WhatsApp Inc. v. NSO Group Technologies Limited

Background

The defendants moved for issuance of a letter rogatory, meaning a request for assistance from a foreign court in obtaining evidence. They sought a request to the Ontario, Canada Superior Court of Justice for discovery from The Citizen Lab at the Munk School of Global Affairs & Public Policy of the University of Toronto. Citizen Lab, which was not a party to the case, separately moved for permission to make a special appearance to oppose the defendants’ motion. No party opposed Citizen Lab’s request.

The defendants argued that Citizen Lab had information relevant to two subjects: (1) whether Pegasus was installed on targeted devices, and (2) plaintiffs’ and Citizen Lab’s descriptions of certain targeted users or allegations as involving “civil society.” The court stated that issuing a letter rogatory is discretionary and that the requested discovery must fall within the discovery permitted by Federal Rule of Civil Procedure 26.

Court’s analysis

For the first category, the court concluded that the defendants had not shown why the requested information would not duplicate discovery already obtained from the plaintiffs or why it could not be obtained from a more convenient source, namely the plaintiffs. The court also noted that WhatsApp appeared to have greater access to technical information about its systems and that Citizen Lab would possess such information only to the extent WhatsApp had shared it.

For the second category, the court discussed allegations concerning “civil society.” The complaint did not use that exact term, but alleged that targeted users included attorneys, journalists, human-rights activists, political dissidents, diplomats, and senior foreign government officials. The defendants also identified references by the plaintiffs in court filings to “civil society” or similar groups. The court noted its earlier view that these allegations appeared ancillary rather than related to an element of the claims or defenses, and the defendants acknowledged that their relevance appeared doubtful. The court stated that it was inclined to follow that earlier view but wanted to hear from the plaintiffs about why the allegations appeared in filings and how they would be used at trial.

Rulings and next steps

The court granted Citizen Lab’s motion for leave to make a special appearance.

The court denied the defendants’ motion for issuance of a letter rogatory as to the discovery in category (i), concerning whether Pegasus was installed on targeted devices.

As to category (ii), the court directed the plaintiffs to file a response explaining their intentions regarding the “civil society”-related allegations. The plaintiffs’ response was limited to five pages and due April 5, 2024. The defendants and Citizen Lab could each file a five-page response by April 12, 2024. The court stated that, alternatively, if the plaintiffs did not wish to rely on those allegations, discovery would be denied and the allegations would not be admitted at trial. The opinion does not state a final ruling on category (ii) discovery beyond those directions.