114 So. 3d 446
Fla. Dist. Ct. App.2013Background
- Zimmerman seeks certiorari to review the trial court’s denial of his request to depose Crump.
- Crump conducted a telephone interview of Witness 8; the interview recording was incomplete and of poor quality, and portions aired on national television.
- Crump initially agreed to deposition but submitted a fifteen-page affidavit in lieu of deposition.
- The trial court applied Shelton v. American Motors Corp. and required showing of three criteria for deposing opposing counsel; it denied the deposition.
- The trial court also found Crump’s work product privileged and non-renderable for deposition.
- The Florida Supreme Court grants certiorari and allows a limited deposition about the interview of Witness 8 and surrounding circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zimmerman is entitled to depose Crump. | Zimmerman seeks information about Witness 8’s interview substance. | Crump as opposing counsel falls under Shelton’s heightened test to depose. | Yes; limited deposition permitted. |
| Whether Crump is exempt as opposing counsel under Shelton. | Crump was not acting as State/defense counsel; not trial counsel. | Crump as opposing counsel is subject to Shelton’s criteria. | Not barred by Shelton; not opposing counsel for purposes here. |
| Whether the deposition would violate work product privilege. | Work product applies; testimony should be protected. | Privilege waived because interview conducted in presence of media; information disclosed publicly. | Waiver found; deposition allowed on subject-matter questions. |
| Scope of deposition. | Deponent may reveal substantive content of Interview 8 and its influence on witness statements. | Limit questions to Crump’s interview circumstances; no mental impressions or litigation strategy. | Deposition limited to surrounding circumstances and contents of the interview. |
Key Cases Cited
- Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986) (deposition of opposing counsel requires stringent showing)
- Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726 (8th Cir. 2002) (three Shelton criteria limited to deposition of trial/litigation counsel)
- United States v. Philip Morris, Inc., 209 F.R.D. 13 (D.D.C. 2002) ( Shelton-like concerns on attorney depositions)
- Visual Scene, Inc. v. Pilkington Bros., 508 So.2d 437 (Fla. 3d DCA 1987) (work product waiver when disclosure to adversary occurs)
- Patrick v. State, 104 So.3d 1046 (Fla. 2012) (cross-examination is principal means to test witness credibility)
- Giacalone v. Helen Ellis Mem’l Hosp., 8 So.3d 1232 (Fla. 2d DCA 2009) (certiorari review of discovery orders appropriate when no practical remedy on appeal)