PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
This document is protected by the attorney work product doctrine and is prepared in anticipation of litigation. It reflects the mental impressions, conclusions, opinions, and legal theories of counsel. Do not distribute outside the litigation team without authorization from the Responsible Partner.
DEPOSITION EXAMINATION OUTLINE
Natalie Gunderson
Vice President, Sales & Commercial
Cardinal Peak Industries
Prepared by: Simone Laroche, Senior Associate, and Jeffrey Park, Associate
Prepared for: Priya Anand, Responsible Partner
Date of Memorandum: January 12, 2023
Date of Deposition: January 18, 2023
Matter: Cardinal Peak Industries v. Nexford Industrial Holdings Inc., Case No. 2022-L-008471, Circuit Court of Cook County, Illinois, County Department, Law Division
Calderwood & Harkness Matter No.: 1005-00005
Location of Deposition: Calderwood & Harkness LLP, 200 South Wacker Drive, Suite 4400, Chicago, IL 60606
Court Reporter: To be arranged
Opposing Counsel Present (anticipated): Garrett Blackwood and/or Megan Hsu, Blackwood Stein & Associates LLP, 717 Seventeenth Street, Suite 2200, Denver, CO 80202
I. PRELIMINARY NOTES AND OBJECTIVES
A. Purpose of the Deposition
This deposition is the examination of the Cardinal Peak Industries ("CPI") witness most directly responsible for commercial pricing, surcharge calculation, and customer communications during the period at issue in this litigation. Natalie Gunderson serves as Vice President, Sales & Commercial, and was the primary CPI contact for surcharge-related matters with Nexford Industrial Holdings Inc. ("Nexford" or "NIH") during the entirety of the disputed period running from March 2021 through May 2022. Her testimony is expected to be central to both CPI's affirmative case and to Nexford's defenses and counterclaim. As the person with the most direct involvement in the invoicing and communication process, Gunderson is uniquely situated to provide admissions and establish key facts regarding the three principal categories of defenses Nexford intends to assert.
B. Key Objectives
The examination should be structured to accomplish the following six objectives, roughly in the order of their strategic priority:
1.  Establish Gunderson's personal knowledge of and involvement in the surcharge invoicing process under the MSA. The Master Supply Agreement at issue (MSA-NIH-CPI-2020-001, dated January 15, 2020) contains detailed surcharge provisions that governed the commercial relationship between the parties. Gunderson must be established as the individual at CPI with primary responsibility for, and personal knowledge of, the surcharge calculation, notice delivery, and invoicing process. This foundational testimony prevents CPI from later distancing Gunderson from the relevant facts or asserting that she lacked authority or knowledge.
2.  Confirm that Cardinal Peak failed to deliver compliant Surcharge Notices within the 15-business-day deadline prescribed by Section 7.4(a) for at least 7 of the 14 disputed months, supporting Nexford's defense that approximately $2.18 million in surcharges was waived. The MSA is unambiguous: Surcharge Notices must be delivered "no later than fifteen (15) business days after the end of the applicable month." This is a condition precedent to CPI's right to collect surcharges for any given month. Our analysis of the dates on the Surcharge Notices produced in discovery, cross-referenced against calendar calculations of the 15-business-day windows, establishes that at least 7 of the 14 disputed notices were untimely. Gunderson should be walked through each notice date and asked to confirm or deny timeliness.
3.  Demonstrate that Cardinal Peak used an internal "blended cost" metric for surcharge calculations rather than the published Ferrous Scrap Index (Platts/SPI) and Industrial Energy Cost Index mandated by Exhibit C (Surcharge Methodology), accounting for approximately $1.47 million in overstatement. This is the most technically complex area of the examination and the one where Gunderson is most likely to attempt evasion. The internal surcharge computation worksheets produced in discovery clearly show that CPI incorporated proprietary cost data—including internal logistics surcharges, plant-level energy allocation factors, and non-scrap raw material costs—that are not contemplated by Exhibit C. The resulting "blended cost" consistently exceeded the published index values, inflating the surcharges by an aggregate of approximately $1.47 million over the disputed period.
4.  Establish Gunderson's awareness (or lack thereof) of the 12% surcharge cap under Section 7.4(c) and that no prior written consent was obtained from Nexford for months where the cap was exceeded (approximately $1.08 million at issue across 4 months). Section 7.4(c) imposes a hard cap on monthly surcharges at 12% of the applicable Base Price absent prior written consent of the Buyer. Our analysis identifies four months during the disputed period where CPI's invoiced surcharges exceeded this cap, in some cases substantially. No written consent from Nexford authorizing cap exceedances has been produced in discovery, and Nexford's witnesses will confirm that none was given. Gunderson must be asked directly whether CPI sought or received written consent, and whether CPI had any internal process for monitoring compliance with this provision.
5.  Document Gunderson's communications with Nexford's procurement team, specifically Russell Okonkwo (VP, Procurement), regarding disputed invoices, and lock in any admissions regarding Nexford's objections. The email correspondence produced in discovery demonstrates that Okonkwo raised multiple objections to CPI's surcharge invoices during the disputed period, challenging both the timeliness of notices and the accuracy of calculations. Gunderson's acknowledgment of these communications undermines CPI's potential argument that Nexford acquiesced to the surcharges or failed to raise timely objections. Each key piece of correspondence should be put to Gunderson and her response documented.
6.  Develop testimony useful for Nexford's counterclaim (breach of contract / declaratory judgment, filed October 3, 2022) for $0.21 million alleged overpayment. Nexford has asserted a counterclaim for $210,000 in overpayment, representing amounts Nexford paid in excess of what would have been owed under a correct application of the MSA's surcharge provisions. Gunderson's testimony should help establish the factual predicate for this claim by confirming that Nexford made partial payments during the disputed period and that those payments, when measured against properly calculated surcharges, exceed the amounts actually owed.
C. Overall Framing
The total surcharges invoiced by CPI during the disputed period (March 2021 through May 2022) were $6.41 million. During this same period, Nexford made surcharge payments totaling $1.68 million. CPI's Complaint claims $4.73 million in unpaid surcharges (i.e., $6.41 million minus $1.68 million). CPI's expert, Dr. Theodore Voss of Pinnacle Economics Group LLC, further claims prejudgment interest of $0.38 million, bringing CPI's total claimed damages to $5.11 million.
Nexford's defenses, when properly applied, reduce CPI's valid surcharge claim to at most approximately $0.21 million beyond what Nexford already paid. There is some overlap among the three principal defense categories (late notices, methodology deviation, and cap exceedances), because some months implicate more than one defense. However, even conservatively accounting for that overlap, the defenses dramatically reduce—and in most scenarios eliminate—CPI's claimed damages. Moreover, Nexford's counterclaim for $0.21 million in overpayment turns the tables: on a net basis, CPI owes Nexford.
D. Key Documents to Use as Exhibits
The following categories of documents will be used as exhibits during the examination and should be prepared and tabbed in advance:
•  The MSA (MSA-NIH-CPI-2020-001, dated January 15, 2020), including all exhibits and schedules, with particular emphasis on Section 7.2 (base pricing), Section 7.4 (surcharge clause), Section 7.4(a) (notice requirements), Section 7.4(c) (cap provision), Section 7.4(d) (dispute procedure), Section 14.3 (dispute resolution), and Exhibit C (Surcharge Methodology).
•  All 14 disputed surcharge invoices and corresponding Surcharge Notices, organized chronologically by month.
•  The April 2021 Surcharge Notice and invoice (the non-disputed month), which will serve as a comparison baseline.
•  CPI internal surcharge computation worksheets produced in discovery, demonstrating the use of the blended cost metric.
•  Published Ferrous Scrap Index data (Platts/SPI) for the period March 2021 through May 2022.
•  Published Industrial Energy Cost Index data for the same period.
•  The Calderwood & Harkness / Meridian Bridge Consulting comparison spreadsheet (redacted version for use with the witness, or underlying data for live comparison).
•  Selected email correspondence between Natalie Gunderson and Russell Okonkwo regarding surcharge disputes.
•  The June 10, 2022 formal demand letter from Blackwood Stein & Associates LLP to Nexford.
•  The July 5, 2022 rejection letter from Deborah Whitfield (Nexford General Counsel) to Cardinal Peak.
•  CPI organizational chart or description of personnel involved in surcharge administration.
A full exhibit list with proposed exhibit numbers is set forth in Section XI below.
II. BACKGROUND AND FOUNDATION
A. Personal Background and Role
Begin the examination with standard background questions designed to establish Gunderson's identity, her position at Cardinal Peak Industries, and the scope of her responsibilities. These questions serve both to acclimate the witness to the deposition setting and to build the factual record that establishes her as a knowledgeable witness on the subjects at issue.
Suggested lines of inquiry:
•  Please state your full name for the record.
•  What is your current title and employer?
•  Confirm that she is Vice President, Sales & Commercial, at Cardinal Peak Industries.
•  How long have you held this position? When were you first appointed to this role?
•  What positions did you hold at CPI prior to becoming VP, Sales & Commercial?
•  Have you held similar positions at any other companies?
•  Describe your educational background — undergraduate degree, any graduate or professional degrees.
Turning to the witness's employer, establish the following facts about Cardinal Peak Industries for the record:
•  Cardinal Peak Industries is a Colorado limited liability company headquartered at 1580 Ridgeline Boulevard, Pueblo, Colorado 81001.
•  CPI is a regional steel producer and distributor specializing in flat-rolled steel products, specifically hot-rolled coil ("HRC") and cold-rolled coil ("CRC").
•  CPI's approximate annual revenue for fiscal year 2022 was approximately $415 million.
•  CPI operates production and distribution facilities in Colorado and serves customers throughout the western and central United States.
Establish the scope of Gunderson's responsibilities within CPI:
•  As VP, Sales & Commercial, Gunderson has oversight of commercial pricing for CPI's products.
•  She is responsible for managing customer relationships with CPI's major accounts.
•  She oversees surcharge administration — including the calculation, approval, and issuance of surcharge invoices — for CPI's supply agreements.
•  She is responsible for the invoicing process as it relates to surcharge pass-throughs.
Establish her reporting structure and key internal relationships:
•  Gunderson reports directly to Frank Delacroix, President and Chief Executive Officer of Cardinal Peak Industries.
•  In the course of her duties related to surcharge administration, she interacts with Harold Briggs, who serves as CPI's Controller, and who has responsibility for certain financial calculations underlying surcharge computations.
•  She also interacts with Patricia Morrow, CPI's General Counsel, on legal matters related to customer agreements and disputes.
B. Role in the Nexford Relationship
Having established Gunderson's general role, narrow the focus to her specific involvement with the Nexford account.
Suggested lines of inquiry:
•  When did you first become involved with the Nexford Industrial Holdings account?
•  What was the nature of your initial involvement — were you part of the team that pursued the Nexford business, or did you inherit an existing relationship?
•  Describe your role in the negotiation of the Master Supply Agreement dated January 15, 2020 (MSA-NIH-CPI-2020-001). Were you involved in drafting any of its terms? Did you participate in negotiations with Nexford personnel regarding the commercial terms?
•  Were you involved in the execution of the MSA? Did you sign it on behalf of CPI, or was it signed by someone else?
Establish Gunderson's understanding of the MSA's key commercial terms:
•  The MSA establishes base pricing for HRC at $620 per ton and for CRC at $740 per ton, as set forth in Section 7.2 of the Agreement.
•  The estimated annual volumes under the MSA are approximately 18,000 tons of HRC and 6,500 tons of CRC, for a total of approximately 24,500 tons per year.
•  At base prices, the estimated annual spend under the MSA is approximately $15.97 million (calculated as 18,000 tons × $620/ton + 6,500 tons × $740/ton = $11,160,000 + $4,810,000 = $15,970,000).
•  Ask Gunderson to confirm her understanding of these figures and whether they are consistent with her recollection of the commercial terms.
Establish her role as the primary CPI contact for Nexford on surcharge matters:
•  Were you the primary point of contact at CPI for Nexford on surcharge-related issues during the period March 2021 through May 2022?
•  If not, who else at CPI communicated with Nexford about surcharges?
•  Identify all CPI personnel who were involved in the surcharge process as it related to the Nexford account — including those who calculated surcharges, prepared Surcharge Notices, reviewed invoices, and communicated with Nexford.
Establish the nature and frequency of her interactions with Russell Okonkwo, Nexford's Vice President of Procurement:
•  Do you know Russell Okonkwo? What is his title and role at Nexford?
•  How frequently did you communicate with Mr. Okonkwo during the period March 2021 through May 2022?
•  By what means did you communicate — email, telephone, in-person meetings, or some combination?
•  What were the primary subjects of your communications with Mr. Okonkwo? Did those communications include discussions about surcharge amounts, surcharge calculations, the timeliness of Surcharge Notices, or disputes about surcharge invoices?
C. Knowledge of the Litigation
Before proceeding to the substantive examination topics, briefly establish Gunderson's awareness of the litigation itself and her role in supporting CPI's legal position.
Suggested lines of inquiry:
•  Are you aware that on June 10, 2022, the law firm of Blackwood Stein & Associates LLP sent a formal demand letter to Nexford on behalf of Cardinal Peak Industries?
•  Did you have any involvement in the preparation of that demand letter? Did you provide information or data to Blackwood Stein in connection with that letter?
•  Are you aware that on August 8, 2022, Cardinal Peak Industries filed a Complaint against Nexford Industrial Holdings in the Circuit Court of Cook County?
•  Have you reviewed the Complaint?
•  Are you aware that Nexford filed an Answer and Counterclaim on October 3, 2022?
•  What role, if any, have you played in providing information to CPI's counsel, Blackwood Stein & Associates, in connection with this litigation?
•  Did you review or contribute to CPI's answers to Nexford's interrogatories?
•  Did you participate in identifying or collecting documents for CPI's document production in this case?
Note: Do not probe communications with CPI's counsel in a manner that would invade attorney-client privilege. The goal here is simply to establish Gunderson's general awareness of the litigation and her role in supporting CPI's legal position. If Blackwood objects to any specific question, note the objection and move on.
III. THE MASTER SUPPLY AGREEMENT — SURCHARGE PROVISIONS
A. General Understanding of Section 7.4
This section of the examination is designed to establish Gunderson's understanding of the surcharge pass-through mechanism under Section 7.4 of the MSA. The goal is to have her articulate, in her own words, how the surcharge process works and to confirm that she understood the surcharge right to be conditional rather than automatic.
Suggested lines of inquiry:
•  Ms. Gunderson, I'd like to turn your attention to the Master Supply Agreement. Let me hand you what has been marked as Exhibit 1. Do you recognize this document?
•  Turning to Section 7.4 of the MSA, which is also separately marked as Exhibit 2 for ease of reference — can you describe, in your own words, how the surcharge pass-through mechanism works under this provision?
•  Allow the witness to provide her narrative explanation. Follow up as needed to ensure the record is clear.
Confirm her understanding of the scope of permitted surcharges:
•  Do you understand that Section 7.4 permits the Seller — that is, Cardinal Peak — to pass through to the Buyer — Nexford — "documented raw-material surcharges, including scrap, energy, and alloy surcharges, incurred during the applicable invoice period"?
•  Ask whether she agrees that the surcharges are limited to those categories of costs enumerated in Section 7.4 and detailed in Exhibit C.
•  Establish whether she understood surcharge pass-throughs to be subject to conditions set forth in the MSA — specifically, notice requirements, a prescribed calculation methodology, and a cap on the surcharge amount — or whether she understood the surcharge right to be automatic and unconditional.
•  If she contends the surcharge right was unconditional, probe her understanding of why Section 7.4(a), Exhibit C, and Section 7.4(c) exist in the agreement. What purpose, in her view, do those provisions serve?
B. Section 7.4(a) — Notice Requirements
This is one of the three critical contractual provisions underlying Nexford's defenses. The questioning must be thorough and precise, establishing both the contractual requirement and Gunderson's knowledge of it.
Suggested lines of inquiry:
•  Ms. Gunderson, let me direct your attention to Section 7.4(a) of the MSA. I will read the relevant language aloud for the record: "Seller shall deliver a Surcharge Notice with supporting documentation no later than fifteen (15) business days after the end of the applicable month. Failure to timely deliver the Surcharge Notice shall constitute a waiver of Seller's right to collect the surcharge for the applicable month."
•  Do you see that language in the MSA? Do you agree that I have read it accurately?
•  Were you aware, at all times during the period March 2021 through May 2022, that CPI was required to deliver Surcharge Notices within 15 business days after the end of each applicable month?
•  Who at CPI was responsible for preparing Surcharge Notices for the Nexford account?
•  Who at CPI was responsible for delivering those notices to Nexford — that is, actually transmitting them to the designated Nexford contact?
•  Describe CPI's internal process for tracking notice deadlines. Was there a calendar system, a spreadsheet, project management software, or any other tool used to ensure timely delivery?
•  Was there any automated reminder or tracking mechanism in place?
•  Were there any internal discussions at CPI — whether in emails, memoranda, meetings, or otherwise — about the timeliness of Surcharge Notices during the disputed period?
•  Did anyone at CPI ever express concern that Surcharge Notices were being delivered late?
•  Did you personally review Surcharge Notices before they were sent to Nexford? If so, what was the nature of your review — did you check the notice date, the calculation, both, or neither?
C. Exhibit C — Surcharge Methodology
This section establishes the contractually mandated methodology for calculating surcharges, which is the foundation for the blended cost argument to be developed in Section IV.
Suggested lines of inquiry:
•  Ms. Gunderson, I am handing you what has been marked as Exhibit 3, which is Exhibit C to the MSA, titled "Surcharge Methodology." Do you recognize this document?
•  Please describe, in your own words, your understanding of Exhibit C and what it requires.
•  Allow the witness to provide her explanation, then confirm the specific elements.
Confirm that Exhibit C prescribes surcharge calculations using:
(i) the published Ferrous Scrap Index as reported by Platts/SPI;
(ii) the Industrial Energy Cost Index;
(iii) applied to the agreed baseline scrap cost of $340 per ton; and
(iv) the agreed baseline energy cost of $48 per ton.
•  Do you agree that those are the inputs specified by Exhibit C for calculating monthly surcharges under the MSA?
•  Did you personally review or approve the surcharge calculations before they were sent to Nexford during the period March 2021 through May 2022?
•  If so, describe the nature of your review. Did you verify that the calculations used the inputs specified by Exhibit C?
•  Who at CPI performed the actual surcharge calculations — was it Harold Briggs (the Controller), a member of your team, or someone else?
•  Describe the chain of custody for surcharge computations: Who prepared the initial calculation? Who reviewed it? Who gave final approval? Who transmitted the Surcharge Notice to Nexford?
•  Was there any quality control or audit process in place to ensure that surcharge calculations complied with Exhibit C?
D. Section 7.4(c) — 12% Cap Provision
This section establishes the cap on monthly surcharges and Gunderson's awareness of it.
Suggested lines of inquiry:
•  Ms. Gunderson, I will now read into the record the language of Section 7.4(c) of the MSA: "In no event shall the aggregate monthly surcharge exceed 12% of the applicable Base Price for the relevant product category without prior written consent of Buyer."
•  Do you see that language? Do you agree I have read it accurately?
•  Were you aware of this 12% cap provision at all times during the disputed period?
•  Let me walk through the arithmetic. For HRC, the Base Price under the MSA is $620 per ton. Twelve percent of $620 is $74.40 per ton. So the maximum monthly surcharge CPI could invoice for HRC without Nexford's prior written consent was $74.40 per ton. Do you agree with that calculation?
•  For CRC, the Base Price is $740 per ton. Twelve percent of $740 is $88.80 per ton. So the maximum monthly surcharge for CRC without prior written consent was $88.80 per ton. Do you agree?
•  Did CPI have any internal process for flagging when surcharge calculations approached or exceeded the 12% cap for either product category?
•  Was there a system, a spreadsheet, or any other tool that tracked the surcharge-to-base-price ratio?
•  Did CPI ever seek written consent from Nexford — specifically from Russell Okonkwo or any other Nexford representative — to exceed the 12% cap for any month during the disputed period?
•  Did CPI receive written consent from Nexford to exceed the cap for any month?
•  Were there any verbal discussions with Nexford about exceeding the cap? If so, with whom did those discussions take place, when did they occur, and what was said?
E. Section 7.4(d) — Dispute Procedure
Establish the contractual dispute procedure and Gunderson's understanding of it.
Suggested lines of inquiry:
•  Ms. Gunderson, please turn to Section 7.4(d) of the MSA. This subsection provides that Buyer has 30 calendar days after receipt of a Surcharge Notice to deliver a written dispute notice to Seller, and that unresolved disputes shall be escalated to senior officers of each party for resolution within 15 business days.
•  Do you agree that this accurately describes the dispute procedure?
•  During the disputed period, did CPI receive timely dispute notices from Nexford for any of the 14 disputed months?
•  For how many months did CPI receive written objections from Nexford?
•  When CPI received a dispute notice from Nexford, what was CPI's internal process for responding? Was there an escalation to senior officers as contemplated by Section 7.4(d)?
•  If disputes were escalated, who were the senior officers involved on CPI's side — was it Frank Delacroix, or someone else?
•  Were any disputes resolved through the Section 7.4(d) process?
IV. SURCHARGE CALCULATION METHODOLOGY — BLENDED COST VS. PUBLISHED INDICES
This is the most critical substantive area of the examination and should receive the most time. The goal is to establish, through Gunderson's own testimony, that CPI deviated from the contractually mandated calculation methodology set forth in Exhibit C and instead used an internal "blended cost" metric that systematically inflated surcharge amounts.
A. Identification of CPI's Actual Methodology
Suggested lines of inquiry:
•  Ms. Gunderson, I am now going to hand you a series of documents that have been marked as Exhibits 19 through 25. These are internal CPI surcharge computation worksheets that were produced in discovery in this case. Do you recognize these documents?
•  Have you seen these documents before? Did you review them during the disputed period?
•  Were these worksheets prepared by your team, by Harold Briggs's team, or by someone else at CPI?
Select a representative month where the deviation between CPI's actual calculation and the Exhibit C methodology is most pronounced. March 2021 is a strong candidate, as it is the first disputed month and sets the pattern for the rest of the period.
•  Let me direct your attention specifically to Exhibit 19, which is the internal surcharge computation worksheet for March 2021. I'd like you to walk me through this document, line by line, and explain how CPI calculated the surcharge for that month.
•  Allow the witness to describe the calculation. Note each data input she identifies.
•  What data inputs did CPI use to arrive at the surcharge figure shown on this worksheet?
•  Did CPI use the published Ferrous Scrap Index as reported by Platts/SPI as the basis for the scrap component of the surcharge?
•  Did CPI use the published Industrial Energy Cost Index as the basis for the energy component?
•  If the answer to either question is no, ask what source of data CPI used instead.
Introduce the "blended cost" concept:
•  Ms. Gunderson, I see a line item on this worksheet labeled "Blended Raw Material Cost" (or whatever the precise label is — confirm the actual language from the worksheets in advance). Can you explain what CPI means by "blended cost" in this context?
•  Does the blended cost metric incorporate CPI's internal proprietary cost data?
•  Does it include cost components or factors that go beyond what Exhibit C specifies — for example, internal logistics costs, plant-level energy allocation factors, non-scrap raw material costs, or overhead allocations?
•  Is it fair to say that the blended cost metric reflects CPI's actual experienced costs, rather than the published index values that Exhibit C requires?
•  When did CPI begin using the blended cost metric for surcharge calculations on the Nexford account? Was it used from the inception of the MSA in January 2020, or did CPI begin using it at some later point during the disputed period?
•  Did anyone at CPI make a deliberate decision to deviate from the Exhibit C methodology? If so, who made that decision, when was it made, and what was the rationale?
•  Was Nexford ever informed — in writing or otherwise — that CPI was using a blended cost metric rather than the published indices specified in Exhibit C?
•  Did CPI seek Nexford's consent to use a different methodology?
B. Impact of Methodology Deviation
Having established that CPI used a different methodology, now demonstrate the financial impact.
Suggested lines of inquiry:
•  Ms. Gunderson, I am now going to show you a side-by-side comparison. Let me hand you what has been marked as Exhibit 28. This spreadsheet compares, for each of the 14 disputed months, the surcharge amount CPI calculated using its blended cost metric with the surcharge amount that would have resulted from applying the Exhibit C methodology — that is, using the published Ferrous Scrap Index and Industrial Energy Cost Index, applied to the agreed baseline costs of $340 per ton for scrap and $48 per ton for energy.
Note: If Blackwood objects to the use of the comparison spreadsheet, be prepared to walk Gunderson through the comparison using the underlying source data — the CPI worksheets (Exhibits 19–25), the published index data (Exhibits 26–27), and the Exhibit C methodology (Exhibit 3). This approach is more time-consuming but achieves the same result.
•  Looking at this comparison, do you see that for every disputed month, the surcharge calculated using CPI's blended cost metric exceeds the surcharge that would have been calculated under Exhibit C?
•  Do you agree that the aggregate difference over the 14 disputed months is approximately $1.47 million?
•  If the published indices had been used as prescribed by Exhibit C, do you agree that the surcharge amounts invoiced to Nexford would have been lower?
•  Can you point to any written authorization from Nexford approving the use of any methodology other than Exhibit C for calculating surcharges under the MSA?
C. Published Index Data
Establish that CPI had access to the contractually mandated data sources and chose not to use them.
Suggested lines of inquiry:
•  Ms. Gunderson, I am handing you Exhibit 26, which contains the published Ferrous Scrap Index data as reported by Platts/SPI for the period March 2021 through May 2022. Are you familiar with this index?
•  Did CPI have access to this published index data during the entire disputed period?
•  Did CPI subscribe to Platts/SPI or otherwise receive regular reports of the Ferrous Scrap Index?
•  I am also handing you Exhibit 27, which contains the published Industrial Energy Cost Index data for the same period. Did CPI have access to this data as well?
•  Given that CPI had access to both published indices during the entire disputed period, can you explain why CPI chose not to use these indices as required by Exhibit C?
•  Were there any internal communications at CPI — emails, memoranda, meeting minutes, or otherwise — discussing the choice to use the blended cost metric instead of the published indices?
•  Was this decision made at your level, or was it directed by someone above you in the organization?
•  Did Harold Briggs, the Controller, have any input into the decision to use the blended cost metric?
•  Did Patricia Morrow, CPI's General Counsel, review or approve the decision to deviate from Exhibit C?
Note: If Blackwood objects to questions about communications with Morrow on privilege grounds, do not press but preserve the question on the record. Pivot to asking about the factual basis for the decision without reference to legal advice.
V. TIMING OF SURCHARGE NOTICES
A. Identification of Late Notices
This section requires a methodical, month-by-month walk-through of each of the 14 disputed Surcharge Notices. The goal is to establish on the record the date each notice was delivered and whether it fell within the 15-business-day window prescribed by Section 7.4(a). This is a time-intensive process but is essential to locking in the timeliness defense for approximately $2.18 million in surcharges.
Suggested lines of inquiry:
•  Ms. Gunderson, we are now going to go through each of the 14 disputed months one at a time. For each month, I will show you the Surcharge Notice CPI sent to Nexford, and I will ask you to confirm the date it was delivered. We will then calculate together whether the notice was delivered within the 15-business-day deadline.
Proceed month by month through the disputed period. For each month (March 2021 through May 2022, excluding April 2021, which was paid in full and is not in dispute):
•  I am handing you Exhibit [4–17, as applicable], which is the Surcharge Notice for [month/year]. Do you recognize this document?
•  What is the date on this Surcharge Notice?
•  How was this notice delivered to Nexford — by email, by mail, by hand delivery, or by some other means?
•  The applicable month is [month/year]. The last day of that month was [date]. Counting forward 15 business days from [the last day of the applicable month], the deadline for delivery of the Surcharge Notice was [calculated deadline date]. Do you agree with that calculation?
•  Was this Surcharge Notice delivered on or before [calculated deadline date]?
•  If the notice was late: The notice is dated [date], which is [X] business days after the end of the applicable month. Do you agree that this notice was delivered after the 15-business-day deadline?
After completing the month-by-month walk-through, summarize the findings:
•  Ms. Gunderson, based on our review of the 14 Surcharge Notices, it appears that at least 7 of them were delivered after the 15-business-day deadline. Do you dispute that?
•  For each late notice, ask about the reason for the late delivery. Was it a staffing issue? A system or IT problem? A deliberate delay for some reason? An oversight?
•  Was the late delivery of these notices a systemic problem at CPI during this period, or were the delays isolated incidents?
•  Please calculate the aggregate dollar value of surcharges associated with the months where notices were delivered late. Our calculation shows approximately $2.18 million. Do you dispute that figure?
B. CPI's Internal Position on Late Notices
Having established that notices were late, probe CPI's position on the legal consequence of late delivery.
Suggested lines of inquiry:
•  Ms. Gunderson, what is CPI's position regarding Surcharge Notices that were delivered after the 15-business-day deadline? Does CPI contend that Nexford is still obligated to pay those surcharges?
•  On what basis does CPI take that position, given that Section 7.4(a) states that failure to timely deliver the Surcharge Notice "shall constitute a waiver of Seller's right to collect the surcharge for the applicable month"?
•  Is CPI aware of any written agreement between the parties that would excuse or extend the 15-business-day deadline?
•  Was there any course of dealing between the parties — that is, any prior pattern of conduct — where Nexford accepted and paid surcharges based on late notices?
•  Did Nexford ever expressly waive the 15-business-day requirement, whether in writing or verbally?
•  Are you aware of any internal CPI communications — emails, memoranda, or otherwise — discussing the timeliness issue and CPI's potential exposure related to late notices?
C. Nexford's Objections to Late Notices
Establish that Nexford did not silently accept late notices but instead raised timely objections.
Suggested lines of inquiry:
•  Ms. Gunderson, did Nexford — through Russell Okonkwo or any other representative — raise the issue of late Surcharge Notices with you or anyone else at CPI?
•  When was the timeliness issue first raised by Nexford? What was said, and by whom?
•  I am handing you Exhibits [29–35, as applicable], which include email correspondence between you and Mr. Okonkwo. Let me direct your attention to [specific email]. In this email, Mr. Okonkwo writes [quote relevant language objecting to late notice]. Do you see that?
•  Did you respond to this email? If so, what did you say?
•  Did CPI take any corrective action in response to Nexford's objections about late notices?
•  Did the timeliness of CPI's notices improve after Nexford raised the issue, or did late notices continue?
VI. THE 12% SURCHARGE CAP — SECTION 7.4(c)
A. Identification of Cap Exceedances
This section focuses on the four months during the disputed period where CPI's invoiced surcharges exceeded the 12% cap set forth in Section 7.4(c).
Suggested lines of inquiry:
•  Ms. Gunderson, I'd like to turn now to the 12% cap provision we discussed earlier — Section 7.4(c) of the MSA. I am going to walk you through four specific months where our analysis shows that CPI's invoiced surcharges exceeded the 12% cap.
For each of the four months in question:
•  I am handing you the surcharge invoice for [month/year], which is part of Exhibit [number]. The invoice shows a total surcharge of [amount] for HRC shipments totaling [tonnage] tons and [amount] for CRC shipments totaling [tonnage] tons.
•  For HRC, the surcharge per ton was [calculated amount]. The Base Price for HRC is $620 per ton. That means the surcharge represents [calculated percentage]% of the Base Price. Do you agree?
•  That exceeds the 12% cap of $74.40 per ton by [calculated amount] per ton. Do you agree?
•  Perform the same calculation for CRC where applicable.
•  Do you agree that the surcharge CPI invoiced for [month/year] exceeded the 12% cap?
After walking through all four months:
•  Ms. Gunderson, we have now identified four months during the disputed period where CPI's surcharges exceeded the 12% cap. The aggregate excess above the cap across those four months totals approximately $1.08 million. Do you dispute that figure?
B. Written Consent
Establish the absence of the prerequisite for exceeding the cap.
Suggested lines of inquiry:
•  Ms. Gunderson, Section 7.4(c) provides that the 12% cap may be exceeded only with "prior written consent of Buyer." Did CPI seek written consent from Nexford before invoicing surcharges in excess of the cap for any of those four months?
•  Did CPI receive written consent from Nexford to exceed the cap for any month during the disputed period?
•  Can you produce or identify any document constituting written consent from Nexford to exceed the 12% surcharge cap?
•  Were there verbal discussions between you and anyone at Nexford about exceeding the cap? If so, when did those discussions occur, who was involved, and what was said?
•  Even if there were verbal discussions, do you agree that verbal discussions would not satisfy the "prior written consent" requirement of Section 7.4(c)?
C. CPI's Internal Awareness
Establish whether the cap exceedances were the result of inadvertence or a deliberate choice.
Suggested lines of inquiry:
•  Did CPI track the surcharge-to-base-price ratio internally for the Nexford account?
•  Was there any internal report, dashboard, or spreadsheet that flagged when surcharges approached or exceeded 12% of the Base Price?
•  Did anyone at CPI — whether you, Harold Briggs, Frank Delacroix, or anyone else — flag the cap exceedances before the surcharge invoices were sent to Nexford?
•  Did anyone at CPI flag the cap exceedances after the invoices were sent?
•  Is it CPI's position that the 12% cap provision in Section 7.4(c) is unenforceable or inapplicable for some reason? If so, what is the basis for that position?
VII. COMMUNICATIONS WITH NEXFORD'S PROCUREMENT TEAM
A. Primary Contacts
This section documents Gunderson's communications with Nexford's procurement and executive personnel during the disputed period, with a particular focus on surcharge disputes.
Suggested lines of inquiry:
•  Ms. Gunderson, who was your primary contact at Nexford for surcharge-related matters during the period March 2021 through May 2022?
•  Confirm that it was Russell Okonkwo, Vice President, Procurement, at Nexford Industrial Holdings.
•  How frequently did you communicate with Mr. Okonkwo during this period? Weekly? Monthly? More or less frequently?
•  By what means did you communicate — was it primarily by email, by telephone, or through in-person meetings?
•  Were any of your communications with Mr. Okonkwo documented in writing?
•  Did you communicate with anyone else at Nexford regarding surcharge matters during the disputed period? Specifically, did you have any communications with Lydia Tran, Nexford's Chief Financial Officer, or Deborah Whitfield, Nexford's General Counsel?
•  If so, describe the nature, frequency, and subject matter of those communications.
B. Nexford's Surcharge Objections
Walk through the key correspondence in which Nexford raised objections to CPI's surcharge invoices. This is critical for establishing that Nexford did not acquiesce to the surcharges and that CPI was on notice of Nexford's disputes.
Suggested lines of inquiry:
•  Ms. Gunderson, I am going to show you a series of emails between you and Mr. Okonkwo. These have been marked as Exhibits 29 through 35. Let me direct your attention to the first one.
For each key piece of correspondence:
•  Do you recognize this email? Did you send or receive it?
•  In this email, Mr. Okonkwo [summarize the objection raised — e.g., "disputes the surcharge calculation for [month/year] and states that the amounts do not appear to be based on the published indices referenced in Exhibit C"]. Do you see that?
•  What did CPI do in response to this objection? Did you respond in writing? What did you say?
•  Did you investigate Mr. Okonkwo's objection? Did you review the surcharge calculation for that month to determine whether it complied with Exhibit C?
•  Did you escalate Mr. Okonkwo's objection to anyone else at CPI — for example, to Harold Briggs, Frank Delacroix, or Patricia Morrow?
Continue through each key email, building a chronological record of Nexford's objections and CPI's responses (or lack thereof).
•  Were there any phone calls or in-person meetings where Nexford's surcharge objections were discussed? If so, when did those conversations occur, who participated, and what was discussed?
•  Were any notes, minutes, or memoranda prepared documenting those conversations?
C. Escalation Attempts
Establish whether the dispute procedure set forth in Section 7.4(d) was followed.
Suggested lines of inquiry:
•  Ms. Gunderson, as we discussed earlier, Section 7.4(d) of the MSA provides that unresolved surcharge disputes shall be escalated to senior officers of each party. Did any such escalation occur during the disputed period?
•  If escalation occurred, who were the senior officers involved? On CPI's side, was it Frank Delacroix or someone else? On Nexford's side, was it Martin Schaeffer (CEO) or someone else?
•  When did the escalation occur, and what was the outcome?
•  If no escalation occurred, why not? Was CPI aware that the dispute procedure called for escalation?
•  Did CPI consider initiating the escalation process? If not, why not?
D. Pre-Litigation Demand
Establish Gunderson's involvement in the events leading up to the filing of this lawsuit.
Suggested lines of inquiry:
•  Ms. Gunderson, were you involved in the decision to send the June 10, 2022 formal demand letter to Nexford through CPI's counsel, Blackwood Stein & Associates?
•  I am handing you Exhibit 36, which is a copy of that demand letter. Have you seen this document before?
•  What information did you provide to Blackwood Stein in connection with the preparation of this demand letter?
•  Were you aware that the demand was for $4.73 million in unpaid surcharges?
•  Did you review or approve the demand letter before it was sent?
•  Were you involved in reviewing Nexford's July 5, 2022 response to the demand? I am handing you Exhibit 37, which is the rejection letter from Deborah Whitfield to Cardinal Peak dated July 5, 2022. Have you seen this letter?
•  What was your reaction upon receiving Nexford's rejection? Did you discuss the rejection with anyone at CPI?
VIII. CARDINAL PEAK'S INTERNAL PRICING POLICIES AND PRACTICES
A. Other Customers
This section probes whether CPI's use of the blended cost metric was a company-wide practice or something specific to the Nexford account. This line of inquiry is relevant to CPI's understanding of the Exhibit C requirement and whether its deviation was deliberate.
Note: Anticipate an objection from Blackwood on relevance and/or confidentiality grounds. These questions should be asked and preserved on the record even if the witness is instructed not to answer. If Blackwood instructs Gunderson not to answer, state for the record that Nexford reserves its right to seek a motion to compel.
Suggested lines of inquiry:
•  Ms. Gunderson, does CPI use the same surcharge methodology — the blended cost metric — for surcharge calculations under supply agreements with other customers?
•  Or was the blended cost approach specific to the Nexford account?
•  Do CPI's other supply agreements reference published indices, such as the Ferrous Scrap Index, for surcharge calculations?
•  Do any of CPI's other supply agreements contain an Exhibit C-type methodology provision specifying the data sources to be used for surcharge calculations?
•  Has CPI had similar surcharge disputes — that is, disputes involving the methodology used for surcharge calculations or the timeliness of surcharge notices — with any other customers?
B. Internal Approval Process
Regardless of what happens with the other-customer questions, the internal approval process is straightforwardly relevant and should not be objectionable.
Suggested lines of inquiry:
•  Describe CPI's internal process for approving surcharge amounts before they are included on invoices sent to customers.
•  Is there a formal sign-off or approval chain? If so, describe it.
•  Who has final sign-off authority on surcharge calculations and invoices — is it you, Harold Briggs, Frank Delacroix, or someone else?
•  Were surcharge calculations reviewed by anyone outside of your team before being sent to Nexford? For example, did Harold Briggs, as Controller, review the calculations? Did Patricia Morrow, as General Counsel, review them?
•  Was there any change in the approval process during the disputed period?
IX. DAMAGES-RELATED TESTIMONY
A. Cardinal Peak's Claimed Damages
This section establishes the basic damages figures on the record and Gunderson's role in supporting CPI's damages case.
Suggested lines of inquiry:
•  Ms. Gunderson, can you confirm the total surcharges CPI invoiced to Nexford during the disputed period of March 2021 through May 2022? Our understanding based on the invoices produced in discovery is that the total is $6.41 million. Do you agree?
•  Can you confirm the total amount Nexford paid in surcharges during that period? Our records show $1.68 million. Do you agree?
•  So the claimed unpaid amount is $4.73 million — that is, $6.41 million minus $1.68 million. Is that consistent with your understanding?
•  Are you aware that CPI's expert witness, Dr. Theodore Voss of Pinnacle Economics Group LLC, has submitted a report claiming not only the $4.73 million in unpaid surcharges but also prejudgment interest of $0.38 million, for a total claimed damages figure of $5.11 million?
•  Have you met with Dr. Voss or anyone from Pinnacle Economics Group?
•  What role did you play in providing data or information to Dr. Voss or Pinnacle Economics for their analysis? Did you provide surcharge invoices, computation worksheets, underlying cost data, or other materials?
B. Partial Payments
Establish how Nexford's partial payments were treated by CPI.
Suggested lines of inquiry:
•  During the disputed period, Nexford made surcharge payments totaling $1.68 million. Were those payments made in full for some months and not at all for others, or were they partial payments spread across multiple months?
•  For the months where Nexford made partial surcharge payments, how did CPI apply those payments in its accounting records? Were they applied to specific invoices or to the account generally?
•  Did CPI treat those partial payments as acceptance by Nexford of the full surcharge amount, or as payment under protest?
•  Did Nexford communicate to CPI, in writing or otherwise, the basis on which it was making partial payments — for example, did Nexford indicate that it was paying only the amount it believed was owed under Exhibit C, or that it was paying only for months where timely Surcharge Notices had been delivered?
•  Are you aware of any correspondence from Nexford indicating that its partial payments were made under protest or subject to dispute?
C. April 2021 — The Non-Disputed Month
Use the April 2021 surcharge — the only month during the broader period that was paid in full and is not in dispute — as a baseline for comparison.
Suggested lines of inquiry:
•  Ms. Gunderson, let me hand you Exhibit 18, which is the Surcharge Notice and invoice for April 2021. Do you recognize these documents?
•  Nexford paid the April 2021 surcharge in full. Can you confirm that?
•  Do you know why the April 2021 surcharge was not disputed by Nexford?
•  Was the April 2021 Surcharge Notice delivered within the 15-business-day deadline?
•  Was the April 2021 surcharge calculated using the methodology prescribed by Exhibit C — that is, the published Ferrous Scrap Index and Industrial Energy Cost Index?
•  Was the April 2021 surcharge within the 12% cap under Section 7.4(c)?
•  If the April 2021 surcharge was timely noticed, correctly calculated under Exhibit C, and within the 12% cap, doesn't that suggest that the reason Nexford disputed the other 14 months is precisely because one or more of those conditions was not met?
X. TOPICS FOR POTENTIAL IMPEACHMENT / ADMISSIONS TO SECURE
The following is a checklist of key admissions that the examination should aim to secure from Gunderson. These admissions, individually and collectively, support Nexford's defenses and counterclaim. Where possible, these admissions should be obtained through leading questions that leave the witness little room to equivocate.
Admission 1: Gunderson acknowledges that CPI used a "blended cost" metric for surcharge calculations, rather than the published Ferrous Scrap Index and Industrial Energy Cost Index mandated by Exhibit C to the MSA. This admission is foundational to Nexford's defense that approximately $1.47 million in surcharges was overstated due to the methodology deviation.
Admission 2: Gunderson acknowledges that Surcharge Notices for at least some months during the disputed period were delivered after the 15-business-day deadline prescribed by Section 7.4(a) of the MSA. This admission supports Nexford's defense that approximately $2.18 million in surcharges was waived due to CPI's failure to comply with the notice requirement.
Admission 3: Gunderson acknowledges that CPI did not obtain prior written consent from Nexford to exceed the 12% surcharge cap set forth in Section 7.4(c). This admission supports Nexford's defense that approximately $1.08 million in surcharges — the amount exceeding the cap across four months — was invoiced in violation of the MSA.
Admission 4: Gunderson acknowledges receiving objections from Russell Okonkwo (and/or other Nexford representatives) regarding surcharge calculations, the timeliness of Surcharge Notices, and/or the exceedance of the 12% cap. This admission undermines any argument by CPI that Nexford acquiesced to the surcharges or failed to raise timely disputes.
Admission 5: Gunderson cannot identify any written waiver by Nexford of the Section 7.4 requirements — including the notice deadline, the Exhibit C methodology, or the 12% cap. This admission forecloses CPI's potential argument that Nexford waived its contractual rights through conduct or acquiescence.
XI. EXHIBIT LIST (PROPOSED DEPOSITION EXHIBITS)
The following exhibits are proposed for use during the deposition of Natalie Gunderson. Exhibits should be pre-tabbed and organized in binders prior to the deposition. Additional exhibits may be marked during the examination as needed.
XII. ESTIMATED TIME ALLOCATION
The following is the estimated time allocation for the examination of Natalie Gunderson. Total estimated examination time is approximately four hours, which is within the presumptive seven-hour limit under the applicable rules. Time estimates are approximate and may be adjusted during the deposition based on the witness's responsiveness and the extent of objections from opposing counsel.
The most time-intensive areas of the examination are expected to be Section IV (blended cost methodology, 45 minutes) and Section V (timing of Surcharge Notices, 40 minutes). These sections involve detailed document-by-document review and line-by-line comparison of calculations, which necessarily requires more time. Section VII (communications with Nexford, 30 minutes) is the third-longest segment and involves walking through multiple pieces of correspondence.
The follow-up segment (20 minutes) is reserved for revisiting any areas where the witness's earlier testimony was incomplete, evasive, or inconsistent, and for securing any admissions from Section X that were not obtained during the substantive examination.
XIII. ANTICIPATED OBJECTIONS AND STRATEGIES
The following objections are anticipated from opposing counsel (Garrett Blackwood and/or Megan Hsu of Blackwood Stein & Associates LLP) during the deposition, along with recommended strategies for handling each.
Attorney-Client Privilege. Expect privilege objections when the examination touches on communications between Gunderson and Patricia Morrow (CPI's General Counsel) or communications between Gunderson and CPI's outside litigation counsel at Blackwood Stein. Strategy: Do not press on the substance of privileged communications. Note the objection for the record and pivot to exploring the underlying facts through non-privileged questions. For example, instead of asking "What did Ms. Morrow advise you about the blended cost issue?", ask "Putting aside any legal advice you may have received, what was your factual understanding of whether CPI's surcharge calculations complied with Exhibit C?" The goal is to obtain the witness's factual knowledge while respecting the privilege boundary.
Relevance of Other Customer Practices. Expect objections — likely on relevance and/or confidentiality grounds — to questions about CPI's surcharge practices with customers other than Nexford (Section VIII.A). Strategy: Frame these questions narrowly to establish their relevance to the issues in this case. The question is not what CPI charges other customers, but whether CPI's use of the blended cost metric was a standard company-wide practice or was specific to the Nexford account. If the blended cost metric was standard, it suggests CPI was aware of its departure from Exhibit C and chose not to comply. If it was specific to Nexford, it suggests a targeted decision to deviate from the contract. Either answer is probative. If Blackwood instructs the witness not to answer, note the instruction and state that Nexford reserves the right to seek a motion to compel.
Instruction Not to Answer. If Blackwood instructs Gunderson not to answer any question — beyond legitimate privilege instructions — the following protocol should be followed: (1) Note the instruction on the record. (2) Ask Blackwood to state the legal basis for the instruction. (3) State for the record that Nexford objects to the instruction and reserves the right to seek a motion to compel the testimony pursuant to Illinois Supreme Court Rule 206(c)(5). (4) If the instruction pertains to a peripheral topic, consider moving on and addressing it later through motion practice. If it pertains to a core topic, consider taking a break to consult with Priya Anand on whether to seek an immediate telephonic conference with the court.
"I Don't Know" Responses. If Gunderson claims lack of knowledge on surcharge calculations or methodology decisions, the following approach should be used: (1) Ask her to identify the person at CPI who does have that knowledge. (2) Establish that, as VP, Sales & Commercial, with responsibility for surcharge administration and the Nexford account, she should have had oversight over these matters. (3) Ask whether she delegated surcharge calculation responsibilities to a specific individual and, if so, whether she reviewed or approved their work. (4) Ask whether she is testifying that she held the title of VP, Sales & Commercial, with oversight of surcharge administration, but was not aware of how surcharges were actually being calculated. The goal is to create a record that either compels a substantive answer or undermines CPI's ability to use Gunderson as a credible witness at trial.
XIV. COORDINATION NOTES
Examination Team Assignments:
•  Simone Laroche (Senior Associate) will conduct the primary examination of Natalie Gunderson. Simone has lead responsibility for the substantive questioning across all sections of this outline and will manage the pace and strategic direction of the deposition.
•  Jeffrey Park (Associate) will manage exhibits during the deposition, ensuring that each exhibit is properly marked and handed to the witness and court reporter at the appropriate time. Jeff will also take real-time notes during the examination, with a particular focus on identifying potential impeachment opportunities — instances where Gunderson's testimony is inconsistent with documents in the record, inconsistent with prior statements, or inconsistent with testimony she provides at different points during the deposition itself. Jeff should flag any such inconsistencies for Simone in real time via written notes.
•  Priya Anand (Responsible Partner) will be available by telephone throughout the deposition. If strategic decisions are needed during the examination — for example, if Blackwood makes an unexpected privilege assertion, if the witness makes a damaging admission that changes the case posture, or if an issue arises that requires a decision on whether to seek an immediate ruling from the court — Simone should take a break and contact Priya for guidance. Priya's direct line and mobile number are on file with the team.
Coordination with Subsequent Depositions:
The deposition of Russell Okonkwo, Nexford's VP of Procurement, is scheduled for February 7, 2023. Okonkwo is our witness, and his deposition will be taken by CPI's counsel. Gunderson's testimony on January 18 will directly inform our preparation of Okonkwo for his deposition. Key areas to calibrate between the two depositions include:
•  The extent and specificity of Nexford's written objections to CPI's surcharge invoices — Gunderson may attempt to minimize the significance of Okonkwo's communications, and we need to ensure Okonkwo's testimony is consistent with the documentary record.
•  The course of dealing on surcharge payments — whether Nexford's partial payments were accompanied by written explanations and whether CPI treated them as full satisfaction or as disputed amounts.
•  Any verbal discussions between Gunderson and Okonkwo regarding the surcharge methodology, notice timing, or cap exceedances.
Transcript and Post-Deposition Workflow:
The deposition transcript should be ordered on an expedited basis to allow for prompt review and analysis. The target is to receive the transcript within five business days of the deposition — i.e., by January 25, 2023. A deposition summary memorandum analyzing Gunderson's testimony and identifying key admissions, areas of evasion, and implications for case strategy should be prepared and circulated to the litigation team within 7 calendar days of the deposition, with a target completion date of January 25, 2023.
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT Prepared by Calderwood & Harkness LLP in anticipation of litigation. Do not distribute without authorization from the Responsible Partner.
Exhibit No. | Description
Exhibit 1 | Master Supply Agreement MSA-NIH-CPI-2020-001 (dated January 15, 2020), including all exhibits and schedules (particularly Exhibit C — Surcharge Methodology).
Exhibit 2 | Section 7.4 of the MSA (enlarged/isolated copy for ease of reference during examination).
Exhibit 3 | Exhibit C — Surcharge Methodology (enla