Newton Center, Inc., et al. v. Berliner Cohen, et al.		CASE NO. 114CV259581
DATE: 10 July 2014	TIME: 9:00	LINE NUMBER: 33

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 10 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 27 June 2014, the motion of defendants Berliner Cohen and Ralph Swanson for a protective order was argued and submitted. Plaintiffs Newton Center, Inc., Newton – The Children’s Learning Center, Inc., Isaac Soncino, and Celine Tamir (collectively “Plaintiffs”) filed a formal opposition to the motion.

After the matter was argued and submitted but before any final order was issued, counsel sent e-mails with additional contentions to this Court.  In the interest of giving the matter a full hearing on this important issue, the court set the matter for further argument on 10 July 2014.

The tentative ruling from the last hearing is as follows:

Factual and Procedural Background

This is a professional negligence action against the law firm Berliner Cohen arising from the firm’s previous legal representation of Newton Center, Inc. (the “NewtonCenter”). The underlying litigation for which Berliner Cohen was retained to represent the NewtonCenter involved a dispute among the three family members who had formed the company over the ownership interests each of the family members possessed in the company. The family members who were ultimately adjudicated to be the owners of the Newton Center (and who were not represented by Berliner Cohen in the underlying litigation) claim, among other things, that the law firm was not authorized to represent the Newton Center and seek damages for the more than $300,000 in legal fees charged to the Newton Center by Berliner Cohen for the law firm’s representation of the company in the underlying litigation.

According to the allegations of the complaint, Isaac Soncino (“Mr. Soncino”), Celine Tamir (“Ms. Tamir”), and Yoram Tamir (“Mr. Tamir”) were born and raised in Israel where they all knew one another since childhood. Mr. Soncino and Ms. Tamir are brother and sister, and prior to the institution of the underlying litigation, Ms. Tamir and Mr. Tamir were husband and wife. In the early 1990s, Mr. and Ms. Tamir convinced Mr. Soncino to stay in the United States so that the three could build a business designed to offer enrichment activities for children. To accomplish their business plans, MusicArt, Inc. was created in 1995, an entity called Newton, Inc. was incorporated in 2000 to manage the business assets of the parties’ business venture, and NewtonCenter (a non-profit corporation) was formed in 2001 to contract with various public entities and to accept tax-deductible donations. The parties’ business venture was successful, growing from 30-40 students in 1998 to 950 students as of 2012.

In May 2011, Ms. Tamir filed a petition for marital dissolution in the San Mateo County Superior Court. (In re Tamir, San MateoCounty Superior Court Case No. FAM0113496.) During the dissolution proceedings, Mr. Tamir took the position that Mr. Soncino was and had always been an employee of NewtonCenter as opposed to a co-owner. Mr. Tamir was represented by Berliner Cohen.

On 19 September 2011, Mr. Soncino instituted a civil action against, among others, Mr. Tamir and the NewtonCenter in San Mateo County Superior Court, asserting an ownership interest in the NewtonCenter. (Isaac Soncino v. Yoram Tamir, et al., San MateoCounty Superior Court Case No. CIV 508495.)

Based upon the finding that Mr. Soncino’s claims were intertwined with the adjudication of Mr. Tamir and Ms. Tamir’s community property in the dissolution proceeding, the civil action was joined with the dissolution proceeding and the court conducted an evidentiary hearing on the issue of Mr. Soncino and the Tamirs’ interest in the Newton Center.

During the joint proceedings, pursuant to the powers of the family court to protect community assets, and assuming that Mr. Tamir was acting in the role of a fiduciary of the Newton Center as an owner of the company, the trial judge authorized Berliner Cohen to receive payment from the Newton Center for the purpose of defending the business against Mr. Soncino’s claims. (See Order of San Mateo Superior Court, dated October 5, 2012, attached to Pl.s’ Request for Judicial Notice, Ex. 12.)

Following the entry of the order authorizing payment to Berliner Cohen from the NewtonCenter, Mr. Soncino filed a motion for sanctions against Mr. Tamir, asserting that he had violated the order by making payments to Berliner Cohen that far exceeded the court’s order. During the hearing on the matter, the court recognized that there may be an ethical issue as to whether the law firm could represent both Mr. Tamir and the NewtonCenter, stating as follows:

It’s really an absolute mess at this point because now we have two defendants who we know are owners of the business; they’re both defendants of this civil suit. But only one of them is being represented by the Berliner Cohen law firm, only one; that’s a conflict.

And we also have the business attorney associating on [the] pleadings in the divorce action, and that’s a problem; that’s a major problem. Granted the divorce action is now dealing with the question of ownership of the company and compensation for Mr. Soncino as well as all of the other divorce issues, but it doesn’t mean that [counsel for the Newton Center from Berliner Cohen] gets to associate with [counsel for Mr. Yoram in the divorce proceedings from Berliner Cohen] for the purpose of all divorce issues. Then if that’s the case, there are certainly things on the billing that should not be paid by the company, but should be paid by Mr. Tamir himself. (Hearing Transcript, dated 12 September 2012, attached to Pl.s’ Request for Judicial Notice, Ex. 6.)

Notwithstanding the recognized conflict, the court expressly chose not to make a finding on the ethical question. (Order of San Mateo Superior Court, dated October 5, 2012, attached to Pl.s’ Request for Judicial Notice, Ex. 12 [“Although there was some discussion as to whether the law firm was ethically allowed to represent both Yoram and the business, this court chooses not to make findings about the ethics.”].)

The court did, however, grant Mr. Soncino’s motion, stating as follows:

Although the Court may have assumed that in Yoram’s role of fiduciary of and to the community asset, the business and to Petitioner Celine Tamir . . . , he would carefully direct the use of legal representation for the sole purpose of defense of the business, a review of the attorneys fee statements reveals a much wider range of activity than mere defense. More than $200,000 has been paid to legal fees in “defense” of a business which has now been tentatively valued at a range of $500,000 to $900,000, an outrageous amount of fees for a civil suit that has resulted in [only the filing of] a demurrer and a tacit agreement to set it aside while the dissolution proceedings attempted to resolve the ownership interest as between the three parties. (Id.)

On 28 December 2012, the court entered a Final Statement of Decision re Ownership Claims of Family Business. (Order of San Mateo Superior Court, dated 28 Dec. 2012, attached to Pl.s’ Request for Judicial Notice, Ex. 2.) In the order, the trial judge found Mr. Tamir’s testimony concerning Mr. Soncino’s position at the company to not be credible. The court ultimately held that “[b]y a preponderance of the evidence the court finds that Isaac Soncino is a one third partner in the ownership interests of the Family Business, which includes MusicArt, Inc., Newton – The Children’s Learning Center, and Newton Center, Inc.” (Id., p. 15.)

On 16 December 2013, Mr. Tamir agreed that any ownership interest that he held in the NewtonCenter would be allocated to Ms. Tamir for the purpose of the distribution of the parties’ community property. (See Attachment to Final Judgment in In re Tamir, San Mateo County Superior Court, Case No. FAM0113496, attached to Pl.s’ Request for Judicial Notice, Ex. 3.) Mr. Tamir further agreed to “immediately resign from all positions he holds, or has ever claimed to hold, in the Businesses, including, but not limited to, any position as an officer, director, employee, or partner or otherwise of Newton – The Children’s Learning Center, Inc., Newton Center, Inc., and/or Musicart, Inc.” (Id.) Mr. Tamir’s concessions as to his ownership interest in the Newton Center were made part of the final judgment in the marital dissolution proceedings, which was entered on 27 January 2014. (Id.)

On 24 January 2014, based upon allegations that Berliner Cohen was not authorized to represent the Newton Center in the joint proceedings and that Berliner Cohen was negligent in the representation it provided to the company, the Newton Center, Mr. Soncino, and Ms. Tamir filed an action in this Court against Berliner Cohen, asserting causes of action for (1) professional malpractice, (2) breach of fiduciary duty, (3) constructive fraud, (4) violation of Business and Professions Code, section 17200, (5) interference with business relations, (6) rescission, and (7) unjust enrichment.

Discovery Dispute

On 19 December 2012, prior to Mr. Tamir’s relinquishment of his ownership interest in the NewtonCenter, Mr. Soncino (purportedly acting on behalf of the NewtonCenter) wrote a letter to Berliner Cohen. In the letter, Mr. Soncino informed the firm that he had been found by the court to be the managing member of the Newton Center, indicated that Berliner Cohen was not authorized to represent the Newton Center, and stated that, to the extent there was an agreement between the Newton Center and Berliner Cohen, the Newton Center was terminating the representation. (Decl. of Isaac Soncino in Support of Pl.s’ Opp. to Berliner Cohen’s Mot. for a Protective Order, Ex. 4.) In the letter, Mr. Soncino also demanded that the firm provide the client files for the NewtonCenter “for all matters in which you were purportedly engaged.” (Id.)

On 8 January 2013, Plaintiffs made another demand that Berliner Cohen produce the client files. (Id., Ex. 5.)

Berliner Cohen responded to Mr. Soncino’s letter on 10 January 2013 via email. In the email, counsel from Berliner Cohen stated that, contrary to Mr. Soncino’s assertion, the San Mateo Superior Court had authorized its representation of the NewtonCenter and that “we see no reason to return fees paid to us for this representation and we decline to do so.” (Id., Ex. 6.) Counsel from Berliner Cohen also indicated as follows:

[T]his firm has not rendered any services to the companies since Judge Slabach ruled that further work by the firm on behalf of either Mr. Tamir or the companies would no longer be paid for by the companies after September 12, 2012. . . . However, in keeping with Judge Slabach’s prior orders that the companies pay for an attorney to represent them and Mr. Tamir in the Civil Action, she also ruled that Berliner Cohen would be entitled to payment for any balance that was due for legal services performed prior to September 12, 2012. The companies have been paying down that balance on a monthly basis since September 2012. You will soon receive our bill for the remaining balance, which we expect to be paid in accordance with the judge’s prior orders.

. . .

We will gather what files are pertinent to the companies and provide them to you in due course. (Id.)

When Berliner Cohen failed to provide the NewtonCenter with the client files, Plaintiffs made further requests for the files on 11 and 14 October 2013.

In response, Berliner Cohen changed course from its original statement that it would produce the files, indicating that it had been instructed by Mr. Tamir not to produce the files.

On 13 November 2013, counsel for Plaintiffs responded as follows:

This office has previously requested that Berliner return all of the documents pertaining to its representation of the NewtonCenter. As of the date of this letter, Berliner has refused to provide the files, stating that Yoram Tamir has expressly instructed it not to do so . . . . [Counsel] strongly disagree[s] with Berliner’s decision not to release its files and urge[s] you to . . . reconsider [your] position. The issues of the ownership and control of the NewtonCenter have been litigated and the Court has determined that Isaac Soncino and Celine Tamir have been two-third owners of the NewtonCenter. In addition, the Court has found that Isaac Soncino is authorized to act on behalf of the NewtonCenter, not Yoram Tamir. Therefore, Berliner cannot continue to rely on Mr. Tamir for instructions pertaining to the NewtonCenter. (Decl. of Timothy Nardell in Support of Pl.s’ Opp. to Berliner Cohen’s Mot. for a Protective Order, Ex. 2.)

On 25 November 2013, following additional correspondence between counsel for the parties, counsel for Berliner Cohen wrote to Plaintiffs’ counsel, stating that “Mr. Tamir was, and remains, the CEO of the corporate entities, and, as such is their highest ranking officer and the one entitled to determine if the files are to be released.” (Id., Ex. 3.)

On 16 December 2013, as indicated above, Mr. Tamir relinquished any and all interests in the NewtonCenter. Given Mr. Tamir’s relinquishment of any interest in the company, on 7 May 2014, counsel for Plaintiffs again requested that Berliner Cohen turn over the client files. (Decl. of Sean Ponist in Support of Pl.s’ Opp. to Berliner Cohen’s Mot. for a Protective Order, ¶ 3.)

On 20 May 2014, still having not received the client files, Plaintiffs’ counsel sent Berliner Cohen another letter demanding the files. In the letter, Plaintiffs’ counsel stated as follows:

For nearly a year, [counsel from Berliner Cohen] provided absolutely no basis for their failure to produce client files. After retaining the services of adept and knowledgeable counsel, they then advised for the first time that they could not provide the files because a minority shareholder in the for-profit corporations, stripped of all powers and responsibilities by the Court, objected to the release of the files . . . .

Moreover, the principal organizational client billed by . . . Berliner Cohen was Newton Center, Inc., a nonprofit organization (not the for-profit corporations of which Mr. Tamir claimed to be the President/CEO thereof). It is axiomatic that a nonprofit organization is managed and controlled by one individual, i.e., its Executive Director. Newton Center, Inc.’s Executive Director is, and was at all relevant times, Mr. Soncino. Thus, while . . . Berliner Cohen contend[s] that [it] [was] []simply following orders’ from the organization’s apex person, they, in fact, were not doing so.

. . .

[E]ven if the client files had not been turned over previously because of some fallacious deference to Mr. Tamir, there has been no basis for the failure to produce the client files for the past six months. Accordingly, for the reasons discussed as well as those stated herein, the Newton Group again requests its client files. (Id., Ex. 2.)

On 27 May 2014, when the parties appeared for a case management conference in this case, the Court indicated that Berliner Cohen’s failure to produce the client files may result in a delay in the Court hearing the law firm’s anti-SLAPP motion, which is currently pending, and further instructed counsel for the parties to meet and confer on the issue of the client files. (Id., ¶ 5.)

On 5 June 2014, following additional unsuccessful meet and confer efforts, Berliner Cohen filed the motion presently before the Court, seeking a protective order under which the law firm is not required to produce the Newton Center’s client files.

Plaintiffs filed an opposition to the motion on 16 June 2014, and Berliner Cohen filed its reply brief on 20 June 2014.

Discussion

I.             Requests for Judicial Notice

Both parties request that the Court take judicial notice of several documents, including documents previously filed by the parties or entered by the court in the underlying proceedings.

Berliner Cohen requests that the Court take judicial notice of the following documents: (1) the Case Report from Tamir v. Tamir, San Mateo Superior Court, Case No. FAM0113496 (the “divorce proceeding”); (2) the Case Report from Soncino v. Tamir et al., San Mateo Superior Court, Case No. CIV508495 (the “underlying civil proceeding”); (3) the Complaint filed in the underlying civil proceeding; (4) the Findings and Order After May 15, 2012 Hearing filed in the divorce proceeding; (5) the Judgment entered in the divorce proceeding on 4 February 2012; and (6) the Ruling on Wife’s Motion for New Trial entered in the divorce proceeding on 21 December 2011.[1]

The above listed documents constitute records of the superior court subject to judicial notice under Evidence Code section 452, subdivision (d). (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].) They are also relevant to the matter presently before the Court. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [information subject to judicial notice must be relevant to the issue at hand].) Berliner Cohen’s request for judicial notice of the above listed documents is therefore GRANTED.

Plaintiffs request that the Court take judicial notice of the following documents:

(1)    the Final Statement of Decision entered in the divorce proceeding on 28 December 2012;

(2)    the Judgment from the divorce proceeding entered on 4 February 2014;

(3)    the Order Granting Sanctions Under Code of Civil Procedure section 128.7 in the divorce proceeding entered on 17 December 2013;

(4)    the Order Denying Respondent’s Disqualification Motion in the divorce proceeding entered on 17 December 2013;

(5)    the Ruleing on Wife’s Motion for New Trial in the divorce proceeding entered on 21 December 2011;

(6)    the Order on Husband’s Ex Parte Request in the divorce proceeding entered on 14 March 2012;

(7)    the Order on Soncino’s Motion for Sanctions in the divorce proceeding entered on 5 October 2012;

(8)    the Motion to Strike Costs filed in the divorce proceeding on 2 January 2013;

(9)    the Notice of Withdrawal of Memorandum of Costs filed by Berliner Cohen in the divorce proceeding on 11 January 2013;

(10)  the Notice of Cessation of Counsel filed by Berliner Cohen in the divorce proceeding on 8 July 2013;

(11)  the Complaint filed by Plaintiffs in the instant action on 24 January 2014; and

(12)  the Declaration of Isaac Soncino ISO Sanctions filed in the divorce proceeding on 10 July 2012.

As with Berliner Cohen’s request, the documents sought to be noticed by Plaintiffs are records of the superior court subject to judicial notice under Evidence Code section 452, subdivision (d), and are relevant to the matter presently before the Court. (See Stepan, supra, 43 Cal.App.3d at p. 500; see also Gbur, supra,  93 Cal.App.3d at p. 301.) Plaintiffs’ request for judicial notice of the above listed documents is therefore GRANTED.[2]

II.            Berliner Cohen’s Motion for a Protective Order

Berliner Cohen seeks an order declaring that it is not required to provide Plaintiffs with the client files in the law firm’s possession concerning the Newton Center that were generated as part of the underlying divorce proceeding and civil action filed by Mr. Soncino.

               A.           Legal Standard

Berliner Cohen seeks relief under Code of Civil Procedure section 2031.060, which provides in relevant part that, when a demand for documents has been made, “the party to whom the demand has been directed . . . may promptly move for a protective order.[3] (Code Civ. Proc. [“CCP”], § 2031.060, subd. (a).) The section further provides that, “for good cause shown,” the court “may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP, § 2031.060, subd. (b).)

               B.           Analysis

Berliner Cohen cites two reasons why it believes it should not be required to produce the client files. First, the law firm asserts that it cannot produce the files because it was instructed by Mr. Tamir, who indicated that he was the Newton Center’s highest ranking officer, not to produce the files and that the firm has therefore “received conflicting instructions between former clients regarding the disposition of their client files.” (Mem. of Ps  & As in Support of Mot. for Protective Order, p. 1.) Second, Berliner Cohen asserts that, “[a]though[] the final judgment in the [divorce proceeding] ended [Mr. Tamir’s] involvement with the corporate entities, that does not change the fact that the client files are being requested on behalf of parties adverse to [the firm’s] clients’ in the underlying litigation.” (Id., p. 6.) Based upon these assertions, Berliner Cohen argues that it is “not authorized to provide Plaintiffs with [the] client files containing confidential attorney-client communications.” (Id.)

For the reasons set forth below, Berliner Cohen’s argument is not well taken.

Rule 3-700(D)(1) of the California Rules of Professional Conduct provides as follows:

A member whose employment has terminated shall:

Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property. “Client papers and property” includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not[.] . . .

Section 2018.030 of the Code of Civil Procedure qualifies what must be provided to a client upon termination of the attorney-client relationship, stating that “[a] writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” (CCP, § 2018.030, subd. (a).)

Notwithstanding the nondiscoverability of work product under section 2018.030, the statute expressly provides that there is no work product privilege in legal malpractice cases. The section provides as follows:

In an action between an attorney and a client or a former client of the attorney, no work product privilege under this chapter exists if the work product is relevant to an issue of breach by the attorney of a duty to the client arising out of the attorney-client relationship. (CCP, § 2018.080.)

In support of their argument that the client files must be produced, Plaintiffs direct the Court to the decision in Metro-Goldwin-Mayer, Inc. v. Tracinda Corp. (1994) 25 Cal.App.4th 242 (“MGM”). Although the case is not directly on point, the Court does find the decision instructive. In that case, a certain law firm represented MGM and its majority shareholders in a merger transaction. (Id., at p. 244.) Following the merger, MGM, represented by another law firm, sued the majority shareholders alleging that they engineered the merger by means of fraud for their own financial benefit, leaving MGM financially unable to operate. (Id., at pp. 244-245.) The law firm that had initially represented MGM and the majority shareholders in the merger transaction continued to represent the majority shareholders in the second action.

MGM filed a motion for an order directing the law firm to provide it with access to all client files pertaining to the merger. (Id., at p. 245.) A discovery referee was appointed and recommended that 86 of 188 documents in the client file constituted attorney work product and need not be disclosed. (Id., at p. 246.) The trial judge adopted the discovery referee’s recommendation and MGM petitioned the court of appeal for review, requesting that immediate access to all of the documents be allowed. (Id.)

The court of appeal overturned the trial court’s order. The court first noted that “[o]ur research has revealed the existence of two lines of seemingly conflicting authority.” (Id., at p. 247.) The first line of authority, involving the application Rule 3-700 of the Rules of Professional Conduct holds that work product belongs to the client. (Id., citing e.g., Weiss v. Marcus (1975) 51 Cal.App.3d 590.) The second line of authority, decided under the statutory work-product rule, “holds that the attorney is the exclusive holder of the privilege for purposes of adversarial discovery conducted in the course of litigation.” (Id., citing e.g., Kerns Constr. Co. v. Super. Ct. (1968) 266 Cal.App.2d 405.)   

After a review of the conflict between Rule 3-700 of the Rules of Professional Conduct and former section 2018 of the Code of Civil Procedure, the court held that it “need not resolve the dispute presented with reference to either the statutory work product or the professional rule of conduct” because “[t]he simple fact is that one of the parties affected by the merger which is the subject of this action is being denied the 86 documents which reflect [the law firm’s] impressions, conclusions, opinions, legal research and theories concerning that merger while the other parties to the transaction enjoy access to this information.” (Id., at p. 248-249.)

Based upon that finding, the court held that the work product privilege was waived and that “[e]quity demands that either both parties should have the information or neither should.” (Id., at p. 249, citing Goldstein v. Lees (1975) 46 Cal.App.3d 614, 622.) Having found a waiver of the work product privilege, the court instructed the trial court to order the law firm to produce the previously withheld documents from the client file.

Here, the analysis is more straightforward that in the MGM case. Regardless of who was ultimately held to be an owner of the Newton Center in the underlying litigation, Berliner Cohen does not dispute that it represented the company as an organizational client. Along the same lines, the San Mateo Superior Court authorized payment from the company to Berliner Cohen because the law firm was representing the company’s interest in the underlying proceedings. As an organizational client, under Rule 3-700, the NewtonCenter is entitled to the client files generated by Berliner Cohen in its prior representation of the company. The fact that Mr. Tamir told Berliner Cohen not to turn over the file is no a non-issue because it is undisputed that he has relinquished any managerial authority in the company.

Moreover, unlike the MGM case, the present action does involve a claim for legal malpractice. Thus, Code of Civil Procedure section 2018.080 applies and the question becomes whether “work product is relevant to an issue of breach by the attorney of a duty to the client arising out of the attorney-client relationship.” (CCP, § 2018.080.) If so, the work product privilege does not apply and the work product generated by Berliner Cohen on behalf of the NewtonCenter must be produced along with the rest of the company’s client file.

Having reviewed Plaintiffs’ complaint, it seems clear that any work product generated by Berliner Cohen on behalf of the NewtonCenter is facially relevant to the company’s legal malpractice claim. The Newton Center alleges not only that Berliner Cohen was negligent in failing to make the determination that it could not represent both Mr. Tamir and the Newton Company, but also that the law firm severely over billed the company. Indeed, Plaintiffs’ motion is replete with language that, based upon the underlying order authorizing payment from the Newton Company, Berliner Cohen proceeded with “churning” the file to increase its fees.

Based upon the above analysis, the Court finds that Berliner Cohen has failed to demonstrate that it need not comply with Rule 3-700 of the Rules of Professional Conduct and further finds that, under Code of Civil Procedure section 2018.080, the work product privilege is not applicable in this legal malpractice case. Berliner Cohen has cited no authority for the proposition that it may withhold a former client’s file and the Court has found none. Accordingly, because Berliner Cohen has not made a showing of good cause for the entry of a protective order, the law firm’s motion for a protective order is DENIED.[4]

Conclusion and Order

Berliner Cohen’s request for judicial notice is GRANTED.

Plaintiffs’ request for judicial notice is GRANTED.

In furtherance of the further hearing for 10 July 2014, this Court will ask the following questions?

1. Was Berliner representing Mr. Tamir in an individual capacity while also representing the company?
   1. If yes, in what capacity was it representing Mr. Tamir. Is there an agreement for services or the like that demonstrates the scope of representation?
2. If Mr. Tamir was represented as an individual, was there a firewall to prevent the potential conflicting interests between an individual and a company?
3. Were there times when Mr. Tamir would reflect both his personal interest and the business interest?
   1. If no, then why does Mr. Tamir have any say over the business files?
4. Berliner keeps referencing conflicting instructions about the release of information. Should that not have clued Berliner in to the problem a year and a half ago?
5. What investigation did Berliner do to investigate who was at the ‘top’ of the company?
6. What steps did Berliner take to remove the conflict?
7. If this were an issue of the Executive Director/CEO/head of company resigning and the new ED/CEO/head of company requesting files with no underlying litigation, would you turn the files over?
8. Attorney-Client privilege is based on an expectation that secrets told to the attorney by the client would be kept. Who is Berliner alleging to be the client?
9. Hypothetical: Assume no litigation. Mr. Soncino, as the proper head of the business, requests the file. Would you hand it over? If not, why not?