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

Summary

The United States District Court for the Western District of Wisconsin ruled on plaintiffs’ motion to compel discovery in a dog-bite negligence action. The court ordered production of the defendant’s handwritten notes, insurer letter, witness-interview records, and certain photographs, subject to their existence, but denied plaintiffs’ request to re-depose the defendant. The court also ordered production within one week and directed the parties to bear their own costs.

Holdings

1. The handwritten notes were not protected work product because they were made immediately after the incident, when litigation was only a remote possibility, and they appeared to be a factual account rather than attorney mental impressions or legal theories. Even assuming some protection applied, plaintiffs demonstrated substantial need and lack of an equivalent source.
2. The September 27, 2022, letter was discoverable regardless of whether it qualified as work product because it contained factual information otherwise unavailable after the loss of the handwritten notes, and plaintiffs therefore had substantial need for it.
3. Defendants failed to establish that the records of the April 2023 interview of Bill Bachman were prepared because of the prospect of litigation rather than as part of the insurer's ordinary business investigation, so defendants had to produce them.
4. Defendants had to produce existing photographs sufficient to show the dog and camper as close to the time of the incident as possible, if any such photographs existed, but they were not required to create new photographs.
5. Plaintiffs were not entitled to re-depose Tomaino because they knew before the original deposition that defendants were withholding documents, chose to proceed without moving to compel or delaying the deposition, and failed to establish good cause for a second deposition.

Questions Presented

1. Whether Tomaino's contemporaneous handwritten notes were protected attorney work product and, if so, whether plaintiffs demonstrated substantial need for them.
2. Whether Tomaino's September 27, 2022, letter to his insurer was protected attorney work product or was discoverable because it contained factual information unavailable from another source.
3. Whether the records of the insurer's April 2023 interview of witness Bill Bachman were prepared in anticipation of litigation or instead in the ordinary course of the insurer's business.
4. Whether defendants were required to produce existing photographs sufficient to show Tomaino's dog and camper as close to the incident as possible.
5. Whether plaintiffs had good cause to re-depose Tomaino after obtaining the disputed discovery materials.

Disposition

other