WhatsApp Inc. v. NSO Group Technologies Limited

Background

NSO moved for issuance of a letter rogatory to the Ontario, Canada Superior Court of Justice. A letter rogatory is a formal request from one court to a foreign court for assistance obtaining evidence. NSO sought discovery from non-party Citizen Lab at the Munk School of Global Affairs & Public Policy of the University of Toronto.

The requested information concerned Citizen Lab’s classifications of people identified in spreadsheets as members of “civil society” or as “VIP” targets. The court stated that one spreadsheet listed 105 people categorized as members of “civil society,” and another listed 102 people categorized as “VIP” targets. NSO also sought information about why Citizen Lab’s confidence in roughly 40 percent of those classifications was below “high.”

The parties disputed the relevance of this information. Plaintiffs said that no element of their claims depended on the target users’ identities and that they did not intend to call a Citizen Lab witness or use previously undisclosed Citizen Lab documents at trial. Plaintiffs also argued that NSO had not produced evidence showing that any target users were criminals or terrorists. Citizen Lab argued that plaintiffs had already produced identifying information and information explaining its classification methods. NSO argued that the evidence could help explain its business and technology and support its affirmative defense that it acted in good faith and for legitimate law-enforcement, national-security, intelligence, and business reasons.

Court’s analysis

The court applied Federal Rule of Civil Procedure 26, which limits discovery to information relevant to a party’s claims or defenses and proportional to the needs of the case. It concluded that the “civil society” allegations were not relevant to plaintiffs’ case-in-chief, so that original basis for seeking the discovery no longer applied.

The court nevertheless recognized that the allegations could become relevant to NSO’s affirmative defense if plaintiffs argued that NSO’s claimed law-enforcement or national-security justifications were pretextual. The court also stated that merely showing that a person was a lawyer, journalist, human-rights activist, political dissident, diplomat, or other member of “civil society” would not necessarily defeat NSO’s defense.

The court found the proposed discovery plainly overbroad. If discovery were ordered, it would be limited to information about how Citizen Lab conducted its analysis or reached its conclusions. The court further concluded that more detailed information about specific classifications would become relevant only if NSO presented evidence that particular people were involved in criminal or terrorist activity, or had another specific connection to NSO’s asserted justification. The court found that the materials already produced were sufficient for generalized arguments about NSO’s affirmative defense.

The court declined to strike NSO’s affirmative defense because that issue had not been presented through a fully briefed motion. It instead required NSO to make an initial showing that it had evidence supporting the defense as to any of the 207 people on the two lists before seeking additional discovery.

Disposition

The court DENIED without prejudice NSO’s motion for issuance of a letter rogatory. NSO may renew the motion after providing plaintiffs with evidence of alleged criminal or terrorist activity by specific people on the lists and notifying plaintiffs that it intends to renew the request. Plaintiffs then have seven days to state whether they concede or continue to dispute the relevance of the requested discovery. Any renewed motion must be filed as a joint discovery letter and will be decided on the papers without a hearing.

The court also GRANTED NSO’s motion to seal, identified as Docket No. 303.