Preview
June 20, 2021
Norton Rose Fulbright US LLP
1301 Avenue of the Americas
New York, New York 10019-6022
Hon. Joel M. Cohen, J.S.C. United States
Supreme Court of the State of New York
Commercial Division Tel +1 212 318 3000
60 Centre Street Fax +1 212 318 3400
nortonrosefulbright.com
Courtroom 208
New York, NY 10007
Re: Yasemin Tekiner v. Bremen House Inc. et. al., 657193/2020 – Discovery Disputes
Regarding ESI Protocol & Non-Party Subpoenas to Aydin Caginalp and Raish LLC
Dear Justice Cohen:
We represent Defendants Bremen House, Inc., Bremen House Texas, Inc., German News
Company, Inc., German News Texas, Inc., 254-258 W 35th St LLC, Berrin Tekiner, Gonca
Tekiner, and Billur Akipek (“Defendants”) in the above referenced matter. The Parties have
conferred in a good faith effort to resolve discovery disputes raised in this letter. Because no
agreement has been reached, we write to request a conference in accordance with Commercial
Division Rule 14 and Section VI.B. of Your Honor’s Individual Practices and Procedures.
Document discovery is ongoing, but the parties have come to an impasse over the entry of an
ESI protocol, specifically, the use of search terms to narrow the universe of documents for review.
In addition, Plaintiff has served Defendants with 87 document requests and subpoenaed a
collective 539 document requests from 13 non-parties. These requests are wildly overbroad,
invasive—even seeking a defendant’s personal health information from her own husband—and
subpoena the same documents multiple times over. Defendants have raised concerns about
Plaintiff’s subpoenas to no avail, and now seek Your Honor’s intervention on those subpoenas
directed to Raish LLC (“Raish”) and Aydin S. Caginalp (“Caginalp”), respectively.
ESI Protocol
On May 19, 2021, Defendants sent Plaintiff an extensive draft ESI protocol, including a process
for exchanging proposed search terms to use during document review. The parties met and
conferred regarding the proposed protocol on May 27, 2021 and Plaintiff provided proposed edits
on June 9, 2021. Defendants accepted most of Plaintiff’s proposed edits, but Plaintiff has resisted
using search terms in the ESI protocol—or at all. The parties met and conferred again on June
11, 2021 about the ESI protocol, but have been unable to resolve the dispute.
Defendants propose the use of search terms and/or technology assisted review (“TAR”) to cull
the large universe of documents for review, which is a widely recognized and encouraged
1
practice. See, e.g., 22 NYCRR § 202.70(g) ; O'Halloran v. Metropolitan Transportation Authority,
169 A.D.3d 556, 92 N.Y.S.3d 643 (1st Dep't 2019). Use of search terms and TAR is essential in
this case, given the document volume involved. For example, Defendants have collected roughly
1 Commercial Division Rule 11-e(f)): “The parties are encouraged to use the most efficient means to review
documents … proportional to the needs of the case. Such means may include technology-assisted review,
including predictive coding, in appropriate cases.”
Norton Rose Fulbright US LLP is a limited liability partnership registered under the laws of Texas.
Norton Rose Fulbright US LLP, Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP and Norton Rose
Fulbright South Africa Inc are separate legal entities and all of them are members of Norton Rose Fulbright Verein, a Swiss verein. Norton Rose Fulbright
Verein helps coordinate the activities of the members but does not itself provide legal services to clients. Details of each entity, with certain regulatory
information, are available at nortonrosefulbright.com.
Hon. Joel M. Cohen, J.S.C.
June 20, 2021
Page 2
462,000 emails and attachments from seven personal and work email accounts, in addition to
hard drives, share drives, and cellphone data. In sampling reviews conducted to date, many
emails and their attachments are wholly irrelevant, including spam and communications
concerning the Defendants’ children. Having to perform a human review of all documents would
easily cost upwards of $500,000-$750,000—based on conservative estimates—and take months.
Using search terms and TAR would reduce the burden and cost on Defendants defensibly by
selecting terms that are shown to hit on responsive documents, while excluding ones that are
clearly not relevant.
In response, Plaintiff’s counsel is skeptical that search terms are appropriate, given the nature of
the claims and the relationship between the parties. Rather than agreeing to the use of search
terms and TAR by way of an ESI protocol, Plaintiff’s counsel has directed Defendants to
unilaterally provide them with proposed search terms, custodians, and hit counts to review—all
without agreeing to the use of search terms in the first place or proposing the same for their own
side. Plaintiff’s counsel has repeatedly failed to respond to questions regarding how they propose
to review their own documents and data collected.
Plaintiff’s position is fundamentally unworkable, seeks to impose a disproportionate burden on
Defendants, and kicks the issue of search terms and TAR down the road. Defendants respectfully
request the Court’s support for the use of search terms and/or TAR for all parties in this case.
Subpoenas
On June 2, 2021, Defendants sent a letter to Plaintiff’s counsel objecting to certain third-party
subpoenas. Plaintiff has not responded in writing to Defendants’ objections, but the parties
unsuccessfully met and conferred on June 11, 2021. Defendants seek the withdrawal of both
subpoenas.
Subpoena to Raish LLC
Raish was a software vendor for the Defendant companies, whose representative, Paul
Schwartzman, at times worked at Defendants’ office to update its electronic system for tracking
rental income and expenses. Raish’s involvement in this dispute is minimal—at most it
presumably would only have data accumulated through Defendants’ use of its system. During
the June 11, 2021 meet-and-confer, Plaintiff’s counsel purported to justify its subpoena by
asserting that the documents from Raish would be relevant to Plaintiff’s claims that Defendants
engaged in waste by using Raish’s software, which Plaintiff’s counsel described as expensive,
bespoke, and dysfunctional. Not only is theory not in the Complaint, Plaintiff has sought 33
categories of documents from Raish that go far beyond this alleged scope, seeking information
about the Defendants’ business operations, property sales, mortgages, profit & loss statements,
appraisals, lists of company assets, transactions between the companies & officers, and any
potential complaints & concerns about the companies.
The documents sought from Raish are not properly tailored and have absolutely nothing to do
with the software Defendants used to track rental income or expenses, which is not referenced in
a single document request. Any information Raish may have concerning Defendants’ software
updates is irrelevant to this case. As such, the subpoena is “utterly irrelevant” to the action and
Hon. Joel M. Cohen, J.S.C.
June 20, 2021
Page 3
the “futility of the process to uncover anything legitimate is inevitable or obvious.” Kapon v. Koch,
23 N.Y.3d 32, 34 11 N.E.3d 709, 711 (2014).
More troublingly, Raish should not have any documents in its possession concerning how the
Defendants’ ran their business, as it was a mere software vendor. Should Raish have in its
possession any of the Defendants’ business files, they necessarily were taken improperly and/or
inadvertently retained. Raish is not authorized to have any of the Company Defendants’ files in
its possession, and is without authority to share them with third parties. If Raish retained the
Company Defendants’ files improperly, it may have violated Defendants’ proprietary and legal
rights, including but not limited to, those pertaining to data privacy and/or confidentiality.
Defendants further object to the deposition subpoena to Mr. Schwartzman as wholly
inappropriate, as it seeks to depose that individual on the same irrelevant information sought in
the document requests. It is Defendants understanding that Mr. Schwartzman was hired to
upgrade Defendants’ computer system, failed to do so, and was subsequently fired. Mr.
Schwartzman’s workmanship has nothing to do with this dispute.
Subpoena to Aydin S. Caginalp
Caginalp is a former trustee of Trust U/A/D/ February 20, 1990, an irrevocable inter vivos trust for
the benefit of Defendant Berrin Tekiner and her late husband Sami Tekiner (“Sami Tekiner Trust”).
As Defendants’ counsel explained during its meet and confer, Caginalp resigned in 2011, years
before the relevant events took place, well outside any applicable statute of limitations, and the
Sami Tekiner Trust itself is not at issue. Caginalp was also not involved in the Yasemin Tekiner
2011 Descendants Trust. Consequently, any information that Caginalp might have would be
irrelevant to the parties’ claims and defenses. The document requests themselves, which seek
“all documents concerning” any of the Defendants or communications with Plaintiff since 2011,
reveal that the subpoena is a part of an improper fishing expedition for information. As we
previously informed Plaintiff, to the extent there are any non-privileged documents related to the
Sami Tekiner Trust that are also relevant to this case, Defendants will produce those documents
in the normal course, rendering the subpoena wholly duplicative and unduly burdensome.
During the meet and confer, Plaintiff’s counsel would only go so far as to state that Caginalp was
a witness to the Defendants’ purported mismanagement of the Companies and would testify
concerning the same. Counsel refused to provide any details as to how, or what, documents
Caginalp might have, or why Caginalp’s testimony about an irrelevant trust from ten years ago
would be relevant. Counsel instead claimed that such information is attorney work product.
Plaintiff refused to narrow or withdraw the Caginalp subpoena. Defendants believe that the
subpoena seeks documents and information that is irrelevant, unduly burdensome, and wholly
duplicative of documents and testimony Plaintiff has sought from Defendants.
Respectfully submitted,
Judith A. Archer
Judith A. Archer
Cc: Counsel of Record (via NYSCEF)
80 Pine Street│ 33rd Floor │New York, NY │10005 │T. (212) 269-5600 │F. (646) 964-6667 │www.mandelbhandari.com
June 24, 2021
BY ECF
Hon. Joel M. Cohen, J.S.C.
Supreme Court of the State of New York
60 Centre Street, Courtroom 208
New York, NY 10007
Re: Tekiner v. Bremen House, et al., No. 657193/2020 – Discovery Disputes re
ESI Protocol and Third-Party Subpoenas
Dear Justice Cohen:
We represent Plaintiff Yasemin Tekiner (“Plaintiff”) in this case and write in response to
Defendants’ June 20, 2021 letter (the “Letter”). The sole purpose of Defendants’ Letter is to
delay and obstruct discovery here, and the Court should deny the relief it seeks.
I. Search Terms
There is no ripe dispute about search terms. Defendants have manufactured a non-
existent dispute to delay discovery. On May 24, the parties met and conferred about the use of
search terms. Plaintiff explained that she was skeptical that search terms could resolve all the
parties’ requests but that Defendants should provide custodian information, search terms, and hit
counts so that the parties could have a meaningful discussion. Defendants refused to provide any
of this information. In a June 10 email, Plaintiff reminded Defendants of the request for
custodians and search terms. Plaintiff also repeated this request during the parties’ June 11 meet
and confer, and again in an email on June 16. In that email, Plaintiff’s counsel explained that the
Court had ordered all parties to produce the first half of their documents by June 30 and that
“Defendants’ refusal to propose search terms and custodians is not a basis for violating or
extending the June 30 deadline.”
In the Letter, Defendants object to the fact that Plaintiff failed to propose search terms for
her own documents. But at no point did Defendants respond to these multiple written requests
with a reciprocal request for search terms or a proposal that the parties simultaneously exchange
review protocols. This is precisely because Defendants’ goal is to delay discovery rather than
reach agreement on review protocols.
Plaintiff has, thus far, collected 425,406 documents from her own media and those of her
romantic partner, Lisa Rubin, who Defendants have subpoenaed. This figure is extremely
similar to the 462,000 emails and attachments that Defendants say they have collected.
Hon. Joel M. Cohen, J.S.C.
June 24, 2021
Page 2
Plaintiff’s review of these documents is well underway, and Plaintiff expects to comply with the
Court Order requiring one-half of responsive documents to be produced by the June 30 deadline.
Although Defendants refuse to propose any actual search protocols, yesterday, Plaintiff
provided Defendants with a hybrid protocol for the review of the parties’ documents:
communications between certain individuals would be produced or reviewed in their entirety;
search terms would be used to review communications between other individuals. The parties
are making progress on this proposal. While there is no dispute for the Court to resolve for now,
Defendants should not be permitted to use this non-existent row to delay discovery.
II. Third-Party Subpoenas
Defendants have simultaneously sought broad and invasive third-party discovery and
demanded that Plaintiff withdraw subpoenas seeking entirely relevant discovery. For instance,
Defendants served Lisa Rubin – Plaintiff’s romantic partner – with a subpoena seeking
information about her income, vacations supposedly paid for by Plaintiff’s mother (Defendant
Berrin Tekiner (“Berrin”)), and furnishings she has bought for a Company-owned home in which
Plaintiff and Ms. Rubin reside. Meanwhile, Defendants demanded that Plaintiff withdraw a
subpoena issued to Berrin’s husband seeking information about goods, services, and other things
of value he received from the Company Defendants – information which goes to the heart of
Plaintiff’s claim that Individual Defendants treated the Company Defendants like their own
personal piggy bank. Defendants’ goals are to harass Plaintiff and her partner and obstruct
legitimate discovery requests, such as the subpoenas to Raish and Aydin S. Caginalp.
A. Raish
Until late 2020 or early 2021, Defendants’ primary software was managed by Raish and
its representative, Paul Schwartzman. This software managed virtually all the information about
Defendants’ real estate business, including but not limited to tenancy schedules, vacancies,
certain lease terms and amounts, tenants, rent payments and arrears, and other data needed to
operate a real estate investment and management business. Defendants were routinely incapable
of obtaining the information from this software that was necessary to operate the business. They
often resolved this problem by demanding that Mr. Schwartzman generate the reports that they
were unable to create on their own. This was particularly true during the negotiation of what was
supposed to be a $60 million sale of property to Extell. Defendants were unable to provide the
diligence information requested by Extell, and asked Mr. Schwartzman to generate it. Mr.
Schwartzman was in Defendants’ office on a daily basis trying to compile the information sought
by Extell. Even with Mr. Schwartzman’s assistance, Defendants were not able to provide much
of the requested information, and many of the reports that were generated were wrong. In the
wake of this embarrassing diligence process, Extell reduced the sale price, ultimately to $35
million. Mr. Schwartzman witnessed this diligence process first-hand, and told Defendants that
Extell was going to swindle them. Shortly after making this complaint, Defendants state that
they terminated him and closed the sale. Later, Extell claimed that Defendants breached a
warranty in the purchase agreement by providing them false lease information.
Hon. Joel M. Cohen, J.S.C.
June 24, 2021
Page 3
Suffice it to say, Raish and Mr. Schwartzman have information that goes to the heart of
this case. First, Plaintiff claims that the Individual Defendants are unwilling and unable to
manage the business and Raish and its representative possess information about Defendants’
inability to access the information needed to manage the business. Second, Plaintiff claims that
Defendants breached their fiduciary duties by entering into the Extell sale and agreeing to reduce
the sale price. As a first-hand witness to this negotiation, Mr. Schwartzman can testify about it,
including Defendants’ failure to provide necessary materials.
B. Aydin S. Caginalp
Defendants’ business is structured across a complex array of interlocking trusts and
business entities. The business was originally founded by Plaintiff’s father, Sami Tekiner
(“Sami”), and, unsurprisingly, the Sami Tekiner Trust continues to hold an interest in the
business, including owning 51% of Defendant 254-258 West 35th Street LLC. We believe that
Plaintiff is a contingent beneficiary of the Sami Tekiner Trust. Mr. Caginalp was Sami’s long-
time lawyer and Sami appointed him an independent trustee of the Sami Tekiner Trust. We
believe that Mr. Caginalp witnessed Berrin’s misappropriation, vociferously objected to it, and
was then asked to and did resign from his trusteeship (after demanding and receiving
indemnities). Berrin replaced Mr. Caginalp as Trustee with Yuksel Golpinar, Defendants’
employee who reported to Berrin. Mr. Caginalp’s documents and testimony are relevant to
Plaintiff’s claims that (1) the Individual Defendants have misappropriated corporate assets, (2)
Berrin unlawfully retaliated against Plaintiff by terminating her because she filed this lawsuit,
and (3) Berrin has improperly exercised control over the Company Defendants and Yasemin’s
Trust by installing her cronies as trustees, officers, and directors. As for this latter claim, as the
Court observed at the preliminary injunction phase, “the conflicting potentially obligations of
one trustee who simultaneously seems to have duties to the company and each of the three
principals is going to be an interesting story to watch unfold….” (NYSCEF Doc. 97 at 60-61.)
Defendants argue that Mr. Caginalp could not have discoverable information because his
trusteeship ended in 2011. However, pre-2011 claims are not time-barred because (1) they were
part of a “continuous wrong” that tolled the statute of limitations, Ganzi v. Ganzi, 183 A.D.3d
433, 434 (1st Dept. 2020), and (2) “[t]he statute of limitations “does not begin to run until the
fiduciary has openly repudiated his or her obligation or the relationship has been otherwise
terminated,” Robinson v. Day, 103 A.D.3d 584, 586 (1st Dept. 2013), and Defendants never
repudiated their fiduciary duties. Even if some claims arising out of pre-2011 misconduct were
time-barred, Mr. Caginalp’s documents and testimony would still be relevant to show that
Berrin’s misconduct was knowing and intentional, she installed subordinates in various positions
for the express purpose of exercising unilateral control over the business and to continue her
pattern of misappropriation, and that her termination of Plaintiff was retaliatory.
Respectfully submitted,
/s/ Evan Mandel
Evan Mandel
Preview
June 20, 2021 Norton Rose Fulbright US LLP 1301 Avenue of the Americas New York, New York 10019-6022 Hon. Joel M. Cohen, J.S.C. United States Supreme Court of the State of New York Commercial Division Tel +1 212 318 3000 60 Centre Street Fax +1 212 318 3400 nortonrosefulbright.com Courtroom 208 New York, NY 10007 Re: Yasemin Tekiner v. Bremen House Inc. et. al., 657193/2020 – Discovery Disputes Regarding ESI Protocol & Non-Party Subpoenas to Aydin Caginalp and Raish LLC Dear Justice Cohen: We represent Defendants Bremen House, Inc., Bremen House Texas, Inc., German News Company, Inc., German News Texas, Inc., 254-258 W 35th St LLC, Berrin Tekiner, Gonca Tekiner, and Billur Akipek (“Defendants”) in the above referenced matter. The Parties have conferred in a good faith effort to resolve discovery disputes raised in this letter. Because no agreement has been reached, we write to request a conference in accordance with Commercial Division Rule 14 and Section VI.B. of Your Honor’s Individual Practices and Procedures. Document discovery is ongoing, but the parties have come to an impasse over the entry of an ESI protocol, specifically, the use of search terms to narrow the universe of documents for review. In addition, Plaintiff has served Defendants with 87 document requests and subpoenaed a collective 539 document requests from 13 non-parties. These requests are wildly overbroad, invasive—even seeking a defendant’s personal health information from her own husband—and subpoena the same documents multiple times over. Defendants have raised concerns about Plaintiff’s subpoenas to no avail, and now seek Your Honor’s intervention on those subpoenas directed to Raish LLC (“Raish”) and Aydin S. Caginalp (“Caginalp”), respectively. ESI Protocol On May 19, 2021, Defendants sent Plaintiff an extensive draft ESI protocol, including a process for exchanging proposed search terms to use during document review. The parties met and conferred regarding the proposed protocol on May 27, 2021 and Plaintiff provided proposed edits on June 9, 2021. Defendants accepted most of Plaintiff’s proposed edits, but Plaintiff has resisted using search terms in the ESI protocol—or at all. The parties met and conferred again on June 11, 2021 about the ESI protocol, but have been unable to resolve the dispute. Defendants propose the use of search terms and/or technology assisted review (“TAR”) to cull the large universe of documents for review, which is a widely recognized and encouraged 1 practice. See, e.g., 22 NYCRR § 202.70(g) ; O'Halloran v. Metropolitan Transportation Authority, 169 A.D.3d 556, 92 N.Y.S.3d 643 (1st Dep't 2019). Use of search terms and TAR is essential in this case, given the document volume involved. For example, Defendants have collected roughly 1 Commercial Division Rule 11-e(f)): “The parties are encouraged to use the most efficient means to review documents … proportional to the needs of the case. Such means may include technology-assisted review, including predictive coding, in appropriate cases.” Norton Rose Fulbright US LLP is a limited liability partnership registered under the laws of Texas. Norton Rose Fulbright US LLP, Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP and Norton Rose Fulbright South Africa Inc are separate legal entities and all of them are members of Norton Rose Fulbright Verein, a Swiss verein. Norton Rose Fulbright Verein helps coordinate the activities of the members but does not itself provide legal services to clients. Details of each entity, with certain regulatory information, are available at nortonrosefulbright.com. Hon. Joel M. Cohen, J.S.C. June 20, 2021 Page 2 462,000 emails and attachments from seven personal and work email accounts, in addition to hard drives, share drives, and cellphone data. In sampling reviews conducted to date, many emails and their attachments are wholly irrelevant, including spam and communications concerning the Defendants’ children. Having to perform a human review of all documents would easily cost upwards of $500,000-$750,000—based on conservative estimates—and take months. Using search terms and TAR would reduce the burden and cost on Defendants defensibly by selecting terms that are shown to hit on responsive documents, while excluding ones that are clearly not relevant. In response, Plaintiff’s counsel is skeptical that search terms are appropriate, given the nature of the claims and the relationship between the parties. Rather than agreeing to the use of search terms and TAR by way of an ESI protocol, Plaintiff’s counsel has directed Defendants to unilaterally provide them with proposed search terms, custodians, and hit counts to review—all without agreeing to the use of search terms in the first place or proposing the same for their own side. Plaintiff’s counsel has repeatedly failed to respond to questions regarding how they propose to review their own documents and data collected. Plaintiff’s position is fundamentally unworkable, seeks to impose a disproportionate burden on Defendants, and kicks the issue of search terms and TAR down the road. Defendants respectfully request the Court’s support for the use of search terms and/or TAR for all parties in this case. Subpoenas On June 2, 2021, Defendants sent a letter to Plaintiff’s counsel objecting to certain third-party subpoenas. Plaintiff has not responded in writing to Defendants’ objections, but the parties unsuccessfully met and conferred on June 11, 2021. Defendants seek the withdrawal of both subpoenas. Subpoena to Raish LLC Raish was a software vendor for the Defendant companies, whose representative, Paul Schwartzman, at times worked at Defendants’ office to update its electronic system for tracking rental income and expenses. Raish’s involvement in this dispute is minimal—at most it presumably would only have data accumulated through Defendants’ use of its system. During the June 11, 2021 meet-and-confer, Plaintiff’s counsel purported to justify its subpoena by asserting that the documents from Raish would be relevant to Plaintiff’s claims that Defendants engaged in waste by using Raish’s software, which Plaintiff’s counsel described as expensive, bespoke, and dysfunctional. Not only is theory not in the Complaint, Plaintiff has sought 33 categories of documents from Raish that go far beyond this alleged scope, seeking information about the Defendants’ business operations, property sales, mortgages, profit & loss statements, appraisals, lists of company assets, transactions between the companies & officers, and any potential complaints & concerns about the companies. The documents sought from Raish are not properly tailored and have absolutely nothing to do with the software Defendants used to track rental income or expenses, which is not referenced in a single document request. Any information Raish may have concerning Defendants’ software updates is irrelevant to this case. As such, the subpoena is “utterly irrelevant” to the action and Hon. Joel M. Cohen, J.S.C. June 20, 2021 Page 3 the “futility of the process to uncover anything legitimate is inevitable or obvious.” Kapon v. Koch, 23 N.Y.3d 32, 34 11 N.E.3d 709, 711 (2014). More troublingly, Raish should not have any documents in its possession concerning how the Defendants’ ran their business, as it was a mere software vendor. Should Raish have in its possession any of the Defendants’ business files, they necessarily were taken improperly and/or inadvertently retained. Raish is not authorized to have any of the Company Defendants’ files in its possession, and is without authority to share them with third parties. If Raish retained the Company Defendants’ files improperly, it may have violated Defendants’ proprietary and legal rights, including but not limited to, those pertaining to data privacy and/or confidentiality. Defendants further object to the deposition subpoena to Mr. Schwartzman as wholly inappropriate, as it seeks to depose that individual on the same irrelevant information sought in the document requests. It is Defendants understanding that Mr. Schwartzman was hired to upgrade Defendants’ computer system, failed to do so, and was subsequently fired. Mr. Schwartzman’s workmanship has nothing to do with this dispute. Subpoena to Aydin S. Caginalp Caginalp is a former trustee of Trust U/A/D/ February 20, 1990, an irrevocable inter vivos trust for the benefit of Defendant Berrin Tekiner and her late husband Sami Tekiner (“Sami Tekiner Trust”). As Defendants’ counsel explained during its meet and confer, Caginalp resigned in 2011, years before the relevant events took place, well outside any applicable statute of limitations, and the Sami Tekiner Trust itself is not at issue. Caginalp was also not involved in the Yasemin Tekiner 2011 Descendants Trust. Consequently, any information that Caginalp might have would be irrelevant to the parties’ claims and defenses. The document requests themselves, which seek “all documents concerning” any of the Defendants or communications with Plaintiff since 2011, reveal that the subpoena is a part of an improper fishing expedition for information. As we previously informed Plaintiff, to the extent there are any non-privileged documents related to the Sami Tekiner Trust that are also relevant to this case, Defendants will produce those documents in the normal course, rendering the subpoena wholly duplicative and unduly burdensome. During the meet and confer, Plaintiff’s counsel would only go so far as to state that Caginalp was a witness to the Defendants’ purported mismanagement of the Companies and would testify concerning the same. Counsel refused to provide any details as to how, or what, documents Caginalp might have, or why Caginalp’s testimony about an irrelevant trust from ten years ago would be relevant. Counsel instead claimed that such information is attorney work product. Plaintiff refused to narrow or withdraw the Caginalp subpoena. Defendants believe that the subpoena seeks documents and information that is irrelevant, unduly burdensome, and wholly duplicative of documents and testimony Plaintiff has sought from Defendants. Respectfully submitted, Judith A. Archer Judith A. Archer Cc: Counsel of Record (via NYSCEF) 80 Pine Street│ 33rd Floor │New York, NY │10005 │T. (212) 269-5600 │F. (646) 964-6667 │www.mandelbhandari.com June 24, 2021 BY ECF Hon. Joel M. Cohen, J.S.C. Supreme Court of the State of New York 60 Centre Street, Courtroom 208 New York, NY 10007 Re: Tekiner v. Bremen House, et al., No. 657193/2020 – Discovery Disputes re ESI Protocol and Third-Party Subpoenas Dear Justice Cohen: We represent Plaintiff Yasemin Tekiner (“Plaintiff”) in this case and write in response to Defendants’ June 20, 2021 letter (the “Letter”). The sole purpose of Defendants’ Letter is to delay and obstruct discovery here, and the Court should deny the relief it seeks. I. Search Terms There is no ripe dispute about search terms. Defendants have manufactured a non- existent dispute to delay discovery. On May 24, the parties met and conferred about the use of search terms. Plaintiff explained that she was skeptical that search terms could resolve all the parties’ requests but that Defendants should provide custodian information, search terms, and hit counts so that the parties could have a meaningful discussion. Defendants refused to provide any of this information. In a June 10 email, Plaintiff reminded Defendants of the request for custodians and search terms. Plaintiff also repeated this request during the parties’ June 11 meet and confer, and again in an email on June 16. In that email, Plaintiff’s counsel explained that the Court had ordered all parties to produce the first half of their documents by June 30 and that “Defendants’ refusal to propose search terms and custodians is not a basis for violating or extending the June 30 deadline.” In the Letter, Defendants object to the fact that Plaintiff failed to propose search terms for her own documents. But at no point did Defendants respond to these multiple written requests with a reciprocal request for search terms or a proposal that the parties simultaneously exchange review protocols. This is precisely because Defendants’ goal is to delay discovery rather than reach agreement on review protocols. Plaintiff has, thus far, collected 425,406 documents from her own media and those of her romantic partner, Lisa Rubin, who Defendants have subpoenaed. This figure is extremely similar to the 462,000 emails and attachments that Defendants say they have collected. Hon. Joel M. Cohen, J.S.C. June 24, 2021 Page 2 Plaintiff’s review of these documents is well underway, and Plaintiff expects to comply with the Court Order requiring one-half of responsive documents to be produced by the June 30 deadline. Although Defendants refuse to propose any actual search protocols, yesterday, Plaintiff provided Defendants with a hybrid protocol for the review of the parties’ documents: communications between certain individuals would be produced or reviewed in their entirety; search terms would be used to review communications between other individuals. The parties are making progress on this proposal. While there is no dispute for the Court to resolve for now, Defendants should not be permitted to use this non-existent row to delay discovery. II. Third-Party Subpoenas Defendants have simultaneously sought broad and invasive third-party discovery and demanded that Plaintiff withdraw subpoenas seeking entirely relevant discovery. For instance, Defendants served Lisa Rubin – Plaintiff’s romantic partner – with a subpoena seeking information about her income, vacations supposedly paid for by Plaintiff’s mother (Defendant Berrin Tekiner (“Berrin”)), and furnishings she has bought for a Company-owned home in which Plaintiff and Ms. Rubin reside. Meanwhile, Defendants demanded that Plaintiff withdraw a subpoena issued to Berrin’s husband seeking information about goods, services, and other things of value he received from the Company Defendants – information which goes to the heart of Plaintiff’s claim that Individual Defendants treated the Company Defendants like their own personal piggy bank. Defendants’ goals are to harass Plaintiff and her partner and obstruct legitimate discovery requests, such as the subpoenas to Raish and Aydin S. Caginalp. A. Raish Until late 2020 or early 2021, Defendants’ primary software was managed by Raish and its representative, Paul Schwartzman. This software managed virtually all the information about Defendants’ real estate business, including but not limited to tenancy schedules, vacancies, certain lease terms and amounts, tenants, rent payments and arrears, and other data needed to operate a real estate investment and management business. Defendants were routinely incapable of obtaining the information from this software that was necessary to operate the business. They often resolved this problem by demanding that Mr. Schwartzman generate the reports that they were unable to create on their own. This was particularly true during the negotiation of what was supposed to be a $60 million sale of property to Extell. Defendants were unable to provide the diligence information requested by Extell, and asked Mr. Schwartzman to generate it. Mr. Schwartzman was in Defendants’ office on a daily basis trying to compile the information sought by Extell. Even with Mr. Schwartzman’s assistance, Defendants were not able to provide much of the requested information, and many of the reports that were generated were wrong. In the wake of this embarrassing diligence process, Extell reduced the sale price, ultimately to $35 million. Mr. Schwartzman witnessed this diligence process first-hand, and told Defendants that Extell was going to swindle them. Shortly after making this complaint, Defendants state that they terminated him and closed the sale. Later, Extell claimed that Defendants breached a warranty in the purchase agreement by providing them false lease information. Hon. Joel M. Cohen, J.S.C. June 24, 2021 Page 3 Suffice it to say, Raish and Mr. Schwartzman have information that goes to the heart of this case. First, Plaintiff claims that the Individual Defendants are unwilling and unable to manage the business and Raish and its representative possess information about Defendants’ inability to access the information needed to manage the business. Second, Plaintiff claims that Defendants breached their fiduciary duties by entering into the Extell sale and agreeing to reduce the sale price. As a first-hand witness to this negotiation, Mr. Schwartzman can testify about it, including Defendants’ failure to provide necessary materials. B. Aydin S. Caginalp Defendants’ business is structured across a complex array of interlocking trusts and business entities. The business was originally founded by Plaintiff’s father, Sami Tekiner (“Sami”), and, unsurprisingly, the Sami Tekiner Trust continues to hold an interest in the business, including owning 51% of Defendant 254-258 West 35th Street LLC. We believe that Plaintiff is a contingent beneficiary of the Sami Tekiner Trust. Mr. Caginalp was Sami’s long- time lawyer and Sami appointed him an independent trustee of the Sami Tekiner Trust. We believe that Mr. Caginalp witnessed Berrin’s misappropriation, vociferously objected to it, and was then asked to and did resign from his trusteeship (after demanding and receiving indemnities). Berrin replaced Mr. Caginalp as Trustee with Yuksel Golpinar, Defendants’ employee who reported to Berrin. Mr. Caginalp’s documents and testimony are relevant to Plaintiff’s claims that (1) the Individual Defendants have misappropriated corporate assets, (2) Berrin unlawfully retaliated against Plaintiff by terminating her because she filed this lawsuit, and (3) Berrin has improperly exercised control over the Company Defendants and Yasemin’s Trust by installing her cronies as trustees, officers, and directors. As for this latter claim, as the Court observed at the preliminary injunction phase, “the conflicting potentially obligations of one trustee who simultaneously seems to have duties to the company and each of the three principals is going to be an interesting story to watch unfold….” (NYSCEF Doc. 97 at 60-61.) Defendants argue that Mr. Caginalp could not have discoverable information because his trusteeship ended in 2011. However, pre-2011 claims are not time-barred because (1) they were part of a “continuous wrong” that tolled the statute of limitations, Ganzi v. Ganzi, 183 A.D.3d 433, 434 (1st Dept. 2020), and (2) “[t]he statute of limitations “does not begin to run until the fiduciary has openly repudiated his or her obligation or the relationship has been otherwise terminated,” Robinson v. Day, 103 A.D.3d 584, 586 (1st Dept. 2013), and Defendants never repudiated their fiduciary duties. Even if some claims arising out of pre-2011 misconduct were time-barred, Mr. Caginalp’s documents and testimony would still be relevant to show that Berrin’s misconduct was knowing and intentional, she installed subordinates in various positions for the express purpose of exercising unilateral control over the business and to continue her pattern of misappropriation, and that her termination of Plaintiff was retaliatory. Respectfully submitted, /s/ Evan Mandel Evan Mandel