§ 940 — Self-analysis privilege for depository institutions and affiliates

(a)Definitions. —For purposes of this section, the following words and phrases shall have the meanings ascribed to them herein:

(1) “Depository institution” means a state-chartered or federally-chartered financial institution that is located in this State and is authorized to maintain deposit or share accounts.

(2) “Depository institution affiliate” means any corporation whose stock is at least 80 percent owned by a depository institution or the holding company of a depository institution.

(3) “Compliance review committee” means a person or persons assigned by a depository institution or a depository institution affiliate to test, review or evaluate its conduct, transactions or potential transactions for the purpose of monitoring and improving or enforcing compliance with:

a. Safe, sound and fair lending practices;

b. Financial reporting to federal or state regulatory agencies;

c. The depository institution’s or depository institution affiliate’s own policies and procedures; or

d. Federal or state statutory or regulatory requirements.

(4) “Compliance review document” means any document prepared for or created by a compliance review committee for its exclusive use.

(5) “Person” means an individual, a group of individuals, a board committee or a corporation, partnership, firm, association, trust, pool, syndicate, sole proprietorship, unincorporated association or any other form of entity not specifically listed herein.

(b)Privilege. —Notwithstanding any provisions of Delaware common or statutory law to the contrary, except as provided in subsection (c) of this section:

(1) Compliance review documents shall be confidential and shall not be discoverable or admissible into evidence in any civil action;

(2) Compliance review documents delivered to a federal, state or foreign governmental or regulatory agency shall remain confidential and shall not be discoverable or admissible in any civil action; and

(3) No person serving on a compliance review committee or acting at the request of a compliance review committee shall be required to testify in any civil action:

a. As to the contents or conclusions of any compliance review document; or

b. As to the actions taken by a compliance review committee.

(c)Limitations. —(1) This section shall not apply to any person serving on or at the request of a compliance review committee in connection with such person’s duties pursuant to the depository institution’s or depository institution affiliates’ by laws or operations manual, management responsibility for the operations, records, employees or activities being examined or evaluated by the compliance review committee.

(2) This section shall not be construed to limit the discovery or admissibility in any civil action of any documents that are not compliance review documents.

(3) This section shall not apply if, after an in camera review by the court consistent with applicable rules of procedure, the court determines that the compliance review was initiated or used to enable persons serving on the compliance review committee or the depository institution or the depository institution affiliate which created such committee to commit or plan to commit what the committee knew or reasonably should have known to be a crime.

Legislative History

70 Del. Laws, c. 359, § 1