Arizona Court of Appeals Division One Holds That the Victims’ Bill of Rights Does Not Preclude the Deposition of a Crime Victim by a Party Who Is Not the Defendant, the Defendant’s Attorney, or Another Person Acting on Behalf of the Defendant.

Jon Winterbottom plead guilty to the attempted molestation of his two step-daughters in 2000.  In 2004, the stepdaughters filed an action against Winterbottom seeking tort damages arising from the molestation.  During the tort action, Winterbottom’s attorney, John Lee, failed to respond to discovery requests and subsequently requested to withdraw from the case.  Winterbottom continued to represent himself throughout the lawsuit and eventually settled for $2.2 million.  As part of the settlement, Winterbottom agreed to pay $111, 500 and the crime victims agreed not to execute on the judgment except for one-third of any malpractice money Winterbottom might receive as a malpractice award against Lee. 

After Winterbottom filed his malpractice action against Lee, Lee’s counsel subpoenaed the crime victims for a deposition.  The crime victims filed a motion for a protective order arguing that the deposition violated the crime victims’ rights under Article 2, section 2.1 of the Arizona Constitution.  The crime victims further argued that the depositions would be unduly embarrassing pursuant to Arizona Rule of Civil Procedure 26(c).  The superior court denied the motion for a protective order but prohibited Lee’s counsel from asking the crime victims about the molestation.  The crime victims filed a petition for special action.  The Court of Appeals accepted jurisdiction and denied relief.

The Court of Appeals held that the plain language of Victims Bill of Rights permits the depositions at issue.  Section 2.1(A)(5) states that a crime victim has a right to “refuse an interview, deposition, or another discovery request by the defendant, the defendant’s attorney, or other person acting on behalf of the defendant.”  Relying upon this language, the Court held that the deposition of the victims by Lee’s counsel was permissible because Lee’s counsel was adverse to the defendant rather than a representative of or acting on the behalf of the defendant.  The Court additionally found that the trial court’s prohibition on any inquiry into the molestation sufficiently protected the crime victims from undue embarrassment as required by Rule 26(c).    

Judge Kessler authored the opinion; Judges Orozco and Irvine concurred.