WhatsApp Inc. v. NSO Group Technologies Limited

Background

WhatsApp Inc. and Facebook, Inc. sued NSO Group Technologies, Ltd. and Q Cyber Technologies Ltd. The complaint alleges that defendants sent malware through WhatsApp’s system to approximately 1,400 mobile phones and devices, intending to infect the devices and surveil their users. The opinion identifies claims under California’s Comprehensive Computer Data Access and Fraud Act, breach of contract, and trespass to chattels. A footnote states that the court had previously dismissed plaintiffs’ fourth cause of action under Rule 12(b)(6), which concerns whether a complaint states a legally sufficient claim.

The order addresses defendants’ motion to dismiss based on forum non conveniens, defendants’ motion for a protective order, the parties’ motions to seal, and plaintiffs’ joint discovery letter brief concerning a request for production. The court considered the motion to dismiss first because granting it would have made the protective-order motion unnecessary.

Motion to dismiss

Forum non conveniens permits a court to dismiss a case, even when jurisdiction and venue are proper, if another country offers an adequate forum and the relevant private and public factors strongly favor that forum. The court concluded that defendants had shown Israel was an adequate alternative forum.

The private-interest factors did not strongly favor dismissal. The court found the parties’ and witnesses’ locations, convenience, witness costs, access to evidence, the ability to compel unwilling witnesses, judgment enforcement, and other practical considerations were largely neutral or did not favor dismissal. The court found defendants’ arguments about unavailable Israeli witnesses largely speculative. It also concluded that United States export restrictions and Israeli restrictions would create similar obstacles whether the case proceeded in California or Israel.

The public-interest factors also did not support dismissal. The court found that both California and Israel had substantial interests in the lawsuit, with that factor at most slightly favoring defendants. It concluded that the Northern District of California would be more familiar with the United States and California law identified in the complaint. The court found the remaining relevant factors neutral or inapplicable. Because the factors were not strongly in defendants’ favor, the court denied the motion to dismiss. The court therefore did not need to decide plaintiffs’ alternative argument that the motion was untimely.

Protective order and discovery

Defendants sought a protective order providing near-total protection from producing discovery. The court denied the motion in its present form. It held that disputes over discovery affected by United States or Israeli law should instead be analyzed under the five-factor test from Richmark Corp. v. Timber Falling Consultants. That test considers the importance and specificity of the requested information, where it originated, alternative ways to obtain it, and the competing interests of the United States and the foreign state.

The court found that the foreign origin of information was not an absolute bar to production, that the Hague Convention’s discovery process was not a practical alternative in this case, and that the United States had interests in online safety, security, and fully litigating viable claims. The court stated that it would not excuse nonproduction when plaintiffs identified discovery that was sufficiently specific and important to their claims.

Plaintiffs’ joint discovery letter brief concerning request for production number 30 did not address the first two Richmark factors because it had been filed before the court provided its guidance. The court denied that letter brief without prejudice and permitted it to be re-presented under the streamlined procedure described in the order. The order also set page limits and deadlines for future motions to compel and allowed the parties to use a single joint letter brief instead.

Disposition

The court denied defendants’ motion to dismiss, denied defendants’ motion for a protective order, granted the parties’ motions to seal, and denied the joint discovery letter brief without prejudice. Judge Phyllis J. Hamilton signed the order.