Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 1 of 18 1 2 3 4 5 6 7 8 9 10 COOLEY LLP MICHAEL G. RHODES (116127) (rhodesmg@cooley.com) TRAVIS LEBLANC (251097) (tleblanc@cooley.com) KYLE C. WONG (224021) (kwong@cooley.com) JOSEPH D. MORNIN (307766) (jmornin@cooley.com) 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 DANIEL J. GROOMS (D.C. Bar No. 219124) (admitted pro hac vice) (dgrooms@cooley.com) 1299 Pennsylvania Avenue, NW, Suite 700 Washington, DC 20004-2400 Telephone: (202) 842-7800 Facsimile: (202) 842-7899 Attorneys for Plaintiffs WHATSAPP INC. and FACEBOOK, INC. 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 14 15 16 WHATSAPP INC., a Delaware corporation, and FACEBOOK, INC., a Delaware corporation, Plaintiffs, 17 18 19 20 21 v. NSO GROUP TECHNOLOGIES LIMITED and Q CYBER TECHNOLOGIES LIMITED, Case No. 4:19-cv-07123-PJH WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL BASED ON PRIOR REPRESENTATION IN A SEALED MATTER Date: May 20, 2020 Time: 9:00 a.m. Courtroom: 3, 3rd Floor Judge: Hon. Phyllis J. Hamilton Defendants. 22 23 24 25 REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED 26 27 28 COO ATTORN SAN F WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 2 of 18 1 TABLE OF CONTENTS Page 2 3 4 5 6 7 8 9 10 11 12 NOTICE OF MOTION ........................................................................................................................ 1 I. INTRODUCTION ................................................................................................................... 2 II. BACKGROUND ..................................................................................................................... 3 A. WhatsApp Service ....................................................................................................... 3 B. King & Spalding represented WhatsApp in a sealed proceeding involving substantially the same issues presented in this litigation. ............................................ 4 C. King & Spalding has denied there is any conflict........................................................ 5 III. LEGAL STANDARD.............................................................................................................. 6 IV. ARGUMENT ........................................................................................................................... 8 A. This matter is substantially related to the matter in . ........................................................................................................................ 8 B. King & Spalding possesses WhatsApp’s confidential information that is material to this litigation. ........................................................................................... 13 V. CONCLUSION ...................................................................................................................... 14 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COO ATTORN SAN F -i- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH Case Document 59-5 Filed 04/29/20 Page 3 of 18 TABLE OF AUTHORITIES 1 Page 2 Cases 3 Adams v. Aerojet-General Corp, 4 86 Cal. App. 4th 1324 (2001) 6, 12 5 All Am. Semiconductor, Inc. v. anix Semiconductor, Inc., Nos. 07-1200, 07-1207, 07-1212, 06-2915, 2008 WL 5484552 (ND. 6 Cal. Dec. 18, 2008) (Hamilton, J.) 6 7 Asyst Techs, Inc. v. Empalr, Inc., 8 962 F. Supp. 1241 (ND. Cal. 1997) 9 9 Beltran v. Avon Products, Inc., 867 F. Supp. 2d 1068 (CD. Cal. 2012) 9 10 Citv Ctv. of SF . v. Cobra Sols., Inc., 11 38 Cal. 4th 839 (2006) 7, 8, 9, 11 12 Davis v. EMI Grp. Ltd, 13 No. l2-cv-1602 YGR, 2013 WL 75781 (ND. Cal. Jan. 4, 2013) 12 14 Farris v. Fireman?s Fund. Ins. Co., 119 Cal. App. 4th 671 (2004) 7, 8, 9, ll 15 Flatt v. Super. 16 9 Cal. 4th 275 (1994) 6, 7, 8, 12 17 Goldberg v. Warner/Chappell Music, Inc. 18 125 Cal. App. 4th 752 (2005) 12 19 HF. Alnnanson Co. v. Salomon Bros, Inc., 229 Cal. App. 3d 1445 (1991) 7, 13 20 Henri/(sen v. Great Am. Savings Loan, 21 11 Cal. App. 4th 109 (1992) 14 22 Hitachi, Ltd. v. Tatung Co., 419 F. Supp. 2d 1158 (ND. Cal. 2006) 6 23 Jessen v. Hartford Casualtv Ins. Co., 24 111 Cal. App. 4th 698 (2003) 8, 9 25 Kirk v. First Am. Title Ins. Co., 26 183 Cal. App 4th 776 (2010) 12, 13 27 Monox T0 -ii- stqmury DEFENSE COUNSEL CASE No. 28 Amnuns A1 LAW SAN FRAVCISCO Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 4 of 18 1 2 3 4 5 6 7 8 9 SC Innovations, Inc. v. Uber Techs., Inc., No. 18-cv-07440-JCS, 2019 WL 1959493 (N.D. Cal. May 2, 2019) ............................9, 10, 11 Trone v. Smith, 621 F.2d 994 (9th Cir. 1980) .....................................................................................................9 TWiT, LLC v. Twitter Inc., No. 18-cv-00341-JSC, 2018 WL 2470942 (N.D. Cal. June 1, 2018) ..................................7, 13 Wu v. O’Gara Coach Co., 38 Cal. App. 5th 1069 (2019) ....................................................................................................7 Other Authorities California Rule of Professional Conduct 1.9 .......................................................................1, 3, 6, 8 10 Local Rule 11-4(a)(1) ..........................................................................................................1, 3, 6, 8 11 Model Rules Prof. Conduct, Rule 1.9, cmt. 3 ..................................................................................7 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COO ATTORN SAN F -iii- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 5 of 18 NOTICE OF MOTION 1 2 To All Parties and Their Attorneys of Record: 3 PLEASE TAKE NOTICE that on May 20, 2020 at 9:00 a.m., or as soon thereafter as the matter 4 may be heard, Plaintiff WhatsApp Inc. (“WhatsApp”) will move to disqualify Defendants NSO Group 5 Technologies Limited and Q Cyber Technologies Limited’s counsel of record, King & Spalding LLP. 6 WhatsApp’s Motion to Disqualify Defense Counsel Based on Prior Representation in a Sealed Matter 7 (“Motion to Disqualify”) is made pursuant to Local Rule 11-4(a)(1) and California Rule of 8 Professional Conduct 1.9 and is based on this Notice of Motion and Motion, the accompanying 9 Memorandum of Points and Authorities, the Declarations of Jacob Sommer, Travis LeBlanc, and Nitin 10 Gupta, all pleadings and papers on file in this matter, and upon such matters as may be presented to 11 the Court at the time of hearing or otherwise. STATEMENT OF RELIEF SOUGHT 12 13 14 WhatsApp requests that the Court disqualify King & Spalding LLP based on a conflict of interest in violation of Local Rule 11-4(a)(1) and California Rule of Professional Conduct 1.9. STATEMENT OF ISSUES TO BE DECIDED 15 16 1. Whether King & Spalding is violating Local Rule 11-4(a)(1) and California Rule of 17 Professional Conduct 1.9 because this litigation is substantially related to a previous matter in which 18 King & Spalding represented WhatsApp. 19 2. Whether King & Spalding is violating Local Rule 11-4(a)(1) and California Rule of 20 Professional Conduct 1.9 because King & Spalding possesses WhatsApp’s confidential information 21 that is material to this litigation. 22 23 24 25 26 27 28 COO ATTORN SAN F -1- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 6 of 18 1 I. INTRODUCTION 2 King & Spalding is violating a bedrock requirement of attorney loyalty: the duty to avoid 3 switching sides and opposing a client that it once represented. Previously, King & Spalding 4 represented WhatsApp in a matter that involved . In that representation, King 5 6 & Spalding learned detailed, confidential information about 7 . Now, however, King & Spalding has turned the tables so it can act on behalf 8 of WhatsApp’s adversary on a substantially related matter, one in which WhatsApp seeks to redress 9 an unlawful access into WhatsApp’s servers and technology. Any attorney defending this suit would 10 love to have insight into how WhatsApp’s platform and systems work. And King & Spalding has that 11 insight—because it was once WhatsApp’s counsel. The law does not countenance that form of 12 revolving-door representation. WhatsApp called this conflict to King & Spalding’s attention, but the 13 firm has declined to step aside—or even, as of this filing—return WhatsApp’s files to it. Because 14 King & Spalding’s representation of Defendants violates the law—transforming itself from 15 WhatsApp’s trusted advisor to its fierce adversary—King & Spalding must be disqualified. Starting in approximately December 2015, King & Spalding represented WhatsApp in 16 17 connection with a sealed proceeding in 18 .1 During that representation, King & Spalding received, had access to, and communicated 19 20 extensively with WhatsApp about highly confidential information concerning 21 22 23 . This same information is front and center 24 in this case. Here, Defendants, unable to break WhatsApp’s end-to-end encryption for messages in 25 transit, circumvented it by reverse engineering and attacking the WhatsApp app. 26 27 1 28 COO ATTORN SAN F The matter in Judicial Notice, filed concurrently herewith. remains under seal. See WhatsApp’s Request for -2- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 7 of 18 1 King & Spalding’s participation in the prior representation was also substantial; its attorneys 2 were involved in all aspects of the sealed proceeding. For example, King & Spalding participated in 3 multiple calls with WhatsApp, helped draft correspondence on WhatsApp’s behalf 4 and 5 required the firm’s attorneys to have knowledge of the confidential technical aspects of WhatsApp’s 6 platform. , . All of these tasks 7 Given the substantial overlap between the factual issues presented in both matters, King & 8 Spalding’s representation of Defendants in this case violates Local Rule 11-4(a)(1) and California 9 Rule of Professional Conduct 1.9. Confidential information that WhatsApp disclosed to King & 10 Spalding is at risk of being disclosed to Defendants and used against WhatsApp in this litigation. 11 Neither the Local Rules nor well-established case law permits such a result. Put simply, no client 12 would ever expect to reveal the proprietary and nonpublic details of its product to its lawyers only to 13 find those lawyers acting adversely to it a few years later on a case involving the same technology and 14 on behalf of a client that marketed and sold the ability to attack and exploit its network. 15 II. BACKGROUND 16 A. WhatsApp Service 17 WhatsApp provides an end-to-end encrypted communication service available on mobile 18 devices (the “WhatsApp Service”). Declaration of Nitin Gupta (“Gupta Decl.”) ¶ 2. Users can install 19 the WhatsApp app on a mobile device to use the WhatsApp Service and can also access the WhatsApp 20 service through a desktop website. Id. The app is a software program, also referred to as the client 21 software, which runs on a user’s device.2 See id. 22 The WhatsApp Service allows calls or messages to be made or sent from a user’s device to any 23 other WhatsApp user. See Gupta Decl. ¶ 3. These communications are fully encrypted on the user’s 24 device and transmitted through WhatsApp’s servers in encrypted form, before being decrypted on the 25 receiving user’s device. See id. WhatsApp’s encryption software on clients and servers, as well as its 26 2 27 28 COO ATTORN SAN F Client software means software that runs on a device that accesses a server, i.e., a computer that provides information, services, or other information to another, local device—the client. See Gupta Decl. ¶ 2. Here, a user’s mobile device or computer (the client) has software (the client software) to connect to WhatsApp’s servers. -3- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH SAN Fr: tut: it Case Document 59-5 Filed 04/29/20 Page 8 of 18 message-routing systems. have operated in broadly the same rnarmer since at least early 2016. See id. 11 4. WhatsApp has augmented its software and message-routing systems with newer featru?es. See id. B. King Spalding represented hatsApp in a sealed proceeding involving substantially the same issues presented in this litigation. At the time. WhatsApp was in the process of implementing end-to-end of communications sent on its platform. WhatsApp was jointly represented by King Spalding and ZwillGen PLLC. See Sormner Decl. 1111 2-3: see also Declaration of Travis LeBlanc (?LeBlanc Ex. B. Speci?cally. Christopher Wray. Catherine O?Neil. Nick Oldham. and Paul Mezzina of King Spalding. as well as Marc Zwillinger and Jacob Sonmrer of ZwillGen PLLC. were actively involved in the representation of WhatsApp. See Sommer Decl. 11 3; see also LeBlanc Decl. 11 4. Wray and Oldham are no longer with King Spalding and O?Neil has passed away. but Mezzina is now a partner at the ?rm. King Spalding continues to possess the ?les from its representation of WhatsApp. See LeBlanc Decl. 11 13. King Spalding was involved in nearly every aspect of the previous proceeding. which required its lawyers to review and analyze WhatsApp?s con?dential client information. See Somrner Decl. 11 12. For example. King Spalding formulated case strategy and helped? MOTION TO -4- DISQITALIIT DEFENSE COINSEL CASE NO. Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 9 of 18 1 2 3 4 required King & Spalding to understand WhatsApp’s 5 6 See id. King & Spalding also participated in multiple calls in which these 7 8 details were discussed and 9 id. ¶ 12. See 10 11 12 13 14 15 16 17 18 19 20 C. King & Spalding has denied there is any conflict. 21 King & Spalding entered its appearance in this case on March 6, 2020. See ECF No. 23; see 22 also ECF No. 26. On March 18, 2020, counsel for Plaintiffs in this case contacted King & Spalding 23 regarding WhatsApp’s concerns about the conflict. See LeBlanc Decl. ¶ 2, Ex. A. The next day, 24 Robert Thornton, King & Spalding’s General Counsel, called Plaintiffs’ counsel, indicating that King 25 & Spalding was reviewing the conflict issue and anticipated that it could reach a decision by the week 26 4 27 WhatsApp can make these letters available to the Court for in camera review. 5 28 COO ATTORN SAN F WhatsApp can also make the Government’s sealed filing available for in camera review. -5- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 10 of 18 1 of March 23, 2020. See id. ¶ 3. On Friday, March 27, 2020, Mr. Thornton reported that he was still 2 investigating the prior representation and needed more time to reach a decision. See id. ¶ 6. As an 3 alternative to withdrawing, Mr. Thornton proposed implementing an ethical wall. See id. WhatsApp 4 rejected this offer. See id. ¶ 7. Subsequently, on Tuesday, March 31, 2020, King & Spalding informed 5 Plaintiffs’ counsel that they did not intend to withdraw. See id. ¶ 9. 6 WhatsApp has repeatedly asked that King & Spalding return its client files. See LeBlanc Decl. 7 ¶¶ 2, 9, 10, 11. While King & Spalding has returned only one document to date, a review of emails 8 exchanged between WhatsApp and King & Spalding attorneys, which were in WhatsApp’s 9 possession, shows that King & Spalding was deeply involved in discussions regarding 10 —the very subject matter of the current case. See id. ¶¶ 13-14. 11 12 III. LEGAL STANDARD 13 Federal courts in this district apply California law when determining whether to disqualify 14 counsel due to a conflict of interest. All Am. Semiconductor, Inc. v. Hynix Semiconductor, Inc., Nos. 15 C 07-1200, C 07-1207, C 07-1212, C 06-2915, 2008 WL 5484552, at *4 (N.D. Cal. Dec. 18, 2008) 16 (Hamilton, J.) (“Motions to disqualify counsel are decided under state law.”); see also Hitachi, Ltd. v. 17 Tatung Co., 419 F. Supp. 2d 1158, 1160 (N.D. Cal. 2006) (same); Civ. L.R. 11-4(a)(1). California 18 Rule of Professional Conduct 1.9 (formerly Rule 3-310(E)) prohibits an attorney from engaging in 19 successive representations where the attorney possesses the former client’s confidential information 20 and that information is material to the later, adverse representation.6 This rule “must be vigorously 21 applied to protect a former client’s legitimate expectations of loyalty and trust.” Adams v. Aerojet- 22 General Corp., 86 Cal. App. 4th 1324, 1339-40 (2001) (applying former Rule 3-310(E)); see also 23 Flatt v. Super. Ct., 9 Cal. 4th 275, 283 (1994) (“Where the potential conflict is one that arises from 24 6 25 26 27 28 COO ATTORN SAN F Rule 1.9 provides, “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed written consent.” See Cal. R. of Prof. Conduct Rule 1.9(a). That Rule further establishes that “[a] lawyer . . . whose present or former firm has formerly represented a client in a matter shall not thereafter[] use information protected by Business and Professions Code section 6068, subsection (e) and rule 1.6 acquired by virtue of the representation of the former client to the disadvantage of the former client . . . .” Id. Rule 1.9(c)(1). -6- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 11 of 18 1 the successive representation of clients with potentially adverse interests, the courts have recognized 2 that the chief fiduciary value jeopardized is that of client confidentiality.”). Courts employ two tests 3 when assessing successive representations. TWiT, LLC v. Twitter Inc., No. 18-cv-00341-JSC, 2018 4 WL 2470942, at *3, *5 (N.D. Cal. June 1, 2018). Each test on its own is sufficient to establish a 5 conflict of interest. Id. 6 First, where the two representations have a “substantial relationship,” the attorney may not 7 “serv[e] as counsel to a successive client in litigation adverse to the interests of the first client . . . .” 8 Flatt, 9 Cal. 4th at 283. When determining whether the representations have a substantial relationship, 9 courts examine whether the attorney’s relationship with the former client was “direct and personal” 10 and “whether there is a connection between the two successive representations . . . .” Farris v. 11 Fireman’s Fund. Ins. Co., 119 Cal. App. 4th 671, 679 (2004). In other words, the two representations 12 have a substantial relationship where “the attorney had a direct professional relationship with the 13 former client in which the attorney personally provided legal advice and services on a legal issue that 14 is closely related to the legal issue in the present representation.” City & Cty. of S.F. v. Cobra Sols., 15 Inc., 38 Cal. 4th 839, 847 (2006). Once a substantial relationship is shown, “the attorney is presumed 16 to possess confidential information,” and “the former client need not prove that the attorney possess 17 actual confidential information.” Id. This presumption operates to “avoid[] the ironic result of 18 disclosing the former client’s confidences and secrets through an inquiry into the actual state of the 19 lawyer’s knowledge . . . .” H.F. Ahmanson Co. v. Salomon Bros., Inc., 229 Cal. App. 3d 1445, 1453 20 (1991). 21 Second, regardless of whether the former client shows a substantial relationship between the 22 successive representations, disqualification is required if the former client can “prove the lawyer in 23 fact obtained such [material confidential] information.” TWit, 2018 WL 2470942, at *5 (internal 24 quotation and citation omitted) (emphasis added); see also H.F. Ahmanson, 229 Cal. App. 3d at 1452; 25 Wu v. O’Gara Coach Co., 38 Cal. App. 5th 1069, 1083 (2019) (“[K]nowledge of specific facts gained 26 in a prior representation that are relevant to the matter in question ordinarily will preclude [a 27 successive] representation.”) (quoting ABA Model Rules Prof. Conduct, Rule 1.9, cmt. 3). 28 COO ATTORN SAN F -7- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 12 of 18 1 If a conflict exists between two successive representations—whether through the existence of 2 a substantial relationship or through the actual possession of confidential information—the conflict is 3 imputed to the entire law firm. See Flatt, 9 Cal. 4th at 283 (“Where the requisite substantial 4 relationship between the subjects of the prior and the current representations can be demonstrated, . . . 5 the disqualification extends vicariously to the entire firm.”). 6 IV. ARGUMENT 7 King & Spalding is engaged in an impermissible successive representation in violation of Local 8 Rule 11-4(a)(1) and California Rule of Professional Conduct 1.9. Specifically, King & Spalding is 9 prohibited from representing Defendants in this case for two reasons, each independently sufficient: 10 (1) this litigation is substantially related to the proceeding in , and 11 (2) attorneys at King & Spalding obtained WhatsApp’s confidential information during 12 representation and that information is material to the present dispute. Because this 13 conflict is imputed to the entire firm, WhatsApp respectfully requests that the Court grant its motion 14 to disqualify King & Spalding from representing Defendants in this case. 15 A. This matter is substantially related to the matter in 16 COO ATTORN SAN F 17 When determining whether a substantial relationship exists, courts focus on the relationship of 18 the attorney to the former client and “whether there is a connection between the two successive 19 representations . . . .” Farris, 119 Cal. App. 4th at 679 (quoting Jessen v. Hartford Casualty Ins. Co., 20 111 Cal. App. 4th 698, 710 (2003)). Where “the evidence before the trial court supports a rational 21 conclusion that information material to the evaluation, prosecution, settlement or accomplishment of 22 the former representation given its factual and legal issues is also material to the evaluation, 23 prosecution, settlement or accomplishment of the current representation given its factual and legal 24 issues,” a substantial relationship exists. Jessen, 111 Cal. App. 4th at 713. Once a court finds a 25 substantial relationship exists, the attorney is presumed to possess the former client’s information, and 26 disqualification is required. Cobra, 38 Cal. 4th at 847. Here, the two representations are substantially 27 related because King & Spalding directly represented WhatsApp in a matter that involved highly 28 confidential information and trade secrets that are material to this case. See Farris, 119 Cal. App. 4th -8- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 13 of 18 COO ATTORN SAN F 1 at 679 (looking to whether the attorney’s relationship with the former client was “direct and personal” 2 and “whether there is a connection between the two successive representations”). 3 To begin, the King & Spalding attorneys involved in the previous had a “direct” 4 relationship with WhatsApp because they personally provided WhatsApp with legal advice in the 5 matter. See Sommer Decl. ¶¶ 3-4, 8-12; Jessen, 111 Cal. App. 4th at 709 6 (relationship is direct where “the lawyer was personally involved in providing legal advice and 7 services to the former client”). 8 As such, the only question is whether “the subjects of the prior representation are such as to 9 ‘make it likely the attorney acquired confidential information’ that is relevant and material to the 10 present representation.” Cobra, 38 Cal. 4th at 847 (citation omitted); see also Farris, 119 Cal. App. 11 4th at 679. They are. Indeed, “[t]he substantial relationship test does not require that the issues in the 12 two representations be identical.” Trone v. Smith, 621 F.2d 994, 1000 (9th Cir. 1980). Instead, the 13 substantial relationship test requires only that the subject matters of the two representations are such 14 that the attorney was likely to have acquired information that is “directly at issue in, or ha[s] some 15 critical importance to, the second representation.” Farris, 119 Cal. App. 4th at 680. 16 matters involve the details of a client’s technology, courts routinely find that the subject matters of the 17 litigations are sufficiently similar to conclude that a substantial relationship exists and disqualify 18 counsel from handling the new representation adverse to their former client. See Asyst Techs., Inc. v. 19 Empak, Inc., 962 F. Supp. 1241, 1242 (N.D. Cal. 1997) (collecting cases in the patent context); see 20 also SC Innovations, Inc. v. Uber Techs., Inc., No. 18-cv-07440-JCS, 2019 WL 1959493, at *7-9 (N.D. 21 Cal. May 2, 2019) (matters substantially related in part because same product was at issue); Beltran v. 22 Avon Products, Inc., 867 F. Supp. 2d 1068, 1082 (C.D. Cal. 2012) (matters were substantially related 23 in part because both matters required knowledge of moving party’s testing protocols for beauty 24 products). When two 25 SC Innovations is particularly instructive here. There, the court considered a motion by Uber 26 to disqualify SC Innovations, Inc.’s firm—Quinn Emanuel Urquhart & Sullivan LLP—on the basis 27 that it had previously represented Uber in a substantially related matter. 2019 WL 1959493, at *1. 28 Specifically, Quinn Emanuel had defended Uber against antitrust claims brought by taxi operators. Id. -9- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 14 of 18 1 at *2. SC Innovations argued that the representations were not substantially related because the prior 2 representation involved claims brought by “traditional taxi companies” and the current representation 3 involved a claim brought by a “ride-hailing app[].” Id. at *6. The court rejected that argument and 4 concluded the representations were substantially related, reasoning in part that the present case “and 5 the taxi cases all relate[d] to the same services provided by Uber,” “required at least some degree of 6 discovery into and analysis of the same Uber operations,” and involved “the same class of Uber 7 products . . . .” Id. at *7, *9. 8 That logic applies here because both representations involve . The 9 10 prior representation in which King & Spalding represented WhatsApp involved 11 12 . See Sommer Decl. ¶¶ 8-12. The current 13 representation has King & Spalding representing Defendants against WhatsApp on claims that 14 Defendants, in order to circumvent WhatsApp’s encryption, exploited WhatsApp’s app and platform 15 to unlawfully compromise the targeted devices of WhatsApp users. 16 technology and systems are at the heart of Put simply, WhatsApp’s current representations. 17 18 19 20 21 22 COO ATTORN SAN F 23 Plaintiffs allege in this case that Defendants reverse engineered 24 the WhatsApp app and developed a program that enabled them to emulate legitimate WhatsApp 25 network traffic. See, e.g., Compl. ¶¶ 35-45. Plaintiffs further allege that the Defendants’ sophisticated 26 program was built to exploit specific components of WhatsApp’s network protocols and code and 27 designed to conceal their malicious code by masking it as a part of a legitimate message. See id. ¶¶ 28 35-45, 54. Plaintiffs further allege that these malicious transmissions sent by Defendants through -10- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH Cocr 11 l? ATTORNEXN SAN F1: 1. Case Document 59-5 Filed 04/29/20 Page 15 of 18 WhatsApp?s servers exploited a vulnerability in the WhatsApp app to allow N80 to cause a user?s device to run an turauthor?ized program. See id. 1111 25. 35-3 7. 44. All of this had the ultimate goal of capturing communications and data on the mobile phones of WhatsApp?s users. See id. 1W 1. 24. This omt should not allow King Spalding to represent Defendants. who are directly adverse to King Spalding?s former client WhatsApp. in a case that involves the very technology that WhatsApp previously hired King Spalding to analyze and protect. King Spalding?s duty in the which would have jeopardized the high level of con?dentiality the app normally affords to user commrmications. Now, in this case. King Spalding seeks to represent Defendants. who exploited that very same WhatsApp software and teclnrology to unlawfully access protected user communications. See ompl.. Ex. 10. In these circumstances. there is no question that ?the general feattu'es of the matters involved? support a reasonable inference that WhatsApp imparted con?dential information to King Spalding that ?could be used to adverse effect? in this litigation. Farris. 119 Cal. App. 4th at 681.7 The relevance and utility of the confidential information gleaned from King Spalding?s prior representation of WhatsApp is manifest: Defendants? cormsel will need to evaluate the credibility of the Complaint?s allegations that Defendants exploited WhatsApp?s app. software. network architectru?e. and severs to surveil targeted user?s unlawfully. That inquiry inevitably would be facilitated by King Spalding?s con?dential. insider knowledge about WhatsApp?s proprietary technology. As such. this litigation is substantially related to the matter in? -. and the orut should accordingly presume that the King Spalding attorneys who represented WhatsApp have con?dential information regarding Cobra. 38 Cal. 4th at 847. ave rejec argumen represen a rons are no 311 ecause there is imperfect overlap between the exact parties involved in the matters are different; instead. coruts examine whether. as here. the underlying technology is the same. See SC Innovations. 2019 WL 1959493. at TO -1 1- DEFENSE COUNSEL CASE NO. Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 16 of 18 1 COO ATTORN SAN F In turn, the Court must impute this conflict to the entire firm. See Flatt, 9 Cal. 4th at 283 2 (imputing conflict where substantial relationship existed). Because Mr. Mezzina represented 3 WhatsApp and continues to practice at King & Spalding, see LeBlanc Decl. ¶ 4, the inquiry ends, and 4 King & Spalding should be disqualified from representing Defendants in this case. Adams, 86 Cal. 5 App. 4th at 1333 (“It is now firmly established that where the attorney is disqualified from 6 representation due to an ethical conflict, the disqualification extends to the entire firm.”). 7 Even if that were not the case, the Court should impute Ms. O’Neil, Mr. Wray, and Mr. 8 Oldham’s conflicts to the entirety of the King & Spalding firm. Where some conflicted attorneys have 9 since left a firm, courts still impute the conflict where (1) the representations are substantially related, 10 and (2) any attorney remaining at the firm has protected information that is material to the subsequent 11 representation. See Goldberg v. Warner/Chappell Music, Inc., 125 Cal. App. 4th 752, 765 (2005). 12 Those requirements are satisfied here. Indeed, a court in this district has in fact imputed a conflict to 13 an entire firm in a situation almost identical to this one. See Davis v. EMI Grp. Ltd., No. 12-cv-1602 14 YGR, 2013 WL 75781, at *4-5 (N.D. Cal. Jan. 4, 2013). In Davis, the court imputed a conflict to the 15 entire firm where the lead attorneys on the prior representation had since left the firm because attorneys 16 who had performed work for the prior client remained at the firm and the firm still possessed the 17 former client’s files. Id. at *4-5. To emphasize, King & Spalding has acknowledged that Mr. Mezzina 18 remains at the firm and that it still possesses the entire files for its representation of WhatsApp, which 19 files necessarily include confidential information material to the current litigation. See LeBlanc Decl. 20 ¶ 3. And the fact that a firm retains a former client’s files supports imputing the conflict to the entire 21 firm. See Davis, 2013 WL 75781, at *5. 22 King & Spalding may argue that its untimely offer to impose an ethical wall is sufficient to 23 cure this conflict. It is not. An ethical wall cannot prevent the imputation of a conflict unless two 24 basic requirements are satisfied. First, “the screen must be timely imposed; a firm must impose 25 screening measures when the conflict first arises.” Kirk v. First Am. Title Ins. Co., 183 Cal. App 4th 26 776, 810 (2010) (emphasis added). Second, “an effective wall involves the imposition of preventive 27 measures to guarantee that [confidential] information will not be conveyed.” Id. Here, King & 28 Spalding’s proposed ethical wall, even if implemented, would be insufficient to rebut the imputation -12- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 17 of 18 1 of the conflict because it was not timely imposed and thus necessarily would not have prevented the 2 King & Spalding lawyers representing Defendants in this litigation from obtaining information after 3 their retention and prior to imposition of the ethical wall. See LeBlanc Decl. ¶ 6 (ethical wall was not 4 in place as of March 27, 2020); see also Kirk, 183 Cal. App. 4th at 810 (“[S]creening should be 5 implemented before undertaking the challenged representation. . . . It is not sufficient to simply 6 produce declarations stating that confidential information was not conveyed . . . .”) (emphasis added). 7 As such, the conflict at issue should be imputed to all of King & Spalding. 8 B. 9 King & Spalding possesses WhatsApp’s confidential information that is material to this litigation. 10 Even if the matters were not substantially related, disqualification is required if the former 11 client can “prove the lawyer in fact obtained [the former client’s confidential] information.” TWiT, 12 2018 WL 2470942, at *5; see also H.F. Ahmanson, 229 Cal. App. 3d at 1452 (“A former client may 13 seek to disqualify a former attorney from representing an adverse party by showing the former attorney 14 actually possesses confidential information adverse to the former client”). WhatsApp has made that 15 showing here. 16 17 18 19 20 21 In other words, based on its previous representation of WhatsApp, King & 22 Spalding has confidential knowledge of how WhatsApp’s systems work, including but not limited to: 23 24 . 25 As noted, this information is at the heart of the present litigation, which centers on Defendants’ 26 circumvention of WhatsApp’s encrypted platform to gain unauthorized access to users’ private 27 communications. And this information is still in King & Spalding’s possession. See LeBlanc Decl. 28 COO ATTORN SAN F -13- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH Case 4:19-cv-07123-PJH Document 59-5 Filed 04/29/20 Page 18 of 18 1 ¶¶ 3-4 (explaining that King & Spalding still possesses WhatsApp’s files and that Mr. Mezzina is 2 presently a partner at King & Spalding). As such, the Court should also impute this conflict to the 3 entire firm. See Henriksen v. Great Am. Savings & Loan, 11 Cal. App. 4th 109, 117 (1992) (imputing 4 conflict where attorney had obtained confidential information in prior representation); see supra pp. 5 13-14 & n.4 (explaining why conflict should be imputed here and why proposed ethical wall is 6 insufficient to rebut the imputation). Accordingly, King & Spalding should be disqualified for the 7 additional reason that it possesses WhatsApp’s confidential information, which is material to this 8 dispute. 9 V. CONCLUSION 10 In sum, King & Spalding is engaged in an impermissible successive representation for each of 11 two independently sufficient reasons: it previously represented WhatsApp in a matter substantially 12 related to the present litigation, and it otherwise possesses WhatsApp’s confidential information that 13 is material to this dispute. For these reasons, WhatsApp respectfully requests that the Court grant its 14 motion to disqualify King & Spalding from representing Defendants in this case. 15 16 17 Dated: April 10, 2020 Respectfully submitted, COOLEY LLP /s/ Michael G. Rhodes Michael G. Rhodes 18 19 20 Attorneys for Plaintiffs WHATSAPP INC. and FACEBOOK, INC. 21 22 23 24 25 26 27 28 COO ATTORN SAN F -14- WHATSAPP’S MOTION TO DISQUALIFY DEFENSE COUNSEL CASE NO. 4:19-CV-07123-PJH