Asserting Bank Examination Privilege in Litigation

Bank examinations are integral to the government's supervision of the banking industry. Bank examinations are non-public and only the regulator and the bank are privy to examination records. However, when a bank is involved in a lawsuit, keeping such records confidential can be difficult. An opposing party may seek copies of such documents in the hope of using them as evidence at trial.

The bank examination privilege is a federal rule that shields examination records in federal (and some state) litigation. The privilege belongs to regulators, not banks, so banks must work with regulators to assert and defend the privilege, and there are some nuances to exercising the privilege that counsel should know when representing a financial institution in a lawsuit.

Many of the legal precedents regarding the bank examination privilege involve three federal regulators--the Office of the Comptroller of the Currency, the Federal Reserve and the FDIC--but it is not necessarily limited to those agencies. Counsel should determine how each regulator may assert the privilege, and the documents, reports and oral communications to which it applies.

Listen as our authoritative panel examines all aspects of the bank examination privilege, including the nature of the privilege, the documents and communications it covers, and the regulators for which it is available. The panel will also discuss best practices for exercising the privilege, when state privilege rules may apply, and when to use in response to FOIA requests.

1. Bank supervision: the Office of the Comptroller of the Currency, the Federal Reserve and the FDIC
2. Bank examinations: information obtained
3. Bank examination privilege: statutory basis, who has the privilege, where available
   1. Application to examination records, documents and communications
   2. Requesting assertion of privilege by bank regulators
   3. Defending the privilege
   4. Asserting the privilege in state court and in responding to discovery requests

The panel will review these and other critical issues:

• What is the bank examination privilege and who can exercise it?
• How can the bank examination privilege serve as an essential tool in litigation?
• What kinds of examination records are covered by the exemption?
• When do state law privilege rules apply and to what result?