Preview
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NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023
Exhibit 14
FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1574 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
The Yasemin Tekiner 2011 Descendants Trust and Commercial Division Part 3
derivatively as a holder of equitable interests in a
shareholder or a member of the Company Defendants Hon. Joel M. Cohen
Plaintiff, Mot. Sequence Nos. 44, 45, 47
-against-
BREMEN HOUSE INC., BREMEN HOUSE TEXAS,
INC., GERMAN NEWS COMPANY, INC., GERMAN
NEWS TEXAS, INC., 254-258 W. 35TH ST. LLC,
BERRIN TEKINER, GONCA TEKINER, and BILLUR
AKIPEK, in her capacity as a Trustee of The Yasemin
Tekiner 2011 Descendants Trust,
Defendants.
ZEYNEP TEKINER,
in her individual capacity, as a beneficiary and a Trustee of
The Zeynep Tekiner 2011 Descendants Trust and
derivatively as a holder of equitable interests in a
shareholder or a member of the Company Defendants
Intervenor-Plaintiff,
-against-
BREMEN HOUSE INC., BREMEN HOUSE TEXAS,
INC., GERMAN NEWS COMPANY, INC., GERMAN
NEWS TEXAS, INC., 254-258 W. 35TH ST. LLC,
BERRIN TEKINER, GONCA TEKINER, and BILLUR
AKIPEK, in her capacity as a Trustee of The Yasemin
Tekiner 2011 Descendants Trust,
Defendants.
DEFENDANTS’ MEMORANDUM OF LAW
IN OPPOSITION TO PLAINTIFFS’ MOTIONS TO COMPEL
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .....................................................................................................1
LEGAL STANDARD ......................................................................................................................3
A. The Legal Standard for a Motion to Compel ....................................................................3
B. The Court’s Direction Regarding Post-Note of Issue Discovery......................................4
ARGUMENT ...................................................................................................................................4
I. MOTION SEQUENCE NO. 45 ...........................................................................................4
A. Facts Applicable To This Motion ...............................................................................4
1. Yasemin Serves Overbroad Requests Seeking Protected
Health Information, and Defendants Promptly Object .........................................4
2.
.....................................................5
3. Yasemin Waits Yet Another Month to Serve Revised Requests –
Which Were Not Narrowed – and Then Refuses To Meet and Confer ................7
4.
....................................9
5. 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............9
6. Yasemin Ignores the Court’s Guidance, Waiting Until December 22
To Move, and Making No Effort to Address the Relevant Time Period ............11
B.
.....................................................................................................12
1.
................12
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2.
.................14
II. MOTION SEQUENCE NO. 44 .........................................................................................15
A. Facts Applicable To This Motion .............................................................................15
1. By August 2021, Defendants Produce 100,000 Documents and
Provide a Privilege Log, and Yasemin Waits Nearly a Year to
Seek Judicial Intervention ...................................................................................15
2. Defendants Diligently Comply With the Court’s Order, Re-Reviewing and
Producing Over 8,500 Previously Withheld Documents ....................................17
3. After Yet More Delay, Yasemin Again Makes Unsubstantiated Claims
That Non-Privileged Documents Were Being Improperly Withheld .................18
4. 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 .........19
5. Defendants Re-Re-Review the Amended Log and
Supplement Their Production, Rendering This Motion Moot ............................20
B. Plaintiffs’ Request for the Production of “Non-Privileged Documents”
Should Be Denied .....................................................................................................21
1. Defendants’ December 23, 2022 Production Mooted This Motion....................21
2. Even Were This Motion Not Moot, Yasemin’s Purported Bases To De-
Designate The Remaining Privileged Documents All Fail .................................22
i. It Is Law of the Case That the Mere Inclusion of Zeynep on an Otherwise
Privileged Email Does Not Waive Defendants’ Privilege (“Green”
Category).......................................................................................................22
ii. Communications Conveying Legal Advice Among Non-Attorney
Employees or Agents of the Entity Defendants Are Privileged (“Blue”
Category).......................................................................................................23
iii. Yasemin’s Demands That Documents Be Produced on the Bases of
the Sent Date or Subject Line (“Grey” and “Orange” Categories) Are
Insufficient ....................................................................................................24
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iv. Yasemin Cannot Show That the Individual Defendants Has Each
Waived Her Personal Attorney-Client Privilege with Prior Counsel
(“Red” Category) ..........................................................................................25
v. Yasemin’s Additional Complaints Are Similarly Unfounded ......................26
III. MOTION SEQUENCE NO. 47 .........................................................................................27
A. Facts Applicable To This Motion .............................................................................27
1. Christiana Trust, Directed Corporate Trustee of the Trusts ................................27
2. Goldberg Weprin Finkel Goldstein LLP.............................................................28
3. Paul Schwartzman, Raish LLC ...........................................................................28
4. Santander Bank ...................................................................................................29
5. Denise Baumann, Beck & Baumann CPA LLC .................................................31
6. Philip Michaels, Esq., Norton Rose Fulbright LLP ............................................33
7. Second Deposition of Billur Akipek ...................................................................35
B. Plaintiffs’ Motion for the Production of Books and Records Should be Denied......36
1. Yasemin’s Failure to Comply with the Court’s
Scheduling Order Forecloses Her Right to More Discovery ..............................36
2. Yasemin’s Chronic Dilatory Conduct Further Evidences That None
of the Discovery Sought is Material or Necessary to Any Claims or Defenses .37
3. Yasemin Also Failed To Articulate What
Material Information Allegedly Remains Outstanding.......................................39
4. Plaintiffs Knowingly Deposed Billur a Year
Ago, and There is No Basis to Recall Her ..........................................................40
IV. MOTION SEQUENCE NO. 42 .........................................................................................40
A. Facts Applicable To This Motion .............................................................................40
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B. Plaintiffs’ Assorted Requests for Other Post-Note of Issue
Discovery Should Be Denied ....................................................................................40
CONCLUSION ..............................................................................................................................45
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TABLE OF AUTHORITIES
CASES PAGE(s)
Abe v. New York Univ.,
169 A.D.3d 445 (1st Dep’t 2019) ............................................................................................39
Altschuler v. Jobman 478/480, LLC,
No. 603556/2009, 2013 WL 5500357 (N.Y. Sup. Ct. Sep. 26, 2013) .....................................39
Andon v. 302-304 Mott St. Assocs.,
94 N.Y.2d 740 (2000) ................................................................................................................3
Barclays Bank PLC v. Skulsky Trust,
287 A.D.2d 365 (1st Dep’t 2001) ..............................................................................................3
Berkowitz v. 29 Woodmere Blvd. Owners’, Inc.,
135 A.D.3d 798 (2d Dep’t 2016) .............................................................................................14
In re Carella,
2 Misc. 3d 1007(A), 2004 N.Y. Misc. LEXIS 274 (Sur. 2004.)..............................................14
Cashbamba v. 1056 Bedford LLC,
172 A.D.3d 415 (1st Dep’t 2019) ............................................................................................21
Charter One Bank, F.S.B. v. Midtown Rochester, L.L.C.,
738 N.Y.S.2d 179 (Sup. Ct. Monroe Co. 2002).......................................................................23
Davis v. Cornerstone Tel. Co. LLC,
78 A.D.3d 1263 (3d Dep’t 2010) .............................................................................................13
Degliuomini v. Degliuomini,
308 A.D.2d 501 (N.Y. App. Div. 2d Dep’t 2003) ...................................................................13
Delta Fin. Corp. v. Morrison,
829 N.Y.S.2d 877 (Sup. Ct. Nassau Co. 2007)........................................................................23
Deutsche Bank Tr. Co. of Americas v. Tri-Links Inv. Tr.,
43 A.D.3d 56(1st Dep’t 2007) .................................................................................................26
Estate of Coletta Bellante,
2012 NYLJ LEXIS 4111 (N.Y. Sur. Ct. July 19, 2012) ..........................................................15
Forman v. Henkin,
30 N.Y.3d 656 (2018) ................................................................................................................3
Gama Aviation Inc. v. Sandton Cap. Partners, L.P.,
99 A.D.3d 423 (1st Dep’t 2012) ..............................................................................................24
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Geffner v. Mercy Med. Ctr.,
83 A.D.3d 998 (2d Dep’t 2011) .................................................................................................3
Gilbert-Frank Corp. v. Guardsman Life Ins. Co.,
78 A.D.2d 798 (1st Dep’t 1980) ..............................................................................................13
Gilbert Frank Corp. v. Federal Ins. Co.,
70 N.Y.2d 966, 968 (1988) ......................................................................................................26
GoSmile, Inc. v. Levine,
112 A.D.3d 469 (1st Dep’t 2013) ............................................................................................38
Grasso v. McCoy,
113 A.D.3d 1096 (4th Dep’t 2014) ..........................................................................................21
Homapour v. Harounian,
200 A.D.3d 575 (1st Dep’t 2021) ............................................................................................26
Kregg v. Maldonado,
98 A.D.3d 1289 (4th Dep’t 2012) ............................................................................................13
Latamie v. Benrimon Contemporary LLC,
No. 650521/2015, 2018 WL 6615702 (Sup. Ct., N.Y. Cty. Dec. 13, 2018)
(Trial Order) .............................................................................................................................39
Lauer’s Furniture Stores, Inc. v. Pittsford Place Assocs.,
190 A.D.2d 1054 (4th Dep’t 1993) ..........................................................................................13
Lehman Bros. Int’l. v AG Fin. Prods., Inc.,
No. 653284/2011(MF), 2016 WL 392709 (Sup Ct., N.Y. Cnty. Jan. 11, 2016) .....................24
Kavanagh v. Ogden Allied Maint. Corp.,
92 N.Y.2d 952, (1998) .............................................................................................................. 3
Miller v. City of New York,
21 Misc. 3d 886, 865 N.Y.S.2d 523 (Sup Ct., N.Y. Cnty. 2008) ..............................................3
National Educ. Training Grp., Inc.,
No.M8-85(WHP), 1999 WL 378337 (S.D.N.Y June 9, 1999) ................................................24
People v. Osorio,
75 N.Y.2d 80 (1989 (citations omitted))..................................................................................24
Pierson v. North Colonie Cent. Sch. Dist.,
74 A.D.3d 1652 (3d Dep’t 2010) .............................................................................................36
Reuters Ltd. v. Dow Jones Telerate,
231 A.D.2d 337 (1st Dep’t 1997) ..............................................................................................3
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Salomon v. United States Tennis Assn,
2022 NYLJ LEXIS 260 (N.Y. Sup. Ct. Feb. 25, 2022) ...........................................................14
Spicer v. GardaWorld Consulting (UK) Ltd.,
181 A.D.3d 413 (1st Dep’t Mar. 3,2020) .................................................................................24
TC Ravenswood, LLC v. National Union Fire Ins. Co. of Pittsburgh Pennsylvania,
No. 400759/11, 2013 WL 3199817 (N.Y. Sup. Ct. June 20, 2013) (Trial Order) ...................23
Thomas v. Holzberg,
227 A.D.2d 175 (1st Dep’t 1996) ............................................................................................13
Other Authorities
CPLR 3101.......................................................................................................................................3
CPLR 3106.....................................................................................................................................42
CPLR 3107.....................................................................................................................................42
CPLR 3120.....................................................................................................................................13
CPLR 3122.........................................................................................................................11, 32, 34
CPLR 3124.....................................................................................................................................11
CPLR 3126.....................................................................................................................................36
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PRELIMINARY STATEMENT
As the Court noted at the December 19 hearing, “[t]here’s been plenty of time to complete
discovery” in this case. The threshold inquiry on these motions is not what discovery does
Yasemin claim to still need, but rather what discovery, if any, was she “frustrated” from
undertaking in the more than two years this case has been pending. The answer is none – Yasemin
sat on her rights and is alone is responsible for any discovery she did not complete – and her
eleventh hour discovery motions should be denied.
In addition to serving 206 document requests and 19 sets of books and records demands on
Defendants, Yasemin issued 21 non-party subpoenas on virtually every employee, broker,
accountant, business counterparty, agent or attorney that ever encountered Defendants. These
subpoenas attached a “Schedule A,” often listing more than 40 document demands and a “Schedule
B” containing as many as 30 deposition topics, while also annexing Yasemin’s Complaint
containing innumerable scandalous (and groundless) accusations against Defendants.
Although Yasemin served fifteen of those subpoenas by June 2021, in the ensuing 19
months she took exactly one of the noticed depositions: that of her sister Zeynep, before Zeynep
became a plaintiff herself. And not until the last week of discovery did Yasemin move to compel
as to any of her 21 non-party subpoenas, or otherwise seek to enforce her rights.
The Court has repeatedly given Yasemin the opportunity to explain how she was thwarted
in prosecuting her case. She had the chance to lay out what Defendants did to prevent discovery
in her omnibus motion filed October 5, 2022, which was filed only 12 days before the end of fact
discovery. Instead, she waited until December 15 – days before the close of all discovery – to
submit a letter requesting a global extension of all discovery dates.
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The Court gave her yet another chance to plead her case during a December 19 hearing,
noting to her counsel “I still am not sure what force of nature prevented you from noticing [and]
taking the deposition[s]” Plaintiffs sought. Even still, the Court gave Plaintiffs one more chance
to explain what exactly Defendants did to stymie discovery, and they have had the opportunity to
do so in connection with any of the six motions they have filed since that hearing.
The best Yasemin musters is that she was prevented from taking a number of depositions
due to the purported absence of ‘critical’ documents. But that argument is specious. First, as to
the non-parties, Defendants had no control over whether those individuals or entities responded to
the subpoenas. If, as Yasemin claims, non-party witnesses were not complying with their
subpoena obligations, she had years to enforce them and did not do so. But she made not a single
motion to compel compliance with a subpoena until the last day of discovery. Second, while
simultaneously crying foul about Defendants’ purportedly delinquent document productions –
claiming that she could not possibly be expected to take any depositions as a result – Yasemin
belied her own position by taking party depositions. This is unsurprising, as Defendants have
produced 132,000 documents, totaling 407,554 pages in this litigation, which does not include the
many thousands of pages of documents produced by subpoenaed parties. Plaintiffs have had no
shortage of material with which to establish their claims, including nearly 40 hours of deposition
testimony by the parties.
It is time for the parties to proceed to an adjudication on the merits. All of Plaintiffs’
motions to compel post-NOI discovery should be denied in their entirety.
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LEGAL STANDARD
A. The Legal Standard for a Motion to Compel
In New York, it is well-settled that disclosure is not “to be used as a tool of harassment or
for the proverbial ‘fishing expedition’ to ascertain the existence of evidence.” Reuters Ltd. v. Dow
Jones Telerate, 231 A.D.2d 337, 342 (1st Dep’t 1997) (citations omitted). For this reason, pursuant
to CPLR 3101(a) disclosure is limited to matters which are “material and necessary [to] the
prosecution or defense of an action,” and courts rightly preclude efforts to “turn[] the fact-finding
process into a series of mini-trials” regarding collateral issues. Andon v. 302-304 Mott St. Assocs.,
94 N.Y.2d 740, 747 (2000) (citation and quotation omitted); Barclays Bank PLC v. Skulsky Trust,
287 A.D.2d 365, 366 (1st Dep’t 2001) (denying discovery where documents sought were
“irrelevant to the issue[s].”) Parties are “not entitled to unlimited, uncontrolled, unfettered
disclosure.” Geffner v. Mercy Med. Ctr., 83 A.D.3d 998, 998 (2d Dep’t 2011) (citations omitted);
accord Forman v. Henkin, 30 N.Y.3d 656, 662 (2018). “[D]iscovery may be ordered only if the
litigant demonstrates, clearly and specifically, that the items sought are (1) highly material, (2)
critical to the litigant’s claim, and (3) not otherwise available.” Miller v. City of New York,
21 Misc. 3d 886, 891, 865 N.Y.S.2d 523 (Sup Ct., N.Y. Cnty. 2008) (emphasis added) (quoting
Kavanagh v. Ogden Allied Maint. Corp., 92 N.Y.2d 952, 954 (1998) (other citations omitted).
B. The Court’s Direction Regarding Post-Note of Issue Discovery
The parties’ December 19, 2022 hearing resolving Motion Sequence 37, the Court set an
explicit standard for Plaintiffs: “I’m not persuaded that I should move the schedule again; and if
you can demonstrate in motion papers in the traditional way that you were frustrated in being able
to take discovery that you’re entitled to take before the end of fact discovery as extended at least
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once, maybe more than once, then I will take that into account.” (Mohler Afm.1 Ex. 21 at 55:19-
25.) Yasemin has failed to establish Defendants—or anyone else—“frustrated” her ability to
complete discovery prior to the end of fact discovery.
ARGUMENT
I. MOTION SEQUENCE NO. 45
A. Facts Applicable To This Motion
1.
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.2 (Dkt. 2.)
On February 1, 2021, Yasemin served a first set of requests for production, comprised of
87 total requests, specifying “January 1, 2015 until the present” as the relevant time period for
responsive documents. 3 (Ex. 1 at 6.)
1
Going forward, all exhibit references will be to the exhibits attached to the Affirmation of Bryan Mohler dated
January 30, 2023 filed in opposition to the Motions.
2
Yasemin subsequently amended her Complaint on January 25, 2021 (Dkt. 86) and June 22, 2022 (Dkt. 548). (Mohler
Afm. ¶3.)
3
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. (Mohler Afm. ¶4.)
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2.
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. (Mohler Afm. ¶6.)
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4
5
Yasemin seeks to justify her refusal to meet and confer by claiming that the “parties had already met and conferred”
(Dkt. 966, ¶9) -- this is untrue. The September 6 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.
(Mohler Afm. Ex. 14.)
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5. A
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6.
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CPLR 3120(2) provides that document demands “shall set forth the items to be inspected,
copied, tested or photographed by individual item or by category, and shall describe each item and
category with reasonable particularity.” Courts routinely refuse to sustain discovery demands
where, as here, the requesting party seeks “all” or “any” documents concerning exceedingly broad
subject matter. See, e.g., Gilbert-Frank Corp. v. Guardsman Life Ins. Co., 78 A.D.2d 798, 798-99
(1st Dep’t 1980); Thomas v. Holzberg, 227 A.D.2d 175, 176 (1st Dep’t 1996); Degliuomini v.
Degliuomini, 308 A.D.2d 501 (N.Y. App. Div. 2d Dep’t 2003); Lauer’s Furniture Stores, Inc. v.
Pittsford Place Assocs., 190 A.D.2d 1054, 1055 (4th Dep’t 1993). In such circumstances, “the
appropriate remedy is to vacate the entire demand rather than to prune it.” Kregg v. Maldonado,
98 A.D.3d 1289, 1290 (4th Dep’t 2012) (citations omitted); accord Berkowitz v. 29 Woodmere
Blvd. Owners’, Inc., 135 A.D.3d 798, 799 (2d Dep’t 2016).
2.
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II. MOTION SEQUENCE NO. 44
A. Facts Applicable To This Motion
1. By August 2021, Defendants Produce 100,000 Documents and Provide
a Privilege Log, and Yasemin Waits Nearly a Year to Seek
Judicial Intervention
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By August 2021, Defendants had produced 91,558 documents in response to Yasemin’s
document requests. (Mohler Afm. ¶28.) On August 27, 2021, Defendants also provided Yasemin
with a privilege log that included 9,540 entries. (Id.) Defendants continued to amend their
privilege log to reflect withheld documents as they completed their rolling productions.
Defendants ultimately provided Yasemin with a privilege log containing 10,563 entries
(“Defendants’ Privilege Log”). (Id.)
On October 13, 2021, Yasemin asserted objections to Defendants’ Privilege Log. (Id.
Ex. 21.) 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.” (Id. ¶30, Ex. 22.)
On October 28, 2021, the parties met and conferred regarding, inter alia, Yasemin’s
objections to Defendants’ Privilege Log. (Mohler Afm. ¶31, Ex. 23.) 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. (Id. ¶32.) In response,
Defendants agreed that they would review the log to confirm that no communications were logged
erroneously. (Id.)
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 right as a
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director to access legal advice provided to the Entity Defendants. (Mohler Afm. ¶33, Ex. 24.)10
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. (Mohler Afm. ¶36 Ex. 26.)
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”). (Mohler Afm. ¶37;
see Dkt. 377.)
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.) 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 Mohler Afm. ¶38.)
2. Defendants Diligently Comply With the Court’s Order, Re-Reviewing
and Producing Over 8,500 Previously Withheld Documents
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.” (Mohler Afm. ¶40; see Dkt. 689.)
10
The same day, Yasemin also emailed to confirm Defendants’ position that communications with certain third parties
appearing on the August 2021 Log were privileged because, under the circumstances, those third parties’ inclusion
did not waive privilege. (Ex. 25.) Defendants confirmed, and told Yasemin that they would agree to Yasemin
amending her pending Rule 14 letter to add this issue. (Id. ¶35.) Yasemin declined to do so. (Id..)
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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.
(Ex. 13 at 22:22-23:5 (emphasis added).)
Defendants fully complied with that directive. (Id. ¶43.) After the August 15 hearing,
Defendants undertook a re-review of 11,64111 documents from Defendants’ privilege log and 353
documents from Zeynep’s privilege log.12 (Id.) Because it turned on application of the fiduciary
exception—and exceptions to the fiduciary exception—Defendants’ re-review required a detailed,
complicated analysis. Defendants made every effort to complete the review expeditiously. (Id.
¶45.)
On a rolling basis, over the next 60 days Defendants de-designated and produced over
8,500 documents previously withheld as privileged. (Id. ¶46.) 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.
(Id.) Defendants also provided a cross-reference which identified the Bates numbers for each
document previously logged as privileged. (Id.)
3. After Yet More Delay, Yasemin Again Makes Unsubstantiated Claims
That Non-Privileged Documents Were Being Improperly Withheld
11
In her motion, Yasemin 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. (Mohler
Afm. ¶43.)
12
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. (Mohler Afm., ¶44.)
17
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Following Defendants’ re-review and supplemental production of de-designated
documents, Yasemin vaguely claimed that non-privileged documents were still being withheld,13
but never sought to meet and confer or provide any details to substantiate her claims. (Mohler
Afm. ¶47.)
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. (Id. ¶49 Ex. 28.)
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 id.)
(accusing Defendants of “inexplicably” continuing to withhold 1,069 documents as privileged).
By letter dated November 30, 2022, Defendants responded, explaining there is nothing
inexplicable 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.
(Id. ¶51 Ex. 29.)
The Court thereafter held a Rule 14 conference on December 5, 2022 (the “December 5
Conference”). Addressing this issue, Ms. Klinger directed Yasemin to specifically identify any
logged documents on Defendants’ Amended Privilege Log she contended in good faith were not
privileged. (Id. ¶52.) 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.
13
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 provided no details or basis for that claim in her October 24, 2022
submission. (See Dkt. 805 at 7.)
18
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(Id. ¶53.) 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. (Id. ¶54.)
4. Defying the Court’s Instructions, Yasemin Fails To Specifically
Identify Allegedly Improperly Withheld Documents, Then Waits Until
Days Before the Close of Discovery to Seek Relief
Rather than proceeding with appropriate urgency given the impending close of discovery,
Yasemin waited 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. (Id. ¶55.) 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. (Id. Ex. 30.) The analysis
provided by Yasemin (in its entirety) is as follows:
Green – Emails/attachments where Jasmin 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 Jasmin’s position within the Company
Yellow – Insufficient information in privilege log (recipients of texts are not listed)
Gray – Emails/attachments sent while Jasmin was a director/officer at the time
(See id.)
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’ social security numbers. (Id. ¶57.)
5. Defendants Re-Re-Review the Amended Log and Supplement Their
Production, Rendering This Motion Moot
19
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NYSCEF DOC. NO. 1574
Preview
FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 Exhibit 14 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 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 The Yasemin Tekiner 2011 Descendants Trust and Commercial Division Part 3 derivatively as a holder of equitable interests in a shareholder or a member of the Company Defendants Hon. Joel M. Cohen Plaintiff, Mot. Sequence Nos. 44, 45, 47 -against- BREMEN HOUSE INC., BREMEN HOUSE TEXAS, INC., GERMAN NEWS COMPANY, INC., GERMAN NEWS TEXAS, INC., 254-258 W. 35TH ST. LLC, BERRIN TEKINER, GONCA TEKINER, and BILLUR AKIPEK, in her capacity as a Trustee of The Yasemin Tekiner 2011 Descendants Trust, Defendants. ZEYNEP TEKINER, in her individual capacity, as a beneficiary and a Trustee of The Zeynep Tekiner 2011 Descendants Trust and derivatively as a holder of equitable interests in a shareholder or a member of the Company Defendants Intervenor-Plaintiff, -against- BREMEN HOUSE INC., BREMEN HOUSE TEXAS, INC., GERMAN NEWS COMPANY, INC., GERMAN NEWS TEXAS, INC., 254-258 W. 35TH ST. LLC, BERRIN TEKINER, GONCA TEKINER, and BILLUR AKIPEK, in her capacity as a Trustee of The Yasemin Tekiner 2011 Descendants Trust, Defendants. DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTIONS TO COMPEL FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 LEGAL STANDARD ......................................................................................................................3 A. The Legal Standard for a Motion to Compel ....................................................................3 B. The Court’s Direction Regarding Post-Note of Issue Discovery......................................4 ARGUMENT ...................................................................................................................................4 I. MOTION SEQUENCE NO. 45 ...........................................................................................4 A. Facts Applicable To This Motion ...............................................................................4 1. Yasemin Serves Overbroad Requests Seeking Protected Health Information, and Defendants Promptly Object .........................................4 2. .....................................................5 3. Yasemin Waits Yet Another Month to Serve Revised Requests – Which Were Not Narrowed – and Then Refuses To Meet and Confer ................7 4. ....................................9 5. 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............9 6. Yasemin Ignores the Court’s Guidance, Waiting Until December 22 To Move, and Making No Effort to Address the Relevant Time Period ............11 B. .....................................................................................................12 1. ................12 i FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 2. .................14 II. MOTION SEQUENCE NO. 44 .........................................................................................15 A. Facts Applicable To This Motion .............................................................................15 1. By August 2021, Defendants Produce 100,000 Documents and Provide a Privilege Log, and Yasemin Waits Nearly a Year to Seek Judicial Intervention ...................................................................................15 2. Defendants Diligently Comply With the Court’s Order, Re-Reviewing and Producing Over 8,500 Previously Withheld Documents ....................................17 3. After Yet More Delay, Yasemin Again Makes Unsubstantiated Claims That Non-Privileged Documents Were Being Improperly Withheld .................18 4. 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 .........19 5. Defendants Re-Re-Review the Amended Log and Supplement Their Production, Rendering This Motion Moot ............................20 B. Plaintiffs’ Request for the Production of “Non-Privileged Documents” Should Be Denied .....................................................................................................21 1. Defendants’ December 23, 2022 Production Mooted This Motion....................21 2. Even Were This Motion Not Moot, Yasemin’s Purported Bases To De- Designate The Remaining Privileged Documents All Fail .................................22 i. It Is Law of the Case That the Mere Inclusion of Zeynep on an Otherwise Privileged Email Does Not Waive Defendants’ Privilege (“Green” Category).......................................................................................................22 ii. Communications Conveying Legal Advice Among Non-Attorney Employees or Agents of the Entity Defendants Are Privileged (“Blue” Category).......................................................................................................23 iii. Yasemin’s Demands That Documents Be Produced on the Bases of the Sent Date or Subject Line (“Grey” and “Orange” Categories) Are Insufficient ....................................................................................................24 ii FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 iv. Yasemin Cannot Show That the Individual Defendants Has Each Waived Her Personal Attorney-Client Privilege with Prior Counsel (“Red” Category) ..........................................................................................25 v. Yasemin’s Additional Complaints Are Similarly Unfounded ......................26 III. MOTION SEQUENCE NO. 47 .........................................................................................27 A. Facts Applicable To This Motion .............................................................................27 1. Christiana Trust, Directed Corporate Trustee of the Trusts ................................27 2. Goldberg Weprin Finkel Goldstein LLP.............................................................28 3. Paul Schwartzman, Raish LLC ...........................................................................28 4. Santander Bank ...................................................................................................29 5. Denise Baumann, Beck & Baumann CPA LLC .................................................31 6. Philip Michaels, Esq., Norton Rose Fulbright LLP ............................................33 7. Second Deposition of Billur Akipek ...................................................................35 B. Plaintiffs’ Motion for the Production of Books and Records Should be Denied......36 1. Yasemin’s Failure to Comply with the Court’s Scheduling Order Forecloses Her Right to More Discovery ..............................36 2. Yasemin’s Chronic Dilatory Conduct Further Evidences That None of the Discovery Sought is Material or Necessary to Any Claims or Defenses .37 3. Yasemin Also Failed To Articulate What Material Information Allegedly Remains Outstanding.......................................39 4. Plaintiffs Knowingly Deposed Billur a Year Ago, and There is No Basis to Recall Her ..........................................................40 IV. MOTION SEQUENCE NO. 42 .........................................................................................40 A. Facts Applicable To This Motion .............................................................................40 iii FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 B. Plaintiffs’ Assorted Requests for Other Post-Note of Issue Discovery Should Be Denied ....................................................................................40 CONCLUSION ..............................................................................................................................45 iv FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 TABLE OF AUTHORITIES CASES PAGE(s) Abe v. New York Univ., 169 A.D.3d 445 (1st Dep’t 2019) ............................................................................................39 Altschuler v. Jobman 478/480, LLC, No. 603556/2009, 2013 WL 5500357 (N.Y. Sup. Ct. Sep. 26, 2013) .....................................39 Andon v. 302-304 Mott St. Assocs., 94 N.Y.2d 740 (2000) ................................................................................................................3 Barclays Bank PLC v. Skulsky Trust, 287 A.D.2d 365 (1st Dep’t 2001) ..............................................................................................3 Berkowitz v. 29 Woodmere Blvd. Owners’, Inc., 135 A.D.3d 798 (2d Dep’t 2016) .............................................................................................14 In re Carella, 2 Misc. 3d 1007(A), 2004 N.Y. Misc. LEXIS 274 (Sur. 2004.)..............................................14 Cashbamba v. 1056 Bedford LLC, 172 A.D.3d 415 (1st Dep’t 2019) ............................................................................................21 Charter One Bank, F.S.B. v. Midtown Rochester, L.L.C., 738 N.Y.S.2d 179 (Sup. Ct. Monroe Co. 2002).......................................................................23 Davis v. Cornerstone Tel. Co. LLC, 78 A.D.3d 1263 (3d Dep’t 2010) .............................................................................................13 Degliuomini v. Degliuomini, 308 A.D.2d 501 (N.Y. App. Div. 2d Dep’t 2003) ...................................................................13 Delta Fin. Corp. v. Morrison, 829 N.Y.S.2d 877 (Sup. Ct. Nassau Co. 2007)........................................................................23 Deutsche Bank Tr. Co. of Americas v. Tri-Links Inv. Tr., 43 A.D.3d 56(1st Dep’t 2007) .................................................................................................26 Estate of Coletta Bellante, 2012 NYLJ LEXIS 4111 (N.Y. Sur. Ct. July 19, 2012) ..........................................................15 Forman v. Henkin, 30 N.Y.3d 656 (2018) ................................................................................................................3 Gama Aviation Inc. v. Sandton Cap. Partners, L.P., 99 A.D.3d 423 (1st Dep’t 2012) ..............................................................................................24 v FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 Geffner v. Mercy Med. Ctr., 83 A.D.3d 998 (2d Dep’t 2011) .................................................................................................3 Gilbert-Frank Corp. v. Guardsman Life Ins. Co., 78 A.D.2d 798 (1st Dep’t 1980) ..............................................................................................13 Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968 (1988) ......................................................................................................26 GoSmile, Inc. v. Levine, 112 A.D.3d 469 (1st Dep’t 2013) ............................................................................................38 Grasso v. McCoy, 113 A.D.3d 1096 (4th Dep’t 2014) ..........................................................................................21 Homapour v. Harounian, 200 A.D.3d 575 (1st Dep’t 2021) ............................................................................................26 Kregg v. Maldonado, 98 A.D.3d 1289 (4th Dep’t 2012) ............................................................................................13 Latamie v. Benrimon Contemporary LLC, No. 650521/2015, 2018 WL 6615702 (Sup. Ct., N.Y. Cty. Dec. 13, 2018) (Trial Order) .............................................................................................................................39 Lauer’s Furniture Stores, Inc. v. Pittsford Place Assocs., 190 A.D.2d 1054 (4th Dep’t 1993) ..........................................................................................13 Lehman Bros. Int’l. v AG Fin. Prods., Inc., No. 653284/2011(MF), 2016 WL 392709 (Sup Ct., N.Y. Cnty. Jan. 11, 2016) .....................24 Kavanagh v. Ogden Allied Maint. Corp., 92 N.Y.2d 952, (1998) .............................................................................................................. 3 Miller v. City of New York, 21 Misc. 3d 886, 865 N.Y.S.2d 523 (Sup Ct., N.Y. Cnty. 2008) ..............................................3 National Educ. Training Grp., Inc., No.M8-85(WHP), 1999 WL 378337 (S.D.N.Y June 9, 1999) ................................................24 People v. Osorio, 75 N.Y.2d 80 (1989 (citations omitted))..................................................................................24 Pierson v. North Colonie Cent. Sch. Dist., 74 A.D.3d 1652 (3d Dep’t 2010) .............................................................................................36 Reuters Ltd. v. Dow Jones Telerate, 231 A.D.2d 337 (1st Dep’t 1997) ..............................................................................................3 vi FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 Salomon v. United States Tennis Assn, 2022 NYLJ LEXIS 260 (N.Y. Sup. Ct. Feb. 25, 2022) ...........................................................14 Spicer v. GardaWorld Consulting (UK) Ltd., 181 A.D.3d 413 (1st Dep’t Mar. 3,2020) .................................................................................24 TC Ravenswood, LLC v. National Union Fire Ins. Co. of Pittsburgh Pennsylvania, No. 400759/11, 2013 WL 3199817 (N.Y. Sup. Ct. June 20, 2013) (Trial Order) ...................23 Thomas v. Holzberg, 227 A.D.2d 175 (1st Dep’t 1996) ............................................................................................13 Other Authorities CPLR 3101.......................................................................................................................................3 CPLR 3106.....................................................................................................................................42 CPLR 3107.....................................................................................................................................42 CPLR 3120.....................................................................................................................................13 CPLR 3122.........................................................................................................................11, 32, 34 CPLR 3124.....................................................................................................................................11 CPLR 3126.....................................................................................................................................36 vii FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 PRELIMINARY STATEMENT As the Court noted at the December 19 hearing, “[t]here’s been plenty of time to complete discovery” in this case. The threshold inquiry on these motions is not what discovery does Yasemin claim to still need, but rather what discovery, if any, was she “frustrated” from undertaking in the more than two years this case has been pending. The answer is none – Yasemin sat on her rights and is alone is responsible for any discovery she did not complete – and her eleventh hour discovery motions should be denied. In addition to serving 206 document requests and 19 sets of books and records demands on Defendants, Yasemin issued 21 non-party subpoenas on virtually every employee, broker, accountant, business counterparty, agent or attorney that ever encountered Defendants. These subpoenas attached a “Schedule A,” often listing more than 40 document demands and a “Schedule B” containing as many as 30 deposition topics, while also annexing Yasemin’s Complaint containing innumerable scandalous (and groundless) accusations against Defendants. Although Yasemin served fifteen of those subpoenas by June 2021, in the ensuing 19 months she took exactly one of the noticed depositions: that of her sister Zeynep, before Zeynep became a plaintiff herself. And not until the last week of discovery did Yasemin move to compel as to any of her 21 non-party subpoenas, or otherwise seek to enforce her rights. The Court has repeatedly given Yasemin the opportunity to explain how she was thwarted in prosecuting her case. She had the chance to lay out what Defendants did to prevent discovery in her omnibus motion filed October 5, 2022, which was filed only 12 days before the end of fact discovery. Instead, she waited until December 15 – days before the close of all discovery – to submit a letter requesting a global extension of all discovery dates. 1 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 The Court gave her yet another chance to plead her case during a December 19 hearing, noting to her counsel “I still am not sure what force of nature prevented you from noticing [and] taking the deposition[s]” Plaintiffs sought. Even still, the Court gave Plaintiffs one more chance to explain what exactly Defendants did to stymie discovery, and they have had the opportunity to do so in connection with any of the six motions they have filed since that hearing. The best Yasemin musters is that she was prevented from taking a number of depositions due to the purported absence of ‘critical’ documents. But that argument is specious. First, as to the non-parties, Defendants had no control over whether those individuals or entities responded to the subpoenas. If, as Yasemin claims, non-party witnesses were not complying with their subpoena obligations, she had years to enforce them and did not do so. But she made not a single motion to compel compliance with a subpoena until the last day of discovery. Second, while simultaneously crying foul about Defendants’ purportedly delinquent document productions – claiming that she could not possibly be expected to take any depositions as a result – Yasemin belied her own position by taking party depositions. This is unsurprising, as Defendants have produced 132,000 documents, totaling 407,554 pages in this litigation, which does not include the many thousands of pages of documents produced by subpoenaed parties. Plaintiffs have had no shortage of material with which to establish their claims, including nearly 40 hours of deposition testimony by the parties. It is time for the parties to proceed to an adjudication on the merits. All of Plaintiffs’ motions to compel post-NOI discovery should be denied in their entirety. 2 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 LEGAL STANDARD A. The Legal Standard for a Motion to Compel In New York, it is well-settled that disclosure is not “to be used as a tool of harassment or for the proverbial ‘fishing expedition’ to ascertain the existence of evidence.” Reuters Ltd. v. Dow Jones Telerate, 231 A.D.2d 337, 342 (1st Dep’t 1997) (citations omitted). For this reason, pursuant to CPLR 3101(a) disclosure is limited to matters which are “material and necessary [to] the prosecution or defense of an action,” and courts rightly preclude efforts to “turn[] the fact-finding process into a series of mini-trials” regarding collateral issues. Andon v. 302-304 Mott St. Assocs., 94 N.Y.2d 740, 747 (2000) (citation and quotation omitted); Barclays Bank PLC v. Skulsky Trust, 287 A.D.2d 365, 366 (1st Dep’t 2001) (denying discovery where documents sought were “irrelevant to the issue[s].”) Parties are “not entitled to unlimited, uncontrolled, unfettered disclosure.” Geffner v. Mercy Med. Ctr., 83 A.D.3d 998, 998 (2d Dep’t 2011) (citations omitted); accord Forman v. Henkin, 30 N.Y.3d 656, 662 (2018). “[D]iscovery may be ordered only if the litigant demonstrates, clearly and specifically, that the items sought are (1) highly material, (2) critical to the litigant’s claim, and (3) not otherwise available.” Miller v. City of New York, 21 Misc. 3d 886, 891, 865 N.Y.S.2d 523 (Sup Ct., N.Y. Cnty. 2008) (emphasis added) (quoting Kavanagh v. Ogden Allied Maint. Corp., 92 N.Y.2d 952, 954 (1998) (other citations omitted). B. The Court’s Direction Regarding Post-Note of Issue Discovery The parties’ December 19, 2022 hearing resolving Motion Sequence 37, the Court set an explicit standard for Plaintiffs: “I’m not persuaded that I should move the schedule again; and if you can demonstrate in motion papers in the traditional way that you were frustrated in being able to take discovery that you’re entitled to take before the end of fact discovery as extended at least 3 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 once, maybe more than once, then I will take that into account.” (Mohler Afm.1 Ex. 21 at 55:19- 25.) Yasemin has failed to establish Defendants—or anyone else—“frustrated” her ability to complete discovery prior to the end of fact discovery. ARGUMENT I. MOTION SEQUENCE NO. 45 A. Facts Applicable To This Motion 1. 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.2 (Dkt. 2.) On February 1, 2021, Yasemin served a first set of requests for production, comprised of 87 total requests, specifying “January 1, 2015 until the present” as the relevant time period for responsive documents. 3 (Ex. 1 at 6.) 1 Going forward, all exhibit references will be to the exhibits attached to the Affirmation of Bryan Mohler dated January 30, 2023 filed in opposition to the Motions. 2 Yasemin subsequently amended her Complaint on January 25, 2021 (Dkt. 86) and June 22, 2022 (Dkt. 548). (Mohler Afm. ¶3.) 3 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. (Mohler Afm. ¶4.) 4 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 2. 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. (Mohler Afm. ¶6.) 5 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 6 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 4 5 Yasemin seeks to justify her refusal to meet and confer by claiming that the “parties had already met and conferred” (Dkt. 966, ¶9) -- this is untrue. The September 6 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. (Mohler Afm. Ex. 14.) 7 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 8 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 5. A 9 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 10 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 6. 11 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 12 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 CPLR 3120(2) provides that document demands “shall set forth the items to be inspected, copied, tested or photographed by individual item or by category, and shall describe each item and category with reasonable particularity.” Courts routinely refuse to sustain discovery demands where, as here, the requesting party seeks “all” or “any” documents concerning exceedingly broad subject matter. See, e.g., Gilbert-Frank Corp. v. Guardsman Life Ins. Co., 78 A.D.2d 798, 798-99 (1st Dep’t 1980); Thomas v. Holzberg, 227 A.D.2d 175, 176 (1st Dep’t 1996); Degliuomini v. Degliuomini, 308 A.D.2d 501 (N.Y. App. Div. 2d Dep’t 2003); Lauer’s Furniture Stores, Inc. v. Pittsford Place Assocs., 190 A.D.2d 1054, 1055 (4th Dep’t 1993). In such circumstances, “the appropriate remedy is to vacate the entire demand rather than to prune it.” Kregg v. Maldonado, 98 A.D.3d 1289, 1290 (4th Dep’t 2012) (citations omitted); accord Berkowitz v. 29 Woodmere Blvd. Owners’, Inc., 135 A.D.3d 798, 799 (2d Dep’t 2016). 2. 13 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 II. MOTION SEQUENCE NO. 44 A. Facts Applicable To This Motion 1. By August 2021, Defendants Produce 100,000 Documents and Provide a Privilege Log, and Yasemin Waits Nearly a Year to Seek Judicial Intervention 14 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 By August 2021, Defendants had produced 91,558 documents in response to Yasemin’s document requests. (Mohler Afm. ¶28.) On August 27, 2021, Defendants also provided Yasemin with a privilege log that included 9,540 entries. (Id.) Defendants continued to amend their privilege log to reflect withheld documents as they completed their rolling productions. Defendants ultimately provided Yasemin with a privilege log containing 10,563 entries (“Defendants’ Privilege Log”). (Id.) On October 13, 2021, Yasemin asserted objections to Defendants’ Privilege Log. (Id. Ex. 21.) 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.” (Id. ¶30, Ex. 22.) On October 28, 2021, the parties met and conferred regarding, inter alia, Yasemin’s objections to Defendants’ Privilege Log. (Mohler Afm. ¶31, Ex. 23.) 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. (Id. ¶32.) In response, Defendants agreed that they would review the log to confirm that no communications were logged erroneously. (Id.) 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 right as a 15 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 director to access legal advice provided to the Entity Defendants. (Mohler Afm. ¶33, Ex. 24.)10 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. (Mohler Afm. ¶36 Ex. 26.) 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”). (Mohler Afm. ¶37; see Dkt. 377.) 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.) 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 Mohler Afm. ¶38.) 2. Defendants Diligently Comply With the Court’s Order, Re-Reviewing and Producing Over 8,500 Previously Withheld Documents 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.” (Mohler Afm. ¶40; see Dkt. 689.) 10 The same day, Yasemin also emailed to confirm Defendants’ position that communications with certain third parties appearing on the August 2021 Log were privileged because, under the circumstances, those third parties’ inclusion did not waive privilege. (Ex. 25.) Defendants confirmed, and told Yasemin that they would agree to Yasemin amending her pending Rule 14 letter to add this issue. (Id. ¶35.) Yasemin declined to do so. (Id..) 16 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 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. (Ex. 13 at 22:22-23:5 (emphasis added).) Defendants fully complied with that directive. (Id. ¶43.) After the August 15 hearing, Defendants undertook a re-review of 11,64111 documents from Defendants’ privilege log and 353 documents from Zeynep’s privilege log.12 (Id.) Because it turned on application of the fiduciary exception—and exceptions to the fiduciary exception—Defendants’ re-review required a detailed, complicated analysis. Defendants made every effort to complete the review expeditiously. (Id. ¶45.) On a rolling basis, over the next 60 days Defendants de-designated and produced over 8,500 documents previously withheld as privileged. (Id. ¶46.) 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. (Id.) Defendants also provided a cross-reference which identified the Bates numbers for each document previously logged as privileged. (Id.) 3. After Yet More Delay, Yasemin Again Makes Unsubstantiated Claims That Non-Privileged Documents Were Being Improperly Withheld 11 In her motion, Yasemin 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. (Mohler Afm. ¶43.) 12 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. (Mohler Afm., ¶44.) 17 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 Following Defendants’ re-review and supplemental production of de-designated documents, Yasemin vaguely claimed that non-privileged documents were still being withheld,13 but never sought to meet and confer or provide any details to substantiate her claims. (Mohler Afm. ¶47.) 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. (Id. ¶49 Ex. 28.) 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 id.) (accusing Defendants of “inexplicably” continuing to withhold 1,069 documents as privileged). By letter dated November 30, 2022, Defendants responded, explaining there is nothing inexplicable 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. (Id. ¶51 Ex. 29.) The Court thereafter held a Rule 14 conference on December 5, 2022 (the “December 5 Conference”). Addressing this issue, Ms. Klinger directed Yasemin to specifically identify any logged documents on Defendants’ Amended Privilege Log she contended in good faith were not privileged. (Id. ¶52.) 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. 13 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 provided no details or basis for that claim in her October 24, 2022 submission. (See Dkt. 805 at 7.) 18 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574 RECEIVED NYSCEF: 04/12/2023 (Id. ¶53.) 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. (Id. ¶54.) 4. Defying the Court’s Instructions, Yasemin Fails To Specifically Identify Allegedly Improperly Withheld Documents, Then Waits Until Days Before the Close of Discovery to Seek Relief Rather than proceeding with appropriate urgency given the impending close of discovery, Yasemin waited 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. (Id. ¶55.) 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. (Id. Ex. 30.) The analysis provided by Yasemin (in its entirety) is as follows: Green – Emails/attachments where Jasmin 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 Jasmin’s position within the Company Yellow – Insufficient information in privilege log (recipients of texts are not listed) Gray – Emails/attachments sent while Jasmin was a director/officer at the time (See id.) 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’ social security numbers. (Id. ¶57.) 5. Defendants Re-Re-Review the Amended Log and Supplement Their Production, Rendering This Motion Moot 19 FILED: NEW YORK COUNTY CLERK 04/12/2023 12:19 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1574