PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
ORAL ARGUMENT PREPARATION OUTLINE
MERIDIAN INFRASTRUCTURE PARTNERS LLC v. NORTHGATE FIBER AMERICAS INC.
Supreme Court of the State of New York New York County, Commercial Division Index No. 654321/2024, Part 49 Before the Honorable Eleanor M. Ricci
Date of Oral Argument: January 27, 2025
Prepared by: Linda Osei, Responsible Partner Jeffrey Park, Lead Associate
Calderwood & Harkness LLP 425 Park Avenue, 33rd Floor New York, NY 10022
C&H Matter No. 1022-00005 Date of Outline: January 22, 2025
This document is protected by the attorney-client privilege and constitutes attorney work product prepared in anticipation of litigation. It is intended solely for use by attorneys and authorized personnel at Calderwood & Harkness LLP working on the above-referenced matter. Any dissemination, distribution, or copying of this document to unauthorized persons is strictly prohibited.
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I. Procedural Posture and Motions Before the Court
Two privilege-related motions are before Justice Ricci for oral argument on January 27, 2025. This section summarizes the procedural history and the current posture of each motion.
A. Meridian's Motion to Compel (Filed November 22, 2024)
Meridian Infrastructure Partners LLC ("Meridian"), through its counsel Hargrove, Deluca & Stein LLP ("HDS") — lead partner Thomas Deluca and senior associate Miriam Vasquez — moves to compel production of 214 documents withheld by our client, Northgate Fiber Americas Inc. ("Northgate" or "NFA"), on the grounds of attorney-client privilege and/or work product protection.
The 214 documents at issue appear on Northgate's privilege log, which was served on October 31, 2024, concurrently with Northgate's document production. Northgate's production was substantial: approximately 1.4 million documents, totaling approximately 3.2 terabytes of data, drawn from ten custodians and covering the full period of the parties' contractual relationship under the Master Construction Agreement ("MCA").
Meridian's briefing in support of its motion to compel advances the following core argument: that the 214 withheld documents relate not to legal advice but rather to Northgate's business decision to bring fiber construction in-house or to re-procure construction services at lower cost from alternative contractors. Meridian contends, therefore, that the documents are not privileged legal communications but are instead business communications that merely involve in-house counsel in a business advisory capacity.
Meridian's overarching theory of the case drives this motion. Meridian alleges that the 214 documents — primarily consisting of internal financial models and board presentations — will demonstrate that the April 1, 2024 termination of the MCA was pretextual. Specifically, Meridian contends that Northgate terminated the MCA not because of Meridian's alleged material breach of its contractual obligations (as Northgate asserts), but rather because favorable market shifts in construction pricing made it economically advantageous for Northgate to terminate the existing relationship with Meridian and either bring fiber construction in-house or re-procure at lower rates.
B. Northgate's Opposition to Motion to Compel (Filed December 2, 2024)
Northgate filed its opposition to Meridian's motion to compel on December 2, 2024. In its opposition, Northgate asserts that the attorney-client privilege protects these 214 documents because they constitute confidential communications between Northgate's executives and its General Counsel, Dominic Hale, made for the purpose of obtaining and providing legal advice regarding the termination strategy and the analysis of Northgate's in-house fiber construction options as they related to the legal risks of exercising the termination right under MCA § 14.1.
Northgate's opposition was further supported by the Declaration of Jeffrey Park, filed on December 6, 2024, which attached several exhibits including (i) the complete privilege log for the 214 documents, (ii) sample log entries with additional detail regarding the privilege basis for representative documents, and (iii) exemplar privilege descriptions demonstrating the involvement of in-house counsel and the legal nature of the communications at issue.
C. Northgate's Cross-Motion for Protective Order (Filed December 6, 2024)
Contemporaneously with the Park Declaration, Northgate filed a cross-motion seeking to compel Meridian to produce 187 documents that Meridian has withheld from its own production under a claimed "common interest privilege" purportedly applicable to communications between Meridian Infrastructure Partners LLC and Ridgepoint Capital Group LP ("Ridgepoint"), Meridian's majority equity holder.
In the alternative, Northgate's cross-motion requests that Justice Ricci conduct an in camera review of the 187 documents to assess whether the asserted common interest privilege has been properly invoked.
The cross-motion is supported by a Memorandum of Law in Support of Cross-Motion for Protective Order, also filed on December 6, 2024, which sets forth the legal standard for the common interest privilege under New York law and explains why that privilege does not extend to communications between a litigation party and its private equity sponsor regarding the financial and investment implications of pending litigation.
D. Briefing Status
All briefing on both motions is now complete. Oral argument is set for January 27, 2025, at the Courthouse at 60 Centre Street, New York, New York, in Part 49 before the Honorable Eleanor M. Ricci. No further written submissions are contemplated unless the Court requests supplemental briefing.
II. Our Position on Meridian's Motion to Compel (Defense of the 214 Privileged Documents)
This section sets forth our arguments in opposition to Meridian's motion to compel production of the 214 documents listed on Northgate's privilege log, together with key talking points for oral argument and anticipated questions from Justice Ricci.
A. Overview of the 214 Documents
Understanding the nature and provenance of the 214 documents is essential to appreciating the strength of Northgate's privilege assertions.
Custodians. The 214 documents were collected primarily from the following four custodians:
• Dominic Hale — General Counsel, Northgate Telecommunications PLC (the UK-based parent company of NFA). Mr. Hale served as the senior in-house lawyer with primary responsibility for overseeing the MCA relationship and advising on all legal issues related to the termination decision.
• Renata Voss — Vice President, US Network Infrastructure, Northgate Fiber Americas Inc. Ms. Voss was the senior business executive responsible for the day-to-day management of Northgate's fiber network deployment in the United States and a primary recipient of Mr. Hale's legal advice regarding the termination.
• Helena Bright — Chief Financial Officer, Northgate Telecommunications PLC. Ms. Bright was involved in evaluating the financial implications of exercising the termination right, including the comparative costs of termination for cause versus termination for convenience, at Mr. Hale's direction.
• Sean Calloway — Director, Construction Management, Northgate Fiber Americas Inc. Mr. Calloway managed the operational interface with Meridian's construction teams and provided factual inputs to Mr. Hale regarding construction deficiencies and schedule delays.
Date Range. The 214 documents span the period from approximately January 2024 through April 2024. This window encompasses the key events in the termination sequence:
• January 18, 2024 — Issuance of Cure Notice No. 1 to Meridian
• February 2, 2024 — Meridian's response to Cure Notice No. 1, which explicitly threatened legal action
• Approximately February through March 2024 — Internal deliberations regarding the sufficiency of Meridian's cure efforts and the legal basis for proceeding with termination
• April 1, 2024 — Issuance of Notice of Termination for Cause
• Shortly after April 1, 2024 — Post-termination analysis and documentation
Document Types. The 214 documents fall into the following general categories:
• Emails between business executives and in-house counsel (Dominic Hale): These are classic attorney-client communications in which Northgate personnel sought and received legal advice from Mr. Hale regarding the termination decision, the sufficiency of cure notices, and the contractual basis for termination.
• Memoranda prepared at Mr. Hale's direction: These include analytical memoranda analyzing the legal options available to Northgate under MCA § 14.1 (termination for cause) and MCA § 14.3 (termination for convenience), including the legal risks and exposure associated with each path.
• Board presentation slides containing legal advice: These are presentations prepared for the Northgate board of directors that include Mr. Hale's assessment of the legal risks associated with the termination decision, the strength of Northgate's contractual position, and the likely litigation exposure.
• Financial models prepared at counsel's direction: These are financial analyses prepared at Mr. Hale's specific direction to inform his legal advice regarding the comparative exposure between termination for cause and termination for convenience, including the calculation of the 8% termination fee under MCA § 14.3.
B. Attorney-Client Privilege Arguments
Primary Argument. The 214 documents constitute confidential communications between Northgate's executives and its in-house General Counsel, Dominic Hale, made for the purpose of obtaining or providing legal advice regarding the decision to terminate the MCA for cause. These are quintessential privileged communications and should not be compelled.
Dominic Hale Was Acting as Legal Counsel. A central issue on this motion is whether Dominic Hale was acting in his capacity as General Counsel — providing legal advice — or whether he was functioning in a business advisory role when he participated in the communications reflected in the 214 documents. The record demonstrates that Mr. Hale was acting squarely in his capacity as General Counsel. His advice concerned:
• Whether Meridian's conduct — including chronic schedule delays, the accumulation of 287 non-conformance reports ("NCRs") (43 of which were classified as critical), and the failure to cure within the contractually specified time periods — constituted a "material breach" under MCA § 14.1;
• Whether the cure notices issued by Northgate were legally sufficient under the MCA and applicable New York law to support a termination for cause;
• The legal risks associated with termination, including the risk that a court would recharacterize the termination for cause as a termination for convenience, thereby triggering the 8% termination fee under MCA § 14.3; and
• The comparative legal exposure under various termination scenarios.
These are inherently legal judgments. The fact that they have business implications does not strip them of their privileged character.
The Functional Test Under New York Law. New York courts apply a functional test in evaluating privilege claims involving in-house counsel. Under this test, even where documents touch on business considerations, if the predominant purpose of the communication is to obtain or provide legal advice, the privilege attaches. The relevant inquiry is not whether the document contains any business content — virtually all communications with in-house counsel at a large corporation will involve some degree of business context — but whether the communication was made for the purpose of facilitating the rendition of legal advice and whether the in-house attorney was acting in a legal, rather than a purely business, capacity.
The case law under New York law is well-established on this point. Courts have consistently held that communications with in-house counsel are privileged where the communication is made for the purpose of facilitating the rendition of legal advice, provided that the in-house attorney is acting in a legal capacity. The burden is on the party asserting the privilege to establish these elements, but once established, the privilege is robust and should not be lightly overridden.
Board Presentations. Meridian may argue that the board presentations cannot be privileged because they were shared with the board of directors, including non-lawyer members. This argument fails. Where legal advice is interwoven with business strategy in a board presentation, the document as a whole is privileged if the primary purpose of the presentation was to provide legal guidance to the board regarding the termination decision. The fact that board members — who are within the corporate client for privilege purposes — received the presentations does not waive privilege. The board of directors is the corporate client, and communications between counsel and the board are among the most clearly privileged communications in the corporate context.
Anticipating Meridian's Characterization. We should anticipate that Meridian's counsel, Thomas Deluca, will characterize the 214 documents as business strategy documents concerned with evaluating whether in-house construction or re-procurement was more economically attractive than continuing the MCA with Meridian. Our response must be clear and direct: the legal analysis of termination rights under MCA § 14.1 was the driving purpose of these communications. To the extent the documents contain business analysis — such as cost comparisons or financial projections — that analysis was incident to counsel's evaluation of the legal options and the legal risks associated with each option. The business analysis was an input to the legal advice, not an end in itself.
C. Work Product Arguments (Alternative Basis)
As an alternative and independent basis for withholding the 214 documents, Northgate asserts the work product doctrine.
Preparation in Anticipation of Litigation. Many of the 214 documents were prepared in anticipation of litigation. While Calderwood & Harkness LLP was not formally engaged as outside litigation counsel until August 19, 2024, Northgate's in-house counsel, Dominic Hale, began preparing for a potential dispute with Meridian as early as January 2024, when Cure Notice No. 1 was issued on January 18, 2024.
The anticipation of litigation became concrete no later than February 2, 2024, when Meridian's response to Cure Notice No. 1 explicitly threatened legal action against Northgate. From that point forward, it is beyond serious dispute that Northgate was aware that termination of the MCA would likely result in litigation. Documents prepared after February 2, 2024, therefore fall squarely within the anticipation-of-litigation standard for work product protection.
Even documents prepared between January 18 and February 2, 2024, are properly characterized as work product. The issuance of a cure notice under a complex infrastructure construction agreement, in the context of 287 accumulated NCRs and chronic schedule delays, creates a reasonable anticipation of litigation. Mr. Hale's preparation of legal analyses during this period was driven by his assessment that a dispute was likely.
Meridian Has Not Demonstrated Substantial Need. Even as to fact work product (as opposed to opinion work product, which is virtually immune from discovery), a party seeking to overcome work product protection must demonstrate (i) substantial need for the materials and (ii) an inability to obtain the substantial equivalent of the materials by other means without undue hardship. Meridian has made no such showing.
The factual information underlying the 214 documents — the schedule data, NCR records, cure notice correspondence, cost information, and financial projections — is available to Meridian from non-privileged sources, including Northgate's substantial document production of approximately 1.4 million documents, the contractual records, and deposition testimony. Meridian has no need, let alone substantial need, for documents that reflect counsel's mental impressions, legal analysis, and litigation strategy.
D. Waiver Arguments — Rebuttal
Meridian may contend that Northgate has waived the attorney-client privilege through selective or subject-matter waiver by relying on the termination decision in its affirmative defenses and counterclaims. This argument should be rejected for several reasons.
No "Advice of Counsel" Defense. Northgate is not asserting an "advice of counsel" defense. Northgate has not claimed that it terminated the MCA because its lawyers told it to do so, or that it is insulated from liability because it relied on legal advice. Rather, Northgate's defense is that the termination was factually justified under MCA § 14.1 — that Meridian committed material breaches through schedule delays, quality deficiencies reflected in 287 NCRs (including 43 critical NCRs), and failure to cure those breaches within the contractually required cure periods. This defense rests on the facts, not on the content of legal advice.
No "At Issue" Waiver. Merely asserting a contract defense — even one that involves the exercise of a contractual right about which the party received legal advice — does not place the substance of that legal advice "at issue" for purposes of privilege waiver. Were the rule otherwise, no party could ever defend its exercise of a contractual right without forfeiting the privilege over its internal legal deliberations. That is not and has never been the law.
Relevance Is Not Waiver. Under New York law, the attorney-client privilege is not waived simply because privileged communications happen to be relevant to the issues in the case. Relevance is a necessary but insufficient condition for discoverability; relevance does not override privilege. The privilege exists precisely to protect communications that are often highly relevant to the merits — if privilege only protected irrelevant communications, it would be meaningless.
E. Key Talking Points for Oral Argument
The following talking points should be deployed by Linda Osei during oral argument on Meridian's motion to compel. These are designed to be concise, persuasive, and directly responsive to the Court's likely concerns.
1. "These 214 documents are classic attorney-client communications — in-house counsel advising the client on the legal ramifications of exercising a contractual termination right under MCA § 14.1. They are precisely the type of communication the privilege is designed to protect."
2. "Meridian's real purpose in seeking these documents is not to obtain relevant business records — Northgate has already produced 1.4 million documents. Meridian's purpose is discover the substance of legal advice in order to support its pretext theory. That is precisely the invasion of the attorney-client relationship that the privilege is designed to prevent."
3. "To the extent the Court has questions about specific entries on the privilege log, we respectfully request in camera review rather than wholesale production. The Court can assess for itself whether the privilege has been properly invoked."
4. If Justice Ricci signals an inclination to probe further, offer in camera review of a representative sample of the documents. This is a far preferable outcome to a blanket compel order, and it demonstrates Northgate's confidence in the propriety of its privilege assertions.
5. Emphasize the scope and completeness of Northgate's production: "Northgate has already produced approximately 1.4 million documents from ten custodians, totaling 3.2 terabytes of data. The production has been fulsome and thorough. The 214 withheld documents are a narrow, carefully delineated set of privileged communications — they represent a tiny fraction of the overall production."
F. Anticipated Questions from Justice Ricci and Prepared Responses
Based on Justice Ricci's prior rulings in Commercial Division privilege disputes, we anticipate the following questions and should be prepared with the following responses.
Q: "Didn't Northgate put the termination decision at issue by asserting termination for cause as its primary defense?"
A: Your Honor, the factual basis for the termination is fully in evidence through the cure notices, the 287 non-conformance reports, the milestone records, and the anticipated testimony of Renata Voss and Sean Calloway. Northgate's defense is that the termination was justified by Meridian's material breaches — the facts speak for themselves. The privilege over legal advice about those facts is a separate matter entirely. Asserting a factual defense does not waive privilege over the internal legal deliberations that accompanied that defense. Northgate has not placed the content of Mr. Hale's advice at issue; it has placed the underlying facts at issue, and those facts are available from non-privileged sources.
Q: "Some of these documents appear to be financial models. How are financial models privileged?"
A: Your Honor, the financial models at issue were prepared at Dominic Hale's direction specifically to inform his legal advice regarding the comparative exposure between two alternative contractual paths: termination for cause under MCA § 14.1, and termination for convenience under MCA § 14.3. Section 14.3 provides for an 8% termination fee calculated on the unperformed value of the contract — which, based on the approximately $630.3 million in unperformed work at the time, would have resulted in a termination fee of approximately $50.424 million. The financial models quantified this exposure and were integral to Mr. Hale's legal analysis. They are intertwined with legal advice and were created for the specific purpose of enabling Mr. Hale to advise the business on the legal risks of each path. The label "financial model" does not strip privilege from a document created at counsel's direction, for counsel's use, in the course of providing legal advice.
Q: "Would you consent to in camera review?"
A: Yes, Your Honor. We would welcome in camera review of all 214 documents, or of a representative sample selected by the Court. We are confident that the Court's review will confirm that these documents are properly withheld as privileged attorney-client communications and work product.
III. Our Position on Northgate's Cross-Motion for Protective Order (Meridian's 187 Withheld Documents)
This section sets forth our affirmative arguments in support of Northgate's cross-motion seeking production of the 187 documents that Meridian has withheld under a claimed "common interest privilege."
A. Overview of the Dispute
Meridian has withheld 187 documents from its production in this action, asserting that these documents are protected by the "common interest privilege" (sometimes referred to as the "joint defense privilege" or "allied litigant privilege"). The asserted common interest is between Meridian Infrastructure Partners LLC and Ridgepoint Capital Group LP ("Ridgepoint").
Ridgepoint is Meridian's majority equity holder. Ridgepoint acquired a 55% equity stake in Meridian in 2018 for approximately $285 million. Ridgepoint's Managing Partner, Graham Latimer, has been actively involved in Meridian's strategic decision-making and, based on available discovery, has been closely monitoring this litigation.
Critically, Ridgepoint has funded Meridian's litigation costs in this action. According to Meridian's discovery responses, Ridgepoint has established an estimated $12 million litigation war chest to finance this dispute. Despite this level of involvement, no formal joint defense agreement or common interest agreement between Meridian and Ridgepoint has been produced by Meridian, and none appears to exist.
B. Common Interest Privilege — Legal Standard Under New York Law
The common interest privilege is an extension of the attorney-client privilege. It provides that the attorney-client privilege is not destroyed when privileged communications are shared between parties who have a common legal interest, provided that the communications are shared for the purpose of furthering that common legal interest. The doctrine permits parties with aligned legal positions to share privileged communications without waiving the privilege.
Under New York law, the common interest privilege requires the party asserting it to demonstrate:
1. The communication must be between parties who share a common legal interest — not merely a common commercial, financial, or business interest;
2. The communication must be made in furtherance of that common legal interest;
3. The communication must otherwise be privileged — i.e., it must involve counsel and qualify for attorney-client privilege protection in the first instance, independent of the common interest doctrine; and
4. There must be a reasonable expectation of confidentiality with respect to the shared communication.
The key distinction — and the one that is dispositive here — is that the shared interest must be legal in nature, not purely financial or commercial. A shared financial stake in the outcome of litigation does not, standing alone, establish the kind of common legal interest that the doctrine requires. The cases are clear on this point: the common interest privilege was designed to facilitate communication between co-parties or prospective co-parties facing common legal exposure, not to shield business communications between a company and its investors about the financial implications of pending litigation.
C. Arguments That Common Interest Privilege Does Not Apply
Northgate respectfully submits that Meridian's invocation of the common interest privilege to withhold the 187 documents is improper and should be rejected. The following arguments should be pressed at oral argument.
1. No Common Legal Interest
Ridgepoint's interest in this litigation is fundamentally financial, not legal. Ridgepoint seeks to protect its $285 million equity investment in Meridian and to preserve the value of its investment thesis, which was predicated in significant part on the Northgate contract as an anchor program in Meridian's portfolio. While Ridgepoint undoubtedly cares deeply about the outcome of this litigation, its interest is the interest of any equity investor in the financial performance of its portfolio company. This is a business and financial interest, not a legal interest of the kind required to invoke the common interest privilege.
A common legal interest typically involves shared exposure to claims, participation in a common defense against shared legal theories, or joint representation in a matter implicating the legal rights of both parties. None of those circumstances is present here. Ridgepoint faces no claims in this action. It is not a defendant, a cross-claimant, or a potential target. Its sole involvement is as an equity owner and a funder of litigation costs.
2. No Joint Defense Agreement
Meridian has not produced any written common interest agreement or joint defense agreement between Meridian and Ridgepoint. While the absence of a written agreement is not categorically dispositive under New York law, it is a significant factor that courts weigh in evaluating whether the common interest privilege has been properly invoked. The absence of a formal agreement here is particularly telling because Meridian is represented by sophisticated litigation counsel at HDS who would be well aware of the need to formalize a common interest arrangement if one genuinely existed. The fact that no such agreement was executed suggests that the parties themselves did not view their relationship as one involving a shared legal interest warranting formal privilege protection.
3. Ridgepoint Is Not a Party to the Litigation
Ridgepoint is not a co-defendant, co-plaintiff, or prospective party in this litigation. It has not been named in any claim, nor has any party sought to add it. Ridgepoint's sole connection to this dispute is its role as Meridian's equity owner and litigation funder. The common interest privilege was designed to protect communications between parties with aligned legal positions in actual or anticipated litigation — not to shield communications between a company and its passive investor about the financial implications of a lawsuit.
4. Litigation Funding Does Not Create a Common Legal Interest
Meridian may contend that Ridgepoint's funding of Meridian's litigation costs — the $12 million litigation war chest — establishes a sufficiently intertwined interest to support the common interest privilege. This argument conflates financial involvement with legal interest. The fact that Ridgepoint funds Meridian's litigation costs does not convert Ridgepoint's financial interest into a legal one. Litigation funders — whether third-party funders, insurance companies, or equity sponsors — do not acquire a common legal interest merely by virtue of bankrolling a party's legal expenses. The case law is consistent on this point: funding alone does not create the kind of shared legal interest required by the doctrine.
5. Communications Are Likely Business Communications, Not Legal Strategy
Based on the custodians identified on Meridian's privilege log — principally Victor Sandoval and Randall Obrecht at Meridian communicating with Graham Latimer at Ridgepoint — we believe that many of the 187 withheld documents concern Ridgepoint's investment analysis, financial projections related to Meridian's performance, and business decisions about continued funding and strategic direction. These are business and investment communications, not privileged legal strategy shared with and through counsel. If Meridian contends otherwise, the burden is on Meridian to demonstrate that each document involved counsel and was made in furtherance of a concrete common legal interest.
D. Alternative Relief: In Camera Review
If Justice Ricci is not prepared to order blanket production of the 187 documents at this stage, we request, in the alternative, that the Court conduct an in camera review of all 187 documents.
The burden should be on Meridian to demonstrate that each document satisfies all elements of the common interest privilege. Merely listing "common interest" as the privilege basis on a privilege log entry, without further elaboration, is insufficient to sustain the privilege. Meridian's privilege log for these 187 documents should be carefully scrutinized. We submit that many entries do not adequately identify:
• The attorney or attorneys involved in the communication;
• The specific common legal interest shared by Meridian and Ridgepoint; or
• The manner in which the communication furthered that purported common legal interest.
At minimum, even if the Court is not prepared to order production, the Court should require Meridian to serve a revised and supplemental privilege log with more detailed descriptions for each of the 187 entries.
E. Relevance and Importance of the 187 Documents
The 187 documents withheld by Meridian are highly relevant to Northgate's defense and counterclaims, and their withholding causes substantial prejudice to Northgate.
• Meridian's Financial Condition and Ability to Perform. Ridgepoint's communications about Meridian's financial condition go directly to Meridian's ability to perform the MCA. These documents may show that Ridgepoint was aware of quality problems and schedule deficiencies in Meridian's performance — evidence that is directly relevant to Northgate's defense that termination was justified.
• Damages. Ridgepoint's investment analysis of the Northgate contract as the "anchor program" in Meridian's portfolio is relevant to the damages inquiry. Meridian asserts lost-profits claims under Count I of its Complaint, and Ridgepoint's contemporaneous assessment of the contract's value — and any diminution in that value caused by Meridian's own performance failures — is probative of the reasonableness and foreseeability of Meridian's claimed damages. Additionally, the extent of Ridgepoint's influence on Meridian's management decisions is relevant to understanding Meridian's decision-making and the credibility of its damages theory.
• Credibility and Motivation. Communications about litigation funding strategy are relevant to the credibility and motivation of Meridian's claims. The extent to which Ridgepoint is driving the litigation — setting strategy, establishing budgets, and making go/no-go decisions about continued prosecution — is probative of the nature and purpose of Meridian's claims.
It is also worth noting the fundamental asymmetry of Meridian's position. Meridian seeks to compel production of Northgate's 214 privileged documents — classic attorney-client communications with in-house counsel — while simultaneously shielding its own communications with its equity sponsor behind an attenuated and unsupported invocation of the common interest privilege. This inconsistency underscores the weakness of Meridian's privilege position and the strength of Northgate's cross-motion.
F. Key Talking Points for Oral Argument
The following talking points should be deployed by Linda Osei during oral argument on the cross-motion.
1. "Ridgepoint Capital Group is a private equity fund, not a co-litigant. Its interest in this case is protecting a $285 million investment, not advancing a shared legal defense. That is a financial interest, not a legal one."
2. "There is no joint defense agreement. There is no common interest agreement. And there is no indication that Ridgepoint and Meridian shared legal counsel for purposes of this dispute. The formal indicia of a genuine common interest arrangement are entirely absent."
3. "If the common interest privilege is stretched to cover communications between a company and its equity sponsor about ongoing litigation, the privilege would swallow the rule of disclosure for virtually every PE-backed company in litigation. Every private equity-backed company would be able to shield its investor communications from discovery simply by labeling them 'common interest.' That is not the law."
4. "At minimum, the Court should conduct an in camera review to determine whether these 187 documents genuinely reflect legal advice shared in furtherance of a common legal interest, or whether they are business and financial communications dressed up in privilege clothing."
G. Anticipated Questions from Justice Ricci and Prepared Responses
Q: "Doesn't Ridgepoint have a legal interest in the outcome because a judgment against Meridian could impair its equity value?"
A: Your Honor, every shareholder of every company has an indirect financial interest in the outcome of that company's litigation. If that alone were sufficient to establish a common interest privilege, the privilege would extend to every communication between any company and any of its investors about any pending lawsuit. That has never been the law. The interest must be a legal interest — for example, shared exposure to claims, a common defense to shared legal theories, or joint representation in a matter implicating the legal rights of both parties. Ridgepoint faces no claims in this action. It is not a defendant, it is not a cross-claimant, and it is not a prospective party. Its interest is purely financial.
Q: "Did Ridgepoint have in-house counsel or outside counsel involved in these communications?"
A: Your Honor, Meridian's privilege log does not consistently identify Ridgepoint counsel on all 187 entries. Our review of the log suggests that many of the entries do not identify any attorney at all — either on the Meridian side or the Ridgepoint side — as a participant in the communication. If no attorney was involved, the communication is not privileged in the first instance, and the common interest doctrine cannot rescue it. The common interest privilege is an extension of the attorney-client privilege, not an independent basis for withholding documents. If the underlying communication does not involve counsel, the common interest doctrine is inapplicable.
Q: "Are you arguing that the common interest privilege can never apply between a company and its PE sponsor?"
A: Not categorically, Your Honor. There may be circumstances in which a company and its private equity sponsor share a genuine common legal interest — for example, if both are defendants in the same litigation or face common regulatory exposure. But the party asserting the privilege bears the burden to demonstrate a concrete common legal interest that goes beyond the purely financial relationship between an investor and its portfolio company. Here, Meridian has not made that showing. Meridian has not identified a specific shared legal interest; it has not produced a common interest agreement; and its privilege log does not consistently identify attorney involvement. The burden of proof is on Meridian, and it has not been met.
IV. Rebuttal Preparation — Anticipated Plaintiff Arguments
This section anticipates the arguments that HDS (Thomas Deluca) is likely to advance on both motions and sets forth our prepared rebuttals.
A. On Meridian's Motion to Compel (Their Motion)
We anticipate that HDS will advance the following arguments in support of its motion to compel production of the 214 documents, and we should be prepared with the following responses.
1. Crime-Fraud Exception or "At Issue" Waiver
Anticipated Argument: Deluca will likely argue that the crime-fraud exception applies, or at minimum that an "at issue" waiver has occurred, because Northgate's termination was allegedly pretextual. Meridian's theory is that the termination was not genuinely motivated by Meridian's material breach but rather by Northgate's desire to take advantage of favorable market conditions — and that the privilege should not shield communications revealing that the stated grounds for termination were a pretext.
Our Rebuttal: There is no basis for the crime-fraud exception. Pretext is not fraud. This is a contract dispute about whether a termination was for cause or not. Even if the termination were ultimately found by the factfinder to be unjustified — i.e., that Meridian's breaches did not rise to the level of "material breach" under MCA § 14.1 — that does not make the internal deliberation criminal or fraudulent. The crime-fraud exception requires a showing that the client was engaged in or planning a crime or fraud and that the attorney's assistance was obtained in furtherance of that criminal or fraudulent activity. A good-faith business decision to exercise a contractual termination right, even if ultimately found to be legally incorrect, does not implicate the crime-fraud exception. Meridian has made no proffer and no prima facie showing that would trigger even an in camera review under the crime-fraud standard.
2. Financial Models Are Business Documents
Anticipated Argument: Deluca will argue that financial models are inherently business documents — spreadsheets, projections, cost comparisons — and that slapping a lawyer's name on a financial model does not transform it into a privileged communication.
Our Rebuttal: The characterization of a document by its format — "financial model," "spreadsheet," "presentation" — does not determine privilege. The determinative inquiry is the purpose for which the document was created and whether it was prepared at the direction of and for the use of counsel in providing legal advice. Here, the financial models were prepared at Dominic Hale's specific direction, for his specific use, in order to inform his legal analysis of the comparative legal exposure between termination for cause and termination for convenience. They were tools of the lawyer's trade in this context — inputs to legal advice. The label "financial model" does not strip privilege from a document that was created for the purpose of enabling counsel to advise the client on legal risk.
3. Sword and Shield
Anticipated Argument: Deluca will argue that Northgate is using the privilege as both a sword and a shield — asserting in its affirmative defenses and counterclaims that the termination was justified, while simultaneously shielding the actual deliberative process that led to the termination behind the privilege. Deluca will characterize this as fundamentally unfair: Northgate should not be permitted to rely on the termination decision as a defense while hiding the reasons behind that decision.
Our Rebuttal: The sword-and-shield argument fails because Northgate's defense rests on objective facts — the schedule delays, the 287 NCRs (including 43 critical), the cure notices, and Meridian's failure to cure — not on the substance of legal advice. Northgate is not arguing, "We terminated because our lawyer told us we could." Northgate is arguing, "We terminated because Meridian materially breached the MCA." The facts supporting that defense are in evidence and available through non-privileged sources. There is no inconsistency between defending the termination on the facts and maintaining the privilege over the legal analysis that accompanied the decision. Every sophisticated company that exercises a material contractual right consults with counsel before doing so; that commonplace and laudable practice does not create a waiver of the privilege.
B. On Northgate's Cross-Motion (Their Response)
We anticipate that HDS will advance the following arguments in opposition to Northgate's cross-motion seeking production of the 187 Meridian-Ridgepoint documents.
1. Ridgepoint and Meridian Share a Common Legal Interest
Anticipated Argument: Deluca will argue that Ridgepoint and Meridian share a common legal interest because Ridgepoint's investment is directly implicated by the outcome of this litigation. Deluca may argue that the potential for a large damages award against Meridian — or a large recovery by Meridian — directly affects Ridgepoint's equity position and that this creates a sufficiently "legal" interest to invoke the common interest doctrine.
Our Rebuttal: A financial interest in the outcome of litigation is not a legal interest. The cases require more than a derivative economic stake. If every equity investor with a financial stake in a portfolio company's litigation could invoke the common interest privilege, the doctrine would extend to every communication between a company and any of its shareholders, limited partners, or financial backers about any pending lawsuit. That is not the law. The common interest privilege requires a shared legal interest — typically, shared exposure to claims, a common defense to shared legal theories, or a situation in which both parties face legal jeopardy from the same facts or events. Ridgepoint faces no legal jeopardy here. It is not a party, it is not threatened with claims, and it is not a prospective defendant.
2. Communications Were Made Through or at the Direction of Counsel
Anticipated Argument: Deluca may argue that certain of the 187 communications were facilitated by or made at the direction of HDS — i.e., that HDS acted as a conduit for sharing privileged litigation strategy with Ridgepoint in furtherance of the common interest. Meridian may identify HDS as having participated in or facilitated some of the communications.
Our Rebuttal: If HDS was facilitating communications between Meridian and Ridgepoint about litigation strategy, Meridian must specifically identify which documents involved HDS as counsel and demonstrate the legal advice nexus for each such document. A blanket assertion that "counsel was involved" is insufficient. Moreover, Meridian's privilege log, as currently constituted, does not consistently identify HDS or any other attorney as a participant in the 187 communications. If Meridian wishes to rely on attorney involvement as a basis for the privilege, it should be required to provide detailed log entries identifying the specific attorney, the nature of the legal advice, and the manner in which the communication furthered a common legal interest.
3. A Written Agreement Is Not Required
Anticipated Argument: Deluca will correctly note that a formal written common interest agreement is not strictly required under New York law to invoke the common interest privilege.
Our Rebuttal: While a written agreement is not an absolute prerequisite, its absence is a significant factor that courts weigh in evaluating whether the privilege has been properly invoked. The absence of a formal agreement is probative of whether the parties genuinely viewed their relationship as involving a shared legal interest warranting privilege protection. Here, Meridian is represented by sophisticated counsel who are well aware of the common interest doctrine. If a genuine common interest existed, one would expect it to have been memorialized in writing. The absence of any written agreement, combined with the other deficiencies in Meridian's showing, strongly suggests that the common interest privilege has been invoked as an afterthought to shield business communications from production, rather than as a reflection of a genuine shared legal interest. In all events, Meridian bears the burden of establishing all elements of the privilege, and it has not done so.
V. Procedural Logistics and Courtroom Notes
A. Courtroom Details
• Court: Part 49, Supreme Court of the State of New York, New York County
• Location: 60 Centre Street, New York, NY 10007
• Presiding Justice: The Honorable Eleanor M. Ricci
• Argument Time: Confirm allotted time with chambers in advance of the argument date. Based on prior experience with Part 49, we expect approximately 20–30 minutes per side per motion. Given that there are two motions before the Court, the total argument session may run approximately 90 minutes to two hours.
B. Order of Argument
Meridian's motion to compel was filed first (November 22, 2024), and Northgate's cross-motion was filed subsequently (December 6, 2024). The likely order of argument is as follows:
1. Meridian argues its motion to compel (as movant). Thomas Deluca will likely present for Meridian, with Miriam Vasquez at counsel table.
2. Northgate responds in opposition to the motion to compel and then presents its affirmative argument on the cross-motion for a protective order.
3. Meridian responds to the cross-motion.
4. Rebuttal on both sides, if permitted by the Court.
Our Team:
• Linda Osei will argue both the opposition to Meridian's motion to compel and the affirmative argument on Northgate's cross-motion for protective order.
• Jeffrey Park will be present at counsel table with the binders of authorities, the privilege logs, and the key exhibits from his December 6, 2024 declaration. Mr. Park should be prepared to locate and hand up specific privilege log entries or case citations if requested by the Court.
C. Materials to Bring
The following materials should be prepared, organized, and brought to the courthouse on January 27, 2025:
1. Declaration of Jeffrey Park with exhibits (including the privilege log and sample entries), filed December 6, 2024
2. Northgate's opposition brief to Meridian's motion to compel, filed December 2, 2024
3. Northgate's cross-motion for protective order, filed December 6, 2024
4. Memorandum of law in support of cross-motion for protective order
5. Meridian's motion to compel papers, filed November 22, 2024
6. Meridian's opposition to the cross-motion (if filed — confirm filing status with HDS and with the Court's clerk before the argument date)
7. Binder of key cases cited in the parties' briefs, tabbed for quick reference
8. Set of the 214-document privilege log (Northgate's log), tabbed for quick reference to specific entries that are likely to be discussed at argument (particularly the financial model entries and the board presentation entries)
9. Meridian's 187-document privilege log, tabbed for quick reference, with annotations highlighting entries that lack attorney identification or adequate privilege descriptions
10. Copies of proposed orders: (a) a proposed order denying Meridian's motion to compel; and (b) a proposed order granting Northgate's cross-motion (or, alternatively, directing in camera review)
D. Proposed Outcomes / Relief Requested
On Meridian's Motion to Compel:
• Primary Relief: Deny the motion in full. The 214 documents are properly withheld under the attorney-client privilege and/or the work product doctrine, and Meridian has not demonstrated any basis for overcoming either protection.
• Alternative Relief: If the Court is not prepared to deny the motion outright, deny the motion with leave to renew following in camera review of a representative sample of the 214 documents, selected by the Court. We are confident that in camera review will confirm the propriety of Northgate's privilege assertions.
On Northgate's Cross-Motion for Protective Order:
• Primary Relief: Order Meridian to produce all 187 documents withheld under the improperly asserted common interest privilege.
• Alternative Relief: In the alternative, order in camera review by Justice Ricci of all 187 documents to assess whether the common interest privilege has been properly invoked.
• Supplemental Relief (in either event): Order Meridian to serve a revised and supplemental privilege log for the 187 documents, with more detailed descriptions identifying (a) the attorneys involved in each communication, (b) the subject matter of each communication, and (c) the specific common legal interest asserted as the basis for the privilege for each document.
VI. Fall-Back Positions and Settlement of discovery Dispute
A. Potential Compromise Positions
While our primary goal is to prevail in full on both motions, we should be prepared for the possibility that Justice Ricci signals an inclination toward a compromise resolution. The following fall-back positions are authorized for discussion at argument, subject to the strategic parameters noted below.