XRP Lawsuit: Court orders in camera review regardless SEC “privileged documents” stance

The recent development in the XRP lawsuit witnessed the Court grant Ripple’s September 24 appeal, seeking the addition of three documents by the SEC for in-camera review, that the plaintiff had either redacted or withheld by logging them as “privileged”. These documents include the two documents related to the SEC’s meetings with law firms, along the email trail concerning discussions with a third party who received guidance from the SEC to analyze its digital asset under the framework set forth in Hinman’s June 14, 2018, speech.

Judge Netburn has ordered the SEC to submit an explanation for its privilege assertions for all those documents, latest by October 15, 2021. The SEC must also file a redacted version of its submission on the public docket.  Furthermore, Ripple’s response on the issue is also due latest by October 22, 2021.

SEC “privileged” argument

Last month, Ripple had filed a letter appealing the court to add three documents to the in-camera review based on a privilege log provided by the SEC after the August 31, 2021, telephone conference. However, the SEC objected that these documents are non-responsive to the Court’s prior orders.

Furthermore, the SEC also noted that the documents in question had been put on the privilege log in lieu of their “apparently futile” nature that could potentially initiate unnecessary disputes. The SEC also argued that the documents fall under DPP along with claiming duplicity of deliberations with already submitted exhibits for in-camera review.

“The three additional documents listed on the SEC’s September 2 privilege log for which Defendants now seek in-camera review are not responsive to the Court’s prior orders, reflect deliberations by SEC staff, and have therefore been redacted or withheld under the deliberative process privilege (the “Privilege”). The deliberations reflected in these documents are similar to the deliberations reflected in several of the documents already submitted in-camera relating to SEC staff meetings with third-parties.”, notes the SEC in the letter.