ON MOTION FOR REHEARING
NYE, Chief Justice, concurring.Since my concurring opinion was handed down in this cause, the Supreme Court has *73provided some of the guidance called for in my original opinion. The test for applying the privilege now seems to be somewhat more exacting than prior case law suggested. See Turbodyne Corp. v. Heard, 29 Tex. Sup.Ct.J. 521 (July 9, 1986); Stringer v. Eleventh Court of Appeals, 29 Tex. Sup.Ct.J. 502 (July 2, 1986); Robinson v. Harkins & Co., 711 S.W.2d 619 (Tex.1986). I now agree with Respondent that, under the Supreme Court’s interpretation of Rule 166b(3)(d), no investigative privilege applies unless the investigation is conducted after the lawsuit has been filed or after there is good cause to believe it will be filed. Then, the investigation will have been made “in anticipation of litigation.” Allen v. Humphreys, 559 S.W.2d 798, 803 (Tex.1977). The Supreme Court has reaffirmed the rule that the post-occurrence exemption cannot apply until the suit in which the privilege is claimed has been filed or until there is good cause to believe it will be filed.
Under this analysis, the date the investigative privilege attaches in this case is still the date the claim was denied. The surety company’s long-delayed denial of the bank’s claim was the final preliminary step to the filing of this lawsuit. Before that event, the surety company and its insured were on the same side of the underlying liability question. After the claim was denied, though, there was good cause for the surety company to believe that the bank would file suit. A person who has been paying premiums all along and then ends up with no coverage will presumably file suit if that person wants to get any benefit from its policy.