Case 1:23-cv-00758-JLH-SRF Document 166-7 Filed 10/09/24 Page 1 of 13 PageID #: 4282
`Case 1:23-cv-00758-JLH-SRF Document 166-7 Filed 10/09/24 Page 1 of 13 PagelD #: 4282
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`EXHIBIT 6
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` EXHIBIT 6
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`Case 1:23-cv-00758-JLH-SRF Document 166-7 Filed 10/09/24 Page 2 of 13 PageID #: 4283
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`ORCA SECURITY LTD.,
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`Plaintiff,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`)
`) CONFIDENTIAL -
`) ATTORNEYS’ EYES ONLY
`)
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`ORCA SECURITY LTD.’S EIGHTH SUPPLEMENTAL RESPONSES AND
`OBJECTIONS TO DEFENDANT WIZ INC.’S FIRST SET OF INTERROGATORIES
`(NOS. 1-13)
`
`v.
`
`
`WIZ, INC.,
`
`C.A. No. 23-0758 (JLH)
`
`
`Defendant.
`
`Pursuant to Federal Rules of Civil Procedure 26 and 33 and the District of Delaware’s Civil
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`Local Rule 26, Plaintiff Orca Security Ltd. (“Orca” or “Plaintiff”) hereby provides its responses
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`and objections to Wiz, Inc.’s (“Defendant” or “Wiz”) First Set of Interrogatories (“Interrogatories”
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`or “Interrogatory”) as set forth below.
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`GENERAL OBJECTIONS
`
`
`
`The following general objections are incorporated by reference into Plaintiff’s responses
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`to each and every Interrogatory.
`
`1.
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`Orca’s responses are based upon information currently known to it through
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`reasonable investigation thus far, and are subject to amendment, supplementation, and/or other
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`modification. Discovery in this matter is ongoing, and during the course of subsequent discovery,
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`Orca may become aware of additional information that may be responsive to these Interrogatories.
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`As a result, Orca may update, amend, supplement, or otherwise modify these responses. By
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`providing these responses, Orca does not, and does not intend to, waive its right to rely on evidence
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`or information that is subsequently discovered through its continuing investigation and/or included
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`Case 1:23-cv-00758-JLH-SRF Document 166-7 Filed 10/09/24 Page 3 of 13 PageID #: 4284
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`
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`INTERROGATORY NO. 12:
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`Describe with specificity and precision how You got access to the non-publicly accessible
`Wiz webpage, attached as Exhibit 4 to Your Complaint, including but not limited to, how, from
`whom, and when You first received access to the document, all communications or discussions
`with any Entity or Third-Party related to the document, any other proprietary or restricted
`information You have accessed or viewed related to Wiz, including Wiz’s portal, and describe
`with specificity and precision what understanding You had of the confidentiality and contractual
`requirements governing receipt of restricted or proprietary Wiz information. The requested
`description shall include all documents and things that support your response and identification of
`all persons knowledgeable regarding the subject matter of this interrogatory and the nature and
`extent of their knowledge.
`
`RESPONSE TO INTERROGATORY NO. 12:
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`Orca incorporates all of its General Objections as if specifically set forth herein. Orca
`
`further objects to this Interrogatory as overly broad, unduly burdensome, and not proportional to
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`the needs of the case because it is unlimited in time or scope. Orca objects to this Interrogatory as
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`irrelevant to any claim or defense in this Litigation. Orca objects to this Interrogatory because it
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`seeks expert discovery prior to the scheduled time to exchange said information under the
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`Scheduling Order. Orca objects to this Interrogatory to the extent it calls for a legal conclusion.
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`Orca objects to this Interrogatory’s use of the terms “Entity” and “Third-Party” as vague and
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`ambiguous, overly broad, and unduly burdensome. Orca also objects to this Interrogatory’s use of
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`the terms “access,” “Entity,” “Third-Party,” “Wiz’s Portal,” and “restricted” as vague and
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`ambiguous. Orca further objects to this Interrogatory to the extent it seeks information protected
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`by the attorney-client privilege, work-product immunity, and/or any other applicable exception or
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`privilege. Orca further objects to this Interrogatory to the extent it seeks information that is
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`publicly available and equally available to Wiz as to Orca. Orca also objects to this Interrogatory
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`as consisting of multiple discrete sub-parts, including (1) description of Orca’s access to Exhibit
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`4; (2) information related to supposed “other proprietary or restricted information”; and (3) Orca’s
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`134
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`Case 1:23-cv-00758-JLH-SRF Document 166-7 Filed 10/09/24 Page 4 of 13 PageID #: 4285
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`understanding of certain unidentified confidentiality and contractual requirements.
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`Subject to and without waiving the foregoing General and Specific Objections, Orca
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`answers as follows:
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`Orca is willing to meet and confer with Wiz regarding the scope, substance, and relevance,
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`if any, of this Interrogatory.
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`Orca is continuing its investigation of the facts and may supplement, amend, and/or modify
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`this response as further information becomes available.
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`FIRST SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 12 (April 23, 2024):
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`Subject to and without waiving the foregoing General and Specific Objections, Orca further
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`responds as follows:
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`As set forth in the Complaint, Wiz has built its business on copying Orca. Wiz’s “Agentless
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`Scanning” document attached as Exhibit 4 to the Complaint is provided as one such example.
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`Where Orca’s early marketing materials refer to its cloud-native approach as being analogous to a
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`medical MRI, Wiz’s “Agentless Scanning” document copies that same message. Wiz’s suggestion
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`in Interrogatory No. 12 that Wiz’s “Agentless Scanning” document, which contains information
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`copied from Orca, is “restricted” is surprising. If Wiz was concerned regarding restricted (or
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`restricting) access to that document, Orca would have expected Wiz to identify such concerns
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`when Orca first filed its Complaint on July 12, 2023, or its First Amended Complaint on September
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`1, 2023, or its Second Amended Complaint on October 10, 2023. Wiz did not raise any such
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`concerns.
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`This is unsurprising, as several versions of Wiz’s “Agentless Scanning” document, along
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`with other documents from Wiz’s portal https://docs.wiz.io, are publicly available at various online
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`sources.
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`See,
`
`e.g.,
`
`
`
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`https://www.studocu.com/es-mx/document/unidad-profesional-inter
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`135
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`Case 1:23-cv-00758-JLH-SRF Document 166-7 Filed 10/09/24 Page 5 of 13 PageID #: 4286
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`
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`disciplinaria-de-ingenieria-y-ciencias-sociales-y-administrativas-ipn/seguridad-informatica/how-
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`wiz-works-faq-guia-de-seguridad-cloud-herramienta-wiz/83937416;
`
`https://gitlab.com/gitlab-
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`org/distribution/team-tasks/-/issues/1465;
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`https://gitlab.com/gitlab-org/distribution/team-
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`tasks/uploads/f1dc179490bd85b9775315857af87a0d/Agentless_Scanning.pdf. As indicated on
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`the GitLab page, for example, these documents are considered “Not confidential.”
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`
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`https://gitlab.com/gitlab-org/distribution/team-tasks/-/issues/1465.
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`Wiz first requested additional information from Orca regarding Exhibit 4 to the Complaint
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`in a letter dated November 3, 2023, nearly four months after it was filed as part of Orca’s initial
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`Complaint. In the letter, Wiz asked how Orca received Exhibit 4 and copied a provision of what
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`Wiz purported to be from “Wiz’s Master Subscription Agreement” discussing certain restrictions
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`for “Confidential Information.” Orca responded to Wiz on November 10, 2023, explaining that
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`based on its present investigation, Orca received Exhibit 4 to the Complaint from a third party
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`some time in 2022, and that Exhibit 4 bears a stamp indicating it was downloaded on January 19,
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`2022. Exhibit 4 does not include any marking or other insignia indicating that it contains Wiz’s
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`“Confidential Information” or that access is otherwise restricted. Orca further explained “we see
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`136
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`no basis for your suggestion that the ‘Master Subscription Agreement’ applies. From Wiz’s
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`website, the first version of Wiz’s MSA was first effective nearly 18 months later on July 5, 2023.”
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`See https://legal.wiz.io/group-h164vtmrn#template-bcymzlnvv (“Version 1.0” “Effective July 5,
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`2023 to August 14, 2023”). Wiz did not respond to Orca’s November 10, 2023 letter or otherwise
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`request that Orca take any further action with respect to Exhibit 4.
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`Orca further notes that Exhibit 4 is from the following URL: https://docs.wiz.io/wiz-
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`docs/docs/agentless-scanning#why-wasnt-a-disk-scanned. That URL does not refer to any
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`“Master Subscription Agreement,” nor does the root URL https://docs.wiz.io. Instead, persons
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`accessing docs.wiz.io (as of April 22, 2024) are redirected to a login page, a URL beginning
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`app.wiz.io/login, that states “By logging in, you acknowledge that you have read and agree to the
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`Wiz Privacy Policy.”
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` The
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`“Privacy Policy”
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`is
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`a
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`click
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`through
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`link
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`to
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`https://legal.wiz.io/legal#privacy-policy, which purports to “describe[] how we, Wiz, Inc. and our
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`affiliates (‘we’, ‘our’ or ‘us’) process, use, collect and store Personal Information.” Wiz has not
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`identified any part of the Privacy Policy indicating that any accessible Wiz documentation is
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`restricted or confidential.
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`Orca is continuing its investigation of the facts and may supplement, amend, and/or modify
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`this response as further information becomes available.
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`SECOND SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 12 (July 12,
`2024):
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`Subject to and without waiving the foregoing General and Specific Objections, Orca further
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`responds as follows:
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`A former Orca employee, Mor Himi (last employed by Orca in February 2024), received
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`access to docs.wiz.io beginning on or around January, 2022. Based on information and belief, Mr.
`
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`Case 1:23-cv-00758-JLH-SRF Document 166-7 Filed 10/09/24 Page 7 of 13 PageID #: 4288
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`Himi received access to docs.wiz.io from a former Orca customer, AroundTown, that had switched
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`from Orca’s Platform to Wiz’s Platform in 2021. Mr. Himi downloaded certain documents from
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`docs.wiz.io, including Exhibit 4 to the Complaint, and shared those documents with other Orca
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`employees. Orca is not aware of any confidentiality or contractual requirements governing the
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`availability of documents at docs.wiz.io. On information and belief, Wiz provides access to and
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`shows documents at docs.wiz.io without confidentiality restrictions,
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`including during
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`demonstrations of Wiz’s platform at trade shows and conferences.
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`Orca is continuing its investigation of the facts and may supplement, amend, and/or modify
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`this response as further information becomes available.
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`THIRD SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 12 (September 30,
`2024):
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`Subject to and without waiving the foregoing General and Specific Objections, Orca further
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`responds as follows:
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`Mr. Himi downloaded and shared one or more documents from docs.wiz.io with other Orca
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`employees including Ido Geffen, Avi Shua, Gil Geron, and Yoav Alon. Additional information
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`relating to documents originating with or created by Wiz may be found in the following
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`documents: ORCA_0938682, ORCA_0938685, ORCA_0938687, ORCA_0938690,
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`ORCA_0938702, ORCA_0938704, ORCA_0938714, ORCA_0938714, ORCA_0938717,
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`ORCA_0938720, ORCA_0938732, ORCA_0938764, ORCA_0938771, ORCA_0938795,
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`ORCA_0938807, ORCA_0938815, ORCA_0938827, ORCA_0938835, ORCA_0938843,
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`ORCA_0938850, ORCA_0938854, ORCA_0938858, ORCA_0938866, ORCA_0938879,
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`ORCA_0938888, ORCA_0938905, ORCA_0938916, ORCA_0938924, ORCA_0938956,
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`ORCA_0938964, ORCA_0938969, ORCA_0938979, ORCA_0938981, ORCA_0938987,
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`138
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`Case 1:23-cv-00758-JLH-SRF Document 166-7 Filed 10/09/24 Page 8 of 13 PageID #: 4289
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`ORCA_0938992, ORCA_0939003, ORCA_0939012, ORCA_0939018, ORCA_0939021,
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`ORCA_0939027, ORCA_0939029, ORCA_0939031, ORCA_0939039, , ORCA_0939058,
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`ORCA_0939062, ORCA_0939065, ORCA_0939068, ORCA_0939072, ORCA_0939075,
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`ORCA_0939079, ORCA_0939096, ORCA_0939097, ORCA_0939106, ORCA_0939107,
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`ORCA_0939113, ORCA_0939128, ORCA_0939163, ORCA_0939163, ORCA_0939195,
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`ORCA_0939195, ORCA_0939217, ORCA_0939207, ORCA_1003606, ORCA_1003608,
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`ORCA_1003611, ORCA_1003621, ORCA_1003627, ORCA_1003638, ORCA_1003643,
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`ORCA_1003648, ORCA_1003656, ORCA_1003664, ORCA_1003672, ORCA_1003683,
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`ORCA_1003693, ORCA_1003695, ORCA_1003701, ORCA_1003703, ORCA_1003714, and
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`ORCA_1003721.
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`Orca is continuing its investigation of the facts and may supplement, amend, and/or modify
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`this response as further information becomes available.
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`INTERROGATORY NO. 13:
`
`Describe with specificity and precision if You have received access to any Documents from
`Wiz, related to Wiz, or created by Wiz, including but not limited to the Request for 14 Proposal
`referenced in Orca Security, Inc. v. Jacques, 1:22-cv-01048-CFC (D. Del. August 10, 2022), D.I.
`10, how, from whom, and when You first received access to those documents, all communications
`or discussions with any Entity or Third-Party related to the documents, any other proprietary or
`restricted information You have accessed or viewed related to the documents, and describe with
`specificity and precision what understanding You had of the confidentiality and contractual
`requirements governing receipt of restricted or proprietary Wiz information. The requested
`description shall include all documents and things that support your response and identification of
`all persons knowledgeable regarding the subject matter of this interrogatory and the nature and
`extent of their knowledge.
`
`RESPONSE TO INTERROGATORY NO. 13:
`
`Orca incorporates all of its General Objections as if specifically set forth herein. Orca
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`further objects to this Interrogatory as overly broad, unduly burdensome, and not proportional to
`
`the needs of the case because it is unlimited in time or scope and requests “all documents and
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`139
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`Case 1:23-cv-00758-JLH-SRF Document 166-7 Filed 10/09/24 Page 9 of 13 PageID #: 4290
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`things” that support Orca’s response and “all persons” knowledgeable regarding the subject matter
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`of this interrogatory. Orca objects to this Interrogatory as not relevant to any claim or defense in
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`this Litigation. Orca objects to this Interrogatory because it seeks expert discovery prior to the
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`scheduled time to exchange said information under the Scheduling Order. Orca objects to this
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`Interrogatory to the extent it calls for a legal conclusion. Orca objects to this Interrogatory’s use
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`of the terms “Entity,” “Third-Party,” and “restricted” as vague and ambiguous, overly broad, and
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`unduly burdensome. Orca also objects to this Interrogatory’s use of the term “access” as vague
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`and ambiguous. Orca further objects to this Interrogatory to the extent it seeks information
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`protected by the attorney-client privilege, work-product immunity, and/or any other applicable
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`exception or privilege. Orca further objects to this Request to the extent it seeks information which
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`is confidential or proprietary to, or the trade secrets of, a non-party, and which Orca is under an
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`obligation and duty to the non-party to not disclose, unless the non-party agrees to a suitable
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`protective order or consents in writing to Orca to the disclosure. Orca further objects to this
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`Interrogatory to the extent it seeks information that is publicly available and equally available to
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`Wiz as to Orca. Orca also objects to this Interrogatory as consisting of multiple discrete sub-parts,
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`including (1) whether Orca received access to any Wiz documents; (2) information related to
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`supposed “other proprietary or restricted information”; and (3) Orca’s understanding of certain
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`unidentified confidentiality and contractual requirements. Orca further objects to this
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`Interrogatory to the extent that its sub-parts contain further sub-parts.
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`Subject to and without waiving the foregoing General and Specific Objections, Orca
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`answers as follows:
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`Orca is willing to meet and confer with Wiz regarding the scope, substance, and relevance,
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`if any, of this Interrogatory.
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`140
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`Case 1:23-cv-00758-JLH-SRF Document 166-7 Filed 10/09/24 Page 10 of 13 PageID #:
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`Orca is continuing its investigation of the facts and may supplement, amend, and/or modify
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`this response as further information becomes available.
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`FIRST SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 13 (April 23, 2024):
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`Subject to and without waiving the foregoing General and Specific Objections, Orca further
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`responds as follows:
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`On May 20, 2021, Orca’s former Senior Sales Engineer, Nicole Jacques (“Jacques”)
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`executed Orca’s Proprietary Information and Inventions Assignment Agreement (the “PIIAA”),
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`which contained clear obligations not to use or disclose Orca’s confidential and trade secret
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`information without authorization at any time during or following Jacques’s employment by Orca.
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`In addition, the PIIAA contained clear and reasonable non-competition and non-solicitation
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`provisions, pursuant to which Jacques agreed not to engage in any business or activity in
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`competition with Orca or solicit any of Orca’s customers or prospective customers for a period of
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`twelve (12) months following the termination of Jacques’s employment with Orca.
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`While working for Orca, Jacques worked directly with Orca’s customers and prospective
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`customers and was responsible for managing relationships with at least one hundred and six (106)
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`of Orca’s customers and prospective customers. In order to cultivate and maintain these
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`relationships on behalf of Orca, Jacques was given access to confidential and trade secret
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`information and intellectual property in order to discuss with customers Orca’s services offerings,
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`the cost and pricing structures for the service offerings, the timing and scheduling of services, and
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`planning and logistical information, all of which are Orca’s Confidential Information.
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`On May 8, 2022, Jacques terminated her employment with Orca and, in breach of the
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`PIIAA, immediately joined Wiz. Orca discovered that Jacques had joined Wiz on or about June
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`20, 2022. Orca made this discovery after seeing a note intended for Jacques from another
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`141
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`employee at Wiz in connection with a potential customer’s RFP that Jacques first learned of while
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`employed at Orca. The note was attached to a document that Orca received from the potential
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`customer in connection with Wiz’s response to the RFP.
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`On information and belief, Wiz knew or should have known that Jacques used Orca’s
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`Confidential Information in connection with Wiz’s RFP to the potential customer. For example,
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`Jacques attempted to conceal her move to Wiz by refusing to advise Orca of her career plans after
`
`leaving Orca. Jacques also did not update her professional credentials on LinkedIn or similar
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`social media and industry groups and communities until on or around July 21, 2022—almost two
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`months after she started her position at Wiz. Orca incorporates by reference its Complaint in Orca
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`Security, Inc. v. Jacques, 1:22-cv-01048-CFC (D. Del. August 10, 2022), D.I. 1.
`
`Following Orca’s submission of the declaration in Orca Security, Inc. v. Jacques, 1:22-cv-
`
`01048-CFC (D. Del. August 10, 2022), D.I. 10, Orca received communications from the potential
`
`customer that Wiz had notified them regarding the potential customer’s disclosure of Wiz’s
`
`response to the RFP to Orca. Orca is not aware of any information that was contained in Wiz’s
`
`response to the RFP that was “proprietary” to or “restricted” by Wiz, but, at the potential
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`customer’s request, Orca issued a directive to delete any remaining copies of Wiz’s response to
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`the potential customer’s RFP on or around August 25, 2022. Based on its current investigation,
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`Orca is not in possession of any copies of the “Request for 14 Proposal referenced in Orca Security,
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`Inc. v. Jacques, 1:22-cv-01048-CFC (D. Del. August 10, 2022), D.I. 10.”
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`Pursuant to Fed. R. Civ. P. 33(d), further information responsive to this interrogatory may
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`be derived from documents and materials that have been or will be produced in this action,
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`including ORCA_0022520-ORCA_0022521.
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`Orca is continuing its investigation of the facts and may supplement, amend, and/or modify
`
`142
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`Case 1:23-cv-00758-JLH-SRF Document 166-7 Filed 10/09/24 Page 12 of 13 PageID #:
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`this response as further information becomes available.
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`SECOND SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 13 (July 12,
`2024):
`
`Subject to and without waiving the foregoing General and Specific Objections, Orca further
`
`responds as follows:
`
`Orca incorporates by reference its responses, including supplements thereto, to
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`Interrogatory No. 12.
`
`Orca is continuing its investigation of the facts and may supplement, amend, and/or modify
`
`this response as further information becomes available.
`
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`143
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`Case 1:23-cv-00758-JLH-SRF Document 166-7 Filed 10/09/24 Page 13 of 13 PageID #:
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`MORRIS, NICHOLS, ARSHT &TUNNELL LLP
`
`/s/ Cameron P. Clark
`___________________________________
`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
`
`September 30, 2024
`
`144
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`