1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA
6 WHATSAPP INC., et al., 7 Case No. 19-cv-07123-PJH Plaintiffs, 8 v. ORDER DENYING MOTION FOR 9 ISSUANCE OF LETTER ROGATORY NSO GROUP TECHNOLOGIES 10 LIMITED, et al., Re: Dkt. No. 288, 303 11 Defendants.
13 14 Before the court is NSO’s motion for the issuance of a letter rogatory to the 15 Ontario, Canada Superior Court of Justice, seeking discovery from The Citizen Lab at the 16 Munk School of Global Affairs & Public Policy of the University of Toronto. The court 17 previously issued an order denying the motion in part, and calling for further briefing on 18 the remainder of the motion. See Dkt. 299. 19 In particular, the court directed the parties and non-party Citizen Lab to file 20 supplemental briefs addressing NSO’s argument that the issuance of a letter rogatory 21 was warranted based on Citizen Lab’s possession of “information relevant to plaintiffs’ 22 allegation[] . . . that plaintiffs and Citizen Lab have categorized a relatively small 23 proportion of the Target Users as members of ‘civil society,’ subject matter[] on which 24 plaintiffs intend to introduce testimony from Citizen Lab at trial.” See Dkt. 299 at 1-2 25 (citing Dkt. 288 at 7). 26 The court’s previous order noted that the complaint does not use the term “civil 27 society,” but makes the related allegation that “[t]he Target Users included attorneys, 1 government officials.” Dkt. 1, ¶ 42. Citizen Lab defines “civil society” to include 2 “individuals working in advocacy, such as minority rights advocates and human rights 3 defenders, media, members of opposition parties, and lawyers working on cases with a 4 political dimension.” See Dkt. 288 at 6-7; Dkt. 303-3 at 28. 5 The court initially concluded that the ‘civil society’-related allegations appeared to 6 be “an ancillary part of this case,” as they did not directly relate to any of the asserted 7 claims or defenses. See Dkt. 292 at 6. In its first ruling on the present motion, the court 8 indicated that it was “inclined to follow its earlier ruling and conclude that these [civil 9 society] allegations are not relevant to the claims or defenses to be presented at trial,” but 10 first directed plaintiffs to file a supplemental brief either explaining “the reasons why these 11 allegations have appeared in court filings and how they will be used at trial,” or 12 disclaiming reliance on the ‘civil society’ allegations and conceding any related evidence 13 would not be presented at trial. See Dkt. 299 at 3. The court also directed NSO and 14 Citizen Lab to file responsive briefs. The briefing is now complete, and having 15 considered the parties’ and non-party’s arguments, the court rules as follows. 16 As an initial matter, there appears to be no dispute that the issuance of a letter 17 rogatory is within the court’s discretion, and that the relevant standard is whether the 18 discovery sought falls within the scope of discovery authorized by Federal Rule of Civil 19 Procedure 26. See, e.g., Asis Internet Services v. Optin Global, Inc., 2007 WL 1880369 20 (N.D. Cal. June 29, 2007) (citing cases). 21 Plaintiffs’ brief argues that they “can establish their claims without the identities of 22 the target users.” See Dkt. 300 at 2. Plaintiffs acknowledge that “[n]o element of any of 23 plaintiffs’ claims depends on the target users’ identities.” See id. at 3. Plaintiffs further 24 argue that they “do not currently intend to call any witness from Citizen Lab at trial, or to 25 use any of Citizen Lab’s documents that plaintiffs have not already produced.” See id. 26 Plaintiffs then argue that NSO has “repeatedly focused on the identities of the 27 target users” to justify their conduct, claiming that “the target users were criminals and 1 Dkt. 300 at 3 (citing Dkt. 215 at 1, Dkt. 252 at 13, Dkt. 258 at 9, Dkt. 265 at 4, n.2, Dkt. 2 288 at 1). Plaintiffs argue that NSO’s asserted affirmative defense of “good faith / 3 legitimate justification” is both legally and factually unsound, and asks the court to 4 preclude NSO from asserting it. See Dkt. 300 at 3-5. Plaintiffs emphasize that “NSO has 5 not produced a single document showing that any of the target users were criminals or 6 terrorists.” See id. at 4. 7 Plaintiffs then argue that “if the court allows NSO to explore the identities of the 8 target users, plaintiffs should be able to show that certain target users were members of 9 civil society.” Dkt. 300 at 5. 10 NSO’s brief starts by arguing that plaintiffs have improperly used their brief as a 11 “pseudo-motion in limine to exclude certain arguments at trial.” See Dkt. 303-2 at 3. 12 NSO then argues that it is “entitled to explain its business and technology at trial,” and 13 specifically, “should be allowed to introduce res gestae evidence that explains to the jury 14 Pegasus’s real purpose: to enable sovereign governments that have not built their own 15 technology to conduct the same sort of intelligence-gathering, law-enforcement, [and] 16 counterterrorism investigations routinely conducted in the United States by our own 17 government.” See id. at 4. 18 NSO then describes the type of additional information that it seeks to obtain 19 through the requested letter rogatory. NSO explains that plaintiffs have produced a 20 spreadsheet from Citizen Lab with a list of names of 105 individuals who were 21 categorized as members of ‘civil society’ (as that term is defined by Citizen Lab, set forth 22 above), and another list of names of 102 individuals categorized as ‘VIP’ targets, mostly 23 consisting of government officials. See Dkt. 303-3, Ex. 1. NSO argues that, for 24 approximately 40% of the names on those lists, Citizen Lab’s level of confidence for the 25 categorization was something less than “high,” and NSO seeks further information about 26 why Citizen Lab’s level of confidence was less than “high” for those individuals. See Dkt. 27 303-2 at 7. 1 Citizen Lab was plaintiffs’ pretrial disclosures,” and that “plaintiffs have eliminated that 2 ground by making it abundantly clear that they do not intend to present evidence about 3 the identities of the target users in their case-in-chief.” See Dkt. 302 at 2. Citizen Lab 4 further argues that “plaintiffs have already produced documents that contain identifying 5 information for each target user, along with the sources supporting Citizen Lab’s 6 categorization of certain target users as members of civil society,” and that “additional 7 information about what Citizen Lab thinks about these target users is not relevant.” See 8 id. at 4-5. 9 As an initial matter, the court concludes that the ‘civil society’ related allegations 10 are not relevant to plaintiffs’ case-in-chief, and thus, NSO’s original stated reason for 11 seeking discovery from Citizen Lab – namely, that “plaintiffs and Citizen Lab have 12 categorized a relatively small proportion of the Target Users as members of ‘civil society,’ 13 subject matter[] on which plaintiffs intend to introduce testimony from Citizen Lab at trial” 14 – is no longer applicable. See Dkt. 288 at 7 (emphasis added). 15 That said, through the course of this briefing, the parties have clarified that the 16 ‘civil society’-related allegations may be relevant to NSO’s affirmative defense that it 17 “acted in good faith and pursuant to legitimate law enforcement, national security, 18 intelligence and business justifications.” See Dkt. 128 at 10. And while plaintiffs argue 19 that the court should preclude NSO’s affirmative defense as lacking legal or factual 20 support, the court agrees with NSO that it would be premature to order that remedy, 21 which is more properly suited to a motion in limine.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA
6 WHATSAPP INC., et al., 7 Case No. 19-cv-07123-PJH Plaintiffs, 8 v. ORDER DENYING MOTION FOR 9 ISSUANCE OF LETTER ROGATORY NSO GROUP TECHNOLOGIES 10 LIMITED, et al., Re: Dkt. No. 288, 303 11 Defendants.
13 14 Before the court is NSO’s motion for the issuance of a letter rogatory to the 15 Ontario, Canada Superior Court of Justice, seeking discovery from The Citizen Lab at the 16 Munk School of Global Affairs & Public Policy of the University of Toronto. The court 17 previously issued an order denying the motion in part, and calling for further briefing on 18 the remainder of the motion. See Dkt. 299. 19 In particular, the court directed the parties and non-party Citizen Lab to file 20 supplemental briefs addressing NSO’s argument that the issuance of a letter rogatory 21 was warranted based on Citizen Lab’s possession of “information relevant to plaintiffs’ 22 allegation[] . . . that plaintiffs and Citizen Lab have categorized a relatively small 23 proportion of the Target Users as members of ‘civil society,’ subject matter[] on which 24 plaintiffs intend to introduce testimony from Citizen Lab at trial.” See Dkt. 299 at 1-2 25 (citing Dkt. 288 at 7). 26 The court’s previous order noted that the complaint does not use the term “civil 27 society,” but makes the related allegation that “[t]he Target Users included attorneys, 1 government officials.” Dkt. 1, ¶ 42. Citizen Lab defines “civil society” to include 2 “individuals working in advocacy, such as minority rights advocates and human rights 3 defenders, media, members of opposition parties, and lawyers working on cases with a 4 political dimension.” See Dkt. 288 at 6-7; Dkt. 303-3 at 28. 5 The court initially concluded that the ‘civil society’-related allegations appeared to 6 be “an ancillary part of this case,” as they did not directly relate to any of the asserted 7 claims or defenses. See Dkt. 292 at 6. In its first ruling on the present motion, the court 8 indicated that it was “inclined to follow its earlier ruling and conclude that these [civil 9 society] allegations are not relevant to the claims or defenses to be presented at trial,” but 10 first directed plaintiffs to file a supplemental brief either explaining “the reasons why these 11 allegations have appeared in court filings and how they will be used at trial,” or 12 disclaiming reliance on the ‘civil society’ allegations and conceding any related evidence 13 would not be presented at trial. See Dkt. 299 at 3. The court also directed NSO and 14 Citizen Lab to file responsive briefs. The briefing is now complete, and having 15 considered the parties’ and non-party’s arguments, the court rules as follows. 16 As an initial matter, there appears to be no dispute that the issuance of a letter 17 rogatory is within the court’s discretion, and that the relevant standard is whether the 18 discovery sought falls within the scope of discovery authorized by Federal Rule of Civil 19 Procedure 26. See, e.g., Asis Internet Services v. Optin Global, Inc., 2007 WL 1880369 20 (N.D. Cal. June 29, 2007) (citing cases). 21 Plaintiffs’ brief argues that they “can establish their claims without the identities of 22 the target users.” See Dkt. 300 at 2. Plaintiffs acknowledge that “[n]o element of any of 23 plaintiffs’ claims depends on the target users’ identities.” See id. at 3. Plaintiffs further 24 argue that they “do not currently intend to call any witness from Citizen Lab at trial, or to 25 use any of Citizen Lab’s documents that plaintiffs have not already produced.” See id. 26 Plaintiffs then argue that NSO has “repeatedly focused on the identities of the 27 target users” to justify their conduct, claiming that “the target users were criminals and 1 Dkt. 300 at 3 (citing Dkt. 215 at 1, Dkt. 252 at 13, Dkt. 258 at 9, Dkt. 265 at 4, n.2, Dkt. 2 288 at 1). Plaintiffs argue that NSO’s asserted affirmative defense of “good faith / 3 legitimate justification” is both legally and factually unsound, and asks the court to 4 preclude NSO from asserting it. See Dkt. 300 at 3-5. Plaintiffs emphasize that “NSO has 5 not produced a single document showing that any of the target users were criminals or 6 terrorists.” See id. at 4. 7 Plaintiffs then argue that “if the court allows NSO to explore the identities of the 8 target users, plaintiffs should be able to show that certain target users were members of 9 civil society.” Dkt. 300 at 5. 10 NSO’s brief starts by arguing that plaintiffs have improperly used their brief as a 11 “pseudo-motion in limine to exclude certain arguments at trial.” See Dkt. 303-2 at 3. 12 NSO then argues that it is “entitled to explain its business and technology at trial,” and 13 specifically, “should be allowed to introduce res gestae evidence that explains to the jury 14 Pegasus’s real purpose: to enable sovereign governments that have not built their own 15 technology to conduct the same sort of intelligence-gathering, law-enforcement, [and] 16 counterterrorism investigations routinely conducted in the United States by our own 17 government.” See id. at 4. 18 NSO then describes the type of additional information that it seeks to obtain 19 through the requested letter rogatory. NSO explains that plaintiffs have produced a 20 spreadsheet from Citizen Lab with a list of names of 105 individuals who were 21 categorized as members of ‘civil society’ (as that term is defined by Citizen Lab, set forth 22 above), and another list of names of 102 individuals categorized as ‘VIP’ targets, mostly 23 consisting of government officials. See Dkt. 303-3, Ex. 1. NSO argues that, for 24 approximately 40% of the names on those lists, Citizen Lab’s level of confidence for the 25 categorization was something less than “high,” and NSO seeks further information about 26 why Citizen Lab’s level of confidence was less than “high” for those individuals. See Dkt. 27 303-2 at 7. 1 Citizen Lab was plaintiffs’ pretrial disclosures,” and that “plaintiffs have eliminated that 2 ground by making it abundantly clear that they do not intend to present evidence about 3 the identities of the target users in their case-in-chief.” See Dkt. 302 at 2. Citizen Lab 4 further argues that “plaintiffs have already produced documents that contain identifying 5 information for each target user, along with the sources supporting Citizen Lab’s 6 categorization of certain target users as members of civil society,” and that “additional 7 information about what Citizen Lab thinks about these target users is not relevant.” See 8 id. at 4-5. 9 As an initial matter, the court concludes that the ‘civil society’ related allegations 10 are not relevant to plaintiffs’ case-in-chief, and thus, NSO’s original stated reason for 11 seeking discovery from Citizen Lab – namely, that “plaintiffs and Citizen Lab have 12 categorized a relatively small proportion of the Target Users as members of ‘civil society,’ 13 subject matter[] on which plaintiffs intend to introduce testimony from Citizen Lab at trial” 14 – is no longer applicable. See Dkt. 288 at 7 (emphasis added). 15 That said, through the course of this briefing, the parties have clarified that the 16 ‘civil society’-related allegations may be relevant to NSO’s affirmative defense that it 17 “acted in good faith and pursuant to legitimate law enforcement, national security, 18 intelligence and business justifications.” See Dkt. 128 at 10. And while plaintiffs argue 19 that the court should preclude NSO’s affirmative defense as lacking legal or factual 20 support, the court agrees with NSO that it would be premature to order that remedy, 21 which is more properly suited to a motion in limine. 22 Thus, rather than analyzing the extent to which plaintiffs intend to rely on the ‘civil 23 society’-related allegations, the proper analysis for the court to undertake is the extent to 24 which plaintiffs’ allegation in the complaint that “[t]he Target Users included attorneys, 25 journalists, human rights activists, political dissidents, diplomats, and other senior foreign 26 government officials” (Dkt. 1, ¶ 42) and similar statements in pleadings about ‘civil 27 society’ relate to NSO’s affirmative defense that it “acted in good faith and pursuant to 1 Additionally, the court notes that the scope of requested discovery sought by NSO 2 in its proposed letter rogatory is plainly overbroad. See Dkt. 288-1, Schedule A 3 (document requests), Schedule B (deposition topics). Instead, if the court orders 4 discovery at all, it will be limited to the type of information described in NSO’s brief – 5 namely, “how Citizen Lab conducted its analysis or came to its conclusions” as reflected 6 in the referenced spreadsheet. See Dkt. 303-2 at 3-4. 7 As a general matter, the court is unpersuaded that the ‘civil society’-related 8 allegations are directly relevant to NSO’s affirmative defense. In hypothetical terms, a 9 given individual may be the proper subject of law enforcement or national security efforts 10 even if that individual is also an attorney, journalist, etc. In other words, proving that a 11 given individual is a member of ‘civil society’ does not necessarily negate NSO’s 12 affirmative defense as to that individual. 13 However, the court understands that plaintiffs have raised the ‘civil society’ issue 14 because they may argue that any purported law enforcement or national security 15 justifications were pretextual, and to that extent, the ‘civil society’ allegations may indeed 16 become relevant. And, as mentioned above, NSO seeks this letter rogatory based on the 17 argument that Citizen Lab has information as to “whether some targeted individuals were 18 or are members of ‘civil society’ – i.e. ‘attorneys, journalists, human rights activists, 19 political dissidents, diplomats, and other senior foreign government officials,’ as alleged in 20 the Complaint [Dkt. 1, ¶ 42] – rather than terrorists or criminals.” See Dkt. 288 at 1. To 21 that end, Citizen Lab has pointed out that “plaintiffs have already produced documents 22 containing identifying information for each target user.” See Dkt. 300 at 3, Dkt. 302 at 4. 23 Thus, NSO now has sufficient information to identify which of the 105 individuals 24 on the ‘civil society’ spreadsheet (and/or which of the 102 individuals on the ‘VIP’ 25 spreadsheet) it has reason to believe are criminals and/or terrorists. Identifying such 26 individuals would serve to streamline and narrow the scope of any discovery needed from 27 non-party and foreign entity Citizen Lab. For the other individuals – i.e., the individuals 1 need to scrutinize Citizen Lab’s categorization of them. 2 In other words, to the extent that NSO believes that its evidence of the target 3 users’ alleged criminal/terrorist activity by may be undermined by Citizen Lab’s 4 categorization of certain individuals as members of ‘civil society’ (and/or ‘VIPs’), the court 5 will potentially allow discovery into the basis of Citizen Lab’s categorization of those 6 individuals. However, plaintiffs have argued that “NSO has not produced a single 7 document showing that any of the target users were criminals or terrorists,” and NSO did 8 not respond to that argument in its brief. See Dkt. 300 at 4. In the absence of any 9 specific evidence of criminal/terrorist activity (or other law enforcement justification), the 10 court fails to see the relevance of scrutinizing the categorization of each of the 11 approximately 200 names on Citizen Lab’s spreadsheet. 12 Moreover, plaintiffs have already produced an email exchange where plaintiffs’ 13 counsel asks Citizen Lab “what criteria does CL use to determine if a target is civil society 14 or not,” and Citizen Lab responds with an explanation of how they define the term ‘civil 15 society’ and how they collect information about the targets’ employment, political, and 16 social activities. See Dkt. 303-3, Ex. 2. NSO appears to seek more granular information 17 about why certain individuals were categorized a certain way, or why the confidence level 18 for those categorizations was less than “high,” which would only become relevant if NSO 19 were to present evidence that those specific individuals were involved in criminal/terrorist 20 activity. To the extent that NSO chooses to rely on more generalized evidence that its 21 software was licensed for law enforcement purposes, the already-produced evidence 22 from plaintiffs regarding Citizen Lab is more than sufficient for the parties to present their 23 arguments on NSO’s affirmative defense. 24 Accordingly, NSO’s motion for issuance of a letter rogatory is DENIED without 25 prejudice to being renewed if NSO were to come forward with evidence that specific 26 individuals on Citizen Lab’s ‘civil society’ or ‘VIP’ lists were involved with criminal/terrorist 27 activity. To be clear, NSO is not required to definitively prove its affirmative defense at 1 affirmative defense will not be stricken in the absence of a fully-briefed motion on that 2 issue. Instead, in order for the court to determine whether some of the discovery sought 3 by the requested letter rogatory is relevant, the court simply requires NSO to make some 4 initial showing that it has evidence for its “good faith / legitimate justification” affirmative 5 defense as to any of the 207 specific individuals on the ‘civil society’ and ‘VIP’ lists, in 6 order to show that the additional evidence from foreign non-party Citizen Lab would 7 indeed be relevant as to those individuals. 8 Before seeking to renew its motion, NSO must first provide any such discovery 9 (i.e., evidence showing alleged criminal/terrorist activity by the ‘civil society or ‘VIP’ 10 individuals) to plaintiffs, along with notice that it intends to renew this motion for issuance 11 of a letter rogatory as to those individuals, and plaintiffs shall then have seven (7) days to 12 provide notice to NSO as to whether they concede the relevance of the requested 13 discovery from Citizen Lab as to those individuals, or whether they continue to dispute 14 the discovery’s relevance. 15 In either instance, NSO may then file a renewed motion with the court – to be filed 16 as a joint discovery letter, with both NSO and plaintiffs stating their positions, as well as 17 Citizen Lab. Any renewed motion will be decided on the papers, without a hearing. 18 Finally, NSO’s motion to seal (Dkt. 303) is GRANTED. 19 20 IT IS SO ORDERED. 21 Dated: May 2, 2024 22 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 23 United States District Judge 24 25 26 27