It remains to be seen whether the SEC will make a new attempt to avoid producing the documents, but the court seems increasingly unwilling to hear them out.
New York court Judge Sarah Netburn has denied the SEC’s motion to protect Hinman’s internal notes and emails under attorney-client privilege, according to court documents.
“This argument was previously raised secondarily, with the SEC primarily asserting the deliberative process privilege. The SEC motion is denied”, the Judge ruled.
The fight over Hinman’s documents has been the hardest in the case so far and will likely remain that way as it is thought to be the “biggest decision” in the SEC v. Ripple lawsuit.
A number of law experts, including XRP Holders’ amici attorney John Deaton, have said that once the court issues an appeal-proof decision against the SEC in regard to its privilege claims, the plaintiff will find itself in hot water as the agency clearly does not intend to hand over the documents to Ripple.
Why? It’s been said that the SEC’s behavior suggests that these notes and email exchanges could provide enough evidence in favor of Ripple’s fourth affirmative defense, also known as the fair notice defense, and could also end the SEC’s claims that XRP is a security.
It remains to be seen if the SEC will make a new attempt to avoid producing the documents to the defendants as this is not the first time the court sides with Ripple on this matter.
Last time, the court denied the SEC’s claim that the Hinman notes and emails were protected by deliberative process privilege and made it “appeal-proof”, according to attorney John Deaton. The plaintiff, however, returned to claim attorney-client privilege.
“I find that the documents did not have the predominant purpose of soliciting or providing legal advice”, Judge Sarah Netburn stated. “Indeed, later at oral argument, SEC counsel suggested that the legal advice was to “educate” Hinman on the legal standards. If the predominant purpose of the agency lawyers’ comments was to inform Hinman about the law but not to advise the agency in its decision-making, it is not protected communication.”
“The law is settled that policy advice—like whether it is a good idea or a bad idea to make a particular public statement as a public figure—or communication advice—like whether a statement is on-message with the agency’s position—is not protected legal advice, even when it is offered by lawyers. Accordingly, the predominant purpose of the communications was not to provide legal advice to aid the SEC in conducting the public’s business. The documents must be produced.”
“As much as I enjoyed the legal victory (and the Judge seeing right through the SEC deceit), I was even more glad to see the excitement and happiness on crypto-Twitter, again. It’s been a while”, said Jeremy Hogan, an Orlando-based attorney that has been regularly commenting on the case.
Read More: Ripple scores decisive win in XRP lawsuit