During an Aug. 31 telephonic conference between Ripple and the U.S. Securities and Exchange Commission, Magistrate Judge Sarah Netburn said that she would conduct an in-camera review of the documents sought by the defendants:
It's my inclination to conduct an in-camera review, as proposed by the defendants
She may, however, find the documents to be “far afield” to be subject to discovery after looking at them privately.
The SEC failed short of asserting blanket deliberative process privilege on the documents. Senior trial attorney Jorge Tenreiro argued that SEC staff’s internal deliberations were protected by the laws:
The law is what the law is. It doesn't matter what SEC staff think or say inside the SEC if the public is never told it. The deliberative process privilege protects this.
As reported by U.Today, Ripple was requesting the regulator’s intra-agency documents that express its views on XRP, Bitcoin, and Ether.
Ripple’s defense lawyer argued that the SEC was asserting its privilege in “a grossly overboard way”:
We have been put through the ringer on discovery. But now the SEC is asserting deliberative privilege in a grossly overbroad way. On that basis alone, your Honor is empowered to order disclosure of all of these documents.
Netburn will rule on each document individually shortly after Sept. 28:
I'd like the documents and a letter brief from the SEC, filed on the public record with redactions as limited as possible, a response (no reply needed), then I'll rule.
In the meantime, the SEC is requesting access to the recordings of Ripple’s meetings.