The latest update to the XRP lawsuit reveals that the plaintiff in the DPP dispute filed a summary letter to support the so-called privileged data it has withheld from Ripple. The SEC claims that all documents to be reviewed on camera by Judge Netburn are “predetermined and deliberate” and are therefore protected by the Deliberative Procedural Privilege (DPP). In addition, the SEC claims that these documents are also protected by attorney-at-law and labour product principles.
The SEC also argued that the mandatory submission of internal and inter-agency documents previously protected by DPP would undermine the very advisory work of the SEC staff.
“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 Regards Documents as Informal Internal Agency Communication
The SEC stated that on May 6, the court ordered the production of non-privileged external communications on Bitcoin, Ethereum and XRP, as well as 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.”
However, following Ripple’s motion to require mandatory disclosure in the DPP dispute, the court ordered the SEC to bring the sealed documents onto the camera. The SEC is anti-symmetric; these documents are actually internal documents of the SEC and communications with other law enforcement agencies.
SEC Claims the Documents are Not Responsive
The US Securities and Exchange Commission has returned to its “irrelevant” position, arguing that most mandatory documents do not respond and do not need to be searched in the case. The SEC also alleged that it recorded these documents in good faith to avoid further litigation against certain categories of documents, including minutes of external meetings of SEC officials or drafts of Director Bill Hinman’s June 2018 speech. However, the SEC will continue to support its position that these documents are unresponsive to court orders.
However, most of the institutional documents recorded by the SEC are internal communications, notes, and drafts of the SEC are not “institutional memos. Or an official position paper”.