Preview
FILED: NEW YORK COUNTY CLERK 01/31/2023 03:42 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1158 RECEIVED NYSCEF: 01/31/2023
EXHIBIT 26
FILED: NEW YORK COUNTY CLERK 01/31/2023 03:42 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1158 RECEIVED NYSCEF: 01/31/2023
November 17, 2021
Norton Rose Fulbright US LLP
1301 Avenue of the Americas
New York, New York 10019-6022
Via NYSCEF
Judith Archer
Hon. Joel M. Cohen, J.S.C. Partner
Supreme Court of the State of New York Direct line +1 212 318 3342
Commercial Division judith.archer@nortonrosefulbright.com
60 Centre Street
Tel +1 212 318 3000
Courtroom 208
Fax +1 212 318 3400
New York, NY 10007
nortonrosefulbright.com
Re: Yasemin Tekiner v. Bremen House Inc. et. al., 657193/2020 – Opposition to Plaintiff’s
Rule 14 Letter of November 11, 2021
Dear Justice Cohen:
We represent Defendants Bremen House, Inc., German News Company, Inc., Berrin Tekiner,
Gonca Tekiner, and Billur Akipek (“Defendants”) in the above-referenced matter. We write to
oppose Plaintiff’s Rule 14 letter of November 11, 2021, which seeks a categorical ruling directing
Defendants to produce thousands of privileged communications. For the reasons set forth below,
Plaintiff is not entitled to these documents under either a fiduciary-beneficiary exception, joint
client, or any other theory. Plaintiff’s purported dispute concerning the privilege log is merely her
latest attempt to gain leverage in this litigation and force a settlement. There is no basis for the
relief requested in Plaintiff’s letter, and the Court should find the communications at issue are
properly withheld as privileged.
I. Communications Involving Billur Akipek or Berrin Tekiner
Plaintiff asks Defendants to produce all communications withheld as privileged that were sent or
received by individual defendants, Billur Akipek and Berrin Tekiner, on the basis that a fiduciary
exception categorically applies to all communications involving them. Plaintiff’s argument is
wrong for several reasons.
As an initial matter, Defendants have satisfied their burden of making a prima facie showing that
the communications withheld from production were privileged and/or work product by producing
a privilege log that complies with the terms of the parties’ negotiated ESI Protocol (NYSCEF Doc.
No. 91) and CPLR 3122(b). See In re Subpoena Duces Tecum to Jane Doe, Esq., 99 N.Y.2d
434, 442 (2003) (“The log should specify the nature of the contents of the documents, who
prepared the records and the basis for the claimed privilege”). Plaintiff previously failed to
challenge a single deficient log entry, and for this reason alone her argument should be rejected.
Plaintiff’s argument should also be rejected because she has not shown how the fiduciary
exception applies to all communications involving Billur and Berrin as a blanket rule. Indeed, the
“fiduciary exception” to the attorney-client privilege is quite narrow and requires a context-specific
analysis for each communication. Nama Holdings, LLC v. Greenberg Traurig LLP, 133 A.D.3d
56, n.7 (1st Dep’t 2015). The exception simply does not apply on a categorical basis, as Plaintiff
tries to use it here. See id. (reversing IAS court’s decision that fiduciary exception applied and
noting that “[a] blanket application of the exception whenever a fiduciary relationship is present
Norton Rose Fulbright US LLP is a limited liability partnership registered under the laws of Texas.
Norton Rose Fulbright US LLP, Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP and Norton Rose
Fulbright South Africa Inc are separate legal entities and all of them are members of Norton Rose Fulbright Verein, a Swiss verein. Norton Rose Fulbright
Verein helps coordinate the activities of the members but does not itself provide legal services to clients. Details of each entity, with certain regulatory
inf ormation, are av ailable at nortonrosef ulbright.com.
FILED: NEW YORK COUNTY CLERK 01/31/2023 03:42 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1158 RECEIVED NYSCEF: 01/31/2023
Hon. Joel M. Cohen, J.S.C.
November 17, 2021
Page 2
would too easily abrogate the privilege”). For this reason, too, Plaintiff’s argument should be
rejected.
Moreover, Plaintiff has not set forth any facts that would entitle her to use the fiduciary exception
to invalidate privilege as to any specific privilege log entries. The fiduciary exception could,
hypothetically, provide a beneficiary like Yasemin access to privileged communications between
a trustee and a trust's attorney, concerning the trust, based upon the theory that the trustee and
beneficiaries’ interests are aligned. 1 See Nama, 133 A.D.3d at 53. And the fiduciary exception
may be extended in certain circumstances to a shareholder-corporation relationship, based on
the theory that the relationship is analogous to that between beneficiaries and trustees. Id.
However, the exception “should not be applied when the plaintiff is in an adversary relation with
the corporation's current management” as is the case here. Nunan v. Midwest, Inc., 814 N.Y.S.2d
891 (N.Y. Sup. Monroe Cnty. 2006); Beck v. Manufacturers Hanover Tr. Co., 218 A.D.2d 1, 17–
18 (1st Dep’t 1995) (rejecting plaintiff's efforts to obtain documents because “there [was] an
adversary relation with the Trustee” that had existed for years, and the disclosures sought were
“specifically relevant to the handling of the very issues the plaintiffs had been threatening to
litigate.”).
Plaintiff is litigating against Billur, Berrin, and the corporate Defendants, and broadly seeks their
privileged communications under the guise of the fiduciary exception. 2 Plaintiff has not shown
that any of the communications sought were sent during a time when the interests of Yasemin
and the Trustee or Companies were aligned, let alone identified specific communications to permit
the proper analysis. As a result, Plaintiff cannot invoke the exception. Beck, 218 A.D.2d at 17.
Even if the fiduciary exception applied – it does not – Plaintiff has failed to show “good cause” for
applying the exception to specific communications, which, again, requires a context-specific
analysis. The Court of Appeals and the First Department have instructed that in either a corporate
or trust context, a trial court must conduct a comprehensive good cause analysis before applying
the exception by, for example, analyzing the factors set forth in Hoopes v. Carota, 142 A.D.2d
906 (3d Dep’t 1988), aff’d 74 N.Y.2d 716, 718 (1989). Nama, 133 A.D.3d at 61 n.6. Those factors
include Plaintiff’s access to the information from other sources, whether the alleged corporate
actions are criminal, the risk of disclosing confidential information, and “the extent to which the
communication is identified versus the extent to which the shareholders are blindly fishing.” Id.
Plaintiff has utterly failed to address any good cause factors in her Rule 14 letter.
In short, there is no support for the way Plaintiff attempts to invoke the fiduciary exception here:
to broadly invalidate the privileged nature of logged communications involving Billur and Berrin.
Indeed, such an interpretation would allow the exception to swallow the rule. In re Bank of New
1
The argument rests on the theory that Billur and Berrin owe Plaintiff, Yasemin Tekiner, fiduciary duties
under The Yasemin Tekiner 2011 Descendants Trust (the “Trust”). Notably, though, neither are “trustees”
of the Trust. Billur is a member of the Trust Committee and Berrin is the grantor.
2
In her Complaint, Plaintiff alleged she has been in an adversarial relationship with Berrin and Billur for
years, just like the litigants in Beck. 218 A.D.2d at 17. Plaintiff claims that “[f]or some years, Plaintiff has
complained about the mismanagement of Bremen [House] and its affiliated companies” and was “retaliated”
against for her actions. (Am. Compl. ¶¶ 1, 55) Similarly, Plaintiff was removed the trust committee in 2017,
not reinstalled until 2019, and then removed again in late 2020.
FILED: NEW YORK COUNTY CLERK 01/31/2023 03:42 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1158 RECEIVED NYSCEF: 01/31/2023
Hon. Joel M. Cohen, J.S.C.
November 17, 2021
Page 3
York Mellon, 977 N.Y.S.2d 560, 567 (N.Y. Sup. N.Y. Cnty. 2013) (refusing to compel disclosure
of attorney-client communications that did not “directly correlate” to allegations raised).
II. Communications Regarding Bremen House During Plaintiff’s Directorship
Plaintiff next argues she is entitled to all privileged communications from the time period when
she was a Bremen House director. As with the fiduciary-beneficiary exception, Plaintiff has made
no attempt to challenge any specific privilege log entries as deficient. Instead, she simply
demands Defendants make a “broad disclosure” of “thousands of documents.”
Plaintiff’s argument primarily rests on a theory that she can unilaterally waive privilege over
Bremen House’s privileged communications. This argument is wholly without merit. Under New
York law, a former director does not have unqualified access to a company’s privileged
communications during the time she was a director. “[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.” People ex. rel. Spitzer v. Greenberg, A.D.3d 195, 201 (1st Dep’t
2008) (citing Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 136 (1996)). Moreover, a
director “should not be allowed to use [her] corporate position to waive the privilege that attaches
to the corporation in a litigation relating to [her] own rights or in which [she] is asserting claims
that are or may be adverse to the corporation.” Barasch v. Williams Real Est. Co., 104 A.D.3d
490, 492 (1st Dep’t 2013). Doing so would “thwart the purpose of the attorney-client privilege,
which is to ‘encourage full and frank communication between attorneys and their clients’.” Id. at
494 (quoting Upjohn Co. v United States, 449 U.S. 383, 389 (1981)). Allowing such waiver “would
prevent a corporation from freely consulting with counsel.” Id. Thus, Plaintiff is foreclosed from
doing exactly what she seeks to do here.
Plaintiff also argues that Counterclaims concerning Plaintiff’s own breaches of fiduciary duties
waived the Companies’ privilege over various communications. This argument is baseless. The
Counterclaims have not put at issue any legal advice the Companies received, nor has Plaintiff
invoked any “advice of counsel” type defense. And even if she had, she would not be entitled to
the Company’s privileged documents given that she is, and has been, adverse to Bremen House.3
For the foregoing reasons, Plaintiff’s Rule 14 letter should be denied.
Respectfully submitted,
/s/ Judith A. Archer
Judith A. Archer
Cc: Counsel of record
3
See Greenberg, 50 A.D.3d at 201 (holding former directors, “who were clearly privy to, and participated
in, legal consultations” regarding at-issue transactions, and “who were not adverse to the corporation,” were
entitled to documents in support of an “advice of counsel” defense). Plaintiff had a self-proclaimed adverse
relationship to the Defendants throughout her tenure as a director (including consulting with her own
counsel in 2017, as reflected by Plaintiff’s privilege log, dated August 28, 2021), and has not asserted an
advice of counsel defense (see, e.g., Verified Reply to Counterclaims, NYSCEF Doc. No. 155).
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FILED: NEW YORK COUNTY CLERK 01/31/2023 03:42 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1158 RECEIVED NYSCEF: 01/31/2023 EXHIBIT 26 FILED: NEW YORK COUNTY CLERK 01/31/2023 03:42 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1158 RECEIVED NYSCEF: 01/31/2023 November 17, 2021 Norton Rose Fulbright US LLP 1301 Avenue of the Americas New York, New York 10019-6022 Via NYSCEF Judith Archer Hon. Joel M. Cohen, J.S.C. Partner Supreme Court of the State of New York Direct line +1 212 318 3342 Commercial Division judith.archer@nortonrosefulbright.com 60 Centre Street Tel +1 212 318 3000 Courtroom 208 Fax +1 212 318 3400 New York, NY 10007 nortonrosefulbright.com Re: Yasemin Tekiner v. Bremen House Inc. et. al., 657193/2020 – Opposition to Plaintiff’s Rule 14 Letter of November 11, 2021 Dear Justice Cohen: We represent Defendants Bremen House, Inc., German News Company, Inc., Berrin Tekiner, Gonca Tekiner, and Billur Akipek (“Defendants”) in the above-referenced matter. We write to oppose Plaintiff’s Rule 14 letter of November 11, 2021, which seeks a categorical ruling directing Defendants to produce thousands of privileged communications. For the reasons set forth below, Plaintiff is not entitled to these documents under either a fiduciary-beneficiary exception, joint client, or any other theory. Plaintiff’s purported dispute concerning the privilege log is merely her latest attempt to gain leverage in this litigation and force a settlement. There is no basis for the relief requested in Plaintiff’s letter, and the Court should find the communications at issue are properly withheld as privileged. I. Communications Involving Billur Akipek or Berrin Tekiner Plaintiff asks Defendants to produce all communications withheld as privileged that were sent or received by individual defendants, Billur Akipek and Berrin Tekiner, on the basis that a fiduciary exception categorically applies to all communications involving them. Plaintiff’s argument is wrong for several reasons. As an initial matter, Defendants have satisfied their burden of making a prima facie showing that the communications withheld from production were privileged and/or work product by producing a privilege log that complies with the terms of the parties’ negotiated ESI Protocol (NYSCEF Doc. No. 91) and CPLR 3122(b). See In re Subpoena Duces Tecum to Jane Doe, Esq., 99 N.Y.2d 434, 442 (2003) (“The log should specify the nature of the contents of the documents, who prepared the records and the basis for the claimed privilege”). Plaintiff previously failed to challenge a single deficient log entry, and for this reason alone her argument should be rejected. Plaintiff’s argument should also be rejected because she has not shown how the fiduciary exception applies to all communications involving Billur and Berrin as a blanket rule. Indeed, the “fiduciary exception” to the attorney-client privilege is quite narrow and requires a context-specific analysis for each communication. Nama Holdings, LLC v. Greenberg Traurig LLP, 133 A.D.3d 56, n.7 (1st Dep’t 2015). The exception simply does not apply on a categorical basis, as Plaintiff tries to use it here. See id. (reversing IAS court’s decision that fiduciary exception applied and noting that “[a] blanket application of the exception whenever a fiduciary relationship is present Norton Rose Fulbright US LLP is a limited liability partnership registered under the laws of Texas. Norton Rose Fulbright US LLP, Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP and Norton Rose Fulbright South Africa Inc are separate legal entities and all of them are members of Norton Rose Fulbright Verein, a Swiss verein. Norton Rose Fulbright Verein helps coordinate the activities of the members but does not itself provide legal services to clients. Details of each entity, with certain regulatory inf ormation, are av ailable at nortonrosef ulbright.com. FILED: NEW YORK COUNTY CLERK 01/31/2023 03:42 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1158 RECEIVED NYSCEF: 01/31/2023 Hon. Joel M. Cohen, J.S.C. November 17, 2021 Page 2 would too easily abrogate the privilege”). For this reason, too, Plaintiff’s argument should be rejected. Moreover, Plaintiff has not set forth any facts that would entitle her to use the fiduciary exception to invalidate privilege as to any specific privilege log entries. The fiduciary exception could, hypothetically, provide a beneficiary like Yasemin access to privileged communications between a trustee and a trust's attorney, concerning the trust, based upon the theory that the trustee and beneficiaries’ interests are aligned. 1 See Nama, 133 A.D.3d at 53. And the fiduciary exception may be extended in certain circumstances to a shareholder-corporation relationship, based on the theory that the relationship is analogous to that between beneficiaries and trustees. Id. However, the exception “should not be applied when the plaintiff is in an adversary relation with the corporation's current management” as is the case here. Nunan v. Midwest, Inc., 814 N.Y.S.2d 891 (N.Y. Sup. Monroe Cnty. 2006); Beck v. Manufacturers Hanover Tr. Co., 218 A.D.2d 1, 17– 18 (1st Dep’t 1995) (rejecting plaintiff's efforts to obtain documents because “there [was] an adversary relation with the Trustee” that had existed for years, and the disclosures sought were “specifically relevant to the handling of the very issues the plaintiffs had been threatening to litigate.”). Plaintiff is litigating against Billur, Berrin, and the corporate Defendants, and broadly seeks their privileged communications under the guise of the fiduciary exception. 2 Plaintiff has not shown that any of the communications sought were sent during a time when the interests of Yasemin and the Trustee or Companies were aligned, let alone identified specific communications to permit the proper analysis. As a result, Plaintiff cannot invoke the exception. Beck, 218 A.D.2d at 17. Even if the fiduciary exception applied – it does not – Plaintiff has failed to show “good cause” for applying the exception to specific communications, which, again, requires a context-specific analysis. The Court of Appeals and the First Department have instructed that in either a corporate or trust context, a trial court must conduct a comprehensive good cause analysis before applying the exception by, for example, analyzing the factors set forth in Hoopes v. Carota, 142 A.D.2d 906 (3d Dep’t 1988), aff’d 74 N.Y.2d 716, 718 (1989). Nama, 133 A.D.3d at 61 n.6. Those factors include Plaintiff’s access to the information from other sources, whether the alleged corporate actions are criminal, the risk of disclosing confidential information, and “the extent to which the communication is identified versus the extent to which the shareholders are blindly fishing.” Id. Plaintiff has utterly failed to address any good cause factors in her Rule 14 letter. In short, there is no support for the way Plaintiff attempts to invoke the fiduciary exception here: to broadly invalidate the privileged nature of logged communications involving Billur and Berrin. Indeed, such an interpretation would allow the exception to swallow the rule. In re Bank of New 1 The argument rests on the theory that Billur and Berrin owe Plaintiff, Yasemin Tekiner, fiduciary duties under The Yasemin Tekiner 2011 Descendants Trust (the “Trust”). Notably, though, neither are “trustees” of the Trust. Billur is a member of the Trust Committee and Berrin is the grantor. 2 In her Complaint, Plaintiff alleged she has been in an adversarial relationship with Berrin and Billur for years, just like the litigants in Beck. 218 A.D.2d at 17. Plaintiff claims that “[f]or some years, Plaintiff has complained about the mismanagement of Bremen [House] and its affiliated companies” and was “retaliated” against for her actions. (Am. Compl. ¶¶ 1, 55) Similarly, Plaintiff was removed the trust committee in 2017, not reinstalled until 2019, and then removed again in late 2020. FILED: NEW YORK COUNTY CLERK 01/31/2023 03:42 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1158 RECEIVED NYSCEF: 01/31/2023 Hon. Joel M. Cohen, J.S.C. November 17, 2021 Page 3 York Mellon, 977 N.Y.S.2d 560, 567 (N.Y. Sup. N.Y. Cnty. 2013) (refusing to compel disclosure of attorney-client communications that did not “directly correlate” to allegations raised). II. Communications Regarding Bremen House During Plaintiff’s Directorship Plaintiff next argues she is entitled to all privileged communications from the time period when she was a Bremen House director. As with the fiduciary-beneficiary exception, Plaintiff has made no attempt to challenge any specific privilege log entries as deficient. Instead, she simply demands Defendants make a “broad disclosure” of “thousands of documents.” Plaintiff’s argument primarily rests on a theory that she can unilaterally waive privilege over Bremen House’s privileged communications. This argument is wholly without merit. Under New York law, a former director does not have unqualified access to a company’s privileged communications during the time she was a director. “[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.” People ex. rel. Spitzer v. Greenberg, A.D.3d 195, 201 (1st Dep’t 2008) (citing Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 136 (1996)). Moreover, a director “should not be allowed to use [her] corporate position to waive the privilege that attaches to the corporation in a litigation relating to [her] own rights or in which [she] is asserting claims that are or may be adverse to the corporation.” Barasch v. Williams Real Est. Co., 104 A.D.3d 490, 492 (1st Dep’t 2013). Doing so would “thwart the purpose of the attorney-client privilege, which is to ‘encourage full and frank communication between attorneys and their clients’.” Id. at 494 (quoting Upjohn Co. v United States, 449 U.S. 383, 389 (1981)). Allowing such waiver “would prevent a corporation from freely consulting with counsel.” Id. Thus, Plaintiff is foreclosed from doing exactly what she seeks to do here. Plaintiff also argues that Counterclaims concerning Plaintiff’s own breaches of fiduciary duties waived the Companies’ privilege over various communications. This argument is baseless. The Counterclaims have not put at issue any legal advice the Companies received, nor has Plaintiff invoked any “advice of counsel” type defense. And even if she had, she would not be entitled to the Company’s privileged documents given that she is, and has been, adverse to Bremen House.3 For the foregoing reasons, Plaintiff’s Rule 14 letter should be denied. Respectfully submitted, /s/ Judith A. Archer Judith A. Archer Cc: Counsel of record 3 See Greenberg, 50 A.D.3d at 201 (holding former directors, “who were clearly privy to, and participated in, legal consultations” regarding at-issue transactions, and “who were not adverse to the corporation,” were entitled to documents in support of an “advice of counsel” defense). Plaintiff had a self-proclaimed adverse relationship to the Defendants throughout her tenure as a director (including consulting with her own counsel in 2017, as reflected by Plaintiff’s privilege log, dated August 28, 2021), and has not asserted an advice of counsel defense (see, e.g., Verified Reply to Counterclaims, NYSCEF Doc. No. 155).