XRP Lawsuit: SEC files letter brief, reinstating it’s stance in DPP dispute

The latest update in the XRP lawsuit saw the plaintiff file a Letter Brief in the DPP dispute, supporting the allegedly privileged data it is keeping from Ripple. The SEC asserted that all documents that will be reviewed by Judge Netburn, in-camera are “pre-decisional and deliberative”, and henceforth protected by the Deliberative Process Privilege (DPP). Furthermore, the SEC claims that these documents are also protected by the attorney-client privilege and the work product doctrine.

The SEC has also argued that compelling production of internal and inter-agency documents, that were formerly protected by DPP will cast down the genuine consultation efforts from the SEC employees.

“The compelled release of the SEC’s pre-decisional deliberations relating to digital assets would discourage meaningful deliberation among SEC officials and staff relating to investigations, potential cases, and other regulatory activities taken or under Consideration in a field where regulation carries significant consequences for the financial markets.”

SEC argues that documents are “informal intra-agency communications”

The SEC stated that on May 6, the Court ordered production of non-Privileged external communications about Bitcoin, Ether, and XRP, along with internal “memoranda or formal position papers” discussing the three tokens. However, the plaintiff emphasized that the Court had agreed that production of “informal intra-agency communications, such as emails…need not be searched or logged.”

Yet, post-Ripple’s motion to compel discovery in the DPP dispute, the court order the SEC to produce in-camera, the documents listed under seal. The SEC objected that these documents are in fact SEC internal documents and communications with other law enforcement agencies.

SEC claims documents are “non-responsive”

The SEC has reinstated its ‘irrelevance’ stance, arguing that most compelled documents are non-responsive, and are not required to be searched in the case. The SEC also claimed that it logged these documents in good faith to avoid further litigation on certain categories of documents, including SEC officials’ notes of external meetings or drafts of Director Bill Hinman’s June 2018 speech. However, the SEC would continue to support its stance that these documents are not responsive to the Court’s orders.

“But the majority of the intra-agency documents logged by the SEC constitute internal SEC communications, notes, and drafts that are not responsive to this Court’s orders: they are the very “intra-Agency communications” that “need not be searched or logged” because they are not “intra-agency memoranda or formal position papers.”