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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK COMMERCIAL DIVISION

MERIDIAN INFRASTRUCTURE PARTNERS LLC,

Plaintiff,

-against-

NORTHGATE FIBER AMERICAS INC.,

Defendant.

Index No. 654321/2024

Assigned Justice: Hon. Eleanor M. Ricci Part: 49

STIPULATION AND [PROPOSED] ORDER REGARDING CONFIDENTIALITY OF DISCOVERY MATERIALS

Filed: October 1, 2024

PREAMBLE AND RECITALS

Plaintiff Meridian Infrastructure Partners LLC ("Meridian" or "Plaintiff"), by and through its attorneys Hargrove, Deluca & Stein LLP, 51 West 52nd Street, 40th Floor, New York, New York 10019 (lead partner: Thomas Deluca, Esq.), and Defendant Northgate Fiber Americas Inc. ("NFA" or "Defendant"), by and through its attorneys Calderwood & Harkness LLP, 425 Park Avenue, 33rd Floor, New York, New York 10022 (responsible partner: Linda Osei, Esq.), hereby enter into this Stipulation and [Proposed] Order Regarding Confidentiality of discovery Materials (this "Stipulation") and represent as follows:

WHEREAS, this action arises out of claims and counterclaims relating to the Master Construction Agreement dated March 15, 2020 (the "MCA") between NFA and Meridian for the design, engineering, permitting, and construction of approximately 18,500 route miles of fiber-optic cable across a seven-state footprint in the northeastern United States, including portions of New York, New Jersey, Connecticut, Pennsylvania, Massachusetts, Vermont, and New Hampshire;

WHEREAS, Meridian asserts claims for breach of contract and breach of the implied covenant of good faith and fair dealing totaling Two Hundred Million Dollars ($200,000,000.00) in damages, as set forth in its Verified Complaint filed on July 15, 2024, alleging, among other things, that NFA wrongfully terminated the MCA, failed to make milestone payments due under the MCA, and interfered with Meridian's ability to perform its contractual obligations;

WHEREAS, NFA asserts counterclaims for liquidated damages, excess completion costs, and remediation costs totaling One Hundred Forty-Nine Million Dollars ($149,000,000.00) in its Answer with Affirmative Defenses and Counterclaims filed on September 3, 2024, alleging, among other things, that Meridian failed to meet critical project milestones, delivered deficient work product, and caused delay and cost overruns that necessitated NFA's termination of the MCA and engagement of a replacement contractor;

WHEREAS, the parties anticipate exchanging substantial volumes of discovery materials in connection with this Action — including but not limited to financial records, proprietary business information, trade secrets, technical specifications (including, without limitation, Northgate Technical Specification NS-FIBER-2020 and related design and engineering documents), personnel information, internal communications, and strategic business plans — that contain confidential, proprietary, and commercially sensitive information, the public disclosure of which could cause competitive harm to one or both parties;

WHEREAS, Northgate Telecommunications PLC, the ultimate parent company of NFA, is a publicly traded company listed on the London Stock Exchange (LSE: NTP) and with American Depositary Receipts trading on the Nasdaq Stock Market (NTPLF), and the public disclosure of certain categories of information produced in this Action, including non-public financial data, strategic plans, and internal communications of NFA and its affiliates, could materially affect the securities of Northgate Telecommunications PLC and its competitive position in the telecommunications infrastructure market;

WHEREAS, Meridian is a privately held company whose financial information — including the terms of its relationship with its equity sponsor, Ridgepoint Capital Group LP, and its senior secured lender, Dralvecen Commercial Finance LLC — is commercially sensitive and not publicly available, and the disclosure of such information could cause competitive harm to Meridian and prejudice its business relationships;

WHEREAS, the parties further anticipate the production of documents and testimony involving non-parties, including Crestline Construction Group Inc. (the replacement contractor engaged by NFA following termination of the MCA), Ironclad Surety Group Inc. (the surety that issued performance and payment bonds in connection with the MCA), various subcontractors that performed work under the MCA, and municipal permitting authorities in the affected jurisdictions, whose information may also warrant confidential treatment under appropriate circumstances;

WHEREAS, both parties have retained expert witnesses who will require access to confidential discovery materials to prepare their expert reports and rebuttal reports. NFA has retained Dr. Elinor Chazen of Lakeview Consulting Group LLC and Professor Gordon Whitfield of Pinnacle Economics LLC. Meridian has retained James Ochoa, PE of Keystone Project Advisory LLC and Dr. Natalie Forster of Westbrook Valuation Services Inc. Expert reports are due on March 31, 2025 and rebuttal expert reports are due on May 15, 2025, pursuant to the Preliminary Conference Order entered on October 1, 2024;

WHEREAS, this Stipulation is entered into pursuant to the agreement of the parties reached at the Preliminary Conference held before the Honorable Eleanor M. Ricci, J.S.C., on October 1, 2024, in accordance with the Court's directive that the parties establish a confidentiality protocol governing the production and use of discovery materials in this Action; and

WHEREAS, the parties wish to establish a framework for the designation, handling, and protection of confidential information produced in discovery that balances the parties' legitimate interests in protecting confidential and proprietary information with the need for the efficient prosecution and defense of the claims and counterclaims in this Action;

NOW, THEREFORE, the parties, through their respective counsel, hereby stipulate and agree as follows, subject to the approval and "So Ordered" endorsement of the Court:

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ARTICLE 1: DEFINITIONS

As used in this Stipulation, the following terms shall have the meanings set forth below:

1.1 "Action" shall mean the matter captioned Meridian Infrastructure Partners LLC v. Northgate Fiber Americas Inc., Index No. 654321/2024, pending in the Supreme Court of the State of New York, New York County, Commercial Division, Part 49, before the Honorable Eleanor M. Ricci, J.S.C., including all claims and counterclaims asserted therein, and any related proceedings, appeals, or post-judgment proceedings arising therefrom.

1.2 "Producing Party" shall mean any party or non-party that produces, discloses, or provides discovery Material in connection with the Action, whether such production occurs voluntarily, pursuant to a discovery request, in response to a subpoena, or by order of the Court.

1.3 "Receiving Party" shall mean any party or parties that receive discovery Material from a Producing Party in connection with the Action. A party may be both a Producing Party and a Receiving Party with respect to different discovery Materials.

1.4 "Discovery Material" shall mean any document, electronically stored information ("ESI"), testimony (including deposition testimony, declarations, and affidavits), interrogatory response, response to a request for admission, response to a notice to produce, or any other information produced, disclosed, or provided in connection with discovery in the Action, whether produced voluntarily or pursuant to court order, subpoena, notice to produce, or other compulsory process. Discovery Material includes originals, copies, excerpts, summaries, abstracts, compilations, and any other forms or formats in which such information is maintained, stored, or reproduced.

1.5 "Confidential" or "Confidential Information" shall mean any discovery Material that the Producing Party designates in good faith as containing information that is confidential, proprietary, commercially sensitive, or that the Producing Party would not normally reveal to third parties or make publicly available in the ordinary course of business. Without limiting the generality of the foregoing, Confidential Information includes but is not limited to: financial data and records; contract pricing, unit rates, and cost information; internal business strategies and plans; personnel information, including compensation data; customer and vendor information; construction methodologies and processes; technical specifications (including Northgate Technical Specification NS-FIBER-2020 and related engineering documents); project schedules, progress reports, and performance data; and communications with subcontractors, vendors, and regulatory authorities.

1.6 "Highly Confidential — Attorneys' Eyes Only" or "AEO" shall mean a subset of Confidential Information that the Producing Party designates in good faith as containing particularly sensitive information, the disclosure of which to individuals beyond Outside Counsel and their staff and designated Experts would cause significant competitive or commercial harm to the Producing Party. Without limiting the generality of the foregoing, AEO Information includes but is not limited to: trade secrets and proprietary know-how; proprietary financial models and projections; internal valuation analyses; strategic plans regarding in-house fiber construction capabilities and future network buildout; merger, acquisition, or investment-related analyses and communications; litigation strategy documents (to the extent not privileged and withheld from production); any information relating to the financial condition of either party, including but not limited to balance sheets, income statements, cash flow analyses, and credit facility terms; and information relating to litigation funding arrangements, insurance coverage, and reserve analyses of either party.

1.7 "Designated Representative" shall mean an individual who has executed the Acknowledgment and Agreement to Be Bound in the form attached hereto as Exhibit A and who is authorized to receive Confidential or AEO material as specified in Articles 3 and 4 of this Stipulation.

1.8 "Qualified Person" shall mean any individual who is authorized under this Stipulation to access Confidential or AEO discovery Material, as specified in Articles 3 and 4, respectively. The term "Qualified Person" encompasses all categories of individuals enumerated in Sections 3.1 and 4.1, as applicable to the relevant confidentiality designation.

1.9 "Outside Counsel" shall mean:

(a) For Defendant NFA: Calderwood & Harkness LLP, 425 Park Avenue, 33rd Floor, New York, New York 10022, including all partners, associates, of counsel attorneys, paralegals, legal assistants, and support staff assigned to or working on the Action, specifically including but not limited to Linda Osei, Esq. (responsible partner), Priya Anand, Esq., Jeffrey Park, Esq., and Yuki Nakamura, Esq.; and

(b) For Plaintiff Meridian: Hargrove, Deluca & Stein LLP, 51 West 52nd Street, 40th Floor, New York, New York 10019, including all partners, associates, of counsel attorneys, paralegals, legal assistants, and support staff assigned to or working on the Action, specifically including but not limited to Thomas Deluca, Esq. (lead partner) and Miriam Vasquez, Esq.

1.10 "Coverage Counsel" shall mean Pemberton Fox LLP, 600 Third Avenue, 15th Floor, New York, New York 10016 (contact partner: Rachel Solomons, Esq.), retained by Albion Specialty Insurance Ltd. and Keystone National Insurance Company as coverage counsel in connection with this Action, to the extent that Coverage Counsel requires access to discovery Material for purposes of coverage analysis, reservation of rights determinations, and related insurance coverage functions. The identification of Coverage Counsel herein does not constitute a waiver of any privilege or work product protection as between Coverage Counsel and its clients, on the one hand, and either party to this Action, on the other hand.

1.11 "Expert" or "Consulting Expert" shall mean any testifying expert or consulting expert retained by a party in connection with the Action who has executed the Acknowledgment and Agreement to Be Bound in the form attached hereto as Exhibit A prior to receiving access to any Confidential or AEO discovery Material.

1.12 "E-discovery Vendor" shall mean Vantage Litigation Support LLC, 300 Vesey Street, Suite 600, New York, New York 10282, or any successor vendor agreed upon by the parties in writing, engaged to provide document hosting, processing, review, production, and related litigation support services in connection with the Action. In the event that either party engages a different or additional e-discovery vendor during the course of this Action, such vendor shall be subject to the terms of this Stipulation and shall execute the Acknowledgment and Agreement to Be Bound prior to receiving access to any Confidential or AEO discovery Material.

ARTICLE 2: DESIGNATION OF CONFIDENTIAL MATERIALS

2.1 Manner of Designation — Documents. A Producing Party may designate a document or ESI as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" by stamping or labeling each page (or, in the case of ESI, each file, production unit, or document family) with the appropriate legend. The specific manner of designation shall be as follows:

(a) Hard-Copy Documents. For documents produced in hard copy, the Producing Party shall affix a stamp or label bearing the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" on each page of the document. The stamp or label shall be placed in a location that does not obscure any substantive content of the document, preferably at the top or bottom margin of each page.

(b) Electronically Stored Information. For ESI, the Producing Party shall designate confidentiality by: (i) including the appropriate designation in the load file metadata field labeled "Confidentiality" (or an equivalent field agreed upon by the parties and the E-discovery Vendor, Vantage Litigation Support LLC); and/or (ii) applying a footer, header, or overlay bearing the appropriate legend on each page of produced images (TIFF or PDF). Where ESI is produced in native format, the Producing Party shall identify the confidentiality designation in the accompanying load file or production log.

(c) Bulk Designation. In the event that a Producing Party produces a substantial volume of documents (defined for purposes of this subsection as a production of five hundred (500) or more documents in a single production), the Producing Party may designate such documents in bulk by providing a written notice identifying the production and the applicable confidentiality designation. Such bulk designation shall not relieve the Producing Party of its obligation to apply the confidentiality designation to each document or production unit in the manner specified above, and any discrepancy between a bulk designation and the designation applied to a specific document shall be resolved in favor of the designation applied to the specific document.

2.2 Manner of Designation — Deposition Testimony. A party may designate deposition testimony as Confidential or AEO by providing written notice (by letter or email) to all parties within fifteen (15) business days after receipt of the final certified transcript of the deposition, specifying by page and line number the portions of the transcript designated as Confidential or AEO. The following additional provisions shall apply to designations of deposition testimony:

(a) Interim Treatment. Pending the expiration of the fifteen (15) business-day designation period following receipt of the final certified transcript, the entirety of any deposition transcript (and any videographic recording thereof) shall be treated as Highly Confidential — Attorneys' Eyes Only.

(b) Depositions Already Completed. The provisions of this Section 2.2 shall apply retroactively to all depositions already conducted in this Action, including the depositions of Renata Voss (November 12–13, 2024), Sean Calloway (November 19, 2024), Marcus Henley (December 3–4, 2024), and Victor Sandoval (December 10–11, 2024). Each party shall have fifteen (15) business days from the date of the Court's "So Ordered" endorsement of this Stipulation to provide confidentiality designations for transcripts of depositions already completed, to the extent such designations have not already been provided.

(c) Upcoming Depositions. The provisions of this Section 2.2 shall govern all depositions hereafter conducted in this Action, including the depositions of Bridget Yeung (currently scheduled for February 4, 2025), Helena Bright (currently scheduled for February 18, 2025, to be taken by commission in London, England), and Frank DiBello (a non-party deposition currently scheduled for March 4, 2025), as well as all expert depositions and any additional fact witness depositions.

(d) Errata Sheets. Errata sheets, correction pages, and supplemental testimony shall be subject to the same designation procedures as the underlying transcript.

2.3 Manner of Designation — Interrogatory Responses and Other Written discovery. A Producing Party may designate interrogatory responses, responses to requests for admission, and other written discovery responses as Confidential or AEO by marking the cover page of the response with the appropriate legend and, in addition, marking each page of the response that contains confidential content with the appropriate legend. Where a response contains both confidential and non-confidential information, the Producing Party shall clearly identify the specific portions that are subject to the confidentiality designation.

2.4 Designation in Good Faith. All designations under this Stipulation must be made in good faith and shall be limited to material that genuinely qualifies under the applicable definition set forth in Sections 1.5 and 1.6 of this Stipulation. A Producing Party shall not designate material as Confidential or AEO solely for strategic purposes, to gain a tactical advantage, or to impede the opposing party's ability to use the material in the prosecution or defense of its claims or counterclaims. A Producing Party bears the responsibility to carefully review its productions and to apply confidentiality designations with reasonable specificity rather than designating entire categories of documents without individual assessment. The parties recognize, however, that in large-scale document productions, some degree of over-designation may be unavoidable and shall not, standing alone, be deemed a violation of this provision.

2.5 Inadvertent Failure to Designate. If a Producing Party inadvertently fails to designate discovery Material at the time of production, the Producing Party may subsequently designate such material by providing written notice (by letter or email) to all parties, specifying the material to be designated and the applicable confidentiality level. Upon receipt of such notice, the Receiving Party shall promptly treat the material in accordance with the designated level from the date of receipt of such notice. The Receiving Party shall make reasonable efforts to retrieve or segregate any copies of such material that may have been disseminated to persons not authorized to receive material at the designated level, and shall notify any such persons that the material is now subject to the applicable confidentiality designation. The inadvertent failure to designate shall not constitute a waiver of the Producing Party's right to designate such material as Confidential or AEO.

ARTICLE 3: PROTECTIONS FOR "CONFIDENTIAL" INFORMATION

3.1 Permitted Access — Confidential Information. discovery Material designated as Confidential may be disclosed to, accessed by, or used by only the following Qualified Persons:

(a) Outside Counsel of the Receiving Party and their partners, associates, of counsel attorneys, paralegals, legal assistants, and support staff assigned to or working on the Action, as identified in Section 1.9;

(b) Coverage Counsel (Pemberton Fox LLP), to the extent necessary for coverage evaluation, reservation of rights analysis, and related insurance coverage functions in connection with this Action;

(c) The Court and its staff, including the Clerk of the Court, Part 49 staff, and any Special Referee or Judicial Hearing Officer appointed in connection with this Action;

(d) Court reporters and videographers retained for depositions, hearings, and other proceedings in this Action;

(e) E-discovery Vendor (Vantage Litigation Support LLC) employees and contractors engaged in the processing, hosting, review, production, or management of discovery Material in connection with this Action;

(f) Testifying and consulting Experts retained by the Receiving Party in connection with the Action who have executed the Acknowledgment and Agreement to Be Bound in the form attached hereto as Exhibit A, as well as the employees, associates, and support staff of such Experts who are working under the Expert's direction on matters related to this Action and who have themselves executed the Acknowledgment and Agreement to Be Bound;

(g) Up to three (3) designated in-house representatives of the Receiving Party who have executed the Acknowledgment and Agreement to Be Bound and who need access to the Confidential Information for the purpose of assisting counsel in the prosecution or defense of this Action. For the Defendant, such in-house representatives shall be employees of NFA or its parent company Northgate Telecommunications PLC. For the Plaintiff, such in-house representatives shall be employees of Meridian Infrastructure Partners LLC. The identity of each designated in-house representative shall be disclosed in writing to the Producing Party at least five (5) business days before any Confidential Information is disclosed to such representative, and the Producing Party shall have the right to object to any proposed representative pursuant to the challenge procedures set forth in Article 5;

(h) Any witness during a deposition, hearing, or trial, solely for the purpose of examination regarding the specific document or information in question, subject to the provisions of Article 6 regarding the use of Confidential and AEO materials at depositions and hearings. Such witness shall not retain copies of the Confidential Information following the examination, and any exhibits marked during the proceeding shall be handled in accordance with the applicable provisions of this Stipulation; and

(i) Any mediator, arbitrator, or other neutral third party appointed in connection with any mediation, arbitration, or other alternative dispute resolution proceeding relating to this Action, including any mediation that may be directed by the Court.

3.2 Restrictions on Use. Confidential Information shall be used solely for purposes of this Action, including the prosecution and defense of the claims and counterclaims asserted therein, the preparation of expert reports and testimony, and the conduct of settlement negotiations and alternative dispute resolution proceedings. Confidential Information shall not be used for any business, commercial, competitive, personal, regulatory, or other purpose unrelated to this Action. Without limiting the foregoing, no Receiving Party or Qualified Person shall use Confidential Information for purposes of gaining a competitive advantage over the Producing Party, soliciting the Producing Party's customers, employees, or business partners, or making investment decisions regarding the securities of any party or affiliate of a party.

ARTICLE 4: PROTECTIONS FOR "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" INFORMATION

4.1 Permitted Access — AEO Information. discovery Material designated as Highly Confidential — Attorneys' Eyes Only may be disclosed to, accessed by, or used by only the following Qualified Persons:

(b) Coverage Counsel (Pemberton Fox LLP), to the extent necessary for coverage evaluation, reservation of rights analysis, and related insurance coverage functions in connection with this Action;

(c) The Court and its staff, including the Clerk of the Court, Part 49 staff, and any Special Referee or Judicial Hearing Officer appointed in connection with this Action;

(d) Court reporters and videographers retained for depositions, hearings, and other proceedings in this Action;

(g) Any mediator, arbitrator, or other neutral third party appointed in connection with any mediation, arbitration, or other alternative dispute resolution proceeding relating to this Action, including any mediation that may be directed by the Court.

4.2 Exclusion of In-House Personnel from AEO Access. AEO Information shall NOT be disclosed to any officer, director, employee, agent, or in-house counsel of the Receiving Party, unless and until the designation is challenged and the Court orders otherwise pursuant to the procedures set forth in Article 5. Without limiting the generality of the foregoing:

(a) For Defendant NFA, AEO Information produced by Meridian shall not be disclosed to any employee of NFA or Northgate Telecommunications PLC, including but not limited to Dominic Hale (Chief Executive Officer, NFA), Renata Voss (Senior Vice President, Network Deployment, NFA), Sean Calloway (Vice President, Finance, NFA), Helena Bright (Group General Counsel, Northgate Telecommunications PLC), and Sir Malcolm Ashford (Chairman of the Board, Northgate Telecommunications PLC).

(b) For Plaintiff Meridian, AEO Information produced by NFA shall not be disclosed to any employee of Meridian Infrastructure Partners LLC, including but not limited to Victor Sandoval (Chief Executive Officer, Meridian), Bridget Yeung (Chief Financial Officer, Meridian), Marcus Henley (Senior Vice President, Operations, Meridian), and Randall Obrecht (General Counsel, Meridian).

The restrictions in this Section 4.2 are intended to ensure that competitively sensitive information of the Producing Party is not made available to individuals who are involved in making competitive business decisions for the Receiving Party, particularly given the ongoing competitive relationship between the parties in the telecommunications infrastructure construction industry.

4.3 Restrictions on Use. AEO Information shall be used solely for purposes of this Action, including the prosecution and defense of the claims and counterclaims asserted therein, the preparation of expert reports and testimony, and the conduct of settlement negotiations and alternative dispute resolution proceedings. AEO Information shall not be used for any business, commercial, competitive, personal, regulatory, or other purpose unrelated to this Action. Without limiting the foregoing, no Receiving Party or Qualified Person shall use AEO Information for purposes of gaining a competitive advantage over the Producing Party, soliciting the Producing Party's customers, employees, or business partners, making investment decisions regarding the securities of any party or affiliate of a party, or for any purpose related to the Receiving Party's competitive activities in the fiber-optic infrastructure or telecommunications markets.

4.4 In-House Counsel Access Exception. Notwithstanding Section 4.2, if a party's in-house counsel requires access to specific AEO material for purposes of providing litigation-related guidance to the party's management or board of directors in connection with this Action (and such in-house counsel is not a competitive decision-maker, as that term is understood in the relevant case law), the Receiving Party may submit a written request to the Producing Party identifying: (i) the in-house counsel seeking access; (ii) the specific AEO material to which access is sought; (iii) the purpose for which such access is needed; and (iv) the role of such in-house counsel and the reasons why such counsel should not be considered a competitive decision-maker. The Producing Party shall respond in writing within ten (10) business days and shall not unreasonably withhold consent to such request. In the event that the Producing Party withholds consent, or the parties cannot agree on appropriate conditions for such access, the Receiving Party may apply to the Court by motion on notice for an order granting the requested access on such terms and conditions as the Court deems appropriate. The burden of establishing that the proposed in-house counsel is not a competitive decision-maker and that access is necessary for litigation-related purposes shall rest on the Receiving Party.

ARTICLE 5: CHALLENGING CONFIDENTIALITY DESIGNATIONS

5.1 Informal Resolution (Meet and Confer). A Receiving Party that believes discovery Material has been improperly designated as Confidential or AEO — whether because the material does not qualify for any confidentiality protection, or because the material has been designated at a higher level than is warranted — shall first notify the Producing Party in writing (by letter or email), identifying with reasonable specificity the material at issue and stating the factual and legal basis for the challenge. The Producing Party shall respond in writing within five (5) business days, either agreeing to modify the designation, providing a substantive justification for the existing designation, or proposing a compromise. The parties shall thereafter meet and confer in good faith within ten (10) business days of the initial written challenge to attempt to resolve the dispute without court intervention. The meet and confer may be conducted in person, by telephone, or by videoconference.

5.2 Court Resolution. If the parties cannot resolve a designation challenge through the informal meet-and-confer process described in Section 5.1, the Receiving Party may apply to the Court by motion on notice for an order modifying or removing the challenged designation. Any such motion shall be made in accordance with the applicable provisions of the CPLR and the Court's individual practices for Part 49. The motion shall identify the specific discovery Material at issue, describe the informal efforts made to resolve the dispute, and set forth the grounds on which the Receiving Party contends the designation is improper. The burden of establishing that a challenged designation is proper shall rest on the Producing Party. The Producing Party must demonstrate, by a preponderance of the evidence, that the designated material falls within the applicable definition of Confidential Information (Section 1.5) or AEO Information (Section 1.6) and that the designated level of protection is warranted under the circumstances. Pending the resolution of any challenge — whether by agreement of the parties or by order of the Court — the challenged material shall continue to be treated at the existing designation level.

ARTICLE 6: USE OF CONFIDENTIAL AND AEO MATERIALS AT DEPOSITIONS, HEARINGS, AND TRIAL

6.1 Depositions.

(a) Use of Confidential Information at Depositions. If discovery Material designated as Confidential is used during the examination of a witness at a deposition, only Qualified Persons as defined in Section 3.1 of this Stipulation may be present in the deposition room during such examination. Non-qualified persons, including client representatives who have not executed the Acknowledgment and Agreement to Be Bound or who are not otherwise authorized under Section 3.1, may be excluded from the deposition room during examination on Confidential material upon the request of the Producing Party. If a dispute arises regarding the exclusion of any individual from the deposition room, the parties shall make reasonable efforts to resolve the dispute during the deposition, and if they are unable to do so, may contact the Court's Part 49 clerk for a telephone conference with the Court, if available.

(b) Use of AEO Information at Depositions. If discovery Material designated as Highly Confidential — Attorneys' Eyes Only is used during the examination of a witness at a deposition, only Qualified Persons as defined in Section 4.1 of this Stipulation may be present in the deposition room during such examination. All in-house personnel and party representatives, including the individuals identified in Section 4.2, must be excluded from the room during such examination. This exclusion applies regardless of whether the in-house personnel or party representative has executed the Acknowledgment and Agreement to Be Bound. If the deposition is being conducted by videoconference, the same exclusion requirements shall apply, and counsel for the Producing Party may require that the camera view confirm the absence of non-qualified persons from the room.

(c) Notice and Copy of Stipulation. The deposition notice or subpoena for any witness in this Action shall include a copy of this Stipulation or, at minimum, a cover letter referencing this Stipulation and providing a copy upon request. Deposing counsel shall provide advance notice of at least forty-eight (48) hours to all other counsel of record if it intends to use AEO material at a deposition, so that the opposing party may make arrangements to exclude non-qualified persons from the deposition room prior to the commencement of such examination. The forty-eight-hour notice requirement may be waived by agreement of the parties.

(d) Application to Pending Depositions. These provisions govern all depositions yet to be conducted in this Action, including specifically: the deposition of Bridget Yeung (currently scheduled for February 4, 2025); the deposition of Helena Bright (currently scheduled for February 18, 2025, to be taken by commission in London, England, pursuant to the procedures agreed upon by the parties); and the non-party deposition of Frank DiBello (currently scheduled for March 4, 2025). With respect to the Helena Bright deposition to be taken by commission in London, the parties shall confer regarding appropriate modifications to the exclusion procedures necessitated by the logistical requirements of the commission process, including any requirements of English law regarding the conduct of the commission.

6.2 Hearings and Pre-Trial Proceedings. If discovery Material designated as Confidential or AEO is to be used in connection with any motion, hearing, or pre-trial proceeding in this Action — including, without limitation, the oral argument on the pending privilege motions currently scheduled for January 27, 2025, any future discovery motions, and any summary judgment motions anticipated for filing in or around August 2025 — the filing party shall comply with the following procedures:

(a) The filing party shall file the material under seal, or in a redacted form with an unredacted version submitted for in camera review, in accordance with applicable court rules and procedures, including the New York County Commercial Division Rules regarding sealed filings, the Court's individual practices for Part 49, and the requirements of Section 216.1 of the Uniform Rules for the New York State Trial Courts.

(b) The filing party shall provide at least five (5) business days' advance written notice (by letter or email) to the Producing Party before filing any sealed or redacted submission containing the Producing Party's Confidential or AEO material, identifying the specific material to be filed and the proposed manner of filing (i.e., under seal, in redacted form, or both). The Producing Party shall have the opportunity to provide input on the proposed filing, including the scope of any proposed redactions, within three (3) business days of receipt of such notice. The parties shall confer in good faith regarding any disagreements about the scope of sealing or redaction prior to making any filing with the Court.

6.3 Trial. The parties shall meet and confer at least thirty (30) days before the commencement of trial — anticipated for November 2025, with a six-week trial window — regarding the treatment of Confidential and AEO materials to be used as trial exhibits, in witness examination, or in opening statements and closing arguments. The purpose of such conference shall be to identify the specific Confidential and AEO materials that each party anticipates using at trial, to resolve any designation challenges in advance of trial, and to agree upon appropriate procedures for the handling of such materials during trial proceedings. Either party may apply to the Court for appropriate protective measures with respect to Confidential and AEO materials at trial, including but not limited to the closure of the courtroom during the presentation of AEO evidence, the use of redacted exhibits for public viewing, the limitation of public access to certain trial transcripts, and any other measures the Court deems appropriate to protect the legitimate interests of the parties while preserving the public's right of access to judicial proceedings.

ARTICLE 7: FILING UNDER SEAL

7.1 Procedure. Any party seeking to file discovery Material designated as Confidential or AEO with the Court shall comply with the New York County Commercial Division Rules and the Court's individual practices for Part 49 (Hon. Eleanor M. Ricci, J.S.C.) regarding sealed filings. The filing party shall submit a proposed sealing order to the Court, identifying the specific material to be sealed and the basis for sealing, with reference to the relevant confidentiality designation under this Stipulation and any other applicable grounds for sealing. The proposed sealing order shall be submitted in accordance with the procedures set forth in Section 216.1 of the Uniform Rules for the New York State Trial Courts and any standing orders of the Court regarding sealed filings. Where practicable, the filing party shall file a redacted version of the document on the public docket and submit the unredacted version for in camera review or under seal, so that the public may have access to the non-confidential portions of the filing.

7.2 Presumption of Public Access. The parties acknowledge that there is a strong presumption of public access to court filings under New York law, including under the First Amendment to the United States Constitution and the common law right of public access, and that this Stipulation does not automatically entitle either party to seal court filings or to restrict public access to judicial proceedings. The Court retains full discretion over all sealing determinations and may deny a request to seal, require additional justification, or impose conditions on any sealed filing. The parties further acknowledge that the existence of a confidentiality designation under this Stipulation, standing alone, may not be sufficient to overcome the presumption of public access, and that a party seeking to seal a court filing may be required to demonstrate good cause or compelling circumstances, as applicable under the relevant legal standard.

ARTICLE 8: NON-PARTY DISCOVERY MATERIALS

8.1 Non-Party Production. discovery Material produced by non-parties in connection with this Action shall be subject to the terms and protections of this Stipulation under the following circumstances:

(a) The non-party designates such material as Confidential or AEO at the time of production, using the designation procedures set forth in Section 2.1 of this Stipulation or such reasonable alternative procedure as the non-party may adopt consistent with the purposes of this Stipulation; or

(b) A party to this Action designates such non-party material as Confidential or AEO within fifteen (15) business days of its production to the parties, by providing written notice (by letter or email) to all parties and, where practicable, to the non-party.

The provisions of this Section 8.1 shall apply to all non-party productions in this Action, including without limitation productions by: Crestline Construction Group Inc. (the replacement contractor engaged by NFA); Ironclad Surety Group Inc. (the surety); the various subcontractors subject to the seven (7) third-party subpoenas issued or to be issued in this Action; and the three (3) municipal permitting authorities from which documents have been or will be sought.

8.2 Notice to Non-Parties. The party issuing a subpoena to a non-party for documents or testimony shall provide a copy of this Stipulation (or, at minimum, the relevant portions of this Stipulation relating to designation and protection of non-party materials) to the non-party together with the subpoena, and shall advise the non-party in writing of its right to designate its own materials as Confidential or AEO under the terms of this Stipulation. The party issuing the subpoena shall further advise the non-party that, in the absence of a designation by the non-party, a party to this Action may designate non-party materials within fifteen (15) business days of production, and that undesignated non-party materials will be treated as non-confidential. Nothing in this Stipulation shall be construed to limit the rights of any non-party to seek additional or different protections from the Court by motion or otherwise.

ARTICLE 9: EXPERT ACCESS TO DISCOVERY MATERIALS

9.1 Expert Qualification. Before any Expert is given access to discovery Material designated as Confidential or AEO, the Expert must execute the Acknowledgment and Agreement to Be Bound in the form attached hereto as Exhibit A. Each party shall provide written notice (by letter or email) to the opposing party at least five (5) business days before disclosing Confidential or AEO discovery Material to any Expert, identifying the Expert by name, firm or employer, and address. The currently retained Experts in this Action are as follows:

(a) Defense Experts:

(i) Dr. Elinor Chazen, Lakeview Consulting Group LLC, 200 South Wacker Drive, Suite 1400, Chicago, Illinois 60606 (construction delay and damages analysis); and

(ii) Professor Gordon Whitfield, Pinnacle Economics LLC, 1700 Broadway, Suite 2200, New York, New York 10019 (economic damages and lost profits analysis).

(b) Plaintiff's Experts:

(i) James Ochoa, PE, Keystone Project Advisory LLC, 1500 Market Street, Suite 1200, Philadelphia, Pennsylvania 19102 (construction methodology and project management); and

(ii) Dr. Natalie Forster, Westbrook Valuation Services Inc., 100 Park Avenue, Suite 800, New York, New York 10017 (business valuation and financial damages analysis).

In the event that either party retains additional testifying or consulting experts during the course of this Action, such experts shall be subject to the same qualification requirements set forth in this Section 9.1.

9.2 Expert Reports. Expert reports that incorporate, reference, quote, or summarize Confidential or AEO discovery Material shall themselves be designated at the highest confidentiality level of the underlying material relied upon and shall be treated accordingly under this Stipulation. If an expert report contains both Confidential and AEO material, the report as a whole shall be designated as AEO. Notwithstanding the foregoing, if an expert report can be segregated into separate sections or volumes — with one or more sections containing only Confidential material and other sections containing AEO material — the parties are encouraged to designate such sections at the appropriate level rather than designating the entire report as AEO. Expert reports are due on March 31, 2025, and rebuttal expert reports are due on May 15, 2025, pursuant to the Preliminary Conference Order entered on October 1, 2024.

9.3 Expert Depositions. Expert depositions — anticipated to be conducted in June 2025, pursuant to the Preliminary Conference Order — shall be governed by the deposition provisions of Article 6, including the provisions regarding exclusion of non-qualified persons during examination on Confidential or AEO material, the forty-eight-hour advance notice requirement for use of AEO material, and the interim treatment of transcripts as AEO pending the expiration of the fifteen-business-day designation period.

ARTICLE 10: ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

10.1 Form of Acknowledgment. Every Qualified Person (other than Outside Counsel, Coverage Counsel, court personnel, court reporters, videographers, and E-discovery Vendor personnel, who are bound by this Stipulation by virtue of their roles as described herein) who is to receive access to Confidential or AEO discovery Material must execute the Acknowledgment and Agreement to Be Bound in the form attached hereto as Exhibit A before accessing any such material. No Confidential or AEO discovery Material shall be disclosed to any individual required to execute the Acknowledgment until the executed Acknowledgment has been received by counsel for the party on whose behalf the individual is signing.

10.2 Retention of Executed Acknowledgments. Executed Acknowledgments shall be retained by counsel for the party on whose behalf the individual executes the form. Counsel shall maintain a log of all executed Acknowledgments, including the name of the individual, the date of execution, and the confidentiality level(s) to which the individual has been granted access. Executed Acknowledgments shall be produced to the opposing party upon written request within five (5) business days of such request. Counsel are not required to proactively serve copies of executed Acknowledgments on opposing counsel, except as may be specifically required by other provisions of this Stipulation (e.g., the advance notice requirements for designated in-house representatives and Experts).

10.3 Content of Acknowledgment. The Acknowledgment and Agreement to Be Bound shall provide that the individual executing the form:

(a) Has received, read, and understands the Stipulation and [Proposed] Order Regarding Confidentiality of discovery Materials dated October 1, 2024, in its entirety;

(b) Agrees to be bound by all terms and conditions of the Stipulation as if the individual were a signatory thereto;

(c) Agrees to maintain the confidentiality of all Confidential and AEO material received pursuant to the Stipulation and to take all reasonable precautions to prevent the unauthorized disclosure of such material;

(d) Agrees not to disclose Confidential or AEO material to any person who is not authorized to receive such material under the terms of the Stipulation;

(e) Submits to the personal jurisdiction of the Supreme Court of the State of New York, County of New York, for purposes of any proceedings relating to the enforcement of the Stipulation or any order entered pursuant thereto; and

(f) Acknowledges that any violation of the terms of the Stipulation may subject the individual to sanctions, including but not limited to contempt of court, and may give rise to liability for damages suffered by the Producing Party as a result of such violation.

The form of Acknowledgment and Agreement to Be Bound is attached hereto as Exhibit A and incorporated herein by reference.

ARTICLE 11: INADVERTENT PRODUCTION / CLAWBACK

11.1 Inadvertent Production of Privileged Material. The inadvertent production of any document, ESI, or other information that is subject to the attorney-client privilege, the work product protection, or any other applicable privilege, immunity, or protection from disclosure shall not constitute a waiver of such privilege, immunity, or protection, regardless of the circumstances of the inadvertent production, including but not limited to: the number of inadvertently produced documents; the nature of the review process (manual, technology-assisted, or otherwise) that preceded the production; the scope and extent of the inadvertent disclosure; and the actions taken by the Producing Party following discovery of the inadvertent production. Upon providing written notice of inadvertent production (by letter or email) to the Receiving Party — which notice shall identify the specific documents or information at issue and the privilege or protection asserted — the Receiving Party shall, within five (5) business days of receipt of such notice:

(a) Return, sequester, or destroy all copies of the inadvertently produced material, including any copies maintained in electronic form on the Vantage Litigation Support LLC document review platform or any other system, and shall purge any copies from all electronic repositories, databases, and storage media within its custody or control;

(b) Not use or refer to the inadvertently produced material for any purpose, including in any deposition, motion, hearing, trial, or other proceeding, unless and until the designation is challenged and the Court orders that the material is not privileged or otherwise protected; and

(c) Certify in writing (by letter or email) to the Producing Party that it has complied with the requirements of subsections (a) and (b) above, including confirmation that all copies have been returned, sequestered, or destroyed and that all electronic copies have been purged.

This provision operates in conjunction with the agreed E-discovery Protocol (the Stipulated E-discovery Protocol and ESI Agreement filed concurrently herewith on October 1, 2024), which governs, among other things, the procedures for document collection, processing, review, and production by Vantage Litigation Support LLC, and includes additional provisions relating to the handling of potentially privileged material identified during the review process. This provision is particularly significant in this Action given the substantial volume of privileged documents at issue, including the 214 privileged documents identified on Northgate's privilege log and the 187 documents identified on Meridian's privilege log, which are currently the subject of dispute between the parties and which are the subject of the privilege motions scheduled for oral argument on January 27, 2025.

11.2 Federal Rule of Evidence 502(d) Equivalent. The parties agree, and respectfully request that the Court so order, that the protections of this Article 11 shall be enforceable as a court order and shall provide protections equivalent to those afforded by Federal Rule of Evidence 502(d), to the maximum extent applicable in state court proceedings. Specifically, the parties request that the Court order that the disclosure of any privileged or work product protected communication or information in connection with this Action shall not constitute a waiver of the privilege or protection in any other federal or state proceeding, and that this order shall be binding on all persons and entities, whether or not they are parties to this Action. The parties acknowledge that the applicability of FRE 502(d) in New York state court proceedings is subject to legal limitations, and that this provision is intended to provide the maximum available protection against inadvertent waiver under applicable New York law, including CPLR 3103 and the common law of the State of New York.

ARTICLE 12: MODIFICATION OF DESIGNATIONS BY AGREEMENT

12.1 Upgrading. A Producing Party may upgrade the confidentiality designation of previously produced discovery Material at any time by providing written notice (by letter or email) to all parties, identifying the specific material to be upgraded and the new confidentiality designation. Upon receipt of such notice, the Receiving Party shall promptly treat the material at the upgraded designation level and shall take reasonable steps to retrieve or segregate any copies of such material that may have been disseminated to persons who are not authorized to receive material at the upgraded level.

12.2 Downgrading. A Producing Party may downgrade or remove the confidentiality designation of previously produced discovery Material at any time by providing written notice (by letter or email) to all parties, identifying the specific material to be downgraded and the new confidentiality designation (if any). Upon receipt of such notice, the Receiving Party may treat the material at the downgraded designation level or as non-confidential, as applicable, from the date of receipt of such notice.

ARTICLE 13: RETURN OR DESTRUCTION OF MATERIALS AT CONCLUSION OF THE ACTION

13.1 Obligation to Return or Destroy. Within sixty (60) days of the final resolution of this Action — defined as the entry of a final judgment or order disposing of all claims and counterclaims, including the exhaustion of all appellate rights and the expiration of all applicable appeal periods — each Receiving Party shall, at the election of the Producing Party (to be communicated in writing within thirty (30) days of the final resolution):

(a) Return all discovery Material designated as Confidential or AEO to the Producing Party, including all originals, copies, excerpts, summaries, abstracts, compilations, notes, and any other materials derived from or incorporating such discovery Material; or

(b) Destroy all discovery Material designated as Confidential or AEO, including all originals, copies, excerpts, summaries, abstracts, compilations, notes, and any other materials derived from or incorporating such discovery Material, and certify such destruction in writing to the Producing Party, executed by a partner or authorized representative of Outside Counsel. The certification shall confirm that all hard copies have been shredded or otherwise destroyed and that all electronic copies have been permanently deleted from all systems, databases, repositories, and storage media within the Receiving Party's custody or control, including the Vantage Litigation Support LLC document review platform.

If the Producing Party does not communicate its election within the thirty (30) day period specified above, the Receiving Party may satisfy its obligation under this Section by either returning or destroying the material, at the Receiving Party's election.

13.2 Exception — Counsel's Files. Notwithstanding Section 13.1, Outside Counsel for each party may retain one (1) archival copy of all discovery Material (including Confidential and AEO material) in counsel's files, subject to the continuing confidentiality obligations of this Stipulation, for purposes of compliance with professional responsibility obligations under the New York Rules of Professional Conduct, document retention policies of counsel's firm, and in the event of any malpractice claim, disciplinary proceeding, fee dispute, or other proceeding in which counsel's representation in this Action may be at issue. The archival copy retained under this exception shall be maintained in a secure location and shall be accessible only to attorneys and authorized personnel of Outside Counsel.

13.3 Exception — Court Filings. discovery Material that has been filed with the Court, whether under seal or otherwise, and material that has been admitted into evidence at trial or other proceedings, need not be returned or destroyed, and shall be subject to the Court's rules and orders regarding the retention and disposition of court records.

ARTICLE 14: MISCELLANEOUS PROVISIONS

14.1 No Waiver of Objections. Nothing in this Stipulation shall be construed as a waiver of any party's right to object to the production of any discovery Material on grounds of relevance, privilege, burden, proportionality, or any other applicable ground under the CPLR or other applicable law. The execution of this Stipulation shall not be deemed an admission by any party that any particular discovery Material is relevant, admissible, discoverable, or responsive to any discovery request. The parties expressly reserve all objections to discovery requests, and the existence of this Stipulation shall not be cited as a basis for compelling the production of any discovery Material over a party's objection.

14.2 No Waiver of Confidentiality. The production or disclosure of discovery Material in accordance with this Stipulation shall not constitute a waiver of any claim of confidentiality, trade secret protection, proprietary right, or any other form of protection in such material, whether in this Action or in any other proceeding in any jurisdiction. No party shall argue or contend in any proceeding that the production of discovery Material in this Action pursuant to this Stipulation constitutes a waiver of confidentiality or trade secret protection, or that such production demonstrates that the Producing Party does not consider the material to be confidential or proprietary.

14.3 Enforcement. Any party or non-party bound by this Stipulation may seek enforcement of its terms through application to the Court, which shall retain jurisdiction for this purpose throughout the pendency of this Action and thereafter. The Court shall have the authority to impose remedies for breach of this Stipulation, including but not limited to injunctive relief, contempt of court, monetary sanctions, suppression of improperly disclosed material, adverse inference instructions, and any other relief the Court deems appropriate under the circumstances. The availability of any particular remedy shall not preclude the pursuit of any other remedy, and all remedies shall be cumulative and not exclusive.

14.4 Governing Law. This Stipulation shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law. This provision is consistent with Section 22.1 of the Master Construction Agreement dated March 15, 2020, which provides that the MCA shall be governed by and construed in accordance with the laws of the State of New York.

14.5 Amendment. This Stipulation may be modified, amended, or supplemented only by: (a) a written agreement of the parties, signed by counsel of record for each party, and approved by the Court by "So Ordered" endorsement; or (b) an order of the Court entered on application of any party upon notice to all other parties and an opportunity to be heard. No oral modification of this Stipulation shall be effective, and no waiver of any provision shall be deemed to constitute a waiver of any other provision or a continuing waiver of the same provision.

14.6 Binding Effect. This Stipulation shall be binding upon the parties hereto, their respective counsel of record, and all persons who receive discovery Material subject to this Stipulation, including but not limited to Experts, consulting experts, designated in-house representatives, E-discovery Vendor personnel, Coverage Counsel, and any other individual who executes the Acknowledgment and Agreement to Be Bound. This Stipulation shall also be binding upon the successors, assigns, and transferees of the parties, to the extent that any such successor, assign, or transferee comes into possession of discovery Material subject to this Stipulation.

14.7 Survival. The obligations of confidentiality imposed by this Stipulation shall survive the termination of this Action, including the entry of final judgment, the exhaustion of all appellate rights, and the return or destruction of discovery Material pursuant to Article 13. The confidentiality obligations set forth herein sh

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK COMMERCIAL DIVISION
MERIDIAN INFRASTRUCTURE PARTNERS LLC,
Plaintiff,
-against-
NORTHGATE FIBER AMERICAS INC.,
Defendant.
Index No. 654321/2024
Assigned Justice: Hon. Eleanor M. Ricci Part: 49
STIPULATION AND [PROPOSED] ORDER REGARDING CONFIDENTIALITY OF DISCOVERY MATERIALS
Filed: October 1, 2024
PREAMBLE AND RECITALS
Plaintiff Meridian Infrastructure Partners LLC ("Meridian" or "Plaintiff"), by and through its attorneys Hargrove, Deluca & Stein LLP, 51 West 52nd Street, 40th Floor, New York, New York 10019 (lead partner: Thomas Deluca, Esq.), and Defendant Northgate Fiber Americas Inc. ("NFA" or "Defendant"), by and through its attorneys Calderwood & Harkness LLP, 425 Park Avenue, 33rd Floor, New York, New York 10022 (responsible partner: Linda Osei, Esq.), hereby enter into this Stipulation and [Proposed] Order Regarding Confidentiality of discovery Materials (this "Stipulation") and represent as follows:
WHEREAS, this action arises out of claims and counterclaims relating to the Master Construction Agreement dated March 15, 2020 (the "MCA") between NFA and Meridian for the design, engineering, permitting, and construction of approximately 18,500 route miles of fiber-optic cable across a seven-state footprint in the northeastern United States, including portions of New York, New Jersey, Connecticut, Pennsylvania, Massachusetts, Vermont, and New Hampshire;
WHEREAS, Meridian asserts claims for breach of contract and breach of the implied covenant of good faith and fair dealing totaling Two Hundred Million Dollars ($200,000,000.00) in damages, as set forth in its Verified Complaint filed on July 15, 2024, alleging, among other things, that NFA wrongfully terminated the MCA, failed to make milestone payments due under the MCA, and interfered with Meridian's ability to perform its contractual obligations;
WHEREAS, NFA asserts counterclaims for liquidated damages, excess completion costs, and remediation costs totaling One Hundred Forty-Nine Million Dollars ($149,000,000.00) in its Answer with Affirmative Defenses and Counterclaims filed on September 3, 2024, alleging, among other things, that Meridian failed to meet critical project milestones, delivered deficient work product, and caused delay and cost overruns that necessitated NFA's termination of the MCA and engagement of a replacement contractor;
WHEREAS, the parties anticipate exchanging substantial volumes of discovery materials in connection with this Action — including but not limited to financial records, proprietary business information, trade secrets, technical specifications (including, without limitation, Northgate Technical Specification NS-FIBER-2020 and related design and engineering documents), personnel information, internal communications, and strategic business plans — that contain confidential, proprietary, and commercially sensitive information, the public disclosure of which could cause competitive harm to one or both parties;
WHEREAS, Northgate Telecommunications PLC, the ultimate parent company of NFA, is a publicly traded company listed on the London Stock Exchange (LSE: NTP) and with American Depositary Receipts trading on the Nasdaq Stock Market (NTPLF), and the public disclosure of certain categories of information produced in this Action, including non-public financial data, strategic plans, and internal communications of NFA and its affiliates, could materially affect the securities of Northgate Telecommunications PLC and its competitive position in the telecommunications infrastructure market;
WHEREAS, Meridian is a privately held company whose financial information — including the terms of its relationship with its equity sponsor, Ridgepoint Capital Group LP, and its senior secured lender, Dralvecen Commercial Finance LLC — is commercially sensitive and not publicly available, and the disclosure of such information could cause competitive harm to Meridian and prejudice its business relationships;
WHEREAS, the parties further anticipate the production of documents and testimony involving non-parties, including Crestline Construction Group Inc. (the replacement contractor engaged by NFA following termination of the MCA), Ironclad Surety Group Inc. (the surety that issued performance and payment bonds in connection with the MCA), various subcontractors that performed work under the MCA, and municipal permitting authorities in the affected jurisdictions, whose information may also warrant confidential treatment under appropriate circumstances;
WHEREAS, both parties have retained expert witnesses who will require access to confidential discovery materials to prepare their expert reports and rebuttal reports. NFA has retained Dr. Elinor Chazen of Lakeview Consulting Group LLC and Professor Gordon Whitfield of Pinnacle Economics LLC. Meridian has retained James Ochoa, PE of Keystone Project Advisory LLC and Dr. Natalie Forster of Westbrook Valuation Services Inc. Expert reports are due on March 31, 2025 and rebuttal expert reports are due on May 15, 2025, pursuant to the Preliminary Conference Order entered on October 1, 2024;
WHEREAS, this Stipulation is entered into pursuant to the agreement of the parties reached at the Preliminary Conference held before the Honorable Eleanor M. Ricci, J.S.C., on October 1, 2024, in accordance with the Court's directive that the parties establish a confidentiality protocol governing the production and use of discovery materials in this Action; and
WHEREAS, the parties wish to establish a framework for the designation, handling, and protection of confidential information produced in discovery that balances the parties' legitimate interests in protecting confidential and proprietary information with the need for the efficient prosecution and defense of the claims and counterclaims in this Action;
NOW, THEREFORE, the parties, through their respective counsel, hereby stipulate and agree as follows, subject to the approval and "So Ordered" endorsement of the Court:
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ARTICLE 1: DEFINITIONS
As used in this Stipulation, the following terms shall have the meanings set forth below:
1.1 "Action" shall mean the matter captioned Meridian Infrastructure Partners LLC v. Northgate Fiber Americas Inc., Index No. 654321/2024, pending in the Supreme Court of the State of New York, New York County, Commercial Division, Part 49, before the Honorable Eleanor M. Ricci, J.S.C., including all claims and counterclaims asserted therein, and any related proceedings, appeals, or post-judgment proceedings arising therefrom.
1.2 "Producing Party" shall mean any party or non-party that produces, discloses, or provides discovery Material in connection with the Action, whether such production occurs voluntarily, pursuant to a discovery request, in response to a subpoena, or by order of the Court.
1.3 "Receiving Party" shall mean any party or parties that receive discovery Material from a Producing Party in connection with the Action. A party may be both a Producing Party and a Receiving Party with respect to different discovery Materials.
1.4 "Discovery Material" shall mean any document, electronically stored information ("ESI"), testimony (including deposition testimony, declarations, and affidavits), interrogatory response, response to a request for admission, response to a notice to produce, or any other information produced, disclosed, or provided in connection with discovery in the Action, whether produced voluntarily or pursuant to court order, subpoena, notice to produce, or other compulsory process. Discovery Material includes originals, copies, excerpts, summaries, abstracts, compilations, and any other forms or formats in which such information is maintained, stored, or reproduced.
1.5 "Confidential" or "Confidential Information" shall mean any discovery Material that the Producing Party designates in good faith as containing information that is confidential, proprietary, commercially sensitive, or that the Producing Party would not normally reveal to third parties or make publicly available in the ordinary course of business. Without limiting the generality of the foregoing, Confidential Information includes but is not limited to: financial data and records; contract pricing, unit rates, and cost information; internal business strategies and plans; personnel information, including compensation data; customer and vendor information; construction methodologies and processes; technical specifications (including Northgate Technical Specification NS-FIBER-2020 and related engineering documents); project schedules, progress reports, and performance data; and communications with subcontractors, vendors, and regulatory authorities.
1.6 "Highly Confidential — Attorneys' Eyes Only" or "AEO" shall mean a subset of Confidential Information that the Producing Party designates in good faith as containing particularly sensitive information, the disclosure of which to individuals beyond Outside Counsel and their staff and designated Experts would cause significant competitive or commercial harm to the Producing Party. Without limiting the generality of the foregoing, AEO Information includes but is not limited to: trade secrets and proprietary know-how; proprietary financial models and projections; internal valuation analyses; strategic plans regarding in-house fiber construction capabilities and future network buildout; merger, acquisition, or investment-related analyses and communications; litigation strategy documents (to the extent not privileged and withheld from production); any information relating to the financial condition of either party, including but not limited to balance sheets, income statements, cash flow analyses, and credit facility terms; and information relating to litigation funding arrangements, insurance coverage, and reserve analyses of either party.
1.7 "Designated Representative" shall mean an individual who has executed the Acknowledgment and Agreement to Be Bound in the form attached hereto as Exhibit A and who is authorized to receive Confidential or AEO material as specified in Articles 3 and 4 of this Stipulation.
1.8 "Qualified Person" shall mean any individual who is authorized under this Stipulation to access Confidential or AEO discovery Material, as specified in Articles 3 and 4, respectively. The term "Qualified Person" encompasses all categories of individuals enumerated in Sections 3.1 and 4.1, as applicable to the relevant confidentiality designation.
1.9 "Outside Counsel" shall mean:
(a) For Defendant NFA: Calderwood & Harkness LLP, 425 Park Avenue, 33rd Floor, New York, New York 10022, including all partners, associates, of counsel attorneys, paralegals, legal assistants, and support staff assigned to or working on the Action, specifically including but not limited to Linda Osei, Esq. (responsible partner), Priya Anand, Esq., Jeffrey Park, Esq., and Yuki Nakamura, Esq.; and
(b) For Plaintiff Meridian: Hargrove, Deluca & Stein LLP, 51 West 52nd Street, 40th Floor, New York, New York 10019, including all partners, associates, of counsel attorneys, paralegals, legal assistants, and support staff assigned to or working on the Action, specifically including but not limited to Thomas Deluca, Esq. (lead partner) and Miriam Vasquez, Esq.
1.10 "Coverage Counsel" shall mean Pemberton Fox LLP, 600 Third Avenue, 15th Floor, New York, New York 10016 (contact partner: Rachel Solomons, Esq.), retained by Albion Specialty Insurance Ltd. and Keystone National Insurance Company as coverage counsel in connection with this Action, to the extent that Coverage Counsel requires access to discovery Material for purposes of coverage analysis, reservation of rights determinations, and related insurance coverage functions. The identification of Coverage Counsel herein does not constitute a waiver of any privilege or work product protection as between Coverage Counsel and its clients, on the one hand, and either party to this Action, on the other hand.
1.11 "Expert" or "Consulting Expert" shall mean any testifying expert or consulting expert retained by a party in connection with the Action who has executed the Acknowledgment and Agreement to Be Bound in the form attached hereto as Exhibit A prior to receiving access to any Confidential or AEO discovery Material.
1.12 "E-discovery Vendor" shall mean Vantage Litigation Support LLC, 300 Vesey Street, Suite 600, New York, New York 10282, or any successor vendor agreed upon by the parties in writing, engaged to provide document hosting, processing, review, production, and related litigation support services in connection with the Action. In the event that either party engages a different or additional e-discovery vendor during the course of this Action, such vendor shall be subject to the terms of this Stipulation and shall execute the Acknowledgment and Agreement to Be Bound prior to receiving access to any Confidential or AEO discovery Material.
ARTICLE 2: DESIGNATION OF CONFIDENTIAL MATERIALS
2.1 Manner of Designation — Documents. A Producing Party may designate a document or ESI as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" by stamping or labeling each page (or, in the case of ESI, each file, production unit, or document family) with the appropriate legend. The specific manner of designation shall be as follows:
(a) Hard-Copy Documents. For documents produced in hard copy, the Producing Party shall affix a stamp or label bearing the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" on each page of the document. The stamp or label shall be placed in a location that does not obscure any substantive content of the document, preferably at the top or bottom margin of each page.
(b) Electronically Stored Information. For ESI, the Producing Party shall designate confidentiality by: (i) including the appropriate designation in the load file metadata field labeled "Confidentiality" (or an equivalent field agreed upon by the parties and the E-discovery Vendor, Vantage Litigation Support LLC); and/or (ii) applying a footer, header, or overlay bearing the appropriate legend on each page of produced images (TIFF or PDF). Where ESI is produced in native format, the Producing Party shall identify the confidentiality designation in the accompanying load file or production log.
(c) Bulk Designation. In the event that a Producing Party produces a substantial volume of documents (defined for purposes of this subsection as a production of five hundred (500) or more documents in a single production), the Producing Party may designate such documents in bulk by providing a written notice identifying the production and the applicable confidentiality designation. Such bulk designation shall not relieve the Producing Party of its obligation to apply the confidentiality designation to each document or production unit in the manner specified above, and any discrepancy between a bulk designation and the designation applied to a specific document shall be resolved in favor of the designation applied to the specific document.
2.2 Manner of Designation — Deposition Testimony. A party may designate deposition testimony as Confidential or AEO by providing written notice (by letter or email) to all parties within fifteen (15) business days after receipt of the final certified transcript of the deposition, specifying by page and line number the portions of the transcript designated as Confidential or AEO. The following additional provisions shall apply to designations of deposition testimony:
(a) Interim Treatment. Pending the expiration of the fifteen (15) business-day designation period following receipt of the final certified transcript, the entirety of any deposition transcript (and any videographic recording thereof) shall be treated as Highly Confidential — Attorneys' Eyes Only.
(b) Depositions Already Completed. The provisions of this Section 2.2 shall apply retroactively to all depositions already conducted in this Action, including the depositions of Renata Voss (November 12–13, 2024), Sean Calloway (November 19, 2024), Marcus Henley (December 3–4, 2024), and Victor Sandoval (December 10–11, 2024). Each party shall have fifteen (15) business days from the date of the Court's "So Ordered" endorsement of this Stipulation to provide confidentiality designations for transcripts of depositions already completed, to the extent such designations have not already been provided.
(c) Upcoming Depositions. The provisions of this Section 2.2 shall govern all depositions hereafter conducted in this Action, including the depositions of Bridget Yeung (currently scheduled for February 4, 2025), Helena Bright (currently scheduled for February 18, 2025, to be taken by commission in London, England), and Frank DiBello (a non-party deposition currently scheduled for March 4, 2025), as well as all expert depositions and any additional fact witness depositions.
(d) Errata Sheets. Errata sheets, correction pages, and supplemental testimony shall be subject to the same designation procedures as the underlying transcript.
2.3 Manner of Designation — Interrogatory Responses and Other Written discovery. A Producing Party may designate interrogatory responses, responses to requests for admission, and other written discovery responses as Confidential or AEO by marking the cover page of the response with the appropriate legend and, in addition, marking each page of the response that contains confidential content with the appropriate legend. Where a response contains both confidential and non-confidential information, the Producing Party shall clearly identify the specific portions that are subject to the confidentiality designation.
2.4 Designation in Good Faith. All designations under this Stipulation must be made in good faith and shall be limited to material that genuinely qualifies under the applicable definition set forth in Sections 1.5 and 1.6 of this Stipulation. A Producing Party shall not designate material as Confidential or AEO solely for strategic purposes, to gain a tactical advantage, or to impede the opposing party's ability to use the material in the prosecution or defense of its claims or counterclaims. A Producing Party bears the responsibility to carefully review its productions and to apply confidentiality designations with reasonable specificity rather than designating entire categories of documents without individual assessment. The parties recognize, however, that in large-scale document productions, some degree of over-designation may be unavoidable and shall not, standing alone, be deemed a violation of this provision.
2.5 Inadvertent Failure to Designate. If a Producing Party inadvertently fails to designate discovery Material at the time of production, the Producing Party may subsequently designate such material by providing written notice (by letter or email) to all parties, specifying the material to be designated and the applicable confidentiality level. Upon receipt of such notice, the Receiving Party shall promptly treat the material in accordance with the designated level from the date of receipt of such notice. The Receiving Party shall make reasonable efforts to retrieve or segregate any copies of such material that may have been disseminated to persons not authorized to receive material at the designated level, and shall notify any such persons that the material is now subject to the applicable confidentiality designation. The inadvertent failure to designate shall not constitute a waiver of the Producing Party's right to designate such material as Confidential or AEO.
ARTICLE 3: PROTECTIONS FOR "CONFIDENTIAL" INFORMATION
3.1 Permitted Access — Confidential Information. discovery Material designated as Confidential may be disclosed to, accessed by, or used by only the following Qualified Persons:
(a) Outside Counsel of the Receiving Party and their partners, associates, of counsel attorneys, paralegals, legal assistants, and support staff assigned to or working on the Action, as identified in Section 1.9;
(b) Coverage Counsel (Pemberton Fox LLP), to the extent necessary for coverage evaluation, reservation of rights analysis, and related insurance coverage functions in connection with this Action;
(c) The Court and its staff, including the Clerk of the Court, Part 49 staff, and any Special Referee or Judicial Hearing Officer appointed in connection with this Action;
(d) Court reporters and videographers retained for depositions, hearings, and other proceedings in this Action;
(e) E-discovery Vendor (Vantage Litigation Support LLC) employees and contractors engaged in the processing, hosting, review, production, or management of discovery Material in connection with this Action;
(f) Testifying and consulting Experts retained by the Receiving Party in connection with the Action who have executed the Acknowledgment and Agreement to Be Bound in the form attached hereto as Exhibit A, as well as the employees, associates, and support staff of such Experts who are working under the Expert's direction on matters related to this Action and who have themselves executed the Acknowledgment and Agreement to Be Bound;
(g) Up to three (3) designated in-house representatives of the Receiving Party who have executed the Acknowledgment and Agreement to Be Bound and who need access to the Confidential Information for the purpose of assisting counsel in the prosecution or defense of this Action. For the Defendant, such in-house representatives shall be employees of NFA or its parent company Northgate Telecommunications PLC. For the Plaintiff, such in-house representatives shall be employees of Meridian Infrastructure Partners LLC. The identity of each designated in-house representative shall be disclosed in writing to the Producing Party at least five (5) business days before any Confidential Information is disclosed to such representative, and the Producing Party shall have the right to object to any proposed representative pursuant to the challenge procedures set forth in Article 5;
(h) Any witness during a deposition, hearing, or trial, solely for the purpose of examination regarding the specific document or information in question, subject to the provisions of Article 6 regarding the use of Confidential and AEO materials at depositions and hearings. Such witness shall not retain copies of the Confidential Information following the examination, and any exhibits marked during the proceeding shall be handled in accordance with the applicable provisions of this Stipulation; and
(i) Any mediator, arbitrator, or other neutral third party appointed in connection with any mediation, arbitration, or other alternative dispute resolution proceeding relating to this Action, including any mediation that may be directed by the Court.
3.2 Restrictions on Use. Confidential Information shall be used solely for purposes of this Action, including the prosecution and defense of the claims and counterclaims asserted therein, the preparation of expert reports and testimony, and the conduct of settlement negotiations and alternative dispute resolution proceedings. Confidential Information shall not be used for any business, commercial, competitive, personal, regulatory, or other purpose unrelated to this Action. Without limiting the foregoing, no Receiving Party or Qualified Person shall use Confidential Information for purposes of gaining a competitive advantage over the Producing Party, soliciting the Producing Party's customers, employees, or business partners, or making investment decisions regarding the securities of any party or affiliate of a party.
ARTICLE 4: PROTECTIONS FOR "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" INFORMATION
4.1 Permitted Access — AEO Information. discovery Material designated as Highly Confidential — Attorneys' Eyes Only may be disclosed to, accessed by, or used by only the following Qualified Persons:
(a) Outside Counsel of the Receiving Party and their partners, associates, of counsel attorneys, paralegals, legal assistants, and support staff assigned to or working on the Action, as identified in Section 1.9;
(b) Coverage Counsel (Pemberton Fox LLP), to the extent necessary for coverage evaluation, reservation of rights analysis, and related insurance coverage functions in connection with this Action;
(c) The Court and its staff, including the Clerk of the Court, Part 49 staff, and any Special Referee or Judicial Hearing Officer appointed in connection with this Action;
(d) Court reporters and videographers retained for depositions, hearings, and other proceedings in this Action;
(e) E-discovery Vendor (Vantage Litigation Support LLC) employees and contractors engaged in the processing, hosting, review, production, or management of discovery Material in connection with this Action;
(f) Testifying and consulting Experts retained by the Receiving Party in connection with the Action who have executed the Acknowledgment and Agreement to Be Bound in the form attached hereto as Exhibit A, as well as the employees, associates, and support staff of such Experts who are working under the Expert's direction on matters related to this Action and who have themselves executed the Acknowledgment and Agreement to Be Bound; and
(g) Any mediator, arbitrator, or other neutral third party appointed in connection with any mediation, arbitration, or other alternative dispute resolution proceeding relating to this Action, including any mediation that may be directed by the Court.
4.2 Exclusion of In-House Personnel from AEO Access. AEO Information shall NOT be disclosed to any officer, director, employee, agent, or in-house counsel of the Receiving Party, unless and until the designation is challenged and the Court orders otherwise pursuant to the procedures set forth in Article 5. Without limiting the generality of the foregoing:
(a) For Defendant NFA, AEO Information produced by Meridian shall not be disclosed to any employee of NFA or Northgate Telecommunications PLC, including but not limited to Dominic Hale (Chief Executive Officer, NFA), Renata Voss (Senior Vice President, Network Deployment, NFA), Sean Calloway (Vice President, Finance, NFA), Helena Bright (Group General Counsel, Northgate Telecommunications PLC), and Sir Malcolm Ashford (Chairman of the Board, Northgate Telecommunications PLC).
(b) For Plaintiff Meridian, AEO Information produced by NFA shall not be disclosed to any employee of Meridian Infrastructure Partners LLC, including but not limited to Victor Sandoval (Chief Executive Officer, Meridian), Bridget Yeung (Chief Financial Officer, Meridian), Marcus Henley (Senior Vice President, Operations, Meridian), and Randall Obrecht (General Counsel, Meridian).
The restrictions in this Section 4.2 are intended to ensure that competitively sensitive information of the Producing Party is not made available to individuals who are involved in making competitive business decisions for the Receiving Party, particularly given the ongoing competitive relationship between the parties in the telecommunications infrastructure construction industry.
4.3 Restrictions on Use. AEO Information shall be used solely for purposes of this Action, including the prosecution and defense of the claims and counterclaims asserted therein, the preparation of expert reports and testimony, and the conduct of settlement negotiations and alternative dispute resolution proceedings. AEO Information shall not be used for any business, commercial, competitive, personal, regulatory, or other purpose unrelated to this Action. Without limiting the foregoing, no Receiving Party or Qualified Person shall use AEO Information for purposes of gaining a competitive advantage over the Producing Party, soliciting the Producing Party's customers, employees, or business partners, making investment decisions regarding the securities of any party or affiliate of a party, or for any purpose related to the Receiving Party's competitive activities in the fiber-optic infrastructure or telecommunications markets.
4.4 In-House Counsel Access Exception. Notwithstanding Section 4.2, if a party's in-house counsel requires access to specific AEO material for purposes of providing litigation-related guidance to the party's management or board of directors in connection with this Action (and such in-house counsel is not a competitive decision-maker, as that term is understood in the relevant case law), the Receiving Party may submit a written request to the Producing Party identifying: (i) the in-house counsel seeking access; (ii) the specific AEO material to which access is sought; (iii) the purpose for which such access is needed; and (iv) the role of such in-house counsel and the reasons why such counsel should not be considered a competitive decision-maker. The Producing Party shall respond in writing within ten (10) business days and shall not unreasonably withhold consent to such request. In the event that the Producing Party withholds consent, or the parties cannot agree on appropriate conditions for such access, the Receiving Party may apply to the Court by motion on notice for an order granting the requested access on such terms and conditions as the Court deems appropriate. The burden of establishing that the proposed in-house counsel is not a competitive decision-maker and that access is necessary for litigation-related purposes shall rest on the Receiving Party.
ARTICLE 5: CHALLENGING CONFIDENTIALITY DESIGNATIONS
5.1 Informal Resolution (Meet and Confer). A Receiving Party that believes discovery Material has been improperly designated as Confidential or AEO — whether because the material does not qualify for any confidentiality protection, or because the material has been designated at a higher level than is warranted — shall first notify the Producing Party in writing (by letter or email), identifying with reasonable specificity the material at issue and stating the factual and legal basis for the challenge. The Producing Party shall respond in writing within five (5) business days, either agreeing to modify the designation, providing a substantive justification for the existing designation, or proposing a compromise. The parties shall thereafter meet and confer in good faith within ten (10) business days of the initial written challenge to attempt to resolve the dispute without court intervention. The meet and confer may be conducted in person, by telephone, or by videoconference.
5.2 Court Resolution. If the parties cannot resolve a designation challenge through the informal meet-and-confer process described in Section 5.1, the Receiving Party may apply to the Court by motion on notice for an order modifying or removing the challenged designation. Any such motion shall be made in accordance with the applicable provisions of the CPLR and the Court's individual practices for Part 49. The motion shall identify the specific discovery Material at issue, describe the informal efforts made to resolve the dispute, and set forth the grounds on which the Receiving Party contends the designation is improper. The burden of establishing that a challenged designation is proper shall rest on the Producing Party. The Producing Party must demonstrate, by a preponderance of the evidence, that the designated material falls within the applicable definition of Confidential Information (Section 1.5) or AEO Information (Section 1.6) and that the designated level of protection is warranted under the circumstances. Pending the resolution of any challenge — whether by agreement of the parties or by order of the Court — the challenged material shall continue to be treated at the existing designation level.
ARTICLE 6: USE OF CONFIDENTIAL AND AEO MATERIALS AT DEPOSITIONS, HEARINGS, AND TRIAL
6.1 Depositions.
(a) Use of Confidential Information at Depositions. If discovery Material designated as Confidential is used during the examination of a witness at a deposition, only Qualified Persons as defined in Section 3.1 of this Stipulation may be present in the deposition room during such examination. Non-qualified persons, including client representatives who have not executed the Acknowledgment and Agreement to Be Bound or who are not otherwise authorized under Section 3.1, may be excluded from the deposition room during examination on Confidential material upon the request of the Producing Party. If a dispute arises regarding the exclusion of any individual from the deposition room, the parties shall make reasonable efforts to resolve the dispute during the deposition, and if they are unable to do so, may contact the Court's Part 49 clerk for a telephone conference with the Court, if available.
(b) Use of AEO Information at Depositions. If discovery Material designated as Highly Confidential — Attorneys' Eyes Only is used during the examination of a witness at a deposition, only Qualified Persons as defined in Section 4.1 of this Stipulation may be present in the deposition room during such examination. All in-house personnel and party representatives, including the individuals identified in Section 4.2, must be excluded from the room during such examination. This exclusion applies regardless of whether the in-house personnel or party representative has executed the Acknowledgment and Agreement to Be Bound. If the deposition is being conducted by videoconference, the same exclusion requirements shall apply, and counsel for the Producing Party may require that the camera view confirm the absence of non-qualified persons from the room.
(c) Notice and Copy of Stipulation. The deposition notice or subpoena for any witness in this Action shall include a copy of this Stipulation or, at minimum, a cover letter referencing this Stipulation and providing a copy upon request. Deposing counsel shall provide advance notice of at least forty-eight (48) hours to all other counsel of record if it intends to use AEO material at a deposition, so that the opposing party may make arrangements to exclude non-qualified persons from the deposition room prior to the commencement of such examination. The forty-eight-hour notice requirement may be waived by agreement of the parties.
(d) Application to Pending Depositions. These provisions govern all depositions yet to be conducted in this Action, including specifically: the deposition of Bridget Yeung (currently scheduled for February 4, 2025); the deposition of Helena Bright (currently scheduled for February 18, 2025, to be taken by commission in London, England, pursuant to the procedures agreed upon by the parties); and the non-party deposition of Frank DiBello (currently scheduled for March 4, 2025). With respect to the Helena Bright deposition to be taken by commission in London, the parties shall confer regarding appropriate modifications to the exclusion procedures necessitated by the logistical requirements of the commission process, including any requirements of English law regarding the conduct of the commission.
6.2 Hearings and Pre-Trial Proceedings. If discovery Material designated as Confidential or AEO is to be used in connection with any motion, hearing, or pre-trial proceeding in this Action — including, without limitation, the oral argument on the pending privilege motions currently scheduled for January 27, 2025, any future discovery motions, and any summary judgment motions anticipated for filing in or around August 2025 — the filing party shall comply with the following procedures:
(a) The filing party shall file the material under seal, or in a redacted form with an unredacted version submitted for in camera review, in accordance with applicable court rules and procedures, including the New York County Commercial Division Rules regarding sealed filings, the Court's individual practices for Part 49, and the requirements of Section 216.1 of the Uniform Rules for the New York State Trial Courts.
(b) The filing party shall provide at least five (5) business days' advance written notice (by letter or email) to the Producing Party before filing any sealed or redacted submission containing the Producing Party's Confidential or AEO material, identifying the specific material to be filed and the proposed manner of filing (i.e., under seal, in redacted form, or both). The Producing Party shall have the opportunity to provide input on the proposed filing, including the scope of any proposed redactions, within three (3) business days of receipt of such notice. The parties shall confer in good faith regarding any disagreements about the scope of sealing or redaction prior to making any filing with the Court.
6.3 Trial. The parties shall meet and confer at least thirty (30) days before the commencement of trial — anticipated for November 2025, with a six-week trial window — regarding the treatment of Confidential and AEO materials to be used as trial exhibits, in witness examination, or in opening statements and closing arguments. The purpose of such conference shall be to identify the specific Confidential and AEO materials that each party anticipates using at trial, to resolve any designation challenges in advance of trial, and to agree upon appropriate procedures for the handling of such materials during trial proceedings. Either party may apply to the Court for appropriate protective measures with respect to Confidential and AEO materials at trial, including but not limited to the closure of the courtroom during the presentation of AEO evidence, the use of redacted exhibits for public viewing, the limitation of public access to certain trial transcripts, and any other measures the Court deems appropriate to protect the legitimate interests of the parties while preserving the public's right of access to judicial proceedings.
ARTICLE 7: FILING UNDER SEAL
7.1 Procedure. Any party seeking to file discovery Material designated as Confidential or AEO with the Court shall comply with the New York County Commercial Division Rules and the Court's individual practices for Part 49 (Hon. Eleanor M. Ricci, J.S.C.) regarding sealed filings. The filing party shall submit a proposed sealing order to the Court, identifying the specific material to be sealed and the basis for sealing, with reference to the relevant confidentiality designation under this Stipulation and any other applicable grounds for sealing. The proposed sealing order shall be submitted in accordance with the procedures set forth in Section 216.1 of the Uniform Rules for the New York State Trial Courts and any standing orders of the Court regarding sealed filings. Where practicable, the filing party shall file a redacted version of the document on the public docket and submit the unredacted version for in camera review or under seal, so that the public may have access to the non-confidential portions of the filing.
7.2 Presumption of Public Access. The parties acknowledge that there is a strong presumption of public access to court filings under New York law, including under the First Amendment to the United States Constitution and the common law right of public access, and that this Stipulation does not automatically entitle either party to seal court filings or to restrict public access to judicial proceedings. The Court retains full discretion over all sealing determinations and may deny a request to seal, require additional justification, or impose conditions on any sealed filing. The parties further acknowledge that the existence of a confidentiality designation under this Stipulation, standing alone, may not be sufficient to overcome the presumption of public access, and that a party seeking to seal a court filing may be required to demonstrate good cause or compelling circumstances, as applicable under the relevant legal standard.
ARTICLE 8: NON-PARTY DISCOVERY MATERIALS
8.1 Non-Party Production. discovery Material produced by non-parties in connection with this Action shall be subject to the terms and protections of this Stipulation under the following circumstances:
(a) The non-party designates such material as Confidential or AEO at the time of production, using the designation procedures set forth in Section 2.1 of this Stipulation or such reasonable alternative procedure as the non-party may adopt consistent with the purposes of this Stipulation; or
(b) A party to this Action designates such non-party material as Confidential or AEO within fifteen (15) business days of its production to the parties, by providing written notice (by letter or email) to all parties and, where practicable, to the non-party.
The provisions of this Section 8.1 shall apply to all non-party productions in this Action, including without limitation productions by: Crestline Construction Group Inc. (the replacement contractor engaged by NFA); Ironclad Surety Group Inc. (the surety); the various subcontractors subject to the seven (7) third-party subpoenas issued or to be issued in this Action; and the three (3) municipal permitting authorities from which documents have been or will be sought.
8.2 Notice to Non-Parties. The party issuing a subpoena to a non-party for documents or testimony shall provide a copy of this Stipulation (or, at minimum, the relevant portions of this Stipulation relating to designation and protection of non-party materials) to the non-party together with the subpoena, and shall advise the non-party in writing of its right to designate its own materials as Confidential or AEO under the terms of this Stipulation. The party issuing the subpoena shall further advise the non-party that, in the absence of a designation by the non-party, a party to this Action may designate non-party materials within fifteen (15) business days of production, and that undesignated non-party materials will be treated as non-confidential. Nothing in this Stipulation shall be construed to limit the rights of any non-party to seek additional or different protections from the Court by motion or otherwise.
ARTICLE 9: EXPERT ACCESS TO DISCOVERY MATERIALS
9.1 Expert Qualification. Before any Expert is given access to discovery Material designated as Confidential or AEO, the Expert must execute the Acknowledgment and Agreement to Be Bound in the form attached hereto as Exhibit A. Each party shall provide written notice (by letter or email) to the opposing party at least five (5) business days before disclosing Confidential or AEO discovery Material to any Expert, identifying the Expert by name, firm or employer, and address. The currently retained Experts in this Action are as follows:
(a) Defense Experts:
(i) Dr. Elinor Chazen, Lakeview Consulting Group LLC, 200 South Wacker Drive, Suite 1400, Chicago, Illinois 60606 (construction delay and damages analysis); and
(ii) Professor Gordon Whitfield, Pinnacle Economics LLC, 1700 Broadway, Suite 2200, New York, New York 10019 (economic damages and lost profits analysis).
(b) Plaintiff's Experts:
(i) James Ochoa, PE, Keystone Project Advisory LLC, 1500 Market Street, Suite 1200, Philadelphia, Pennsylvania 19102 (construction methodology and project management); and
(ii) Dr. Natalie Forster, Westbrook Valuation Services Inc., 100 Park Avenue, Suite 800, New York, New York 10017 (business valuation and financial damages analysis).
In the event that either party retains additional testifying or consulting experts during the course of this Action, such experts shall be subject to the same qualification requirements set forth in this Section 9.1.
9.2 Expert Reports. Expert reports that incorporate, reference, quote, or summarize Confidential or AEO discovery Material shall themselves be designated at the highest confidentiality level of the underlying material relied upon and shall be treated accordingly under this Stipulation. If an expert report contains both Confidential and AEO material, the report as a whole shall be designated as AEO. Notwithstanding the foregoing, if an expert report can be segregated into separate sections or volumes — with one or more sections containing only Confidential material and other sections containing AEO material — the parties are encouraged to designate such sections at the appropriate level rather than designating the entire report as AEO. Expert reports are due on March 31, 2025, and rebuttal expert reports are due on May 15, 2025, pursuant to the Preliminary Conference Order entered on October 1, 2024.
9.3 Expert Depositions. Expert depositions — anticipated to be conducted in June 2025, pursuant to the Preliminary Conference Order — shall be governed by the deposition provisions of Article 6, including the provisions regarding exclusion of non-qualified persons during examination on Confidential or AEO material, the forty-eight-hour advance notice requirement for use of AEO material, and the interim treatment of transcripts as AEO pending the expiration of the fifteen-business-day designation period.
ARTICLE 10: ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
10.1 Form of Acknowledgment. Every Qualified Person (other than Outside Counsel, Coverage Counsel, court personnel, court reporters, videographers, and E-discovery Vendor personnel, who are bound by this Stipulation by virtue of their roles as described herein) who is to receive access to Confidential or AEO discovery Material must execute the Acknowledgment and Agreement to Be Bound in the form attached hereto as Exhibit A before accessing any such material. No Confidential or AEO discovery Material shall be disclosed to any individual required to execute the Acknowledgment until the executed Acknowledgment has been received by counsel for the party on whose behalf the individual is signing.
10.2 Retention of Executed Acknowledgments. Executed Acknowledgments shall be retained by counsel for the party on whose behalf the individual executes the form. Counsel shall maintain a log of all executed Acknowledgments, including the name of the individual, the date of execution, and the confidentiality level(s) to which the individual has been granted access. Executed Acknowledgments shall be produced to the opposing party upon written request within five (5) business days of such request. Counsel are not required to proactively serve copies of executed Acknowledgments on opposing counsel, except as may be specifically required by other provisions of this Stipulation (e.g., the advance notice requirements for designated in-house representatives and Experts).
10.3 Content of Acknowledgment. The Acknowledgment and Agreement to Be Bound shall provide that the individual executing the form:
(a) Has received, read, and understands the Stipulation and [Proposed] Order Regarding Confidentiality of discovery Materials dated October 1, 2024, in its entirety;
(b) Agrees to be bound by all terms and conditions of the Stipulation as if the individual were a signatory thereto;
(c) Agrees to maintain the confidentiality of all Confidential and AEO material received pursuant to the Stipulation and to take all reasonable precautions to prevent the unauthorized disclosure of such material;
(d) Agrees not to disclose Confidential or AEO material to any person who is not authorized to receive such material under the terms of the Stipulation;
(e) Submits to the personal jurisdiction of the Supreme Court of the State of New York, County of New York, for purposes of any proceedings relating to the enforcement of the Stipulation or any order entered pursuant thereto; and
(f) Acknowledges that any violation of the terms of the Stipulation may subject the individual to sanctions, including but not limited to contempt of court, and may give rise to liability for damages suffered by the Producing Party as a result of such violation.
The form of Acknowledgment and Agreement to Be Bound is attached hereto as Exhibit A and incorporated herein by reference.
ARTICLE 11: INADVERTENT PRODUCTION / CLAWBACK
11.1 Inadvertent Production of Privileged Material. The inadvertent production of any document, ESI, or other information that is subject to the attorney-client privilege, the work product protection, or any other applicable privilege, immunity, or protection from disclosure shall not constitute a waiver of such privilege, immunity, or protection, regardless of the circumstances of the inadvertent production, including but not limited to: the number of inadvertently produced documents; the nature of the review process (manual, technology-assisted, or otherwise) that preceded the production; the scope and extent of the inadvertent disclosure; and the actions taken by the Producing Party following discovery of the inadvertent production. Upon providing written notice of inadvertent production (by letter or email) to the Receiving Party — which notice shall identify the specific documents or information at issue and the privilege or protection asserted — the Receiving Party shall, within five (5) business days of receipt of such notice:
(a) Return, sequester, or destroy all copies of the inadvertently produced material, including any copies maintained in electronic form on the Vantage Litigation Support LLC document review platform or any other system, and shall purge any copies from all electronic repositories, databases, and storage media within its custody or control;
(b) Not use or refer to the inadvertently produced material for any purpose, including in any deposition, motion, hearing, trial, or other proceeding, unless and until the designation is challenged and the Court orders that the material is not privileged or otherwise protected; and
(c) Certify in writing (by letter or email) to the Producing Party that it has complied with the requirements of subsections (a) and (b) above, including confirmation that all copies have been returned, sequestered, or destroyed and that all electronic copies have been purged.
This provision operates in conjunction with the agreed E-discovery Protocol (the Stipulated E-discovery Protocol and ESI Agreement filed concurrently herewith on October 1, 2024), which governs, among other things, the procedures for document collection, processing, review, and production by Vantage Litigation Support LLC, and includes additional provisions relating to the handling of potentially privileged material identified during the review process. This provision is particularly significant in this Action given the substantial volume of privileged documents at issue, including the 214 privileged documents identified on Northgate's privilege log and the 187 documents identified on Meridian's privilege log, which are currently the subject of dispute between the parties and which are the subject of the privilege motions scheduled for oral argument on January 27, 2025.
11.2 Federal Rule of Evidence 502(d) Equivalent. The parties agree, and respectfully request that the Court so order, that the protections of this Article 11 shall be enforceable as a court order and shall provide protections equivalent to those afforded by Federal Rule of Evidence 502(d), to the maximum extent applicable in state court proceedings. Specifically, the parties request that the Court order that the disclosure of any privileged or work product protected communication or information in connection with this Action shall not constitute a waiver of the privilege or protection in any other federal or state proceeding, and that this order shall be binding on all persons and entities, whether or not they are parties to this Action. The parties acknowledge that the applicability of FRE 502(d) in New York state court proceedings is subject to legal limitations, and that this provision is intended to provide the maximum available protection against inadvertent waiver under applicable New York law, including CPLR 3103 and the common law of the State of New York.
ARTICLE 12: MODIFICATION OF DESIGNATIONS BY AGREEMENT
12.1 Upgrading. A Producing Party may upgrade the confidentiality designation of previously produced discovery Material at any time by providing written notice (by letter or email) to all parties, identifying the specific material to be upgraded and the new confidentiality designation. Upon receipt of such notice, the Receiving Party shall promptly treat the material at the upgraded designation level and shall take reasonable steps to retrieve or segregate any copies of such material that may have been disseminated to persons who are not authorized to receive material at the upgraded level.
12.2 Downgrading. A Producing Party may downgrade or remove the confidentiality designation of previously produced discovery Material at any time by providing written notice (by letter or email) to all parties, identifying the specific material to be downgraded and the new confidentiality designation (if any). Upon receipt of such notice, the Receiving Party may treat the material at the downgraded designation level or as non-confidential, as applicable, from the date of receipt of such notice.
ARTICLE 13: RETURN OR DESTRUCTION OF MATERIALS AT CONCLUSION OF THE ACTION
13.1 Obligation to Return or Destroy. Within sixty (60) days of the final resolution of this Action — defined as the entry of a final judgment or order disposing of all claims and counterclaims, including the exhaustion of all appellate rights and the expiration of all applicable appeal periods — each Receiving Party shall, at the election of the Producing Party (to be communicated in writing within thirty (30) days of the final resolution):
(a) Return all discovery Material designated as Confidential or AEO to the Producing Party, including all originals, copies, excerpts, summaries, abstracts, compilations, notes, and any other materials derived from or incorporating such discovery Material; or
(b) Destroy all discovery Material designated as Confidential or AEO, including all originals, copies, excerpts, summaries, abstracts, compilations, notes, and any other materials derived from or incorporating such discovery Material, and certify such destruction in writing to the Producing Party, executed by a partner or authorized representative of Outside Counsel. The certification shall confirm that all hard copies have been shredded or otherwise destroyed and that all electronic copies have been permanently deleted from all systems, databases, repositories, and storage media within the Receiving Party's custody or control, including the Vantage Litigation Support LLC document review platform.
If the Producing Party does not communicate its election within the thirty (30) day period specified above, the Receiving Party may satisfy its obligation under this Section by either returning or destroying the material, at the Receiving Party's election.
13.2 Exception — Counsel's Files. Notwithstanding Section 13.1, Outside Counsel for each party may retain one (1) archival copy of all discovery Material (including Confidential and AEO material) in counsel's files, subject to the continuing confidentiality obligations of this Stipulation, for purposes of compliance with professional responsibility obligations under the New York Rules of Professional Conduct, document retention policies of counsel's firm, and in the event of any malpractice claim, disciplinary proceeding, fee dispute, or other proceeding in which counsel's representation in this Action may be at issue. The archival copy retained under this exception shall be maintained in a secure location and shall be accessible only to attorneys and authorized personnel of Outside Counsel.
13.3 Exception — Court Filings. discovery Material that has been filed with the Court, whether under seal or otherwise, and material that has been admitted into evidence at trial or other proceedings, need not be returned or destroyed, and shall be subject to the Court's rules and orders regarding the retention and disposition of court records.
ARTICLE 14: MISCELLANEOUS PROVISIONS
14.1 No Waiver of Objections. Nothing in this Stipulation shall be construed as a waiver of any party's right to object to the production of any discovery Material on grounds of relevance, privilege, burden, proportionality, or any other applicable ground under the CPLR or other applicable law. The execution of this Stipulation shall not be deemed an admission by any party that any particular discovery Material is relevant, admissible, discoverable, or responsive to any discovery request. The parties expressly reserve all objections to discovery requests, and the existence of this Stipulation shall not be cited as a basis for compelling the production of any discovery Material over a party's objection.
14.2 No Waiver of Confidentiality. The production or disclosure of discovery Material in accordance with this Stipulation shall not constitute a waiver of any claim of confidentiality, trade secret protection, proprietary right, or any other form of protection in such material, whether in this Action or in any other proceeding in any jurisdiction. No party shall argue or contend in any proceeding that the production of discovery Material in this Action pursuant to this Stipulation constitutes a waiver of confidentiality or trade secret protection, or that such production demonstrates that the Producing Party does not consider the material to be confidential or proprietary.
14.3 Enforcement. Any party or non-party bound by this Stipulation may seek enforcement of its terms through application to the Court, which shall retain jurisdiction for this purpose throughout the pendency of this Action and thereafter. The Court shall have the authority to impose remedies for breach of this Stipulation, including but not limited to injunctive relief, contempt of court, monetary sanctions, suppression of improperly disclosed material, adverse inference instructions, and any other relief the Court deems appropriate under the circumstances. The availability of any particular remedy shall not preclude the pursuit of any other remedy, and all remedies shall be cumulative and not exclusive.
14.4 Governing Law. This Stipulation shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law. This provision is consistent with Section 22.1 of the Master Construction Agreement dated March 15, 2020, which provides that the MCA shall be governed by and construed in accordance with the laws of the State of New York.
14.5 Amendment. This Stipulation may be modified, amended, or supplemented only by: (a) a written agreement of the parties, signed by counsel of record for each party, and approved by the Court by "So Ordered" endorsement; or (b) an order of the Court entered on application of any party upon notice to all other parties and an opportunity to be heard. No oral modification of this Stipulation shall be effective, and no waiver of any provision shall be deemed to constitute a waiver of any other provision or a continuing waiver of the same provision.
14.6 Binding Effect. This Stipulation shall be binding upon the parties hereto, their respective counsel of record, and all persons who receive discovery Material subject to this Stipulation, including but not limited to Experts, consulting experts, designated in-house representatives, E-discovery Vendor personnel, Coverage Counsel, and any other individual who executes the Acknowledgment and Agreement to Be Bound. This Stipulation shall also be binding upon the successors, assigns, and transferees of the parties, to the extent that any such successor, assign, or transferee comes into possession of discovery Material subject to this Stipulation.
14.7 Survival. The obligations of confidentiality imposed by this Stipulation shall survive the termination of this Action, including the entry of final judgment, the exhaustion of all appellate rights, and the return or destruction of discovery Material pursuant to Article 13. The confidentiality obligations set forth herein sh