Case 1:23-cv-00758-JLH-SRF Document 143-5 Filed 09/11/24 Page 1 of 10 PageID #: 3317
`Case 1:23-cv-00758-JLH-SRF Document 143-5 Filed 09/11/24 Page 1 of 10 PagelD #: 3317
`
`EXHIBIT E
`EXHIBIT E
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 143-5 Filed 09/11/24 Page 2 of 10 PageID #: 3318
`
`
`
`ORCA SECURITY LTD.,
`
`
`
`
`v.
`
`
`WIZ, INC.,
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
`
`
`
`C.A. No. 23-758 (JLH)
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`ORCA SECURITY LTD.’S RESPONSES AND OBJECTIONS TO WIZ, INC.’S
`THIRD SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS
`(NOS. 73-148)
`
`
`
`Pursuant to Federal Rules of Civil Procedure 26 and 34 and the District of
`
`Delaware’s Local Rule 26, Plaintiff and Counter-Defendant Orca Security Ltd. (“Orca” or
`
`“Plaintiff”) objects and responds to Defendant and Counter-Plaintiff Wiz, Inc.’s (“Defendant” or
`
`“Wiz”) Third Set of Requests for Documents (“Request” or “Requests”) as set forth below.
`
`GENERAL OBJECTIONS
`
`1.
`
`Orca’s General Objections to Wiz’s First Set of Requests for Production of
`
`Documents and Things (Nos. 1-60), served March 15, 2024, are incorporated herein by reference.
`
`Those general objections also are incorporated by reference into Orca’s responses to each and
`
`every Request addressed below.
`
`2.
`
`Orca objects to the definition of the term “Orca Accused Functionality(ies)”
`
`as “any Product and/or Functionality identified in Wiz’s Disclosure of Asserted Patents, Accused
`
`Products, and Damages Model served June 28, 2024” as vague, ambiguous, overbroad, and unduly
`
`burdensome as it seeks to include versions of the Orca Security Platform that pre-date the Asserted
`
`Patents and “any other similar products or services” and because Wiz fails to clearly allege which
`
`features it purports to accuse.
`
`
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 143-5 Filed 09/11/24 Page 3 of 10 PageID #: 3319
`
`
`
`the needs of the case, including, for example, because it is unlimited in time and seeks
`
`identification of “any third parties.” Orca further objects to this Request to the extent it seeks
`
`information protected by the attorney-client privilege, work-product immunity, and/or any other
`
`applicable exception or privilege. Orca further objects to this Request to the extent it seeks
`
`information which is confidential or proprietary to, or the trade secrets of, a non-party, and which
`
`Orca is under an obligation and duty to the non-party to not disclose, unless the non-party agrees
`
`to a suitable protective order or consents in writing to Orca to the disclosure.
`
`
`
`Subject to, as limited by, and without waiving the foregoing General Objections
`
`and Specific Objections, Orca will produce non-cumulative, responsive, non-privileged documents
`
`within its possession, custody, or control if any such documents exist and can be located after a
`
`reasonably diligent search.
`
`REQUEST FOR PRODUCTION NO. 97:
`
`All documents relating to your projections and/or forecasts concerning all relevant
`markets for the Orca Accused Functionalities, including without limitation forecasts of market size,
`market share, and customer demand, and a description of how such forecasting was and is done
`and used by you.
`
`RESPONSE TO REQUEST FOR PRODUCTION NO. 97:
`
`
`
`Orca incorporates all of its General Objections as if specifically set forth herein.
`
`Orca further objects to this Request as overly broad, unduly burdensome, and not proportional to
`
`the needs of the case, including, for example, because it is unlimited in time and seeks
`
`identification of “[a]ll documents.” Orca objects to this Request because it is unduly burdensome,
`
`not the least intrusive means to obtain the discovery it seeks, and it constitutes an improper
`
`discovery tool for the information sought. Orca further objects to this Request to the extent it seeks
`
`information protected by the attorney-client privilege, work-product immunity, and/or any other
`
`applicable exception or privilege.
`
`19
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 143-5 Filed 09/11/24 Page 4 of 10 PageID #: 3320
`
`
`
`
`
`Subject to, as limited by, and without waiving the foregoing General Objections
`
`and Specific Objections, Orca will produce non-cumulative, responsive, non-privileged documents
`
`sufficient to show market forecasts for the Orca Accused Functionalities within its possession,
`
`custody, or control if any such documents exist and can be located after a reasonably diligent
`
`search.
`
`REQUEST FOR PRODUCTION NO. 98:
`
`Documents sufficient to identify the share of any relevant market that includes the
`Orca Accused Functionalities on a monthly, quarterly, and annual basis in the United States and
`internationally.
`
`RESPONSE TO REQUEST FOR PRODUCTION NO. 98:
`
`
`
`Orca incorporates all of its General Objections as if specifically set forth herein.
`
`Orca further objects to this Request as overly broad, unduly burdensome, and not proportional to
`
`the needs of the case, including, for example, because it is unlimited in time and seeks documents
`
`related to “any relevant market.” Orca objects to this Request to the extent that it is duplicative of
`
`Request for Production No. 97. Orca further objects to this Request to the extent it seeks
`
`information protected by the attorney-client privilege, work-product immunity, and/or any other
`
`applicable exception or privilege. Orca objects to this Request to the extent it asks Orca to create,
`
`gather, or summarize the requested information into a document that does not exist in the ordinary
`
`course of business.
`
`
`
`Subject to, as limited by, and without waiving the foregoing General Objections
`
`and Specific Objections, Orca will produce non-cumulative, responsive, non-privileged documents
`
`sufficient to show market share for the Orca Accused Functionalities within its possession,
`
`custody, or control if any such documents exist and can be located after a reasonably diligent
`
`search.
`
`20
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 143-5 Filed 09/11/24 Page 5 of 10 PageID #: 3321
`
`
`
`REQUEST FOR PRODUCTION NO. 99:
`
`All communications with purchasers, potential purchasers, or sales leads of/for the
`Orca Accused Functionalities relating to the purchase, pricing, and/or supply of the Orca Accused
`Functionalities.
`
`RESPONSE TO REQUEST FOR PRODUCTION NO. 99:
`
`
`
`Orca incorporates all of its General Objections as if specifically set forth herein.
`
`Orca further objects to this Request as overly broad, unduly burdensome, and not proportional to
`
`the needs of the case, including, for example, because it is unlimited in time and seeks “[a]ll
`
`communications.” Orca also objects to this Request as vague and ambiguous, for example as to
`
`the terms “potential purchasers” and “sales leads.” Orca objects to this request to the extent that
`
`it is duplicative of Request for Production No. 85.
`
`
`
`Subject to, as limited by, and without waiving the foregoing General Objections
`
`and Specific Objections, Orca will produce non-cumulative, responsive, relevant, non-privileged
`
`documents within its possession, custody, or control sufficient to show the pricing information
`
`provided to Orca Security Platform users, if any such documents exist and can be located after a
`
`reasonably diligent search.
`
`REQUEST FOR PRODUCTION NO. 100:
`
`Documents sufficient to identify actual or potential customers’ demands for, or
`preferences relating to, any features of the Orca Accused Functionalities.
`
`RESPOND TO REQUEST FOR PRODUCTION NO. 100:
`
`
`
`Orca incorporates all of its General Objections as if specifically set forth herein.
`
`Orca further objects to this Request as overly broad, unduly burdensome, and not proportional to
`
`the needs of the case, including, for example, because it is unlimited in time. Orca also objects to
`
`this Request as vague and ambiguous, for example as to the term “potential customer.” Orca
`
`21
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 143-5 Filed 09/11/24 Page 6 of 10 PageID #: 3322
`
`
`
`objects to this Request to the extent it seeks information protected by the attorney-client privilege,
`
`work-product immunity, and/or any other applicable exception or privilege.
`
`
`
`Subject to, as limited by, and without waiving the foregoing General Objections
`
`and Specific Objections, Orca will produce non-cumulative, responsive, relevant, non-privileged
`
`documents within its possession, custody, or control sufficient to identify customer demand for
`
`the Orca Accused Functionalities to the extent that such documents are maintained in the ordinary
`
`course of business, if any such documents exist and can be located after a reasonably diligent
`
`search.
`
`REQUEST FOR PRODUCTION NO. 101:
`
`All documents referring to or relating to internal sales reports or records, including
`but not limited to sales-lead records, conversion success or lost sales reports.
`
`RESPONSE TO REQUEST FOR PRODUCTION NO. 101:
`
`
`
`Orca incorporates all of its General Objections as if specifically set forth herein.
`
`Orca further objects to this Request as overly broad, unduly burdensome, and not proportional to
`
`the needs of the case, including, for example, because it is unlimited in time and seeks “[a]ll
`
`documents.” Orca also objects to this Request as vague and ambiguous, for example as to the
`
`terms “sales-leads records, conversion success, or lost sales reports.” Orca further objects to this
`
`Request to the extent it seeks information protected by the attorney-client privilege, work-product
`
`immunity, and/or any other applicable exception or privilege. Orca objects to this Request to the
`
`extent it asks Orca to create, gather, or summarize the requested information into a document that
`
`does not exist in the ordinary course of business.
`
`
`
`Subject to, as limited by, and without waiving the foregoing General Objections
`
`and Specific Objections, Orca will produce non-cumulative, responsive, relevant, non-privileged
`
`sales records for Orca’s Security Platform within its possession, custody, or control to the extent
`
`22
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 143-5 Filed 09/11/24 Page 7 of 10 PageID #: 3323
`
`
`
`that such documents are maintained in the ordinary course of business, if any such documents exist
`
`and can be located after a reasonably diligent search.
`
`REQUEST FOR PRODUCTION NO. 102:
`
`All documents relating to your knowledge of, and/or analysis of, products that
`actually or potentially compete with the Orca Accused Functionalities.
`
`RESPONSE TO REQUEST FOR PRODUCTION NO. 102:
`
`
`
`Orca incorporates all of its General Objections as if specifically set forth herein.
`
`Orca further objects to this Request as overly broad, unduly burdensome, and not proportional to
`
`the needs of the case, including, for example, because it is unlimited in time and seeks “[a]ll
`
`documents.” Orca also objects to this Request as vague and ambiguous, for example as to the term
`
`“potentially compete.” Orca further objects to this Request to the extent it seeks public information
`
`or information that is equally available to Wiz. Orca further objects to this Request to the extent
`
`it seeks information protected by the attorney-client privilege, work-product immunity, and/or any
`
`other applicable exception or privilege.
`
`
`
`Subject to and without waiving the foregoing General and Specific Objections,
`
`Orca will produce non-cumulative, responsive, relevant, non-privileged documents within its
`
`possession, custody, or control sufficient to identify products that compete with Orca’s Security
`
`Platform to the extent that such documents are maintained in the ordinary course of business, if
`
`any such documents exist and can be located after a reasonably diligent search.
`
`REQUEST FOR PRODUCTION NO. 103:
`
`Documents sufficient to show any information collected by you about your
`competitors related to the Orca Accused Functionalities, including but not limited to the identity
`of each competitor, the identity of each competing product, the source of the information, and your
`use of this information.
`
`23
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 143-5 Filed 09/11/24 Page 8 of 10 PageID #: 3324
`
`
`
`RESPONSE TO REQUEST FOR PRODUCTION NO. 103:
`
`
`
`
`
`Orca incorporates all of its General Objections as if specifically set forth herein.
`
`Orca further objects to this Request as overly broad, unduly burdensome, and not proportional to
`
`the needs of the case, including, for example, because it is unlimited in time. Orca also objects to
`
`this Request as vague and ambiguous, for example as to the phrase “any information … about your
`
`competitors related to the Orca Accused Functionalities.” Orca further objects to this Request to
`
`the extent it seeks information protected by the attorney-client privilege, work-product immunity,
`
`and/or any other applicable exception or privilege.
`
`
`
`Subject to and without waiving the foregoing General and Specific Objections,
`
`Orca will produce non-cumulative, responsive, relevant, non-privileged documents sufficient to
`
`identify products and entities that compete with the Orca Security Platform within Orca’s
`
`possession, custody, or control, if any such documents exist and can be located after a reasonably
`
`diligent search.
`
`REQUEST FOR PRODUCTION NO. 104:
`
`Documents sufficient to identify any product that you contend constitutes a design-
`around or non-infringing alternative to the Orca Accused Functionalities or the Wiz Asserted
`Patents.
`
`RESPONSE TO REQUEST FOR PRODUCTION NO. 104:
`
`
`
`Orca incorporates all of its General Objections as if specifically set forth herein.
`
`Orca further objects to this Request as vague and ambiguous, for example, as to the term “any
`
`product.” Orca objects to this Request to the extent it seeks information protected by the attorney-
`
`client privilege, work-product immunity, and/or any other applicable exception or privilege. Orca
`
`objects to this Request to the extent that it assumes the existence of facts that do not exist and the
`
`occurrence of events that did not take place. Orca further objects to this Request as premature to
`
`24
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 143-5 Filed 09/11/24 Page 9 of 10 PageID #: 3325
`
`
`
`documents within Orca’s possession, custody, or control related to the Log4Shell December 2021
`
`blog post, if any such documents exist and can be located after a reasonably diligent search.
`
`MORRIS, NICHOLS, ARSHT &TUNNELL LLP
`
`/s/ Rodger D. Smith II
`___________________________________
`Jack B. Blumenfeld (#1014)
`Rodger D. Smith II (#3778)
`Cameron P. Clark (#6647)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`rsmith@morrisnichols.com
`cclark@morrisnichols.com
`
`Attorneys for Plaintiff Orca Security Ltd.
`
`
`
`
`
`
`
`OF COUNSEL:
`
`Douglas E. Lumish
`Lucas Lonergan
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 94025
`(650) 328-4600
`
`Blake R. Davis
`Peter Hoffman
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`(415) 391-0600
`
`Kristina D. McKenna
`Christopher Henry
`LATHAM & WATKINS LLP
`200 Clarendon Street
`Boston, MA 02116
`(617) 948-6000
`
`Ryan Thomas Banks
`LATHAM & WATKINS LLP
`650 Town Center Drive, 20th Floor
`Costa Mesa, CA 92626
`(714) 540-1235
`
`Gabriel K. Bell
`Nicole Elena Bruner
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW, Suite 1000
`Washington, DC 20004
`(202) 637-2200
`
`August 12, 2024
`
`57
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 143-5 Filed 09/11/24 Page 10 of 10 PageID #:
`3326
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on August 12, 2024, copies of the foregoing were caused to be
`
`served upon the following in the manner indicated:
`
`Frederick L. Cottrell, III, Esquire
`Kelly E. Farnan, Esquire
`Christine D. Haynes, Esquire
`RICHARD, LAYTON & FINGER, P.A.
`One Rodney Square
`920 North King Street
`Wilmington, DE 19801
`Attorneys for Defendant
`
`Jordan R. Jaffe, Esquire
`Catherine Lacey, Esquire
`Callie Davidson, Esquire
`Alex Miller, Esquire
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`Attorneys for Defendant
`
`Praatika Prasad, Esquire
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`1301 Avenue of the Americas, 40th Floor
`New York, NY 10019-6022
`(212) 999-5800
`Attorneys for Defendant
`
`
`
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`
`
`
`
`/s/ Rodger D. Smith II
`_______________________________
`Rodger D. Smith II (#3778)
`
`
`
`