Ripple responds to SEC’s repetitive “privileged documents” argument

The latest update in the XRP lawsuit saw Ripple file a letter responding to the SEC’s brief regarding allegedly privileged documents that the SEC has redacted or withheld. Ripple has argued against SEC’s repetitive “privileged” stance to prevent discovery and review of evasive and responsive documents to the case. Ripple has asserted that the SEC continues to devote much of its response to arguing “targeted letter briefs on those documents” that the Court has already rejected on several occasions.

XRP 2018 Legal Analysis

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The case saw one of the most explosive pieces of information that were revealed by Ripple, which comprised of the plaintiff’s 2018 XRP analysis proving that the SEC’s manifold versions of the privileged argument do not stand. Ripple noted that an SEC division’s legal analysis of XRP was made available to “certain individuals at the SEC”, just a day before the controversial Hinman speech of 2018.

“The SEC’s Division of Corporation Finance—a division that operates distinctly from the Division of Enforcement—wrote a memorandum containing a “legal analysis of XRP.” That memorandum was then circulated to certain individuals at the SEC on the day before former Director of Corporation Finance Bill Hinman gave a speech publicly declaring Ether not to be a security.”

Ripple further discredited the SEC’s logged privilege documents, specifically the XRP legal analysis under three claims. The defendants discard the attorney-client privilege argument by the SEC stating that the mentioned documents are not protected by work privilege as they are not working documents. According to Ripple, the documents in question were never part of the SEC’s investigative file, as the SEC now seems to assert. The defense notes that investigative documents are already covered by the SEC’s categorical privilege log, and unlike these documents, they would not have required any further logging.

“The very logging of this document suggests that it was not part of the investigative file and raises questions about what it is and why it was prepared.”

Furthermore, the XRP legal analysis documents’ author remains anonymous, and the drafting timeframe is also not disclosed by the SEC. The only information available about it is that it was drafted before the 2018 Hinman speech and that it was sent by the Office of the Chief Counsel of the Division of Corporate Finance.

Lastly, the SEC does not assert that the memorandum was drafted at the direction of Enforcement counsel given litigation, only that it was sent to a single enforcement counsel—along with nine other people who are not in the Division of Enforcement.

“There is every reason to believe that the Division of Corporation Finance was looking at XRP’s status under the securities laws independently of considering whether the Division of Enforcement might recommend an action to the Commission.”

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