Preview
FILED: NEW YORK COUNTY CLERK 06/15/2022 09:28 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 472 RECEIVED NYSCEF: 06/15/2022
EXHIBIT C
FILED: NEW YORK COUNTY CLERK 06/15/2022 09:28 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 472 RECEIVED NYSCEF: 06/15/2022
80 Pine Street│ 33rd Floor │New York, NY │10005 │T. (212) 269-5600 │F. (646) 964-6667 │www.mandelbhandari.com
September 28, 2021
BY EFILE
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
Dear Justice Cohen:
We represent Plaintiff Yasemin Tekiner (“Plaintiff”) and third-party Lisa Rubin in this
case. We write in response to Defendants’ September 16, 2021 letter. Defendants’ recitation of
the facts and law is pure fantasy. The truth is that Defendants have a serious problem: although
they mainly communicate by text, they appear to have produced only a small fraction of their
responsive text messages. The instant application is premised on the theory that the best defense
is a good offense and is intended to shift the focus to Plaintiff’s romantic partner. Defendants’
motion should be denied in its entirety. 1
I. Ms. Rubin Collected and Produced Responsive Documents Pursuant to an Agreed-
Upon Protocol
Defendants are correct that Ms. Rubin is Plaintiff’s romantic partner and fiancée and that
after Defendant Bremen House bought the Los Angeles home in which Plaintiff lives, Ms. Rubin
eventually moved into the home. The balance of Defendants’ description of discovery is, to put it
politely, inaccurate. Defendants claim that Ms. Rubin stood on all of her written objections to
their discovery requests, refused to produce documents unless Defendant Berrin Tekiner’s spouse
produced documents, and self-collected documents rather than collecting using a vendor to
automatically collect documents. (Ltr. at 1-2.) To the contrary, Ms. Rubin’s documents were
collected and produced using the same methods and responsiveness criteria Plaintiff used in this
case. Defendants have known this all along, but certainly no later than Ms. Rubin’s September 10
letter to Defendants, which states as follows:
In July, the parties agreed upon an Electronic Document Protocol
and on July 22, 2021, Evan Mandel sent you the final version of that
Protocol. The Protocol required the parties to search the documents
of certain Key Individuals and Enumerated Persons in the manner
set forth in the Protocol. It also required the parties to produce
1
Unless noted otherwise, internal citations and quotation marks have been omitted.
FILED: NEW YORK COUNTY CLERK 06/15/2022 09:28 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 472 RECEIVED NYSCEF: 06/15/2022
Hon. Joel M. Cohen, J.S.C.
September 28, 2021
Page 2
documents that satisfied Responsiveness Criteria, which with a few
narrow exceptions had been agreed-upon. Because the Protocol
identifies Ms. Rubin as an Enumerated Person, her documents were
searched pursuant to the Protocol and all non-privileged documents
that satisfied the Responsiveness Criteria were produced.
In total, over 226,000 electronic documents and over 288,000 text messages were collected
from Ms. Rubin. Ms. Rubin produced over 600 electronic documents and 2,900 text messages and
attachments. In short, Ms. Rubin has searched for and produced non-privileged documents
(including text messages) responsive to Request Nos. 6, 11-16, 20, 22, 6, 8-10, and 21 using the
protocol to which the parties agreed. As far as we are aware, all non-privileged documents
responsive to these requests have been produced. Of course, it is possible that conducting searches
above and beyond those agreed upon by the parties may identify additional responsive documents.
The only request to which Ms. Rubin has not searched for or produced documents is
Request Number 17, which seeks information about the salary she received from third parties. Ms.
Rubin is a screenwriter and never received a salary from Defendants, who are in the real estate
business. This case is about the looting and mismanagement of the Company Defendants and
Plaintiff’s Trust. Whether Ms. Rubin made $1 in salary from third-parties or $1 million does not
impact the claims or defenses asserted in this case.
II. The Withheld Communications Are Per Se Protected by the Attorney-Client Privilege
and the Common Interest Doctrine
In arguing that Ms. Rubin has improperly withheld communications with counsel jointly
retained by Plaintiff and Ms. Rubin, Defendants similarly mischaracterize Ambac Assur. Corp. v.
Countrywide Home Loans, Inc., 27 N.Y.3d 616 (2016), and its progeny. Ambac distinguished
between (a) communications between persons who separately hire their own counsel and (b)
communications between persons who jointly retain the same lawyer. Id. at 625, 631. The Court
of Appeals held that the latter are privileged per se irrespective of the subject matter of the
communications: “when one attorney represents multiple clients concerning a matter of common
interest, any confidential communications exchanged among them are privileged against the
outside world.” Id. at 625. Joint clients’ communications are protected per se because the clients
necessarily have a common interest, while communications between separately represented parties
must relate to litigation to receive protection to ensure that the parties truly have a common interest:
In the joint client or co-client setting, however, the clients
indisputably share a complete alignment of interests in order for the
attorney, ethically, to represent both parties. Accordingly, there is
no question that the clients share a common identity and all joint
communications will be in furtherance of that joint representation.
Not so when clients retain separate attorneys to represent them on a
matter of common interest. It is less likely that the positions of
separately-represented clients will be aligned such that the attorney
for one acts as the attorney for all, and the difficulty of determining
FILED: NEW YORK COUNTY CLERK 06/15/2022 09:28 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 472 RECEIVED NYSCEF: 06/15/2022
Hon. Joel M. Cohen, J.S.C.
September 28, 2021
Page 3
whether separately-represented clients share a sufficiently common
legal interest becomes even more obtuse outside the context of
pending or anticipated litigation.
Id. at 631. Here, Plaintiff and Ms. Rubin jointly retained the same counsel to advise them about
this action and, as a result, their communications with joint counsel are per se protected by the
attorney-client privilege and common interest doctrine.
Even if Plaintiff and Ms. Rubin had not engaged the same counsel, their communications
would still be protected under the common interest doctrine. Defendants take tiny fragments of
Ambac out of context to argue that the case holds that the common interest doctrine applies only
when the communicants are “‘coplaintiffs or persons who reasonably anticipate that they will
become colitigants.’” (Ltr. at 2.) But one need look no further than the first paragraph of the
opinion to see that the Court held that the doctrine applies to communications relating to litigation
rather than communications among colitigants: “We hold today, as the courts in New York have
held for over two decades, that any such communication must also relate to litigation, either
pending or anticipated, in order for the [common interest] exception to apply.” Id. at 620. The
First Department has repeatedly reached the same conclusion. In re Part 60 RMBS Put-Back Litig.,
161 A.D.3d 436, 437 (1st Dept. 2018) (“[W]e find that the standard articulated in [Ambac]
concerning the application of the common interest privilege, is met” even though one of the clients
was contractually prohibited from becoming a party to the litigation); see also Kindred Healthcare,
Inc. v. SAI Glob. Compliance, Inc., 169 A.D.3d 517 (1st Dept. 2019) (reading Ambac to require
that “the material must pertain to pending or reasonably anticipated litigation for it to be protected”
as opposed to requiring that the persons communicating be actual or anticipated parties to
litigation); Kenyon & Kenyon LLP v. SightSound Techs., LLC, 151 A.D.3d 530, 531 (1st Dept.
2017) (same).
Here, the communications at issue relate to the instant litigation and they are protected by
the common interest doctrine. Finally, there is no dispute that Plaintiff and Ms. Rubin have a
common interest in the litigation: at stake in the litigation, among other things, is Plaintiff and Ms.
Rubin’s right to keep living in the home owned by Bremen House. Even Defendants do not dispute
that the two have a common interest.
Respectfully submitted,
/s/ Evan Mandel
Evan Mandel
Preview
FILED: NEW YORK COUNTY CLERK 06/15/2022 09:28 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 472 RECEIVED NYSCEF: 06/15/2022 EXHIBIT C FILED: NEW YORK COUNTY CLERK 06/15/2022 09:28 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 472 RECEIVED NYSCEF: 06/15/2022 80 Pine Street│ 33rd Floor │New York, NY │10005 │T. (212) 269-5600 │F. (646) 964-6667 │www.mandelbhandari.com September 28, 2021 BY EFILE 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 Dear Justice Cohen: We represent Plaintiff Yasemin Tekiner (“Plaintiff”) and third-party Lisa Rubin in this case. We write in response to Defendants’ September 16, 2021 letter. Defendants’ recitation of the facts and law is pure fantasy. The truth is that Defendants have a serious problem: although they mainly communicate by text, they appear to have produced only a small fraction of their responsive text messages. The instant application is premised on the theory that the best defense is a good offense and is intended to shift the focus to Plaintiff’s romantic partner. Defendants’ motion should be denied in its entirety. 1 I. Ms. Rubin Collected and Produced Responsive Documents Pursuant to an Agreed- Upon Protocol Defendants are correct that Ms. Rubin is Plaintiff’s romantic partner and fiancée and that after Defendant Bremen House bought the Los Angeles home in which Plaintiff lives, Ms. Rubin eventually moved into the home. The balance of Defendants’ description of discovery is, to put it politely, inaccurate. Defendants claim that Ms. Rubin stood on all of her written objections to their discovery requests, refused to produce documents unless Defendant Berrin Tekiner’s spouse produced documents, and self-collected documents rather than collecting using a vendor to automatically collect documents. (Ltr. at 1-2.) To the contrary, Ms. Rubin’s documents were collected and produced using the same methods and responsiveness criteria Plaintiff used in this case. Defendants have known this all along, but certainly no later than Ms. Rubin’s September 10 letter to Defendants, which states as follows: In July, the parties agreed upon an Electronic Document Protocol and on July 22, 2021, Evan Mandel sent you the final version of that Protocol. The Protocol required the parties to search the documents of certain Key Individuals and Enumerated Persons in the manner set forth in the Protocol. It also required the parties to produce 1 Unless noted otherwise, internal citations and quotation marks have been omitted. FILED: NEW YORK COUNTY CLERK 06/15/2022 09:28 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 472 RECEIVED NYSCEF: 06/15/2022 Hon. Joel M. Cohen, J.S.C. September 28, 2021 Page 2 documents that satisfied Responsiveness Criteria, which with a few narrow exceptions had been agreed-upon. Because the Protocol identifies Ms. Rubin as an Enumerated Person, her documents were searched pursuant to the Protocol and all non-privileged documents that satisfied the Responsiveness Criteria were produced. In total, over 226,000 electronic documents and over 288,000 text messages were collected from Ms. Rubin. Ms. Rubin produced over 600 electronic documents and 2,900 text messages and attachments. In short, Ms. Rubin has searched for and produced non-privileged documents (including text messages) responsive to Request Nos. 6, 11-16, 20, 22, 6, 8-10, and 21 using the protocol to which the parties agreed. As far as we are aware, all non-privileged documents responsive to these requests have been produced. Of course, it is possible that conducting searches above and beyond those agreed upon by the parties may identify additional responsive documents. The only request to which Ms. Rubin has not searched for or produced documents is Request Number 17, which seeks information about the salary she received from third parties. Ms. Rubin is a screenwriter and never received a salary from Defendants, who are in the real estate business. This case is about the looting and mismanagement of the Company Defendants and Plaintiff’s Trust. Whether Ms. Rubin made $1 in salary from third-parties or $1 million does not impact the claims or defenses asserted in this case. II. The Withheld Communications Are Per Se Protected by the Attorney-Client Privilege and the Common Interest Doctrine In arguing that Ms. Rubin has improperly withheld communications with counsel jointly retained by Plaintiff and Ms. Rubin, Defendants similarly mischaracterize Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616 (2016), and its progeny. Ambac distinguished between (a) communications between persons who separately hire their own counsel and (b) communications between persons who jointly retain the same lawyer. Id. at 625, 631. The Court of Appeals held that the latter are privileged per se irrespective of the subject matter of the communications: “when one attorney represents multiple clients concerning a matter of common interest, any confidential communications exchanged among them are privileged against the outside world.” Id. at 625. Joint clients’ communications are protected per se because the clients necessarily have a common interest, while communications between separately represented parties must relate to litigation to receive protection to ensure that the parties truly have a common interest: In the joint client or co-client setting, however, the clients indisputably share a complete alignment of interests in order for the attorney, ethically, to represent both parties. Accordingly, there is no question that the clients share a common identity and all joint communications will be in furtherance of that joint representation. Not so when clients retain separate attorneys to represent them on a matter of common interest. It is less likely that the positions of separately-represented clients will be aligned such that the attorney for one acts as the attorney for all, and the difficulty of determining FILED: NEW YORK COUNTY CLERK 06/15/2022 09:28 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 472 RECEIVED NYSCEF: 06/15/2022 Hon. Joel M. Cohen, J.S.C. September 28, 2021 Page 3 whether separately-represented clients share a sufficiently common legal interest becomes even more obtuse outside the context of pending or anticipated litigation. Id. at 631. Here, Plaintiff and Ms. Rubin jointly retained the same counsel to advise them about this action and, as a result, their communications with joint counsel are per se protected by the attorney-client privilege and common interest doctrine. Even if Plaintiff and Ms. Rubin had not engaged the same counsel, their communications would still be protected under the common interest doctrine. Defendants take tiny fragments of Ambac out of context to argue that the case holds that the common interest doctrine applies only when the communicants are “‘coplaintiffs or persons who reasonably anticipate that they will become colitigants.’” (Ltr. at 2.) But one need look no further than the first paragraph of the opinion to see that the Court held that the doctrine applies to communications relating to litigation rather than communications among colitigants: “We hold today, as the courts in New York have held for over two decades, that any such communication must also relate to litigation, either pending or anticipated, in order for the [common interest] exception to apply.” Id. at 620. The First Department has repeatedly reached the same conclusion. In re Part 60 RMBS Put-Back Litig., 161 A.D.3d 436, 437 (1st Dept. 2018) (“[W]e find that the standard articulated in [Ambac] concerning the application of the common interest privilege, is met” even though one of the clients was contractually prohibited from becoming a party to the litigation); see also Kindred Healthcare, Inc. v. SAI Glob. Compliance, Inc., 169 A.D.3d 517 (1st Dept. 2019) (reading Ambac to require that “the material must pertain to pending or reasonably anticipated litigation for it to be protected” as opposed to requiring that the persons communicating be actual or anticipated parties to litigation); Kenyon & Kenyon LLP v. SightSound Techs., LLC, 151 A.D.3d 530, 531 (1st Dept. 2017) (same). Here, the communications at issue relate to the instant litigation and they are protected by the common interest doctrine. Finally, there is no dispute that Plaintiff and Ms. Rubin have a common interest in the litigation: at stake in the litigation, among other things, is Plaintiff and Ms. Rubin’s right to keep living in the home owned by Bremen House. Even Defendants do not dispute that the two have a common interest. Respectfully submitted, /s/ Evan Mandel Evan Mandel