Judge Denies Cooley's Bid to DQ King & Spalding in WhatsApp Case
In an order Tuesday, U.S. District Chief Judge Phyllis Hamilton found that WhatsApp did not demonstrate that King & Spalding still has access to confidential material from a previous matter it handled for the messaging company, or even that the material is substantially related to the new case.
June 16, 2020 at 10:48 PM
4 minute read
King & Spalding can continue to defend a surveillance technology firm accused of deploying malware targeted at WhatsApp Inc. users after a federal judge blocked the Facebook subsidiary's attempt to boot the firm from the case.
In an order Tuesday, U.S. District Chief Judge Phyllis Hamilton of the Northern District of California denied WhatsApp's motion to disqualify King & Spalding from representing NSO Group Technologies, finding that WhatsApp did not demonstrate that the law firm still has access to confidential material, or even that the material is substantially related to the new case.
WhatsApp argued that King & Spalding violated "a bedrock requirement of attorney loyalty: the duty to avoid switching sides and opposing a client that it once represented," according to the disqualification filing signed by Cooley's Michael Rhodes in San Francisco. King & Spalding represented the messaging service in a sealed matter in 2016, where it had access to related, confidential information, WhatsApp contended.
Three of the four King & Spalding lawyers who represented WhatsApp in the sealed matter, including current FBI Director Christopher Wray, are no longer with the firm. But Hamilton said she didn't need to delve into whether the lone remaining attorney, Paul Mezzina, gained knowledge of confidential information if the cases were not related.
Hamilton noted the difficulty of comparing the two cases given that one of the matters is entirely under seal and both are mired in technical coding language. Yet, her analysis found that WhatsApp "has not demonstrated that the two matters are substantially related and absent such a relationship, there is no presumption that K&S acquired material confidential information."
U.S. District Chief Judge Phyllis Hamilton, Northern District of California (Photo: Jason Doiy/ALM)Hamilton pointed to an antitrust suit against Uber, brought by SC Innovations, where Gibson, Dunn & Crutcher removed plaintiffs' Quinn Emanuel Urquhart & Sullivan counsel, because the firm repped a substantially similar case for Uber involving a taxi car company.
Hamilton said that though the cases have the potential for overlapping material in the technical details of how an actor can manipulate the platform, SC Innovations also took into account the claims of the cases.
"Any potential overlap in the factual matter is circumscribed by the distinct nature of the legal claims between the prior and current representations," Hamilton wrote. "In SC Innovations, the court relied not just on the overlap in the factual matter but also on the fact that at least one of the prior representations involved allegations that Uber violated antitrust law."
The judge also found that WhatsApp has not demonstrated that any King & Spalding attorney has access to confidential information, since the firm's general counsel and his staff stores and blocks access to the relevant files.
Regardless, Hamilton decided that WhatsApp failed to demonstrate that the documents were material. "Even assuming the documents contain information that is not publicly known and thus confidential, plaintiff has not demonstrated how the technical information is material—i.e., directly in issue or of critical importance—to its current claims, as opposed to general knowledge," she wrote.
Cooley's Rhodes declined to comment on the ruling, and King & Spalding's Joseph Akrotirianakis and Aaron Craig did not immediately respond to a request for comment Tuesday evening.
Read more:
King & Spalding Resists WhatsApp's 'Drastic' Disqualification Bid in Cyber Case
Judge Won't 'Destroy' King & Spalding Billing Records the Firm Wants to Pull Back
FBI Chief of Staff's King & Spalding Income Revealed in New Disclosure
FBI Director Wray Banked $14M From King & Spalding Since 2016
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