“The idea of “uncontroverted” evidence is very very powerful in the law. It’s evidence that must be believed by the Court. So unless the SEC comes up with evidence to the contrary, whatever Garlinghouse says about that conversation is what took place. No questions asked.”
After a huge win for Ripple last week, the SEC v. Ripple lawsuit has turned out to be bleaker for Ripple this time around. The court has denied the motion to compel the SEC to produce the Estabrook notes
The Estabrook notes were taken during a 2018 meeting between Ripple’s chief executive Brad Garlinghouse and ex-SEC Commissioner Elad Roisman, who has been critical of the SEC’s enforcement policy on digital assets.
The notes reflect the matters discussed at the meeting that Estabrook believed were important or could relate to future SEC decisions. Since the court has previously ruled that analogous notes were protected by privilege, Judge Sarah Netburn decided these were no different and Garlinghouse’s testimony of what happened during the meeting reduces the importance of those notes. In addition, handing over the notes could reveal the SEC’s thought process during the meeting.
“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.”
Jeremy Hogan, Partner at the Hogan & Hogan law firm, had previously commented on the filing and concluded that even if the SEC won this motion, it wouldn’t be able to deny what actually took place in the meeting.
“Let’s step back from the motion and think like a trial lawyer. At trial, Garlinghouse testifies about the meeting with Roisman. There’s absolutely no indication that Roisman or Eastbrook are disputing what was said (otherwise the SEC would gladly produce the notes).
“If Roisman or Eastbrook go turncoat, they could testify that Garlinghouse lied about his testimony… and what happens then? That’s right, Ripple gets to impeach the heck out of them with the EASTBROOK NOTES, which lose DPP privilege the moment they talk about the meeting.”
“Which means that the SEC has no evidence at all about the meeting but can only argue that Garlinghouse’s testimony is “self serving” and… all testimony is self serving. That’s very x2 weak sauce. By which I mean to say, whatever the Judge rules, the SEC is already dead [in the water]”.
“The SEC is dead on the fact that Garlinghouse left that meeting feeling that he and Ripple weren’t doing anything wrong. That’s of course only part of the battle here”.
Commenting on the court’s ruling, attorney Hogan explained that since Garlinghouse was on the call, he can testify about what was said – uncontroverted.
“The idea of “uncontroverted” evidence is very very powerful in the law. It’s evidence that MUST be believed by the Court. So unless the SEC comes up with evidence to the contrary, whatever Garlinghouse says about that conversation IS what took place. No questions asked.”
In addition to the denying the Estabrook notes and allowing the SEC’s Metz report, the court also granted the SEC’s motion for extension of time to file its objection to the DPP ruling. The Objection is due 14 days after Magistrate Judge Netburn rules on the SEC’s new privilege assertions.