WhatsApp Inc. v. NSO Group Technologies Limited

Background

The court considered three related administrative motions to file materials under seal. WhatsApp sought to seal portions of its motion to disqualify defendants’ counsel and related declarations. The U.S. Department of Justice, which was not a party to the case, sought to seal a declaration by a Justice Department attorney and proposed additional redactions to material WhatsApp sought to seal. The defendants did not oppose the motions.

The court had previously denied WhatsApp’s first attempt to file materials under seal without prejudice because WhatsApp and the Justice Department had not followed the procedure in Civil Local Rule 79-5(e). The later motions were intended to correct those problems. The Justice Department also filed an amended motion supporting additional redactions to a supplemental filing by WhatsApp.

Sealing standard

Federal court records are generally presumed to be open to the public, and the person seeking secrecy bears the burden of showing why sealing is appropriate. The court explained that the required showing depends on how closely the materials relate to the case’s merits. Materials connected to a motion that is more than indirectly related to the merits generally require “compelling reasons” for sealing. Materials connected only indirectly to the merits may be sealed on a showing of “good cause” under Rule 26(c).

The court held that a motion to disqualify counsel is only indirectly related to the merits because deciding whether defendants’ counsel may continue representing them does not decide the merits of WhatsApp’s claims. The good-cause standard therefore applied.

Court’s analysis

The Justice Department showed that the material referenced in WhatsApp’s disqualification motion had been sealed by another federal district court under a statutory requirement and remained sealed there. Although WhatsApp argued that the other court should decide whether the material should remain sealed, this court found that the same rationale supported sealing here: the court that issued the original sealing order was best positioned to determine whether the material should remain secret. This court also found that the material was sufficiently related to the underlying matter.

The court further found that WhatsApp’s requested redactions were narrowly tailored, meaning they covered only material that could properly be sealed. It also found that the Justice Department’s additional, limited redactions met the good-cause standard and were narrowly tailored.

Disposition

Judge Phyllis J. Hamilton granted the motions to seal. The court directed WhatsApp to file a revised motion to disqualify and supporting declarations using the additional redactions proposed by the Justice Department, and ordered that those materials be sealed when filed. The court also set the timing for defendants’ opposition and WhatsApp’s reply from the date the revised motion was filed and served, under Civil Local Rule 7-3.