• Due to a Court of Appeals decision in a separate lawsuit, Ripple and the SEC are back in the ring

  • Those following the SEC vs. Ripple Labs case may have expected radio silence for the rest of the year after the court extended the discovery deadline to January 14, 2022. However, a new development in early December made headlines. Both the SEC and Ripple appear to be required to take action at this point.

    Another deadline has passed.

    According to a filing shared by defense lawyer and former federal prosecutor James K. Filan, Judge Sarah Netburn has ordered both parties in the case to file additional documents. This, however, was due to legal developments in a completely different court case.

    The judge stated, citing the “scope of the deliberative process privilege,”

    “In light of this decision, the parties shall simultaneously file letter briefs of no more than three pages to supplement their arguments concerning Defendants’ motion to compel, ECF No. 289, by December 8, 2021.”

    What is the meaning of deliberative process privilege? To refresh your memory, this safeguards an institution’s decision-making process from outside parties, including, if necessary, defendants in court.

    Please explain in plain English.

    Outside of the crypto world, the Natural Resources Defense Council [NRDC] filed a lawsuit against the United States Environmental Protection Agency [EPA], which was ordered to produce specific documents regarding its pesticide policies. The EPA objected, citing deliberative process privilege as one of their justifications.

    The United States Court of Appeals for the Second Circuit ruled that the EPA was not required to produce all of its records pertaining to a policymaker’s role. Furthermore, the court issued a new decision on what is covered by deliberative process privilege.

    Ripple Labs is now experiencing ripple effects. After all, the SEC asserted deliberative process privilege in response to the blockchain company’s motion compelling the regulator to produce three additional email documents. Ripple previously stated that the documents “appear to be Highly Relevant to the Defense.”

    Naturally, the XRP community has been debating whether this update is beneficial or detrimental to Ripple.

    Attorney Jeremy Hogan, for his part, stated,

    “…I read the opinion, and the law change favors the SEC slightly.” Let’s wait and see what the briefs say!”

    Both the SEC and Ripple will need to understand the new decision and submit their arguments in less than five days. This has far-reaching consequences for Ripple’s motion to compel the SEC to produce the three documents.

    Ripple’s parade ruined?

    The surprising court development comes just a week after Ripple CEO Brad Garlinghouse expressed optimism about the lawsuit. He expressed his belief that the case would be resolved in 2022, saying,

    “Clearly, the judge is asking good questions. And I believe the judge understands that this isn’t just about Ripple; it has far-reaching implications.”

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