§ 26.1-51-07 — Determination of privilege - Procedure

1. If a person seeks from an insurer communications involving an insurance compliance
audit or any insurance compliance self-critical analysis audit document during the
course of a pending civil or criminal proceeding, the insurer may assert the self-critical
analysis privilege and provide the information set forth in subsection 6 during the
course of those proceedings just as any other privilege is asserted in the courts of this
state. If the court is required to make a determination as to the privilege, the court shall
follow the procedure and conditions set forth in subsection 5.
2. If there is a pending administrative proceeding, or there is no pending civil or criminal
proceeding, the commissioner, state's attorney, or attorney general may serve on an
insurer a written request by certified mail for disclosure of an insurance compliance
self-critical analysis audit document. Within thirty days after the commissioner, state's
attorney, or attorney general serves on an insurer a written request by certified mail for
disclosure of an insurance compliance self-critical analysis audit document, the insurer
that prepared or caused the document to be prepared may file with the appropriate
court a petition requesting an in-camera hearing on whether the insurance compliance
self-critical analysis audit document or portions of the document are privileged under
this chapter or subject to disclosure. The court has jurisdiction over a petition filed by
an insurer under this subsection requesting an in-camera hearing on whether the
insurance compliance self-critical analysis document or portions of the document are
privileged or subject to disclosure. Failure by the insurer to file a petition waives the
privilege for only the specific request made.
3. An insurer asserting the insurance compliance self-critical analysis privilege in
response to a request for disclosure under this section shall include in its request for
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
scheduling, within forty-five days after the filing of the petition, an in-camera hearing to
determine whether the insurance compliance self-critical analysis audit document or
portions of the document are privileged under this chapter or subject to disclosure.
5. The court, after an in-camera review, may require disclosure of material for which the
privilege is asserted if the court determines, based upon its in-camera review, that any
one of the conditions set forth in subsection 2 of section 26.1-51-06 is applicable as to
a civil or administrative proceeding or that any one of the conditions set forth in
subsection 3 of section 26.1-51-06 is applicable as to a criminal proceeding. Upon
making such determination, the court may only compel the disclosure of those portions
of an insurance compliance self-critical analysis document relevant to issues in dispute
in the underlying proceeding. A compelled disclosure may not be considered to be a
public document or be deemed to be a waiver of the privilege for any other civil,
criminal, or administrative proceeding. An insurer unsuccessfully opposing disclosure
may apply to the court for an appropriate order protecting the document from further
disclosure.

6. An insurer asserting the insurance compliance self-critical analysis privilege in
response to a request for disclosure under this section shall provide at the time of
making and filing any objection to the disclosure all of the following information:
a. The date of the insurance 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 insurance compliance audit;
and
d. An identification of the portions of the insurance compliance self-critical analysis
audit document for which the privilege is being asserted.