Preview
FILED: NEW YORK COUNTY CLERK 08/29/2012 INDEX NO. 650159/2010
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 08/29/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
HARVEY RUDMAN and HAROLD
KUPLESKY, on Behalf of Each of Them
Individually and on Behalf of Starrett City
Preservation LLC, Derivatively,
Plaintiffs, Index No. 650159/2010
-against- Motion Seq. No. 005
CAROL GRAM DEANE, THE ESTATE OF AFFIDAVIT OF STUART KOTLER IN
DISQUE D. DEANE by CAROL G. DEANE, OPPOSITION TO PLAINTIFFS' MOTION
as TEMPORARY EXECUTRIX, SALT TO COMPEL DOCUMENTS AND
KETTLE LLC, ST. GERVAIS LLC, and TESTIMONY
STARRETT CITY PRESERVATION LLC,
DD SPRING CREEK LLC, SK SPRING
CREEK LLC, SPRING CREEK PLAZA LLC,
DD SHOPPING CENTER LLC and SK
SHOPPING CENTER LLC,
Defendants.
STATE OF NEW YORK
)ss.
COUNTY OF NEW YORK )
STUART KOTLER, being duly sworn, deposes and says:
1. I am the Co-Managing Partner at Berdon LLP ("Berdon"). I make this affidavit
in opposition to plaintiffs' motion to compel documents and testimony,
2. I am fully familiar with the facts and circumstances regarding this motion.
1 In October 2010, Starrett City, Inc. ("SCI"), Starrett City Associates L.P.
("SCA"), Spring Creek Plaza, LLC ("Spring Creek"), SC LP Shopping Center LLC ("SC LP")
and Spring Creek Recreational Fund ("Spring Creek Fund") retained Berdon as their accountants
for the purposes of preparing financial statements and tax returns, Subsequently, in April and
July 2011, Starrett City Preservation LLC ("Preservation") and Saint Gervais, LLC, respectively,
engaged Berdon for tax return preparation services.
Error! Unknown document property name.
Error! Unknown document property name.
4. In October 2010, Berdon was also retained by Warner Partners, P.C. and Newman
& Greenberg ("defense counsel"), by a separate engagement letter, as litigation consultants in
accounting to enable defense counsel to render competent legal advice and representation in this
lawsuit.
5. I was involved in performing work as a litigation consultant for defense counsel.
6. I have reviewed the documents listed on the privilege logs attached as Exhibits A
and B, and those documents all relate to Berdon's work as a litigation consultant. The privilege
log attached as Exhibit A includes the responsive documents over which Berdon is asserting
privilege.
7. I have also reviewed the transcript of my deposition. The questions to which I
declined to respond, citing privilege, relate to Berdon's work as a litigation consultant.
8. Since my deposition, I have confirmed that the billing for general accounting
services was kept separate from the billing for litigation consulting.
9. The standard used to identify work done on litigation consulting issues was
whether the work was being done in order to answer questions by defense counsel about or
related to this litigation (in which case we consider it privileged), or whether the work was
undertaken as part of Berdon's regular accounting and tax work for SCA, SCI, SC LP, Spring
Creek, Spring Creek Fund, St. Gervais or Preservation.
Sworn io before me MARC AUSFRESSER
this '2,4 ay of Au u ? 2 Notary Public, State of New York
No. 02AU4709013
Qualified in Nassau County
Certificate Filed in New.Yort5.County
Commission Expires
Notary Public
2
Error! Unknown document property name.
Error! Unknown document property name.
Exhibit A
Rudman v. Deane
Revised Privile e Log
Ref. No Bates No. Document Date Recipient CC From (Author) Subject Privilege Type Description
B5 10562 4/20/2011 H. Zemel S. Kotler K. Warner Deane Attorney-Client,
Email communication between counsel and
Work Product, Berdon requesting explanation of accounting
Trial Preparation
issues in connection with litigation consultant role
B6 10563 4/20/2011 H. Zemel S. Kotler K. Warner Deane Attorney-Client,
Email communication between counsel and
Work Product, Berdon requesting explanation of accounting
issues in connection with litigation consultant role
Trial Preparation
B12 10608 4/20/2011 H. Zemel S. Kotler K. Warner Limited Liability CompanyAttorney-Client,
Email communication between counsel and
Agreement of SCP, LLC Work Product, Berdon requesting explanation of accounting
issues in connection with litigation consultant role
Trial Preparation
B13 10635 4/20/2011 H. Zemel S. Kotler K. Warner Limited Liability Company Email communication between counsel and
Attorney-Client,
Agreement of SCP, LLC Work Product, Berdon requesting explanation of accounting
issues in connection with litigation consultant role
Trial Preparation
BI4 10662 4/20/2011 H. Zemel S. Kotler K. Warner Limited Liability Company Email communication between counsel and
Attorney-Client,
Agreement of SCP, LLC Work Product, Berdon requesting explanation of accounting
issues in connection with litigation consultant role
Trial Preparation
BI5 10689 5/26/2011 S. Kotler M. Ausfresser H. Zemel Preservation Attorney-Client,Internal Berdon communication regarding
Work Product, discussions with counsel about implications of tax
returns.
Trial Preparation
B16 10690 5/26/2011 S. Kotler M. Ausfresser H. Zemel Preservation Attorney-Client,Internal Berdon communication regarding
Work Product, discussions with counsel about implications of tax
Trial Preparation
returns.
B17 10691 5/26/2011 S. Kotler M. Ausfresser H. Zemel Preservation Attorney-Client,Internal Berdon communication regarding
Work Product, discussions with counsel about implications of tax
Trial Preparation
returns.
B18 10692 5/26/2011 S. Kotler M. Ausfresser H. Zemel Preservation Attorney-Client,Internal Berdon communication regarding
Work Product, discussions with counsel about implications of tax
Trial Preparation
returns.
B38 10730 1/20/2011 J. Pulvirenti & H. M. Ausfresser Email re: litigation meeting
Attorney-Client,Internal Berdon communication regarding Starrett
Zemel Work Product, litigation
Trial Preparation
B67 12003 4/4/2011 I. Sutz S. Kotler H. Zemel Emailing: 8th Floor Attorney-Client,Email communication between Berdon and I. Sutz
Work Product, as follow up to defense counsel request for
Trial Preparation
interpretation of Kls
B68 12004 - 12007 Attachment re: 2009/2010 K Is
Attorney-Client,Draft K 1 s with handwritten notes in order to aid
for Preservation Work Product, defense counsel's understanding in relation to
litigation
Trial Preparation
B69 12008 4/4/2011 I. Sutz S. Kotler H. Zemel Emailing: 8th Floor Attorney-Client,Email communication between Berdon and I. Sutz
Work Product, as follow up to defense counsel request for
Trial Preparation
interpretation of Kls
B70 12009 - 12012 Attachment re: 2009/2010 Kls
Attorney-Client,Draft Kls with handwritten notes in order to aid
for Preservation Work Product, defense counsel's understanding in relation to
Trial Preparation
litigation
Exhibit B
Rudman, et at, V. Deane, et al.
Berdon LLP Litigation Consultant/Kovel Agreement
Privilege Log -
DOC ID
REF. No. BATES DATE FROM TO CC BCC SUBJECT DESCRIPTION PRIVILEGE BASIS
D1 FL - SC -0039164 (N/A) 10/8/10 Ken Warner Stuart Kotler
Iris Sutz; Curt Deane; Deane Litigation.htm Email communication between counsel and Berdon requesting explanation
Attorney-Client; Work
Richard Greenberg; of accounting issues in connection with litigation consultant role
Product; Trial
Steven Yurowitz Preparation
D9 DP - 1 - 012 (N/A) 4/1/11 Hal Zemel Iris Sutz Stuart Kotler Emailing: Bth Floor Email communication between Berdon and I. Sutz as follow up to defense
Attorney-Client, Work
counsel request for interpretation of Kls Product, Trial Prep.
D10 DP - 1 - 013 (N/A) 4/1/11 Hal Zemel Iris Sutz Stuart Kotler Attachment: 2009/2010 K-1
Draft Kls with handwritten notes in order to aid defense counsel's
Attorney-Client, Work
Preservation understanding in relation to litigation Product, Trial Prep.
Dll DP - 1 - 014 (N/A) 4/1/11 Hal Zemel Iris Sutz Stuart Kotler Emailing: 8th Floor Email communication between Berdon and I. Sutz as follow up to defense
Attorney-Client, Work
counsel request for interpretation of Kls Product, Trial Prep.
D12 DP - 1 - 015 (N/A) 4/1/11 Hal Zemel Iris Sutz Stuart Kotler Attachment: 2009/2010 K-1
Draft Kls with handwritten notes in order to aid defense counsel's
Attorney-Client, Work
Preservation understanding in relation to litigation Product, Trial Prep.
D14 DP - 1 - 001 (N/A) 4/20/11 Ken Warner Hal Zemel Stuart Kolter Limited Liability Company Agreement
Email communication between counsel and Berdon requesting explanation
Attorney-Client, Work
of SCP, LLC of accounting issues in connection with litigation consultant role
Product, Trial Prep.
D15 DP - 1 - 003 (N/A) 4/20/11 Ken Warner Hal Zemel Stuart Kolter Limited Liability Company Agreement
Email communication between counsel and Berdon requesting explanation
Attorney-Client, Work
of SCP, LLC of accounting issues in connection with litigation consultant role
Product, Trial Prep.
D16 DP - 1 - 005 (N/A) 4/20/11 Ken Warner Hal Zemel Stuart Kolter Limited Liability Company Agreement
Email communication between counsel and Berdon requesting explanation
Attorney-Client, Work
of SCP, LLC of accounting issues in connection with litigation consultant role
Product, Trial Prep.
017 DP - 1 - 007 (N/A) 4/20/11 Ken Warner Hal Zemel Stuart Kolter Limited Liability Company Agreement
Email communication between counsel and Berdon requesting explanation
Attorney-Client, Work
of SCP, LLC of accounting issues in connection with litigation consultant role
Product, Trial Prep.
D18 DP - 1 - 009 (N/A) 4/20/11 Ken Warner Hal Zemel Stuart Kolter Deane Email communication between counsel and Berdon requesting explanation
Attorney-Client, Work
of accounting issues in connection with litigation consultant role
Product, Trial Prep.
D19 DP - 1 - 010 (N/A) 4/20/11 Ken Warner Hal Zemel Stuart Kolter Deane Email communication between counsel and Berdon requesting explanation
Attorney-Client, Work
of accounting issues in connection with litigation consultant role
Product, Trial Prep.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
HARVEY RUDMAN and HAROLD
KUPLESKY, on Behalf of Each of Them
Individually and on Behalf of Starrett City
Preservation LLC, Derivatively,
Plaintiffs, Index No. 650159/2010
-against- Motion Seq. No. 005
CAROL GRAM DEANE, THE ESTATE OF
DISQUE D. DEANE by CAROL G. DEANE,
as TEMPORARY EXECUTRIX, SALT AFFIRMATION OF SERVICE
KETTLE LLC, ST. GERVAIS LLC, and
STARRETT CITY PRESERVATION LLC,
DD SPRING CREEK LLC, SK SPRING
CREEK LLC, SPRING CREEK PLAZA LLC,
DD SHOPPING CENTER LLC and SK
SHOPPING CENTER LLC,
Defendants.
Jonathan H. Friedman, being duly affirm, deposes and says:
Deponent is not a party to the action, is over 18 years of age and his current business
address is Foley & Lardner LLP, 90 Park Avenue, New York, New York, 10016.
That, on the 28 th day of August, 2012, deponent caused true and correct copies of the
Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion to Compel
Documents and Testimony, Affirmation of Kenneth E. Warner and Affidavit of Stuart
Kotler in Support by filing the said documents with the court's electronic filing system, thereby
causing the notification of all parties involved via the court's electronic advisory method.
Dated: New York, New York
August 28, 2012
Jonathan H. Friedman
Preview
FILED: NEW YORK COUNTY CLERK 08/29/2012 INDEX NO. 650159/2010 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 08/29/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HARVEY RUDMAN and HAROLD KUPLESKY, on Behalf of Each of Them Individually and on Behalf of Starrett City Preservation LLC, Derivatively, Plaintiffs, Index No. 650159/2010 -against- Motion Seq. No. 005 CAROL GRAM DEANE, THE ESTATE OF AFFIDAVIT OF STUART KOTLER IN DISQUE D. DEANE by CAROL G. DEANE, OPPOSITION TO PLAINTIFFS' MOTION as TEMPORARY EXECUTRIX, SALT TO COMPEL DOCUMENTS AND KETTLE LLC, ST. GERVAIS LLC, and TESTIMONY STARRETT CITY PRESERVATION LLC, DD SPRING CREEK LLC, SK SPRING CREEK LLC, SPRING CREEK PLAZA LLC, DD SHOPPING CENTER LLC and SK SHOPPING CENTER LLC, Defendants. STATE OF NEW YORK )ss. COUNTY OF NEW YORK ) STUART KOTLER, being duly sworn, deposes and says: 1. I am the Co-Managing Partner at Berdon LLP ("Berdon"). I make this affidavit in opposition to plaintiffs' motion to compel documents and testimony, 2. I am fully familiar with the facts and circumstances regarding this motion. 1 In October 2010, Starrett City, Inc. ("SCI"), Starrett City Associates L.P. ("SCA"), Spring Creek Plaza, LLC ("Spring Creek"), SC LP Shopping Center LLC ("SC LP") and Spring Creek Recreational Fund ("Spring Creek Fund") retained Berdon as their accountants for the purposes of preparing financial statements and tax returns, Subsequently, in April and July 2011, Starrett City Preservation LLC ("Preservation") and Saint Gervais, LLC, respectively, engaged Berdon for tax return preparation services. Error! Unknown document property name. Error! Unknown document property name. 4. In October 2010, Berdon was also retained by Warner Partners, P.C. and Newman & Greenberg ("defense counsel"), by a separate engagement letter, as litigation consultants in accounting to enable defense counsel to render competent legal advice and representation in this lawsuit. 5. I was involved in performing work as a litigation consultant for defense counsel. 6. I have reviewed the documents listed on the privilege logs attached as Exhibits A and B, and those documents all relate to Berdon's work as a litigation consultant. The privilege log attached as Exhibit A includes the responsive documents over which Berdon is asserting privilege. 7. I have also reviewed the transcript of my deposition. The questions to which I declined to respond, citing privilege, relate to Berdon's work as a litigation consultant. 8. Since my deposition, I have confirmed that the billing for general accounting services was kept separate from the billing for litigation consulting. 9. The standard used to identify work done on litigation consulting issues was whether the work was being done in order to answer questions by defense counsel about or related to this litigation (in which case we consider it privileged), or whether the work was undertaken as part of Berdon's regular accounting and tax work for SCA, SCI, SC LP, Spring Creek, Spring Creek Fund, St. Gervais or Preservation. Sworn io before me MARC AUSFRESSER this '2,4 ay of Au u ? 2 Notary Public, State of New York No. 02AU4709013 Qualified in Nassau County Certificate Filed in New.Yort5.County Commission Expires Notary Public 2 Error! Unknown document property name. Error! Unknown document property name. Exhibit A Rudman v. Deane Revised Privile e Log Ref. No Bates No. Document Date Recipient CC From (Author) Subject Privilege Type Description B5 10562 4/20/2011 H. Zemel S. Kotler K. Warner Deane Attorney-Client, Email communication between counsel and Work Product, Berdon requesting explanation of accounting Trial Preparation issues in connection with litigation consultant role B6 10563 4/20/2011 H. Zemel S. Kotler K. Warner Deane Attorney-Client, Email communication between counsel and Work Product, Berdon requesting explanation of accounting issues in connection with litigation consultant role Trial Preparation B12 10608 4/20/2011 H. Zemel S. Kotler K. Warner Limited Liability CompanyAttorney-Client, Email communication between counsel and Agreement of SCP, LLC Work Product, Berdon requesting explanation of accounting issues in connection with litigation consultant role Trial Preparation B13 10635 4/20/2011 H. Zemel S. Kotler K. Warner Limited Liability Company Email communication between counsel and Attorney-Client, Agreement of SCP, LLC Work Product, Berdon requesting explanation of accounting issues in connection with litigation consultant role Trial Preparation BI4 10662 4/20/2011 H. Zemel S. Kotler K. Warner Limited Liability Company Email communication between counsel and Attorney-Client, Agreement of SCP, LLC Work Product, Berdon requesting explanation of accounting issues in connection with litigation consultant role Trial Preparation BI5 10689 5/26/2011 S. Kotler M. Ausfresser H. Zemel Preservation Attorney-Client,Internal Berdon communication regarding Work Product, discussions with counsel about implications of tax returns. Trial Preparation B16 10690 5/26/2011 S. Kotler M. Ausfresser H. Zemel Preservation Attorney-Client,Internal Berdon communication regarding Work Product, discussions with counsel about implications of tax Trial Preparation returns. B17 10691 5/26/2011 S. Kotler M. Ausfresser H. Zemel Preservation Attorney-Client,Internal Berdon communication regarding Work Product, discussions with counsel about implications of tax Trial Preparation returns. B18 10692 5/26/2011 S. Kotler M. Ausfresser H. Zemel Preservation Attorney-Client,Internal Berdon communication regarding Work Product, discussions with counsel about implications of tax Trial Preparation returns. B38 10730 1/20/2011 J. Pulvirenti & H. M. Ausfresser Email re: litigation meeting Attorney-Client,Internal Berdon communication regarding Starrett Zemel Work Product, litigation Trial Preparation B67 12003 4/4/2011 I. Sutz S. Kotler H. Zemel Emailing: 8th Floor Attorney-Client,Email communication between Berdon and I. Sutz Work Product, as follow up to defense counsel request for Trial Preparation interpretation of Kls B68 12004 - 12007 Attachment re: 2009/2010 K Is Attorney-Client,Draft K 1 s with handwritten notes in order to aid for Preservation Work Product, defense counsel's understanding in relation to litigation Trial Preparation B69 12008 4/4/2011 I. Sutz S. Kotler H. Zemel Emailing: 8th Floor Attorney-Client,Email communication between Berdon and I. Sutz Work Product, as follow up to defense counsel request for Trial Preparation interpretation of Kls B70 12009 - 12012 Attachment re: 2009/2010 Kls Attorney-Client,Draft Kls with handwritten notes in order to aid for Preservation Work Product, defense counsel's understanding in relation to Trial Preparation litigation Exhibit B Rudman, et at, V. Deane, et al. Berdon LLP Litigation Consultant/Kovel Agreement Privilege Log - DOC ID REF. No. BATES DATE FROM TO CC BCC SUBJECT DESCRIPTION PRIVILEGE BASIS D1 FL - SC -0039164 (N/A) 10/8/10 Ken Warner Stuart Kotler Iris Sutz; Curt Deane; Deane Litigation.htm Email communication between counsel and Berdon requesting explanation Attorney-Client; Work Richard Greenberg; of accounting issues in connection with litigation consultant role Product; Trial Steven Yurowitz Preparation D9 DP - 1 - 012 (N/A) 4/1/11 Hal Zemel Iris Sutz Stuart Kotler Emailing: Bth Floor Email communication between Berdon and I. Sutz as follow up to defense Attorney-Client, Work counsel request for interpretation of Kls Product, Trial Prep. D10 DP - 1 - 013 (N/A) 4/1/11 Hal Zemel Iris Sutz Stuart Kotler Attachment: 2009/2010 K-1 Draft Kls with handwritten notes in order to aid defense counsel's Attorney-Client, Work Preservation understanding in relation to litigation Product, Trial Prep. Dll DP - 1 - 014 (N/A) 4/1/11 Hal Zemel Iris Sutz Stuart Kotler Emailing: 8th Floor Email communication between Berdon and I. Sutz as follow up to defense Attorney-Client, Work counsel request for interpretation of Kls Product, Trial Prep. D12 DP - 1 - 015 (N/A) 4/1/11 Hal Zemel Iris Sutz Stuart Kotler Attachment: 2009/2010 K-1 Draft Kls with handwritten notes in order to aid defense counsel's Attorney-Client, Work Preservation understanding in relation to litigation Product, Trial Prep. D14 DP - 1 - 001 (N/A) 4/20/11 Ken Warner Hal Zemel Stuart Kolter Limited Liability Company Agreement Email communication between counsel and Berdon requesting explanation Attorney-Client, Work of SCP, LLC of accounting issues in connection with litigation consultant role Product, Trial Prep. D15 DP - 1 - 003 (N/A) 4/20/11 Ken Warner Hal Zemel Stuart Kolter Limited Liability Company Agreement Email communication between counsel and Berdon requesting explanation Attorney-Client, Work of SCP, LLC of accounting issues in connection with litigation consultant role Product, Trial Prep. D16 DP - 1 - 005 (N/A) 4/20/11 Ken Warner Hal Zemel Stuart Kolter Limited Liability Company Agreement Email communication between counsel and Berdon requesting explanation Attorney-Client, Work of SCP, LLC of accounting issues in connection with litigation consultant role Product, Trial Prep. 017 DP - 1 - 007 (N/A) 4/20/11 Ken Warner Hal Zemel Stuart Kolter Limited Liability Company Agreement Email communication between counsel and Berdon requesting explanation Attorney-Client, Work of SCP, LLC of accounting issues in connection with litigation consultant role Product, Trial Prep. D18 DP - 1 - 009 (N/A) 4/20/11 Ken Warner Hal Zemel Stuart Kolter Deane Email communication between counsel and Berdon requesting explanation Attorney-Client, Work of accounting issues in connection with litigation consultant role Product, Trial Prep. D19 DP - 1 - 010 (N/A) 4/20/11 Ken Warner Hal Zemel Stuart Kolter Deane Email communication between counsel and Berdon requesting explanation Attorney-Client, Work of accounting issues in connection with litigation consultant role Product, Trial Prep. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HARVEY RUDMAN and HAROLD KUPLESKY, on Behalf of Each of Them Individually and on Behalf of Starrett City Preservation LLC, Derivatively, Plaintiffs, Index No. 650159/2010 -against- Motion Seq. No. 005 CAROL GRAM DEANE, THE ESTATE OF DISQUE D. DEANE by CAROL G. DEANE, as TEMPORARY EXECUTRIX, SALT AFFIRMATION OF SERVICE KETTLE LLC, ST. GERVAIS LLC, and STARRETT CITY PRESERVATION LLC, DD SPRING CREEK LLC, SK SPRING CREEK LLC, SPRING CREEK PLAZA LLC, DD SHOPPING CENTER LLC and SK SHOPPING CENTER LLC, Defendants. Jonathan H. Friedman, being duly affirm, deposes and says: Deponent is not a party to the action, is over 18 years of age and his current business address is Foley & Lardner LLP, 90 Park Avenue, New York, New York, 10016. That, on the 28 th day of August, 2012, deponent caused true and correct copies of the Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion to Compel Documents and Testimony, Affirmation of Kenneth E. Warner and Affidavit of Stuart Kotler in Support by filing the said documents with the court's electronic filing system, thereby causing the notification of all parties involved via the court's electronic advisory method. Dated: New York, New York August 28, 2012 Jonathan H. Friedman