In Wilmington Trust, the court found that any privileged information in the bank examination reports was “highly relevant” to the Exchange Act claims alleged because it was “indicative of Defendants' knowledge of the Bank's problems, the alleged misrepresentations and breach of fiduciary duty, and scienter,” and relevant to defenses to the claims. See Wilmington Trust, 2016 WL 9753979 at *7; In re Subpoena Duces Tecum Served Upon the Office of the Comptroller of the Currency, 151 F.R.D. 1, 2 (D.D.C. 1992) (concluding that the bank examination reports were “highly relevant” to plaintiff's claims that the bank made false and misleading statements); Principe, 149 F.R.D. at 449 (finding bank examination reports relevant to proof of defendants' knowledge, misrepresentations, and scienter); Walsh v. Chittenden Corp., 799 F.Supp. 405, 408 (D. Vt. 1992) (finding it “undisputed” that the requested reports are relevant to securities fraud claims, particularly the element of scienter); Forstmann Leff Assoc., Inc. v. Am. Brands, Inc., No. 88-cv-4485, 1991 WL 168002, at *3 (S.D.N.Y. Aug. 16, 1991) (finding requested reports relevant to justifiable reliance element of securities fraud claims); Seafirst, 644 F.Supp. at 1162 (finding bank examination reports relevant to allegations of “imprudent” loans issued by bank to “high-risk” borrowers).
It has also been called the " official information" privilege, the " intragovernmental opinion" privilege, and the " executive" privilege. SeeWalsh v. Chittenden Corp., 799 F.Supp. 405, 407 n. 3 (D.Vt.1992). The privilege shields from disclosure intra-agency or inter-agency " ‘ documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ "
It has also been called the " official information" privilege, the " intragovernmental opinion" or " governmental opinion" privilege, and the " executive" privilege. SeeWalsh v. Chittenden Corp., 799 F.Supp. 405, 407 n. 3 (D.Vt.1992); Shell Oil Co. v. IRS, 772 F.Supp. 202, 205 n. 3 (D.Del.1991).
Although not identical, the deliberative process, official information, and executive privileges are based on the common principle that the opinions, recommendations, and deliberations of government agents are not discoverable where the government demonstrates that a specific harm would result from disclosure. See. e.g., Securities Exchange Comm. v. Thrasher, 1995 WL 46681, at *10 (S.D.N.Y. Feb. 7, 1995); Walsh v. Chittenden Corp., 799 F.Supp. 405, 407 n. 3 (D.Vt.1992). B.
This Court agrees with the Sixth Circuit, and therefore concludes that no privilege or exemption from discovery arises out of the federal regulations in question.B. Existence of a Bank Examination Privilege Then-District Judge Parker reached this same conclusion in Walsh v. Chittenden Corp., 799 F. Supp. 405 (D.Vt. 1992), although for reasons different than those articulated by the Sixth Circuit. He relied on 12 C.F.R. § 309.5(c) n. 4, an FDIC regulation, which provides: "Classification of a record as exempt from disclosure under the provisions of § 309.5(c) shall not be construed as authority to withhold the record if it is otherwise subject to disclosure under . . . any directive or order of any court of competent jurisdiction."
More important, we did not discover in this document any "secrets" of government employees. Finally, it is Fed's "burden to establish the existence and applicability of the privilege," Walsh v. Chittenden, 799 F.Supp. 405, 407 (D.Vt.1992). We were not shown and did not find the " 'precise and certain reasons for preserving the confidentiality of the governmental communication,' necessary both to overcome the plaintiff's patent need to examine the records and to dispel the court's reluctance to interfere with the truth-seeking process."
More important, we did not discover in this document any "secrets" of government employees. Finally, it is Fed's "burden to establish the existence and applicability of the privilege," Walsh v. Chittenden, 799 F. Supp. 405, 407 (D.Vt. 1992). We were not shown and did not find the "`precise and certain reasons for preserving the confidentiality of the governmental communication,' necessary both to overcome the plaintiff's patent need to examine the records and to dispel the court's reluctance to interfere with the truth-seeking process."