Preview
FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
YASEMIN TEKINER,
in her individual capacity, as a beneficiary
and a Trustee of The Yasemin Tekiner
2011 Descendants Trust and derivatively as Index No.: 657193/2020
a holder of equitable interests in a
shareholder or a member of the Company Motion Sequence #12
Defendants,
ORAL ARGUMENT REQUESTED
Plaintiff,
-against-
BREMEN HOUSE INC., BREMEN HOUSE
TEXAS, INC., GERMAN NEWS COMPANY,
INC., GERMAN NEWS TEXAS, INC., 254-258
W. 35TH ST. LLC, BERRIN TEKINER, GONCA
CHELSEA, and BILLUR AKIPEK, in her
capacity as a Trustee of The Yasemin Tekiner
2011 Descendants Trust,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION BY ORDER
TO SHOW CAUSE TO CLAW BACK PRIVILEGED INFORMATION AND FOR A
PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER
Judith A. Archer
Victoria V. Corder
Sean M. Topping
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
New York, NY 10019-6022
+1 212 318-3000
Counsel for Defendants
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TABLE OF CONTENTS
PRELIMINARY STATEMENT ................................................................................................... 1
FACTUAL BACKGROUND ........................................................................................................ 3
A. Norton Rose Fulbright Has Never Represented Zeynep Tekiner
Personally ................................................................................................... 3
B. As An Officer and Director of Bremen House, Zeynep Had Access
to Defendants’ Privileged Communications and Attorney Work
Product ....................................................................................................... 4
C. Zeynep’s Retention of Separate Counsel for Her Deposition.................... 5
D. Zeynep’s Motion to Intervene .................................................................... 6
E. The Parties’ Protective Orders ................................................................... 7
ARGUMENT ................................................................................................................................. 8
I. Defendants Are Entitled to Claw Back Their Privileged Information ................... 8
II . The Court Should Issue A Preliminary Injunction to Compel Zeynep and
plaintiff To Return the Companies’ Privileged Information and Preclude
Her From Disclosing Defendants’ Privileged Communications ......................... 13
A. Defendants Will Suffer Irreparable Harm By Having Their
Confidential Communications with Counsel and Litigation
Strategy Exposed ..................................................................................... 14
B. Defendants Will Likely Succeed on a Motion to Claw Back
Privileged Communications and Attorney Work Product ....................... 15
C. The Balance of Equities Strongly Favor Defendants Who Will Be
Deeply Prejudiced If Zeynep Is Allowed To Divulge Defendants’
Privileged Communications and Attorney Work Product ....................... 16
III . A Temporary Restraining Order Is Also Warranted Here ................................... 17
CONCLUSION ............................................................................................................................ 19
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TABLE OF AUTHORITIES
Page(s)
Cases
Ambac Assur. Corp. v. Countrywide Home Loans, Inc.,
27 N.Y.3d 616 (2016) ..........................................................................................................8, 11
Arkin Kaplan Rice LLP v. Kaplan,
107 A.D.3d 502 (1st Dep’t 2013) ............................................................................................11
Barasch v. Williams Real Est. Co.,
104 A.D.3d 490 (1st Dep’t 2013) ............................................................................................11
Barbes Restaurant Inc. v. ASRR Suzer 218, LLC,
140 A.D.3d 430 (1st Dep’t 2016) ......................................................................................15, 16
Bd. of Managers of Colonnade Condo. v. 32F at 347 W. 57th St., LLC,
171 A.D.3d 682 (1st Dep’t 2019) ............................................................................................17
Chrysler Corp. v. Fedders Corp.,
63 A.D.2d 567 (1st Dept’ 1978) .........................................................................................16,17
Commodity Futures Trading Comm’n v. Weintraub,
471 U.S. 343 (1985) .................................................................................................................11
Deutsche Bank Tr. Co. of Americas v. Tri-Links Inv. Tr.,
43 A.D.3d 56, 837 N.Y.S.2d 15 (1st Dep’t 2007) ...................................................................12
FTI Consulting, Inc. v. PricewaterhouseCoopers LLP,
8 A.D.3d 145 (1st Dep’t 2004) ................................................................................................14
London Paint & Wallpaper Co. v. Kesselman,
138 A.D.3d 632 (1st Dep’t 2016) ............................................................................................14
Madden Int’l, Ltd. v. Lew Footwear Holdings Pty Ltd.,
50 Misc. 3d 1210(A) (Sup. Ct. N.Y. Cnty. 2016) ....................................................................14
People v. Osorio,
550 N.Y.S.2d 612 (1989) ...........................................................................................................9
Rakosi v. Sidney Rubell Co., LLC,
155 A.D.3d 564 (1st Dep’t 2017) ............................................................................................13
Reuters Ltd. v. United Press Int’l, Inc.,
903 F.2d 904 (2d Cir. 1990).....................................................................................................14
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Rossi v. Blue Cross & Blue Shield of Greater New York,
73 N.Y.2d 588 (1989) ................................................................................................................9
Segarra v. Ashouin,
253 A.D.2d 406 (1st Dep’t 1998) ............................................................................................18
Spectrum Sys. Intl. Corp. v. Chemical Bank,
78 N.Y.2d 371 (1991) ................................................................................................................8
People ex. rel. Spitzer v. Greenberg,
50 A.D.3d 195 (1st Dep’t 2008) ................................................................................................9
Suttongate Holdings Ltd. v. Laconm Mgmt. N.V.,
159 A.D.3d 514 (1st Dep’t 2018) ............................................................................................14
Tekni–Plex, Inc. v. Meyner & Landis,
89 N.Y.2d 123 (1996) ................................................................................................................9
Town of Liberty Volunteer Ambulance Corp. v Catskill Regional Med. Ctr.,
30 A.D.3d 739 (3d Dep’t 2006) ...............................................................................................14
Upjohn Co. v. United States,
449 U.S. 383 (1981) .................................................................................................................11
Venture v. Preferred Mut. Ins. Co.,
153 A.D.3d 1155 (1st Dep’t 2017) ............................................................................................9
Matter of Weinberg,
133 Misc. 2d 950 (Sur. 1986), modified sub nom. Matter of Beiny, 129 A.D.2d
126 (1st Dep’t 1987) ................................................................................................................11
Rules and Statutes
CPLR 4503.......................................................................................................................................8
CPLR 4503(a)(1) .............................................................................................................................8
CPLR § 6301..................................................................................................................1, 13, 15, 17
CPLR § 6313..............................................................................................................................1, 17
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Defendants Bremen House, Inc. (“Bremen House”), German News Company, Inc., Berrin
Tekiner, Gonca Chelsea, and Billur Akipek (“Defendants”) hereby submit this Memorandum of
Law in Support of their Motion by Order to Show Cause to Claw Back Privileged Information and
for a Preliminary Injunction and Temporary Restraining Order pursuant to CPLR §§ 6301 and
6313.
PRELIMINARY STATEMENT
More than fourteen months into this litigation Zeynep Tekiner (“Zeynep”) – an officer and
director of Defendant Bremen House – now seeks to switch sides and intervene as a plaintiff
alongside her sister in this intra-family dispute. However, unlike her sister Yasemin Tekiner
(“Plaintiff”) – who is no longer involved in the management of the companies – Zeynep is still an
officer and director of a Defendant company and has held that position throughout this litigation.
As a result of her position with Bremen House, and based on Zeynep’s representation that she
shared a common legal interest with Defendants, Zeynep had access to the company’s confidential,
privileged communications with its attorneys, including undersigned counsel, as well as access to
attorney work product prepared by undersigned counsel for the Defendants in this course of this
litigation.
Last week, in her motion to intervene, Zeynep revealed for the first time that she no longer
shares a common legal interest with the Defendants and, in fact, is now directly adverse to the
Defendants, including Bremen House – the company for which she is an officer and director.
Moreover, in an affidavit filed in support of that motion, Zeynep improperly disclosed to Plaintiff
certain of the Defendants’ confidential, privileged attorney-client communications and attorney
work product – information she had access to solely as a result of her role as an officer and director
of Bremen House. (She was never an individual defendant in this action). Zeynep had no right to
unilaterally disclose the Defendants’ privileged communications and work product. The privilege
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here belongs to Bremen House, and only Bremen House can waive its privilege, and it have not.
Zeynep, a vice president of the company cannot waive Bremen House’s privilege.
Defendants therefore move, on an emergency basis, to (a) claw back their privileged
information that is in the possession of Zeynep Tekiner, Plaintiff Yasemin Tekiner, and their
counsel; (b) to strike the privileged information disclosed in Zeynep’s March 23, 2022 affidavit
from the record; (c) and to impose a preliminary injunction and temporary restraining order against
Plaintiff, Zeynep, and their counsel that (i) orders them to destroy all of Defendants’ privileged
information and documents in their possession; (ii) enjoins them from relying upon any of
Defendants’ privileged information and documents in this lawsuit, including by in support of their
pending motions for preliminary injunctions and motion to intervene; (iii) enjoins them from
disclosing to anyone any of Defendants’ privileged information and documents; and (iv) enjoins
them from using the Defendants’ privileged information and documents to inform their litigation
strategy; and (v) requires Zeynep and Plaintiff’s attorneys to file affirmations with the Court
certifying the destruction of privileged information.
Under New York law and the parties’ confidentiality stipulation, the Defendants are
entitled to claw back their privileged information. Zeynep, as a mere vice president of Bremen
House, lacks the authority to unilaterally choose when and if the Defendant company waives its
attorney-client privilege or work product protections, particularly after representing to the
Defendants she shared a common legal interest with them for fourteen months. The Court should
grant Defendants’ request to claw back their privileged information in Zeynep’s possession and
strike it from the record. For this reason, too, the Companies easily satisfy the likelihood of success
element for their preliminary injunction.
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Absent an injunction, Defendants will suffer irreparable harm as Zeynep and Plaintiff will
be allowed to continue to disclose the Defendants’ privileged communications, use those
communications against the Defendants, including in support of their pending motions, and will
be able to formulate their litigation strategy against the Companies to an unfair advantage based
upon the improperly obtained privileged information and work product. Monetary relief could not
redress this harm.
The balance of the equities plainly tips in favor of the Defendants here as substantial justice
would be effected, and the status quo maintained, by preventing Zeynep and Plaintiff from gaining
an undue and improper advantage in the litigation through the improper and wrongful disclosure
of Defendants’ privileged information and work product by Zeynep.
The gravity of the situation and the timing of the upcoming hearings on the motions
scheduled for April 13th and 18th require that Zeynep be immediately restrained so that
Defendants can ensure that Zeynep and Plaintiff do not rely on privileged communications to
prevail on their motions or that Zeynep and Plaintiff do not further disclose any more of the
Companies’ privileged information or work product.
FACTUAL BACKGROUND
A. Norton Rose Fulbright Has Never Represented Zeynep Tekiner Personally
In this lawsuit, Plaintiff Yasemin Tekiner has brought direct and derivative claims against
her family’s real estate businesses, Bremen House, Inc. and German News, Inc.; her mother Berrin
Tekiner; her sister Gonca Tekiner; and an officer of the Companies, Billur Akipek, alleging
corporate mismanagement and mismanagement of her trust. 1
1
Defendants respectfully direct the Court to Plaintiff’s Verified Amended Complaint (NYSCEF No. 86), the January
25, 2021 Preliminary Injunction Hearing Transcript (NYSCEF No. 97), Defendants’ Verified Amended Answer,
Affirmative Defenses, and Counterclaims to the Verified Amended Complaint (NYSCEF No. 141), and the Transcript
of August 4, 2021 Oral Argument (NYSCEF No. 151) for the parties’ claims and factual allegations.
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In connection with this lawsuit, Norton Rose Fulbright (“NRF”) was engaged by the
Company Defendants and individual Defendants Berrin Tekiner, Gonca Tekiner, and Billur
Akipek. All Defendants consented to NRF’s joint representation of them in this lawsuit.
(Affirmation of Victoria V. Corder, dated March 29, 2022 (“Corder Aff.”) ¶3; Affirmation of
Judith A. Archer, dated March 29, 2022 (“Archer Aff.”) ¶2)
NRF was never engaged by Zeynep, and NRF never agreed to represent Zeynep in this
litigation, nor was there any need for it to as Zeynep was not named as a Defendant in the lawsuit.
Zeynep did not sign an engagement or retention agreement with NRF and did not pay NRF any
money. Defendants have always made clear to Zeynep that they represent the company, Bremen
House, for which Zeynep was an officer and director, along with the other Defendants, and have
repeatedly advised her of that verbally and in writing. (Corder Aff. ¶3)
B. As An Officer and Director of Bremen House, Zeynep Had Access to
Defendants’ Privileged Communications and Attorney Work Product
Zeynep is a Vice President and Director of Bremen House and has been since prior to this
lawsuit. (See, e.g., NYSCEF No. 26 (Written Consent of Bremen House to the Extell Sale))
Zeynep’s role in the Companies is limited to approving business transactions that require board
approval. (NYSCEF No. 236 at 53:1-22, 54:3-9.) She does not work at the Companies on any
regular basis and never has. (Id.; NYSCEF No. 225 ¶12)
By virtue of the fact that Zeynep was an officer of Defendant Bremen House and was
identified as a relevant company custodian for purposes of discovery in this litigation, Zeynep was
included in phone calls, virtual meetings, and email exchanges with Defendants’ litigation counsel,
NRF, concerning various matters relevant to this lawsuit and the Defendants’ defenses thereto.
(Corder Aff. ¶ 4) The topics of these communications included, at a minimum, all of the
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allegations in the Complaint, the allegations in the counterclaims, an unsuccessful mediation and
litigation strategy related to this lawsuit. (Id.)
In addition to having access to the Defendants’ privileged communications, Zeynep had
access to work product prepared by NRF, or others at the direction of NRF, in connection with this
litigation, including but not limited to documents revealing research, strategy, and settlement
considerations. (Id. ¶5)
Further, by virtue of her role at Bremen House, Zeynep likely also had access to Bremen
House’s other privileged communications with other counsel, including the Companies’ real estate
and transactional counsel at Belkin Burden Goldman LLP (“BBGLLP”). (Id. ¶6) Her access to
these communications is relevant as BBGLLP represented the Companies in the sale of several
properties to Extell in 2020 and the 1031 transactions that resulted therefore, which are at issue in
the Complaint and addressed in Plaintiff’s recent motion. (See, e.g., NYSCEF No. 228 at 3)
C. Zeynep’s Retention of Separate Counsel for Her Deposition
In fall 2021, Plaintiff sought to depose Zeynep. At that point in the case, Zeynep had had
access to the Companies’ privileged communications and work product as a result of her roles,
and there was no reason to believe that her interests were adverse to that of the Defendants. Judith
Archer of NRF spoke with Zeynep on the telephone, in which she made clear to Zeynep that NRF
did not represent her personally, but that NRF could represent her in her capacity as an officer and
director of Bremen House. (Archer Aff. ¶3) Zeynep expressed concern that someone should be
looking out specifically for her interests at her deposition and was considering retaining her own
counsel. (Id.)
Zeynep understood that she was not being represented in her individual capacity and
therefore subsequently decided on her own to retain separate counsel for purposes of her deposition
only, Corder Aff. ¶7; Archer Aff. ¶3, and in September 2021, she hired Beth Kaufman of
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Schoeman Updike Kaufman & Geber LLP. (NYSCEF Nos. 219). As she was not a party to the
lawsuit, she had no need for counsel previously. Based upon Zeynep’s representation that the
Companies and Zeynep’s interests were not adverse, NRF, on behalf of the Defendants, and Ms.
Kaufman, on behalf of Zeynep, executed a common interest agreement to allow the parties’
attorneys to communicate freely about Zeynep’s deposition preparation and share work product so
that Ms. Kaufman would be able to appropriately prepare Zeynep for her December 22, 2021
deposition. (Corder Aff. ¶8) NRF and Ms. Kaufman also cooperated on handling additional
document discovery from Zeynep, given that Zeynep was a company custodian and her document
production had been initially handled by NRF as company counsel. (Id.)
D. Zeynep’s Motion to Intervene
Last week, Defendants learned that Zeynep’s was seeking to intervene in the lawsuit and
assert claims against the very entities and persons with whom she previously agreed she had a
common interest. (Id. ¶9) In support of her motion, Zeynep attached an affidavit detailing, among
other things, several purported communications with Defendants’ counsel that she relies upon in
her motion. (Affidavit Of Proposed Plaintiff-Intervenor Zeynep Tekiner In Support Of Motion To
Intervene And For Injunctive Relief, dated March 22, 2022 (NYSCEF No. 217)) While many of
the statements in Zeynep’s affidavit grossly mischaracterize the legal advice given to the
Defendants, the statements nonetheless improperly reveal the content of the Companies’ privileged
communications and/or work product and must be clawed back. The statements include:
• Purported conversations and advice concerning Plaintiff’s removal as a Company director
and officer. (Id. ¶¶21, 23)
• Purported discussions regarding the options, benefits, and effects of Zeynep remaining a
Company director on the pending litigation. (Id. ¶21)
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• Purported discussions and advice concerning Zeynep’s fiduciary duties to the Company.
(Id. ¶22)
• Purported discussions related to Zeynep’s deposition, potential contents of her testimony,
and its impact on the litigation. (Id. ¶37)
• Purported discussions regarding document discovery and litigation strategy at large. (Id.
¶37)
Without conceding their accuracy, 2 Defendants note that the only reason Zeynep was privy
to such communications was due to her role as an officer and director of Bremen House.
In her affidavit, Zeynep also claims that Defendants’ counsel “only intended to pay my
fees if they liked the testimony I gave at my deposition.” (Id. ¶31) This is absolutely false. No
one at NRF ever told Zeynep or her counsel that, and payment was not contingent on the substance
of her testimony in any way. Moreover, to the extent Zeynep claims that anyone directly spoke
with her after she retained Ms. Kaufman as counsel, that too is wrong. NRF only communicated
with Ms. Kaufman after she was retained, not Zeynep directly. (Corder Aff. ¶10)
E. The Parties’ Protective Orders
The parties entered into a Stipulation and Order for the Production and Exchange of
Confidential Information, so-ordered February 23, 2021 (NYSCEF No. 91) (the “Confidentiality
Stipulation”). The Confidentiality Stipulation specifically includes a claw back process adopted
2
While Defendants acknowledge that their counsel had conversations with Zeynep concerning thislitigation,
including to schedule and potentially prepare her for deposition, Zeynep’s affidavit wholly misrepresents those
conversations. (NYSCEF No. 217) As just one example, Zeynep claims, falselyand without any support, that
Defendants’ counsel “only intended to pay my fees if they liked the testimony I gave at my deposition.” (Id. ¶31)
This is outrageous and in no way reflects what Defendants’ counsel ever communicated to Zeynep or her counsel (as
Zeynep had indicated she was retaining separate counsel, NRF only communicated with Zeynep’s counsel and not
directly to Zeynep). (Corder Aff. ¶10) Payment of Zeynep’s counsel’s legal fees in this matter were not contingent
on the substance of Zeynep’s deposition testimony in any way. (Id.) Defendants will respond to correct the record
for Zeynep’s other misstatements in their opposition to Zeynep’s Order to Show Cause Motion to Intervene and for
Preliminary Injunction with Temporary Restraining Order, NYSCEF Nos. 215-222, by April 8, 2022.
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from Appendix E to the Commercial Division Rules (NYSCEF No. 91 ¶ 23). As part of the claw
back process, the parties agreed to: (a) implement “reasonable procedures” to ensure that
privileged documents “are identified and withheld from production”; (b) the producing party must
“take reasonable steps to correct” inadvertent production of privilege information, “including a
request to the Receiving Party for its return”; and (c) the Receiving Party shall “promptly return”
the privileged information and “destroy all copies thereof.” (Id.)
ARGUMENT
I. DEFENDANTS ARE ENTITLED TO CLAW BACK THEIR PRIVILEGED
INFORMATION
Defendants seek to claw back their privileged information and work product from Zeynep,
Plaintiff and their respective counsel, and to strike it from the record.
The oldest among the common-law evidentiary privileges, the attorney-client privilege
“fosters the open dialogue between lawyer and client that is deemed essential to effective
representation.” Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 377 (1991). “It
exists to ensure that one seeking legal advice will be able to confide fully and freely in his attorney,
secure in the knowledge that his confidences will not later be exposed to public view to his
embarrassment or legal detriment.” Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27
N.Y.3d 616, 623 (2016) (internal citation omitted).
Under New York law, the attorney-client privilege shields from disclosure any confidential
communications between an attorney and his or her client made for the purpose of obtaining or
facilitating legal advice in the course of a professional relationship. See CPLR 4503(a)(1).
Pursuant to CPLR 4503:
Unless the client waives the privilege, an attorney or his or her employee, or any
person who obtains without the knowledge of the client evidence of a confidential
communication made between the attorney or his or her employee and the client in
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the course of professional employment, shall not disclose, or be allowed to disclose
such communication…
Id.; see also Rossi v. Blue Cross & Blue Shield of Greater New York, 73 N.Y.2d 588, 593 (1989).
The privilege applies to a wide array of communications, including those “primarily or
predominantly of a legal character” concerning litigation, Rossi, 73 N.Y.2d at 594, such as
depositions, strategy discussions, and memoranda responding to a client’s questions.
The work product protection similarly applies to “documents prepared by counsel acting
as such, and to materials uniquely the product of a lawyer’s learning and professional skills, such
as those reflecting an attorney’s legal research, analysis, conclusions, legal theory or strategy.”
Venture v. Preferred Mut. Ins. Co., 153 A.D.3d 1155, 1159 (1st Dep’t 2017) (internal citation
omitted).
As here, when the client is a company, it is the company who owns the privilege and
protections arising under New York law. People ex. rel. Spitzer v. Greenberg, 50 A.D.3d 195,
200-201 (1st Dep’t 2008) (citing Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 136 (1996))
(“[T]he corporation and its current board of directors control the attorney-client privilege with
regard to confidential communications arising out of general business matters.”); see generally
People v. Osorio, 550 N.Y.S.2d 612, 614 (1989).
Zeynep Tekiner’s affidavit disclosed information that improperly revealed the content of
attorney-client communications with the Defendants, including purported discussions concerning:
(1) Plaintiff’s removal as a Company director and officer, NYSCEF No. 217 ¶¶ 21, 23; (2) the
options, benefits, and effects of Zeynep remaining a Company director on the pending litigation,
id. ¶ 21; (3) Zeynep’s fiduciary duties to the Company, id. ¶ 22; (4) Zeynep’s deposition, potential
contents of her testimony, and its impact on the litigation, id. ¶ 37, and (5) document discovery
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and litigation strategy at large, id. Defendants had no inkling that their privileged communications
and work product would be shared with Plaintiff until Zeynep’s March 23, 2022 filing.
Defendants are entitled to strike from the record these communications and claw back the
Defendants’ privileged information and work product that Zeynep Tekiner has received or heard
by virtue of her participation in the defense of Bremen House, or as a result of her representation
to the Defendants that she shared a common legal interest with them. See supra Factual
Background Section B. Defendants gave immediate notice to the Court and counsel for Zeynep
and Plaintiff last week that they planned to claw back their privileged information that had been
improperly disclosed. (Corder Aff. ¶13)
Defendants have not waived their attorney-client privilege or work product protections. To
the contrary, Defendants have zealously guarded their privileged communications and attorney
work product in the course of this litigation. (See, e.g., NYSCEF No. 91 ¶ 23 (confidentiality
stipulation with claw back provision for inadvertent disclosure of privileged materials); No. 159
(Rule 14 letter objecting to exceptions to attorney-client privilege applied))
Zeynep cannot unilaterally waive Bremen House’s privilege and work product protections.
Only the company defendant can decide when and if it wants to waive its privileges and
protections. See People ex. rel. Spitzer, 50 A.D.3d at 200-201. The other two members of Bremen
House’s current board have not, and do not, agree to waive any of the Defendants’ attorney-client
or work product protections, and Zeynep has no power to force them or the company to waive the
company’s protections. (Corder Aff. ¶11)
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This is true even where, as here, Zeynep is seeking to intervene “in a litigation relating to
her own rights or in which she is asserting claims that are or may be adverse to the corporation.”3
Barasch v. Williams Real Est. Co., 104 A.D.3d 490, 492 (1st Dep’t 2013) (internal citation
omitted); see also Arkin Kaplan Rice LLP v. Kaplan, 107 A.D.3d 502, 502-503 (1st Dep’t 2013)
(plaintiff formerly sharing common privilege with defendants could not unilaterally waive
privilege on the defendants’ behalf to the benefit of plaintiffs); Commodity Futures Trading
Comm’n v. Weintraub, 471 U.S. 343, 348-349 (1985) (managers “must exercise the privilege in a
manner consistent with their fiduciary duty to act in the best interests of the corporation and not of
themselves as individuals”); Matter of Weinberg, 133 Misc. 2d 950, 952-53 (Sur. 1986), modified
sub nom. Matter of Beiny, 129 A.D.2d 126 (1st Dep’t 1987).
There was no inadvertent waiver here either. For example, Defendants did not waive the
privilege by including Zeynep, an officer and director of Bremen House, on communications with
the company’s counsel, as the privilege expressly permits “agents or employees of the . . . client”
to have access to a company’s privileged communications if required to adequately represent the
company. See Ambac, 27 N.Y.3d at 624; see also Upjohn Co. v. United States, 449 U.S. 383, 394
(1981) (employee communications covered by attorney-client privilege when they “concerned
matters within the scope of the employees’ corporate duties, and the employees themselves were
sufficiently aware that” they were communicating with counsel “in order that the corporation could
obtain legal advice). At all relevant times when speaking with Zeynep, undersigned counsel made
clear that they represented the Defendant companies. (Corder Aff. ¶3; Archer Aff. ¶3) Indeed,
NRF’s counsel made it clear to Zeynep multiple times, including before her deposition, that they
3
(See, e.g. NYSCEF No. 159 at
Defendants’ position is identical to the position it has taken with regard to Plaintiff.
6)
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represented the companies, but not her individually. That representation led Zeynep’s decision to
retain Ms. Kaufman to represent her personally at her deposition.
Further, Defendants have not put at issue any privileged communications or work product
that could constitute a waiver of privilege over the issues disclosed in Zeynep’s affidavit. The
mere fact that that Zeynep now seeks to disclose information obtained from the Companies’
attorney-client privileged communications to Plaintiff and use such information to support her
motion does not mean that the Defendants have waived their protections. See Deutsche Bank Tr.
Co. of Americas v. Tri-Links Inv. Tr., 43 A.D.3d 56, 64 (1st Dep’t 2007).
Indeed, until last week, Zeynep had represented to the Defendants that she shared a
common legal
Preview
FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK YASEMIN TEKINER, in her individual capacity, as a beneficiary and a Trustee of The Yasemin Tekiner 2011 Descendants Trust and derivatively as Index No.: 657193/2020 a holder of equitable interests in a shareholder or a member of the Company Motion Sequence #12 Defendants, ORAL ARGUMENT REQUESTED Plaintiff, -against- BREMEN HOUSE INC., BREMEN HOUSE TEXAS, INC., GERMAN NEWS COMPANY, INC., GERMAN NEWS TEXAS, INC., 254-258 W. 35TH ST. LLC, BERRIN TEKINER, GONCA CHELSEA, and BILLUR AKIPEK, in her capacity as a Trustee of The Yasemin Tekiner 2011 Descendants Trust, Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION BY ORDER TO SHOW CAUSE TO CLAW BACK PRIVILEGED INFORMATION AND FOR A PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER Judith A. Archer Victoria V. Corder Sean M. Topping NORTON ROSE FULBRIGHT US LLP 1301 Avenue of the Americas New York, NY 10019-6022 +1 212 318-3000 Counsel for Defendants 1 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 TABLE OF CONTENTS PRELIMINARY STATEMENT ................................................................................................... 1 FACTUAL BACKGROUND ........................................................................................................ 3 A. Norton Rose Fulbright Has Never Represented Zeynep Tekiner Personally ................................................................................................... 3 B. As An Officer and Director of Bremen House, Zeynep Had Access to Defendants’ Privileged Communications and Attorney Work Product ....................................................................................................... 4 C. Zeynep’s Retention of Separate Counsel for Her Deposition.................... 5 D. Zeynep’s Motion to Intervene .................................................................... 6 E. The Parties’ Protective Orders ................................................................... 7 ARGUMENT ................................................................................................................................. 8 I. Defendants Are Entitled to Claw Back Their Privileged Information ................... 8 II . The Court Should Issue A Preliminary Injunction to Compel Zeynep and plaintiff To Return the Companies’ Privileged Information and Preclude Her From Disclosing Defendants’ Privileged Communications ......................... 13 A. Defendants Will Suffer Irreparable Harm By Having Their Confidential Communications with Counsel and Litigation Strategy Exposed ..................................................................................... 14 B. Defendants Will Likely Succeed on a Motion to Claw Back Privileged Communications and Attorney Work Product ....................... 15 C. The Balance of Equities Strongly Favor Defendants Who Will Be Deeply Prejudiced If Zeynep Is Allowed To Divulge Defendants’ Privileged Communications and Attorney Work Product ....................... 16 III . A Temporary Restraining Order Is Also Warranted Here ................................... 17 CONCLUSION ............................................................................................................................ 19 2 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 TABLE OF AUTHORITIES Page(s) Cases Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616 (2016) ..........................................................................................................8, 11 Arkin Kaplan Rice LLP v. Kaplan, 107 A.D.3d 502 (1st Dep’t 2013) ............................................................................................11 Barasch v. Williams Real Est. Co., 104 A.D.3d 490 (1st Dep’t 2013) ............................................................................................11 Barbes Restaurant Inc. v. ASRR Suzer 218, LLC, 140 A.D.3d 430 (1st Dep’t 2016) ......................................................................................15, 16 Bd. of Managers of Colonnade Condo. v. 32F at 347 W. 57th St., LLC, 171 A.D.3d 682 (1st Dep’t 2019) ............................................................................................17 Chrysler Corp. v. Fedders Corp., 63 A.D.2d 567 (1st Dept’ 1978) .........................................................................................16,17 Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343 (1985) .................................................................................................................11 Deutsche Bank Tr. Co. of Americas v. Tri-Links Inv. Tr., 43 A.D.3d 56, 837 N.Y.S.2d 15 (1st Dep’t 2007) ...................................................................12 FTI Consulting, Inc. v. PricewaterhouseCoopers LLP, 8 A.D.3d 145 (1st Dep’t 2004) ................................................................................................14 London Paint & Wallpaper Co. v. Kesselman, 138 A.D.3d 632 (1st Dep’t 2016) ............................................................................................14 Madden Int’l, Ltd. v. Lew Footwear Holdings Pty Ltd., 50 Misc. 3d 1210(A) (Sup. Ct. N.Y. Cnty. 2016) ....................................................................14 People v. Osorio, 550 N.Y.S.2d 612 (1989) ...........................................................................................................9 Rakosi v. Sidney Rubell Co., LLC, 155 A.D.3d 564 (1st Dep’t 2017) ............................................................................................13 Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904 (2d Cir. 1990).....................................................................................................14 - ii - 3 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 Rossi v. Blue Cross & Blue Shield of Greater New York, 73 N.Y.2d 588 (1989) ................................................................................................................9 Segarra v. Ashouin, 253 A.D.2d 406 (1st Dep’t 1998) ............................................................................................18 Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371 (1991) ................................................................................................................8 People ex. rel. Spitzer v. Greenberg, 50 A.D.3d 195 (1st Dep’t 2008) ................................................................................................9 Suttongate Holdings Ltd. v. Laconm Mgmt. N.V., 159 A.D.3d 514 (1st Dep’t 2018) ............................................................................................14 Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123 (1996) ................................................................................................................9 Town of Liberty Volunteer Ambulance Corp. v Catskill Regional Med. Ctr., 30 A.D.3d 739 (3d Dep’t 2006) ...............................................................................................14 Upjohn Co. v. United States, 449 U.S. 383 (1981) .................................................................................................................11 Venture v. Preferred Mut. Ins. Co., 153 A.D.3d 1155 (1st Dep’t 2017) ............................................................................................9 Matter of Weinberg, 133 Misc. 2d 950 (Sur. 1986), modified sub nom. Matter of Beiny, 129 A.D.2d 126 (1st Dep’t 1987) ................................................................................................................11 Rules and Statutes CPLR 4503.......................................................................................................................................8 CPLR 4503(a)(1) .............................................................................................................................8 CPLR § 6301..................................................................................................................1, 13, 15, 17 CPLR § 6313..............................................................................................................................1, 17 - iii - 4 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 Defendants Bremen House, Inc. (“Bremen House”), German News Company, Inc., Berrin Tekiner, Gonca Chelsea, and Billur Akipek (“Defendants”) hereby submit this Memorandum of Law in Support of their Motion by Order to Show Cause to Claw Back Privileged Information and for a Preliminary Injunction and Temporary Restraining Order pursuant to CPLR §§ 6301 and 6313. PRELIMINARY STATEMENT More than fourteen months into this litigation Zeynep Tekiner (“Zeynep”) – an officer and director of Defendant Bremen House – now seeks to switch sides and intervene as a plaintiff alongside her sister in this intra-family dispute. However, unlike her sister Yasemin Tekiner (“Plaintiff”) – who is no longer involved in the management of the companies – Zeynep is still an officer and director of a Defendant company and has held that position throughout this litigation. As a result of her position with Bremen House, and based on Zeynep’s representation that she shared a common legal interest with Defendants, Zeynep had access to the company’s confidential, privileged communications with its attorneys, including undersigned counsel, as well as access to attorney work product prepared by undersigned counsel for the Defendants in this course of this litigation. Last week, in her motion to intervene, Zeynep revealed for the first time that she no longer shares a common legal interest with the Defendants and, in fact, is now directly adverse to the Defendants, including Bremen House – the company for which she is an officer and director. Moreover, in an affidavit filed in support of that motion, Zeynep improperly disclosed to Plaintiff certain of the Defendants’ confidential, privileged attorney-client communications and attorney work product – information she had access to solely as a result of her role as an officer and director of Bremen House. (She was never an individual defendant in this action). Zeynep had no right to unilaterally disclose the Defendants’ privileged communications and work product. The privilege -1- 5 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 here belongs to Bremen House, and only Bremen House can waive its privilege, and it have not. Zeynep, a vice president of the company cannot waive Bremen House’s privilege. Defendants therefore move, on an emergency basis, to (a) claw back their privileged information that is in the possession of Zeynep Tekiner, Plaintiff Yasemin Tekiner, and their counsel; (b) to strike the privileged information disclosed in Zeynep’s March 23, 2022 affidavit from the record; (c) and to impose a preliminary injunction and temporary restraining order against Plaintiff, Zeynep, and their counsel that (i) orders them to destroy all of Defendants’ privileged information and documents in their possession; (ii) enjoins them from relying upon any of Defendants’ privileged information and documents in this lawsuit, including by in support of their pending motions for preliminary injunctions and motion to intervene; (iii) enjoins them from disclosing to anyone any of Defendants’ privileged information and documents; and (iv) enjoins them from using the Defendants’ privileged information and documents to inform their litigation strategy; and (v) requires Zeynep and Plaintiff’s attorneys to file affirmations with the Court certifying the destruction of privileged information. Under New York law and the parties’ confidentiality stipulation, the Defendants are entitled to claw back their privileged information. Zeynep, as a mere vice president of Bremen House, lacks the authority to unilaterally choose when and if the Defendant company waives its attorney-client privilege or work product protections, particularly after representing to the Defendants she shared a common legal interest with them for fourteen months. The Court should grant Defendants’ request to claw back their privileged information in Zeynep’s possession and strike it from the record. For this reason, too, the Companies easily satisfy the likelihood of success element for their preliminary injunction. -2- 6 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 Absent an injunction, Defendants will suffer irreparable harm as Zeynep and Plaintiff will be allowed to continue to disclose the Defendants’ privileged communications, use those communications against the Defendants, including in support of their pending motions, and will be able to formulate their litigation strategy against the Companies to an unfair advantage based upon the improperly obtained privileged information and work product. Monetary relief could not redress this harm. The balance of the equities plainly tips in favor of the Defendants here as substantial justice would be effected, and the status quo maintained, by preventing Zeynep and Plaintiff from gaining an undue and improper advantage in the litigation through the improper and wrongful disclosure of Defendants’ privileged information and work product by Zeynep. The gravity of the situation and the timing of the upcoming hearings on the motions scheduled for April 13th and 18th require that Zeynep be immediately restrained so that Defendants can ensure that Zeynep and Plaintiff do not rely on privileged communications to prevail on their motions or that Zeynep and Plaintiff do not further disclose any more of the Companies’ privileged information or work product. FACTUAL BACKGROUND A. Norton Rose Fulbright Has Never Represented Zeynep Tekiner Personally In this lawsuit, Plaintiff Yasemin Tekiner has brought direct and derivative claims against her family’s real estate businesses, Bremen House, Inc. and German News, Inc.; her mother Berrin Tekiner; her sister Gonca Tekiner; and an officer of the Companies, Billur Akipek, alleging corporate mismanagement and mismanagement of her trust. 1 1 Defendants respectfully direct the Court to Plaintiff’s Verified Amended Complaint (NYSCEF No. 86), the January 25, 2021 Preliminary Injunction Hearing Transcript (NYSCEF No. 97), Defendants’ Verified Amended Answer, Affirmative Defenses, and Counterclaims to the Verified Amended Complaint (NYSCEF No. 141), and the Transcript of August 4, 2021 Oral Argument (NYSCEF No. 151) for the parties’ claims and factual allegations. -3- 7 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 In connection with this lawsuit, Norton Rose Fulbright (“NRF”) was engaged by the Company Defendants and individual Defendants Berrin Tekiner, Gonca Tekiner, and Billur Akipek. All Defendants consented to NRF’s joint representation of them in this lawsuit. (Affirmation of Victoria V. Corder, dated March 29, 2022 (“Corder Aff.”) ¶3; Affirmation of Judith A. Archer, dated March 29, 2022 (“Archer Aff.”) ¶2) NRF was never engaged by Zeynep, and NRF never agreed to represent Zeynep in this litigation, nor was there any need for it to as Zeynep was not named as a Defendant in the lawsuit. Zeynep did not sign an engagement or retention agreement with NRF and did not pay NRF any money. Defendants have always made clear to Zeynep that they represent the company, Bremen House, for which Zeynep was an officer and director, along with the other Defendants, and have repeatedly advised her of that verbally and in writing. (Corder Aff. ¶3) B. As An Officer and Director of Bremen House, Zeynep Had Access to Defendants’ Privileged Communications and Attorney Work Product Zeynep is a Vice President and Director of Bremen House and has been since prior to this lawsuit. (See, e.g., NYSCEF No. 26 (Written Consent of Bremen House to the Extell Sale)) Zeynep’s role in the Companies is limited to approving business transactions that require board approval. (NYSCEF No. 236 at 53:1-22, 54:3-9.) She does not work at the Companies on any regular basis and never has. (Id.; NYSCEF No. 225 ¶12) By virtue of the fact that Zeynep was an officer of Defendant Bremen House and was identified as a relevant company custodian for purposes of discovery in this litigation, Zeynep was included in phone calls, virtual meetings, and email exchanges with Defendants’ litigation counsel, NRF, concerning various matters relevant to this lawsuit and the Defendants’ defenses thereto. (Corder Aff. ¶ 4) The topics of these communications included, at a minimum, all of the -4- 8 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 allegations in the Complaint, the allegations in the counterclaims, an unsuccessful mediation and litigation strategy related to this lawsuit. (Id.) In addition to having access to the Defendants’ privileged communications, Zeynep had access to work product prepared by NRF, or others at the direction of NRF, in connection with this litigation, including but not limited to documents revealing research, strategy, and settlement considerations. (Id. ¶5) Further, by virtue of her role at Bremen House, Zeynep likely also had access to Bremen House’s other privileged communications with other counsel, including the Companies’ real estate and transactional counsel at Belkin Burden Goldman LLP (“BBGLLP”). (Id. ¶6) Her access to these communications is relevant as BBGLLP represented the Companies in the sale of several properties to Extell in 2020 and the 1031 transactions that resulted therefore, which are at issue in the Complaint and addressed in Plaintiff’s recent motion. (See, e.g., NYSCEF No. 228 at 3) C. Zeynep’s Retention of Separate Counsel for Her Deposition In fall 2021, Plaintiff sought to depose Zeynep. At that point in the case, Zeynep had had access to the Companies’ privileged communications and work product as a result of her roles, and there was no reason to believe that her interests were adverse to that of the Defendants. Judith Archer of NRF spoke with Zeynep on the telephone, in which she made clear to Zeynep that NRF did not represent her personally, but that NRF could represent her in her capacity as an officer and director of Bremen House. (Archer Aff. ¶3) Zeynep expressed concern that someone should be looking out specifically for her interests at her deposition and was considering retaining her own counsel. (Id.) Zeynep understood that she was not being represented in her individual capacity and therefore subsequently decided on her own to retain separate counsel for purposes of her deposition only, Corder Aff. ¶7; Archer Aff. ¶3, and in September 2021, she hired Beth Kaufman of -5- 9 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 Schoeman Updike Kaufman & Geber LLP. (NYSCEF Nos. 219). As she was not a party to the lawsuit, she had no need for counsel previously. Based upon Zeynep’s representation that the Companies and Zeynep’s interests were not adverse, NRF, on behalf of the Defendants, and Ms. Kaufman, on behalf of Zeynep, executed a common interest agreement to allow the parties’ attorneys to communicate freely about Zeynep’s deposition preparation and share work product so that Ms. Kaufman would be able to appropriately prepare Zeynep for her December 22, 2021 deposition. (Corder Aff. ¶8) NRF and Ms. Kaufman also cooperated on handling additional document discovery from Zeynep, given that Zeynep was a company custodian and her document production had been initially handled by NRF as company counsel. (Id.) D. Zeynep’s Motion to Intervene Last week, Defendants learned that Zeynep’s was seeking to intervene in the lawsuit and assert claims against the very entities and persons with whom she previously agreed she had a common interest. (Id. ¶9) In support of her motion, Zeynep attached an affidavit detailing, among other things, several purported communications with Defendants’ counsel that she relies upon in her motion. (Affidavit Of Proposed Plaintiff-Intervenor Zeynep Tekiner In Support Of Motion To Intervene And For Injunctive Relief, dated March 22, 2022 (NYSCEF No. 217)) While many of the statements in Zeynep’s affidavit grossly mischaracterize the legal advice given to the Defendants, the statements nonetheless improperly reveal the content of the Companies’ privileged communications and/or work product and must be clawed back. The statements include: • Purported conversations and advice concerning Plaintiff’s removal as a Company director and officer. (Id. ¶¶21, 23) • Purported discussions regarding the options, benefits, and effects of Zeynep remaining a Company director on the pending litigation. (Id. ¶21) -6- 10 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 • Purported discussions and advice concerning Zeynep’s fiduciary duties to the Company. (Id. ¶22) • Purported discussions related to Zeynep’s deposition, potential contents of her testimony, and its impact on the litigation. (Id. ¶37) • Purported discussions regarding document discovery and litigation strategy at large. (Id. ¶37) Without conceding their accuracy, 2 Defendants note that the only reason Zeynep was privy to such communications was due to her role as an officer and director of Bremen House. In her affidavit, Zeynep also claims that Defendants’ counsel “only intended to pay my fees if they liked the testimony I gave at my deposition.” (Id. ¶31) This is absolutely false. No one at NRF ever told Zeynep or her counsel that, and payment was not contingent on the substance of her testimony in any way. Moreover, to the extent Zeynep claims that anyone directly spoke with her after she retained Ms. Kaufman as counsel, that too is wrong. NRF only communicated with Ms. Kaufman after she was retained, not Zeynep directly. (Corder Aff. ¶10) E. The Parties’ Protective Orders The parties entered into a Stipulation and Order for the Production and Exchange of Confidential Information, so-ordered February 23, 2021 (NYSCEF No. 91) (the “Confidentiality Stipulation”). The Confidentiality Stipulation specifically includes a claw back process adopted 2 While Defendants acknowledge that their counsel had conversations with Zeynep concerning thislitigation, including to schedule and potentially prepare her for deposition, Zeynep’s affidavit wholly misrepresents those conversations. (NYSCEF No. 217) As just one example, Zeynep claims, falselyand without any support, that Defendants’ counsel “only intended to pay my fees if they liked the testimony I gave at my deposition.” (Id. ¶31) This is outrageous and in no way reflects what Defendants’ counsel ever communicated to Zeynep or her counsel (as Zeynep had indicated she was retaining separate counsel, NRF only communicated with Zeynep’s counsel and not directly to Zeynep). (Corder Aff. ¶10) Payment of Zeynep’s counsel’s legal fees in this matter were not contingent on the substance of Zeynep’s deposition testimony in any way. (Id.) Defendants will respond to correct the record for Zeynep’s other misstatements in their opposition to Zeynep’s Order to Show Cause Motion to Intervene and for Preliminary Injunction with Temporary Restraining Order, NYSCEF Nos. 215-222, by April 8, 2022. -7- 11 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 from Appendix E to the Commercial Division Rules (NYSCEF No. 91 ¶ 23). As part of the claw back process, the parties agreed to: (a) implement “reasonable procedures” to ensure that privileged documents “are identified and withheld from production”; (b) the producing party must “take reasonable steps to correct” inadvertent production of privilege information, “including a request to the Receiving Party for its return”; and (c) the Receiving Party shall “promptly return” the privileged information and “destroy all copies thereof.” (Id.) ARGUMENT I. DEFENDANTS ARE ENTITLED TO CLAW BACK THEIR PRIVILEGED INFORMATION Defendants seek to claw back their privileged information and work product from Zeynep, Plaintiff and their respective counsel, and to strike it from the record. The oldest among the common-law evidentiary privileges, the attorney-client privilege “fosters the open dialogue between lawyer and client that is deemed essential to effective representation.” Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 377 (1991). “It exists to ensure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his confidences will not later be exposed to public view to his embarrassment or legal detriment.” Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 623 (2016) (internal citation omitted). Under New York law, the attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship. See CPLR 4503(a)(1). Pursuant to CPLR 4503: Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in -8- 12 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 the course of professional employment, shall not disclose, or be allowed to disclose such communication… Id.; see also Rossi v. Blue Cross & Blue Shield of Greater New York, 73 N.Y.2d 588, 593 (1989). The privilege applies to a wide array of communications, including those “primarily or predominantly of a legal character” concerning litigation, Rossi, 73 N.Y.2d at 594, such as depositions, strategy discussions, and memoranda responding to a client’s questions. The work product protection similarly applies to “documents prepared by counsel acting as such, and to materials uniquely the product of a lawyer’s learning and professional skills, such as those reflecting an attorney’s legal research, analysis, conclusions, legal theory or strategy.” Venture v. Preferred Mut. Ins. Co., 153 A.D.3d 1155, 1159 (1st Dep’t 2017) (internal citation omitted). As here, when the client is a company, it is the company who owns the privilege and protections arising under New York law. People ex. rel. Spitzer v. Greenberg, 50 A.D.3d 195, 200-201 (1st Dep’t 2008) (citing Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 136 (1996)) (“[T]he corporation and its current board of directors control the attorney-client privilege with regard to confidential communications arising out of general business matters.”); see generally People v. Osorio, 550 N.Y.S.2d 612, 614 (1989). Zeynep Tekiner’s affidavit disclosed information that improperly revealed the content of attorney-client communications with the Defendants, including purported discussions concerning: (1) Plaintiff’s removal as a Company director and officer, NYSCEF No. 217 ¶¶ 21, 23; (2) the options, benefits, and effects of Zeynep remaining a Company director on the pending litigation, id. ¶ 21; (3) Zeynep’s fiduciary duties to the Company, id. ¶ 22; (4) Zeynep’s deposition, potential contents of her testimony, and its impact on the litigation, id. ¶ 37, and (5) document discovery -9- 13 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 and litigation strategy at large, id. Defendants had no inkling that their privileged communications and work product would be shared with Plaintiff until Zeynep’s March 23, 2022 filing. Defendants are entitled to strike from the record these communications and claw back the Defendants’ privileged information and work product that Zeynep Tekiner has received or heard by virtue of her participation in the defense of Bremen House, or as a result of her representation to the Defendants that she shared a common legal interest with them. See supra Factual Background Section B. Defendants gave immediate notice to the Court and counsel for Zeynep and Plaintiff last week that they planned to claw back their privileged information that had been improperly disclosed. (Corder Aff. ¶13) Defendants have not waived their attorney-client privilege or work product protections. To the contrary, Defendants have zealously guarded their privileged communications and attorney work product in the course of this litigation. (See, e.g., NYSCEF No. 91 ¶ 23 (confidentiality stipulation with claw back provision for inadvertent disclosure of privileged materials); No. 159 (Rule 14 letter objecting to exceptions to attorney-client privilege applied)) Zeynep cannot unilaterally waive Bremen House’s privilege and work product protections. Only the company defendant can decide when and if it wants to waive its privileges and protections. See People ex. rel. Spitzer, 50 A.D.3d at 200-201. The other two members of Bremen House’s current board have not, and do not, agree to waive any of the Defendants’ attorney-client or work product protections, and Zeynep has no power to force them or the company to waive the company’s protections. (Corder Aff. ¶11) - 10 - 14 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 This is true even where, as here, Zeynep is seeking to intervene “in a litigation relating to her own rights or in which she is asserting claims that are or may be adverse to the corporation.”3 Barasch v. Williams Real Est. Co., 104 A.D.3d 490, 492 (1st Dep’t 2013) (internal citation omitted); see also Arkin Kaplan Rice LLP v. Kaplan, 107 A.D.3d 502, 502-503 (1st Dep’t 2013) (plaintiff formerly sharing common privilege with defendants could not unilaterally waive privilege on the defendants’ behalf to the benefit of plaintiffs); Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348-349 (1985) (managers “must exercise the privilege in a manner consistent with their fiduciary duty to act in the best interests of the corporation and not of themselves as individuals”); Matter of Weinberg, 133 Misc. 2d 950, 952-53 (Sur. 1986), modified sub nom. Matter of Beiny, 129 A.D.2d 126 (1st Dep’t 1987). There was no inadvertent waiver here either. For example, Defendants did not waive the privilege by including Zeynep, an officer and director of Bremen House, on communications with the company’s counsel, as the privilege expressly permits “agents or employees of the . . . client” to have access to a company’s privileged communications if required to adequately represent the company. See Ambac, 27 N.Y.3d at 624; see also Upjohn Co. v. United States, 449 U.S. 383, 394 (1981) (employee communications covered by attorney-client privilege when they “concerned matters within the scope of the employees’ corporate duties, and the employees themselves were sufficiently aware that” they were communicating with counsel “in order that the corporation could obtain legal advice). At all relevant times when speaking with Zeynep, undersigned counsel made clear that they represented the Defendant companies. (Corder Aff. ¶3; Archer Aff. ¶3) Indeed, NRF’s counsel made it clear to Zeynep multiple times, including before her deposition, that they 3 (See, e.g. NYSCEF No. 159 at Defendants’ position is identical to the position it has taken with regard to Plaintiff. 6) - 11 - 15 of 24 FILED: NEW YORK COUNTY CLERK 03/29/2022 06:20 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 03/29/2022 represented the companies, but not her individually. That representation led Zeynep’s decision to retain Ms. Kaufman to represent her personally at her deposition. Further, Defendants have not put at issue any privileged communications or work product that could constitute a waiver of privilege over the issues disclosed in Zeynep’s affidavit. The mere fact that that Zeynep now seeks to disclose information obtained from the Companies’ attorney-client privileged communications to Plaintiff and use such information to support her motion does not mean that the Defendants have waived their protections. See Deutsche Bank Tr. Co. of Americas v. Tri-Links Inv. Tr., 43 A.D.3d 56, 64 (1st Dep’t 2007). Indeed, until last week, Zeynep had represented to the Defendants that she shared a common legal