Ripple calls SEC defence aggressive and seeks to strip it of its Deliberative Process Privilege

Lawyers for Ripple described the SEC defence as “ultra-aggressive” and said the agency must provide justification for withholding information from the court for each document requested. James K. Filan, the attorney, said this.

#XRPCommunity #SECGov v. #Ripple #XRP Ripple files Supplemental Briefing regarding Deliberative Process Privilege https://t.co/QcVFVCUHCc

— James K. Filan 🇺🇸🇮🇪 (@FilanLaw) December 8, 2021

The privilege at issue is the deliberative process privilege ( deliberative process privilege, DPP) of the SEC. This is a legal principle allowing the regulator to refuse disclosure of documents or testimony, citing confidentiality of data and sources.

The dispute over the regulator’s application of this principle has been ongoing for several months. On December 3, Judge Sarah Netburn ordered the parties to file supplemental briefing in support of their positions.

#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

Ripple cites a recent NRDC lawsuit against the U.S. Environmental Protection Agency (EPA). In the verdict in that case, the court held that government agencies are responsible for linking a withheld document to a “specific decision” or “specific decision-making process.”

According to the lawyers, the SEC was unable to do so, and therefore cannot rely on the DPP in the current proceedings.

“As the NRDC case shows, the SEC must identify a specific decision-making process and explain how each withheld document relates to that process. In this case, the Commission clearly failed to meet that burden,” wrote attorney Matthew Solomon in a letter to the judge.

The firm also stressed that in the current case the SEC is the plaintiff, not the defendant.

Regulators’ analysts say that the NRDC case, by contrast, indicates there is no need to link withheld records to a single, discrete decision to apply the DPP.

#XRPCommunity #SECGov v. #Ripple #XRP SEC files Supplemental Briefing regarding Deliberative Process Privilegehttps://t.co/yMxOhmcRgFhttps://t.co/CmwHA1xFH4

— James K. Filan 🇺🇸🇮🇪 (@FilanLaw) December 8, 2021

“Because all withheld documents relate to a specific decision or decision-making process, the DPP protects them from disclosure,” the SEC says in the letter.

In addition, the Commission’s lawyers stressed that the precedent at issue demonstrates the regulator’s right to apply the DPP to “records regarding the agency’s decision on how to convey its policy to outsiders.”

In their view, such documents include internal SEC communications about the content of speeches and other public communications.

Earlier reports pointed to a possible conflict of interest in the SEC’s case against Ripple. Journalists said the staff behind the filing could be affiliated with Ethereum.

Earlier, in November, Ripple chief Brad Garlinghouse acknowledged a successful resolution of the dispute with the SEC in 2022.

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