Case 1:23-cv-00758-JLH-SRF Document 168 Filed 10/10/24 Page 1 of 6 PageID #: 4323
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`IN THE UNITED STATES DISTRICT COURT
`FOR DISTRICT OF DELAWARE
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`ORCA SECURITY LTD.,
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`Plaintiff,
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`v.
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`WIZ, INC.
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`Defendants.
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`C.A. No. 23-0758-JLH-SRF
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`REDACTED PUBLIC VERSION
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`LETTER TO THE HONORABLE SHERRY R. FALLON FROM
`KELLY E. FARNAN REGARDING DISCOVERY DISPUTE
`
`Frederick L. Cottrell, III (#2555)
`Kelly E. Farnan (#4395)
`Christine D. Haynes (#4697)
`RICHARDS, LAYTON & FINGER, P.A.
`One Rodney Square
`920 N. King Street
`Wilmington, DE 19801
`(302) 658-6541
`cottrell@rlf.com
`farnan@rlf.com
`haynes@rlf.com
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`Counsel for Defendant Wiz, Inc.
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`OF COUNSEL:
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`Jordan R. Jaffe
`Lisa Zang
`Catherine Lacy
`Callie Davidson
`Alex Miller
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`(415) 947-2000
`
`Praatika Prasad
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`1301 Avenue of the Americas, 40th Floor
`New York, NY 10019-6022
`(212) 999-5800
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`Dated: October 2, 2024
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`

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`Case 1:23-cv-00758-JLH-SRF Document 168 Filed 10/10/24 Page 2 of 6 PageID #: 4324
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`Dear Judge Fallon:
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`Pursuant to the Court’s August 30, 2024 order (D.I. 130), Defendant Wiz, Inc. (“Wiz”)
`seeks this Court’s assistance with the deficiencies in Plaintiff Orca Security, Ltd.’s (“Orca”) (1)
`responses to Wiz’s RFP Nos. 72 and 73, (2) responses to Wiz’s Interrogatory Nos. 12 and 13, and
`(3) production of core technical documents.
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`Background: Orca continues to take an unreasonable and disproportionate approach to
`discovery.1 The Court recognized as much in its previous Orders denying Orca’s excessive
`demands. See D.I. 62 (denying Orca’s demand for all Wiz source code); D.I. 139 at 3 (denying
`Orca’s demand for complete source code and change logs “because the requested relief is
`overbroad,” and denying Orca’s request for discovery related to agent-based technology in view
`of Orca’s assertion of patents relating to agentless technology). By contrast, Wiz has sought
`targeted discovery and worked cooperatively on the issues directly relevant to this case: for
`example, discovery related to Orca’s hiring of former intelligence operatives to investigate Wiz
`and Orca’s illicit possession of “Wiz’s data model” that was recently revealed. Yet, Orca seeks to
`avoid this key discovery despite Wiz’s extensive efforts to resolve them without court intervention.
`Id.
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`Orca’s Responses to Wiz’s RFP Nos. 72 and 73: Wiz’s RFP Nos. 72 and 73 seek
`documents “showing or Relating to Orca’s competitive business intelligence activities” including
`“communications with and documents Relating to CGI GROUP” (RFP No. 72) and, specifically,
`those “Relating to Wiz” (RFP No. 73). Ex. 3 at 11.
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`“CGI Group” is a “business intelligence” firm run by the former head of Israel’s General
`Security Services, and
`further
`includes other prior veterans of security services.
`https://cgi.co.il/About-en.html. CGI Group performs what it calls “business intelligence”: “The
`term intelligence refers to the systematic collection, processing and analysis of raw and general
`information about the competitive business environment, and its presentation as a comprehensive
`picture to organizational decision-makers.” https://cgi.co.il/BusinessIntelligence-en.html. Wiz
`suspects that Orca has been working with CGI Group on alleged “business intelligence” about Wiz
`and potentially individuals associated with Wiz.
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`1 Orca has consistently implemented a double standard to discovery. The parties did not reach two
`of Wiz’s issues during the recent meet and confer because Orca insisted on injecting irrelevant
`disputes into the discussion. Orca’s October 1 10:05 p.m. email confirms that it will not change
`the positions it has taken in multiple other meet and confers. Ex. 1 at 2-6. And while Orca
`previously asserted that it could raise an ESI dispute that it had previously “taken off the table,”
`(Ex. 2 at 1), it now argues that Wiz cannot similarly raise issues relating to RFP No. 72. Ex. 1 at
`6.
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`1
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`Case 1:23-cv-00758-JLH-SRF Document 168 Filed 10/10/24 Page 3 of 6 PageID #: 4325
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`These RFPs thus seek information about highly relevant competitive business intelligence,
`including specifically as to Wiz. In addition, they seek information about how Orca views and
`evaluates its competitors. This information is not only relevant to damages issues, but also Orca’s
`investigation into Wiz in deciding to file suit against Wiz, which Orca considers a competitor. See,
`e.g. D.I. 15, ¶¶ 14 (“Wiz . . . compete[s] directly with Orca”); 71 (“Orca is entitled to injunctive
`relief and damages adequate to compensate it for infringement. . . .”).
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`In an effort to resolve this dispute and another raised by Orca, Wiz proposed that each party
`produce documents in response to the other’s corresponding requests about competitive
`activities—here, Wiz’s RFP Nos. 72 and 73 and Orca’s RFP Nos. 38 and 41.2 For RFP No. 73,
`Orca initially agreed to investigate whether it has responsive documents. For RFP No. 72, Orca
`refused to conduct any investigation or produce any documents whatsoever. Ex. 4 at 1. Orca
`reversed course during a subsequent meet and confer and now refuses to produce anything in
`response to both RFP Nos. 72 and 73. Ex. 5 at 3. Orca’s own RFPs and reneged offer shows that
`it agrees these items are relevant. But upon discovering that Wiz was willing to produce in
`response to Orca’s RFPs, Orca refused to similarly do so. Orca has effectively waived any
`argument as to relevance. Orca’s only other articulated basis for objection is its claim that it does
`not understand what “competitive business intelligence activities” are. Ex. 4 at 6. Wiz has
`provided Orca with the commonly understood definition of this phrase, i.e., any type of business
`intelligence activities relating to Orca’s competition and competitive efforts, including as relates
`to gathering information about competitors, comparisons with competitors, and development of
`business and/or competitive strategies as a result of such information gathering. Id. at 3.
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`Orca should be compelled to produce non-privileged, responsive documents to RFP Nos.
`72 and 73 within two weeks of the Court’s order. If, as Orca claims, the only documents responsive
`to these RFPs are indeed privileged, Orca should be compelled to explain the basis for its privilege
`claim over these documents.
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`Orca’s Responses to Wiz’s Interrogatory Nos. 12 and 13: Interrogatory Nos. 12 and 13
`have been the subject of at least 5 verbal meet and confers and numerous emails, but Orca refuses
`to provide complete responses to either Interrogatory.
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`Interrogatory No. 12 seeks a description of how Orca obtained access to certain Wiz
`material that is not publicly accessible, including the Wiz webpage attached as Exhibit 4 to Orca’s
`complaint, and an identification of all documents relating to its access. Interrogatory No. 13
`seeks a description of whether Orca has received any other documents from or related to Wiz, and
`the circumstances relating to its receipt of those documents. See Ex. 6 at 134, 139.
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`2 Orca initially claimed that Wiz’s RFP Nos. 72 and 73 are mirror images of its RFP Nos. 38 and
`41 but later reneged that representation. Ex. 4 at 12. Still, it maintains that its RFPs are proper
`but Wiz’s are not.
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`2
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`Case 1:23-cv-00758-JLH-SRF Document 168 Filed 10/10/24 Page 4 of 6 PageID #: 4326
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`Orca initially refused to provide substantive responses, claiming these requests were not
`relevant to Wiz’s defenses, but later agreed to supplement its responses after Wiz filed its answer
`and counterclaims. Almost a month later, Orca provided supplemental responses that, again, fail
`to respond to these interrogatories.
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`In response to Interrogatory No. 12, Orca states that
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` Id. at 138. After months of Wiz asking for an explanation about why
`Orca had only produced one document (singular)—the one and same document attached to Orca’s
`complaint as Exhibit 4—Orca finally supplemented its response t
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` Id. at 138-139. But Orca has still not provided a narrative
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`. Orca has
` that would fall within the scope
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`response about
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`also
`of the information requested.
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`For Interrogatory No. 13, Orca simply incorporates its response to Interrogatory No. 12.
`This is insufficient because the latter does not identify any additional responsive documents or
`confirm that Orca did not receive any other documents from Wiz or related to Wiz—that is a
`greater subset of documents than those downloaded by the Orca employee identified in response
`to Interrogatory No. 12. Orca clearly has additional documents related to Wiz in its possession
`but has not supplemented its response to include information about those documents. For example,
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` is significant, and
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` The same is true of any
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`raises a host of questions. Orca must explain how, from whom, and when
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`other documents falling within the scope of Interrogatory No. 13.
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`Orca should be compelled to supplement its responses to Interrogatory Nos. 12 and 13, or
`confirm that no additional information is available to it at this time, within two weeks of this
`Court’s order.
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`Orca’s Deficient Core Technical Document Production: Orca has an obligation to
`produce core technical documents showing the operation of its accused products, features, and
`functionalities. This obligation arises not only under this District’s Default Standard for
`Discovery, but also in response to Wiz’s RFP No. 75 for detailed technical documentation showing
`the nature, functionality, design, structure, and operation of each accused functionality. See
`Default Standard, ¶ 4.b (“core technical documents related to the accused product(s), including but
`not limited to operation manuals, product literature, schematics, and specifications”); Ex. 8 at 10
`(RFP No. 75: “[a]ll documents (including but not limited to schematics, diagrams, technical
`descriptions, specifications, API documentation, developer manuals, user guides, operating
`instructions, and/or source code”). Orca nevertheless refuses to produce these fundamental
`documents, or alternatively, to confirm that no other such documents exist beyond what it has
`produced to date.
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`3
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`Case 1:23-cv-00758-JLH-SRF Document 168 Filed 10/10/24 Page 5 of 6 PageID #: 4327
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`Orca claims that its obligations are satisfied by its source code and git history productions,
`because both were provided in their entirety, and by certain documents it identified to Wiz.3 They
`do not. First, it does not matter that Orca produced its entire source code and git history if neither
`contains the requisite technical details. This is the exact opposite of what Orca previously
`successfully argued to this Court: “a litigant’s decision to produce source code does not relieve it
`of its obligation to produce other core technical documents.”4 D.I. 58 at 2-3 (quoting Cirba Inc.
`v. VMWare, Inc., C.A. No. 2021 WL 7209447, at *6 (D. Del. Dec. 14, 2021)) (emphasis added).
`Second, as Wiz has repeatedly informed Orca, none of these sources shows the operation of Orca’s
`accused products, features, and functionalities. Specifically, Orca’s source code, git history, and
`produced documents do not describe: (1) the AI-powered search functionality (D.I. 124, ¶¶ 111-
`120), (2) the AI security posture management (“AI-SPM”) functionality (id., ¶¶ 131-140), (3) the
`attack path analysis, or (4) the population of Orca’s graph database (see, e.g., id., ¶¶ 44-47, 59-65,
`76-80). See generally Ex. 9.
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`During the meet and confer process, Orca claimed that an Orca document—which appears
`to be some form of marketing disclosure or user guide—contains the requisite technical
`disclosures. It does not. See Ex. 10 at ORCA_0001956 (no explanation of how attack paths are
`identified or what steps are taken), ORCA_0001983 (no technical information about how alerts
`are created), ORCA_0002057 (no description of how remediation steps are decided or
`implemented); ORCA_0003332 (no technical detail about how general functions are implemented
`specific to Orca’s products, or how these features make use of AI).
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`Orca also represented that documents describing further technical aspects of its accused
`products, features, and functionalities would be produced in its priority ESI production by August
`30, 2024. Orca claims to have completed that production, but has still not identified which
`documents (if any) would fall within its technical production obligations. Nor has Wiz located
`any such documents, despite an extensive review.
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`Orca refuses to produce any missing core technical documents, or to confirm that no other
`such documents exist. It should be compelled to produce responsive technical documents and
`identify which ESI documents, if any, are responsive.
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`Wiz respectfully requests
`contemporaneously herewith.
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`that
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`this Court enter Wiz’s Proposed Order filed
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`***
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`3 Ex. 9 at 3.
`4 Orca claimed during a meet and confer that it has no obligation to produce any missing core
`technical documents because Wiz produced “limited code.” Ex. 9 at 1. This is irrelevant. Orca’s
`production obligations are independent of Wiz’s obligations (which Wiz has satisfied). And as
`the Court has made clear, Wiz is not obligated to produce all source code. D.I. 62, 139.
`4
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`Case 1:23-cv-00758-JLH-SRF Document 168 Filed 10/10/24 Page 6 of 6 PageID #: 4328
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`Respectfully,
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`/s/ Kelly E. Farnan
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`Kelly E. Farnan (#4355)
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`Counsel of Record (by e-mail)
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