Case 1:23-cv-00758-JLH-SRF Document 171 Filed 10/10/24 Page 1 of 6 PageID #: 4402
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ORCA SECURITY LTD.,
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`Plaintiff,
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`v.
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`Defendant.
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`WIZ, INC.,
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`)
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`C.A. No. 23-758 (JLH) (SRF)
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`PUBLIC VERSION
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`LETTER TO THE HONORABLE SHERRY R. FALLON FROM RODGER D. SMITH II
`IN RESPONSE TO WIZ’S DISCOVERY TELECONFERENCE LETTER (D.I. 154)
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`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 and Counterclaim-
`Defendant Orca Security Ltd.
`
`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
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`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
`
`Confidential Version Filed: October 3, 2024
`Public Version Filed: October 10, 2024
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`

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`Case 1:23-cv-00758-JLH-SRF Document 171 Filed 10/10/24 Page 2 of 6 PageID #: 4403
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`Dear Judge Fallon:
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`Plaintiff Orca Security Ltd. writes in response to Defendant Wiz, Inc.’s discovery letter (D.I. 154).
`Contrary to the Court’s Order (D.I. 148) directing the parties to “meet and confer at least once
`more prior to the commencement of letter briefing,” Wiz refused to meet with Orca regarding two
`of the three issues in its letter. Wiz unilaterally determined that the parties had met and conferred
`enough, and further meetings would be “unproductive.” Ex. 1 at 2. Wiz now tries to shift the blame
`to Orca for its refusal to meet and confer. D.I. 154 at 1 n.1. That is wrong. Wiz refused to meet
`until September 30, two days before briefing was due. Ex. 2 (Orca providing times to meet and
`confer on September 25 and 26, and agreeing to Wiz’s counterproposal). In the one hour that Wiz
`was available, the parties ran out of time to address all seven identified issues because Wiz’s
`counsel had not reviewed the issues in the motion for teleconference before the meeting.
`Nevertheless, on the meet and confer and in correspondence after, Orca repeatedly asked Wiz to
`provide additional times to meet to discuss Wiz’s issues. Ex. 1 at 6, 7. Wiz rejected those requests.
`
`Wiz’s pronouncement that meet and confers would be “unproductive” is not a reason to disregard
`the Court’s Order and reflects Wiz’s attitude towards discovery generally. Orca has every interest
`in resolving Wiz’s issues without the Court, as shown by its serving an amended response to Wiz’s
`Interrogatory Nos. 12 and 13 to address Wiz’s complaints about those responses. On the recent
`meet and confer, Wiz contended that Orca’s amended response was still not enough but would not
`explain what else it was seeking. Ex. 1 at 6. Wiz’s letter unveils why. Wiz identifies for the first
`time an
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`
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` Wiz’s tactical choice to spring
`this on Orca for the first time in a letter to the Court violates the letter and spirit of the Court’s
`instruction that the parties meet and confer.
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`As discussed below, the issue is not Orca’s refusal to produce documents; it is Wiz’s refusal to
`identify what it is seeking or why it is relevant. Wiz’s requests in its letter should be denied.
`
`Orca’s Responses to Wiz’s RFP Nos. 72 and 731: Wiz’s request regarding RFP 72 should be
`denied for the same reason the Court already denied Wiz’s RFP 54: it is irrelevant and overbroad
`on its face. As Wiz concedes, RFP 72 broadly seeks all documents related to “Orca’s competitive
`business intelligence activities,” unrelated to Wiz and applying to all of Orca’s competitors and
`activities in the marketplace. D.I. 154 at 1. As the Court already found, a request that “seeks all
`documents and communications relating to Plaintiff’s competitors, is overbroad.” D.I. 139 at 2
`(regarding RFP 54). Even ignoring the overbreadth of this request, Orca has repeatedly asked Wiz
`to explain the relevance of documents relating to non-parties. See, e.g., D.I. 154, Ex. 4 at 6, 12.
`Wiz’s only response is that such documents show “how Orca views and evaluates its competitors,”
`id. at 7, which has no bearing on the claims or defenses in this case. Wiz also wrongly compares
`its RFP 72 to Orca’s RFPs 38 and 41, ignoring that Orca’s RFPs 38 and 41 request information
`
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`1 The Court should not address RFP 72 because Wiz did not meet and confer on it, and it was not
`raised in D.I. 129 for this conference. See D.I. 130 (“Discovery Dispute Motion Hearing on the
`disputes listed at D.I. 129 is set for 10/9/2024); D.I. 129 (listing RFPs 54 and 73).
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`Case 1:23-cv-00758-JLH-SRF Document 171 Filed 10/10/24 Page 3 of 6 PageID #: 4404
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`The Honorable Sherry R. Fallon
`October 3, 2024
`Page 2
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`only with respect to Orca, not any Wiz competitor. See Ex. 6.
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`Regarding RFP 73, there is no dispute for the Court to resolve, as Orca already told Wiz. Ex. 1 at
`7. Orca explained that it has already produced responsive non-privileged documents relating to or
`originating from Wiz that could potentially fall within the scope of “competitive business
`activities” in response to other of Wiz’s RFPs, such as RFP Nos. 61, 63, 65, and 67. See Ex. 3 at
`2-3. Indeed, Orca’s responses to Interrogatory Nos. 12 and 13 identify 80+ such documents by
`bates number. D.I. 154, Ex. 6 at 138-39. Wiz’s only complaint is that the documents do not relate
`to “CGI Group” specifically. But Orca has already told Wiz that it investigated that issue and found
`there are no documents responsive to RFP 73, excluding electronic correspondence that the Court’s
`ESI Order excludes. Ex. 1 at 7; D.I. 71 at 3 (“General production requests under Federal Rules of
`Civil Procedure 34 and 45 shall not include email or other forms of electronic correspondence.”).
`
`Wiz’s request for a privilege log should be denied for two additional reasons. First, it was never
`raised on any meet and confer. Second, it is premature. Neither party has served privilege logs
`because they are not due until January 22, 2025. D.I. 71 at 1; D.I. 90 at 3.
`
`Orca’s Responses to Wiz’s Interrogatory Nos. 12 and 13: Wiz’s Interrogatories 12 and 13 seek
`information regarding Orca’s access to documents originating from Wiz. These interrogatories
`request the same information from Orca as Orca’s Interrogatory 15 requests from Wiz, addressed
`in Orca’s Letter. Orca has repeatedly supplemented its response to Wiz’s interrogatories. But
`Wiz’s complaints have been a moving target, and each time Wiz has raised a complaint, Orca has
`worked to address it as discussed below. Despite meeting and conferring on this issue just days
`ago, Wiz’s letter raises entirely new issues relating to a “data model” that were never identified to
`Orca and should not be considered for the first time by the Court.
`
`As Wiz acknowledges, at the time Wiz served Interrogatories 12 and 13, Wiz had not yet asserted
`any claims or defenses in this action. D.I. 154 at 3. The information Wiz sought was thus irrelevant.
`Nonetheless, Orca supplemented its responses on April 23, 2024 to (in response to Rog 12)
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` and (in response to Rog 13),
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`. D.I. 154, Ex. 6.
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`Wiz next alleged Orca’s responses were deficient because Orca had not identified
` Ex. 4 at 2. Orca agreed to investigate and supplement
`its response following electronic correspondence discovery. Id. As promised, Orca supplemented
`on July 12 to
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`. D.I. 154, Ex. 6.
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`On July 23, Wiz raised a new complaint asking Orca to identify documents beyond Exhibit 4. Ex.
`5 at 2. Once again, Orca agreed to investigate (id. at 1) and supplemented its responses on
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`Case 1:23-cv-00758-JLH-SRF Document 171 Filed 10/10/24 Page 4 of 6 PageID #: 4405
`
`The Honorable Sherry R. Fallon
`October 3, 2024
`Page 3
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`September 30 to
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`
`. D.I. 154,
`Ex. 6. In short, Orca has worked to address each of Wiz’s complaints and supplemented its
`responses accordingly.
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`During the parties’ September 30 meet and confer, Orca asked Wiz to confirm that it would be
`withdrawing these disputes from the conference because Orca had addressed Wiz’s disputes. Wiz
`refused but would not identify what additional information it was seeking. Following the
`conference, Wiz stated that Orca should identify
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` The parties have not met and conferred regarding this request, and
`Wiz’s letter does not explain how any such information is relevant to the claims or issues in the
`case. Notably, Wiz has not provided any of this same information in response to Orca’s
`Interrogatory No. 15. Accordingly, Wiz’s request should be denied.
`
`Despite meeting and conferring on this issue just days ago, Wiz now raises another issue in its
`letter that it never before identified to Orca. As noted above, Wiz cites a document purportedly
`indicating
` and that such access is “significant, and
`raises a host of questions.” D.I. 154 at 3. Wiz never identified this document to Orca, never
`mentioned the
` it discusses, and never asked any of the “host of questions” Orca’s
`purported access thereto supposedly raises (let alone showing they relate to the at-issue claims).
`There is no excuse for this. Orca expressly asked Wiz in written correspondence the day before
`letter briefs were due:
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`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.
`
`Ex. 1 at 6. Wiz responded half an hour before briefing was due, and still did not mention this
`supposed
` Id. If Wiz had raised this issue during any of the prior meet and confers,
`Orca could have investigated it earlier. Indeed, despite learning of this issue less than 24 hours
`ago, Orca has already established that the
` to which Wiz points is a java script file
`that is publicly accessible. Orca will continue to investigate, but the Court should reject Wiz’s
`attempt to frame Orca as withholding information, when it is actually Wiz that is hiding the ball.
`
`Finally, Wiz’s request for Orca to provide “complete responses” is premature. Discovery does not
`close until May 2025, and Orca intends to continue its investigation of the facts and supplement
`its interrogatory responses as additional information becomes available. Tellingly, Wiz’s own
`response reserves the same right: “Wiz is engaged in an ongoing investigation of facts pertaining
`to this issue and expressly reserves the right to revise, clarify, and/or supplement its answer to this
`Interrogatory.” That said, Orca is not withholding relevant information, and Wiz should be ordered
`to confirm the same. To the extent the Court grants any part of Wiz’s request, Wiz should be
`ordered to provide the same information and level of detail for Orca’s Interrogatory 15.
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`Orca’s Core Technical Document Production: Orca satisfied its obligation to produce core
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`Case 1:23-cv-00758-JLH-SRF Document 171 Filed 10/10/24 Page 5 of 6 PageID #: 4406
`
`The Honorable Sherry R. Fallon
`October 3, 2024
`Page 4
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`technical documents months ago by producing: (1) its complete source code; (2) the complete git
`history reflecting developments and changes to its source code; (3) more than 13,000 Confluence
`and Jira documents which inform the operation of the source code for the accused features; and
`(4) thousands of pages from Orca’s non-public “Orca Knowledge Base” describing the accused
`Orca Platform. Wiz’s letter makes clear that Wiz has not investigated the documents that have
`been produced. Indeed, despite repeated requests from Orca, Wiz has not identified a single type
`of document that it contends is missing from Orca’s production. Wiz’s letter complains of AI and
`attack path functionalities, but Wiz acknowledged in past meet and confers that Orca produced
`many internal technical documents discussing those features. See D.I. 154, Ex. 4 at 7 (email from
`Wiz’s counsel L. Wang). Wiz’s only complaint is that the thousands of documents are not
`“substantive” enough. Id. But Orca has made every offer to investigate additional documents, and
`asked Wiz to identify “substantive” documents Orca produced for other features, or even from
`Wiz’s own production. Id. at 6 (“please identify—as we have asked multiple times—allegedly
`‘substantive’ technical documents that Wiz produced for the Accused Functionalities to comply
`with its core technical document production, so that we have an understanding of what you are
`alleging Wiz produced that Orca has not”), id. at 12 (similar). Wiz refuses to identify to Orca (or
`the Court) what “substantive” documents it contends are missing. In any event, the most
`“substantive” and complete information is the source code and git history Orca produced more
`than six months ago.
`
`Wiz oddly argues the Court should ignore Orca’s source code and git history as core technical
`documents. Wiz is wrong for two reasons. First, contrary to Wiz’s representations (D.I. 154 at 4),
`Orca did not argue source code is irrelevant to core technical documents. Orca, in fact, demanded
`Wiz produce its source code because it is a core technical document. See D.I. 158, Ex. C at 1-2
`(attached as Ex. 7). Orca also explained Wiz’s limited source code production—stripped of the
`code for numerous accused functionalities and provided three weeks late—was insufficient
`because “Wiz did not even search for relevant internal technical documents.” D.I. 54 at 2-3. Wiz
`also removed the git history from the code, which is contemporaneous technical documentation
`describing the code that Wiz still refuses to produce for its relevant code. In contrast to Wiz, Orca
`produced its complete source code, the corresponding technical documentation found in the git
`history, as well as more than 11,000 other technical documents. Wiz complains the technical
`documents purportedly don’t describe “AI-SPM.” But Orca has explained that “AI-SPM is part of
`Orca’s security posture management functionality (SPM) using sidescanning, and numerous
`documents describing that functionality have already been produced.” D.I. 154, Ex. 4 at 5-6.
`Tellingly, Wiz has not served an interrogatory asking Orca to identify documents or code
`corresponding to any feature (and Wiz has refused to respond to Orca’s interrogatories for the
`same). Second, Wiz is incorrect that Orca’s source code and git history do not show the operation
`of Orca’s AI functionality. Wiz’s counsel and experts have inspected Orca’s source code for
`dozens of hours, and Orca has not received any request for additional code. Orca affirmatively
`asked Wiz months ago whether Wiz had in fact inspected Orca’s code and git history for any
`accused functionalities, specifically to understand whether Wiz’s complaints were based on the
`fact that Wiz did not understand the operation of Orca’s code. Id. Wiz never responded. And Wiz
`refused to meet and confer on this issue before submitting its letter.
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`For these reasons, Wiz’s requests in its letter brief should be denied.
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`Case 1:23-cv-00758-JLH-SRF Document 171 Filed 10/10/24 Page 6 of 6 PageID #: 4407
`
`The Honorable Sherry R. Fallon
`October 3, 2024
`Page 5
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`Respectfully,
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`/s/ Rodger D. Smith II
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`Rodger D. Smith II (#3778)
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`Attachments: All counsel of record (via email)
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