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

DECLARATION OF JEFFREY PARK IN SUPPORT OF (I) DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF PRIVILEGED DOCUMENTS AND (II) DEFENDANT'S CROSS-MOTION FOR PROTECTIVE ORDER REGARDING PLAINTIFF'S WITHHOLDING OF MERIDIAN-RIDGEPOINT COMMUNICATIONS

Jeffrey Park, an attorney duly admitted to practice law in the State of New York, hereby declares under penalty of perjury, pursuant to CPLR § 2106, as follows:

1. I am an associate at the law firm of Calderwood & Harkness LLP, located at 425 Park Avenue, 33rd Floor, New York, New York 10022. I am a member of the defense team representing Defendant Northgate Fiber Americas Inc. ("NFA" or "Defendant") in the above-captioned action. I submit this declaration in support of both (I) Defendant's Opposition to Plaintiff Meridian Infrastructure Partners LLC's ("Meridian" or "Plaintiff") Motion to Compel Production of Privileged Documents, and (II) Defendant's Cross-Motion for Protective Order Regarding Plaintiff's Withholding of Meridian-Ridgepoint Communications.

2. I have personal knowledge of the facts stated herein, except as otherwise indicated. Where statements are based upon my review of documents, correspondence, court filings, or the files maintained by Calderwood & Harkness LLP in connection with this matter, I have identified the source of that information. This matter is identified internally as C&H Matter No. 1022-00005.

I. BACKGROUND AND QUALIFICATIONS

3. I serve as the Lead Associate on this matter. I was admitted to the practice of law in the State of New York in 2019, and I have practiced exclusively in the area of complex commercial litigation since that time. My practice has included significant experience in construction and infrastructure disputes, contractual claims, and discovery matters in the Commercial Division of the Supreme Court of the State of New York, as well as in federal courts within the Second Circuit.

4. In this matter, I work under the supervision of Linda Osei, Responsible Partner, and Priya Anand, Billing Partner, both of Calderwood & Harkness LLP. Ms. Osei serves as lead counsel for Defendant NFA and has been the primary partner responsible for all strategic decisions in this litigation. Ms. Anand provides additional oversight with respect to the financial and economic aspects of the dispute, including the counterclaims asserted by Defendant.

5. I have been actively involved in all aspects of the defense of this action since our firm's engagement on August 19, 2024. My responsibilities have included, among other things, coordinating with Defendant's personnel regarding factual investigation, managing the document collection and preservation process, supervising the document review team, participating in the preparation of Defendant's privilege log, overseeing document productions to Plaintiff, engaging with Plaintiff's counsel on meet-and-confer discussions concerning discovery disputes, and assisting in the preparation of Defendant's pleadings, motions, and other court filings.

6. I have personally supervised and participated in every stage of the document collection, review, privilege determination, and production process in this action. I am familiar with the approximately 1.4 million documents (comprising approximately 3.2 terabytes of electronically stored information, or "ESI") collected from ten NFA and Northgate Telecommunications PLC ("Northgate PLC") custodians. I am also familiar with Plaintiff Meridian's production in this action, which to date consists of approximately 890,000 documents (comprising approximately 1.8 terabytes of ESI) collected from eight Meridian custodians.

II. PROCEDURAL HISTORY RELEVANT TO THE PRIVILEGE DISPUTES

7. In order to provide the Court with the necessary context for the privilege disputes at issue, I set forth below the procedural history of this action insofar as it is relevant to the instant motions. The following recitation is based on my personal knowledge, my review of the court docket maintained through the New York State Courts Electronic Filing System ("NYSCEF"), and the files maintained by Calderwood & Harkness LLP.

8. July 15, 2024: Plaintiff Meridian Infrastructure Partners LLC commenced this action by filing a Verified Complaint in the Supreme Court of the State of New York, County of New York, Commercial Division. The Verified Complaint asserts four causes of action — (1) breach of contract, (2) anticipatory breach of contract, (3) breach of the implied covenant of good faith and fair dealing, and (4) unjust enrichment — arising out of the termination of the Master Construction Agreement dated March 15, 2020 (the "MCA") between NFA and Meridian. Meridian seeks damages in a total amount of approximately $200 million, inclusive of alleged lost profits, unpaid change orders, demobilization costs, and consequential damages.

9. August 5, 2024: Service of process was effected on Defendant NFA through the New York Secretary of State in accordance with the Business Corporation Law.

10. August 19, 2024: Calderwood & Harkness LLP was engaged by Defendant NFA to serve as litigation counsel. Our firm opened the matter on that date under C&H Matter No. 1022-00005 and promptly began our factual investigation and review of the issues raised in the Verified Complaint.

11. September 3, 2024: Defendant filed its Answer with Affirmative Defenses and Counterclaims. The Answer asserts twenty-two affirmative defenses and three counterclaims: (1) breach of contract for Meridian's failure to meet contractual milestones and quality standards, (2) indemnification under MCA § 18 for third-party delay claims, and (3) breach of warranty under MCA § 10. Defendant's counterclaims seek damages totaling approximately $149 million.

12. October 1, 2024: A Preliminary Conference was held before the Honorable Eleanor M. Ricci, J.S.C., in Part 49 of the Commercial Division. At that conference, the Court set a discovery schedule governing document production, depositions, and expert disclosures. On the same date, the parties filed a Stipulated E-discovery Protocol and ESI Agreement (a true and correct copy of which is attached hereto as Exhibit E), which established, among other things, the production format for ESI, the requirements for privilege logs, the protocol for clawback of inadvertently produced privileged documents, and the engagement of Vantage Litigation Support LLC as a neutral vendor for certain processing functions. The parties also filed a Confidentiality Stipulation and Proposed Order, which was so-ordered by Justice Ricci on the same date.

13. October 8, 2024: Defendant served its First Set of Document Requests on Plaintiff, consisting of fifty-six requests for production, as well as its First Set of Interrogatories, consisting of twenty-five interrogatories. These requests were tailored to the claims and defenses in the action and sought, among other things, documents relating to Meridian's performance under the MCA, communications with subcontractors, documents concerning Meridian's financial condition, communications between Meridian and its majority equity holder Ridgepoint Capital Group LP ("Ridgepoint"), and documents relating to Meridian's efforts to mitigate its alleged damages following the termination of the MCA.

14. October 22, 2024: Defendant served its Responses and Objections to Plaintiff's First Set of Document Requests. Those responses included, as appropriate, objections on the grounds of attorney-client privilege and work product protection. Defendant also began its rolling production of non-privileged, responsive documents on or about the same date.

15. October 31, 2024: Defendant completed its rolling production of non-privileged, responsive documents and served its privilege log on Plaintiff. The privilege log identified 214 documents withheld in whole or in part on the grounds of attorney-client privilege and/or attorney work product protection. A true and correct copy of the privilege log is attached hereto as Exhibit A.

16. November 15, 2024: In accordance with this Court's rules and the Commercial Division Rules requiring a good-faith effort to resolve discovery disputes before seeking judicial intervention, Ms. Osei sent a detailed meet-and-confer letter to Thomas Deluca, the lead partner at Hargrove, Deluca & Stein LLP representing Plaintiff, addressing the privilege positions asserted by both parties and proposing an informal resolution of the privilege dispute. A true and correct copy of that letter is attached hereto as Exhibit D. In that letter, Ms. Osei also identified deficiencies in Meridian's production and raised concerns regarding Meridian's assertion of common interest privilege over communications with Ridgepoint. Plaintiff's counsel did not agree to any informal resolution and instead proceeded to file its motion to compel.

17. Prior to the November 15 letter, on November 1, 2024, Ms. Osei had sent a separate letter to Mr. Deluca detailing deficiencies in Meridian's document production, including incomplete production of subcontractor communications and the improper withholding of Ridgepoint-related documents. A true and correct copy of that letter is attached hereto as Exhibit F.

18. November 22, 2024: Plaintiff filed its Motion to Compel Production of the 214 documents identified on Defendant's privilege log, notwithstanding the ongoing meet-and-confer process and the reasoned positions set forth in Defendant's correspondence.

19. December 6, 2024: Defendant files this Opposition to Plaintiff's Motion to Compel and Cross-Motion for Protective Order, together with the instant declaration and supporting papers.

III. DEFENDANT'S DOCUMENT COLLECTION AND REVIEW PROCESS

20. In this section, I describe the document collection and review process undertaken by Defendant, with particular focus on the procedures employed to identify and withhold privileged documents. I provide this description to demonstrate to the Court that Defendant's privilege determinations were made carefully, systematically, and in full compliance with applicable law and the Stipulated E-discovery Protocol.

A. Litigation Hold and Preservation

21. On August 21, 2024, two days after Calderwood & Harkness LLP's engagement, our firm drafted a Litigation Hold Notice (the "Hold Notice") in consultation with NFA's General Counsel, Dominic Hale. The Hold Notice was distributed on the same date to all relevant personnel at both Northgate Telecommunications PLC, the UK-based parent company, and Northgate Fiber Americas Inc., the US subsidiary that is the named Defendant in this action.

22. The Hold Notice directed all recipients to preserve all documents and electronically stored information related to: (a) the Master Construction Agreement dated March 15, 2020, including all amendments, change orders, schedules, and ancillary agreements thereunder; (b) the fiber build-out program across the seven states in which Meridian performed work under the MCA, namely New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia; (c) all communications with Meridian Infrastructure Partners LLC, its employees, agents, consultants, and subcontractors; (d) all documents relating to the termination of the MCA, including cure notices, notice of default, notice of termination, and any related correspondence; and (e) all documents relating to the engagement of replacement contractors or the decision to bring any portion of the fiber construction work in-house.

23. The Hold Notice was issued to a distribution list of approximately forty-five employees and officers across both entities, encompassing personnel in the legal, construction management, engineering, procurement, quality assurance, finance, and executive functions. The Hold Notice has been supplemented on two occasions — on September 20, 2024, and on October 15, 2024 — to add additional custodians and to address newly identified categories of potentially relevant materials.

B. Custodian Selection

24. Following the issuance of the Hold Notice and in connection with the preparation of Defendant's discovery responses, Calderwood & Harkness LLP, in consultation with Mr. Hale and other NFA personnel, identified ten custodians whose files would be collected and reviewed for production in this action. The custodians were selected based on their roles and involvement in the events at issue, including the negotiation and execution of the MCA, the day-to-day management of the fiber build-out program, the decision to terminate the MCA, and the post-termination transition to a replacement contractor. The ten custodians include:

(a) Renata Voss, Vice President, US Network Infrastructure, NFA — Ms. Voss oversaw the fiber build-out program and served as the primary senior executive with operational responsibility for the Northgate-Meridian relationship under the MCA;

(b) Sean Calloway, Director, Construction Management, NFA — Mr. Calloway served as the day-to-day contract administrator for the MCA and was the principal point of contact with Meridian's on-site project managers;

(c) Helena Bright, Chief Financial Officer, Northgate Telecommunications PLC — Ms. Bright had financial and budgetary oversight over the fiber build-out program, including approval authority for change orders and payment certifications;

(d) Dominic Hale, General Counsel, Northgate Telecommunications PLC — Mr. Hale provided legal oversight of the MCA, the cure notice and termination process, and the engagement of outside counsel;

(e) Six additional custodians drawn from the engineering, procurement, quality assurance, and finance functions at NFA and Northgate PLC, whose identities were disclosed on the custodian list exchanged with Plaintiff's counsel pursuant to the Stipulated E-discovery Protocol.

25. Additionally, although not listed as a "custodian" for purposes of ESI collection, documents of Sir Malcolm Ashford, Chairman, and Dame Catherine Elsworth, CEO, of Northgate Telecommunications PLC were collected to the extent they appeared in the files of the above-listed custodians or were otherwise identified as responsive to Plaintiff's document requests. These documents included board-level communications and presentations relevant to the termination decision.

C. E-discovery Vendor and Review Platform

26. Vantage Litigation Support LLC ("Vantage"), with offices at 300 Vesey Street, Suite 600, New York, New York 10282, was engaged as Defendant's e-discovery vendor pursuant to an engagement letter dated September 10, 2024. Vantage was responsible for the collection, processing, de-duplication, hosting, and production of all ESI collected from Defendant's custodians. Vantage also provided the review platform used by Calderwood & Harkness LLP's document review team.

27. Following collection, the approximately 1.4 million documents (approximately 3.2 terabytes) were processed by Vantage using industry-standard tools and loaded into the Vantage review platform. The review was conducted in accordance with a two-phase protocol. In the first phase, documents were filtered and prioritized using the agreed-upon search terms and date ranges established under the Stipulated E-discovery Protocol (Exhibit E). In the second phase, filtered documents were subjected to manual review by attorneys on the Calderwood & Harkness LLP document review team, who coded each document for responsiveness, privilege, confidentiality designation, and other relevant attributes in accordance with C&H's Document Review Protocol and Coding Manual, a comprehensive internal guide that I prepared and distributed to all reviewers at the commencement of the review process.

D. Privilege Review Methodology

28. The privilege review process was designed to ensure that all potentially privileged documents were identified, carefully evaluated, and, where appropriate, withheld from production with a corresponding entry on Defendant's privilege log. The process operated as follows:

29. During the first-level review, each document was reviewed by a contract attorney or junior associate on the document review team. Any document that was flagged as potentially privileged — whether on the basis of attorney-client privilege, work product protection, or both — was coded as "potentially privileged" and escalated to a senior reviewer for a second-level review.

30. The second-level review was conducted by senior associates under my direct supervision and that of my colleague Yuki Nakamura, a senior associate at Calderwood & Harkness LLP who has also been actively involved in the defense of this matter. During the second-level review, each potentially privileged document was evaluated against the applicable legal standards for attorney-client privilege and work product protection under New York law. Particular attention was paid to whether the communication was made in confidence between a client and an attorney (or the attorney's agent) for the purpose of obtaining or providing legal advice, and whether documents prepared in anticipation of litigation reflected the mental impressions, conclusions, opinions, or legal theories of an attorney.

31. Final privilege determinations were made by me and/or by Ms. Osei. In cases involving complex or borderline privilege issues — such as mixed-purpose documents containing both business and legal content, or communications involving in-house counsel acting in a dual business-legal capacity — I consulted with Ms. Osei before making a final determination, and in certain instances, we jointly reviewed the documents in question.

32. For each document withheld on privilege grounds, a detailed entry was prepared for the privilege log in accordance with the requirements of CPLR § 3101(b), the Commercial Division Rules, and the Stipulated E-discovery Protocol. Each entry includes sufficient detail to enable the opposing party to assess the claim of privilege without revealing the substance of the privileged communication or work product itself.

IV. THE 214 DOCUMENTS ON DEFENDANT'S PRIVILEGE LOG

A. Overview and Composition of the Privilege Log

33. As noted above, Defendant's privilege log, served on Plaintiff on October 31, 2024, identifies 214 documents withheld in whole or in part on the grounds of attorney-client privilege and/or attorney work product protection. A true and correct copy of the full Privilege Log is attached hereto as Exhibit A.

34. The 214 documents encompass a range of document types and communications, all of which share the common characteristic of reflecting confidential communications between attorney and client for the purpose of obtaining or providing legal advice, or constituting materials prepared by or at the direction of counsel in anticipation of or during litigation. The documents break down approximately as follows:

(a) Communications between Northgate/NFA in-house legal personnel — principally Dominic Hale, General Counsel, and members of his legal team, including Associate General Counsel Fiona Marchetti and Senior Legal Counsel Alistair Pembroke — and business personnel, including Renata Voss, Sean Calloway, Helena Bright, Sir Malcolm Ashford (Chairman), and Dame Catherine Elsworth (CEO), in which legal advice was sought or provided regarding the MCA, the termination strategy, and the dispute with Meridian;

(b) Communications between Northgate/NFA personnel and Calderwood & Harkness LLP, reflecting pre-litigation legal advice that commenced in early 2024, prior to our firm's formal engagement on August 19, 2024, as well as post-engagement communications reflecting legal advice and litigation strategy;

(c) Internal memoranda prepared by or at the direction of Dominic Hale, in his capacity as General Counsel, analyzing legal risks and options regarding the termination of the MCA for cause under MCA § 14.1, including analysis of the contractual requirements for valid termination, the sufficiency of cure notices, and the potential legal exposure arising from termination;

(d) Board-level presentations and supporting analyses prepared for or at the direction of counsel evaluating Northgate's legal exposure, litigation strategy, and settlement considerations, including presentations to the Board of Directors and the Board's Audit and Risk Committee; and

(e) Documents reflecting legal advice regarding the performance bond (Bond No. ISG-2020-NE-04417, issued by Ironclad Surety Group Inc.) and insurance coverage, including Northgate PLC's Directors & Officers Liability Policy (Policy No. ALB-DO-2023-4782, issued by Albion Specialty Insurance Ltd.) and the Commercial General Liability Policy (Policy No. KNIC-CGL-2022-99301, issued by Keystone National Insurance Company), as well as communications with Pemberton Fox LLP, Northgate's coverage counsel.

B. Categories of Withheld Documents

35. For purposes of this declaration and to assist the Court in understanding the nature and scope of the withheld documents, I have organized the 214 documents into four categories, as described below. These categories correspond to the functional groupings reflected in the privilege log and are intended to provide the Court with a clear overview of the types of privileged communications at issue.

36. Category 1 — Pre-Termination Legal Advice (approximately 78 documents): This category encompasses emails, memoranda, and presentations in which Dominic Hale and members of his legal team provided legal advice to Northgate/NFA management regarding the dispute with Meridian and the termination decision. Specifically, these documents address: (i) whether Meridian's conduct — including failure to meet schedule milestones, deficient workmanship identified in quality inspection reports, and failure to maintain adequate bonding and insurance — constituted material breach of the MCA under Section 14.1; (ii) the adequacy and sufficiency of the cure notices issued by NFA to Meridian, including Cure Notice No. 1 (dated January 18, 2024) and Cure Notice No. 2 (dated February 19, 2024), and whether Meridian's responses to those cure notices constituted legally adequate cure; (iii) the legal risks associated with terminating the MCA for cause under Section 14.1 as compared to terminating for convenience under Section 14.3, including the financial implications of each option; and (iv) the procedural requirements for issuing a valid notice of termination for cause, including notice periods, documentation requirements, and dispute resolution prerequisites. These documents reflect the quintessential type of attorney-client communication: a client seeking legal advice from its attorney on matters of legal risk, contractual interpretation, and legal strategy, and the attorney providing that advice.

37. Category 2 — Board-Level Privileged Communications (approximately 31 documents): This category encompasses presentations, memoranda, and email chains that were prepared for or transmitted to Dame Catherine Elsworth, Sir Malcolm Ashford, and the Northgate PLC Board of Directors, reflecting legal advice on litigation exposure, strategic options, and the decision to terminate the MCA. These documents include slide presentations prepared by Dominic Hale's legal team for board meetings and Audit and Risk Committee sessions, as well as email chains between Mr. Hale and senior executives transmitting those presentations and providing supplemental legal analysis. The board-level documents reflect Northgate's efforts to obtain legal guidance from its General Counsel before making a decision with significant legal implications — namely, the termination of a construction agreement with a total contract value in excess of $1.2 billion. The privilege protects communications in which attorneys advise the board and senior management on the legal risks of a contemplated course of action, regardless of whether the ultimate decision also has business dimensions.

38. Category 3 — Insurance and Bond-Related Legal Advice (approximately 22 documents): This category encompasses communications with and about Ironclad Surety Group Inc. (the surety on the performance bond), Albion Specialty Insurance Ltd. (the D&O insurer), Keystone National Insurance Company (the CGL insurer), and Pemberton Fox LLP (Northgate's coverage counsel). These documents reflect legal advice regarding coverage positions under the applicable policies, tender obligations, defense cost contributions, and the legal implications of the litigation for Northgate's insurance and surety relationships. Communications between Northgate and its coverage counsel at Pemberton Fox LLP are plainly privileged attorney-client communications. Communications between Northgate, its coverage counsel, and the insurers and surety, to the extent they convey or reflect legal advice, are likewise protected.

39. Category 4 — Litigation Strategy and Work Product (approximately 83 documents): This category encompasses post-engagement communications between Calderwood & Harkness LLP attorneys and Northgate/NFA personnel, internal Calderwood & Harkness LLP memoranda, draft pleadings, case assessments, settlement analyses, and communications relating to expert retention and consultation — all of which were prepared in anticipation of or during this litigation. These documents contain the mental impressions, conclusions, opinions, and legal theories of counsel and constitute classic attorney work product under CPLR § 3101(d)(2). Additionally, many of the documents in this category are also protected by the attorney-client privilege insofar as they reflect confidential communications between counsel and client for the purpose of obtaining or providing legal advice in connection with the litigation.

C. Sample Privilege Log Entries

40. To demonstrate the level of detail and specificity provided in Defendant's privilege log, a representative sample of ten entries from the log is attached hereto as Exhibit B. These ten entries were selected to illustrate the range and specificity of the log entries across all four categories of withheld documents. Each entry on the privilege log includes the following fields:

(a) Log Entry Number;

(b) Bates Range (where applicable) or Document Control Number;

(d) Author(s);

(e) Recipient(s) and CC;

(f) Document Type (e.g., email, memorandum, presentation, spreadsheet);

(g) Subject/Description;

(h) Privilege(s) Asserted (attorney-client privilege, work product protection, or both); and

(i) Brief Description of Basis for Privilege Claim.

41. The following are illustrative summaries of certain entries from Exhibit B, provided here to give the Court a sense of the nature and detail of the log entries without disclosing the substance of privileged communications:

(a) Entry No. 17 (Category 1): An email dated February 12, 2024, from Dominic Hale (General Counsel, Northgate PLC) to Renata Voss (VP, US Network Infrastructure, NFA) and Sean Calloway (Director, Construction Management, NFA), conveying Mr. Hale's legal analysis regarding the sufficiency of Cure Notice No. 1 (dated January 18, 2024), including his assessment of whether Meridian's response to the cure notice satisfied the contractual requirements for cure under MCA § 14.1(c), and providing legal guidance regarding the requirements for Cure Notice No. 2, which was subsequently issued on February 19, 2024. Privilege asserted: attorney-client privilege.

(b) Entry No. 42 (Category 2): A memorandum dated March 8, 2024, from Dominic Hale to Sir Malcolm Ashford (Chairman) and Dame Catherine Elsworth (CEO), providing legal advice on the risks and consequences of terminating the MCA for cause under Section 14.1 as compared to terminating for convenience under Section 14.3. The memorandum includes Mr. Hale's legal analysis of the contractual provisions, his assessment of the likelihood of a legal challenge by Meridian, and a discussion of the financial exposure under each termination scenario, including the 8% termination fee applicable to termination for convenience (estimated at approximately $50.424 million based on $630.3 million in unperformed contract value). Privilege asserted: attorney-client privilege.

(c) Entry No. 58 (Category 2): A set of presentation slides dated March 14, 2024, prepared by Mr. Hale and his legal team for a Board of Directors meeting, analyzing Northgate's legal exposure in the event that the termination for cause were challenged in litigation. The presentation includes legal risk assessments, analysis of precedent, and recommendations regarding the termination decision. Privilege asserted: attorney-client privilege and work product protection.

(d) Entry No. 189 (Category 4): An email chain dated September 2024, among Linda Osei (Partner, Calderwood & Harkness LLP), Jeffrey Park (Associate, Calderwood & Harkness LLP), and Dominic Hale (General Counsel, Northgate PLC), discussing defense strategy, counterclaim theories, and the identification of potential expert witnesses. Privilege asserted: attorney-client privilege and work product protection.

42. The representative sample entries attached as Exhibit B demonstrate that the privilege log complies in all respects with the requirements of CPLR § 3101(b), the Commercial Division Rules, and the Stipulated E-discovery Protocol. Each entry provides the date, author, recipients, document type, a description of the general subject matter, the privilege(s) asserted, and a brief description of the basis for the privilege claim — all in sufficient detail to enable the opposing party to assess the legitimacy of the privilege assertion without requiring disclosure of the privileged content itself.

D. Why the 214 Documents Are Protected

43. Each of the 214 documents on Defendant's privilege log is properly withheld because it reflects a confidential communication between a client (Northgate PLC and/or NFA, through their officers and employees) and an attorney (Dominic Hale, members of his in-house legal team, or attorneys at Calderwood & Harkness LLP) made for the purpose of obtaining or providing legal advice, or constitutes attorney work product prepared in anticipation of or during this litigation.

44. Meridian's principal argument in support of its motion to compel is that the withheld documents relate to a "business decision" — namely, the decision to terminate the MCA and allegedly bring fiber construction work in-house — and therefore cannot be protected by the attorney-client privilege. This argument fundamentally mischaracterizes both the nature of the withheld documents and the scope of the attorney-client privilege under New York law. It is well established that the attorney-client privilege protects legal advice provided in connection with business decisions. Indeed, some of the most important and valuable legal advice that attorneys provide is advice rendered in connection with major business decisions that carry significant legal risk. The privilege does not evaporate simply because the legal advice informed or influenced a decision that also had business dimensions. To hold otherwise would effectively eliminate the privilege in the commercial context, where virtually every significant legal issue arises in connection with a business decision.

45. Meridian also mischaracterizes the substance of the decision at issue. The documents on the privilege log do not reflect a plan to "bring fiber construction in-house." To the contrary, the undisputed facts show that Northgate engaged a replacement contractor, Crestline Construction Group Inc. ("Crestline"), at arm's length on June 10, 2024, pursuant to a competitively bid contract with a total contract price of approximately $712 million. This contract price is approximately $81.7 million more than the remaining MCA value of $630.3 million that had been allocated to Meridian's scope of work at the time of termination. The fact that Northgate engaged a third-party replacement contractor at a significant premium over the remaining MCA value undermines any suggestion that the termination was motivated by a desire to achieve cost savings by performing the work internally. The termination was driven by Meridian's repeated and material breaches of the MCA — including schedule failures, quality deficiencies, and bonding and insurance lapses — and the privileged documents reflect the legal advice Northgate sought and received regarding those breaches and the legal requirements for termination.

46. Meridian's invocation of the crime-fraud exception to the privilege is equally without merit. The crime-fraud exception requires a prima facie showing that the attorney-client communications were made in furtherance of a crime or fraud. Meridian has offered no evidence — beyond conclusory allegations in its motion papers — to support its claim that Northgate used legal advice to effectuate a "pretextual termination" or that any crime or fraud was committed. Bare assertions and speculation do not satisfy the threshold showing required to invoke the crime-fraud exception, and Meridian's motion papers fail to identify any specific communication or document that purportedly furthered a fraudulent scheme. Meridian's argument amounts to the circular proposition that because Meridian disputes the legitimacy of the termination, any legal advice Northgate received about the termination must have been in furtherance of fraud. This is not the law.

47. Finally, Meridian's contention that Defendant's privilege log is insufficiently detailed is belied by the log itself. As demonstrated by the representative sample entries attached as Exhibit B, and as is evident from a review of the full privilege log (Exhibit A), each entry provides the date, author, recipients, document type, subject matter description, privilege asserted, and basis for the privilege claim. The log was prepared in accordance with CPLR § 3101(b), the Commercial Division Rules, and the specific requirements of the Stipulated E-discovery Protocol agreed upon by both parties. Meridian's blanket assertion that the log is "inadequate" is unsupported by any specific identification of entries that it claims are deficient and appears to be nothing more than a makeweight argument designed to bolster an otherwise meritless motion.

48. No waiver of privilege has occurred with respect to any of the 214 documents. The documents were maintained in confidence within the attorney-client relationship and were not disclosed to any third parties outside the scope of the privilege. The documents were timely identified and logged in accordance with the discovery schedule and the Stipulated E-discovery Protocol.

V. MERIDIAN'S MOTION TO COMPEL LACKS MERIT

49. Plaintiff's motion to compel production of the 214 documents on Defendant's privilege log is based on three principal arguments: (1) that the documents relate to a business decision (allegedly bringing fiber construction in-house) rather than legal advice; (2) that the crime-fraud exception applies because Northgate allegedly used legal advice to effectuate a pretextual termination of the MCA designed to replace Meridian with a more compliant contractor; and (3) that the privilege log is insufficiently detailed to permit Plaintiff to assess the privilege claims. For the reasons set forth in this declaration and in the accompanying memorandum of law, each of these arguments lacks merit.

50. With respect to the first argument, as I have explained above, the 214 documents on Defendant's privilege log reflect legal advice provided by Dominic Hale, his legal team, and Calderwood & Harkness LLP in connection with the MCA, the termination process, and the resulting litigation. The documents do not reflect a business plan to "bring fiber construction in-house." To the contrary, Northgate's engagement of Crestline Construction Group Inc. as a replacement contractor on June 10, 2024 — at a contract price of approximately $712 million, which is approximately $81.7 million more than the $630.3 million remaining under the MCA — demonstrates that Northgate's termination of the MCA was not motivated by a desire to perform the work internally or to achieve cost savings. The replacement contractor was engaged through a competitive procurement process, and the significant premium Northgate is paying to Crestline is inconsistent with Meridian's theory that the termination was a pretext for bringing the work in-house at a lower cost.

51. With respect to the crime-fraud exception, Meridian has failed to make the prima facie showing required under New York law. Meridian's motion papers rely entirely on conclusory allegations and inferences drawn from the fact that Northgate terminated the MCA. But a termination of a contract — even one that is subsequently challenged in litigation — does not constitute fraud, and the mere existence of a dispute over whether the termination was justified does not give rise to a prima facie case of fraud sufficient to overcome the privilege. Meridian has not identified any specific fraudulent act, misrepresentation, or scheme, nor has it pointed to any particular communication or document on the privilege log that it contends furthered a fraud. The crime-fraud exception is a narrow one, and it cannot be invoked based on speculation and bare allegations.

52. With respect to the adequacy of the privilege log, I have reviewed each of the 214 entries on the log and can confirm that each entry provides the information required under CPLR § 3101(b) and the Stipulated E-discovery Protocol, including the date, author, recipients, document type, subject matter description, privilege asserted, and basis for the privilege claim. The representative sample entries attached as Exhibit B demonstrate the level of detail provided. Meridian has not identified any specific entry that it contends is inadequate, nor has it explained what additional information it believes is required. Defendant's privilege log complies with all applicable requirements, and Meridian's argument to the contrary is without foundation.

VI. DEFENDANT'S CROSS-MOTION — MERIDIAN'S WITHHOLDING OF MERIDIAN-RIDGEPOINT COMMUNICATIONS

A. Meridian's Privilege Log and the 187 Withheld Documents

53. In its document production in this action, Plaintiff Meridian Infrastructure Partners LLC withheld 187 documents on the basis of what it has characterized as the "common interest privilege" between Meridian and its majority equity holder, Ridgepoint Capital Group LP ("Ridgepoint"). These 187 documents were identified on Meridian's privilege log, which was served in connection with Meridian's document production. A true and correct copy of the relevant portions of Meridian's privilege log — specifically, the entries corresponding to the 187 withheld documents — is attached hereto as Exhibit C.

54. Ridgepoint Capital Group LP is a Delaware limited partnership with its principal office at 2100 Ross Avenue, Suite 3300, Dallas, Texas 75201. Ridgepoint is a private equity fund managed by its managing partner, Graham Latimer. Ridgepoint holds approximately 55% of the equity of Meridian Infrastructure Partners LLC, having acquired its majority stake in 2018 for approximately $285 million.

55. Based on Meridian's responses to Defendant's First Set of Interrogatories (relevant excerpts of which are attached hereto as Exhibit G), Ridgepoint has funded Meridian's litigation costs in this action. Meridian's litigation war chest is estimated at approximately $12 million, based on Meridian's own discovery responses describing the funding commitment that Ridgepoint has made to support Meridian's prosecution of this case and defense against Defendant's counterclaims.

B. The Common Interest Privilege Does Not Apply

56. Defendant respectfully submits that Meridian's assertion of common interest privilege over the 187 Meridian-Ridgepoint communications is without legal basis. I set forth below the factual grounds supporting Defendant's position.

57. First, no written joint defense agreement or common interest agreement between Meridian and Ridgepoint has been produced or identified in this litigation. In response to Defendant's discovery requests seeking the production of any such agreement, Meridian stated that no formal written agreement exists. The absence of a written agreement is not necessarily dispositive under New York law, but it is a significant factor in assessing whether a common interest relationship exists, particularly where, as here, the purported common interest is between a litigation party and its financial backer rather than between co-parties or co-defendants facing common legal exposure.

58. Second, Ridgepoint Capital Group LP is not a party to this litigation. Ridgepoint has not been named as a plaintiff, defendant, or third-party in this action. Ridgepoint is not separately represented by Hargrove, Deluca & Stein LLP in this matter, and Meridian has not identified any separate counsel retained by Ridgepoint to provide legal advice regarding this litigation. The common interest privilege, as recognized under New York law, requires that the parties sharing the communication have a common legal interest — not merely a shared financial or business interest — and that the communication be made in furtherance of that common legal interest.

59. Third, Ridgepoint's interest in this litigation is fundamentally financial in nature. Ridgepoint's stake in Meridian is an equity investment, and Ridgepoint's interest in the outcome of this litigation is the protection of its $285 million equity investment and the maximization of any recovery that Meridian may obtain. Ridgepoint's funding of Meridian's litigation costs — estimated at approximately $12 million — is likewise a financial arrangement designed to protect and enhance the value of Ridgepoint's investment. A shared financial interest in the outcome of litigation does not constitute the "common legal interest" required under New York law for invocation of the common interest privilege. If the mere fact that a litigation funder or equity investor has a financial stake in the outcome of litigation were sufficient to establish a common interest privilege, the privilege would swallow the rule of broad disclosure that governs civil discovery in New York.

60. Fourth, based on my review of the descriptions provided in Meridian's privilege log (Exhibit C), the 187 withheld documents appear to include communications regarding a wide range of subjects that go far beyond any shared legal interest, including: (i) Ridgepoint's investment thesis regarding its equity stake in Meridian, including the role of the Northgate contract as a key value driver for the investment; (ii) Meridian's financial condition and operating performance; (iii) the litigation budget and funding arrangements between Meridian and Ridgepoint; (iv) strategic assessments of the strengths and weaknesses of Meridian's claims and Defendant's counterclaims; and (v) discussions regarding Meridian's post-termination business strategy, including efforts to secure replacement contracts. These topics encompass matters that are directly relevant to Defendant's defenses and counterclaims, including issues of damages, mitigation, financial condition, and the credibility of Meridian's witnesses.

61. Fifth, Defendant's document requests specifically sought communications between Meridian and Ridgepoint regarding the Northgate contract, Meridian's financial condition, the litigation and its funding, and decisions regarding the prosecution of this action. These requests were not objected to on relevance grounds, and Meridian's only basis for withholding was the assertion of common interest privilege — which, as explained above, is not legally supportable on the facts of this case.

C. Relevance of the Withheld Documents to the Defense

62. The 187 withheld Meridian-Ridgepoint communications are directly relevant to Defendant's defenses and counterclaims in multiple respects.

63. Damages Analysis: Documents relating to Ridgepoint's role in funding the litigation and its financial relationship with Meridian are relevant to Defendant's challenges to Meridian's damages claims. The defense is entitled to explore whether Ridgepoint's funding has distorted Meridian's damages model — for example, by allowing Meridian to assert inflated claims that it would not otherwise pursue absent the backing of a well-capitalized private equity sponsor. Additionally, Ridgepoint's communications with Meridian regarding damages strategy and settlement are relevant to understanding the true nature and extent of Meridian's alleged losses. Defendant is also entitled to explore whether Meridian's ability to mitigate its damages was affected by Ridgepoint's resources and connections, including Ridgepoint's ability to assist Meridian in securing replacement work.

64. Financial Condition and Backlog: Documents relating to Meridian's financial condition are relevant to Defendant's defense, including its affirmative defenses and counterclaims. Following the termination of the MCA, Meridian's construction backlog dropped from approximately $1.4 billion to approximately $770 million — a reduction of approximately $630 million, corresponding almost exactly to the unperformed value under the MCA. The financial impact of this backlog reduction on Meridian's operations, creditworthiness, and ability to secure new work is directly relevant to damages and mitigation. Additionally, Defendant has identified that Dralvecen Commercial Finance LLC maintains a $150 million revolving credit facility secured by, among other things, lien interests in Meridian's receivables from the Northgate contract. The interplay between Ridgepoint's equity investment, the Dralvecen credit facility, and Meridian's financial condition is relevant to understanding the full picture of Meridian's alleged damages and its capacity to mitigate.

65. Bias and Credibility: Ridgepoint's investment thesis was premised in significant part on the Northgate contract as Meridian's anchor program — the largest single contract in Meridian's portfolio and a key driver of the valuation at which Ridgepoint acquired its 55% stake. Communications between Ridgepoint and Meridian regarding the importance of the Northgate contract to Ridgepoint's investment, and Ridgepoint's expectations regarding the contract's performance and profitability, are relevant to the bias and credibility of Meridian's witnesses. Victor Sandoval, Meridian's founder and CEO, retains a 30% equity stake in the company. Additionally, Meridian's senior management team holds a 15% equity pool. These equity stakes create financial incentives that are directly relevant to the credibility of Mr. Sandoval and other Meridian witnesses, and communications with Ridgepoint regarding the impact of the litigation on the value of those equity stakes are discoverable.

66. Mitigation: Documents relating to Meridian's post-termination business strategy and efforts to secure replacement contracts are relevant to the adequacy of Meridian's mitigation efforts, which is an affirmative defense asserted by Defendant. To the extent Ridgepoint communicated with Meridian regarding strategies for replacing the Northgate contract revenue, those communications are relevant to assessing whether Meridian took reasonable steps to mitigate its damages.

D. Request for Relief

67. For the reasons set forth above and in the accompanying memorandum of law, Defendant respectfully requests that the Court grant Defendant's Cross-Motion for Protective Order and either: (1) order Meridian to produce the 187 withheld Meridian-Ridgepoint documents in their entirety, on the ground that the common interest privilege does not apply to shield communications between a litigation party and its private equity sponsor from discovery; or (2) in the alternative, conduct an in camera review of the 187 documents to determine whether the common interest privilege validly applies to any or all of the withheld documents, and order production of those documents as to which the privilege does not apply.

VII. LIST OF EXHIBITS

68. The following exhibits are attached to and submitted in connection with this declaration:

Exhibit A: Defendant Northgate Fiber Americas Inc.'s Privilege Log, served on October 31, 2024 — full log of 214 documents, organized by custodian, date, author, recipient, document type, and privilege description.

Exhibit B: Representative Sample of 10 Privilege Log Entries with Detailed Descriptions — selected to illustrate the range and specificity of log entries across all four categories of withheld documents.

Exhibit C: Relevant Portions of Plaintiff Meridian Infrastructure Partners LLC's Privilege Log — entries for the 187 documents withheld under the asserted common interest privilege.

Exhibit D: Letter from Linda Osei, Calderwood & Harkness LLP, to Thomas Deluca, Hargrove, Deluca & Stein LLP, dated November 15, 2024 — meet-and-confer correspondence proposing informal resolution of the privilege dispute prior to Meridian's filing of its motion to compel.

Exhibit E: Stipulated E-discovery Protocol and ESI Agreement, filed October 1, 2024 — establishing the production format for ESI, privilege log requirements, clawback procedures, and referencing Vantage Litigation Support LLC as the neutral vendor.

Exhibit F: Letter from Linda Osei, Calderwood & Harkness LLP, to Thomas Deluca, Hargrove, Deluca & Stein LLP, dated November 1, 2024 — detailing deficiencies in Meridian's document production, including incomplete subcontractor communications and the withholding of Ridgepoint-related documents.

Exhibit G: Excerpts from Plaintiff Meridian Infrastructure Partners LLC's Responses to Defendant's First Set of Interrogatories — responses identifying Ridgepoint Capital Group LP's estimated $12 million litigation funding commitment and Ridgepoint's role in Meridian's decision-making.

VIII. CONCLUSION

69. For the foregoing reasons, the 214 documents on Defendant's privilege log are properly withheld as attorney-client privileged and/or attorney work product. Plaintiff Meridian's Motion to Compel production of those documents should be denied in its entirety.

70. Plaintiff Meridian's assertion of common interest privilege over 187 Meridian-Ridgepoint communications is without legal basis. Ridgepoint is not a party to this litigation, has no common legal interest with Meridian sufficient to support invocation of the common interest privilege, and its interest in the outcome of this action is purely financial. The withheld documents are directly relevant to Defendant's defenses and counterclaims, including issues of damages, mitigation, financial condition, and witness credibility. Defendant's Cross-Motion for Protective Order should be granted, or in the alternative, the Court should conduct an in camera review of the 187 documents and order production of those documents as to which the privilege does not apply.

71. Defendant respectfully requests that the Court deny Plaintiff's Motion to Compel and grant Defendant's Cross-Motion in its entirety.

I declare under penalty of perjury under the laws of the State of New York that the foregoing is true and correct.

Executed on: December 6, 2024 New York, New York

________________________________________

Jeffrey Park

CALDERWOOD & HARKNESS LLP 425 Park Avenue, 33rd Floor New York, New York 10022 Telephone: (212) 555-7800 Facsimile: (212) 555-7801

Attorneys for Defendant Northgate Fiber Americas Inc.

C&H Matter No. 1022-00005

CERTIFICATE OF SERVICE

I, Jeffrey Park, hereby certify that on December 6, 2024, a true and correct copy of the foregoing Declaration of Jeffrey Park in Support of (I) Defendant's Opposition to Plaintiff's Motion to Compel Production of Privileged Documents and (II) Defendant's Cross-Motion for Protective Order Regarding Plaintiff's Withholding of Meridian-Ridgepoint Communications, together with Exhibits A through G, was served upon the following counsel of record:

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

via the New York State Courts Electronic Filing System ("NYSCEF") and via email to tdeluca@hdslaw.com.

________________________________________

Jeffrey Park

MERIDIAN INFRASTRUCTURE PARTNERS LLC,

Index No. 654321/2024

Plaintiff,

Assigned Justice:

-against-

NORTHGATE FIBER AMERICAS INC.,

Defendant.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — COMMERCIAL DIVISION
DECLARATION OF JEFFREY PARK IN SUPPORT OF (I) DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF PRIVILEGED DOCUMENTS AND (II) DEFENDANT'S CROSS-MOTION FOR PROTECTIVE ORDER REGARDING PLAINTIFF'S WITHHOLDING OF MERIDIAN-RIDGEPOINT COMMUNICATIONS
Jeffrey Park, an attorney duly admitted to practice law in the State of New York, hereby declares under penalty of perjury, pursuant to CPLR § 2106, as follows:
1. I am an associate at the law firm of Calderwood & Harkness LLP, located at 425 Park Avenue, 33rd Floor, New York, New York 10022. I am a member of the defense team representing Defendant Northgate Fiber Americas Inc. ("NFA" or "Defendant") in the above-captioned action. I submit this declaration in support of both (I) Defendant's Opposition to Plaintiff Meridian Infrastructure Partners LLC's ("Meridian" or "Plaintiff") Motion to Compel Production of Privileged Documents, and (II) Defendant's Cross-Motion for Protective Order Regarding Plaintiff's Withholding of Meridian-Ridgepoint Communications.
2. I have personal knowledge of the facts stated herein, except as otherwise indicated. Where statements are based upon my review of documents, correspondence, court filings, or the files maintained by Calderwood & Harkness LLP in connection with this matter, I have identified the source of that information. This matter is identified internally as C&H Matter No. 1022-00005.
I. BACKGROUND AND QUALIFICATIONS
3. I serve as the Lead Associate on this matter. I was admitted to the practice of law in the State of New York in 2019, and I have practiced exclusively in the area of complex commercial litigation since that time. My practice has included significant experience in construction and infrastructure disputes, contractual claims, and discovery matters in the Commercial Division of the Supreme Court of the State of New York, as well as in federal courts within the Second Circuit.
4. In this matter, I work under the supervision of Linda Osei, Responsible Partner, and Priya Anand, Billing Partner, both of Calderwood & Harkness LLP. Ms. Osei serves as lead counsel for Defendant NFA and has been the primary partner responsible for all strategic decisions in this litigation. Ms. Anand provides additional oversight with respect to the financial and economic aspects of the dispute, including the counterclaims asserted by Defendant.
5. I have been actively involved in all aspects of the defense of this action since our firm's engagement on August 19, 2024. My responsibilities have included, among other things, coordinating with Defendant's personnel regarding factual investigation, managing the document collection and preservation process, supervising the document review team, participating in the preparation of Defendant's privilege log, overseeing document productions to Plaintiff, engaging with Plaintiff's counsel on meet-and-confer discussions concerning discovery disputes, and assisting in the preparation of Defendant's pleadings, motions, and other court filings.
6. I have personally supervised and participated in every stage of the document collection, review, privilege determination, and production process in this action. I am familiar with the approximately 1.4 million documents (comprising approximately 3.2 terabytes of electronically stored information, or "ESI") collected from ten NFA and Northgate Telecommunications PLC ("Northgate PLC") custodians. I am also familiar with Plaintiff Meridian's production in this action, which to date consists of approximately 890,000 documents (comprising approximately 1.8 terabytes of ESI) collected from eight Meridian custodians.
II. PROCEDURAL HISTORY RELEVANT TO THE PRIVILEGE DISPUTES
7. In order to provide the Court with the necessary context for the privilege disputes at issue, I set forth below the procedural history of this action insofar as it is relevant to the instant motions. The following recitation is based on my personal knowledge, my review of the court docket maintained through the New York State Courts Electronic Filing System ("NYSCEF"), and the files maintained by Calderwood & Harkness LLP.
8. July 15, 2024: Plaintiff Meridian Infrastructure Partners LLC commenced this action by filing a Verified Complaint in the Supreme Court of the State of New York, County of New York, Commercial Division. The Verified Complaint asserts four causes of action — (1) breach of contract, (2) anticipatory breach of contract, (3) breach of the implied covenant of good faith and fair dealing, and (4) unjust enrichment — arising out of the termination of the Master Construction Agreement dated March 15, 2020 (the "MCA") between NFA and Meridian. Meridian seeks damages in a total amount of approximately $200 million, inclusive of alleged lost profits, unpaid change orders, demobilization costs, and consequential damages.
9. August 5, 2024: Service of process was effected on Defendant NFA through the New York Secretary of State in accordance with the Business Corporation Law.
10. August 19, 2024: Calderwood & Harkness LLP was engaged by Defendant NFA to serve as litigation counsel. Our firm opened the matter on that date under C&H Matter No. 1022-00005 and promptly began our factual investigation and review of the issues raised in the Verified Complaint.
11. September 3, 2024: Defendant filed its Answer with Affirmative Defenses and Counterclaims. The Answer asserts twenty-two affirmative defenses and three counterclaims: (1) breach of contract for Meridian's failure to meet contractual milestones and quality standards, (2) indemnification under MCA § 18 for third-party delay claims, and (3) breach of warranty under MCA § 10. Defendant's counterclaims seek damages totaling approximately $149 million.
12. October 1, 2024: A Preliminary Conference was held before the Honorable Eleanor M. Ricci, J.S.C., in Part 49 of the Commercial Division. At that conference, the Court set a discovery schedule governing document production, depositions, and expert disclosures. On the same date, the parties filed a Stipulated E-discovery Protocol and ESI Agreement (a true and correct copy of which is attached hereto as Exhibit E), which established, among other things, the production format for ESI, the requirements for privilege logs, the protocol for clawback of inadvertently produced privileged documents, and the engagement of Vantage Litigation Support LLC as a neutral vendor for certain processing functions. The parties also filed a Confidentiality Stipulation and Proposed Order, which was so-ordered by Justice Ricci on the same date.
13. October 8, 2024: Defendant served its First Set of Document Requests on Plaintiff, consisting of fifty-six requests for production, as well as its First Set of Interrogatories, consisting of twenty-five interrogatories. These requests were tailored to the claims and defenses in the action and sought, among other things, documents relating to Meridian's performance under the MCA, communications with subcontractors, documents concerning Meridian's financial condition, communications between Meridian and its majority equity holder Ridgepoint Capital Group LP ("Ridgepoint"), and documents relating to Meridian's efforts to mitigate its alleged damages following the termination of the MCA.
14. October 22, 2024: Defendant served its Responses and Objections to Plaintiff's First Set of Document Requests. Those responses included, as appropriate, objections on the grounds of attorney-client privilege and work product protection. Defendant also began its rolling production of non-privileged, responsive documents on or about the same date.
15. October 31, 2024: Defendant completed its rolling production of non-privileged, responsive documents and served its privilege log on Plaintiff. The privilege log identified 214 documents withheld in whole or in part on the grounds of attorney-client privilege and/or attorney work product protection. A true and correct copy of the privilege log is attached hereto as Exhibit A.
16. November 15, 2024: In accordance with this Court's rules and the Commercial Division Rules requiring a good-faith effort to resolve discovery disputes before seeking judicial intervention, Ms. Osei sent a detailed meet-and-confer letter to Thomas Deluca, the lead partner at Hargrove, Deluca & Stein LLP representing Plaintiff, addressing the privilege positions asserted by both parties and proposing an informal resolution of the privilege dispute. A true and correct copy of that letter is attached hereto as Exhibit D. In that letter, Ms. Osei also identified deficiencies in Meridian's production and raised concerns regarding Meridian's assertion of common interest privilege over communications with Ridgepoint. Plaintiff's counsel did not agree to any informal resolution and instead proceeded to file its motion to compel.
17. Prior to the November 15 letter, on November 1, 2024, Ms. Osei had sent a separate letter to Mr. Deluca detailing deficiencies in Meridian's document production, including incomplete production of subcontractor communications and the improper withholding of Ridgepoint-related documents. A true and correct copy of that letter is attached hereto as Exhibit F.
18. November 22, 2024: Plaintiff filed its Motion to Compel Production of the 214 documents identified on Defendant's privilege log, notwithstanding the ongoing meet-and-confer process and the reasoned positions set forth in Defendant's correspondence.
19. December 6, 2024: Defendant files this Opposition to Plaintiff's Motion to Compel and Cross-Motion for Protective Order, together with the instant declaration and supporting papers.
III. DEFENDANT'S DOCUMENT COLLECTION AND REVIEW PROCESS
20. In this section, I describe the document collection and review process undertaken by Defendant, with particular focus on the procedures employed to identify and withhold privileged documents. I provide this description to demonstrate to the Court that Defendant's privilege determinations were made carefully, systematically, and in full compliance with applicable law and the Stipulated E-discovery Protocol.
A. Litigation Hold and Preservation
21. On August 21, 2024, two days after Calderwood & Harkness LLP's engagement, our firm drafted a Litigation Hold Notice (the "Hold Notice") in consultation with NFA's General Counsel, Dominic Hale. The Hold Notice was distributed on the same date to all relevant personnel at both Northgate Telecommunications PLC, the UK-based parent company, and Northgate Fiber Americas Inc., the US subsidiary that is the named Defendant in this action.
22. The Hold Notice directed all recipients to preserve all documents and electronically stored information related to: (a) the Master Construction Agreement dated March 15, 2020, including all amendments, change orders, schedules, and ancillary agreements thereunder; (b) the fiber build-out program across the seven states in which Meridian performed work under the MCA, namely New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Maryland, and Virginia; (c) all communications with Meridian Infrastructure Partners LLC, its employees, agents, consultants, and subcontractors; (d) all documents relating to the termination of the MCA, including cure notices, notice of default, notice of termination, and any related correspondence; and (e) all documents relating to the engagement of replacement contractors or the decision to bring any portion of the fiber construction work in-house.
23. The Hold Notice was issued to a distribution list of approximately forty-five employees and officers across both entities, encompassing personnel in the legal, construction management, engineering, procurement, quality assurance, finance, and executive functions. The Hold Notice has been supplemented on two occasions — on September 20, 2024, and on October 15, 2024 — to add additional custodians and to address newly identified categories of potentially relevant materials.
B. Custodian Selection
24. Following the issuance of the Hold Notice and in connection with the preparation of Defendant's discovery responses, Calderwood & Harkness LLP, in consultation with Mr. Hale and other NFA personnel, identified ten custodians whose files would be collected and reviewed for production in this action. The custodians were selected based on their roles and involvement in the events at issue, including the negotiation and execution of the MCA, the day-to-day management of the fiber build-out program, the decision to terminate the MCA, and the post-termination transition to a replacement contractor. The ten custodians include:
(a) Renata Voss, Vice President, US Network Infrastructure, NFA — Ms. Voss oversaw the fiber build-out program and served as the primary senior executive with operational responsibility for the Northgate-Meridian relationship under the MCA;
(b) Sean Calloway, Director, Construction Management, NFA — Mr. Calloway served as the day-to-day contract administrator for the MCA and was the principal point of contact with Meridian's on-site project managers;
(c) Helena Bright, Chief Financial Officer, Northgate Telecommunications PLC — Ms. Bright had financial and budgetary oversight over the fiber build-out program, including approval authority for change orders and payment certifications;
(d) Dominic Hale, General Counsel, Northgate Telecommunications PLC — Mr. Hale provided legal oversight of the MCA, the cure notice and termination process, and the engagement of outside counsel;
(e) Six additional custodians drawn from the engineering, procurement, quality assurance, and finance functions at NFA and Northgate PLC, whose identities were disclosed on the custodian list exchanged with Plaintiff's counsel pursuant to the Stipulated E-discovery Protocol.
25. Additionally, although not listed as a "custodian" for purposes of ESI collection, documents of Sir Malcolm Ashford, Chairman, and Dame Catherine Elsworth, CEO, of Northgate Telecommunications PLC were collected to the extent they appeared in the files of the above-listed custodians or were otherwise identified as responsive to Plaintiff's document requests. These documents included board-level communications and presentations relevant to the termination decision.
C. E-discovery Vendor and Review Platform
26. Vantage Litigation Support LLC ("Vantage"), with offices at 300 Vesey Street, Suite 600, New York, New York 10282, was engaged as Defendant's e-discovery vendor pursuant to an engagement letter dated September 10, 2024. Vantage was responsible for the collection, processing, de-duplication, hosting, and production of all ESI collected from Defendant's custodians. Vantage also provided the review platform used by Calderwood & Harkness LLP's document review team.
27. Following collection, the approximately 1.4 million documents (approximately 3.2 terabytes) were processed by Vantage using industry-standard tools and loaded into the Vantage review platform. The review was conducted in accordance with a two-phase protocol. In the first phase, documents were filtered and prioritized using the agreed-upon search terms and date ranges established under the Stipulated E-discovery Protocol (Exhibit E). In the second phase, filtered documents were subjected to manual review by attorneys on the Calderwood & Harkness LLP document review team, who coded each document for responsiveness, privilege, confidentiality designation, and other relevant attributes in accordance with C&H's Document Review Protocol and Coding Manual, a comprehensive internal guide that I prepared and distributed to all reviewers at the commencement of the review process.
D. Privilege Review Methodology
28. The privilege review process was designed to ensure that all potentially privileged documents were identified, carefully evaluated, and, where appropriate, withheld from production with a corresponding entry on Defendant's privilege log. The process operated as follows:
29. During the first-level review, each document was reviewed by a contract attorney or junior associate on the document review team. Any document that was flagged as potentially privileged — whether on the basis of attorney-client privilege, work product protection, or both — was coded as "potentially privileged" and escalated to a senior reviewer for a second-level review.
30. The second-level review was conducted by senior associates under my direct supervision and that of my colleague Yuki Nakamura, a senior associate at Calderwood & Harkness LLP who has also been actively involved in the defense of this matter. During the second-level review, each potentially privileged document was evaluated against the applicable legal standards for attorney-client privilege and work product protection under New York law. Particular attention was paid to whether the communication was made in confidence between a client and an attorney (or the attorney's agent) for the purpose of obtaining or providing legal advice, and whether documents prepared in anticipation of litigation reflected the mental impressions, conclusions, opinions, or legal theories of an attorney.
31. Final privilege determinations were made by me and/or by Ms. Osei. In cases involving complex or borderline privilege issues — such as mixed-purpose documents containing both business and legal content, or communications involving in-house counsel acting in a dual business-legal capacity — I consulted with Ms. Osei before making a final determination, and in certain instances, we jointly reviewed the documents in question.
32. For each document withheld on privilege grounds, a detailed entry was prepared for the privilege log in accordance with the requirements of CPLR § 3101(b), the Commercial Division Rules, and the Stipulated E-discovery Protocol. Each entry includes sufficient detail to enable the opposing party to assess the claim of privilege without revealing the substance of the privileged communication or work product itself.
IV. THE 214 DOCUMENTS ON DEFENDANT'S PRIVILEGE LOG
A. Overview and Composition of the Privilege Log
33. As noted above, Defendant's privilege log, served on Plaintiff on October 31, 2024, identifies 214 documents withheld in whole or in part on the grounds of attorney-client privilege and/or attorney work product protection. A true and correct copy of the full Privilege Log is attached hereto as Exhibit A.
34. The 214 documents encompass a range of document types and communications, all of which share the common characteristic of reflecting confidential communications between attorney and client for the purpose of obtaining or providing legal advice, or constituting materials prepared by or at the direction of counsel in anticipation of or during litigation. The documents break down approximately as follows:
(a) Communications between Northgate/NFA in-house legal personnel — principally Dominic Hale, General Counsel, and members of his legal team, including Associate General Counsel Fiona Marchetti and Senior Legal Counsel Alistair Pembroke — and business personnel, including Renata Voss, Sean Calloway, Helena Bright, Sir Malcolm Ashford (Chairman), and Dame Catherine Elsworth (CEO), in which legal advice was sought or provided regarding the MCA, the termination strategy, and the dispute with Meridian;
(b) Communications between Northgate/NFA personnel and Calderwood & Harkness LLP, reflecting pre-litigation legal advice that commenced in early 2024, prior to our firm's formal engagement on August 19, 2024, as well as post-engagement communications reflecting legal advice and litigation strategy;
(c) Internal memoranda prepared by or at the direction of Dominic Hale, in his capacity as General Counsel, analyzing legal risks and options regarding the termination of the MCA for cause under MCA § 14.1, including analysis of the contractual requirements for valid termination, the sufficiency of cure notices, and the potential legal exposure arising from termination;
(d) Board-level presentations and supporting analyses prepared for or at the direction of counsel evaluating Northgate's legal exposure, litigation strategy, and settlement considerations, including presentations to the Board of Directors and the Board's Audit and Risk Committee; and
(e) Documents reflecting legal advice regarding the performance bond (Bond No. ISG-2020-NE-04417, issued by Ironclad Surety Group Inc.) and insurance coverage, including Northgate PLC's Directors & Officers Liability Policy (Policy No. ALB-DO-2023-4782, issued by Albion Specialty Insurance Ltd.) and the Commercial General Liability Policy (Policy No. KNIC-CGL-2022-99301, issued by Keystone National Insurance Company), as well as communications with Pemberton Fox LLP, Northgate's coverage counsel.
B. Categories of Withheld Documents
35. For purposes of this declaration and to assist the Court in understanding the nature and scope of the withheld documents, I have organized the 214 documents into four categories, as described below. These categories correspond to the functional groupings reflected in the privilege log and are intended to provide the Court with a clear overview of the types of privileged communications at issue.
36. Category 1 — Pre-Termination Legal Advice (approximately 78 documents): This category encompasses emails, memoranda, and presentations in which Dominic Hale and members of his legal team provided legal advice to Northgate/NFA management regarding the dispute with Meridian and the termination decision. Specifically, these documents address: (i) whether Meridian's conduct — including failure to meet schedule milestones, deficient workmanship identified in quality inspection reports, and failure to maintain adequate bonding and insurance — constituted material breach of the MCA under Section 14.1; (ii) the adequacy and sufficiency of the cure notices issued by NFA to Meridian, including Cure Notice No. 1 (dated January 18, 2024) and Cure Notice No. 2 (dated February 19, 2024), and whether Meridian's responses to those cure notices constituted legally adequate cure; (iii) the legal risks associated with terminating the MCA for cause under Section 14.1 as compared to terminating for convenience under Section 14.3, including the financial implications of each option; and (iv) the procedural requirements for issuing a valid notice of termination for cause, including notice periods, documentation requirements, and dispute resolution prerequisites. These documents reflect the quintessential type of attorney-client communication: a client seeking legal advice from its attorney on matters of legal risk, contractual interpretation, and legal strategy, and the attorney providing that advice.
37. Category 2 — Board-Level Privileged Communications (approximately 31 documents): This category encompasses presentations, memoranda, and email chains that were prepared for or transmitted to Dame Catherine Elsworth, Sir Malcolm Ashford, and the Northgate PLC Board of Directors, reflecting legal advice on litigation exposure, strategic options, and the decision to terminate the MCA. These documents include slide presentations prepared by Dominic Hale's legal team for board meetings and Audit and Risk Committee sessions, as well as email chains between Mr. Hale and senior executives transmitting those presentations and providing supplemental legal analysis. The board-level documents reflect Northgate's efforts to obtain legal guidance from its General Counsel before making a decision with significant legal implications — namely, the termination of a construction agreement with a total contract value in excess of $1.2 billion. The privilege protects communications in which attorneys advise the board and senior management on the legal risks of a contemplated course of action, regardless of whether the ultimate decision also has business dimensions.
38. Category 3 — Insurance and Bond-Related Legal Advice (approximately 22 documents): This category encompasses communications with and about Ironclad Surety Group Inc. (the surety on the performance bond), Albion Specialty Insurance Ltd. (the D&O insurer), Keystone National Insurance Company (the CGL insurer), and Pemberton Fox LLP (Northgate's coverage counsel). These documents reflect legal advice regarding coverage positions under the applicable policies, tender obligations, defense cost contributions, and the legal implications of the litigation for Northgate's insurance and surety relationships. Communications between Northgate and its coverage counsel at Pemberton Fox LLP are plainly privileged attorney-client communications. Communications between Northgate, its coverage counsel, and the insurers and surety, to the extent they convey or reflect legal advice, are likewise protected.
39. Category 4 — Litigation Strategy and Work Product (approximately 83 documents): This category encompasses post-engagement communications between Calderwood & Harkness LLP attorneys and Northgate/NFA personnel, internal Calderwood & Harkness LLP memoranda, draft pleadings, case assessments, settlement analyses, and communications relating to expert retention and consultation — all of which were prepared in anticipation of or during this litigation. These documents contain the mental impressions, conclusions, opinions, and legal theories of counsel and constitute classic attorney work product under CPLR § 3101(d)(2). Additionally, many of the documents in this category are also protected by the attorney-client privilege insofar as they reflect confidential communications between counsel and client for the purpose of obtaining or providing legal advice in connection with the litigation.
C. Sample Privilege Log Entries
40. To demonstrate the level of detail and specificity provided in Defendant's privilege log, a representative sample of ten entries from the log is attached hereto as Exhibit B. These ten entries were selected to illustrate the range and specificity of the log entries across all four categories of withheld documents. Each entry on the privilege log includes the following fields:
(a) Log Entry Number;
(b) Bates Range (where applicable) or Document Control Number;
(c) Date of Document;
(d) Author(s);
(e) Recipient(s) and CC;
(f) Document Type (e.g., email, memorandum, presentation, spreadsheet);
(g) Subject/Description;
(h) Privilege(s) Asserted (attorney-client privilege, work product protection, or both); and
(i) Brief Description of Basis for Privilege Claim.
41. The following are illustrative summaries of certain entries from Exhibit B, provided here to give the Court a sense of the nature and detail of the log entries without disclosing the substance of privileged communications:
(a) Entry No. 17 (Category 1): An email dated February 12, 2024, from Dominic Hale (General Counsel, Northgate PLC) to Renata Voss (VP, US Network Infrastructure, NFA) and Sean Calloway (Director, Construction Management, NFA), conveying Mr. Hale's legal analysis regarding the sufficiency of Cure Notice No. 1 (dated January 18, 2024), including his assessment of whether Meridian's response to the cure notice satisfied the contractual requirements for cure under MCA § 14.1(c), and providing legal guidance regarding the requirements for Cure Notice No. 2, which was subsequently issued on February 19, 2024. Privilege asserted: attorney-client privilege.
(b) Entry No. 42 (Category 2): A memorandum dated March 8, 2024, from Dominic Hale to Sir Malcolm Ashford (Chairman) and Dame Catherine Elsworth (CEO), providing legal advice on the risks and consequences of terminating the MCA for cause under Section 14.1 as compared to terminating for convenience under Section 14.3. The memorandum includes Mr. Hale's legal analysis of the contractual provisions, his assessment of the likelihood of a legal challenge by Meridian, and a discussion of the financial exposure under each termination scenario, including the 8% termination fee applicable to termination for convenience (estimated at approximately $50.424 million based on $630.3 million in unperformed contract value). Privilege asserted: attorney-client privilege.
(c) Entry No. 58 (Category 2): A set of presentation slides dated March 14, 2024, prepared by Mr. Hale and his legal team for a Board of Directors meeting, analyzing Northgate's legal exposure in the event that the termination for cause were challenged in litigation. The presentation includes legal risk assessments, analysis of precedent, and recommendations regarding the termination decision. Privilege asserted: attorney-client privilege and work product protection.
(d) Entry No. 189 (Category 4): An email chain dated September 2024, among Linda Osei (Partner, Calderwood & Harkness LLP), Jeffrey Park (Associate, Calderwood & Harkness LLP), and Dominic Hale (General Counsel, Northgate PLC), discussing defense strategy, counterclaim theories, and the identification of potential expert witnesses. Privilege asserted: attorney-client privilege and work product protection.
42. The representative sample entries attached as Exhibit B demonstrate that the privilege log complies in all respects with the requirements of CPLR § 3101(b), the Commercial Division Rules, and the Stipulated E-discovery Protocol. Each entry provides the date, author, recipients, document type, a description of the general subject matter, the privilege(s) asserted, and a brief description of the basis for the privilege claim — all in sufficient detail to enable the opposing party to assess the legitimacy of the privilege assertion without requiring disclosure of the privileged content itself.
D. Why the 214 Documents Are Protected
43. Each of the 214 documents on Defendant's privilege log is properly withheld because it reflects a confidential communication between a client (Northgate PLC and/or NFA, through their officers and employees) and an attorney (Dominic Hale, members of his in-house legal team, or attorneys at Calderwood & Harkness LLP) made for the purpose of obtaining or providing legal advice, or constitutes attorney work product prepared in anticipation of or during this litigation.
44. Meridian's principal argument in support of its motion to compel is that the withheld documents relate to a "business decision" — namely, the decision to terminate the MCA and allegedly bring fiber construction work in-house — and therefore cannot be protected by the attorney-client privilege. This argument fundamentally mischaracterizes both the nature of the withheld documents and the scope of the attorney-client privilege under New York law. It is well established that the attorney-client privilege protects legal advice provided in connection with business decisions. Indeed, some of the most important and valuable legal advice that attorneys provide is advice rendered in connection with major business decisions that carry significant legal risk. The privilege does not evaporate simply because the legal advice informed or influenced a decision that also had business dimensions. To hold otherwise would effectively eliminate the privilege in the commercial context, where virtually every significant legal issue arises in connection with a business decision.
45. Meridian also mischaracterizes the substance of the decision at issue. The documents on the privilege log do not reflect a plan to "bring fiber construction in-house." To the contrary, the undisputed facts show that Northgate engaged a replacement contractor, Crestline Construction Group Inc. ("Crestline"), at arm's length on June 10, 2024, pursuant to a competitively bid contract with a total contract price of approximately $712 million. This contract price is approximately $81.7 million more than the remaining MCA value of $630.3 million that had been allocated to Meridian's scope of work at the time of termination. The fact that Northgate engaged a third-party replacement contractor at a significant premium over the remaining MCA value undermines any suggestion that the termination was motivated by a desire to achieve cost savings by performing the work internally. The termination was driven by Meridian's repeated and material breaches of the MCA — including schedule failures, quality deficiencies, and bonding and insurance lapses — and the privileged documents reflect the legal advice Northgate sought and received regarding those breaches and the legal requirements for termination.
46. Meridian's invocation of the crime-fraud exception to the privilege is equally without merit. The crime-fraud exception requires a prima facie showing that the attorney-client communications were made in furtherance of a crime or fraud. Meridian has offered no evidence — beyond conclusory allegations in its motion papers — to support its claim that Northgate used legal advice to effectuate a "pretextual termination" or that any crime or fraud was committed. Bare assertions and speculation do not satisfy the threshold showing required to invoke the crime-fraud exception, and Meridian's motion papers fail to identify any specific communication or document that purportedly furthered a fraudulent scheme. Meridian's argument amounts to the circular proposition that because Meridian disputes the legitimacy of the termination, any legal advice Northgate received about the termination must have been in furtherance of fraud. This is not the law.
47. Finally, Meridian's contention that Defendant's privilege log is insufficiently detailed is belied by the log itself. As demonstrated by the representative sample entries attached as Exhibit B, and as is evident from a review of the full privilege log (Exhibit A), each entry provides the date, author, recipients, document type, subject matter description, privilege asserted, and basis for the privilege claim. The log was prepared in accordance with CPLR § 3101(b), the Commercial Division Rules, and the specific requirements of the Stipulated E-discovery Protocol agreed upon by both parties. Meridian's blanket assertion that the log is "inadequate" is unsupported by any specific identification of entries that it claims are deficient and appears to be nothing more than a makeweight argument designed to bolster an otherwise meritless motion.
48. No waiver of privilege has occurred with respect to any of the 214 documents. The documents were maintained in confidence within the attorney-client relationship and were not disclosed to any third parties outside the scope of the privilege. The documents were timely identified and logged in accordance with the discovery schedule and the Stipulated E-discovery Protocol.
V. MERIDIAN'S MOTION TO COMPEL LACKS MERIT
49. Plaintiff's motion to compel production of the 214 documents on Defendant's privilege log is based on three principal arguments: (1) that the documents relate to a business decision (allegedly bringing fiber construction in-house) rather than legal advice; (2) that the crime-fraud exception applies because Northgate allegedly used legal advice to effectuate a pretextual termination of the MCA designed to replace Meridian with a more compliant contractor; and (3) that the privilege log is insufficiently detailed to permit Plaintiff to assess the privilege claims. For the reasons set forth in this declaration and in the accompanying memorandum of law, each of these arguments lacks merit.
50. With respect to the first argument, as I have explained above, the 214 documents on Defendant's privilege log reflect legal advice provided by Dominic Hale, his legal team, and Calderwood & Harkness LLP in connection with the MCA, the termination process, and the resulting litigation. The documents do not reflect a business plan to "bring fiber construction in-house." To the contrary, Northgate's engagement of Crestline Construction Group Inc. as a replacement contractor on June 10, 2024 — at a contract price of approximately $712 million, which is approximately $81.7 million more than the $630.3 million remaining under the MCA — demonstrates that Northgate's termination of the MCA was not motivated by a desire to perform the work internally or to achieve cost savings. The replacement contractor was engaged through a competitive procurement process, and the significant premium Northgate is paying to Crestline is inconsistent with Meridian's theory that the termination was a pretext for bringing the work in-house at a lower cost.
51. With respect to the crime-fraud exception, Meridian has failed to make the prima facie showing required under New York law. Meridian's motion papers rely entirely on conclusory allegations and inferences drawn from the fact that Northgate terminated the MCA. But a termination of a contract — even one that is subsequently challenged in litigation — does not constitute fraud, and the mere existence of a dispute over whether the termination was justified does not give rise to a prima facie case of fraud sufficient to overcome the privilege. Meridian has not identified any specific fraudulent act, misrepresentation, or scheme, nor has it pointed to any particular communication or document on the privilege log that it contends furthered a fraud. The crime-fraud exception is a narrow one, and it cannot be invoked based on speculation and bare allegations.
52. With respect to the adequacy of the privilege log, I have reviewed each of the 214 entries on the log and can confirm that each entry provides the information required under CPLR § 3101(b) and the Stipulated E-discovery Protocol, including the date, author, recipients, document type, subject matter description, privilege asserted, and basis for the privilege claim. The representative sample entries attached as Exhibit B demonstrate the level of detail provided. Meridian has not identified any specific entry that it contends is inadequate, nor has it explained what additional information it believes is required. Defendant's privilege log complies with all applicable requirements, and Meridian's argument to the contrary is without foundation.
VI. DEFENDANT'S CROSS-MOTION — MERIDIAN'S WITHHOLDING OF MERIDIAN-RIDGEPOINT COMMUNICATIONS
A. Meridian's Privilege Log and the 187 Withheld Documents
53. In its document production in this action, Plaintiff Meridian Infrastructure Partners LLC withheld 187 documents on the basis of what it has characterized as the "common interest privilege" between Meridian and its majority equity holder, Ridgepoint Capital Group LP ("Ridgepoint"). These 187 documents were identified on Meridian's privilege log, which was served in connection with Meridian's document production. A true and correct copy of the relevant portions of Meridian's privilege log — specifically, the entries corresponding to the 187 withheld documents — is attached hereto as Exhibit C.
54. Ridgepoint Capital Group LP is a Delaware limited partnership with its principal office at 2100 Ross Avenue, Suite 3300, Dallas, Texas 75201. Ridgepoint is a private equity fund managed by its managing partner, Graham Latimer. Ridgepoint holds approximately 55% of the equity of Meridian Infrastructure Partners LLC, having acquired its majority stake in 2018 for approximately $285 million.
55. Based on Meridian's responses to Defendant's First Set of Interrogatories (relevant excerpts of which are attached hereto as Exhibit G), Ridgepoint has funded Meridian's litigation costs in this action. Meridian's litigation war chest is estimated at approximately $12 million, based on Meridian's own discovery responses describing the funding commitment that Ridgepoint has made to support Meridian's prosecution of this case and defense against Defendant's counterclaims.
B. The Common Interest Privilege Does Not Apply
56. Defendant respectfully submits that Meridian's assertion of common interest privilege over the 187 Meridian-Ridgepoint communications is without legal basis. I set forth below the factual grounds supporting Defendant's position.
57. First, no written joint defense agreement or common interest agreement between Meridian and Ridgepoint has been produced or identified in this litigation. In response to Defendant's discovery requests seeking the production of any such agreement, Meridian stated that no formal written agreement exists. The absence of a written agreement is not necessarily dispositive under New York law, but it is a significant factor in assessing whether a common interest relationship exists, particularly where, as here, the purported common interest is between a litigation party and its financial backer rather than between co-parties or co-defendants facing common legal exposure.
58. Second, Ridgepoint Capital Group LP is not a party to this litigation. Ridgepoint has not been named as a plaintiff, defendant, or third-party in this action. Ridgepoint is not separately represented by Hargrove, Deluca & Stein LLP in this matter, and Meridian has not identified any separate counsel retained by Ridgepoint to provide legal advice regarding this litigation. The common interest privilege, as recognized under New York law, requires that the parties sharing the communication have a common legal interest — not merely a shared financial or business interest — and that the communication be made in furtherance of that common legal interest.
59. Third, Ridgepoint's interest in this litigation is fundamentally financial in nature. Ridgepoint's stake in Meridian is an equity investment, and Ridgepoint's interest in the outcome of this litigation is the protection of its $285 million equity investment and the maximization of any recovery that Meridian may obtain. Ridgepoint's funding of Meridian's litigation costs — estimated at approximately $12 million — is likewise a financial arrangement designed to protect and enhance the value of Ridgepoint's investment. A shared financial interest in the outcome of litigation does not constitute the "common legal interest" required under New York law for invocation of the common interest privilege. If the mere fact that a litigation funder or equity investor has a financial stake in the outcome of litigation were sufficient to establish a common interest privilege, the privilege would swallow the rule of broad disclosure that governs civil discovery in New York.
60. Fourth, based on my review of the descriptions provided in Meridian's privilege log (Exhibit C), the 187 withheld documents appear to include communications regarding a wide range of subjects that go far beyond any shared legal interest, including: (i) Ridgepoint's investment thesis regarding its equity stake in Meridian, including the role of the Northgate contract as a key value driver for the investment; (ii) Meridian's financial condition and operating performance; (iii) the litigation budget and funding arrangements between Meridian and Ridgepoint; (iv) strategic assessments of the strengths and weaknesses of Meridian's claims and Defendant's counterclaims; and (v) discussions regarding Meridian's post-termination business strategy, including efforts to secure replacement contracts. These topics encompass matters that are directly relevant to Defendant's defenses and counterclaims, including issues of damages, mitigation, financial condition, and the credibility of Meridian's witnesses.
61. Fifth, Defendant's document requests specifically sought communications between Meridian and Ridgepoint regarding the Northgate contract, Meridian's financial condition, the litigation and its funding, and decisions regarding the prosecution of this action. These requests were not objected to on relevance grounds, and Meridian's only basis for withholding was the assertion of common interest privilege — which, as explained above, is not legally supportable on the facts of this case.
C. Relevance of the Withheld Documents to the Defense
62. The 187 withheld Meridian-Ridgepoint communications are directly relevant to Defendant's defenses and counterclaims in multiple respects.
63. Damages Analysis: Documents relating to Ridgepoint's role in funding the litigation and its financial relationship with Meridian are relevant to Defendant's challenges to Meridian's damages claims. The defense is entitled to explore whether Ridgepoint's funding has distorted Meridian's damages model — for example, by allowing Meridian to assert inflated claims that it would not otherwise pursue absent the backing of a well-capitalized private equity sponsor. Additionally, Ridgepoint's communications with Meridian regarding damages strategy and settlement are relevant to understanding the true nature and extent of Meridian's alleged losses. Defendant is also entitled to explore whether Meridian's ability to mitigate its damages was affected by Ridgepoint's resources and connections, including Ridgepoint's ability to assist Meridian in securing replacement work.
64. Financial Condition and Backlog: Documents relating to Meridian's financial condition are relevant to Defendant's defense, including its affirmative defenses and counterclaims. Following the termination of the MCA, Meridian's construction backlog dropped from approximately $1.4 billion to approximately $770 million — a reduction of approximately $630 million, corresponding almost exactly to the unperformed value under the MCA. The financial impact of this backlog reduction on Meridian's operations, creditworthiness, and ability to secure new work is directly relevant to damages and mitigation. Additionally, Defendant has identified that Dralvecen Commercial Finance LLC maintains a $150 million revolving credit facility secured by, among other things, lien interests in Meridian's receivables from the Northgate contract. The interplay between Ridgepoint's equity investment, the Dralvecen credit facility, and Meridian's financial condition is relevant to understanding the full picture of Meridian's alleged damages and its capacity to mitigate.
65. Bias and Credibility: Ridgepoint's investment thesis was premised in significant part on the Northgate contract as Meridian's anchor program — the largest single contract in Meridian's portfolio and a key driver of the valuation at which Ridgepoint acquired its 55% stake. Communications between Ridgepoint and Meridian regarding the importance of the Northgate contract to Ridgepoint's investment, and Ridgepoint's expectations regarding the contract's performance and profitability, are relevant to the bias and credibility of Meridian's witnesses. Victor Sandoval, Meridian's founder and CEO, retains a 30% equity stake in the company. Additionally, Meridian's senior management team holds a 15% equity pool. These equity stakes create financial incentives that are directly relevant to the credibility of Mr. Sandoval and other Meridian witnesses, and communications with Ridgepoint regarding the impact of the litigation on the value of those equity stakes are discoverable.
66. Mitigation: Documents relating to Meridian's post-termination business strategy and efforts to secure replacement contracts are relevant to the adequacy of Meridian's mitigation efforts, which is an affirmative defense asserted by Defendant. To the extent Ridgepoint communicated with Meridian regarding strategies for replacing the Northgate contract revenue, those communications are relevant to assessing whether Meridian took reasonable steps to mitigate its damages.
D. Request for Relief
67. For the reasons set forth above and in the accompanying memorandum of law, Defendant respectfully requests that the Court grant Defendant's Cross-Motion for Protective Order and either: (1) order Meridian to produce the 187 withheld Meridian-Ridgepoint documents in their entirety, on the ground that the common interest privilege does not apply to shield communications between a litigation party and its private equity sponsor from discovery; or (2) in the alternative, conduct an in camera review of the 187 documents to determine whether the common interest privilege validly applies to any or all of the withheld documents, and order production of those documents as to which the privilege does not apply.
VII. LIST OF EXHIBITS
68. The following exhibits are attached to and submitted in connection with this declaration:
Exhibit A: Defendant Northgate Fiber Americas Inc.'s Privilege Log, served on October 31, 2024 — full log of 214 documents, organized by custodian, date, author, recipient, document type, and privilege description.
Exhibit B: Representative Sample of 10 Privilege Log Entries with Detailed Descriptions — selected to illustrate the range and specificity of log entries across all four categories of withheld documents.
Exhibit C: Relevant Portions of Plaintiff Meridian Infrastructure Partners LLC's Privilege Log — entries for the 187 documents withheld under the asserted common interest privilege.
Exhibit D: Letter from Linda Osei, Calderwood & Harkness LLP, to Thomas Deluca, Hargrove, Deluca & Stein LLP, dated November 15, 2024 — meet-and-confer correspondence proposing informal resolution of the privilege dispute prior to Meridian's filing of its motion to compel.
Exhibit E: Stipulated E-discovery Protocol and ESI Agreement, filed October 1, 2024 — establishing the production format for ESI, privilege log requirements, clawback procedures, and referencing Vantage Litigation Support LLC as the neutral vendor.
Exhibit F: Letter from Linda Osei, Calderwood & Harkness LLP, to Thomas Deluca, Hargrove, Deluca & Stein LLP, dated November 1, 2024 — detailing deficiencies in Meridian's document production, including incomplete subcontractor communications and the withholding of Ridgepoint-related documents.
Exhibit G: Excerpts from Plaintiff Meridian Infrastructure Partners LLC's Responses to Defendant's First Set of Interrogatories — responses identifying Ridgepoint Capital Group LP's estimated $12 million litigation funding commitment and Ridgepoint's role in Meridian's decision-making.
VIII. CONCLUSION
69. For the foregoing reasons, the 214 documents on Defendant's privilege log are properly withheld as attorney-client privileged and/or attorney work product. Plaintiff Meridian's Motion to Compel production of those documents should be denied in its entirety.
70. Plaintiff Meridian's assertion of common interest privilege over 187 Meridian-Ridgepoint communications is without legal basis. Ridgepoint is not a party to this litigation, has no common legal interest with Meridian sufficient to support invocation of the common interest privilege, and its interest in the outcome of this action is purely financial. The withheld documents are directly relevant to Defendant's defenses and counterclaims, including issues of damages, mitigation, financial condition, and witness credibility. Defendant's Cross-Motion for Protective Order should be granted, or in the alternative, the Court should conduct an in camera review of the 187 documents and order production of those documents as to which the privilege does not apply.
71. Defendant respectfully requests that the Court deny Plaintiff's Motion to Compel and grant Defendant's Cross-Motion in its entirety.
I declare under penalty of perjury under the laws of the State of New York that the foregoing is true and correct.
Executed on: December 6, 2024 New York, New York
________________________________________
Jeffrey Park
CALDERWOOD & HARKNESS LLP 425 Park Avenue, 33rd Floor New York, New York 10022 Telephone: (212) 555-7800 Facsimile: (212) 555-7801
Attorneys for Defendant Northgate Fiber Americas Inc.
C&H Matter No. 1022-00005
CERTIFICATE OF SERVICE
I, Jeffrey Park, hereby certify that on December 6, 2024, a true and correct copy of the foregoing Declaration of Jeffrey Park in Support of (I) Defendant's Opposition to Plaintiff's Motion to Compel Production of Privileged Documents and (II) Defendant's Cross-Motion for Protective Order Regarding Plaintiff's Withholding of Meridian-Ridgepoint Communications, together with Exhibits A through G, was served upon the following counsel of record:
Thomas Deluca, Esq. Hargrove, Deluca & Stein LLP 51 West 52nd Street, 40th Floor New York, New York 10019
via the New York State Courts Electronic Filing System ("NYSCEF") and via email to tdeluca@hdslaw.com.
________________________________________
Jeffrey Park
MERIDIAN INFRASTRUCTURE PARTNERS LLC,
Index No. 654321/2024
Plaintiff,
Assigned Justice:
-against- | Hon. Eleanor M. Ricci, Part 49
NORTHGATE FIBER AMERICAS INC.,
Defendant.