Question & Answer

Question: Our bank is concerned about the limited protections for information that results from self-assessment testing. If we include issues such as quality service, would this prevent the bank from treating the information as privileged?

Answer: When it comes to fair lending and privileged evidence, nothing is a sure thing. However, there are several steps you should take to maximize the chances that your test findings are privileged. First, arrange the testing project through the bank's attorney. This may be the bank's general counsel or an outside law firm. But in any event, it is a good idea to have the test results be "attorney work product."

Second, limit who has access to the information and limit how the information can be used. The bank can inadvertently waive the privilege by releasing the information, such as in an advertisement or press release.

Finally, if the tests include more than fair lending information, the project should identify the purpose of each question or type of information reported as fair lending or quality service. Take steps to ensure that the fair lending portion of the test results are protected and maintained in the attorney's office.

Copyright © 1999 Compliance Action. Originally appeared in Compliance Action, Vol. 4, No. 5 & 6, 5/99