WhatsApp Inc. et al v. NSO Group Technologies Limited et al

Filing 299

ORDER by Judge Hamilton denying in part 288 Motion for Issuance of Letters Rogatory; granting 294 Motion for Leave to File. (pjhlc3, COURT STAFF) (Filed on 3/26/2024)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 9 10 United States District Court Northern District of California 11 WHATSAPP INC., et al., Plaintiffs, v. NSO GROUP TECHNOLOGIES LIMITED, et al., Case No. 19-cv-07123-PJH ORDER RE MOTION FOR ISSUANCE OF LETTER ROGATORY Re: Dkt. No. 288 Defendants. 12 13 14 Before the court is defendants’ motion for the issuance of a letter rogatory to the 15 Ontario, Canada Superior Court of Justice, seeking discovery from The Citizen Lab at the 16 Munk School of Global Affairs & Public Policy of the University of Toronto. Non-party 17 Citizen Lab has also filed a motion for leave to make a special appearance to oppose 18 defendants’ motion. See Dkt. 294. Citizen Lab’s motion is not opposed by any party, 19 and is GRANTED. 20 As to defendants’ motion for issuance of a letter rogatory, there appears to be no 21 dispute that the issuance of a letter rogatory is within the court’s discretion, and that the 22 relevant standard is whether the discovery sought falls within the scope of discovery 23 authorized by Federal Rule of Civil Procedure 26. See, e.g., Asis Internet Services v. 24 Optin Global, Inc., 2007 WL 1880369 (N.D. Cal. June 29, 2007) (citing cases). 25 The basis for defendants’ motion is their argument that “Citizen Lab has 26 information relevant to plaintiffs’ allegations both (i) that Pegasus was in fact installed on 27 the Targeted Devices, and (ii) that plaintiffs and Citizen Lab have categorized a relatively 28 small proportion of the Target Users as members of ‘civil society,’ subject matters on 1 2 As to category (i), the court concludes that defendants have not shown why any 3 such discovery would not be duplicative of discovery already obtained from plaintiffs, 4 and/or could not be “obtained from other source that is more convenient” (namely, 5 plaintiffs). See Fed. R. Civ. P. 26(b)(2)(C)(i). If anything, the court would be inclined to 6 believe that Whatsapp has even greater access to the relevant materials, i.e., the 7 technical information about Whatsapp systems – which belongs to Whatsapp, and would 8 be in Citizen Lab’s possession only to the extent that it was shared by Whatsapp. 9 Accordingly, defendants’ motion for issuance of a letter rogatory is DENIED with respect 10 United States District Court Northern District of California which plaintiffs intend to introduce testimony from Citizen Lab at trial.” Dkt. 288 at 7. to the type of discovery sought in category (i). 11 As to category (ii), while the parties’ briefs correctly note that the court previously 12 concluded that the “civil society” allegation “appears to be an ancillary part of this case – 13 rather than relating to one of the elements of the asserted claims or defenses in this 14 case,” and while defendants acknowledge that “the relevance of this allegation appears 15 dubious indeed,” the court will take this opportunity to clarify the role of the “civil society”- 16 related allegations in this case. See Dkt. 292 at 6; Dkt. 298 at 9. 17 The complaint does not actually use the specific term “civil society,” but makes the 18 related allegation that “[t]he Target Users included attorneys, journalists, human rights 19 activists, political dissidents, diplomats, and other senior foreign government officials.” 20 Dkt. 1, ¶ 42. According to defendants, Citizen Lab defines “civil society” to include 21 “individuals working in advocacy, such as minority rights advocates and human rights 22 defenders, media, members of opposition parties, and lawyers working on cases with a 23 political dimension.” Dkt. 288 at 6-7. 24 In addition to the language in the complaint, defendants also point to examples of 25 plaintiffs using “civil society” or similar terms in their court filings. See Dkt. 181-2 at 11 26 (“civil society”); Dkt. 250 at 3 (“civil society”); see also Dkt. 55 at 2 (“attorneys, journalists, 27 human rights activists, government officials, and others.”); Dkt. 106 at 2 (“These users 28 included over 100 human rights defenders and journalists, and apparently even an 2 1 attorney representing Defendants’ adversary in other ongoing litigation.”); Dkt. 189 at 3 2 (“attorneys, journalists, human rights activists, government officials, and others.”). 3 While the court is inclined to follow its earlier ruling and conclude that these 4 allegations are not relevant to the claims or defenses to be presented at trial, the court 5 must first hear from plaintiffs about the reasons why these allegations have appeared in 6 court filings and how they will be used at trial. In the alternative, if plaintiffs do not wish to 7 rely on the ‘civil society’-related allegations, then discovery will be denied and the 8 allegations will not be admitted at trial. United States District Court Northern District of California 9 Accordingly, plaintiffs are directed to file a response stating its intentions with 10 respect to the ‘civil society’-related allegations. The response shall be limited to five (5) 11 pages, and shall be filed by April 5, 2024. Defendants and Citizen Lab may each file a 12 five page response by April 12, 2024. 13 14 15 16 17 IT IS SO ORDERED. Dated: March 26, 2024 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON United States District Judge 18 19 20 21 22 23 24 25 26 27 28 3

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