Case 1:12-cv-02220-TPG-FM Document 1-2 Filed 03/26/12 Page 59 of 69

COURI ACQUISITION CORPORATION

CONSOLIDATED BALANCE SHEET

JUNE 30.1999

FAIR
H I S TO R I C A L VA L U E

ASSETS
">

>:

CURRENT ASSETS
CASH

19,409 $ 19,409

MARKETABLE SECURITIES-PUNK, ZIEGEL & CO.

MARKETABLE SECURITIES-PAINE WEBBER
MARKETABLE SECURITIES- DLJ
TOTAL MARKETABLE SECURITIES
NOTE RECEIVABLE-JCC
NOTE RECEIVABLE-SIEBERT
LOAN EXCHANGE - J. COURI
DUE FROM COURI HOLDING COMPANY
DUE FROM COURI GROUP INC.
DUE FROM NEW MILLENNIUM
TOTAL CURRENT ASSETS

PROPERTY AND EQUIPMENT, NET OF ACCUMULATED

D E P R E C I AT I O N
OF
$33,939
TOTAL ASSETS

672,351
1,834,980
95,000
2,602,331
250,000
80,000
149,188
15,501
13,069
3,250
3,132,748

92

629

575,230
1,569,638
81,253
2,226,121
250,000
80,000
149,188
15,501
13,069
3,250
2,756,538

92,629

$ 3,225,377 $ 2,849,167

LIABILITIES AND SHAREHOLDERS' EQUITY

CURRENT LIABILITIES
ACCRUED EXPENSES
NOTE PAYABLE - JCC
TOTAL CURRENT LIABILITIES
NONCURRENT LIABILITIES
MINORITY INTEREST IN SUBSIDIARY
TOTAL LIABILITIES

$ 125,000
50,000
175,000

.125,000
50,000
175,000

2,145;195
2,320,195

2,145,195
2,320,195

SHAREHOLDERS' EQUITY
COMMON STOCK, NO PAR VALUE, 1,000 SHARES AUTHORIZED
AND 385 SHARES ISSUED
RETAINED EARNINGS

894,000 894,000
11 , 1 8 2 11 , 1 8 2

UNREALIZED LOSS ON MARKET VALUE OF SECURITIES

TO TA L

SHAREHOLDERS'

EQUITY

(376,210)
905,182-

528,972

TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 3,225,377 $ 2,849,167

Page 1

From: Max Folken/lik F^aS 7^^v-02220-TftG*FM"f< Clim8FPti 30212,151^2^ 2/03^< 2 Rage/2l)/f25:58

FOLKENFLIK & WGERITY L

ATTORNEYS AT LAW
1500 BROADWAY
NEW YORK, NEW YORK 10036

WRITER'S E-MAIL: MFOLKENFUKCTFMLAW NE'T

^Mm

TELEPHONE: 212.757-0400
FAX: 212-757-2010

November 29, 2012

VIA FACSIMILE 212-805-6724
Hon. Frank Maas
United States Magistrate Judge
Daniel Patrick Moynihan
United States Courthouse
500 Pearl Street
Room 740
New York, NY 10007-1312

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED:

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Coot

Cl Ha- M.cooo^ se>-(^^ u^.TW~ U#te,<

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Re: Coi/w v. McLaughlin & Stern, LLP et al (12 cv 2220) (TPGHFM)

Dear Judge Maas:
I am writing with respect to Mr. Kohel's letter of November 27 seeking to mark
certain documents as "Confidential" and have them "removed from Pacer." The two
requests are dramatically different, the first merely seeks designations of documents as
Confidential under the terms of the protective order, but the second, in effect, seeks an
order permitting documents to be filed under seal.
First, the documents in question were produced by Defendant, Robbins to
Plaintiff or her counsel as part of an informal accounting concerning the Trust or were
otherwise discoverable and produced in pre-litigation informal discovery. In no case
was Plaintiff or her counsel informed that the documents should be considered
confidential. When they were publicly filed as part of the Complaint there was no
objection from Defendants that the documents should be considered confidential.
Indeed, as Defendants admit, the recent designation requests were brought on not by
their independent evaluation of the documents in question, but because of recent
complaints because of Mr. James Couri who the Court is aware has complained bitterly
in recent correspondence about the public nature of certain of these documents,
including in particular, Exhibit K, a 13 year old valuation report concerning Couri
Acquisition Corp.
Whatever claims Mr. Couri may have to confidentiality are substantially
undermined by the fact that he also was aware that these documents were part of the
Complaint and publicly filed since last March. In all of that time, while expressing his
opinion on many things concerning this case, repeatedly, both to the parties and their
counsel and to the Court, Mr. Couri never once, until recently, complained that any of
these documents were deserving of confidential treatment.

From: Ma., Folkenllik Fft3e7t7.-t'2^CV-O222O-TR>'F^nkl0CUmeftt dM>$tie&4 2/03/42 3 &3Lg&@Wfc$M

FOLKENFLIK & MGERITY LLP

Hon. Frank Maas
November 29, 2012
Page 2
The documents Mr. Kohel seeks to mark Confidential and file under seal are
Exhibits F, I, J, and K. Exhibit F is a May 6, 1.993 settlement agreement between
James Couri, Marlene Couri, one of the Couri Corporations, Tandem Trading Corp. on
one hand, and Paul Robbins and his firm, then known as Alkalay Handler Robbins &
Herman ("Alkalay") on the other hand. The settlement related in part to charges made
by James Couri about Robbins' conduct as Trustee of the 1989 Trust of which Alex was
the sole beneficiary. See, Exhibit F, U 6.
Exhibit I is a May 21 1999 agreement between James Couri, Alex Couri (James
signed the agreement "for" Alex in May, but she signed it on December 23, 1999) and
the 1989 Trust concerning certain debts James had to Alex and the contribution of
assets by him to the 1998 Trust, of which Alex was the sole beneficiary.
Exhibit J is effectively a retainer agreement between Mr. Robbins and his firm,
and James Couri relating to various Couri corporations in which, in some cases, Alex
had an interest, and trusts, as to one of which Alex was the sole beneficiary, dated
January 7, 2000, together with the copy of a check paid in accordance with that
agreement.
Exhibit K is a valuation report for Couri Acquisition Corp. as of June 1999, and
certain related documents. Alex Couri was individually a stock holder of Couri
Acquisition Corp. directly, and later her shares, and certain shares owned by James,
were placed in the 1998 Trust where she is the.sole beneficiary.
AH of the Exhibits are old, between 12 and nearly 20 years old, Alex is a party to,
or has a direct interest in and a right to receive, all of the 4 documents, all are relevant
to this action, none of them has a confidentiality clause, all were produced as part of the
informal "accounting" to the Plaintiff and informal discovery prior to the action, but none
of them were received by Plaintiff under any agreement to keep them confidential.
None were treated by Defendants, or by James Couri: as confidential, all were publically
filed in March of this year and there was no mention of confidentiality until now. There
is no basis for claiming that these documents are confidential, and the far higher burden
for seeking sealing of these documents is not close to being met.
As to confidentiality, although the documents were produced to Plaintiff before
the Protective Order was signed, that order is.instructive in a number of respects. The
Protective Order provides:
2. A producing Party may designate, by marking
"CONFIDENTIAL," any Confidential Material which, in the good faith and
judgment of such Party: (a) contains trade secrets, proprietary research,

From: Max Fofrtqllili F^ ^Ff2^V-02220-TPG*FlvMBteCUmeTRt 38212^^24 2/03ft * BdSQe/3/ti8:58

FOLKENFLIK & MGERITY LLP

Hon. Frank Maas
November 29, 2012
Page 3

development, marketing, commercial or financial information, including

but not limited to information regarding customers or clients, present or
former, their financial status or activities, agreements and relationships,
the confidentiality of which it is reasonably necessary that the Party
maintain for bona fide business or privacy reasons; (b) personal identifying
information, such as social security numbers; or (c) contains information
that should otherwise be subject to confidential.treatment under applicable
law or the Federal Rules of Civil Procedure. The designation of
information as "CONFIDENTIAL" must be narrowly tailored and limited to
the information requiring such protection. If the producing Party
designates Discovery Material as "CONFIDENTIAL" after copies thereof
have been delivered to the receiving Party, the undesignated delivered
copies thereafter shall be treated as if they were so designated.
3. Confidential documents shall be so designated by stamping
copies of the documents with the legend "CONFIDENTIAL." All pages
shall be so labeled. Confidential Discovery Material, other than
documents, may be so designated by other reasonable means such as in
a load file, file name, CD/DVD label, or cover letter, as appropriate, If
either party, through inadvertence, fails to designate Discovery Material as
"CONFIDENTIAL," but thereafter determines that such Discovery Material
should have been so designated, it promptly will provide written notice of
the "CONFIDENTIAL" designation along with a duplicate copy of the
Discovery Material bearing "CONFIDENTIAL," and the Discovery Material
will be treated as "CONFIDENTIAL" from the date of receipt of such
notice. Likewise, if a party designates Discovery Material
"CONFIDENTIAL" and later determines that such Discovery Material
should not have been so designated, it will promptly provide written notice
of the removal of the designation along with a duplicate copy of the
Discovery Material without the "CONFIDENTIAL" marking.
Where "the confidentiality designation is. contested, the party seeking to maintain
confidential treatment for the challenged document will have the burden of establishing
good cause for the continuation of that treatment." Lachica v. City of New York, 94-CV7379 (LAK), 1995 U.S. Dist LEXIS 2121, at *1 (S.D.N.Y. Feb. 23, 1995). Accord, King
Pharms., Inc. v. Eon Labs, Inc., 2010 U.S. Dist. LEXIS 102703 (E.D.N.Y. Sept. 28,
2010). "Courts do not generally grant protective orders without a strong showing of
"good cause." Wyatt v. Kaplan, 686 F.2d 276, 283 (5th Cir. 1982)." Standard Investment
Chartered, Inc v. NASD, 621 F. Supp. 2d 55, 61 (S.D.N.Y. 2007).

From:MaxFoik*nfiik ^i1^7V.^0c\/-02220-W(B^MnkB&:urr\.lx\. SS^'RISO24!2/03^25 PagW^S58

FOLKENFLIK & MGERITY LLP

Hon. Frank Maas
November 29, 2012
Page 4
Yet Defendants make no showing at all that these documents have been treated
as Confidential, and they have not been in the Defendants' dealings with Plaintiff during
which they were produced without restriction. As Judge Spatt has noted: "it is not
obvious that, even with a showing of good cause, Rule 26(c) permits a confidentiality
order to issue when it is requested after the relevant document has been produced
without restriction." Dorsett v. County of Nassau, 800 F. Supp. 2d 453, 459 (E.D.N.Y.
2011). In United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995), the Second Circuit
treated unrestricted production as waiver of confidentiality as to work product. Id. at
1052.
Further, there is no showing of "good cause." Mr. Kohel disregards the fact that
Plaintiff has a right to these documents independently from her ability to obtain
production in discovery and no legal or contractual restriction on her use of them. Mr.
Kohel makes no showing that these old documents are ones where "it is reasonably
necessary that the Party maintain [confidentiality] for bona fide business or privacy
reasons," as the Protective Order requires, simply stating in conclusory form, that the
documents were "for estate planning purposes," or were "private transactions" is
insufficient. Moreover, the filing of the documents with the Complaint (without prompt
objection from Defendants or from James Couri) means that if, in fact, the documents in
question ever were Confidential they are not now. See, Ceglia v. Zuckerberg, 2011
U.S. Dist. LEXIS 90280, 7-8 (W.D.N.Y. Aug. 12, 2011)(documents filed with Complaint
not confidential).
After litigation commenced, Defendants produced all of the objected to
documents and marked only Exhibit F as "Confidential." Mr. Kohel seeks to claim that
production of Exhibits I, J and K without the marking "Confidential," was "inadvertent" in
accordance with paragraph 3 of the Protective Order, but given the timeline of
production, it is clear that the failure to mark those exhibits as "Confidential," was
advertent, not inadvertent. As to Exhibit F, at the time it was marked "Confidential" it
was indisputably public and not Confidential.
The cases dealing with inadvertent disclosure of privileged information make
clear that in evaluating any such claim the Court will look at "the reasonableness of the
precautions taken by the producing party to prevent inadvertant disclosure of privileged
documents" and "the'length of time taken by the producing party to rectify the
disclosure" Curto v. Medical World Communs., Inc., 2006 U.S. Dist. LEXIS 29387,6-7
(E.D.N.Y. May 15, 2006). On either of those counts as well, Defendants have failed to
meet their burden.
Since Defendants fail to meet their burden on confidentiality, that dooms their
effort to have documents "removed from Pacer," in effect requiring those exhibits to be

From: Max Folkenfiik F^j^g Vl-W^V-0222Q-W<3FFW*VCUrr\<fti. 8321 Zffl/f&QM 2/03/4 6 PagB^feS*8

FOLKENFLIK & MGERITY LLP

Hon. Frank Maas
November 29, 2012
Page 5
filed under seal. A party seeking to file documents under seal generally must show both
that the documents are confidential and that disclosure will result in a "clearly defined
and very serious injury." United States v. Talco Contractors, Inc., 153 F.R.D. 501, 514
n.5 (W.D.N.Y. 1994); Cuno Inc. v. Pall Corp., 117 F.R.D. 506, 508 (E.D.N.Y. 1987);
Kosierv. Chase Manhattan Bank, 93 F.R.D. 471, 479-80 (S.D.N.Y. 1982); United
States v. International Business Machs. Corp., 67 F.R.D. 40, 46 (S.D.N.Y. 1975). That
showing requires "specific and particular demonstrations of fact, not stereotyped or
conclusory statements." Alfadda v. Fenn, 149 F.R.D. 28, 34 (S.D.N.Y. 1993).
Department of Economic Dev. v. Arthur Andersen & Co. (U.S.A.), 924 F. Supp. 449,
487 (S.D.N.Y. 1996).
There is no attempt at all to make the necessary showing of potential "injury."
Indeed, since these documents have been in the public domain, and apparently already
on some internet sites, the public nature of these documents (and any potential for
injury, if there were one) cannot be diminished by simply "removing the documents from
Pacer" as Mr. Kohel requests.
Accordingly, I respectfully request that Defendants' application be denied.
lectfull

Max Pblkenflik
MF/vm
cc: Matthew Kohel, Esq. (via e-mail)
David R. Fisher, Esq. (via e-mail)
Ms. Alexandra Couri (via e-mail)
Mr. James Couri (via e-mail)

From: Max Folkenflik

F^^71?:^0-cv-02220-fPG>-nPivTk 3&cumm 34212' PfoSB4! 2/04"/122 PI$PTW?

*"" " 'irrrnr-t;r-

naaw ifmniiii- ii.

FOLKENFLIK & MfGERITY LLP USDCSDNY

DOCUMENT
ATTORNEYS AT LAW
1500 BROADWAY
ELECTRONICALLY FILED
NEW YORK, NF7W YORK 10030
DOC #:
TELEPHONE: 212-757-0100
FAX: 212-757-2010
| DATE FILED: H/y//?^
WAITER'S E-MAIL" MFOl.KENR tKQFMLAW NgT

December 3, 2012 ~

jJL

VIA FACSIMILE 212-805-6724

n o n Frank
Hon.
. r r Maas
anK Maas ( i f n A. PML-o <-^- ^^^ *""*">
United States Magistrate Judge a- Vv^A ^x- Js V \ , a_-W^i
Daniel Patrick Moynihan }JJ do ^ uaJS^ 4o ^^> W a_^^>
U n i t e dStates
United
S t a t eCourthouse
s Courthouse ,&. &. HH^- p^fck^O^cJ^oc*^. ^M TgM4_JAA500 Pearl Street ^^ X)
Room 740 cl^o^ -(p/ uU*^ .
New York. NY 10007-1312 A -\ ksSo/u ux< IUo^^l- tl vu_ \*> UJd*veccfeE>
Re: Coc/r/ v. McLaughlin & Stern, LLP et al (12 cv 2220) (TPGHFM) __
Dear Judge Maas: ^ ^ ^ ^^ _ ^^^ ? o^ Uoor ? *_ Ujee_i<_ ">
I am writing to request additional time beyond the 7 hour presumptive time limit ^j/iics,
provided by Rule 30(d)(1) for the deposition of Mr. Jon Paul Robbins. A copy of the iX^sT""
final version of the deposition transcript in 4X4 format is attached hereto. The full 7
ix a i
hours have been exhausted.
At issue in this case are Mr. Robbins' acts as Trustee of the Trust in between the
year 1989, and November 2010 when the Trust terminated. The conduct at issue in the
case also involves the exploration of Mr. Robbins' relationship with James Couri going
back to the mid-1980s and continuing, albeit with some period of interruption, through
2007. We have also inquired into communications and conduct with respect to Mr.
Couri in 2010 and 2012.
As Your Honor can see from even a cursory view of the deposition, the
deposition was primarily focused on obtaining the witnesses unrefreshed recollection of
all the events in question.
We did question Mr. Robbins extensively on litigations in which he and
McLaughlin & Stern represented Mr. Couri, which was quite time consuming because of
the number of engagements involved (approximately 25 from the beginning of this
relationship through 1993 alone).
I think Your Honor will see from the examination that a great deal of relevant
information was obtained, and while Mr. Robbins sometimes did repeat himself in
answering different questions with the same response, the questions he was asked

F f o m : M a x F o l k e n fl i k F

t5a^S7W2-cv-02220-TP(Wlv1nkefcum5m S4212)R^P4I2/0^P23 Patfg'Wfl?5

FOLKENFLIK & MCGERITY LLP

Hon. Frank Maas

December 3, 2012
Page 2

were with respect to different time periods, different contexts and often simply called for
a yes and no responses rather than repetitive responses Mr. Robbins gave.
However, additional time is necessary to fairly examine this witness. There are
many contemporaneous documents throughout the entire period on which I did not have
the opportunity to cross-examine the witness, Including documents authored by him,
documents received by him from James Couri during the period when he was
disbursing Trust funds to James Couri, notes he made of communications with Vincent
Tehan (an attorney on whose "advise" Mr. Robbins relies for defense, notes Mr.
Robbins made either contemporaneously with his transactions with James Couri or
afterwards. That requires, detailed inquiry particularly with respect to handwritten notes
which are hard to decipher.
I think Your Honor would agree that the time spent in the deposition was well
spent, and there is ample cause in this case, given Mr. Robbins' central role in the
transactions in dispute, to allow for additional examination beyond the presumptive 7
hour limit.
ResDectfulh

MF/vm
cc: Matthew Kohel, Esq. (via e-mail)
David R. Fisher, Esq. (via e-mail)
Ms. Alexandra Couri (via e-mail)

PAGE, 2 OF 5
u/27/2012 2<^63*1 ^-tg^-lftPHM Document32 Filed 11/28/12 Pagefofl

0
cozen MEMO
O'CONNOR
A PROFESSIONAL CORPORATION

16m FLOOR 45 BROADWAY NEW YORK. NY 10006-3792 212.509.9400 800.437.7Q40 212.509.9492 FAX v/vw.co zen.com

USDCSDNY
DOCUMENT
November 27, 2012
ELECTRONICALLY FILED
VIA FACSIMILE (212.805.6724) DOC #:
DATE FILED:: \ \ | ^ | yo\>

Matthew D. Kohel
Direct Phone (212) 908-1287
Direct Pax (212) 202-6230
nikohe!@cozen.com

iii^J
Hon. Frank Maas
United States Magistrate Judge
United States District Court
Southern District of New York
Daniel Patrick Moynihan Courthouse
500 Pearl Street, Room 740
New York, NY 10007-1312
Re: Couri v. McLaughlin & Stern, LLP, ct ai.//> I f
q .n
v i7.n.v.7?7n
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D .m
N . Y.
1 2 - c v - 2 2 2rrpfiVFTun
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Dear Judge Maas:

-f^ a_
Mo^^, - -^JliJccu^ f U A tG6Tt ty^7 // -

I write on behalf of the defendants requesting leave to file a motion to designate four
exhibits attached to the Complaint as Confidential and to have them removed from Pacer, and
additionally, for a two-week extension of the deadlines related to expert discovery.
The Defendants Seek Leave to Move for an Order Desienatinz Documents as Confidential

The defendants respectfully request that the Court grant them leave to seek an Order
designating Exhibits F, I, J and K to the Complaint as Confidential, and consequently, have them
removed from Pacer. Exhibits F, I, J and K. were produced to the plaintiff prior to the filing of
the Complaint during the parties' confidential settlement negotiations. Although the parties did
not enter into a confidentiality agreement before this action was filed, the defendants produced
them as part of extensive pre-litigation settlement discussions that lasted for nearly one year.
Accordingly, those documents should not have been attached to the Complaint. See Fed. R.
Evid. 408; Team Air Express, Inc. v. A. Hejfco Tech., Inc., 2008 WL 3165892, at *9 fii. 8
(E.D.N.Y. Aug. 6, 2008) ("documents produced during settlement negotiations are not
admissible to prove liability or damages"). In addition, those documents should not have been
attached to the Complaint because each contains private financial information.

NEWYORK DOWNTOWN\2504991\I

PAGE 3
n/27/2012 2caSel8v^BeB-fl*65fitt Document32 Filed 11/28/12 Page2of4

OF 5

Hon. Frank Maas

November 27, 2012
Page 2
After litigation was commenced, the defendants inadvertently produced Exhibits I, J, and
K in their initial document production without designating them as Confidential; the defendants
designated Exhibit F as Confidential.
Mr. Couri has recently contended that these documents should not be in the public
domain. The defendants believe that Mr. Couri is correct in diis regard. The defendants
promptly sent the plaintiff written notice of their intention to designate the documents as
Confidential. The parties met and conferred on November 26, 2012, at which time the plaintiff
objected to the designation of these documents as Confidential and refused to remove the
exhibits from Pacer.
The public's right "of access to discovery materials depends on the type of materials and
the stage of the litigation." In re Terrorist Attacks on Sept. 11, 2001,454 F.Supp.2d 220,222
(S.D.N.Y. 2006). Importantly, "no public right of access exists with respect to materials
produced during the initial stages of discovery." Id, Although a presumption of public access
exists for documents filed with the court, "[documents that play no role in the performance of
[the court's] Article III functions, such as those passed between the parties in discovery, lie
entirely beyond the presumption's reach ... and * stand [] on a different footing than ... any other
document which is presented to the court to invoke its powers or effect its decisions."' United
States v. Amodeo, 71 F.3d 1044,1050 (2d Cir. 1995) (citations omitted); see also SEC v.
TheStreet.com, 273 F.3d 222, 231 (2d Cir. 2001) (the public's right of access to discovery
material only encompasses access to documents "filed with the court that are relevant to the
performance of the judicial function and useful in the judicial process")- Exhibits F, I, J, and K
were not attached to a motion for summary judgment, and thus, have little if any relevance to the
court's adjudicative power. The plaintiff will not suffer any prejudice if they are deemed
Confidential and taken off Pacer.
Exhibits F and J are documents exchanged between the defendants and James Couri.
Exhibit F is a settlement agreement entered into between the defendants and non-party James
Couri in May 1993. It is respectfully submitted that Exhibit F should be deemed Confidential
because it describes a private agreement between the defendants and Mr. Couri, and sets forth
the amount that the defendants agreed to pay Mr. Couri to resolve his allegations of malpractice.
The defendants contend that Exhibit J should be designated as Confidential because it is a letter
concerning discussions the defendants were having with Mr. Couri to re-establish the attorneyclient relationship. The letter sets forth the terms of the potential retention, including the
financial arrangement they agreed to. The public has no legitimate interest in this information.
Exhibits I and K contain individuals' financial information, including the plaintiff and her
father. For instance, Exhibit K sets forth an accountant's valuation of shares in one of Mr.
Couri's closely-held corporations. Exhibit K. was created for estate planning purposes. Exhibit I
evidences, inter alia, a transaction in which Mr. Couri gifted shares in that closely-held company
to the plaintiff. The value of those shares can be determined by a review of Exhibit K. These
exhibits describe commercial transactions without public ramifications. The Second Circuit has
held that a third-party's privacy interests "should weigh heavily in a court's balancing equation"
when analyzing the public's right to access, Gardner v. Newsday, Inc., 895 F.2d 74, 79-80 (2d
Cir.), cert, denied, 496 U.S. 931 (1990). Such interests are "a venerable common law exception
NEWYORK _DOWNTOWN\2504991\1

n/27/2012 2C@ide2|4i2^v--02@^-TP^cr^v1 Document32 Filed 11/28/12 Pagi^Sf^

OF 5

Hon. Frank Maas

November 27,2012
Page 3
to the presumption of access." Amodeo, 71 F.3d at 1051. ("Financial records of a wholly owned
business ... and similar matters will weigh more heavily against access than conduct affecting a
substantial portion of the public"). Accordingly, the defendants respectfully submit that they
should be designated as Confidential.
Based on the foregoing, the defendants request leave to file a motion for an Order
designating Exhibits F, I, J and K as Confidential.
Request for an Extension of the Case Management Schedule
The defendants respectfully request an extension of certain deadlines in Your Honor's
August 31, 2012 Order. The plaintiff consents to this request.
As you know, the parties have been proceeding with discovery, including substantial
document productions and the depositions of both parties. Due of the effects of Hurricane
Sandy, an expert retained by the defendants had no or limited access to his office and case
materials for several days. In order to comply with the expert disclosure deadlines, an additional
two weeks is requested. But for the damage caused by Hurricane Sandy the defendants did not
anticipate requesting an extension.
We propose the following schedule:

Current
Deadline

Proposed Extension

Item

Jan. 4,2013

Jan. 18,2013

The parties shall serve any expert reports.

Jan. 23,2013

Feb. 6,2013

The parties shall complete expert

depositions by this date.

Feb. 8,2013

Feb. 22,2013

The parties shall serve any rebuttal reports.

Feb. 8,2013

Feb. 22,2013

All discovery shall be completed.

The defendants thank the Court for its courtesies and consideration.
Respectfully submitted,

By: ' Matthew Kohel

MDK
NEWYORK DOWNTOWNV2S04991M

11/27/2012 2

Caie%^v-0^8-fl^^v1 Document 32 Filed 11/28/12 Pagi^Sff

Hon. Frank Maas

November 27,2012
Page 4

cc: (via email)

Max Folkenflik, Esq.
James Couri

NnWYORK_DOWNTOWN\2504991\l

OF 5

From: Max Folkenllik

Fa^e 7f!*f2ibv-02220-TPOQfMnhEtecume'rYt 28*^WWM 1 /08fi2 FagM^f^

USDC SDNY
FOLKENFLIK & MPGERITY
DOCUMENT
ELECTRONICALLY FILED
ATTORNEYS AT LAW
DOC#:
1500 BKOADWAi
NEW YORK, NEW YORK 1U036
DATE FILED: u/r//*TELEPHONE] 312-7S7-04(M

WRITER'S E-MAIL. MFOLKENFLIK(%FMLAW.NET FAXl 212-757-2010

October 26, 2012

VIA FACSIMILE 212-805-6724
Hon. Frank Maas
United States Magistrate Judge
Daniel Patrick Moynihan
United States Courthouse
500 Pearl Street
Room 740
New York, NY 10007-1312

Li^VXO f-t>u W^\ 'fi-Oi \

0_ rfj2^U.rfC

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/ / '

Re: Couri v. McLaughlin & Stern, LLP era/ (12 cv 2220) (TPGKFM)
Dear Judge Maas:
I am writing in accordance with Local Rule 37.2 to request a conference to
discuss discovery disputes which the parties have not been able to resolve in the meet
and confer process.
Following our last court conference and the Court's order regarding
interrogatories seeking information on any engagements of defendants by James Couri,
his wives or his companies, we served interrogatories seeking to obtain information on
those engagements (Interrogatories 1 and 2) and also sought information on loans
which the defendants may have made to the same entities. (Interrogatories 3 and 4). A
settlement agreement between the defendants and James Couri referred to the
existence of such loans. Our Rule 33 Interrogatories are attached, as are Defendants
Supplemental Responses, excluding all but the first few pages of responsive business
records produced in accordance with Rule 33(d). The responses as to the
Engagements are deficient and Defendants refused to produce any information as to
the loans.
Interrogatories 3 and 4
To address the issue of the loans first, Defendants response is that the
interrogatories are improper because they were not permitted by Court order. However
neither Rule 33, nor local rule 33.3 require a Court order to serve an interrogatory for
relevant information. Local Rule 33.3(b) provides:

From. Ma, Folkendlk F^ggg 7frt^V-02220"TPFfoM CUmSflt 09212;|<ite^4l 1 /05^-bE 3 Rag2g/2gf2:l2

FOLKENFLIK & MGERITY

Hon. Frank Maas
October 26, 2012
Page 2

(b) During discovery, interrogatories other than those

seeking information described in paragraph (a) above
[concerning damages, and the location of witnesses and
evidence] may only be served (1) if they are a more practical
method of obtaining the information sought than a request
for production or a deposition, or (2) if ordered by the Court.
Local Rule 33.3 (b)
The Request and Response were:
INTERROGATORY NO. 3:
Identify each and every loan or advance of money made by any
Defendant to James Couri, Marlene Couri, any members of their
respective families, including without limitation Lydia Alexandra
Couri, or any of the Couri Corporations, which was outstanding
at ay time during the relevant period.
RESPONSE:
The defendants object to this Interrogatory as vague,
ambiguous, overbroad and unduly burdensome. The defendants
further object to Interrogatory No. 3 as it seeks information
beyond what is permitted by the Local Civil Rule 33.3(b) of the
Southern District of New York, the rulings made by Magistrate
Judge Maas at the August 30, 2012 Rule 37.2 conference, and
Magistrate Judge Maas' September 4, 2012 Order.
INTERROGATORY NO. 4:
Identify each and every loan or advance of money made to any
Defendant by James Couri, Marlene Couri, any members of
their respective families, including without limitation Lydia
Alexandra Couri, orany of IhuCuuii Cuipuiatiuns, which was
outstanding at any time during the relevant period.
RESPONSE:
The defendants object to this Interrogatory as vague,
ambiguous, overbroad and unduly burdensome. The defendants
further object to Interrogatory No. 4 as it seeks information
beyond what is permitted by the Local Civil Rule 33.3(b) of the
Southern District of New York, the rulings made by Magistrate

srom: Max Folk&nflik FaSaSO 7tZ-tflCV-02220-TO(aFMnk @CU ITlffiftt 89212) RfeKZM 1 /05/&2 4 &ag&1&12:12

FOLKENFLIK & MPGERITY

Hon. Frank Maas
October 26, 2012
Page 3

Judge Maas at the August 30, 2012 Rule 37.2 conference, and
Magistrate Judge Maas' September 4, 2012 Order.
We initially sought loan information through a document request,1 and
Defendants response suggested that they produced the only available document: a
settlement agreement which referred to then existing loans but did not reveal the
amounts involved or any prior loan transactions. Defendants did not argue that
depositions are a more "practical" method of obtaining detailed financial information
than an interrogatory, and I respectfully submit it is clear that it would not be.
Information about loan transactions occurring some 20 years ago might require some
time for reflection and possibly reviewing material which could aid recollection of the
transactions involved. At a deposition, the examiner is more likely to be met with the
unhelpful response that "l do not recall at this time."
Interrogatories 3 and 4 are permitted by the Rules, and contrary to Defendants'
objections are not precluded by the Court's prior order, i request that Defendants be
ordered to respond to those interrogatories.
Interrogatories 1 & 2
There was substantial information provided on the Couri and Couri Company
engagements of Defendants in response to Interrogatories 1 and 2, but not all of the
information sought. In response to the Interrogatories, Defendants identified 25
litigation engagements and 2 non-litigation engagements through February 1993 and
billing records for several engagements after 1998.

The Request and Responses were:

REQUEST NO. 4:
All duuumeulfa which uumpiibe, reflect ui ibfei lu munuy paid by Rubuins
personally to James Couri and/or any of the Couri Corporations, including,
without limitation, money paid as loans, advances or in exchange for checks.
RESPONSE:
Defendants object to Request No. 4 as not reasonably calculated to lead to
the discovery of admissible evidence. Subject to and without waving the
foregoing objections, and to the extent not objectionable, Defendants direct
plaintiff to paragraph 3 of the February 1993 Agreement at pages
MS001508-1515.

From: Max Folkenflik F8eB7t?-tfi<,CV-02220-TP@FMnkrcumet 89212}PWgeM 1 /03t&2S Rag^S***^

FOLKENFLIK & MPGERITY

Hon. Frank Maas
October 26, 2012
Page 4
The definition of "identify" in the interrogatories required identification of the dates
of the start and the end of the engagement, who worked on the engagement, the nature
of the services, annual billings (or best estimate) and certain additional information on
filed actions.
This case turns upon the question of whether the Trustee violated his fiduciary
duty in making loans to James Couri and his corporations, and then transferring assets,
including promissory notes, and collateral of the Trust to James Couri's wife and a new
trust in the sole control of James Couri. The Trustee's main defense is premised on
reliance upon the commitments and representations of James Couri. The Trustee's
business relationships with James Couri and his companies, and his prior and
contemporaneous transactions with James Couri are surely relevant.
Defendant Robbins relies on the supposed dire financial condition of James
Couri as a justification for the Trust loans. Given the large number Engagements, it is
important to know what matters were still "active" in any given year, particularly the
years during which the assets of the Trust were being loaned to James Couri. Yet,
without information on the commencement and conclusion of litigations, it is impossible
to understand what work was being done in any given year, the legal cost of the
representation or, in the case of settlements, the impact of settlements on the financial
condition of James Couri in any given year.
The skeletal information we requested is not unduly burdensome and will be
helpful in narrowing the subjects which need to be covered and in expediting the
deposition of Mr. Robbins.
Moreover, Defendants produced no billing information by litigation for
engagements prior to 1993, and instead provided a supposed ballpark "estimate"' of
$20,000 to $30,000 per year for ail cases collectively. The Court was explicit in requiring
information, to the extent it could be pieced together from the contents of the "25 boxes"
of litigation documents, concerning annual billing for each separate litigation. See, Tr.
0/00/12,
<tl7.20
to
8.14
(dUaulied):
___
It seems unlikely that Defendants saved 25 boxes of litigation documents without
having any information, not even an engagement letter, which would reflect any
payments for any specific litigations. However, Defendants seem to be of the view that
individual litigation billing information is not required.
With respect to the Engagements in the period commencing in 1998, Defendants
have not provided the term of the Engagement, and they have redacted any description
of services from the bills on the basis that it was not asked for in the Plaintiffs original

From- Max Foik*fiik F<3ase m4^v-02220-T1?.(8rFM'* Etecumeftt gQ^FdteGM1/05Ya1a2 6 RageoSoofc&is

FOLKENFLIK & MGERITY

Hon. Frank Maas
October 26, 2012
Page 5
document request. However, a description of services was asked for in the
interrogatories, it is relevant information, and there is no basis for the redaction.
Accordingly, I respectfully request that the Court schedule a conference or
endorse this letter with an order requiring complete responses to Plaintiffs
Interrogatories.

Max Folkenflik
MF/vm
Attachments
cc: Matthew Kohel, Esq. (via e-mail)
David R. Fisher, Esq. (via e-mail)
Ms. Alexandra Couri (via e-mail)

From: Max Folksnflik pCaflft 71iT:ta^V-0??pO-T-fe(3FMnK CUmePrt &WDm8&4 1 /1 97*2 2 P^'^ W1:1*

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC

#'

__

-II

FOLKENFLIK & M^GERITY

ATTORNEYS AT UW

1500

B R O A D WAY

DATE FILED: :\\ I l'W^fl^-l NBW yoRK^WTOHK

HOENDORSED

TELEPHONE: HI2-757-0
FAX: 212-757-2010
WRITER'S E-MAIL MFOLKENFUK(g>FMLAW NST

November
19,
2012
r>
VIA FAC SIMIL E2 1 2 -8 0 5 -6 7 2 4 -j - ^ o n o V w i ^ ^ Vo U ^ -^ o t* -<_ Hon. Frank Maas u^OUjJ ILjT^--' ><uu?<a-~d lu (W/. Gd^a i>
U n i t e d S t a t e s M a g i s t r a t e J u d g e < : X / 0 ^ v ^ J . , c / ! fl < , A ' s
Daniel Patrick Moynihan MitZuj 0^ IU^> C ^^- ^ ^'^ ,
United States Courthouse j.v^lJ: "31 oJ;V*o u<-><i>l<- "*" A^-Ux U*-o
500 Pearl Street u^Dc^vt^v^
Room 740 Ca o^vi. 1UcT+ <^-<-M Si/J^>t>-^^_- ^xc^rcc-./l^--<-^
N e w Yo r k . N Y 1 0 0 0 7 - 1 3 1 2 ^ ^ ^ D u > ^ s f c C C L W, W * ^ o u ; J X _
- Re: Cotyr/ v. McLaughlin & Stern, LLP et al (12 cv 2220) (TPG)(FM) ^+&- ^
Dear

Judge

Maas:

^a^Uo

uo

VoOl

Lud-WF^J

.C*

I am writing with respect to James Couri two most recent letters. I apologize to i). "3"l(?~J
the Court and Mr. Couri if I misread his handwritten word which he says is "-truth" as the A
word "trust." However, even If lhat word was misread, the import of the letter remains ___
the same as if the word was as I had construed it. ^jrXtu^ , VSM* ,
Mr. Couri's subsequent conduct also makes it absolutely clear that starting on or / ' ** /' *"
about April 30th Mr. Couri actively sought to pressure his daughter and her counsel into
dropping the case against the Defendants. He did this through repeated abusive and
defamatory e-mails and internet posts. Prior to April 30th, he had used the same tactics
to try and pressure Mr. Robbins {whom he had repeatedly described as a "thief), and
McLaughlin & Stern with respect to settling the case, while using the same abusive
tactics on Plaintiff and her counsel to get them to share the proceeds of the case with
him.
As to the other assertions Mr. Couri makes, I find it unnecessary to burden the
Court with a further response unless the Court wishes one.

ax Folkenflik i f
MF/vm
cc: Matthew Kohel, Esq. (via e-mail)
David R. Fisher, Esq. (via e-mail)
Ms. Alexandra Couri (via e-mail)
Mr. James Couri (via e-mail)