Mr Cooper Group Inc v. National Union Fire Insurance Company of Pittsburgh PA et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MR. COOPER GROUP, INC., 	§
§
Plaintiff, 	§
§
VS. 	§ 	Civil Action No. 3:24-CV-2857-D
§
NATIONAL UNION FIRE 	§
INSURANCE COMPANY OF 	§
PITTSBURGH, PA, et al., 	§
§
Defendants. 	§
MEMORANDUM OPINION
AND ORDER
In this diversity action, plaintiff Mr. Cooper Group, Inc. (“Mr. Cooper”) moves under
Fed. R. Civ. P. 37(a) to compel deposition testimony, answers to interrogatories, and the
production of documents that defendant National Union Fire Insurance Company of
Pittsburgh, PA (“National Union”) has withheld. For the reasons that follow, the court grants
the motion to compel in part and orders the parties to meet and confer regarding Mr.
Cooper’s Rule 30(b)(6) notice.
I
This diversity action arises out of the alleged failures of defendant Berkshire
Hathaway Specialty Insurance Company (“Berkshire”) and National Union to indemnify Mr.
Cooper for losses that Mr. Cooper alleges resulted from a criminal cyberattack. National
Union sold Mr. Cooper the National Union Policy (“National Union Policy”), a financial
institution bond that provides general coverage for listed losses. Mr. Cooper also purchased
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 1 of 20 PageID <pageID>

add-on coverage through Endorsement No. 6 of the National Union Policy, which is entitled
the Computer Crime Coverage Rider (“Rider”) (The court will refer to the National Union
Policy and the Rider collectively as the “Policies.”). Berkshire sold Mr. Cooper an excess
policy that continues coverage after the National Union Policy’s deductible and limits are
exhausted. Mr. Cooper alleges that Berkshire and National Union violated their obligations
under the respective policies by failing to pay the amount that Mr. Cooper claimed for losses
it incurred due to the cyberattack.
Mr. Cooper brought this lawsuit, alleging various state-law claims. 	Mr. Cooper’s
instant motion seeks to compel National Union to produce a witness for deposition under
Rule 30(b)(6), respond to interrogatories to which National Union objected, and produce
documents that National Union withheld as privileged. National Union opposes the motion,
which the court is deciding on the briefs, without oral argument.
II
Under Rule 26(b)(1), “[u]nless otherwise limited by court order . . . [p]arties 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.” And, under Rule 37(a)(3)(B), “[a] party
seeking discovery may move for an order compelling an answer, designation, production, or
inspection” when the party from whom discovery is sought fails to produce requested
documents or respond to an interrogatory or request for admission. The burden is on the
party resisting discovery—here, National Union—to establish why the motion to compel
should not be granted. Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2005)
- 2 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 2 of 20 PageID <pageID>

(Ramirez, J.); see also Lozano v. Dorel Juv. Grp., 2010 WL 11619687, at *1 (N.D. Tex. May
26, 2010) (Means, J.) (“Generally, the burden is on the party seeking to avoid compliance
with a discovery request to show that the request is improper[,]” such that “in the context of
a motion to compel, the party who opposes discovery must ‘show specifically how [the
request] is not relevant or how [the request] is overly broad, burdensome, or oppressive.’”
(second and third alterations in original) (quoting McLeod, Alexander, Powell and Apffel,
P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990))).
III
Mr. Cooper moves to compel National Union to produce a witness to testify on
underwriting topics, which presents the question whether Mr. Cooper’s deposition notice
complies with Rules 30(b)(6) and 26.
A
Rule 30(b)(6) governs deposition notices or subpoenas directed to an organization and
“imposes burdens on both the discovering party and the designating party.” Johnson v. Big
Lots Stores, Inc., 2008 WL 6928161, at *2 (E.D. La. May 2, 2008). “The effectiveness of
Rule 30(b)(6) ‘bears heavily upon the parties’ reciprocal obligations’ to identify topics with
particularity and prepare witnesses in good faith.” Westley v. Out W. Express, LLC, 2023
WL 8934937, at *3 (E.D. La. Dec. 27, 2023) (quoting Lipari v. U.S. Bancorp, N.A., 2008
WL 4942618, at *5 (D. Kan. Oct. 16, 2008)).
The discovering party’s deposition notice must “describe with reasonable particularity
the matters for examination” under Rule 30(b)(6). Rule 30(b)(6). This requirement aims to
- 3 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 3 of 20 PageID <pageID>

enable the designating party “to identify the person who is best situated to answer questions
about the matter, or to make sure that the person selected to testify is able to respond
regarding that matter.” 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure, § 2103, at 454 (3d ed. 2010). In light of this goal, the discovering party must
“take care to designate, with painstaking specificity, the particular subject areas that are
intended to be questioned, and that are relevant to the issues in dispute.” 	Matherne v.
Huntington Ingalls Inc., 2024 WL 21569, at *3 (E.D. La. Jan. 2, 2024) (quoting Pauls v.
Prudential Ins. Co. of Am., 2016 WL 6397564, at *4 (N.D. Tex. Oct. 28, 2016) (Horan, J.)).
“The court may limit a Rule 30(b)(6) deposition notice to the extent that it requests the
organization to designate an agent to testify on topics of information that are overly broad,
vague, or ambiguous.” 	United Healthcare Servs., Inc. v. Next Health, LLC, 2021 WL
9146632, at *2 (N.D. Tex. Oct. 13, 2021) (Rutherford, J.) (internal quotation marks omitted)
(quoting Dean v. Shell Pipeline Co., 2020 WL 2813521, at *3 (M.D. La. May 29, 2020)).
The discovering party’s deposition notice is also subject to limitations under Rule 26.
After the discovering party satisfies its burden, the designating party must choose “one
or more officers, directors, or managing agents” or “other persons who consent” to testify on
its behalf. Rule 30(b)(6). The designating party has a “duty to present and prepare a Rule
30(b)(6) designee beyond matters personally known to that designee or to matters in which
that designee was personally involved.” Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416,
433 (5th Cir. 2006) (citation omitted). The designating party “must prepare the designee to
the extent matters are reasonably available, whether from documents, past employees, or
- 4 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 4 of 20 PageID <pageID>

other sources.” 	Id. 	The designee’s statements are “binding” on the designating party
because, by making the designation, the designating party “represents that the [designee] has
authority to speak on [its] behalf.” 	Id. at 433. 	The discovering party may also use the
designee’s statements for any purpose. See Rule 32(a)(3) (“An adverse party may use for
any purpose the deposition of a party or anyone who, when deposed, was the party’s . . .
designee under Rule 30(b)(6)[.]”). Because the employee’s statements are binding and the
adverse party can use them for any purpose, this discovery device can elicit potentially
impactful testimony. The court must therefore ensure that the discovering party has met its
initial burden under Rule 30(b)(6). 	See Blackrock Allocation Target Shares: Series S
Portfolio v. Wells Fargo Bank, 2017 WL 9400671, at *2 (S.D.N.Y. Apr. 27, 2017).
B
As a preliminary matter, the court considers National Union’s contention that
testimony on underwriting is irrelevant to Mr. Cooper’s breach of contract claim because the
provisions of the Policies are unambiguous.
Whether an insurance policy is ambiguous is a question of law “for the court to decide
by looking at the contract as a whole in light of the circumstances present when the contract
was entered.” 	See Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc., 907
S.W.2d 517, 520 (Tex. 1995). 	“If a written contract is so worded that it can be given a
definite or certain legal meaning, then it is not ambiguous[,]” and a court will not admit
extraneous evidence to interpret its meaning. 	Id. 	For purposes of the instant motion,
however, the court need not decide whether the Policies’ provisions are ambiguous. “[The
- 5 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 5 of 20 PageID <pageID>

court] is merely determining whether such information is discoverable under Rule 26(b)(1).”
Meritage Homes of Tex., LLC v. AIG Specialty Ins. Co., 2024 WL 221448, at *6 (W.D. Tex.
Jan. 18, 2024).
Mr. Cooper has demonstrated a possibility that testimony on underwriting may be
relevant to a claim or defense. The parties’ dispute concerns whether the Policies’ definition
of “loss” covers the costs and expenses incurred by Mr. Cooper following the cyberattack
and whether the “theft of confidential information” exclusion applies to Mr. Cooper’s claim
for coverage. The underwriting testimony “may shed light on which interpretation of the
[Policies] is most reasonable” and whether National Union handled Mr. Cooper’s claim in
bad faith. Cinemark Holdings, Inc. v. Factory Mut. Ins. Co., 2021 WL 2662178, at *3 (E.D.
Tex. June 29, 2021); see also Trammell Crow Residential Co. v. St. Paul Fire & Marine Ins.
Co., 2013 WL 12124331, at *2 (N.D. Tex. Aug. 21, 2013) (Godbey, J.) (concluding that
underwriting information was relevant to interpretation of policy exclusions); Tim Long
Plumbing, Inc. v. Kinsale Ins. Co., 2020 WL 6559869, at *5 (E.D. Tex. Nov. 9, 2020)
(compelling production of “portions [of underwriting file] that reference [d]efendant’s
evaluation of what risks it expected to cover in the policy and how it interpreted the various
policy terms.”). That National Union expects to prevail on the policy interpretation issue at
summary judgment does not obviate its Rule 26 discovery obligations. See Lopez v. Don
Herring Ltd., 327 F.R.D. 567, 581 (N.D. Tex. 2018) (Horan, J.) (“[A] party . . . is not
excused from being subjected to[]discovery simply because the discovery is relevant to a
claim on which the resisting party believes that [it] will or should prevail.”); see also Union
- 6 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 6 of 20 PageID <pageID>

Pac. Res. Co. v. Aetna Cas. & Sur. Co., 894 S.W.2d 401, 405 (Tex. App. 1994, writ denied)
(“[T]he trial court should have permitted discovery to determine the intent of the parties from
. . . circumstances surrounding the making of the policy.”).
Accordingly, the court concludes that underwriting is an appropriate topic for a Rule
30(b)(6) deposition.
C
Notwithstanding the above conclusion, Mr. Cooper does not specify its proposed
deposition topics with reasonable particularity.1
1
Topics Nos. 2-3, 7, 9, and 10 are overbroad insofar as they call for testimony on topics
unrelated to Mr. Cooper’s claim. Topics Nos. 2, 3, 9, and 10 reference predecessor policies
or other riders. Other versions of the National Union Policy or Rider that are not at issue
here are irrelevant to the claims and defenses in this action. 	See Great W. Cas. Co. v.
Deepwell Energy Servs., LLC, 2024 WL 3087935, at *2 (W.D. Tex. Feb. 14, 2024),
objections overruled, 2024 WL 4103369 (W.D. Tex. May 14, 2024). Similarly, Topic No.
7—which concerns “[a]ll underwriting instructions, training, guidelines or standards,”
implemented by the deponent, “regardless of whether or not [these materials] were consulted
. . . in connection with the underwriting of the Policy,” P. App. (ECF No. 39-2) at 75—calls
1Because the parties’ Rule 30(b)(6) dispute centers around whether underwriting is
an appropriate deposition question topic, the court will focus on Topics Nos. 1-4, 7, 9-10, and
25, the eight topics that Mr. Cooper represents relate to the underwriting of the relevant
policies.
- 7 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 7 of 20 PageID <pageID>

for testimony on materials that do not bear on the interpretation of the Policies or their
exclusions. See Krantz v. State Farm Fire & Cas. Co., 2016 WL 320148, at *5 (M.D. La.
Jan. 25, 2016). Accordingly, Topics Nos. 2-3, 7, 9, and 10 are too broad.
2
Topic No. 25 is deficient because it fails to specify a source of information and time
period. Topic No. 25 concerns communications between the deponent and “any other third-
party.” P. App. (ECF No. 39-2) at 79. “District courts in this circuit have held that a topic
that covers information ‘from any source’ is improper under Rule 30(b)(6) because a
discovering party does not define a topic with reasonable particularity when it ‘requir[es] a
deponent to prepare a witness to address unspecified topics from unstated sources[.]’” MC
Trilogy Tex., LLC v. City of Heath, 2024 WL 1641233, at *4 (N.D. Tex. Apr. 16, 2024)
(Fitzwater, J.) (alterations in original) (citation omitted). It is also unclear whether Topic No.
25 is limited to the time period surrounding Mr. Cooper’s claim. “[D]istrict courts in this
circuit ‘routinely [find]’ ‘topics with no temporal restriction or element’ to be ‘overbroad’
under Rule 30(b)(6).” Id. (alteration in original) (citation omitted). Accordingly, the court
holds that Topic No. 25 is too broad.
D
Consistent with the duty to confer in good faith about the matters for examination in
anticipated depositions under Rule 30(b)(6), the court orders counsel to meet and confer
again regarding the scope of the Rule 30(b)(6) notice. See MC Trilogy, 2024 WL 1641233,
at *4. 	In particular, the court directs the parties confer about reducing the sources of
- 8 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 8 of 20 PageID <pageID>

information, limiting the scope of the notice’s subject matter, and confining the relevant time
period. The meeting must occur within 14 days of the date this memorandum opinion and
order is filed, and the parties’ joint report on the status of their conference must be submitted
within 7 days of the date their conference is completed. 	The court will then consider
modifying any noticed deposition topic that remains in dispute.
IV
Mr. Cooper also moves to compel answers to Interrogatories Nos. 5, 6, 16 and 17.
A
“Federal Rule of Civil Procedure 33(a)(2) provides that ‘[a]n interrogatory may relate
to any matter that may be inquired into under Rule 26(b).’” Lopez, 327 F.R.D. at 578-79
(alteration in original) (quoting Rule 33(a)(2)). “Generally, an interrogatory may relate to
any non-privileged matter that is relevant to any party’s claim or defense and proportional
to the needs of the case.” Pilver v. Hillsborough Cty., 2016 WL 4129282, at *3 (M.D. Fla.
Aug. 3, 2016).
“An interrogatory is not objectionable merely because it asks for an opinion or
contention that relates to fact or the application of law to fact.” 	Rule 33. 	A “contention
interrogatory” generally refers to “an interrogatory that asks a party to state what it contends,
state whether it makes a specified contention, take a position and explain or defend the
position concerning how the law applies to facts, or state the legal or theoretical basis for a
contention.” InternetAd Sys., LLC v. ESPN, Inc., 2004 WL 5181346, at *2 (N.D. Tex. Oct.
8, 2004) (Fitzwater, J.). Contention interrogatories are “not necessarily objectionable and
- 9 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 9 of 20 PageID <pageID>

may even be advisable.” Id. Rule 33(c) and the pertinent Advisory Committee notes support
the conclusion that “it is within a court’s discretion to decide when an otherwise-proper
interrogatory must be answered.” Id. And “the court may order that such an interrogatory
need not be answered until after designated discovery has been completed or until a pre-trial
conference or other later time.” Id. (quoting In re Convergent Techs. Sec. Litig., 108 F.R.D.
328, 333 (N.D. Cal. 1985)).
B
The court begins with Mr. Cooper’s Interrogatories Nos. 5 and 6.
1
Mr. 	Cooper’s 	Interrogatory 	No. 	5 	asks 	National 	Union 	to 	“[d]escribe 	the
circumstances in which [it] first anticipated litigation concerning Mr. Cooper’s Claim,
including the date on which litigation was first anticipated, by whom, and why.” P. App.
(ECF No. 39-2) at 89. Mr. Cooper’s Interrogatory No. 6 asks National Union to “[d]escribe
the circumstances in which [it] first retained outside counsel in connection with Mr. Cooper’s
Claim, including the date on which counsel was first retained, the identity of each Person
involved in the decision to retain counsel, and the reason(s) for the retention.” Id. National
Union objects to these interrogatories, contending that they are irrelevant and compound,
require National Union to marshal its evidence in support of its claims and defenses, and seek
privileged information.
2
National Union’s boilerplate objections are insufficient to defeat a motion to compel.
- 10 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 10 of 20 PageID <pageID>

See Hunsinger v. Alpha Cash Buyers, LLC, 2022 WL 1128730, at *2 (N.D. Tex. Apr. 15,
2022) (Fitzwater, J.). Moreover, Interrogatories Nos. 5 and 6 do not require National Union
to divulge information protected by the attorney-client privilege or the work product doctrine.
The 	attorney-client 	privilege 	applies 	“merely 	to 	the 	disclosure 	of 	attorney 	client
communications[,]” not underlying facts or the informational context of communications.
In re Tex. Farmers Ins. Exch., 990 S.W.2d 337, 341 (Tex. App. 1999). 2 Likewise, the work
product doctrine covers documents and materials prepared in anticipation of litigation.
S.E.C. v. Brady, 238 F.R.D. 429, 443 (N.D. Tex. 2006) (Ramirez, J.). 	Disclosure of the
circumstances in which National Union first anticipated litigation or first retained counsel
does not require that National Union reveal the substance of protected communications,
documents, or materials. See, e.g., In re Bertucci Contracting Co., 2014 WL 2204086, at *8
(E.D. La. May 27, 2014) (“[T]he Court also finds that when the meetings took place, the
attendees, and the dates on which the attendees formally retained counsel are underlying facts
that are completely discoverable.”); BidPrime, LLC v. SmartProcure, Inc., 2018 WL
6588574, at *4 (W.D. Tex. Nov. 13, 2018) (ordering nonmovant to respond to request for
2Fed. R. Evid. 501 provides that, “in a civil case, state law governs privilege regarding
a claim or defense for which state law supplies the rule of decision.” The parties appear to
agree that Texas law governs National Union’s claim of attorney-client privilege. 	The
applicability of the work product doctrine, however, is governed by federal law. See Jolivet
v. Compass Grp. USA, Inc., 340 F.R.D. 7, 17 (N.D. Tex. 2021) (Horan, J.).
- 11 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 11 of 20 PageID <pageID>

production seeking information regarding the date that nonmovant retained counsel).3
Accordingly, the court grants National Union’s motion to compel responses to
Interrogatories Nos. 5 and 6.
C
The court now turns to Mr. Cooper’s Interrogatories Nos. 16 and 17.
1
Mr. Cooper’s Interrogatory No. 16 asks National Union to “[e]xplain [its] position as
to whether Restoration Costs under the Policy may ever include security or system
enhancements, improvements, or upgrades to the insured’s Computer System.” 	P. App.
(ECF No. 39-2) at 90. 	National Union objects to this interrogatory on the ground that it
requires National Union to marshal evidence in support of its claims and defenses, and is
vague, ambiguous, and calls for speculation. 	Mr. Cooper’s Interrogatory No. 17 asks
National Union to “[e]xplain whether [it] contend[s] that Mr. Cooper has a duty to undertake
efforts to prevent or mitigate loss covered under the Policy and, if so, whether the Policy
covers the cost of such efforts.” 	Id. 	National Union objects to this interrogatory on the
ground that it is compound and requires National Union to marshal evidence in support of
3The court acknowledges that the “work product doctrine provides protection for both
tangible and intangible attorney work product.” MC Trilogy Texas, LLC v. City of Heath,
2024 WL 346512, at *10 (N.D. Tex. Jan. 29, 2024) (Fitzwater, J.). But “[c]ourts have only
extended intangible work product protection to verbal communications between attorneys
and clients or witnesses.” Id. Here, answering Mr. Cooper’s Interrogatory No. 5 would not
require National Union to divulge the substance of attorney-client or attorney-witness
communications in a manner that would impinge attorney work product.
- 12 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 12 of 20 PageID <pageID>

its claims and defenses.
2
The court concludes that Interrogatories Nos. 16 and 17 are contention interrogatories
relevant to the parties’ claims and defenses. “Many courts exercise the discretion that Rule
33(c) grants and conclude that contention interrogatories need not be answered until later in
the discovery process.” 	InternetAd Sys., LLC, 2004 WL 5181346, at *2 (citing B. Braun
Med. Inc. v. Abbott Labs., 155 F.R.D. 525, 527 (E.D. Pa. 1994)). 	But the court sees no
reason to delay this process in this case. 	And National Union’s remaining boilerplate
objections to Interrogatories Nos. 16 and 17 are insufficient to defeat a motion to compel.
See, e.g., Hunsinger, 2022 WL 1128730, at *2; Heller v. City of Dallas, 303 F.R.D. 466, 491
(N.D. Tex. 2014) (Horan, J.) (“The party objecting to discovery as vague or ambiguous has
the burden to show such vagueness or ambiguity.” (citation omitted)). National Union need
not provide answers that it does not now have, but it must respond to Interrogatories Nos. 16
and 17 to the extent to which it is able, and supplement its responses as required under Rule
26(e)(1)(A). See Klein v. Fed. Ins. Co., 2014 WL 3408355, at *7 (N.D. Tex. July 14, 2014)
(Fitzwater, C.J.).4
Accordingly, 	the 	court 	grants 	Mr. 	Cooper’s 	motion 	to 	compel 	responses 	to
Interrogatories Nos. 16 and 17.
4This memorandum opinion and order also qualifies as an order to supplement under
Rule 26(e)(1)(B).
- 13 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 13 of 20 PageID <pageID>

V
Finally, Mr. Cooper moves to compel documents that National Union has withheld
on the basis of attorney-client privilege and as work product.5
A
The court considers first National Union’s assertion of attorney-client privilege
concerning communications involving in-house and outside counsel.
1
“Under Texas law, the elements of the attorney-client privilege are: ‘(1) a confidential
communication; (2) made for the purpose of facilitating the rendition of professional legal
services; (3) between or amongst the client, lawyer, and their representatives; and (4) the
privilege has not been waived.’” Olmos v. David B. Giles P.C., 2022 WL 3448641, at *2
(N.D. Tex. Aug. 17, 2022) (Fitzwater, J.) (quoting Curlee v. United Parcel Serv., Inc. (Ohio),
2014 WL 4262036, at *4 (N.D. Tex. Aug. 29, 2014) (Horan, J.)). 	“The burden is on the
party asserting the privilege to demonstrate how each document or communication satisfies
these elements.” Id. (quoting Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 473
(N.D. Tex. 2004) (Kaplan, J.)). “A general allegation of privilege is insufficient to meet this
burden.” Id. (quoting Navigant Consulting, 220 F.R.D. at 473). Instead, National Union
5Mr. Cooper seeks to compel production of the following documents identified in
National Union’s first amended privilege log: Docs. Nos. 1-13, 18-29, 31-148, 155-56, and
174-78, and NUFIC 003587-003589. After Mr. Cooper filed the instant motion to compel,
National Union produced a second amended privilege log. The court will use the document
numbers consistent with the parties’ briefing and the first amended privilege log (“privilege
log”).
- 14 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 14 of 20 PageID <pageID>

“must provide sufficient facts by way of detailed affidavits or other evidence to enable the
Court to determine whether the privilege exists . . . as to a specific document or
communication.” Id. (alteration in original) (quoting Celanese Corp. v. Clariant Corp., 2015
WL 9269415, at *1 (N.D. Tex. Dec. 21, 2015) (Horan, J.)).
“Although a privilege log and an in camera review of documents may assist the court
in conducting its analysis, a party asserting the privilege still must provide ‘a detailed
description of the materials in dispute and state specific and precise reasons for their claim
of protection from disclosure.’” S.E.C. v. Microtune, Inc., 258 F.R.D. 310, 315 (N.D. Tex.
2009) (Kaplan, J.) (emphasis in original) (quoting Navigant Consulting, 220 F.R.D. at
473-74). “In fact, ‘resort to in camera review is appropriate only after the burdened party
has submitted detailed affidavits and other evidence to the extent possible.’” Id. (emphasis
in original) (quoting Navigant Consulting, 220 F.R.D. at 474).
2
National Union has failed to meet its burden to demonstrate that the withheld
documents satisfy the elements of attorney-client privilege.
National Union asserts that Victor Kao, Esquire (“Kao”), Assistant General Counsel
at AIG, and Michael Keeley, Esquire (“Keeley”), outside counsel, provided legal advice in
the withheld communications. But National Union provides little evidence to substantiate
that each withheld communication was “made for the purpose of facilitating the rendition of
professional legal services.” Olmos, 2022 WL 3448641, at *2 (citation omitted); see also
Charalambopoulos v. Grammer, 2017 WL 1094394, at *8 (N.D. Tex. Mar. 8, 2017)
- 15 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 15 of 20 PageID <pageID>

(Fitzwater, J.). The mere fact that Kao and Keeley sent or received emails concerning Mr.
Cooper’s policy, without more, does not render the withheld communications privileged. See
Navigant Consulting, 220 F.R.D. at 474 (documents were not privileged simply because they
were “made by or sent to in-house or outside counsel at a time when [party] was considering
possible litigation”). Nor is the timing of Keeley’s retention sufficient to demonstrate that
each withheld communication satisfies the elements of attorney-client privilege. See id.
National Union’s privilege log provides little additional support for its assertion of
attorney-client privilege. The privilege log describes the withheld communications involving
Kao as emails “regarding authority request for underwriting the Mr. Cooper policy.” P. App.
(ECF No. 39-2) at 115-116. And with respect to the communications involving Keeley, the
privilege log indicates that the content concerned the “scope of retention and initial coverage
analysis,” id. at 112-13, as well as “analysis of claim and coverage issues,” id. at 113-15.
These descriptions do not constitute “specific and precise reasons for [National Union’s]
claim of protection from disclosure[,]” Microtune, 258 F.R.D. at 315, particularly when
National Union does not dispute that Kao and Keeley are also underwriters or claim
adjusters. See Navigant Consulting, 220 F.R.D. at 474 (“Where an attorney is functioning
in some other capacity—such as an accountant, investigator, or business advisor—there is
no privilege.” (citation omitted)).
National Union has therefore failed to establish that the documents withheld on the
basis of attorney-client privilege are entitled to protection from disclosure.
- 16 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 16 of 20 PageID <pageID>

B
The court turns to the communications that National Union withheld on the basis of
work product.
1
The federal work product doctrine found in Rule 26(b)(3) provides for the qualified
protection of documents and tangible things prepared by or for a party or that party’s
representative “in anticipation of litigation or for trial.” Rule 26(b)(3)(A). “A document
need not be generated in the course of an ongoing lawsuit in order to qualify for work
product protection.” 	Jolivet, 340 F.R.D. at 17 (citation omitted). 	“But the primary
motivating purpose behind the creation of the document must be to aid in possible future
litigation.” 	Id. (citation and internal quotation marks omitted). 	“In the context of an
insurance dispute, the question [] whether documents are work product often depends on
whether the insurer can point to a definite shift from acting in its ordinary course of business
to acting in anticipation of litigation.” Lanelogic, Inc. v. Great Am. Spirit Ins. Co., 2010 WL
1839294, at *5 (N.D. Tex. May 6, 2010) (Kaplan, J.).
The burden is on the party seeking work product protection to show that the materials
at issue were prepared by its representative in anticipation of litigation or for trial. 	See
Beasley v. First Am. Real Est. Info. Servs., Inc., 2005 WL 1017818, at *3 (N.D. Tex. Apr.
27, 2005) (Kaplan, J.); Ferko v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 219 F.R.D. 396,
400 (E.D. Tex. 2003).
- 17 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 17 of 20 PageID <pageID>

A general allegation of work product protection is insufficient
to meet this burden. Instead, a clear showing must be made
which sets forth the items or categories objected to and the
reasons 	for 	that 	objection. 	The 	proponent 	must 	provide
sufficient facts by way of detailed affidavits or other evidence
to enable the court to determine whether the documents
constitute work product.
Jolivet, 340 F.R.D. at 18 (citation omitted).
2
National Union has failed to meet its burden to demonstrate that the withheld
communications are entitled to work product protection.
National Union contends that it underwent a definite shift toward the anticipation of
litigation when it received Mr. Cooper’s First Notice of Loss. 	To support this assertion,
National Union notes that it retained Keeley in December 2023, and it cites email
correspondence from April 2024, in which employees in National Union’s financial lines
group purported that Mr. Cooper had purchased inadequate coverage for the cyberattack.
Even assuming arguendo that National Union anticipated litigation before preparing
the withheld communications, National Union has not satisfied its burden of establishing that
these documents were prepared for the primary purpose of aiding in litigation as opposed to
National Union’s coverage determination. 	See Lanelogic, 2010 WL 1839294, at *6.
National Union’s retention of Keeley does not create a blanket protection over documents
prepared thereafter, particularly where National Union provides no evidence to rebut Mr.
Cooper’s contention that Keeley’s retention was for an ordinary business purpose, such as
claim adjustment. See id. (retention of law firm as “coverage counsel” did not sufficiently
- 18 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 18 of 20 PageID <pageID>

demonstrate that documents prepared thereafter were entitled to protection). Moreover, the
fact that National Union representatives may have discussed “claim and coverage issues,”
P. App. (ECF No. 39-2) at 113-115, does not, by itself, entitle the withheld communications
to work product protection. Lanelogic, 2010 WL 1839294, at *6 (documents pertaining to
“potential coverage issues” were not entitled to work product protection). Nor is National
Union’s broad assertion that the covered communications “include mental impressions,
conclusions, opinions, and legal theories of National Union’s representatives,” D. Resp.
(ECF No. 44-1) at 29, adequate to satisfy its burden to provide specific facts to enable the
court to determine whether particular documents constitute work product. See Jolivet, 340
F.R.D. at 18.
Accordingly, the court holds that National Union has failed to meet its burden to
establish that the withheld documents are entitled to protection under the attorney-client
privilege or the work product doctrine, and it grants Mr. Cooper’s motion to compel with
respect to the noticed documents. See supra note 5. National Union may, however, redact
from the documents produced any statements revealing the opinions, evaluations, and other
mental processes of its attorneys bearing on litigation strategy. 	See Lanelogic, 2010 WL
1839294, at *6 (allowing the same).
- 19 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 19 of 20 PageID <pageID>

* 	* 	*
For the reasons explained, the court grants the motion to compel in part, and it orders
the parties to meet and confer regarding Mr. Cooper’s Rule 30(b)(6) notice, after which the
court will consider modifying any noticed deposition topic that remains in dispute.
SO ORDERED.
March 19, 2026.
_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE
- 20 -
Case 3:24-cv-02857-D Document 53 Filed 03/19/26 Page 20 of 20 PageID <pageID>