SEC Slight Win As Court Denies Ripple’s Move to Dismiss Dr. Albert Metz Supplemental Expert Report & Other Developments 

SEC Slight Win against Ripple.

Efforts by blockchain company Ripple to strike Dr. Albert Metz’s supplemental expert report have ended in futility, as Judge Sarah Netburn has denied the defendants’ motion to strike. 

With the most recent ruling, the Securities and Exchange Commission’s late filings of Dr. Metz’s supplemental expert rebuttal report will stand. 

Recall that the deadline for the submission of all expert discovery reports was initially slated for August 16, 2021. However, following several disputes raised, the deadline was pushed to January 14, 2022, and subsequently February 28, 2022. 

At the last deadline on February 28, 2022, the SEC served the defendants a new supplemental report from Dr. Metz, while citing information that is already known by Ripple and the Individual Defendants. 

Based on this, Ripple moved to strike the Dr. Metz supplemental expert rebuttal report, saying the report does not meet the requirements of Civil Procedure Rule 26(e) and 37(c)(i). 

The SEC argued that the defendant’s motion is one filed to strike out expert testimony, which is essential in the case. 

“Defendants have not demonstrated that re-deposing Dr. Metz on his additional analysis and potentially filing their own supplemental reports would constitute, as they put it. […] Overall, given the harshness of preclusion, I decline to strike Dr. Metz’s supplemental report,” Judge Netburn ruled.  

Following the most recent ruling, the court extended the discovery deadline to May 13, 2022, to give more room to re-depose Dr. Metz’s analysis in the supplemental rebuttal report. 

It is worth noting that the Dr. Metz report is drafted to show the economic significance and effects of Ripple’s public announcement with regard to the value of the XRP coin. 

Court Says Estabrook Notes Are Protected By DPP

Meanwhile, Ripple also recorded another loss in the hallmark lawsuit after Judge Netburn denied Individual Defendant Brad Garlinghouse’s motion to compel the SEC into producing the Estabrook notes. 

In a recent ruling, Judge Netburn noted that Estabrook’s notes are no different from the documents the court deemed to be protected by the Deliberative Process Privilege (DPP). 

“The SEC’s fact-gathering from third parties is not an inherently privileged activity, but having reviewed Estabrook’s notes, I find that they could reveal to Garlinghouse the SEC’s internal thought processes during his meeting with Commissioner Roisman. The privilege applies,” an excerpt from the ruling, as shared by James K. Filan, reads. 

“The SEC’s fact-gathering from third parties is not an inherently privileged activity, but having reviewed Estabrook’s notes, I find that they could reveal to Garlinghouse the SEC’s internal thought processes during his meeting with Commissioner Roisman. The privilege applies.”

— James K. Filan ????90k+ (beware of imposters) (@FilanLaw) April 19, 2022

Ripple to Rely on Hinman’s Emails

With Ripple denied access to Estabrook’s notes, the blockchain company would have to rely on an email containing a draft of SEC’s former Director William Hinman’s 2018 speech on Ethereum not being a security. 

Earlier this week, Judge Netburn insisted in her ruling that the SEC should surrender Hinman’s documents to Ripple. 

However, the SEC was also granted permission to redact certain portions of Hinman’s documents that reflect the personal thoughts of its staff before producing the documents to Ripple. 

With this decision, the SEC may edit some parts that could prove that XRP is not a security. 

In other news, Judge Torres also granted the Securities and Exchange Commission’s extension of time request to file an objection to Judge Netburn’s DPP ruling of Hinman’s emails. 

“The Objection is due 14 days after Magistrate Judge Netburn rules on the SEC’s new privilege assertions,” Filan noted. 

#XRPCommunity #SECGov v. #Ripple #XRP Judge Torres has granted the SEC’s Motion for Extension Time to file its Objection to Magistrate Judge Netburn’s DPP Ruling. The Objection is due 14 days after Magistrate Judge Netburn rules on the SEC’s new privilege assertions. pic.twitter.com/YMpj5dBEPN

— James K. Filan ????90k+ (beware of imposters) (@FilanLaw) April 19, 2022

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