1. 15 U.S.C. § 6801 et seq.; 12 C.F.R. Part 1016 (CFPB); 16 C.F.R.
Part 313 (FTC).
2. Gramm–Leach–Bliley Act 1999, Pub. L. No.106-102, 113 Stat.
1338 (codified as amended in various sections of 12 U.S.C. and
3. 15 U.S.C. § 6802(a)-(b) Generally prohibiting disclosure of non-public personal information to third-parties without prior notice to
the consumer and an opportunity for the consumer to direct that
the information not be disclosed.
4. Id. § 6809( 9): The term “consumer” means an individual who
obtains, from a financial institution, financial products or services
which are to be used primarily for personal, family, or household purposes, and also means the legal representative of such an individual.
5. Id. § 6809( 4).
6. Id. § 6801(a).
7. Id. § 6809( 3).
8. 16 C.F.R. § 313.3(k).
9. 15 U.S.C. § 6809( 4)(A); 16 C.F.R. § 313.3(n)( 1)(i); see Ameriquest
Mortg. Co. v. Washington State Office of the Attorney Gen., 241 P.3d
1245, 1251 (Wash. 2010).
10. 16 C.F.R. § 313.3(o)( 1).
11. Id. § 313.3(o)( 2).
12. Marks v. Global Mortgage Group, Inc., 218 F.R.D. 492 (S.D. W. Va.
13. Id. at 496.
14 See, e.g., Martino v. Barnett, 595 S.E.2d 65, 71 (W. Va. 2004);
Ex parte Nat’l Western Life Ins. Co., 899 So. 2d 218 (Ala. 2004);
Ameriquest, 241 P.3d at 1254.
15. See, e.g., Chao v. Community Trust Co., 474 F.3d 75, 87 (3rd Cir.
2007); Nat’l Western, 899 So. 2d at 218.
16. Chao, 474 F.3d at 88.
17. Marks, 218 F.R.D. at 496; See also Martino, 595 S.E.2d at 72; Nat’l
Western, 899 So. 2d at 227; Ex parte Mutual Sav. Life Ins. Co., 899
So. 2d 986, 992 (Ala. 2004); Capital One Servs., Inc. v. Page, 942
So. 2d 760, 763 (Miss. 2006).
18. Nat’l Western, 899 So. 2d at 227.
19. Martino, 595 S.E.2d at 72.
20. See Mutual Sav. Life Ins., 899 So. 2d at 992: “We hold that by incorporating the phrase ‘to respond to judicial process,’ Congress created
an exception applicable to situations in which the trial court orders
the disclosure of the customer’s nonpublic personal information
during discovery in a civil action.” (internal citation omitted).
21. Marks, 218 F.R.D. at 497; see also Martino, 595 S.E.2d at 72 (“trial
courts have a right and a duty to fashion protective orders which limit
access to necessary information only”); Mutual Sav. Life Ins., 899 So.
2d at 993 (“[A] court, when exercising its broad discovery discretion
by ordering the discovery of customers’ nonpublic personal information, should also issue a comprehensive protective order to guard the
22. See Nat’l Western, 899 So. 2d at 227 n. 4 (“The exception is limited
by the requirement that a judicial process has been properly instituted
and a court has mandated the disclosure.”).
23. E.g., Capital One Servs., 942 So. 2d at 764:
A major factor in this Court’s decision in the present case is the
specificity of the trial court’s order requiring the parties to agree
upon and prepare a confidentiality order to be entered by that
court, “which shall provide, among other things” the following:
that the list is provided solely for use in this litigation; that the
information provided shall be held strictly confidential; that the list
will not be used to solicit the persons on the list for any purpose
including but not limited to legal representation; that the plaintiff’s
attorney shall not in the future represent persons whose names
appear on the list against Capital One with respect to transactions
similar to the one here in issue and which have occurred prior to
production of the list unless permitted to do so by further order
of this court; and that the list shall not be shared with any person
other than counsel of record for plaintiff who shall all be bound
by the terms of the confidentiality order.
44 ARIZONA ATTORNEY OCTOBER 2014
subpoena or other request made by a pri-
vate plaintiff in civil discovery.
Having ruled out the first and second clauses
of § 6802(e)( 8) as an avenue for civil discovery, but not wanting to entirely frustrate
the efforts of litigants seeking appropriate
information, courts have focused on the
third clause of § 6802(e)( 8) when allowing,
under certain circumstances, and with strict
limitations, the disclosure of GLBA
It is important to note that in all but one
of the reported cases dealing with §
6802(e)( 8), the financial institution was a
party to the case and the only possible
source of the needed information. In Chao,
the sole case dealing with a non-party
financial institution, the Third Circuit
vacated the District Court’s order requiring
the financial institution to produce con-
sumer PIFI because a party to the case was
subject to a District Court order to produce
that information. The Third Circuit stated,
“We are aware of [the party’s] intransigence
in complying with the District Court’s
enforcement order that we affirmed.
Nonetheless, we consider the information
to be in the Secretary’s possession because
she is entitled to it by court order.”
Thus, even in this case, involving a federal
agency’s subpoena, this federal appellate
court affirmed the financial institution’s
fundamental GLBA privacy obligation by
refusing to compel production of infor-
mation available from a party.
In the remainder of the cases, where the
financial institution is a party, courts have
followed the analysis of the Marks court
allowing certain discovery as limited and
directed by “judicial process.” The third
clause § 6802(e)( 8) permits disclosure “to
respond to judicial process or government
regulatory authorities having jurisdiction
over the financial institution for examination,
rules, and legal requirements that regu-
late the financial industry. The purpose
of this exception is to allow financial
institutions to comply with these various
laws and requirements without fear of
violating the GLBA. The language does
not create an exception for the disclo-
sure of information in the course of civil
Various state supreme courts determining
the applicability of the first clause have uniformly followed Marks’ reasoning that it is
inapplicable to civil litigation.
The text of the second clause of
§ 6802(e)( 8) is relatively unambiguous in
creating an exception for certain governmental action. Accordingly, judicial analysis
of that clause has uniformly held that it is
applicable only to investigations by appropriate governmental authorities and not to a
CIVIL DISCOVERY REQUESTS