The United States District Court for the Southern District of New York has ordered the Securities and Exchange Commission to submit its proposed redactions for in camera review no later than April 8, 2022.
Magistrate Judge Netburn has ordered the plaintiff to do so in order to proceed to analyze the redactions and ascertain whether she agrees with the SEC’s understanding of what portions should be protected by deliberative process privilege (DPP).
Given the history of the DPP debate throughout the lawsuit, there are some expectations that the SEC will look to redact the internal documents as much as possible, claiming it is privileged information, thus leaving Ripple without much to use against the SEC in court.
Judge Sarah Netburn seems to be aware of the SEC’s inclination to redact and has stated, in a previous court ruling, that the regulator failed to convince the court the 11 sets of notes are protected by DPP and that none of these notes appear to contain any personal observations or commentary by the third-parties nor any attorney-client communications or work product.
The court only allowed the SEC to redact the 11 notes to accommodate the SEC’s wishes to redact any portion that expressly reflect the third-parties’ own thinking or reflect deliberations or communications among the SEC staff.
THE PRIVILEGE DOES NOT SHIELD THESE NOTES FROM PRODUCTION
In Judge Netburn’s original ruling regarding these notes, the order stated “The SEC has not established that these 11 sets of notes demonstrate the kind of exercise of judgment necessary for the privilege to apply.
“Fact gathering from third parties is not an inherently privileged activity; the SEC itself notes that information about what occurred at such meetings can be requested from those third parties.
“Nothing in the notes suggests that certain facts were recorded while others were purposely omitted as an exercise of judgment or deliberation, and the SEC has not submitted any declarations by notes’ authors attesting to their method or manner of note-taking.
“Nor do the notes appear to reflect any personal observations or commentary by their authors. The privilege does not shield these notes from production. To the extent, however, that any portions of the notes expressly reflect the authors’ own thinking or reflect deliberations or communications among the SEC staff during the meeting, the SEC may seek leave to redact such portions.
“As interpreted by the Court, none of these notes appears to contain attorney-client communications or work product.”
Earlier this week, Ripple admitted that it relies on the SEC’s representations and the Court’s review to determine whether the redacted portions “expressly reflect the authors’ own thinking or reflect deliberations or communications among SEC staff during the meeting.”
Ripple argued that, because only the Court and the SEC have seen the unredacted documents, the defendants must defer to the Court to decide whether the redacted portions are in fact protected by the DPP.
On March 23, the SEC requested the court to redact portions of the handwritten notes taken by SEC staff who attended certain meetings between the SEC and third parties, arguing these portions are protected by the deliberative process privilege (“DPP”).
“The handwritten portions in question expressly reflect either (1) the authors’ thoughts regarding subject matters discussed during meetings and/or (2) deliberations among SEC staff during meetings”, the SEC stated.