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Federal Housing Finance Agency v. JP Morgan Chase & Co., No. 11 Civ. 6188, 2013 WL 5660247 (S.D.N.Y. Oct. 16, 2013) (Cote, J.)

Wednesday, October 16, 2013
Re: In context of defendants' motion to compel release of certain documents withheld on basis of bank examination privilege in civil discovery Disposition: Denying defendants' motion to compel production of documents withheld on basis of bank examination privilege
  • Exemption 8: The court observes that "Congress codified the common law bank examination privilege in the Freedom of Information Act, and expressly provided that the privilege would apply to FHFA in the FOIA context."   Accordingly, the court decides that it would be an anomalous result for the privilege to apply in the FOIA context, but not the civil discovery context.  "12 U.S.C. § 4525 explicitly provides that 'for purposes of [FOIA] [FHFA] … shall be considered [an] agenc[y] responsible for the regulation or supervision of financial institutions.'"  The court further notes that "[a]lthough a FOIA exemption does not, on its own, create a civil discovery privilege, . . .  Congress's express inclusion of FHFA within FOIA's exemption eight demonstrates that it viewed the considerations animating the extension of that privilege to bank regulators as applying also to FHFA in the FOIA context."
District Court
Exemption 8
Updated August 6, 2014