1005-00005 · Nexford Industrial Holdings · Discovery

nexford-responses-to-cpi-rfps.docx DOCUMENT Litigation

13 / 37 ← → ✕

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION

DEFENDANT NEXFORD INDUSTRIAL HOLDINGS INC.'S RESPONSES AND OBJECTIONS TO PLAINTIFF CARDINAL PEAK INDUSTRIES' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS

Date Served: January 9, 2023

I. INTRODUCTORY STATEMENT

Defendant Nexford Industrial Holdings Inc. ("Nexford" or "Defendant"), by and through its attorneys, Calderwood & Harkness LLP, 200 South Wacker Drive, Suite 4400, Chicago, Illinois 60606, hereby responds and objects to Plaintiff Cardinal Peak Industries' ("Cardinal Peak" or "Plaintiff") First Request for Production of Documents ("Requests"), served on Defendant on November 28, 2022, pursuant to Illinois Supreme Court Rules 214 and 201 through 218.

These Responses and Objections are based upon information and documents reasonably available to Nexford as of the date hereof. Nexford has undertaken a reasonable and diligent search of its files, records, and electronically stored information in an effort to identify and locate documents responsive to the Requests. However, discovery in this matter is ongoing, and Nexford's investigation and review of facts and documents relating to this action is continuing.

Nexford expressly reserves the right to supplement, amend, or correct these Responses and Objections as additional information becomes available during the course of discovery, as permitted and required by Illinois Supreme Court Rule 214 and the Illinois Rules of Civil Procedure. Nothing in these Responses is intended to constitute a waiver of any objection, privilege, or right that Nexford may assert at any time during this proceeding.

The assertion of any specific response herein does not constitute an admission that any document or category of documents is relevant to, or admissible in, this action. Similarly, the production of any document pursuant to these Responses does not constitute a waiver of any objection to the relevance, authenticity, or admissibility of such document at trial or in connection with any motion.

II. GENERAL OBJECTIONS

Nexford sets forth the following General Objections, each of which is incorporated by reference into every specific response set forth below as if fully stated therein. The assertion of these General Objections does not waive any specific objections set forth in the individual responses, and the specific objections set forth in the individual responses do not waive these General Objections.

A. Objection as to Overbreadth and Undue Burden

Nexford objects to each and every Request, and to any specific instruction or definition accompanying the Requests, to the extent such Request is overly broad, unduly burdensome, or not proportional to the needs of this case. This action involves disputed surcharge invoices arising under a single Master Supply Agreement (MSA-NIH-CPI-2020-001) for a defined fourteen-month period running from March 2021 through May 2022. The amount in controversy, as alleged in the Complaint, is approximately $4.73 million in disputed surcharges. Nexford objects to any Request that is disproportionate to the scope and nature of this dispute or that would require Nexford to undertake an unreasonable search of files and records that are unlikely to yield relevant, non-duplicative documents.

B. Objection as to Relevance

Nexford objects to each and every Request to the extent it seeks documents that are not relevant to the claims or defenses in this action, or that are not reasonably calculated to lead to the discovery of admissible evidence. The claims at issue in this action include Plaintiff's claims for breach of contract (Count I), unjust enrichment (Count II), and account stated (Count III), as set forth in the Complaint filed on August 8, 2022, and Defendant's counterclaim for breach of contract and declaratory relief (Counts I and II of the Counterclaim), as set forth in the Counterclaim filed on October 14, 2022. Nexford objects to any Request that seeks documents outside the scope of these claims and defenses.

C. Objection as to Attorney-Client Privilege and Work Product

Nexford objects to each and every Request to the extent it calls for or would require the production of documents or communications that are protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege or protection recognized under the laws of the State of Illinois or under federal common law. Without limiting the foregoing, Nexford specifically objects to any Request that seeks communications between Nexford and its counsel, including Calderwood & Harkness LLP, or any other attorneys retained by Nexford or its affiliates in connection with this matter, as well as documents prepared by or at the direction of counsel in anticipation of litigation or for trial.

Nexford will provide a privilege log identifying documents withheld in whole or in part on the basis of privilege or work product protection, in accordance with Illinois Supreme Court Rule 201(n). The privilege log will be provided within a reasonable time following the initial document production.

D. Objection as to Confidential Business Information

Nexford objects to each and every Request to the extent it seeks proprietary, confidential, or trade secret information of Nexford or its affiliates that is not directly related to the MSA or the surcharge dispute at issue in this litigation. Without limiting the foregoing, Nexford specifically objects to Requests that seek internal pricing analyses, cost models, supplier negotiations with third parties, financial projections, strategic planning documents, and other commercially sensitive information, the disclosure of which could cause competitive harm to Nexford. To the extent any confidential or proprietary documents are produced in this action, Nexford reserves the right to designate such documents as "Confidential" or "Highly Confidential — Attorneys' Eyes Only" pursuant to any protective order entered by the Court or, in the absence of such an order, to seek appropriate protections prior to production.

E. Objection as to Temporal Scope

Nexford objects to each and every Request that is not reasonably limited in temporal scope. The MSA was executed on January 15, 2020, and the disputed surcharge period runs from March 2021 through May 2022, a period of approximately fourteen months. Requests seeking documents outside this period, or extending indefinitely into the past or forward "to the present," are objected to as overly broad and not proportional to the needs of the case absent specific justification demonstrating the relevance of documents from outside the disputed period.

F. Objection Regarding "All" or "Each and Every" Language

Nexford objects to each and every Request that uses the phrases "all," "any and all," "each and every," or similar all-inclusive modifiers to the extent such language renders the Request overbroad, unduly burdensome, or disproportionate to the needs of the case. Nexford will construe such Requests to require a reasonable search of files, records, and electronically stored information that are reasonably likely to contain responsive documents, including the files of custodians identified as likely to possess relevant documents. Nexford does not undertake to search every file, database, or repository maintained by the company and its affiliates for documents that might, under the broadest possible reading, be deemed responsive.

G. Preservation of Objections

The assertion of these General Objections is not intended to, and shall not, waive any specific objection set forth below. Likewise, the assertion of a specific objection in response to a particular Request is not intended to, and shall not, waive any General Objection. The production of documents in response to any Request shall not constitute an admission that such documents are relevant to, or admissible in, this action, nor shall it constitute a waiver of any objection, privilege, or defense. Nexford's agreement to produce certain categories of documents in response to a Request does not constitute acquiescence in Plaintiff's characterization of the scope of that Request.

III. RESPONSE TO DEFINITIONS AND INSTRUCTIONS

Nexford has reviewed the Definitions and Instructions set forth in Plaintiff's First Request for Production of Documents. Nexford adopts Plaintiff's definitions to the extent such definitions are not inconsistent with these General Objections and are not themselves overbroad or unduly burdensome. Where Plaintiff has not defined a term, Nexford interprets such term in its ordinary and customary meaning as used in the context of commercial litigation in the State of Illinois.

To the extent Plaintiff's definitions purport to expand the scope of a Request beyond what is reasonable and proportional to the needs of this case — for example, by defining "document" or "communication" to include categories of materials that are not reasonably likely to contain relevant information, or by defining "relating to" in a manner that would encompass any tangential reference — Nexford applies the more limited, reasonable construction of such terms consistent with Illinois discovery practice. Nexford's use of any term defined by Plaintiff in these Responses shall not be construed as acceptance of Plaintiff's definition of that term for any other purpose.

IV. SPECIFIC RESPONSES TO REQUESTS FOR PRODUCTION

REQUEST NO. 1

Request: All documents constituting or relating to the Master Supply Agreement dated January 15, 2020, between Cardinal Peak Industries and Nexford Industrial Holdings Inc. (MSA-NIH-CPI-2020-001), including all exhibits, amendments, supplements, and addenda thereto.

Response: Nexford objects to this Request to the extent the phrase "relating to" is vague and overbroad, as it could be construed to encompass any document that makes any reference, however tangential, to the Master Supply Agreement. So construed, the Request would sweep in thousands of routine correspondence, purchase orders, invoices, and internal records that merely reference the MSA by number or by subject matter, many of which are more appropriately sought through more targeted Requests (such as Requests Nos. 2 through 12, below). Nexford further incorporates its General Objections herein by reference.

Subject to and without waiving the foregoing objection and the General Objections stated above, Nexford will produce the executed Master Supply Agreement MSA-NIH-CPI-2020-001, dated January 15, 2020, including all exhibits, schedules, and any amendments or supplements thereto that are in Nexford's possession, custody, or control. The documents to be produced include the following:

(a) The Master Supply Agreement itself, which sets forth, among other things, the base pricing for Hot-Rolled Coil ("HRC") at $620 per ton and Cold-Rolled Coil ("CRC") at $740 per ton, as specified in Section 7.2 of the MSA;

(b) The surcharge pass-through provisions set forth in Section 7.4 of the MSA, which govern the calculation, notice, and payment of raw material and energy cost surcharges;

(c) Exhibit C to the MSA (Surcharge Methodology), which prescribes the methodology for calculating surcharges based on the Ferrous Scrap Index (as published by Bramwell Industries) and the Industrial Energy Cost Index, applied to a baseline scrap cost of $340 per ton and a baseline energy cost of $48 per ton;

(d) All additional exhibits and schedules to the MSA; and

(e) Any amendments, supplements, or addenda to the MSA executed by the parties.

Nexford is not aware of any formal written amendments to the MSA executed after January 15, 2020. To the extent any modifications to the MSA's terms were discussed or proposed but not formally executed, responsive documents reflecting such discussions, if any, will be produced in response to other, more targeted Requests.

Documents to be Produced: NIH-CPI-000001 through NIH-CPI-000047 (Master Supply Agreement and all exhibits, schedules, and related documents).

REQUEST NO. 2

Request: All Surcharge Notices received by Nexford from Cardinal Peak Industries during the period March 2021 through May 2022, including any supporting documentation accompanying such notices.

Response: Subject to the General Objections stated above, which are incorporated herein by reference, Nexford will produce all Surcharge Notices received from Cardinal Peak during the period March 2021 through May 2022 that are in Nexford's possession, custody, or control, together with any supporting documentation that was attached to, submitted with, or otherwise accompanied such Surcharge Notices at the time of receipt.

Nexford notes that during the fifteen-month period from March 2021 through May 2022, Cardinal Peak submitted surcharge invoices for each month. The April 2021 surcharge was paid in full by Nexford and is not in dispute in this litigation; however, in the interest of completeness and to provide the Court and the parties with a full picture of the surcharge history during the relevant period, Nexford will produce the April 2021 Surcharge Notice along with all other Surcharge Notices for the period. The remaining fourteen months of surcharge invoices are the subject of the parties' dispute, with Cardinal Peak claiming a total of approximately $6.41 million in surcharges during the disputed period and Nexford having paid $1.68 million of that amount.

Documents to be Produced: NIH-CPI-000048 through NIH-CPI-000189 (Surcharge Notices and accompanying supporting documentation for the period March 2021 through May 2022).

REQUEST NO. 3

Request: All documents reflecting, recording, or relating to Nexford's review, analysis, acceptance, rejection, or partial payment of any surcharge invoice submitted by Cardinal Peak during the period March 2021 through May 2022.

Response: Nexford objects to this Request to the extent it seeks documents or communications that are protected by the attorney-client privilege or the work product doctrine. Without limiting the foregoing, Nexford's in-house and outside counsel were consulted regarding the proper interpretation and application of the MSA's surcharge provisions, and certain documents reflecting legal analysis or legal advice concerning the surcharge invoices are privileged and will not be produced. Nexford further incorporates its General Objections herein by reference.

Subject to and without waiving the foregoing objection and the General Objections, Nexford will produce non-privileged documents reflecting Nexford's internal review and analysis of Cardinal Peak's surcharge invoices during the disputed period of March 2021 through May 2022. This production will include the surcharge review logs maintained by Russell Okonkwo, Vice President of Procurement, and his team within Nexford's procurement department. These surcharge review logs track, for each month during the disputed period, the following information:

(a) The invoice date of the surcharge;

(b) The date on which the Surcharge Notice was delivered to Nexford;

(d) The surcharge amount invoiced by Cardinal Peak;

(e) The surcharge amount approved for payment by Nexford; and

(f) The basis for any rejection or partial payment of the surcharge invoice.

These logs and related internal analysis worksheets reflect that Nexford paid a total of $1.68 million of the $6.41 million in surcharges invoiced by Cardinal Peak during the disputed period. The procurement department review records further document the specific grounds on which each invoice was disputed or partially rejected.

Nexford will withhold privileged documents responsive to this Request and will identify such documents on its privilege log.

Documents to be Produced: NIH-CPI-000190 through NIH-CPI-000267 (surcharge review logs, internal analysis worksheets, and procurement department review records).

REQUEST NO. 4

Request: All documents relating to payments made by Nexford to Cardinal Peak on account of surcharge invoices during the period March 2021 through May 2022, including wire transfer confirmations, check records, accounts payable records, and remittance advices.

Response: Subject to the General Objections stated above, which are incorporated herein by reference, Nexford will produce payment records documenting all surcharge-related payments made by Nexford to Cardinal Peak during the period March 2021 through May 2022. These records reflect that Nexford made surcharge payments totaling approximately $1.68 million during the disputed period, consisting of both full payments on certain invoices and partial payments on others.

The production in response to this Request will include the following categories of documents:

(a) Accounts payable ledger entries reflecting surcharge payments to Cardinal Peak;

(b) Wire transfer confirmations for payments transmitted electronically;

(d) Internal payment authorization forms reflecting the approval of surcharge payments by authorized Nexford personnel.

Nexford objects to producing general accounts payable records, ledger entries, or financial records that are unrelated to the Cardinal Peak surcharge invoices at issue in this litigation. Payment records for base pricing under the MSA (i.e., payments for HRC and CRC at the contractually specified base prices) are not responsive to this Request and will not be produced in this response, though Nexford reserves the right to produce such records if they become relevant to a specific claim or defense.

Documents to be Produced: NIH-CPI-000268 through NIH-CPI-000334 (payment records, wire transfer confirmations, remittance advices, and payment authorization forms).

REQUEST NO. 5

Request: All communications between Nexford and Cardinal Peak, including their respective employees, officers, agents, and representatives, relating to the surcharge provisions of the MSA, surcharge invoices, Surcharge Notices, or the dispute over surcharge payments, from January 15, 2020 to the present.

Response: Nexford objects to this Request as overbroad in temporal scope to the extent it seeks communications from the MSA execution date of January 15, 2020, forward. The MSA was executed on January 15, 2020, and the first surcharge invoice at issue was not submitted until March 2021 — a period of over fourteen months during which no surcharge-related dispute existed between the parties. Communications from 2020 regarding surcharge provisions in the abstract, before any surcharges were even invoiced, are not proportional to the needs of this case.

Nexford further objects to this Request to the extent it seeks communications with, through, or involving legal counsel that are protected by the attorney-client privilege. This includes communications between Nexford personnel and Calderwood & Harkness LLP, communications involving Nexford's General Counsel Deborah Whitfield in her capacity as legal advisor, and communications with Plaintiff's counsel at Blackwood Stein & Associates LLP that were made in connection with settlement or compromise discussions protected under Illinois Rule of Evidence 408.

Subject to and without waiving the foregoing objections and the General Objections, Nexford will produce non-privileged correspondence and communications between Nexford personnel and Cardinal Peak personnel regarding surcharge matters during the period January 2021 through August 2022, which Nexford considers a reasonable temporal scope encompassing the period shortly before the first disputed surcharge through the filing of the Complaint. Nexford personnel whose files have been searched in connection with this Request include:

(a) Russell Okonkwo, Vice President of Procurement;

(b) Lydia Tran, Chief Financial Officer; and

The production will include emails, letters, written notifications, and other written or electronic communications regarding surcharge calculations, surcharge invoice disputes, payment disputes, and related matters. This includes the June 10, 2022 demand letter sent by Blackwood Stein & Associates LLP on behalf of Cardinal Peak and Nexford's July 5, 2022 response thereto, to the extent such correspondence is not protected by the attorney-client privilege or the settlement-discussion privilege.

Documents to be Produced: NIH-CPI-000335 through NIH-CPI-000512 (correspondence and communications regarding surcharges and the surcharge dispute).

REQUEST NO. 6

Request: All documents reflecting Nexford's interpretation or application of Section 7.4 of the MSA, including the 15-business-day notice requirement (Section 7.4(a)), the Exhibit C Surcharge Methodology, and the 12% surcharge cap (Section 7.4(c)).

Response: Nexford objects to this Request to the extent it seeks documents protected by the attorney-client privilege or the work product doctrine. The interpretation and application of the MSA's surcharge provisions was the subject of legal analysis and advice provided by both in-house and outside counsel, and documents reflecting such legal analysis and advice are privileged and will not be produced. Nexford also incorporates its General Objections herein by reference.

Subject to and without waiving the foregoing objection and the General Objections, Nexford will produce non-privileged documents reflecting Nexford's business interpretation and application of Section 7.4 of the MSA. This production will include the following categories of non-privileged documents:

(a) The surcharge review protocols and guidelines used by the procurement department under the direction of Russell Okonkwo, Vice President of Procurement, which set forth the procedures followed by Nexford personnel in reviewing and verifying Cardinal Peak's surcharge invoices;

(b) Internal tracking documents reflecting Nexford's monitoring of the fifteen-business-day Surcharge Notice deadline required by Section 7.4(a) of the MSA, including records showing the date of receipt of each Surcharge Notice and the date by which notice was required;

(c) Calculations and worksheets applying the Exhibit C Surcharge Methodology using published Ferrous Scrap Index data (Bramwell Industries) and Industrial Energy Cost Index data, and comparing such calculations to the amounts invoiced by Cardinal Peak; and

(d) Documents reflecting Nexford's monitoring of surcharges against the twelve percent (12%) cap provision of Section 7.4(c), including monthly cap tracking records.

Privileged documents withheld in response to this Request will be identified on Nexford's privilege log with sufficient detail to enable Plaintiff and the Court to assess the basis for each privilege claim.

Documents to be Produced: NIH-CPI-000513 through NIH-CPI-000571 (procurement protocols, surcharge tracking documents, Exhibit C methodology calculations, and cap monitoring records). Privilege log to be provided separately.

REQUEST NO. 7

Request: All documents reflecting or relating to Nexford's calculation of the surcharges it contends were properly owed to Cardinal Peak during the disputed period, including any spreadsheets, workpapers, or analyses.

Response: Subject to the General Objections stated above, which are incorporated herein by reference, and subject to the attorney-client privilege and work product objections set forth in General Objection C, Nexford will produce non-privileged procurement department workpapers and spreadsheets reflecting Nexford's calculation of the surcharges it determined were properly owed under the MSA during the period March 2021 through May 2022.

These calculations reflect Nexford's position that it identified three categories of deficiency in Cardinal Peak's surcharge invoices, which are summarized as follows:

(1) Late Surcharge Notices (Section 7.4(a) violations): For seven (7) of the fourteen (14) disputed months, Nexford's records indicate that Cardinal Peak failed to deliver its Surcharge Notices within the fifteen-business-day advance period required by Section 7.4(a) of the MSA. The surcharges invoiced for these months total approximately $2.18 million. It is Nexford's position that late Surcharge Notices do not give rise to a valid surcharge obligation under the MSA;

(2) Methodology Deviations from Exhibit C: Nexford's analysis indicates that Cardinal Peak used an internal "blended cost" metric — rather than the contractually specified published Ferrous Scrap Index and Industrial Energy Cost Index — in calculating the surcharges for multiple months during the disputed period. This deviation from the Exhibit C Surcharge Methodology resulted in inflated surcharges totaling approximately $1.47 million above the amounts that would have been calculated using the published indices and the agreed baseline scrap cost of $340 per ton and baseline energy cost of $48 per ton; and

(3) Surcharges Exceeding the 12% Cap (Section 7.4(c) violations): For four (4) months during the disputed period, the surcharges invoiced by Cardinal Peak exceeded the twelve percent (12%) cap set forth in Section 7.4(c) of the MSA without Cardinal Peak having obtained prior written consent from Nexford as required by the MSA. The excess amounts above the 12% cap for these months total approximately $1.08 million.

The workpapers to be produced also reflect Nexford's position that, after accounting for all three categories of deficiency, the maximum additional surcharge obligation owed by Nexford beyond the $1.68 million already paid is approximately $0.21 million, for a total maximum surcharge obligation of approximately $1.89 million during the disputed period.

Documents to be Produced: NIH-CPI-000572 through NIH-CPI-000623 (surcharge calculation workpapers, spreadsheets, and related analyses).

REQUEST NO. 8

Request: All documents relating to any notice provided by Nexford to Cardinal Peak disputing any surcharge invoice, as contemplated by Section 7.4(d) of the MSA, including the date of such notice.

Response: Subject to the General Objections stated above, which are incorporated herein by reference, Nexford will produce all written dispute notices sent by Nexford to Cardinal Peak pursuant to Section 7.4(d) of the MSA during the disputed period. Section 7.4(d) of the MSA requires the Buyer (Nexford) to notify the Seller (Cardinal Peak) of any disputed surcharge within thirty (30) calendar days of receipt of the Surcharge Notice, specifying the basis for the dispute. Nexford will produce the dispute notices themselves and contemporaneous documentation supporting the basis for each dispute, to the extent such documentation accompanied or was referenced in the dispute notices.

Documents to be Produced: NIH-CPI-000624 through NIH-CPI-000689 (dispute notices sent to Cardinal Peak pursuant to Section 7.4(d) and supporting documentation).

REQUEST NO. 9

Request: All documents reflecting any written consent by Nexford for surcharges exceeding the 12% cap set forth in Section 7.4(c) of the MSA.

Response: Subject to the General Objections stated above, which are incorporated herein by reference, Nexford responds that it did not provide written consent to Cardinal Peak authorizing surcharges in excess of the twelve percent (12%) cap set forth in Section 7.4(c) of the MSA at any time during the disputed period of March 2021 through May 2022. After a reasonable and diligent search of its records, Nexford has identified no documents responsive to this Request. No such documents exist.

It is Nexford's position that for the four (4) months during the disputed period in which surcharges invoiced by Cardinal Peak exceeded the 12% cap established in Section 7.4(c), Cardinal Peak was required to obtain prior written consent from Nexford before imposing the excess surcharge, and no such consent was requested or obtained. The surcharge amounts exceeding the 12% cap for those four months total approximately $1.08 million, which Nexford contends is not owed under the terms of the MSA.

Documents to be Produced: None. No responsive documents exist.

REQUEST NO. 10

Request: All published Ferrous Scrap Index data (as reported by Platts/SPI) and Industrial Energy Cost Index data relied upon or referenced by Nexford in connection with its review of Cardinal Peak's surcharge invoices during the period March 2021 through May 2022.

Response: Subject to the General Objections stated above, which are incorporated herein by reference, Nexford will produce copies of the published Ferrous Scrap Index data, as reported by Bramwell Industries (formerly S&P Global Platts), and the Industrial Energy Cost Index data for each month during the period March 2021 through May 2022. These published index data were obtained and used by Nexford's procurement department in reviewing and verifying Cardinal Peak's surcharge invoices against the Exhibit C Surcharge Methodology.

As set forth in Exhibit C to the MSA, the proper calculation of surcharges requires reference to these published indices, applied to the agreed baseline scrap cost of $340 per ton and the agreed baseline energy cost of $48 per ton. The published index data to be produced represent the source data that Nexford contends should have been used by Cardinal Peak in calculating its surcharges, rather than the internal "blended cost" metric that Cardinal Peak used for certain months, as described in Nexford's response to Request No. 7.

Nexford notes that the published Ferrous Scrap Index data and Industrial Energy Cost Index data are third-party publications and are not proprietary to Nexford. The data are being produced for the convenience of the parties and the Court, and Nexford does not waive any objection to the authenticity or admissibility of such data.

Documents to be Produced: NIH-CPI-000690 through NIH-CPI-000721 (published Ferrous Scrap Index and Industrial Energy Cost Index data for each month of the disputed period, March 2021 through May 2022).

REQUEST NO. 11

Request: All documents relating to any internal policies, procedures, or guidelines of Nexford regarding the review, approval, or payment of surcharge invoices from suppliers, including but not limited to Cardinal Peak.

Response: Nexford objects to this Request as overbroad and not proportional to the needs of this case to the extent it seeks internal policies, procedures, or guidelines regarding the review, approval, or payment of surcharge invoices from all of Nexford's suppliers. Nexford maintains supply relationships with numerous steel and raw material suppliers, and its internal procurement policies for suppliers other than Cardinal Peak are not relevant to the claims and defenses arising under the Cardinal Peak MSA. The production of company-wide procurement policies would impose an undue burden on Nexford and would not yield information relevant to the specific surcharge dispute at issue. Nexford further incorporates its General Objections herein by reference.

Subject to and without waiving the foregoing objection, Nexford will produce non-privileged internal procurement policies and procedures that are specifically applicable to the review, approval, and payment of surcharge invoices under the Cardinal Peak MSA, including authorization thresholds for approval of surcharge payments, escalation procedures for disputed invoices, and the surcharge review workflow maintained by the procurement department under the direction of Russell Okonkwo, Vice President of Procurement.

Documents to be Produced: NIH-CPI-000722 through NIH-CPI-000741 (procurement policies and procedures applicable to the Cardinal Peak MSA and surcharge invoice review).

REQUEST NO. 12

Request: All purchase orders, delivery receipts, and shipping records for steel products (HRC and CRC) purchased by Nexford from Cardinal Peak during the period March 2021 through May 2022.

Response: Subject to the General Objections stated above, which are incorporated herein by reference, Nexford will produce purchase orders, delivery receipts, and shipping records for Hot-Rolled Coil ("HRC") and Cold-Rolled Coil ("CRC") products purchased by Nexford from Cardinal Peak during the period March 2021 through May 2022.

The MSA contemplated estimated annual volumes of approximately 18,000 tons of HRC and 6,500 tons of CRC, for a combined estimated annual volume of approximately 24,500 tons. The purchase orders, delivery receipts, and shipping records to be produced reflect the actual volumes ordered and received by Nexford during the disputed period and provide the underlying transactional data against which surcharges were assessed by Cardinal Peak.

Documents to be Produced: NIH-CPI-000742 through NIH-CPI-000948 (purchase orders, delivery receipts, and shipping records for HRC and CRC products purchased from Cardinal Peak during March 2021 through May 2022).

REQUEST NO. 13

Request: All financial statements, annual reports, or audit reports of Nexford Industrial Holdings Inc. for fiscal years 2020, 2021, and 2022.

Response: Nexford objects to this Request as overbroad, unduly burdensome, and seeking documents that are not relevant to the surcharge dispute under the MSA and are not proportional to the needs of this case. This litigation concerns the proper calculation and payment of surcharge invoices under a specific Master Supply Agreement between the parties. Nexford's consolidated financial statements, annual reports, and audit reports encompass the full scope of Nexford's business operations and financial condition, the vast majority of which has no bearing on the parties' dispute regarding the interpretation and application of Section 7.4 of the MSA and the Exhibit C Surcharge Methodology.

Nexford further objects to this Request to the extent it seeks confidential and proprietary financial information that is not proportional to the needs of this case. Nexford is a privately held company, and its financial statements are not publicly available. The disclosure of Nexford's complete financial statements would reveal sensitive information regarding Nexford's revenues, costs, margins, capital structure, and overall financial performance that is wholly unrelated to the surcharge dispute.

Without waiving these objections, Nexford notes that its independent auditors are Hargrove Kellner CPAs LLP, and to the extent that any financial records specifically relating to the surcharge payments at issue in this litigation are relevant to the claims or defenses, such records will be produced in response to other, more targeted Requests, including Request Nos. 4 and 7. Nexford will not produce its complete financial statements, annual reports, or audit reports in response to this Request.

Documents to be Produced: None. Surcharge-specific financial records are being produced in response to other, more targeted Requests.

REQUEST NO. 14

Request: All documents relating to Nexford's credit facilities or loan agreements with any lender, to the extent such documents contain provisions relating to the resolution of litigation, settlement authority, or payment of settlement amounts.

Response: Nexford objects to this Request as overbroad, unduly burdensome, and seeking confidential information that is not relevant to the claims or defenses in this action and is not proportional to the needs of the case. The terms of Nexford's credit facilities with its lenders, including the existence and terms of any provisions relating to the resolution of litigation, settlement authority, or the payment of settlement amounts, are confidential and proprietary and bear no relevance to whether Cardinal Peak properly calculated and timely noticed surcharges under the MSA.

Without waiving these objections, Nexford further objects on the ground that the terms of its credit agreement with Ridgecrest National Bank, N.A., or with any other lender, are not relevant to any claim or defense in this action. Whether Nexford's credit facility contains notice or consent provisions regarding litigation or settlement is not germane to the interpretation of the MSA, the calculation of surcharges under Exhibit C, or the timeliness of Surcharge Notices under Section 7.4(a). The Request appears designed to obtain confidential information about Nexford's financial arrangements that has no bearing on the merits of this dispute.

Documents to be Produced: None.

REQUEST NO. 15

Request: All documents relating to any communications between Nexford and its parent, affiliate, or equity sponsor regarding the Cardinal Peak surcharge dispute, the MSA, or this litigation.

Response: Nexford objects to this Request as overbroad and as seeking documents that are protected by the attorney-client privilege, the common interest privilege, and/or the work product doctrine. Communications between Nexford and Marlowe Asset Management Bluff Capital Partners, LP ("Marlowe Asset Management Bluff"), which is Nexford's majority equity owner, regarding this litigation and the underlying surcharge dispute were made in connection with and for the purpose of obtaining or providing legal advice and/or in anticipation of litigation. Such communications are protected by the attorney-client privilege and, to the extent they involve shared legal interests between Nexford and its equity sponsor in connection with this dispute, by the common interest privilege.

Nexford further objects on the ground that internal business communications between a company and its equity sponsor regarding pending litigation strategy, settlement authority, and related matters are protected by the attorney-client privilege and the work product doctrine. The disclosure of such communications would reveal confidential legal strategy and legal advice and would undermine the fundamental protections afforded by these privileges.

Nexford will include responsive privileged documents on its privilege log to be provided in accordance with Illinois Supreme Court Rule 201(n).

Documents to be Produced: None. Privileged documents responsive to this Request will be identified on the privilege log.

REQUEST NO. 16

Request: All documents relating to Nexford's procurement or purchase of steel products (HRC and CRC) from any supplier other than Cardinal Peak during the period January 2020 through May 2022.

Response: Nexford objects to this Request as overbroad, unduly burdensome, and not relevant to the claims and defenses in this action. The dispute in this case concerns Cardinal Peak's compliance with the surcharge provisions of the MSA between the parties; it does not concern Nexford's procurement relationships with other steel suppliers or the terms of any other supply agreement. Production of documents relating to Nexford's procurement of HRC and CRC from other suppliers would require an unreasonable and burdensome search of procurement records that are wholly unrelated to the surcharge dispute between Nexford and Cardinal Peak.

Nexford further objects on the ground that its procurement relationships, pricing arrangements, and supply agreements with other steel suppliers constitute confidential and proprietary business information, and the disclosure of such information could cause competitive harm to Nexford. This Request is not proportional to the needs of the case, and the burden and expense of the proposed production clearly outweigh its likely benefit.

Documents to be Produced: None.

REQUEST NO. 17

Request: All documents reflecting or relating to any escalation of the surcharge dispute to senior officers of Nexford, as contemplated by Section 7.4(d) of the MSA, including any records of meetings, calls, or negotiations between senior officers of Nexford and Cardinal Peak.

Response: Subject to the General Objections stated above, which are incorporated herein by reference, and subject to the attorney-client privilege objection set forth in General Objection C, Nexford will produce non-privileged documents reflecting the escalation of the surcharge dispute to senior officers of Nexford and any subsequent discussions between senior officers of the parties, as contemplated by the dispute escalation procedure set forth in Section 7.4(d) of the MSA.

Nexford personnel whose files have been searched and who participated in senior officer escalation discussions include:

(a) Martin Schaeffer, Chief Executive Officer;

(b) Lydia Tran, Chief Financial Officer;

(d) Deborah Whitfield, General Counsel (limited to non-privileged communications only).

The production will include records of discussions, meetings, telephone calls, and negotiations between these senior Nexford officers and senior officers of Cardinal Peak regarding attempts to resolve the surcharge dispute prior to formal mediation, as provided for in the dispute escalation procedure of Section 7.4(d). Documents reflecting legal advice or legal analysis provided by Deborah Whitfield in her capacity as General Counsel, or by outside counsel, will be withheld as privileged and identified on Nexford's privilege log.

Documents to be Produced: NIH-CPI-000949 through NIH-CPI-000983 (records of senior officer escalation, meetings, calls, and discussions regarding resolution of the surcharge dispute).

REQUEST NO. 18

Request: All documents relating to the termination or non-renewal of the MSA, including any notices of termination, non-renewal correspondence, and discussions regarding the continuation or wind-down of the supply relationship.

Response: Nexford objects to this Request to the extent it is premature and seeks documents relating to events occurring after the filing of the Complaint on August 8, 2022, including any post-litigation communications or negotiations regarding the future of the supply relationship that may implicate attorney-client privilege or settlement discussions. Nexford further incorporates its General Objections herein by reference.

Subject to and without waiving the foregoing objection, Nexford notes that the MSA has an original term of three (3) years, commencing January 15, 2020 and expiring January 14, 2023, with automatic renewal for successive one-year terms unless either party provides written notice of non-renewal at least one hundred eighty (180) days prior to the expiration of the then-current term (Section 2.1 of the MSA). As of the date of these Responses, the MSA remains in effect, and the automatic renewal date for the first renewal period is approaching.

Nexford will produce any non-privileged documents responsive to this Request that exist as of the date of production. To the extent additional responsive documents come into existence after the date of production — including, without limitation, any notices of termination or non-renewal that may be issued prior to or following the January 14, 2023 renewal date — Nexford will supplement its response in accordance with its continuing obligations under the Illinois Supreme Court Rules.

Documents to be Produced: To be produced to the extent responsive, non-privileged documents exist at the time of production. Nexford reserves the right to supplement this response as appropriate.

V. PRIVILEGE LOG RESERVATION

Nexford will provide a privilege log in compliance with Illinois Supreme Court Rule 201(n) identifying all documents withheld in whole or in part on the basis of the attorney-client privilege, the common interest privilege, the work product doctrine, or any other applicable privilege or protection.

The privilege log will include sufficient information to enable Plaintiff and the Court to assess the basis for each privilege claim, including for each withheld document or communication: (a) the date of the document or communication; (b) the author or sender; (c) all recipients and any persons copied; (d) the general subject matter of the document or communication (without revealing privileged content); and (e) the specific privilege or protection asserted.

Nexford anticipates that the privilege log will be provided within thirty (30) days of the initial document production, or at such other time as the parties may agree or the Court may order.

VI. DOCUMENT PRODUCTION FORMAT

Documents responsive to the Requests will be produced in electronic format, consisting of single-page TIFF images with corresponding load files (including Concordance and Relativity load files) and extracted or OCR-generated text files, in accordance with the parties' agreed-upon discovery protocols and any applicable standing orders of this Court regarding electronically stored information.

Where original documents are in paper form and have not been previously digitized, such documents will be scanned and produced as TIFF images with OCR text. Native-format files will be produced for spreadsheets and other documents where the native format is necessary to preserve the document's functionality or content.

All documents produced by Nexford in response to these Requests will be Bates-stamped with the prefix "NIH-CPI-" followed by sequential numbering, beginning with NIH-CPI-000001.

VII. RESERVATION OF RIGHTS

Nexford expressly reserves the right to supplement, amend, or correct these Responses and Objections in accordance with its continuing obligations under Illinois Supreme Court Rules 214 and 201 through 218, as additional information and documents become available through ongoing investigation, discovery, and review.

The production of documents in response to any Request shall not constitute a waiver of any objection, privilege, or defense, whether or not specifically asserted herein. Nexford does not concede the relevance, authenticity, or admissibility of any document produced, and reserves the right to object to the use of any such document at trial, at deposition, or in connection with any motion.

Nexford further reserves the right to rely upon documents produced by Plaintiff or by third parties in support of its defenses and counterclaims, and the fact that Nexford has not produced a particular document in response to these Requests shall not be deemed a concession that the document is not relevant or supportive of Nexford's positions.

Nothing in these Responses shall be construed as a waiver of Nexford's right to object to any additional discovery requests served by Plaintiff, or to seek the protection of the Court against discovery that is unreasonable, oppressive, or not proportional to the needs of the case.

RESPECTFULLY SUBMITTED,

NEXFORD INDUSTRIAL HOLDINGS INC., By its attorneys,

CALDERWOOD & HARKNESS LLP

By: ________

Priya Anand (ARDC No. 6328441) Simone Laroche (ARDC No. 6341097) CALDERWOOD & HARKNESS LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606 Telephone: (312) 555-8200 Facsimile: (312) 555-8201

Email: panand@calderwoodharkness.com

Email: slaroche@calderwoodharkness.com

Attorneys for Defendant Nexford Industrial Holdings Inc.

Date: January 9, 2023

CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that on January 9, 2023, a true and correct copy of the foregoing Defendant Nexford Industrial Holdings Inc.'s Responses and Objections to Plaintiff Cardinal Peak Industries' First Request for Production of Documents was served upon counsel for Plaintiff via electronic mail and by depositing a copy in the United States Mail, first-class postage prepaid, addressed to:

Garrett Blackwood, Esq. Megan Hsu, Esq. BLACKWOOD STEIN & ASSOCIATES LLP 717 Seventeenth Street, Suite 2200 Denver, Colorado 80202

Email: gblackwood@blackwoodstein.com

Email: mhsu@blackwoodstein.com

________________________________________

Priya Anand

CARDINAL PEAK INDUSTRIES, a Colorado limited liability company,

Plaintiff,

Case No. 2022-L-008471

Calendar 10

NEXFORD INDUSTRIAL HOLDINGS INC., a Delaware corporation,

Hon. Patricia A. Muñoz

Defendant.

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION
DEFENDANT NEXFORD INDUSTRIAL HOLDINGS INC.'S RESPONSES AND OBJECTIONS TO PLAINTIFF CARDINAL PEAK INDUSTRIES' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Date Served: January 9, 2023
I. INTRODUCTORY STATEMENT
Defendant Nexford Industrial Holdings Inc. ("Nexford" or "Defendant"), by and through its attorneys, Calderwood & Harkness LLP, 200 South Wacker Drive, Suite 4400, Chicago, Illinois 60606, hereby responds and objects to Plaintiff Cardinal Peak Industries' ("Cardinal Peak" or "Plaintiff") First Request for Production of Documents ("Requests"), served on Defendant on November 28, 2022, pursuant to Illinois Supreme Court Rules 214 and 201 through 218.
These Responses and Objections are based upon information and documents reasonably available to Nexford as of the date hereof. Nexford has undertaken a reasonable and diligent search of its files, records, and electronically stored information in an effort to identify and locate documents responsive to the Requests. However, discovery in this matter is ongoing, and Nexford's investigation and review of facts and documents relating to this action is continuing.
Nexford expressly reserves the right to supplement, amend, or correct these Responses and Objections as additional information becomes available during the course of discovery, as permitted and required by Illinois Supreme Court Rule 214 and the Illinois Rules of Civil Procedure. Nothing in these Responses is intended to constitute a waiver of any objection, privilege, or right that Nexford may assert at any time during this proceeding.
The assertion of any specific response herein does not constitute an admission that any document or category of documents is relevant to, or admissible in, this action. Similarly, the production of any document pursuant to these Responses does not constitute a waiver of any objection to the relevance, authenticity, or admissibility of such document at trial or in connection with any motion.
II. GENERAL OBJECTIONS
Nexford sets forth the following General Objections, each of which is incorporated by reference into every specific response set forth below as if fully stated therein. The assertion of these General Objections does not waive any specific objections set forth in the individual responses, and the specific objections set forth in the individual responses do not waive these General Objections.
A. Objection as to Overbreadth and Undue Burden
Nexford objects to each and every Request, and to any specific instruction or definition accompanying the Requests, to the extent such Request is overly broad, unduly burdensome, or not proportional to the needs of this case. This action involves disputed surcharge invoices arising under a single Master Supply Agreement (MSA-NIH-CPI-2020-001) for a defined fourteen-month period running from March 2021 through May 2022. The amount in controversy, as alleged in the Complaint, is approximately $4.73 million in disputed surcharges. Nexford objects to any Request that is disproportionate to the scope and nature of this dispute or that would require Nexford to undertake an unreasonable search of files and records that are unlikely to yield relevant, non-duplicative documents.
B. Objection as to Relevance
Nexford objects to each and every Request to the extent it seeks documents that are not relevant to the claims or defenses in this action, or that are not reasonably calculated to lead to the discovery of admissible evidence. The claims at issue in this action include Plaintiff's claims for breach of contract (Count I), unjust enrichment (Count II), and account stated (Count III), as set forth in the Complaint filed on August 8, 2022, and Defendant's counterclaim for breach of contract and declaratory relief (Counts I and II of the Counterclaim), as set forth in the Counterclaim filed on October 14, 2022. Nexford objects to any Request that seeks documents outside the scope of these claims and defenses.
C. Objection as to Attorney-Client Privilege and Work Product
Nexford objects to each and every Request to the extent it calls for or would require the production of documents or communications that are protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege or protection recognized under the laws of the State of Illinois or under federal common law. Without limiting the foregoing, Nexford specifically objects to any Request that seeks communications between Nexford and its counsel, including Calderwood & Harkness LLP, or any other attorneys retained by Nexford or its affiliates in connection with this matter, as well as documents prepared by or at the direction of counsel in anticipation of litigation or for trial.
Nexford will provide a privilege log identifying documents withheld in whole or in part on the basis of privilege or work product protection, in accordance with Illinois Supreme Court Rule 201(n). The privilege log will be provided within a reasonable time following the initial document production.
D. Objection as to Confidential Business Information
Nexford objects to each and every Request to the extent it seeks proprietary, confidential, or trade secret information of Nexford or its affiliates that is not directly related to the MSA or the surcharge dispute at issue in this litigation. Without limiting the foregoing, Nexford specifically objects to Requests that seek internal pricing analyses, cost models, supplier negotiations with third parties, financial projections, strategic planning documents, and other commercially sensitive information, the disclosure of which could cause competitive harm to Nexford. To the extent any confidential or proprietary documents are produced in this action, Nexford reserves the right to designate such documents as "Confidential" or "Highly Confidential — Attorneys' Eyes Only" pursuant to any protective order entered by the Court or, in the absence of such an order, to seek appropriate protections prior to production.
E. Objection as to Temporal Scope
Nexford objects to each and every Request that is not reasonably limited in temporal scope. The MSA was executed on January 15, 2020, and the disputed surcharge period runs from March 2021 through May 2022, a period of approximately fourteen months. Requests seeking documents outside this period, or extending indefinitely into the past or forward "to the present," are objected to as overly broad and not proportional to the needs of the case absent specific justification demonstrating the relevance of documents from outside the disputed period.
F. Objection Regarding "All" or "Each and Every" Language
Nexford objects to each and every Request that uses the phrases "all," "any and all," "each and every," or similar all-inclusive modifiers to the extent such language renders the Request overbroad, unduly burdensome, or disproportionate to the needs of the case. Nexford will construe such Requests to require a reasonable search of files, records, and electronically stored information that are reasonably likely to contain responsive documents, including the files of custodians identified as likely to possess relevant documents. Nexford does not undertake to search every file, database, or repository maintained by the company and its affiliates for documents that might, under the broadest possible reading, be deemed responsive.
G. Preservation of Objections
The assertion of these General Objections is not intended to, and shall not, waive any specific objection set forth below. Likewise, the assertion of a specific objection in response to a particular Request is not intended to, and shall not, waive any General Objection. The production of documents in response to any Request shall not constitute an admission that such documents are relevant to, or admissible in, this action, nor shall it constitute a waiver of any objection, privilege, or defense. Nexford's agreement to produce certain categories of documents in response to a Request does not constitute acquiescence in Plaintiff's characterization of the scope of that Request.
III. RESPONSE TO DEFINITIONS AND INSTRUCTIONS
Nexford has reviewed the Definitions and Instructions set forth in Plaintiff's First Request for Production of Documents. Nexford adopts Plaintiff's definitions to the extent such definitions are not inconsistent with these General Objections and are not themselves overbroad or unduly burdensome. Where Plaintiff has not defined a term, Nexford interprets such term in its ordinary and customary meaning as used in the context of commercial litigation in the State of Illinois.
To the extent Plaintiff's definitions purport to expand the scope of a Request beyond what is reasonable and proportional to the needs of this case — for example, by defining "document" or "communication" to include categories of materials that are not reasonably likely to contain relevant information, or by defining "relating to" in a manner that would encompass any tangential reference — Nexford applies the more limited, reasonable construction of such terms consistent with Illinois discovery practice. Nexford's use of any term defined by Plaintiff in these Responses shall not be construed as acceptance of Plaintiff's definition of that term for any other purpose.
IV. SPECIFIC RESPONSES TO REQUESTS FOR PRODUCTION
REQUEST NO. 1
Request: All documents constituting or relating to the Master Supply Agreement dated January 15, 2020, between Cardinal Peak Industries and Nexford Industrial Holdings Inc. (MSA-NIH-CPI-2020-001), including all exhibits, amendments, supplements, and addenda thereto.
Response: Nexford objects to this Request to the extent the phrase "relating to" is vague and overbroad, as it could be construed to encompass any document that makes any reference, however tangential, to the Master Supply Agreement. So construed, the Request would sweep in thousands of routine correspondence, purchase orders, invoices, and internal records that merely reference the MSA by number or by subject matter, many of which are more appropriately sought through more targeted Requests (such as Requests Nos. 2 through 12, below). Nexford further incorporates its General Objections herein by reference.
Subject to and without waiving the foregoing objection and the General Objections stated above, Nexford will produce the executed Master Supply Agreement MSA-NIH-CPI-2020-001, dated January 15, 2020, including all exhibits, schedules, and any amendments or supplements thereto that are in Nexford's possession, custody, or control. The documents to be produced include the following:
(a) The Master Supply Agreement itself, which sets forth, among other things, the base pricing for Hot-Rolled Coil ("HRC") at $620 per ton and Cold-Rolled Coil ("CRC") at $740 per ton, as specified in Section 7.2 of the MSA;
(b) The surcharge pass-through provisions set forth in Section 7.4 of the MSA, which govern the calculation, notice, and payment of raw material and energy cost surcharges;
(c) Exhibit C to the MSA (Surcharge Methodology), which prescribes the methodology for calculating surcharges based on the Ferrous Scrap Index (as published by Bramwell Industries) and the Industrial Energy Cost Index, applied to a baseline scrap cost of $340 per ton and a baseline energy cost of $48 per ton;
(d) All additional exhibits and schedules to the MSA; and
(e) Any amendments, supplements, or addenda to the MSA executed by the parties.
Nexford is not aware of any formal written amendments to the MSA executed after January 15, 2020. To the extent any modifications to the MSA's terms were discussed or proposed but not formally executed, responsive documents reflecting such discussions, if any, will be produced in response to other, more targeted Requests.
Documents to be Produced: NIH-CPI-000001 through NIH-CPI-000047 (Master Supply Agreement and all exhibits, schedules, and related documents).
REQUEST NO. 2
Request: All Surcharge Notices received by Nexford from Cardinal Peak Industries during the period March 2021 through May 2022, including any supporting documentation accompanying such notices.
Response: Subject to the General Objections stated above, which are incorporated herein by reference, Nexford will produce all Surcharge Notices received from Cardinal Peak during the period March 2021 through May 2022 that are in Nexford's possession, custody, or control, together with any supporting documentation that was attached to, submitted with, or otherwise accompanied such Surcharge Notices at the time of receipt.
Nexford notes that during the fifteen-month period from March 2021 through May 2022, Cardinal Peak submitted surcharge invoices for each month. The April 2021 surcharge was paid in full by Nexford and is not in dispute in this litigation; however, in the interest of completeness and to provide the Court and the parties with a full picture of the surcharge history during the relevant period, Nexford will produce the April 2021 Surcharge Notice along with all other Surcharge Notices for the period. The remaining fourteen months of surcharge invoices are the subject of the parties' dispute, with Cardinal Peak claiming a total of approximately $6.41 million in surcharges during the disputed period and Nexford having paid $1.68 million of that amount.
Documents to be Produced: NIH-CPI-000048 through NIH-CPI-000189 (Surcharge Notices and accompanying supporting documentation for the period March 2021 through May 2022).
REQUEST NO. 3
Request: All documents reflecting, recording, or relating to Nexford's review, analysis, acceptance, rejection, or partial payment of any surcharge invoice submitted by Cardinal Peak during the period March 2021 through May 2022.
Response: Nexford objects to this Request to the extent it seeks documents or communications that are protected by the attorney-client privilege or the work product doctrine. Without limiting the foregoing, Nexford's in-house and outside counsel were consulted regarding the proper interpretation and application of the MSA's surcharge provisions, and certain documents reflecting legal analysis or legal advice concerning the surcharge invoices are privileged and will not be produced. Nexford further incorporates its General Objections herein by reference.
Subject to and without waiving the foregoing objection and the General Objections, Nexford will produce non-privileged documents reflecting Nexford's internal review and analysis of Cardinal Peak's surcharge invoices during the disputed period of March 2021 through May 2022. This production will include the surcharge review logs maintained by Russell Okonkwo, Vice President of Procurement, and his team within Nexford's procurement department. These surcharge review logs track, for each month during the disputed period, the following information:
(a) The invoice date of the surcharge;
(b) The date on which the Surcharge Notice was delivered to Nexford;
(c) Whether the fifteen-business-day advance notice deadline under Section 7.4(a) of the MSA was met;
(d) The surcharge amount invoiced by Cardinal Peak;
(e) The surcharge amount approved for payment by Nexford; and
(f) The basis for any rejection or partial payment of the surcharge invoice.
These logs and related internal analysis worksheets reflect that Nexford paid a total of $1.68 million of the $6.41 million in surcharges invoiced by Cardinal Peak during the disputed period. The procurement department review records further document the specific grounds on which each invoice was disputed or partially rejected.
Nexford will withhold privileged documents responsive to this Request and will identify such documents on its privilege log.
Documents to be Produced: NIH-CPI-000190 through NIH-CPI-000267 (surcharge review logs, internal analysis worksheets, and procurement department review records).
REQUEST NO. 4
Request: All documents relating to payments made by Nexford to Cardinal Peak on account of surcharge invoices during the period March 2021 through May 2022, including wire transfer confirmations, check records, accounts payable records, and remittance advices.
Response: Subject to the General Objections stated above, which are incorporated herein by reference, Nexford will produce payment records documenting all surcharge-related payments made by Nexford to Cardinal Peak during the period March 2021 through May 2022. These records reflect that Nexford made surcharge payments totaling approximately $1.68 million during the disputed period, consisting of both full payments on certain invoices and partial payments on others.
The production in response to this Request will include the following categories of documents:
(a) Accounts payable ledger entries reflecting surcharge payments to Cardinal Peak;
(b) Wire transfer confirmations for payments transmitted electronically;
(c) Remittance advices accompanying surcharge payments; and
(d) Internal payment authorization forms reflecting the approval of surcharge payments by authorized Nexford personnel.
Nexford objects to producing general accounts payable records, ledger entries, or financial records that are unrelated to the Cardinal Peak surcharge invoices at issue in this litigation. Payment records for base pricing under the MSA (i.e., payments for HRC and CRC at the contractually specified base prices) are not responsive to this Request and will not be produced in this response, though Nexford reserves the right to produce such records if they become relevant to a specific claim or defense.
Documents to be Produced: NIH-CPI-000268 through NIH-CPI-000334 (payment records, wire transfer confirmations, remittance advices, and payment authorization forms).
REQUEST NO. 5
Request: All communications between Nexford and Cardinal Peak, including their respective employees, officers, agents, and representatives, relating to the surcharge provisions of the MSA, surcharge invoices, Surcharge Notices, or the dispute over surcharge payments, from January 15, 2020 to the present.
Response: Nexford objects to this Request as overbroad in temporal scope to the extent it seeks communications from the MSA execution date of January 15, 2020, forward. The MSA was executed on January 15, 2020, and the first surcharge invoice at issue was not submitted until March 2021 — a period of over fourteen months during which no surcharge-related dispute existed between the parties. Communications from 2020 regarding surcharge provisions in the abstract, before any surcharges were even invoiced, are not proportional to the needs of this case.
Nexford further objects to this Request to the extent it seeks communications with, through, or involving legal counsel that are protected by the attorney-client privilege. This includes communications between Nexford personnel and Calderwood & Harkness LLP, communications involving Nexford's General Counsel Deborah Whitfield in her capacity as legal advisor, and communications with Plaintiff's counsel at Blackwood Stein & Associates LLP that were made in connection with settlement or compromise discussions protected under Illinois Rule of Evidence 408.
Subject to and without waiving the foregoing objections and the General Objections, Nexford will produce non-privileged correspondence and communications between Nexford personnel and Cardinal Peak personnel regarding surcharge matters during the period January 2021 through August 2022, which Nexford considers a reasonable temporal scope encompassing the period shortly before the first disputed surcharge through the filing of the Complaint. Nexford personnel whose files have been searched in connection with this Request include:
(a) Russell Okonkwo, Vice President of Procurement;
(b) Lydia Tran, Chief Financial Officer; and
(c) Deborah Whitfield, General Counsel (limited to non-privileged communications only).
The production will include emails, letters, written notifications, and other written or electronic communications regarding surcharge calculations, surcharge invoice disputes, payment disputes, and related matters. This includes the June 10, 2022 demand letter sent by Blackwood Stein & Associates LLP on behalf of Cardinal Peak and Nexford's July 5, 2022 response thereto, to the extent such correspondence is not protected by the attorney-client privilege or the settlement-discussion privilege.
Documents to be Produced: NIH-CPI-000335 through NIH-CPI-000512 (correspondence and communications regarding surcharges and the surcharge dispute).
REQUEST NO. 6
Request: All documents reflecting Nexford's interpretation or application of Section 7.4 of the MSA, including the 15-business-day notice requirement (Section 7.4(a)), the Exhibit C Surcharge Methodology, and the 12% surcharge cap (Section 7.4(c)).
Response: Nexford objects to this Request to the extent it seeks documents protected by the attorney-client privilege or the work product doctrine. The interpretation and application of the MSA's surcharge provisions was the subject of legal analysis and advice provided by both in-house and outside counsel, and documents reflecting such legal analysis and advice are privileged and will not be produced. Nexford also incorporates its General Objections herein by reference.
Subject to and without waiving the foregoing objection and the General Objections, Nexford will produce non-privileged documents reflecting Nexford's business interpretation and application of Section 7.4 of the MSA. This production will include the following categories of non-privileged documents:
(a) The surcharge review protocols and guidelines used by the procurement department under the direction of Russell Okonkwo, Vice President of Procurement, which set forth the procedures followed by Nexford personnel in reviewing and verifying Cardinal Peak's surcharge invoices;
(b) Internal tracking documents reflecting Nexford's monitoring of the fifteen-business-day Surcharge Notice deadline required by Section 7.4(a) of the MSA, including records showing the date of receipt of each Surcharge Notice and the date by which notice was required;
(c) Calculations and worksheets applying the Exhibit C Surcharge Methodology using published Ferrous Scrap Index data (Bramwell Industries) and Industrial Energy Cost Index data, and comparing such calculations to the amounts invoiced by Cardinal Peak; and
(d) Documents reflecting Nexford's monitoring of surcharges against the twelve percent (12%) cap provision of Section 7.4(c), including monthly cap tracking records.
Privileged documents withheld in response to this Request will be identified on Nexford's privilege log with sufficient detail to enable Plaintiff and the Court to assess the basis for each privilege claim.
Documents to be Produced: NIH-CPI-000513 through NIH-CPI-000571 (procurement protocols, surcharge tracking documents, Exhibit C methodology calculations, and cap monitoring records). Privilege log to be provided separately.
REQUEST NO. 7
Request: All documents reflecting or relating to Nexford's calculation of the surcharges it contends were properly owed to Cardinal Peak during the disputed period, including any spreadsheets, workpapers, or analyses.
Response: Subject to the General Objections stated above, which are incorporated herein by reference, and subject to the attorney-client privilege and work product objections set forth in General Objection C, Nexford will produce non-privileged procurement department workpapers and spreadsheets reflecting Nexford's calculation of the surcharges it determined were properly owed under the MSA during the period March 2021 through May 2022.
These calculations reflect Nexford's position that it identified three categories of deficiency in Cardinal Peak's surcharge invoices, which are summarized as follows:
(1) Late Surcharge Notices (Section 7.4(a) violations): For seven (7) of the fourteen (14) disputed months, Nexford's records indicate that Cardinal Peak failed to deliver its Surcharge Notices within the fifteen-business-day advance period required by Section 7.4(a) of the MSA. The surcharges invoiced for these months total approximately $2.18 million. It is Nexford's position that late Surcharge Notices do not give rise to a valid surcharge obligation under the MSA;
(2) Methodology Deviations from Exhibit C: Nexford's analysis indicates that Cardinal Peak used an internal "blended cost" metric — rather than the contractually specified published Ferrous Scrap Index and Industrial Energy Cost Index — in calculating the surcharges for multiple months during the disputed period. This deviation from the Exhibit C Surcharge Methodology resulted in inflated surcharges totaling approximately $1.47 million above the amounts that would have been calculated using the published indices and the agreed baseline scrap cost of $340 per ton and baseline energy cost of $48 per ton; and
(3) Surcharges Exceeding the 12% Cap (Section 7.4(c) violations): For four (4) months during the disputed period, the surcharges invoiced by Cardinal Peak exceeded the twelve percent (12%) cap set forth in Section 7.4(c) of the MSA without Cardinal Peak having obtained prior written consent from Nexford as required by the MSA. The excess amounts above the 12% cap for these months total approximately $1.08 million.
The workpapers to be produced also reflect Nexford's position that, after accounting for all three categories of deficiency, the maximum additional surcharge obligation owed by Nexford beyond the $1.68 million already paid is approximately $0.21 million, for a total maximum surcharge obligation of approximately $1.89 million during the disputed period.
Documents to be Produced: NIH-CPI-000572 through NIH-CPI-000623 (surcharge calculation workpapers, spreadsheets, and related analyses).
REQUEST NO. 8
Request: All documents relating to any notice provided by Nexford to Cardinal Peak disputing any surcharge invoice, as contemplated by Section 7.4(d) of the MSA, including the date of such notice.
Response: Subject to the General Objections stated above, which are incorporated herein by reference, Nexford will produce all written dispute notices sent by Nexford to Cardinal Peak pursuant to Section 7.4(d) of the MSA during the disputed period. Section 7.4(d) of the MSA requires the Buyer (Nexford) to notify the Seller (Cardinal Peak) of any disputed surcharge within thirty (30) calendar days of receipt of the Surcharge Notice, specifying the basis for the dispute. Nexford will produce the dispute notices themselves and contemporaneous documentation supporting the basis for each dispute, to the extent such documentation accompanied or was referenced in the dispute notices.
Documents to be Produced: NIH-CPI-000624 through NIH-CPI-000689 (dispute notices sent to Cardinal Peak pursuant to Section 7.4(d) and supporting documentation).
REQUEST NO. 9
Request: All documents reflecting any written consent by Nexford for surcharges exceeding the 12% cap set forth in Section 7.4(c) of the MSA.
Response: Subject to the General Objections stated above, which are incorporated herein by reference, Nexford responds that it did not provide written consent to Cardinal Peak authorizing surcharges in excess of the twelve percent (12%) cap set forth in Section 7.4(c) of the MSA at any time during the disputed period of March 2021 through May 2022. After a reasonable and diligent search of its records, Nexford has identified no documents responsive to this Request. No such documents exist.
It is Nexford's position that for the four (4) months during the disputed period in which surcharges invoiced by Cardinal Peak exceeded the 12% cap established in Section 7.4(c), Cardinal Peak was required to obtain prior written consent from Nexford before imposing the excess surcharge, and no such consent was requested or obtained. The surcharge amounts exceeding the 12% cap for those four months total approximately $1.08 million, which Nexford contends is not owed under the terms of the MSA.
Documents to be Produced: None. No responsive documents exist.
REQUEST NO. 10
Request: All published Ferrous Scrap Index data (as reported by Platts/SPI) and Industrial Energy Cost Index data relied upon or referenced by Nexford in connection with its review of Cardinal Peak's surcharge invoices during the period March 2021 through May 2022.
Response: Subject to the General Objections stated above, which are incorporated herein by reference, Nexford will produce copies of the published Ferrous Scrap Index data, as reported by Bramwell Industries (formerly S&P Global Platts), and the Industrial Energy Cost Index data for each month during the period March 2021 through May 2022. These published index data were obtained and used by Nexford's procurement department in reviewing and verifying Cardinal Peak's surcharge invoices against the Exhibit C Surcharge Methodology.
As set forth in Exhibit C to the MSA, the proper calculation of surcharges requires reference to these published indices, applied to the agreed baseline scrap cost of $340 per ton and the agreed baseline energy cost of $48 per ton. The published index data to be produced represent the source data that Nexford contends should have been used by Cardinal Peak in calculating its surcharges, rather than the internal "blended cost" metric that Cardinal Peak used for certain months, as described in Nexford's response to Request No. 7.
Nexford notes that the published Ferrous Scrap Index data and Industrial Energy Cost Index data are third-party publications and are not proprietary to Nexford. The data are being produced for the convenience of the parties and the Court, and Nexford does not waive any objection to the authenticity or admissibility of such data.
Documents to be Produced: NIH-CPI-000690 through NIH-CPI-000721 (published Ferrous Scrap Index and Industrial Energy Cost Index data for each month of the disputed period, March 2021 through May 2022).
REQUEST NO. 11
Request: All documents relating to any internal policies, procedures, or guidelines of Nexford regarding the review, approval, or payment of surcharge invoices from suppliers, including but not limited to Cardinal Peak.
Response: Nexford objects to this Request as overbroad and not proportional to the needs of this case to the extent it seeks internal policies, procedures, or guidelines regarding the review, approval, or payment of surcharge invoices from all of Nexford's suppliers. Nexford maintains supply relationships with numerous steel and raw material suppliers, and its internal procurement policies for suppliers other than Cardinal Peak are not relevant to the claims and defenses arising under the Cardinal Peak MSA. The production of company-wide procurement policies would impose an undue burden on Nexford and would not yield information relevant to the specific surcharge dispute at issue. Nexford further incorporates its General Objections herein by reference.
Subject to and without waiving the foregoing objection, Nexford will produce non-privileged internal procurement policies and procedures that are specifically applicable to the review, approval, and payment of surcharge invoices under the Cardinal Peak MSA, including authorization thresholds for approval of surcharge payments, escalation procedures for disputed invoices, and the surcharge review workflow maintained by the procurement department under the direction of Russell Okonkwo, Vice President of Procurement.
Documents to be Produced: NIH-CPI-000722 through NIH-CPI-000741 (procurement policies and procedures applicable to the Cardinal Peak MSA and surcharge invoice review).
REQUEST NO. 12
Request: All purchase orders, delivery receipts, and shipping records for steel products (HRC and CRC) purchased by Nexford from Cardinal Peak during the period March 2021 through May 2022.
Response: Subject to the General Objections stated above, which are incorporated herein by reference, Nexford will produce purchase orders, delivery receipts, and shipping records for Hot-Rolled Coil ("HRC") and Cold-Rolled Coil ("CRC") products purchased by Nexford from Cardinal Peak during the period March 2021 through May 2022.
The MSA contemplated estimated annual volumes of approximately 18,000 tons of HRC and 6,500 tons of CRC, for a combined estimated annual volume of approximately 24,500 tons. The purchase orders, delivery receipts, and shipping records to be produced reflect the actual volumes ordered and received by Nexford during the disputed period and provide the underlying transactional data against which surcharges were assessed by Cardinal Peak.
Documents to be Produced: NIH-CPI-000742 through NIH-CPI-000948 (purchase orders, delivery receipts, and shipping records for HRC and CRC products purchased from Cardinal Peak during March 2021 through May 2022).
REQUEST NO. 13
Request: All financial statements, annual reports, or audit reports of Nexford Industrial Holdings Inc. for fiscal years 2020, 2021, and 2022.
Response: Nexford objects to this Request as overbroad, unduly burdensome, and seeking documents that are not relevant to the surcharge dispute under the MSA and are not proportional to the needs of this case. This litigation concerns the proper calculation and payment of surcharge invoices under a specific Master Supply Agreement between the parties. Nexford's consolidated financial statements, annual reports, and audit reports encompass the full scope of Nexford's business operations and financial condition, the vast majority of which has no bearing on the parties' dispute regarding the interpretation and application of Section 7.4 of the MSA and the Exhibit C Surcharge Methodology.
Nexford further objects to this Request to the extent it seeks confidential and proprietary financial information that is not proportional to the needs of this case. Nexford is a privately held company, and its financial statements are not publicly available. The disclosure of Nexford's complete financial statements would reveal sensitive information regarding Nexford's revenues, costs, margins, capital structure, and overall financial performance that is wholly unrelated to the surcharge dispute.
Without waiving these objections, Nexford notes that its independent auditors are Hargrove Kellner CPAs LLP, and to the extent that any financial records specifically relating to the surcharge payments at issue in this litigation are relevant to the claims or defenses, such records will be produced in response to other, more targeted Requests, including Request Nos. 4 and 7. Nexford will not produce its complete financial statements, annual reports, or audit reports in response to this Request.
Documents to be Produced: None. Surcharge-specific financial records are being produced in response to other, more targeted Requests.
REQUEST NO. 14
Request: All documents relating to Nexford's credit facilities or loan agreements with any lender, to the extent such documents contain provisions relating to the resolution of litigation, settlement authority, or payment of settlement amounts.
Response: Nexford objects to this Request as overbroad, unduly burdensome, and seeking confidential information that is not relevant to the claims or defenses in this action and is not proportional to the needs of the case. The terms of Nexford's credit facilities with its lenders, including the existence and terms of any provisions relating to the resolution of litigation, settlement authority, or the payment of settlement amounts, are confidential and proprietary and bear no relevance to whether Cardinal Peak properly calculated and timely noticed surcharges under the MSA.
Without waiving these objections, Nexford further objects on the ground that the terms of its credit agreement with Ridgecrest National Bank, N.A., or with any other lender, are not relevant to any claim or defense in this action. Whether Nexford's credit facility contains notice or consent provisions regarding litigation or settlement is not germane to the interpretation of the MSA, the calculation of surcharges under Exhibit C, or the timeliness of Surcharge Notices under Section 7.4(a). The Request appears designed to obtain confidential information about Nexford's financial arrangements that has no bearing on the merits of this dispute.
Documents to be Produced: None.
REQUEST NO. 15
Request: All documents relating to any communications between Nexford and its parent, affiliate, or equity sponsor regarding the Cardinal Peak surcharge dispute, the MSA, or this litigation.
Response: Nexford objects to this Request as overbroad and as seeking documents that are protected by the attorney-client privilege, the common interest privilege, and/or the work product doctrine. Communications between Nexford and Marlowe Asset Management Bluff Capital Partners, LP ("Marlowe Asset Management Bluff"), which is Nexford's majority equity owner, regarding this litigation and the underlying surcharge dispute were made in connection with and for the purpose of obtaining or providing legal advice and/or in anticipation of litigation. Such communications are protected by the attorney-client privilege and, to the extent they involve shared legal interests between Nexford and its equity sponsor in connection with this dispute, by the common interest privilege.
Nexford further objects on the ground that internal business communications between a company and its equity sponsor regarding pending litigation strategy, settlement authority, and related matters are protected by the attorney-client privilege and the work product doctrine. The disclosure of such communications would reveal confidential legal strategy and legal advice and would undermine the fundamental protections afforded by these privileges.
Nexford will include responsive privileged documents on its privilege log to be provided in accordance with Illinois Supreme Court Rule 201(n).
Documents to be Produced: None. Privileged documents responsive to this Request will be identified on the privilege log.
REQUEST NO. 16
Request: All documents relating to Nexford's procurement or purchase of steel products (HRC and CRC) from any supplier other than Cardinal Peak during the period January 2020 through May 2022.
Response: Nexford objects to this Request as overbroad, unduly burdensome, and not relevant to the claims and defenses in this action. The dispute in this case concerns Cardinal Peak's compliance with the surcharge provisions of the MSA between the parties; it does not concern Nexford's procurement relationships with other steel suppliers or the terms of any other supply agreement. Production of documents relating to Nexford's procurement of HRC and CRC from other suppliers would require an unreasonable and burdensome search of procurement records that are wholly unrelated to the surcharge dispute between Nexford and Cardinal Peak.
Nexford further objects on the ground that its procurement relationships, pricing arrangements, and supply agreements with other steel suppliers constitute confidential and proprietary business information, and the disclosure of such information could cause competitive harm to Nexford. This Request is not proportional to the needs of the case, and the burden and expense of the proposed production clearly outweigh its likely benefit.
Documents to be Produced: None.
REQUEST NO. 17
Request: All documents reflecting or relating to any escalation of the surcharge dispute to senior officers of Nexford, as contemplated by Section 7.4(d) of the MSA, including any records of meetings, calls, or negotiations between senior officers of Nexford and Cardinal Peak.
Response: Subject to the General Objections stated above, which are incorporated herein by reference, and subject to the attorney-client privilege objection set forth in General Objection C, Nexford will produce non-privileged documents reflecting the escalation of the surcharge dispute to senior officers of Nexford and any subsequent discussions between senior officers of the parties, as contemplated by the dispute escalation procedure set forth in Section 7.4(d) of the MSA.
Nexford personnel whose files have been searched and who participated in senior officer escalation discussions include:
(a) Martin Schaeffer, Chief Executive Officer;
(b) Lydia Tran, Chief Financial Officer;
(c) Russell Okonkwo, Vice President of Procurement; and
(d) Deborah Whitfield, General Counsel (limited to non-privileged communications only).
The production will include records of discussions, meetings, telephone calls, and negotiations between these senior Nexford officers and senior officers of Cardinal Peak regarding attempts to resolve the surcharge dispute prior to formal mediation, as provided for in the dispute escalation procedure of Section 7.4(d). Documents reflecting legal advice or legal analysis provided by Deborah Whitfield in her capacity as General Counsel, or by outside counsel, will be withheld as privileged and identified on Nexford's privilege log.
Documents to be Produced: NIH-CPI-000949 through NIH-CPI-000983 (records of senior officer escalation, meetings, calls, and discussions regarding resolution of the surcharge dispute).
REQUEST NO. 18
Request: All documents relating to the termination or non-renewal of the MSA, including any notices of termination, non-renewal correspondence, and discussions regarding the continuation or wind-down of the supply relationship.
Response: Nexford objects to this Request to the extent it is premature and seeks documents relating to events occurring after the filing of the Complaint on August 8, 2022, including any post-litigation communications or negotiations regarding the future of the supply relationship that may implicate attorney-client privilege or settlement discussions. Nexford further incorporates its General Objections herein by reference.
Subject to and without waiving the foregoing objection, Nexford notes that the MSA has an original term of three (3) years, commencing January 15, 2020 and expiring January 14, 2023, with automatic renewal for successive one-year terms unless either party provides written notice of non-renewal at least one hundred eighty (180) days prior to the expiration of the then-current term (Section 2.1 of the MSA). As of the date of these Responses, the MSA remains in effect, and the automatic renewal date for the first renewal period is approaching.
Nexford will produce any non-privileged documents responsive to this Request that exist as of the date of production. To the extent additional responsive documents come into existence after the date of production — including, without limitation, any notices of termination or non-renewal that may be issued prior to or following the January 14, 2023 renewal date — Nexford will supplement its response in accordance with its continuing obligations under the Illinois Supreme Court Rules.
Documents to be Produced: To be produced to the extent responsive, non-privileged documents exist at the time of production. Nexford reserves the right to supplement this response as appropriate.
V. PRIVILEGE LOG RESERVATION
Nexford will provide a privilege log in compliance with Illinois Supreme Court Rule 201(n) identifying all documents withheld in whole or in part on the basis of the attorney-client privilege, the common interest privilege, the work product doctrine, or any other applicable privilege or protection.
The privilege log will include sufficient information to enable Plaintiff and the Court to assess the basis for each privilege claim, including for each withheld document or communication: (a) the date of the document or communication; (b) the author or sender; (c) all recipients and any persons copied; (d) the general subject matter of the document or communication (without revealing privileged content); and (e) the specific privilege or protection asserted.
Nexford anticipates that the privilege log will be provided within thirty (30) days of the initial document production, or at such other time as the parties may agree or the Court may order.
VI. DOCUMENT PRODUCTION FORMAT
Documents responsive to the Requests will be produced in electronic format, consisting of single-page TIFF images with corresponding load files (including Concordance and Relativity load files) and extracted or OCR-generated text files, in accordance with the parties' agreed-upon discovery protocols and any applicable standing orders of this Court regarding electronically stored information.
Where original documents are in paper form and have not been previously digitized, such documents will be scanned and produced as TIFF images with OCR text. Native-format files will be produced for spreadsheets and other documents where the native format is necessary to preserve the document's functionality or content.
All documents produced by Nexford in response to these Requests will be Bates-stamped with the prefix "NIH-CPI-" followed by sequential numbering, beginning with NIH-CPI-000001.
VII. RESERVATION OF RIGHTS
Nexford expressly reserves the right to supplement, amend, or correct these Responses and Objections in accordance with its continuing obligations under Illinois Supreme Court Rules 214 and 201 through 218, as additional information and documents become available through ongoing investigation, discovery, and review.
The production of documents in response to any Request shall not constitute a waiver of any objection, privilege, or defense, whether or not specifically asserted herein. Nexford does not concede the relevance, authenticity, or admissibility of any document produced, and reserves the right to object to the use of any such document at trial, at deposition, or in connection with any motion.
Nexford further reserves the right to rely upon documents produced by Plaintiff or by third parties in support of its defenses and counterclaims, and the fact that Nexford has not produced a particular document in response to these Requests shall not be deemed a concession that the document is not relevant or supportive of Nexford's positions.
Nothing in these Responses shall be construed as a waiver of Nexford's right to object to any additional discovery requests served by Plaintiff, or to seek the protection of the Court against discovery that is unreasonable, oppressive, or not proportional to the needs of the case.
RESPECTFULLY SUBMITTED,
NEXFORD INDUSTRIAL HOLDINGS INC., By its attorneys,
CALDERWOOD & HARKNESS LLP
By: ________
Priya Anand (ARDC No. 6328441) Simone Laroche (ARDC No. 6341097) CALDERWOOD & HARKNESS LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606 Telephone: (312) 555-8200 Facsimile: (312) 555-8201
Email: panand@calderwoodharkness.com
Email: slaroche@calderwoodharkness.com
Attorneys for Defendant Nexford Industrial Holdings Inc.
Date: January 9, 2023
CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that on January 9, 2023, a true and correct copy of the foregoing Defendant Nexford Industrial Holdings Inc.'s Responses and Objections to Plaintiff Cardinal Peak Industries' First Request for Production of Documents was served upon counsel for Plaintiff via electronic mail and by depositing a copy in the United States Mail, first-class postage prepaid, addressed to:
Garrett Blackwood, Esq. Megan Hsu, Esq. BLACKWOOD STEIN & ASSOCIATES LLP 717 Seventeenth Street, Suite 2200 Denver, Colorado 80202
Email: gblackwood@blackwoodstein.com
Email: mhsu@blackwoodstein.com
________________________________________
Priya Anand
CARDINAL PEAK INDUSTRIES, a Colorado limited liability company,
<!-- indent:2 -->Plaintiff,<!-- /indent -->
Case No. 2022-L-008471
v.
Calendar 10
NEXFORD INDUSTRIAL HOLDINGS INC., a Delaware corporation,
Hon. Patricia A. Muñoz
<!-- indent:2 -->Defendant.<!-- /indent -->