OPINION
In its petition for writ of mandamus, relator, General Agents Insurance Company of America, Inc. (“Gainsco”), requests that we direct respondent, the Honorable Elizabeth Ray, presiding judge of the 165th District Court, to vacate and set aside her order compelling production of Gainsco’s insurance claims file related to a lawsuit against Traxel Construction, Inc., one of Gainsco’s insureds. Specifically, Gainsco contends that the trial court erred in (1) ordering production of documents relating to the underlying action against Traxel, (2) ordering production of documents relating to the current coverage suit against Gainsco, and (3) refusing to permit redaction of reserves information from produced documents. Granting relief in part, we conditionally grant the petition for writ of mandamus.
I. Background
Real parties in interest, El Naggar Fine Arts Furniture, Inc. and Ahmed El Nag-gar (collectively “El Naggar”), contracted with Frеderick Bell and, subsequently, his corporation, Traxel, for the construction of a steel building and a concrete slab. Problems arose and, in 2001, El Naggar filed suit against Bell, Traxel, and other parties, alleging defective construction. Gainsco had previously issued a $500,000 commercial general liability policy to Traxel, covering from March 22, 2000 to March 22, 2001. Gainsco retained attorney Glen Fahl as Traxel’s defense counsel, assigned Sharon Preen as claims adjuster, and established a claims file in connection with the proceeding. Gainsco also requested and received a coverage opinion regarding the El Naggar lawsuit from another attorney, Brent Cooper.
The first trial in the action ended in a mistrial. Shortly before the second trial was to begin, Gainsco and Traxel entered into a “buy-back agreement,” dated October 6, 2004. Under the terms of this agreement, Gainsco rеpurchased Traxel’s $500,000 policy for $50,000, and Traxel released Gainsco from any and all claims or demands arising out of the policy. As further consideration, Traxel and Gainsco agreed that the terms would remain confidential, “except that counsel for Traxel may tell opposing counsel that there is no insurance available.” However, a handwritten and initialed notation on the agreement provided that Traxel could “supplement discovery in this pending litigation by supplying this agreement.” Shortly thereafter, Traxel produced a copy of the agreement to El Naggar. The lawsuit proceeded to a second trial, which resulted
El Naggar subsequently sued Gainsco (along with other of Traxel’s insurers, which are no longer parties), alleging that the Gainsco-Traxel policy provided coverage for El Naggar’s claims, Gainsco breached its insurance contract with Trax-el, and the buyback agreement violates public policy. El Naggar additionally asserted claims for fraudulent transfer, civil conspiracy, DTPA violations, insurance code violations, breach of the duty of good faith and fair dealing, and tortious interference with contract. Some of the claims are based on an assignment of rights Trax-el granted to El Naggar, on which, El Naggar claims the right to sue on its own behalf and as Traxel’s assignee.
In discovery requests, El Naggar asked for materials contained in Gainsco’s claims handling file, pertaining to both the underlying lawsuit against Traxel and the current coverage lawsuit against Gainsco. In response, Gainsco produced some documents, raised general objections to the requests, and asserted the attorney-client and work product privileges in relation to certain other materials. El Naggar then filed motions to compel production, arguing, inter alia, that (1) Traxel had waived and released its attorney-client and work product privileges in relation to the documents in Gainsco’s file (in its assignment of claims to El Naggar), and (2) the documents were required to be produced under the crime/fraud exception to the asserted privileges because Gainsco and Traxel had perpetrated a fraudulent transfer by entering into the buyback agreement. Subsequently, Gainsco produced a privilege log and tendered the disputed documents to the trial court for in camera review. In its briefing to this court and in its privilege log, Gainsco grouped the documents into two main categories: those pertaining to the underlying litigation against Traxel and those pertaining to the current (or coverage) suit against Gainsco. Gainsco has also requested that certain documents be redacted if produced because they contain information regarding its reserves for both the underlying litigation and the current litigation.
The trial court granted El Naggar’s motions to compel, and ordered Gainsco to produce its entire claims file, without specifying the grounds on which it based its ruling. We will first address Gainsco’s assertions of privilege in the underlying case and coverage case documents. We will then address El Naggar’s argument that even if some documents are covered by the privileges, the privileges should not apply due to the crime/fraud exception. Lastly, we will address Gainsco’s argument that reserves information should be redacted from produced documents.
II. Standards of Review
Mandamus is an appropriate remedy only when the record shows: (1) the trial court clearly abused its discretion or violated a duty imposed by law; and (2) no adequate remedy by appeal exists.
In re Daisy Mfg. Co.,
The attorney-client privilege is governed by Rule 503 of the Texas Rules of Evidence. Tex.R. Evid. 503. Under this rule, a “client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.” Id. 503(b)(1). The privilege covers not only direct communication between lawyer and client but also communications involving the client’s representatives and the lawyer’s representatives, so long as they were made for the purpose of facilitating legal services to the client. Id. 503(b)(1)(A), (D).
The work product privilege is governed by Rule 192.5 of the Texas Rules of Civil Procedure. Tex.R. Civ. P. 192.5. It covers:
(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employeеs, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.
Id. 192.5(a).
III. Documents Pertaining to the Underlying Litigation
As mentioned above, Gainsco has identified two main categories of documents in its claims handling file: those pertaining to the underlying litigation and those pertaining to the current suit. In relation to the first category, the underlying litigation documents, Gainsco argues that the trial court erred in compelling production because (1) Gainsco has properly asserted attorney-client and work product privileges in the documents as Traxel’s representative; (2) Gainsco has properly asserted its own privileges in the documents; (3) Traxel’s attorney has a right to assert privileges; and (4) the documents are not relevant to any issues in the lawsuit.
A. Assertion of Traxel’s Privileges
In its briefing to this court (and in trial court filings), Gainsco has maintained that it must assert attorney-client and work product privileges on Traxel’s behalf, in relation to the underlying litigation documents, because as Traxel’s insurer, it was acting as Traxel’s representative in the conduct of the underlying litigation. Indeed, many of the documents in question are drafted by, addressed to, or pertaining to communications with Glen Fahl, the attorney whom Gainsco hired to represent Traxel in the underlying litigation.
In its motions to compel and attendant briefing in the court below, El Naggar argued that Traxel’s assignment of claims to El Naggar also resulted in waiver of Traxel’s right to assert any privileges relative to the documents held by Gainsco. Gainsco responded, in the court below and in its petition, that Traxel did not effectively assign, waive, or release its privileges by agreeing to the assignment because the assignment dоes not contain express language to that effect, citing
In re Cooper,
ASSIGNMENT OF PRIVILEGES REGARDING GAINSCO IN THE UNDERLYING LITIGATION
Fred Bell, individually, and as sole shareholder, officer and representative of Traxel Construction, Inc. (hereinafter collectively referred to as “Bell”) hereby grants, conveys, assigns and otherwise transfers to El Naggar Fine Arts Furniture, Inc. and/or Ahmed El Naggar all privileges, rights, and claims of privacy, including but not limited to attorney/client communication privileges, relating to the following specific issues only:
1. Any communications regarding GAINSCO’s insurance policy pertaining to El Naggar’s claims filed in the underlying litigation styled Ahmed El Naggar, et al v. Traxel Construction, Inc., which was litigated in the 269th Judicial District Court;
2. Any and all communications, deliberations and/or exchanges pertaining to the GAINSCO buyback agreemеnt of the insurance policy pertaining to the underlying litigation, and
3. GAINSCO’s claims handling and/or communications with Mr. Fahl regarding the duties to indemnify and/or defend either Bell or Traxel in the above-referenced litigation that was litigated in the 269th Judicial District Court.
This assignment is supplemental and in addition to the previous assignment dated September 22, 2006. It was the intent that the previous September 22, 2006, assignment implicitly contain the assignments set forth herein, and this assignment is simply a more express statement of the previously assigned rights, privileges and interests intended to be conveyed earlier.
This assignment is irrevocable and may not be withdrawn for any purpose.
In response, Gainsco alleges that the assignment (1) is unsworn, unauthenticated hearsay; (2) did not exist and thus was not part of the record when the trial court made its ruling; and (3) may be void as against public policy. Regarding the first argument, El Naggar filed the assignment attached to a Notiсe of Filing that was signed by El Naggar’s counsel and stated that the assignment is what it purports to be. Furthermore, El Naggar subsequently filed a verification, signed by the same attorney, notarized, and purporting to authenticate the copy of the assignment filed with this court. Gainsco does not cite any authority which requires an assignment of privilege or waiver of privilege to be sworn. See generally Tex.R. Evid. 511 (providing for waiver of privilege by consent to disclosure).
Regarding the second argument, the assignment renders moot many of the issues raised in the petition. We will not issue the extraordinary writ of mandamus to protect privileges that have been waived in the interim.
Cf. In re County of El Paso,
Lastly, regarding the third argument, appellant cites no authority suggesting that a party cannot assign its privileges. Instead, appellant analogizes to cases holding that a legal malpractice claim cannot be assigned.
See, e.g., Vinson & Elkins v. Moran,
However, as illustrated by the present circumstances, assignment of evi-dentiary privileges is fundamentally different from assignment of a legal malpraсtice claim. By assigning Traxel’s privileges in the documents held by Gainsco, Bell effectively waived the right to assert the privileges. In other words, Traxel (through Bell) has foregone its right to assert the benefits of the attorney-client relationship with Fahl. Conversely, in the malpractice context, the assignor of the claim assigns the right to assert the benefits of the relationship. Whether the assignment of privileges is viewed more as a waiver in itself or as a transfer of the right to waive the privileges, the result is the same: Traxel may no longer assert the privileges. Consequently, Gainsco no longer has grounds on which to assert privileges on Traxel’s behalf. 2 A client unquestionably has the right to waive the attorney-client privilege. Tex.R. Evid. 511. Furthermore, Rule 511 contemplates the possibility that privileges can pass from one person or entity to another. Id. (referring to the “predecessor ... holder of the privilege”). Accordingly, we find Gainsco’s arguments regarding validity of the assignment, and hence its assertion of Traxel’s privileges, to be without merit.
B. Assertion of Gainsco’s Privileges
In its “Response to Real Parties in Interest’s Motion to Lift Stay,” Gainsco suggests that even if Traxel’s assignment is valid, such assignment would not prevent Gainsco from asserting its own privileges in the claims file documents. While this is certainly true of the coverage suit documents discussed below, Gainsco suggests that it is also true for some of the underlying case documents. Gainsco’s respective positions are incompatible in their inconsistencies. In its petition, Gainsco clearly and repeatedly asserted that all of the documents identified as pertaining to the underlying litigation were protected from disclosure only because Gainsco was operating as Traxel’s representative in the underlying litigation.
3
In its response to the
Because protection of attorney-client and work product privileges is an important concern, we have conducted our own document-by-document review.
See generally Duncan v. Bd. of Disciplinary Appeals,
1. Communications With Fahl
Regarding the first subcategory, documents drafted by or addressed to Fahl, Gainsco acknowledges that it cannot assert its own privileges in regards to certain of these documents because Fahl represented Traxel and not Gainsco. Although Gainsco appears to generally assert its own privileges in other Fahl-related documents, it offers no authority or reasoning to support this contention. Gainsco
2. Communications with Cooper
Regarding the second subcategory — communications involving only Cooper and Gainsco — these documents are covered by Gainsco’s attorney-client privilege. All of the documents falling in this category are invoices for legal services from Cooper to Gainsco (including Bates Nos. G01386-88, 1389-91, 1392-93, 1394-96, 1428-37,1441-44, and 1658-62).
3. Database Notes
In the third and final subcategory, Gainsco asserts privileges regarding entries in a database of file notes.
5
These notes are uniformly terse statements of events (court filings, receipt of documents, communications, settings, etc.) regarding the lawsuit filed by El Naggar against Traxel. In reviewing many of these notes, it is not clear whether they pertain only to Traxel’s defense in the underlying litigation or whether they also invоlve coverage issues. Additionally, in some of the notes, it is unclear whether the attorney being referenced was Fahl or Cooper. Gainsco offers no explanation or evidence to clarify these ambiguities, merely arguing instead that the documents themselves reveal their privileged nature. The party asserting a privilege has the burden of demonstrating application of the privilege.
See
Tex.R. Civ. P. 193.3(a), (b);
In re Living Ctrs. of Tex., Inc.,
More specifically, many of the entries appear to reference communications with Fahl. Because Fahl represented Traxel and not Gainsco, it appears that any privilege attached to these entries would exist based only on Gainsco’s professed capacity as representative of Traxel. Thus, Traxel’s assignment of its privileges effectively waived any privileges attached to these documents. Gain-sco can therefore assert no independent privilege in regards to these notes.
Only a handful of notes facially reflect that they were generated from conversations with Cooper or clearly relate to coverage issues as opposed to underlying case issues (including: (1) note dated December 7, 2004 at Bates No. G01060; (2)
C. Reliance on Attorney’s Privileges
Next, Gainsco suggests that even if Traxel’s assignment of privileges is valid, any waiver of privileges by Traxel would not prevent Glen Fahl from asserting his core work product privilege to prevent production of the documents in Gainsco’s possession. 6 However, while Gainsco has included an affidavit from Fahl in the record, Fahl makes no assertion of any privilege in the affidavit. Instead, Fahl states that “this affidavit is offered as a perfunctory matter to substantiate the Gainsco’s [sic] claim of privilege.” He then goes on to specify that the documents in Gainsco’s possession are privileged because he reported to and communicated with Gainsco “in furtherance of Traxel’s defense in the Lawsuit.” Fahl himself has asserted no individual right or desire to prevent disclosure of the documents even though given the opportunity to do so. Further, in his affidavit, Fahl does not refute the fact that Traxel has waived (or at least assigned) the very privileges of which he is writing in support. Accordingly, we find Gainsco’s argument that it is entitled to protect Fahl’s privileges to be without support in the record and thus without merit.
D. Relevancy Objection
Lastly, Gainsco contends that the trial court erred in refusing to sustain its relevancy objection to the request for the claims file. Gainsco relies on
Maryland American General Insurance Co. v. Blackmon,
Gainsco has represented that it could not produce the documents identified as underlying case documents because to do so would violate Traxel’s privileges barring such disclosure. We disagree. Except for the few documents we have identified as clearly covered by Gainsco’s own privileges, the assignment by Traxel effectively waived claims of privilege for all of the underlying litigation documents.
IV. Documents Pertaining to the Current Coverage Suit
The second category of documents regarding which Gainsco has asserted privileges pertains to the current coverage suit. In its privilege log, Gainsco lists eighteen current-suit claims-file documents as responsive to the requests for production. Of these eighteen documents, Gain-sco asserts privileges to only ten. Of these ten, three were drafted after the trial court’s cut-off date in the order compelling production; thus, Gainsco was not ordered to produce them.
9
Of the remaining seven documents, five are transmittal cover letters or facsimile cover sheets. There is nothing clearly confidential in nature about the contents of any of these five documents.
Cf Valero Transmission, L.P. v. Dowd,
The remaining two documents include (1) the request from Preen (Gain-sco’s designated claims adjuster fоr El Naggar’s claims) to Cooper (Gainsco’s coverage attorney) for a coverage opinion regarding the underlying litigation and (2) Cooper’s responsive coverage opinion (respectively, Bates Nos. G01068-69 and G00979-996). Both of these documents clearly contain confidential communication made for the purpose of facilitating the rendition of professional legal services to Gainsco. See Tex.R. Evid. 503(b)(1). 10 Thus, these documents are covered by the attorney-client privilege.
Y. Crime/Fraud Exception
El Naggar contends, however, that Gainsco cannot assert the attorney-client privilege with regard to any of the underlying case documents or the coverage case documents because the crime/fraud exception applies.
11
Under this exception,
Here, El Naggar has alleged that Gain-sco committed a “fraudulent transfer” by entering into the buyback agreement with Traxel. “Fraudulent transfer,” as will be discussed below, is a statutory term of art that does not necessarily equate to the term “fraud” as used in the crime/fraud exception. See Tex. Bus. & Com.Code Ann. §§ 24.001-.013 (Vernon 2002 & Supp.2006) (the Texas Uniform Fraudulent Transfer Act); Tex.R. Evid. 503(d)(1). El Naggar offers no analysis regarding whether the crime/fraud exception applies in the fraudulent transfer context. Although it may in fact apply under certain circumstances, we conclude that it does not apply here, based on El Naggar’s allegations in the present lawsuit.
We begin our analysis by examining the scope of the fraud portion of the crime/ fraud exception. The Texas Rules of Evidence do not define what is intendеd in Rule 503(d)(1) by the phrase “to commit ... [a] fraud.” Black’s Law Dictionary defines fraud as: “A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” Black’s Law DictionaRY 670 (7th Ed.1999). The Texas common law tort of fraud also requires proof of misrepresentation, concealment, or non-disclosure.
See Custom Leasing, Inc. v. Tex. Bank & Trust Co. of Dallas,
In Volcanic Gardens Management Co. v. Paxson, the El Paso Court of Appeals similarly concluded that
under the crime/fraud exception to the lawyer-client privilege, “fraud” would include the commission and/or attempted commission of fraud on the court or on a third person, as well as common law fraud and criminal fraud. The crime/ fraud exception comes into play when a prospective client seeks the assistance of an attorney in order to make a false statement or statements of material fact or law to a third person or the court for personal advantage.
El Naggar alleges fraudulent transfer as the basis for application of the crime/fraud exception in the present case. Fraudulent transfer is a statutory cause of action that permits a creditor to recover assets transferred by a debtor under certain circumstances. Tex. Bus. & Com.Code Ann. §§ 24.005, .008, .009. Although concealment of the transfer is one factor that may be considered in determining whether a transaction is deemed fraudulent under the statute, it is not a required element of the cause of action. Id. § 24.005(a), (b). Thus, an allegation and prima facie case of fraudulent transfer does not mandate application of the crime/fraud exception unless it includes an allegation and prima facie case of concealment.
In its petition, El Naggar alleged Gainsco and Traxel entered into the buyback agreement “to avoid, frustrate, hinder, delay and defraud” El Naggar from collecting on the insurance policy and thereby committed a fraudulent transfer.
12
As proof of the fraudulent transfer, El Naggar points to the facts that (1) the buyback was negotiated in secret, (2) it contained a confidentiality term, and (3) it contained an agreement to make a representation that there was no insurance for Traxel in the underlying case. Although each of these statements appears to be true, at least as far as it goes, under the circumstances of this case (as acknowledged by El Naggar), none amounts to a prima facie case of concealment or misrepresentation. While the typewritten language in the buyback agreement contains a confidentiality term, handwritten and ini
VI. Redaction of Reserves Information
Gainsco additionally contends that the trial court abused its discretion in refusing to permit redaction of reserves information from documents Gain-sco is otherwise requirеd to produce. In its privilege log, Gainsco identified certain documents containing notations of reserves for either the underlying litigation or the current litigation. Gainsco asserts that this information should be redacted because it is not relevant to any issues in the case, would not be admissible at trial, and would not lead to the discovery of admissible evidence, citing In re American Home Assurance Company, 88 S.W.3d 370, 377 (Tex.App.-Texarkana 2002, orig. proceeding).
Gainsco does not, however, address the question of whether this issue is a proper subject for mandamus. As discussed above, mandamus is an appropriate remedy only when (1) the trial court has clearly abused its discretion, and (2) no adequate
In
In re American Home,
the case cited by Gainsco, the court did conditionally grant mandamus on the trial court’s order requiring reserves information to be produced.
VII. Conclusion
We hold that the trial court abused its discretion by compelling production of certain of the underlying case documents (including the documents at Bates Nos. G01386-88, 1389-91, 1392-93, 1394-96, 1428-37, 1441-44, and 1658-62, and the database notes dated: December 7, 2004 at Bates No. G01060; October 5, 2004, 9:05 a.m., at Bates No. G01061; October 4, 2004,10:56 a.m., at Bates No. G01062; and September 24, 2003 at Bates No. G01066) as well as the coverage opinion request and the coverage opinion (respectively, Bates Nos. G01068-69 and G00979-996).
Notes
. Furthermore, both El Naggar and Fred Bell indicated that they thought the first assignment was sufficient to transfer the right to waive the privileges in question. Thus, the second assignment is more in the way of a clarification than a completely new agreement.
. Arguably, if under different circumstances El Naggar was attempting to enforce rather than waive the privileges it received from Traxel, the analysis could be different. However, El Naggar is clearly asserting waiver, and Traxel has disassociated itself with any right to assert the privileges. Thus, as stated, Gainsco is left without any basis on which to assert privileges on Traxel’s behalf.
.Gainsco specifically represented that:
Gainsco’s actions in engaging defense counsel and monitoring the defense of the underlying suit were to facilitate Traxel’s defense in the suit and to further Fahl's rendition of professional legal services to Traxel.... [T]he withheld documentsthemselves relating to the underlying suit established the applicability of the work product privilege because they revealed (a) material prepared or mental impressions developed in anticipation and furtherance of Traxel's defense at trial, by a party (Traxel) or a party’s representatives (Trax-el’s attorney, Fahl, and Traxel’s insurer, Gainsco); and (b) communications made in anticipation and furtherance of Traxel’s defense at trial.... Again, as to the underlying suit, the attorney-client and work product privileges belonged to Traxel, not Gainsco.... As stated, as to the underlying suit, the ‘person upon whom these rules confer a privilege against disclosure’ is Traxel.
. Although we will address Gainsco's motion argument, it is important to note that this new argument is not simply an alternative to the previous argument, it is a completely contrary argument. The factual premise of Gain-sco’s petition argument-that the underlying litigation documents are privileged solely based on Traxel's attorney-client and work product privileges-has not been disproved or refuted. El Naggar, in fact, basically agrees that the privileges attached to these documents are Traxel’s. In its fallback argument, Gainsco asserts that it could protect the documents even from Traxel.
As will be discussed, many of the designated underlying case documents were drafted by, addressed to, or pertaining to communications with Fahl, the attorney representing Traxel in the underlying litigation; thus, the attorney-client privilege regarding these documents could only belong to Traxel and not Gainsco. See Tex.R. Evid. 503(b)(1). Furthermore, in order for a person or entity to assert the work product privilege, the material in question must have been created in anticipation of litigation. See Tex.R. Civ. P. 192.5. Gainsco was not a party to the underlying litigation and does not suggest that it anticipated becoming a party. While Gainsco claims that it anticipated becoming a party to future coverage litigation, it has made this representation specifically only regarding documents related to the coverage suit.
. This database, part of a document management system known as "ImageRight,” allowed Gainsco employees to input file notes automatically organized by date and time. A printout of the notes was included with the in camera documents, and the individual notes were listed on the privilege log. Gainsco employees apparently did not keep separate sets of notes for issues related to Traxel’s defense and issues related to coverage.
. In support of its argument, Gainsco relies upon a case construing the federal counterpart to the Texas work product privilege.
See In re Grand Jury Proceedings,
. The core holding of
Blackmon
is that a plaintif^insured cannot defeat the attorney-client and work product privileges of an insurer simply by alleging bad faith; however, the privileges
may
be defeated once liability is established.
.As discussed above, to the extent Gainsco is contending that documents in the claims file relate to its decision to not pay El Naggar’s claim, it has identified these documents as pertaining to the coverage suit not the underlying litigation. These documents are discussed below.
. The trial court ordered Gainsco to produce documents created before February 5, 2005, which was the date on which El Naggar filed the current lawsuit.
. As claims adjuster for the El Naggar claims, Preen was clearly a represеntative of the client in regards to these documents under the meaning of Rule 503. Tex.R. Evid. 503(a)(2) ("A representative of the client is one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client.”).
.El Naggar also argues generally that an insurer's claims file in relation to a lawsuit against an insured is not protected from discovery in subsequent litigation against the insurer, citing
Turbodyne Corp. v. Heard,
. In granting a partial summary judgment favoring El Naggar, the trial court has declared the Gainsco-Traxel buyback agreement to be void, apparently as against public policy. However, because (1) this order was not made an object of Gainsco's petition for writ of mandamus and (2) we need not answer the question in order to decide the issues before us, we take no position on whether such an agreement violates public policy in Texas.
. The
Volcanic Gardens
court held that the crime/fraud exception could apply to any false statement regardless of whether it constituted actionable fraud.
Furthermore, we note that the crime/fraud exception would also not apply to the request for the coverage opinion and the coverage opinion itself because no relationship has been established between those documents and the alleged fraud.
Granada Corp.,
. Gainsco does make the general point that requiring insurers to disclose reserves information could result in inflated reserves and, in turn, interfere with state insurance departments’ duty of protecting consumers. However, we are not requiring Gainsco to produce anything in this proceeding, we are simply considering whether mandamus should issue against the trial court’s order. Thus, Gain-scо’s concern that a rule requiring disclosure of reserves information would have widespread impact is not implicated here.
. The court cited
K Mart Corp. v. Sanderson,
.Interestingly, El Naggar does not address the reserves issue on appeal and appears to have not done so in the trial court. Furthermore, the trial court's orders do not specifically mention Gainsco’s request to redact reserves. It is unclear whether the court ever explicitly considered the matter.
Because of our resolution of these discoveiy issues in this original proceeding, we take no position regarding whether the reserves information would be admissible if offered at trial. However, we note that the question of whether reserves information is relevant in coverage or bad faith cases may be a far more complex issue than Gainsco suggests.
See generally State of West Virginia ex rel. Erie Prop. & Cas. Ins. Co. v. Mazzone,