Bamonte v. Charatan

Background

The plaintiffs in this wrongful-death action are Carol Bamonte, as administrator of the estate of Kathleen McCormack Durst; James McCormack; Virginia McKeon; and Mary Hughes, as administrators of the estate of Anne C. McCormack, a distributee of Kathleen Durst’s estate. They sued Debrah Lee Charatan, in her capacity as the nominated executor of Robert Durst’s estate.

The plaintiffs served a subpoena seeking to depose Douglas Durst, who is not a party to the case and is Robert Durst’s brother. The subpoena sought testimony about the facts and circumstances of Kathleen Durst’s wrongful death and events after her death. Douglas had testified at Robert Durst’s California criminal trial concerning the murder of Susan Berman. Douglas moved under Federal Rules of Civil Procedure 26 and 45 to quash, or cancel, the subpoena. Alternatively, he sought a protective order limiting questioning that would repeat his earlier testimony.

Legal standards

Discovery generally may cover nonprivileged information relevant to a claim or defense and proportionate to the needs of the case. A court may limit discovery that is unreasonably cumulative or duplicative, or that can be obtained from another source that is more convenient, less burdensome, or less expensive. Rule 45 also permits a court to quash or modify a subpoena that subjects a person to an undue burden.

A protective order may be issued for good cause to prevent annoyance, embarrassment, oppression, or undue burden or expense. It may forbid inquiry into particular matters or limit discovery to specified subjects.

Ruling on the motion to quash

The court found that the requested deposition testimony was relevant to the wrongful-death claim. Douglas did not dispute that the subject matter was relevant. The court also found that some of the information could not be obtained from a better alternative source. Douglas was the only surviving participant with knowledge of his conversations with Kathleen and Robert, and he was the only person who could explain the basis for his own beliefs and public statements.

The court rejected Douglas’s general assertions that testifying would be frightening and that the plaintiffs’ lawsuits against members of the Durst family made the deposition an effort to embarrass or harass the family. The court also rejected his argument that the deposition was cumulative or duplicative because a transcript of his California trial testimony was publicly available. The California trial involved a different victim, the scope of Douglas’s testimony about Kathleen’s disappearance had been limited by the criminal trial’s rules and evidentiary rulings, and some knowledgeable witnesses were deceased. The court further found that the plaintiffs had identified relevant areas that were not addressed, or were not fully addressed, in Douglas’s prior testimony.

The court therefore denied Douglas’s motion to quash the subpoena. The court noted that this ruling required Douglas to sit for a deposition but did not decide any disclosure obligations he might have under state law concerning information given to the Westchester County District Attorney.

Protective order

Although the court found insufficient grounds to cancel the deposition, it found good cause to limit its scope because Douglas had previously testified under oath about some of the underlying events. The court ruled that the plaintiffs may not ask Douglas the same questions that were asked and answered during his California criminal-trial examination.

The plaintiffs may, however, question Douglas about the basis for beliefs or statements reflected in his trial testimony, when those matters were not previously asked and answered. They may also ask follow-up questions concerning the basis for his trial answers.

Disposition

Douglas’s motion to quash the subpoena is denied. Douglas’s motion for a protective order limiting the scope of examination is granted. The clerk was directed to terminate the pending motion.