[00:00:15] Speaker 02:
Good morning, Your Honor, and may it please the court.

[00:00:17] Speaker 02:
My name is Caroline DeSalle and I represent the plaintiffs of Helens.

[00:00:20] Speaker 02:
I'd like to reserve two minutes for rebuttal, please.

[00:00:23] Speaker 02:
This case concerns defendants' exploitation of California-based U.S.

[00:00:28] Speaker 02:
technology companies' products and services

[00:00:30] Speaker 02:
to develop spyware and deploy it against unsuspecting targets, including the journalists represented here.

[00:00:37] Speaker 02:
Despite the substantial local interest in this case, the uncontested application of US and California law to the case, and the fact that defendants were already litigating related cases in this forum, the district court dismissed it for forum nonconvenience.

[00:00:51] Speaker 02:
That was an abuse of discretion.

[00:00:53] Speaker 02:
The district court committed a foundational error in failing to afford plaintiffs due deference with respect to their choice of forum.

[00:00:59] Speaker 02:
And that error skewed its analysis under the relevant private and public interest factors.

[00:01:05] Speaker 02:
Rather than defer to plaintiffs, the district court deferred to defendants at every single turn.

[00:01:10] Speaker 02:
Starting with the first public interest factor, the district court contradicted explicit and quite specific statements by the U.S.

[00:01:17] Speaker 02:
government.

[00:01:18] Speaker 02:
It illogically counted Apple's interest in this case against plaintiffs, and it even made up arguments on defendants' behalf in concluding that there was no local interest in this case.

[00:01:27] Speaker 01:
So what effect is there on your argument with the Apple litigation being dismissed?

[00:01:33] Speaker 02:
Thank you, Your Honor.

[00:01:33] Speaker 02:
I think that the fact that the Apple litigation was dismissed underscores the district court's error in weighing the fact that Apple had litigated its case in this forum against the local interest here.

[00:01:47] Speaker 02:
The district court concluded that to the extent California has an interest in protecting companies based here against the kinds of unlawful conduct committed by defendants, that Apple adequately represented that interest in this forum.

[00:02:00] Speaker 02:
And that's just clear error.

[00:02:02] Speaker 02:
There is no requirement that other litigants, that there be no other litigants who can adequately represent an interest.

[00:02:10] Speaker 01:
What I thought was significant, and please correct me if you think I'm wrong or see this differently, was that Apple, first of all, is headquartered in the district.

[00:02:19] Speaker 01:
So they are resident, not just in the United States, but in the very district at issue.

[00:02:22] Speaker 01:
And then they voluntarily dismissed their case because of the difficulty of litigating it there and that it couldn't go forward because it was not a convenient forum.

[00:02:31] Speaker 01:
So that seems pretty significant for the analysis of whether these plaintiffs who, we have one U.S.

[00:02:38] Speaker 01:
citizen and two residents, but none of whom are residents in the Northern District of California.

[00:02:42] Speaker 01:
So how, I know you're saying that Apple supports you, but how do you get around that?

[00:02:47] Speaker 02:
Your honor if I may clarify Apple did not dismiss move to voluntarily dismiss its case because it considered the forum inconvenient for purposes of this litigation Apple moved to voluntarily dismiss its case because

[00:03:00] Speaker 02:
the risk of exposing the developments in its own threat intelligence program through discovery to opponents in this case, to NSO group, had simply become too great to justify the ongoing litigation.

[00:03:14] Speaker 02:
And Apple would have had to expose that information to demonstrate damages, et cetera.

[00:03:20] Speaker 02:
And so that was a calculation that Apple made, really just a cost benefit calculation with respect to that litigation.

[00:03:25] Speaker 02:
It maintained

[00:03:26] Speaker 02:
that the litigation was meritorious, but ultimately concluded that the risk of exposure through discovery was too great.

[00:03:33] Speaker 02:
That doesn't undermine the fact that there is other related litigation in this district, which speaks to the private interest factors here and the convenience of litigating this case in this forum.

[00:03:43] Speaker 02:
The WhatsApp litigation is proceeding apace in this forum, and in fact, I believe Council for NSO Group are currently at a pretrial conference

[00:03:53] Speaker 02:
in the lead up to a damages trial in that case, just demonstrating the clear practical ease with which NSO group can provide witnesses and evidence, and the court can consider the relevant issues in this forum.

[00:04:06] Speaker 02:
But going back to the district court's error with respect to the local interest here, the district court flatly contradicted, expressed explicit statements by the US government about its interest in this very case.

[00:04:19] Speaker 02:
In November of 2021, the United States government added NSO Group, the defendant here, to the entity list because, and I quote, it had engaged in activities contrary to the national security or foreign policy interests of the United States by developing and supplying spyware

[00:04:34] Speaker 02:
to foreign governments that use this tool to maliciously target journalists and embassy workers.

[00:04:39] Speaker 01:
So how does that make specifically the Northern District of California the appropriate forum as opposed to anywhere else in the United States?

[00:04:48] Speaker 02:
Your Honor, the question here is really whether or not Defendants Preferred Forum Israel is more convenient than California, than plaintiffs chosen forum.

[00:04:57] Speaker 02:
This court has considered in multiple instances the U.S.

[00:05:01] Speaker 02:
interests in a case to establish the local interest in this forum.

[00:05:04] Speaker 02:
And I'll point the court to a few cases there.

[00:05:07] Speaker 02:
The Cooper versus Tokyo Electric case considered the United States interest in compensating its military service members as establishing a local interest in that case in the district of Hawaii there, I believe.

[00:05:20] Speaker 02:
Neural STEM also establishes that U.S.

[00:05:23] Speaker 02:
interests can establish a local interest in the case.

[00:05:25] Speaker 02:
Uh, and the auto candies case from the 11th circuit, uh, also supports that conclusion, but there is a California interest here as well.

[00:05:32] Speaker 02:
Uh, and please don't take my word for that.

[00:05:34] Speaker 02:
Look to the amicus brief submitted by Microsoft, Google and other technology companies.

[00:05:39] Speaker 02:
Establishing the harms that those technology companies suffer as the result of defendants deliberate sustained attacks on their infrastructure to develop exploits and then use those exploits to deliver spyware to to the targets and So even if there wasn't specifically a California interest when we're dealing with forum non-convenience in the context of somebody say in Florida says I don't want to be in California and rather be in Florida and

[00:06:06] Speaker 04:
then you look at relative areas of the districts.

[00:06:09] Speaker 04:
But here, does it matter that they're saying, I want to be in a different country, the defendant says, and therefore you say, does the United States have an interest in it, regardless of whether the specific forum is California, Texas, Florida, and so it makes a difference whether the defendant is saying the other forum should be another country or another state or another jurisdiction.

[00:06:30] Speaker 04:
Am I right?

[00:06:30] Speaker 02:
Exactly right your honor and that really underscores the point that the burden is on defendants throughout the analysis to establish that their preferred alternative forum Is strongly favored by the relevant public and private so how specific do you think they need to be so?

[00:06:45] Speaker 01:
Here you are at a motion to dismiss stage, and they know where they are located and their witnesses are located They make that representation that they don't know that none of the plaintiffs are in this district They can make that representation

[00:06:57] Speaker 01:
And you argue that the district court shifted the burden by saying that the plaintiffs didn't show that there were witnesses in the forum.

[00:07:04] Speaker 01:
But it seems that at this stage of the litigation, once the defendants make the prima facie showing of where everything is located, if plaintiffs come forward with nothing, then that is the evidence that all of the witnesses are elsewhere.

[00:07:18] Speaker 01:
And I don't see that as burden shifting.

[00:07:20] Speaker 01:
I just see it as a reality of the stage of the litigation.

[00:07:25] Speaker 01:
If you don't respond and say, no, we have witnesses here, I don't see how the district court was wrong to note that.

[00:07:32] Speaker 02:
Respectfully, Your Honor, that's not an entirely accurate characterization of the record before the district court.

[00:07:37] Speaker 02:
Defendants did not identify the specific witnesses that they would seek to call in this case.

[00:07:42] Speaker 01:
So how specific do they have to be at that stage?

[00:07:44] Speaker 01:
I mean, they say we are located elsewhere and all of our employees are located elsewhere.

[00:07:49] Speaker 01:
Are they supposed to name individuals at that point?

[00:07:52] Speaker 02:
Respectfully, Your Honor, yes, this Court has made quite clear that there is an evidentiary burden on defendants with respect to that factor to demonstrate not only that there are actual witnesses that it would seek to call from its own country or wherever it argues is inconvenient,

[00:08:06] Speaker 02:
to be hailed from, but also that they have to establish the materiality and importance of those witnesses to the case.

[00:08:15] Speaker 02:
And here, defendants did none of that.

[00:08:18] Speaker 01:
I see my time is... Well, before you run out of time, I want to ask you about the issue with the Apple servers.

[00:08:23] Speaker 01:
That seems like pure speculation, that the Apple servers, that some were located in that district and were involved in the activities that are the basis of the complaint.

[00:08:31] Speaker 01:
Is there anything other than GE apples in northern district and they have some servers?

[00:08:37] Speaker 02:
Yes, your honor as the plaintiffs pleaded in their amended complaint, which on a motion to dismiss the district court was required to credit and and so group provided no evidence to detract from any of those allegations.

[00:08:50] Speaker 02:
But yes, plaintiffs carefully explained the way that the exploits that were relied on to target them relied on the direct, deliberate, and sustained subversion of Apple infrastructure in California, not only to develop those exploits, but then to use them to direct those attacks against the plaintiffs.

[00:09:11] Speaker 02:
And if you look to the WhatsApp litigation, where there have been more evidentiary findings as that case proceeded in this court,

[00:09:16] Speaker 02:
It has become clear through discovery that servers that NSO Group maintained then did redirect traffic through WhatsApp servers in that case to deploy the attacks against the WhatsApp users there.

[00:09:29] Speaker 02:
So there are plenty of factual allegations in the amended complaint to show that Apple was a crucial location of these attacks.

[00:09:37] Speaker 02:
Really, the attacks were grounded from Apple headquarters.

[00:09:40] Speaker 02:
And that establishes, again, the local interest in this case.

[00:09:44] Speaker 04:
As well as local witnesses.

[00:09:45] Speaker 00:
Exactly your honor, and that is another point that the district or delighted so we Yes, we would need to rely on third-party evidence from Apple in this case Hey, I do have another question, and I'll ask to give you some time on rebuttal because we're taking you over That one actually wanted to jump back to the threshold question of the level of deference that was owed to plaintiffs choice and

[00:10:09] Speaker 00:
It does seem to me that the district court never actually acknowledged that there was an American citizen plaintiff or two American US resident plaintiffs and it seems that that the district court treated all the plaintiffs as what we called in

[00:10:31] Speaker 00:
Boston Telecommunications as what truly foreign plaintiffs.

[00:10:37] Speaker 00:
And Boston Telecommunications said, well, seemed to be drawing almost three levels of deference.

[00:10:46] Speaker 00:
There's the US-based plaintiff or US resident or citizen suing in the state in which they live.

[00:10:54] Speaker 00:
then there's the U.S.

[00:10:56] Speaker 00:
citizen or resident suing in a state in which they don't live, and then there's the truly foreign plaintiff.

[00:11:04] Speaker 00:
Is there any other case law besides Boston telecommunications that seems to draw that distinction, or how much should we consider that to be not recognizing that to be an abuse of discretion in itself?

[00:11:19] Speaker 02:
So the Cariano case as well as the Boston telecommunications case, excuse me,

[00:11:23] Speaker 02:
Both establish that failure to recognize the appropriate level of deference due to plaintiff's choice of forum is an abuse of discretion and therefore subject to reversal by this court.

[00:11:33] Speaker 02:
But the Boston Telecommunications case we believe is squarely on point with our case here.

[00:11:38] Speaker 00:
Thank you.

[00:11:39] Speaker 01:
All right.

[00:11:41] Speaker 01:
I will give you a couple minutes for rebuttal.

[00:11:49] Speaker 03:
Good morning, Your Honors.

[00:11:50] Speaker 03:
Paul Watford for the appellees.

[00:11:53] Speaker 03:
There are two basic questions presented by this appeal.

[00:11:56] Speaker 03:
The first is whether Judge Donato committed some sort of legal error in conducting his analysis.

[00:12:02] Speaker 03:
The second is whether he engaged in a clear abuse of discretion in weighing the public and the private interest factors in light of the record that the parties put before him.

[00:12:11] Speaker 03:
Let me start with the legal question.

[00:12:13] Speaker 03:
And Judge Son, I'll turn directly to the question you just posed to my friend on the other side.

[00:12:18] Speaker 03:
Judge Donato did not make an error

[00:12:21] Speaker 03:
the level of deference owed to the plaintiff's choice of form here because none of the plaintiffs was a resident of the Northern District of California.

[00:12:29] Speaker 03:
That is the key factor that determines whether less deference is owed to the plaintiff's choice of form or whether that full, heightened level of deference is... But what role, going back to the question that I had asked, what role does it play

[00:12:44] Speaker 04:
When the defendant is from another country and is seeking a forum non-convenience argument based on their being in another country, I think your argument is correct if we have two defendants in the United States and one says, I have no connection with the forum district.

[00:12:58] Speaker 04:
I'm in Florida or something.

[00:12:59] Speaker 04:
But does it matter if they're from another country?

[00:13:02] Speaker 03:
No, Your Honor.

[00:13:03] Speaker 03:
We have plenty of cases in which the defendants are located overseas, and the exact same rule applies.

[00:13:09] Speaker 03:
What the court is trying to get at in determining the level of deference

[00:13:13] Speaker 03:
is you start out with a presumption that, hey, the plaintiff has chosen this forum.

[00:13:17] Speaker 03:
Presumably, that means it's a convenient forum for everyone.

[00:13:21] Speaker 03:
That presumption is entitled to less weight, this court has said, when the plaintiff is not suing in his or her forum.

[00:13:29] Speaker 00:
But do you think, I mean, it seems clear to me that Boston Telecommunications drew a distinction between a US citizen or resident

[00:13:41] Speaker 00:
suing outside of their state of residence and what they call the truly, or I can't remember the exact word, foreign plaintiff.

[00:13:50] Speaker 00:
And then from the briefing, the answering brief, I don't see any acknowledgement of that distinction.

[00:13:56] Speaker 00:
And from reading the district court's order, it seemed to me that the district court really was treating all the plaintiffs here as if they were truly foreign.

[00:14:05] Speaker 00:
So can you point me to something, are you disagreeing with my reading of Boston Telecommunications or are you disagreeing with my reading of the District Court's order?

[00:14:13] Speaker 03:
I think I'm disagreeing a little bit with your reading of Boston Telecommunications because you're right that that is the one case, you asked my opponent

[00:14:23] Speaker 03:
There is no other case in which the court has made that kind of very granular distinction between levels of deference.

[00:14:30] Speaker 03:
In that case, however, what the court stressed was that the plaintiff at issue was both a U.S.

[00:14:36] Speaker 03:
citizen and a resident of the United States.

[00:14:38] Speaker 03:
That is not the case here.

[00:14:39] Speaker 03:
The U.S.

[00:14:40] Speaker 03:
citizen plaintiff that we're talking about is a resident of El Salvador.

[00:14:44] Speaker 03:
So the rule that Boston Telecom was articulating doesn't even apply in this case to begin with.

[00:14:49] Speaker 03:
But the more important point, I think, Your Honor, is that you're right that the court there seemed to set up these three levels of deference.

[00:14:57] Speaker 03:
Okay.

[00:14:59] Speaker 03:
My submission to you is that whatever the difference between the lesser deference that I truly form plaintiff gets and the lesser deference that a U.S.

[00:15:08] Speaker 03:
citizen... Or resident, right.

[00:15:11] Speaker 03:
Is of no moment here, because Judge Donato did not view this as a close case.

[00:15:15] Speaker 03:
He acknowledged that forum non-dismissals should be used sparingly, but what he said is that this case is tailor-made for a forum non-dismissal, and I'll get into why

[00:15:26] Speaker 03:
when you start to weigh the public and private interest factors, that's true.

[00:15:29] Speaker 00:
So one thing that I found confusing was that, and some of the other questions I've hit on this, but in, for example, in the Apple litigation, the district court said, you know, Apple alleges this hacking occurred against Apple's computers and servers, and in this state,

[00:15:51] Speaker 00:
My understanding is it's exactly the same hacking misconduct that is alleged in this case, but the court said, I don't think there's, I have no reason to believe that the misconduct at issue in this case occurred in California.

[00:16:04] Speaker 00:
There's no local interest.

[00:16:06] Speaker 00:
I'm not sure how you reconcile those.

[00:16:08] Speaker 03:
I think Judge Donato explained in his order in this case exactly why he viewed the two cases differently, and I think he was entirely right, Your Honor.

[00:16:16] Speaker 03:
In the Apple case, Apple, of course, was the plaintiff, was the party harmed,

[00:16:21] Speaker 03:
and the harm occurred to it in the Northern District of California.

[00:16:25] Speaker 03:
It was suing in its home district, right, for harm that occurred there.

[00:16:29] Speaker 03:
This case is exactly the opposite.

[00:16:31] Speaker 00:
Not just the harm, though, but the actual misconduct, the hacking occurred there, which is the same hacking at issue in this case, even if the harm sort of transpired elsewhere that the misconduct at issue seemed to actually have a locus in California.

[00:16:47] Speaker 03:
In the Apple case, yes, because Apple was the target of the defendant's conduct, allegedly, and that conduct occurred in the Northern District of California.

[00:16:59] Speaker 03:
of the defendant's conduct is allegedly against these Salvadoran journalists in El Salvador.

[00:17:05] Speaker 03:
That's where the misconduct occurred.

[00:17:07] Speaker 04:
But the plaintiffs say that they were harmed because of something that happened in the Northern District of California.

[00:17:14] Speaker 04:
And I'm thinking about it from a trial perspective that if we have US citizens or lawful US residents who have been harmed,

[00:17:21] Speaker 04:
Because of something that happened to a third party in the Northern District of California It's really hard a trial to get third parties from another district to come to your district So that's why you can sue them in the district where they are so they're within the subpoena power for trial that's why it made sense to me that the

[00:17:41] Speaker 04:
The US citizen plaintiff and the lawful resident plaintiffs would choose Northern California.

[00:17:49] Speaker 04:
Why shouldn't that be considered?

[00:17:50] Speaker 03:
Well it was considered by Judge Donato, Your Honor, and what he said was that the

[00:17:55] Speaker 03:
The relevance of the allegations in terms of Apple servers was of completely secondary importance to the plaintiff's claims.

[00:18:05] Speaker 03:
The plaintiff's claims, remember, are for hacking to their phones.

[00:18:08] Speaker 04:
But I thought he also said, and any interest that this district and California residents and even the U.S., they'll be taken care of in the Apple litigation, which is no longer with us.

[00:18:18] Speaker 03:
Right.

[00:18:18] Speaker 03:
But, Your Honor, the harm here is to the plaintiffs, not to Apple.

[00:18:22] Speaker 03:
Apple's not a party.

[00:18:24] Speaker 03:
The harm to them is that their phones were allegedly hacked, and that occurred in El Salvador.

[00:18:29] Speaker 04:
They need proof from the Northern District of California, that's within the Northern District of California, to prove how the defendant caused them harm.

[00:18:37] Speaker 03:
The allegation is that the defendants here developed the Pegasus software by using Apple servers, and I agree with you Judge Beatty, it's not even clear that the servers in question that Apple

[00:18:51] Speaker 03:
had were actually located in California.

[00:18:55] Speaker 03:
No, but it is alleged.

[00:18:56] Speaker 03:
Well, no, actually it wasn't, Your Honor, not in explicit terms.

[00:18:59] Speaker 03:
What they said was, obviously we don't know on information and belief.

[00:19:03] Speaker 03:
We think that Apple servers were used and Apple has some servers in California.

[00:19:08] Speaker 03:
That's the most that they said.

[00:19:09] Speaker 03:
But the more important point, Your Honor, and what Judge Donato stressed is that the deployment of the software

[00:19:18] Speaker 03:
occurred entirely in a foreign

[00:19:30] Speaker 01:
attacking the phones of foreign... So is there... The technical aspects of this have been murky to me, but it seems that what you're saying is Apple products and servers may have been involved in the development of Pegasus, but the plaintiff's claims are not based on the development of Pegasus, they're based on its deployment.

[00:19:52] Speaker 01:
And the deployment is not alleged to have occurred in the Northern District of California.

[00:19:56] Speaker 03:
I will point you to paragraph 43 of the amendment complaint.

[00:20:04] Speaker 03:
There are not a ton of allegations about this, but the one allegation that I would point Your Honors to

[00:20:10] Speaker 03:
is what the plaintiffs say.

[00:20:12] Speaker 03:
They say that malicious data caused the device to retrieve Pegasus, the software at issue, and other malicious data precipitating the Pegasus infection through a network of servers operated and or maintained by defendants, not by Apple.

[00:20:28] Speaker 03:
The allegation is that the servers that were used to deploy the attack occurred in El Salvador, where the plaintiffs were located.

[00:20:36] Speaker 03:
So you're right, Jet Simon, that the

[00:20:38] Speaker 03:
The allegation regarding Apple servers is part of the case.

[00:20:43] Speaker 03:
I'm not denying that.

[00:20:44] Speaker 03:
But it is a highly secondary part of the case.

[00:20:47] Speaker 03:
It is not the nub of the dispute.

[00:20:50] Speaker 03:
And what Judge Donato, the reason Judge Donato distinguished between the two cases is because in Apple, of course, that was the entirety of the case.

[00:20:56] Speaker 03:
And so it made sense, as you said, for the litigation to be based there.

[00:21:00] Speaker 03:
This litigation involves attacks on foreign journalists in a foreign country.

[00:21:05] Speaker 03:
by foreign actors.

[00:21:07] Speaker 03:
It is a completely different scenario from the standpoint of a forum non-convenience analysis.

[00:21:11] Speaker 01:
Would this case be different if it had been brought in Washington DC or in New York where two of the plaintiffs resided?

[00:21:21] Speaker 03:
Well, it's possible that the analysis could have been different.

[00:21:26] Speaker 03:
We would still be talking about one plaintiff out of 18 who lived in Washington DC.

[00:21:32] Speaker 03:
And that plaintiff is not a US citizen, the person who lived in DC.

[00:21:37] Speaker 03:
The analysis potentially could have been different, but the relevant analysis occurs at the forum level.

[00:21:42] Speaker 03:
It is not just the country writ large.

[00:21:45] Speaker 03:
So what Judge Natto properly focused on was the fact that, hey, I'm in the Northern District.

[00:21:50] Speaker 03:
That's where this case has been filed.

[00:21:52] Speaker 03:
None of these plaintiffs has any connection to the Northern District.

[00:21:55] Speaker 03:
None of them live here.

[00:21:56] Speaker 03:
None of them work here.

[00:21:57] Speaker 03:
None of them has ever set foot in the Northern District as far as the record shows.

[00:22:01] Speaker 03:
And the defendants, none of the defendants have any people here.

[00:22:04] Speaker 03:
We submitted a declaration from NSO's CEO that has said, we do no business in the Northern District of California.

[00:22:11] Speaker 03:
We have no offices there.

[00:22:13] Speaker 03:
All of our witnesses and evidence are in Israel.

[00:22:15] Speaker 01:
So the plaintiffs argue that that was not specific enough and that the district judge shifted the burden to the plaintiffs on the availability of witnesses and evidence.

[00:22:25] Speaker 01:
How do you respond to that?

[00:22:27] Speaker 03:
Our cases say, the court's cases say, that you do not have to get into the level of specificity that the plaintiffs are demanding.

[00:22:36] Speaker 03:
That it is, you do need to make an evidentiary showing, but we did that at SER 3 by submitting a declaration from NSO's CEO.

[00:22:44] Speaker 03:
And what the CEO said is that we have no offices here, we do no business here in the Northern District.

[00:22:50] Speaker 03:
All of our evidence and all of our witnesses are in Israel.

[00:22:54] Speaker 03:
There was no, I'm not sure what else we could have submitted to be more specific than that.

[00:23:00] Speaker 03:
Whatever witnesses and evidence we were going to put on would have come from Israel because that's where all of the evidence and the witnesses were.

[00:23:07] Speaker 01:
Well, they're arguing that there's case law that says you had to name specific witnesses.

[00:23:12] Speaker 03:
I don't think that that is the case, Your Honor.

[00:23:15] Speaker 03:
I cannot remember the specific case that I have in mind.

[00:23:18] Speaker 03:
But there actually was a case in which this court analyzed, like, yeah, how specific do you have to get?

[00:23:23] Speaker 03:
And what the court said was that you don't need to get into, well, here are the names of all of the witnesses.

[00:23:29] Speaker 03:
We've done all of the investigation to determine which evidence and which witnesses we would put on.

[00:23:34] Speaker 03:
Because at this preliminary stage of the case, that would sort of defeat the purpose of a forum non-analysis.

[00:23:40] Speaker 01:
Well, is it problematic that the district judge then couched it in terms of the plaintiffs not coming forward with witnesses in the district?

[00:23:48] Speaker 03:
I don't think so, Your Honor, and the plaintiffs have said that somehow the judge flipped the burden.

[00:23:54] Speaker 03:
I don't think that's what happened.

[00:23:55] Speaker 03:
I think, as you suggested in your questioning, the judge pointed out that, listen, I have a record in front of me that says that all of the

[00:24:02] Speaker 03:
defendants evidence and witnesses are in Israel there's no no contrary evidence to suggest that there's any presence of witnesses and evidence from the defendants in the northern district so let me turn to what the plaintiffs have and there's been no showing by the plaintiffs at all that any of their evidence or witnesses

[00:24:20] Speaker 03:
It would be in the northern district and as I said because none of them has any connection to the northern district We don't even have any suggestion that they've ever set foot in the northern district So when the defendant when the judge was doing the relative weighing of the conveniences I think it was entirely appropriate for the judge to point out that there's been no showing that the plaintiffs are going to have any evidence and

[00:24:40] Speaker 03:
here in the Northern District, and I know from the undisputed record that all of the evidence from the defendants is going to be in Israel.

[00:24:47] Speaker 03:
So there's really nothing for me to weigh the way the judge properly looked at it.

[00:24:54] Speaker 03:
The only other point I want to make about the Apple servers is that

[00:24:58] Speaker 03:
The judge did point out at ER 8 that the plaintiffs below never made any argument that they needed evidence to prove their case from Apple, from any third-party evidence from Apple, or that Apple servers were central to the forum non-analysis.

[00:25:15] Speaker 03:
So I would submit to you that the judge could not possibly have acted illogically or implausibly in not crediting or not putting more weight on a factor that the plaintiffs themselves below never even raised.

[00:25:28] Speaker 03:
unless the court has any further questions.

[00:25:31] Speaker 01:
Okay, thank you.

[00:25:42] Speaker 04:
I ask you to begin with a technological answer, and that is, do the plaintiffs contend that there was any use of Apple servers, regardless of where they may be located, was there any use of Apple servers in deploying the Pegasus software that ultimately caused the alleged injury?

[00:26:00] Speaker 02:
Yes, we do.

[00:26:01] Speaker 04:
And can you tell me where and what they allege?

[00:26:03] Speaker 02:
Yes.

[00:26:04] Speaker 02:
If I may quote you from our brief before the district court, the plaintiffs alleged in the amended complaint that defendants used Apple ID accounts to discover vulnerabilities in Apple software, probe Apple servers and services, and to test the software that defendants developed to infect iPhones with Pegasus.

[00:26:21] Speaker 02:
So that's the development piece of it.

[00:26:23] Speaker 02:
Plaintiffs then went on to explain that defendants and their clients then used Apple ID accounts to deliver Pegasus.

[00:26:29] Speaker 02:
through those exploits to Target's iPhones.

[00:26:32] Speaker 02:
The exploits used against plaintiffs known as kismet and forced entry relied on Apple ID accounts to send malicious data through Apple's iMessage service.

[00:26:40] Speaker 02:
and temporarily stored the Pegasus file on one of Apple's iCloud servers before delivery to a target's phone.

[00:26:46] Speaker 02:
So it is abundantly clear.

[00:26:47] Speaker 02:
We made it clear to the district court that we have alleged that defendants targeted Apple both in the development of the exploits and then the deployment of Pegasus through those exploits.

[00:26:57] Speaker 04:
And do you have a record site where that was?

[00:27:00] Speaker 02:
Yes.

[00:27:00] Speaker 02:
So that's at paragraph 43 of the amended complaint.

[00:27:03] Speaker 02:
I would point the court to paragraphs 40 through 45 for the full picture.

[00:27:06] Speaker 04:
And then the brief you're talking about to the district court.

[00:27:08] Speaker 02:
Yes, that's right up top in the introduction.

[00:27:13] Speaker 02:
And so, Your Honor, that speaks to the district court's error in failing to credit the well-pleaded allegations and plaintiffs' complaint on a motion to dismiss, as it was required to do.

[00:27:24] Speaker 02:
And it also speaks to the relevance of Apple to this case, as it was made abundantly clear through the briefing to the district court.

[00:27:31] Speaker 02:
I would just note that in almost every single case that defendants rely on,

[00:27:36] Speaker 02:
in arguing for affirmance of the district court's dismissal for forum non-convenience, there was pending litigation in the proposed alternative forum, and the exact opposite is true here.

[00:27:46] Speaker 02:
The courts have recognized the convenience of allowing litigation to proceed where there are related proceedings already underway, and the district court did repeatedly defer to defendants instead of to plaintiffs as it was required to do here.

[00:27:59] Speaker 01:
Thank you.

[00:28:00] Speaker 01:
Council, thank you both for your arguments this morning.

[00:28:02] Speaker 01:
They were helpful, and this case is submitted.