Case 1:23-cv-00758-JLH-SRF Document 141 Filed 09/10/24 Page 1 of 5 PageID #: 3157
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ORCA SECURITY LTD.,
`
`Plaintiff/Counter-Defendant,
`
`
`
`v.
`
`WIZ, INC.,
`
`
`
`Defendant/Counter-Plaintiff.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 23-758-JLH-SRF
`
`REDACTED
`PUBLIC VERSION
`
`WIZ, INC.’S LETTER TO THE HONORABLE SHERRY R. FALLON
` REGARDING DISCOVERY DISPUTE
`
`Frederick L. Cottrell, III (#2555)
`Kelly E. Farnan (#4395)
`Christine D. Haynes (#4697)
`RICHARDS, LAYTON & FINGER, P.A.
`One Rodney Square
`920 N. King Street
`Wilmington, DE 19801
`(302) 651-7700
`cottrell@rlf.com
`farnan@rlf.com
`haynes@rlf.com
`
`Counsel for Defendant Wiz, Inc.
`
`OF COUNSEL:
`
`Jordan R. Jaffe
`Lisa Zang
`Catherine Lacy
`Callie Davidson
`Alex Miller
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`(415) 947-2000
`
`Praatika Prasad
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`1301 Avenue of the Americas, 40th Floor
`New York, NY 10019-6022
`(212) 999-5800
`
`Dated: September 3, 2024
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 141 Filed 09/10/24 Page 2 of 5 PageID #: 3158
`
`Frederick L. Cottrell, III
`302-651-7509
`Cottrell@rlf.com
`
`September 3, 2024
`
`BY CM/ECF
`The Honorable Sherry R. Fallon
`U.S. District Court
`for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
`
`
`
`Re: Orca Security Ltd. v. Wiz, Inc.,
`C.A. No. 23-758-JLH-SRF
`
`Dear Judge Fallon:
`
`REDACTED PUBLIC
`VERSION
`
`Pursuant to the Court’s oral orders dated July 9 and 22, 2024 (D.I. 98, D.I 109), Defendant
`Wiz, Inc. (“Wiz”) seeks this Court’s assistance with the following issues: (1) Plaintiff Orca
`Security, Ltd.’s (“Orca”) deficient responses to Wiz’s Interrogatory Nos. 2 and 4; and (2) Orca’s
`deficient response to Wiz’s RFP No. 54.
`
`Background
`
`Orca’s strategy in this case was clear as of June 24, 2024 (D.I. 89 at 3) and continues to be
`clear now: to distract from its inability to back up its allegations or undermine Wiz’s
`counterclaims, Orca has put forth unsubstantiated claims that Wiz’s discovery has been deficient
`and dilatory. It is in fact Orca that is refusing to provide necessary discovery on basic items, and
`by consequence introducing further delay.
`
`Addressed here are Wiz’s long-standing requests for information about (1) an alleged
`meeting between the “Wiz founders” and Orca in May 2019 that Orca contends begets it baseless
`allegations of “copying;” (2) conception and reduction to practice of the alleged Orca inventions;
`and (3) documents regarding Orca’s competitors to its alleged practicing products.
`
`Orca’s Responses to Wiz’s Interrogatory Nos. 2 and 4:
`
`Wiz’s Interrogatory Nos. 2 and 4 seek information that is critical to claims and defenses in
`this case: Orca’s allegations about an alleged May 2019 meeting with “Wiz founders” (No. 2),
`and the conception and reduction to practice of Orca’s patents (No. 4). See Ex. 1. Wiz served
`these Interrogatories over 6 months ago, met and conferred with Orca at least three times about
`Orca’s deficient responses, and exchanged numerous emails about those responses. Wiz even
`included a detailed explanation of Orca’s deficient responses in the parties’ joint status report on
`June 24, 2024. D.I. 89 at 3-4. Still, Orca has refused to sufficiently respond to these
`Interrogatories.
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 141 Filed 09/10/24 Page 3 of 5 PageID #: 3159
`
`The Honorable Sherry R. Fallon
`September 3, 2024
`Page 2
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`Interrogatory No. 2 asks Orca to provide evidentiary support for its allegation in its
`complaint that a May 2019 meeting between Orca and the “Wiz founders” took place, leading to
`Wiz’s alleged copying of Orca. D.I. 15, ¶ 14. Because Orca alleged that the Wiz founders “left
`their lucrative careers at Microsoft” to create a company that is “nothing more than the
`misappropriation of Mr. Shua’s ideas and Orca’s technology as presented to Wiz founders before
`they formed Wiz and sought to launch a copycat competitor to Orca” (id.), Wiz specifically served
`this Interrogatory to request the purported evidence for these grandiose allegations. Accordingly,
`this Interrogatory asks what evidence supports the allegation, including what was disclosed at the
`alleged meeting, whether any of that purportedly highly sensitive information was confidential,
`and whether a non-disclosure agreement had been entered into before the meeting. The
`Interrogatory also specifically asks Orca to identify “all documents and things that support” its
`contentions. Ex. 1 at 98-99. Even though it publicly alleged that “Wiz founders”—plural—
`attended the purported meeting, Orca’s response states only that
`. Id. at 99. Orca’s response also states that during the meeting, Mr. Shua explained that
` Id. Wiz
`repeatedly requested more information, after which Orca supplemented its response to include
`vague descriptions of what the purpose of the meeting was
` and the confidentiality of the information that
`
`was supposedly shared during the meeting (
`
` Id. at 100.1 Despite this, there remains no document showing discussion of any
`meeting with the “Wiz founders” (plural) as alleged in Orca’s complaint, no NDA, nor any
`evidence of what was discussed at any alleged meeting with all the “Wiz founders.” Orca has
`not even provided a specific date for the alleged meeting. Orca must substantiate its allegations
`as pleaded by supplementing its response or confirm that it has no other responsive information or
`documents.2
`
`Interrogatory No. 4 asks Orca to describe with specificity the “events of conception,
`actual reduction to practice, constructive reduction to practice, and diligence leading to reduction
`to practice . . . .” Ex. 1 at 103. Orca’s initial response simply stated that because “[e]ach of the
`
`1 On May 20, 2024, Orca stated that “Orca produced responsive documents months ago” citing to
`one three-page document that does not mention the Wiz founders, Orca, or Microsoft. Ex. 2 at 22
`(citing to Ex. 5). That document is not cited in the interrogatory response.
`2 Orca produced over 1,100,000 pages of ESI documents on August 30, 2024, that Wiz is still
`reviewing. Based on a preliminary review, none appear to involve a meeting with all the “Wiz
`founders” as alleged in the Complaint. The documents seem to indicate that
`who was allegedly present at the meeting—
`—connected Orca’s founders to a
`Microsoft team that dealt with startups and that various meetings were going to be scheduled. See,
`e.g., Exs. 8-11. They also seem to show that Orca’s founder may have met with one or more
`Microsoft employees apart from the Wiz founders who specifically worked with startups that used
`Microsoft’s cloud product, Azure. See, e.g., Ex. 8 at ORCA_1097966 (referring to discussion
`between Orca founder and Microsoft employee focused on “Microsoft for Startups” in May 2019);
`Ex. 12 at ORCA_1116217 (referring to meeting with another Microsoft employee in May 2019
`regarding “Microsoft for startups” program to receive “Azure credits”).
`
`

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`Case 1:23-cv-00758-JLH-SRF Document 141 Filed 09/10/24 Page 4 of 5 PageID #: 3160
`
`The Honorable Sherry R. Fallon
`September 3, 2024
`Page 3
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`Asserted Patents are post-AIA patents,” the “provisional and/or parent applications” are sufficient
`“evidence of the conception and constructive reduction to practice[.]” Id. at 104. After Wiz
`explained that the Interrogatory also asks for information related to actual reduction to practice,
`Orca stalled for over two months and then supplemented its response to include two documents
`besides the patent and file histories. One document has metadata showing it was created the day
`before the common patent application for the Asserted Patents was filed (Ex. 6). The other has
`metadata showing it was created after the case was filed (Ex. 7). Orca continues to refuse to
`further supplement its response to include or identify additional documents and has been unable
`or unwilling to explain the metadata of either document. Instead, Orca has attempted to flip the
`burden to Wiz, demanding that Wiz “identify” “specific documents” Wiz believes have not been
`produced. Ex. 2 at 4-5. This is improper and logistically impossible. This information is
`exclusively in Orca’s possession. And there is no way Wiz can know what documents are in
`Orca’s possession. By withholding this information, Orca is prejudicing Wiz because this
`evidence is relevant to claim construction as well as invalidity. Presumably Orca also intends to
`have its witnesses testify at trial regarding conception of the alleged inventions. However, it seeks
`to withhold this same information from discovery in response to Wiz’s Interrogatory. This is
`improper and contravenes the purpose of pre-trial discovery. Further, Orca has refused to confirm
`that these are the only documents that exist but has also refused to confirm that Orca will not later
`attempt to produce or offer as evidence any other documents related to conception and reduction
`to practice. Id. at 4-5, 8. Accordingly, Wiz requests that Orca be required to provide the additional
`information requested or that this Court enter an order precluding Orca from offering further
`evidence regarding conception and reduction to practice.
`
`In light of the above, Wiz requests that Orca be compelled to supplement its responses to
`Interrogatory Nos. 2 and 4 and to produce all responsive documents, or to confirm that no
`additional documents exist, within two weeks of this Court’s order.
`
`Orca’s Response to Wiz’s RFP No. 54:
`
`RFP No. 54 seeks documents “[r]elating to Orca’s competitors, including but not limited
`to Wiz.” Ex. 3 at 56. Orca offered to meet and confer to “more clearly define and narrow the
`scope” of the request. Id. at 57. Wiz then explained to Orca on multiple occasions that the request
`is relevant because Orca seeks lost profits, amongst other relief. On Orca’s insistence, Wiz offered
`to narrow the request to documents related to Orca’s competitors with respect to Orca’s allegedly
`patent-practicing products. Ex. 2 at 2, 17. Orca still claims that the narrowed request is overbroad,
`simply because it seeks “all documents” even though it is limited to a specific set of competitors.
`This, despite Orca routinely serving requests on Wiz that similarly seek “[a]ll documents.” See,
`e.g., Ex. 4 and RFP Nos. 18, 20, 25, 27-29, 51, 63-67 (seeking “all documents” including all
`documents related to Orca’s current and/or prospective customers). Still, Orca has refused to
`produce any documents in response to the request. Wiz’s request seeks relevant information and
`the request for documents related to Orca’s competitors for Orca’s allegedly practicing products
`is sufficiently targeted to the issues in this case and narrow in scope. See Ericsson, Inc. v. Harris
`Corp., 352 F.3d 1369, 1377-78 (Fed. Cir. 2003) (explaining that to recover lost profits, a patent
`owner must prove that by a reasonable probability the patent holder would have made a sale “but
`for” the infringing activity); Dor Yeshurim, Inc. v. A Torah Infertility Medium of Exch., No 10-
`
`

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`Case 1:23-cv-00758-JLH-SRF Document 141 Filed 09/10/24 Page 5 of 5 PageID #: 3161
`
`The Honorable Sherry R. Fallon
`September 3, 2024
`Page 4
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`2837, 2011 WL 7285038, at *6 (E.D.N.Y. Aug. 10, 2011) (explaining that a lost profits claim can
`be supported by evidence regarding the “volume of business in the area”); PBM Prods., LLC v.
`Mead Johnson Nutrition Co., No. 3-269, 2010 WL 56072, at *6 (E.D. Va. Jan. 4, 2010) (stating
`that market share is a “recognized economic approach” to calculating lost profit damages). Orca
`should be compelled to produce non-privileged, responsive documents within two weeks of this
`Court’s order.
`
`Wiz respectfully requests that this Court enter Wiz’s Proposed Order (Ex. A).
`
`***
`
`Attachments
`
`cc: All Counsel of Record (via email)
`
`Respectfully,
`
`/s/ Frederick L. Cottrell, III
`
`Frederick L. Cottrell, III (#2555)
`
`