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Both parties filed motions for partial summary judgment in late September, with WhatsApp asserting that undisputed evidence established NSO’s liability. WhatsApp further alleged that NSO’s refusal to comply with discovery obligations, including failing to produce the Pegasus code in a usable manner, justified sanctions.

Court Orders Sanctions Against NSO

Judge Hamilton also granted WhatsApp’s request for sanctions, finding that NSO’s production of the Pegasus code in Israel — rather than in a manner accessible to the court — was inadequate. While she stopped short of issuing default judgment as a terminating sanction, she imposed evidentiary sanctions that will treat NSO’s use of WhatsApp’s servers as a purposeful act. During a previous hearing, Judge Hamilton criticized NSO’s compliance with discovery orders, stating that producing code in Israel did not meet the court’s requirements. "When I ordered it be produced for litigation, I meant it had to be something I can see," she noted.

Reactions to the Ruling

Will Cathcart, head of WhatsApp, celebrated the ruling as a "huge win for privacy" in a post on Meta’s Threads platform. "We spent five years presenting our case because we firmly believe that spyware companies could not hide behind immunity or avoid accountability for their unlawful actions," Cathcart wrote. "Surveillance companies should be on notice that illegal spying will not be tolerated." Meta CEO Mark Zuckerberg echoed these sentiments, commending WhatsApp’s efforts to lead on privacy and encryption.

Legal Representation

WhatsApp is represented by Greg D. Andres, Antonio J. Perez-Marques, Craig T. Cagney, Luca Marzorati, and Micah G. Block of Davis Polk & Wardwell LLP. NSO is represented by Joseph N. Akrotirianakis and Aaron S. Craig of King & Spalding LLP. The case, WhatsApp Inc. et al. v. NSO Group Technologies Limited et al., is being heard in the U.S. District Court for the Northern District of California under case number 4:19-cv-07123.