April 28, 2016 Articles

A Brief Introduction to the Bank Examiner Privilege

What counsel handling banking litigation need to know about this statutory privilege

by Mark M. Haddad

Financial institutions are highly regulated by federal and state agencies. Regulators are intimately involved with a financial institution’s operation, performance, and management. As a result, information obtained by regulators is often sought in litigation. The bank examiner privilege is one method of protecting confidential and sensitive information from discovery and disclosure.  

Generally, the bank examiner privilege protects information and communications between financial institutions (and their agents and employees) and certain regulators. The following regulators may invoke the privilege: the Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation (FDIC), the Consumer Financial Protection Bureau (CFPB), and various state banking agencies. See 12 C.F.R. § 4.36 et seq. (OCC); 12 C.F.R. § 261.20 et seq. (Federal Reserve Board); 12 C.F.R. § 309.1 et seq. (FDIC); 12 C.F.R. § 1070.40 et seq. (CFPB); Mo. Rev. Stat. §§ 361.080, 610.032 (Missouri Division of Finance).  

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