Regulators request the findings of internal investigations, and the decision whether to provide privileged material is among the most consequential in an investigation.
The stated position of most enforcement authorities is that disclosure of privileged material is not required for cooperation credit; disclosure of relevant facts, including facts learned in an investigation, is.
Selective waiver. Most courts have rejected it. Disclosure to a regulator generally waives privilege as against private litigants, and confidentiality agreements with the agency do not reliably prevent that.
Providing facts without the document. An oral factual download, or a written factual summary prepared for the purpose and not attaching or quoting the privileged report, is the standard approach. Even this carries risk, and courts have found waiver where the download was detailed enough to be a disclosure of the report’s substance.
Non-waiver orders under the applicable evidence rule are available in some contexts and should be requested.
Examination privilege. Supervisory material is confidential to the agency, and institutions may not disclose it without permission — which restricts what can be shared with acquirers, insurers and litigants.
Decide deliberately. The waiver decision belongs to the client, made with the consequences explained in writing.