NSO Should Lose Spyware Case for Discovery Violations, Meta Says

WhatsApp and its parent Meta Platforms Inc. asked a judge to award them a total win against spyware maker NSO Group as punishment for discovery violations in a years-long case accusing the Israeli company of violating anti-hacking laws.

NSO Group violated the Federal Rules of Civil Procedure, repeatedly ignoring the court’s orders and its discovery obligations, according to a motion for sanctions filed Wednesday in the US District Court for the Northern District of California.

“NSO’s discovery violations were willful, and unfairly skew the record on virtually every key issue in the case, from the merits, to jurisdiction, to damages, making a full and fair trial on the facts impossible,” they said. Judge Phyllis J. Hamilton should award the companies judgment as a matter of law or, “if the court finds that the limited discovery produced in this case does not suffice,” enter default judgment against NSO, WhatsApp and Meta wrote.

The social media platforms first filed their complaint in October 2019, accusing NSO of using WhatsApp to install NSO spyware on the phones of about 1,400 WhatsApp users. The complaint said NSO violated the Computer Fraud and Abuse Act by deploying malware onto phones to surveil users and collect data.

The years since were marked by discovery back-and-forths between the parties.

In March 2023, NSO moved for a protective order, claiming that obligations under Israeli law prevent it from producing the requested documents. The court denied that motion on November 15, concluding that foreign law doesn’t excuse discovery in this case.

In Februaryand August, the court granted WhatsApp and Meta motions to compel, ordering NSO to produce information including source code for its Pegasus spyware and other “documents and communications related to any of NSO’s spyware targeting or directed at WhatsApp servers, or using WhatsApp in any way to access WhatsApp’s users’ devices.”

At a Feb. 15 hearing, the court warned that it “would not feel at all reluctant to impose sanctions” if NSO failed to meet its discovery obligations. Still, the plaintiffs wrote, NSO refused to comply with the court’s orders.

WhatsApp and Meta said they plan to push the matter before Hamilton at a Nov. 7 hearing.

NSO’s counsel didn’t immediately respond to a request for comment.

Davis Polk & Wardwell LLP represents WhatsApp and Meta. King & Spalding LLP represents NSO.

This case is WhatsApp Inc. et al v. NSO Group Technologies Limited et al, N.D. Cal., No. 4:19-cv-07123, motion for sanctions filed 10/2/24.