Could the SEC redact 100% of the privileged notes?
Ripple and the individual defendants, Brad Garlinghouse and Chris Larsen, have responded to the SEC’s request for leave to redact portions of handwritten notes by SEC staff.
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.
“While the SEC has submitted unredacted versions of these notes to the Court, Defendants have not had the opportunity to review the redacted portions and accordingly must rely on the SEC’s representations and the Court’s review of the SEC’s submissions as to whether those redacted portions “expressly reflect the authors’ own thinking or reflect deliberations or communications among SEC staff during the meeting”, stated the Ripple counsel team, led by attorney Matthew C. Solomon.
“Provided that they do, and based on the information currently available to them, Defendants do not presently challenge the SEC’s redactions, however, they reserve all rights with respect to these documents, including as to whether any redactions are appropriate given the lack of any specifically-identified deliberative process to which they related”.
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.
The request followed the court’s order that challenged the SEC’s assertion of the DPP, among other privileges. The Court held that the DPP did not shield from production certain sets of notes of meetings between SEC staff and third parties unrelated to Ripple.
The Court also ruled that the SEC may seek leave to redact “any portions of the notes [which] expressly reflect the authors’ own thinking or reflect deliberations or communications among SEC staff during the meeting.”
Besides the redactions, Judge Sarah Netburn is expected to soon decide on the SEC’s motion for reconsideration, Ripple’s motion to strike the supplemental expert report, and Ripple’s motion to compel turn over the Estabrook notes. In the meantime, the court awaits the individual defendants’ answers by April 8.
