against disclosure." Ambac, 27 N.Y.3d at 631.

B. Meridian's Common Interest Privilege Claim Fails Because Ridgepoint's Interest Is Financial, Not Legal

Meridian's assertion of the common interest privilege fails at the threshold because Ridgepoint does not share an identical legal interest with Meridian. Ridgepoint's interest in this litigation is purely financial — it seeks to protect the value of its 55% equity investment in Meridian. That interest, while commercially significant, is not the type of common legal interest required to invoke the privilege.

Ridgepoint is not a party to this litigation and has no direct legal interest in the claims or defenses at issue. Meridian alone is the plaintiff. Meridian's four causes of action assert contract-based claims arising from the MCA — an agreement to which Ridgepoint is not a party. NFA's counterclaims are asserted against Meridian alone. Ridgepoint has not intervened, has not sought to intervene, and has no independent legal claims or defenses at stake. Ridgepoint faces no direct liability to NFA, no exposure to a judgment, and no risk of an adverse legal determination that would bind it. The absence of any direct legal stake in the litigation fundamentally distinguishes Ridgepoint's position from that of a party with a true common legal interest.

Ridgepoint is not a party to the MCA and has no contractual privity with NFA. The MCA was executed solely between NFA and Meridian. (Park Decl. Ex. H.) Ridgepoint's name does not appear in the MCA, and Ridgepoint has no rights, obligations, or liabilities under the contract. The legal questions at the heart of this dispute — whether NFA properly terminated the MCA for cause, whether Meridian materially breached its obligations, and the measure of damages — turn entirely on the rights and obligations of the two contracting parties. Ridgepoint has no legal interest in the interpretation or enforcement of the MCA because it is a stranger to the contract.

Ridgepoint's interest is financial, not legal. Ridgepoint acquired its 55% stake in Meridian for approximately $285 million, and its investment thesis was premised in significant part on the NFA contract as Meridian's anchor program. The termination of the MCA directly threatens the value of Ridgepoint's equity investment. Ridgepoint's $12 million litigation funding further confirms its financial motivation: it has made a calculated business decision to finance the prosecution of Meridian's claims in order to recover as much value as possible from its impaired investment. This is a paradigmatic financial interest. It is no different from the interest of any equity investor in the financial success of its portfolio company, or the interest of a litigation funder in the outcome of a funded case. Neither qualifies as a common legal interest under New York law.

New York courts have repeatedly rejected common interest privilege claims in analogous circumstances. In Egiazaryan v. Zalmayev, 290 F.R.D. 421, 434 (S.D.N.Y. 2013), the court, applying New York law, held that a party's financial interest in the outcome of litigation — even where that party was funding the litigation — did not establish a common legal interest sufficient to invoke the privilege. The court emphasized that "[a] shared desire to see the same outcome in a case is not the same as a shared legal interest." Id. Similarly, in Hyatt, the Second Department held that a common interest in the financial consequences of litigation was insufficient, requiring instead that the parties share an interest that is "legal rather than commercial or financial in nature." 105 A.D.3d at 206.

The First Department's analysis in Gulf Islands Leasing, Inc. v. Bombardier Capital, Inc., 215 A.D.2d 151, 152 (1st Dep't 1995), is also instructive. There, the court declined to extend the common interest privilege to communications between a lender and a borrower, even though both had a financial interest in the outcome of the litigation, because the lender's interest was in protecting its investment — not in defending a common legal claim. The same reasoning applies here. Ridgepoint's interest is in protecting its $285 million investment in Meridian. That is a financial interest of the highest order, but it is not a legal interest.

Ridgepoint's role in the litigation is that of a litigation funder, not a co-litigant. The fact that Ridgepoint has committed approximately $12 million to fund Meridian's prosecution of this lawsuit does not create a common legal interest. Litigation funding arrangements are increasingly common in complex commercial disputes, but courts have consistently held that a funder's financial interest in the outcome of funded litigation does not give rise to the common interest privilege. See, e.g., Miller UK Ltd. v. Granite Harbor Group, Inc., 17 F. Supp. 3d 711, 735 (N.D. Ill. 2014) (refusing to extend common interest privilege to litigation funder); Leader Techs., Inc. v. Kestrel Services Inc., Inc., 719 F. Supp. 2d 373, 376 (D. Del. 2010) (same). A contrary rule would permit any well-funded litigant to share privileged information with its financial backer and then shield those communications from discovery — a result that would dramatically and unjustifiably expand the scope of the privilege.

Ridgepoint's managing partner was involved in business and investment decisions, not in providing or receiving legal advice. Meridian's privilege log reveals that Graham Latimer participated in discussions about the litigation's potential outcomes, Meridian's financial condition, backlog analysis, and valuation. These are precisely the types of business and investment discussions that a private equity sponsor would have with its portfolio company in the ordinary course. They reflect Ridgepoint's role as a majority equity owner managing its investment — not its role as a participant in a joint legal defense. The sharing of attorney-client privileged information with a private equity sponsor for the purpose of managing the sponsor's investment is a waiver of the privilege, not an exercise of the common interest doctrine.

C. There Is No Joint Defense Agreement or Other Indicia of a True Common Legal Interest

Meridian has conceded that no formal joint defense agreement exists between Meridian and Ridgepoint. (Park Decl. Ex. C; Park Decl. Ex. F.) During the November 20, 2024 meet-and-confer call, Meridian's counsel represented that the common interest arrangement was established "implicitly" through the parties' course of conduct. This concession is significant and further undermines Meridian's privilege claim.

The absence of a written joint defense agreement is not, standing alone, dispositive of the common interest inquiry. Courts have recognized that a common interest arrangement need not be memorialized in writing. See, e.g., Ambac, 27 N.Y.3d at 631. However, the absence of such an agreement is highly probative of whether the parties deliberately and consciously entered into an arrangement to share legal strategy and attorney-client communications for a common legal purpose. See Stenovich, 195 Misc. 2d at 110 ("The existence of a joint defense agreement, while not required, is strong evidence that the parties intended to pursue a common legal interest."). Where, as here, there is no written agreement, no evidence of a deliberate arrangement, and the asserted basis for the common interest is the general investor-portfolio company relationship, the privilege claim fails.

Meridian's assertion of an "implicit" common interest arrangement is insufficient under New York law. The common interest privilege requires more than the mere exchange of information between an investor and its portfolio company. It requires a showing of deliberate coordination in furtherance of a shared legal interest — that is, an interest in the legal claims, defenses, or legal theories at issue in the litigation. See Hyatt, 105 A.D.3d at 205-06. Meridian has made no such showing. It has offered no evidence that Meridian and Ridgepoint specifically agreed to coordinate their legal strategies, that Ridgepoint was consulted on legal (as opposed to business) decisions, or that the sharing of privileged communications served any purpose other than keeping Ridgepoint informed about the status and financial implications of the litigation as Meridian's majority equity owner.

Moreover, Ridgepoint does not share counsel with Meridian. HDS represents Meridian in this action; there is no indication that HDS jointly represents Ridgepoint, or that Ridgepoint has retained its own litigation counsel to participate in a joint defense. While some of the withheld documents appear to involve communications between HDS attorneys and Ridgepoint or its legal advisors, the mere fact that privileged communications were shared with a third party does not establish a common legal interest — it establishes a waiver of the privilege unless the common interest doctrine applies. See In re Nassau County Grand Jury Subpoena, 4 N.Y.3d at 678. Meridian cannot bootstrap its way into a common interest privilege by first sharing privileged information with Ridgepoint and then arguing, after the fact, that the sharing was permissible because a common interest existed.

D. The Withheld Documents Are Highly Relevant to NFA's Defenses and Counterclaims

Even apart from the legal insufficiency of Meridian's privilege claim, the 187 withheld documents are directly relevant to several critical issues in this case, and their continued withholding would cause substantial prejudice to NFA. The documents bear on no fewer than five central issues:

Meridian's financial condition and ability to perform. NFA's affirmative defenses include that Meridian was unable to perform the remaining scope of the MCA at the time of termination and that Meridian's persistent schedule delays were attributable, at least in part, to financial constraints. Meridian's FY2023 revenue was $620 million with EBITDA of $58.9 million (a 9.5% margin). At the time of termination, approximately $630.3 million in MCA scope remained. Communications between Meridian and Ridgepoint regarding Meridian's financial health, cash flow, and operational capacity bear directly on whether Meridian was capable of performing the remaining work. These are not marginal or peripheral documents — they go to the heart of NFA's defense that the termination for cause was justified.

Failure to mitigate damages. NFA has asserted that Meridian failed to mitigate its damages following the April 2024 termination. The evidence already in the record shows that Meridian's post-termination backlog dropped from $1.4 billion to approximately $770 million — a decline of roughly $630 million that cannot be explained solely by the loss of the NFA contract. Communications between Meridian and Ridgepoint regarding Meridian's pursuit of replacement work, its analysis of available market opportunities, and its strategic decisions about bidding and project selection are directly relevant to mitigation. If Ridgepoint discouraged Meridian from pursuing replacement work in order to inflate its damages claim in this litigation, that evidence would be of the highest relevance — and it is precisely the type of evidence that may be found in the withheld documents.

Litigation funding and bias. Ridgepoint's $12 million commitment to fund this litigation, and its role in the decision to file a $200 million lawsuit, are relevant to Meridian's motives, credibility, and the commercial realities underlying this dispute. Ridgepoint's investment thesis was premised on the NFA contract; the termination impaired Ridgepoint's investment; and the litigation appears to be driven, at least in part, by Ridgepoint's desire to recoup investment losses rather than by legitimate breach-of-contract claims. Documents reflecting Ridgepoint's analysis of the litigation as an investment recovery strategy, its influence on litigation strategy, and its role in setting damages targets are relevant to NFA's defenses and to the Court's assessment of the equities in this case.

Damages calculations. Financial models and projections shared with Ridgepoint about the litigation's potential outcomes and Meridian's valuation go directly to the damages analysis and the reliability of Meridian's claimed $200 million in losses. If Meridian's own internal analyses — prepared for the benefit of its private equity sponsor — yield different damages figures than those asserted in the Verified Complaint, that discrepancy is probative and discoverable. These documents may also reveal assumptions about the probability of success on various claims that are relevant to the credibility and reasonableness of Meridian's damages theory.

Pretext defense. Meridian has placed NFA's motivations squarely at issue in this litigation by alleging that NFA's termination of the MCA was "pretextual." Having put motive at issue, Meridian cannot simultaneously shield from discovery evidence of its own motivations in pursuing this litigation and the role that Ridgepoint played in that decision. NFA is entitled to explore whether this lawsuit was filed in good faith based on a genuine belief that the termination was wrongful, or whether it was initiated at Ridgepoint's direction as a mechanism to recover value on a distressed investment. The withheld documents are likely to shed light on this question.

In sum, the 187 documents are not peripheral or collateral. They go to the core factual and legal issues in this case. The prejudice to NFA from their continued withholding is substantial and cannot be justified by a privilege claim that, as demonstrated above, is legally insufficient.

E. Meridian's Privilege Log Is Deficient

Independent of the merits of Meridian's common interest privilege claim, the privilege log itself is deficient and fails to satisfy the requirements of CPLR § 3122 and the Commercial Division Rules.

Under CPLR § 3122(b), a party withholding documents on the basis of privilege must serve a privilege log that provides sufficient information to enable the opposing party and the Court to assess the validity of the privilege claim. At minimum, the log must identify the date of each document, its author and recipients, the general subject matter, and the specific basis for the privilege asserted. See also Commercial Division Rule 11-b (requiring that privilege logs include "a description of the document that, without revealing information itself privileged or protected, will enable other parties to assess the claim"). Courts in this Division have consistently held that "generic, boilerplate log entries" are insufficient and may result in waiver of the privilege or an adverse inference. See, e.g., Silverman v. Shaoul, 2018 N.Y. Misc. Calderon Systems 3456, at *8 (Sup. Ct. N.Y. Cnty. 2018).

Meridian's privilege log descriptions for the 187 documents are generic and formulaic. As illustrated by the exemplar entries attached to the Park Declaration (Park Decl. Ex. J), the descriptions follow a nearly identical template: "Communication re: legal strategy in connection with NFA dispute, shared in furtherance of common legal interest." Minor variations appear — some entries substitute "litigation strategy" for "legal strategy," or "NFA matter" for "NFA dispute" — but the descriptions are functionally interchangeable across virtually all 187 entries. They do not identify the specific legal interest allegedly shared between Meridian and Ridgepoint. They do not describe the nature of the legal advice sought or rendered. They do not explain how each particular communication furthered a common legal (as opposed to financial or business) purpose. And they provide no basis for the Court to evaluate whether the common interest privilege properly applies to any individual document.

The deficiency of the privilege log is particularly problematic in this context because, as demonstrated above, the common interest privilege requires a document-by-document showing that each communication was made in furtherance of a shared legal interest. A boilerplate log that treats all 187 documents as interchangeable does not satisfy this burden. At minimum, Meridian should be required to serve a supplemental privilege log with adequate descriptions for each document. If the Court is not prepared to order production of the documents outright, the deficiency of the log provides an independent basis for requiring Meridian to supplement its log before the Court rules on the privilege claim.

F. In the Alternative, the Court Should Conduct In Camera Review

If the Court is not prepared to order production of all 187 documents outright, NFA respectfully requests that the Court conduct an in camera review of the documents to determine, on a document-by-document basis, whether the common interest privilege properly applies.

In camera review is a well-established procedure in New York for resolving contested privilege claims. See, e.g., Spectrum Sys. Int'l Corp. v. Granite Harbor Securities, 78 N.Y.2d 371, 378 (1991) (holding that in camera review is appropriate when "the trial court has sufficient doubt about the correctness of the privilege claim"). The procedure is particularly appropriate in circumstances where, as here:

(1) The privilege claim is contested and rests on a disputed factual predicate — namely, whether Ridgepoint shares a legal interest or merely a financial one. The Court's resolution of this question may turn on the content and context of the documents themselves, which cannot be assessed from the face of Meridian's deficient privilege log.

(2) The privilege log is insufficiently detailed to permit resolution of the privilege claim on the papers alone. As discussed above, Meridian's boilerplate descriptions provide no meaningful basis for the Court to evaluate the privilege claim without examining the documents themselves.

(3) The documents are highly relevant to NFA's defenses and counterclaims, creating a significant risk of prejudice if the privilege claim is accepted without scrutiny. Given the stakes of this litigation — $200 million in claimed damages and $149 million in counterclaims — the Court should not accept Meridian's privilege assertions at face value.

NFA proposes that Meridian be directed to submit the 187 documents to the Court under seal for in camera inspection, together with a detailed supplemental privilege log and a supporting affidavit from Meridian's counsel explaining the specific basis for each privilege assertion. This procedure would allow the Court to conduct a granular review of the documents and make individualized privilege determinations, while protecting any documents that are ultimately found to be privileged. It is a measured and proportionate approach that balances the competing interests at stake.

IV. NFA'S OPPOSITION TO MERIDIAN'S MOTION TO COMPEL IS SEPARATELY BRIEFED

NFA notes that its opposition to Meridian's Motion to Compel (NYSCEF Doc. No. 48), which seeks production of 214 documents that NFA has withheld on the basis of the attorney-client privilege and the work product doctrine, is addressed in a separate opposition brief that was filed on December 2, 2024 (NYSCEF Doc. No. 53) and is supplemented by this cross-motion filing. The two motions involve distinct privilege doctrines and distinct document sets, but as both are returnable on January 27, 2025, the Court may wish to hear argument on both motions at the same session. NFA is prepared to address both matters at oral argument and respectfully requests that the Court schedule sufficient time to do so.

V. NFA IS ENTITLED TO ATTORNEYS' FEES

Under CPLR § 3124 and the Court's inherent authority to manage discovery and sanction discovery abuses, NFA is entitled to recover its reasonable attorneys' fees and costs incurred in bringing this cross-motion. Meridian's blanket assertion of common interest privilege over 187 documents is without substantial justification. The common interest privilege is inapplicable as a matter of law because Ridgepoint's interest in this litigation is financial, not legal. Meridian has identified no authority supporting the proposition that a private equity sponsor's desire to protect its equity investment in a portfolio company constitutes a "common legal interest" for privilege purposes. Meridian's privilege log is deficient on its face. And Meridian refused to engage meaningfully with NFA's challenge during the meet-and-confer process, instead filing its own Motion to Compel while declining to address NFA's legitimate concerns about Meridian's withholdings.

NFA has been forced to incur significant legal fees in researching, drafting, and filing this cross-motion. An award of fees is appropriate to compensate NFA for these costs and to deter future unsupported privilege assertions that obstruct legitimate discovery.

VI. CONCLUSION

For the foregoing reasons, Defendant Northgate Fiber Americas Inc. respectfully requests that the Court enter an order:

(1) Compelling Plaintiff Meridian Infrastructure Partners LLC to produce to Defendant the 187 documents identified on Plaintiff's privilege log as withheld under the common interest privilege with Ridgepoint Capital Group LP;

(2) In the alternative, directing in camera review of the 187 withheld documents to determine, on a document-by-document basis, whether the common interest privilege properly applies;

(3) Directing Plaintiff to serve a supplemental privilege log with descriptions adequate under CPLR § 3122 and the Commercial Division Rules;

(4) Awarding Defendant its reasonable attorneys' fees and costs incurred in connection with this cross-motion; and

(5) Granting such other and further relief as the Court deems just and proper.

Dated: December 6, 2024 New York, New York

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Linda Osei, Responsible Partner Jeffrey Park, Lead Associate 425 Park Avenue, 33rd Floor New York, New York 10022 Tel: (212) 558-4000

Fax: (212) 558-3588

losei@calderwoodharkness.com jpark@calderwoodharkness.com

Attorneys for Defendant Northgate Fiber Americas Inc.

WORD COUNT CERTIFICATION

I, Jeffrey Park, an attorney at Calderwood & Harkness LLP, hereby certify, pursuant to Commercial Division Rule 17 and Section 202.70(g) of the Uniform Rules for the Commercial Division, that the foregoing Memorandum of Law in Support of Defendant's Cross-Motion for Protective Order contains approximately 7,380 words, exclusive of the caption, table of contents, table of authorities, signature blocks, and this certification. This word count was determined using the word count function of Microsoft Word. The memorandum therefore complies with the applicable word-count limitations set forth in the Commercial Division Rules.

Dated: December 6, 2024 New York, New York

________________________________________

Jeffrey Park

CERTIFICATE OF SERVICE

I, Jeffrey Park, an attorney at Calderwood & Harkness LLP, hereby certify that on December 6, 2024, a true and correct copy of the following documents:

(1) Notice of Cross-Motion;

(2) Memorandum of Law in Support of Defendant Northgate Fiber Americas Inc.'s Cross-Motion for a Protective Order Compelling Production of Documents Withheld by Plaintiff Under the Common Interest Privilege, or, in the Alternative, for In Camera Review;

(3) Declaration of Jeffrey Park in Support of Defendant's Cross-Motion, dated December 6, 2024, with Exhibits A through J; and

(4) Proposed Order

was served upon all parties entitled to notice by filing and service through the New York State Courts Electronic Filing System ("NYSCEF") and by email upon:

Hargrove, Deluca & Stein LLP 51 West 52nd Street, 40th Floor New York, New York 10019

Attn: Thomas Deluca, Esq.

Attn: Miriam Vasquez, Esq.

tdeluca@hdslaw.com mvasquez@hdslaw.com

Counsel for Plaintiff Meridian Infrastructure Partners LLC

Dated: December 6, 2024 New York, New York

________________________________________

Jeffrey Park

EXHIBIT LIST

The following exhibits are attached to the Declaration of Jeffrey Park in Support of Defendant's Cross-Motion for Protective Order, dated December 6, 2024 (filed separately as NYSCEF Doc. No. _):

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — COMMERCIAL DIVISION PART 49

[PROPOSED] ORDER ON DEFENDANT'S CROSS-MOTION FOR PROTECTIVE ORDER

Upon the Cross-Motion of Defendant Northgate Fiber Americas Inc. ("NFA"), by its attorneys Calderwood & Harkness LLP, for a protective order compelling production of documents withheld by Plaintiff Meridian Infrastructure Partners LLC ("Meridian") under the common interest privilege, or, in the alternative, for in camera review, and upon the Notice of Cross-Motion, the Memorandum of Law in Support, the Declaration of Jeffrey Park dated December 6, 2024 with Exhibits A through J, and upon consideration of any opposition papers filed by Plaintiff, and after oral argument held on January 27, 2025, and due deliberation having been had, it is hereby:

ORDERED that Defendant Northgate Fiber Americas Inc.'s Cross-Motion for a Protective Order is GRANTED [or GRANTED in part]; and it is further

ORDERED that Plaintiff Meridian Infrastructure Partners LLC shall produce to Defendant the one hundred eighty-seven (187) documents identified on Plaintiff's privilege log as withheld under the common interest privilege with non-party Ridgepoint Capital Group LP, within twenty (20) days of the date of this Order; and it is further

[Alternative Provision:]

ORDERED that Plaintiff Meridian Infrastructure Partners LLC shall submit the one hundred eighty-seven (187) documents withheld under the common interest privilege to the Court for in camera review, together with a detailed supplemental privilege log and a supporting affidavit from Plaintiff's counsel explaining the specific basis for the privilege assertion as to each document, within twenty (20) days of the date of this Order; and it is further

ORDERED that Plaintiff Meridian Infrastructure Partners LLC shall serve upon Defendant a supplemental privilege log with descriptions adequate under CPLR § 3122 and the Commercial Division Rules for each of the 187 documents at issue, within twenty (20) days of the date of this Order; and it is further

ORDERED that Defendant Northgate Fiber Americas Inc. is awarded its reasonable attorneys' fees and costs incurred in connection with this cross-motion, in an amount to be determined upon submission of appropriate documentation by Defendant within thirty (30) days of the date of this Order, with Plaintiff to have fourteen (14) days thereafter to submit any objections; and it is further

ORDERED that counsel for Defendant shall serve a copy of this Order with notice of entry upon all parties within five (5) days of entry.

Dated: ____, 2025 New York, New York

________________________________________

Hon. Eleanor M. Ricci, J.S.C.

MERIDIAN INFRASTRUCTURE PARTNERS LLC,

Plaintiff,

– against –

NORTHGATE FIBER AMERICAS INC.,

Defendant.

MERIDIAN INFRASTRUCTURE PARTNERS LLC,

Plaintiff,

– against –

NORTHGATE FIBER AMERICAS INC.,

Defendant.

MERIDIAN INFRASTRUCTURE PARTNERS LLC,

Plaintiff,

– against –

NORTHGATE FIBER AMERICAS INC.,

Defendant.

Exhibit	Description
A	Meridian's Privilege Log — Relevant Entries for the 187 Documents Withheld on Common Interest Grounds
B	Excerpts from Meridian's discovery Responses Identifying Ridgepoint Capital Group LP's Litigation Funding (Approximately $12 Million)
C	Meridian's Response to NFA's Interrogatories Confirming No Formal Joint Defense Agreement Exists Between Meridian and Ridgepoint
D	November 1, 2024 Letter from Linda Osei to Thomas Deluca Identifying Deficiencies in Meridian's Production
E	November 15, 2024 Email from Linda Osei to Thomas Deluca Proposing Meet and Confer on Privilege Disputes
F	November 20, 2024 Meet-and-Confer Correspondence and Summary
G	Publicly Available Information Regarding Ridgepoint Capital Group LP's 2018 Acquisition of 55% Stake in Meridian for Approximately $285 Million
H	Excerpts of the Master Construction Agreement (MCA), Executed March 15, 2020, Confirming Ridgepoint Is Not a Party to the MCA
I	Verified Complaint, Filed July 15, 2024, Index No. 654321/2024, Confirming Ridgepoint Is Not a Plaintiff
J	Exemplar Privilege Log Entries Demonstrating the Generic, Boilerplate Nature of Meridian's Descriptions for the 187 Withheld Documents

MERIDIAN INFRASTRUCTURE PARTNERS LLC,

Plaintiff,

– against –

NORTHGATE FIBER AMERICAS INC.,

Defendant.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — COMMERCIAL DIVISION PART 49
Index No. 654321/2024 Assigned Justice: Hon. Eleanor M. Ricci
DEFENDANT NORTHGATE FIBER AMERICAS INC.'S CROSS-MOTION FOR A PROTECTIVE ORDER COMPELLING PRODUCTION OF DOCUMENTS WITHHELD BY PLAINTIFF UNDER THE COMMON INTEREST PRIVILEGE, OR, IN THE ALTERNATIVE, FOR IN CAMERA REVIEW
C&H Matter No. 1022-00005
Filed: December 6, 2024
CALDERWOOD & HARKNESS LLP 425 Park Avenue, 33rd Floor New York, New York 10022 Telephone: (212) 558-4000 Facsimile: (212) 558-3588
Linda Osei, Responsible Partner Jeffrey Park, Lead Associate
Attorneys for Defendant Northgate Fiber Americas Inc.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — COMMERCIAL DIVISION PART 49
NOTICE OF CROSS-MOTION
PLEASE TAKE NOTICE that Defendant Northgate Fiber Americas Inc. ("NFA" or "Defendant"), by its attorneys Calderwood & Harkness LLP, hereby cross-moves this Court, pursuant to CPLR §§ 3103 and 3124, for an order:
(1) Compelling Plaintiff Meridian Infrastructure Partners LLC ("Meridian" or "Plaintiff") to produce the one hundred eighty-seven (187) documents listed on Meridian's privilege log that Meridian has withheld from production under an assertion of common interest privilege with non-party Ridgepoint Capital Group LP ("Ridgepoint");
(2) In the alternative, directing an in camera review of the 187 withheld documents to determine whether the common interest privilege properly applies to each document;
(3) Awarding NFA its reasonable attorneys' fees and costs incurred in connection with this cross-motion; and
(4) Granting such other and further relief as this Court deems just and proper.
PLEASE TAKE FURTHER NOTICE that this cross-motion is made upon the accompanying Memorandum of Law in Support of Defendant's Cross-Motion for Protective Order, the Declaration of Jeffrey Park, dated December 6, 2024, together with Exhibits A through J annexed thereto, and upon all prior proceedings in this action.
PLEASE TAKE FURTHER NOTICE that this cross-motion is made in response to Plaintiff's Motion to Compel, filed on November 22, 2024 (NYSCEF Doc. No. 48), and is returnable on January 27, 2025, the same date on which oral argument on Plaintiff's motion is scheduled before the Honorable Eleanor M. Ricci in Part 49 of this Court.
PLEASE TAKE FURTHER NOTICE that answering papers, if any, are required to be served and filed no later than fourteen (14) days prior to the return date, or as otherwise directed by the Court, in accordance with the Commercial Division Rules and CPLR § 2214(b).
Dated: December 6, 2024 New York, New York
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Linda Osei, Responsible Partner Jeffrey Park, Lead Associate 425 Park Avenue, 33rd Floor New York, New York 10022 Tel: (212) 558-4000
Fax: (212) 558-3588
losei@calderwoodharkness.com jpark@calderwoodharkness.com
Attorneys for Defendant Northgate Fiber Americas Inc.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — COMMERCIAL DIVISION PART 49
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT NORTHGATE FIBER AMERICAS INC.'S CROSS-MOTION FOR A PROTECTIVE ORDER COMPELLING PRODUCTION OF DOCUMENTS WITHHELD BY PLAINTIFF UNDER THE COMMON INTEREST PRIVILEGE, OR, IN THE ALTERNATIVE, FOR IN CAMERA REVIEW
I. PRELIMINARY STATEMENT
Defendant Northgate Fiber Americas Inc. ("NFA") respectfully cross-moves for an order compelling Plaintiff Meridian Infrastructure Partners LLC ("Meridian") to produce one hundred eighty-seven (187) documents that Meridian has improperly withheld from discovery on the basis of a purported "common interest privilege" allegedly shared between Meridian and its private equity sponsor, non-party Ridgepoint Capital Group LP ("Ridgepoint"). As set forth below, Meridian's blanket invocation of the common interest privilege to shield these documents from production is unsupported by the facts and contrary to well-settled New York law.
Meridian's privilege log reveals that these 187 documents consist primarily of communications between Meridian's management — including Chief Executive Officer Victor Sandoval, Chief Operating Officer Bridget Yeung, and Chief Financial Officer Randall Obrecht — and Ridgepoint's personnel, including Ridgepoint's Managing Partner Graham Latimer. The withheld documents also include communications between Meridian's litigation counsel at Hargrove, Deluca & Stein LLP ("HDS") and Ridgepoint or its legal advisors, as well as internal Meridian memoranda, board presentations, and financial models that were shared with Ridgepoint concerning the litigation, Meridian's financial condition, and the impact of the termination of the Master Construction Agreement ("MCA") on Meridian's operations and valuation.
Under New York law, the common interest privilege is a narrow exception to the general rule that disclosure of attorney-client communications to third parties operates as a waiver of the privilege. The doctrine requires that the parties asserting the privilege share an identical legal interest — not merely a financial, commercial, or strategic one. Ridgepoint is Meridian's 55% equity owner, having acquired its majority stake in 2018 for approximately $285 million. Ridgepoint has funded Meridian's litigation costs in this action, establishing an estimated $12 million litigation war chest, as disclosed in Meridian's own discovery responses. Ridgepoint's interest in this litigation is quintessentially financial: it seeks to protect and maximize the return on its equity investment in Meridian. That financial interest — however substantial — does not qualify as the type of "identical legal interest" required to invoke the common interest privilege under the governing authorities.
Compounding the problem, there is no evidence that Meridian and Ridgepoint entered into a formal joint defense agreement at any point. During the meet-and-confer process, Meridian's counsel conceded that no such written agreement exists. Instead, Meridian asserted that a common interest arrangement was established "implicitly" through the parties' course of conduct. This assertion is insufficient. The absence of a joint defense agreement, while not per se dispositive, undermines any claim that the parties deliberately coordinated for the purpose of furthering a shared legal defense. The relationship between Ridgepoint and Meridian is that of investor and portfolio company — not co-litigants or parties sharing a common legal defense.
The withheld documents are, moreover, highly relevant to NFA's defenses and counterclaims. They bear directly on Meridian's financial condition and its capacity to perform the MCA, Ridgepoint's role in key business decisions — including the decision to pursue this $200 million lawsuit — Meridian's failure to mitigate damages following the termination, and the reliability of Meridian's damages calculations. NFA should not be deprived of these plainly discoverable materials based on a privilege claim that finds no support in the law.
NFA respectfully requests that the Court compel production of all 187 documents or, at minimum, conduct an in camera review to assess each document's privilege status individually.
II. STATEMENT OF FACTS
A. Background of the Dispute
The underlying dispute arises from the termination of a large-scale fiber-optic construction contract. On March 15, 2020, NFA and Meridian executed the Master Construction Agreement (the "MCA"), a five-year contract valued at approximately $1.2 billion. (Park Decl. Ex. H.) Under the MCA, Meridian was engaged to design, engineer, permit, and construct approximately 18,500 route miles of fiber-optic cable across seven northeastern states: New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia. The MCA was the largest single contract in Meridian's history and represented the centerpiece of NFA's multi-billion-dollar fiber network expansion program.
Over the course of the contract's performance, Meridian persistently failed to meet milestone deadlines and delivered substandard work. NFA issued a total of 287 non-conformance reports during the contract period, 43 of which were classified as critical — reflecting deficiencies that, if left uncorrected, would compromise network integrity or public safety. The cumulative delays across multiple milestones totaled hundreds of days, significantly impairing NFA's network deployment schedule. Meridian also accrued $49 million in liquidated damages under the MCA's delay provisions.
Following extensive efforts to work with Meridian to cure these deficiencies, NFA issued a formal cure notice on January 18, 2024, identifying specific material breaches and affording Meridian the contractually required 30-day period in which to cure. When Meridian failed to cure, NFA issued a second cure notice on February 19, 2024, identifying continuing and additional breaches. Meridian again failed to cure within the contractual cure period. On April 1, 2024, NFA exercised its right to terminate the MCA for cause under Section 14.1 of the Agreement. (Park Decl. Ex. H at § 14.1.)
Meridian initiated this action on July 15, 2024, by filing a Verified Complaint asserting four causes of action and seeking $200 million in damages. (Park Decl. Ex. I.) NFA answered on September 3, 2024, denying Meridian's claims, asserting numerous affirmative defenses, and interposing counterclaims totaling $149 million for breach of contract, breach of warranty, and indemnification.
B. Ridgepoint Capital Group LP's Relationship to Meridian
Ridgepoint Capital Group LP is a Dallas-based infrastructure private equity fund with its principal office located at 2100 Ross Avenue, Suite 3300, Dallas, Texas 75201. (Park Decl. Ex. G.) Ridgepoint specializes in control investments in infrastructure services companies and manages approximately $4.5 billion in committed capital across three funds.
In 2018, Ridgepoint acquired a 55% majority equity stake in Meridian for approximately $285 million through its second flagship fund, Ridgepoint Infrastructure Partners Fund II LP. (Park Decl. Ex. G.) The remaining equity is held by Meridian's CEO Victor Sandoval (30%) and a senior management equity pool (15%). Ridgepoint's investment thesis was premised in significant part on the NFA contract as Meridian's anchor program. Press coverage at the time of the acquisition described the NFA contract as the "backbone" of Meridian's revenue outlook and a key driver of the platform's projected growth. The termination of the MCA in April 2024 was therefore directly adverse to Ridgepoint's equity investment and has materially impaired the value of its portfolio holding in Meridian.
It is undisputed that Ridgepoint is not a party to this litigation. Meridian alone is the plaintiff; Ridgepoint is not named in the Verified Complaint and asserts no independent claims against NFA. (Park Decl. Ex. I.) It is further undisputed that Ridgepoint is not a party to the MCA. (Park Decl. Ex. H.) Ridgepoint has no contractual privity with NFA and faces no direct legal liability in this action. Ridgepoint has not intervened in this proceeding and has not sought to do so.
What Ridgepoint has done is fund Meridian's litigation costs. Meridian's discovery responses disclose that Ridgepoint has established an estimated $12 million litigation war chest to finance the prosecution of Meridian's claims in this action. (Park Decl. Ex. B.) In addition, Meridian's privilege log reveals that Ridgepoint's managing partner, Graham Latimer, has been actively involved in strategic discussions about this lawsuit, including communications regarding the decision to file suit, litigation strategy, and the potential financial outcomes of the litigation. (Park Decl. Ex. A.)
The nature of Ridgepoint's involvement is thus that of a financial sponsor protecting its investment — not that of a co-litigant or joint defender with a shared legal interest.
C. The Disputed Documents
During document discovery in this action, Meridian produced approximately 890,000 documents totaling approximately 1.8 terabytes of data from eight custodians, including Victor Sandoval, Bridget Yeung, Marcus Henley, and six additional custodians. This production was substantially completed in late October 2024.
Contemporaneously with its document production, Meridian served a privilege log identifying 187 documents withheld from production under the common interest privilege. (Park Decl. Ex. A.) NFA promptly identified concerns about the adequacy of Meridian's production, including the withholding of the Ridgepoint-related documents. In a detailed letter dated November 1, 2024, from Linda Osei to Thomas Deluca, NFA identified missing project files, incomplete subcontractor communications, and specifically challenged Meridian's assertion of common interest privilege over the 187 Ridgepoint-related documents. (Park Decl. Ex. D.)
The 187 withheld documents span the period from approximately January 2024 — contemporaneous with NFA's issuance of the first cure notice — through the filing of the Verified Complaint in July 2024. Based on the descriptions set forth in Meridian's privilege log, the documents fall into four principal categories:
First, communications between Meridian executives (Sandoval, Yeung, and Obrecht) and Ridgepoint personnel (Latimer and other Ridgepoint professionals) regarding the termination of the MCA, the decision to file suit, litigation strategy, and litigation funding. These communications appear to be business-to-business communications between a portfolio company and its majority equity sponsor concerning a matter of significant financial consequence to both.
Second, communications between HDS attorneys (Thomas Deluca and Miriam Vasquez) and Ridgepoint personnel or Ridgepoint's own legal advisors. These communications purportedly involve the sharing of attorney-client privileged information with Ridgepoint, which Meridian claims was permissible under the common interest doctrine.
Third, internal Meridian memoranda and board presentations that were shared with Ridgepoint regarding Meridian's financial condition, mitigation of damages, backlog analysis, and the impact of the MCA termination on Meridian's operations. Meridian's post-termination backlog dropped from $1.4 billion to approximately $770 million — a decline of approximately $630 million — and the withheld documents appear to include analyses of this decline prepared for Ridgepoint's review.
Fourth, financial models and projections prepared for Ridgepoint regarding the litigation's potential outcomes and Meridian's valuation. These documents appear to have been created to assist Ridgepoint in assessing the financial impact of the litigation on its investment in Meridian.
Critically, Meridian's privilege log entries for these 187 documents are generic and formulaic. A representative entry states: "Communication re: legal strategy in connection with NFA dispute, shared in furtherance of common legal interest." (Park Decl. Ex. J.) These boilerplate descriptions do not identify the specific legal interest allegedly shared, the nature of the legal advice sought or rendered, or how each communication furthered a common legal (as opposed to financial or business) purpose. The descriptions are functionally identical across virtually all 187 entries, despite the fact that the documents span a six-month period and involve range authors, recipients, and subject matters.
D. Meet-and-Confer Efforts
NFA has made good-faith efforts to resolve the privilege dispute without Court intervention, consistent with the requirements of the Commercial Division Rules and Part 49's individual practices. On November 15, 2024, Linda Osei sent an email to Thomas Deluca proposing a meet and confer on both parties' privilege disputes, including NFA's specific challenge to Meridian's assertion of common interest privilege over the 187 Ridgepoint documents. (Park Decl. Ex. E.)
The parties met and conferred telephonically on November 20, 2024. (Park Decl. Ex. F.) During the call, NFA explained its position that the common interest privilege was inapplicable because Ridgepoint's interest in the litigation is financial, not legal. Meridian refused to produce the documents, maintaining that the common interest privilege applied because Meridian and Ridgepoint shared a "common legal interest in the defense of Ridgepoint's investment and the prosecution of Meridian's claims." Meridian represented that no formal joint defense agreement exists between Meridian and Ridgepoint but asserted that a common interest arrangement was established "implicitly" through the parties' course of conduct. Meridian further declined to provide a more detailed privilege log or any supporting documentation establishing the basis for the common interest claim. (Park Decl. Ex. F.)
Two days later, on November 22, 2024, Meridian filed its own Motion to Compel (NYSCEF Doc. No. 48), seeking production of 214 documents that NFA has withheld on the basis of the attorney-client privilege and the work product doctrine. NFA's opposition to Meridian's motion is separately briefed and was filed on December 2, 2024. NFA now cross-moves to address Meridian's own improper privilege withholdings, which the parties were unable to resolve through the meet-and-confer process.
III. ARGUMENT
A. Legal Standard for Common Interest Privilege Under New York Law
The common interest privilege — also known as the "community of interest" or "allied litigant" privilege — is an extension of the attorney-client privilege that permits parties sharing a common legal interest to exchange attorney-client communications without waiving the privilege. Larkspur Holdings, 27 N.Y.3d 616, 628 (2016). The doctrine recognizes that, in certain circumstances, parties with aligned legal interests may need to share privileged information to coordinate their legal positions, and that compelling disclosure of such shared communications would discourage the free exchange of information necessary for effective legal representation. Id.
However, the common interest privilege is narrow and must be strictly construed. See Hyatt v. State of Cal. Franchise Tax Bd., 105 A.D.3d 186, 205 (2d Dep't 2013). Courts have consistently cautioned against expansive application of the doctrine, which "threatens to transform the attorney-client privilege from a narrow exception to a broad rule of non-disclosure." In re Nassau County Grand Jury Subpoena Duces Tecum, 4 N.Y.3d 665, 678 (2005).
Under New York law, the common interest privilege requires that the party asserting the privilege establish each of the following elements:
(1) The communication was made between parties who share an identical (not merely similar) legal interest;
(2) The communication was made in furtherance of that common legal interest; and
(3) The communication was made in the course of and to further a pending or anticipated litigation or transaction.
See Ambac, 27 N.Y.3d at 628-29; Hyatt, 105 A.D.3d at 205; see also Stenovich v. Crane & Ames LLP, 195 Misc. 2d 99, 109 (Sup. Ct. N.Y. Cnty. 2003). The burden of establishing each element rests squarely on the party asserting the privilege — here, Meridian. Ambac, 27 N.Y.3d at 624.
Critically, New York courts have consistently held that a shared financial, commercial, or business interest is insufficient to invoke the common interest privilege. The interest must be legal in nature. A parent-subsidiary, investor-portfolio company, or lender-borrower relationship does not, standing alone, give rise to a common legal interest. See Hyatt, 105 A.D.3d at 206 (common interest "must be legal rather than commercial or financial in nature"); Egiazaryan v. Zalmayev, 290 F.R.D. 421, 434 (S.D.N.Y. 2013) (applying New York law and holding that a financial interest in the outcome of litigation does not establish a common legal interest); Schaeffler v. United States, 806 F.3d 34, 40 (2d Cir. 2015) (distinguishing financial and legal interests in the common interest context). The Court of Appeals has been particularly emphatic on this point, warning that "the common interest privilege should not be applied loosely to transform every commercial relationship into a shield against disclosure." Ambac, 27 N.Y.3d at 631.
B. Meridian's Common Interest Privilege Claim Fails Because Ridgepoint's Interest Is Financial, Not Legal
Meridian's assertion of the common interest privilege fails at the threshold because Ridgepoint does not share an identical legal interest with Meridian. Ridgepoint's interest in this litigation is purely financial — it seeks to protect the value of its 55% equity investment in Meridian. That interest, while commercially significant, is not the type of common legal interest required to invoke the privilege.
Ridgepoint is not a party to this litigation and has no direct legal interest in the claims or defenses at issue. Meridian alone is the plaintiff. Meridian's four causes of action assert contract-based claims arising from the MCA — an agreement to which Ridgepoint is not a party. NFA's counterclaims are asserted against Meridian alone. Ridgepoint has not intervened, has not sought to intervene, and has no independent legal claims or defenses at stake. Ridgepoint faces no direct liability to NFA, no exposure to a judgment, and no risk of an adverse legal determination that would bind it. The absence of any direct legal stake in the litigation fundamentally distinguishes Ridgepoint's position from that of a party with a true common legal interest.
Ridgepoint is not a party to the MCA and has no contractual privity with NFA. The MCA was executed solely between NFA and Meridian. (Park Decl. Ex. H.) Ridgepoint's name does not appear in the MCA, and Ridgepoint has no rights, obligations, or liabilities under the contract. The legal questions at the heart of this dispute — whether NFA properly terminated the MCA for cause, whether Meridian materially breached its obligations, and the measure of damages — turn entirely on the rights and obligations of the two contracting parties. Ridgepoint has no legal interest in the interpretation or enforcement of the MCA because it is a stranger to the contract.
Ridgepoint's interest is financial, not legal. Ridgepoint acquired its 55% stake in Meridian for approximately $285 million, and its investment thesis was premised in significant part on the NFA contract as Meridian's anchor program. The termination of the MCA directly threatens the value of Ridgepoint's equity investment. Ridgepoint's $12 million litigation funding further confirms its financial motivation: it has made a calculated business decision to finance the prosecution of Meridian's claims in order to recover as much value as possible from its impaired investment. This is a paradigmatic financial interest. It is no different from the interest of any equity investor in the financial success of its portfolio company, or the interest of a litigation funder in the outcome of a funded case. Neither qualifies as a common legal interest under New York law.
New York courts have repeatedly rejected common interest privilege claims in analogous circumstances. In Egiazaryan v. Zalmayev, 290 F.R.D. 421, 434 (S.D.N.Y. 2013), the court, applying New York law, held that a party's financial interest in the outcome of litigation — even where that party was funding the litigation — did not establish a common legal interest sufficient to invoke the privilege. The court emphasized that "[a] shared desire to see the same outcome in a case is not the same as a shared legal interest." Id. Similarly, in Hyatt, the Second Department held that a common interest in the financial consequences of litigation was insufficient, requiring instead that the parties share an interest that is "legal rather than commercial or financial in nature." 105 A.D.3d at 206.
The First Department's analysis in Gulf Islands Leasing, Inc. v. Bombardier Capital, Inc., 215 A.D.2d 151, 152 (1st Dep't 1995), is also instructive. There, the court declined to extend the common interest privilege to communications between a lender and a borrower, even though both had a financial interest in the outcome of the litigation, because the lender's interest was in protecting its investment — not in defending a common legal claim. The same reasoning applies here. Ridgepoint's interest is in protecting its $285 million investment in Meridian. That is a financial interest of the highest order, but it is not a legal interest.
Ridgepoint's role in the litigation is that of a litigation funder, not a co-litigant. The fact that Ridgepoint has committed approximately $12 million to fund Meridian's prosecution of this lawsuit does not create a common legal interest. Litigation funding arrangements are increasingly common in complex commercial disputes, but courts have consistently held that a funder's financial interest in the outcome of funded litigation does not give rise to the common interest privilege. See, e.g., Miller UK Ltd. v. Granite Harbor Group, Inc., 17 F. Supp. 3d 711, 735 (N.D. Ill. 2014) (refusing to extend common interest privilege to litigation funder); Leader Techs., Inc. v. Kestrel Services Inc., Inc., 719 F. Supp. 2d 373, 376 (D. Del. 2010) (same). A contrary rule would permit any well-funded litigant to share privileged information with its financial backer and then shield those communications from discovery — a result that would dramatically and unjustifiably expand the scope of the privilege.
Ridgepoint's managing partner was involved in business and investment decisions, not in providing or receiving legal advice. Meridian's privilege log reveals that Graham Latimer participated in discussions about the litigation's potential outcomes, Meridian's financial condition, backlog analysis, and valuation. These are precisely the types of business and investment discussions that a private equity sponsor would have with its portfolio company in the ordinary course. They reflect Ridgepoint's role as a majority equity owner managing its investment — not its role as a participant in a joint legal defense. The sharing of attorney-client privileged information with a private equity sponsor for the purpose of managing the sponsor's investment is a waiver of the privilege, not an exercise of the common interest doctrine.
C. There Is No Joint Defense Agreement or Other Indicia of a True Common Legal Interest
Meridian has conceded that no formal joint defense agreement exists between Meridian and Ridgepoint. (Park Decl. Ex. C; Park Decl. Ex. F.) During the November 20, 2024 meet-and-confer call, Meridian's counsel represented that the common interest arrangement was established "implicitly" through the parties' course of conduct. This concession is significant and further undermines Meridian's privilege claim.
The absence of a written joint defense agreement is not, standing alone, dispositive of the common interest inquiry. Courts have recognized that a common interest arrangement need not be memorialized in writing. See, e.g., Ambac, 27 N.Y.3d at 631. However, the absence of such an agreement is highly probative of whether the parties deliberately and consciously entered into an arrangement to share legal strategy and attorney-client communications for a common legal purpose. See Stenovich, 195 Misc. 2d at 110 ("The existence of a joint defense agreement, while not required, is strong evidence that the parties intended to pursue a common legal interest."). Where, as here, there is no written agreement, no evidence of a deliberate arrangement, and the asserted basis for the common interest is the general investor-portfolio company relationship, the privilege claim fails.
Meridian's assertion of an "implicit" common interest arrangement is insufficient under New York law. The common interest privilege requires more than the mere exchange of information between an investor and its portfolio company. It requires a showing of deliberate coordination in furtherance of a shared legal interest — that is, an interest in the legal claims, defenses, or legal theories at issue in the litigation. See Hyatt, 105 A.D.3d at 205-06. Meridian has made no such showing. It has offered no evidence that Meridian and Ridgepoint specifically agreed to coordinate their legal strategies, that Ridgepoint was consulted on legal (as opposed to business) decisions, or that the sharing of privileged communications served any purpose other than keeping Ridgepoint informed about the status and financial implications of the litigation as Meridian's majority equity owner.
Moreover, Ridgepoint does not share counsel with Meridian. HDS represents Meridian in this action; there is no indication that HDS jointly represents Ridgepoint, or that Ridgepoint has retained its own litigation counsel to participate in a joint defense. While some of the withheld documents appear to involve communications between HDS attorneys and Ridgepoint or its legal advisors, the mere fact that privileged communications were shared with a third party does not establish a common legal interest — it establishes a waiver of the privilege unless the common interest doctrine applies. See In re Nassau County Grand Jury Subpoena, 4 N.Y.3d at 678. Meridian cannot bootstrap its way into a common interest privilege by first sharing privileged information with Ridgepoint and then arguing, after the fact, that the sharing was permissible because a common interest existed.
D. The Withheld Documents Are Highly Relevant to NFA's Defenses and Counterclaims
Even apart from the legal insufficiency of Meridian's privilege claim, the 187 withheld documents are directly relevant to several critical issues in this case, and their continued withholding would cause substantial prejudice to NFA. The documents bear on no fewer than five central issues:
Meridian's financial condition and ability to perform. NFA's affirmative defenses include that Meridian was unable to perform the remaining scope of the MCA at the time of termination and that Meridian's persistent schedule delays were attributable, at least in part, to financial constraints. Meridian's FY2023 revenue was $620 million with EBITDA of $58.9 million (a 9.5% margin). At the time of termination, approximately $630.3 million in MCA scope remained. Communications between Meridian and Ridgepoint regarding Meridian's financial health, cash flow, and operational capacity bear directly on whether Meridian was capable of performing the remaining work. These are not marginal or peripheral documents — they go to the heart of NFA's defense that the termination for cause was justified.
Failure to mitigate damages. NFA has asserted that Meridian failed to mitigate its damages following the April 2024 termination. The evidence already in the record shows that Meridian's post-termination backlog dropped from $1.4 billion to approximately $770 million — a decline of roughly $630 million that cannot be explained solely by the loss of the NFA contract. Communications between Meridian and Ridgepoint regarding Meridian's pursuit of replacement work, its analysis of available market opportunities, and its strategic decisions about bidding and project selection are directly relevant to mitigation. If Ridgepoint discouraged Meridian from pursuing replacement work in order to inflate its damages claim in this litigation, that evidence would be of the highest relevance — and it is precisely the type of evidence that may be found in the withheld documents.
Litigation funding and bias. Ridgepoint's $12 million commitment to fund this litigation, and its role in the decision to file a $200 million lawsuit, are relevant to Meridian's motives, credibility, and the commercial realities underlying this dispute. Ridgepoint's investment thesis was premised on the NFA contract; the termination impaired Ridgepoint's investment; and the litigation appears to be driven, at least in part, by Ridgepoint's desire to recoup investment losses rather than by legitimate breach-of-contract claims. Documents reflecting Ridgepoint's analysis of the litigation as an investment recovery strategy, its influence on litigation strategy, and its role in setting damages targets are relevant to NFA's defenses and to the Court's assessment of the equities in this case.
Damages calculations. Financial models and projections shared with Ridgepoint about the litigation's potential outcomes and Meridian's valuation go directly to the damages analysis and the reliability of Meridian's claimed $200 million in losses. If Meridian's own internal analyses — prepared for the benefit of its private equity sponsor — yield different damages figures than those asserted in the Verified Complaint, that discrepancy is probative and discoverable. These documents may also reveal assumptions about the probability of success on various claims that are relevant to the credibility and reasonableness of Meridian's damages theory.
Pretext defense. Meridian has placed NFA's motivations squarely at issue in this litigation by alleging that NFA's termination of the MCA was "pretextual." Having put motive at issue, Meridian cannot simultaneously shield from discovery evidence of its own motivations in pursuing this litigation and the role that Ridgepoint played in that decision. NFA is entitled to explore whether this lawsuit was filed in good faith based on a genuine belief that the termination was wrongful, or whether it was initiated at Ridgepoint's direction as a mechanism to recover value on a distressed investment. The withheld documents are likely to shed light on this question.
In sum, the 187 documents are not peripheral or collateral. They go to the core factual and legal issues in this case. The prejudice to NFA from their continued withholding is substantial and cannot be justified by a privilege claim that, as demonstrated above, is legally insufficient.
E. Meridian's Privilege Log Is Deficient
Independent of the merits of Meridian's common interest privilege claim, the privilege log itself is deficient and fails to satisfy the requirements of CPLR § 3122 and the Commercial Division Rules.
Under CPLR § 3122(b), a party withholding documents on the basis of privilege must serve a privilege log that provides sufficient information to enable the opposing party and the Court to assess the validity of the privilege claim. At minimum, the log must identify the date of each document, its author and recipients, the general subject matter, and the specific basis for the privilege asserted. See also Commercial Division Rule 11-b (requiring that privilege logs include "a description of the document that, without revealing information itself privileged or protected, will enable other parties to assess the claim"). Courts in this Division have consistently held that "generic, boilerplate log entries" are insufficient and may result in waiver of the privilege or an adverse inference. See, e.g., Silverman v. Shaoul, 2018 N.Y. Misc. Calderon Systems 3456, at *8 (Sup. Ct. N.Y. Cnty. 2018).
Meridian's privilege log descriptions for the 187 documents are generic and formulaic. As illustrated by the exemplar entries attached to the Park Declaration (Park Decl. Ex. J), the descriptions follow a nearly identical template: "Communication re: legal strategy in connection with NFA dispute, shared in furtherance of common legal interest." Minor variations appear — some entries substitute "litigation strategy" for "legal strategy," or "NFA matter" for "NFA dispute" — but the descriptions are functionally interchangeable across virtually all 187 entries. They do not identify the specific legal interest allegedly shared between Meridian and Ridgepoint. They do not describe the nature of the legal advice sought or rendered. They do not explain how each particular communication furthered a common legal (as opposed to financial or business) purpose. And they provide no basis for the Court to evaluate whether the common interest privilege properly applies to any individual document.
The deficiency of the privilege log is particularly problematic in this context because, as demonstrated above, the common interest privilege requires a document-by-document showing that each communication was made in furtherance of a shared legal interest. A boilerplate log that treats all 187 documents as interchangeable does not satisfy this burden. At minimum, Meridian should be required to serve a supplemental privilege log with adequate descriptions for each document. If the Court is not prepared to order production of the documents outright, the deficiency of the log provides an independent basis for requiring Meridian to supplement its log before the Court rules on the privilege claim.
F. In the Alternative, the Court Should Conduct In Camera Review
If the Court is not prepared to order production of all 187 documents outright, NFA respectfully requests that the Court conduct an in camera review of the documents to determine, on a document-by-document basis, whether the common interest privilege properly applies.
In camera review is a well-established procedure in New York for resolving contested privilege claims. See, e.g., Spectrum Sys. Int'l Corp. v. Granite Harbor Securities, 78 N.Y.2d 371, 378 (1991) (holding that in camera review is appropriate when "the trial court has sufficient doubt about the correctness of the privilege claim"). The procedure is particularly appropriate in circumstances where, as here:
(1) The privilege claim is contested and rests on a disputed factual predicate — namely, whether Ridgepoint shares a legal interest or merely a financial one. The Court's resolution of this question may turn on the content and context of the documents themselves, which cannot be assessed from the face of Meridian's deficient privilege log.
(2) The privilege log is insufficiently detailed to permit resolution of the privilege claim on the papers alone. As discussed above, Meridian's boilerplate descriptions provide no meaningful basis for the Court to evaluate the privilege claim without examining the documents themselves.
(3) The documents are highly relevant to NFA's defenses and counterclaims, creating a significant risk of prejudice if the privilege claim is accepted without scrutiny. Given the stakes of this litigation — $200 million in claimed damages and $149 million in counterclaims — the Court should not accept Meridian's privilege assertions at face value.
NFA proposes that Meridian be directed to submit the 187 documents to the Court under seal for in camera inspection, together with a detailed supplemental privilege log and a supporting affidavit from Meridian's counsel explaining the specific basis for each privilege assertion. This procedure would allow the Court to conduct a granular review of the documents and make individualized privilege determinations, while protecting any documents that are ultimately found to be privileged. It is a measured and proportionate approach that balances the competing interests at stake.
IV. NFA'S OPPOSITION TO MERIDIAN'S MOTION TO COMPEL IS SEPARATELY BRIEFED
NFA notes that its opposition to Meridian's Motion to Compel (NYSCEF Doc. No. 48), which seeks production of 214 documents that NFA has withheld on the basis of the attorney-client privilege and the work product doctrine, is addressed in a separate opposition brief that was filed on December 2, 2024 (NYSCEF Doc. No. 53) and is supplemented by this cross-motion filing. The two motions involve distinct privilege doctrines and distinct document sets, but as both are returnable on January 27, 2025, the Court may wish to hear argument on both motions at the same session. NFA is prepared to address both matters at oral argument and respectfully requests that the Court schedule sufficient time to do so.
V. NFA IS ENTITLED TO ATTORNEYS' FEES
Under CPLR § 3124 and the Court's inherent authority to manage discovery and sanction discovery abuses, NFA is entitled to recover its reasonable attorneys' fees and costs incurred in bringing this cross-motion. Meridian's blanket assertion of common interest privilege over 187 documents is without substantial justification. The common interest privilege is inapplicable as a matter of law because Ridgepoint's interest in this litigation is financial, not legal. Meridian has identified no authority supporting the proposition that a private equity sponsor's desire to protect its equity investment in a portfolio company constitutes a "common legal interest" for privilege purposes. Meridian's privilege log is deficient on its face. And Meridian refused to engage meaningfully with NFA's challenge during the meet-and-confer process, instead filing its own Motion to Compel while declining to address NFA's legitimate concerns about Meridian's withholdings.
NFA has been forced to incur significant legal fees in researching, drafting, and filing this cross-motion. An award of fees is appropriate to compensate NFA for these costs and to deter future unsupported privilege assertions that obstruct legitimate discovery.
VI. CONCLUSION
For the foregoing reasons, Defendant Northgate Fiber Americas Inc. respectfully requests that the Court enter an order:
(1) Compelling Plaintiff Meridian Infrastructure Partners LLC to produce to Defendant the 187 documents identified on Plaintiff's privilege log as withheld under the common interest privilege with Ridgepoint Capital Group LP;
(2) In the alternative, directing in camera review of the 187 withheld documents to determine, on a document-by-document basis, whether the common interest privilege properly applies;
(3) Directing Plaintiff to serve a supplemental privilege log with descriptions adequate under CPLR § 3122 and the Commercial Division Rules;
(4) Awarding Defendant its reasonable attorneys' fees and costs incurred in connection with this cross-motion; and
(5) Granting such other and further relief as the Court deems just and proper.
Dated: December 6, 2024 New York, New York
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Linda Osei, Responsible Partner Jeffrey Park, Lead Associate 425 Park Avenue, 33rd Floor New York, New York 10022 Tel: (212) 558-4000
Fax: (212) 558-3588
losei@calderwoodharkness.com jpark@calderwoodharkness.com
Attorneys for Defendant Northgate Fiber Americas Inc.
WORD COUNT CERTIFICATION
I, Jeffrey Park, an attorney at Calderwood & Harkness LLP, hereby certify, pursuant to Commercial Division Rule 17 and Section 202.70(g) of the Uniform Rules for the Commercial Division, that the foregoing Memorandum of Law in Support of Defendant's Cross-Motion for Protective Order contains approximately 7,380 words, exclusive of the caption, table of contents, table of authorities, signature blocks, and this certification. This word count was determined using the word count function of Microsoft Word. The memorandum therefore complies with the applicable word-count limitations set forth in the Commercial Division Rules.
Dated: December 6, 2024 New York, New York
________________________________________
Jeffrey Park
CERTIFICATE OF SERVICE
I, Jeffrey Park, an attorney at Calderwood & Harkness LLP, hereby certify that on December 6, 2024, a true and correct copy of the following documents:
(1) Notice of Cross-Motion;
(2) Memorandum of Law in Support of Defendant Northgate Fiber Americas Inc.'s Cross-Motion for a Protective Order Compelling Production of Documents Withheld by Plaintiff Under the Common Interest Privilege, or, in the Alternative, for In Camera Review;
(3) Declaration of Jeffrey Park in Support of Defendant's Cross-Motion, dated December 6, 2024, with Exhibits A through J; and
(4) Proposed Order
was served upon all parties entitled to notice by filing and service through the New York State Courts Electronic Filing System ("NYSCEF") and by email upon:
Hargrove, Deluca & Stein LLP 51 West 52nd Street, 40th Floor New York, New York 10019
Attn: Thomas Deluca, Esq.
Attn: Miriam Vasquez, Esq.
tdeluca@hdslaw.com mvasquez@hdslaw.com
Counsel for Plaintiff Meridian Infrastructure Partners LLC
Dated: December 6, 2024 New York, New York
________________________________________
Jeffrey Park
EXHIBIT LIST
The following exhibits are attached to the Declaration of Jeffrey Park in Support of Defendant's Cross-Motion for Protective Order, dated December 6, 2024 (filed separately as NYSCEF Doc. No. _):
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — COMMERCIAL DIVISION PART 49
[PROPOSED] ORDER ON DEFENDANT'S CROSS-MOTION FOR PROTECTIVE ORDER
Upon the Cross-Motion of Defendant Northgate Fiber Americas Inc. ("NFA"), by its attorneys Calderwood & Harkness LLP, for a protective order compelling production of documents withheld by Plaintiff Meridian Infrastructure Partners LLC ("Meridian") under the common interest privilege, or, in the alternative, for in camera review, and upon the Notice of Cross-Motion, the Memorandum of Law in Support, the Declaration of Jeffrey Park dated December 6, 2024 with Exhibits A through J, and upon consideration of any opposition papers filed by Plaintiff, and after oral argument held on January 27, 2025, and due deliberation having been had, it is hereby:
ORDERED that Defendant Northgate Fiber Americas Inc.'s Cross-Motion for a Protective Order is GRANTED [or GRANTED in part]; and it is further
ORDERED that Plaintiff Meridian Infrastructure Partners LLC shall produce to Defendant the one hundred eighty-seven (187) documents identified on Plaintiff's privilege log as withheld under the common interest privilege with non-party Ridgepoint Capital Group LP, within twenty (20) days of the date of this Order; and it is further
[Alternative Provision:]
ORDERED that Plaintiff Meridian Infrastructure Partners LLC shall submit the one hundred eighty-seven (187) documents withheld under the common interest privilege to the Court for in camera review, together with a detailed supplemental privilege log and a supporting affidavit from Plaintiff's counsel explaining the specific basis for the privilege assertion as to each document, within twenty (20) days of the date of this Order; and it is further
ORDERED that Plaintiff Meridian Infrastructure Partners LLC shall serve upon Defendant a supplemental privilege log with descriptions adequate under CPLR § 3122 and the Commercial Division Rules for each of the 187 documents at issue, within twenty (20) days of the date of this Order; and it is further
ORDERED that Defendant Northgate Fiber Americas Inc. is awarded its reasonable attorneys' fees and costs incurred in connection with this cross-motion, in an amount to be determined upon submission of appropriate documentation by Defendant within thirty (30) days of the date of this Order, with Plaintiff to have fourteen (14) days thereafter to submit any objections; and it is further
ORDERED that counsel for Defendant shall serve a copy of this Order with notice of entry upon all parties within five (5) days of entry.
Dated: ____, 2025 New York, New York
________________________________________
Hon. Eleanor M. Ricci, J.S.C.
MERIDIAN INFRASTRUCTURE PARTNERS LLC,
Plaintiff,
– against –
NORTHGATE FIBER AMERICAS INC.,
Defendant.
MERIDIAN INFRASTRUCTURE PARTNERS LLC,
Plaintiff, | Index No. 654321/2024
– against –
NORTHGATE FIBER AMERICAS INC.,
Defendant.
MERIDIAN INFRASTRUCTURE PARTNERS LLC,
Plaintiff, | Index No. 654321/2024
– against –
NORTHGATE FIBER AMERICAS INC.,
Defendant.
Exhibit | Description
A | Meridian's Privilege Log — Relevant Entries for the 187 Documents Withheld on Common Interest Grounds
B | Excerpts from Meridian's discovery Responses Identifying Ridgepoint Capital Group LP's Litigation Funding (Approximately $12 Million)
C | Meridian's Response to NFA's Interrogatories Confirming No Formal Joint Defense Agreement Exists Between Meridian and Ridgepoint
D | November 1, 2024 Letter from Linda Osei to Thomas Deluca Identifying Deficiencies in Meridian's Production
E | November 15, 2024 Email from Linda Osei to Thomas Deluca Proposing Meet and Confer on Privilege Disputes
F | November 20, 2024 Meet-and-Confer Correspondence and Summary
G | Publicly Available Information Regarding Ridgepoint Capital Group LP's 2018 Acquisition of 55% Stake in Meridian for Approximately $285 Million
H | Excerpts of the Master Construction Agreement (MCA), Executed March 15, 2020, Confirming Ridgepoint Is Not a Party to the MCA
I | Verified Complaint, Filed July 15, 2024, Index No. 654321/2024, Confirming Ridgepoint Is Not a Plaintiff
J | Exemplar Privilege Log Entries Demonstrating the Generic, Boilerplate Nature of Meridian's Descriptions for the 187 Withheld Documents
MERIDIAN INFRASTRUCTURE PARTNERS LLC,
Plaintiff, | Index No. 654321/2024
– against –
NORTHGATE FIBER AMERICAS INC.,
Defendant.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — COMMERCIAL DIVISION PART 49

NOTICE OF CROSS-MOTION

CALDERWOOD & HARKNESS LLP

I. PRELIMINARY STATEMENT

II. STATEMENT OF FACTS

III. ARGUMENT

IV. NFA'S OPPOSITION TO MERIDIAN'S MOTION TO COMPEL IS SEPARATELY BRIEFED

V. NFA IS ENTITLED TO ATTORNEYS' FEES

VI. CONCLUSION

CALDERWOOD & HARKNESS LLP

WORD COUNT CERTIFICATION

CERTIFICATE OF SERVICE

EXHIBIT LIST

MERIDIAN INFRASTRUCTURE PARTNERS LLC,

NORTHGATE FIBER AMERICAS INC.,

MERIDIAN INFRASTRUCTURE PARTNERS LLC,

NORTHGATE FIBER AMERICAS INC.,

MERIDIAN INFRASTRUCTURE PARTNERS LLC,

NORTHGATE FIBER AMERICAS INC.,

MERIDIAN INFRASTRUCTURE PARTNERS LLC,

NORTHGATE FIBER AMERICAS INC.,

Record

Parties

Dates

Amounts