Case 1:23-cv-00758-JLH-SRF Document 140 Filed 09/10/24 Page 1 of 7 PageID #: 2998
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`REDACTED - PUBLIC VERSION
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`Original filing date: September 3, 2024
`Redacted filing date; September 10, 2024
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`

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`Case 1:23-cv-00758-JLH-SRF Document 140 Filed 09/10/24 Page 2 of 7 PageID #: 2999
`Case 1:23-cv-00758-JLH-SRF Document 140 Filed 09/10/24 Page 2 of 7 PagelD #: 2999
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`Dear Judge Fallon:
`
`In connection with the discovery conference scheduled for September 11, 2024, Orca seeks the
`Court’s assistance with the following issues: (1) Wiz’s deficient response to Orca’s Interrogatory
`No. 2 and withholding of relevant source code; (2) Wiz’s deficient response to Orca’s Interrogatory
`No. 6 and withholding of prior source code versions, git history information, and jira tickets
`showing the developmentof the accused functionalities;! (3) Wiz’s deficient responses to Orca’s
`Second Set of RFPs (Nos. 84-90); and (4) Wiz’s refusal to produce documents that hit on Orca’s
`“cloud native” ESI search term.
`
`Status of Discovery: This is a patent infringement case between two cloud security unicorns with
`competing Cloud Native Application Protection Platforms (CNAPPs). Orcaasserts six patents
`against Wiz andits platform, which Orca understands is Wiz’s only product. And Wizasserts five
`patents against Orca’s platform. To date, Orca has produced the entirety of its source code,
`including prior versions and git history, thousands of technical documents, and over 1.1 million
`pages of email and slack documents.
`In contrast, Wiz has repeatedly ignored its discovery
`obligations and this Court’s orders governing discovery, seizing on every possible opportunity for
`delay. For example, Wiz produced only self-selected portions of source code, stripped of prior
`versions that would show how Wiz developed the accused functionalities. As another example,
`Wiz produceda limited collection oftechnical documents, which likewise fails to adequately show
`how Wiz developed the accused functionalities and its asserted patents’ alleged inventions. As a
`third example, Wiz produced a mere fraction of ESI discovery responsive to priority custodian
`search terms (16%), even though the Court ordered Wiz to substantially complete that production
`last month. D.I. 106. Orca regrets that it has had to bring multiple discovery issues before the
`Court (D.I. 95, 108, 120, 129), but there is no indication Wiz’s obstructionist behavior will cease,
`absent Court intervention.
`
`Wiz’s deficient response to Interrogatory No. 2 and withholding of relevant source code:
`Wiz should be ordered to supplementits response to Orca’s Interrogatory No. 2 to identify source
`code modules for the Accused Product’s accused functions that implement, use, or relate to
`agentless scanning identified in Orca’s infringement contentions (the “Accused Functionalities”),
`and makethat source code, includingall versions of such code, available for inspection.
`
`Orca’s Interrogatory No. 2 asks Wiz to identify source code modules used for the Accused
`Functionalities. Wiz’s response invokes Rule 33(d), cites documents that describe, at a high level,
`that
`REDACTED
`and refers to the entirety of “the source code
`produced by Wiz,” without any elaboration. Ex. A at 10-12. Wiz’s responseis deficient becauseit
`neither shows nor confirms that Wiz produced code for the functionalities charted in Orca’s
`infringement contentions. Ex. B at 2-4. And, in correspondence, Orca identified a targeted list of
`features described in Wiz’s documents and charted in Orca’s infringement contentions, which it
`asked Wiz to address in a supplemental response. Jd. To no avail.
`
`Wiz refuses to provide a complete response to Interrogatory No. 2 because it contends the Court
`denied Orca’s request for “complete source code.” D.I. 62. But the Court’s earlier order did not
`
`Wiz recently supplemented its responses to Interrogatory Nos. 1, 7, and 12, and Orca has
`1
`removedthose interrogatories from thisletter.
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`Case 1:23-cv-00758-JLH-SRF Document 140 Filed 09/10/24 Page 3 of 7 PageID #: 3000
`Case 1:23-cv-00758-JLH-SRF Document 140 Filed 09/10/24 Page 3 of 7 PagelD #: 3000
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`The Honorable Sherry R. Fallon
`September 3, 2024
`Page 2
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`address Interrogatory No. 2, was issued “without prejudice” to subsequent code-related requests,
`and issued before Wiz asserted its own counterclaims, patents, and allegations of copying, putting
`the developmentofits product and alleged inventions at issue.
`/d.; D.I. 124 at Answer 9] 14-16,
`19-25; id. at Counterclaims 9] 16-28. Further, Orca is not seeking Wiz’s “complete source code”
`(id.), or “irrelevant” code unrelated to accused features, as Wiz contends. D.I. 60 at 3. Orca seeks
`source code relating to Wiz’s platform’s accused agentless scanning functionality. That this
`functionality relates to multiple features in Wiz’s platform is no surprise—it is the core of Wiz’s
`product (muchlike Orca’s platform’s patent-practicing SideScanning™functionality). That fact
`doesnot relieve Wiz ofits obligation to answer Orca’s discovery requests. Also, in correspondence
`and meet and confers, Orca repeatedly asked Wiz to identify functions that it contends are not
`related to the accused agentless scanning, so Orca could limit its code-related requests to avoid
`such functions. Ex. C at 21 (“To the extent there are other features that Wiz contends are ‘not
`relevant’ to Orca’s claims or Wiz’s counterclaims, please identify them so that we can consider
`narrowing our requests to exclude any such allegedly irrelevant features or functionalities.”); id.
`at 17 (“If there are other componentsor services that Wiz contends are not accused by Orcain this
`case, we ask again that you identify them.”); Ex. D at 1-2 (repeating Orca’s request that Wiz
`“identify any specific functionality that is not either accused of infringement or relevant to Wiz’s
`own counterclaims”). Wiz identified two, both of which, contrary to Wiz’s claims, are relevant.
`First, Wiz identified its “Supply Chain Security” (D.I. 60 at 3), a product that Wiz advertises as
`using “agentless visibility” “to detect vulnerabilities, misconfigurations, and exposed secrets.”
`https://www.wiz.io/solutions/supply-chain-security. That is the Accused Functionality. Second,
`Wiz identified its “Runtime Sensor,” contending that the Runtime Sensoris irrelevant becauseit
`is agent-based. Ex. F at 3. But Wiz offers its Runtime Sensor as a feature used with agentless
`scanning, and Wiz’s combination of agentless and agent-based features is within the scope of
`Orca’s claims. For example, Orca charted Wiz’s agentless scanning as infringing independent
`claim 1 of the ’326 patent, and Wiz’s Runtime Sensoras infringing dependentclaim 6. Ex. E at 10-
`17, 112-115 (Orca’s ’326 Patent Preliminary Infringement Contentions).
`
`Furthermore, Wiz’s representations to the Court that there are many functions in the Accused
`Product not related to the Accused Functionalities are contradicted by Wiz’s interrogatory
`responses. Orca’s Interrogatory No.
`1 asked Wiz to “Identify each Accused Product and
`componentrelated to the Accused Functionalities of any Accused Product.” Ex. A at 7-9. Wiz’s
`response invokes Rule 33(d), stating “What Wiz understands to be the Accused Product(s) may be
`found in” WIZ_00032970, which is a documentthat
`REDACTED
`. Id. at 7-
`9; Ex. J. Wiz should not be permitted to skirt its obligations to provide complete responses to
`Orca’s interrogatories by telling Orca that every feature in the Accused Product relates to the
`Accused Functionalities, while telling the Court the opposite.
`
`Orca respectfully requests that Wiz be ordered to identify and produce source codefor all Accused
`Functionalities—e.g., the features that Orca specifically identified in its infringement contentions
`and May 20letter (Ex. B at 3-4)—including Wiz’s Supply Chain Security feature, Runtime Sensor,
`and any other features relating to or using Wiz’s agentless scanning. See, e.g., Ameranth, Inc. v.
`Pizza Hut, Inc.,2013 WL 636936,at *7 (S.D. Cal. Feb. 20, 2013) (ordering source code production
`
`

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`The Honorable Sherry R. Fallon
`September 3, 2024
`Page 3
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`for functionalities identified in infringement contentions).”
`
`Wiz’s deficient response to Interrogatory No. 6 and withholding of relevant documents: Wiz
`should be ordered to supplement its response to Orca’s Interrogatory No. 6 and producethe
`documents relating to the Accused Functionalities’ developmentand operation it is withholding.
`
`Orca’s Interrogatory No. 6 asks Wiz to describe, inter alia, the circumstances surrounding the
`development of the Accused Functionalities, and to identify the documents pertinent to that
`development and the people who were involved in same. Wiz’s responseto Interrogatory No.6 is
`deficient because it once again merely invokes Rule 33(d) and then cites documents that fail to
`provide responsive information. Wiz should be ordered to supplementits response to address these
`deficiencies and to produce the development-related documents it
`is obligated to identify,
`including prior source code versions,git history information, andjira tickets.
`
`Source code development history: Wiz should be ordered to produceprior versions of the source
`code for the Accused Functionalities from 2020 to the present, and the git history for that code.
`Wiz already produced two versionsof its code, one from May 30, 2023, and one from April 22,
`2024, which it alleges is the “relevant code.” D.I. 60 at 4. But Wiz refuses to produce any other
`versions or change logs(“git history”’) for its code, even thoughgit history is stored with code and
`shows whenfeatures and functions were added, modified, or altered, including through engineers’
`notes and comments. This information is relevant, discoverable, and routinely required to be
`produced in patent cases involving accused products implemented in source code. See, e.g.,
`ALFIP Holdings, Inc. v. Rutherford Cnty., Tennessee, No. 3:19-CV-00714, 2021 WL 6498853,
`at *6 (M.D. Tenn. Feb. 5, 2021) (ordering production of “source code revision history”). Further,
`Wiz’s git history is of particular importance here because Wiz has failed to produce other
`documents describing the operation, development, or authorship of its source code. See Ex. F at
`12-13
`(explaining Wiz has produced no documents describing its
`code);
`see
`also
`RoboticVISIONTech, Inc. v. ABB Inc., C.A. No. 22-1257, D.I. 124 (D. Del. May 6, 2024) at 4
`(attached as Ex. K, recognizing “git mirrors [] show the date and person responsible for every
`change to ... code” and thus can “explain the development or authorship of [] source code”). And
`Wiz put the timing and developmentofits platform directly at issue with its June 4 answer and
`counterclaims, including its assertions that Wiz did not engage “in any actionable copying of
`[Orca]” and that Orca copied Wiz’s functionalities dating back to 2021. D.I. 124 at Answer4 14-
`16, 19-25; id. at Counterclaims §] 16-28. Wiz should not be permitted to withhold discovery
`
`In its May 17 Order, the Court indicated that subsequent source code-related requests
`should address burden and proportionality. D.I. 62. Orca’s request is neither burdensome nor
`disproportionate. Because Wiz must already know what source code relates to the Accused
`Functionalities, the identification and production of such code should be straightforward. Indeed,
`Wiz has not articulated any burden to collecting or producing it. The requested discovery is
`proportional to the needs of this case at least because the amount in controversy is vast, as are
`Wiz’s resources—Wiz’s revenue from the Accused Product for 2024 is estimated at over
`$225 million, Wiz announcedearlier this year that it had raised $1 billion in funding,and after that
`announcement, it was reported that
`REDACTED
`. See Fed. R.
`Civ. P. 26.
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`

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`Case 1:23-cv-00758-JLH-SRF Document 140 Filed 09/10/24 Page 5 of 7 PageID #: 3002
`Case 1:23-cv-00758-JLH-SRF Document 140 Filed 09/10/24 Page 5 of 7 PagelD #: 3002
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`The Honorable Sherry R. Fallon
`September 3, 2024
`Page 4
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`Indeed,
`relevant to the timing of its product development and the parties’ claims and defenses.
`Wiz has produced documentsindicating Wiz’s source code development, including development
`of the Accused Functionalities, was motivated by copying Orca. See, e.g., WIZ0005013 (feature
`request
`listing
`REDACTED
`); WIZ_0005090
`REDACTED
`); WIZ_0016844
`; WIZ_0018678 (“
`REDACTED
`
`REDACTED
`
`»),
`
`Orca’s request also is commensurate with Wiz’s demand for “all versions and builds” of Orca’s
`Platform, which Orca already produced. See D.I. 58 at 3. And Wiz has notidentified any burden
`with collecting prior source code versions and git history information, and does not dispute that it
`could be produced using a simple export command. Given Wiz’s resources and the stakes of this
`case, Wiz should produceit. See supra at n.2; Fed. R. Civ. P. 26(B)(1).
`
`Jira tickets: The Court’s May 17 Order ordered Wiz to produce relevant and responsive
`information from its JIRA database. D.I. 62. On May 24, Wiz produced approximately 11,000
`JIRA tickets having the prefix “WZ” followed by a number. Those numbers indicated that there
`were at least 40,000 JIRA tickets having the same prefix, which appear to evidence Wiz’s use of
`search termsto filter its JIRA ticket results. When Orca asked Wiz to identify such search terms,
`so Orca could identify additional terms pursuant to paragraph 5.b of the Court’s Default Standard
`for Discovery, Wiz denied that any search terms were used but refused to explain how it arrived
`at the narrowedset of JIRA tickets it produced. Orca also asked Wiz to confirm it producedall
`plainly relevant documents, such as oneslabeled “Top5-Product_Compete_Orca.” Ex. Gat 2. Wiz
`ignored Orca’s requests, and Wiz has not produced any additional JIRA tickets.
`
`On August 30, Wiz provided an initial production of emails confirming Orca’s suspicion that Wiz
`is unjustifiably withholding relevant JIRA tickets. For example, one email discusses “REDACTED
`,” an accused and charted functionality, and refers to a JIRA ticket
`(WZ-6346), while expressly stating that the “
`REDACTED
`” WIZ_0045472. Yet Wiz did not produce
`this JIRA ticket. Another example is an email referencing unproduced JIRA ticket WZ-4186 and
`discussing REDACTED anotheraccused functionality. WIZ_0038376 (email referring to WZ-
`4186). That emails states,
`REDACTED
`Id. at 3. But again, Wiz has not producedthe referenced JIRA
`ticket. As a third example, Wiz did not produce Jira ticket BESTSE-35, titled “REDACTED
`.” WIZ_0056835. The email referring to that
`JIRA ticket indicates that Wiz had prior knowledge of Orca’s patents, and Wiz was actively
`discussing those patents with prospective customers. Wiz cannot withhold such JIRA tickets, or
`any other JIRA tickets pertaining to the parties’ claims and defenses, including Orca’s claims of
`willful infringement and allegations that Wiz copied and built its platform on Orca’s patented
`technologies. Wiz should be ordered to produce all remaining JIRA tickets or, at a minimum,
`ordered to produce JIRA tickets hitting on ten search termsto be identified by Orca.
`
`Wiz’s Deficient Responses to Request for Production Nos. 84-90: On March 28, 2024, Orca
`served a limited set of RFPs directed to Wiz’s communications with, valuations of, and potential
`acquisition, partnership, or collaboration with ThreatOptix. Ex. H. ThreatOptix is a cloud security
`
`

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`The Honorable Sherry R. Fallon
`September 3, 2024
`Page 5
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`company that provides functionality expressly integrated into Orca’s patent-practicing platform,
`and Orcais its sole customer. Wiz improperly refuses to produce responsive documents because
`the technology Orca integrated from ThreatOptix is agent-based. As discussed above, however,
`agent-based technology used with agentless technology, as with ThreatOptix, is directly relevant
`to Orca’s claims. Also, Wiz’s valuation of and discussions with ThreatOptix are relevant to
`damages, e.g., to Wiz’s valuation of other cloud security products. See e.g., E-Contact Techs.,
`LLC v. Apple, Inc., No. 1:12-cv-471, 2013 WL 12143967, at *3 (E.D. Tex. Feb. 6, 2013) (finding
`comparable technology valuation relevant to damages). Wiz’s objections also are irreconcilable
`with its broad discovery requests to Orca. Wiz insists that Orca produce documentsrelating to any
`cloud security competitor. See, e.g., Wiz RFP No. 54; Ex. F at 3; Ex. C at 2, 4. Although that
`request is overbroad, by Wiz’s own assertions of relevance, Wiz must produce documentsrelating
`to ThreatOptix, and Wiz hasnotidentified any burden ofcollecting or producing such documents.
`
`Wiz’s Refusal to Collect and Produce Documents for the “Cloud Native” Search Term:
`Pursuant to the stipulated ESI Agreement (D.I. 71), the parties exchanged Priority ESI Requests
`for four custodians on June 11, 2024. The only disputed term from that exchange is Wiz’s refusal
`to produce documents responsive to Orca’s “cloud native” search term: (((cloud w/5 (native OR
`security)) OR platform) w/15 (invest* OR profit* OR fund* OR venture OR market* OR demand
`OR compet* OR financ* OR revenue* OR sale* OR purchase* OR acqui* OR merg* OR cost*
`ORstartup OR project* OR forecast* OR seed OR “series a” OR “series b” OR margin* OR
`milestone* OR price* ORpricing OR calculat* OR discount*)). This term is directed at the Orca
`and Wiz Accused Products—which are both CNAPP products—andrelated financial, investment,
`and market information about same.
`
`Wiz argues that certain words in the search term relate to potential mergers, acquisitions, or
`investments that Wiz says are not relevant. Wiz is wrong. Such informationis directly relevant to
`damages,as well as Orca’s defenses to any claim of damages based on Wiz’s counterclaim patents,
`because it seeks relevant information about Wiz’s financial estimates and the footprint in the
`marketplace ofthe intellectual property in dispute. See Prism Technologies LLC v. Sprint Spectrum
`L.P., 849 F.3d 1360, 1375-76 (Fed. Cir. 2017) (“A patentee must carefully tie proof of real
`damages to the claimed invention.”); VirnetX, Inc. v. Cisco Systems, Inc., 767 F.3d 1308, 1326-
`1327 (Fed. Cir. 2014) (“[A] reasonable royalty analysis requires a court to ... carefully tie proof of
`damagesto the claimed invention's footprint in the market place.”). Wiz also objects that a 60,000
`document hit count from running the “cloud native” search term against four custodians is
`burdensome. However, during a meet and confer, Wiz agreed that Orca’s revisions to the “cloud
`native” term reasonably reduced the hit counts, such that its sole remaining objection was to
`relevance. See Ex. I at 1-2. Then, two days later, Wiz reversed course, resurrecting its hit count
`objection. Jd. But, as Wiz argued to support its overbroad requests hitting on more than 180,000
`total documents, “the overall burden of the Requests is the more important consideration” than for
`individual terms. Jd Indeed, one of Wiz’s individual search terms had more than 94,000 hits
`alone, and Wiz’s request acrossall search terms resulted in over 180,000 hits; 30,000 more than
`Orca’s search terms.
`Indeed, even when Orca’s “cloud native” term hit count is addedto the hit
`count for all of Orca’s search terms,the total hit count for Orca’s termsisstill lower than the total
`hit count for Wiz’s search terms, which Orca agreed to and applied.
`Jd. Wiz should produce
`documents hitting on Orca’s “cloud native” search term.
`
`

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`Case 1:23-cv-00758-JLH-SRF Document 140 Filed 09/10/24 Page 7 of 7 PageID #: 3004
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`The Honorable Sherry R. Fallon
`September 3, 2024
`Page 6
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`Respectfully,
`
`/s/ Rodger D. Smith IT
`
`Rodger D. Smith II (#3778)
`
`Enclosures
`ce:
`All Counsel of Record (via electronic mail)
`
`