XRP lawsuit: Hogan and Deaton agree SEC beats Ripple over Estabrook notes

Rick Steves

Such notes are pre-decisional and deliberative, and piercing the SEC’s privilege is unwarranted because Garlinghouse’s “need for the [notes] is significantly reduced” given his presence at the Meeting”, the SEC argued. 

The SEC has filed its opposition to Brad Garlinghouse’s motion to compel the turnover of notes taken by Matthew Estabrook.

The “Estabrook notes” refer to a 2018 meeting between ex-SEC Commissioner Elad Roisman and Ripple CEO Brad Garlinghouse.

Piercing privilege is unwarranted, says SEC

The plaintiff has submitted the notes to Judge Netburn for in camera review but opposes their production to the defendants because “the Notes are no different from SEC notes this Court has already held are protected by the DPP”.

According to the SEC, the notes should remain protected by DPP because Mr. Estabrook took the notes because he believed they could relate to future Commission decisions. The same thing happened in a previous Hester Peirce meeting and it was considered privileged by the court.

Such notes are pre-decisional and deliberative, and piercing the SEC’s privilege is unwarranted because Garlinghouse’s “need for the [notes] is significantly reduced” given his presence at the Meeting”, the SEC argued.

Ripple says Estabrook notes not privileged

Ripple requested the Estabrook notes earlier this month and argued these were not protected by DPP.

“Notes taken by SEC staff in the context of fact-gathering with third parties (i.e., not the SEC itself) do not fall within the scope of the DPP, even if the information gathered may later be relied on for future policymaking”, said Ripple in its motion to compel.

“As with the other notes this Court ordered the SEC to produce, there is no evidence that in the Estabrook Notes “certain facts were recorded while others were purposely omitted as an exercise of judgment or deliberation” or that such a decision was made to assist with agency decision-making.”

“SEC’s stated position, that the Estabrook Notes were taken for purposes of ultimately advising the Commission on policy, is exactly the same justification that the SEC gave for withholding notes of other meetings, and that the Court has already rejected.

“The fact that the SEC relies on information it learns when it makes policy does not make all of the information the SEC learned privileged”.

“Defendant Garlinghouse requests that the Court order the SEC to produce the Estabrook Notes or, alternatively, order the SEC to provide the document to the Court for in camera inspection.”

Experts debate over Estabrook notes

As the judge prepares to rule over the Estabrook notes, attorneys Jeremy Hogan and John Deaton commented on this battle between the SEC and Ripple.

“I don’t think the Judge orders these notes be produced. The SEC does a good job of laying out its argument in the first part, and I think the second and third arguments are particularly compelling. If the SEC wins this motion, remember, it’s a small battle in this litigation”, said Mr. Hogan.

“Jeremy is on point as usual. [Because] Brad Garlinghouse was at this meeting, he is aware of what was said and discussed. Judge Netburn already ruled Ripple couldn’t have the notes from other meetings Garlinghouse or SBI (its largest shareholder) were present for”, Deaton commented.

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