(1) The privilege set forth in ORS 731.761 does not apply to the extent that the privilege is expressly waived by the insurer that prepared or caused to be prepared the insurance compliance self-evaluative audit document. (2) The privilege set forth in ORS 731.761 does not apply in any civil, criminal or administrative proceeding commenced by the Attorney General relating to Medicaid fraud, without regard to whether the proceeding is brought on behalf of the state, a state agency or a federal agency. An insurer may request an in camera review of any document or other evidence to be released or used under this subsection and may request that appropriate protective orders be entered governing release and use of the material. (3) In any civil proceeding a court of record may, after an in camera review, require disclosure of material for which the privilege set forth in ORS 731.761 is asserted if the court determines that the material is not subject to the privilege, or that the privilege is asserted for a fraudulent purpose, including but not limited to an assertion of the privilege for an insurance compliance audit that was conducted for the purpose of concealing a violation of any federal, state or local law or rule. Nothing in this subsection shall be construed to limit the authority of the Director of the Department of Consumer and Business Services to acquire, examine and use insurance compliance self-evaluative audit documents under ORS 731.762. (4) In a criminal proceeding, a court of record may, after an in camera review, require disclosure of material for which the privilege set forth in ORS 731.761 is asserted if the court determines that: (a) The privilege is asserted for a fraudulent purpose, including but not limited to an assertion of the privilege for an insurance compliance audit that was conducted for the purpose of concealing a violation of any federal, state or local law or rule; (b) The material is not subject to the privilege; or (c) The material contains evidence relevant to commission of a criminal offense, and: (A) A district attorney or the Attorney General has a compelling need for the information; (B) The information is not otherwise available; or (C) The district attorney or Attorney General is unable to obtain the substantial equivalent of the information by any other means without incurring unreasonable cost and delay.
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