XRP Lawsuit: This Development in Scope of DPP May Make or Break the Case

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Nobody saw it coming, the latest development in the XRP lawsuit is the ultimate cliffhanger for the SEC’s long-standing Deliberative Process Privilege (DPP) argument. Judge Netburn has ordered both parties to submit supplemental briefs by December 8, on Defendants’ Motion to Compel, referring to the 11/29 decision by U.S. Court of Appeals in an unrelated case dealing with DPP.

According to the decision of the 11/29 case, all the conversations within the agency, dedicated to the process of the disclosure of information, are protected under DPP, i.e., records related to the consultative process. Henceforth, the SEC may seek protection under DPP even for documents containing information regarding a specific decision-making process. After linking this to Ripple’s Motion to Compel the

discovery of three additional documents that were submitted by the SEC for in-camera review, the plaintiff may now be allowed to seek protection for these documents, given they fall under “consultative process”.

“Agencies exercise policy-oriented judgment when determining how to communicate with people outside the agency about a policy. Therefore, the deliberative process privilege shields otherwise deliberative agency records that relate to and precede an agency’s communications decision. In this context, a record is “deliberative” if it reflects discussions about what the agency should say about a policy or how to formulate that message. Additionally, an agency may invoke the deliberative process privilege by connecting a record not only to a specific contemplated decision but also to a specific decisionmaking process.”, noted the 11/29 decision by U.S. Court of Appeals.

SEC seeks protection under DPP, While Ripple appeals for Disclosure

The previous update in the DPP dispute saw Ripple appeal to the court for the disclosure of SEC’s redacted submission of three additional documents for in-camera review. However, the SEC argued that “how to structure a forum the SEC intends to use to communicate with industry participants” is deliberative or would reveal its “mode of formulating or exercising policy-implicating judgment,”, which syncs with the updated scope of DPP. The redacted submission contains 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.

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