IN THE district COURT OF appeal OF THE STATE the FLORIDA 5th DISTRICT JANUARY term 2013 NOT final UNTIL TIME EXPIRES TO file MOTION because that REHEARING and also DISPOSITION THEREOF IF FILED GEORGE ZIMMERMAN, Petitioner, v. Situation No. 5D13-1233 STATE that FLORIDA, ET AL., Respondents. ________________________________/ Opinion filed June 3, 2013 Petition because that Certiorari review of Order indigenous the Circuit Court because that Seminole County, Debra S. Nelson, Judge. Note M. O'Mara, that O'Mara thedesigningfairy.com Group, and Donald R. West, the Don West thedesigningfairy.com Group, P.A., Orlando, for Petitioner. Pamela Jo Bondi, Tallahassee, lawyer General, and Pamela J. Koller, Assistant attorney General, Daytona Beach, because that Respondent, State of Florida. Bruce B. Blackwell, that King, Blackwell, Zehnder & Wermuth, P.A., and Shayan H. Modarres, of The Modarres thedesigningfairy.com Firm, Orlando, for Respondent, Benjamin L. Crump, Esq. Every CURIAM. Petitioner, George Zimmerman ("Zimmerman"), seeks certiorari testimonial of the attempt court's bespeak denying his request to take it the deposition of attorney Benjamin L. Crump. We conclude that Zimmerman was entitled to take a limited deposition the Crump come inquire regarding the problem of Crump's interview of Witness 81 and the circumstances surrounding the interview. We grant the writ due to the fact that we would certainly be can not to ascertain the degree of harm resulting indigenous the wrongful denial of this discovery in a everyone appeal. See, e.g., Giacalone v. Helen Ellis Mem together Hosp., 8 So. 3d 1232, 1234-35 (Fla. 2d DCA 2009) (although certiorari is rarely obtainable to testimonial orders denying discovery since the injury can generally be remedied ~ above appeal, relief by writ of certiorari is suitable when "there is no practical means to identify after judgment how the requested discovery would have affected the result of the proceedings."). In this high profile case, Zimmerman to be charged by details on April 11, 2012, with second degree murder. The charges emerged from an event on February 26, 2012, in i beg your pardon Zimmerman fatally shoot Trayvon Martin. Throughout interviews with police, Zimmerman asserted the he shot Martin in self-defense. On march 19, 2012, Crump, an attorney preserved by Martin's family, carried out a phone call interview of Witness 8. Angry 8 is a potentially vital witness in this case due to the fact that the separation, personal, instance is alleged to have been top top the phone with Martin moments prior to his death. Crump made a record of the interview, but the recording is incomplete and of an extremely poor quality. 2 members of the media were current with Crump at the time he performed the telephone interview the Witness 8, and also portions that the videotaped interview to be aired on national television the complying with day. Initially, Crump i agree to submit to a deposition. However, ~ above the day of the reserved deposition, Crump filed a fifteen-page affidavit through the court and asked the 1 number of witnesses have been publically determined only by assigned numbers to protect their privacy because of the extreme media attention this instance has generated. 2 court to expropriate the affidavit in lieu of being required to offer a deposition. It to be Crump's position that the affidavit detailed a complete audit of the circumstances bordering the record of witness 8's interview. In response, Zimmerman asserted that the affidavit would certainly not it is in an adequate substitute for deposition testimony. Ultimately, after ~ a hearing on Zimmerman's motion, the trial court gone into a composed order denying Zimmerman's inquiry to depose Crump. In that is order, the trial court found that Crump was "an the opposite counsel" and, pursuant come the check enunciated in Shelton v. American motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986), can only be compelled to send to deposition upon a reflecting that: 1. No means existed to achieve the wanted information other than to depose the contrary counsel; 2. The details sought was relevant and nonprivileged; 3. The info was an important to ready of the case. See additionally Boughton v. Cotter Corp., 65 F.3d 823, 830 (10th Cir. 1995) (deposition of an opponent's counsel is improper whereby these three criteria are not met). The psychological court figured out that Zimmerman had actually failed to meet this high burden. The psychological court likewise found that Crump might not be compelled come disclose any kind of information about his interview of Witness 8 due to the fact that the information constituted protected work product derived by Crump in his volume as an attorney because that the Martin family preparing for feasible future civil litigation versus Zimmerman. We respectfully disagree through the trial court's analysis. First, the fact that Crump represents Martin's family members does not make that "an opposing counsel." As identified by Crump in his affidavit, that was no acting as a thedesigningfairy.comyer because that the State or the defendant, 3 nor might his interview that Witness 8 be uncovered to constitute trial ready in the pending criminal situation below. The Shelton test was intended come protect versus the ills that deposing the contrary counsel in a pending case that might potentially bring about the disclosure of the attorney's legal action strategy. Pamida, Inc. V. E.S. Originals, Inc., 281 F.3d 726, 730-31 (8th Cir. 2002). Due to the fact that of a id that the discovery procedure was gift abused, the Shelton test was set up as a barrier to protect trial attorneys from unnecessary depositions. Id. However, the Shelton check does not use where, together in the instant case, one attorney has actually knowledge that facts appropriate to the subject issue of the litigation and is simply advising a customer with respect come a connected matter: Thus, Pamida renders clear that the three Shelton criteria use to border deposition questions of attorneys in just two instances: (1) when trial and/or legal action counsel room being deposed, and also (2) as soon as such questioning would expose litigation strategy in the pending case. United says v. Phillip Morris, Inc., 209 F.R.D. 13, 17 (D.D.C. 2002). Second, we also conclude that any kind of testimony offered by Crump as to the substance of his interview of Witness 8 and the bordering circumstances thereto would not violate the job-related product privilege because any kind of privilege the may have existed to be waived once Crump conducted the interview in the presence of 2 media representatives who subsequently aired sections of the interview on nationwide television. View Visual Scene, Inc. V. Pilkington Bros., 508 So. 2d 437, 442 (Fla. 3d DCA 1987) (work product privilege waived wherein disclosure of details is do in manner the is "inconsistent through the maintenance of secrecy from the disclosing party's adversary"). 4 The information listed by witness 8 is appropriate to the determination of even if it is Zimmerman is guilty of 2nd degree killing (or a lesser included offense). Should Witness 8 testify at trial, Zimmerman is entitled to discover whether together testimony is continuous with prior statements made by witness 8 to Crump and also whether together testimony was in any means influenced by the way in i beg your pardon the interview in question was conducted. Finally, although not a basis of the attempt court's ruling, us reject any kind of suggestion the Crump's affidavit would certainly serve together an sufficient substitute because that a deposition. Check out Patrick v. State, 104 So. 3d 1046, 1057 (Fla. 2012) ("Cross-examination is the principal method by i m sorry the believability of a witness and the reality of his testimony space tested.") In concluding the the attempt court erred in denying Zimmerman an chance to depose Crump, we caution that any deposition that Crump is to be limited to inquiry of circumstances surrounding the interview of Witness 8 and the components of such interview. Defense counsel may not inquire right into Crump's mental impressions about Witness 8, nor may counsel inquire as to the factors why Crump performed the interview in the manner in which the did. Additionally, we believe the job-related product privilege precludes defense counsel from making inquiry regarding the reason(s) Crump attempted to situate Witness 8 and also the methods employed to perform so. The deposition contemplated by ours opinion have to be reasonably short and also straight forward. We space confident that the trial referee will have the ability to take the steps essential to for sure the deposition is limited to the subject areas described above. Petition for Writ that Certiorari GRANTED.
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Thedesigningfairy.comSON, EVANDER and also COHEN, JJ., concur. 5