XRP Lawsuit: SEC uses Deliberative Process Privilege (DPP) yet again to avoid discovery

The latest update in the XRP lawsuit saw the SEC file an opposition against Ripple’s letter appealing for the addition of three documents to the in-camera review based on a privilege log provided by the SEC after the August 31, 2021, telephone conference. The plaintiff asserts that these documents are non-responsive to the Court’s prior orders.

Furthermore, the SEC also noted that the reason it placed the mentioned documents on a privilege log is that they fall under the “apparently futile” category that could potentially initiate unnecessary disputes. Additionally, 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.

SEC constant efforts to hide the email trail

The SEC continued to argue its stance, referring to the formerly submitted under seal data that has been covered by Privilege. The plaintiff highlights that there lies considerable similarity between the mentioned documents and the additional three in question. Therefore, if the court grants privilege to one of them, the privilege should be extended to both by default. However, the SEC requests the court to grant the commission an opportunity to make a submission explaining its privilege assertions in case privilege is not granted.

The SEC is battling against the three mentioned documents as they include an email chain that potentially discards the SEC’s former “just an opinion” argument regarding the 2018 Hinman speech and furthers Ripple’s “fair notice” stance. Ripple has argued that the email chain evidence unveils discussions with a third party that highlights SEC’s confusion regarding the legal structure of securities.