Prominent attorney Jeremy Hogan predicts the U.S. Securities and Exchange Commission (SEC) may prevail in its motion to strike Ripple’s challenge to a new expert witness. Ripple filed a motion asking the court to exclude expert materials from the SEC’s Assistant Chief Accountant Andrea Fox because these were withheld during the discovery phase.
Ripple argues Fox functions as an expert witness, requiring adherence to specific disclosure timelines. The SEC maintains Fox is a summary witness, exempt from such deadlines.
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Ripple’s Arguments for Disqualification
Ripple’s filing hinges on two main points:
Fox Utilizes Specialized Knowledge: Ripple contends Fox goes beyond basic calculations and utilizes her accounting expertise to interpret financial records, draw inferences, and calculate disgorgement figures. They highlight specific examples from Fox’s declaration, such as her interpretation of the “Cost of Revenue” category and her analysis of expense allocation within Ripple’s records. Ripple argues these tasks require specialized knowledge, exceeding the capabilities of a layperson juror.
Disclosure Timeline Violation: Ripple emphasizes the pre-existing agreement between both parties and the court order mandating the disclosure of rebuttal expert reports or summary witnesses before the close of discovery. The filing emphasizes that Ripple reserved the right to depose such a witness. Ripple argues that by revealing Fox’s testimony after the discovery period, the SEC hampered their ability to prepare properly for her testimony.
Ripple also cites prior cases showing that the court has routinely struck untimely expert witness disclosures, and points out that the SEC failed to address this in its filing.
Hogan’s Potential Rationale
Hogan predicts the SEC will succeed in keeping Fox’s analysis, and his prediction could stem from several aspects of the case. One of these is the nuance of Fox’s role, as the line between expert and summary witness can be blurry.
While Fox uses accounting knowledge, the extent of its application in interpreting financial records might be a point of contention. The judge may determine her analysis does not rise to the level of requiring expert witness disclosure.
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Even if classified as an expert, the court might allow Fox’s testimony with the option for Ripple to depose her. This would allow Ripple to address any concerns about her interpretations and calculations.
The court might also prioritize the overall impact of Fox’s testimony. The judge might allow her testimony if she concludes that its contribution to the case is minimal, especially if Ripple has the opportunity to address it through a deposition.
While Jeremy Hogan anticipates the SEC may win the motion to strike, several developments suggest the lawsuit could go in Ripple’s favor.
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