WhatsApp Inc. v. NSO Group Technologies Limited
- Phyllis Hamilton
- 4:19-cv-07123
- U.S. District Court · Northern District of California
- 2
In WhatsApp v. NSO, Judge Hamilton denied defendants’ reconsideration motion because plaintiffs had produced a privilege log, while warning of possible future sanctions.
WhatsApp Inc. and the other plaintiffs, whose privilege log was at issue, and NSO Group Technologies Limited and the other defendants, whose request for a blanket privilege waiver was denied.
What happened
WhatsApp Inc. v. NSO Group Technologies Limited concerns defendants’ request to revisit an earlier ruling about plaintiffs’ privilege log, a list identifying documents withheld from discovery and the reasons for withholding them. The court had previously denied defendants’ request to compel the log as moot because plaintiffs said they intended to produce it before their first witness deposition.
Defendants argued that plaintiffs had not kept that promise and asked the court to find that plaintiffs had given up all privilege claims and must produce every withheld document. Plaintiffs said they had accidentally failed to update the estimated production date in a joint filing and expressed regret, but did not explain why they failed to correct the statement after the court relied on it.
Judge Phyllis J. Hamilton denied defendants’ motion for reconsideration because plaintiffs had since produced the privilege log. The judge found that requiring a complete waiver of privilege would be disproportionate to the delay and any harm to defendants, but warned that similar oversights could lead to a different sanction in the future.
The detailed version
- WhatsApp Inc. v. NSO Group Technologies Limited · No. 4:19-cv-07123
- Phyllis Hamilton
- Sept. 5, 2024
Background
The court had previously denied as moot defendants’ request to compel plaintiffs to produce a privilege log. The court relied on plaintiffs’ representation in an August 13 joint letter brief that they intended to produce the log before the first deposition of plaintiffs’ witnesses. Defendants later reported that plaintiffs had not produced the log before the first witness deposition on August 14 or by the time defendants filed their letter.
The court treated defendants’ letter as a request for permission to file a motion for reconsideration under Civil Local Rule 7-9(b)(1). Defendants’ supplemental motion repeated their argument that plaintiffs had either misrepresented their plans to the court or failed to promptly produce the privilege log. Defendants sought a blanket waiver of privilege, meaning an order that plaintiffs had lost their privilege claims and had to produce all documents withheld on that basis.
Plaintiffs’ response
Plaintiffs said the August 13 representation resulted from an accidental failure to update the estimated production date before the joint letter was filed. Plaintiffs expressed regret for the oversight. The response did not explain why plaintiffs failed to correct the representation after learning that the court had relied on it, or whether plaintiffs had responded to defendants’ repeated inquiries about the log before the court ordered them to do so.
Ruling
The court stated that plaintiffs’ failure to correct the representation had caused unnecessary motion practice and wasted the court’s and parties’ resources. However, it concluded that a blanket privilege waiver would be disproportionate to the delay and any resulting prejudice to defendants. Because plaintiffs had now produced the privilege log, the court DENIED defendants’ motion for reconsideration. The court cautioned that repeated similar oversights could support a different type of sanction.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.