WhatsApp Inc. v. NSO Group Technologies Limited

Background

The court entered a final pretrial order under Rule 16(e) of the Federal Rules of Civil Procedure. The order states that it will control the course of trial unless a later order changes it. The court had previously determined on summary judgment that NSO was liable for the attacks at issue. The upcoming jury trial therefore concerns damages rather than liability.

The court emphasized that the record did not contain specific, non-speculative evidence identifying which NSO customers were responsible for the attacks or showing those customers’ reasons for the attacks. The court also stated that defendants could not rely on their customers’ governmental or law-enforcement purposes as if NSO had the same purposes, particularly because NSO is a for-profit company.

Motions in Limine

Plaintiffs’ first motion in limine, seeking to exclude evidence about the alleged identities or affiliations of NSO’s customers and prospective customers, was GRANTED. Defendants may state that they licensed Pegasus to governments and their agencies, but may not argue about those governments’ alleged motives involving crime, terrorism, child exploitation, or similar subjects. The court also ruled that evidence about unrelated NSO customers and unrelated conduct, including allegations involving Jamal Khashoggi and other unrelated parties, should be excluded.

Plaintiffs’ second motion, seeking to exclude evidence or argument that Pegasus was used or needed to investigate crime or terrorism, was GRANTED. Plaintiffs’ third motion, concerning NSO’s customer-screening and monitoring procedures, was GRANTED. Plaintiffs’ fourth motion, concerning evidence or argument that NSO lacked control over customers’ use of Pegasus, was GRANTED.

Plaintiffs’ fifth motion, concerning WhatsApp’s allegedly inadequate security, was GRANTED. The court said that presenting this evidence would attempt to revisit causation, which had already been decided on summary judgment, although NSO could still argue that WhatsApp’s claimed costs were unreasonable. Plaintiffs’ sixth motion, concerning evidence that WhatsApp users were criminals, terrorists, or other bad actors, was GRANTED. Plaintiffs’ seventh motion, concerning WhatsApp’s reputation, was GRANTED because reputational damages were not at issue. Plaintiffs’ eighth motion, concerning certain policy testimony and expert testimony, was DENIED as moot because the court addressed the expert issues separately.

Defendants’ first motion in limine concerning evidence of WhatsApp’s reputational injury was GRANTED. Their second motion concerning witnesses not disclosed during discovery was GRANTED. Their third motion concerning the identities and occupations of approximately 1,400 targets was GRANTED. Their fourth motion, seeking to exclude the argument that NSO “used” Pegasus, was DENIED as moot because the court had already determined NSO’s liability and would not permit testimony contradicting that determination.

Defendants’ fifth motion sought to exclude testimony about topics for which WhatsApp had not produced a designated witness. As to WhatsApp’s cooperation with law enforcement, the motion was DENIED as moot. As to malice, oppression, or fraud and alternative damages theories, the court found no basis for excluding all testimony on those subjects, while stating that documents or witnesses not produced in discovery would be excluded. Defendants’ sixth motion concerning other lawsuits against NSO and Pegasus’s alleged connection to Jamal Khashoggi’s death was GRANTED. Their seventh motion concerning Israeli national-security proceedings was GRANTED. Their eighth motion concerning “Black Cube” and alleged intimidation was GRANTED. Their ninth motion concerning the Entity List and a presidential executive order was GRANTED. Their tenth motion concerning evidence of pretrial sanctions was GRANTED.

Expert Testimony

The court addressed nine expert-related motions: seven under Federal Rule of Evidence 702 and the standard associated with Daubert v. Merrell Dow Pharmaceuticals, and two motions to strike supplemental expert reports as untimely. Rule 702 requires expert testimony to be based on specialized knowledge that will help the jury, and the court must assess whether the testimony is reliable and relevant.

Plaintiffs’ motions to exclude Ty Shepard, Terrance McGraw, and Joshua Minkler were GRANTED. The court found their generalized testimony about law enforcement, military, intelligence, and the usefulness of spyware insufficiently connected to the conduct at issue. Defendants’ motion to exclude Joshua Youssef was GRANTED, as was their motion to exclude Anthony Vance. The court stated that Youssef’s testimony would not be presented and that Vance’s remaining testimony was either unnecessary rebuttal or more appropriately presented by a fact witness.

Defendants’ motion concerning plaintiffs’ damages expert Dana Trexler was denied as to opinions based on costs incurred by employees she did not personally interview and as to the inclusion of stock grants in labor costs. The court stated that defendants could challenge those opinions through cross-examination. The court treated the dispute over disgorgement as moot because plaintiffs were no longer seeking disgorgement damages.

Plaintiffs’ motion concerning defendants’ damages expert Gregory Pinsonneault was GRANTED to the limited extent it sought to exclude legal conclusions. To the extent plaintiffs sought to exclude Pinsonneault’s non-legal opinions, the motion was DENIED. The court also DENIED both parties’ motions to strike the opposing damages expert’s supplemental report as untimely.

Jury Instructions and Trial Administration

The court concluded that no separate jury instruction on willfulness was necessary because its summary-judgment ruling had already found the intentional and knowing conduct required for liability under the provisions at issue. The court also discussed compensatory damages and investigatory costs, and directed the parties to meet and confer and submit revised proposed jury instructions by April 21, 2025.

The parties were directed to submit a proposed verdict form and revised discovery-designation lists by April 21, 2025. The court denied any request to close the courtroom to the public. The parties were instructed to identify provisionally sealed documents they intended to offer as trial exhibits, while the court remained disinclined to seal exhibits used at trial.

The trial was set for five days beginning Monday, April 28, 2025, with proceedings generally scheduled from 8:30 a.m. to 1:30 p.m. each day. Each side would have nine hours to present its case, excluding closing arguments, for which May 5, 2025, was available if needed. Judge Phyllis J. Hamilton also directed the parties to submit a joint case description, joint witness list, and list of participating attorneys by April 24, 2025.