WhatsApp Inc. v. NSO Group Technologies Limited ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 WHATSAPP INC., et al., 7 Case No. 19-cv-07123-PJH Plaintiffs, 8 v. ORDER RE MOTION FOR 9 RECONSIDERATION NSO GROUP TECHNOLOGIES 10 LIMITED, et al., Re: Dkt. 371, 373, 376 11 Defendants. 12 13 14 On August 27, 2024, the court issued an order denying as moot defendants’ 15 request to compel plaintiffs to produce a privilege log, based on plaintiffs’ representation 16 in a joint letter brief filed on August 13 “that they intend to produce a privilege log in 17 advance of the first deposition of plaintiffs’ witnesses.” See Dkt. 370 at 1. 18 On August 28, defendants filed a letter brief asserting that plaintiffs had not fulfilled 19 their representation, having failed to produce a privilege log before their first witness 20 deposition on August 14, and having further failed to do so as of the letter’s filing. See 21 Dkt. 371. 22 The court construed defendants’ letter brief as a motion for leave to file a motion 23 for reconsideration under Civil Local Rule 7-9(b)(1), and set a schedule for defendants to 24 file an optional supplemental motion for reconsideration, and for plaintiffs to file a 25 response. 26 Defendants’ supplemental motion largely makes the same arguments made in its 27 letter brief, that plaintiffs either made a misrepresentation to the court or failed to promptly 1 deemed to have waived their privilege claims and be ordered to produce all documents 2 withheld on the basis of privilege. See Dkt. 371, 373. 3 Plaintiffs’ response argues that the representation in the August 13 joint letter brief 4 was the result of having “inadvertently neglected to update their estimated production 5 date for the privilege log before the joint letter was filed with the Court,” and that they 6 “regret that oversight.” See Dkt. 374 at 3. Plaintiffs’ response does not explain why it 7 failed to correct its representation after learning of the court’s reliance on it, nor does it 8 explain whether plaintiffs responded to defendants’ repeated inquiries regarding the 9 privilege log’s status before ordered to do so by the court.1 10 The court is troubled by the fact that plaintiffs’ failure to correct its representation 11 has led to unnecessary motion practice and an accompanying waste of the court’s and 12 the parties’ resources. However, the court concludes that the relief requested by 13 defendants – a blanket privilege waiver – would be disproportionate to the degree of 14 plaintiffs’ delay and any resulting prejudice to defendants. See also Burlington Northern 15 & Santa Fe Railway v. U.S. District Court, 408 F.3d 1142, 1149 (9th Cir. 2005) (“a district 16 court should make a case-by-case determination” and conduct a “holistic reasonableness 17 analysis” when considering a privilege waiver”). Accordingly, defendants’ motion for 18 reconsideration is DENIED based on the fact that plaintiffs have now produced a privilege 19 log, but the court cautions plaintiffs that repeated similar “oversights” may be grounds for 20 a different type of sanction. 21 IT IS SO ORDERED. 22 Dated: September 5, 2024 23 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 24 United States District Judge 25 26 27