Preview
FILED: NEW YORK COUNTY CLERK 05/25/2023 11:50 PM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1645 RECEIVED NYSCEF: 05/25/2023
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 No. 61
-against- AFFIRMATION OF
RACHEL E. SHAW IN
BREMEN HOUSE INC., GERMAN NEWS COMPANY, OPPOSITION TO
INC., BERRIN TEKINER, GONCA TEKINER, and PLAINTIFFS’ MOTION
BILLUR AKIPEK, in her capacity as a Trustee of The SEEKING LEAVE TO
Yasemin Tekiner 2011 Descendants Trust, RENEW
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
Yasemin Tekiner 2011 Descendants Trust,
Defendants.
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
RACHEL E. SHAW, an attorney duly admitted to practice law in the Courts of the State
of New York, affirm the following under penalty of perjury:
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1. I am a partner at Pryor Cashman LLP, attorneys for the Defendants in the above-
captioned action. I have personal knowledge of the facts set forth in this Affirmation and, if called
as a witness, could and would testify competently to such facts under oath.
2. I respectfully submit this Affirmation in opposition to Plaintiffs’ motion seeking
leave to take post-note of issue expert discovery.
A. Plaintiffs’ Lack of Diligence Alone Led to Their Failure to
Complete the Expert Discovery They Now Seek to Belatedly Pursue
3. By order dated July 28, 2022, the Court set the following deadlines: fact discovery
was to be completed by October 17, 2022, CPLR 3101(d) expert disclosure was to be completed
by November 15, 2022, all discovery was to be completed by December 27, 2022, and the note of
issue was to be filed by December 28, 2022. A copy of the So-Ordered Stipulation Setting Revised
Discovery Deadlines, dated July 28, 2022, is attached hereto as Exhibit 1.
4. During the discovery period, Plaintiffs served 206 document requests on
Defendants and 21 subpoenas on non-parties. Yet, by the court-ordered close of fact discovery,
Plaintiffs had taken just one non-party deposition. (A copy of the Affirmation of Meghan E. Hill
in Opposition to Plaintiffs’ Motion to Compel and to Appoint a Special Referee, dated October 19,
2022, is attached hereto as Exhibit 2.) Plaintiffs had not received – or pursued – document
discovery from the majority of the non-parties they subpoenaed. Their first motion to compel any
non-party discovery was first brought on December 27, 2022 – the day the discovery period
expired. A copy of Plaintiff Yasemin Tekiner’s Notice of Motion to Compel Records and
Depositions, dated December 27, 2022, is attached hereto as Exhibit 3.
5. Plaintiffs brought a total of five different discovery motions between December 21,
2022 and January 10, 2023 (collectively, the “Discovery Motions”). Yasemin brought three
motions to compel (Mot. Seqs. 44, 45, 47), and both Plaintiffs jointly brought one motion for leave
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to take post-note of issue discovery (Mot. Seq. 42) and one motion to vacate the note of issue (Mot.
Seq. 46). A copy of Plaintiffs’ Memorandum of Law in Support of their Oder to Show Cause for
Leave to Take Post-Note of Issue Discovery and, Alternatively, for a Case Management
Conference and/or to Appoint a Special Discovery Master, dated December 24, 2022, is attached
hereto as Exhibit 4.
6. In support of these motions, Plaintiffs argued, among other things, that they were
entitled to an “extension of expert disclosure.” Plaintiffs made this request for an “extension” on
December 24, 2022, five weeks after the Court-ordered deadline for expert disclosure had passed
and three days before the Court-ordered close of all discovery in the case.
7. Plaintiffs did not specify what this “extension” would entail. Rather, their entire
argument on the subject was:
As detailed above, fact discovery is not complete.
Accordingly, Plaintiffs cannot know exactly what experts it
needs. While Plaintiffs intend to disclose certain experts, it
is entirely unreasonable to require expert disclosures before
fact discovery is completed – particularly given that it is
Defendants who are obstructing the completion of fact
discovery.
8. But as Defendants and the Court have since learned, Plaintiffs entire argument
concerning Defendants’ so-called obstructionist behavior was a fiction. As Yasemin later
admitted, the reason Plaintiffs did not diligently complete fact discovery – the supposed
prerequisite to their completion of expert discovery – is because their attorneys were not getting
paid and they stopped working. As Yasemin explicitly stated: “My attorneys failed to complete
discovery and the Court denied their request to take post note of issue expert discovery.”
9. As Yasemin herself conceded: “My attorneys failed to complete discovery and the
Court denied their request to take post note of issue expert discovery.” (Affidavit of Yasemin
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Tekiner sworn to March 22, 2023, submitted in opposition to PIB, Foley Hoag LLP and Kan &
Goldberg’s motions to withdraw, a copy of which is annexed hereto as Exhibit 5.)
10. By email dated December 16, 2022 – the very same day counsel for Yasemin,
Parker Ibrahim & Berg, issued a letter claiming it was Defendants who were dilatory in completing
discovery – that same counsel wrote to Plaintiffs, directly, stating:
As a result, this morning, we instructed our entire firm to
stand down on anything related to this file. We will no longer
continue to work on this case…we will be filing our
withdrawal from this case.
(Email dated December 16, 2022 from Parker Ibrahim and Berg’s (“PIB”) to Plaintiffs (and others),
a copy of which is annexed hereto as Exhibit 6.)
11. In Yasemin’s opposition to PIB’s motion to withdraw, Yasemin herself stated:
PIB’s work stoppage came at a critical time as discovery was
coming to a close. The Court commented at the hearing on January
12, 2023 that important discovery, including expert discovery, was
not completed in November and December. The Court questioned
by important depositions were not completed between October and
December. PIB’s work stoppage came during this crucial period. It
used its work stoppage to pressure us into paying bills we do not
owe. That work stoppage explains, at least in part, why
important discovery was not completed.
(Affidavit of Yasemin Tekiner, sworn to February 16, 2023, submitted in opposition to PIB’s
motion to withdraw, a copy of which is annexed hereto as Exhibit 7; emphasis added, internal
citations omitted.)
12. Yasemin’s opposition to all three of her law firm’s respective motions to withdraw
further stated:
At this point, PIB, Foley and Kahn banded together, and began an
intense campaign of improper threats to stop work and withdraw
from the case, during the critical period as all discovery was coming
to a close, while key depositions were not completed, and expert
discovery had not even begun…They did this to pressure Jasmin
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and Zeynep to pay amounts that were above and beyond the agreed
upon [redacted] fee.
(Plaintiffs’ Memorandum of Law in Opposition to PIB, Foley Hoag LLP and Kahn & Goldberg
LLP’s motions to withdraw dated March 22, 2023, a copy of which is annexed hereto as Exhibit
8; emphasis added, internal citations omitted.)
13. Yasemin further admitted that Plaintiffs’ failure to complete expert discovery was
due to her attorneys threatening to withdraw:
Although these bills were not due, Mr. Younger sent a barrage of
emails on a daily basis threatening to stop work as the deadline for
completing depositions and expert discovery was only days away,
unless he and Ms. Kahn were paid immediately. Jasmin and Zeynep
paid those bills on December 22, 2022, less than a week after
receiving them. Nonetheless, Foley and Kahn failed to complete
discovery on time, as this court held in its ruling from the bench on
February 17, 2022. The failure of Foley, Kahn and PIB to
complete discovery within the deadline severely prejudice (sic)
Jasmin and Zeynep by leaving them without the opportunity to
take expert discovery, take important depositions and obtain
additional important documentary evidence.
14. Put simply, as we now know, Plaintiffs’ failure to complete expert discovery by the
court-mandated deadline was entirely of their own doing.
B. The Court Permits Certain Fact Discovery but Denies Plaintiffs’
Request for An Extension of the Deadline for Expert Discovery
15. At the February 17, 2023 hearing on Plaintiffs’ discovery motions, the Court began
by observing that the completion of discovery Plaintiffs sought “should have happened during the
end of [2022].” The Court also established the standard by which it would evaluate and decide
Plaintiffs’ discovery motions, stating:
So, in the motions I have in front of me today, plaintiffs must
demonstrate both: That the disclosure they seek is limited to matters
which are material and necessary to the prosecution or defense of
the action. And that they did not waive their right to seek that
discovery by failing to seek such discovery at an earlier time.
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(Transcript of the February 17, 2023 hearing, a copy of which is annexed hereto as Exhibit 9;
emphasis added.)
16. On that basis, the Court granted in part and denied in part Plaintiffs’ discovery
motions. Specifically, the Court limited post-note of issue discovery “simply to certain clean-up
items.” Those “clean-up items” were limited to (i) permitting Santander Bank (“Santander”) and
Wilmington Savings Fund Society, FSB d/b/a Bryn Mawr Trust (formally known as Christiana
Trust, a division of Wilmington Savings Fund Society, FSB) (“WSFS”) to produce documents that
had already been collected and prepared for production; and (ii) completing the depositions of
certain non-parties, including Paul Schwartzman, as well as the re-deposition of defendant Billur
Akipek.
17. The Court denied the Discovery Motions as to all other relief sought, including
Plaintiffs’ request for an extension of expert discovery. At the hearing, Plaintiffs specified the
relief they sought with respect to expert discovery: “we would submit that after whatever limited
discovery, you know, circumscribed discovery that Your Honor grants plaintiffs, there would be a
time for expert -- disclosure of expert reports, rebuttal expert reports and then expert depositions.”
18. The Court sought clarification from Yasemin’s counsel: “what you are now asking
for, I guess, is an entire period of expert discovery, which should have happened during the time
period where everybody was directed to do it.”
19. Yasemin’s counsel confirmed, stating:
MR. WEISSMAN: Yes, I think the key point here is that the
discovery that was -- that we have been unable to get, is the kind of
discovery that is necessary for the expert to base their opinion on.
And that’s the financial records. And so we would submit that once
we get -- once we are able to access that full suite of financial
records, once we have gotten testimony from the company
bookkeeper, and once we have gotten testimony from defendant
Billur, that’s enough. Then we will have the facts on which our
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experts will be able to opine. But without those documents, it is
sort of an empty exercise.
THE COURT: So, in effect you want me to reopen the entire
schedule and kind of go back to last summer, because that’s
essentially how much time you are adding.
MR. WEISSMAN: Yes, Your Honor.
(emphasis added.)
20. After argument, the Court denied Plaintiffs’ motion for post-note of issue expert
discovery, holding as follows:
The final thing is, post-note of issue expert discovery. I am not
inclined to do it. I am somewhat frustrated that basic processes like
expert discovery just seem to sail by without anyone doing
anything. … I think to open up expert discovery now would add
months to this process. And you know, schedules have to mean
something, and they do. (emphasis added)
21. The Court added that it “might consider” allowing for expert discovery “if both
sides” requested it “after summary judgment” and only “as long as [conducting expert discovery]
doesn’t delay things.”
22. Immediately following the deposition of Paul Schwartzman on May 11, 2023,
Plaintiffs requested an extension of the expert discovery schedule. A copy of Plaintiffs’ May 12,
2023 email asking for Defendants’ consent to conduct expert discovery is attached hereto as
Exhibit 10.
C. The Parties Complete Court-Ordered Discovery
23. Following the February 17, 2023 hearing, discovery proceeded according to the
Court’s order. Santander completed its production in February 2023. Plaintiffs deposed Billur
Akipek on March 14, 2023, Denise Baumann on March 29, 2023, Sadan Gurbuzturk on March 31,
2023, and Paul Schwartzman on May 11, 2023.
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24. In advance of Mr. Schwartzman’s deposition, Defendants revisited the accounting
software Mr. Schwartzman had sold to the Company (the “Raish Software”), which Defendants
understood to be non-operational since 2019 (the year the Company migrated to using
QuickBooks). During discovery, Defendants produced a number of documents that were
downloaded from the Raish system while it was operational and maintained in the Company’s
files.
25. Defendants learned that, while the Raish Software is not operational, some archival
data could be retrieved. Id. Accordingly, on April 27, 2023, Defendants produced certain archival
documents from Raish, including the general ledgers of each of Bremen House and German News
for the period 2015 through 2019 (2019 being the last year the Company used Raish software
before migrating to QuickBooks) (collectively, the “Raish Production”). (Defendants’ April 27,
2023 transmittal letter, a copy of which is annexed hereto as Exhibit 11.)
26. A true and correct copy of the Transcript of the December 19, 2022 hearing is
annexed hereto as Exhibit 12.
WHEREFORE, I respectfully request that Plaintiffs’ Motion be denied in its entirety and
that the Court award such other and further relief to Defendants as may be just and proper.
Dated: New York, New York
May 25, 2023
RACHEL E. SHAW
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Certification Required by Rule 17 of the
Rules of the Commercial Division of the Supreme Court
I am the attorney who is filing this document. I hereby certify that this document, exclusive
of the caption, table of contents, table of authorities, and signature block contains fewer than 7,000
words as counted by the word-processing system used to prepare the document.
_____________
Meghan E. Hill
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Preview
FILED: NEW YORK COUNTY CLERK 05/25/2023 11:50 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1645 RECEIVED NYSCEF: 05/25/2023 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 No. 61 -against- AFFIRMATION OF RACHEL E. SHAW IN BREMEN HOUSE INC., GERMAN NEWS COMPANY, OPPOSITION TO INC., BERRIN TEKINER, GONCA TEKINER, and PLAINTIFFS’ MOTION BILLUR AKIPEK, in her capacity as a Trustee of The SEEKING LEAVE TO Yasemin Tekiner 2011 Descendants Trust, RENEW 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 Yasemin Tekiner 2011 Descendants Trust, Defendants. STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) RACHEL E. SHAW, an attorney duly admitted to practice law in the Courts of the State of New York, affirm the following under penalty of perjury: 1 of 9 FILED: NEW YORK COUNTY CLERK 05/25/2023 11:50 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1645 RECEIVED NYSCEF: 05/25/2023 1. I am a partner at Pryor Cashman LLP, attorneys for the Defendants in the above- captioned action. I have personal knowledge of the facts set forth in this Affirmation and, if called as a witness, could and would testify competently to such facts under oath. 2. I respectfully submit this Affirmation in opposition to Plaintiffs’ motion seeking leave to take post-note of issue expert discovery. A. Plaintiffs’ Lack of Diligence Alone Led to Their Failure to Complete the Expert Discovery They Now Seek to Belatedly Pursue 3. By order dated July 28, 2022, the Court set the following deadlines: fact discovery was to be completed by October 17, 2022, CPLR 3101(d) expert disclosure was to be completed by November 15, 2022, all discovery was to be completed by December 27, 2022, and the note of issue was to be filed by December 28, 2022. A copy of the So-Ordered Stipulation Setting Revised Discovery Deadlines, dated July 28, 2022, is attached hereto as Exhibit 1. 4. During the discovery period, Plaintiffs served 206 document requests on Defendants and 21 subpoenas on non-parties. Yet, by the court-ordered close of fact discovery, Plaintiffs had taken just one non-party deposition. (A copy of the Affirmation of Meghan E. Hill in Opposition to Plaintiffs’ Motion to Compel and to Appoint a Special Referee, dated October 19, 2022, is attached hereto as Exhibit 2.) Plaintiffs had not received – or pursued – document discovery from the majority of the non-parties they subpoenaed. Their first motion to compel any non-party discovery was first brought on December 27, 2022 – the day the discovery period expired. A copy of Plaintiff Yasemin Tekiner’s Notice of Motion to Compel Records and Depositions, dated December 27, 2022, is attached hereto as Exhibit 3. 5. Plaintiffs brought a total of five different discovery motions between December 21, 2022 and January 10, 2023 (collectively, the “Discovery Motions”). Yasemin brought three motions to compel (Mot. Seqs. 44, 45, 47), and both Plaintiffs jointly brought one motion for leave 2 2 of 9 FILED: NEW YORK COUNTY CLERK 05/25/2023 11:50 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1645 RECEIVED NYSCEF: 05/25/2023 to take post-note of issue discovery (Mot. Seq. 42) and one motion to vacate the note of issue (Mot. Seq. 46). A copy of Plaintiffs’ Memorandum of Law in Support of their Oder to Show Cause for Leave to Take Post-Note of Issue Discovery and, Alternatively, for a Case Management Conference and/or to Appoint a Special Discovery Master, dated December 24, 2022, is attached hereto as Exhibit 4. 6. In support of these motions, Plaintiffs argued, among other things, that they were entitled to an “extension of expert disclosure.” Plaintiffs made this request for an “extension” on December 24, 2022, five weeks after the Court-ordered deadline for expert disclosure had passed and three days before the Court-ordered close of all discovery in the case. 7. Plaintiffs did not specify what this “extension” would entail. Rather, their entire argument on the subject was: As detailed above, fact discovery is not complete. Accordingly, Plaintiffs cannot know exactly what experts it needs. While Plaintiffs intend to disclose certain experts, it is entirely unreasonable to require expert disclosures before fact discovery is completed – particularly given that it is Defendants who are obstructing the completion of fact discovery. 8. But as Defendants and the Court have since learned, Plaintiffs entire argument concerning Defendants’ so-called obstructionist behavior was a fiction. As Yasemin later admitted, the reason Plaintiffs did not diligently complete fact discovery – the supposed prerequisite to their completion of expert discovery – is because their attorneys were not getting paid and they stopped working. As Yasemin explicitly stated: “My attorneys failed to complete discovery and the Court denied their request to take post note of issue expert discovery.” 9. As Yasemin herself conceded: “My attorneys failed to complete discovery and the Court denied their request to take post note of issue expert discovery.” (Affidavit of Yasemin 3 3 of 9 FILED: NEW YORK COUNTY CLERK 05/25/2023 11:50 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1645 RECEIVED NYSCEF: 05/25/2023 Tekiner sworn to March 22, 2023, submitted in opposition to PIB, Foley Hoag LLP and Kan & Goldberg’s motions to withdraw, a copy of which is annexed hereto as Exhibit 5.) 10. By email dated December 16, 2022 – the very same day counsel for Yasemin, Parker Ibrahim & Berg, issued a letter claiming it was Defendants who were dilatory in completing discovery – that same counsel wrote to Plaintiffs, directly, stating: As a result, this morning, we instructed our entire firm to stand down on anything related to this file. We will no longer continue to work on this case…we will be filing our withdrawal from this case. (Email dated December 16, 2022 from Parker Ibrahim and Berg’s (“PIB”) to Plaintiffs (and others), a copy of which is annexed hereto as Exhibit 6.) 11. In Yasemin’s opposition to PIB’s motion to withdraw, Yasemin herself stated: PIB’s work stoppage came at a critical time as discovery was coming to a close. The Court commented at the hearing on January 12, 2023 that important discovery, including expert discovery, was not completed in November and December. The Court questioned by important depositions were not completed between October and December. PIB’s work stoppage came during this crucial period. It used its work stoppage to pressure us into paying bills we do not owe. That work stoppage explains, at least in part, why important discovery was not completed. (Affidavit of Yasemin Tekiner, sworn to February 16, 2023, submitted in opposition to PIB’s motion to withdraw, a copy of which is annexed hereto as Exhibit 7; emphasis added, internal citations omitted.) 12. Yasemin’s opposition to all three of her law firm’s respective motions to withdraw further stated: At this point, PIB, Foley and Kahn banded together, and began an intense campaign of improper threats to stop work and withdraw from the case, during the critical period as all discovery was coming to a close, while key depositions were not completed, and expert discovery had not even begun…They did this to pressure Jasmin 4 4 of 9 FILED: NEW YORK COUNTY CLERK 05/25/2023 11:50 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1645 RECEIVED NYSCEF: 05/25/2023 and Zeynep to pay amounts that were above and beyond the agreed upon [redacted] fee. (Plaintiffs’ Memorandum of Law in Opposition to PIB, Foley Hoag LLP and Kahn & Goldberg LLP’s motions to withdraw dated March 22, 2023, a copy of which is annexed hereto as Exhibit 8; emphasis added, internal citations omitted.) 13. Yasemin further admitted that Plaintiffs’ failure to complete expert discovery was due to her attorneys threatening to withdraw: Although these bills were not due, Mr. Younger sent a barrage of emails on a daily basis threatening to stop work as the deadline for completing depositions and expert discovery was only days away, unless he and Ms. Kahn were paid immediately. Jasmin and Zeynep paid those bills on December 22, 2022, less than a week after receiving them. Nonetheless, Foley and Kahn failed to complete discovery on time, as this court held in its ruling from the bench on February 17, 2022. The failure of Foley, Kahn and PIB to complete discovery within the deadline severely prejudice (sic) Jasmin and Zeynep by leaving them without the opportunity to take expert discovery, take important depositions and obtain additional important documentary evidence. 14. Put simply, as we now know, Plaintiffs’ failure to complete expert discovery by the court-mandated deadline was entirely of their own doing. B. The Court Permits Certain Fact Discovery but Denies Plaintiffs’ Request for An Extension of the Deadline for Expert Discovery 15. At the February 17, 2023 hearing on Plaintiffs’ discovery motions, the Court began by observing that the completion of discovery Plaintiffs sought “should have happened during the end of [2022].” The Court also established the standard by which it would evaluate and decide Plaintiffs’ discovery motions, stating: So, in the motions I have in front of me today, plaintiffs must demonstrate both: That the disclosure they seek is limited to matters which are material and necessary to the prosecution or defense of the action. And that they did not waive their right to seek that discovery by failing to seek such discovery at an earlier time. 5 5 of 9 FILED: NEW YORK COUNTY CLERK 05/25/2023 11:50 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1645 RECEIVED NYSCEF: 05/25/2023 (Transcript of the February 17, 2023 hearing, a copy of which is annexed hereto as Exhibit 9; emphasis added.) 16. On that basis, the Court granted in part and denied in part Plaintiffs’ discovery motions. Specifically, the Court limited post-note of issue discovery “simply to certain clean-up items.” Those “clean-up items” were limited to (i) permitting Santander Bank (“Santander”) and Wilmington Savings Fund Society, FSB d/b/a Bryn Mawr Trust (formally known as Christiana Trust, a division of Wilmington Savings Fund Society, FSB) (“WSFS”) to produce documents that had already been collected and prepared for production; and (ii) completing the depositions of certain non-parties, including Paul Schwartzman, as well as the re-deposition of defendant Billur Akipek. 17. The Court denied the Discovery Motions as to all other relief sought, including Plaintiffs’ request for an extension of expert discovery. At the hearing, Plaintiffs specified the relief they sought with respect to expert discovery: “we would submit that after whatever limited discovery, you know, circumscribed discovery that Your Honor grants plaintiffs, there would be a time for expert -- disclosure of expert reports, rebuttal expert reports and then expert depositions.” 18. The Court sought clarification from Yasemin’s counsel: “what you are now asking for, I guess, is an entire period of expert discovery, which should have happened during the time period where everybody was directed to do it.” 19. Yasemin’s counsel confirmed, stating: MR. WEISSMAN: Yes, I think the key point here is that the discovery that was -- that we have been unable to get, is the kind of discovery that is necessary for the expert to base their opinion on. And that’s the financial records. And so we would submit that once we get -- once we are able to access that full suite of financial records, once we have gotten testimony from the company bookkeeper, and once we have gotten testimony from defendant Billur, that’s enough. Then we will have the facts on which our 6 6 of 9 FILED: NEW YORK COUNTY CLERK 05/25/2023 11:50 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1645 RECEIVED NYSCEF: 05/25/2023 experts will be able to opine. But without those documents, it is sort of an empty exercise. THE COURT: So, in effect you want me to reopen the entire schedule and kind of go back to last summer, because that’s essentially how much time you are adding. MR. WEISSMAN: Yes, Your Honor. (emphasis added.) 20. After argument, the Court denied Plaintiffs’ motion for post-note of issue expert discovery, holding as follows: The final thing is, post-note of issue expert discovery. I am not inclined to do it. I am somewhat frustrated that basic processes like expert discovery just seem to sail by without anyone doing anything. … I think to open up expert discovery now would add months to this process. And you know, schedules have to mean something, and they do. (emphasis added) 21. The Court added that it “might consider” allowing for expert discovery “if both sides” requested it “after summary judgment” and only “as long as [conducting expert discovery] doesn’t delay things.” 22. Immediately following the deposition of Paul Schwartzman on May 11, 2023, Plaintiffs requested an extension of the expert discovery schedule. A copy of Plaintiffs’ May 12, 2023 email asking for Defendants’ consent to conduct expert discovery is attached hereto as Exhibit 10. C. The Parties Complete Court-Ordered Discovery 23. Following the February 17, 2023 hearing, discovery proceeded according to the Court’s order. Santander completed its production in February 2023. Plaintiffs deposed Billur Akipek on March 14, 2023, Denise Baumann on March 29, 2023, Sadan Gurbuzturk on March 31, 2023, and Paul Schwartzman on May 11, 2023. 7 7 of 9 FILED: NEW YORK COUNTY CLERK 05/25/2023 11:50 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1645 RECEIVED NYSCEF: 05/25/2023 24. In advance of Mr. Schwartzman’s deposition, Defendants revisited the accounting software Mr. Schwartzman had sold to the Company (the “Raish Software”), which Defendants understood to be non-operational since 2019 (the year the Company migrated to using QuickBooks). During discovery, Defendants produced a number of documents that were downloaded from the Raish system while it was operational and maintained in the Company’s files. 25. Defendants learned that, while the Raish Software is not operational, some archival data could be retrieved. Id. Accordingly, on April 27, 2023, Defendants produced certain archival documents from Raish, including the general ledgers of each of Bremen House and German News for the period 2015 through 2019 (2019 being the last year the Company used Raish software before migrating to QuickBooks) (collectively, the “Raish Production”). (Defendants’ April 27, 2023 transmittal letter, a copy of which is annexed hereto as Exhibit 11.) 26. A true and correct copy of the Transcript of the December 19, 2022 hearing is annexed hereto as Exhibit 12. WHEREFORE, I respectfully request that Plaintiffs’ Motion be denied in its entirety and that the Court award such other and further relief to Defendants as may be just and proper. Dated: New York, New York May 25, 2023 RACHEL E. SHAW 8 8 of 9 FILED: NEW YORK COUNTY CLERK 05/25/2023 11:50 PM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1645 RECEIVED NYSCEF: 05/25/2023 Certification Required by Rule 17 of the Rules of the Commercial Division of the Supreme Court I am the attorney who is filing this document. I hereby certify that this document, exclusive of the caption, table of contents, table of authorities, and signature block contains fewer than 7,000 words as counted by the word-processing system used to prepare the document. _____________ Meghan E. Hill 9 9 of 9