Preview
FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022
SUPREME COURT OF THE STATE OF NEW YORK
COMMERCIAL DIVISION, NEW YORK COUNTY
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 Commercial Division Part 3
Defendants,
Hon. Joel M. Cohen
Plaintiff,
Motion Seq. No. 35
-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
TEKINER, and BILLUR AKIPEK, in her capacity
as a Trustee of The Yasemin Tekiner 2011
Descendants Trust,
Defendants.
ZEYNEP TEKINER,
in her individual capacity, as a beneficiary
and a Trustee of The Zeynep Tekiner 2011
Descendants Trust and derivatively as a
holder of equitable interests in a
shareholder or a member of the Company
Defendants,
Intervenor-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
TEKINER, and BILLUR AKIPEK, in her capacity
as a Trustee of The Yasemin Tekiner 2011
Descendants Trust,
Defendants.
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MEMORANDUM OF LAW OF CO-PLAINTIFFS, YASEMIN TEKINER
AND ZEYNEP TEKINER, IN SUPPORT OF THEIR ORDER TO SHOW
CAUSE TO COMPEL COMPLIANCE WITH DISCOVERY ORDER
AND APPOINT A SPECIAL DISCOVERY MASTER
Stephen P. Younger Sanjay P. Ibrahim
FOLEY HOAG LLP Scott W. Parker
1301 Avenue of the Americas, 25th Floor Daniel A. Schleifstein
New York, New York 10019 PARKER IBRAHIM & BERG LLP
Telephone: (212) 812-0365 5 Penn Plaza, Suite 2371
spyounger@foleyhoag.com New York, New York 10001
Telephone: (212) 596-7037
sanjay.ibrahim@piblaw.com
scott.parker@piblaw.com
daniel.schleifstein@piblaw.com
Michele Kahn
KAHN & GOLDBERG, LLP
555 Fifth Avenue, 14th Floor
New York, New York 10017
Telephone: (212) 687-5066
mk@kahngoldberg.com
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... ii
PRELIMINARY STATEMENT ...................................................................................... 1
FACTUAL BACKGROUND ........................................................................................... 2
A. Defendants’ Outright Refusal to Produce Any Documents Related to
Berrin and Gonca’s Medical Condition and History ................................ 2
B. Defendants’ Refusal to Timely Produce Previously Withheld
Privileged Documents ...............................................................................5
C. Defendants’ Refusal to Produce Any Documents from Zeynep’s
Privilege Log............................................................................................. 8
D. Defendants’ Repeated Refusals to Schedule Depositions ........................ 8
E. Defendants Decline to Consent to Jointly Retain a Special Discovery
Master to Manage Discovery .................................................................... 9
ARGUMENT .................................................................................................................. 10
I. THIS COURT SHOULD COMPEL DEFENDANTS TO COMPLY
WITH THE COURT’S AUGUST 17, 2022 ORDER PURSUANT TO
CPLR 3124.............................................................................................. 10
II. THIS COURT SHOULD APPOINT A SPECIAL DISCOVERY
MASTER TO MANAGE DISCOVERY PURSUANT TO
CPLR 3104 ........................................................................................... 12
A. Standard of Review .........................................................................12
B. Defendants’ Refusal to Engage in Meaningful and Good Faith
Discovery Warrants the Appointment of a Special Discovery
Master .............................................................................................. 14
III. GIVEN DEFENDANTS’ REPEATED DISCOVERY FAILURES,
DEFENDANTS SHOULD BE PRECLUDED FROM
INTRODUCING PROOF, THEIR ANSWER SHOULD BE
STRICKEN, OR DEFAULT JUDGMENT SHOULD BE
ENTERED AGAINST DEFENDANTS..............................................15
CONCLUSION ...............................................................................................................17
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Table of Authorities
Cases
Baker v General Mills Fun Grp., Inc.,
101 Misc. 2d 193 [Sup Ct, NY County 1979] ........................................................................ 13
Cadlerock Joint Venture, L.P. v Sol Greenberg &Sons Int’l, Inc.,
94 AD3d 580, 581-82 [1st Dept 2012] ................................................................................... 12
Capoccia v Brognano,
126 AD2d 323 [3d Dept 1987] ............................................................................................... 12
Coffey v. Orbachs, Inc.,
22 A.D.2d 317, 254 N.Y.S.2d 596 (1st Dept. 1964) .............................................................. 11
Corex-SPA v Janel Group,
156 AD3d 599 [2d Dept. 2017] .............................................................................................. 16
East Greenbush v. Ashland Chemical Co.,
99 AD3d 604 [3d Dept. 1984] ................................................................................................ 16
Hindlin v. Prescription Songs LLC,
Index No. 651974/2018 (Oct. 6, 2020) ................................................................................. 13
Kogan v Royal Indem. Co.,
179 AD2d 399 (1st Dept 1992) .............................................................................................. 12
Kopelevich & Feldsherova, P.C. v. Geller Law Group, P.C.,
2021 NY Slip Op 01034 [2d Dept. Feb. 17, 2021] ................................................................. 16
Lowitt v Korelitz,
152 AD2d 506 [1st Dept 1989] .............................................................................................. 12
O’Neill v Ho,
28 AD3d 626 [2d Dept 2006] ................................................................................................. 12
Parker v Ollivierre,
60 AD3d 1023 [2d Dept 2009] ............................................................................................... 12
Stark v. Matchett,
2016 NY Slip Op 31474(U), ¶ 9 (Sup. Ct., NY County) ........................................................ 11
Vasile v Chisena,
272 AD2d 610 [2d Dept 2000] ............................................................................................... 12
Statutes
CPLR 3104 ...........................................................................................................................
passim
CPLR 3124 ...........................................................................................................................
passim
CPLR 3126 ............................................................................................................................ passim
CPLR 4201 ................................................................................................................................... 12
CPLR 4320 ................................................................................................................................... 12
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Co-Plaintiffs, Yasemin Tekiner (“Yasemin”) and Zeynep Tekiner (“Zeynep”)
(collectively, “Plaintiffs”), respectfully submit this memorandum of law in support of their Order
to Show Cause (the “OTSC”), to: (1) compel compliance with this Court’s August 17, 2022
discovery order pursuant to CPLR 3124; (2) appoint a Special Discovery Master to manage
discovery between the parties, pursuant to CPLR 3104; and (3) preclude Defendants from offering
any testimony or evidence from Berrin Tekiner (“Berrin”), Gonca Tekiner (“Gonca”) or the
Company (as defined herein), pursuant to CPLR 3126.
PRELIMINARY STATEMENT
When new counsel for Defendants substituted into this case on July 8, 2022, they
immediately asked this Court for a 120-day stay of all proceedings. The Court denied this request
and set an October 17, 2022 fact discovery cut-off. Now, through Defendants’ chronic and
repeated dereliction of their discovery obligations, Defendants are attempting to give themselves
the very discovery extension that this Court rejected, by: (1) refusing to produce a single document
in response to Yasemin’s revised, narrowly tailored requests regarding the mental health of Berrin
and Gonca, despite this Court’s order to produce; (2) proceeding at a deliberately slow pace in
producing wrongfully withheld privileged documents, under the guise of a “rolling production”;
and (3) refusing to produce any documents from Zeynep’s privilege log. This approach is,
unfortunately, right out of the playbook of the lawyers that they replaced. It is transparently
designed to slow-walk the conclusion of discovery and even avoid complying with some discovery
obligations altogether.
As a result, Yasemin and Zeynep have been left with no choice but to file the instant OTSC
seeking to compel compliance with this Court’s prior discovery orders. Consistent with the
Court’s prescient observations during the August 15, 2022 hearing – and in light of the rapidly
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approaching October 17th fact discovery deadline – Plaintiffs respectfully request that this Court
immediately appoint a Special Discovery Master to manage discovery. (See Parker Aff. ¶¶ 4, 31
& Exs. 1, 16.) Indeed, under CPLR 3104(a), this Court may appoint a Special Discovery Master
not only upon the motion of a party, but “on its own initiative without notice.” Absent the
appointment of a Special Discovery Master, Defendants’ words and actions have made it
abundantly clear that they will not comply with this Court’s August 17th order.
Further, in light of Defendants’ deliberate conduct with respect to these discovery issues –
particularly with respect to this Court’s August 17th order regarding Berrin’s and Gonca’s mental
health and the mostly still withheld privileged documents – Yasemin and Zeynep respectfully
request that this Court issue an order pursuant to CPLR 3126(2) and (3), precluding Defendants
from introducing testimony or evidence to support their counterclaims or defenses, and/or striking
Defendants’ pleadings or rendering default judgment against the Defendants. At minimum, this
Court should compel Defendants to comply with the August 17th order, pursuant to CPLR 3124.
FACTUAL BACKGROUND
A more complete summary of the relevant factual background can be found in the
accompanying Parker Affirmation. Below is a brief recitation.
A. Defendants’ Outright Refusal to Produce Any Documents Related to Berrin
and Gonca’s Medical Condition and History
As Plaintiffs have long believed (and as discovery to date has shown), Berrin and Gonca’s
documented mental health and substance abuse issues have substantially and detrimentally
affected their ability to manage the business affairs of the Company (i.e., Bremen House Inc. and
German News Company, Inc.). Indeed, these matters have been placed squarely in controversy
by this litigation – not only by virtue of Yasemin’s allegations, but also by Berrin and Gonca’s
reliance on the Business Judgment Rule, which requires that they actually have the judgment they
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purport to have exercised.
Overruling Defendants’ objections to all mental health discovery, this Court ruled in its
August 17th Order that such discovery was appropriate, so long as it was conducted in a “narrow”
fashion. Defendants, however, have made it perfectly clear that they have no intention of
complying with their discovery obligations on this issue, notwithstanding this Court’s Order.
Yasemin previously served Request for Production Nos. 82, 84 and 85 upon Defendants
seeking the production of documents regarding: (1) “any psychiatric or drug or alcohol treatment
that Berrin Tekiner or Gonca Tekiner have received” from 2015 to the present; (2) Defendants’
claim that Gonca “checked into rehabilitation so that her boyfriend would be unable to reach her”;
and (3) “any impact the psychiatric condition of or use of drugs or alcohol by Berrin Tekiner or
Gonca Tekiner has had on the management of the Companies” from 2015 to the present. (See
Parker Aff. ¶ 5 & Ex. 2.) In response, Defendants did not produce a single document. (Id. ¶ 6 &
Ex. 3.)
As a result, Yasemin filed a motion to compel. In this Court’s August 17th Order, the Court
ordered “that the parties meet and confer to narrow the categories of documents in dispute, taking
into account the Court’s guidance, and that the parties carefully and narrowly tailor their proposed
discovery relating medical information to that which is necessary and appropriate to prosecute and
defend the claims at issue in this litigation.” (Parker Aff. ¶ 7 & Ex. 4; see also NYSCEF Doc. No.
680.) Of course, when this Court issued its ruling, it likely assumed that both parties would
implement the ruling in good faith – which has not remotely been the case here.
On September 6, 2022, the parties met and conferred (as per this Court’s order), at which
time, Defendants relayed their position that it was Yasemin’s affirmative obligation to serve
amended, narrower categories of documents requests. (Id. ¶ 8.) On September 17, 2022, Yasemin
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sent Defendants a revised and narrowed list of 10 document requests to replace Yasemin’s prior
Request for Production Nos. 82, 84, and 85. (Id. ¶ 9 & Ex. 5.)
On September 23, 2022, Defendants informed Yasemin that they were declining to produce
documents in connection with six of Yasemin’s 10 revised discovery requests, and declined to
produce documents in connection with the remaining four requests until the parties met and
conferred regarding the scope of the requests. (See Parker Aff. ¶ 10 & Ex. 6.) Given that the
parties had already met and conferred, there was no other reason for Defendants to talk further on
this issue except to avoid complying with this Court’s Order – and Yasemin advised Defendants
accordingly. (See Parker Aff. ¶ 11 & Ex. 7.)
To date, Defendants have not produced a single mental health document that this Court
ordered them to produce over six weeks ago. Nor have they produced any “mental health”
documents from the Zeynep privilege log (see infra, Section D).
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B. Defendants’ Refusal to Timely Produce Previously Withheld Privileged
1
Documents
In response to Yasemin’s requests for communications concerning her Trust and the
Company, Defendants produced a privilege log that spanned over five years and incredibly
claimed that 9,539 separate communications were privileged – including many communications
for which Yasemin was either the author or a recipient. (See Parker Aff. ¶ 12.) In response,
Yasemin color-coded Defendants’ privilege log to reflect the various communications to which
the fiduciary exception to the attorney-client privilege likely applies. (Id.) On June 6, 2022,
Yasemin filed her Motion to Compel the production of those documents. (See Parker Aff. ¶ 13.)
At the August 15, 2022 hearing on that motion, this Court observed how narrow and
“discrete” the application of the attorney-client privilege was under these circumstances:
As I said I see the category of legitimately privileged as being relatively discrete.
Whether it’s narrow or not depends on how much advice was sought from counsel
with respect to specifically the dispute, and I don’t know whether this is too
nuanced of a point, but the fact that a transactional issue is now a disputed issue
doesn’t mean that communications back and forth about what should we put in this
1
Defendants have accused Zeynep of delaying the production of documents responsive to
Defendants’ document requests to Zeynep that Defendants served on May 16, 2022. Defendants’
allegations are false, and the timing of Zeynep’s production does not provide any colorable basis
for Defendants to delay their own discovery obligations. First, Zeynep has already produced
approximately 2,500 pages of responsive documents, and has advised Defendants that the
production is scheduled to be completed by October 5, 2022 at the latest. Second, Zeynep has
advised Defendants that most of the emails and texts contain one sentence or less, and that the
attachments to Zeynep’s emails and texts have already been produced in this litigation. Third,
Defendants’ prior counsel collected Zeynep’s email and text data last year. Although Norton Rose
produced only 13 of Zeynep’s documents as relevant, they presumably already reviewed all of
Zeynep’s phone and email data. Finally, the actions of Defendants themselves delayed Zeynep’s
ability to produce documents responsive to Defendants’ document requests. At the time when
Zeynep joined the case as Yasemin’s co-plaintiff, her prior counsel (i.e., Norton Rose and
Schoemann Updike) maintained exclusive control over the email and text data that they had
collected from Zeynep’s cell phone and servers. After new counsel substituted in, they purported
to take control of Zeynep’s emails and texts in the existing vendor’s account to the exclusion of
Zeynep’s counsel. Zeynep’s counsel was finally able to take control of her own client’s data in the
account on or about late August 2022. (See Affidavit of Michele Kahn, dated Oct. 3, 2022 (“Kahn
Aff.”) ¶¶ 9-15 & Exs. 4-5.)
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contract or what should we bid on their next round doesn’t make that fact or that
transaction or that exchange privileged in my opinion. …
[M]y view is, if I haven’t said it enough times, that the privilege here is – it may
end up being a lot of documents, but substantively it’s very narrow, okay, because
you’re talking about corporate directors on the one hand and the corporation and
then the beneficiaries and the trust and the privilege that can keep documents away
from them are going to have to be unusual kind of documents where the topic really
permits the corporation to be getting advice adverse to its own directors and a
trustee to be getting advice adverse to its own beneficiary.
(Id. ¶ 31 & Ex. 16 (Tr. 18:19-19:4, 22:6-22:16).)
On August 17, 2022, this Court ordered that Yasemin’s “motion to compel is granted in
part to the extent that Defendants’ categorical assertion of privilege with respect to corporate
business-related documents is overly broad” (the “August 17th Order”) (emphasis in original). (Id.
¶ 7 & Ex. 4.)
On September 6, 2022 – after Defendants had failed to produce a single previously
withheld document – Yasemin’s counsel met and conferred with Defense Counsel. (Id. ¶ 15.) At
that time, Defendants represented that they would be willing to produce the previously withheld
documents on a “rolling basis.” (See Parker Aff. ¶ 15.) On September 13, 2022, after Yasemin
had still not received any withheld privileged documents, Yasemin’s counsel requested that
Defendants confirm exactly when they would begin and complete their rolling production. (Id. ¶
17 & Ex. 9.) Once again, Defendants failed to respond, and continued to ignore this Court’s
August 17th Order.
On September 19, 2022 – more than a month after this Court’s August 17th Order –
Yasemin wrote to Defendants about their failure to produce a single withheld privileged document.
(Id. ¶ 18 & Ex. 10.) In response, on September 20, 2022, Defendants again stated that they would
produce the withheld privileged documents on a “rolling basis”, but once more without identifying
any timeframe for that promised production. (Id. ¶ 19 & Ex. 11.)
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On September 23, 2022 – nearly six weeks after the August 17th Order – Defendants finally
began their “rolling production,” which consisted of just 505 of the 9,539 documents (i.e., 5% of
them) that Defendants previously improperly withheld as privileged. (See Parker Aff. ¶ 21.)
Further, the 505 newly produced documents had new Bates stamped numbers, making it
impossible for Yasemin to determine: (i) which documents Defendants had previously produced
in a redacted form under a different Bates number; or (ii) which of the documents Defendants
produced that were not previously on Defendants’ privilege log and therefore not previously
produced in redacted form. (Id.) 2
On September 28, 2022, Yasemin requested that Defendants explain why they had only
produced just 505 of the documents during the six weeks since the Court’s August 17th Order, and
requested that Defendants confirm when they intended to produce the balance of the documents.
(See Parker Aff. ¶ 22 & Ex. 13.)
On September 30, 2022, Defendants produced an additional 1,000 documents totaling
3,927 pages. As with their previous production of 505 documents, the 1,000 documents also
contained entirely new Bates numbers. 3 (Id. ¶ 23.)
Thus, seven weeks after this Court issued its Order and less than two weeks until discovery
is scheduled to conclude, Defendants have only produced 26.4% of the 9,529 total withheld
documents. (Id. ¶ 24.) At their current tortoise-like rate of their self-proclaimed “rolling
production,” Defendants are on schedule to complete this production in April 2023.
2
Defendants have represented that they would correct these two issues, but they have not yet
done so. (See Parker Aff. ¶ 21.)
3
Late in the evening on October 4, 2022, Defendants produced an additional 1,010 previously
withheld privileged documents. (Id. ¶ 23.)
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C. Defendants’ Refusal to Produce Any Documents from Zeynep’s Privilege Log
Before Zeynep intervened as a plaintiff in this matter, Defendants claimed privilege over
Zeynep’s emails, text messages and other records. On April 18, 2022, after Zeynep intervened as
a co-plaintiff, the Court ordered Defendants to review the Zeynep Privilege Log that they created
in order to confirm whether the records were privileged and, if not, to produce them to Zeynep.
(See NYSCEF Doc. No. 353; see also Parker Aff. ¶ 31 & Ex. 16 (4/18/22 Hearing), at Tr. 81-86.)
On July 27, 2022, counsel for Zeynep requested that Defendants “whittle down” the
documents Defendants had previously withheld as privileged on a separate Zeynep Privilege Log
(“BBG_ZTEk Log”), and produce any responsive documents. (See Kahn Aff. ¶ 6 & Ex. 1.)
Defendants, however, refused to narrow the Zeynep Privilege Log unless counsel set forth
the reasons why she believed documents on that log were not privileged. (See Kahn Aff. ¶ 6.)
They took this position even after Defendants had heard this Court’s August 15, 2022 comments
on the record at the hearing on various discovery motions, and saw this Court’s August 17th Order,
both of which made plain that Defendants could not withhold all documents dealing with Company
business or mental health issues. (Id.)
On August 25, 2022, in response to Defendants’ request, Zeynep’s counsel sent a letter
setting forth the reasons for making these documents available. (Id. ¶ 7 & Ex. 2.) Despite this,
Defendants have still not served a revised Zeynep privilege log, nor have they produced even a
single document from the Zeynep privilege log. (Id. ¶ 7.)
D. Defendants’ Repeated Refusals to Schedule Depositions
On July 26, 2022, Yasemin emailed Defendants to discuss scheduling the parties’
depositions. For the next ten weeks, however, Defendants simply refused to schedule any
depositions whatsoever. (See Parker Aff. ¶¶ 25-26.) Yasemin was thus forced to notice
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depositions, including a notice for Berrin to be deposed on September 29th (i.e., a date that Yasemin
had proposed to Defendants on September 3) – but Defendants waited until September 27th to
advise that Berrin was “unavailable” on the 29th. (See Parker Aff. ¶ 27 & Ex. 14.) It was not until
October 3, 2022 – i.e.,less than 24 hours after Yasemin asked for Defendants’ consent to the
appointment of a Special Discovery Master (see Section E below), and just two weeks before the
scheduled closing of fact discovery – that Defendants finally offered potential deposition dates for
Yasemin, Zeynep, Berrin and Gonca — all of which were to be held during the week of October
10th. (See Parker Aff. ¶¶ 28, 32 & Exs. 15, 17.)
By cramming all of the party depositions into the last full week of the fact discovery period,
Defendants have also made it impossible to schedule the multiple additional non-party depositions
that still need to occur. 4
E. Defendants Decline to Consent to Jointly Retain a Special Discovery Master to
Manage Discovery
On October 2, 2022, due to the numerous documents that Defendants continued to withhold
as the close of fact discovery approached, Yasemin reached out to Defendants to seek their consent
to the appointment of a Special Discovery Master pursuant to CPLR 3104. (See Parker Aff. ¶ 32
& Ex. 17.) On October 3, 2022, Defendants responded, advising that they “don’t think there is
any need for a special discovery master at this stage of the case.” (Id. ¶ 33 & Ex. 18.)
4
Defendants have even objected to Yasemin, who is the Company’s finance director, seeing
bank record from the Company’s accounts at Santander Bank. Defendants’ baseless motion to
quash a subpoena to the bank remains pending before this Court. (See Parker Aff. ¶ 30.)
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ARGUMENT
More than two months have passed since this Court’s so-ordered stipulation setting
October 17, 2022 as the deadline for the parties to complete fact discovery. And nearly 45 days
have passed since this Court’s August 17th Order requiring Defendants to produce: (i) records
related to Berrin and Gonca’s medical and mental health histories, and (ii) the withheld privileged
documents. Yet, despite Plaintiffs’ myriad emails, letters, deposition notices, and telephone calls
to meet and confer, the parties are not any closer to completing this discovery by the October 17,
2022 deadline.
The record speaks for itself: Defendants refuse to engage in meaningful and good faith
discovery, and have stonewalled Plaintiffs’ efforts to complete discovery at every turn.
Accordingly, Defendants seek an order compelling compliance with the court’s August 17th Order.
Moreover, given Defendants’ repeated obstruction of discovery, and as suggested by this Court
during the August 15th hearing, Yasemin and Zeynep respectfully request that this Court (as it has
the power to do) immediately appoint a Special Discovery Master to manage discovery between
the parties pursuant to CPLR 3104(a). Otherwise, Defendants will have succeeded in their efforts
to ignore their discovery obligations.
Further, given Defendants’ deliberate and contumacious conduct with respect to these
discovery issues, Yasemin and Zeynep respectfully request that this Court issue an order pursuant
to CPLR 3126(2) and (3), precluding Defendants from introducing testimony or evidence and/or
striking Defendants’ pleadings or rendering default judgments against the Defendants.
I. THIS COURT SHOULD COMPEL DEFENDANTS TO COMPLY WITH
THE COURT’S AUGUST 17, 2022 ORDER PURSUANT TO CPLR 3124
At a bare minimum, Yasemin and Zeynep respectfully submit that the Court should compel
Defendants to comply with this Court’s August 17th Order.
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CPLR 3124 provides:
Failure to disclose; motion to compel disclosure. If a person fails to
respond to or comply with any request, notice, interrogatory, demand,
question or order under this article, except a notice to admit under section
3123, the party seeking disclosure may move to compel compliance or a
response.
Here, as set forth above, Defendants have failed to comply with this Court’s August 17th
Order in two fundamental ways. First, Defendants have failed to produce a single document
relating to Berrin and Gonca’s medical and mental health histories – even though Yasemin
provided Defendants with significantly narrowed requests, as compared to her initial document
requests. It is plain that Defendants do not accept this Court’s ruling on mental health documents
and simply will not produce the relevant documents despite this Court’s order to do so. 5 Second,
Defendants have only produced 26.4% of the 9,537 documents that they were ordered to review
and produce with limited exception, and they have failed to provide any timetable as to when, if
ever, they plan to complete that production. Given that there is only two weeks left in the discovery
schedule and key depositions have yet to be taken, these discovery failures are simply unacceptable
and Defendants must be compelled to comply with the Court’s August 17th Order. (See Coffey v.
Orbachs, Inc., 22 A.D.2d 317, 317, 254 N.Y.S.2d 596, 597 (1st Dept. 1964) (affirming the lower
court’s order compelling discovery and inspection under CPLR 3124 because defendant’s attorney
refused to comply with discovery requests); see also Stark v. Matchett, 2016 NY Slip Op
31474(U), ¶ 9 (Sup. Ct., NY County) (granting defendants’ motion to compel plaintiff to produce
documents that she did not timely produce).)
5
This is no surprise, given that Defendants argued at the August 15, 2022 hearing that “these
claims of mental illness and substance abuse … are, frankly distasteful” and constituted “fishing
and harassment”. (See Parker Aff. ¶ 31 & Ex. 16 (August 15, 2022) (Tr. 27:19-20, 37:13-39:14).)
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Further, Defendants should be compelled to produce the documents from the Zeynep
privilege log. As noted above, Defendants continue in their refusal to serve a revised Zeynep
privilege log and, to date, still have not produced even a single document from the initial log.
II. THIS COURT SHOULD APPOINT A SPECIAL DISCOVERY MASTER
TO MANAGE DISCOVERY PURSUANT TO CPLR 3104
A. Standard of Review
“It is well settled that a trial court has broad discretion in supervising discovery.” (Vasile
v Chisena, 272 AD2d 610, 610 [2d Dept 2000].)
“Upon the motion of any party … or on its own initiative without notice, the court in which
an action is pending may by one of its judges or r
Preview
FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 SUPREME COURT OF THE STATE OF NEW YORK COMMERCIAL DIVISION, NEW YORK COUNTY 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 Commercial Division Part 3 Defendants, Hon. Joel M. Cohen Plaintiff, Motion Seq. No. 35 -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 TEKINER, and BILLUR AKIPEK, in her capacity as a Trustee of The Yasemin Tekiner 2011 Descendants Trust, Defendants. ZEYNEP TEKINER, in her individual capacity, as a beneficiary and a Trustee of The Zeynep Tekiner 2011 Descendants Trust and derivatively as a holder of equitable interests in a shareholder or a member of the Company Defendants, Intervenor-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 TEKINER, and BILLUR AKIPEK, in her capacity as a Trustee of The Yasemin Tekiner 2011 Descendants Trust, Defendants. 1 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 MEMORANDUM OF LAW OF CO-PLAINTIFFS, YASEMIN TEKINER AND ZEYNEP TEKINER, IN SUPPORT OF THEIR ORDER TO SHOW CAUSE TO COMPEL COMPLIANCE WITH DISCOVERY ORDER AND APPOINT A SPECIAL DISCOVERY MASTER Stephen P. Younger Sanjay P. Ibrahim FOLEY HOAG LLP Scott W. Parker 1301 Avenue of the Americas, 25th Floor Daniel A. Schleifstein New York, New York 10019 PARKER IBRAHIM & BERG LLP Telephone: (212) 812-0365 5 Penn Plaza, Suite 2371 spyounger@foleyhoag.com New York, New York 10001 Telephone: (212) 596-7037 sanjay.ibrahim@piblaw.com scott.parker@piblaw.com daniel.schleifstein@piblaw.com Michele Kahn KAHN & GOLDBERG, LLP 555 Fifth Avenue, 14th Floor New York, New York 10017 Telephone: (212) 687-5066 mk@kahngoldberg.com 2 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................... ii PRELIMINARY STATEMENT ...................................................................................... 1 FACTUAL BACKGROUND ........................................................................................... 2 A. Defendants’ Outright Refusal to Produce Any Documents Related to Berrin and Gonca’s Medical Condition and History ................................ 2 B. Defendants’ Refusal to Timely Produce Previously Withheld Privileged Documents ...............................................................................5 C. Defendants’ Refusal to Produce Any Documents from Zeynep’s Privilege Log............................................................................................. 8 D. Defendants’ Repeated Refusals to Schedule Depositions ........................ 8 E. Defendants Decline to Consent to Jointly Retain a Special Discovery Master to Manage Discovery .................................................................... 9 ARGUMENT .................................................................................................................. 10 I. THIS COURT SHOULD COMPEL DEFENDANTS TO COMPLY WITH THE COURT’S AUGUST 17, 2022 ORDER PURSUANT TO CPLR 3124.............................................................................................. 10 II. THIS COURT SHOULD APPOINT A SPECIAL DISCOVERY MASTER TO MANAGE DISCOVERY PURSUANT TO CPLR 3104 ........................................................................................... 12 A. Standard of Review .........................................................................12 B. Defendants’ Refusal to Engage in Meaningful and Good Faith Discovery Warrants the Appointment of a Special Discovery Master .............................................................................................. 14 III. GIVEN DEFENDANTS’ REPEATED DISCOVERY FAILURES, DEFENDANTS SHOULD BE PRECLUDED FROM INTRODUCING PROOF, THEIR ANSWER SHOULD BE STRICKEN, OR DEFAULT JUDGMENT SHOULD BE ENTERED AGAINST DEFENDANTS..............................................15 CONCLUSION ...............................................................................................................17 i 3 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 Table of Authorities Cases Baker v General Mills Fun Grp., Inc., 101 Misc. 2d 193 [Sup Ct, NY County 1979] ........................................................................ 13 Cadlerock Joint Venture, L.P. v Sol Greenberg &Sons Int’l, Inc., 94 AD3d 580, 581-82 [1st Dept 2012] ................................................................................... 12 Capoccia v Brognano, 126 AD2d 323 [3d Dept 1987] ............................................................................................... 12 Coffey v. Orbachs, Inc., 22 A.D.2d 317, 254 N.Y.S.2d 596 (1st Dept. 1964) .............................................................. 11 Corex-SPA v Janel Group, 156 AD3d 599 [2d Dept. 2017] .............................................................................................. 16 East Greenbush v. Ashland Chemical Co., 99 AD3d 604 [3d Dept. 1984] ................................................................................................ 16 Hindlin v. Prescription Songs LLC, Index No. 651974/2018 (Oct. 6, 2020) ................................................................................. 13 Kogan v Royal Indem. Co., 179 AD2d 399 (1st Dept 1992) .............................................................................................. 12 Kopelevich & Feldsherova, P.C. v. Geller Law Group, P.C., 2021 NY Slip Op 01034 [2d Dept. Feb. 17, 2021] ................................................................. 16 Lowitt v Korelitz, 152 AD2d 506 [1st Dept 1989] .............................................................................................. 12 O’Neill v Ho, 28 AD3d 626 [2d Dept 2006] ................................................................................................. 12 Parker v Ollivierre, 60 AD3d 1023 [2d Dept 2009] ............................................................................................... 12 Stark v. Matchett, 2016 NY Slip Op 31474(U), ¶ 9 (Sup. Ct., NY County) ........................................................ 11 Vasile v Chisena, 272 AD2d 610 [2d Dept 2000] ............................................................................................... 12 Statutes CPLR 3104 ........................................................................................................................... passim CPLR 3124 ........................................................................................................................... passim CPLR 3126 ............................................................................................................................ passim CPLR 4201 ................................................................................................................................... 12 CPLR 4320 ................................................................................................................................... 12 ii 4 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 Co-Plaintiffs, Yasemin Tekiner (“Yasemin”) and Zeynep Tekiner (“Zeynep”) (collectively, “Plaintiffs”), respectfully submit this memorandum of law in support of their Order to Show Cause (the “OTSC”), to: (1) compel compliance with this Court’s August 17, 2022 discovery order pursuant to CPLR 3124; (2) appoint a Special Discovery Master to manage discovery between the parties, pursuant to CPLR 3104; and (3) preclude Defendants from offering any testimony or evidence from Berrin Tekiner (“Berrin”), Gonca Tekiner (“Gonca”) or the Company (as defined herein), pursuant to CPLR 3126. PRELIMINARY STATEMENT When new counsel for Defendants substituted into this case on July 8, 2022, they immediately asked this Court for a 120-day stay of all proceedings. The Court denied this request and set an October 17, 2022 fact discovery cut-off. Now, through Defendants’ chronic and repeated dereliction of their discovery obligations, Defendants are attempting to give themselves the very discovery extension that this Court rejected, by: (1) refusing to produce a single document in response to Yasemin’s revised, narrowly tailored requests regarding the mental health of Berrin and Gonca, despite this Court’s order to produce; (2) proceeding at a deliberately slow pace in producing wrongfully withheld privileged documents, under the guise of a “rolling production”; and (3) refusing to produce any documents from Zeynep’s privilege log. This approach is, unfortunately, right out of the playbook of the lawyers that they replaced. It is transparently designed to slow-walk the conclusion of discovery and even avoid complying with some discovery obligations altogether. As a result, Yasemin and Zeynep have been left with no choice but to file the instant OTSC seeking to compel compliance with this Court’s prior discovery orders. Consistent with the Court’s prescient observations during the August 15, 2022 hearing – and in light of the rapidly 1 5 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 approaching October 17th fact discovery deadline – Plaintiffs respectfully request that this Court immediately appoint a Special Discovery Master to manage discovery. (See Parker Aff. ¶¶ 4, 31 & Exs. 1, 16.) Indeed, under CPLR 3104(a), this Court may appoint a Special Discovery Master not only upon the motion of a party, but “on its own initiative without notice.” Absent the appointment of a Special Discovery Master, Defendants’ words and actions have made it abundantly clear that they will not comply with this Court’s August 17th order. Further, in light of Defendants’ deliberate conduct with respect to these discovery issues – particularly with respect to this Court’s August 17th order regarding Berrin’s and Gonca’s mental health and the mostly still withheld privileged documents – Yasemin and Zeynep respectfully request that this Court issue an order pursuant to CPLR 3126(2) and (3), precluding Defendants from introducing testimony or evidence to support their counterclaims or defenses, and/or striking Defendants’ pleadings or rendering default judgment against the Defendants. At minimum, this Court should compel Defendants to comply with the August 17th order, pursuant to CPLR 3124. FACTUAL BACKGROUND A more complete summary of the relevant factual background can be found in the accompanying Parker Affirmation. Below is a brief recitation. A. Defendants’ Outright Refusal to Produce Any Documents Related to Berrin and Gonca’s Medical Condition and History As Plaintiffs have long believed (and as discovery to date has shown), Berrin and Gonca’s documented mental health and substance abuse issues have substantially and detrimentally affected their ability to manage the business affairs of the Company (i.e., Bremen House Inc. and German News Company, Inc.). Indeed, these matters have been placed squarely in controversy by this litigation – not only by virtue of Yasemin’s allegations, but also by Berrin and Gonca’s reliance on the Business Judgment Rule, which requires that they actually have the judgment they 2 6 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 purport to have exercised. Overruling Defendants’ objections to all mental health discovery, this Court ruled in its August 17th Order that such discovery was appropriate, so long as it was conducted in a “narrow” fashion. Defendants, however, have made it perfectly clear that they have no intention of complying with their discovery obligations on this issue, notwithstanding this Court’s Order. Yasemin previously served Request for Production Nos. 82, 84 and 85 upon Defendants seeking the production of documents regarding: (1) “any psychiatric or drug or alcohol treatment that Berrin Tekiner or Gonca Tekiner have received” from 2015 to the present; (2) Defendants’ claim that Gonca “checked into rehabilitation so that her boyfriend would be unable to reach her”; and (3) “any impact the psychiatric condition of or use of drugs or alcohol by Berrin Tekiner or Gonca Tekiner has had on the management of the Companies” from 2015 to the present. (See Parker Aff. ¶ 5 & Ex. 2.) In response, Defendants did not produce a single document. (Id. ¶ 6 & Ex. 3.) As a result, Yasemin filed a motion to compel. In this Court’s August 17th Order, the Court ordered “that the parties meet and confer to narrow the categories of documents in dispute, taking into account the Court’s guidance, and that the parties carefully and narrowly tailor their proposed discovery relating medical information to that which is necessary and appropriate to prosecute and defend the claims at issue in this litigation.” (Parker Aff. ¶ 7 & Ex. 4; see also NYSCEF Doc. No. 680.) Of course, when this Court issued its ruling, it likely assumed that both parties would implement the ruling in good faith – which has not remotely been the case here. On September 6, 2022, the parties met and conferred (as per this Court’s order), at which time, Defendants relayed their position that it was Yasemin’s affirmative obligation to serve amended, narrower categories of documents requests. (Id. ¶ 8.) On September 17, 2022, Yasemin 3 7 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 sent Defendants a revised and narrowed list of 10 document requests to replace Yasemin’s prior Request for Production Nos. 82, 84, and 85. (Id. ¶ 9 & Ex. 5.) On September 23, 2022, Defendants informed Yasemin that they were declining to produce documents in connection with six of Yasemin’s 10 revised discovery requests, and declined to produce documents in connection with the remaining four requests until the parties met and conferred regarding the scope of the requests. (See Parker Aff. ¶ 10 & Ex. 6.) Given that the parties had already met and conferred, there was no other reason for Defendants to talk further on this issue except to avoid complying with this Court’s Order – and Yasemin advised Defendants accordingly. (See Parker Aff. ¶ 11 & Ex. 7.) To date, Defendants have not produced a single mental health document that this Court ordered them to produce over six weeks ago. Nor have they produced any “mental health” documents from the Zeynep privilege log (see infra, Section D). 4 8 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 B. Defendants’ Refusal to Timely Produce Previously Withheld Privileged 1 Documents In response to Yasemin’s requests for communications concerning her Trust and the Company, Defendants produced a privilege log that spanned over five years and incredibly claimed that 9,539 separate communications were privileged – including many communications for which Yasemin was either the author or a recipient. (See Parker Aff. ¶ 12.) In response, Yasemin color-coded Defendants’ privilege log to reflect the various communications to which the fiduciary exception to the attorney-client privilege likely applies. (Id.) On June 6, 2022, Yasemin filed her Motion to Compel the production of those documents. (See Parker Aff. ¶ 13.) At the August 15, 2022 hearing on that motion, this Court observed how narrow and “discrete” the application of the attorney-client privilege was under these circumstances: As I said I see the category of legitimately privileged as being relatively discrete. Whether it’s narrow or not depends on how much advice was sought from counsel with respect to specifically the dispute, and I don’t know whether this is too nuanced of a point, but the fact that a transactional issue is now a disputed issue doesn’t mean that communications back and forth about what should we put in this 1 Defendants have accused Zeynep of delaying the production of documents responsive to Defendants’ document requests to Zeynep that Defendants served on May 16, 2022. Defendants’ allegations are false, and the timing of Zeynep’s production does not provide any colorable basis for Defendants to delay their own discovery obligations. First, Zeynep has already produced approximately 2,500 pages of responsive documents, and has advised Defendants that the production is scheduled to be completed by October 5, 2022 at the latest. Second, Zeynep has advised Defendants that most of the emails and texts contain one sentence or less, and that the attachments to Zeynep’s emails and texts have already been produced in this litigation. Third, Defendants’ prior counsel collected Zeynep’s email and text data last year. Although Norton Rose produced only 13 of Zeynep’s documents as relevant, they presumably already reviewed all of Zeynep’s phone and email data. Finally, the actions of Defendants themselves delayed Zeynep’s ability to produce documents responsive to Defendants’ document requests. At the time when Zeynep joined the case as Yasemin’s co-plaintiff, her prior counsel (i.e., Norton Rose and Schoemann Updike) maintained exclusive control over the email and text data that they had collected from Zeynep’s cell phone and servers. After new counsel substituted in, they purported to take control of Zeynep’s emails and texts in the existing vendor’s account to the exclusion of Zeynep’s counsel. Zeynep’s counsel was finally able to take control of her own client’s data in the account on or about late August 2022. (See Affidavit of Michele Kahn, dated Oct. 3, 2022 (“Kahn Aff.”) ¶¶ 9-15 & Exs. 4-5.) 5 9 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 contract or what should we bid on their next round doesn’t make that fact or that transaction or that exchange privileged in my opinion. … [M]y view is, if I haven’t said it enough times, that the privilege here is – it may end up being a lot of documents, but substantively it’s very narrow, okay, because you’re talking about corporate directors on the one hand and the corporation and then the beneficiaries and the trust and the privilege that can keep documents away from them are going to have to be unusual kind of documents where the topic really permits the corporation to be getting advice adverse to its own directors and a trustee to be getting advice adverse to its own beneficiary. (Id. ¶ 31 & Ex. 16 (Tr. 18:19-19:4, 22:6-22:16).) On August 17, 2022, this Court ordered that Yasemin’s “motion to compel is granted in part to the extent that Defendants’ categorical assertion of privilege with respect to corporate business-related documents is overly broad” (the “August 17th Order”) (emphasis in original). (Id. ¶ 7 & Ex. 4.) On September 6, 2022 – after Defendants had failed to produce a single previously withheld document – Yasemin’s counsel met and conferred with Defense Counsel. (Id. ¶ 15.) At that time, Defendants represented that they would be willing to produce the previously withheld documents on a “rolling basis.” (See Parker Aff. ¶ 15.) On September 13, 2022, after Yasemin had still not received any withheld privileged documents, Yasemin’s counsel requested that Defendants confirm exactly when they would begin and complete their rolling production. (Id. ¶ 17 & Ex. 9.) Once again, Defendants failed to respond, and continued to ignore this Court’s August 17th Order. On September 19, 2022 – more than a month after this Court’s August 17th Order – Yasemin wrote to Defendants about their failure to produce a single withheld privileged document. (Id. ¶ 18 & Ex. 10.) In response, on September 20, 2022, Defendants again stated that they would produce the withheld privileged documents on a “rolling basis”, but once more without identifying any timeframe for that promised production. (Id. ¶ 19 & Ex. 11.) 6 10 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 On September 23, 2022 – nearly six weeks after the August 17th Order – Defendants finally began their “rolling production,” which consisted of just 505 of the 9,539 documents (i.e., 5% of them) that Defendants previously improperly withheld as privileged. (See Parker Aff. ¶ 21.) Further, the 505 newly produced documents had new Bates stamped numbers, making it impossible for Yasemin to determine: (i) which documents Defendants had previously produced in a redacted form under a different Bates number; or (ii) which of the documents Defendants produced that were not previously on Defendants’ privilege log and therefore not previously produced in redacted form. (Id.) 2 On September 28, 2022, Yasemin requested that Defendants explain why they had only produced just 505 of the documents during the six weeks since the Court’s August 17th Order, and requested that Defendants confirm when they intended to produce the balance of the documents. (See Parker Aff. ¶ 22 & Ex. 13.) On September 30, 2022, Defendants produced an additional 1,000 documents totaling 3,927 pages. As with their previous production of 505 documents, the 1,000 documents also contained entirely new Bates numbers. 3 (Id. ¶ 23.) Thus, seven weeks after this Court issued its Order and less than two weeks until discovery is scheduled to conclude, Defendants have only produced 26.4% of the 9,529 total withheld documents. (Id. ¶ 24.) At their current tortoise-like rate of their self-proclaimed “rolling production,” Defendants are on schedule to complete this production in April 2023. 2 Defendants have represented that they would correct these two issues, but they have not yet done so. (See Parker Aff. ¶ 21.) 3 Late in the evening on October 4, 2022, Defendants produced an additional 1,010 previously withheld privileged documents. (Id. ¶ 23.) 7 11 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 C. Defendants’ Refusal to Produce Any Documents from Zeynep’s Privilege Log Before Zeynep intervened as a plaintiff in this matter, Defendants claimed privilege over Zeynep’s emails, text messages and other records. On April 18, 2022, after Zeynep intervened as a co-plaintiff, the Court ordered Defendants to review the Zeynep Privilege Log that they created in order to confirm whether the records were privileged and, if not, to produce them to Zeynep. (See NYSCEF Doc. No. 353; see also Parker Aff. ¶ 31 & Ex. 16 (4/18/22 Hearing), at Tr. 81-86.) On July 27, 2022, counsel for Zeynep requested that Defendants “whittle down” the documents Defendants had previously withheld as privileged on a separate Zeynep Privilege Log (“BBG_ZTEk Log”), and produce any responsive documents. (See Kahn Aff. ¶ 6 & Ex. 1.) Defendants, however, refused to narrow the Zeynep Privilege Log unless counsel set forth the reasons why she believed documents on that log were not privileged. (See Kahn Aff. ¶ 6.) They took this position even after Defendants had heard this Court’s August 15, 2022 comments on the record at the hearing on various discovery motions, and saw this Court’s August 17th Order, both of which made plain that Defendants could not withhold all documents dealing with Company business or mental health issues. (Id.) On August 25, 2022, in response to Defendants’ request, Zeynep’s counsel sent a letter setting forth the reasons for making these documents available. (Id. ¶ 7 & Ex. 2.) Despite this, Defendants have still not served a revised Zeynep privilege log, nor have they produced even a single document from the Zeynep privilege log. (Id. ¶ 7.) D. Defendants’ Repeated Refusals to Schedule Depositions On July 26, 2022, Yasemin emailed Defendants to discuss scheduling the parties’ depositions. For the next ten weeks, however, Defendants simply refused to schedule any depositions whatsoever. (See Parker Aff. ¶¶ 25-26.) Yasemin was thus forced to notice 8 12 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 depositions, including a notice for Berrin to be deposed on September 29th (i.e., a date that Yasemin had proposed to Defendants on September 3) – but Defendants waited until September 27th to advise that Berrin was “unavailable” on the 29th. (See Parker Aff. ¶ 27 & Ex. 14.) It was not until October 3, 2022 – i.e.,less than 24 hours after Yasemin asked for Defendants’ consent to the appointment of a Special Discovery Master (see Section E below), and just two weeks before the scheduled closing of fact discovery – that Defendants finally offered potential deposition dates for Yasemin, Zeynep, Berrin and Gonca — all of which were to be held during the week of October 10th. (See Parker Aff. ¶¶ 28, 32 & Exs. 15, 17.) By cramming all of the party depositions into the last full week of the fact discovery period, Defendants have also made it impossible to schedule the multiple additional non-party depositions that still need to occur. 4 E. Defendants Decline to Consent to Jointly Retain a Special Discovery Master to Manage Discovery On October 2, 2022, due to the numerous documents that Defendants continued to withhold as the close of fact discovery approached, Yasemin reached out to Defendants to seek their consent to the appointment of a Special Discovery Master pursuant to CPLR 3104. (See Parker Aff. ¶ 32 & Ex. 17.) On October 3, 2022, Defendants responded, advising that they “don’t think there is any need for a special discovery master at this stage of the case.” (Id. ¶ 33 & Ex. 18.) 4 Defendants have even objected to Yasemin, who is the Company’s finance director, seeing bank record from the Company’s accounts at Santander Bank. Defendants’ baseless motion to quash a subpoena to the bank remains pending before this Court. (See Parker Aff. ¶ 30.) 9 13 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 ARGUMENT More than two months have passed since this Court’s so-ordered stipulation setting October 17, 2022 as the deadline for the parties to complete fact discovery. And nearly 45 days have passed since this Court’s August 17th Order requiring Defendants to produce: (i) records related to Berrin and Gonca’s medical and mental health histories, and (ii) the withheld privileged documents. Yet, despite Plaintiffs’ myriad emails, letters, deposition notices, and telephone calls to meet and confer, the parties are not any closer to completing this discovery by the October 17, 2022 deadline. The record speaks for itself: Defendants refuse to engage in meaningful and good faith discovery, and have stonewalled Plaintiffs’ efforts to complete discovery at every turn. Accordingly, Defendants seek an order compelling compliance with the court’s August 17th Order. Moreover, given Defendants’ repeated obstruction of discovery, and as suggested by this Court during the August 15th hearing, Yasemin and Zeynep respectfully request that this Court (as it has the power to do) immediately appoint a Special Discovery Master to manage discovery between the parties pursuant to CPLR 3104(a). Otherwise, Defendants will have succeeded in their efforts to ignore their discovery obligations. Further, given Defendants’ deliberate and contumacious conduct with respect to these discovery issues, Yasemin and Zeynep respectfully request that this Court issue an order pursuant to CPLR 3126(2) and (3), precluding Defendants from introducing testimony or evidence and/or striking Defendants’ pleadings or rendering default judgments against the Defendants. I. THIS COURT SHOULD COMPEL DEFENDANTS TO COMPLY WITH THE COURT’S AUGUST 17, 2022 ORDER PURSUANT TO CPLR 3124 At a bare minimum, Yasemin and Zeynep respectfully submit that the Court should compel Defendants to comply with this Court’s August 17th Order. 10 14 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 CPLR 3124 provides: Failure to disclose; motion to compel disclosure. If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response. Here, as set forth above, Defendants have failed to comply with this Court’s August 17th Order in two fundamental ways. First, Defendants have failed to produce a single document relating to Berrin and Gonca’s medical and mental health histories – even though Yasemin provided Defendants with significantly narrowed requests, as compared to her initial document requests. It is plain that Defendants do not accept this Court’s ruling on mental health documents and simply will not produce the relevant documents despite this Court’s order to do so. 5 Second, Defendants have only produced 26.4% of the 9,537 documents that they were ordered to review and produce with limited exception, and they have failed to provide any timetable as to when, if ever, they plan to complete that production. Given that there is only two weeks left in the discovery schedule and key depositions have yet to be taken, these discovery failures are simply unacceptable and Defendants must be compelled to comply with the Court’s August 17th Order. (See Coffey v. Orbachs, Inc., 22 A.D.2d 317, 317, 254 N.Y.S.2d 596, 597 (1st Dept. 1964) (affirming the lower court’s order compelling discovery and inspection under CPLR 3124 because defendant’s attorney refused to comply with discovery requests); see also Stark v. Matchett, 2016 NY Slip Op 31474(U), ¶ 9 (Sup. Ct., NY County) (granting defendants’ motion to compel plaintiff to produce documents that she did not timely produce).) 5 This is no surprise, given that Defendants argued at the August 15, 2022 hearing that “these claims of mental illness and substance abuse … are, frankly distasteful” and constituted “fishing and harassment”. (See Parker Aff. ¶ 31 & Ex. 16 (August 15, 2022) (Tr. 27:19-20, 37:13-39:14).) 11 15 of 23 FILED: NEW YORK COUNTY CLERK 10/05/2022 11:46 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 754 RECEIVED NYSCEF: 10/05/2022 Further, Defendants should be compelled to produce the documents from the Zeynep privilege log. As noted above, Defendants continue in their refusal to serve a revised Zeynep privilege log and, to date, still have not produced even a single document from the initial log. II. THIS COURT SHOULD APPOINT A SPECIAL DISCOVERY MASTER TO MANAGE DISCOVERY PURSUANT TO CPLR 3104 A. Standard of Review “It is well settled that a trial court has broad discretion in supervising discovery.” (Vasile v Chisena, 272 AD2d 610, 610 [2d Dept 2000].) “Upon the motion of any party … or on its own initiative without notice, the court in which an action is pending may by one of its judges or r