Evidence--Victim's Bill of Rights Protection Re Deposition in Civil Matter Winterbottom v. Ronan

Evidence--Victim's Bill of Rights Protection Re Deposition in Civil Matter Winterbottom v. Ronan, 609 Ariz. Adv. Rep. 54 (App. Div. I, May 20, 2011) (J. Kessler) VICTIM'S BILL OF RIGHTS DOES NOT PROTECT VICTIM FROM DEPOSITION BY ATTY FORMERLY REPRESENTING PERPETRATOR IN PERPETRATOR'S ATTY MALPRACTICE ACTION AGAINST FORMER ATTY

Winterbottom pled guilty to child molestation and was sued civilly by the victims. The attorney representing him in the civil action eventually withdrew when Winterbottom could no longer afford to pay his bills. The attorney allegedly failed to respond timely to discovery requests before he withdrew. After he withdrew, Winterbottom settled the civil claim with the victims for $2.2 million with an agreement to pay $111,500 of the stipulated $2.2 million judgment in exchange for a covenant by the victims not to execute against him except as to up to 1/3 of any proceeds he might collect in a malpractice action against the attorney.

Winterbottom then sued the attorney and the attorney sought to depose the victims concerning the settlement. The victims sought a protective order under the Victim's Bill of Rights ARS sec. 13-4433 (A) and Rules of Civil Procedure. The trial court denied the protection and the victims brought this Special Action. The Arizona Court of Appeals agreed with the trial court and denied the protection.

Article II, section 2.1 of the Arizona Constitution provides that the victim of a crime "may refuse to be interviewed or deposed by the defendant, defendant's attorney or other person acting on behalf of the attorney." Here although the attorney had at one time represented the defendant Winterbottom in the tort claim brought by the victims, he was not representing him in the pending malpractice action. To the contrary the attorney was completely adverse to Winterbottom in the malpractice action and in no way was acting on the defendant's behalf or in his interest in seeking to depose the victims regarding the settlement. Therefore the constitutional protection had no application.

Arizona Rule of Civil Procedure Rule 26 (c) protects a party from discovery that would be "unduly embarrassing" but here the attorney agreed to only question the victims about the settlement and not the underlying crimes and molestation. The trial court rightfully accepted this self-imposed limitation thus taking the deposition outside of any concern under Rule 26 (c).