Case 1:23-cv-00758-JLH-SRF Document 165 Filed 10/09/24 Page 1 of 6 PageID #: 4057
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ORCA SECURITY LTD.,
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`Plaintiff,
`
`v.
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`Defendant.
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`WIZ, INC.,
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
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`C.A. No. 23-758 (JLH) (SRF)
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`PUBLIC VERSION
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`LETTER TO THE HONORABLE SHERRY R. FALLON
`FROM RODGER D. SMITH II REGARDING DISCOVERY DISPUTES
`
`MORRIS, NICHOLS, ARSHT &TUNNELL LLP
`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
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite
`2000 San Francisco, CA 94111
`(415) 391-0600
`
`Christopher Henry
`Kristina D. McKenna
`LATHAM & WATKINS LLP
`200 Clarendon Street
`Boston, MA 02116
`(617) 948-6000
`
`Confidential Version Filed: October 2, 2024
`Public Version Filed: October 9, 2024
`
`

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`Case 1:23-cv-00758-JLH-SRF Document 165 Filed 10/09/24 Page 2 of 6 PageID #: 4058
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`Dear Judge Fallon:
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`Orca respectfully requests the Court’s assistance with the four discovery disputes discussed below.
`
`Wiz’s deficient production of responsive ESI from Priority custodians in violation of the ESI
`Order: Discovery of electronic correspondence, including email and slack messages, is governed
`by D.I. 71 (“ESI Order”), which states that the parties’ general production requests under Fed. R.
`Civ. P. 34 and 45 “shall not include email or other forms of electronic correspondence,” and “[t]o
`obtain Electronic Correspondence, parties must propound specific Electronic Correspondence
`production requests.” Id. at 3. Electronic Correspondence requests identify “the custodian, search
`terms, and time frame,” and the parties must “cooperate to identify the proper custodians, proper
`search terms and proper timeframe.” Id. The ESI Order states “the parties will have substantially
`completed production of all non-privileged custodial ESI responsive to the parties’ Priority
`Requests” by August 30, 2024. D.I. 71 at 6; D.I. 106 (extending deadline to August 30).
`
`Over several weeks, the Parties engaged in vigorous negotiations resulting in a mutually agreed-
`upon set of search terms, custodians, and time frames for four priority custodians per party
`(“Priority Requests”). The parties each proposed initial search terms, exchanged objections, and
`following multiple verbal meet and confers and dozens of emails, the parties agreed to a set of
`unobjected to search terms for priority custodians. Ex. 1 at 1. The final agreed search terms resulted
`in ~180,000 unique responsive documents that Orca would produce across custodians, and
`~110,000 unique responsive documents that Wiz would produce. On the August 30 substantial
`completion deadline, Orca produced over 90% of the documents (~163,000) responsive to the
`parties’ agreed search terms, only withholding documents flagged for privilege. In contrast, Wiz
`produced just ~22% of its responsive documents (~25,000 of ~110,000 total). Orca immediately
`asked Wiz to explain its noncompliance with the substantial completion deadline; Wiz responded
`it withheld most of the documents hitting on agreed search terms as “not responsive.” Ex. 2 at 2.
`
`Orca has repeatedly raised its concerns over Wiz’s unilateral refusal to produce all non-privileged
`documents that hit upon the agreed search terms. See D.I. 147; Ex. 2 at 1-3; Ex. 3 at 1-4; Ex. 4 at
`2; see also D.I. 148. For three weeks, Wiz refused to meet and confer with Orca regarding this
`issue, alleging only one attorney could speak to the issue, and that that one attorney was
`unavailable.1 Ex. 2 at 1-2; Ex. 3 at 1, 3; Ex. 4 at 2. When that attorney finally met with Orca’s
`counsel, Wiz refused to explain the parameters of its “responsiveness” review process. When Orca
`raised the issue again on September 30, Wiz again refused to describe its review process other than
`it was on a “document by document” basis. Ex. 15 at 3-4. Wiz should not be permitted to withhold
`documents it unilaterally decides are unimportant. Wiz should produce all non-privileged
`documents hitting on agreed search terms, as the parties negotiated and the ESI Order requires.
`
`Wiz alleges its “responsiveness” filtering is permitted for three reasons. Each should be rejected.
`
`1 Discovery has been repeatedly frustrated by this tactic. See, e.g., Ex. 9 at 15 (noting the parties
`“cannot continue discovery with meet and confers such as on July 9 and August 2 where Wiz’s
`counsel were unable to commit to any positions or dates certain without further conferring with
`other members of Wiz’s team” and requesting “someone with decision-making authority will
`attend” M&Cs); id. at 9 (“[P]lease investigate these issues before the meet and confer and include
`someone with decision making authority on the meet and confer”).
`
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`

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`Case 1:23-cv-00758-JLH-SRF Document 165 Filed 10/09/24 Page 3 of 6 PageID #: 4059
`Case 1:23-cv-00758-JLH-SRF Document 165 Filed 10/09/24 Page 3 of 6 PagelD #: 4059
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`The Honorable Sherry R. Fallon
`October 2, 2024
`Page 2
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`First, Wiz alleges the ESI Order does not expressly prohibit a unilateral so-called relevance review.
`That is wrong. The ESI Order permits withholding on the basis ofprivilege, but “a// non-privileged
`custodial ESI responsiveto the parties’ Priority Requests,” i.e., responsive to agreed search terms,
`must be produced. D.I. 71 at 6. Producing all non-privileged documents hitting on agreed search
`terms is a neutral and fair way to proceed, unlike Wiz withholding documents it unilaterally
`decides are not relevant. Indeed, Wiz’s relevance determinations have already caused several
`issues requiring the Court’s intervention, such as Wiz’s JIRA tickets, which the Court resolved
`with search terms. See, e.g., D.I. 133 at 4 (Orca explaining Wiz’s withholding of relevant JIRA
`tickets); D.I. 139 (ordering mutual exchange of search terms to resolve issue). Whereas search
`termsact as a neutral proxy for relevance, that is not the case if Wiz is permitted to misinterpret
`the ESI Order (and D.I. 139) as permitting Wiz to continue withholding documentsit unilaterally
`decides are not relevant. And to be clear, Orca believes relevant documents are being improperly
`withheld. For example, one agreed search term for Wiz’s custodians consists of “orca* AND”
`certain keywords the Parties negotiated to be relevant to the issues in this case. Ex. | at 3. After
`natrowing the keywords to an agreed relevant set, Wiz identified ~35,000 unique responsive ESI
`documents across custodians (see Ex. 1 at 12). Wiz’s production to date includes less than 3,000
`unique documents for that keyword combination. Wiz refuses to tell Orca how documents with
`“orca*” and at least one other negotiated keyword are “non-responsive” or irrelevant, let alone
`~32,000 such documents. See CrossFit, Inc. v. Nat’l Strength & Conditioning Ass’n, No. 14-1191,
`2019 WL 6527951, at *15 n.15 (S.D. Cal. Dec. 4, 2019) (“documents[that] hit upon the keywords
`to which the Parties agreed”are “presumptively relevant’’).
`
`Second, Wiz argued it was permitted to withhold documents because its objections to Orca’s
`original search terms included relevance objections. Those objections were mooted when the
`parties mutually negotiated a compromisedset of search terms. IfWiz believed otherwise,it should
`have broughtthis to the Court’s attention no later than July 19, 2024. D.I. 106 (extending “Deadline
`to submit Priority Request Disputes”). Wiz did not, and its after-the-fact objections are waived.
`
`Third, Wiz claims it verbally raised a relevancy/responsiveness review during a meet and confer.
`That is wrong. Wiz could not identify when this alleged discussion happened, nor identify any
`coirespondence memorializing it. That
`is telling, as Orca sends Wiz a contemporaneous
`memorialization of each meet and confer to avoid exactly these types of hindsight disputes. If
`responsiveness filtermg were contemplated, Orca would have ensured that such understanding—
`whichis ripe for disagreement—wasexpressly set forth in correspondence and the ESI Order. The
`ESI Order does not permit such filtering because that was not the Parties’ agreement. Orca’s
`actions reflect this too. Orca substantially completed its production of responsive non-privileged
`ESI documents on the Court’s deadline. Wiz should be required to do the same.
`
`Wiz should be ordered to produce relevant documents and communications exchanged with
`or disclosed to
`: In July 2024, more than a year into this litigation,
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`
`
`
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`. See, e.g., Ex. 5 at 1. Wiz has
`
`
`not produced any documents regarding this
`whichis uniquely relevant to damages as
`a valuation of the accused product and functionalities, and this litigation. Finjan, Inc. v. Blue Coat
`Sys., Inc., No. 13-CV-03999-BLF, 2015 WL 4129193, at *4 (N.D. Cal. July 8, 2015) (finding
`
`

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`Case 1:23-cv-00758-JLH-SRF Document 165 Filed 10/09/24 Page 4 of 6 PageID #: 4060
`Case 1:23-cv-00758-JLH-SRF Document 165 Filed 10/09/24 Page 4 of 6 PagelD #: 4060
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`The Honorable Sherry R. Fallon
`October 2, 2024
`Page 3
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`“acquisition costs for technology contaming the accused features” relevant to damages). Orca
`requests Wiz be ordered to produce documents exchanged with or disclosed to
`that fall
`within the scope of relevant, non-privileged information Wiz has already agreed to in response to
`Orca’s RFP Nos. 16-23, 25-27, 38, 44, 49, 57, 68, 73, 95, 135, 154-55, 157, and 159-61. Exs. 6-8.
`
`Wiz takes the
`
`position that relevant documents regarding
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`the
`
`
`
`
`Ex. 9 at 1; Ex. 10
`Wiz admits it has withheld all
`on this basis. This is umproper and no commoninterest privilege applies.
`
`10x Genomics, Inc. v. Celsee, Inc. is instructive. 505 F. Supp. 3d 334, 337-38 (D. Del. 2020). In
`that case, Celsee entered into an agreement during the litigation to be acquired by non-party Bio-
`Rad. Celsee refused to produce discovery regarding that acquisition based on the commoninterest
`doctrine. The Court disagreed, finding Celsee could not establish “it and Bio-Rad shared an
`identical legal interest or that its communications with Bio-Rad were made for the purpose of
`securing, advancing, or supplying legal representation.” Jd. at *338. The Court also founda letter
`of intent signed by Celsee and Bio-Rad expressly discussing the litigation was insufficient to create
`a commoninterest privilege because the LOI “did not consummate Bio-Rad’s purchase of Celsee;
`nor did it result in Bio-Rad’s assumption of Celsee’s liability for the alleged infringement of the
`asserted patents or make Bio-Radresponsible for defending Celseein thislitigation.” Jd. The Court
`compelled Celsee to produce a witness and documentsrelating to the acquisition. Jd. at *340.
`
`identical legal interest it purports
`The same result should follow here. Wiz does not identify any
`were madeto secure, advance,
`to share witha or contend its communications with
`or supply
`legal representation. Nor could it do so accurately becausea | aire
`rs As the Court found in /0X, communications relating to
`
`adversarial M&Atransactions are not protected by the commoninterest doctrine because they do
`not “advance the commoninterest privilege’s purpose.” Jd. at 340 (quoting Upjohn Co. v. United
`
`States, 449 U.S. 383, 389 (1981)). ThePE like the LOI in /0x, does not change
`
`the analysis. The NDA is not a joint defense agreement and does not mention this or any other
`litigation. It is a standard NDA between two companies pursuing a potential business transaction,
`directed to protecting confidential information that may be exchanged. See generally Ex. 10. And,
`
`importantly,a never consummated a deal, so at all times they were “still
`
`competitors ... and do not share an interest sufficiently common to extend the attorney-client
`privilege to their discussions.” Jd. at 338 n. 1; see also Fraunhofer-Gesellschaft Zur Forderung
`Der Angewandten Forschung E.V. v. Sirius XM Radio, Inc., C.A. No. 17-184, 2022 WL 4079051,
`at *3 (D. Del. Sept. 2, 2022) (holding “no commoninterest privilege applies” between companies
`that had signed an NDA and were“in discussions about a potential agreement’’).
`
`Wiz’s deficient production of documents responsive to RFPs 91, 92, 94, and 113: Wiz should
`be ordered to produce all documents responsive to Orca’s RFPs 91, 92, 94 and 113, which are
`natrowly tailored. RFPs 91 and 92 are directed specifically to the 2024 RSA Conference held
`duringthis litigation (May 6-9, 2024), including documents accessible and shown at the conference
`from demo.wiz.io and docs.wiz.io, where Wiz demonstrated the accused product and promoted
`the accused functionalities to over 40,000 attendees. These are post-complaintacts of infringement
`relevant to Wiz’s willfulness and the value of Orca’s inventions. Furthermore, Wiz directly put at
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`

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`Case 1:23-cv-00758-JLH-SRF Document 165 Filed 10/09/24 Page 5 of 6 PageID #: 4061
`The Honorable Sherry R. Fallon
`October 2, 2024
`Page 4
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`issue the accessibility of information from “docs.wiz.io”—which Wiz presented publicly at the
`RSA conference—by relying on the purported confidentiality of that information as the basis for
`an alleged unclean hands defense. D.I. 124 at ¶¶ 14, 271-273. Wiz should not be permitted to
`withhold evidence that refutes its defenses. Request 94 is limited to finance materials and materials
`presented to investors in connection with a funding round occurring during the pendency of this
`litigation, relating specifically to the accused product and accused functionalities, which is relevant
`to “carefully tie proof of damages to the claimed invention’s footprint in the marketplace.”
`ResQNet.com, Inc. v. Lansa, Inc., 594 F.3d 860, 869 (Fed. Cir. 2010). Request 113 is limited to a
`particular type of document—board meetings and minutes—discussing the accused products and
`functionalities. Wiz has never identified any burden with collecting this targeted information, or
`even that it has investigated any burden, including for example how many board meetings Orca’s
`request could hit on. Ex. 11 at 1-2.
`
`For each of these requests, Wiz agrees to produce documents only as to Orca or “the specifically
`accused ‘snapshot’ functionality as Wiz understands it.” Ex. 7. Wiz will not explain what this
`“understanding” is and refuses to apply Orca’s definition of Accused Functionalities or even Wiz’s
`own identification of accused functionalities in its response to Orca’s Interrogatory No. 1. Ex. 14
`at 2-3 (Orca’s definition of Accused Functionalities); see generally D.I. 133; see D.I. 139 at 2. Wiz
`also improperly excludes its Runtime Sensor and Supply Chain Security, which the Court
`expressly found are within the scope of Orca’s infringement claims. D.I. 139 at 2-3. On the
`September 30 meet and confer, Orca proposed as a compromise to limit its request to the specific
`features identified by Wiz in WIZ_0032973, the document Wiz uses to identify the Accused
`Functionalities in response to Orca’s Interrogatory No. 1. See D.I. 139 at 2; D.I. 133-10 at 5-7.
`Wiz refused. And, tellingly, Wiz has not produced a single document responsive to these RFPs,
`indicating Wiz has narrowed its request to something where no documents exist. That is improper.
`All responsive, non-privileged documents should be produced without further delay.
`
`Wiz’s deficient response to Interrogatory No. 15: Orca’s Interrogatory No. 15 seeks information
`regarding Wiz’s access to Orca’s confidential and proprietary documents. Wiz has supplemented
`its response several times to confirm that it illicitly accessed a wide array of Orca’s confidential
`documents, but Wiz refuses to provide certain additional information, including: (1) identifying
`employees who were exposed to the materials; (2) listing communications with third parties related
`to such documents; (3) describing Wiz’s understanding of the confidentiality and contractual
`protections for that information; or (4) confirming the scope of Orca documents in Wiz’s
`possession now or in the past. Ex. 12 at 3-7. Tellingly, Orca provided this information in response
`to Wiz’s mirror image Interrogatory No. 12, and Wiz should be ordered to provide a response at
`least as detailed as Orca’s. Ex. 13; D.I. 33 at 4.
`
`*
`*
`*
`In sum, Wiz should be compelled to produce the improperly withheld discovery set forth above by
`October 16. Orca also requests that Wiz be ordered to provide dates certain for other productions
`it has agreed to. For example, in July, Wiz committed to producing some documents responsive to
`Orca’s RFP Nos. 91, 92, 94 and 113, but on a September 30 meet and confer, Wiz confirmed it
`still has not collected or produced any of those materials and will not commit to any date certain
`for doing so. Ex. 15 at 1-3. Wiz’s refusal to provide dates certain for producing agreed-upon
`documents is a recurring problem that precludes efficient resolution of disputes.
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`

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`Case 1:23-cv-00758-JLH-SRF Document 165 Filed 10/09/24 Page 6 of 6 PageID #: 4062
`The Honorable Sherry R. Fallon
`October 2, 2024
`Page 5
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`Respectfully,
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`/s/ Rodger D. Smith II
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`Rodger D. Smith II (#3778)
`
`
`Attachments
`cc:
`All counsel of record (via electronic mail)
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