EMC Mortgage LLC v. First Guaranty Mortgage Corporation, 1:16-cv-00715

EMC Mortgage LLC purchased mortgage loans from First Guaranty under seven Mortgage Loan Purchase Agreements (MLPAs) that included repurchase and indemnification obligations.
EMC resold many of those loans into RMBS trusts and to GSEs, which could require repurchase or compensation for incurable breaches.
EMC alleges it paid over $5.5 million to repurchase or compensate for defective loans and that First Guaranty refused to indemnify.
EMC moved to compel production of repurchase analyses and communications that First Guaranty had withheld as attorney‑client privileged or work product.
The magistrate judge conducted in camera review of sample documents and determined the repurchase reviews were contractually required (not prepared in anticipation of litigation).
Court ordered production of repurchase review documents (with narrow redactions for legal analysis only), extended discovery for EMC to review, and permitted supplementation of trial exhibits and witness lists.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether repurchase analyses and related communications are protected by attorney‑client privilege or work product	EMC: Documents were operational repurchase reviews responsive to discovery and not privileged	First Guaranty: Analyses prepared by/with counsel are privileged or protected as work product	Court: Not privileged/work product because reviews were contractually required, not prepared in anticipation of litigation; produce documents (limited redactions permitted)

In re Allen, 106 F.3d 582 (4th Cir. 1997) (work product requires documents be created in anticipation of litigation)
Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (attorney‑client privilege protects communications for legal advice)
MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 93 A.D.3d 574 (N.Y. App. Div. 2012) (discussing limits on privilege for repurchase review materials)