Preview
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NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023
Exhibit 10
FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
YASEMIN TEKINER, Index No. 657193/2020
in her individual capacity, as a beneficiary and a Trustee of Commercial Division Part 3
The Yasemin Tekiner 2011 Descendants Trust and
derivatively as a holder of equitable interests in a Hon. Joel M. Cohen
shareholder or a member of the Company Defendants,
Mot. Sequence Nos. 44, 45, 47
Plaintiff,
AFFIRMATION OF
-against- BRYAN T. MOHLER IN
OPPOSITION TO MOTIONS
BREMEN HOUSE INC., GERMAN NEWS COMPANY,
INC., 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., GERMAN NEWS COMPANY,
INC., BERRIN TEKINER, GONCA TEKINER, and
BILLUR AKIPEK, in her capacity as a Trustee of The
Zeynep Tekiner 2011 Descendants Trust,
Defendants.
BRYAN T. MOHLER, an attorney admitted to practice law before the courts of the State
of New York, under penalty of perjury, affirms as follows:
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1. I am a partner in the law firm of Pryor Cashman LLP, attorneys for Defendants
Bremen House Inc., German News, Inc. (together, the “Entity Defendants”), Berrin Tekiner,
Gonca Tekiner, and Billur Akipek (collectively with the Entity Defendants, “Defendants”). I am
fully familiar with the facts and circumstances set forth herein, either through my personal
knowledge or my review of the pertinent documents.
2. I respectfully submit this affirmation in opposition to Plaintiffs Yasemin Tekiner’s
motions (the “Motions”): (a) to compel Defendants to Produce all non-privileged documents (Mot.
Seq. No. 44); (b) to compel Defendants to 1) provide consent for subpoenas and 2) produce all
responsive documents Yasemin’s mental health requests (Mot. Seq. No. 45); and (c) to compel
records and depositions (Mot. Seq. No. 47).
YASEMIN’S MOTION TO COMPEL DEFENDANTS TO
1) PROVIDE CONSENT FOR SUBPOENAS AND 2) PRODUCE ALL RESPONSIVE
DOCUMENTS (MOT. SEQ. NO. 45) SHOULD BE DENIED
3. Yasemin commenced this action by filing a Summons with Notice on December
21, 2020 (Dkt. 1), and on January 3, 2021, she filed a Verified Complaint.1 (Dkt. 2.)
1
Yasemin subsequently amended her Complaint on January 25, 2021 (Dkt. 86) and June 22, 2022 (Dkt. 548).
2
Yasemin served additional sets of requests for production on July 29, 2021, September 15, 2021 and August 18,
2022; in all, Yasemin served 205 document requests upon Defendants.
2
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B. More Than a Year Later, Yasemin Challenges Defendants’ Objections
6. Over the next year, the parties exchanged correspondence and engaged in extensive
meet and confers concerning various discovery issues, and Defendants produced over 100,000
documents in response to Yasemin’s document requests.
True and correct copies of the transcripts of
Zeynep’s and Billur’s depositions are attached hereto as Exhibits 9 and 10, respectively.
3
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7.
4
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C. Yasemin Waits Yet Another Month to Serve Revised Requests –
Which Were Not Narrowed – and Then Refuses To Meet and Confer
A true and correct copy of a September 7, 2022 email exchange between
counsel memorializing the substance of the conference is attached hereto as Exhibit 14.
13. On September 17, 2022, a full month after the Court’s resolution of the pertinent
motions, Plaintiffs served Defendants with ten “revised” requests (the “New Requests”).
A true and correct copy of Yasemin’s New Requests
is attached hereto as Exhibit 15.
5
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Defendants
concluded by offering to meet and confer as to the scope of New Requests. (Ex. 16.)
15. Defying the Court’s express instructions that counsel were work together “to come
up with a respectful way to deal with this,” Yasemin declined to meet and confer.4 Instead, after
waiting an additional two weeks, on October 5, 2022 Yasemin filed another motion seeking to
compel compliance with the Court’s August 17, 2022 discovery order and seeking the appointment
of a special discovery master. (Dkt. 726.)
16. At a hearing on October 27, 2022, the Court reiterated its intention “to chart a
reasonable course with respect to the health-related evidence trying to keep it focused on things
that effected the running of the company as opposed to just broadly trampling around in medical
records.” (Ex. 17 at 7:9-13 (Dkt. 857.) A true and correct copy of the transcript of the October
27, 2022 hearing is attached hereto as Exhibit 17. In assessing the New Requests, the Court noted
4
Yasemin seeks to justify her refusal to meet and confer by claiming that the “parties had already met and conferred”
(Younger Afm. ¶9), but this is untrue. The September 6, 2022 meet and confer referenced by Mr. Younger – which
he did not attend – concerned other discovery issues, as reflected in the summary email sent the following day to all
counsel. (Ex. 14.)
6
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that they were “screaming out for a shorter, narrower list that would be complied with readily” (id.
at 30:12-14), and that they were “not terribly narrowed from what it used to be.
D.
5
While Yasemin now depicts the New Requests as “narrowed” (Younger Afm. at ¶7), the Court concluded otherwise
at the October 27, 2022 hearing. (Ex. 17 at 32:22-24.)
7
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E. After Waiting An Additional Two Weeks, Yasemin Serves a
Rule 14 Letter, and During a December 5 Conference the Court
Directs Yasemin of the Specific Issues to Be Addressed on Any Motion
A true and correct copy of Defendants’ November 30, 2022 response is
attached hereto as Exhibit 19.
8
Both Yasemin’s and Zeynep’s Complaints allege that Defendants’ conduct in 2020, in connection with the Extell
sale, harmed Plaintiffs. (Dkt. 548 at ¶¶67, 70; Dkt. 371 at ¶75.) Both Complaints also include allegations that Berrin
removed Plaintiffs as members of their respective Trust Committees in 2017, although both were reinstated in 2019.
(Dkt. 548 at ¶¶58-59, 164(b); Dkt. 371 at ¶42.)
8
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22. On December 5, 2022, the Court held a Rule 14 conference concerning outstanding
discovery issues.
Plaintiffs do not dispute these events. Defendants’
counsel memorialized the Court’s guidance in a contemporaneous email sent the following day to
all counsel. A true and correct copy of that email is attached hereto as Exhibit 20.
24. Last, Ms. Klinger directed the parties to make any discovery motions – related to
this or any other outstanding issue – promptly and by Order to Show Cause, so that it could be
heard at the then-upcoming December 19, 2022 hearing date.
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F. Yasemin Ignores the Court’s Guidance, Waiting Until December 22 To
Move, and Making No Effort to Address the Relevant Time Period
25. Rather than following the Court’s directive to promptly make any discovery
motions, Yasemin waited until four days before the hearing to submit a letter application seeking
a 90 day extension of Discovery. (Dkt. 930.) The Court denied that request at the December 19,
2022 hearing. A true and correct copy of the transcript of the December 19, 2022 hearing in this
matter is attached hereto as Exhibit 21.
YASEMIN’S MOTION TO COMPEL DEFENDANTS TO
PRODUCE ALL NON-PRIVILEGED DOCUMENTS SHOULD BE DENIED
A. By August 2021, Defendants Produce 100,000 Documents and Provide a
Privilege Log, and Yasemin Waits Nearly a Year to Seek Judicial
Intervention
28. By August 2021, Defendants had produced 91,558 documents in response to
Yasemin’s document requests. On August 27, 2021, Defendants also provided Yasemin with a
privilege log that included 9,540 entries. Defendants continued to amend their privilege log to
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reflect withheld documents as they completed their rolling productions and ultimately provided
Yasemin with a privilege log containing 10,563 entries (“Defendants’ Privilege Log”).
29. On October 13, 2021, Yasemin asserted objections to Defendants’ privilege
designations. A true and correct copy of an email chain containing that communication is attached
hereto as Exhibit 22.
30. Rather than specifically identify logged documents she contended were improperly
withheld, however, Yasemin broadly asserted that the log “indicate[d]” Defendants had
“wrongfully withheld thousands of non-privileged documents” falling into four categories: (1)
“Defendants’ communications with the companies’ employees/officers and outside counsel
regarding the affairs of the companies created before January 5, 2021”; (2) “Berrin, Billur, and
Christiana Trust’s communications”; (3) “Defendants’ communications with numerous third
parties”; and (4) “Defendants’ communications with one another.” (See Ex. 22.)
31. On October 28, 2021, the parties met and conferred regarding, inter alia, Yasemin’s
objections to Defendants’ Privilege Log. A true and correct copy of Defendants’ email
memorializing the October 28, 2021 call is attached hereto as Exhibit 23.
32. During the meet and confer, Yasemin declined to identify any specific logged
documents to which she objected, again referring to the four categories of withheld documents she
previously identified. (See Exhibit 23.) In response, Defendants agreed that they would review
the log to confirm that no communications were logged erroneously. (See id.)
33. Two weeks later, on November 11, 2021, Yasemin sent a Rule 14 letter to
Defendants requesting that the Court order Defendants to produce previously-withheld documents
based on (i) the fiduciary-beneficiary exception to the attorney-client privilege and (ii) Yasemin’s
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right as a director to access legal advice provided to the Entity Defendants. A true and correct
copy of Yasemin’s November 11, 2021 Rule 14 letter is attached hereto as Exhibit 24.
34. The same day, Yasemin also emailed to confirm Defendants’ position that
communications with certain third parties appearing on the Defendants’ Privilege Log were
privileged, because, under the circumstances, those third parties’ inclusion did not waive privilege.
A true and correct copy of the email chain regarding that confirmation is attached hereto as Exhibit
25.
35. Defendants confirmed, and told Yasemin that they would agree to Yasemin
amending her pending Rule 14 letter to add this issue. (See Ex. 25.) Yasemin declined to do so.
(See id.)
36. On November 17, 2021, Defendants responded, explaining their position that a
categorical de-designation of withheld documents was unwarranted under either a fiduciary-
beneficiary exception, joint client, or any other theory. A true and correct copy of Defendants’
November 17, 2021 Rule 14 letter is attached hereto as Exhibit 26.
37. Yasemin then did nothing. Not until June 6, 2022 – over nine months after
Defendants first issued a privilege log – did Yasemin move to compel the de-designation and
production of certain documents on Defendants’ Privilege Log (“Motion Sequence No. 22”). (See
Dkt. 376.)
38. For the first time articulating at any level of specificity which documents she was
asserting should be taken off of Defendants’ Privilege Log, she attached to her motion a color-
coded version of Defendants’ Privilege Log, which highlighted 9,600 entries to indicate that
Yasemin objected to them. (See Dkt. 379.)
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39. Yasemin had not previously provided the color-coded version of the log to
Defendants or otherwise specifically identified the documents she believed were improperly
withheld. (See Ex. 22.)
B. Defendants Diligently Comply With the Court’s Order,
Re-Reviewing and Producing Over 8,500 Previously Withheld Documents
40. By order dated August 17, 2022 (the “August 17 Order”), the Court granted in part
Yasemin’s motion, “to the extent that Defendants’ categorical assertion of privilege with respect
to corporate business-related documents is overly broad.” (See Dkt. 689.)
41. Previously, on April 18, 2021, the Court told the parties that Zeynep, who
intervened as a plaintiff in this litigation in April 2021, did not have the capacity to “waive the
corporate privilege” on behalf of the Entity Defendants. A true and correct copy of the April 18
hearing transcript is attached hereto as Exhibit 27.
42. During the August 15, 2022 hearing on the motion (the “August 15 Hearing”), after
an extended discussion concerning the types of documents for which a privilege designation could
be maintained and those for which it could not, the Court directed Defendants as follows:
THE COURT: What I would suggest you do, if this has been at all helpful, is to
take one more crack at it with the Plaintiffs and see if you can reduce the
number to some smaller number, and then maybe I can look at a sample. You
can say these are the kind of things that we still think are in this narrow category,
and I can give you my view on that.
(See Ex. 13 (emphasis added).)
43. Defendants fully complied with that directive. After the August 15 hearing,
Defendants undertook a re-review of 11,641 documents from Defendants’ privilege log and 353
documents from Zeynep’s privilege log. In her motion, Plaintiff questioned the assertion of
privilege as to 9,540 emails from Defendants’ privilege log. Including the attachments to those
emails, the number of documents to be reviewed increased to 11,641.
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44. Zeynep’s documents had originally been reviewed, and a privilege log prepared, by
Defendants’ counsel prior to Zeynep obtaining her own attorney and intervening as a plaintiff.
45. Defendants’ review was a particularly nuanced one. Because it turned on
application of the fiduciary exception—and exceptions to the fiduciary exception—the review
required a detailed, complicated analysis. Defendants made every effort to complete the review
expeditiously.
46. On a rolling basis, over the next 60 days Defendants de-designated and produced
over 8,500 documents previously withheld as privileged. Defendants also served an amended
privilege log (the “Amended Log”) identifying 1,069 documents (i.e., 0.8% of the 127,770
documents produced by Defendants) Defendants continued to withhold on the basis of privilege.
Defendants also provided a cross-reference which identified the Bates numbers for each document
previously logged as privileged. As previously explained in the parties’ Rule 14 letter briefing,
during Defendants’ re-review of the documents originally withheld as privileged, certain
documents were determined to be non-responsive and thus erroneously logged on Defendants’
Privilege Log. No responsive documents have been withheld except those that are privileged and
logged as such.
C. After Yet More Delay, Yasemin Again Makes Unsubstantiated Claims That
Non-Privileged Documents Were Being Improperly Withheld
47. Following Defendants’ re-review and supplemental production of de-designated
documents, Yasemin vaguely claimed that non-privileged documents were still being withheld,
but never sought to meet and confer or provided any details to substantiate her claims.
48. As referenced in the Younger Affirmation, in an October 24, 2022 filing, Yasemin
made an unsubstantiated claim that documents on the Amended Log were “still being kept secret—
including ones that are of dubious status as privileged documents.” (Dkt. 952 ¶10.) Yasemin
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provided no details or basis for that claim in her October 24, 2022 submission. (See Dkt. 805 at
7.)
49. Rather, after waiting an additional month, on November 22, 2022 – one month
before the close of discovery – Yasemin served a Rule 14 letter renewing her unsubstantiated claim
of purported deficiencies with Defendants’ re-review and production, again without identifying
any documents she believed were erroneously withheld. A true and correct copy of Yasemin’s
November 22, 2022 Rule 14 letter is attached hereto as Exhibit 28.
50. Instead, Yasemin took the position that Defendants’ continued withholding of any
documents on the basis of privilege was a violation of the August 17 Order, and requested an order
setting a final date by which Defendants were to produce all non-privileged documents. (See Ex.
28 (accusing Defendants of “inexplicably” continuing to withhold 1,069 documents as privileged).)
51. By letter dated November 30, 2022, Defendants responded, explaining that there is
nothing inexplicable or mysterious about Defendants continuing to withhold and log a small subset
of documents that, after re-review, were determined to still be privileged in accordance with the
Court’s guidance. A true and correct copy of Defendants’ November 30, 2022 Rule 14 Letter is
attached hereto as Exhibit 29.
52. The Court thereafter held a Rule 14 conference on December 5, 2022. Addressing
this issue, Ms. Klinger directed Yasemin to specifically identify any logged documents on
Defendants’ Amended Privilege Log that she contended in good faith were not privileged. (See
E. 20.)
53. In turn, Defendants agreed to promptly review any such identified documents, and
to de-designate and produce any documents that were determined not be privileged. (See id.)
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54. Ms. Klinger further directed the parties to make any discovery motions – related to
this or any other outstanding issue – promptly and by Order to Show Cause, so that it could be
heard at the then-upcoming December 19, 2022 hearing date.
D. Defying the Court’s Instructions, Yasemin Fails To Specifically Identify
Allegedly Improperly Withheld Documents and Then Waits Until Days Before
the Close of Discovery to Seek Relief
55. Rather than proceeding with appropriate urgency given the impending close of
discovery, Yasemin waited for two months after Defendants completed their supplemental
production and provided the Amended Log – and more than a week after the Rule 14 conference
– to identify the logged documents she contended were still being improperly withheld. On
December 13, 2022, Yasemin sent Defendants a color-coded version of the Amended Log,
demanding that Defendants re-re-review 898 documents of the total 1,069 on the log. A true and
correct copy of Yasemin’s December 13, 2022 email and its attachment are attached hereto as
Exhibit 30.
56. The analysis provided by Yasemin (in its entirety) is as follows:
Green – Emails/attachments where [Yasemin] and/or Zeynep are listed as
recipients
Red – Emails/attachments with Norton Rose
Blue – Emails/attachments among non-attorneys
Orange – Billur emails/attachments regarding trusts or [Yasemin’s] position
within the Company
Yellow – Insufficient information in privilege log (recipients of texts are not
listed)
Gray – Emails/attachments sent while [Yasemin] was a director/officer at the
time
Please note that certain individual emails/attachments may fall into more than one
of the above categories.
(See Ex. 30.)
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57. Despite the Court’s December 5 instruction that Yasemin specifically identify any
logged documents on Defendants’ Amended Privilege Log that she contended in good faith were
not privileged, Yasemin once again deployed a sweeping, imprecise approach. This included
numerous improper or illogical objections, including objections to documents as “improperly
withheld as privileged” that were produced in their entirety except for minimal redactions of
personally identifiable information, such as tenants’ names and social security numbers. See id.
Two such produced documents are attached hereto as Exhibit 31 (PRIV-006829, produced at
Brem00402623) and Exhibit 32 (PRIV-006790, produced at Brem00405700), respectively.
E. Defendants Re-Re-Review the Amended Log and Supplement Their
Production, Rendering This Motion Moot
58. Yasemin sent Defendants her color-coded log on December 13, and eight days later,
filed this motion. (Dkt. 951.) In violation of the Court’s Individual Rules at VI.C., this motion
was supported only by an attorney affirmation. (Dkt. 952.)
59. Notwithstanding these defects, at the time the motion was filed, Defendants had
already undertaken a re-re-review of the logged documents in an effort to resolve this dispute.
Two days later (and only ten days after her initial request), on December 23, 2023, Defendants de-
designated and produced 264 additional documents to Yasemin, as well as an updated privilege
log. A true and correct copy of Defendants’ December 23, 2022 letter transmitting this production
is attached hereto as Exhibit 33.
60. The December 23 Production and the Second Amended Log also fully addressed
all emails in the yellow category on Yasemin’s color-coded version of the Amended Log. As for
the green category, although Yasemin denotes this category as “emails where Jasmin or Zeynep
are listed as recipients,” only one email on the Amended Log included Yasemin as a cc recipient.
That email has been produced.
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61. As of that production, 571 of the 898 color-coded documents on Yasemin’s
December 13, 2022 have been produced in either complete (333) or redacted form (238), while
only 327 continue to be withheld. Yasemin has not even acknowledged receipt of Defendants’
December 23 production, much less sought to meet and confer with Defendants about whether that
production has resolved the grounds of her motion.
YASEMIN’S MOTION TO COMPEL
RECORDS AND DEPOSITIONS SHOULD BE DENIED
A. Christiana Trust, Directed Corporate Trustee of the Trusts
62. Yasemin claims to have served a subpoena duces tecum and ad testificandum dated
August 10, 2022 on Jessica Mojica of Christiana Trust.9 Yasemin did not serve notice of the
subpoena on Defendants until September 2, 2022, after the return date for the document demands
in the subpoena, and no affidavit of service accompanied the copy of the subpoena that was served
on Defendants.
63. Christiana Trust produced documents in early October 202210, and Yasemin then
waited more than two months to make this motion on the last day of discovery. Yasemin presents
no evidence that she thereafter exercised diligence to enforce the subpoena, or ever even
questioned the “completeness” of Christiana Trust’s production.
B. Goldberg Weprin Finkel Goldstein LLP
64. Yasemin also claims to have served a subpoena duces tecum dated October 26,
2022 on Goldberg Weprin Finkel Goldstein LLP. Yasemin never served a notice of the subpoena
9
The legal name of this entity is Wilmington Savings Fund Society, FSB d/b/a Bryn Mawr Trust (formally known as
Christiana Trust, a division of Wilmington Savings Fund Society, FSB). For the sake of clarity, we will continue to
refer to it as “Christiana Trust” herein.
10
In total, Christiana Trust has produced nearly 3,000 pages of documents, including letters, emails and handwritten
correspondence between Christiana Trust and the parties identified by Yasemin.
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on counsel for Defendants, and no affidavit of service is annexed to Yasemin’s filing.
65. Goldberg Weprin performed legal services for the Entity Defendants in connection
with landlord-tenant disputes for properties located at 200-204-206 E. 85th St. Yet the Goldberg
Weprin subpoena calls for the production of documents responsive to forty-seven categories, of
which only a handful pertain to the work performed by the firm – and many explicitly call for the
production of documents protected by the attorney-client and/or work product privileges.11
66. Although Yasemin purports to have communicated with Goldberg Weprin
“multiple times” (Dkt. 981 at ¶20) to secure their compliance with the subpoena, she submits only
a single email dated December 5, 2022 in support of this claim. (Dkt. 986.) In any event, Yasemin
did not seek to enforce this subpoena (or notify Defendants’ counsel of its existence) until filing
her motion on December 27, 2022 – 62 days after the subpoena was purportedly served.
C. Paul Schwartzman, Raish LLC
67. Yasemin first subpoenaed Raish LLC, a software consultant engaged by
Defendants, on or about March 20, 2021. Yasemin served a second, identical subpoena on Paul
Schwartzman, the principal of Raish, on June 24, 2021.
68. The subpoenas include 33 document requests and 21 deposition topics, many of
which are wholly unrelated to the work for which Raish was engaged. Throughout discovery,
Defendants repeatedly requested confirmation from Yasemin that she still intended to take
Schwartzman’s deposition, and if so, which of the 21 deposition topics she intended to pursue. A
true and correct copy of an email from Sean Topping to Scott Parker dated March 25, 2022 is
attached hereto as Exhibit 34. A true and correct copy of an email exchange between Sean
11
Defendants produced 2,231 emails to, from or copying Goldberg Weprin that are responsive to the issues identified
by Yasemin in her document demands, so it is unclear how a production of documents from Goldberg Weprin would
not be entirely duplicative of documents Plaintiffs have already received.
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Topping and Scott Parker dated May 18, 2022 is attached hereto as Exhibit 35.
69. For more than a year, Yasemin declined to schedule Schwartzman’s deposition. In
May 2022, the parties agreed to include the Schwartzman/Raish subpoenas in connection with
briefing on multiple other discovery issues.
70. Following the decision on Defendants’ motion to quash the Schwartzman
subpoena,12 Yasemin’s counsel and Schwartzman agreed to set his deposition for October 17, 2022.
On October 14, Yasemin cancelled the deposition, and subsequently exchanged several emails
with Schwartzman regarding rescheduling. A true and correct copy of that email exchange through
November 3, 2022 is attached hereto as Exhibit 36. After November 3, Yasemin did nothing to
pursue the deposition for nearly two months, before sending an email to Schwartzman on
December 23, 2022 – one day before the close of discovery. A true and correct copy of the
December 23, 2022 email is attached hereto as Exhibit 37.
D. Santander Bank
71. Yasemin seeks the production from Santander of additional bank statements and
other financial documents dating back to 2015, pertaining to seventeen different accounts held by
Defendants. She first sought this category of documents from Defendants in September 2021,13
and after they objected to her document demands, Yasemin took no action to compel the
production of bank statements from Defendants.
12
Although the Court denied Defendants’ motion to quash the subpoena, the Court expressed skepticism regarding
the admissibility of any testimony adduced from Schwartzman/Raish, stating “my assumption [is] that the Plaintiff’s
counsel has better things to do with their time than to ask people about things that have nothing to do with the case,
[but] . . . whatever [Plaintiff] may do in asking questions has very little to do with whether he would be able to testify
at trial . . . . It doesn’t mean [Plaintiff] can’t depose him.” (Ex. 13 at 49:3-50-25.)
13
In Yasemin’s Third Requests for Production, dated September 15, 2021, she requested all financial statements from
any account which Defendants and Zeynep had any interest, as well all statements for “any credit card, debit card,
charge card, PayPal, Venmo, or other payment system through which Defendants and/or Zeynep Tekiner made or
received payments.” See Exhibit 3, at Request Nos. 39 and 40. In response, Defendants timely and properly objected
to these requests as overbroad and as seeking information not material and necessary to any of the claims or defenses
in this case. See Exhibit 7, at responses to RFP Nos. 39 and 40.
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72. It was not until nearly a year later, by subpoena dated August 9, 2022, that Yasemin
attempted to follow up on her original requests, this time by seeking the documents directly from
Santander. A true and correct copy of Yasemin’s subpoena is attached hereto as Exhibit 38.
Despite moving to quash the subpoena as overbroad, on October 5, 2022 Defendants produced
over 5,000 pages of Santander Bank statements.
73. On November 8, 2022, Santander produced 6,117 pages of documents, consisting
of bank records across more than 10 accounts over 8 years belonging to various of the entity and
individual Defendants and entities related to certain on Defendants. Two weeks later, Plaintiffs
wrote a Rule 14 letter to the Court on November 22, 2022, misleadingly stating that “as of the date
of this letter, Santander has not yet produced the subpoenaed banking records.” A true and correct
copy of the November 22, 2022 Rule 14 letter is attached hereto as Exhibit 39. On December 1,
2022, two business days before the scheduled Rule 14 conference, Plaintiffs first disclosed that
Plaintiffs had been in possession of Santander’s document production for weeks. A true and
correct copy of Plaintiffs’ December 1 email is attached hereto as Exhibit 40.
74. During the December 5 Rule 14 conference, Plaintiffs advised that the production
was insufficient, and they would be seeking additional documents from Santander. The same day,
Plaintiffs wrote to Santander to request additional documents. A true and correct copy of the
December 5 letter is attached hereto as Exhibit 41. On December 27, 2022 Santander produced
another 2,455 pages. A true and correct copy of Santander’s December 27, 2022 cover letter
accompanying this production is attached hereto as Exhibit 42. It was not until three days after
filing their motion to compel that Plaintiffs first informed Defendants of Santander’s second
production. A true and correct copy of Plaintiffs’ December 30 cover letter accompanying the
production is attached hereto as Exhibit 43.
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75. Notwithstanding their receipt of that production, Plaintiffs filed a motion to compel
that same day. Plaintiffs do not identify in their motion which, if any, Santander Bank documents
they believe are outstanding.
E. Denise Baumann, Beck & Baumann CPA LLC
76. Yasemin insists that she is entitled to the deposition of one of the principals of
Defendants’ accounting firm, notwithstanding the fact that she has had numerous opportunities to
do so in the nineteen months after she first subpoenaed them. On or about May 18, 2021 Yasemin
served Denise Baumann, one of two co-principals of Beck & Baumann CPA LLC (Defendants’
accountants), with a subpoena for documents and testimony, including 31 deposition topics and
41 document demands (the “First B&B Subpoena”). A true and correct copy of the First B&B
Subpoena is attached hereto as Exhibit 44.
77. On June 24, 2021, Plaintiff issued a second (identical) subpoena to Denise
Baumann (the “Second B&B Subpoena”). A true and correct copy of the June 24, 2021 subpoena
on Denise Baumann is attached hereto as Exhibit 45. On that same day, Yasemin issued a third
identical subpoena for documents and testimony, this time directed to Beck & Baumann (the
“Third B&B Subpoena”). A true and correct copy of the Third B&B Subpoena is attached hereto
as Exhibit 46.
78. Beginning in June and continuing through August 2021, counsel for the parties met
and conferred and exchanged detailed correspondence regarding the 2021 subpoenas, and
Defendants thereafter collected and reviewed documents from Beck & Baumann’s records,
including both Allen Beck and Denise Baumann’s files, and produced those documents in
connection with Defendants’ production of documents, using Defendants’ Bates prefix.
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Defendants have produced 1,762 email files (including attachments) including Beck and/or
Baumann.
79. Yasemin never moved to compel further production pursuant to the three 2021
subpoenas, or to propose a date for the deposition of either Baumann or Beck & Baumann. Rather,
in September 2022, Yasemin issued another identical subpoena for documents and testimony, this
time directed to Beck individually (the “Fourth B&B Subpoena”). A true and correct copy of the
Fourth B&B Subpoena is attached hereto as Exhibit 47. Defendants’ counsel agreed to accept
service of the subpoena on Beck’s behalf and to produce Beck for his deposition on the noticed
date of October 17, 2022. Defendants’ counsel further notified Plaintiff that because responsive
documents had previously been produced, no additional documents would be produced. (See id.)
80. When, on October 7, 2022, Defendants requested that Plaintiff confirm October 17
as the date for both Beck and Michaels to appear pursuant to their respective subpoenas, Yasemin
wrote to Defendants that she would “respond to . . . your email under separate cover,” but never
did so. A true and correct copy of that December 7 email chain is attached hereto as Exhibit 48.
Beck served his written objections and responses to the Fourth B&B Subpoena on October 27,
2022. A true and correct copy of Beck’s October 27, 2022 written objections and responses is
attached hereto as Exhibit 49.
81. On November 22, 2022, Yasemin served a Rule 14 letter claiming that the October
27 responses violated CPLR 3122 and Commercial Division Rule 11-e. True and correct copies
of the parties’ Rule 14 submissions are attached hereto as Exhibits 50 and 51. During the Rule
14 conference Defendants’ counsel, as counsel for Beck for the purpose of responding to the
subpoena, agreed to serve amended responses and objections clarifying that, subject to all prior
meet and confers and correspondence exchanged in relation to the previously served subpoenas,
23
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all documents responsive to the Fourth B&B Subpoena (as well as the prior three B&B Subpoenas)
subpoenas) had been produced. Defendants’ counsel confirmed this agreement in an email the
following day, which Plaintiffs never contested. A true and correct copy of this December 6, 2020
email is attached hereto as Exhibit 52.
82. Beck served amended responses and objections on December 27, 2022. A true and
correct copy of Beck’s amended responses and objections is attached hereto as Exhibit 53.
83. Late the evening of December 19, at 11:29pm ET, Yasemin’s counsel sent a letter
proposing the scheduling of five depositions (of Phillip Michaels, Denise Baumann, Gonca, Berrin
and Billur) to take place on four days (December 22, 23, 26 and 27) during the week before the
note of issue deadline. A true and correct copy of the email chain containing the December 19,
2022 email is attached hereto as Exhibit 54. On the morning of December 21, Defendants
responded, confirming the deposition of Denise Baumann would take place on December 22. A
true and correct copy of the email chain containing this December 21, 2022 email is attached hereto
as Exhibit 55. When Baumann appeared as noticed, none of Yasemin’s six attorneys or Zeynep’s
two attorneys appeared, waiving any right to take Ms. Baumann’s deposition. A true and correct
copy of the transcript of Denise Baumann’s December 22, 2022 deposition is attached hereto as
Exhibit 56.
F. Philip Michaels, Esq., Norton Rose Fulbright LLP
84. Yasemin also seeks the post-NOI deposition of one of Defendants’ attorneys,
despite having failed to complete this deposition in the nineteen months since the relevant
subpoena was first served.
85. On or about May 24, 2021, Yasemin served a subpoena on Norton Rose Fulbright
LLP (“NRF”), seeking documents and testimony pertaining to legal advice. In total, the subpoena
24
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sought 79 categories of documents and 47 deposition topics. At that time, NRF also represented
Defendants in this litigation. A true and correct copy of the May 24
Preview
FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 Exhibit 10 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK YASEMIN TEKINER, Index No. 657193/2020 in her individual capacity, as a beneficiary and a Trustee of Commercial Division Part 3 The Yasemin Tekiner 2011 Descendants Trust and derivatively as a holder of equitable interests in a Hon. Joel M. Cohen shareholder or a member of the Company Defendants, Mot. Sequence Nos. 44, 45, 47 Plaintiff, AFFIRMATION OF -against- BRYAN T. MOHLER IN OPPOSITION TO MOTIONS BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., 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., GERMAN NEWS COMPANY, INC., BERRIN TEKINER, GONCA TEKINER, and BILLUR AKIPEK, in her capacity as a Trustee of The Zeynep Tekiner 2011 Descendants Trust, Defendants. BRYAN T. MOHLER, an attorney admitted to practice law before the courts of the State of New York, under penalty of perjury, affirms as follows: FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 1. I am a partner in the law firm of Pryor Cashman LLP, attorneys for Defendants Bremen House Inc., German News, Inc. (together, the “Entity Defendants”), Berrin Tekiner, Gonca Tekiner, and Billur Akipek (collectively with the Entity Defendants, “Defendants”). I am fully familiar with the facts and circumstances set forth herein, either through my personal knowledge or my review of the pertinent documents. 2. I respectfully submit this affirmation in opposition to Plaintiffs Yasemin Tekiner’s motions (the “Motions”): (a) to compel Defendants to Produce all non-privileged documents (Mot. Seq. No. 44); (b) to compel Defendants to 1) provide consent for subpoenas and 2) produce all responsive documents Yasemin’s mental health requests (Mot. Seq. No. 45); and (c) to compel records and depositions (Mot. Seq. No. 47). YASEMIN’S MOTION TO COMPEL DEFENDANTS TO 1) PROVIDE CONSENT FOR SUBPOENAS AND 2) PRODUCE ALL RESPONSIVE DOCUMENTS (MOT. SEQ. NO. 45) SHOULD BE DENIED 3. Yasemin commenced this action by filing a Summons with Notice on December 21, 2020 (Dkt. 1), and on January 3, 2021, she filed a Verified Complaint.1 (Dkt. 2.) 1 Yasemin subsequently amended her Complaint on January 25, 2021 (Dkt. 86) and June 22, 2022 (Dkt. 548). 2 Yasemin served additional sets of requests for production on July 29, 2021, September 15, 2021 and August 18, 2022; in all, Yasemin served 205 document requests upon Defendants. 2 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 B. More Than a Year Later, Yasemin Challenges Defendants’ Objections 6. Over the next year, the parties exchanged correspondence and engaged in extensive meet and confers concerning various discovery issues, and Defendants produced over 100,000 documents in response to Yasemin’s document requests. True and correct copies of the transcripts of Zeynep’s and Billur’s depositions are attached hereto as Exhibits 9 and 10, respectively. 3 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 7. 4 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 C. Yasemin Waits Yet Another Month to Serve Revised Requests – Which Were Not Narrowed – and Then Refuses To Meet and Confer A true and correct copy of a September 7, 2022 email exchange between counsel memorializing the substance of the conference is attached hereto as Exhibit 14. 13. On September 17, 2022, a full month after the Court’s resolution of the pertinent motions, Plaintiffs served Defendants with ten “revised” requests (the “New Requests”). A true and correct copy of Yasemin’s New Requests is attached hereto as Exhibit 15. 5 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 Defendants concluded by offering to meet and confer as to the scope of New Requests. (Ex. 16.) 15. Defying the Court’s express instructions that counsel were work together “to come up with a respectful way to deal with this,” Yasemin declined to meet and confer.4 Instead, after waiting an additional two weeks, on October 5, 2022 Yasemin filed another motion seeking to compel compliance with the Court’s August 17, 2022 discovery order and seeking the appointment of a special discovery master. (Dkt. 726.) 16. At a hearing on October 27, 2022, the Court reiterated its intention “to chart a reasonable course with respect to the health-related evidence trying to keep it focused on things that effected the running of the company as opposed to just broadly trampling around in medical records.” (Ex. 17 at 7:9-13 (Dkt. 857.) A true and correct copy of the transcript of the October 27, 2022 hearing is attached hereto as Exhibit 17. In assessing the New Requests, the Court noted 4 Yasemin seeks to justify her refusal to meet and confer by claiming that the “parties had already met and conferred” (Younger Afm. ¶9), but this is untrue. The September 6, 2022 meet and confer referenced by Mr. Younger – which he did not attend – concerned other discovery issues, as reflected in the summary email sent the following day to all counsel. (Ex. 14.) 6 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 that they were “screaming out for a shorter, narrower list that would be complied with readily” (id. at 30:12-14), and that they were “not terribly narrowed from what it used to be. D. 5 While Yasemin now depicts the New Requests as “narrowed” (Younger Afm. at ¶7), the Court concluded otherwise at the October 27, 2022 hearing. (Ex. 17 at 32:22-24.) 7 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 E. After Waiting An Additional Two Weeks, Yasemin Serves a Rule 14 Letter, and During a December 5 Conference the Court Directs Yasemin of the Specific Issues to Be Addressed on Any Motion A true and correct copy of Defendants’ November 30, 2022 response is attached hereto as Exhibit 19. 8 Both Yasemin’s and Zeynep’s Complaints allege that Defendants’ conduct in 2020, in connection with the Extell sale, harmed Plaintiffs. (Dkt. 548 at ¶¶67, 70; Dkt. 371 at ¶75.) Both Complaints also include allegations that Berrin removed Plaintiffs as members of their respective Trust Committees in 2017, although both were reinstated in 2019. (Dkt. 548 at ¶¶58-59, 164(b); Dkt. 371 at ¶42.) 8 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 22. On December 5, 2022, the Court held a Rule 14 conference concerning outstanding discovery issues. Plaintiffs do not dispute these events. Defendants’ counsel memorialized the Court’s guidance in a contemporaneous email sent the following day to all counsel. A true and correct copy of that email is attached hereto as Exhibit 20. 24. Last, Ms. Klinger directed the parties to make any discovery motions – related to this or any other outstanding issue – promptly and by Order to Show Cause, so that it could be heard at the then-upcoming December 19, 2022 hearing date. 9 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 F. Yasemin Ignores the Court’s Guidance, Waiting Until December 22 To Move, and Making No Effort to Address the Relevant Time Period 25. Rather than following the Court’s directive to promptly make any discovery motions, Yasemin waited until four days before the hearing to submit a letter application seeking a 90 day extension of Discovery. (Dkt. 930.) The Court denied that request at the December 19, 2022 hearing. A true and correct copy of the transcript of the December 19, 2022 hearing in this matter is attached hereto as Exhibit 21. YASEMIN’S MOTION TO COMPEL DEFENDANTS TO PRODUCE ALL NON-PRIVILEGED DOCUMENTS SHOULD BE DENIED A. By August 2021, Defendants Produce 100,000 Documents and Provide a Privilege Log, and Yasemin Waits Nearly a Year to Seek Judicial Intervention 28. By August 2021, Defendants had produced 91,558 documents in response to Yasemin’s document requests. On August 27, 2021, Defendants also provided Yasemin with a privilege log that included 9,540 entries. Defendants continued to amend their privilege log to 10 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 reflect withheld documents as they completed their rolling productions and ultimately provided Yasemin with a privilege log containing 10,563 entries (“Defendants’ Privilege Log”). 29. On October 13, 2021, Yasemin asserted objections to Defendants’ privilege designations. A true and correct copy of an email chain containing that communication is attached hereto as Exhibit 22. 30. Rather than specifically identify logged documents she contended were improperly withheld, however, Yasemin broadly asserted that the log “indicate[d]” Defendants had “wrongfully withheld thousands of non-privileged documents” falling into four categories: (1) “Defendants’ communications with the companies’ employees/officers and outside counsel regarding the affairs of the companies created before January 5, 2021”; (2) “Berrin, Billur, and Christiana Trust’s communications”; (3) “Defendants’ communications with numerous third parties”; and (4) “Defendants’ communications with one another.” (See Ex. 22.) 31. On October 28, 2021, the parties met and conferred regarding, inter alia, Yasemin’s objections to Defendants’ Privilege Log. A true and correct copy of Defendants’ email memorializing the October 28, 2021 call is attached hereto as Exhibit 23. 32. During the meet and confer, Yasemin declined to identify any specific logged documents to which she objected, again referring to the four categories of withheld documents she previously identified. (See Exhibit 23.) In response, Defendants agreed that they would review the log to confirm that no communications were logged erroneously. (See id.) 33. Two weeks later, on November 11, 2021, Yasemin sent a Rule 14 letter to Defendants requesting that the Court order Defendants to produce previously-withheld documents based on (i) the fiduciary-beneficiary exception to the attorney-client privilege and (ii) Yasemin’s 11 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 right as a director to access legal advice provided to the Entity Defendants. A true and correct copy of Yasemin’s November 11, 2021 Rule 14 letter is attached hereto as Exhibit 24. 34. The same day, Yasemin also emailed to confirm Defendants’ position that communications with certain third parties appearing on the Defendants’ Privilege Log were privileged, because, under the circumstances, those third parties’ inclusion did not waive privilege. A true and correct copy of the email chain regarding that confirmation is attached hereto as Exhibit 25. 35. Defendants confirmed, and told Yasemin that they would agree to Yasemin amending her pending Rule 14 letter to add this issue. (See Ex. 25.) Yasemin declined to do so. (See id.) 36. On November 17, 2021, Defendants responded, explaining their position that a categorical de-designation of withheld documents was unwarranted under either a fiduciary- beneficiary exception, joint client, or any other theory. A true and correct copy of Defendants’ November 17, 2021 Rule 14 letter is attached hereto as Exhibit 26. 37. Yasemin then did nothing. Not until June 6, 2022 – over nine months after Defendants first issued a privilege log – did Yasemin move to compel the de-designation and production of certain documents on Defendants’ Privilege Log (“Motion Sequence No. 22”). (See Dkt. 376.) 38. For the first time articulating at any level of specificity which documents she was asserting should be taken off of Defendants’ Privilege Log, she attached to her motion a color- coded version of Defendants’ Privilege Log, which highlighted 9,600 entries to indicate that Yasemin objected to them. (See Dkt. 379.) 12 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 39. Yasemin had not previously provided the color-coded version of the log to Defendants or otherwise specifically identified the documents she believed were improperly withheld. (See Ex. 22.) B. Defendants Diligently Comply With the Court’s Order, Re-Reviewing and Producing Over 8,500 Previously Withheld Documents 40. By order dated August 17, 2022 (the “August 17 Order”), the Court granted in part Yasemin’s motion, “to the extent that Defendants’ categorical assertion of privilege with respect to corporate business-related documents is overly broad.” (See Dkt. 689.) 41. Previously, on April 18, 2021, the Court told the parties that Zeynep, who intervened as a plaintiff in this litigation in April 2021, did not have the capacity to “waive the corporate privilege” on behalf of the Entity Defendants. A true and correct copy of the April 18 hearing transcript is attached hereto as Exhibit 27. 42. During the August 15, 2022 hearing on the motion (the “August 15 Hearing”), after an extended discussion concerning the types of documents for which a privilege designation could be maintained and those for which it could not, the Court directed Defendants as follows: THE COURT: What I would suggest you do, if this has been at all helpful, is to take one more crack at it with the Plaintiffs and see if you can reduce the number to some smaller number, and then maybe I can look at a sample. You can say these are the kind of things that we still think are in this narrow category, and I can give you my view on that. (See Ex. 13 (emphasis added).) 43. Defendants fully complied with that directive. After the August 15 hearing, Defendants undertook a re-review of 11,641 documents from Defendants’ privilege log and 353 documents from Zeynep’s privilege log. In her motion, Plaintiff questioned the assertion of privilege as to 9,540 emails from Defendants’ privilege log. Including the attachments to those emails, the number of documents to be reviewed increased to 11,641. 13 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 44. Zeynep’s documents had originally been reviewed, and a privilege log prepared, by Defendants’ counsel prior to Zeynep obtaining her own attorney and intervening as a plaintiff. 45. Defendants’ review was a particularly nuanced one. Because it turned on application of the fiduciary exception—and exceptions to the fiduciary exception—the review required a detailed, complicated analysis. Defendants made every effort to complete the review expeditiously. 46. On a rolling basis, over the next 60 days Defendants de-designated and produced over 8,500 documents previously withheld as privileged. Defendants also served an amended privilege log (the “Amended Log”) identifying 1,069 documents (i.e., 0.8% of the 127,770 documents produced by Defendants) Defendants continued to withhold on the basis of privilege. Defendants also provided a cross-reference which identified the Bates numbers for each document previously logged as privileged. As previously explained in the parties’ Rule 14 letter briefing, during Defendants’ re-review of the documents originally withheld as privileged, certain documents were determined to be non-responsive and thus erroneously logged on Defendants’ Privilege Log. No responsive documents have been withheld except those that are privileged and logged as such. C. After Yet More Delay, Yasemin Again Makes Unsubstantiated Claims That Non-Privileged Documents Were Being Improperly Withheld 47. Following Defendants’ re-review and supplemental production of de-designated documents, Yasemin vaguely claimed that non-privileged documents were still being withheld, but never sought to meet and confer or provided any details to substantiate her claims. 48. As referenced in the Younger Affirmation, in an October 24, 2022 filing, Yasemin made an unsubstantiated claim that documents on the Amended Log were “still being kept secret— including ones that are of dubious status as privileged documents.” (Dkt. 952 ¶10.) Yasemin 14 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 provided no details or basis for that claim in her October 24, 2022 submission. (See Dkt. 805 at 7.) 49. Rather, after waiting an additional month, on November 22, 2022 – one month before the close of discovery – Yasemin served a Rule 14 letter renewing her unsubstantiated claim of purported deficiencies with Defendants’ re-review and production, again without identifying any documents she believed were erroneously withheld. A true and correct copy of Yasemin’s November 22, 2022 Rule 14 letter is attached hereto as Exhibit 28. 50. Instead, Yasemin took the position that Defendants’ continued withholding of any documents on the basis of privilege was a violation of the August 17 Order, and requested an order setting a final date by which Defendants were to produce all non-privileged documents. (See Ex. 28 (accusing Defendants of “inexplicably” continuing to withhold 1,069 documents as privileged).) 51. By letter dated November 30, 2022, Defendants responded, explaining that there is nothing inexplicable or mysterious about Defendants continuing to withhold and log a small subset of documents that, after re-review, were determined to still be privileged in accordance with the Court’s guidance. A true and correct copy of Defendants’ November 30, 2022 Rule 14 Letter is attached hereto as Exhibit 29. 52. The Court thereafter held a Rule 14 conference on December 5, 2022. Addressing this issue, Ms. Klinger directed Yasemin to specifically identify any logged documents on Defendants’ Amended Privilege Log that she contended in good faith were not privileged. (See E. 20.) 53. In turn, Defendants agreed to promptly review any such identified documents, and to de-designate and produce any documents that were determined not be privileged. (See id.) 15 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 54. Ms. Klinger further directed the parties to make any discovery motions – related to this or any other outstanding issue – promptly and by Order to Show Cause, so that it could be heard at the then-upcoming December 19, 2022 hearing date. D. Defying the Court’s Instructions, Yasemin Fails To Specifically Identify Allegedly Improperly Withheld Documents and Then Waits Until Days Before the Close of Discovery to Seek Relief 55. Rather than proceeding with appropriate urgency given the impending close of discovery, Yasemin waited for two months after Defendants completed their supplemental production and provided the Amended Log – and more than a week after the Rule 14 conference – to identify the logged documents she contended were still being improperly withheld. On December 13, 2022, Yasemin sent Defendants a color-coded version of the Amended Log, demanding that Defendants re-re-review 898 documents of the total 1,069 on the log. A true and correct copy of Yasemin’s December 13, 2022 email and its attachment are attached hereto as Exhibit 30. 56. The analysis provided by Yasemin (in its entirety) is as follows: Green – Emails/attachments where [Yasemin] and/or Zeynep are listed as recipients Red – Emails/attachments with Norton Rose Blue – Emails/attachments among non-attorneys Orange – Billur emails/attachments regarding trusts or [Yasemin’s] position within the Company Yellow – Insufficient information in privilege log (recipients of texts are not listed) Gray – Emails/attachments sent while [Yasemin] was a director/officer at the time Please note that certain individual emails/attachments may fall into more than one of the above categories. (See Ex. 30.) 16 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 57. Despite the Court’s December 5 instruction that Yasemin specifically identify any logged documents on Defendants’ Amended Privilege Log that she contended in good faith were not privileged, Yasemin once again deployed a sweeping, imprecise approach. This included numerous improper or illogical objections, including objections to documents as “improperly withheld as privileged” that were produced in their entirety except for minimal redactions of personally identifiable information, such as tenants’ names and social security numbers. See id. Two such produced documents are attached hereto as Exhibit 31 (PRIV-006829, produced at Brem00402623) and Exhibit 32 (PRIV-006790, produced at Brem00405700), respectively. E. Defendants Re-Re-Review the Amended Log and Supplement Their Production, Rendering This Motion Moot 58. Yasemin sent Defendants her color-coded log on December 13, and eight days later, filed this motion. (Dkt. 951.) In violation of the Court’s Individual Rules at VI.C., this motion was supported only by an attorney affirmation. (Dkt. 952.) 59. Notwithstanding these defects, at the time the motion was filed, Defendants had already undertaken a re-re-review of the logged documents in an effort to resolve this dispute. Two days later (and only ten days after her initial request), on December 23, 2023, Defendants de- designated and produced 264 additional documents to Yasemin, as well as an updated privilege log. A true and correct copy of Defendants’ December 23, 2022 letter transmitting this production is attached hereto as Exhibit 33. 60. The December 23 Production and the Second Amended Log also fully addressed all emails in the yellow category on Yasemin’s color-coded version of the Amended Log. As for the green category, although Yasemin denotes this category as “emails where Jasmin or Zeynep are listed as recipients,” only one email on the Amended Log included Yasemin as a cc recipient. That email has been produced. 17 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 61. As of that production, 571 of the 898 color-coded documents on Yasemin’s December 13, 2022 have been produced in either complete (333) or redacted form (238), while only 327 continue to be withheld. Yasemin has not even acknowledged receipt of Defendants’ December 23 production, much less sought to meet and confer with Defendants about whether that production has resolved the grounds of her motion. YASEMIN’S MOTION TO COMPEL RECORDS AND DEPOSITIONS SHOULD BE DENIED A. Christiana Trust, Directed Corporate Trustee of the Trusts 62. Yasemin claims to have served a subpoena duces tecum and ad testificandum dated August 10, 2022 on Jessica Mojica of Christiana Trust.9 Yasemin did not serve notice of the subpoena on Defendants until September 2, 2022, after the return date for the document demands in the subpoena, and no affidavit of service accompanied the copy of the subpoena that was served on Defendants. 63. Christiana Trust produced documents in early October 202210, and Yasemin then waited more than two months to make this motion on the last day of discovery. Yasemin presents no evidence that she thereafter exercised diligence to enforce the subpoena, or ever even questioned the “completeness” of Christiana Trust’s production. B. Goldberg Weprin Finkel Goldstein LLP 64. Yasemin also claims to have served a subpoena duces tecum dated October 26, 2022 on Goldberg Weprin Finkel Goldstein LLP. Yasemin never served a notice of the subpoena 9 The legal name of this entity is Wilmington Savings Fund Society, FSB d/b/a Bryn Mawr Trust (formally known as Christiana Trust, a division of Wilmington Savings Fund Society, FSB). For the sake of clarity, we will continue to refer to it as “Christiana Trust” herein. 10 In total, Christiana Trust has produced nearly 3,000 pages of documents, including letters, emails and handwritten correspondence between Christiana Trust and the parties identified by Yasemin. 18 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 on counsel for Defendants, and no affidavit of service is annexed to Yasemin’s filing. 65. Goldberg Weprin performed legal services for the Entity Defendants in connection with landlord-tenant disputes for properties located at 200-204-206 E. 85th St. Yet the Goldberg Weprin subpoena calls for the production of documents responsive to forty-seven categories, of which only a handful pertain to the work performed by the firm – and many explicitly call for the production of documents protected by the attorney-client and/or work product privileges.11 66. Although Yasemin purports to have communicated with Goldberg Weprin “multiple times” (Dkt. 981 at ¶20) to secure their compliance with the subpoena, she submits only a single email dated December 5, 2022 in support of this claim. (Dkt. 986.) In any event, Yasemin did not seek to enforce this subpoena (or notify Defendants’ counsel of its existence) until filing her motion on December 27, 2022 – 62 days after the subpoena was purportedly served. C. Paul Schwartzman, Raish LLC 67. Yasemin first subpoenaed Raish LLC, a software consultant engaged by Defendants, on or about March 20, 2021. Yasemin served a second, identical subpoena on Paul Schwartzman, the principal of Raish, on June 24, 2021. 68. The subpoenas include 33 document requests and 21 deposition topics, many of which are wholly unrelated to the work for which Raish was engaged. Throughout discovery, Defendants repeatedly requested confirmation from Yasemin that she still intended to take Schwartzman’s deposition, and if so, which of the 21 deposition topics she intended to pursue. A true and correct copy of an email from Sean Topping to Scott Parker dated March 25, 2022 is attached hereto as Exhibit 34. A true and correct copy of an email exchange between Sean 11 Defendants produced 2,231 emails to, from or copying Goldberg Weprin that are responsive to the issues identified by Yasemin in her document demands, so it is unclear how a production of documents from Goldberg Weprin would not be entirely duplicative of documents Plaintiffs have already received. 19 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 Topping and Scott Parker dated May 18, 2022 is attached hereto as Exhibit 35. 69. For more than a year, Yasemin declined to schedule Schwartzman’s deposition. In May 2022, the parties agreed to include the Schwartzman/Raish subpoenas in connection with briefing on multiple other discovery issues. 70. Following the decision on Defendants’ motion to quash the Schwartzman subpoena,12 Yasemin’s counsel and Schwartzman agreed to set his deposition for October 17, 2022. On October 14, Yasemin cancelled the deposition, and subsequently exchanged several emails with Schwartzman regarding rescheduling. A true and correct copy of that email exchange through November 3, 2022 is attached hereto as Exhibit 36. After November 3, Yasemin did nothing to pursue the deposition for nearly two months, before sending an email to Schwartzman on December 23, 2022 – one day before the close of discovery. A true and correct copy of the December 23, 2022 email is attached hereto as Exhibit 37. D. Santander Bank 71. Yasemin seeks the production from Santander of additional bank statements and other financial documents dating back to 2015, pertaining to seventeen different accounts held by Defendants. She first sought this category of documents from Defendants in September 2021,13 and after they objected to her document demands, Yasemin took no action to compel the production of bank statements from Defendants. 12 Although the Court denied Defendants’ motion to quash the subpoena, the Court expressed skepticism regarding the admissibility of any testimony adduced from Schwartzman/Raish, stating “my assumption [is] that the Plaintiff’s counsel has better things to do with their time than to ask people about things that have nothing to do with the case, [but] . . . whatever [Plaintiff] may do in asking questions has very little to do with whether he would be able to testify at trial . . . . It doesn’t mean [Plaintiff] can’t depose him.” (Ex. 13 at 49:3-50-25.) 13 In Yasemin’s Third Requests for Production, dated September 15, 2021, she requested all financial statements from any account which Defendants and Zeynep had any interest, as well all statements for “any credit card, debit card, charge card, PayPal, Venmo, or other payment system through which Defendants and/or Zeynep Tekiner made or received payments.” See Exhibit 3, at Request Nos. 39 and 40. In response, Defendants timely and properly objected to these requests as overbroad and as seeking information not material and necessary to any of the claims or defenses in this case. See Exhibit 7, at responses to RFP Nos. 39 and 40. 20 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 72. It was not until nearly a year later, by subpoena dated August 9, 2022, that Yasemin attempted to follow up on her original requests, this time by seeking the documents directly from Santander. A true and correct copy of Yasemin’s subpoena is attached hereto as Exhibit 38. Despite moving to quash the subpoena as overbroad, on October 5, 2022 Defendants produced over 5,000 pages of Santander Bank statements. 73. On November 8, 2022, Santander produced 6,117 pages of documents, consisting of bank records across more than 10 accounts over 8 years belonging to various of the entity and individual Defendants and entities related to certain on Defendants. Two weeks later, Plaintiffs wrote a Rule 14 letter to the Court on November 22, 2022, misleadingly stating that “as of the date of this letter, Santander has not yet produced the subpoenaed banking records.” A true and correct copy of the November 22, 2022 Rule 14 letter is attached hereto as Exhibit 39. On December 1, 2022, two business days before the scheduled Rule 14 conference, Plaintiffs first disclosed that Plaintiffs had been in possession of Santander’s document production for weeks. A true and correct copy of Plaintiffs’ December 1 email is attached hereto as Exhibit 40. 74. During the December 5 Rule 14 conference, Plaintiffs advised that the production was insufficient, and they would be seeking additional documents from Santander. The same day, Plaintiffs wrote to Santander to request additional documents. A true and correct copy of the December 5 letter is attached hereto as Exhibit 41. On December 27, 2022 Santander produced another 2,455 pages. A true and correct copy of Santander’s December 27, 2022 cover letter accompanying this production is attached hereto as Exhibit 42. It was not until three days after filing their motion to compel that Plaintiffs first informed Defendants of Santander’s second production. A true and correct copy of Plaintiffs’ December 30 cover letter accompanying the production is attached hereto as Exhibit 43. 21 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 75. Notwithstanding their receipt of that production, Plaintiffs filed a motion to compel that same day. Plaintiffs do not identify in their motion which, if any, Santander Bank documents they believe are outstanding. E. Denise Baumann, Beck & Baumann CPA LLC 76. Yasemin insists that she is entitled to the deposition of one of the principals of Defendants’ accounting firm, notwithstanding the fact that she has had numerous opportunities to do so in the nineteen months after she first subpoenaed them. On or about May 18, 2021 Yasemin served Denise Baumann, one of two co-principals of Beck & Baumann CPA LLC (Defendants’ accountants), with a subpoena for documents and testimony, including 31 deposition topics and 41 document demands (the “First B&B Subpoena”). A true and correct copy of the First B&B Subpoena is attached hereto as Exhibit 44. 77. On June 24, 2021, Plaintiff issued a second (identical) subpoena to Denise Baumann (the “Second B&B Subpoena”). A true and correct copy of the June 24, 2021 subpoena on Denise Baumann is attached hereto as Exhibit 45. On that same day, Yasemin issued a third identical subpoena for documents and testimony, this time directed to Beck & Baumann (the “Third B&B Subpoena”). A true and correct copy of the Third B&B Subpoena is attached hereto as Exhibit 46. 78. Beginning in June and continuing through August 2021, counsel for the parties met and conferred and exchanged detailed correspondence regarding the 2021 subpoenas, and Defendants thereafter collected and reviewed documents from Beck & Baumann’s records, including both Allen Beck and Denise Baumann’s files, and produced those documents in connection with Defendants’ production of documents, using Defendants’ Bates prefix. 22 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 Defendants have produced 1,762 email files (including attachments) including Beck and/or Baumann. 79. Yasemin never moved to compel further production pursuant to the three 2021 subpoenas, or to propose a date for the deposition of either Baumann or Beck & Baumann. Rather, in September 2022, Yasemin issued another identical subpoena for documents and testimony, this time directed to Beck individually (the “Fourth B&B Subpoena”). A true and correct copy of the Fourth B&B Subpoena is attached hereto as Exhibit 47. Defendants’ counsel agreed to accept service of the subpoena on Beck’s behalf and to produce Beck for his deposition on the noticed date of October 17, 2022. Defendants’ counsel further notified Plaintiff that because responsive documents had previously been produced, no additional documents would be produced. (See id.) 80. When, on October 7, 2022, Defendants requested that Plaintiff confirm October 17 as the date for both Beck and Michaels to appear pursuant to their respective subpoenas, Yasemin wrote to Defendants that she would “respond to . . . your email under separate cover,” but never did so. A true and correct copy of that December 7 email chain is attached hereto as Exhibit 48. Beck served his written objections and responses to the Fourth B&B Subpoena on October 27, 2022. A true and correct copy of Beck’s October 27, 2022 written objections and responses is attached hereto as Exhibit 49. 81. On November 22, 2022, Yasemin served a Rule 14 letter claiming that the October 27 responses violated CPLR 3122 and Commercial Division Rule 11-e. True and correct copies of the parties’ Rule 14 submissions are attached hereto as Exhibits 50 and 51. During the Rule 14 conference Defendants’ counsel, as counsel for Beck for the purpose of responding to the subpoena, agreed to serve amended responses and objections clarifying that, subject to all prior meet and confers and correspondence exchanged in relation to the previously served subpoenas, 23 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 all documents responsive to the Fourth B&B Subpoena (as well as the prior three B&B Subpoenas) subpoenas) had been produced. Defendants’ counsel confirmed this agreement in an email the following day, which Plaintiffs never contested. A true and correct copy of this December 6, 2020 email is attached hereto as Exhibit 52. 82. Beck served amended responses and objections on December 27, 2022. A true and correct copy of Beck’s amended responses and objections is attached hereto as Exhibit 53. 83. Late the evening of December 19, at 11:29pm ET, Yasemin’s counsel sent a letter proposing the scheduling of five depositions (of Phillip Michaels, Denise Baumann, Gonca, Berrin and Billur) to take place on four days (December 22, 23, 26 and 27) during the week before the note of issue deadline. A true and correct copy of the email chain containing the December 19, 2022 email is attached hereto as Exhibit 54. On the morning of December 21, Defendants responded, confirming the deposition of Denise Baumann would take place on December 22. A true and correct copy of the email chain containing this December 21, 2022 email is attached hereto as Exhibit 55. When Baumann appeared as noticed, none of Yasemin’s six attorneys or Zeynep’s two attorneys appeared, waiving any right to take Ms. Baumann’s deposition. A true and correct copy of the transcript of Denise Baumann’s December 22, 2022 deposition is attached hereto as Exhibit 56. F. Philip Michaels, Esq., Norton Rose Fulbright LLP 84. Yasemin also seeks the post-NOI deposition of one of Defendants’ attorneys, despite having failed to complete this deposition in the nineteen months since the relevant subpoena was first served. 85. On or about May 24, 2021, Yasemin served a subpoena on Norton Rose Fulbright LLP (“NRF”), seeking documents and testimony pertaining to legal advice. In total, the subpoena 24 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1570 RECEIVED NYSCEF: 04/12/2023 sought 79 categories of documents and 47 deposition topics. At that time, NRF also represented Defendants in this litigation. A true and correct copy of the May 24