Bank Examination Privilege in Litigation: Understanding the Nuances, Best Practices for Asserting the Privilege

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, June 13, 2017
Recorded event now available

This CLE webinar will provide bank counsel with a thorough understanding of the bank examination privilege, including the legal basis for the privilege, how it may be exercised in federal litigation, and the documents and communications covered. The panel will also discuss best practices for exercising the privilege, and when it may used in response to discovery requests.


Bank examinations are integral to the government’s supervision of the banking industry. Bank examinations are generally non-public and examination records are not shared beyond the regulator and the bank. However, when a bank is involved in a lawsuit, keeping such records confidential can be difficult. An opposing party may seek copies of such records 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 a number of 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 the privilege may be asserted by each regulator, as well as 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 it may be used 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 key issues:

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


Eric Epstein, Partner
Dorsey & Whitney, New York

Mr. Epstein focuses his practice on commercial litigation. He is the lead author of a legal treatise, The Bank Examination Privilege (American Bar Association 2017) which explains the federal and state laws that shield confidential Reports of Examination (ROEs) and related communications. He also serves as an adjunct instructor at Columbia University School of Law, where he teaches legal writing and oral advocacy.

David A. Scheffel, Partner
Dorsey & Whitney, New York

Mr. Scheffel has extensive experience in consumer financial services litigation and co-chairs the Firm’s Consumer Financial Services practice. He defends financial institutions against individual and class action claims alleging discrimination, predatory lending, violations of the Truth in Lending Act, the Real Estate Settlement Procedures Act, the Fair Housing Act, the Equal Credit Opportunity Act, and disputes between lenders and securitization trusts. He has extensive experience in commercial litigation involving corporate disputes for breach of fiduciary duty, breach of contract, tortious interference with contract, and misappropriation of trade secrets. 


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Banking & Finance Law Advisory Board

Irving C. Apar


Thompson Hine

Mark N. Berman

Adjunct Professor

Northeastern University

Willa Cohen Bruckner


Alston & Bird

Lawrence Kaplan

Of Counsel

Paul Hastings

Kevin Petrasic


White & Case

Laura D. Richman


Mayer Brown

Robert M. Stern


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Andrew Stutzman


Stradley Ronon Stevens & Young

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