George Zimmerman v State of Florida Opinion 13-1233

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 2013
NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
GEORGE ZIMMERMAN,
Petitioner,
v. Case No. 5D13-1233
STATE OF FLORIDA, ET AL.,
Respondents.
________________________________/
Opinion filed June 3, 2013
Petition for Certiorari Review of Order

from the Circuit Court for Seminole County,
Debra S. Nelson, Judge.
Mark M. O'Mara, of O'Mara Law Group,

and Donald R. West, of Don West Law
Group, P.A., Orlando, for Petitioner.
Pamela Jo Bondi, Tallahassee, Attorney

General, and Pamela J. Koller, Assistant
Attorney General, Daytona Beach, for
Respondent, State of Florida.
Bruce B. Blackwell, of King, Blackwell,

Zehnder & Wermuth, P.A., and
Shayan H. Modarres, of The Modarres
Law Firm, Orlando, for Respondent,
Benjamin L. Crump, Esq.
PER CURIAM.
Petitioner, George Zimmerman ("Zimmerman"), seeks certiorari review of the trial
court's order denying his request to take the deposition of attorney Benjamin L. Crump.
We conclude that Zimmerman was entitled to take a limited deposition of Crump to
inquire as to the substance of Crump's interview of Witness 81 and the circumstances
surrounding the interview. We grant the writ because we would be unable to ascertain
the degree of harm resulting from the wrongful denial of this discovery in a plenary
appeal. See, e.g., Giacalone v. Helen Ellis Mem’l Hosp., 8 So. 3d 1232, 1234-35 (Fla.
2d DCA 2009) (although certiorari is rarely available to review orders denying discovery
because the harm can usually be remedied on appeal, relief by writ of certiorari is
appropriate when "there is no practical way to determine after judgment how the
requested discovery would have affected the outcome of the proceedings.").
In this high profile case, Zimmerman was charged by information on April 11,
2012, with second degree murder. The charges arose from an incident on February 26,
2012, in which Zimmerman fatally shot Trayvon Martin. During interviews with police,
Zimmerman asserted that he shot Martin in self-defense.
On March 19, 2012, Crump, an attorney retained by Martin's family, conducted a
telephone interview of Witness 8. Witness 8 is a potentially crucial witness in this case
because the individual is alleged to have been on the phone with Martin moments
before his death. Crump made a recording of the interview, but the recording is
incomplete and of very poor quality. Two members of the media were present with
Crump at the time he conducted the telephone interview of Witness 8, and portions of
the recorded interview were aired on national television the following day.
Initially, Crump agreed to submit to a deposition. However, on the date of the
scheduled deposition, Crump filed a fifteen-page affidavit with the court and asked the
1
Several witnesses have been publically identified only by assigned numbers to
protect their privacy due to the intense media attention this case has generated.
2
court to accept the affidavit in lieu of being required to give a deposition. It was Crump's
position that the affidavit provided a complete accounting of the circumstances
surrounding the recording of Witness 8's interview. In response, Zimmerman asserted
that the affidavit would not be an adequate substitute for deposition testimony.
Ultimately, after a hearing on Zimmerman's motion, the trial court entered a
written order denying Zimmerman's request to depose Crump. In its order, the trial
court found that Crump was "an opposing counsel" and, pursuant to the test enunciated
in Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986), could only be
required to submit to deposition upon a showing that:
1. No means existed to obtain the desired information other

than to depose opposing counsel;
2. The information sought was relevant and nonprivileged;
3. The information was crucial to preparation of the case.
See also Boughton v. Cotter Corp., 65 F.3d 823, 830 (10th Cir. 1995) (deposition of an
opponent's counsel is improper where these three criteria are not met). The trial court
determined that Zimmerman had failed to meet this high burden.
The trial court also found that Crump could not be compelled to disclose any
information regarding his interview of Witness 8 because the information constituted
protected work product obtained by Crump in his capacity as an attorney for the Martin
family preparing for possible future civil litigation against Zimmerman.
We respectfully disagree with the trial court's analysis. First, the fact that Crump
represents Martin's family does not make him "an opposing counsel." As acknowledged
by Crump in his affidavit, he was not acting as a lawyer for the State or the defendant,
3
nor could his interview of Witness 8 be found to constitute trial preparation in the
pending criminal case below.
The Shelton test was intended to protect against the ills of deposing opposing
counsel in a pending case that could potentially lead to the disclosure of the attorney's
litigation strategy. Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 730-31 (8th Cir.
2002). Because of a belief that the discovery process was being abused, the Shelton
test was erected as a barrier to protect trial attorneys from unnecessary depositions. Id.
However, the Shelton test does not apply where, as in the instant case, an attorney has
knowledge of facts relevant to the subject matter of the litigation and is merely advising
a client with respect to a related matter:
Thus, Pamida makes clear that the three Shelton criteria

apply to limit deposition questions of attorneys in only two
instances: (1) when trial and/or litigation counsel are being
deposed, and (2) when such questioning would expose
litigation strategy in the pending case.
United States v. Phillip Morris, Inc., 209 F.R.D. 13, 17 (D.D.C. 2002).
Second, we also conclude that any testimony given by Crump as to the
substance of his interview of Witness 8 and the surrounding circumstances thereto
would not violate the work product privilege because any privilege that may have
existed was waived when Crump conducted the interview in the presence of two media
representatives who subsequently aired portions of the interview on national television.
See Visual Scene, Inc. v. Pilkington Bros., 508 So. 2d 437, 442 (Fla. 3d DCA 1987)
(work product privilege waived where disclosure of information is made in manner that
is "inconsistent with the maintenance of secrecy from the disclosing party's adversary").
4
The information provided by Witness 8 is relevant to the determination of whether
Zimmerman is guilty of second degree murder (or a lesser included offense). Should
Witness 8 testify at trial, Zimmerman is entitled to discover whether such testimony is
consistent with prior statements made by Witness 8 to Crump and whether such
testimony was in any way influenced by the manner in which the interview in question
was conducted.
Finally, although not a basis of the trial court's ruling, we reject any suggestion
that Crump's affidavit would serve as an adequate substitute for a deposition. See
Patrick v. State, 104 So. 3d 1046, 1057 (Fla. 2012) ("Cross-examination is the principal
means by which the believability of a witness and the truth of his testimony are tested.")
In concluding that the trial court erred in denying Zimmerman an opportunity to
depose Crump, we caution that any deposition of Crump is to be limited to inquiry of
circumstances surrounding the interview of Witness 8 and the contents of such
interview. Defense counsel may not inquire into Crump's mental impressions regarding
Witness 8, nor may counsel inquire as to the reasons why Crump conducted the
interview in the manner in which he did. Additionally, we believe the work product
privilege precludes defense counsel from making inquiry as to the reason(s) Crump
attempted to locate Witness 8 and the methods employed to do so.
The deposition contemplated by our opinion should be relatively short and
straight forward. We are confident that the trial judge will be able to take the steps
necessary to ensure the deposition is limited to the subject areas described above.
Petition for Writ of Certiorari GRANTED.
LAWSON, EVANDER and COHEN, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JANUARY TERM 2013

NOT FINAL UNTIL TIME EXPIRES TO

v. Case No. 5D13-1233

STATE OF FLORIDA, ET AL.,

Opinion filed June 3, 2013

Petition for Certiorari Review of Order

Mark M. O'Mara, of O'Mara Law Group,

Pamela Jo Bondi, Tallahassee, Attorney

Bruce B. Blackwell, of King, Blackwell,

Petitioner, George Zimmerman ("Zimmerman"), seeks certiorari review of the trial

inquire as to the substance of Crump's interview of Witness 81 and the circumstances

requested discovery would have affected the outcome of the proceedings.").

Zimmerman asserted that he shot Martin in self-defense.

On March 19, 2012, Crump, an attorney retained by Martin's family, conducted a

telephone interview of Witness 8. Witness 8 is a potentially crucial witness in this case

Initially, Crump agreed to submit to a deposition. However, on the date of the

position that the affidavit provided a complete accounting of the circumstances

surrounding the recording of Witness 8's interview. In response, Zimmerman asserted

Ultimately, after a hearing on Zimmerman's motion, the trial court entered a

required to submit to deposition upon a showing that:

1. No means existed to obtain the desired information other

2. The information sought was relevant and nonprivileged;

3. The information was crucial to preparation of the case.

determined that Zimmerman had failed to meet this high burden.

information regarding his interview of Witness 8 because the information constituted

family preparing for possible future civil litigation against Zimmerman.

pending criminal case below.

a client with respect to a related matter:

Thus, Pamida makes clear that the three Shelton criteria

Second, we also conclude that any testimony given by Crump as to the

substance of his interview of Witness 8 and the surrounding circumstances thereto

representatives who subsequently aired portions of the interview on national television.

Witness 8 testify at trial, Zimmerman is entitled to discover whether such testimony is

In concluding that the trial court erred in denying Zimmerman an opportunity to

depose Crump, we caution that any deposition of Crump is to be limited to inquiry of

circumstances surrounding the interview of Witness 8 and the contents of such

attempted to locate Witness 8 and the methods employed to do so.

The deposition contemplated by our opinion should be relatively short and

Petition for Writ of Certiorari GRANTED.

LAWSON, EVANDER and COHEN, JJ., concur.

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