XRP Lawsuit: SEC claims all withheld documents protected under ‘deliberative process privilege’

As the holiday season rolls around, both the SEC and Ripple are busy writing to the court. No, not Christmas cards, but letter briefs to supplement their arguments after Judge Sarah Netburn ordered them to do so.

Here is what the American regulator had to say.

‘File’ me in on what happened

The SEC took note of an updated reading of deliberative process privilege, which protects a company’s documents related to a “specific” decision or decision-making process, even in the courtroom. The SEC used this interpretation to explain why the documents that Ripple wanted for an in-camera – or private – review, should be protected. The SEC’s letter by Counsel Ladan F. Stewart, stated,

“Because all of the withheld documents are connected to an identified decision or decisionmaking process, the DPP protects them all from disclosure. Further, NRDC [court case] shows that the SEC’s internal communications about the content of speeches and other public-facing communications are “messaging records” protected by the DPP.”

What’s more, the SEC insisted that DPP applied to documents that were part of its own “ongoing decisionmaking processes.”

Give me a ‘SEC’ to process

Regarding the case between the Natural Resources Defense Council [NRDC] and the U.S. Environmental Protection Agency [EPA], the United States Court of Appeals for the Second Circuit ruled that the EPA did not have to show some policy documents. The Court also ruled that DPP applied to staff messages about communicating said policies.

Now, the SEC is using this reading to defend the right to protect its communication regarding the Hinman Speech, which has been a source of debate during the lawsuit. About these “protected messaging records,” the SEC further said,

“These documents consist of draft talking points and Q&A for future speeches by the then-SEC Chair and the then-Director of the SEC’s Division of Corporation Finance, Bill Hinman, as well as a draft of Director Hinman’s June 2018 speech rearding, among other things, offers and sales of Ether.”

Furthermore, the SEC cited NRDC vs EPA to stress what the Circuit Court reportedly noted about “candor within an agency.” The SEC claimed,

“The deliberations reflected in the withheld documents…are precisely the type of frank and open discussions that would be chilled by compelled disclosure.”

Ripple’s retort

In its own filing, the San Francisco-based blockchain company claimed that the SEC had failed to identify a “specific” decision-making process for each document it did not wish to submit. Ripple Labs claimed,

“As NRDC [case] confirms, the SEC must identify a specific decisionmaking process and explain in its privilege logs how each withheld document connects to that process, a burden the SEC has plainly failed to meet here.”

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