Case 1:23-cv-00758-JLH-SRF Document 172 Filed 10/10/24 Page 1 of 6 PageID #: 4474
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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 RESPONSE TO ORCA’S OCTOBER 2, 2024 LETTER
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`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
`
`Dated: October 3, 2024
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`

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`Case 1:23-cv-00758-JLH-SRF Document 172 Filed 10/10/24 Page 2 of 6 PageID #: 4475
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`Dear Judge Fallon:
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`Wiz Produced Responsive Documents As Required by the ESI Order and Agreed by the
`Parties: Orca’s position that all documents (and email families) that hit on the parties’ search
`terms must be produced in response to the parties’ Priority Requests, regardless of relevance, is
`untenable in light of the Federal Rules of Civil Procedure, the Orders governing this case, the case
`law, and the parties’ meet and confers regarding the Priority Requests.
`Under Rule 26(b)(1), discovery is limited to “nonprivileged matter that is relevant to any
`party’s claim or defense and proportional to the needs of the case.” Likewise, the Default Standard
`for Discovery, Including Discovery of Electronically Stored Information (“Default ESI Order”),
`which is incorporated into the ESI Order in this case (D.I. 71 at 1), is clear that the purpose of ESI
`discovery is to “identify and produce relevant information.” Default ESI Order, ¶ 1.b (emphasis
`added). The ESI Order itself requires production of only “non-privileged custodial ESI responsive
`to the parties’ Priority Requests.” D.I. 71 at 6 (emphasis added). Nowhere does the Order
`contemplate that everything that hits on a search term is responsive.
`The case law confirms that a “responsive” document is one that is relevant to the issues or
`defenses of the case at hand and that relevance review of documents that hit on custodial ESI
`search terms is standard and appropriate. Ex. A, CMC Materials, LLC v. Dupont De Nemours,
`Inc., D.I. 191 (D. Del. Oct. 11, 2023) (J. Hall) (oral order denying plaintiff’s request to compel
`defendant to turn over all search-term-identified documents where defendant “offered plausible
`evidence that the parties agreed to use search terms to ‘locate potentially responsive emails’”); see
`also Monolithic Power Sys., Inc. v. Intersil Corp., 2018 WL 6077973, at *1 (D. Del. Nov. 19,
`2018) (adopting Special master’s opinion denying plaintiff’s “motion to compel [defendant] to
`produce all non-privileged e-mail returned by agreed-upon search terms/custodians without
`conducting a ‘relevance review.’”); Palmer v. Cognizant Tech. Sols. Corp., 2021 WL 3145982, at
`*9 (C.D. Cal. July 9, 2021) (The “Court will not compel defendants to produce any document
`simply because it contains a search term whether or not it is responsive to the discovery request,
`or, by extension, whether or not it is relevant and proportional to the needs of the action.”).
`The only case Orca cites is inapposite. CrossFit, Inc. v. Nat’l Strength & Conditioning
`Association, 2019 WL 6527951 (S.D. Cal. Dec. 4, 2019). In that case, hundreds of documents and
`devices were lost, and the Court found the losing party had “acted with intent to deprive [the other
`party] of the lost ESI.” Id. at *10. The consideration of these lost documents as presumptively
`relevant came in the context of determining whether to impose sanctions for spoliation, as the
`documents could not be reviewed for relevance. Id. at *6. Despite its misconduct, the defendant
`was still permitted to review “presumptively relevant” documents that were not destroyed for
`responsiveness prior to production. Id. at *3. Wiz, on the other hand, is not “withholding” any
`relevant, responsive, non-privileged documents.1
`As Orca acknowledges, Wiz also objected to Orca’s Priority Requests on the basis of
`relevance. Ex. C; D.I. 155-4 at 2. Orca’s position that all non-privileged hits must be produced
`would essentially require a party like Wiz to refuse to run any search terms in order to preserve
`objections to producing irrelevant documents. Such a position is impractical, contrary to law, and
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`1 Orca’s attempt to inject irrelevant topics here should not be given any credence. For example,
`Orca spills ink on JIRA tickets even though Wiz produced all non-privileged tickets that hit on
`Orca’s search terms (given the timing under the Court’s order). Ex. B. Despite having the same
`amount of time as Wiz, however, Orca has not similarly produced any JIRA tickets. Orca should
`be required to produce all remaining JIRA tickets hitting on Wiz’s search terms by October 10.
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`1
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`Case 1:23-cv-00758-JLH-SRF Document 172 Filed 10/10/24 Page 3 of 6 PageID #: 4476
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`would frustrate efforts to “reach agreements cooperatively” on search terms to run and review on
`ESI. Default ESI Order, ¶ 1.a.
`In addition, Orca is incorrect that “Wiz claims it verbally raised a relevancy/
`responsiveness review during a meet and confer.” D.I. 155 at 2. Counsel for Orca referred to the
`parties reviewing documents for relevance in a debate over whether the appropriate numbers to
`compare for emails were hit counts alone (which Orca contended were the only documents that
`would need to be reviewed for relevance) or hit counts plus families (which Wiz pointed out would
`need to be reviewed for privilege). Ex. D, ¶¶ 3-5. That the parties had this debate is reflected in
`the meet and confer correspondence. See, e.g., D.I. 155-4 at 15 (complaining Wiz did not provide
`“total hit count excluding family”); id. at 9 (noting “as discussed on the previous meet and confer”
`that hits plus families “is most representative for email given how email families are treated”).
`The underlying discussion of relevance review was not memorialized because it was not in
`dispute. In accordance with the parties’ mutual understanding, Wiz engaged human reviewers to
`conduct a responsiveness and privilege review of the documents that hit on Orca’s proposed search
`terms2 on a document-by-document basis. No “filtering” of any sort was used to make
`responsiveness determinations. Then, in accordance with the parties’ contemplated substantial
`completion deadline, Wiz produced a majority of the non-privileged, responsive documents. Wiz
`has explained its responsiveness review process to Orca at least 3 times.3 Orca’s apparent inability
`to understand this process is not credible. Wiz also explained to Orca that the remaining
`documents hit on privilege filters and were being reviewed on a document-by-document basis
`before production. D.I. 155-2 at 2. As Wiz has repeatedly made clear, Wiz is not withholding any
`non-privileged responsive documents; Wiz expects to produce most, if not all, the remaining
`documents this week. That Orca ultimately chose to produce a data dump without reviewing the
`documents in accordance with the ESI Order or the parties’ agreement has no bearing on what Wiz
`should be compelled to do. In fact, Orca’s conduct requires Wiz to expend more resources to wade
`through vast amounts of irrelevant information.
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` What Orca Seeks is Irrelevant
`As to Documents Exchanged With or Disclosed to
`and Common Interest Privileged: The parties have no dispute as to the documents that Wiz has
`agreed to produce—that is, non-privileged documents that fall within the scope of Wiz’s
`agreement to produce in response to Orca’s RFPs. Stated another way, Wiz is not withholding the
`documents it has already agreed to produce simply because they were exchanged with or disclosed
`to
` D.I. 154-2 at 1; D.I. 155-9 at 1, 13.
`Where the dispute arises is in Orca’s demand for documents and emails that were
`exchanged between
` and are not independently responsive to Orca’s RFPs. In
`other words, Orca contends—and Wiz disputes—
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`This cannot be.
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`More fundamentally, what Orca seeks falls outside Wiz’s ability to produce without
`breaking the common interest privilege.
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`2 Wiz did not review or produce documents that hit on Orca’s “cloud native” search term because,
`as this Court recognized, the term is entirely improper. D.I. 139 at 4.
`3 Orca’s claim that Wiz was “unprepared” to discuss the ESI issue for “three weeks” is
`disingenuous. Wiz provided times to discuss but it was Orca that ignored these times and instead
`insisted on raising this issue when it was not on the discussion agenda. D.I. 155-3 at 3, 4-5.
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`2
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`Case 1:23-cv-00758-JLH-SRF Document 172 Filed 10/10/24 Page 4 of 6 PageID #: 4477
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`At Orca’s request, Wiz promptly provided a copy of the NDA after satisfying its notice and
`disclosure obligations. The NDA states that
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`Orca should have realized, upon receiving a copy of the NDA on September 17, 2024, t
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` Both are protected by the common interest
`privilege. Wiz did not hear back from Orca until the September 30 meet and confer, when it
`became clear that Orca had not reviewed the NDA.
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` Orca has cited no case supporting such
`discovery, including potentially reaching into discussions purely between lawyers.
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` The cases Orca cites here are inapposite. Finjan v. Blue Coat Systems, Inc. dealt with a
`motion to strike revenue and prices specifically for “technology containing the accused features,”
` 2015 WL
`4129193, at *4 (N.D. Cal. July 8, 2015). 10x Genomics, Inc. v. Celsee, Inc. contemplated the
`common interest privilege where the subject letter “was not a joint defense letter” but, rather, “a
`nonbinding expression of the parties’ intent to consummate a stock acquisition.” 505 F. Supp. 3d
`334, 337-38 (D. Del. 2020). And, Fraunhofer-Gesellschaft Zur Forderung Der Angewandten
`Forschung E.V. v. Sirius XM Radio featured a standard NDA for discussions about a potential
`agreement without any obligations. 2022 WL 20806272, at *4 (D. Del. June 28, 2022).
`The Court should deny Orca’s unprecedented request for irrelevant, common interest
`privileged materials
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`Wiz Agreed to Produce Documents Relating to the Accused Functionalities for Orca’s RFP
`Nos. 91, 92, 94, and 113, and All Else Sought by Orca is Irrelevant: Orca has once again
`propounded overbroad RFPs untethered to this case or any party’s allegations. D.I. 62; D.I. 139
`(denying overbroad discovery). This includes asking for “all” documents related to Wiz’s Series
`E financing round (RFP No. 94), “all” documents related to the 2024 RSA Conference (RFP Nos.
`91, 92), and all presentations to the board of directors (RFP No. 113). Ex. E at 5-6, 2, 3, 25. Wiz
`has repeatedly explained why these types of requests are improper in this patent infringement
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`3
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`Case 1:23-cv-00758-JLH-SRF Document 172 Filed 10/10/24 Page 5 of 6 PageID #: 4478
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`action. Still, in an effort to reach agreement on this issue, Wiz agreed to produce documents related
`to the accused “snapshot” functionality4 for each of these RFPs, because that functionality is the
`basis of Orca’s claims.5 Id. at 3, 4, 6, 26. Wiz has made clear that it is receptive to Orca’s requests
`for additional information provided those are reasonable. D.I. 154-5 at 8-9. For example, just
`recently, Wiz agreed to produce responsive documents related to the Supply Chain and Runtime
`Sensor functionalities even though it maintains that agent-based technology like the Runtime
`Sensor is not responsive. D.I.154-2 at 3. Orca is still not satisfied and thus must face the
`overbreadth and lack of proportionality in its requests as stated.
`Each of these RFPs as stated are grossly overbroad. Orca fails to explain why “all”
`documents related to the 2024 RSA Conference or Wiz’s Series E financing round are relevant or
`proportional to the needs of this case. All documents regarding funding round materials are not
`needed to establish damages, because, as Orca’s single cited case confirms, Wiz’s total value is
`not sufficiently tied to the Asserted Patents to be the basis of any damages calculation.6 D.I.155
`at 4. RFP 113’s request for board minutes related to the accused products is also overbroad because
`Orca contends Wiz has only one product, so it effectively asks for information about every board
`meeting Wiz has ever had. Orca has not provided authority to include irrelevant board meeting
`minutes in a patent case. Regarding RFP Nos. 91 and 92, even if certain documents were made
`publicly available two years after Orca illicitly obtained them (D.I. 124, ¶ 14), that would have no
`bearing on Wiz’s unclean hands defense.
`Finally, Orca’s “compromise” is not a compromise at all. WIZ_0032970 identifies all of
`Wiz’s product features. D.I. 133-10. As this Court has twice previously recognized, Orca has not
`shown that every document within Wiz is relevant to the asserted patents in this case. D.I. 62, D.I.
`139. Orca’s third attempt should similarly be rejected.
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`Wiz’s Response to Orca’s Interrogatory No. 15 is Not Deficient: As Orca recognizes, Wiz has
`supplemented its response to Interrogatory No. 15 four times to provide all the information Orca
`specifically requested from Wiz. Wiz has identified the specific Orca documents it had access to,
`the dates of first access to those documents, how access was received (
`), which
`Wiz employee first received access, and details about the revocation of such access. D.I. 155-12
`at 41-45. And while Orca demands that Wiz identify every Wiz employee that accessed the
`information because Wiz’s Interrogatory No. 12 requests that information, Orca’s interrogatory
`does not ask for the same information. Orca’s interrogatory also does not request confirmation of
`the scope of documents in Wiz’s possession. There is no basis for Orca to demand that Wiz
`provide information not sought by its interrogatory.
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`* * *
`In light of the above, Wiz respectfully requests that this Court deny Orca’s requests.
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`4 Orca now asserts that it does not understand what the accused “snapshot” functionality is. This
`is not believable, given that it is Orca that brought this lawsuit and provided infringement
`contentions. For the avoidance of doubt, the accused “snapshot” functionality means any calls
`made by Wiz to a cloud service provider’s API that returns a snapshot or a location of a snapshot,
`whether the snapshot already existed or was generated as a result of the API call.
`5 Wiz will produce non-privileged, responsive documents as agreed by the end of this week.
`6 ResQNet.com, Inc. v. Lansa, Inc. does not discuss documents presented to investors; rather, its
`holding goes against Orca’s broad request. 594 F.3d 860, 869 (Fed. Cir. 2010) (finding damages
`model does connect proposed royalty with value of patented method).
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`4
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`Case 1:23-cv-00758-JLH-SRF Document 172 Filed 10/10/24 Page 6 of 6 PageID #: 4479
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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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`cc:
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`5
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