Decker, Cody et al v. Tomaino, Jimmy et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CODY DECKER, et al.,
Plaintiffs,
v.
JIMMY TOMAINO, et al.,
Defendants.
OPINION and ORDER
25-cv-277-wmc
Plaintiffs Cody Decker and UnitedHealthcare Insurance Company are suing defendants
Jimmy Tomaino and Plymouth Rock Assurance Preferred Corporation after Tomaino’s dog
allegedly bit and injured Decker at a public campground in July 2022. Following the incident,
Tomaino made handwritten notes about the event and later sent a letter to his insurer. After
filing suit, plaintiffs sent discovery requests seeking, among other things, Tomaino’s recorded
or written statements about the incident and materials defendants’ insurance investigator
created after interviewing a witness. Defendants withheld certain responsive documents as
attorney work product. After meet-and-confer efforts failed, plaintiffs filed a motion to compel
the withheld materials and for leave to take a second deposition of Tomaino should any
materials be compelled. Dkt. 21.
For the reasons below, the motion is GRANTED in part and DENIED in part.
BACKGROUND
Plaintiffs allege that Tomaino’s dog, Koda, bit Decker on his chest and forearm at a
public campground in Portage, Wisconsin on July 16, 2022. Dkt. 1-1 at 4. “Immediately
following [the dog bite],” Tomaino made some handwritten notes describing the incident. Dkt.
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27. Defendants report that these notes have since been lost. Id. In the months following the
incident, Tomaino received letters from Decker’s counsel, the first in August 2022 and another
October 2022. Dkts. 24-1 & 24-2.
On September 27, 2022, after Tomaino received the first letter, Tomaino wrote and
sent a letter to his insurance company. Dkt. 24-11. Defendants produced a version of this
letter in discovery that was largely redacted on work product grounds. The unredacted potions
state that Tomaino wrote the letter after he “talk[ed] to [his] attorneys,” who recommended
that he notify and provide a statement to his insurance company. Id. Tomaino also makes
reference to possibly being sued by Decker. Tomaino testified that this letter “fully reflected”
the contents of his near-contemporaneous handwritten notes that are now lost. Dkt. 27.
The lead-up to this case unfolded over the next two years. The defendant insurance
company conducted an investigation, during which its investigator interviewed Bill Bachman,
a witness of the incident, in April 2023. See Dkt. 24-4 at 3. At the end of that year, Decker’s
counsel sent a formal demand letter seeking monetary reimbursement for damages sustained
from the alleged bite. Dkt. 24-3. Ultimately, plaintiffs filed suit against defendants in
Wisconsin state court in March 2025, Dkt. 1-1, which was removed here in April. Dkt. 1.
Plaintiffs served several requests for production seeking, among other things, copies of
statements made by plaintiffs and witnesses and Koda’s veterinarian records. Dkt. 24-4.
Defendants withheld several responsive documents on the basis that they were protected
attorney work product. See id. In October 2025, plaintiffs deposed Tomaino who confirmed
the existence of certain statements. See Dkt. 24-7. In December 2025, plaintiffs’ counsel sent
defense counsel a letter insisting that the statements be produced. Id. After meet-and-confer
correspondence failed to resolve the issues, plaintiffs filed this motion to compel seeking an
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order denying defendants’ objection to the documents as protected work product, compelling
the production of the documents, and permitting a second deposition of Tomaino. Dkt. 21.
The motion has been fully briefed and is ripe for a decision.
LEGAL STANDARD
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case, considering the importance
of the issues at stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not be admissible in evidence to be
discoverable.” Fed. R. Civ. P. 26(b)(1).
Rule 26(b)(3), commonly known as the “work product rule,” prohibits discovery of
otherwise-discoverable “documents and tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3)(A).
The burden of establishing a privilege or protection rests on the party invoking it. United States
v. Nobles, 422 U.S. 225, 237–38 (1975).
The work product rule is intended to protect attorney thought processes and mental
impressions and extends only to documents that were created in anticipation of litigation.
Binks Mfg. Co. v. Nat'l Presto Indus., Inc., 709 F.2d 1109, 1118–19 (7th Cir. 1983). The test is
whether, “in light of the nature of the document and the factual situation in the particular case,
the document can fairly be said to have been prepared or obtained because of the prospect of
litigation.” Id. (citation omitted). “[A] remote prospect of future litigation is not sufficient to
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invoke the work product doctrine.” In re Special September 1978 Grand Jury (II), 640 F.2d 49,
65 (7th Cir. 1980). Of the two categories of work product, opinion work product that reflects
the attorney's mental processes is more “scrupulously protected” than fact work product.
Caremark, Inc. v. Affiliated Computer Servs., Inc., 195 F.R.D. 610, 616 (N.D. Ill. 2000).
The Seventh Circuit has further elaborated that the standard requires distinguishing
between materials prepared in the ordinary course of business “as a precaution for the remote
aspect of litigation” and those prepared “because some articulable claim, likely to lead to
litigation ... ha[s] arisen.” Logan v. Commercial Union Ins. Co., 96 F.3d 971, 977 (7th Cir. 1996)
(emphasis in original). For example, if a company investigates an accident or event as an
ordinary business procedure, any investigative documents born out of that investigation are
generally not privileged work product. Nat'l Presto Indus., 709 F.2d at 1118–19. Whether a
document is protected work product “depends on the motivation behind its preparation, rather
than on the person who prepares it.” Caremark, Inc., 195 F.R.D. at 614.
Finally, unlike other evidentiary privileges, a party may discover certain documents
protected by the work product doctrine by showing “substantial need” and an inability to
obtain equivalent information “without undue hardship.” Fed. R. Civ. P. 26(b)(3)(A)(ii).
However, “opinion” work product, like mental impressions, conclusions, opinions, or legal
theories, is never discoverable. Fed. R. Civ. P. 26(b)(3)(B).
ANALYSIS
Plaintiffs’ motion seeks four distinct items or categories of information and leave to
depose defendant Tomaino again. The court addresses each in turn.
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A. Handwritten notes
Plaintiffs seek Tomaino’s handwritten notes that he reportedly made “immediately
after” the incident. Dkt. 22 at 7. Based on the record, the court finds that these notes are not
protected work product. The notes were made far too close in time to the incident for Tomaino
to have reasonably anticipated litigation. In the immediate aftermath, litigation was a mere
remote possibility. Grand Jury (II), 640 F.2d at 65. Moreover, the notes were apparently
Tomaino’s factual recounting of what happened. There is no suggestion that he consulted with
an attorney prior to writing the notes, so there is no possibility that they would contain legal
opinions or theories. On these points alone, the court finds the notes are not protected and
must be produced. But even if there is some light work product protection, these notes
represent Tomaino’s contemporaneous factual recounting of the incident, which is relevant
information that has no substantial equivalent. Plaintiffs have a substantial need for this
information to prosecute their case, so the notes must be produced under the substantial need
exception as well. Fed. R. Civ. P. 26(b)(3)(A)(ii). Defendants represent that these notes were
lost and are not currently in their possession. Id. The court cannot order the production of
something that does not exist, but to the extent the notes are located after a reasonable search,
they must be produced.
B. The September 27, 2022, letter to insurer
Plaintiffs seek the September 27, 2022, written statement Tomaino authored and sent
to his insurance company. Dkt. 22 at 5. Defendants continue to withhold this letter on the
grounds that it is protected attorney work product. Dkt. 26 at 5.
Tomaino sent the letter to his insurance company after he received the first
correspondence from Decker’s attorney and after Tomaino purportedly spoke to an attorney.
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Although these events may cause some suspicion of eventual legal action, that suspicion does
not rise to the level of anticipation required for work product protection. Grand Jury (II), 640
F.2d at 65. This letter was written just a couple of months after the incident, when the parties
were still assessing their positions and next steps. This is borne out by the letter from Decker’s
attorney, which did not threaten legal action or make any demands, but rather asked to be
forwarded to Tomaino’s insurer. Dkt. 24-1 at 2. And while the unredacted portion of
Tomaino’s letter contemplates being sued, this does not appear to be a well-developed thought
that demonstrates serious litigation preparation and strategy. See Dkt. 24-11 at 3 (“So much
for this guy taking responsibility and not suing me.”).
But these points are overshadowed by the larger concern regarding the loss of the
contemporaneous, handwritten notes Tomaino wrote immediately after the incident. Tomaino
testified that their contents were “fully reflected in the [September 27] statement [he] provided
to [his] insurer.” Dkt. 27. Accordingly, even if the September 27 letter was work product,
plaintiffs have a stronger case that they have a substantial need for the information contained
in the letter that, as long as the handwritten notes remain lost, they have no other way of
accessing. See Fed. R. Civ. P. 26(b)(3)(A)(ii). Moreover, by Tomaino’s account, the
information contained in the letter is factual and does not reflect the kind of sensitive mental
impressions that are protected from disclosure. See Fed. R. Civ. P. 26(b)(3)(B).
Because the September 27, 2022, letter contains factual information to which plaintiffs
are entitled but that is otherwise unavailable, it is discoverable regardless of whether it is work
product and must be produced.
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C. Statements from the Bachman interview
Plaintiffs seek the statement that witness Bachman made to the insurance investigator
in April 2023. Dkt. 21 at 7. Defendants continue to withhold the information as protected
work product, arguing that the insurance company was aware of Decker’s retention of counsel
and Tomaino’s consultation with his attorneys before the interview, which indicate it was done
in anticipation of plaintiffs’ imminent suit. Dkt. 26 at 10.
The problem is that the information defendants cite does not, on its face, make a strong
case that the interview was conducted “because of the prospect of litigation,” Binks Mfg. Co.,
709 F.2d at 1118–19, as opposed to some other routine business practice of an insurance
company. Defendants contend that other “evidence suggest[s]” that, at the time of the
interview, the insurance company had “already completed its initial investigation into the
matter,” so the interview could not have been conducted in the ordinary course of business.
Dkt. 26 at 10–11. But the evidence to which defendants refer is an email sent by the insurance
file handler assigned to the case, in which they explain that they have “completed [their] initial
review of the file”—decidedly not, as defendants’ brief implies, that they have completed some
kind of initial investigation. Dkt. 28-9. In fact, the opposite is true. The handler goes on to
explain that they have “significant questions about how [Decker’s] injuries were sustained,”
suggesting the investigation was only beginning. Id. In short, defendants’ argument is
unconvincing. Because it is defendants’ burden to prove the statement is protected work
product, Nobles, 422 U.S. at 237–38, the court must resolve this issue in plaintiffs’ favor.
Defendants must produce the written records of the Bachman interview.
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D. Photos of Koda and Tomaino’s camper
Plaintiffs seek photographs of Koda and Tomaino’s camper, in which he was staying at
the campground. Dkt. 22 at 8. In plaintiffs’ first set of requests for production, they asked for
“any videos or motion pictures of the scene, the dog, or the plaintiffs, or any recreations or
simulations of the incident that have been made.” Dkt. 28-4 at 6. Defendants argue the
request seeks only pictures of Koda or the camper “from the time of the incident,” claim no
such photos exist, and that they are under no obligation to create new photos of the dog or
camper in response to the request. Dkt. 26 at 12.
The court does not agree with defendants’ interpretation of the request. To the extent
any exist, defendants must produce some photos sufficient to show Koda and the camper as
close to the time of the incident as possible. If defendants legitimately have no pictures of
Koda or the camper at all, there is nothing to produce, and there is no legal basis to compel
defendants to create such materials.
E. Re-deposing Tomaino
Plaintiffs argue the court should permit them to re-depose Tomaino now that the court
has ordered the production of the disputed materials. Dkt. 22 at 8–9. But plaintiffs were
aware that defendants were withholding certain documents, including a statement related to
the incident, before taking his deposition in October 2025. See Dkts. 32-1 & 32-3. Plaintiffs
were steadfast in proceeding with the deposition as scheduled despite lacking the requested
materials. See id. If the materials were indispensable to a thorough and satisfactory deposition,
plaintiffs should have moved to compel their production ahead of time and delayed the
deposition until after they were obtained. The court warned the parties at the outset of the
litigation that it “expects the parties to file discovery motions promptly if self-help fails.”
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Dkt. 9 at 4. Plaintiffs did not move to compel the production of the materials until months
after the October 2025 deposition. Although plaintiffs ultimately prevailed in obtaining the
materials, the later timing of their production is due to plaintiffs’ litigation strategy choices and
does not provide good cause to re-depose Tomaino at this juncture.
ORDER
IT IS ORDERED that:
1. Plaintiffs’ motion to compel, Dkt. 21, is GRANTED in part and DENIED in part
consistent with this order.
2. Defendants must produce responsive materials within one week of this order.
3. The parties bear their own costs in this matter.
Entered 27th day of March, 2026.
BY THE COURT:
/s/
________________________________________
ANITA MARIE BOOR
Magistrate Judge
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