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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CLAY BUCHHOLZ and LINDSAY 

BUCHHOLZ,

Plaintiffs

v. 

CRESTBROOK INSURANCE 

COMPANY d/b/a NATIONWIDE 

PRIVATE CLIENT

Defendant

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CIVIL NO. 1-20-CV-449-RP

O R D E R

Before the Court are Defendant’s Opposed Motion to Compel Responses to Interrogatory 

No. 2, filed January 29, 2021 (Dkt. 35); Plaintiff’s Response in Opposition to Crestbrook’s Motion 

to Compel, filed February 5, 2021 (Dkt. 38); and Defendant’s Reply in Support of its Opposed 

Moton to Compel Responses to Interrogatory No. 2, filed February 12, 2021 (Dkt. 39). On 

February 1, 2021, the District Court referred the motion to the undersigned Magistrate Judge for 

resolution, pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and 

Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western 

District of Texas.

I. Background

In 2017, Plaintiffs Clay Buchholz and Lindsay Buchholz bought a home located at 14132 Flat 

Top Ranch Road, Austin, TX 78732 (the “Residence”). Plaintiffs purchased a home insurance 

policy from Defendant Crestbrook Insurance Company d/b/a Nationwide Private Client covering

“all risk of accidental direct physical loss to property.” Dkt. 1-2 at ¶ 10. Plaintiffs also purchased 

additional insurance coverage from Defendant for “Biological Deterioration or Damage.” Id. ¶ 11. 

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For the Policy Period from January 25, 2019 through January 25, 2020, Plaintiffs paid a Policy 

Premium of $11,477.38, and a Biological Deterioration Clean Up Premium of $4,554.53. In 

exchange, Defendant agreed to provide approximately $6.4 million in general insurance coverage 

for Plaintiffs’ Residence and $1.6 million in additional biological-deterioration coverage.

In April and May 2019, Plaintiffs discovered water damage and mold throughout their 

Residence and submitted six separate claims to Defendant. Defendant provided coverage for five 

of those claims, paying Plaintiffs $700,000 for the covered losses, mold damage caused by the 

covered losses, additional living expenses, and investigation costs. Dkt. 31 at 1. Defendant, 

however, denied coverage for the sixth claim, “for losses caused by extensive mold throughout the 

house that did not tie to water damage.” Id. Defendant avers that they denied coverage “only after 

a forensic engineer hired by Plaintiffs conducted an investigation and identified the cause of loss 

as vapor drive and workmanship defects, which are excluded under the terms of the Policy.” Id. 

Plaintiffs disagree with Defendant’s interpretation of the Policy and filed suit against 

Defendant in Travis County District Court on March 13, 2020. Dkt. 1-2. Plaintiffs allege breach 

of contract, bad faith, a request for a declaratory judgment declaring that the Policy covers the 

mold damage to Plaintiffs’ Residence, and claims under Texas Insurance Code §§ 541.003 and 

541.152(b). Second Amended Complaint, Dkt. 30. On April 28, 2020, Defendant removed this 

case to federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a). Dkt. 1.

In its Motion to Compel, Defendant asks the Court to compel Plaintiffs “to respond separately 

and fully in writing under oath” to Defendant’s Interrogatory No. 2 under Federal Rule of Civil 

Procedure 37(a)(3)(B) and to award attorneys’ fees under Rule 37(a)(5)(A). Plaintiffs oppose the 

Motion. 

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II. Legal Standards

Federal Rule of Civil Procedure 26(b)(1) provides that: “Parties may obtain discovery 

regarding any nonprivileged matter that is relevant to any party’s claim or defense.” The scope of 

discovery is broad. Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 262 (5th Cir. 2011). 

“A discovery request is relevant when the request seeks admissible evidence or ‘is reasonably 

calculated to lead to the discovery of admissible evidence.’” Id. (quoting Wiwa v. Royal Dutch 

Petrol. Co., 392 F.3d 812, 820 (5th Cir. 2004)). When a party withholds information otherwise 

discoverable by claiming that the information is privileged, the party must: “(i) expressly make 

the claim; and (ii) describe the nature of the documents, communications, or tangible things not 

produced or disclosed – and do so in a manner that, without revealing information itself privileged 

or protected, will enable other parties to assess the claim.” FED. R. CIV. P. 26(b)(5)(A).

After a party has attempted in good faith to obtain discovery without court action, that party 

may move for an order compelling disclosure or discovery. FED. R. CIV. P. 37(a)(1). The party 

resisting discovery must show how each discovery request is not relevant or otherwise 

objectionable. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 

1990). “The Court must balance the need for discovery by the requesting party and the relevance 

of the discovery to the case against the harm, prejudice, or burden to the other party.” Cmedia, 

LLC v. LifeKey Healthcare, LLC, 216 F.R.D. 387, 389 (N.D. Tex. 2003). “A trial court enjoys 

wide discretion in determining the scope and effect of discovery.” Sanders v. Shell Oil Co., 678 

F.2d 614, 618 (5th Cir. 1982). In addition, if the court grants a motion to compel, “the court must, 

after giving an opportunity to be heard, require the party or deponent whose conduct necessitated 

the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable 

expenses incurred in making the motion, including attorney’s fees.” FED. R. CIV. P. 37(a)(5)(A).

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III. Analysis

Defendant seeks to compel Plaintiffs to respond to Defendant’s Interrogatory No. 2, which 

states: “Explain in detail what You contend caused the alleged losses at the Residence Premises.” 

Dkt. 36-5 at 12. Plaintiffs have responded to Interrogatory No. 2 as follows:

As an initial matter, Plaintiffs object that this interrogatory is 

premature because determination of the causes of the alleged losses 

requires expert opinions that are not yet available. Plaintiffs will 

supplement this answer with the opinions of their designated expert 

when such information becomes available and after disclosing their 

anticipated expert(s). Subject to these objections, Plaintiffs answer 

that they do not bear the burden of identifying the “cause” of any 

loss. The insurer bears the initial burden of establishing that an 

exclusion applies. Guaranty Nat’l. Ins. Co. v. Vic. Mfg. Co., 143 

F.3d 192, 193 (5th Cir. 1998). Plaintiffs contend that accidental 

direct physical loss occurred, including damage caused by water 

intrusion that is covered by the policy. Plaintiffs also reserve the 

right to supplement this response as discovery progresses.

Dkt. 36-6 at 9. Defendant argues that Plaintiffs’ response that “Plaintiffs contend that accidental 

direct physical loss occurred, including damage caused by water intrusion that is covered by the 

policy,” is insufficient because identifying the cause of the alleged losses is material to whether 

the alleged losses are covered.

As noted, Defendant denied coverage in this case on the basis that the cause of the losses to 

Plaintiffs’ Residence were from vapor drive and workmanship defects, which Defendant contends 

are excluded under the terms of the Policy. Plaintiffs deny that any Policy exclusions apply. Thus, 

the cause of the alleged mold damage to Plaintiffs’ Residence is directly relevant to whether those 

losses fall within the terms of the Policy, and the interrogatory is proper. See Crosby, 647 F.3d at 

262 (“A discovery request is relevant when the request seeks admissible evidence or is reasonably 

calculated to lead to the discovery of admissible evidence.”). 

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Plaintiffs also object that the interrogatory is premature. It is within the Court’s discretion to 

determine the appropriate time for responding to a contention interrogatory. Firefighters’ 

Retirement Sys. v. Citco Grp. Ltd., No. 13-373-SDD-EWD, 2017 WL 2825925, at *9 (M.D. La. 

June 30, 2017); FED. R. CIV. P. 33(a)(2) (“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, but the court 

may order that the interrogatory need not be answered until designated discovery is complete, or 

until a pretrial conference or some other time.”). 

Plaintiffs state that they will supplement their response to Interrogatory No. 2 after their expert 

has formed an opinion as to causation. Expert reports are not due until June 30, 2021, and the 

discovery deadline is September 30, 2021 – six months from today. Dkt. 21. Permitting Plaintiffs 

to supplement their response to Interrogatory No. 2 after their expert witness issues a report will 

not prejudice Defendant in this case. See Sigman v. CSX Corp., No. 3:15-13328, 2016 WL 

7444947, at *2 (S.D. W. Va. Dec. 27, 2016) (“[I]n cases where the parties anticipate the production 

of an expert report which will touch on the very contentions at issue, the Court should normally 

delay contention discovery until after the expert reports have been served, which may then render 

moot any further contention discovery.”) (internal quotation marks omitted). 

Accordingly, Defendant’s Motion to Compel Responses to Interrogatory No. 2 (Dkt. 35) is 

DENIED. The Court FURTHER ORDERS Plaintiffs to fully supplement their answer to 

Interrogatory No. 2 by July 5, 2021. It is FURTHER ORDERED that this case be removed from 

the Magistrate Court’s docket and RETURNED to the docket of the Honorable Robert Pitman.

SIGNED on March 30, 2021.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

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