Case 1:23-cv-00758-JLH-SRF Document 168-2 Filed 10/10/24 Page 1 of 8 PageID #: 4330
`Case 1:23-cv-00758-JLH-SRF Document 168-2 Filed 10/10/24 Page 1 of 8 PagelD #: 4330
`
`EXHIBIT 1
`
` EXHIBIT 1
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 168-2 Filed 10/10/24 Page 2 of 8 PageID #: 4331
`
`Robinson, Kathryn
`From:
`Sent:
`To:
`
`Cc:
`Subject:
`
`Prasad, Praatika
`Wednesday, October 2, 2024 1:16 PM
`Nicole.Bruner@lw.com; orcasecuritywiz.lwteam@lw.com;
`JBlumenfeld@morrisnichols.com; RSmith@morrisnichols.com; cclark@morrisnichols.com
`WSGR - Orca Wiz; Cottrell@RLF.com; Farnan@RLF.com; haynes@rlf.com
`RE: Orca v. Wiz - Memorialization of 9/30 M&C
`
`Wiz and
`
` Highly Confidential – Attorneys’ Eyes Only Information
`
`Nicole,
`
`Your misrepresentations and accusations about “Wiz’s representatives . . . knowledge or authority” are not accurate or
`well-taken. The reason meet and confers are repeatedly “stalled” is because Orca continually serves overbroad and
`irrelevant requests, and then insists on raising its issues first and forces more of its own issues into discussions about
`Wiz’s issues. As to the two Wiz issues that we did not discuss on Monday or yesterday, we have discussed those issues
`at length during multiple meet and confers and Orca still continues to refuse to provide the discovery we seek. This is
`true even as of Monday, when we invited Orca to propose a compromise during the meet and confer. Had Orca not
`insisted on injecting irrelevant issues into the discussion, such as Orca’s own irrelevant RFPs, the production may have
`been more fruitful. In any event, we correct the most serious misrepresentations in your email below.
`
`Orca’s Issues
`
`
`
`RFP Nos. 91, 92, 94, 113: Your email is the first we have heard of Orca’s proposal regarding the page you
`cite. Wiz never “proposed” or “retracted” anything related to this document or page, whether during Monday’s
`meet and confer or otherwise. In any event, we understand your citation to refer to the document with
`beginning Bates number WIZ_0032970 as that is where the page WIZ_0032973 originates from. Orca’s proposal
`to “limit[] these RFPs to the features and functionalities” in this document is meaningless because the document
`appears to list all Wiz features and functionalities—not those relevant to the issues in this case—and provides
`different licensing tiers to access the various features and functionalities.
`
`: Your contention that Wiz was “not prepared to address the merits of
` Documents/communications with
`the confidentiality agreement” is not true or productive. As Wiz noted during the meet and confer, Orca sat on
`the confidentiality agreement that we provided for weeks and did not provide its position regarding the
`agreement until the call—and even then, we had to ask what Orca’s position was before we received a
`response. We were nevertheless prepared to discuss the agreement and did so, without any “convoluted set of
`caveats” as you claim. The issue is simple, and as we have repeatedly informed the Orca team: Wiz will produce
`non-privileged documents that are responsive to Orca’s other RFPs consistent with Wiz’s agreement to produce
`documents in response to those RFPs, irrespective of whether those documents were disclosed to
` or
`not. But the simple act of sharing a document with
` does not automatically render that document
` that are not responsive to
`responsive. As such, Wiz will not identify or produce documents disclosed to
`Orca’s RFPs because those are protected by the common interest privilege.
`
`
`
`ESI Dispute: As we explained during the meet and confer and reiterated in our previous email, no “filtering” was
`used to decide whether a document was responsive or not. Human reviewers made determinations, on a
`document-by-document basis, based on relevance to the issues and defenses in this case. At no time did Wiz
`“admit” that it would “simply select documents it deemed least problematic” to share with Orca as samples of
`irrelevant documents—that is the position Orca took and is now falsely attributing to Wiz. Regardless, we note
`
`1
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 168-2 Filed 10/10/24 Page 3 of 8 PageID #: 4332
`
`that your email omits to mention that the parties, in view of Orca’s position, agreed during the meet and confer
`that an exchange of a sample set of documents would be unproductive.
`
` Orca’s Interrogatory No. 15: During the meet and confer, Orca asked Wiz to supplement its response to
`Interrogatory No. 15 to include information about which Wiz employees accessed the Orca material. As we
`explained during the call and in our previous email, Interrogatory No. 15 does not request this information.
`
`Wiz’s Issues
`
`
`
`Interrogatory Nos. 12 and 13 (discussed on the meet and confer): Wiz has explained on multiple meet and
`confers and emails, including the most recent ones, why Orca’s responses are deficient. For example, our
`previous email makes clear that Orca’s response to Rog 12 “did not include a narrative response regarding
`
` and that “Orca’s
`response to Rog 13 was also deficient because it did not confirm that no one at Orca had received any Wiz
`documents
` That Orca still does not understand what information
`these interrogatories seek is simply not credible.
`
`
`
` Orca’s Deficient Core Technical Document Production (not discussed on the meet and confer): The response
`we have received from you confirms that any additional time spent meeting and conferring on this issue will be
`unproductive. The parties have exchanged many emails and verbally met and conferred regarding this issue
`multiple times. There is nothing “baseless” about this dispute because Orca refuses to budge from its
`indefensible position. If there are additional responsive, non-privileged documents, Orca should produce
`them. If there are not, then Orca should confirm that that is the case. Wiz has been forced to bring this dispute
`to the Court because of Orca’s refusal to meaningfully engage regarding this topic, instead repeatedly and
`baselessly claiming that Wiz has not identified what is missing from the documents that Orca possesses, and that
`Wiz has no visibility into.
`
`
`
`RFP Nos. 72 and 73 (not discussed on the meet and confer): To be clear, Wiz did not withdraw RFP 72. And as
`with Wiz’s other issues, the parties have exchanged many emails and verbally met and conferred regarding this
`issue at length, and over the course of several calls. Still, Orca continues to make the same arguments it made
`before the parties’ prolonged discussions about these RFPs. This confirms that Orca is using meet and confers to
`delay providing a real response to Wiz’s issues and to stall Wiz from raises these issues before the Court, even
`while continuing to threaten to bring—and bring—its own baseless issues to the Court. Orca’s response also
`highlights another double standard, as Orca previously took the position that it could properly raise the dispute
`regarding the cloud native ESI term in briefing for the September 11, 2024 conference even though it had
`expressly withdrawn that dispute during the parties’ court-ordered meet and confer. See B. Davis Sept. 3, 2024
`email. Orca has no basis for now claiming that Wiz cannot bring a ripe dispute before the Court.
`
`Regards,
`Praatika
`
`From: Nicole.Bruner@lw.com <Nicole.Bruner@lw.com>
`Sent: Tuesday, October 1, 2024 10:05 PM
`To: Prasad, Praatika <pprasad@wsgr.com>; orcasecuritywiz.lwteam@lw.com; JBlumenfeld@morrisnichols.com;
`RSmith@morrisnichols.com; cclark@morrisnichols.com
`Cc: WSGR - Orca Wiz <WSGR-Orca-Wiz@wsgr.com>; Cottrell@RLF.com; Farnan@RLF.com; haynes@rlf.com
`Subject: RE: Orca v. Wiz - Memorialization of 9/30 M&C
`
`EXT - nicole.bruner@lw.com
`
`2
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 168-2 Filed 10/10/24 Page 4 of 8 PageID #: 4333
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`Counsel,
`
`We are writing to assert Orca’s position and to address the deficiencies in your previous email.
`
`As an initial matter, yesterday’s meet and confer was again stalled because Wiz’s representatives did not have the
`knowledge or authority to address disputed issues, provide updates on discovery progress, and commit to dates
`certain. This is not productive, as we have raised repeatedly. Going forward, we ask again that Wiz include members of
`its team that will have previously read the relevant disputes and be ready to discuss and potentially resolve issues. Wiz’s
`current approach is inefficient and counterproductive to the goal of streamlining disputes for the Court.
`
`With respect to your summary below, we have corrected certain inaccuracies and provide our responses in red below.
`
`Regards,
`
`Nicole Elena Bruner
`
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW | Suite 1000 | Washington, D.C. 20004-1304
`D: +1.202.654.7209 | M: +1.202.802.8093
`
`From: Prasad, Praatika <pprasad@wsgr.com>
`Sent: Tuesday, October 1, 2024 3:26 PM
`To: #C-M ORCA SECURITY - WIZ - LW TEAM <orcasecuritywiz.lwteam@lw.com>; JBlumenfeld@morrisnichols.com;
`RSmith@morrisnichols.com; cclark@morrisnichols.com
`Cc: WSGR - Orca Wiz <WSGR-Orca-Wiz@wsgr.com>; Cottrell, Fred <Cottrell@RLF.com>; Farnan, Kelly E.
`<Farnan@RLF.com>; Haynes, Christine D. <haynes@rlf.com>
`Subject: Orca v. Wiz - Memorialization of 9/30 M&C
`
`Wiz and
`
` Highly Confidential – Attorneys’ Eyes Only Information
`
`Counsel,
`
`We write to memorialize the parties’ September 30 Court-ordered meet and confer and to provide Wiz’s positions on
`certain of the issues discussed. We also include the Wiz issues not reached on the meet and confer. Please advise as to
`whether Orca agrees to Wiz’s requests in this regard.
`
`Orca’s Issues
`
`
`
`RFP Nos. 91, 92, 94, 113: Orca asked Wiz if it was planning to produce documents consistent with the narrowed
`scope that Wiz agreed to in its August 20, 2024 supplemental responses. Wiz confirmed that it was planning to
`do so. Orca then asked if Wiz’s production would include documents relating to the Supply Chain Security and
`Runtime Sensor features in view of the Court’s September 10, 2024 order, as the supplemental responses were
`served prior to the issuance of that order. Wiz explained that Wiz disagrees that those functionalities are
`relevant to the claims and defenses in this case, particularly the Runtime Sensor, because it relates to agent-
`based technology and Orca’s claims are limited to agentless technology. Wiz added that for purposes of
`resolving this dispute only (i.e., to reduce the number of issues for resolution by the Court), it would be willing to
`produce documents regarding the Supply Chain Security and Runtime Sensor features for these four RFPs; Wiz
`further explained that this would not be a concession that the Supply Chain Security or Runtime Sensor features,
`or any agent-based features or functionalities, are in any way relevant, or all discovery should be supplemented
`to include those features, but that it would consider any future requests by Orca for additional discovery
`regarding those features for Orca’s other discovery requests on a case-by-case basis. Orca responded that what
`Wiz considers relevant does not matter.
`
`3
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 168-2 Filed 10/10/24 Page 5 of 8 PageID #: 4334
`o As Orca explained on the call, Wiz’s position that it intends to continue withholding discovery regarding
`Supply Chain Security and Runtime Sensor features because it disagrees with the Court’s Order is
`fundamentally improper. The Court plainly held that those features “fall within the scope of” Orca’s
`claims and infringement contentions. D.I. 139 (The motion is GRANTED with respect to the Supply Chain
`Security feature and the Runtime Sensor, as well as the source code change logs and git history from
`2020 to the present for those specific features. The record before the court establishes that these
`functionalities fall within the scope of Plaintiffs claims and infringement contentions, as well as
`Defendant's response to Interrogatory No. 1 identifying components in the Accused Product related to
`the accused functionalities.). Please confirm that Wiz is not withholding and will not withhold other
`discovery responsive to Orca’s RFPs as to Supply Chain Security and Runtime Sensor features. As we
`stated on the meet and confer, this is not a dispute that should need to be raised again. If Wiz will not
`agree, Orca reserves the right to seek attorneys’ fees bringing any subsequent motion.
`o As we stated during the meet and confer, for purposes of resolving the dispute regarding RFP Nos. 91,
`92, 94, 113, Wiz is willing to produce documents that are responsive to these RFPs related to the
`specifically accused “snapshot” functionality, as Wiz understands it, as well as the Supply Chain Security
`feature and the Runtime Sensor feature. Please advise whether this resolves the dispute.
` Wiz’s response above simply highlights the same issue discussed in the parties’ meet and
`confer. There is no question that Supply Chain Security and Runtime Sensor must be
`included. That is not a compromise, that is complying with the Court’s Order. The problem
`remains that Wiz refuses to explain what it means by “specifically accused ‘snapshot’
`functionality as Wiz understands it.” As Wiz initially proposed and then retracted, and Orca
`agreed as a compromise, Orca would be amenable to limiting these RFPs to the features and
`functionalities in WIZ_0032973 that Wiz relies on as defining the features related to the Accused
`Functionalities in its response to Orca’s Interrogatory No. 1. Please let us know if Wiz agrees,
`otherwise we will continue to seek the Court’s assistance.
`
`: As we noted during yesterday’s meet and confer, Wiz provided Orca
` Documents/communications with
`with a copy of the confidentiality agreement between
` and Wiz weeks ago and did not hear back from
`Orca regarding this issue. Yesterday, Orca stated for the first time that it had reviewed the agreement and did
`not believe the common interest privilege applies. Wiz explained that there is a clear provision in the
`agreement regarding the common interest that supports invocation of the common interest privilege. Orca
`asked if Wiz would provide it with a list of all documents exchanged with
`. Wiz responded that the list
`Orca seeks would be common interest privileged and, as such, would not be provided. As we have previously
`said, Wiz will produce non-privileged documents that are responsive to Orca’s other RFPs, consistent with Wiz’s
`agreement to produce documents in response to those RFPs, irrespective of whether those documents were
`disclosed to
`. As we made clear, however, Wiz will not provide a list of the specific documents that have
`been disclosed to
` or otherwise identify those documents; and Wiz does not agree to produce documents
`that are not independently responsive to the RFPs for which Wiz has agreed to produce documents, simply
`because they were disclosed to
`. In other words, a document does not become responsive simply
`because it was exchanged with or disclosed to
`. Orca asked if Wiz would be producing its
`correspondence with
`. Wiz confirmed that such communications are protected by the common interest
`privilege and will therefore not be produced. Orca stated that it would maintain this dispute for the Court.
`o As discussed on the call, Orca disagrees that any provision establishes a common interest privilege, let
`alone to be so sweeping as to encompass every email communication with
`. Wiz was not
`prepared to address the merits of the confidentiality agreement during the call. Your convoluted set of
`caveats about what documents Wiz will or will not disclose also appears designed to prevent Orca from
`ascertaining relevant information regarding Wiz’s valuation and the value of the accused product and
`accused functionalities as part of that
` For example, if non-privileged materials were
`exchanged with
` by email, those emails have no underlying privilege and the common interest
`cannot apply irrespective of any agreement. We also disagree with Wiz’s caveats that it is selectively
`disclosing some documents exchanged with
` but not others, based on some unilateral
`determination that they are not “independently responsive.” Wiz should produce all documents
`
`4
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 168-2 Filed 10/10/24 Page 6 of 8 PageID #: 4335
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` Orca intends to request the Court’s
`responsive to Orca’s RFPs that were exchanged with
`assistance with respect to Wiz’s improper withholding of documents.
`
`
`
`ESI Dispute: Orca asked for an explanation of how Wiz’s responsiveness review was conducted. Wiz explained
`that a document-by-document review was conducted by human reviewers and that documents were not
`automatically withheld on the basis of hitting on certain search terms. Orca then asked how responsiveness
`determinations were made. Wiz explained that documents that were clearly irrelevant to the issues of the case
`were identified as nonresponsive. Wiz offered to share a sample of such documents with Orca to resolve this
`dispute, recognizing that doing so may not move the ball on this issue because Orca would likely claim the
`sample shared is not representative of all withheld ESI hits. Orca confirmed that it would indeed take this
`position. Orca then asked when Wiz would produce the additional responsive documents it had identified
`would be produced in an upcoming production. Wiz said it would follow up in writing.
`o Wiz expects to produce an initial batch of responsive documents by Thursday, October 3, if not
`tomorrow, and the remainder by Friday, October 4. As we asked yesterday, please tell us the
`approximate volume of documents that are going to be produced.
`o Wiz’s statements regarding Wiz’s proposal of sharing a sample of withheld documents mischaracterizes
`the parties’ exchange. Once Wiz disclosed that its production involved a document-by-document review
`to filter for its interpretation of relevance – despite the fact that each document already hit on agreed
`upon search terms – Orca requested additional details on Wiz’s filtering criteria. Wiz refused to provide
`any details. Wiz offered to share a sample of documents with Orca, admitting this wouldn’t “move the
`ball” because Wiz could simply select documents it deemed least problematic. The only specific
`example that Wiz provided on the call of an allegedly “irrelevant” document was information regarding
`particular personnel that had joined teams to work on particular projects. Orca explained that Wiz
`seemed to be improperly withholding documents that would allow Orca to investigate the person(s)
`most knowledgeable about particular features and/or where additional discovery might be found. Wiz
`had no response. Orca nevertheless expressed willingness to review Wiz’s other examples of
`“irrelevant” documents, and asked that Wiz share its examples. We understand Wiz is now reneging on
`that proposal.
`
` Orca’s Interrogatory No. 15: The parties discussed Orca’s Interrogatory No. 15 in conjunction with Wiz’s
`Interrogatory Nos. 12 and 13 below. Wiz has not provided responsive information in its supplements to
`Interrogatory No. 15 including, for example, (1) identifying employees who were exposed to the materials; (2)
`identifying 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. Orca has provided such information in its response to Wiz’s
`Interrogatory No. 12. Orca again requests that Wiz supplement its responses to Interrogatory No. 15 with at
`least the above-noted information. Furthermore, Wiz has not confirmed that no one at Wiz has received any
`documents other than what are expressly listed in its supplemental responses, reserving the right to add yet
`more information.
`
`Wiz’s Issues
`
`
`
`Interrogatory Nos. 12 and 13 (discussed on the meet and confer): Orca asked Wiz if it was going to change its
`position on these interrogatories given that Orca supplemented its responses to both an hour prior to the meet
`and confer. Wiz stated that it did not receive a supplemental response for Rog 13; Orca responded that its
`supplemental response to Rog 12 is incorporated in its response to Rog 13. Wiz explained that more time would
`be needed to review the supplemental response and documents cited for Rog 12, given that Orca supplemented
`its response so close in time to the meet and confer, but added that the supplemental response did not include
`a narrative response regarding
`
`
` Wiz added that Orca’s response to Rog 13 was also deficient because it did not confirm that no one
`at Orca had received any Wiz documents
`. Orca was unable to provide
`
`
`
`5
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`

`

`Case 1:23-cv-00758-JLH-SRF Document 168-2 Filed 10/10/24 Page 7 of 8 PageID #: 4336
`
`a response to, or further information on, either of these points. Instead, it asked whether Wiz was going to
`supplement its response to Orca’s Rog 15 to include information about which Wiz employees had access to Orca
`material. Orca’s Rog 15 does not, however, include a request for identification of all Wiz employees who had
`ever accessed the Orca material. As such, Wiz does not plan to supplement its response at this time.
`o As we asked on the meet and confer, and to which Wiz would not provide a response, what information
`is Wiz asking Orca to supplement that was not addressed in its current or prior
`supplementations? Orca’s supplement yesterday addressed all issues that Wiz previously raised, and it
`would be improper to raise new disputes that the parties have never before discussed. Your statements
`regarding Orca’s Interrogatory No. 15 are incorrect as discussed above. Orca will not agree to continue
`its unilateral production of information when Wiz has forgone its own discovery obligations.
`
` Orca’s Deficient Core Technical Document Production (not discussed on the meet and confer): Wiz’s position
`has not changed with respect to this issue. As Wiz has explained multiple times, Orca has not met its obligation
`to produce core technical documents describing how each of the accused functionalities operate. Contrary to
`Orca’s position, production of source code and git history is not sufficient in this situation because they do not
`show how all of the accused functionalities work. In addition, the documents Orca identifies as purportedly
`satisfying its obligation to produce technical documents fail to describe how the accused features and
`functionalities work—that is a different inquiry than simply identifying or pointing to those features without any
`further explanation of how they operate. Please confirm if Orca will produce core technical documents showing
`how each of the accused features and functionalities operate, as the Delaware Default Rules require. Wiz will
`otherwise include this issue in its opening discovery letter.
`o Wiz’s position is misplaced. First, Orca has produced (1) its entire source code, (2) its Git history and
`repository information, which provides significant context for Wiz to understand the underlying
`technology, and (3) a wide array of technical documents. Even now, Wiz refuses to actually explain what
`it is seeking, and apparently refuses to discuss the issue on a meet and confer. Indeed, Orca expressly
`asked for Wiz to provide additional times to verbally meet and confer so that we could try to address
`this dispute without Court intervention. We are still available. Orca has repeatedly and exhaustively
`asked Wiz to provide any specificity for what else it believes is missing, and Wiz has refused to
`engage. Wiz appears dead set on bringing this baseless dispute to the Court, and we will address the
`parties’ history of correspondence and Wiz’s refusal to substantively meet and confer on this issue in
`response to Wiz’s letter.
`
`
`
`RFP Nos. 72 and 73 (not discussed on the meet and confer): Wiz’s position has not changed with respect to
`these RFPs. These RFPs mirror Orca’s RFP Nos. 38 and 41; Wiz therefore proposed earlier that each party agree
`to produce documents in response to the other’s requests. Orca has consistently refused to produce any
`documents in response to RFP No. 72 even though such documents are plainly relevant to show Orca’s
`engagement of CGI Group to conduct competitive business intelligence activities related to its competitors,
`including Wiz. Orca claims that any documents responsive to RFP No. 73 are somehow privileged even though
`they involve a third party, but has still not articulated a basis for how communications with such third parties
`can be privileged. Please advise if Orca will change its position and produce documents responsive to both
`these Requests. Wiz will otherwise raise this issue with the Court in this week’s briefing.
`o For Request 73, Orca confirmed that there are no non-privileged responsive documents to the RFPs
`relating to CGI Group, excluding email or other forms of electronic correspondence (which the parties
`agreed are not responsive to Wiz’s RFPs, D.I. 71 at 3), and that to the extent there are responsive ESI
`documents relating to CGI Group they will be produced or logged in accordance with the scheduling
`order. See K. McKenna Aug. 28, 2024 Email. Wiz also expressly withdrew RFP 72, so that issue is not
`properly before the Court. Wiz appears to be set on bringing a baseless dispute to the Court without
`meeting and conferring, as Orca said it would be available to discuss.
`
`Please confirm which of Orca’s issues you still intend to raise with the Court in this week’s briefing and advise on Orca’s
`positions regarding Wiz’s issues so we can evaluate next steps.
`
`6
`
`

`

`Case 1:23-cv-00758-JLH-SRF Document 168-2 Filed 10/10/24 Page 8 of 8 PageID #: 4337
`
`Regards,
`Praatika
`
`Praatika Prasad (she/her) | Associate | Wilson Sonsini Goodrich & Rosati
`1301 Avenue of the Americas, 40th Floor | New York, NY 10019 | 212.453.2803 | pprasad@wsgr.com
`
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`7
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