Building Consumer Financial Protection Bureau Relationships: Access to Documents

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The Consumer Financial Protection Bureau (“CFPB”) is developing policies and procedures to begin its work, and it has begun planning targeted examinations of banks and nonbanks. Attention has already been focused on the issue of what information the CFPB has a right to request thanks to a bulletin issued by its General Counsel (“Bulletin”).

The Bulletin asserts that supervised institutions are required to provide all documents and information that are responsive to a proper request. “All documents” may include privileged information protected by the attorney-client privilege. While such documents may contain a roadmap that the agency would want to have to shortcut its investigation, providing such informa-tion to an agency could (i) jeopardize defense of the case, and (ii) waive the institution’s ability to protect against disclosure of such documents to third parties. That, of course, is a significant problem where there are risks of third-party litigation and other collateral actions that may occur.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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