The latest twist in the XRP litigation is the final cliffhanger for the SEC’s long-running Deliberative Process Privilege (DPP) argument, which no one anticipated coming.
Judge Netburn has directed the parties to file supplementary briefs on the Defendants’ Motion to Compel by December 8, citing a ruling by the United States Court of Appeals on November 29 in a separate case involving DPP.
#XRPCommunity #SECGov v. #Ripple #XRP Judge Netburn orders the parties to file supplemental briefing on Deliberative Process Privilege in light on recent Second Circuit case. https://t.co/KojVb9SOQZ pic.twitter.com/HCYJYAtwuW— James K. Filan 🇺🇸🇮🇪 (@FilanLaw) December 3, 2021
According to the judgement in the 11/29 case, all internal agency talks relating to the disclosure of information procedure, i.e. documents linked to the consultation process, are protected under the DPP. The SEC will now be able to seek DPP protection for papers conveying information about a specific decision-making process.
Following the plaintiff’s response to Ripple’s Motion to Compel the discovery of three further papers filed by the SEC for in-camera review, the plaintiff may now be able to seek protection for these documents, since they come under the “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.
Ripple has previously asked the court for the disclosure of the SEC’s redacted submission of three further papers for in-camera consideration in the DPP dispute. The SEC, on the other hand, contended that “how the SEC proposes to arrange a venue it wants to utilize to engage with industry players” is deliberative or would expose its “method of developing or exercising policy-implicating judgment,” which aligns with the DPP’s expanded scope.
The redacted submission includes two papers relating to SEC meetings with law firms, as well as an email trail relating to conversations with a third party that received instructions from the SEC to examine its digital asset using the methodology outlined in Hinman’s June 14, 2018, address.
