Government investigations take a variety of shapes and forms, but nearly all will include requests for the production of documents. Here are six critical issues that may result in significant problems for a bank or financial institution if overlooked before materials are produced—and some related issues to consider after production is done.

1. Time Limitations on Challenging the Scope of a Government Subpoena

Subpoenas for documents in government investigations are often quite broad. Some agencies are not very flexible in reducing or narrowing the scope. It is important to recognize that the statutes that authorize government agencies to issue subpoenas often provide a narrow time period for the recipient to challenge the scope of the subpoena in court. For example, the statute applicable to many subpoenas issued by the U.S. Department of Justice (18 U.S.C. § 1968(h)), provides a party with just 20 days after service, or the deadline of the subpoena production, whichever is shorter.

If the subpoena recipient wants to negotiate the scope or the timing, it is critical to reach out to the government agency that issued the subpoena as soon as possible. Otherwise, the entity that received the subpoena could lose its ability to challenge the subpoena in court, should the negotiations be unsuccessful. It also may be necessary to request additional extensions if these matters are not resolved before the initial extension expires.

2. Bank Examiner Privilege

Banks regulated by the Office of the Comptroller of the Currency (OCC), the Federal Reserve Banks (FRB), the Federal Deposit Insurance Corporation (FDIC), the Consumer Financial Protection Bureau (CFPB) and certain other financial institutions often have documents in their possession that are covered by the bank examiner privilege (BEP). This privilege belongs to the bank examiners per federal regulations, and documents subject to the privilege must be protected by the banks, even from disclosure to other federal government agencies.

Thus, in order to avoid violating federal regulations and damaging the bank's relationship with bank examiners, it is important to determine whether any documents responsive to requests by another agency are potentially covered by the BEP before such documents are inadvertently produced in violation of these federal regulations. Examples of documents covered by the BEP include documents, both internal and external, reflecting findings and recommendations reached by the bank examiners, as well as discussions or communications concerning bank regulatory examinations or findings.