CHAPTER 6-13SELF-CRITICAL ANALYSIS PRIVILEGE OF FINANCIAL INSTITUTIONS6-13-01. Definitions. In this chapter, unless the context or subject matter otherwiserequires:1."Commissioner" means the commissioner of financial institutions.2."Compliance audit" means a voluntary, internal evaluation, review, assessment,<br>audit, or investigation for the purpose of identifying or preventing noncompliance<br>with, or promoting compliance with, laws, regulations, orders, or industry or<br>professional standards, which is conducted by or on behalf of a financial institution.3."Compliance self-critical analysis audit document" means a document prepared as a<br>result of or in connection with a financial institution's compliance audit.Acompliance self-critical analysis audit document may include a written response to<br>the findings of a compliance audit.A compliance self-critical analysis auditdocument may include, as applicable, field notes and records of observations,<br>workpapers, findings, opinions, suggestions, conclusions, drafts, memoranda,<br>drawings, photographs, exhibits, computer-generated or electronically recorded<br>information, telephone records, maps, charts, graphs, and surveys, provided this<br>supporting information is collected or developed for the primary purpose and in the<br>course of a compliance audit. A compliance self-critical analysis audit document<br>also includes:a.A compliance audit report prepared by an auditor, who may be an employee of<br>the financial institution or an independent contractor, which may include the<br>scope of the audit, the information gained in the audit, and conclusions and<br>recommendations, with exhibits and appendices;b.Memoranda and documents analyzing portions or all of the compliance audit<br>report and discussing potential implementation issues;c.An implementation plan that addresses correcting past noncompliance,<br>improving current compliance, and preventing future noncompliance; ord.Analytic data generated in the course of conducting the compliance audit.4."Financial institution" means any organization authorized to do business under state<br>and federal laws relating to financial institutions, including a bank, the Bank of North<br>Dakota, a savings bank, a trust company, a savings and loan association, or a credit<br>union.6-13-02. Self-critical analysis privilege created - Scope. A compliance self-criticalanalysis privilege is created to protect the confidentiality of compliance self-critical analysis<br>documents or communications in regard to their content relating to voluntary internal compliance<br>audits conducted by financial institutions and persons in regard to activities regulated under title 6<br>or federal law, both to conduct voluntary internal audits of its compliance programs and<br>management systems and to assess and improve compliance with state and federal statutes,<br>rules, and orders.The compliance self-critical analysis privilege applies to all litigation oradministrative proceedings pending on August 1, 2001.6-13-03.Compliance self-critical analysis document notdiscoverableoradmissible.Except as provided in this chapter, a compliance self-critical analysis auditdocument is privileged information and is not discoverable or admissible evidence in any legal<br>action in any civil, criminal, or administrative proceeding. The privilege is a matter of substantive<br>law of this state and is not merely a procedural matter governing administrative, civil, or criminal<br>procedures in the courts of this state.Page No. 16-13-04. Application of privilege. If a financial institution, person, or entity performs ordirects the performance of a compliance audit, an officer, employee, or agent involved with the<br>compliance audit, or any consultant who is hired for the purpose of performing the compliance<br>audit, may not be examined in any civil, criminal, or administrative proceeding as to the<br>compliance audit or any compliance self-critical analysis audit document. This section does not<br>apply if it is determined under section 6-13-06 or 6-13-07 that the privilege does not apply.6-13-05. Submission to commissioner.1.Upon request of the commissioner, a financial institution must submit a compliance<br>self-critical analysis audit document to the commissioner, or the commissioner's<br>designee, as a confidential document under the provisions of section 6-01-07,<br>without waiving the privilege set forth in this chapter to which the financial institution<br>would otherwise be entitled. However, the provisions of section 6-01-07 permitting<br>the commissioner to release confidential documents and make them accessible to<br>federal financial institution regulatory agencies does not apply to the compliance<br>self-critical analysis audit documents voluntarily submitted.To the extent thecommissioner has the authority to compel the disclosure of a compliance self-critical<br>analysis audit document under other provisions of applicable law, any report<br>furnished to the commissioner may not be provided to any other person or entity and<br>must be accorded the same confidentiality and other protections as provided above<br>for voluntarily submitted documents. Any use of a compliance self-critical analysis<br>audit document furnished as a result of a request of the commissioner, whether<br>under a claim of authority to compel disclosure or not, is limited to determining<br>whether any disclosed defects in a financial institution's policies or procedures or<br>inappropriate treatment of customers has been remedied or that an appropriate plan<br>for their remedy is in place.The commissioner may not impose any type ofadministrative fine or penalty as to any area addressed or matter covered in a<br>compliance self-critical analysis audit document furnished at the commissioner's<br>request, except when there is clear and convincing evidence that the financial<br>institution failed to undertake reasonable corrective action, eliminate inappropriate<br>treatment of customers, or failed to implement an appropriate plan to rectify any<br>noncompliance with state and federal statutes, rules, and orders.2.A financial institution's compliance self-critical analysis audit document submitted to<br>the commissioner remains subject to all applicable statutory or common-law<br>privileges, including the work product doctrine, attorney-client privilege, or the<br>subsequent remedial measures exclusion. A compliance self-critical analysis audit<br>document submitted to and in the possession of the commissioner remains the<br>property of the financial institution and is not subject to any disclosure or production<br>under section 44-04-18.3.Disclosure of a compliance self-critical analysis audit document to a governmental<br>agency, whether voluntary or pursuant to compulsion of law, does not constitute a<br>waiver of the privilege with respect to any other person or any other governmental<br>agency.6-13-06. Waiver of privilege by financial institution - Grounds for determination ofprivilege - Civil, administrative, or criminal proceedings.1.The self-critical analysis privilege does not apply to the extent that it is expressly<br>waived by the financial institution that prepared or caused to be prepared the<br>compliance self-critical analysis audit document.2.In a civil or administrative proceeding, a court of record, after an in camera review,<br>may require disclosure of material for which the privilege is asserted, if the court<br>determines one of the following:a.The privilege is asserted for a fraudulent purpose; orPage No. 2b.The material is not subject to the privilege.3.In a criminal proceeding, a court of record, after an in camera review, may require<br>disclosure of material for which the privilege is asserted, if the court determines one<br>of the following:a.The privilege is asserted for a fraudulent purpose;b.The material is not subject to the privilege; orc.The material contains evidence relevant to commission of a criminal offense,<br>and all three of the following factors are present:(1)The commissioner, state's attorney, or attorney general has a compelling<br>need for the information;(2)The information is not otherwise available; and(3)The commissioner, state's attorney, or attorney general is unable to<br>obtain the substantial equivalent of the information by any other means<br>without incurring prohibitive cost and delay.6-13-07. Determination of privilege - Procedure.1.If a person seeks from a financial institution communications involving a compliance<br>audit or any compliance self-critical analysis audit document during the course of a<br>pending civil or criminal proceeding, the financial institution may assert the<br>self-critical analysis privilege and provide the information set forth in subsection 6<br>during the course of those proceedings just as any other privilege is asserted in the<br>courts of this state.If the court is required to make a determination as to theprivilege, the court shall follow the procedure and conditions set forth in<br>subsection 5.2.If there is a pending administrative proceeding, or there is no pending civil or<br>criminal proceeding, the commissioner, state's attorney, or attorney general may<br>serve on a financial institution a written request by certified mail for disclosure of a<br>compliance self-critical analysis audit document.Within thirty days after thecommissioner, state's attorney, or attorney general serves on a financial institution a<br>written request by certified mail for disclosure of a compliance self-critical analysis<br>audit document, the financial institution that prepared or caused the document to be<br>prepared may file with the appropriate court a petition requesting an in camera<br>hearing on whether the compliance self-critical analysis audit document or portions<br>of the document are privileged under this chapter or subject to disclosure. The court<br>has jurisdiction over a petition filed by a financial institution under this subsection<br>requesting an in camera hearing on whether the compliance self-critical analysis<br>document or portions of the document are privileged or subject to disclosure.<br>Failure by the financial institution to file a petition waives the privilege for only the<br>specific request made.3.A financial institution asserting the compliance self-critical analysis privilege in<br>response to a request for disclosure under this section shall include in its request for<br>an in camera hearing all of the information set forth in subsection 6.4.Upon the filing of a petition under this section, the court shall issue an order<br>scheduling, within forty-five days after the filing of the petition, an in camera hearing<br>to determine whether the compliance self-critical analysis audit document or portions<br>of the document are privileged under this chapter or subject to disclosure.Page No. 35.The court, after an in camera review, may require disclosure of material for which<br>the privilege is asserted if the court determines, based upon its in camera review,<br>that any one of the conditions set forth in subsection 2 of section 6-13-06 is<br>applicable as to a civil or administrative proceeding or that any one of the conditions<br>set forth in subsection 3 of section 6-13-06 is applicable as to a criminal proceeding.<br>Upon making such determination, the court may only compel the disclosure of those<br>portions of a compliance self-critical analysis document relevant to issues in dispute<br>in the underlying proceeding. A compelled disclosure may not be considered to be a<br>public document or be deemed to be a waiver of the privilege for any other civil,<br>criminal, or administrative proceeding.A financial institution unsuccessfullyopposing disclosure may apply to the court for an appropriate order protecting the<br>document from further disclosure.6.A financial institution asserting the compliance self-critical analysis privilege in<br>response to a request for disclosure under this section shall provide at the time of<br>making and filing any objection to the disclosure all of the following information:a.The date of the compliance self-critical analysis audit document;b.The identity of the entity conducting the audit;c.The general nature of the activities covered by the compliance audit; andd.An identification of the portions of the compliance self-critical analysis audit<br>document for which the privilege is being asserted.6-13-08. Privilege - Burden of proof - Stipulation. A financial institution asserting thecompliance self-critical analysis privilege set forth in this chapter has the burden of demonstrating<br>the applicability of the privilege. Once a financial institution has established the applicability of<br>the privilege, a party seeking disclosure has the burden of proving that the privilege is asserted<br>for a fraudulent purpose.The commissioner, state's attorney, or attorney general seekingdisclosure of the privilege has the burden of proving the elements set forth in subdivisions a and<br>c of subsection 3 of section 6-13-06.The parties may at any time stipulate in proceedings under section 6-13-06 or 6-13-07 toentry of an order directing whether the specific information contained in a compliance self-critical<br>analysis audit document is or is not subject to the privilege provided under this chapter. Any<br>such stipulation may be limited to the instant proceeding and, absent specific language to the<br>contrary, is not applicable to any other proceeding.6-13-09. Nonapplication of privilege. The self-critical analysis privilege set forth in thischapter does not extend to:1.Documents, communications, data, reports, or other information expressly required<br>to be collected, developed, maintained, or reported to a regulatory agency pursuant<br>to this title, or other federal or state law;2.Information obtained by observation or monitoring by any regulatory agency; or3.Information obtained from a source independent of the compliance audit.Page No. 4Document Outlinechapter 6-13 self-critical analysis privilege of financial institutions
CHAPTER 6-13SELF-CRITICAL ANALYSIS PRIVILEGE OF FINANCIAL INSTITUTIONS6-13-01. Definitions. In this chapter, unless the context or subject matter otherwiserequires:1."Commissioner" means the commissioner of financial institutions.2."Compliance audit" means a voluntary, internal evaluation, review, assessment,<br>audit, or investigation for the purpose of identifying or preventing noncompliance<br>with, or promoting compliance with, laws, regulations, orders, or industry or<br>professional standards, which is conducted by or on behalf of a financial institution.3."Compliance self-critical analysis audit document" means a document prepared as a<br>result of or in connection with a financial institution's compliance audit.Acompliance self-critical analysis audit document may include a written response to<br>the findings of a compliance audit.A compliance self-critical analysis auditdocument may include, as applicable, field notes and records of observations,<br>workpapers, findings, opinions, suggestions, conclusions, drafts, memoranda,<br>drawings, photographs, exhibits, computer-generated or electronically recorded<br>information, telephone records, maps, charts, graphs, and surveys, provided this<br>supporting information is collected or developed for the primary purpose and in the<br>course of a compliance audit. A compliance self-critical analysis audit document<br>also includes:a.A compliance audit report prepared by an auditor, who may be an employee of<br>the financial institution or an independent contractor, which may include the<br>scope of the audit, the information gained in the audit, and conclusions and<br>recommendations, with exhibits and appendices;b.Memoranda and documents analyzing portions or all of the compliance audit<br>report and discussing potential implementation issues;c.An implementation plan that addresses correcting past noncompliance,<br>improving current compliance, and preventing future noncompliance; ord.Analytic data generated in the course of conducting the compliance audit.4."Financial institution" means any organization authorized to do business under state<br>and federal laws relating to financial institutions, including a bank, the Bank of North<br>Dakota, a savings bank, a trust company, a savings and loan association, or a credit<br>union.6-13-02. Self-critical analysis privilege created - Scope. A compliance self-criticalanalysis privilege is created to protect the confidentiality of compliance self-critical analysis<br>documents or communications in regard to their content relating to voluntary internal compliance<br>audits conducted by financial institutions and persons in regard to activities regulated under title 6<br>or federal law, both to conduct voluntary internal audits of its compliance programs and<br>management systems and to assess and improve compliance with state and federal statutes,<br>rules, and orders.The compliance self-critical analysis privilege applies to all litigation oradministrative proceedings pending on August 1, 2001.6-13-03.Compliance self-critical analysis document notdiscoverableoradmissible.Except as provided in this chapter, a compliance self-critical analysis auditdocument is privileged information and is not discoverable or admissible evidence in any legal<br>action in any civil, criminal, or administrative proceeding. The privilege is a matter of substantive<br>law of this state and is not merely a procedural matter governing administrative, civil, or criminal<br>procedures in the courts of this state.Page No. 16-13-04. Application of privilege. If a financial institution, person, or entity performs ordirects the performance of a compliance audit, an officer, employee, or agent involved with the<br>compliance audit, or any consultant who is hired for the purpose of performing the compliance<br>audit, may not be examined in any civil, criminal, or administrative proceeding as to the<br>compliance audit or any compliance self-critical analysis audit document. This section does not<br>apply if it is determined under section 6-13-06 or 6-13-07 that the privilege does not apply.6-13-05. Submission to commissioner.1.Upon request of the commissioner, a financial institution must submit a compliance<br>self-critical analysis audit document to the commissioner, or the commissioner's<br>designee, as a confidential document under the provisions of section 6-01-07,<br>without waiving the privilege set forth in this chapter to which the financial institution<br>would otherwise be entitled. However, the provisions of section 6-01-07 permitting<br>the commissioner to release confidential documents and make them accessible to<br>federal financial institution regulatory agencies does not apply to the compliance<br>self-critical analysis audit documents voluntarily submitted.To the extent thecommissioner has the authority to compel the disclosure of a compliance self-critical<br>analysis audit document under other provisions of applicable law, any report<br>furnished to the commissioner may not be provided to any other person or entity and<br>must be accorded the same confidentiality and other protections as provided above<br>for voluntarily submitted documents. Any use of a compliance self-critical analysis<br>audit document furnished as a result of a request of the commissioner, whether<br>under a claim of authority to compel disclosure or not, is limited to determining<br>whether any disclosed defects in a financial institution's policies or procedures or<br>inappropriate treatment of customers has been remedied or that an appropriate plan<br>for their remedy is in place.The commissioner may not impose any type ofadministrative fine or penalty as to any area addressed or matter covered in a<br>compliance self-critical analysis audit document furnished at the commissioner's<br>request, except when there is clear and convincing evidence that the financial<br>institution failed to undertake reasonable corrective action, eliminate inappropriate<br>treatment of customers, or failed to implement an appropriate plan to rectify any<br>noncompliance with state and federal statutes, rules, and orders.2.A financial institution's compliance self-critical analysis audit document submitted to<br>the commissioner remains subject to all applicable statutory or common-law<br>privileges, including the work product doctrine, attorney-client privilege, or the<br>subsequent remedial measures exclusion. A compliance self-critical analysis audit<br>document submitted to and in the possession of the commissioner remains the<br>property of the financial institution and is not subject to any disclosure or production<br>under section 44-04-18.3.Disclosure of a compliance self-critical analysis audit document to a governmental<br>agency, whether voluntary or pursuant to compulsion of law, does not constitute a<br>waiver of the privilege with respect to any other person or any other governmental<br>agency.6-13-06. Waiver of privilege by financial institution - Grounds for determination ofprivilege - Civil, administrative, or criminal proceedings.1.The self-critical analysis privilege does not apply to the extent that it is expressly<br>waived by the financial institution that prepared or caused to be prepared the<br>compliance self-critical analysis audit document.2.In a civil or administrative proceeding, a court of record, after an in camera review,<br>may require disclosure of material for which the privilege is asserted, if the court<br>determines one of the following:a.The privilege is asserted for a fraudulent purpose; orPage No. 2b.The material is not subject to the privilege.3.In a criminal proceeding, a court of record, after an in camera review, may require<br>disclosure of material for which the privilege is asserted, if the court determines one<br>of the following:a.The privilege is asserted for a fraudulent purpose;b.The material is not subject to the privilege; orc.The material contains evidence relevant to commission of a criminal offense,<br>and all three of the following factors are present:(1)The commissioner, state's attorney, or attorney general has a compelling<br>need for the information;(2)The information is not otherwise available; and(3)The commissioner, state's attorney, or attorney general is unable to<br>obtain the substantial equivalent of the information by any other means<br>without incurring prohibitive cost and delay.6-13-07. Determination of privilege - Procedure.1.If a person seeks from a financial institution communications involving a compliance<br>audit or any compliance self-critical analysis audit document during the course of a<br>pending civil or criminal proceeding, the financial institution may assert the<br>self-critical analysis privilege and provide the information set forth in subsection 6<br>during the course of those proceedings just as any other privilege is asserted in the<br>courts of this state.If the court is required to make a determination as to theprivilege, the court shall follow the procedure and conditions set forth in<br>subsection 5.2.If there is a pending administrative proceeding, or there is no pending civil or<br>criminal proceeding, the commissioner, state's attorney, or attorney general may<br>serve on a financial institution a written request by certified mail for disclosure of a<br>compliance self-critical analysis audit document.Within thirty days after thecommissioner, state's attorney, or attorney general serves on a financial institution a<br>written request by certified mail for disclosure of a compliance self-critical analysis<br>audit document, the financial institution that prepared or caused the document to be<br>prepared may file with the appropriate court a petition requesting an in camera<br>hearing on whether the compliance self-critical analysis audit document or portions<br>of the document are privileged under this chapter or subject to disclosure. The court<br>has jurisdiction over a petition filed by a financial institution under this subsection<br>requesting an in camera hearing on whether the compliance self-critical analysis<br>document or portions of the document are privileged or subject to disclosure.<br>Failure by the financial institution to file a petition waives the privilege for only the<br>specific request made.3.A financial institution asserting the compliance self-critical analysis privilege in<br>response to a request for disclosure under this section shall include in its request for<br>an in camera hearing all of the information set forth in subsection 6.4.Upon the filing of a petition under this section, the court shall issue an order<br>scheduling, within forty-five days after the filing of the petition, an in camera hearing<br>to determine whether the compliance self-critical analysis audit document or portions<br>of the document are privileged under this chapter or subject to disclosure.Page No. 35.The court, after an in camera review, may require disclosure of material for which<br>the privilege is asserted if the court determines, based upon its in camera review,<br>that any one of the conditions set forth in subsection 2 of section 6-13-06 is<br>applicable as to a civil or administrative proceeding or that any one of the conditions<br>set forth in subsection 3 of section 6-13-06 is applicable as to a criminal proceeding.<br>Upon making such determination, the court may only compel the disclosure of those<br>portions of a compliance self-critical analysis document relevant to issues in dispute<br>in the underlying proceeding. A compelled disclosure may not be considered to be a<br>public document or be deemed to be a waiver of the privilege for any other civil,<br>criminal, or administrative proceeding.A financial institution unsuccessfullyopposing disclosure may apply to the court for an appropriate order protecting the<br>document from further disclosure.6.A financial institution asserting the compliance self-critical analysis privilege in<br>response to a request for disclosure under this section shall provide at the time of<br>making and filing any objection to the disclosure all of the following information:a.The date of the compliance self-critical analysis audit document;b.The identity of the entity conducting the audit;c.The general nature of the activities covered by the compliance audit; andd.An identification of the portions of the compliance self-critical analysis audit<br>document for which the privilege is being asserted.6-13-08. Privilege - Burden of proof - Stipulation. A financial institution asserting thecompliance self-critical analysis privilege set forth in this chapter has the burden of demonstrating<br>the applicability of the privilege. Once a financial institution has established the applicability of<br>the privilege, a party seeking disclosure has the burden of proving that the privilege is asserted<br>for a fraudulent purpose.The commissioner, state's attorney, or attorney general seekingdisclosure of the privilege has the burden of proving the elements set forth in subdivisions a and<br>c of subsection 3 of section 6-13-06.The parties may at any time stipulate in proceedings under section 6-13-06 or 6-13-07 toentry of an order directing whether the specific information contained in a compliance self-critical<br>analysis audit document is or is not subject to the privilege provided under this chapter. Any<br>such stipulation may be limited to the instant proceeding and, absent specific language to the<br>contrary, is not applicable to any other proceeding.6-13-09. Nonapplication of privilege. The self-critical analysis privilege set forth in thischapter does not extend to:1.Documents, communications, data, reports, or other information expressly required<br>to be collected, developed, maintained, or reported to a regulatory agency pursuant<br>to this title, or other federal or state law;2.Information obtained by observation or monitoring by any regulatory agency; or3.Information obtained from a source independent of the compliance audit.Page No. 4Document Outlinechapter 6-13 self-critical analysis privilege of financial institutions
CHAPTER 6-13SELF-CRITICAL ANALYSIS PRIVILEGE OF FINANCIAL INSTITUTIONS6-13-01. Definitions. In this chapter, unless the context or subject matter otherwiserequires:1."Commissioner" means the commissioner of financial institutions.2."Compliance audit" means a voluntary, internal evaluation, review, assessment,<br>audit, or investigation for the purpose of identifying or preventing noncompliance<br>with, or promoting compliance with, laws, regulations, orders, or industry or<br>professional standards, which is conducted by or on behalf of a financial institution.3."Compliance self-critical analysis audit document" means a document prepared as a<br>result of or in connection with a financial institution's compliance audit.Acompliance self-critical analysis audit document may include a written response to<br>the findings of a compliance audit.A compliance self-critical analysis auditdocument may include, as applicable, field notes and records of observations,<br>workpapers, findings, opinions, suggestions, conclusions, drafts, memoranda,<br>drawings, photographs, exhibits, computer-generated or electronically recorded<br>information, telephone records, maps, charts, graphs, and surveys, provided this<br>supporting information is collected or developed for the primary purpose and in the<br>course of a compliance audit. A compliance self-critical analysis audit document<br>also includes:a.A compliance audit report prepared by an auditor, who may be an employee of<br>the financial institution or an independent contractor, which may include the<br>scope of the audit, the information gained in the audit, and conclusions and<br>recommendations, with exhibits and appendices;b.Memoranda and documents analyzing portions or all of the compliance audit<br>report and discussing potential implementation issues;c.An implementation plan that addresses correcting past noncompliance,<br>improving current compliance, and preventing future noncompliance; ord.Analytic data generated in the course of conducting the compliance audit.4."Financial institution" means any organization authorized to do business under state<br>and federal laws relating to financial institutions, including a bank, the Bank of North<br>Dakota, a savings bank, a trust company, a savings and loan association, or a credit<br>union.6-13-02. Self-critical analysis privilege created - Scope. A compliance self-criticalanalysis privilege is created to protect the confidentiality of compliance self-critical analysis<br>documents or communications in regard to their content relating to voluntary internal compliance<br>audits conducted by financial institutions and persons in regard to activities regulated under title 6<br>or federal law, both to conduct voluntary internal audits of its compliance programs and<br>management systems and to assess and improve compliance with state and federal statutes,<br>rules, and orders.The compliance self-critical analysis privilege applies to all litigation oradministrative proceedings pending on August 1, 2001.6-13-03.Compliance self-critical analysis document notdiscoverableoradmissible.Except as provided in this chapter, a compliance self-critical analysis auditdocument is privileged information and is not discoverable or admissible evidence in any legal<br>action in any civil, criminal, or administrative proceeding. The privilege is a matter of substantive<br>law of this state and is not merely a procedural matter governing administrative, civil, or criminal<br>procedures in the courts of this state.Page No. 16-13-04. Application of privilege. If a financial institution, person, or entity performs ordirects the performance of a compliance audit, an officer, employee, or agent involved with the<br>compliance audit, or any consultant who is hired for the purpose of performing the compliance<br>audit, may not be examined in any civil, criminal, or administrative proceeding as to the<br>compliance audit or any compliance self-critical analysis audit document. This section does not<br>apply if it is determined under section 6-13-06 or 6-13-07 that the privilege does not apply.6-13-05. Submission to commissioner.1.Upon request of the commissioner, a financial institution must submit a compliance<br>self-critical analysis audit document to the commissioner, or the commissioner's<br>designee, as a confidential document under the provisions of section 6-01-07,<br>without waiving the privilege set forth in this chapter to which the financial institution<br>would otherwise be entitled. However, the provisions of section 6-01-07 permitting<br>the commissioner to release confidential documents and make them accessible to<br>federal financial institution regulatory agencies does not apply to the compliance<br>self-critical analysis audit documents voluntarily submitted.To the extent thecommissioner has the authority to compel the disclosure of a compliance self-critical<br>analysis audit document under other provisions of applicable law, any report<br>furnished to the commissioner may not be provided to any other person or entity and<br>must be accorded the same confidentiality and other protections as provided above<br>for voluntarily submitted documents. Any use of a compliance self-critical analysis<br>audit document furnished as a result of a request of the commissioner, whether<br>under a claim of authority to compel disclosure or not, is limited to determining<br>whether any disclosed defects in a financial institution's policies or procedures or<br>inappropriate treatment of customers has been remedied or that an appropriate plan<br>for their remedy is in place.The commissioner may not impose any type ofadministrative fine or penalty as to any area addressed or matter covered in a<br>compliance self-critical analysis audit document furnished at the commissioner's<br>request, except when there is clear and convincing evidence that the financial<br>institution failed to undertake reasonable corrective action, eliminate inappropriate<br>treatment of customers, or failed to implement an appropriate plan to rectify any<br>noncompliance with state and federal statutes, rules, and orders.2.A financial institution's compliance self-critical analysis audit document submitted to<br>the commissioner remains subject to all applicable statutory or common-law<br>privileges, including the work product doctrine, attorney-client privilege, or the<br>subsequent remedial measures exclusion. A compliance self-critical analysis audit<br>document submitted to and in the possession of the commissioner remains the<br>property of the financial institution and is not subject to any disclosure or production<br>under section 44-04-18.3.Disclosure of a compliance self-critical analysis audit document to a governmental<br>agency, whether voluntary or pursuant to compulsion of law, does not constitute a<br>waiver of the privilege with respect to any other person or any other governmental<br>agency.6-13-06. Waiver of privilege by financial institution - Grounds for determination ofprivilege - Civil, administrative, or criminal proceedings.1.The self-critical analysis privilege does not apply to the extent that it is expressly<br>waived by the financial institution that prepared or caused to be prepared the<br>compliance self-critical analysis audit document.2.In a civil or administrative proceeding, a court of record, after an in camera review,<br>may require disclosure of material for which the privilege is asserted, if the court<br>determines one of the following:a.The privilege is asserted for a fraudulent purpose; orPage No. 2b.The material is not subject to the privilege.3.In a criminal proceeding, a court of record, after an in camera review, may require<br>disclosure of material for which the privilege is asserted, if the court determines one<br>of the following:a.The privilege is asserted for a fraudulent purpose;b.The material is not subject to the privilege; orc.The material contains evidence relevant to commission of a criminal offense,<br>and all three of the following factors are present:(1)The commissioner, state's attorney, or attorney general has a compelling<br>need for the information;(2)The information is not otherwise available; and(3)The commissioner, state's attorney, or attorney general is unable to<br>obtain the substantial equivalent of the information by any other means<br>without incurring prohibitive cost and delay.6-13-07. Determination of privilege - Procedure.1.If a person seeks from a financial institution communications involving a compliance<br>audit or any compliance self-critical analysis audit document during the course of a<br>pending civil or criminal proceeding, the financial institution may assert the<br>self-critical analysis privilege and provide the information set forth in subsection 6<br>during the course of those proceedings just as any other privilege is asserted in the<br>courts of this state.If the court is required to make a determination as to theprivilege, the court shall follow the procedure and conditions set forth in<br>subsection 5.2.If there is a pending administrative proceeding, or there is no pending civil or<br>criminal proceeding, the commissioner, state's attorney, or attorney general may<br>serve on a financial institution a written request by certified mail for disclosure of a<br>compliance self-critical analysis audit document.Within thirty days after thecommissioner, state's attorney, or attorney general serves on a financial institution a<br>written request by certified mail for disclosure of a compliance self-critical analysis<br>audit document, the financial institution that prepared or caused the document to be<br>prepared may file with the appropriate court a petition requesting an in camera<br>hearing on whether the compliance self-critical analysis audit document or portions<br>of the document are privileged under this chapter or subject to disclosure. The court<br>has jurisdiction over a petition filed by a financial institution under this subsection<br>requesting an in camera hearing on whether the compliance self-critical analysis<br>document or portions of the document are privileged or subject to disclosure.<br>Failure by the financial institution to file a petition waives the privilege for only the<br>specific request made.3.A financial institution asserting the compliance self-critical analysis privilege in<br>response to a request for disclosure under this section shall include in its request for<br>an in camera hearing all of the information set forth in subsection 6.4.Upon the filing of a petition under this section, the court shall issue an order<br>scheduling, within forty-five days after the filing of the petition, an in camera hearing<br>to determine whether the compliance self-critical analysis audit document or portions<br>of the document are privileged under this chapter or subject to disclosure.Page No. 35.The court, after an in camera review, may require disclosure of material for which<br>the privilege is asserted if the court determines, based upon its in camera review,<br>that any one of the conditions set forth in subsection 2 of section 6-13-06 is<br>applicable as to a civil or administrative proceeding or that any one of the conditions<br>set forth in subsection 3 of section 6-13-06 is applicable as to a criminal proceeding.<br>Upon making such determination, the court may only compel the disclosure of those<br>portions of a compliance self-critical analysis document relevant to issues in dispute<br>in the underlying proceeding. A compelled disclosure may not be considered to be a<br>public document or be deemed to be a waiver of the privilege for any other civil,<br>criminal, or administrative proceeding.A financial institution unsuccessfullyopposing disclosure may apply to the court for an appropriate order protecting the<br>document from further disclosure.6.A financial institution asserting the compliance self-critical analysis privilege in<br>response to a request for disclosure under this section shall provide at the time of<br>making and filing any objection to the disclosure all of the following information:a.The date of the compliance self-critical analysis audit document;b.The identity of the entity conducting the audit;c.The general nature of the activities covered by the compliance audit; andd.An identification of the portions of the compliance self-critical analysis audit<br>document for which the privilege is being asserted.6-13-08. Privilege - Burden of proof - Stipulation. A financial institution asserting thecompliance self-critical analysis privilege set forth in this chapter has the burden of demonstrating<br>the applicability of the privilege. Once a financial institution has established the applicability of<br>the privilege, a party seeking disclosure has the burden of proving that the privilege is asserted<br>for a fraudulent purpose.The commissioner, state's attorney, or attorney general seekingdisclosure of the privilege has the burden of proving the elements set forth in subdivisions a and<br>c of subsection 3 of section 6-13-06.The parties may at any time stipulate in proceedings under section 6-13-06 or 6-13-07 toentry of an order directing whether the specific information contained in a compliance self-critical<br>analysis audit document is or is not subject to the privilege provided under this chapter. Any<br>such stipulation may be limited to the instant proceeding and, absent specific language to the<br>contrary, is not applicable to any other proceeding.6-13-09. Nonapplication of privilege. The self-critical analysis privilege set forth in thischapter does not extend to:1.Documents, communications, data, reports, or other information expressly required<br>to be collected, developed, maintained, or reported to a regulatory agency pursuant<br>to this title, or other federal or state law;2.Information obtained by observation or monitoring by any regulatory agency; or3.Information obtained from a source independent of the compliance audit.Page No. 4Document Outlinechapter 6-13 self-critical analysis privilege of financial institutions
