Case 1:23-cv-00758-JLH-SRF Document 166-5 Filed 10/09/24 Page 1 of 23 PageID #: 4253
`Case 1:23-cv-00758-JLH-SRF Document 166-5 Filed 10/09/24 Page 1 of 23 PagelD #: 4253
`
`EXHIBIT 4
`
` EXHIBIT 4
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 166-5 Filed 10/09/24 Page 2 of 23 PageID #: 4254
`
`Prasad, Praatika
`
`From:
`Sent:
`To:
`
`Cc:
`
`Subject:
`
`Prasad, Praatika
`Friday, August 16, 2024 6:47 PM
`Krissy.McKenna@lw.com; Zang, Lisa; Lucas.Lonergan@lw.com; WSGR - Orca Wiz;
`Cottrell@RLF.com; Farnan@RLF.com; haynes@rlf.com
`orcasecuritywiz.lwteam@lw.com; RSmith@morrisnichols.com; JBlumenfeld@MNAT.com;
`cclark@morrisnichols.com
`RE: Orca v. Wiz | July 9 M&C Memorialization
`
`Krissy,
`
`
`We again disagree with the many mischaracteriza(cid:415)ons and inaccuracies in your email, but as before, will address the
`more significant items in the interest of moving the issues along.
`
`
`Wiz’s Document Produc(cid:415)on: Your characteriza(cid:415)on of Wiz’s inves(cid:415)ga(cid:415)on as “delayed” and of our statements during the
`meet and confer as “Wiz could not provide any update” are inaccurate and misconstrue what we communicated to you.
`As we informed you during the August 14 meet and confer, Wiz has been inves(cid:415)ga(cid:415)ng the issues you iden(cid:415)fied and
`con(cid:415)nues to do so. In the mean(cid:415)me, we have provided you with various responses and addi(cid:415)onal documents that
`address many of the ques(cid:415)ons raised in your emails. As we stated during the meet and confer, our client is s(cid:415)ll in the
`process of inves(cid:415)ga(cid:415)ng the few remaining issues and we will provide an update on the status of our inves(cid:415)ga(cid:415)on into
`those issues within a week, i.e., by next Wednesday, August 21.
`
`
`Relatedly, the Bates numbers we provided do in fact correspond with the Wiki pages you iden(cid:415)fied. Please explain why
`you believe these “do not align with the missing Wiki pages.”
`
`
`Orca’s Deficient Responses to Wiz’s RFP Nos. 61, 63, 65, and 67: As Wiz has explained, the documents sought by these
`RFPs, which relate to Orca’s access or use of the iden(cid:415)fied pla(cid:414)orms, are relevant to show how Orca uses its Accused
`Products and to demonstrate Orca’s compe(cid:415)(cid:415)ve intelligence ac(cid:415)vi(cid:415)es and marke(cid:415)ng efforts vis-à-vis its compe(cid:415)tors.
`These issues are highly relevant to at least indirect infringement, willful infringement, and damages issues for Wiz’s
`patent infringement counterclaims against Orca’s Accused Products. Please confirm whether Orca will agree to produce
`the documents sought by these RFPs by August 23. If Orca does not so confirm, we will understand that the par(cid:415)es are
`at an impasse and raise this issue with the Court.
`
`
`Wiz’s Produc(cid:415)on of Documents and Informa(cid:415)on Rela(cid:415)ng to its Compe(cid:415)(cid:415)ve Business Intelligence Ac(cid:415)vi(cid:415)es: The email
`below again mischaracterizes what we discussed with you. We offered as follows: if Orca agrees to produce documents
`in response to Wiz’s RFP Nos. 72 and 73, Wiz could agree to produce “any documents referring or rela(cid:415)ng to any
`evalua(cid:415)ons, inves(cid:415)ga(cid:415)ons, studies, or analyses of Orca or the Orca Pla(cid:414)orm conducted by third par(cid:415)es, such as hired
`marke(cid:415)ng companies or intelligence companies (e.g., CGI Group, Bluehawk Intelligence Services, Kroll, or Blackcube),” as
`sought by Orca’s mirror-image RFP Nos. 38 and 41. For Wiz’s RFP No. 73, Orca agreed to inves(cid:415)gate whether it has
`responsive, non-privileged documents rela(cid:415)ng to its compe(cid:415)(cid:415)ve business intelligence ac(cid:415)vi(cid:415)es as relates to Wiz. We did
`not discuss a “narrowed scope” of this RFP. Orca refused, however, to produce documents in response to RFP No. 72;
`understanding that the par(cid:415)es are at an impasse on that RFP, we will raise this issue with the Court.
`
`
`Wiz’s Response to Orca’s Rog Nos. 4, 12, 15: For Rog Nos. 4 and 12, as we noted during today’s meet and confer, we
`expect to serve supplemental responses by next Friday, August 23; if we are unable to by that date, we will reach out
`with an update. As for Rog No. 15, as we have explained repeatedly, Wiz’s inves(cid:415)ga(cid:415)on is ongoing and we will provide
`an update by August 27.
`
`
`Separately, Wiz expects to supplement its responses to Orca’s RFP Nos. 94 and 97 by Monday, August 19.
`
`1
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 166-5 Filed 10/09/24 Page 3 of 23 PageID #: 4255
`
`
`
`Regards,
`Praa(cid:415)ka
`
`
`From: Krissy.McKenna@lw.com <Krissy.McKenna@lw.com>
`Sent: Wednesday, August 14, 2024 10:08 PM
`To: Zang, Lisa <lzang@wsgr.com>; Lucas.Lonergan@lw.com; WSGR - Orca Wiz <WSGR-Orca-Wiz@wsgr.com>;
`Cottrell@RLF.com; Farnan@RLF.com; haynes@rlf.com
`Cc: orcasecuritywiz.lwteam@lw.com; RSmith@morrisnichols.com; JBlumenfeld@MNAT.com; cclark@morrisnichols.com
`Subject: RE: Orca v. Wiz | July 9 M&C Memorialization
`
`EXT - krissy.mckenna@lw.com
`
`
`Lisa,
`
`We write to memorialize the par(cid:415)es’ August 14 meet and confer. The par(cid:415)es discussed four items, detailed below, and
`will reconvene Friday, August 16 at 11am PT / 2pm ET to discuss: (1) Wiz’s produc(cid:415)on of informa(cid:415)on exchanged with or
`disclosed to
` and (2) Wiz’s deficient responses to Interrogatory nos. 4 and 12. In addi(cid:415)on, please be prepared to
`address on Friday the disparate bates numbers for the missing wiki pages, as detailed below.
`
`Wiz’s Deficient Document Produc(cid:415)on: The par(cid:415)es walked through missing documents from Wiz’s produc(cid:415)on, as
`outlined in K. McKenna’s June 26 and July 29 emails. Despite these issues having been raised nearly two months ago,
`Wiz could not provide any update on the missing items (with one excep(cid:415)on detailed below) and stated only that it was
`“looking into it.” Wiz could not explain why its inves(cid:415)ga(cid:415)on was so delayed, nor would Wiz agree to produce any of
`these items by next week. Wiz stated only that it would provide “an update” on all outstanding items by August 21.
` The only update Wiz was able to provide on the call related to missing Wiki pages directed to
`
` Wiz iden(cid:415)fied Bates Nos. WIZ_0034977-0034986,
`WIZ_0035033, and WIZ_0035028 as cons(cid:415)tu(cid:415)ng the missing Wiki pages. A(cid:332)er review, these bates numbers do
`not align with the missing Wiki pages. Please be prepared to address this during the August 16 meet and confer.
`
`
`Orca’s Responses to Wiz’s RFP Nos. 61, 63, 65, and 67: In its responses to these RFPs served July 15, 2024, Orca agreed
`to produce non-cumula(cid:415)ve, responsive, relevant, non-privileged documents comparing the Orca cloud pla(cid:414)orm to the
`iden(cid:415)fied compe(cid:415)tor pla(cid:414)orms (namely, Prisma, Qualys, Rapid7, and Palo Alto Networks). Orca subsequently produced
`related documents on July 24, 2024. Wiz stated that Orca should also produce documents related to Orca’s access or use
`of the pla(cid:414)orms, but Wiz could not iden(cid:415)fy any relevance of that request during the call. Wiz agreed to follow up with
`legal support for its posi(cid:415)on.
`
`Wiz’s Produc(cid:415)on of Documents and Informa(cid:415)on Rela(cid:415)ng to its Compe(cid:415)(cid:415)ve Business Intelligence Ac(cid:415)vi(cid:415)es: The
`par(cid:415)es discussed compe(cid:415)(cid:415)ve business intelligence ac(cid:415)vi(cid:415)es as related to Orca’s RFPs 38 and 41. Wiz agreed to collect
`and produce documents referring or rela(cid:415)ng to any evalua(cid:415)ons, inves(cid:415)ga(cid:415)ons, studies, or analyses of Orca or the Orca
`Pla(cid:414)orm conducted by third par(cid:415)es but would not provide a date certain for that produc(cid:415)on. Wiz further stated that it
`only would produce such informa(cid:415)on as related to Orca, not any other compe(cid:415)tor or integrated pla(cid:414)orm, despite
`demanding that Orca provide compe(cid:415)(cid:415)ve intelligence informa(cid:415)on for such third par(cid:415)es (see Wiz RFPs 61, 63, 65, and
`67). Wiz could not explain why Orca should produce informa(cid:415)on that Wiz refuses to produce, nor would Wiz agree to
`withdraw its dispute on Orca’s RFPs 84-90, which seek documents related to ThreatOp(cid:415)x (a third-party pla(cid:414)orm
`integrated into Orca’s pla(cid:414)orm) for which Wiz refused to produce any informa(cid:415)on.
` Regarding Wiz’s RFPs 72 and 73, which Orca reiterated are not the mirror image of Orca’s RFPs 38 and 41, Orca
`agreed to inves(cid:415)gate the narrowed scope of Wiz’s RFP 73 and provide an update by next week.
`
`
`
`2
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 166-5 Filed 10/09/24 Page 4 of 23 PageID #: 4256
`
`Wiz’s Deficient Response to Orca’ Rog. No. 15: This interrogatory seeks informa(cid:415)on related to Wiz’s access to Orca
`confiden(cid:415)al informa(cid:415)on. Wiz stated that it would provide either a supplemental response or “an update” by August 27.
`Wiz refused to provide any informa(cid:415)on on why its inves(cid:415)ga(cid:415)on was so delayed and whether it would supplement this
`interrogatory to the same extent that it demands Orca supplement responses to Wiz’s counterpart interrogatories 12
`and 13.
`
`Best,
`Krissy
`
`From: Zang, Lisa <lzang@wsgr.com>
`Sent: Wednesday, August 14, 2024 1:03 AM
`To: McKenna, Krissy (BN) <Krissy.McKenna@lw.com>; Lonergan, Lucas (Bay Area) <Lucas.Lonergan@lw.com>; WSGR -
`Orca Wiz <WSGR-Orca-Wiz@wsgr.com>; Cottrell@RLF.com; Farnan@RLF.com; haynes@rlf.com
`Cc: #C-M ORCA SECURITY - WIZ - LW TEAM <orcasecuritywiz.lwteam@lw.com>; RSmith@morrisnichols.com;
`JBlumenfeld@MNAT.com; cclark@morrisnichols.com
`Subject: RE: Orca v. Wiz | July 9 M&C Memorialization
`
`Krissy,
`
`
`Thank you. On scheduling, we are confirmed for tomorrow (Wednesday) 8/14 at 10 a.m. PT and Friday 8/16 at 11 a.m.
`PT. As to the issues raised in your August 12 email, we look forward to discussing items 1-6 during the meet and confer
`and further respond as follows. As has previously been the case, we disagree with the many mischaracteriza(cid:415)ons and
`inaccuracies of the August 12 email but have addressed the main points below in an effort to narrow and, ideally,
`resolve the par(cid:415)es’ disputes.
`
`
`Deficiencies in Orca’s Core Technical Document Produc(cid:415)on: Wiz has iden(cid:415)fied the specific deficiencies in Orca’s
`produc(cid:415)on of CTDs several (cid:415)mes now, and Orca has not rec(cid:415)fied the issue. During last week’s meet and confer, you
`represented that addi(cid:415)onal documents sa(cid:415)sfying Orca’s affirma(cid:415)ve obliga(cid:415)on to produce CTDs would be produced on
`Monday 8/12, i.e., yesterday. Orca is now refusing to iden(cid:415)fy these documents that it has supposedly produced. We
`understand that the par(cid:415)es are at an impasse, and will request a discovery teleconference with the Court.
`
`
`Deficiencies in Orca’s Responses to Wiz RFP Nos. 72-73: As explained in our August 9 email and previous meet and
`confers, documents regarding Orca’s compe(cid:415)(cid:415)ve business intelligence ac(cid:415)vi(cid:415)es are relevant to show how Orca views
`and evaluates its compe(cid:415)tors. This is not only relevant to damages issues for Wiz’s counterclaims, but also Orca’s
`inves(cid:415)ga(cid:415)on into Wiz in deciding to bring—and determining its strategy for—li(cid:415)ga(cid:415)on against Wiz, which Orca considers
`a compe(cid:415)tor. Compe(cid:415)(cid:415)ve business intelligence ac(cid:415)vi(cid:415)es include any type of business intelligence ac(cid:415)vi(cid:415)es rela(cid:415)ng to
`Orca’s compe(cid:415)(cid:415)on and compe(cid:415)(cid:415)ve efforts, including as relates to gathering informa(cid:415)on about compe(cid:415)tors,
`comparisons with compe(cid:415)tors, and development of business and/or compe(cid:415)(cid:415)ve strategies as a result of such
`informa(cid:415)on gathering. If Orca contends that its RFP Nos. 38 and 41 are relevant, Wiz’s RFP Nos. 72 and 73 are relevant
`for the exact same reason. CGI Group is relevant as a service that may have assisted Orca with its compe(cid:415)(cid:415)ve business
`intelligence ac(cid:415)vi(cid:415)es as relates to at least Wiz. If you contend that CGI Group has never had any involvement in Orca’s
`compe(cid:415)(cid:415)ve business intelligence ac(cid:415)vi(cid:415)es, please confirm this by email and that will help resolve this issue.
`
`
`Wiz’s Response to Orca’s Interrogatory No. 15: We are con(cid:415)nuing our inves(cid:415)ga(cid:415)on and expect to be in a posi(cid:415)on to
`provide a supplemental response or an update as to status by Tuesday 8/27.
`
`
`Orca’s RFP Nos. 91-92, 95, 98, 99, 101, 103, and 109-113:
` RFP Nos. 91-92, 95, 98, 99, 101, 103-07, 109: As Wiz previously explained, Orca has not ar(cid:415)culated a non-
`objec(cid:415)onable basis for these RFPs (e.g., why any of these requests are relevant or propor(cid:415)onal to the needs of
`this case) but we remain willing to revisit these RFPs if Orca does so ar(cid:415)culate.
` RFP 110: We are s(cid:415)ll inves(cid:415)ga(cid:415)ng this and will revert as soon as we are able to, or provide an update by
`Tuesday 8/20.
`
`3
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 166-5 Filed 10/09/24 Page 5 of 23 PageID #: 4257
`
` RFP 111: Wiz may be willing to produce responsive documents but needs clarity on what specifically is sought,
`given that this request, as propounded, is dra(cid:332)ed so vaguely as to obscure what Orca seeks. For example, Orca
`contends that every product feature provided by Wiz infringes the Orca patents, so RFP 111, which seeks
`documents rela(cid:415)ng to “the Accused Products and/or Accused Func(cid:415)onali(cid:415)es” essen(cid:415)ally seeks every single
`document in Wiz’s possession covering every single product modifica(cid:415)on that Wiz has ever considered. Please
`iden(cid:415)fy specifically what documents Orca seeks in response to RFP 111.
` RFP 112: Please explain the relevance of the addi(cid:415)onal informa(cid:415)on Orca demands beyond what we have
`iden(cid:415)fied as previously produced and responsive to this RFP.
` RFP 113: As we have repeatedly explained, this request is overly broad and unduly burdensome. Orca has not
`sufficiently narrowed this request, but if it does, we are willing to revisit this issue.
`
`
`
`Thanks,
`Lisa
`
`
`From: Krissy.McKenna@lw.com <Krissy.McKenna@lw.com>
`Sent: Monday, August 12, 2024 5:15 PM
`To: Zang, Lisa <lzang@wsgr.com>; Lucas.Lonergan@lw.com; WSGR - Orca Wiz <WSGR-Orca-Wiz@wsgr.com>;
`Cottrell@RLF.com; Farnan@RLF.com; haynes@rlf.com
`Cc: orcasecuritywiz.lwteam@lw.com; RSmith@morrisnichols.com; JBlumenfeld@MNAT.com; cclark@morrisnichols.com
`Subject: RE: Orca v. Wiz | July 9 M&C Memorialization
`
`
`EXT - krissy.mckenna@lw.com
`
`
`
`Lisa,
`
`
`We will move the call to Wednesday at your listed availability (1-2pm ET). We will schedule another meet and confer for
`Friday at 2pm ET to address issues we run out of (cid:415)me for on Wednesday.
`
`
`Best,
`Krissy
`
`
`From: Zang, Lisa <lzang@wsgr.com>
`Sent: Monday, August 12, 2024 6:49 PM
`To: McKenna, Krissy (BN) <Krissy.McKenna@lw.com>; Lonergan, Lucas (Bay Area) <Lucas.Lonergan@lw.com>; WSGR -
`Orca Wiz <WSGR-Orca-Wiz@wsgr.com>; Cottrell@RLF.com; Farnan@RLF.com; haynes@rlf.com
`Cc: #C-M ORCA SECURITY - WIZ - LW TEAM <orcasecuritywiz.lwteam@lw.com>; RSmith@morrisnichols.com;
`JBlumenfeld@MNAT.com; cclark@morrisnichols.com
`Subject: RE: Orca v. Wiz | July 9 M&C Memorialization
`
`
`Krissy,
`
`
`Please be advised that Friday 8/16 from 1:30 – 2:30 p.m. PT / 4:30 – 5:30 p.m. ET no longer works on our end.
`
`
`Thanks,
`Lisa
`
`
`From: Zang, Lisa <lzang@wsgr.com>
`Sent: Monday, August 12, 2024 2:53 PM
`To: Krissy.McKenna@lw.com; Lucas.Lonergan@lw.com; WSGR - Orca Wiz <WSGR-Orca-Wiz@wsgr.com>;
`Cottrell@RLF.com; Farnan@RLF.com; haynes@rlf.com
`
`4
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 166-5 Filed 10/09/24 Page 6 of 23 PageID #: 4258
`
`Cc: orcasecuritywiz.lwteam@lw.com; RSmith@morrisnichols.com; JBlumenfeld@MNAT.com; cclark@morrisnichols.com
`Subject: RE: Orca v. Wiz | July 9 M&C Memorialization
`
`
`Krissy,
`
`
`We will address the discovery issues raised in your email separately, but wanted to advise in the mean(cid:415)me that the (cid:415)me
`we proposed for tomorrow no longer works. As of now, we are s(cid:415)ll available on Wednesday 8/14 from 10 – 11 a.m. PT /
`1 – 2 p.m. ET. We could also meet with you on Friday 8/16 from 11 a.m. – 1 p.m. PT / 2 – 4 p.m. ET and 1:30 – 2:30 p.m.
`PT / 4:30 – 5:30 p.m. ET. Please let us know if any of those (cid:415)mes work for the Orca team.
`
`
`Thanks,
`Lisa
`
`
`From: Krissy.McKenna@lw.com <Krissy.McKenna@lw.com>
`Sent: Monday, August 12, 2024 1:23 PM
`To: Zang, Lisa <lzang@wsgr.com>; Lucas.Lonergan@lw.com; WSGR - Orca Wiz <WSGR-Orca-Wiz@wsgr.com>;
`Cottrell@RLF.com; Farnan@RLF.com; haynes@rlf.com
`Cc: orcasecuritywiz.lwteam@lw.com; RSmith@morrisnichols.com; JBlumenfeld@MNAT.com; cclark@morrisnichols.com
`Subject: RE: Orca v. Wiz | July 9 M&C Memorialization
`
`
`EXT - krissy.mckenna@lw.com
`
`
`
`Lisa,
`
`
`We will send an invite to confer tomorrow at 2pm ET. Given the number of issues to discuss, please also provide your
`availability to con(cid:415)nue conferring on Friday, August 16. We agree that we should priori(cid:415)ze issues as they were raised
`chronologically. Therefore, tomorrow, please be prepared to discuss the below issues, in order. We can con(cid:415)nue the
`discussion Friday for whichever issues we do not get to tomorrow.
`1. Wiz’s deficient document produc(cid:415)on. Contrary to your email, this was not raised for the first (cid:415)me in Lucas
`Lonergan’s August 1 email. These issues were raised June 26, and we have repeatedly requested Wiz’s
`availability to confer. See, e.g., McKenna emails from June 26, 2024, July 3, 2023, July 19, 2024, and July 29,
`2024.
`2. Wiz’s RFPs 61, 63, 65, and 67 (raised July 23, 2024);
`3. Wiz’s deficient response to Orca’s interrogatory No. 15 (see K. McKenna July 24, 2024 email);
`4. Con(cid:415)nued discussion of Wiz’s produc(cid:415)on of documents and informa(cid:415)on rela(cid:415)ng to its compe(cid:415)(cid:415)ve business
`intelligence ac(cid:415)vi(cid:415)es (see K. McKenna July 29, 2024 email);
`5. Wiz’s produc(cid:415)on of all informa(cid:415)on responsive to Orca’s RFPs that was exchanged or disclosed to
`McKenna July 30, 2024 email); and
`6. Wiz’s deficient responses to Interrogatory Nos. 4 and 12 (see K. McKenna August 7 & 9, 2024 emails).
`
` (see K.
`
`
`
`As we noted previously, please inves(cid:415)gate these issues before the meet and confer and include someone with decision
`making authority on the meet and confer, so that Wiz can provide its posi(cid:415)ons during the call. As noted above, these
`issues have all been pending for over two weeks, and in some instances, nearly two months. There is no reason Wiz
`could not have discussed its posi(cid:415)ons with your client ahead of the call so that the par(cid:415)es may (cid:415)mely and efficiently
`move forward on these issues.
`
`
`Regarding the remaining issues:
`Orca’s Core Technical Document Produc(cid:415)on: As we have discussed repeatedly, Orca produced not only thousands of
`documents, but also its complete source code and git history, which more than sufficiently describe the “opera(cid:415)on and
`design” of Orca’s AI features. Wiz’s responses have repeatedly made clear that Wiz has not inves(cid:415)gated Orca’s code or
`git history before complaining that Orca’s produc(cid:415)on is deficient. Moreover, AI-SPM is part of Orca’s security posture
`
`5
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 166-5 Filed 10/09/24 Page 7 of 23 PageID #: 4259
`
`management func(cid:415)onality (SPM) using sidescanning, and numerous documents describing that func(cid:415)onality have
`already been produced. As we have now said repeatedly, Orca remains willing to con(cid:415)nue to inves(cid:415)gate any specific
`addi(cid:415)onal documents that Wiz seeks if, for example, Wiz iden(cid:415)fies “missing” documents for the accused func(cid:415)onali(cid:415)es.
`Your email seems to emphasize that Orca's documents are not "substan(cid:415)ve" technical documents that are necessary for
`a core technical document produc(cid:415)on. We disagree, and Orca's produc(cid:415)on far exceeds the technical materials that Wiz
`has produced for the Wiz Accused Products. If you contend otherwise, please iden(cid:415)fy--as we have asked mul(cid:415)ple (cid:415)mes--
`allegedly "substan(cid:415)ve" technical documents that Wiz produced for the Accused Func(cid:415)onali(cid:415)es to comply with its core
`technical document produc(cid:415)on, so that we have an understanding of what you are alleging Wiz produced that Orca has
`not.
`
`
`Orca’s Responses to Wiz RFP Nos. 72-73: We appreciate you confirming that you are collec(cid:415)ng and producing
`informa(cid:415)on responsive to Orca’s RFP Nos. 38 and 41 including any documents referring or rela(cid:415)ng to any evalua(cid:415)ons,
`inves(cid:415)ga(cid:415)ons, studies, or analyses of Orca or the Orca Pla(cid:414)orm conducted by third par(cid:415)es, such as hired marke(cid:415)ng
`companies or intelligence companies (e.g., CGI Group, Bluehawk Intelligence Services, Kroll, or Blackcube). Please
`provide a date certain for that produc(cid:415)on. As to Wiz’s RFP Nos. 72-73, we disagree that those are “mirror image” RFPs
`to Orca’s RFP nos. 38 and 41; they are not. As we requested on the prior meet and confer, please explain what you
`believe cons(cid:415)tutes “compe(cid:415)(cid:415)ve business intelligence ac(cid:415)vi(cid:415)es,” what claims or defenses those ac(cid:415)vi(cid:415)es are relevant to,
`and why you contend “CGI group” is relevant to the issues in this case? In par(cid:415)cular, we do not understand how
`“compe(cid:415)(cid:415)ve business intelligence ac(cid:415)vi(cid:415)es” of non-par(cid:415)es in RFP 72 is relevant, and you have not provided any basis
`otherwise. Please provide this informa(cid:415)on so that we can have a produc(cid:415)ve meet and confer.
`
`
`Wiz’s Deficient Document Produc(cid:415)on: Please be prepared to discuss all issues iden(cid:415)fied in our June 26 and July 29
`emails flagging (or following up on) Wiz’s deficient document produc(cid:415)on during tomorrow’s meet and confer.
`
`
` Thank you for confirming that informa(cid:415)on exchanged
`Wiz’s Documents & Communica(cid:415)ons Exchanged with
`with
` are relevant and must be produced in response to Orca’s RFPs. However, Wiz has not produced, as far as
`we have been able to iden(cid:415)fy, any documents that were disclosed to or exchanged with
` If you contend they
`have been, please iden(cid:415)fy them by bates number. We ar(cid:415)culated exemplary documents and communica(cid:415)ons this
`entails in our July 30 email, iden(cid:415)fied the RFPs to which such documents and communica(cid:415)ons are responsive, and
`explained the relevance of these documents. Please confirm Wiz will produce this informa(cid:415)on no later than August 19,
`otherwise please be prepared to discuss this issue further during tomorrow or Friday’s meet and confers.
`
`
`Wiz’s Deficient Response to Interrogatory No. 15: Please be prepared to address during tomorrow’s meet and confer
`what informa(cid:415)on Wiz’s supplement will include, and to the extent Wiz is con(cid:415)nuing to withhold informa(cid:415)on in response
`to this interrogatory, on what basis it does so.
`
`
`Orca’s RFP Nos. 91-92, 95, 98, 99, 101, 103, and 109-113:
` RFP Nos. 91-92, 95, 98, 99, and 103: Orca responded to your July 15 email, in which we asked Wiz to confirm
`various posi(cid:415)ons or explain whether it would be supplemen(cid:415)ng its response. See K. McKenna July 26, 2024
`email. We have received no response and understand that Wiz insists we seek the Court’s guidance on these
`issues.
` RFP Nos. 101, 104-107, 109: Orca ar(cid:415)culated the relevance of these requests during the par(cid:415)es’ August 2 meet
`and confer and again in L. Lonergan’s August 5 email. We understand that despite the relevance Orca has twice
`explained, Wiz refuses to produce documents in response to these requests.
` RFP 110: Please provide a date certain by which you will supplement your response.
` RFP 111: RFPs 67 and 111 are not duplica(cid:415)ve. RFP 67 requested documents suppor(cid:415)ng or contradic(cid:415)ng
`objec(cid:415)ve indicia of non-obviousness with respect to Orca’s Asserted Patents. RFP 111 relates to Wiz’s
`understanding of the purported benefits of the Accused Products (i.e., Wiz’s pla(cid:414)orm). Please confirm you will
`supplement your response to RFP 111 by August 16.
` RFP 112: The sole document you iden(cid:415)fied (WIZ_0032938 – 957) does not provide informa(cid:415)on on the total Wiz
`spent on adver(cid:415)sing, geographic boundaries, (cid:415)ming, or keywords. Please supplement your response to provide
`this informa(cid:415)on by August 16.
`
`6
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 166-5 Filed 10/09/24 Page 8 of 23 PageID #: 4260
`
` RFP 113: We understand Wiz’s objec(cid:415)on is solely to the scope of this Request. As Rule 34 requires, please
`supplement your response by August 16 to state the scope of documents that Wiz will produce, and if any exist,
`which documents Wiz is withholding and on what basis.
`
`
`
`Best,
`Krissy
`
`
`From: Zang, Lisa <lzang@wsgr.com>
`Sent: Friday, August 9, 2024 12:54 PM
`To: McKenna, Krissy (BN) <Krissy.McKenna@lw.com>; Lonergan, Lucas (Bay Area) <Lucas.Lonergan@lw.com>; WSGR -
`Orca Wiz <WSGR-Orca-Wiz@wsgr.com>; Cottrell@RLF.com; Farnan@RLF.com; haynes@rlf.com
`Cc: #C-M ORCA SECURITY - WIZ - LW TEAM <orcasecuritywiz.lwteam@lw.com>; RSmith@morrisnichols.com;
`JBlumenfeld@MNAT.com
`Subject: RE: Orca v. Wiz | July 9 M&C Memorialization
`
`
`Krissy,
`
`
`Please see the discussion below, which addresses the various issues iden(cid:415)fied in your email below, sent August 7, 2024
`at 7:30 p.m. PT.
`
`
`(1) Deficiencies in Orca’s Core Technical Document Produc(cid:415)on
`
`
`
`As we explained by email and during the meet and confer, Orca’s core technical document produc(cid:415)on (“CTD”) is
`deficient because it does not include documents sufficient to show how Orca’s products perform the accused AI
`features. The only response Orca has provided for this issue is that it has produced a large volume of documents that
`“discuss” the accused AI features, including those iden(cid:415)fied in my July 12, July 22, and July 23 emails. This alone,
`however, is insufficient to sa(cid:415)sfy Orca’s discovery obliga(cid:415)ons because those documents fail to provide sufficient—if
`any—details about the opera(cid:415)on and design of these features. To address the example in your email, the documents
`that Orca has produced that discuss the “a(cid:425)ack path” func(cid:415)onality do not provide any substan(cid:415)ve technical discussion
`of the opera(cid:415)on of that func(cid:415)onality. Indeed, during our discussion, Orca acknowledged that documents that merely
`discuss the accused features may not provide the core technical informa(cid:415)on it is required to provide. Orca nevertheless
`refused to commit to producing addi(cid:415)onal documents that would sa(cid:415)sfy its discovery obliga(cid:415)ons in this regard, and
`instead a(cid:425)empts to place the burden on Wiz to request specific technical documents before Orca inves(cid:415)gates these
`deficiencies. This is improper, as the local rules require produc(cid:415)on of CTDs precisely to avoid this type of burden-shi(cid:332)ing
`and to encourage the early produc(cid:415)on of these documents. Please confirm by next Monday 8/12 whether Orca agrees
`to produce documents sufficient to sufficient to show how Orca’s products perform the accused AI features. We will
`otherwise understand that the par(cid:415)es are at an impasse, and request a discovery teleconference with the Court.
`
`
`
`(2) Deficiencies in Orca’s Responses to Wiz’s RFP Nos. 72-73
`
`
`
`As we explained during the meet and confer, documents regarding Orca’s compe(cid:415)(cid:415)ve business intelligence ac(cid:415)vi(cid:415)es are
`relevant to show how Orca views and evaluates its compe(cid:415)tors, and RFP No. 73, in par(cid:415)cular, is limited to those
`ac(cid:415)vi(cid:415)es as relates specifically to Wiz. To resolve this dispute, Wiz can agree to produce “any documents referring or
`rela(cid:415)ng to any evalua(cid:415)ons, inves(cid:415)ga(cid:415)ons, studies, or analyses of Orca or the Orca Pla(cid:414)orm conducted by third par(cid:415)es,
`such as hired marke(cid:415)ng companies or intelligence companies (e.g., CGI Group, Bluehawk Intelligence Services, Kroll, or
`Blackcube),” “as requested by [Orca’s] RFP Nos. 38 and 41,” which you iden(cid:415)fy as Orca’s mirror image RFPs, if Orca
`agrees to produce responsive documents to Wiz’s RFP Nos. 72 and 73. Please let us know by next Monday 8/12 whether
`Orca agrees to this proposal. We will otherwise understand that the par(cid:415)es are at an impasse, and request a discovery
`teleconference with the Court.
`
`
`
`7
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 166-5 Filed 10/09/24 Page 9 of 23 PageID #: 4261
`
`(3) Technical Issues in re: Wiz’s Document Produc(cid:415)on
`
`
`
` referenced in
`The “
`WIZ_0032710” have been produced, as we confirmed during the meet and confer last Friday 8/2. We therefore
`understand that this issue has been resolved.
`
`
`As for WIZ_0004701 and WIZ_0004700, it seems that Orca is misreading the associated metadata. These two
`documents are OLE a(cid:425)achments to WIZ_0004628, which is a PowerPoint file. In other words, these two documents are
`embedded files in that PowerPoint. In view of this, we understand that this issue to also be resolved.
`
`
`Our inves(cid:415)ga(cid:415)on into the remaining issues iden(cid:415)fied in your July 29 email is ongoing and we will aim to provide an
`update by next Friday 8/16.
`
`
`
`(4) Orca’s Demand for Informa(cid:415)on Disclosed/Exchanged with
`
`
`
`
`
`Wiz has collected and produced, and will con(cid:415)nue to collect and produce, responsive, non-privileged documents and
`informa(cid:415)on as stated in our discovery responses and/or agreed to in the course of meet and confers with Orca. If there
`is something that you believe would have been exchanged with or disclosed to
` and needs to be produced
`beyond that, please iden(cid:415)fy it and ar(cid:415)culate its purported relevance. As noted in earlier meet and confers, the fact that
`a par(cid:415)cular document or piece of informa(cid:415)on is not burdensome to collect and produce does not alone render it
`relevant and discoverable.
`
`
`
`(5) Wiz’s Response to Orca’s Interrogatory No. 15
`
`
`
`We are con(cid:415)nuing to inves(cid:415)gate the issues of this interrogatory and aim to provide an update by next Friday 8/16.
`
`
`
`(6) Orca’s RFP Nos. 91-92, 95, 98, 99, 101, 103-107, 109-113
`
`
`I provided Wiz’s posi(cid:415)ons on Orca’s RFP Nos. 91-92, 95, 98, 99, and 103 in my July 15, 2024 email. With regard to (a)
`Orca’s RFP Nos. 101 and 109-113, and (b) RFP Nos. 104-107 (the la(cid:425)er of which were not iden(cid:415)fied in your email below
`but were raised in Lucas Lonergan’s August 5, 2024 email), we note as follows, as discussed during the August 2 meet
`and confer.
`
`
` RFP Nos. 101, 104-107, 109, : We asked for an ar(cid:415)cula(cid:415)on of the supposed relevance of these RFPs during the
`meet and confer. Orca has yet to ar(cid:415)culate a non-objec(cid:415)onable basis for these RFPs, but we are of course
`willing to revisit these issues if Orca does so ar(cid:415)culate.
`
` RFP No. 110: During the meet and confer, we asked Orca to iden(cid:415)fy what this RFP seeks beyond what Wiz has
`already agreed to produce in connec(cid:415)on with its ESI searches regarding customer communica(cid:415)ons. As your
`email notes, Orca “clarified that this request is seeking informa(cid:415)on that Wiz itself maintains, for example in a
`central repository.” We are inves(cid:415)ga(cid:415)ng the availability of such a central repository and will revert once our
`inves(cid:415)ga(cid:415)on is complete.
`
` RFP No. 111: Please iden(cid:415)fy what responsive, non-privileged informa(cid:415)on is sought by this RFP and not already
`encompassed by Orca’s other RFPs, including RFP No. 67, for which we have agreed to produce responsive