Why the Bank Examination Privilege Doesn’t Work as Intended

Bank examinations are a key tool used by federal regulators to supervise the banking and financial services industry, and the confidentiality of examination records is critical for ensuring the kind of open dialogue between regulators and banks that allows for effective oversight. However, when a bank becomes involved in a lawsuit with a nongovernmental party, the bank’s adversary may seek disclosure of its examination records with the goal of using them as evidence against the bank. While federal courts have developed a common law bank examination privilege to balance the interests of the regulators, banks, and litigants in these situations, problems have emerged where state privilege law has not uniformly mirrored the bank examination privilege. In a new article published in the Yale Journal on Regulation, Eric B. Epstein, Dorsey partner and lead author of the treatise The Bank Examination Privilege: When Litigants Demand Confidential Regulatory Reports, examines these conflicts and discusses the growing rift between how one would expect the bank examination privilege to operate and how the privilege actually works in practice.

Mr. Epstein’s article, “Why the Bank Examination Privilege Doesn’t Work as Intended,” is available here.


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