Case 1:23-cv-00758-JLH-SRF Document 168-6 Filed 10/10/24 Page 1 of 6 PageID #: 4370
`Case 1:23-cv-00758-JLH-SRF Document 168-6 Filed 10/10/24 Page 1 of 6 PagelD #: 4370
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`EXHIBIT 5
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` EXHIBIT 5
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`

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`Case 1:23-cv-00758-JLH-SRF Document 168-6 Filed 10/10/24 Page 2 of 6 PageID #: 4371
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`Prasad, Praatika
`From:
`Sent:
`To:
`Cc:
`
`Subject:
`Attachments:
`
`EXT - krissy.mckenna@lw.com
`
`Counsel,
`
`Krissy.McKenna@lw.com
`Wednesday, August 28, 2024 10:22 PM
`Jaffe, Jordan; Prasad, Praatika
`WSGR - Orca Wiz; Farnan@rlf.com; haynes@rlf.com; Cottrell@rlf.com;
`orcasecuritywiz.lwteam@lw.com; rsmith@morrisnichols.com; JBlumenfeld@mnat.com
`RE: Orca v. Wiz | M&C re: Teleconference
`8.28.24 Orca_Wiz Revised Motion for Teleconference(153321904.6).docx
`
`We write to memorialize the parties’ meet and confer yesterday (Aug. 27). In addition, attached is the revised
`teleconference draft consistent with the parties’ discussion. Please let us know if you have any edits by EOD today.
`
`The purpose of the meet and confer was to narrow the issues before the Court during the Sep. 11 teleconference. D.I.
`123. Orca explained that, in an effort to reduce the issues currently before the Court and in view of Wiz’s commitments
`to produce documents, Orca would not raise during the Sep. 11 teleconference: Wiz’s responses to Rogs 1, 4, 7, and 12,
`RFPs 93, 95, 110, 111, and 112; the “cloud native” ESI search term; and Wiz’s document production deficiencies – with
`the caveat that Wiz still owes Orca (1) an update on the missing wiki pages identified again in K. McKenna’s Aug. 18,
`2024 email; and (2) the salesforce entries identified in K. McKenna’s July 29, 2024 email. If Wiz cannot confirm that it will
`produce the salesforce entries by Tuesday, September 3, we will need to keep that issue before the Court. Orca made
`clear that it did not consider any of these issues resolved or moot, only that it expected the parties could continue
`discussing those issues, which it also expected to be further informed by the parties ESI production this week. Wiz did
`not propose narrowing any of its issues and maintained that it intended to raise all of them with the Court.
`
`The parties also discussed the following remaining issues:
` Wiz’s response to Rog 15 / Orca’s Response to Rogs 12 and 13: Wiz served a supplemental response to Rog 15
`on August 28 after the parties met and conferred. That response remains deficient, and still does not provide as
`much information as Orca provided in response to Wiz’s interrogatory nos. 12 and 13, including because Wiz has
`not identified the employees who accessed the Orca documentation in Wiz’s possession, identify any
`communications with third parties related to such documents or otherwise related to Orca proprietary or
`restricted information Wiz accessed or viewed, describe Wiz’s understanding of the confidentiality and
`contractual requirements regarding the Orca information in its possession, or confirm the identified Orca
`documents in Wiz’s possession. During the meet and confer, Wiz stated that it preferred to reach agreement on
`the parties’ respective responses to Wiz’s Rogs 12 and 13 and Orca’s Rog 15, rather than raise that issue with
`the Court at this juncture. Orca can agree to mutually remove these issues from the Sep. 11 teleconference
`agenda, which we believe will be further informed by email discovery. Please confirm. To the extent that Wiz
`intends to raise Orca’s response to interrogatory nos. 12 and 13, we will similarly maintain our request as to
`Wiz’s response to rog 15.
` Wiz’s responses to RFPs 91, 92, 94, and 113: As discussed on prior meet and confers, Orca again explained that
`Wiz has improperly narrowed its response to these Requests by agreeing to produce documents “related to the
`specifically accused ‘snapshot’ functionality as Wiz understands it” rather than documents related to the
`accused Wiz Platform and its accused functionalities. Wiz instead alleged that requests for documents as to the
`accused products were overbroad because Wiz has only one product, and thus any request about the accused
`products purportedly requests every document that Wiz has ever created. Orca explained that Wiz’s position
`misrepresents the targeted nature of these RFPs, and asked Wiz to explain the burden, if any, of collecting the
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`Case 1:23-cv-00758-JLH-SRF Document 168-6 Filed 10/10/24 Page 3 of 6 PageID #: 4372
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`targeted information that is sought. Wiz was unable to identify any such burden, or to provide any information
`as to the scope of the collection that would be required. As to RFP 113, Wiz stated that Orca’s request would
`effectively request every board meeting because every meeting discussed the accused products, and so the RFP
`was definitively overbroad. Orca explained that because Wiz has only been a company for approximately four
`years, it did not seem that there would be many board meetings to collect. Wiz would not identify any burden to
`collecting the information and would not quantify how many meetings would be collected. Orca also asked Wiz,
`relating to these RFPs, whether Wiz could identify any specific functionality that is not either accused of
`infringement or relevant to Wiz’s own counterclaims so that Orca could consider excluding that functionality
`from its request. Wiz refused to identify any such feature, contending instead that because Wiz is a one-product
`company it would be improper to seek discovery regarding the accused product because that could encompass
`many of Wiz’s documents. Orca disagrees, particularly considering Orca is similarly situated and Wiz has
`requested all documents relating to Orca’s product. We understand the parties remain at an impasse, but please
`let us know if Wiz has reconsidered its positions or can provide any additional information on the burden of
`collecting the information requested.
`o Regarding Request 94, as discussed on the call, Orca can narrow its request to “documents sufficient to
`show the documents and communications exchanged with or presented to any actual or potential
`investor in Wiz’s Series E financing round announced on May 7, 2024 relating to the Accused Products,
`Accused Functionalities, or Wiz’s financial information (e.g., revenues, profits, pricing, forecasted or
`projected revenues, etc.) related to the Accused Products or Accused Functionalities, Orca, Orca’s
`products, or this Action.” Please confirm that Wiz will agree to this narrowed scope, which would
`remove the need to produce duplicative information to the extent the same information was shared
`with multiple actual or potential investors.
` Wiz’s Refusal to produce documents/communications relating to or exchanged with
` Wiz maintained
`that such documents and communications are protected by common interest privilege and thus refuses to
`produce any documents. Orca disagrees and will request the Court’s assistance. Orca also asked Wiz to produce
`any common interest agreement with
` so that Orca could consider it, which Wiz said it would follow up
`on. Please confirm that you will provide any common interest agreement, or confirm that no such agreement
`exists, so that the Court and Orca can consider it as part of the parties’ briefing.
` Wiz’s response to Orca’s Rogs 2 and 6 and discovery into development of the Accused Wiz Product and
`Accused Functionalities, including Wiz’s refusal to produce source code, git history, and jira tickets: Orca again
`reiterated its request that Wiz produce documents that show the development of the accused functionalities,
`including prior versions of source code, git history stored with and describing the source code, and JIRA
`tickets. Wiz refused. Wiz did not identify any burden to collecting the requested information or explain why git
`history information for the source code for the accused functionalities is purportedly not relevant or responsive
`for the claims in this case. Orca also explained that Wiz has thus far failed to produce any documents regarding
`the functionality in Wiz’s asserted patents, which Wiz did not dispute. As to JIRA tickets specifically, Orca asked if
`Wiz would agree to a mutual exchange of search terms to locate potentially relevant JIRA tickets, as set forth in
`the Delaware Default Standard for Discovery paragraph 5.b. Wiz stated it would consider that and get back to
`us. Please confirm if Wiz will agree to a mutual exchange of 10 search terms for relevant JIRA tickets so that we
`can reduce that issue for the Court.
` Orca’s core technical document production: Wiz stated that it did not think enough core technical documents
`had been produced. Orca reiterated what has been discussed on numerous meet and confers that it did not
`know what additional documents Wiz was requesting, as Orca has produced thousands of technical documents
`in addition to the source code and git history documentation that describes the operation of the source code for
`any alleged accused functionalities. Orca also asked, again, if Wiz could identify any exemplary documents that
`it contends have been produced for other features or functionality that allegedly are missing for the core
`technical documents, which Wiz was unable to provide. Wiz asked Orca to confirm that there are no other
`technical documents that exist, and Orca explained that was improper at this stage of discovery. Orca explained
`that it is not withholding any additional non-public technical documents describing any allegedly accused
`functionalities that were identified after a reasonable search, but if Wiz can identify any specific information it
`contends is missing then we will of course look into it. Wiz was unable to articulate what it believes is missing
`from Orca’s production such that Orca could perform any additional searching. Orca also again explained that
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`Case 1:23-cv-00758-JLH-SRF Document 168-6 Filed 10/10/24 Page 4 of 6 PageID #: 4373
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`discovery is ongoing, and it’s possible that there may be additional technical information in its forthcoming ESI
`production.
` Orca’s responses to RFPs 72 & 73 / Wiz’s Response to RFPs 38 & 41: Orca reiterated that Request 72 is
`overbroad, as it seeks documents regarding competition with Orca generally, unlimited to any competitor, time
`period, or scope. Wiz refused to narrow the request and thus the parties agreed they are at an impasse.
`Regarding Request 73, Orca confirmed that there are no non-privileged responsive documents 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 at the appropriate time.
`o Regarding Orca’s RFPs 38 & 41, Wiz agreed during the August 14 meet and confer to produce “any
`documents referring or relating to any evaluations, investigations, studies, or analyses of Orca or the
`Orca Platform conducted by third parties, such as hired marketing companies or intelligence companies
`(e.g., CGI Group, Bluehawk Intelligence Services, Kroll, or Blackcube)” but would not provide a date
`certain for doing so. During the August 27 meet and confer, Orca asked again for Wiz to provide a date
`by which it will provide such documents. Wiz stated that it believed it was a “null set” and would
`confirm in writing. Please expressly confirm that Wiz does not have any documents from any marketing
`companies or intelligence companies, including CGI Group, Bluehawk Intelligence Services, Kroll, or
`Blackcube, referring or relating to Orca or Orca’s platform.
` Orca’s responses to Rogs 2 & 4: Wiz maintains these issues for the Court despite Orca again explaining that it
`has produced what it has found to date and that it expects Friday’s ESI production exchange to include
`additional responsive information.
` Orca’s response to RFP 54: Wiz stated that it did not intend to withdraw this request. Orca reiterated that Wiz’s
`request for all documents and communications relating to any competitor regardless of scope or time period is
`overbroad and not proportional to the needs of the case. Orca also explained that Wiz’s request for all
`documents regarding competitors is not sustainable in view of Wiz’s own refusal to produce documents
`regarding ThreatOptix, considering Orca is Wiz’s competitor and Wiz knew that ThreatOptix’s product was
`specifically used in Orca’s product. Wiz disagreed but would not provide any explanation.
`
`Best,
`Krissy
`
`From: McKenna, Krissy (BN)
`Sent: Friday, August 23, 2024 11:47 AM
`To: 'Prasad, Praatika' <pprasad@wsgr.com>
`Cc: WSGR - Orca Wiz <WSGR-Orca-Wiz@wsgr.com>; Farnan@rlf.com; haynes@rlf.com; Cottrell@rlf.com; #C-M ORCA
`SECURITY - WIZ - LW TEAM <orcasecuritywiz.lwteam@lw.com>; rsmith@morrisnichols.com; JBlumenfeld@mnat.com
`Subject: RE: Orca v. Wiz | M&C re: Teleconference
`
`Thanks, Praatika. We will circulate an invite for 4:30 pm ET.
`
`From: Prasad, Praatika <pprasad@wsgr.com>
`Sent: Friday, August 23, 2024 10:53 AM
`To: McKenna, Krissy (BN) <Krissy.McKenna@lw.com>
`Cc: WSGR - Orca Wiz <WSGR-Orca-Wiz@wsgr.com>; Farnan@rlf.com; haynes@rlf.com; Cottrell@rlf.com; #C-M ORCA
`SECURITY - WIZ - LW TEAM <orcasecuritywiz.lwteam@lw.com>; rsmith@morrisnichols.com; JBlumenfeld@mnat.com
`Subject: RE: Orca v. Wiz | M&C re: Teleconference
`
`We are available between 4-6 ET on Tuesday.
`
`From: Krissy.McKenna@lw.com <Krissy.McKenna@lw.com>
`Sent: Friday, August 23, 2024 9:28 AM
`
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`Case 1:23-cv-00758-JLH-SRF Document 168-6 Filed 10/10/24 Page 5 of 6 PageID #: 4374
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`To: Prasad, Praatika <pprasad@wsgr.com>
`Cc: WSGR - Orca Wiz <WSGR-Orca-Wiz@wsgr.com>; Farnan@rlf.com; haynes@rlf.com; Cottrell@rlf.com;
`orcasecuritywiz.lwteam@lw.com; rsmith@morrisnichols.com; JBlumenfeld@mnat.com
`Subject: RE: Orca v. Wiz | M&C re: Teleconference
`
`EXT - krissy.mckenna@lw.com
`
`Praatika, we are not available in that window. Could you do Monday 12-1pm ET, or Tuesday before noon ET or after
`4pm ET?
`
`From: Prasad, Praatika <pprasad@wsgr.com>
`Sent: Friday, August 23, 2024 9:16 AM
`To: McKenna, Krissy (BN) <Krissy.McKenna@lw.com>
`Cc: WSGR - Orca Wiz <WSGR-Orca-Wiz@wsgr.com>; Farnan@rlf.com; haynes@rlf.com; Cottrell@rlf.com; #C-M ORCA
`SECURITY - WIZ - LW TEAM <orcasecuritywiz.lwteam@lw.com>; rsmith@morrisnichols.com; JBlumenfeld@mnat.com
`Subject: Re: Orca v. Wiz | M&C re: Teleconference
`
`Krissy,
`
`We are available on August 27 between 1:30-3 ET.
`
`Regards,
`Praatika
`
`On Aug 22, 2024, at 10:01 PM, Krissy.McKenna@lw.com wrote:
`
`EXT - krissy.mckenna@lw.com
`
`Counsel,
`
`In light of the Court’s oral order today and the August 29 deadline for a revised joint motion for
`teleconference, please let us know your availability to meet and confer on Monday or Tuesday next
`week (Aug. 26 or Aug. 27) to discuss narrowing the pending issues for teleconference.
`
`Best,
`Krissy
`
`Kristina (Krissy) McKenna
`
`LATHAM & WATKINS LLP
`200 Clarendon Street
`Boston, MA 02116
`Direct Dial: +1.617.880.4626
`Email: krissy.mckenna@lw.com
`https://www.lw.com
`
`_________________________________
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`Case 1:23-cv-00758-JLH-SRF Document 168-6 Filed 10/10/24 Page 6 of 6 PageID #: 4375
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