PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT

PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT
Privilege Review Protocol and Guidelines
Matter: Solara Digital Infrastructure LP — FTC Second Request Compliance (FTC File No. 231-0487)
Prepared by: Monica Reyes, Senior Associate, and Elliot Nguyen, Associate, Antitrust & Competition Group, Calderwood & Harkness LLP
Supervised by: Howard Bellamy, Partner, Antitrust & Competition Group, Calderwood & Harkness LLP
E-discovery Consultation: Tamara J. Westbrook, Of Counsel, Litigation Technology & E-discovery, Calderwood & Harkness LLP
Date: June 15, 2023
Distribution: Contract review team (22 attorneys) managed by Keymark Document Solutions LLC (Daniel S. Fong, Project Manager); Calderwood & Harkness engagement team (Bellamy, Reyes, Nguyen, Westbrook)
Calderwood & Harkness LLP 1900 K Street NW, Suite 800 Washington, DC 20006
Keymark Document Solutions LLC 7600 Leesburg Pike, Suite 320 Falls Church, VA 22043
CONFIDENTIALITY LEGEND: This memorandum constitutes attorney work product prepared in anticipation of litigation and for purposes of rendering legal advice to Solara Digital Infrastructure LP and its affiliates. Distribution is limited to authorized personnel only. This document and all information contained herein are protected by the attorney-client privilege, the attorney work product doctrine, and all other applicable privileges and protections. Do not forward, copy, or otherwise distribute without prior written approval from Monica Reyes or Elliot Nguyen.
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I. PURPOSE AND SCOPE
A. Purpose of This Protocol
This memorandum establishes the uniform procedures, privilege categories, tagging conventions, escalation workflows, and quality control standards to be followed by all reviewers engaged in the privilege review of documents collected in connection with the Second Request issued by the Federal Trade Commission on May 29, 2023, in FTC File No. 231-0487 (the "Second Request"). Strict adherence to this protocol is essential to ensure that privileged and work product materials are properly identified, protected, and logged, while simultaneously ensuring that the production of responsive, non-privileged materials proceeds efficiently and in compliance with the Commission's requirements.
The Second Request arises from the proposed acquisition of one hundred percent (100%) of the outstanding capital stock of Pinnacle Cloud Systems, Inc. ("Pinnacle" or the "Target") by Solara Digital Infrastructure Fund IV LP ("Fund IV"), a fund managed by Solara Digital Infrastructure LP ("Solara"), at a total enterprise value of $1.63 billion (the "Transaction"). Fund IV intends to consummate the Transaction through its wholly owned subsidiary, PCS Acquisition Corp., a Delaware corporation formed solely for the purpose of effectuating the acquisition.
The FTC's investigation centers on two principal theories of potential competitive harm. First, the Commission is examining potential horizontal overlap in cloud-based portfolio analytics and performance attribution software for institutional asset managers, where both Pinnacle and Meridian Workflow Solutions, Inc. ("Meridian"), an existing Solara portfolio company, are active participants. Second, the Commission has identified potential vertical foreclosure concerns arising from the anticipated integration of Pinnacle's analytics platform with Meridian's SaaS-based trade order management system ("OMS") and execution management system ("EMS") software. These theories are reflected in the specifications contained in the Second Request and will shape the substantive review of documents across all custodians.
Compliance with this protocol is mandatory for all twenty-two (22) contract review attorneys retained through Keymark Document Solutions LLC and all Calderwood & Harkness LLP attorneys working on the matter. Failure to follow these procedures may result in the inadvertent production of privileged materials, the over-designation of privilege (which may invite challenge and sanctions from the FTC), or other errors that could have significant adverse consequences for the client. Every reviewer is expected to read this protocol in its entirety, attend the mandatory training session described in Section X below, and consult it regularly throughout the review process.
B. Scope of the Review
The review universe consists of approximately 487,000 documents remaining after de-duplication, de-NISTing, and date and keyword filtering from an initial collection of approximately 1.24 million documents. The reduction from the initial collection to the review universe was accomplished through standard e-discovery processing protocols, including the application of search terms negotiated with FTC staff and the exclusion of system files, application files, and other clearly non-responsive file types.
Documents were collected from eighteen (18) custodians on the Solara side, organized as follows:
•  Solara Digital Infrastructure GP LLC / Fund IV management and investment team: Twelve (12) custodians, including but not limited to Graham A. Whitfield (Founding Partner & CEO), Sandra K. Levinson (Co-Managing Partner & CIO), and other members of the investment, operations, and finance teams identified in Appendix A.
•  Meridian Workflow Solutions, Inc. management: Six (6) custodians, including CEO Priya N. Raghavan and other members of the Meridian executive team identified in Appendix A.
The Second Request contains forty-seven (47) specifications covering documents and data relating to, among other topics, relevant product and geographic markets, competition and competitive conditions, pricing practices and methodologies, customer acquisition and switching costs and patterns, barriers to entry and expansion, integration planning and anticipated synergies, financial projections and business plans, and the Transaction rationale. A summary of all forty-seven specifications is attached as Appendix E for reviewer reference in assessing responsiveness alongside privilege.
The ultimate production will be assigned sequential Bates numbers in the range SDILP-2R-000001 through the final produced document. All documents will be produced in the format specified by the FTC's standard production specifications, as confirmed in correspondence with FTC Bureau of Competition staff.
A separate privilege log will be generated for all documents withheld in full or redacted in part on privilege grounds. The privilege log will comply with the standards described in Section VII below and will be produced to FTC staff concurrently with or shortly after the filing of Solara's Substantial Compliance Certification.
C. Applicable Protective Agreements
On June 9, 2023, Calderwood & Harkness LLP, on behalf of Solara, and FTC Bureau of Competition, Mergers IV Division staff, executed a Clawback / Non-Waiver Agreement (the "Clawback Agreement") governing the inadvertent production of privileged materials. The Clawback Agreement is designed to implement the principles of Federal Rule of Evidence 502(d) and provides a procedural framework for the prompt identification, notification, and return or destruction of any privileged or work product materials that are inadvertently included in a document production.
The key provisions of the Clawback Agreement include the following:
•  Inadvertent production of privileged or work product materials shall not constitute a waiver of any applicable privilege or protection, whether as to the specific documents inadvertently produced or as to any other documents covering the same subject matter.
•  The producing party shall provide prompt written notice to the receiving party upon discovery of any inadvertent production, identifying the affected documents by Bates number.
•  Upon receipt of such notice, the receiving party shall promptly return, sequester, or destroy all copies of the identified materials and shall not use or refer to such materials in any proceeding.
•  The agreement incorporates the terms of the FTC Model Stipulated Protective Order governing the treatment of confidential business information produced in the course of the investigation.
A full executed copy of the Clawback Agreement is attached as Appendix D. All reviewers should familiarize themselves with the agreement's provisions.
Critical Note: Although the Clawback Agreement provides an important safety net against the consequences of inadvertent disclosure, it is emphatically not a substitute for rigorous, careful privilege review. Reviewers must exercise the same degree of care and diligence in identifying and protecting privileged materials as if no clawback agreement existed. The Clawback Agreement is a last resort, not a first line of defense. Reliance on the clawback mechanism to correct avoidable errors is unacceptable and may result in removal from the project.
No court order under FRE 502(d) was obtained in connection with the Clawback Agreement because this matter is being resolved at the agency level before the Commission and does not involve pending litigation in any Article III court. The stipulated agreement between the parties governs the treatment of inadvertent disclosures in lieu of a court order.
D. Key Parties and Counsel Reference List
The following is a comprehensive reference list of the key parties, their personnel, and their counsel. Reviewers must become thoroughly familiar with these names and relationships. Accurate identification of parties and their counsel is the foundation of sound privilege analysis. This list should be consulted whenever a reviewer encounters an unfamiliar name in a document.
1. Client / Acquirer
Solara Digital Infrastructure LP (and affiliates: Solara Digital Infrastructure GP LLC, Solara Digital Infrastructure Fund IV LP, PCS Acquisition Corp.)
•  Graham A. Whitfield — Founding Partner & CEO
•  Sandra K. Levinson — Co-Managing Partner & CIO
•  Additional custodians and personnel identified in Appendix A
2. Target.  Pinnacle Cloud Systems, Inc.
•  Nathaniel R. Okonkwo — CEO
•  Diane M. Hartwell — CFO
•  Marcus E. Culberson — General Counsel
Important Note Regarding Pinnacle General Counsel: Marcus E. Culberson serves as General Counsel of Pinnacle, the target company in the Transaction. Pinnacle is not a client of Calderwood & Harkness LLP, and communications with Culberson are not privileged on behalf of Solara or its affiliates unless such communications fall within the scope of a joint defense or common interest arrangement, as described in Section II.C below. Reviewers should not automatically tag communications involving Culberson as privileged. Such communications require careful analysis and, if uncertain, should be escalated pursuant to Section IV.
3. Existing Portfolio Company
Meridian Workflow Solutions, Inc.
•  Priya N. Raghavan — CEO
•  Additional custodians and personnel identified in Appendix A
4. Sellers.  
•  Thorngate Capital Partners LP — Approximate 58% holder of Pinnacle; Julian V. Strathmore, Managing Director
•  Crestline Ventures LLC — Approximate 20% holder of Pinnacle; Angela W. Frederickson, Managing Partner
•  Pinnacle management — Approximate 22% holder (various individuals)
5. Outside Counsel
•  Outside Counsel to Solara (Antitrust — this firm): Calderwood & Harkness LLP — Howard Bellamy (Partner), Monica Reyes (Senior Associate), Elliot Nguyen (Associate), Tamara J. Westbrook (Of Counsel, E-discovery) — 1900 K Street NW, Suite 800, Washington, DC 20006
•  Outside Counsel to Pinnacle / Sellers (Antitrust): Hargrove, Pelletier & Stein LLP ("HPS") — Catherine A. Pelletier (Partner), David L. Morrissette (Partner) — 2001 Ross Avenue, Suite 3600, Dallas, TX 75201
•  Outside Counsel to Thorngate (M&A): Ashford Crane LLP — Robert T. Ishikawa (Partner) — 555 Mission Street, Suite 2800, San Francisco, CA 94105
6. Economic Expert
•  Dr. Arvind Chakrabarti — Senior Economist, Calderwood & Harkness Economic Consulting
7. Financial Advisor
•  Redstone Advisory Group LLC — Elaine C. Davenport
8. Auditor.  
•  Fielding & Cascade Insurance Brokers — Thomas R. Sennett, CPA (Auditor for Pinnacle)
9. Lead Lender / Administrative Agent
•  Briarcliff National Bank, N.A. — Karen P. Aldridge
10. Entity EIN Reference Table
The following table of Employer Identification Numbers is provided for reference purposes to assist in entity identification:
A comprehensive chart of all attorneys and law firms that may appear in the documents under review, organized by party representation, is attached as Appendix B. That chart is designed to assist reviewers in quickly identifying communications that may trigger privilege analysis and should be kept accessible at all times during the review.
II. PRIVILEGE CATEGORIES
This section describes the three principal privilege categories applicable to this review: (A) attorney-client privilege, (B) work product doctrine, and (C) joint defense / common interest privilege. Reviewers must understand the elements, scope, and limitations of each category. Where a document implicates more than one category, all applicable tags should be applied, along with the PRIV-DUAL tag as described in Section III.B below.
A. Attorney-Client Privilege
1. Elements.  The attorney-client privilege protects confidential communications between a client (or an agent of the client) and an attorney (or an agent of the attorney) made for the purpose of seeking or providing legal advice. The essential elements of the privilege are:
(a) The communication must be between a client (or an authorized agent of the client) and an attorney (or an authorized agent of the attorney acting within the scope of the representation);
(b) The communication must have been made for the primary purpose of seeking, obtaining, or providing legal advice — as distinguished from business advice, financial advice, or general information;
(c) The communication must have been intended to be, and must have been actually kept, confidential — disclosure to third parties outside the scope of the representation or any applicable joint defense arrangement may destroy the privilege; and
(d) The privilege belongs to the client — in this matter, Solara, Meridian, or other client entities as applicable — and may be waived only by the client (or by authorized counsel acting on the client's behalf).
These elements must be satisfied for each communication for which attorney-client privilege is claimed. The burden of establishing the privilege rests with the party asserting it, and the FTC will scrutinize each privilege log entry for compliance.
2. Identifying Attorney-Client Privileged Communications in This Matter
In the context of this review, the following categories of communications are likely to be protected by the attorney-client privilege. Reviewers should be attentive to these patterns:
(a) Communications between Solara personnel and Calderwood & Harkness attorneys. Communications between Solara custodians (including Whitfield, Levinson, and other members of the Solara GP and Fund IV teams) and Calderwood & Harkness attorneys (Bellamy, Reyes, Nguyen, Westbrook) in which legal advice is sought or provided regarding the Transaction, the HSR filing, the Second Request, antitrust risk assessment, or any other legal matter within the scope of the engagement are presumptively privileged. This includes email communications, memoranda, telephone call summaries, and meeting notes.
(b) Communications between Meridian personnel and Calderwood & Harkness attorneys. Communications between Meridian custodians (including CEO Priya N. Raghavan) and Calderwood & Harkness attorneys regarding antitrust compliance, the Second Request specifications (particularly those calling for documents from Meridian regarding its competitive activities and integration planning), and competitive information provided for the purpose of enabling counsel to render legal advice are privileged. Because Meridian is a Solara portfolio company and is within the scope of Calderwood & Harkness's engagement, these communications are treated as client communications.
(c) Communications involving Pinnacle's General Counsel — important limitation. As noted above, Marcus E. Culberson serves as General Counsel of Pinnacle, the target company. Pinnacle is not a client of Calderwood & Harkness LLP. Accordingly, communications with Culberson are not privileged on Solara's behalf unless they are covered by a joint defense or common interest arrangement as described in Section II.C below. Do not tag communications with Culberson as PRIV-AC without separate analysis of whether the joint defense / common interest privilege applies.
(d) Internal client communications reflecting legal advice. Under the Upjohn Co. v. United States, 449 U.S. 383 (1981), doctrine, internal communications among client personnel that reflect, disclose, quote, summarize, or were made for the purpose of obtaining or transmitting legal advice from or to counsel are protected. For example, if Whitfield sends an email to Levinson summarizing legal advice received from Bellamy regarding the FTC's competitive concerns, that internal email is privileged even though no attorney is a party to the communication — provided the communication was made for the purpose of facilitating the rendition of legal advice and was kept confidential.
(e) Communications with Dr. Arvind Chakrabarti in a legal-advice capacity. Communications with Dr. Chakrabarti are privileged where he is functioning at the direction of Calderwood & Harkness counsel for the purpose of enabling the rendition of legal advice or preparing for potential litigation with the FTC. However, where Dr. Chakrabarti is performing standalone business consulting or economic analysis not directed by counsel and not in anticipation of litigation, such communications may not be privileged. See Section V.F below for additional guidance.
3. Common Pitfalls
Reviewers should be particularly alert to the following common pitfalls in attorney-client privilege analysis:
(a) Business advice versus legal advice. The mere presence of an attorney on a communication does not render it privileged. Communications that discuss business strategy, deal economics, operational matters, financial projections, or market conditions without a legal advice component are not privileged even if an attorney is copied, addressed, or participates in the communication. The determinative question is whether the primary purpose of the communication was the seeking or provision of legal advice. Where a communication contains both business and legal content, the reviewer must assess whether the legal advice component can be separated from the business content. If the two are inextricably intertwined, the entire communication may be privileged; if the legal advice is a discrete, severable portion, consider redaction of the privileged portion and production of the remainder.
(b) Forwarding chains and waiver. If a privileged communication is forwarded to a third party outside the attorney-client relationship and outside the scope of any applicable joint defense or common interest agreement, the privilege may be waived as to that communication. Reviewers must carefully examine email chains and forwarding histories to determine whether privileged content has been shared with non-privileged recipients. If such sharing has occurred, the reviewer should escalate to Tier 1 or Tier 2 for a waiver analysis.
(c) Pre-existing documents. Documents that existed prior to the establishment of the attorney-client relationship and were merely transmitted to counsel are not rendered privileged by the act of transmission. For example, a pre-existing financial model or market analysis created by Solara's investment team in the ordinary course of business does not become privileged simply because it was emailed to Calderwood & Harkness. However, the cover communication transmitting such a document to counsel for the purpose of obtaining legal advice may itself be privileged. In such cases, the cover email should be withheld (or the privileged content redacted), but the attachment should be reviewed independently and, if responsive and not independently privileged, produced.
(d) Communications with former counsel. If documents reflect communications with attorneys or law firms that previously represented Solara or its affiliates on matters related to the Transaction or to the competitive issues under investigation, those communications may be privileged as to the former client relationship. Escalate to Tier 1 if encountered.
(e) In-house counsel wearing multiple hats. To the extent any in-house counsel at Solara or Meridian is identified in the documents, reviewers should be attentive to whether the in-house attorney was acting in a legal capacity (privileged) or a business capacity (not privileged). Dual-role communications require careful analysis; escalate to Tier 2 if uncertain.
B. Work Product Doctrine
1. Elements.  The work product doctrine, first recognized in Hickman v. Taylor, 329 U.S. 495 (1947), and codified in Federal Rule of Civil Procedure 26(b)(3), protects materials prepared by or at the direction of an attorney in anticipation of litigation or for trial. The doctrine encompasses two categories of protected material:
(a) Opinion work product — Materials that reveal an attorney's mental processes, impressions, conclusions, opinions, or legal theories. Opinion work product receives near-absolute protection and is virtually never discoverable.
(b) Fact work product — Documents, tangible things, and factual compilations prepared in anticipation of litigation or for trial that do not reveal attorney mental processes. Fact work product receives qualified protection and may be overcome upon a showing of substantial need and inability to obtain the substantial equivalent without undue hardship.
For purposes of this review, "anticipation of litigation" includes preparation for potential FTC enforcement action (including the possibility that the Commission may seek a preliminary injunction in federal court to block the Transaction or issue an administrative complaint), administrative proceedings before the Commission, or any judicial challenge to the proposed Transaction. The issuance of the Second Request on May 29, 2023, establishes that the FTC is conducting a detailed investigation into the Transaction, and materials prepared by or at the direction of counsel in connection with that investigation and in anticipation of potential enforcement action qualify for work product protection.
2. Identifying Work Product in This Matter
The following categories of materials are likely to qualify as work product in this review:
(a) Calderwood & Harkness internal memoranda, legal analyses, strategy documents, and legal research related to the Second Request, market definition, competitive effects arguments, efficiencies analysis, and FTC advocacy strategy.
(b) Draft submissions to the FTC, including draft white papers, position papers, economic submissions, presentations, and correspondence prepared for submission to FTC staff.
(c) Attorney notes, including handwritten and typed notes of meetings, telephone calls, witness interviews, and case strategy sessions.
(d) Interview memoranda prepared by Calderwood & Harkness attorneys documenting interviews of client personnel or third parties conducted for purposes of the FTC investigation.
(e) Case assessments and strategic analyses prepared by any member of the Calderwood & Harkness team evaluating the strengths and weaknesses of the FTC's theories of harm.
(f) Litigation hold notices and related communications, to the extent they reflect legal strategy, the scope of anticipated litigation, or counsel's assessment of the matter — though the mere act of issuing a litigation hold, standing alone, may not constitute work product.
(g) Documents prepared by Dr. Arvind Chakrabarti at the direction of counsel reflecting economic analysis of competitive effects, market shares (including the combined analytics market share analysis of approximately 17.74%), market definition, entry and expansion analysis, and economic arguments to be presented to the FTC. These materials are work product to the extent they were prepared in anticipation of the FTC's investigation and potential enforcement action at the direction of Calderwood & Harkness attorneys.
(h) Draft privilege logs and privilege review analyses, including this protocol itself, which reflect counsel's legal judgments regarding the identification and protection of privileged materials.
3. Distinguishing Fact Work Product from Opinion Work Product
Reviewers must distinguish between fact work product and opinion work product, as the two categories receive different levels of protection and must be separately tagged and logged:
•  Tag as "WP-Opinion" (PRIV-WP-Opinion) if the document reveals an attorney's mental impressions, conclusions, opinions, or legal theories. Examples include: a memorandum in which an attorney assesses the likelihood that the FTC will challenge the Transaction; a strategy document identifying weaknesses in the client's position; an attorney's notes reflecting case evaluation or strategic thinking; and draft submissions with attorney comments reflecting legal strategy.
•  Tag as "WP-Fact" (PRIV-WP-Fact) if the document is a factual compilation, investigation result, or factual summary prepared in anticipation of litigation but does not reveal attorney mental processes. Examples include: a factual timeline of events prepared by a paralegal at counsel's direction; a compilation of customer data assembled for use in the FTC submission; and factual interview summaries that record only the substance of the interviewee's statements without attorney commentary.
Both categories must be tagged and logged on the privilege log. When in doubt as to the correct sub-category, tag as WP-Fact and escalate to Tier 1 for review.
C. Joint Defense / Common Interest Privilege
1. Elements.  The joint defense privilege (also referred to as the common interest privilege) is an extension of the attorney-client privilege that protects communications between parties who share a common legal interest. The essential elements are:
(a) The parties to the communication must share a common legal interest — not merely a common commercial or business interest;
(b) The communications must have been made in furtherance of that common legal interest; and
(c) A joint defense or common interest agreement should exist between the parties, either express or implied. While some jurisdictions recognize an implied common interest based on the circumstances, an express written agreement is strongly preferred and provides the most defensible basis for asserting the privilege.
2. Identifying Joint Defense / Common Interest Communications in This Matter
In the context of this Transaction, the following categories of communications are potentially protected by the joint defense / common interest privilege:
(a) Communications between Calderwood & Harkness LLP and Hargrove, Pelletier & Stein LLP. HPS represents Pinnacle and the Sellers for purposes of Second Request compliance. Calderwood & Harkness and HPS share a common legal interest in securing FTC clearance for the Transaction. Communications between the two firms regarding Second Request compliance coordination, privilege log coordination, joint advocacy strategy vis-à-vis the FTC, and the exchange of legal analyses concerning the FTC's theories of competitive harm are protected by the common interest privilege.
(b) Communications between Calderwood & Harkness and Ashford Crane LLP. Ashford Crane represents Thorngate Capital Partners LP in connection with the M&A aspects of the Transaction. To the extent that communications between Calderwood & Harkness and Ashford Crane concern the common interest in obtaining FTC antitrust clearance, such communications may be protected. However, communications regarding adversarial issues between the buyer and seller sides (as discussed below) are not covered.
(c) Communications between client personnel of both sides regarding clearance. Where client personnel from Solara and Pinnacle communicate about matters related to antitrust clearance (e.g., information gathering for the FTC submission, coordination of data production) at the direction of their respective counsel, such communications may be within the scope of the common interest privilege. However, this is a closer question and should generally be escalated to Tier 2 for analysis.
Both acquirer and target share the common interest of securing antitrust clearance for the Transaction. Communications between their respective counsel undertaken for that specific purpose are protected under the common interest privilege.
Important: If a formal common interest agreement has been executed between Calderwood & Harkness and HPS (or between any other combination of parties and counsel), the agreement should be referenced in the Relativity notes field when applying the PRIV-JD/CI tag. If no formal common interest agreement exists and a reviewer encounters a communication that appears to fall within the common interest, the reviewer should escalate to Monica Reyes before applying the PRIV-JD/CI tag.
3. Limitations.  The common interest privilege is not unlimited. Reviewers must be aware of the following important limitations:
(a) Adversarial communications. Communications regarding adversarial issues between buyer and seller — including indemnification disputes, purchase price adjustments, earn-out calculations, representations and warranties, closing condition negotiations, and post-signing disputes — are not covered by the common interest privilege. On these issues, the parties' interests are adverse, not common, and communications between their respective counsel on such topics are ordinary adversarial communications that are not protected.
(b) Business communications copied to attorneys. The common interest privilege does not protect ordinary business communications between the parties that happen to copy attorneys from both sides. The communication must be made for the purpose of obtaining or sharing legal advice regarding the common legal interest in antitrust clearance. Copying counsel as a courtesy or for informational purposes does not transform a business communication into a privileged one.
(c) Scope limitations. Even where a formal common interest agreement exists, the privilege extends only to communications made in furtherance of the defined common interest. Communications on topics outside the scope of the agreement are not protected.
(d) Waiver risks. If a common interest communication is disclosed to parties outside the common interest group, the privilege may be waived. Reviewers should be attentive to forwarding patterns and cc lists that include parties not within the common interest.
III. TAGGING WORKFLOW IN RELATIVITY
A. Review Platform
All privilege review will be conducted in the Relativity e-discovery platform hosted and managed by Keymark Document Solutions LLC. Keymark maintains the Relativity environment on secure, access-controlled servers and is responsible for user provisioning, workspace configuration, and technical support. No privilege review work may be performed outside the Relativity environment.
Daniel S. Fong serves as the Keymark Project Manager and is the primary technical point of contact for all platform-related issues, including user access provisioning, batch assignment and management, workflow configuration, search functionality, and any technical difficulties encountered during the review. Daniel may be reached at Keymark Document Solutions LLC, 7600 Leesburg Pike, Suite 320, Falls Church, VA 22043, or by the contact methods specified in Section XII below.
Reviewers who experience technical issues with the Relativity platform — including login difficulties, slow performance, search errors, coding field malfunctions, or any other platform issues — should contact Daniel Fong directly. Substantive questions about privilege analysis should not be directed to Keymark personnel; such questions should be addressed through the escalation framework described in Section IV.
B. Coding Fields and Tag Definitions
The Relativity workspace has been configured with the following coding fields and tag definitions. Reviewers must use these fields consistently and accurately. No other tags or ad hoc coding conventions may be used without prior approval from Monica Reyes or Elliot Nguyen.
1. Responsiveness Coding
Although the primary focus of this protocol is privilege review, reviewers conducting first-pass review will also code for responsiveness. The following responsiveness tags are available:
•  Responsive: The document falls within the scope of one or more of the forty-seven (47) Second Request specifications. Where possible, the reviewer should identify the specific specification number(s) in the Sterling Reach Software field.
•  Not Responsive: The document does not fall within the scope of any Second Request specification. Documents coded as Not Responsive will not be produced and need not be reviewed for privilege unless they are part of a family group that includes responsive documents.
•  Needs Further Review: Responsiveness cannot be determined without additional context, such as information about the custodian's role, the subject matter of the communication, or the relationship of the document to other documents in the collection. Documents coded as Needs Further Review should be routed to a senior reviewer for determination.
2. Privilege Coding — Primary Tags
The following primary privilege tags are to be used to identify the basis for any privilege claim:
•  PRIV-AC: Attorney-Client Privilege. Apply this tag when the document constitutes or contains a confidential communication between a client and an attorney (or their respective agents) made for the purpose of seeking or providing legal advice, as described in Section II.A above.
•  PRIV-WP-Fact: Work Product (Fact). Apply this tag when the document constitutes fact work product — a document or tangible thing prepared by or at the direction of an attorney in anticipation of litigation that does not reveal attorney mental processes, as described in Section II.B above.
•  PRIV-WP-Opinion: Work Product (Opinion). Apply this tag when the document constitutes opinion work product — material that reveals an attorney's mental impressions, conclusions, opinions, or legal theories, as described in Section II.B above.
•  PRIV-JD/CI: Joint Defense / Common Interest. Apply this tag when the document constitutes a communication made in furtherance of a common legal interest between parties with a joint defense or common interest arrangement, as described in Section II.C above.
•  PRIV-DUAL: Dual or Multiple Privilege Bases. Apply this tag when a document implicates more than one privilege category. When PRIV-DUAL is applied, the reviewer must also select all applicable primary privilege tags (e.g., PRIV-AC and PRIV-WP-Fact) to identify each specific basis for the privilege claim.
3. Privilege Coding — Disposition Tags
The following disposition tags determine how each document will be treated in the production:
•  WITHHOLD: The entire document is withheld from production on privilege grounds. This tag should be applied when the document is entirely privileged and no non-privileged portion can be meaningfully separated and produced. A privilege log entry will be generated for all documents tagged WITHHOLD.
•  REDACT: Privileged material within the document will be redacted; the remainder of the document will be produced. This tag should be applied when a document contains both privileged and non-privileged content that can be meaningfully separated. The reviewer should note in the Sterling Reach Software field the specific portions to be redacted and the privilege basis for each redaction. A privilege log entry will be generated for all documents tagged REDACT, with a notation that the document was produced in redacted form.
•  PRODUCE: No privilege applies to the document; the document will be produced in full. This tag should be applied to all responsive, non-privileged documents.
•  CLAWBACK-FLAG: The document was or may have been inadvertently produced in a prior rolling production, or the reviewer has identified a document in the production set that should have been withheld or redacted on privilege grounds. This tag triggers immediate escalation and potential invocation of clawback procedures under the June 9, 2023 Clawback Agreement. See Section VIII for detailed procedures.
4. Escalation Tags
The following escalation tags are used to route documents requiring higher-level review:
•  ESC-LEVEL1: Ambiguous privilege call requiring first-level review. Documents tagged ESC-LEVEL1 will be routed to Elliot Nguyen for resolution. See Section IV.A.1 below.
•  ESC-LEVEL2: Complex or high-risk privilege determination requiring second-level review. Documents tagged ESC-LEVEL2 will be routed to Monica Reyes for resolution. See Section IV.A.2 below.
•  ESC-LEVEL3: Highly sensitive, novel, or potentially dispositive privilege question requiring partner-level determination. Documents tagged ESC-LEVEL3 will be routed to Howard Bellamy for final resolution. See Section IV.A.3 below.
5. Document Type Tags
Reviewers must also code each document with the applicable document type tag. Accurate document type coding assists in efficient privilege log generation and in the identification of document patterns across the review universe. The available document type tags are:
•  Email
•  Attachment
•  Memorandum
•  Presentation
•  Spreadsheet
•  Board Materials
•  Financial Document
•  Contract/Agreement
•  Instant Message/Chat
•  Other
Where a document does not fit neatly into any of the above categories, the "Other" tag should be applied and the document type should be described in the Sterling Reach Software field.
C. Batching and Assignment
Documents will be assigned to reviewers in batches of approximately 250 documents per reviewer per day. Batch sizes may be adjusted based on document complexity, reviewer speed, and project timeline requirements, at the discretion of Daniel Fong in consultation with Elliot Nguyen.
Batches will be organized by custodian to the greatest extent practicable. Custodian-based batching allows reviewers to develop familiarity with each custodian's communication patterns, writing style, typical correspondents, and the substantive topics that custodian's documents tend to address. This familiarity significantly improves the accuracy and efficiency of privilege determinations.
Priority batching will be employed for custodians most likely to contain a high volume of privileged material. Specifically, the custodian files of Graham A. Whitfield, Sandra K. Levinson, Priya N. Raghavan, and other senior executives identified in consultation with the Calderwood & Harkness engagement team will be assigned to the most experienced reviewers and reviewed first. These custodians are most likely to have been in direct communication with Calderwood & Harkness attorneys, to have received and transmitted legal advice, and to have had access to attorney work product.
The twelve (12) Solara GP / Fund IV custodians and the six (6) Meridian custodians will be batched separately. This separation allows tailored privilege guidance to be provided by entity, as the privilege issues arising from Meridian custodian documents (which may involve questions about the scope of Calderwood & Harkness's representation of Meridian, the nature of competitive information provided by Meridian, and the treatment of integration planning documents) differ in certain respects from those arising from Solara GP / Fund IV custodian documents.
D. Family Grouping
Email families — consisting of a parent email and all associated attachments — must be reviewed together as a unit. Family grouping ensures that privilege determinations for parent emails and their attachments are consistent and that the relationship between a transmitting communication and the transmitted documents is properly analyzed.
The following rules govern the treatment of email families in the privilege review:
•  If a parent email is privileged (e.g., the email constitutes a communication seeking legal advice from Calderwood & Harkness), all attachments must nonetheless be reviewed independently. An attachment that is not itself privileged — for example, a pre-existing business document, financial model, or market analysis that was created in the ordinary course of business and merely transmitted to counsel — should be produced even if the transmitting email is withheld. In such cases, the parent email is tagged WITHHOLD and the attachment is tagged PRODUCE.
•  Conversely, if an attachment is privileged (e.g., a draft legal memorandum or attorney work product document) but the parent email is a non-privileged transmittal communication that does not itself contain legal advice, the parent email may be produced with the privileged attachment withheld and logged. The parent email is tagged PRODUCE and the attachment is tagged WITHHOLD.
•  Where both the parent email and one or more attachments are privileged, both should be tagged WITHHOLD and logged separately on the privilege log.
•  Where a parent email is partially privileged, the REDACT tag should be applied and the privileged portions identified in the Sterling Reach Software field. Attachments should still be evaluated independently.
Reviewers should pay careful attention to the family relationships displayed in the Relativity document viewer and should not make privilege determinations for a parent email without also reviewing the associated attachments, and vice versa.
IV. ESCALATION PROCEDURES
A. Three-Tier Escalation Framework
Privilege review inevitably involves judgment calls, and not every document will present a clear-cut privilege determination. When a reviewer encounters a document for which the privilege analysis is uncertain, ambiguous, or potentially high-risk, the document must be escalated through the three-tier framework described below. Prompt and appropriate escalation is essential to maintaining the quality and defensibility of the privilege review.
Reviewers should err on the side of escalation. It is far better to escalate a document unnecessarily than to make an incorrect privilege call that results in either the inadvertent production of privileged material or the over-designation of privilege.
Tier 1: Associate-Level Review (Elliot Nguyen)
All ambiguous privilege calls should be escalated to Elliot Nguyen by applying the ESC-LEVEL1 tag in Relativity. Elliot will monitor the Tier 1 escalation queue on a continuous basis throughout the review and will review escalated documents within twenty-four (24) hours of receipt. Upon review, Elliot will either resolve the escalation by applying the appropriate privilege tag and documenting the decision in the Relativity notes field, or further escalate the document to Tier 2 if the issue requires senior associate review.
Examples of issues appropriate for Tier 1 escalation include:
•  Communications that contain a mixture of business and legal advice where the reviewer is uncertain whether the primary purpose of the communication was the seeking or provision of legal advice;
•  Situations where it is unclear whether a particular individual was acting in a legal capacity (e.g., an in-house attorney who may have been providing business rather than legal guidance);
•  Borderline pre-existing document issues, where a document may have been created in the ordinary course of business but appears to have been substantially modified or annotated by counsel;
•  Questions about whether a particular recipient is within the scope of the attorney-client relationship or a common interest arrangement;
•  Email threading questions, such as whether a privileged communication in a thread has been waived by subsequent forwarding to a non-privileged recipient.
Tier 2: Senior Associate Review (Monica Reyes)
Complex or high-risk privilege determinations should be escalated to Monica Reyes by applying the ESC-LEVEL2 tag in Relativity. Tier 2 escalations may come directly from reviewers in extraordinary circumstances (i.e., where the issue is clearly beyond the scope of Tier 1 review) or from Elliot Nguyen following Tier 1 review. Monica will review Tier 2 escalations within forty-eight (48) hours and will either resolve the escalation or further escalate to Tier 3.
Examples of issues appropriate for Tier 2 escalation include:
•  Potential waiver issues, including communications in which privileged information appears to have been disclosed to third parties outside the privilege or common interest;
•  Communications involving multiple parties, some of whom may be outside the common interest arrangement, where the applicability of the joint defense / common interest privilege is uncertain;
•  Documents reflecting integration planning that contain legal advice embedded within business planning content, requiring careful analysis of what can be separated and redacted versus what must be withheld in full;
•  Documents that raise novel or unusual privilege questions not addressed by the specific guidance in this protocol;
•  Any document that, if incorrectly produced, could have significant strategic or substantive consequences for the client;
•  Disputes or inconsistencies among reviewer coding on related or similar documents.
Tier 3: Partner Review (Howard Bellamy)
The most sensitive and consequential privilege determinations are reserved for partner-level review by Howard Bellamy. Documents should be escalated to Tier 3 by applying the ESC-LEVEL3 tag. Tier 3 escalations will typically be routed through Monica Reyes, though in urgent circumstances, a document may be escalated directly to Tier 3.
Examples of issues appropriate for Tier 3 escalation include:
•  Novel privilege questions or issues of first impression for which there is no clear precedent or established firm position;
•  Documents that could be outcome-determinative if produced to the FTC — for example, communications reflecting counsel's assessment of the competitive effects of the Transaction, or documents that could be used by the FTC to support a theory of harm;
•  Any document for which there is a credible argument for clawback following inadvertent production;
•  Privilege questions that may require consultation with the client's senior management or with co-counsel at Hargrove, Pelletier & Stein LLP;
•  Any situation in which Tier 1 and Tier 2 reviewers disagree on the correct privilege determination.
Howard Bellamy will render a final determination on all Tier 3 escalations. His determination is binding on all reviewers and will be documented in the Relativity notes field.
B. Documentation of Escalation Decisions
Every escalation decision must be fully documented in the Relativity Notes field associated with the escalated document. The documentation must include the following elements:
1.  Reviewer name: The name of the contract reviewer who initiated the escalation.
2.  Date of escalation: The date on which the escalation was initiated.
3.  Basis for escalation: A concise description of the privilege issue or ambiguity that prompted the escalation.
4.  Resolution: The privilege tag applied upon resolution (e.g., PRIV-AC / WITHHOLD, or PRODUCE).
5.  Name of the person who resolved the escalation: The name of the Calderwood & Harkness attorney (Nguyen, Reyes, or Bellamy) who made the final determination.
Complete and accurate documentation of escalation decisions serves multiple purposes: it creates an auditable record of privilege determinations, facilitates consistency across the review team, and provides a defensible basis for privilege claims in the event of an FTC challenge.
Elliot Nguyen will compile escalation decisions into weekly summary reports for distribution to Monica Reyes and Howard Bellamy. These reports will identify trends in escalation patterns, recurring issues, and any systemic concerns that may warrant additional training or revised guidance.
C. Consultation with E-discovery Counsel
Tamara J. Westbrook, Of Counsel in Calderwood & Harkness's Litigation Technology & E-discovery group, should be consulted on any technical issues that affect the privilege review process. Tamara's expertise encompasses the intersection of technology and privilege analysis, and she is available to address questions including, but not limited to:
•  Metadata-based privilege indicators, such as document properties, file paths, or system-generated metadata that may provide evidence of whether a document was created at the direction of counsel or in the ordinary course of business;
•  Email threading issues, including the proper treatment of conversation threads that contain a mixture of privileged and non-privileged messages at different points in the thread;
•  Near-duplicate identification and its impact on privilege determinations — for example, where multiple near-duplicate versions of a document exist and some versions contain attorney annotations while others do not;
•  Search term and TAR (technology-assisted review) issues, to the extent that such tools are used to identify potentially privileged documents within the review universe;
•  Any questions about the Relativity workflow configuration, including batch assignment logic, escalation queue routing, and privilege log export templates.
Tamara may be contacted directly for technical and platform issues. Substantive privilege questions should continue to be routed through the Tier 1–3 escalation framework.
V. SPECIFIC GUIDANCE FOR COMMON DOCUMENT TYPES IN THIS MATTER
This section provides targeted guidance for the privilege analysis of document categories that reviewers are likely to encounter frequently in this review. The guidance below supplements, and should be read in conjunction with, the general privilege framework set forth in Section II.
A. Deal-Related Communications
The Transaction is documented by a Stock Purchase Agreement dated April 14, 2023 (the "Merger Agreement"), by and among Solara Digital Infrastructure Fund IV LP, PCS Acquisition Corp., Pinnacle Cloud Systems, Inc., Thorngate Capital Partners LP (as Sellers' Representative), and the Sellers named therein. Communications related to the negotiation, execution, and implementation of the Merger Agreement will appear frequently in the document collection. Reviewers must carefully distinguish among the following categories:
(a) Legal advice regarding the Transaction structure, representations and warranties, or regulatory conditions. Communications in which Calderwood & Harkness (or other counsel) provides legal advice regarding the structure of the acquisition, the terms of the Merger Agreement, the antitrust conditions to closing, regulatory representations and covenants, indemnification provisions, or other legal aspects of the Transaction are likely privileged. Apply PRIV-AC and WITHHOLD or REDACT as appropriate.
(b) Business negotiations regarding price and deal economics. Communications discussing the purchase price ($1.63 billion enterprise value, $1.19 billion cash consideration, approximately $440 million in rollover equity), valuation methodologies, financial modeling, and deal economics are generally not privileged, even if attorneys are copied or participate, unless the communication is intertwined with specific legal advice. Such communications are typically responsive to the Second Request specifications concerning the Transaction rationale and financial analysis.
(c) Financial advisor communications. Communications with Redstone Advisory Group LLC (Elaine C. Davenport) regarding valuation, financial analysis, capital markets, and deal structuring are generally not privileged. Financial advisors are not agents of the attorney for privilege purposes, and their analyses are business communications. However, in narrow circumstances where a financial advisor is specifically directed by counsel to perform an analysis for the purpose of rendering legal advice, such communications may be privileged — escalate to Tier 2 if this situation arises.
B. HSR Filing and Second Request Communications
All communications between Solara personnel and Calderwood & Harkness attorneys regarding HSR filing strategy, the preparation and submission of the HSR filing (filed April 28, 2023), the initial waiting period, and Second Request compliance are presumptively privileged and should be tagged PRIV-AC (and, where applicable, PRIV-WP-Fact or PRIV-WP-Opinion). These communications are at the core of the attorney-client relationship and reflect the rendition of legal advice regarding regulatory compliance and antitrust strategy.
Communications between Calderwood & Harkness and Hargrove, Pelletier & Stein LLP regarding coordination of the target's Second Request compliance may be covered by the common interest privilege. Where such communications are identified, apply the PRIV-JD/CI tag. As noted in Section II.C, if no formal common interest agreement has been executed, the reviewer should escalate to Monica Reyes before applying the PRIV-JD/CI tag.
Communications with FTC staff (e.g., Bureau of Competition, Mergers IV Division attorneys) are generally not privileged, as they are not confidential communications between attorney and client. Such communications may, however, be work product to the extent they reflect or were prepared in connection with Calderwood & Harkness's litigation strategy. Analyze each such communication on its facts and escalate if uncertain.
C. Integration Planning Documents
Documents concerning the planned integration of Pinnacle and Meridian are among the most sensitive documents in this review. They are highly relevant to the FTC's investigation because the Commission has specifically identified potential horizontal overlap in portfolio analytics and performance attribution software and potential vertical foreclosure concerns arising from the integration of Pinnacle's analytics platform with Meridian's OMS and EMS software. Integration planning documents are likely responsive to multiple Second Request specifications.
At the same time, integration planning documents may contain legal advice regarding gun-jumping risks, antitrust risk mitigation strategies, or the timing and sequencing of post-closing integration activities. Such legal advice is privileged.
Reviewers must carefully parse integration planning documents to separate responsive, non-privileged business content from privileged legal advice:
•  The underlying business plan for integration — including projected synergies, technology roadmaps, customer migration plans, personnel integration, and cost savings — is generally responsive and not privileged.
•  Legal advice regarding antitrust constraints on pre-closing integration activities (gun-jumping), antitrust risk mitigation measures for post-closing integration, or counsel's analysis of the competitive implications of specific integration steps is privileged.
•  When a document contains both categories of content, apply the REDACT tag and escalate to Tier 2 for redaction guidance. Monica Reyes will determine the appropriate scope of redaction to protect privileged legal advice while producing the responsive business content.
This is one of the most common and most challenging privilege issues in Second Request reviews. Reviewers should exercise particular care with integration planning documents and should err on the side of escalation.
D. Board Materials and Investment Committee Memoranda
Solara GP board materials and investment committee memoranda will appear in the collections of senior Solara custodians (particularly Whitfield and Levinson). These materials frequently contain embedded legal advice — for example, sections labeled "Legal Considerations," "Regulatory Risk," "Antitrust Analysis," or similar headings that reflect counsel's advice regarding the competitive implications of the Transaction, the likelihood and timing of regulatory clearance, or the legal risks associated with the Transaction.
Reviewers should apply the following approach to board and investment committee materials:
•  Review the document as a whole to determine whether it contains any privileged content.
•  If the document contains discrete sections reflecting legal advice (e.g., a "Legal Considerations" section within a larger investment committee memorandum), apply the REDACT tag and identify the privileged sections in the Sterling Reach Software field. The non-privileged portions of the document (e.g., financial analysis, market overview, investment thesis) should be produced.
•  Attachments to board presentations — such as financial models, market analyses, competitive landscape assessments, and customer lists — are generally not privileged even if the cover presentation to which they are attached contains legal advice. Review each component of a board package separately and make independent privilege determinations for each component.
•  If the legal advice in a board presentation is so pervasive that it cannot be meaningfully separated from the business content — for example, where the entire presentation is structured around counsel's legal analysis — tag as WITHHOLD and escalate to Tier 2 for confirmation.
E. Communications with Auditors and Financial Advisors
Reviewers will encounter communications with various third-party advisors in the document collection. The following guidance addresses the most common categories:
(a) Communications with Fielding & Cascade Insurance Brokers (auditors for Pinnacle). Communications between Pinnacle personnel and Fielding & Dunmore Benefits Consulting (Thomas R. Sennett, CPA) are business communications relating to financial audit and accounting services. Such communications are generally not privileged. The accountant-client privilege does not apply in federal proceedings, and audit-related communications do not fall within the attorney-client privilege or work product doctrine unless they were specifically prepared at the direction of counsel for a legal purpose (which would be unusual for audit communications).
(b) Communications with Redstone Advisory Group LLC (financial advisor to Solara). Communications between Solara personnel and Redstone Advisory Group (Elaine C. Davenport) regarding financial advisory services, valuation, and deal structuring are generally not privileged. Financial advisors are retained for business purposes, and their communications with clients do not fall within the attorney-client privilege. In narrow circumstances where Redstone was specifically directed by counsel to perform an analysis for purposes of rendering legal advice, a privilege argument may exist — but this is uncommon and should be escalated to Tier 2 if encountered.
(c) Communications with Briarcliff National Bank, N.A. (lead lender). Communications between Solara personnel and Briarcliff National Bank (Karen P. Aldridge) regarding the $825 million term loan facility being arranged to finance the cash consideration for the Transaction are business communications related to debt financing. Such communications are generally not privileged and should be tagged PRODUCE if responsive.
F. Communications with Dr. Arvind Chakrabarti
Dr. Arvind Chakrabarti serves as Senior Economist within Calderwood & Harkness Economic Consulting, an affiliated consulting group that provides economic analysis and expert services in connection with antitrust matters. The treatment of Dr. Chakrabarti's communications and analyses requires careful attention, as the privilege analysis depends on the capacity in which he was acting:
(a) Communications protected as work produ